HKSAR v. CHAN SHU TING

[English Translation – 英譯本]

HCMA 314/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATION REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 314 of 2013

(ON APPEAL FROM KCCC 275/2013)

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JUDGMENT

Background

1. The appellant Chan Shu Ting (namely the defendant at the trial) was charged with four offences, of which the first three charges were all of indecent assault and the fourth charge was one of criminal intimidation.  The appellant pleaded not guilty and went on trial before Mr Peter Law, a magistrate.  After trial, the magistrate convicted the appellant of all four charges and sentenced him to imprisonment for two weeks on each of Charges 1 to 3, which were to run concurrently, and three months’ imprisonment in respect of Charge 4 which was to run consecutively with the other sentences, making a total term of imprisonment of three months and two weeks.

2. The appellant appeals against both convictions and sentences.

Cases of both parties

3. The case happened on 23 July 2012, during the period when typhoon signal no. 8 was in effect.  In his statement of findings, the magistrate has stated the respective cases of the two sides as follows (with parts to be noted italicized and underlined, and unless expressly stated otherwise, such markings are also applied in other parts of this judgment):

“Prosecution case

2. The incident took place at around 6 p.m. on a working day on the passageway leading from Tsimshatsui MTR station to the West Rail. Typhoon signal no. 8 had just been issued and it was crowded with people. Miss Leung, PW1, was on her way home. While walking forwards, she was looking down at the mobile phone in her hand [in PW1’s testimony, she was looking down, ‘playing with the mobile phone’]. When approaching the junction near K11, it became less crowded, and the space between people became spacious enough to accommodate 1 or 2 people. Miss Leung suddenly felt that something like the knuckle of a fist touched the left side of her buttock (a little below the pelvis). She described that the touch had remained contact with her for about 1 second and it was not a brushing movement. Miss Leung turned her head and saw that the defendant was less than 1 foot behind her on the left, and that he was holding an umbrella in his right hand which was about 1 foot away from Miss Leung’s buttock and a plastic bag in his left hand. When Miss Leung looked at the defendant, he looked around to avoid eye contact. Miss Leung paid no heed to it and thought that it was an accident. Since the typhoon signal had already been issued and she wanted to go home earlier, she quickened her pace a bit and proceeded. However, after she had walked for a distance of 8 to 10 steps, the same thing happened again. Miss Leung turned her head to look, and the defendant was at a position similar to that on the previous occasion, save that his hand which was closest to her buttock was then about 5 inches away, and he was also looking around evasively. Since this was the second time, Miss Leung thought that it was not an accident, and she continued to walk forward with the intention of calling the police, [in PW1’s testimony, she continued… ‘playing with the phone’]. Nevertheless, after moving 8 to 10 steps forwards, it happened again for the third time. She turned round to look back, and the defendant was in similar action and distance. His hand which was closest to her buttock was less than 3 inches away. However, this time the defendant did not have any eye contact with her and just quickened his pace to overtake her. Miss Leung followed him and in the course of it accidentally stepped on ‘the back of his shoes’. The defendant immediately turned round and spoke with a little agitation, ‘You don’t have to step on me, do you[?]’ He also swore. Miss Leung alleged that he had just then indecently assaulted her. The defendant responded: ‘That’s crazy, when did I indecently assault you[?] Look at your face in the water. Do you believe that I hit you[?]’ Miss Leung described that he sounded somewhat angry when speaking and appeared to be fierce and was loud. The remarks themselves caused Miss Leung to feel being threatened, and coupled with the fact that he was holding an umbrella, she worried about safety. Having uttered those words, the defendant continued to walk with quick paces and Miss Leung followed. On the way, she came across MTR staff and reported the matter. Eventually, the defendant was stopped.

Defence case

The defendant elected to give evidence and he said firmly that he had never touched the other party.  At that time, he was holding with his right hand a reusable bag with content weighing about 10 lbs, and an umbrella and an Octopus card with his left hand.  The pedestrians flow was then heavy.  He as usual did not want to get too close to people around.  Since he did not want to have any contact, he deliberately kept an appropriate distance from people around in order to avoid any misunderstanding.  On the way, Miss Leung was walking in front of him slowly and looking down to play with the mobile phone, and thus obstructing the forward movement of pedestrians behind.  He politely requested her to stop playing with the mobile phone so as not to obstruct the way, but she on the contrary looked back, staring at him furiously, and said: ‘Don’t you know how to queue up[?]  You are behind me so you have to follow me.’  The defendant did not respond but just bore with her, awaiting a chance of having more space ahead so that he could overtake her.  After overtaking her, he felt that the left and right ‘shoe backs’ were respectively stepped on forcibly from behind twice by her.  He thought she did that deliberately and so challenged her, but she on the contrary accused him of ‘jumping the queue’.  He responded: ‘You don’t allow me to walk faster than you[?]’  Miss Leung responded, ‘I can even accuse you of indecently assaulting me.’  He responded, ‘Say so if you like.  Have a look in a basin of water.  Who would indecently assault you[?]’  After that, he just ignored her and proceeded forwards, but was intercepted shortly afterwards by MTR staff.”

Reasons for conviction

4. The magistrate’s reasons for conviction can be seen in his statement of findings, and the important parts are extracted as follows:

“4. …. PW1 is the only and key witness for the prosecution. Her evidence is not corroborated or supported by any other evidence. Therefore, I have to deal with her evidence with particular care and caution. In addition, Miss Leung alleged that the defendant had sworn at her and passed insulting remarks, in view of this, I cannot underestimate the potential danger within.

5. …. I find Miss Leung to be an honest and reliable witness, and I am satisfied that she has told the truth without any mistake, misunderstanding or exaggeration. Her evidence is reasonable and sensible and is firm under cross-examination.

6.  The defendant elected to give evidence. I do take into account his spontaneous denial upon facing the accusations.  I would consider the matter in a way that is most favourable to the defence. I find that the defendant was not telling the truth.  His evidence is not reasonable and hardly credible[1].  I do not accept the evidence challenged by the prosecution. …”

“8. I still have to decide if the prosecution has been able to satisfy the court beyond reasonable doubt that those three separate touchings were deliberate acts. I have considered all the circumstances, in particular taking into account that the defendant is an extremely careful and cautious person, who is particularly sensitive and defensive to the potential risk of getting in contact with others in a crowded environment. For such a careful and defensive person, in case he accidentally touched somebody around[2], he would definitely be aware of that. Since he adamantly insisted that there had been no contact, and even the defence themselves have excluded the possibility of accidental contact, I can without any worry rule out that it was an accident beyond a reasonable doubt. Having considered all the circumstances[3], I find that the only and irresistible inference is that all three respective touchings were definitely deliberate acts. The defendant has deliberately touched a female’s buttock in such crowded situation, I find that the defendant’s three respective acts were all indecent and hostile. I also find that a deliberate touch on a female’s buttock under such circumstances is by itself indecent.

9. As to the fourth accusation, after considering all the circumstances[4], the only and irresistible inference that I can reach is that the defendant, at the material time, when facing the accusation of indecent assault, coupled with the full awareness of what he had just done, uttered those words with a view to terrifying the other party and making her give in and ‘shut up’ and dare not make any accusation; this was not blurting out something at a furious moment with no intention of scaring the other party.

10.  I am satisfied that the prosecution has discharged its burden to prove each allegation beyond a reasonable doubt.  Therefore he is convicted.”

Grounds of appeal

5. Mr Eric Cheung (“Mr Cheung”) has advanced three grounds of appeal on behalf of the appellant, and I will deal with them one by one.

First ground of appeal

6. The first ground complains that counsel for the appellant at trial (“trial counsel”) was flagrantly incompetent so that the appellant did not have a fair trial.

