HKSAR v. MA WEI

HCMA 341/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 341 OF 2014

(On appeal from ESCC No 303 of 2014)

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J U D G M E N T

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A magistracy appeal

1. A magistracy appeal is an appeal by way of rehearing.  In an appeal of this type, the appellate court is required to reach its own independent decision as to whether it is satisfied beyond reasonable doubt of the guilt of the appellant on the record of the evidence given at trial supplemented by any further evidence it may admit.  The appellate court in recognising that a magistrate has had the advantage of seeing and hearing the witnesses, will only differ from his or her factual findings or assessment of the credibility of a witness where there is no evidence to support it or it is plainly wrong.  I mention this because it is important that parties who come before the court on a magistracy appeal understand the purpose and nature of the proceedings and the task involved in determining the correctness or otherwise of a decision of the magistrate whether it be an appeal against conviction or sentence.

The present appeal

2. On 20 May 2014, the appellant was convicted after trial of a single charge of indecent assault and he was sentenced to 9 weeks’ imprisonment.[1]  The particulars of the charge were that on 19 December 2013 the appellant at his residence indecently assaulted the complainant. 

3. The present appeal seeks to challenge the magistrate’s findings of fact and his assessment of the credibility of witnesses.  There were only two witnesses at trial both of whom were called by the prosecution.  The appellant did not give evidence.  It was agreed he had a clear record.

4. The complainant was an insurance agent at the time of the incident and was in her early 20s.  She and the appellant knew each other and she was trying to sign him up on an insurance policy.  The prosecution case was that on 19 December 2013, she attended the appellant’s home to have hotpot dinner and to discuss insurance.  She explained the insurance policy but the appellant requested to sign it later.   After having hotpot and drinking red wine for about an hour, the defendant put his hands on the complainant’s shoulder and waist and kissed her down the neck.  She tried to push him away and shouted at him not to meddle with her.  The appellant pulled down her upper garment and used his right hand to unhook her bra.  He then kissed her right breast and bit her nipple for about 10 seconds while she struggled.  She pushed him away and dashed into the washroom.  The incident lasted less than 20 seconds.  Inside the washroom, she called PW2 and asked her to come to rescue her.  After 10 odd minutes she exited from the washroom and told the appellant that she had to go downstairs to pick up her friend who would join them.  She then left the flat and went downstairs where she met her colleagues.  A report was made to the police.

5. The defence case was that the appellant and the complainant had an evening together in his flat where he cooked hotpot and they drank red wine.  During the evening he embraced the complainant and had consensual intimate contact with her.  It involved him kissing her and touching and kissing her breast.  At the time, her phone went off and they stopped.  After that, he put off signing an insurance policy that she had brought for him to sign and she became upset with him.  Later on, the complainant told him that a friend would join them for hotpot.  She passed the phone to him so that he could give his home address to her friend.  She then left to go downstairs to pick up her friend.  He put a table setting for a third person for hotpot.  Later, the appellant went downstairs to look for her.  He then sent her a WhatsApp message that if she had something else to do he would go to sleep.

6. It was not in issue at trial that the appellant had intimate contact with the complainant.  It was fundamentally a question of whether or not it was consensual.

7. The magistrate’s analysis of the offence and his reasoning on the facts he found are without fault.  It is on a reappraisal of the evidence of the complainant and the second prosecution witness that I differ with his assessment of their credibility and reliability as witnesses.  As I set out below there were serious doubts about the complainant’s evidence in particular that put into question whether the offence took place as alleged.

The evidence and issues

8. I propose to deal with this appeal by going through the evidence presented at trial and in the course of doing so addressing the issues raised by the appellant on his behalf concerning the lack of credit of the prosecution evidence which came from the complainant and her friend and colleague (PW2).

The complainant’s evidence

9. The prosecution case was primarily based on the testimony of the complainant.  It emerged from her evidence that she and the appellant knew each other.  They became acquainted in 2011 when they were both swimming coaches at a public swimming pool.  They worked together and kept in contact from time to time. 

(a) WhatsApp messages

10. In the course of cross examination of the complainant, some WhatsApp messages that were exchanged between her and the appellant from June to December 2013 were shown to her.  They revealed that they had various exchanges where they would chat to each other and attempt to make arrangements to meet up.  There was one occasion on 6 June 2013, when the appellant contacted the complainant to see if she was interested in assisting him in coaching swimming classes.  They met on 25 July for dinner to discuss the matter but nothing came of it.

