HKSAR v. CHU WAI CHING

HCMA163/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 163 OF 2008

(ON APPEAL FROM KCCC 492 OF 2008)

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J U D G M E N T

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1.  This is an appeal against a conviction for indecent assault.  The offence was alleged to have been committed on an MTR train between Admiralty and Tsim Sha Tsui, in the evening rush hour when the train was crowded.

2.  The first prosecution witness who was called at the trial was a 27-year old female beauty consultant.  The Appellant had stood behind her on the platform, waiting for the train.  They both got on and it is common ground that they were very close to each other.  They were in the view of the second prosecution witness who was called, who was a policeman on plainclothes duty.  The policeman told the trial court that he observed the actions of this Appellant whereby he pressed the lower part of his body, his legs, against the young lady beauty consultant and that he did so in a way that prompted the policeman to arrest him when the train got to Tsim Sha Tsui.

3.  The first prosecution witness described how she had felt the Appellant pressing against her.  She described the contact as being between his lower body and hers; in particular, his legs sandwiching hers for a part of the time on the journey.  She thought to herself, “How could it be that I am being indecently assaulted?” but she did not make any complaint out loud when it occurred.  When the policeman asked her what had happened after the arrest of the Appellant at Tsim Sha Tsui, she said that she had felt uncomfortable.  It was suggested to her that she had not felt herself to have been indecently assaulted, but she rejected that.

4.  The trial magistrate believed the evidence of PW1 and PW2 and he rejected the evidence given by the Appellant along the lines that it was a crowded train and any physical contact between the two of them was merely accidental and not intentional.

5.  The Appellant is unrepresented before me today, but has suffered nothing to his detriment thereby because he made some very clear and well argued submissions.  He raised four points.  The first point concerned discrepancies that existed between the evidence of the two prosecution witnesses.  The magistrate was aware of them because he has set them out in his statement of findings, and he judged that they were not such discrepancies as would indicate that the witnesses were either untruthful or unreliable.

6.  I agree with that assessment.  Whether or not, for instance, the victim put her hand on a handrail was a matter of insignificant detail, which one would not necessarily commit to memory.  Describing the actions of people in circumstances such as this is a process that is bound to lead to different descriptions of the same act by two honest and reliable witnesses, and discrepancies about whether there was one or two movements at a particular stage are only to be expected.

7.  The second point the Appellant made was that the victim did not actually see her leg being sandwiched by the Appellant.  It was only something she felt.  The fact is that the contact down there was observed by the policeman.  If there is such physical contact, a witness does not have to see it to be able to say ,reliably, that she felt it.  The fact that she did not see it does not raise any doubt in my mind.

8.  The third point was made concerning the significance of the clothing that was worn.  In particular, the Appellant points to the fact that the young lady wore a jacket that covered her buttocks and that he had on a 1½-inch thick waist-bag around his waist.  Whilst those are matters to be borne in mind, they obviously could not of themselves prevent what those prosecution witnesses described.

9.  The fourth point concerned the crowding of the compartment and was really a point designed to say that any touching could have been accidental.  The magistrate was alive to that and I like to think I am, too.  There is a world of difference between accidental contact and something that is deliberate in these circumstances and it is easy to observe it, though it is quite difficult to describe in words.  An important matter in this regard was that the policeman described there being space behind the Appellant; in other words, there was no need for the physical contact, certainly of the duration that was described by the witnesses.

10.  The prosecution’s evidence below was strong and it was strong because the young lady was able to confirm what it was that the policeman had observed.  Both of them insisted that this was an indecent assault.  It is the force of that point which drove the Appellant before me today to argue that it was because the policeman drew her attention to his allegation of indecent assault that she came to think that what had occurred had been indecent, and that she had not thought it at the time.

11.  The magistrate had the advantage over me of having actually seen the young lady in question.  It would be a wicked thing to do to invent a false allegation deliberately against a man in these circumstances, and she was adamant that, at the time, she thought about what was happening in terms of it being an indecent assault.

12.  The point that she therefore was somehow influenced by later events to take a different view of what had occurred at the time is one I therefore reject.

13.  The final matter I deal with is this.  It seems to me that most, if not all men in circumstances where you are pushed up against people in MTR trains are very conscious about touching.  There is a reluctance for the sort of touching that took place here between lower limbs especially so if you happen to be standing right by and close to a young lady.  Everyone knows that men do take advantage of such situations.  If there is an accidental touching, most men who do not want to exploit it withdraw immediately and brace themselves and hold themselves in a way that would avoid any misunderstanding.  I would suggest that is a common enough experience that most men have had on the MTR.

14.  That was not the case here and a very experienced magistrate saw and heard the parties.  He had no doubt on the evidence and gives good and unassailable reasons why in his statement of findings.  I re-hear the matter on the material the Ordinance directs that I should have regard to.  Despite the clear and helpful submissions of the Appellant in person,  I share the view of the magistrate.  The appeal is dismissed.