HKSAR v. WONG CHUNG BAO

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 1108/97

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J U D G M E N T

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1. The Appellant appeals against his conviction in the Magistracy on a charge of indecent assault on a girl under 16.

2. The victim, a 14 year old girl, was walking home when her right buttock was pinched by the Appellant who was walking behind her. The defence case was that this was an accident that had occurred when the Appellant's right hand bumped into the PW1 accidentally or carelessly because he was walking fast and the path was narrow. Immediately after the incident the victim hit the Appellant with a bag of books that she was holding in her hand and Appellant, without saying or doing anything more, turned and ran away and was caught soon after by two passers-by who were alerted to the incident by the victim.

3. After being caught the Appellant denied that he indecently assaulted the girl saying it was a misunderstanding, that he had carelessly bumped into her and only ran away because he was frightened. When the police came Appellant was arrested and cautioned and he repeated that he had just carelessly bumped into the girl once with his hand. The issue that had to be resolved by the Magistrate was whether this was an accidental or an intentional touching.

4. The Magistrate in a careful statement of findings set out the evidence as it had been elicited for the prosecution and the defence. He was aware of the matters on which he had to be satisfied and on which he had to direct himself. He took into account the question of PW1's age when assessing her evidence. He bore in mind that allegations of sexual offences were easy to make and difficult to refute and was aware too of the desirability of seeking corroborative evidence.

5. Counsel for the Appellant stated that there were 3 pieces of evidence pointing to the touching being deliberate rather than an accident; the nature of the touch; the position of the touch and the Appellant's running away but argued that the Magistrate had not assessed them properly.

6. The Magistrate considered that it was not safe to rely solely on the victim's description of the feeling that she experienced in deciding whether or not the pinch was intentional or accidental. He considered additionally, as he was entitled to, the Appellant's behaviour immediately after the assault. It will not have escaped the Magistrate that Appellant was a man in his 30's who was in a responsible professional position. In the circumstances of an accidental bumping such as he described, it would have been perfectly within his powers simply to make an appropriate apology to the girl. The victim described instead his immediate flight and his refusal to stop. The Magistrate was aware that such flight was not proof of guilt in itself but that it could support the non-accidental nature of the touching in certain circumstances.

7. The Magistrate took into account all matters and was satisfied that Appellant's pinch was not accidental. He had the advantage of seeing and hearing the witnesses. He was entitled to draw the inferences that he did from the evidence before him.

8. There is nothing unsafe about the conviction. The appeal against conviction is dismissed.