7. The law on this ground is very clear and definite. In short, the appellant is required to prove not only failure of duty on the part of his counsel, but gross failure: it has to be proved that his legal representative’s fault is much more than a mistake, an error of judgment, or a decision to follow one course when in hindsight another would have been preferable.  The most crucial point is that the appellant has to prove that his counsel’s mistake has resulted in him not having a fair trial so that his conviction is unsafe or there is a miscarriage of justice.  See the decisions of the Hong Kong Court of Final Appeal in Mak Kam Chuen v HKSAR, FAMC No 35 of 2001 (judgment dated 13 December 2001, unreported), and Chong Ching Yuen v HKSAR [2004] 7 HKCFAR 126.

8. Mr Frederick Chung, SPP (“Mr Chung”) who represented the respondent previously, has submitted a written submission, in which the large number of authorities and the legal principle referred to by the appellant were not challenged or objected, save that he did not agree that this legal principle was applicable in the present case.  Ms Fanny Wong, SADPP (“Ms Wong”) has taken over from Mr Chung and represents the respondent in this appeal hearing, and she faxed a skeleton submission in response to the first ground of appeal to the court in the evening before this hearing (“submission in response”), which I will deal with later in details.

9. Mr Cheung contended that trial counsel was so flagrantly incompetent that the appellant had been deprived of a fair trial because he had failed to conduct proper cross-examination or make submissions in accordance with the defence case.  Mr Cheung emphasized that the present case is a typical “one against one” situation, which solely relied on the evidence of Miss Leung (“PW1”) to prove the case against the appellant, where the respective versions of the appellant and PW1 were almost completely contradictory and they both stuck to their own cases.  Therefore, the discrepancy between PW1’s testimony in court and her statement given to the police outside court (discrepancy between “testimony” and “statement”) and those discrepancies with statements of other relevant people might critically affect the credibility of her testimony, and the credibility of her testimony is the crux of the present case.

10. Mr Cheung also pointed out that PW1 repeatedly said she was “walking hastily” with quick steps to hurry home because the no. 8 signal had already been issued, and the pedestrians in the West Rail Station were in general walking as quickly as her, and she, after being touched by the appellant on the first occasion, “quickened her pace to move forward”.  The appellant, however, alleged that she was walking slowly because of her playing with the mobile phone and that she was even obstructing other pedestrians’ way. The appellant, in his testimony in court, also said, “In front, there was a lady (namely PW1) walking extremely slowly such that I could barely proceed … she was playing with the mobile phone at the same time.”  This is the cause of the dispute, as the appellant insisted, between PW1 and him.

11. It is important that the statement provided or given by PW1 herself to the police on the date of the incident (23 July 2013) was different from her testimony in this regard but consistent with the appellant’s version.  PW1 in that statement said that after being touched by the appellant on the first occasion, “I continued to move forward and kept on playing with the phone because there were many people and I could only move slowly,” and after the second touch “continued to walk slowly, playing with the phone”.  Obviously, there are major inconsistencies between PW1’s testimony in court and her statement given to the police outside court, and also with the appellant’s case.  Trial counsel had the duty to attack the truthfulness, credibility and reliability of it by way of cross-examination, or at least had to point out what the defence objected or disagreed.

12. Mr Cheung referred to paragraphs 18-20 of the judgment in HKSAR v Ng Kwok Cheung, HCMA235/2013 (judgment dated 23 January 2014, unreported) and pointed out that if a prosecution witness’s testimony in court was inconsistent with the statement that he had given outside court or with other documents, whereas in respect of the prosecution case, the defence “does not challenge or raise any objection, then it would in most cases be understood as acquiescence or acceptance, and in rare cases be understood as disdaining to take notice of or ignoring it.  Although the burden of proof rests on the prosecution, unless the evidence adduced by the prosecution is so ridiculous that it does not deserve any notice, the defence still have to attack its truthfulness, credibility and reliability by way of cross-examination, and at least have to point out what they object or disagree, and cannot simply ignore the prosecution evidence.”

13. Furthermore, in the case of HKSAR v Ho Chiu Shim, HCMA799/2001 (judgment dated 26 March 2002, unreported), Deputy High Court Judge Toh (as she then was) pointed out that in that case, the female victim’s testimony was the only evidence relied on to prove the case against the appellant, and so the discrepancy in question was crucial to the credibility of her testimony. The magistrate must consider this discrepancy and give a reason which could resolve such discrepancy in the evidence.  Deputy Judge Toh adopted the comment given by Mr Justice Leong in the Court of Appeal in Pak Po Wah [1998] 4 HKC 632:

“As the credibility of the applicant and of the witnesses was a vital issue, the discrepancies between the evidence of PW3 and PW4 were highly relevant and should have been resolved before concluding that both were truthful and reliable.”

14. In addition, in HKSAR v Wong Kin Wah HCMA 410/2005 (judgment dated 30 June 2005, unreported), Deputy High Court Judge M Poon (as she then was) had the following observation:

“8. In the present case, there are actually quite a number of discrepancies between PW1’s testimony and the witness statement(s) he gave to the police, which had been pointed out by counsel for the appellant to PW1 who admitted it without reservation. However, PW1, apart from explaining whether he had phoned the appellant at the material time … , did not give any explanation on other discrepancies. It is strange that defence counsel did not pursue by asking further questions in cross-examination and the prosecution in re-examination also did not clarify with him or require him to explain. In fact, the explanation given by a witness on the contradiction of his evidence can assist the court in assessing or analyzing his credibility. In consequence of these explanations, the magistrate is entitled to conclude that they are too trivial to affect the credibility of the witness, or hold that they are serious and irreconcilable discrepancies so that the credibility of the witness in its entirety is undermined and all gone.

(Underlining added by Mr Cheung.)

15. Mr Cheung pointed out that there was another important discrepancy which was related to Charge 4.  According to the statement given by PW1 after the incident in the same evening on 23 July 2012 and her testimony in court, after PW1 had stepped on his shoe backs, the appellant said, “Look at your face in some water. Do you believe that I hit you[?]” And afterwards he further “said for more than three times” in front of the MTR staff, “Are you playing games[?]  Do you believe that I hit you[?]”  PW1’s statement and testimony are consistent.  It was indeed based on the phrase “do you believe that I hit you” that the appellant was convicted of the offence of criminal intimidation.  However, according to the statements given by PC14362 on 24 July 2012 and WPC9440 on 28 December 2012, at that time PW1 complained to the police officers at the scene against the appellant for saying to her, “Look at your face in a basin of water.  Shut up, otherwise, I get someone to hit you.”  According to the record of the interview conducted by PC14362 with the appellant on 23 July 2012, it was based on these words that the police officer cautioned the appellant.

16. Mr Cheung asserted that there was a material and serious discrepancy between the statements of these police officers and PW1’s testimony, and in particular, the meanings of (1) “I hit you” (in PW1’s testimony) and (2) “I get someone to hit you” were plainly different.  Trial counsel failed to cross-examine PW1 on this point, and he did not call the police officers concerned to give evidence.  This discrepancy was vital to the crux of the present case — the credibility and reliability of PW1.  Moreover, I have to point out, PW1 testified that the words “do you believe that I hit you” had caused her to “feel being threatened, coupled with the fact that the defendant was holding an umbrella, she worried about safety.” (see paragraph 2 of the statement of findings recited above).  The words “get someone” in “I get someone to hit you” could at least cast some doubt on the imminence of the threat brought along by “the defendant was holding an umbrella, she worried about safety” because unless the someone to be “got” was just nearby, and in fact there was no evidence showing the existence of such a person in the case, the “someone” could only be “got” later or in future.

