HKSAR v. TUNG CHI CHUNG

1997, NO. MA 501

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. In this case the appellant appeals the decision of Mr A.J. Wyeth, Magistrate, to convict him for the offence of indecent assault.

2. The prosecution case was adduced by the alleged victim who was, at the time, commuting in the MTR in rush-hour conditions. She was PW1. PW2 was a plainclothes policeman on duty in the MTR system, watching out for pick-pockets. He claimed to be an eye-witness of events as they unfolded.

3. PW1 was queuing at the Tsim Sha Tsui station for a Tsuen Wan bound train. It was about 6.45 pm, and, such were the crowds, two trains came and went without her being able to board. In the meantime she sensed someone standing behind her to her left who seemed to be watching her. As the queue inched forward she made to move into the third train as it pulled in. But as she did, she felt herself propelled forward by hands pushing into the middle of her buttocks. Once she was in the train, because of the crowds just inside the doors, a hand remained on her buttock. Then, as the train proceeded, it was taken off and replaced in a way that persuaded her that it was not caused by accident or by the excessive crowds. Then as the train arrived at the next station, she was requested to alight by a man who identified himself as a police officer.

4. He was PW2. He was on patrol at Tsim Sha Tsui station when his attention was attracted to a man later identified as the appellant, who queued for trains, but did not board, although he could have. He watched as he stood behind PW1, and then pushed her into the train in the manner PW1 had described. He, PW2, followed them in. Standing in a position where he could watch what was happening, he saw the appellant touching PW1 's buttocks, and then removing his hand before repeating the exercise in the manner described by PW1. As the train pulled into Jordan he revealed his identity, and the three alighted from the train. The appellant was arrested. That was the prosecution case.

5. The defendant elected to give evidence. He said he had a clear record. On the evening in question he was on a Tsuen Wan bound train, but alighted involuntarily at Tsim Sha Tsui when he got off to let others out, but could not re-board. He queued for another, but it was some time before he was able to catch a train. He stumbled forward into the train, propelled by the crowds. Once on the train, he was jammed with no room for his hands, other than to have them hanging down. And so it was that the train proceeded to Jordan, when he was required to alight by PW2. He said he had not indecently assaulted anyone, and had not deliberately touched anyone. That was the defence case.

6. On that evidence the learned magistrate found the charge proved and convicted the defendant.

7. The first matter on appeal raised by Mr Donald, counsel now representing the appellant before me, is that because the venue of the alleged offence is recited in the charge as being the Tsim Sha Tsui MTR platform, any evidence of what took place thereafter as the train proceeded to Jordan was irrelevant, and should have been disregarded by the learned magistrate.

8. I do not agree with this point. The platform was where the incident took place, allegedly, but what happened thereafter, as adduced in evidence, represented continuing conduct which was material on the issues of intent and identification. So I rule against him on that ground, and I should add, nothing was said about this at any stage during the course of the trial.

9. The thrust of his client's appeal is, however, centred on what was clearly throughout a most crowded environment. Mr Donald urges upon me that the learned magistrate should have recognised how easy it would have been, in such crushed circumstances, for those involved to touch involuntarily the bodies of those immediately adjacent. In effect, he is saying the magistrate should have been alive to the difficulty for the prosecution to establish intent.

10. Furthermore, for the same reason, he says he should have been alert to the difficulty, if not impossibility, of PW2, whose evidence on identification was so crucial, being able to see what was going on at buttock level.

11. But these are issues of credibility. The learned magistrate had the witnesses before him. The evidence they adduced made it most apparent how extremely crowded the environment was. Having heard all that evidence he accepted as the truth what PW1 and PW2 told him, and, as he was entitled, rejected the evidence of the appellant where it differed. He was clearly satisfied on identification and intent, as well as the physical act giving rise to the offence.

12. His statement of findings indicate he approached his task with care, considered all the evidence, and came to the conclusion he did without mis-direction or error.

13. The appeal is dismissed.