CHAN TAK YIN v. HKSAR

MA683/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 683/97

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R E A S O N S F O R J U D G M E N T

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1. The appellant was convicted after trial before a magistrate of a charge of indecent assault. He was sentenced to seven days' imprisonment. Against both conviction and sentence, he now appeals.

2. The prosecution case was that at about 6.05 p.m. on 6th May 1997, the complainant, a 21 year-old telephone operator was waiting for a tram at the tram station outside No.9 Des Voeux Road Central. The station was crowded and the trams were all packed with people. It was drizzling. She could not get onto the first tram and at the time the second tram arrived she got on through the rear door and when her left foot was one step up the tram and her right foot still on the ground, she felt that a hand touched the inner side of her thigh and moved up towards her crotch. She turned and saw the appellant at her back about a foot away. There were four or five women nearby. The complainant grabbed hold of the appellant's tie and shouted "what happened?" The appellant replied "Nothing." Another woman waiting at the station for the tram also witnessed the incident and she helped the complainant catch the appellant who was carrying a briefcase.

3. The appellant gave evidence. He said that he was waiting for a tram to go to Wanchai. The station was very crowded. He was carrying a briefcase in one hand. He intended to cram into the tram. When he tried to feel the pole at the rear of the tram with his hand, he felt that he had touched part of a human body. He immediately pulled his hand away. He said that he touched the body unintentionally. He did not struggle but just wanted to loosen his tie as the complainant was pulling it too hard.

4. The complainant was shown some photographs of the tram during cross examination. One of the photographs shows an iron pole at the rear of the tram where passengers board. She agreed that she would usually touch the iron pole for support when she boarded the tram. It was put to her that it was very chaotic, crowded and drizzling at the time and whether it was possible that she misinterpreted the situation under the circumstances. Her reply was that she was not surprised, whatever that may mean. She also agreed that the touch was very brief and the hand was withdrawn very quickly. At p.30 of the transcript, she said that the touch was the sort of brushing past you.

5. The question is whether the touching was intentional or could it have been accidental. Taking into consideration that it was crowded and choatic at the time and the touch was so brief that in fact the hand was more or less withdrawn immediately, there is a possibility that the touch could have been accidental. In the circumstances, there is room to entertain a lurking doubt. Accordingly, I allow the appeal, quash the conviction and set aside the sentence.