17. Mr Cheung further pointed out it was even worse that trial counsel had not only failed to cross-examine PW1 on the above material discrepancy, but also erred to suggest and admit that PW1’s testimony in relation to the intimidating words uttered by the appellant to her on the day in question and the statement she had given to the police outside court were consistent and “the same”.

18. I notice that trial counsel, when cross-examining PW1, said the following:

“Q: … In fact, I have read the statement that you have given to the police, and I believe you have told the police everything about the incident, which is in fact almost exactly the same as your testimony. Each time the contact was very short, and there were three contacts, which was only one second as you described to the police?

A:  Yes.”

19. Trial counsel suggested that PW1’s testimony in court and her statement outside court were “exactly the same”.  Subsequently, when trial counsel intended to point out what was consistent and “the same”, the magistrate intervened, reminding the counsel that if it was suggested that PW1’s testimony in court and the statement given by her to the police were consistent, it would be self-serving, that is to say, self-supporting and gaining advantage for oneself, which was, strictly speaking, not permitted under the law of evidence.

20. On the other hand, Mr Cheung also argued, according to the statement given to the police by MTR staff member Choi Wing Fai on 25 July 2012, upon receiving PW1’s complaint, he asked the appellant to stop to clarify.  The appellant was very cooperative and stopped.  However, when he heard PW1 accuse him of “touching my bottom”, he said, “I touched her, how could I touch her?  I was carrying so many things.  For the sake of her face, how would I have touched her?”  He also described in details the words uttered by the appellant as he heard after a report had already been made to the police, in which there was no mention of “are you playing games, do you believe that I hit you” or words to that effect.  If PW1’s testimony was true, namely the appellant had really uttered those intimidating words “for more than three times” to PW1 in front of that MTR staff member, how come would he have not mentioned them in his statement?  Nevertheless, trial counsel has neither cross-examined PW1 on this, nor called that MTR staff member to challenge PW1’s credibility and reliability.

21. Mr Cheung has referred to HKSAR v Ho Chung Wah [2013] 1 HKLRD 775 as an example.  In that case, the defendant was convicted of committing an act of gross indecency towards a child under the age of 16.  This precedent was crucial to the present case because trial counsel for the defendant of the case failed to cross-examine on the reliability and credibility of the complainant according to the relevant instructions given by the defendant, for example, the complainant had been exposed to pornographic video such that she subsequently became curious of the appellant’s body and displayed immodest behaviour, and so on.  It was Mr Justice Macrae’s view that:

“25. These matters…were the applicant’s instructions, which, as Mr Cheng points out, went to the heart of the issue of credibility and without which it is difficult to see that his case was properly put on his behalf.”

22. The former defence counsel in that case chose to use accidental or unintentional touching as the defence, which was similar to the present case.  Mr Justice Macrae further said:

“31. Significantly, the deputy judge understood the defence case to have been one of unintentional or accidental touching. In his analysis of the evidence, he said:

‘In cross examination, it was only put to (PW1) that her father never put his hand down inside her pants to which she disagreed, and it was further put to her, which she agreed, that if there were ever any contacts it was absolutely unintentional…’

32. The deputy judge may be forgiven for his use in the above passage of the qualification ‘only’. For that, indeed, was all that was put to PW1 on the applicant’s behalf. We put our concern to Mr Isaac Tam for the Respondent, since it could hardly be the case that the removal of PW1’s clothing, the applicant’s thrusting of his penis between her buttocks for 5-10 minutes and his ultimate ejaculation over her buttocks, was unintentional or accidental, whether issue was properly joined on the facts of the third charge. His answer was that the plea of not guilty was sufficient in the circumstances to put the matter in issue. With respect, his answer did not appeal to us. If it did, it would provide a licence to counsel to desist from their professional duty not only to properly put their client’s case but also to challenge the essential parts of the prosecution case which are not accepted.

33.   In our view, not only were aspects of the applicant’s case not put when they could and should have been put, but the way his defence was put made it almost inevitable that he would be convicted.  The consequence of the way his defence was handled in the court below regrettably has meant that he was not afforded a fair trial.  We consider that there was an error of sufficient importance and consequence to come within the exceptional circumstances envisaged by the Court of Final Appeal where grounds of appeal of this nature are mounted.”

23. Mr Cheung emphasized that similarly, in the present case, the defence case was that the appellant had never touched PW1 and was just framed up by her.  However, in cross-examining PW1 and the closing submission, trial counsel made touching PW1 accidentally as the main defence.  According to PW1’s testimony, the appellant had touched her buttock at the same position for three times, and each time when she looked back, the appellant deliberately avoided having eye contact with her.  Also, PW1 firmly said that since the second touch, she had been sure it was not an accident and the appellant had assaulted her indecently with intent.  Trial counsel made unintentional touching a defence, which was contradictory with the appellant’s case, and what was worse, once PW1’s credibility was accepted, conviction could be said to be inevitable.  Trial counsel’s failure in cross-examining on the evidence closely related to PW1’s credibility in accordance with the defence case has indeed hindered the full disclosure of the defence case.

24. Trial counsel made an affidavit in response to the allegations of his flagrant failure of duty after being provided with the written submission prepared by Mr Cheung for this appeal on behalf of the appellant and all relevant documents, including the transcripts of the testimonies at the trial and the written statements of all people concerned. Afterwards, Mr Cheung also replied to refute.

25. Trial counsel said in his affidavit, “In order to protect the appellant’s interests and all defence available for him, I adopted accidental touching as the defence and the basis of cross-examination on PW1.”  In response, Mr Cheung said that since trial counsel had not cross-examined in accordance with the defence case on the evidence closely related to PW1’s credibility, the defence case could not be revealed fully.  Trial counsel basically had not defended the appellant according to the appellant’s case and instructions in all due diligence, but instead adopted unintentional touching as the main defence, which not only contradicted the appellant’s case and what was worse, once PW1’s credibility was accepted, convicted could be said to be inevitable.

26. Mr Cheung said trial counsel’s affidavit also showed that he had failed to appreciate the main point of the appellant’s case — it was not because the passageway within the MTR station was crowded that he had to walk slowly, but it was because PW1 was playing with the phone all along: “walking extremely slowly so that I could barely proceed”.

27. At that time PW1 was “walking hastily”, hurrying home with fairly quick paces.  Trial counsel had not only failed to discharge his fundamental duty of cross-examining PW1 on the discrepancy between the statement she gave to the police on the day of the incident (23 July 2012) and her testimony in this regard so as to expose the conflicts in her evidence, but on the contrary, while cross-examining PW1, he even confirmed her suggestion that she had been “walking hastily”, hurrying home with fairly quick paces. Trial counsel’s response in this regard in his affidavit also showed that he had confused other people’s “hasty walk” with PW1’s slow walk caused by focusing on playing with the phone and resulted in obstructing the appellant’s way.

28. Regarding the fact that he did not call the police witness to reveal the discrepancy between PW1’s testimony and her statement given on the evening in question, trial counsel in paragraph 14 of his affidavit said that PW1 at the scene had complained to only WPC9440 about the alleged illegal act committed by the appellant, and PC14362’s knowledge was only something told by WPC9440, and therefore it would be totally pointless to call PC14362 to testify.  Mr Cheung said this was wrong to say so.  This fundamental mistake showed that trial counsel simply had not read the police officer’s statement carefully. According to the statements given by PC14362 on 24 July 2012 and by WPC9440 on 28 December 2012 respectively, it was PC14362 who arrived at the scene first at 1825 hours on the day in question.  PW1 at that time first complained to PC14362 what the appellant had said to her, i.e. “told me to shut up, otherwise, he would get someone to hit me.”  Subsequently PC14362 asked the console for assistance of a policewoman.  Hence WPC9440 arrived at the scene at 1840 hours, and then PW1 complained again to WPC9440 that the appellant had said to her, “Look at you face in a basin of water.  Shut up, otherwise, I will get someone to hit you.”  WPC9440 subsequently made a report to PC14362.