11. It was at this time that the complainant took up employment as an insurance agent, selling insurance packages to potential customers.

12. On 25 October 2013, the complainant contacted the appellant to see if he was free for a meal but they could not arrange a mutually convenient time.  She said she approached him as a potential customer for insurance. She said that they had not seen each other for a long time and asked him whether they could meet.  She said they discussed going out for a meal and that she mentioned the purpose was to discuss insurance.

(b) 9 December dinner

13. The complainant testified that on 9 December 2013, she was having a meal with a male friend in Causeway Bay.  She described the male friend as a customer.  She telephoned the appellant to join them.  She said he came but they did not discuss anything as it was not the practice to discuss insurance in a group. She said to him “How about we go out later and discuss further?”  When questioned about this meeting she said that she only called him to give him confidence as he was not yet her client and that many people initially were resistant to insurance.  

14. In cross examination, the complainant was shown some WhatsApp messages indicating, contrary to her evidence, that the dinner meeting was prearranged by her and that she and the appellant had met in Causeway Bay before the meal.  It was also established that she given him her insurance name card and an insurance calendar during the meal and that she had made enquiries of him as to whether he had any existing insurance policies.  He told her that he already had insurance policies.  The complainant initially denied that this was a prearranged meeting but conceded that it had been and that she had always planned to introduce insurance to him at the dinner.  Under cross examination she seemed to recall that she had an insurance policy with her at the time.  

15. This was one of several matters that Mr Daniel Marash, SC, with Mr Simon Ng, argued cast serious doubts over the complainant's credibility as a witness.  He submitted that in her testimony she was trying to belittle her desire to sell insurance to the appellant and play down the personal arrangements that she had made to meet up and see him.

16. The appellant had existing policies with another insurance company and she commented that the policies of her insurance company were better.  She admitted that the appellant asked her on this occasion if she liked hotpot but she denied that he said he would invite her to his home for hotpot.

17. The complainant’s evidence was that a few days after their meeting on 9 December, the appellant telephoned her and said that he had time to meet up for a meal in the following week and suggested that they should have hotpot.  But in fact the next day, 10 December 2013, the appellant sent her a WhatsApp message saying: “Pretty girl, I drank too much yesterday, sorry.  I treat you to Sichuan hotpot next week.”  She said in reply “No problem.  Would you be free this Thursday?”  The message from the appellant would indicate that they had been out the previous night and they had been drinking. 

18. There were further messages between them to arrange a night for a meal.  On 18 December 2013, the appellant sent a WhatsApp message: “Finished work.  Pretty girl, Sichuan hotpot tomorrow night, would you prefer very spicy, medium or mild?  Anything you don’t eat?”  She replied: “Fine with everything”.  In evidence the complainant said that the arrangement was fine with her and as to venue she left it up to him.  They arranged to meet at the Emperor Group Building in Wanchai at 8.30 pm on 19 December 2013. 

19. Mr Marash submitted that by this message it was clear that the complainant was being invited to have hotpot at the appellant’s home.  I do not agree.  It is far from clear that the appellant was inviting her to his place for hotpot.  In evidence, she rejected that that was her understanding of the message.

20. On that evening, they met as arranged but she testified that she had no idea that they would be going to the appellant’s place for hotpot.  She asked the appellant when they met where would they go for hotpot and according to her evidence he did not tell her.  She said that they walked in the direction of the streets behind Hennessey Road but there were no hotpot places there.  It was then that he said to her: “It’s alright, just follow me.  Come up to my residence, I’ve already prepared all the materials”.  In evidence she said that she told him: “What?  We are not eating outside?  Why would we be going to your place?”  She said that he responded by saying “Now that I’ve prepared all the materials, then come up to my place to eat, and if you need to discuss insurance, also come up to my place to discuss”.  She said that she followed him up to his home.  She also said that before going to his home she had telephoned a female colleague, whose first name was Boey, because it was an individual meeting and there might be danger.  At this stage she did not know the address of the appellant. 

21. It seems odd that the complainant rang Boey because she testified that she gone to Wanchai with her friend and senior colleague, PW2, who she testified she later contacted before the incident when she became concerned that she had been consuming alcohol and after the incident when she asked her to come and rescue her.  It is noted that at trial neither the complainant’s telephone records were produced nor did Boey give evidence.

