HKSAR v. LAM TAK KEE

HCMA162/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.162 OF 2003

(On appeal from TMCC 3284 of 2002)

---------------------------

----------------

-----------------------

J U D G M E N T

-----------------------

1. The appellant was convicted on 10 January 2003 of one charge of indecent assault on a female and was sentenced on 23 January 2003 to a community service order of 80 hours.

2. The facts are simple. On 1 November 2002, the appellant was travelling on the upper deck of a Kowloon Motor Bus in the New Territories. The lady sitting in front of the appellant testified that part way through the journey she felt a hand touching the left side of her body above the waist and feeling the fingers moved in a stroking motion. She looked down and back, saw a hand being removed from the gap between the seat and the side of the bus, and looked back at the appellant who was sitting behind her. He then said : "Sorry." He took out a newspaper, held it up in front of him and started to turn the pages. She said to him : "What's wrong with you?" She later reported the matter to the bus-driver, and a report was made by telephone to the police who were waiting for the bus when it arrived at the Yuen Tong Terminus.

3. The appellant told the police officers that he was reading a newspaper and he suddenly dropped it. When he picked it up the lady sitting in front said that he had indecently assaulted her. He was arrested and taken to the police station, said under caution that he would only talk when he had a lawyer. At the police station, the appellant said he had not indecently assaulted the woman.

4. The grounds of appeal are firstly that there was a lurking doubt in respect of the correctness of the decisions, and Mr Grounds for the appellant sets out a number of matters where he claims there was a lurking doubt. The second ground of appeal was that the trial magistrate's evaluation of the evidence was unsafe and unsatisfactory and, thirdly, that the conviction recorded against the appellant was unsafe and unsatisfactory.

5. I have had the benefit of a list of cases put forward by Mr Grounds and a submission from Ms Shine who appears for the respondent. In her well-reasoned submissions, Ms Shine says this :

" The respondent would respectfully submit that if the court forms the view that on the evidence that was before the Magistrate there remained the possibility that the touching of PW1 by the applicant was accidental (when the applicant himself had told PW3, according to PW3, that he had dropped his newspaper), or may have been accidental, and that this possibility was not properly, or adequately, considered by the Magistrate, then it is open to the court to find such inference ought to be drawn in favour of the applicant."

6. I have carefully considered the Statement of Findings made by the magistrate who carefully and thoroughly considered many of the matters before him. Regrettably, the possibility that the evidence of the appellant in respect of the touching may have been true is not one canvassed by the magistrate. In the circumstances, it is a defect which is incurable.

7. The appeal is allowed, the conviction is quashed and the sentence is set aside.