29. Trial counsel in paragraph 14 of his affidavit further explained, suggesting that the record made by WPC9440 a few months afterwards (28 December 2012) was obviously not as reliable as the statement given by PW1 on the day in question.  Mr Cheung criticised that such explanation showed that trial counsel seemed to be completely ignorant about the general practice of frontline police officers in execution of their duties. It was well known that frontline police officers must record relevant information in their police notebooks contemporaneously or as soon as possible.  Therefore, the content of the statement given by WPC9440 on 28 December 2012 apparently originated from the record she made in her police notebook on the day in question, which definitely was reliable.  The record of the night in question contained in that policewoman’s notebook, which was subsequently provided by the police to the appellant’s lawyer was cogent evidence of this point.

30. Trial counsel also explained in paragraph 14 of his affidavit that he had not called the two police officers because it concerned him that their evidence might prove PW1 had made “recent complaint”, and “recent complaint” would be a point unfavourable to and adversely affect the appellant.  Mr Cheung said he found this explanation hard to understand. In the present case, it was not in dispute that PW1 had made a recent complaint.  Nevertheless, the discrepancy between the content of the recent complaint that she had made to the two police officers and her testimony, on the contrary, could help the appellant in challenging her credibility and reliability.  It’s even harder to understand why trial counsel in the course of cross-examining PW1 had repeatedly suggested and admitted that PW1’s testimony in court was consistent with the content of the recent complaint that she had made to the police officers.  The harm and adverse effect caused to the appellant by the cross-examination conducted by trial counsel was far much greater than the effect of proving the recent complaint by calling the two police officers.

31. Mr Cheung also said that the two utterances, namely “Are you playing games[?] Do you believe that I hit you[?]” and “Look at your face in a basin of water.  Shut up, otherwise, I will get someone to hit you.” are in fact plainly different. The importance of the difference was not on whether they amounted to criminal intimidation, but on the credibility and reliability of PW1’s evidence as a whole.  No matter whether the court found these two utterances amounted to criminal intimidation, the difference could definitely affect the trial magistrate’s assessment on the credibility and reliability of PW1’s evidence to a certain extent.

32. Trial counsel pointed out it was not based on the threat alleged by PW1 to be made by the appellant to her in front of the MTR staff member Mr Choi that the prosecution made the allegation of criminal intimidation, and therefore Mr Choi was not called to testify in respect of the discrepancy in PW1’s evidence.  Even though that was not the basis of the prosecution’s allegation of criminal intimidation, Mr Choi’s testimony would definitely be of utmost importance to the court in assessing the credibility and reliability of PW1’s testimony.  Mr Choi in his statement clearly and precisely related the impolite and insulting remarks that the appellant had made to PW1 without deliberately deleting any rude or generally unacceptable word or term.  Had the appellant, as described by PW1, said in front of the MTR staff member Mr Choi repeatedly for more than three times that he would hit PW1, it was believed that Mr Choi would have told the statement taker those threatening remarks without the necessity of hiding anything.  Mr Choi’s statement could show that the appellant had not made threats to PW1 in front of him as she had testified, and this would greatly weaken the credibility and reliability of her testimony. The credibility and reliability of PW1’s testimony plays an utmost important role in respect of the appellant’s criminality in this typical one-against-one case.

33. Mr Cheung also criticised that trial counsel’s affidavit failed to respond to the questions raised in the appellant’s submission specifically, which was hard to understand.  Trial counsel only explained why certain relatively unimportant instructions were not raised in cross-examining PW1, but failed to answer as to why PW1 had not been cross-examined on certain important instructions.  For example, the appellant had the following written instructions: (1) “After I passed PW1, PW1 chased after me and stepped on my feet twice.  I asked PW1 what she wanted.  PW1 said she was not in a hurry.  She wanted to play with me.  She said she could say I indecently assaulted her”, and (2) “I called the police and said I was being framed of indecent assault.”

34. In respect of this first ground of appeal, Mr Chung who had represented the respondent stated in his written submission that the appellant only concentrated on attacking his trial counsel’s defence tactics and technique before the magistrate, but overlooked the description in paragraph 8 of the magistrate’s statement of findings (already recited under paragraph 4 above), namely, although the appellant insisted there had been no contact with PW1, the magistrate might still rule out the possibility of accident beyond a reasonable doubt and draw the only and irresistible inference that the three separate touchings must be deliberate acts.

35. In addition, Mr Chung also referred to paragraph 3 of the statement of findings (the whole paragraph has already been recited under paragraph 3 above), in which the magistrate clearly pointed out the appellant’s defence.  Therefore, the respondent submitted that the magistrate clearly realized, understood and appreciated the appellant’s case.  In other words, the magistrate all along knew it was the appellant’s defence that he had never touched PW1.  Even though there was still room for improvement for trial counsel’s technique in cross-examination, the respondent did not see how the appellant could prove that the above situation had led the magistrate into making wrong findings.  The most crucial point in the relevant legal principle put forward by the appellant was that he had to prove that the flagrant failure of duty on the part of his former legal representative had deprived him of a fair trial.  It seems that the wrongful cross-examination and closing submission of trial counsel as referred to in the appellant’s written submission have not misled the magistrate or deprived the appellant of a fair trial.

36. As to “I hit you” and “I get somebody to hit you”, Mr Chung submitted that the two phrases had only minor difference.  Even if trial counsel did cross-examine PW1 on this difference, it did not seem to be sufficient to cast doubt on her credibility and reliability.  The respondent was of the view that both the above two phrases could constitute one of the elements of the offence of criminal intimidation, and the crux of the present case is whether the magistrate accepted PW1’s testimony.

37. Ms Wong has submitted in response to only the first ground of appeal.

38. Firstly, Ms Wong pointed out that on the issue of “flagrant incompetence”, the court did not simply examine with hindsight any particular tactic or approach adopted by trial counsel for the appellant at the trial in order to determine if it was most favourable to the appellant.  For example, in terms of tactic, whether the defendant or a particular defence witness should be called, different counsel or the same counsel at difference times might have different views.  These views might also be different depending on the personal experience of the counsel themselves.  Nevertheless, existence of differences did not equate with rights and wrongs.  For example, trial counsel has in paragraphs 17-19 of his affidavit explained in details the reasons for which he did not call the MTR staff member Mr Choi.  The respondent argued that more importantly, whether Mr Choi was called or not was at the material time a judgment call of trial counsel.  Current counsel for the appellant might adopt a different approach, and even the respondent or the court might also take a different approach because of different reasons. However, existence of different approaches did not mean that trial counsel had been flagrantly incompetent.  The respondent contended that unless the tactical decision was absolutely improper, the decision did not amount to flagrant incompetence.  (Words in bold type denote the part emphasized by Ms Wong, and the same is applied in the following.)

39. Secondly, it is a general principle that the appellant was bound by the way the trial was conducted by counsel representing him adopted at trial regardless of whether that was in accordance with his wish.  It was not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involved errors of judgment or even negligence.  (see HKSAR v Tsoi Sheung Ki, CACC 459/2011 (judgment dated 6 August 2013, unreported).  The crucial question was whether the appellant had the chance of having “a fair trial”, and not how severely defence counsel deserved to be criticised.  It was unlikely that anything short of very high degree of defence incompetence would ever reduce or contribute to reducing a trial to something less than a fair trial.