(c) The other man

22. The complainant said that they went to the appellant’s flat and he had already prepared all the materials for hotpot on the table.  The appellant and the complainant are seen on the CCTV entering the building through the main entrance at 20.33.58 hours.  She testified that outside the front door of the appellant’s flat was a male who was probably the appellant’s friend.  She said he entered the flat with them and that he stayed for about 10 minutes and left.  She seemed to have difficulty recalling exactly what happened in relation to this man.  She said after the man had left they began to eat food and drink red wine.  

23. It is necessary to examine the complainant’s evidence about this man in some detail.  She was confronted about it in cross examination when she was asked if she remembered telling the police that she met this man on the ground floor.  She said she did not remember.  She was then shown her witness statement which was taken from her, soon after the incident, at 12.55 am on 20 December 2013 and she confirmed that she had made the following statement to the police.

“I then followed Ma Wei to a unit on the (address supplied), Wan Chai. Ma Wei ran into his male friend on the Ground Floor at (address supplied). That male friend was about five feet nine inches tall, slim build, short hair, black jeans. I don’t know him. We got to the 6^th Floor together and chatted for a while. That man left at around 8.45pm, he did not eat anything. Ma Wei then started to drink red wine with me.”[2]

24. The complainant’s evidence on this issue continued:

“A: Actually, at the time when we talked towards that place, that male did not go upstairs with us.”

INTERPRETER: “Together”.

Q: Well, you said you met him on the Ground Floor, that meant the Ground Floor of the building, didn’t it?

A: While walking towards there, it’s not the same person.

Q: I’m sorry?  Your description here is of a man you met on the Ground Floor who went you up to the premises with you, the same man you were telling my friend about this morning.

INTERPRETER: Sorry?

MR MARASH: It’s the same man you were telling us about this morning when my learned friend asked you. 

A: It’s not the same man. 

Q: This is not the man who came in for ten minutes?

A: We did not go upstairs together.

Q: Well, who was the man who came in for ten minutes?

A: I cannot recall.  Anyway, it’s a man. 

Q: Yes.  Was he introduced to you by a name?

A: No, no idea.

Q: What did they talk about for ten minutes while you sat there?

A: I cannot recall.

Q: You see, Miss Chu, I suggest this is absolute nonsense.  I want to show you the video of you coming into the building with the defendant.”[3]

25. I pause here to note that the complainant’s evidence is that the man that she said to the police she met on the ground floor whom she described was not the man that they met outside the appellant’s flat.  She testified that the man downstairs and the man upstairs were two different men.

26. In cross examination, the complainant was shown the CCTV footage of her with the appellant entering into the building.  There was no other man with them.  It was then put to her that the man she claimed she met on the ground floor and went up to the flat did not exist and it did not happen.  She agreed. 

27. Later the magistrate asked the complainant a series of questions about the other man.[4]

“Q: Miss Chu, I wish to clarify from you, and you – in examination-in-chief, you mentioned a man appeared at the door of the defendant’s place. Do you remember that?

A: Cannot recall.

Q: In examination-in-chief, you told us that, before you entered into the defendant’s residence, there was another man?

A: Yes.

Q: In cross-examination, after you referred to the CCTV footage and your witness statement, it was suggested to you that the man on Ground Floor didn’t exist and it didn’t happen, and you agree. Do you remember your answer?

A: Cannot recall.

Q: I want to clarify it, when you entered into the defendant’s residence, was there a man entering together with you and the defendant?

A: Yes.

Q: When did that man appear?

A: When we came upstairs, he had already been there.

Q: So is it your evidence that you have never met a man on the Ground Floor?

A: Yes.

Q: Why did you told the – why did you tell the police that defendant ran into a male on the Ground Floor?

A: Because at the time, I was confused.”

28. Mr Marash argued that this matter undermined the complainant’s credibility as a witness.  He pointed out that in her statement to the police taken shortly after the incident, she said that they met the other man downstairs and went up to the appellant’s flat but that in her evidence before the magistrate she said the other man was upstairs outside the front door of the appellant’s flat.  When she was confronted with the account in her witness statement she said that there were two different men but finally she was forced to concede that the man downstairs did not exist at all.  Mr Marash submitted that the complainant in her evidence about the other man was not only giving a different account as to meeting him but also fabricating the existence of a man downstairs.  The magistrate put this down to the complainant being confused when she made her statement. 

