HKSAR v. LEUNG TAT KUEN

HCMA399/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellant Jurisdiction)

MAGISTRACY APPEAL NO.399 OF 1998

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J U D G M E N T

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1. The Appellant appeals against conviction on a charge of Indecent Assault.

2. There are six grounds of appeal. The first two, which may be taken together, allege that the learned Magistrate failed properly to evaluate contradictions between the evidence of PW1 and what she reported to the police officer, PW2, and in purporting to resolve the contradictions, wrongly indulged in speculation.

3. In brief the evidence of PW1 was to the effect that she felt intermittent touching of her bottom whilst on the MTR train between Jordan and Admiralty. It was about 8 a.m.. The train was crowded. In the later stages, she felt that a hand was placed flat against the middle of her left buttock with the fingers moving as if playing the piano. At Admiralty she grabbed the offending hand, which was the Appellant's left hand. She took him to the MTR platform attendant's booth, where she told the attendant that the Appellant had touched her bottom and thence to the police office where she reported to PW2.

4. According to PW2, PW1 told him that the Appellant had touched her back and squeezed her bottom. She told him that the compartment was not crowded or not very crowded.

5. These apparent discrepancies between the evidence of PW1 and her earlier statement were canvassed before the learned Magistrate. He dealt with them in his extempore reasons given at the time of giving his verdict and also in his Statement of Findings.

6. In the former he found that the reason why she "did not complain at the second stage that her back had been harassed" was that she was in a confused state of mind. In fact, she did complain at the second stage, i.e. having first complained to the platform attendant and then to the police officer, that her back had been touched. The learned Magistrate went on to say that when she complained to the police officer she "might have felt very confused, and over-reacted a bit". Later he said with regard to the two points of evidence, i.e. the touching of the back and the crowdedness or otherwise of the compartment, that it was perhaps because she was rather perturbed when meeting the police and thus a bit confused, that what she told the police did not seem very accurate.

7. In the Statement of Findings the learned Magistrate said that in his view the fact that the victim confused the two details or made a mistake over them before Officer Tam (PW2) was due to her failure to pull herself together.

8. Mr Matthews for the Appellant argued that there is simply no evidence that the witness was in any way confused or perturbed. The learned Magistrate was simply speculating on this. Mr Law for the Prosecution argued that the witness' own evidence of her apprehension of the Appellant could be taken as showing that she was.

9. It was certainly open to the learned Magistrate to find that the witness was perturbed. Her evidence was that she had just grabbed the hand which she had felt touching her bottom; she had asked the other passengers for help but received none; she had in effect marched the Appellant to the platform attendant's office in order to complain. Her evidence suggests that she was perturbed by anger rather than anything else, but that is neither here nor there. It would hardly be surprising, in the witness' perturbed state, that she might have become confused and inaccurate on some details. Those details probably seemed unimportant to her at the time. Given that her evidence is that she reached behind her and grabbed the very hand which was then touching her, I have to say that they do not seem important even now. It has also to be noted that the discrepancies arise not from a formal statement, taken down by a police officer over time, but from the officer's report of words spoken.

10. The learned Magistrate considered at some length whether the witness was truthful and he decided that she was. He had also to consider, in the light of these discrepancies, her accuracy, and it seems to me that he properly considered this and reached a conclusion which he was entitled to reach.

11. I turn to the third and fourth grounds. These relate to the identification by PW1 of the hand which according to her, touched her bottom indecently. I can find no substance in these grounds. PW1's evidence on this was quite clear. She said that when she arrived at Admiralty, she immediately turned and grabbed the Appellant's left hand which was still touching her bottom and still moving. There is in fact no dispute that the Appellant did touch the witness's bottom, albeit innocently. The learned Magistrate was entitled to find, on this evidence, that the offending hand was that of the Appellant.

12. The fifth ground relates to the concession by the witness that there was a possibility that it was the back rather than the palm of the Appellant's hand which came into contact with her buttock. It is said that the Magistrate failed to consider that it was possible that this rendered physically impossible her description of the act of indency complained of, namely the left hand with the palm forward, fingers pointing down, slightly apart, moving up and down like the movement of playing a piano.

13. It is of course by no means impossible to hold the back of one's hand against another person's body and move the fingers as if playing a piano, so that the person feels a stationary hand with moving fingers. It may be more difficult to do this than to hold the palm of the hand against the body but it is not impossible. The witness conceded that it was a possibility because she could not actually see what was happening but said that her feeling was that it was the palm. She was quite definite that the fingers had moved.

14. The learned Magistrate had the benefit of seeing the witness' demonstrations, which I have not, but it is quite clear that he considered and accepted the witness' evidence of moving fingers as being crucial. Indeed he accepted her concession as being indicative of truthfulness. It was open to him to find that the fingers moved, whether the hand was held palm forwards or not. There is no substance in this ground.

15. The sixth and final ground of appeal is that the learned Magistrate in considering the equivocal note written by the Appellant (Exhibit P2) wrongly imposed or alternatively gave the impression that he had imposed on the Appellant a burden to give an explanation to the police.

16. It is clear from what the learned Magistrate said in his extempore reasons, as well as in his Statement of Findings, that he was aware that the Appellant was not required to give an explanation when questioned by the police, or to explain or "counter-prove" the charge. He did not rely on the note Exhibit P2, which was equivocal, as an admission to the charge. He took into account the note and the Appellant's explanation of it in considering the Appellant's credibility, as he was entitled to.

17. The Appellant's appeal against conviction is accordingly dismissed.