40. As to having a conviction quashed on the basis of criticising trial counsel for flagrant failure of duty, the court would approach such situation with a sense of realism, and not in such a way as would put a premium on briefing incompetent defence counsel at trial and then criticising them on appeal.

41. It is to be noted that the Court of Appeal has in their judgments and Practice Direction-SL4 repeatedly emphasized that appellants should not accuse trial counsel of being incompetent without palpably sound basis.  The Court of Appeal in HKSAR v Ou Jiejing at the last paragraph of the judgment has the following to say:

“95. All this stems, not from a desire to cause anxiety, but from a culture that has developed at the criminal bar in this jurisdiction whereby allegations against other counsel are too easily made with insufficient regard, unless one has been at the receiving end, to the burden that is placed on counsel (or solicitor, as the case may be) against whom the attack is launched, and to the heavy anxiety under scrutiny. It is incumbent on appellate counsel never to advance such allegations unless there is a palpably sound basis to do so; and to be ever sensitive to the gravity of such allegations and to the courtesy that should flow between counsel, dictating a fulsome apology the moment it is apparent that an assertion is ill-founded or exaggerated.”

42. The main area of the appellant’s complaint against his trial counsel for being “flagrantly incompetent” and Ms Wong’s response are set out in the following.

(1)   Defending the offence of indecent assault

43. In a crowded place where people going to and fro, accidental or unconscious touching on other people is not uncommon.  The appellant said that he “had never had any body contact with PW1”, and his trial counsel held the view that regarding the touching described by PW1, accidental contact might be an alternative defence for “never had any contact”.  The respondent said that it was a tactical decision, and unless it was absolutely improper, the decision did not amount to flagrant incompetence.

(2)   Instructions concerning the walking speed inside MTR station

44. PW1 walked from Tsimshatsui MTR station to the [West Rail] Station to go home by taking West Rail train.  It was quite a long distance, and the width of the passageway differed at various parts.  It was impossible that the speed and amount of pedestrian flow remained identical all through the way.  The former also depends on personal perception and was relative.  A person who is short of time and walking fast often finds the people in front of him walking too slow and obstructing his way.  Furthermore, the crux of the present case is not PW1’s walking speed at the time of assault, in particular where the appellant said in defence that there had “never had any contact with PW1”.  Even if descriptions on PW1’s speed of walking in her testimony and her statement given to the police were different, the court would not find her to be an incredible and unreliable witness on the basis of such immaterial matters.

(3)   Discrepancy in the threatening words

45. The appellant alleged that according to PW1’s testimony in court, the threatening words uttered by the appellant were: “Look at your face in some water.  Do you believe that I hit you[?]”  PC 14362 in his police witness statement stated that when he first saw PW1, she briefly told him her complaint against the appellant for [saying], “Look at your face in a basin of water.  Shut up, otherwise, I will get someone to hit you.”  WPC 9441 [the correct number should be 9440] also gave similar description in her witness statement.  The appellant contended that trial counsel should have cross-examined PW1 on the discrepancy in this regard and should also have called the two police officers to testify in court so as to undermine PW1’s credibility and reliability which was the crux in the present case.

46. Whether a witness should be cross-examined on certain questions, or whether more witnesses should be called so as to reflect the credibility and reliability of the witness was trial counsel’s judgment call, which was a tactical decision within his discretion.  Appeal counsel for the appellant found there were some other more appropriate ways of handling it, but it did not mean that trial counsel has been flagrantly incompetent. The respondent has noticed that the threatening words described by PW1 in the police statement three hours after the incident were consistent with what she said in court, and in fact this was where the magistrate had to consider if there was any discrepancy in PW1’s version.

47. As to what had been written down by PC14362 and WPC 9440 in their respective statements, even though it was not completely identical with what PW1 has said in court, they did not have any decisive effect on the credibility and reliability of PW1’s testimony in court, because PW1 could in no way know what PC 14362 on the day following the incident and WPC 9440 in five months had written down in their respective statements; nor could PW1 explain why the police officers gave such descriptions.  The discrepancy that the descriptions in the respective statements of PC 14362 and WPC 9440 shows might came from the error in the brief report that PW1 made to the police officers, or PC 14362/WPC 9440 having failed to record accurately even if there was no such error, and so on.  However, the appellant’s suggestion that the discrepancy caused under such circumstances would cause the magistrate not to believe PW1’s testimony in court is merely speculation, which could not form the basis for accusing trial counsel of flagrant failure of duty.

48. Furthermore, if PC 14362 and WPC 9440 were called, they would inevitably repeat the allegations made by PW1 against the appellant in court, a balance must be struck carefully between the pros and cons of repeating the allegations.  Actually, the argument that the utterances, namely “Look at your face in some water.  Do you believe that I hit you[?]” and “Look at your face in a basin of water.  Shut up, otherwise, I will get someone to hit you”, are the same type of threatening remarks is not only reasonable, but cannot categorically said to be wrong.  Trial counsel had the duty to balance the pros and cons, and the approach adopted after such balancing exercise was a tactical decision.  Unless it was absolutely improper, the decision did not amount to flagrant failure of duty.

(4)   Police statement of MTR staff member Choi Wing Fai

49. The respondent has in paragraph 4 responded and explained with examples that trial counsel had not called MTR staff member Choi Wing Fai was not equivalent to flagrant failure of duty on his part which rendered the appellant’s conviction unsafe and unsatisfactory.  The magistrate clearly indicated that the MTR staff member was stopped by PW1 for help only after the appellant had made those intimidating remarks referred to in the charge, and therefore he found what Choi Wing Fai had heard irrelevant to the charge.  Under such circumstances, trial counsel had to face the risk of calling a witness who was irrelevant to the charge, that the prosecution might bring in more charges because PW1 alleged the appellant had repeated those intimidating remarks in front of Choi Wing Fai, and the pros and cons of having the prosecution allegations against the appellant repeated, and to strike a balance carefully.  After the balancing exercise, trial counsel thought that calling Choi Wing Fai would do more harm than good and thus did not call him. This is an approach adopted by trial counsel, which is a tactical decision, and such decision does not amount to flagrant failure of duty.

(5)   Failing to cross-examine PW1 according to some important instructions

50. Now the appellant criticised trial counsel for failing to cross-examine PW1 according to some important instructions. However, whether those matters were to be cross-examined or not clearly depended on the views of individuals.  It also depended on what type of witness PW1 was and the impression that she has given to the court, and so on.  All these relied on the judgment of trial counsel made on the spot at the hearing.

51. The respondent suggested that now by looking at the transcript of the hearing in relation to trial counsel, different lawyers might be able to find out 10 flaws and make improvement.  However this kind of academic argument was not the basis acceptable to the appellate court for setting aside convictions.

Discussion and the view of this court

52. I have carefully read all Mr Cheung’s criticisms against trial counsel, the transcripts of the trial proceedings and testimonies, written instructions given by the appellant to be used as defence at trial, all witnesses’ statements provided by the prosecution to the defence at trial, the affidavit in response by the trial counsel and the written submissions of Mr Chung and Ms Wong for the respondent.  It is undeniable that the transcripts clearly show the main (or, may be said, the only) approach of trial counsel’s cross-examination on PW1 is accidental touching.  He put to PW1 that it was crowded at the material time, and that PW1 and the appellant were walking with quick paces so that the arms were swinging more extensively, and he suggested to PW1 that her three alleged touchings by the appellant were accidental and not deliberate.  Such cross-examination cannot be said to be contradicting his client’s instructions, or not a really good way of defence or alternative defence, but obviously trial counsel’s focus on the appellant’s instructions got lost as a result.  In the whole cross-examination, it was put to PW1 only once that the appellant had not touched her, and it was also put to her only once that she had said to the appellant, “Do you believe that I even accuse you of indecently assaulting me?”  It has never been put, not even once, in accordance with the appellant’s instructions, firmly that she had falsely accused the appellant for indecently assaulting her.  Nor did trial counsel say anything on false accusation in his closing submission.  On the contrary, in cross-examination, it was put to PW1 for her confirmation that she had complained against the appellant to the police, “You have just touched me a few times, you have indecently assaulted me.”  Very likely, this was the reason why trial counsel did not challenge PW1’s testimony on her alleged three touchings in cross-examination in any way, not to mention challenging PW1 on the basis of the discrepancy between PW1’s own testimony and her own statements outside court and also the discrepancy with others such as the statements of the police officers and the MTR staff member in order to attack, undermine and overturn the reliability and credibility of her testimony.

