HKSAR v. KAM CHI SHING

1997, NO. MA 603

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

(Appellate Jurisdiction)

MAGISTRACY APPEAL

(On appeal from SKC 823/97)

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J U D G M E N T

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1. The appellant, KAM Chi-shing, was convicted after trial on a charge of indecent assault and was sentenced to 10 days' imprisonment. He now appeals against the conviction.

2. The allegation by the prosecution was that the appellant indecently assaulted the victim, a 24 year old school teacher on board the MTR from Jordan to Yau Ma Tei. At the material time, this lady teacher was taking a train back home in Lai King after work. In support of the allegation, two witnesses were called, namely, the victim herself and a plainclothes police officer.

3. According to the victim, having boarded the train, the appellant was behind her. The appellant then pressed his lower body - she believed it to be his private part - against her, despite there was some space behind him. He then struck his lower body against her buttock and moved forward and backward. Such action on the part of the appellant was observed by the plainclothes police officer who was then a short distance - he said about six inches from them - and he was observing them.

4. The appellant and the victim were then intercepted at Yau Ma Tei. The victim was asked if she knew the appellant. The victim said she didn't even know the appellant, and she then complained to the officer that the appellant had in fact indecently assaulted her earlier on. According to the officer, the appellant then asked for a chance, and claimed to have lost control momentarily.

5. The defendant elected not to give evidence nor call any evidence. It then fell upon the learned magistrate to assess the credibility and reliability of the two prosecution witnesses in question. It was suggested by counsel for the appellant that the officer's evidence should be rejected in its entirety, as he was shown to be inaccurate in certain aspects of his evidence, namely, where he in fact arrested and cautioned the appellant, and whether he had in fact searched him. It was suggested that the officer's evidence should be rejected entirely because of those discrepancies, and that being the case, the learned magistrate was wrong in relying on any part of his evidence as corroboration of the evidence of the victim.

6. The learned magistrate, as the judge of fact, is entitled to accept part of the evidence of a witness and reject the other part. The learned magistrate clearly had in mind the discrepancies in the evidence of the officer, but he concluded that his evidence of the appellant pressing against the victim and moving forward and backward was correct.

7. On the evidence, he was entitled to so find, and such finding cannot be faulted.

8. In fact, the learned magistrate in his Statement of Findings has carefully evaluated the evidence as presented by the prosecution. I do not agree with the suggestion that he had not sufficiently considered the salient features of the case. It was suggested that the learned magistrate had not properly directed himself of the fact that the appellant had a clear record. The learned magistrate in his Statement of Findings expressly states that he had borne in mind the fact that the appellant has a clear record.

9. As a professional tribunal, in my view, it is not necessary for the magistrate to spell out that as a person with a clear record, the appellant was less likely than otherwise to commit an offence.

10. Counsel for the prosecution seek to rely on some authorities. So far as those authorities involving the trial by jury is concerned, I do not consider them to be relevant at all. And so far as the case of CHAN Wu-nam, Criminal Appeal 274 of 1992, the Court of Appeal clearly reiterates that it is not incumbent upon a judge to give himself and articulate what is called a Berrada direction. But in that particular case, the Court of Appeal was of the view that because that case involved the knowledge of the appellant at the material time and therefore the credibility of the appellant himself was of crucial importance, the trial judge should have dealt with the fact of him having a good character under both limbs of Berrada.

11. In the light of the fact that in the present case the issue before the learned magistrate simply is whether the appellant did what was alleged against him, that he stuck the lower part of his body against the buttock of the victim and then moved forward and backward. As the defendant elected not to give evidence and so as far as the magistrate was concerned, the credibility of the appellant did not arise at all. I do not consider this case of CHAN Wu-nam has any application.

12. I have considered the evidence of the case carefully. I have also listened carefully to the submissions by counsel for the appellant. I am satisfied that the appellant, on the evidence as presented by the prosecution, had been properly convicted. There is nothing unsafe and unsatisfactory about the conviction.

13. The appeal is therefore dismissed.