HKSAR v. SUM TAK SING

HCMA 858/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.858 OF 2001

(ON APPEAL FROM SPCC 3181/2001)

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J U D G M E N T

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1. The appellant in this case was charged with one count of Indecent assault to which he pleaded not guilty and was convicted after trial.

2. The main witness for the prosecution gave evidence that on the date in question she was walking on the footbridge on her way to work. She noticed that the appellant was walking towards her and he had his both arms hanging down and was swinging his arms. When the appellant was near her, she said that he stretched out his right hand and brushed past the right hand and came into contact with her private parts.

3. Perhaps I should, because there is no certified translation, I should quote the relevant part in the Statement of Findings:

“初時上訴人的雙手垂下前後搖擺，但當接近她身旁時，上訴人把右手向外伸出，擦過她的右手，再接觸到她的下體，這是一連串的動作，也只是一次觸摸她。”

4. In fact PW1 also demonstrated that his hand was curled up at a 90° angle. As I have pointed out just now the victim also said that it was not a grabbing action because it would appear that it was the back of his hand that touched her private parts see page 23 at letter G.

5. PW1 then gave an account of how she then chased after the appellant and finally chased him onto a bus and the police was called and when the police arrived, the appellant said to the police that he was in a hurry and that he only bumped against the victim's hand. The appellant gave evidence and gave an account of how he was at that time in a hurry to deliver certain documents to an office in Hong Kong and he denied touching the victim's private part and that he only bumped against her hand.

6. There is no question that the learned Magistrate did properly set out the standard in burden of proof and she also properly reminded herself that although there is no corroboration necessary she still needed to view the evidence of PW1 with caution.

7. The complaint by Mr Chan who represents the appellant this morning is that after accepting the evidence of PW1 in total, she did not go on to find that the act of the appellant was a deliberate act and of an indecent nature.

8. I am referred to the case of HKSAR v. Lam Sui Kwong MA 1021/1997. I agree with the learned judge in that case, that the magistrate having accepted the victim's evidence that the defendant touched her, the magistrate should then have to go on to decide whether the circumstances were capable of being considered by right-minded persons as indecent and that the defendant intended to commit such an assault. So the Magistrate after she had accepted the evidence of the victim as to the circumstances of the assault, had to make a deliberate finding independently that that assault was an indecent assault.

9. Mr Hui for the respondent very properly accepted that the learned Magistrate did not do so in this case, but his submission is that first of all the learned Magistrate in her Statement of Findings had implicitly done so when she went though the evidence and analysed the evidence. He also submitted that the learned Magistrate is not duty bound to set out all her thoughts in arriving at the verdict she did and she only need to refer to the salient points of the case. That, of course, is accepted but in this case, this is a very simple case and the only issue before the learned Magistrate was whether the touching of the private part of the victim was accidental or deliberate.

10. Even accepting Mr Hui's contention that the touching of the victim's private part would to any right-minded person be an indecent one, nevertheless, it was incumbent on the learned Magistrate to make a finding that that act was an intentional one on the part of the appellant. She had failed to do so in this case and therefore I am left with a lurking doubt as to whether she did properly address her mind to this issue.

11. In those circumstances, the conviction unsafe and unsatisfactory and the appeal is allowed. The conviction is set aside.