HKSAR v. CHIAO LI

                                                                                        HCMA495/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 495 OF 2005

(ON APPEAL FROM KTCC69 OF 2005)

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JUDGMENT

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1. The appellant was convicted after trial of one count of ‘indecent assault’ contrary to section 122(1) of the Crimes Ordinance.  He was sentenced to a $2,500’s fine plus $2,500’s compensation to the complainant.  He appeals against the conviction.

The prosecution case

2. The alleged offence took place in a lift in a private block (“Dynasty Heights”) where the appellant was resident.  The complainant (“PW1”) was a Filipino domestic helper working in the same building.  The following is a summary of her evidence as per the magistrate’s Statement of Findings :

“4.   PW1 … testified that on 28 March 2004 at about 12.40 pm she was waiting for the lift at the 3^rd floor to go to the laundry on the basement.  When the lift door opened PW1 walked into the lift and the appellant walked out.  Before the lift door closed the appellant turned round and walked back into the lift.

5.      PW1 pressed the button for the basement and then the appellant did the same.  After the lift door closed the appellant stood to the left of PW1 near the door.  As the lift went down the appellant walked to the back of the lift and stood behind PW1.  There had been no conversation and no greeting.

6.      The appellant then touched the right buttock of PW1.  PW1 demonstrated the hand placed under the right buttock with movement of the hand upwards over the buttock.  The parties agreed the description of the demonstration, as were all demonstrations by the witnesses …

7.        PW1 was scared and turned round saying ‘In Jesus name’.  The appellant looked at PW1 and smiled a bit without saying anything.  When the lift reached the basement PW1 walked out at once.  At no time did the appellant say anything.

8.        PW1 returned home and complained to her employer.  The employer then accompanied PW1 to the management office where they viewed the CCTV tape from which the appellant was identified.  A report was then made to the police.”

3. Two records of interview were also produced as part of the prosecution case.  They were uncontested.  The first one had contents that were very similar to that of the appellant’s testimony at trial.  The second one offered details of a person called “Lea” for inquiry.

The defence case

4. Lea was a friend of the appellant.  With the leave of the magistrate, she gave evidence as the first defence witness (“DW1”).  This is what she said :

“11.     DW1 a Filipino domestic helper … testified she knew the appellant when she started her first contract at Dynasty Heights in the year 2000.  After that contracted ended she transferred to another employer before returning to Dynasty Heights in February 2004.  When DW1 met the appellant they would talk in English.

12.      DW1 was on good terms with the appellant and knew his girlfriend Crystal very well.  When asked what she would say if the appellant was to pat her on the bottom DW1 replied this was normal as they had known each other a long time and that she knew the appellant as an outgoing person.

13.      When asked if the appellant had ever touched her bottom from behind DW1 replied that happened all the time, citing as an example that when she was rushing and she did not notice the appellant, the appellant would touch her, sometimes on the buttocks, sometimes on the hips, and sometimes on the shoulder.  DW1 did not object because she said she was used to this, as amongst her friends this was the way they greeted each other.

14.      In cross-examination DW1 said that during the first contract when she met the appellant they would greet each other and that sometimes they would even hug each other and kiss cheek to cheek.  DW1 said she would only meet the appellant occasionally in Dynasty Heights such as at the clubhouse or on the same shuttle bus but not outside.  DW1 said she would not go out alone with the appellant because they were only friends and not intimate and that the appellant also had a girlfriend.”

5. Turning to the appellant :

“16.     The appellant testified that he was born and educated in the United States obtaining a Master of Administration.  The appellant had worked in banks both in Hong Kong and overseas and had now set up his own business as an independent financial consultant.

17.      The appellant had first met DW1 in the lobby of Dynasty Heights over 4 years ago.  The appellant discovered DW1 had studied in an American school in Manila and found her quite pleasant and talkative.  Gradually they became a lot more familiar.

18.      When greeting DW1 there would sometimes be body contact and the appellant would touch her bottom when she did not notice him just to give her a surprise and to let her know he was there, which the appellant said was a common kind of practice showing friendship.

19.      On 28 March 2004 at about 12.40 pm the appellant was in the lift having been swimming at the clubhouse.  The appellant intended to return home and left the lift on the 3^rd floor.  Suddenly remembering he needed to check the laundry prices in the newly opened laundry on the basement the appellant turned round and went back in the lift.

20.      The appellant was unaware that PW1 had been waiting for the lift on the 3^rd floor and that she had entered as he left the lift.  Only when the appellant re-entered the lift did he notice a woman inside.  The appellant pressed the lift button for the basement and then stood in the middle of the lift.