53. The only other point that trial counsel had cross-examined PW1 on was in relation to Charge 4, pointing out that the appellant was very agitated when arguing with PW1 but had never said that he would hit her.  At the final submission, it was suggested that the appellant was very agitated at the material time but did not mean to intimidate PW1 or scare her.  In the whole trial, trial counsel had not pointed out or submitted that the reason for the appellant to get agitated and furious was false accusation.

54. A competent legal representative, upon hearing PW1’s evidence-in-chief and at the latest her refusal on agreeing the possibility of “accidental touching” under cross-examination, would already be certain that PW1 would not agree the touchings to be accidental, and hence it was necessary to cross-examine on the following areas or some of them, because at least part of PW1’s evidence-in-chief was plainly inconsistent and doubtful:

(a)   Each time after being touched, PW1 looked back at the appellant for only one second, which would be difficult for her to see as many things as she claimed.

(b)   According to the woman police constable’s statement, PW1 told her that it was after she had been touched three times that she looked back at the appellant, but PW1 testified differently that she had looked back at the defendant after each touch.  Why was there such difference?  Was it for making sure that she had witnessed the appellant’s consecutive touchings on her, ruling out the possibilities of “misidentification”, “accident” and “misunderstanding”?

(c)   After the second touch, PW1 already thought that the appellant had indecently assaulted her, why did she still look down to play with her mobile phone?

(d)   PW1 testified in court that the appellant had said to her, “Do you believe that I hit you,” but she said when complaining to the policewoman (same as what she said to the policeman), “Do you believe that I get someone to hit you!”

(e)   If what was said was “get someone”, there would be no immediate danger as alleged by PW1, and logically whether there was any umbrella in the defendant’s hand was totally irrelevant.

(f)   PW1 said in her testimony that after she had got the MTR staff member Mr Choi to intercept the appellant, the appellant said “do you believe that I hit you” to her, for more than three times.  Why is there no record of “hit you” whatsoever in the entire detailed statement of Mr Choi?

(g)   On the contrary, it was mentioned in Mr Choi’s statement that PW1 had said, “I am never afraid, there are TVs and everything.”  Although this sentence arose after the appellant had allegedly made the criminal intimidating remarks, it cannot be ruled out there was strong evidence to rebut PW1’s allegation of being threatened because “there are TVs and everything” should be applicable to the location of the incident as a whole and the entire period of the case.

55. It should not be wrong originally for trial counsel to defend by adopting the approach of accidental touching, nevertheless, he had concentrated too much on this regard, and the basis of this approach, “accidental touching”, just went against the defendant’s instructions.

56. Moreover, as Mr Cheung has said, trial counsel had put to PW1 that her testimony in court was “exactly the same” as her police statement, from which two problems are revealed:

(a)   trial counsel has failed to notice the discrepancy between the statement outside court and PW1’s testimony in court;

(b)   trial counsel was not aware of the law of evidence.  In the circumstances of the present case, the court just would not accept the evidence or cross-examination basing on the consistency between the statement outside court and the testimony.

57. Mr Cheung emphasized that in the case of HKSAR v Ng Chuk Ching HCMA 17/2011 (judgment dated 29 May 2012, unreported), the court found that defence counsel had given up an approach of defence which was more favourable to the appellant and failed to show the case as instructed by the appellant sufficiently and fully before the magistrate.  To conclude, the appellant was not given a fair trial.  I agree that this conclusion is applicable in the present case.

58. Ms Wong mainly argued that trial counsel only made judgment calls when it was necessary; and if his tactic went wrong and there was an error of judgment, the appellant could not base on that to have the conviction quashed unless there was absolute impropriety.  In my view, whether a conviction should be quashed depends on whether trial counsel’s act or omission in dealing with the trial of the case has caused injustice to the trial of the defendant, or depends on whether the conviction is thereby rendered unsafe or unsatisfactory.

59. It is in my view that trial counsel’s acts or omissions, regardless of whether it was a deliberate or negligent/careless decision of not cross-examining PW1 on the difference or discrepancy in the statements with other officers concerned, have, in any event, resulted in injustice to the appellant, depriving him of a reasonable defence, which rendered the conviction unsafe and unsatisfactory.

60. Trial counsel put the defence case to the prosecution witnesses merely as a matter of formalities instead of attacking the credibility and reliability of the prosecution witnesses by way of cross-examination.  In this kind of cases, attacking the credibility and reliability of prosecution witnesses by way of cross-examination is of utmost importance.  In particular, in the present case, although the initial attempt of using “accidental” touching as an alternative defence should not be criticised, when PW1 said categorically that the appellant had touched her three times and she looked back on each occasion, it should be clear that it was hopeless to claim “accident”.  The appellant’s instruction was so clear and certain — having no body contact with PW1 whatsoever.  With no cross-examination on discrepancies and no witness on discrepancies called in order to attack PW1’s credibility and reliability, conviction was just inevitable.

61. Of course, as Ms Wong has said, cross-examination or calling witnesses did not guarantee a success to the case, however, in my view, using the abovementioned material would have a reasonable chance of success.

62. I agree with Mr Chung that the magistrate clearly realized, understood and appreciated the appellant’s version.  The magistrate had all along been aware it was the appellant’s defence that he had never touched PW1.  However, the mere knowledge and understanding of the magistrate on this point could not and did not improve the quality of the cross-examination by trial counsel on PW1.  Magistrates normally do not have the information on statements of witnesses (in particular witnesses whom the prosecution do not intend to call) outside court.  No evidence shows that the present case is an exception.  Therefore, unless trial counsel properly adduces the witness’s statement outside court in cross-examination or leading the defence witness, the magistrate would not be aware of that, not to mention the knowledge of the discrepancy or contradiction between the testimony of the witness before him and her statement outside court, and also the statements of other relevant people.  Therefore, Mr Chung’s submission could not help.

63. Before dealing with Ms Wong’s submission in response, I have to point out this.  It must be borne in mind what happened at the trial of the present case: “accidental touch” has already been turned down as an alternative defence at an early stage because PW1 testified that the same location of her buttock had been touched three times consecutively, and that each time she did look back and see the appellant nearby at somewhere behind her, who was thus confirmed to be the person who had touched her; whereas it was the appellant’s instruction that there had been no contact with PW1 whatsoever.  This was an irreconcilable situation.  Therefore, such circumstances would be very clear to any defence lawyer or counsel that if PW1’s credibility and reliability is not attacked, conviction is unavoidable.

