HKSAR v. NG CHI CHING

HCMA737/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 737 of 1999

(On Appeal from SPCC 3661 of 1999)

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J U D G M E N T

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1. On 26 July 1999 the appellant was convicted after trial by Miss M Chow, Magistrate, on one charge of indecent assault and two of assault occasioning actual bodily harm. He now appeals all three convictions.

2. The prosecution case can be briefly stated. The victim of the indecent assault charge, a young lady of 27 called Michelle, was, at about 11.15 pm, waiting with two male friends at the Mongkok MTR for a train bound for Tsim Sha Tsui. At the time in question the men were occupied in a conversation about computers and such like. She was not really involved and was standing slightly apart.

3. Then it was that she became conscious of the presence of the appellant. He was moving rapidly towards her and then bumped into her. His left elbow was raised and came into contact with the right-hand side of her right breast. He did not say he was sorry and she said words to the effect, "You have hit someone, aren't you going to apologise?" He said nothing and just smiled at her. Then the train arrived and all four boarded.

4. On the train she recounted what had happened to her male colleagues. One of them, called Henry, went over to the appellant and asked for an apology. There was no response. Then, as the train approached and arrived at Tsim Sha Tsui, Henry formed the view that the four of them, including the appellant, should alight so that a report could be made to the police.

5. On his account he said he tried to drag the appellant out through the door. The appellant resisted, fending off Henry. Henry hit him in the face. The appellant responded by dragging him out of the carriage on to the platform. There there was a struggle. Henry said he was punched. Then the other colleague called Ah Chiu tried to intervene. He was struck also by a punch in the eye. Then it was that MTR staff arrived and order was restored.

6. The appellant chose to give his evidence in his native tongue which is Mandarin. He said he can understand about 85 per cent of what he hears spoken in Cantonese but is less proficient in speaking that tongue. He had a clear record. He was at Mongkok because he was on his way home from China. He had disembarked from the KCR and was intending to travel from Mongkok to Central, there to change trains for his home destination which was Sheung Wan.

7. On the platform at Mongkok, whilst waiting for the train, he began walking along the platform so that he could board the train near the front to facilitate the necessary transfer at Central. As he was doing so two things happened: the first was that the train entered the station, the second was he and Michelle bumped. He had not seen her. He was surprised. He looked back at her. He did not blame or scold her because he noticed she was flushed and he thought she might have been a bit tipsy.

8. He got on board the train and during the journey became conscious of a conversation conducted in a scolding tone but he was tired and took little notice. Then he was confronted by two men who were Henry and Ah Chiu. One of them accused him of indecent assault. He was puzzled at this and responded that if that was thought then the police should be called. Then the train doors opened at Tsim Sha Tsui.

9. Henry slapped him once and jumped from the train. He said he was pushed from the train and bumped into Henry. Henry fell to the ground. He himself stumbled but kept his feet. Then it was that Henry got up and punched him and somebody else struck him from behind. He squatted and tried to protect himself but was struck again. It was all rather chaotic. He called out for someone to dial 999 to summon the police. The fighting finished not because they were interrupted by police or MTR staff but because he was able to escape and ran off.

10. It was on the strength of this evidence that the magistrate convicted the appellant of indecently assaulting Michelle on the platform at Mongkok and assaulting Henry and Ah Chiu occasioning actual bodily harm on the platform at Tsim Sha Tsui.

11. Dealing first with the indecent assault charge, it is apparent that there is no serious challenge to Michelle's evidence that some part of the appellant's arm came into contact with her right breast. What the magistrate had to resolve was the prosecution's contention and the appellant's denial that it was an intentional attack. In her statement of findings she said she considered, as she was obliged to, all the evidence on this vital aspect.

12. In the end, she found the act was deliberate because there were few passengers in the vicinity and thus ample space for movement without collision, because the appellant raised his elbow before striking Michelle, and because he turned and smiled at her. She rejected the appellant's account that it was an accident.