21.      Suddenly the appellant, judging from her body shape and style, thought the woman was his friend DW1.  The appellant not seeing DW1 for a long time wanted to give her a friendly surprise to let her know he was in the lift.  The appellant then patted the woman once on the right side of the buttock.  PW1 turned round and said ‘Oh Jesus’.  PW1 looked surprised and frightened.  Only then did the appellant realize PW1 was not his friend.  The appellant was shocked this was not his friend and could not say anything, his mind going blank.

22.      When the lift arrived at the basement PW1 walked out.  The appellant intended to leave but a staff from the clubhouse rushed in.  The appellant remembered that a fan in the clubhouse had not been working for a while so immediately thought of making a complaint to the staff. 

23.      When asked why he did not go check the laundry prices the appellant replied that as a result of the incident his mind went blank and he could not think what action to take.  The appellant explained that he wanted to apologize but thinking this was not a major event and that there could be further misunderstanding, which he wanted to avoid, he did not apologize.

24.      In cross-examination when put he could clearly see the face of PW1 when he walked in the lift the appellant replied he could not explaining that he was staring on the ground thinking about the laundry matter.  In answer to the court the appellant said he did not look in the reflective door of the lift to check the female was his friend before touching her.

25.      The appellant agreed that he did no say ‘Hi Lea’ and when put he did not say ‘How are you’ the appellant replied that he always said that afterwards explaining that because he was surprised to see her after a long time he wanted to surprise her and then would say ‘Hi Lea’ afterwards.

26.      The appellant agreed it was his practice to say sorry if he accidentally touched someone or made a mistake.  The appellant explained in the lift he was surprised, his mind went blank and he wanted to say sorry but he could not say that.  When asked what stopped him the appellant replied the surprise of touching the wrong person.”

The magistrate’s findings

6. In end, the magistrate convicted the appellant.  The relevant parts of his written verdict are as follows :

“28.     I carefully considered all the evidence.  I was satisfied so I was sure PW1 was an honest witness, who gave cogent and compelling evidence upon which I could safely rely.

29.      I had no hesitation in rejecting the appellant’s evidence and that of her defence witness DW1.  I did not find their evidence credible.  For example I did not find credible the appellant’s evidence that he recognized the woman in the lift as his friend from behind by her body shape and style without looking at her face (see paragraphs 21 and 24) and why he did not apologize (paragraphs 23 and 26).  I rejected the appellant mistook the identity of PW1 for that of DW1.

30.      I did not find credible DW1’s evidence that she did not object to the appellant touching her bottom, in particular as the appellant was someone she only met occasionally in Dynasty heights (see paragraph 14).

31.      I reminded myself that the rejection of the defence evidence is not determinative of the issue in the case.  A defendant has to prove nothing.  A case in which defence evidence is called and is not believed is no different from one in which no evidence is given.  In either case the burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.

……

35.      I was satisfied so I was sure applying the principles established in Court [1989] AC 28 that: (i) the appellant intentionally assaulted PW1 by touching her buttock as demonstrated by her in court; (ii) the assault was capable of being considered by right minded persons as indecent; and (iii) the appellant intended to indecently assault PW1.

36.      In reaching my verdict I carefully considered the submissions of [defence counsel], in particular as to the possibility of mistaken identity; that the appellant would have been aware of the CCTV insider the lift and would therefore have not risked all he had achieved; and that the appellant’s evidence in court was consistent with his explanation to the police.  Nothing said by [defence counsel] or the appellant or his witness caused me doubt the findings I made.”

This appeal

7. Counsel for the appellant has filed five grounds.

Ground (1)

8. This ground complains that the magistrate had relied on the appellant’s remaining silent to convict him.

9. The argument goes as follows : (a) the appellant was made to concede in cross-examination that as a practice, he would apologize if he touched someone accidentally or made a mistake; (b) further, the appellant was asked why, this time, he did not apologize to PW1 once he discovered he was mistaken; (c) in allowing this line of cross-examination, and also in rejecting the appellant’s answer as incredible, the magistrate was in fact saying, wrongly, that the appellant had a duty to explain why he remained silent or why he did not disclose his defence prior to trial.

10. Lee Fuk Hing v.HKSAR [2005] 1 HKLRD 349 (CFA), Lau Ka Yee v. HKSAR [2005] 1 HKLRD 757 (CFA) and HKSAR v.Lam Sze Nga [2006] 2 HKLRD 244 (CFA) are cited in support of that contention.

