HKSAR v. YEUNG LAP CHI

[English Translation英譯本]

HCMA 497/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.497 OF 2005

(ON APPEAL FROM TMCC 3202 OF 2004)

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JUDGMENT

Background

1.  The appellant was charged with one count of indecent assault, contrary to Section 122(1) of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong.  He pleaded not guilty and, after trial, the magistrate acquitted him of the charge of indecent assault but convicted him of attempted indecent assault, for which he was fined $5,000.  He now appeals against conviction.

2. At about 7:25 a.m. on the day of the offence, the victim was taking a bus of route E34.  She was occupying the window seat of a double-seat on the right-hand side of the rear part on the upper deck of the bus.  The appellant boarded the bus at the Yuen Long Landmark bus-stop and chose to sit next to her.  The appellant folded his arms over his chest with his right hand on top of his left arm, whereas his left hand was hidden under his right armpit.  When the bus was in motion, the victim felt that the left side of her body near her armpit was touched by someone.  She moved her body towards the window on her right side but still felt that she was touched by someone.  She looked at the appellant sitting next to her and saw that his arms were folded over his chest, but two of his left fingers were protruding from under his armpit.  His eyes were closed at that time.  After the victim looked at him for a few seconds, the appellant suddenly opened his eyes and looked at her.  This infuriated her even more and she questioned the appellant, “What were you doing?”  The appellant did not respond and even closed his eyes after about 10 seconds.  The victim then called the police.  The police boarded the bus and arrested the appellant.  At trial, the appellant elected not to give evidence and did not call any witness.

3. The magistrate accepted the victim’s evidence and held that the appellant had touched the victim on the part below her armpit.  Although the magistrate did not regard the act as indecent, he held that it was sufficient to constitute “exploratory indecent assault”.  As a result, he acquitted the appellant on the charge of indecent assault but convicted him of attempted indecent assault.  The statement of findings contains the following passage which the appellant now challenges:

I believe the victim’s evidence and rule that the appellant stuck out two fingers from under his armpit with the intention of touching the victim’s body.  During cross-examination, the defence counsel did not put the appellant’s case to the victim at all.  He neither challenged the victim’s case that her body had been touched by a person nor denied the fact that the appellant stuck out two fingers.  He merely pointed out that the victim had not witnessed the appellant touch her body with his fingers, that she solely relied on the fact that the appellant was sitting next to her in concluding that he was the one who had assaulted her, and that therefore there were reasonable doubts in the victim’s evidence.  On this basis, it is not necessary for me to consider whether the contact was purely accidental.  Moreover, taking into account the height of the back of the seat, which can be seen from the photograph, defence exhibit D1, as well as the part of the victim’s body that had been touched, I can exclude the possibility that it was the passenger sitting in front of or behind the victim who had touched her.  I am satisfied that the prosecution has proved its case beyond reasonable doubt and that there clearly is sufficient evidence against the appellant.  Nevertheless, in light of the fact that the appellant merely touched the part of the victim’s body beneath the armpit and between her back and her breast, I do not fully accept that the assault by the appellant on the victim was indecent.  However, I take the view that the appellant’s conduct constituted exploratory indecent assault, and therefore I convict the appellant of attempted indecent assault.

Ground of Appeal (1): It was not necessary to consider whether the contact was purely accidental

4. Mr Ma, counsel for the appellant, challenged the above judgment.  He pointed out that the magistrate had erroneously failed to consider whether the contact was purely accidental, by relying on the following two grounds: (1) the appellant stuck out two fingers from under his armpit with the intention of touching the victim; (2) counsel for the appellant did not put the appellant’s case to the victim during cross-examination.

5. To establish the charge of indecent assault against a defendant, the prosecution must prove that (1) the defendant committed the actus reus, i.e. assaulting the victim; (2) the defendant intentionally assaulted the victim; and (3) when the defendant assaulted the victim, he had an indecent intention.  This intention must be such that a right-minded person would regard the assault and the overall circumstances as indecent, and the defendant assaulted the victim with such knowledge or was reckless as to whether a right-minded person would regard the assault as indecent.