29. Mr Marash submitted that the magistrate was plainly wrong in his evaluation of this matter and that he had overlooked the significance of it on the complainant’s credibility.  I have to agree that it was not just a case of being confused at the time she made her statement. It concerned her giving changing evidence about this man and claiming that the man downstairs was a different man to the one upstairs who she later had to acknowledge did not exist at all.  It was when she was confronted about the issue and shown the CCTV footage that she had to concede there was no other man at the ground floor when they entered the building.  The magistrate was plainly wrong to have regarded this as simply a product of confusion at the time she made her statement.  This was a case of the complainant giving contradictory evidence during the course of her testimony which the magistrate did not address.  He did not take this aspect of her evidence into account and did not evaluate it in his assessment of her credibility.  In my view, it had a significant impact on her credibility and reliability as a witness.

(d) 19 December dinner

30. I return to the complainant’s evidence.  She said that during the meal she took out an insurance policy which she explained to the appellant.  She asked him about the beneficiary and she said he responded: “After having the meal, after the hotpot, I would sign in it for you”. 

31. She said that it was then that she went to the washroom and telephoned, PW2, who had earlier accompanied her when travelling to Wanchai.  She said that she knew she was going there to meet up with a client.  PW2 was her senior colleague.  It also transpired that they were very good friends of long‑standing.  When asked in examination in chief why she went to the washroom to telephone her colleague she said she did it because wine would be consumed.  She said this occurred about an hour after getting there.  According to her evidence that puts a time on the first call at about a little after 9.30 pm.  She said by this time she had drunk 4 to 5 glasses of wine and that the appellant himself had drunk 2 to 3 bottles. Eventually, it was discovered that there were 3 empty wine bottles in the flat.  As will be apparent later, it does not appear to be the case that the appellant drank all this wine himself as the complainant on her own evidence drank quite a few glasses and that was evident from the CCTV footage where she was later seen staggering along the corridor of the main entrance of the building and from the undisputed evidence that she was vomiting downstairs outside the building of the appellant’s flat.  An issue that was raised by the defence was her evidence about her state of inebriation.  It was put to the complainant that she was drunk but she only acknowledged that she was tipsy.  She was then shown the CCTV footage of her staggering and bumping into the wall of the downstairs corridor and her response was that she always walked like that and that she walked naturally in a S‑shape.[5] This unfortunate response illustrated that the complainant was prepared to make whatever answer to maintain her evidence and position.  It was a matter that reflected on her credibility. 

32. She said that she went into the washroom to speak to PW2 because she had consumed alcoholic drinks and she did not know whether she would get drunk or not and told her that the flat was near the Emperor Group.  Mr Marash submitted that it was important to note that she did not know the address of the appellant’s flat. This was relevant because it was put to her in cross examination that later when she telephoned PW2 after the incident she gave the phone to the appellant who told PW2 the address.  She denied this happened but it still leaves open how PW2 came to know the address of the appellant’s flat when the complainant’s evidence is that she did not know it except that it was near the Emperor Group.

(e) The incident

33. She then went back into the living room and sat at the table.  The appellant was sitting to her left.  About 10 minutes after she had made the call, the appellant placed his left hand on her right shoulder and placed his right hand on her waist.  He then kissed her down the neck.  Up to that point when he started kissing her, she said she did not say anything to him, nor did he say anything to her.  She said she used her left hand to push him several times to counteract him.  She yelled at him: “Don’t meddle with me”.  He removed his left hand and placed it over her top and pulled it down to the right side of her bra.  Then he used his right hand to unhook her bra.  He then tilted his head down and kissed her right breast.  She further explained that he bit her breast for about 10 seconds whilst she struggled with and hit him.  She later said that he was biting her nipple during this time.  She said she pushed him away in one go with considerable force, stood up, and dashed towards the washroom taking her phone with her.  She said the whole incident lasted less than 20 seconds.  This placed the time of the incident at about 9.45 pm or a little later. 

34. The complainant said she telephoned PW2 and left a voicemail on WhatsApp that she was very afraid and asked her to come quickly to rescue her.  At this juncture, it should be noted that the telephone records and messages of the complainant and PW2 were not retrieved and therefore not produced at trial. 