64. Ms Wong stated that trial counsel should not be criticised for using “accidental touching” as an alternative defence, which I fully agree.  As to other act or omission of trial counsel at the trial, Ms Wong simply described it as a judgment call, or said that the appellant was bound by the way the defence was conducted by his counsel.  In my view, the question is not whether the appellant cannot lodge an appeal on the basis that trial counsel has made a wrong judgment or error of judgment or tactical mistake, but the correct principle and the essence is whether the appellant was given a fair trial because of his defence counsel’s act or omission, no matter what it is called.  From another point of view, did the appellant’s convictions become unsafe or unsatisfactory as a result?  See paragraphs 15 and 49 in the judgment of Chong Ching Yuen.

65. Of course, I agree that the appellate court has to approach this complaint of “flagrant failure of duty on the part of the lawyer” with a sense of realism, and not in such a way as would put a premium on briefing incompetent defence counsel at trial, and also not to encourage lawyers in charge of appeals to raise such ground improperly.

66. I now deal with the points in Ms Wong’s submission one by one. Trial counsel has used “accidental touching” as the alternative defence, which I agree was not a failure of duty.

67. As to PW1’s pace, Ms Wong said that it was not crucial, and that the magistrate would not find PW1 an incredible and unreliable witness because of any possible discrepancy on the description on such pace.  With respect, I do not agree.  According to the appellant’s instructions, it was on this issue of pace that the dispute between PW1 and him started, and thus it is not immaterial.  Moreover, according to PW1’s statement and testimony in court, she also agreed that before the first touch all the way to the time after the second touch, she was continuously playing with the phone.  This is consistent with the appellant’s instructions.  Bringing out this point properly does not necessarily cause the magistrate to find PW1 an incredible and unreliable witness, but can lay a strong foundation for the appellant to explain that the two parties started the dispute because PW1 was playing with the phone and walking slowly.  Of course, it does not mean that solely by bringing out this point properly, the magistrate would acquit the appellant, however, we cannot say it is not an important issue.

68. In respect of the difference on the intimidating remarks, Ms Wong stated that whether PW1 should be cross-examined and the two police officers be called was merely trial counsel’s judgment call and tactical decision. I do not agree.  The tactical decision was using “accident” as an alternative defence, which had however failed long before.  Without conducting the cross-examination by making use of the discrepancy between PW1’s testimony and the statements of other related people, such as the two police officers, simply means giving up the chance of attacking PW1’s credibility and reliability, and conviction would be inevitable, which has already been explained above.

69. Furthermore, the statement of the MTR staff member Mr Choi, was in great details but there was no record of the defendant having uttered the words of “hitting people”, which plainly contradicted PW1’s testimony that the appellant had uttered those words for more than three times.  Therefore, obviously, trial counsel should cross-examine PW1 and point out that at all the material time, the MTR staff member was present together with her and the appellant, and so should be able to hear the intimidating remarks made by the appellant, including the words of “hitting people”.  Of course, PW1 could say that she did not know, but calling Mr Choi to testify to prove this point was nothing difficult.  Ms Wong suggested that if trial counsel called an irrelevant witness, he would have to face the risk of having the witness repeating the appellant’s intimidating words alleged by PW1, which could strengthen the basis for the prosecution to bring in more charges and would do more harm than good.  With respect, I cannot agree.  PW1’s testimony had already made serious accusation against the appellant and constituted the proof to Charge 4.  If her reliability or credibility were not undermined, conviction would be inevitable.  Ms Wong also said that this was a tactical decision and that such decision did not amount to flagrant failure of duty.  I cannot agree with this either.  The crucial question is whether, in all the circumstances, the appellant has been given a fair trial.  If Mr Choi was called, it would be irrelevant even if he unexpectedly repeated the intimidating remarks alleged by PW1, because PW1’s testimony had already caused serious harm to the appellant, the harm is done, so to speak.

70. In the whole transcript of the testimony of the trial, I can hardly see how trial counsel had really cross-examined PW1.  The course of his cross-examination only focused on asking questions to establish his alternative defence of “accidental touching”, and he just put the appellant’s case briefly as a matter of formalities (without even putting fabrication).  He did not make use of the consistency between PW1’s testimony and the appellant’s case to build up a standpoint for the appellant’s case, or to create any reasonable doubt in the prosecution case.  Nor did he rebuke PW1’s testimony in any regard.  And what was worse, it was even put to her that her testimony was consistent with her statement outside court.  In my judgment, this is an incompetent cross-examination, resulting in the appellant failing to have a fair trial, which cannot simply get by under the veil of excuses such as misjudgment or tactical error.

71. In the circumstances of the present case, it really gives an impression that the appellant had not been given competent defence such that he did not have a fair trial, and the convictions were rendered unsafe or unsatisfactory.

Second ground of appeal

72. This ground of appeal suggests that the magistrate, when having no or no sufficient evidence in support, had overlooked the inherent probability of the facts in the present case and opinionatedly and wrongly found the appellant’s testimony unreasonable and unbelievable.  The magistrate only concluded in his oral verdict that “what the defendant said is not the truth, and his testimony is unreasonable and unbelievable” without giving any reason.  Mr Cheung referred to the case of HKSAR v Kevin Egan [2010] 13 HKCFAR 314, in which Litton NPJ said:

“When a tribunal in giving judgment recites the testimony of a witness and says ‘I accept him as a truthful witness’, this is not evaluation: It is a conclusion which might be reached at the end, after weighing the relevant evidence.”

73. Mr Cheung pointed out that the magistrate in his subsequent statement of findings added in footnote 1 (recited under paragraph 4 above) in an attempt to explain.  However, the far-fetched and unconvincing explanation also reflected that the magistrate had adopted double standards in dealing with the testimonies of the female victim and the appellant.

74. Mr Cheung pointed out that, as the facts agreed by both sides described, typhoon signal no. 8 had been issued and many people were hurrying to take transport to go home (see the first sentence in paragraph 2 of the statement of findings).  Although people around might be dissatisfied with PW1’s slow pace, in the circumstances where the weather was so bad, most people would be most anxious to go home and might not be willing to stop to criticise or express dissatisfaction against somebody who was the centre of attention as the magistrate speculated.

75. More importantly, under such circumstances, pedestrians who were walking were unlikely to concentrate on looking at PW1 and the appellant and might not notice if the appellant’s hand touched PW1, hence even if PW1 chose to fabricate and accuse the appellant of indecently assaulting her, by-standers would be in a difficult position to determine who was right or wrong.  Therefore, the magistrate’s inference that if PW1 falsely accused the appellant for indecently assaulting her in front of so many people, “the misdeed would come to light instantly, and even the most foolish person would not do that” was mere speculation.

76. The statement of findings also reflects that the magistrate did not apply the same standard when dealing with PW1’s testimony. If, as PW1 testified, she had looked back at the appellant after her buttock had been touched, which was more than once, and the appellant deliberately avoided having eye contact with her, the appellant apparently knew PW1 had been aware of his intention of indecently assaulting her.  In such a case, would the appellant be stupid enough to choose an alerted target and indecently assault her again instead of getting another one?  Would PW1 have continued to play with the mobile phone to allow the appellant a chance of indecently assaulting her again?  If the appellant, as the magistrate said, “Having been caught by the other side for indecent assault and realizing that [he was] in the wrong” (see footnote 4 in the statement of findings), then after PW1 had carelessly stepped on his shoe backs, would he be so foolish as to “blame the victim before she spoke out”, scold her loudly and draw the attention of others, which in turn incite PW1 to make the accusation of indecent assault?  If, as PW1 testified, the appellant had indecently assaulted her for three times, then by the logic of the magistrate, how would such a disgusting person who was the centre of attention possibly be bold enough to utter intimidating words in front of so many people to try to scare PW1?  “Bearing in mind the standard of Hong Kong people today and their culture of being righteous, it is definitely not surprising for someone to step forward and tell the truth.”  How would the appellant, being in front of so many people, possibly be so foolish as to try to scare the victim with threatening words from disclosing his misdeeds?  How come would the appellant have taken the initiative to dial 999 to call for the police and also phoned the news agencies to play up the matter?