13. In her short reasons given prior to verdict she described the appellant's smile as being indecent. I think she meant to paraphrase Michelle's description, which was that it was complacent.

14. In his perfected grounds of appeal Mr MA, for the appellant, says the magistrate failed to evaluate the evidence in a satisfactory manner, and in particular failed to evaluate:

(a) that the reason Michelle believed the appellant was acting intentionally was because he did not offer an apology; and

(b) she did not immediately accuse the appellant of indecent assault but just demanded an apology.

Before me Mr MA has expanded on those grounds.

15. In arriving at her conclusion the magistrate found established certain primary facts, namely: that there was a bumping on Michelle's breast by the appellant's elbow; that it happened on a sparsely populated platform; that the appellant smiled at Michelle after the event.

16. Though she does not expressly say so, it must be that she concluded there was an inference to be drawn that the actions of the appellant were deliberate and that there was no room for any other reasonable inference. Was she correct to do so?

17. As to the extent to which the platform was populated, there was no definitive evidence of how many people were in the vicinity. That is hardly surprising. One can take notice that it was well past peak hour, but at a time when the platform would have been unlikely to have been deserted.

18. But there can be all sorts of reasons as to why people collide when there is room to pass by without contact; where one or other of the people involved is preoccupied or looks away at the last minute or stops suddenly. The magistrate does not appear to have considered this. The contact complained of was a single blow. It was not a caress or anything of that nature, and by its nature could as easily have been an accident.

19. As to the appellant's reaction, he smiled at Michelle, she said complacently. Whatever that means, it is a subjective description of the facial expression of a stranger which tells little of what he may have been thinking. People smile for all sorts of reasons. It could have been, as the magistrate found, a smile which followed an indecent assault. But could it not have been one of apology or embarrassment following an accidental collision? Was the appellant perhaps too shy about his competence in Cantonese or for some other reason to articulate an apology; and was not Michelle's reaction, "why has he not said he was sorry, banging into me like that" an indication that it was her belief that it was accidental?

20. It seems to me that her own reaction escalated from one of annoyance to an accusation of indecent assault because the appellant failed to react with the courtesy that she was looking for.

21. More importantly, it seems to me that taking the evidence before her, both independently and in the round, the magistrate failed to note, as she ought to have, that the inference she was drawing was not an irresistible one. It follows that I find she should not have found the charge proved against the appellant and should have acquitted him.

22. I come now to the assault charges, first involving Henry and then Ah Chiu. The magistrate found in effect that the appellant was embarrassed when, in the carriage, he found himself the target of verbal abuse coming from Henry and Ah Chiu, and she says that his reaction to that was to blow up, throw Henry off the train, assault him and do the same to Ah Chiu. She rejected the appellant's account and found him guilty.

23. Mr MA's complaints in his grounds of appeal are numerous and he has elaborated on them before me. I do not propose to reproduce them here. In general terms he is critical that the magistrate failed to evaluate the evidence.

24. What indeed she did not refer to is that as the train doors opened at Tsim Sha Tsui, Henry, on his account, manhandled the appellant and struck him in the face in an attempt to cause him to leave the train with them so that a report to the police could be made. Whether the appellant was embarrassed or not, it is quite clear that Henry initiated bodily contact. Whether or not he felt justified in doing so, this amounted to unlawful activity on his part.

25. Given that situation, and Ah Chiu's subsequent intervention from behind, the appellant's account that he was defending himself from the attack of two strangers is not an unlikely one. The magistrate was entitled to reject that account, as she did, but she gives no valid reason for doing so beyond that she found that Henry and Ah Chiu to be honest and reliable and attached no weight to the appellant's explanation.

26. In the circumstances, I find she failed, as she should have, to put any or sufficient weight on Henry's account that he started the confrontation, and failed to explain how or why the prosecution had proved the appellant was not acting in self defence.

27. In respect of all three charges I am satisfied that the magistrate did not evaluate the evidence correctly and that has rendered her convictions unsafe and unsatisfactory.

28. I allow the appeal and quash all three convictions.