(f) In the washroom

35. It appears the complainant was in the washroom for some time and according to her evidence the appellant knocked on the washroom door and asked her why she had not come out for such a long time.  She said he acted like nothing had happened.  She said that she told him that she had a stomach ache.  She then walked out and said to him that a friend of hers would like to join them for hotpot and that she would go downstairs and pick her up.  She said she used this as an excuse to get out of the flat.  She said that PW2 had telephoned her and she knew she was already coming over.  She said that she had been in the toilet for approximately 10 odd minutes.  It is noted by Mr Marash that the complainant testified that her bra strap was tight which consisted of four clasps.  She was questioned as to how the appellant managed to undo the clasps while she was struggling.  She only responded by saying that he undid three clasps.  It was put to her that she was cooperating at the time and he used two hands to undo her bra.  She said she was not cooperating but counteracting.  She confirmed that there was no damage to her bra that night and she was able to do it up herself.[6]

(g) The unaccounted period before leaving

36. According to the complainant’s evidence, the time that she came out of the washroom was about 10 pm or little later.  She said she told the appellant that: “My friend has arrived.  I’ll go down and pick her up myself.  She would like to join us for the hotpot”.  Then the appellant said he would accompany her but she said: “No need, I can do it myself”.  She then left the flat.  She left her handbag and scarf behind.  She was seen on CCTV in the building lobby at 22.52.07 hours walking unsteadily and lurching against the wall of the corridor leading to the main entrance.  Even according to the evidence of the complainant, her conversation with the appellant would seem normal but she did say she used this as an excuse to leave the flat. 

37. Mr Marash submitted that the timing of the incident was all important and seriously reflected on the credibility of the complainant.  According to the evidence of the complainant, the incident took place at about 9.45 pm or slightly later, she went immediately into the washroom and was there for 10 odd minutes, and as soon as she came out she went downstairs.  However, the CCTV footage showed her in the corridor to the main entrance at 22.52.07 hours.  Mr Marash made the point that there was an unaccounted period of nearly an hour and submitted that contrary to the complainant’s account she continued to eat and drink with the appellant after the incident for this period of time.  Whilst it may not have been as long as nearly an hour, there was a not insignificant period from the time the complainant said she came out of the washroom to the time she was shown on the CCTV footage leaving the building.  It raised a doubt as to her account as to what happened. 

(h) The complainant downstairs  

38. Next door to the main entrance of the building where the appellant’s flat was located is a 7‑Eleven store. When the complainant got downstairs she saw a fellow employee, by the first name Alan, outside the 7‑Eleven store.  She said she told Alan what had happened.  A little later PW2 and another employee named Michael arrived. Sometime later again Boey arrived. Alan telephoned the police.  Alan was not called as a witness at trial, nor was Michael or Boey.  At that time, she said she threw up as she was full and consumed alcoholic beverages.  PW2 described her as vomiting continuously. 

39. The complainant claimed that she told PW2 that the appellant kissed her, pulled down her clothes and bit her on the right side.  This was not confirmed by PW2 whose evidence I will discuss later. 

40. The complainant told PW2 that she was very frightened and her bag and scarf were still upstairs and that she used an excuse to leave telling him that her friend also wanted to come up to have hotpot.  When asked about the condition of her bra at the time she said it was still unhooked.  She explained that she had hooked up the bra herself in the toilet but when she went downstairs one of the hooks got opened by accident so PW2 assisted her hooking it up again.  

(i) The appellant looking for the complainant

41. At 23.09.24 hours the appellant is seen on CCTV leaving the building and returning at 23.10.34 hours.

42. At 23.14 hours the appellant sent the complainant a WhatsApp message saying: “If you have something else to do, I will go to sleep”.

43. At 23.17.16 hours the complainant and PW2 in the company of police are seen on CCTV entering the building.  The complainant is seen staggering and being held by PW2.  On two occasions she lurched into the wall of the corridor.  The police went to the flat of the appellant.  They retrieved her scarf and handbag and arrested the appellant.

44. Photographs taken by the police of the appellant’s flat between 04.10 and 04.18 hours on 20 December 2013, show that there were 3 empty bottles of wine and that a third set of chopsticks and a clean bowl was on the dinner table.

