THE QUEEN v. YEUNG SIU HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 143 OF 1993

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J U D G M E N T

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1. This is an appeal by Yeung Siu-hung (the appellant) against his conviction of indecent assault on the 4th February 1993 for which he was fined $2,000.

2. The facts reveal that the victim Miss Yeung Shuet-kwan, a primary school teacher aged 31, was travelling on the upper deck of a China motor bus at about 5:45 p.m. on the 3rd December 1992. The appellant later boarded the bus and sat next to her. During the journey, she said that the appellant touched her under the right armpit with his right hand across the front of his body and stroked her up and down with the back of his fingers about 8 to 10 times.

3. In order to prevent any further disturbance Miss Yeung placed her handbag under her right armpit which resulted in the appellant removing his hand. The appellant used some bad language and Miss Yeung complained that she had been indecently assaulted. The appellant threatened to assault the victim but was then restrained by PW2 a male passenger who was also on the upper deck. In cross-examination, Miss Yeung said that the appellant seemed to be sleeping but she was certain he was not asleep when he touched her. PW2 testified that he heard the victim scream and prevented the appellant from hitting her. The appellant gave evidence that he was sleeping on the bus and denied the allegation of indecent assault, although he said that he may have touched Miss Yeung unintentionally.

4. The magistrate was satisfied that PW1 was telling the truth and that the appellant was dishonest. He also reminded himself of the matter of corroboration.

5. A number of grounds were advanced by Mr Whitehouse, counsel who ably argued this case on the appellant’s behalf. The first ground was that the magistrate had failed to consider the burden of proof. The magistrate, Mr Meredith, was called to the Bar in 1958. He has sat in England as an Assistant Recorder and a Recorder of the Crown Court in England between 1972 and 1976. He has been a magistrate in Hong Kong since 1988. I do not find any merit in this ground.

6. The second and third grounds were that the magistrate misdirected himself in respect of the evidence of the appellant at the trial and disregarded some of the evidence led by the Crown which was favourable to the appellant. These grounds relate to the denial by the appellant made immediately after the complaint was made by the victim. Whilst he did not specifically mention all the evidence of the appellant in his reasons, the magistrate did, in fact, refer to the appellant’s reaction at the time as wholly out of proportion. These grounds are also rejected.

7. Ground four complained that the magistrate had reached his conclusion before he heard the appellant’s evidence. This complaint is directed to the reasons of the magistrate prepared for the purpose of this appeal in which he first summarised the prosecution’s case with his findings and then went on to deal with the appellant’s case. I see nothing objectionable in this course and there was no cause to suggest that the magistrate, during the trial, had made up his mind before he heard the appellant’s evidence. This ground is also rejected.

8. Ground five contends that the magistrate erred in accepting the opinion of Miss Yeung with regard to her evidence that the acts of the appellant amounted to an indecent assault. Whilst the magistrate accepted the evidence of PW1 that it was her opinion that the act constituted an indecent assault, nevertheless, he went on, as he was duty bound, to consider independently whether that assault was an indecent assault. I find no merit in this ground.

9. The sixth ground was that the act committed did not amount in law to an indecent assault. In respect of this argument, Mr Whitehouse first referred me to a decision of Ryan J. given on the 13th November 1992, R v Lam Chi-chee Mag. App. No.783 of 1992. In that case, Ryan J. held that an intention to kiss the victim in the course of an assault did not convert an ordinary assault into an indecent assault. The facts of that case were materially different from those in the instant case, but I would have difficulty in following the reasons for that decision. Mr Whitehouse also referred to R v Kilbourne [1972] 3 All ER 545 with regard to the definition of indecent assault where at p.551 Lawton L.J. had this to say:-

“The trial judge directed the jury as to what constituted an indecent assault in these terms:

‘It means a deliberate touching of somebody else's body, clothed or unclothed, with an indecent intention. That is to say, a deliberate touching which is activated by some indecent purpose.’

In our judgment, this direction was much too wide and could cover acts which were nothing more than preliminary steps towards committing an indecent assault, as for example, touching a woman’s hand. In R v Leeson (1968) 52 Cr App Rep 185 Diplock L.J. said at p.187:

‘The definition of ‘indecent assault’ which has long been accepted in these courts is an assault accompanied with circumstances of indecency on the part of the prisoner towards the person assaulted.’”

10. Mr Whitehouse also cited Reg v Court [1988] 2 WLR 1071 where the House of Lords held:-

“that where a charge of indecent assault ... was founded on facts capable of being given an innocent as well as an indecent interpretation, it was necessary for the prosecution to prove not only that the accused intentionally assaulted the victim but that in doing so he intended to commit an assault which right-minded persons would think was indecent;

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Per curiam. If the circumstances of an assault are incapable of being regarded as indecent, the undisclosed intention of the accused cannot make the assault an indecent one.”

11. In his speech at p.1084 Lord Ackner had this to say:-

“I conclude that on a charge of indecent assault the prosecution must not only prove that the accused intentionally assaulted the victim, but that in so doing he intended to commit an indecent assault i.e. an assault which right-minded persons would think was indecent.”

Later at p.1085, he said:-

“On a charge of indecent assault the prosecution must prove:

(1) that the accused intentionally assaulted the victim (2) that the assault, or the assault and the circumstances accompanying it, are capable of being considered by right-minded persons as indecent; (3) that the accused intended to commit such an assault as is referred to in (2) above.”

12. Having accepted the evidence of PW1 that the appellant did deliberately touch her, the question that the magistrate had to decide was whether the circumstances were capable of being considered by right-minded persons as indecent and that the appellant intended to commit such an assault. In my judgment, the evidence clearly supported the magistrate's finding that the assault was an indecent assault, and that the appellant intended to commit the assault. The appeal is therefore dismissed.