11. Having reviewed the authorities, I do not think there is anything to this ground.

12. If one looks at the first record of interview, the question regarding the appellant’s reaction upon realizing that he had touched the wrong person was raised by none other than the appellant himself.  This is what he said as part of a long narration under caution :

“… She turned and said in a very low voice ‘Oh Jesus’ before getting out of the lift.  It was only then that I noticed she might not be the friend I knew.  At this point, a clubhouse staff member ran towards the lift ...  All of a sudden, I recalled the electric fan … I stayed in the lift … to ask about it.  On reaching the 3^rd floor, after I got out of lift, I thought about whether I should go down to the basement to look for the Filipino domestic helper to apologize to her and to explain to her that I had mistaken her for someone else.  But I considered what I just did was a very friendly act and there was nothing unusual.  Thinking it would not lead to any misunderstanding, I left the clubhouse …”

13. Then, in a series of questions and answers under reminded caution, the following exchange took place between the appellant and the interviewing officer :

“Q(13):      After you patted the bottom of the female, she turned and said ‘Oh Jesus’.  Did you see her face at the time?

A(13):        I didn’t see it clearly.

Q(14):        Did you say anything or have any facial expression at the time?

A(14):        At the time I was dumbfounded.  I didn’t know what to say to the female because I knew I had mistaken her for someone else.”

14. In the same manner, the appellant’s reaction came up in court on his own volition during examination-in-chief :

“Q:      And how did that woman respond?

A:        That person turned round and then said, ‘Oh Jesus’.  And then she appeared to be quite surprised and frightened.

……

Q:       Yes.  And did you then realize it was not Lea?

A:        Yes.  At the moment -- at the instance that she didn’t respond to me, well, I knew that it was -- it was someone else, not Lea.  So I was shocked too.

Q:       Did you speak to her?

A:        No, I didn’t.  I couldn’t say anything.  I just -- my mind was blanked out and I was pretty caught at a surprise too.  So, I couldn’t say anything.

……

Q:       And she -- when the lift arrived at the basement she walked out.

A:        Right.  She walked out of the lift.

Q:       But you did not.

A:        I did not.  Right.

Q:       Why was that?

A:        Suddenly -- I tried to walk out but then a person rushed into the lift from a far distance, and that person is the clubhouse -- I think not the manager, but the clubhouse staff came in.  And then I thought -- because at the changing room I noticed that there was a fan broken for a while, in fact I noticed that it has been broken for a period of time, so immediately I thought I wanted to make that complaint to the clubhouse staff.

Q:       Yes.  Mr Chiao, be that as it may, you said when you re-entered the lift, re-entered the lift, you intended to go to check the laundry shop, so why didn’t you go there when the lift arrived at the basement?                                                                    

A:        Oh yes, I was -- I should have gone out but then because of that incident, I thought -- suddenly I was blank and I couldn’t think of what sort of action I should take.  If -- in fact I wanted for – to have an apology to be given, but then I think it’s not that a major event, so -- and also I thought there could be a further misunderstanding to be -- to occur.  So, I just want to avoid any further misunderstanding.”

15. In the circumstances, even if what counsel suggests is correct, that is, an enquiry as to why the appellant did not apologize amounts to an incursion of his right to silence, which I doubt, no such issue arises in this case because the appellant had chosen not to exercise that right.  (The relevance of whether this right was exercised is clear from the judgment of Power NPJ in Lam Sze Nga.)

16. Counsel has of course argued that this right subsisted at the time when the appellant was still in lift, when he realized he had touched the wrong person but said nothing, and that nothing subsequent, whether or not initiated by the appellant, can be made vehicles of its incursion.

17. This argument fails to persuade me, however, because, in my judgment, there is but only one right.  This right exists for so long as it is exercised.  But once a defendant chooses to stop, whether by providing an explanation to the police or in court, the content of what he said is open to cross-examination as in any other situation.  The only caveat is that in no circumstances should the prosecutor be allowed to hint or suggest that the defendant had not explained himself earlier because of a consciousness of guilt.

18. Applying that to the present case, I am satisfied that the appellant’s cross-examination was within the boundary of what is permissible.  I have read the relevant transcripts (pp. 76M to 78J of the appeal bundle) and am satisfied that all the probing pertained to questions of veracity.  The appellant was pressed why he did not apologize but only to show how implausible his explanation was.  Those questions certainly elicited nothing more than what the appellant had said in examination-in-chief.