PW’2 evidence

45. I now turn to the evidence of PW2.  As has already been established, PW2 was the friend and colleague of the complainant.  They had known each other since schooldays and in fact PW2 recruited the complainant and she was her subordinate.  It was confirmed that PW2 would receive a share of any commission earned by the complainant for the insurance policies she sold.  It was also confirmed that the complainant was in line for an award for the number of policies sold.  The suggestion from the defence was that the complainant was keen to sell insurance to the point that she would engage in sexual activity to sell a policy.  I have no hesitation in soundly rejecting such a suggestion and there is no basis whatsoever for it.  The complainant might have been keen to sell insurance but that is as far as it went.

(j) Knowing the location of the appellant’s flat

46. PW2 said she went to a 7-Eleven store in Wanchai where she saw the complainant.  I pause here to note that in cross examination she said she did not know the exact address where the complainant was located and only knew it roughly that it was opposite the Vocational Training Centre.  She confirmed that she telephoned the complainant to get a more specific address but did not explain whether she was given the exact address of the appellant.  It was put to her that the complainant did not know the address and the appellant got on the phone to tell her the address.  She said that from the beginning to the end, apart from the complainant, she did not hear the voice of anyone else.

47. PW2 said that at the time when she saw the complainant, she was given a pack of tissues and a bottle of water.  The complainant asked her to do up the clasp of her bra which she did.  The evidence of the complainant was that she had done up the four clasps of her bra herself but one got loose by accident when she was downstairs.  She said the complainant was not well and by then other colleagues had arrived, being Alan, Michael and Boey.  She said that Alan had already arrived when she got there.  She had come with Michael in a taxi and that she had telephoned Boey.  She said that they met at the Vocational Training Centre in the area which was one block away from the 7-Eleven store.  From there they went to the 7-Eleven store.  It still begs the question how did they know where the appellant was located if she did not know the address of the appellant’s flat except for being informed that it was near the Vocational Training Centre.  Was it the case as suggested by the defence that the appellant told her the address when he was informed by the complainant that a friend of hers would join them for hotpot?  The matter was not taken further at trial but it raises the question as to how the complainant’s colleagues were downstairs outside the appellant’s flat when she did not know the address.  

48. PW2 confirmed that Alan made a report to the police and that she together with Boey accompanied the complainant to the appellant’s flat to retrieve her belongings.

(k) State of inebriation of the complainant

49. In cross examination when PW2 was asked if she and the complainant socialised together she responded that they did not drink.  Later when the matter was further pursued she acknowledged that the complainant was a good drinker.  She was asked about the complainant’s state of inebriation.  She said she was not drunk yet when she saw her but she admitted that she was vomiting at the time.  She said that she had vomited once or twice and it was because she had eaten a lot.  It was put to her it was because she had been drinking but she seemed to resist this suggestion.  It was shown that this was contrary to her statement to the police at the time of the incident where she said the complainant was vomiting continuously when she saw her.  She was further questioned about this matter and it was then that she acknowledged that the complainant was a good drinker.  She also said that on the night the complainant did not need her assistance when walking and that she walked on her own.  When she was told there was a video recording of them she said that she and Boey were holding the complainant so as to comfort her.  A viewing of the CCTV footage completely dispels this suggestion and shows the complainant wobbly and unsteady on her feet and that PW2 had to physically hold her up from time to time. 

(l) Complaint that she was kissed on the lips

50. PW2 was asked about her telephone conversation with the complainant and whether she said to her that the person that she was with had kissed her on the lips.  She denied that lips had been mentioned either in conversation or by message.  She was taken to her witness statement that was made that night.  In it she said “She then called me immediately telling me the client had kissed her lips”.  She then acknowledged it was mentioned on the phone that the complainant said she was kissed on the lips but she added “or on the neck”.  It is curious that she added on the neck because that was the evidence of the complainant before the magistrate who had denied that the appellant kissed her on the lips.  When confronted with her statement, PW2 agreed that the complainant mentioned at the time she received her call that she had been kissed on the lips.  Two points that are made about this by the defence. First, both prosecution witnesses were disavowing the suggestion that the appellant kissed the complainant on the lips and in the case of PW2 this was contrary to her witness statement.  Secondly, it raised a serious doubt as to whether the prosecution witnesses were telling the truth.

A question of credibility

51. The central issue in the present appeal concerns the credibility of the two prosecution witnesses.  The grounds of appeal provide the basis upon which the appellant seeks to persuade the appellate court to depart from the findings of fact or to correct any error of law when conducting the rehearing.  This will also include the magistrate’s findings as to the credibility of a witness.