77. On the other hand, looking at the appellant’s version: PW1 became discontented because the appellant had complained her for obstructing the forward movement of pedestrians by playing with the mobile phone, and subsequently further scolded her in front of many people after she had stepped on his shoe backs, which incited her to choose to make the allegation of being indecently assaulted.  The appellant’s version has nothing illogical and accords with the inherent probability of the matter.

78. In response to this ground of appeal, Mr Chung said that the magistrate’s statement of findings prepared subsequently definitely contained more details than his oral verdict, and adding the footnote to supplement information by the magistrate was also reasonable and acceptable. The appellant’s criticism of the magistrate for having adopted double standards on the basis of this reason was only his personal speculation and should not be accepted.

79. I agree with Mr Cheung’s argument, which has not been undermined by the respondent’s reply.  The magistrate, without any or any sufficient evidence in support, overlooked the inherent probability of the facts of the present case, and in totally rejecting the appellant’s testimony, failed to provide any reasonable ground to support such conclusion.

Third ground of appeal

80. The third ground of appeal contends that in respect of the mens rea of the offence of criminal intimidation, the magistrate had failed to give sufficient consideration to the environment at the material time, and without sufficient justification wrongly found that the appellant “aimed at terrifying the other party, making her give in and shut up and dare not make any accusation, which was not blurting out something at a furious moment with no intention of scaring the other party.”

81. The magistrate inferred that when the appellant said “do you believe that I hit you” to PW1, he had the intention of terrifying PW1, making her give in and shut up and dare not make any accusation (see paragraph 9 of the statement of findings recited above).

82. However, Mr Cheung contended that, in PW1 testimony, the appellant not only said agitatedly in front of many people, “Look at your face in some water, do you believe that I hit you,” he even, after being intercepted by the MTR staff and before the arrival of the police, repeatedly said to PW1 in front of the MTR staff, “Are you playing games[?]  Do you believe that I hit you[?]  If you want to play, I will take you on.  Do you have enough money to engage a lawyer?”  And he even repeated that for more than three times.  Obviously, it was unlikely that the appellant would really take action to hit PW1 in front of so many people (according to PW1’s testimony, the appellant left after uttering those words for the first time), and it was also unlikely that he would repeat those words in front of the MTR staff with the intention of terrifying PW1, making her give in and shut up and dare not make any accusation. Even if the appellant did make the remarks of “do you believe that I hit you”, it was absolutely possible that he just blurted them out impulsively instead of trying to terrify PW1.

83. In addition, according to the appellant’s testimony, he immediately dialled 999 to call the police and waited for their arrival, and during the interim, he notified Oriental Daily and invited reporters to come to assist, take photos and collect evidence, and also, after the arrival of the police, he asked the police officers to keep the video-recordings of the closed-circuit camera.  How would he possibly have the intention of scaring PW1, making her give in and shut up and dare not make any accusation?

84. Mr Cheung referred to the explanation given by McMullin J in page 196 of Lo Tong Kai v The Queen [1977] HKLR 193:

“…the questions of the intention with which the threat is made and of the effect which it has produced upon the person to whom it was made or would be likely to produce on a ‘firm man’ are the relevant questions and they will fall to be determined by reference to the particular circumstances affecting both the persons involved at the particular time when the words were spoken. To my mind therefore it was of the greatest importance that the court should have considered whether the words used were ‘wild and whirling words’ uttered in exasperation by a man driven beyond the point of endurance by opposition offered to him in his legitimate rights as owner of premises, and signifying nothing more than an instinctive outburst of spleen, or whether they were uttered with a genuine intention of causing fear or were, in the circumstances of their utterance, likely to produce that effect.”

85. In respect of this ground of appeal, Mr Chung submitted that according to paragraph 2 of the statement of findings, before saying “do you believe that I hit you”, the appellant had said agitatedly to PW1 that “You don’t have to step on me, do you[?]” and swore. The respondent argued that the appellant should not take words out of context and decide that the appellant had no mens rea in reliance of only one sentence.  The magistrate had considered the evidence in its entirety before returning a verdict of guilty on Charge 4.

86. As to the appellant’s argument that it was unlikely for him to really take action to hit PW1 in front of so many people or repeat the intimidating phrase in front of the MTR staff, the respondent contended that these matters as raised by the appellant were all speculations made in relation to the immaterial period after Charge 4 had taken place, which was not sufficient to prove that the magistrate was wrong in inferring the appellant had the intention of scaring PW1, making her give in and shut up.

87. After intimidating PW1, the appellant dialled 999 to call the police and subsequently invited police officers to keep the video-recordings of the closed-circuit camera.  The appellant have such right and freedom.  The respondent said that all such acts took place after the intimidation on PW1 and were not the key issue of the present case.

My opinion

88. The third ground of appeal is not justified, and I do not accept.

89. However, the first and second grounds of appeal do stand.  I agree with Mr Cheung that since the defence was conducted by trial counsel in a way that had given an impression that the appellant did not have a fair trial, his convictions were unsafe or unsatisfactory.  The failure of duty on the part of trial counsel mainly related to the defence in respect of Charges 1 to 3.  However, if Charges 1 to 3 were found not guilty, then the basis of Charge 4 became not stable or even ceased to exist.  As to the second ground of appeal, comparing the appellant’s testimony and the facts in his instructions with those in PW1’s testimony, both accord with the inherent probability of the matter.  Hence solely by considering inherent probability, the possibility of the facts described by the appellant cannot be ruled out. Therefore, in the present case in its entirety, the prosecution case can hardly meet the standard of proof beyond a reasonable doubt.

Conclusion

90. In light of the above reasons, the appeal is allowed with convictions quashed and sentences set aside.  It is not necessary to deal with the appeal against sentence.

Retrial and costs

91. At the conclusion of this appeal, both sides put forward their respective applications in case that I would allow the appeal against conviction.  Firstly, the appellant applied to me for costs of the trial, and since he was then represented by counsel assigned by the Duty Lawyer Scheme, he was required to pay $460 only.  Apart from this, Mr Cheung did not ask for costs of the appeal because he was instructed by the Director of Legal Aid.

92. On the other hand, Ms Wong sought an order of retrial because all three grounds of appeal did not affect PW1’s credibility, and the court had the duty to administer justice and should not let wrongdoers go freely.  However, Mr Cheung argued that the appellant had been put in jail for 18 days before he was granted bail pending appeal, which was more than the term of two weeks’ imprisonment that the magistrate had imposed on him in respect of the first three offences of indecent assault.  PW1’s testimony in relation to Charge 4 was inconsistent with the two police officers’ statements, and hence the prosecution evidence was not that strong.  The appellant has already undergone the trial and this appeal, which has at least caused him anxiety, and thus it would not be fair to require him to go through it again. Furthermore, the present case allegedly happened on 23 July 2012, a retrial, if any, would take place two years after the incident, which would be undesirable and unfair.  On the other hand, Ms Wong also argued that the content of the two police officers’ statements did not affect the credibility of PW1’s testimony in respect of the intimidating words uttered by the appellant.

93. From my ruling on the second ground of appeal, it can be seen that the inherent probability of the evidence adduced by both parties are almost on a par, and one just cannot determine from the evidence which side has given true facts while the other side must be lying.  Therefore, in my view, for the prosecution to prove the guilt of the appellant beyond a reasonable doubt, there would be a lot of hurdles to overcome and would very likely fail.  In light of this reason, I refuse the application for a retrial, and I also order that the appellant shall have the costs of the trial in the sum of $460.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law