6. In R v Court [1989] 1 AC 28, Lord Ackner had this to say (at page 42):

For the defendant to be liable to be convicted of the offence of indecent assault, where the circumstances of the alleged offence can be given an innocent as well as an indecent interpretation, without the prosecution being obliged to establish that the defendant intended to commit both an assaultand an indecent one, seems to me quite unacceptable and not what Parliament intended.

I, therefore, conclude that on a charge of indecent assault the prosecution must not only prove that the accused intentionally assaulted the victim, but that in so doing he intended to commit an indecent assault i.e. an assault which right-minded persons would think was indecent.

In the same case, Lord Griffiths also agreed that a person could not “accidentally” commit the offence of indecent assault (at page 34):

There is agreement that the offence cannot be committed accidentally as, for instance, in the example given by Lord Ackner of ripping a woman’s clothing whilst attempting to force an exit from a tube train.

It follows that touching is not by itself sufficient to constitute indecent assault.  The prosecution must also prove the aforesaid two intentions, namely the intention to assault and the indecent intention.  It can be seen from the magistrate’s judgment that the fact that the appellant stuck out two of his fingers had been taken as evidence that he intentionally touched the victim.  With respect, I have reservations about this approach.  The fact that the appellant stuck out two fingers only serves to prove that he intentionally stuck out two fingers and is insufficient to prove that he intentionally touched the victim.  The magistrate could have inferred whether the appellant intended to touch the victim with those two fingers from the overall evidence, such as the number of contacts, whether there were still contacts after the victim moved away, the sitting posture of the appellant, how close he was to the victim, and the circumstances as a whole. The magistrate, however, had not considered any of such evidence.  The overall circumstances can include the fact that the incident took place on a moving bus.  Indeed, the bus driver remarked that when the bus was making a turn, the passengers might tilt following the motion of the bus.  In light of such evidence, the touching might well have been accidental.  The magistrate must rule out that possibility before he could find that the touching by the appellant was intentional, i.e. deliberate; as Lord Griffiths stated, the offence of indecent assault cannot be committed accidentally.  The magistrate erred in law by failing to consider the possibility of the touching being accidental.  Moreover, the fact that the defence counsel did not put the defence case to the victim would not relieve the prosecution of the burden of ruling out the possibility of the touching being accidental in the circumstances of the case.  I therefore hold that the appellant’s conviction is unsafe.

Ground of Appeal (2): The magistrate has doubts as to indecency

7. As can be seen from the passage quoted above, the magistrate was of the view that the touching of the part of the victim’s body below the armpit was not indecent and only constituted “exploratory indecent assault”.  With respect, this is illogical.  I do not understand what kind of assault the magistrate was referring to by “exploratory indecent assault”.  I guess he meant that the appellant deliberately touched the victim with an indecent intention but failed to touch the sensitive parts of her body.  If this was what he had in mind, he must have believed that the appellant had an indecent intention when he touched the victim.  Even though the appellant had not touched the victim’s sensitive parts, the magistrate could still have convicted him of indecent assault as he had already held that the touching was deliberate, that he intended to touch her and that he touched her with an indecent intention.  Even if the magistrate did not find the appellant guilty of indecent assault, he could have convicted him of common assault.  The magistrate, however, explained that the touching could not constitute common assault by reason of a lack of malice.  I have to say that I am puzzled by this reasoning.  “Malice” is not an essential element of the offence of common assault.  If this act of touching could not constitute common assault, it could not constitute attempted indecent assault either.  The magistrate’s reasoning was, with respect, disorderly and illogical.  The appellant’s conviction can in no way be regarded as safe.

Conclusion

8. For the above reasons, the appellant’s conviction  is unsafe and must be set aside.  As a matter of fact, there is sufficient evidence in the present case upon which the magistrate could have concluded that the defendant was guilty.  Unfortunately, the magistrate was far from clear in his reasoning and had failed to consider the possibility that the touching might have been accidental.  Taking into account the seriousness of this type of offence and having regard to public interest, I allow the respondent’s application to remit the case to another magistrate for a retrial.  The respondent shall pay the appellant’s costs of this appeal.