52. As I stated at the outset of my judgment, a magistracy appeal is a rehearing of the case by the appellate court.  It therefore decides the case upon the record of the evidence and the reasons which the magistrate has given for his or her decision.  The procedure means that the appellate court’s powers to review findings of fact are necessarily circumscribed.  As a matter of common sense and good practice, it is recognised that a magistrate is in some respects better situated to make findings of fact having had the advantage of seeing and hearing the witnesses.  It is for this reason that appellate courts are therefore reluctant to disturb findings which depend upon credibility.  An appellate court will only depart from the magistrate’s finding as to a witness’s credibility where it is plainly wrong.  It is a high hurdle that an appellant as to get over to warrant the appellate court’s intervention.  It must be shown that it was plainly wrong in the sense that the magistrate wrongly considered or evaluated matters or omitted to consider or evaluate matters that had or would have had a material bearing on the credibility of the witness as to whether to believe or disbelieve the evidence given by him or her.  See HKSAR v Ip Chin Kei [2012] 4 HKLRD 383 at paragraphs 43 to 56.

53. Mr Marash submitted that the magistrate wrongly evaluated the complainant’s evidence which he should have rejected because it had been rendered doubtful and unreliable in cross examination.  As a consequence, the magistrate made findings based on her evidence which resulted in a wrong conviction.  Mr Marash raised a number of matters which he submitted created serious doubt as to the credibility and reliability of the complainant’s evidence but I will only focus on the more pertinent ones being as follows.

(i)     The restaurant meeting on 9 December 2013 was not a spur of the moment decision as claimed by the complainant.  There had been a pre-arrangement for them to meet up and to go out for a social meal.  The evidence also revealed the complainant’s keen desire to sell the appellant insurance.  In my view, it does appear that the complainant was attempting to water down the nature and level of her contacts with the appellant prior to the incident on 19 December 2013.

(ii)  The complainant’s evidence about the other man displayed a lack of credibility as a witness and a preparedness to give less than frank evidence.  The complainant’s evidence as to the other man was inaccurate and during the course of it she changed her account about the matter and even had to acknowledge that the man did not exist.  This in my view reflected on her credibility and reliability and in particular displayed a preparedness to be less than frank when confronted about an issue as to her evidence. 

(iii)  The prior conviction for possession of drugs of both the complainant and PW2.  In my view, the magistrate was correct to reject this matter as having no bearing on their credibility as witnesses.

(iv)  The timeframe of the incident and the unaccounted period of nearly 1 hour.  In my view, it was probably not as long as that but did involve according to the prosecution case and evidence an unaccounted period of time that would suggest that the complainant did not go downstairs immediately after the incident.

(v)  The state of intoxication of the complainant and her truthfulness on the issue.  The complainant acknowledged that she was tipsy but when shown the CCTV footage of her staggering from side to side in the downstairs corridor she said that she normally walked in an S‑shape.  As I have stated it showed preparedness on her part to be glib about her evidence and to be less than frank.  In the case of PW2, she sought to play down the inebriated state of the complainant.  It was of relevance that the complainant had drunk a lot of wine and was vomiting downstairs which would have naturally alarmed her friends.  It also may have had a bearing on the reliability of her account as to what had happened. 

(vi)  The question of evidence of the complainant in relation to the unhooking by the appellant of the complainant’s bra consisting of 4 clasps with his right hand alone, and the biting of the complainant’s right breast for 10 seconds, during a struggle, with no mark or injury having been sustained by her.  These matters raise questions as to the complainant’s account of the incident which the defence questioned as to how the appellant undid the complainant’s bra with one hand and as to why there was no mark on her breast after she claimed that the appellant had bit her nipple for 10 seconds while she was struggling. They put a doubt on the account given by the complainant. 

(vii)  The inconsistency of the complainant’s first complaint that she been kissed on the lips and nothing more.  This was a matter that raised a doubt about the prosecution case and in particular the evidence of PW2.

(viii)  The complainant not knowing she was going to the appellant’s flat for dinner.  In my view, there is no evidence to suggest that the complainant knew she was going to his flat for dinner.  I do not see any point in this argument.

(ix)  The evidence of the appellant’s state of belief that the complainant was coming back to the apartment with her friend to have hotpot.  This consisted of the photographic evidence of the third clean bowl with chopsticks placed on the table and the CCTV footage, showing the appellant leaving from and returning to the building to check where the complainant was and his WhatsApp message to her at 23.14 hours to her telling her that if she had something else to do he would go to sleep.