19. Likewise, I am satisfied that the magistrate had not misunderstood the nature of this cross-examination.  He said he did not find the appellant’s evidence “credible”, using the no-apology point but as an example (para. 29 of Statement of Findings; para. 6 above).  He said “a case in which defence evidence is called and is not believed is no different from one in which no evidence is given”, and that “in either case, the burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt” (para. 31 of Statement of Findings; para. 6 above).  In nowhere did he draw any adverse inference against the appellant for not apologizing which, after all, is what the right to silence is there to guard against.

20. To conclude, the magistrate convicted the appellant on the strength of the prosecution case alone, nothing else.

Ground (2)

21. This complaint here is that the magistrate had given insufficient weight to the “compelling” inherent probabilities in favour of the defence.

22. Shortly put, it is submitted that the appellant could not have risked committing the offence knowing full well that there was CCTV inside the lift.  (The tape and still-shots from it were produced and considered by the magistrate.)  An analogy is drawn between this and the case of Chou Shih Bin v. HKSAR, FACC 11 of 2004 where the Court of Final Appeal had quashed a conviction of possession of firearms on the ground that it was absurd for the well-travelled defendant to have presented his bag for X-ray screening at the airport if he knew the gun was there.

23. The fallacy of that argument, however, appears to me to be that while gun-smuggling must be premeditated, so no one in his right mind would do it in a way that guarantees detection, the decision, if one may call it that, to commit indecent assault may well be split-second and impulsive, in which case the CCTV and the prospect of being caught on tape may not even enter into the perpetrator’s calculation.

24. I also take the respondent’s point that being resident of a few years’ standing, the appellant might well have been aware of the limitations of the CCTV which, in fact, did not capture his offending hand-movement.  Given the smallness of the lift in question, I find this proposition both realistic and responsible.  The photographs exhibited show how it is.

25. Either way, this ground must fail.

Ground (3)

26. The criticism here is that the magistrate’s approach to the defence evidence was flawed.  He had neglected to remind himself that not only did he have to acquit if he found the defence evidence to be true, but he had to acquit if he found that it might be true.

27. That, the respondent admits, is a standard direction.  Convictions have been overturned for its omission — but only in jury trials.  For professional judges sitting alone, the respondent prays in aid the following obiter dictum by Cheung JA in HKSAR v. Or Chung Yeung [2004] 3 HKLRD 645, made originally in Chinese :

“This Court is of the opinion that for someone learned in the law, if he says he cannot be sure that the applicant has committed the relevant offence, it must mean that he thinks the applicant’s evidence is either true or may be true.  For juries consisted of laymen, however …”

28. Applying that in the reverse, it is argued that if a single judge says he is sure of someone’s guilt (para. 35 of Statement of Findings; para. 6 above), it must mean that he has rejected his defence in both the ‘true’ or ‘may be true’ sense.

29. I have no doubt that the respondent is correct.  I should add that by finding the appellant’s evidence incredible, to the extent that it was as if he had not given evidence (para. 31 of Statement of Findings; para. 6 above), the magistrate was in fact saying that he found the defence positively untrue.  That is my judgment.

Ground (4)

30. The complaint here is that the magistrate failed to give reasons as to why he disbelieved the appellant in his oral verdict.  Their supplementation in the Statement of Findings offers no joy as the impression is already formed that the conviction is unsafe and unsatisfactory — the quality of the defence evidence being one of the trial’s key issues.  The case of HKSAR v. Sin Chi Yin [1999] 2 HKC 403 is relied on in which Pang J observed :

“… good sense and practice requires that the important legal and evidential features of the case should at least be covered by the magistrate in note form, albeit orally.”

31. There is no merit in this ground.

32. In Sin Chi Yin, what the magistrate failed to show in his oral verdict, given 30 minutes after the trial, was that he had warned himself of the danger of convicting on identification evidence where such a warning was due.

33. It is a bad comparison to our case where the issues were simple and straightforward and in which the magistrate did orally explain that :

“I have no hesitation in rejecting the defendant and that of his witness.  I do not find their evidence credible.  I reject the defendant mistook the identity of PW1 for that of DW1 …”

34. I am not persuaded that more should have been said, or that people reading the oral verdict will feel that the magistrate had not given the defence thorough consideration.

Ground (5)

35. This ground claims that given all the complaints above, the conviction in this case is unsafe and unsatisfactory.  I do not agree.

Judgment

36. The appeal is dismissed.