(x)  The unreliability of the evidence of PW2.  She testified that the complainant was not drunk although later she said she was not drunk yet.  She seemed to be playing down the complainant’s state of inebriation and how sick she was downstairs.  She also sought to avoid the suggestion that the complainant told her that the appellant kissed her on the lips.  This was contrary to her police statement. 

The magistrate’s findings

54. In relation to the meeting on 9 December, the magistrate dismissed the complaint that the complainant was not full and frank about her evidence concerning her meeting with the appellant by concluding that the complainant had no reason to conceal that she had a discussion about insurance prior to the day of the incident.  Although it was pursued in cross examination to show that the complainant was keen to sell insurance to the appellant, it had also revealed that she had not given a true account of the meeting and that there had been prior arrangements by her to meet up with the appellant and have a meal together.  It was also revealed from the WhatsApp messages of the appellant that they had been drinking that night.  The complainant in her evidence portrayed this as a spur of the moment meeting so as to assure the appellant about insurance generally without raising the matter specifically with him.

55. The magistrate dismissed the issue about the other man on the basis that it had no real significance and served no real purpose in the complainant advancing her claim against the appellant by fabricating the other man who appeared to have nothing to do with the incident.  With respect I have to disagree.  It was in the course of her testimony before the magistrate that she gave less than frank evidence about the other man.  She initially said he existed but when shown that could not be the case she had to concede that he did not exist.  It raised a serious doubt about her veracity and reliability as a witness. 

56. The magistrate dismissed the issue of the unaccounted period of nearly an hour on the basis that the evidence was nothing more than an estimation.  The magistrate was correct in noting that it was an estimation but it was the complainant’s evidence and even allowing for the fact that it was an estimation there was still a not insignificant period of time that was unaccounted for between the time she came out of the washroom and the time that she is recorded leaving the building.

57. The magistrate dismissed the issue of the complainant’s evidence that she was tipsy and not drunk as not being relevant to the issue of consent.  That is correct but the point made by the defence was that she was not being truthful about her state of intoxication.  The evidence showed her staggering along the corridor, not being able to stand up without assistance, and vomiting continuously outside of the building.  Her response was that she normally walked in an S‑shape.  In my view, as submitted by Mr Marash, when this and other matters are considered together, it does show preparedness on the part of the complainant to structure her evidence to suit her case.

58. The magistrate dealt with the evidence in relation to the appellant undoing the complainant’s bra and the lack of injury to her breast by saying that these matters depended upon various factors such as the relative position of the person, the tightness of the bra, the force used and so on.  However her evidence required some analysis as submitted by the defence because the bra the complainant was wearing had four clasps and she was wearing a jacket and other clothing underneath.  The complainant said that the appellant undid her bra with his right hand but it was the defence case that they were embraced and kissing and the appellant undid her bra with his two hands.  The complainant also said that the appellant was biting her nipple for a period of about 10 seconds while she struggled with him.  She acknowledged that there was no mark or injury on her breast.  It placed a doubt on her account of the incident and the correctness of her evidence.

59. The magistrate rejected the issue as to whether the complainant was kissed on the lips or the neck as an immaterial discrepancy in her evidence.  Mr Marash submitted that she had kissed the appellant on the lips and that the complainant was denying this had taken place in order to structure her evidence so it would not reveal that she was a willing participant.  He pointed to the evidence of PW2 that the complainant did not complain to her that she had been kissed on the lips even though in her statement to the police that is what she said.  He made the further point that not only did this create a doubt on the evidence given by the complainant but also on the evidence given by PW2.  This was not addressed by the magistrate.

Conclusion

60. I find that the magistrate was plainly wrong in his evaluation of the credibility of the complainant for the foregoing matters that I have noted and accepted had undermined her credibility and reliability as a witness.  This was also the case with PW2.

61. Upon this finding, the findings made by the magistrate on this doubtful prosecution evidence are not sustainable and nor is the conviction that was imposed upon the appellant as a consequence.

62. I find that the complainant’s evidence about the incident cannot support a conviction for indecent assault and I therefore quash the conviction and set aside the sentence imposed.  I make no order of retrial in light of the findings I have made about the prosecution evidence.