HKSAR v. LAW WAI MAN

HCMA 583/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 583 OF 2006

(ON APPEAL FROM KTCC 8560 OF 2005)

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J U D G M E N T

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1.  The Appellant appeared on 27 March 2007 appealing against his conviction on two charges of Indecent Assault, contrary to section 122(1) of the Crimes Ordinance, Cap. 200. 

2.  The Appellant was represented on appeal by Mr David Boyton, who had appeared as trial counsel.  Mr Melwaney, Senior Government Counsel, appeared for the Respondent.  The Appellant had pleaded not guilty before Mr Stephen Smout, Principal Magistrate, and the case was tried over a period of 6 days.

3.  On conviction the Appellant was sentenced to 7 days’ imprisonment on the 1^st charge and 6 months’ imprisonment on the 2^nd charge; the sentences were ordered to be concurrent.  Having heard counsel and considered the case, I dismissed the appeal against each conviction.  I said I would hand down my written reasons at a later date and now I do so.

Facts

4.  The victim, Miss FUNG Yee-kam, Cathy (“PW1”), was employed as a beer promoter for the San Miguel Corporation and at the relevant time had worked for 5 days at a restaurant in Cheung Sha Wan, namely, 1, 3, 4, 5 and 6 November 2005.  Her working hours were from 7 p.m. to 10 p.m.  There was no dispute about identity.  The Appellant was not an employee of the restaurant, but was described by PW1 as being present there and “assisting” the boss by socialising with clients.  She had seen him on previous occasions at the restaurant and knew that he was entitled to put drinks on a tab, without paying for them immediately.

5.  The first incident occurred when PW1 went into an office at the restaurant and was followed by the Appellant.  PW1 had gone to the office because one of the restaurant bosses had instructed her to fetch dice cups which were stored there.  The Appellant pressed against her, sat down, held her in his arms and forced her to sit on his lap.  He kissed her neck twice and tried to kiss her on her face, but she dodged him.  At that point, a female boss of the restaurant knocked on the office door and this enabled PW1 to escape. 

6.  She returned to work for about 15 minutes, by which time it was nearly time for her to stop working.  As she did not propose to change out of her uniform, she went to the office again to collect her bag and her clothing.  She first looked to see if the Appellant was in the office; as he was not, she entered and closed the door.  The Appellant entered immediately after her and locked the door.  He held her with his arms, put his hand under her skirt and tried to insert his hand into her underpants.  He succeeded in inserting a finger into her vagina and thrusting 4 to 5 times, having managed to move the crotch of her underpants aside.  PW1 said she did not have sufficient strength to push him off, but protested about what was happening.  She was scared particularly because the Appellant told her he was “hard”.  She took that to mean he was aroused sexually and she feared that he would try to rape her.  She pushed him away with all her strength and ran out of the office after grabbing her bag. 

7.  First she hid in the toilet from where she telephoned Mr YU Tung-yin(“PW3”) her San Miguel supervisor and reported what had happened in the second incident; she did not mention the first incident.  PW3 advised her to leave.  According to PW1 she left by the rear staircase.  Shortly afterwards her superior, Miss NG Wing-yan (“PW4”), rang her and told her that it was for her to decide whether or not to call the police.  Eventually PW1 telephoned the police and waited for them outside a public toilet in Un Chau Street.  Although the police asked her to return to the restaurant when they arrived, PW1 was too afraid to do so and they did not press her.

8.  The victim said she did not consent to the Appellant’s actions in either incident.  She did not drink any alcohol that evening.  She did not know which finger the Appellant used in the second incident, but knew it was a finger of his right hand.  PW3 and PW4, PW5 (WPC 56866) each had had contact with PW1 shortly after the second incident; all gave evidence that she was, or had been, crying and was upset. 

9.  The Magistrate found there was a case to answer on each charge.  The Appellant exercised his right not to give evidence and called a defence witness, Mr CHIN Kwok-wai (“DW1”).  He was a partner of the restaurant and the person in charge of book-keeping and accounts.  He produced a table showing a list of bills for the periods during which PW1 had worked.  It was suggested that she had exaggerated the number of bottles of beer that she had sold in order to boost her commission earnings.  According to DW1, PW1 had reported to him at the cashier counter when she left the restaurant so that he could sign her reporting sheet and he had either chopped it, or signed it.  PW1 then stopped work formally and DW1 claimed she left by the main staircase, the one used by customers.  DW1 said there was nothing special about PW1’s demeanour.  At the time she approached him she was not crying and made no complaint.

Grounds of Appeal

10.  There were two Amended Perfected Grounds of Appeal against conviction.  Ground 1 was that the Magistrate erred in law in failing to properly evaluate the evidence, because his resolution of a material discrepancy was factually incorrect.  This related to an alleged contradiction about the victim’s demeanour after the second, more serious, assault. 

11.  Ground 2 was an allegation that the Magistrate erred in law and/or on the facts, by failing to properly evaluate the evidence, in particular, he accepted numerous discrepancies in the victim’s evidence as the product of honest mistake, lapse of memory, or mishearing, which undermined the high standard of proof required of the prosecution.  For that reason, the convictions were unsafe and unsatisfactory. 

12.  In support of these grounds, counsel for the Appellant, examined all the discrepancies and matters that had been brought to the attention of the Magistrate at the trial.  Discrepancies complained of included whether or not PW1 was likely to have presented her record sheet for chopping or signing if she was distressed by the incident; whether her demeanour at the time was normal, or distressed and differences between her statements to police and her evidence.

13.  Counsel for the Appellant submitted was that there were so many discrepancies that they must have affected the overall reliability of PW1’s evidence.  There were discrepancies in the evidence between what the victim said had occurred and what other witnesses said they had been told by the victim.  There were also allegations that PW1 had told blatant lies about what had happened.  Further her credibility was suspect as she was working as a beer promoter without the knowledge of her family and, allegedly, (though not demonstrably), exaggerating the figures of the beer she sold. 

14.  In his Statement of Findings, the Magistrate canvassed in detail the evidence and adverted to his oral reasons for verdict delivered at the end of the trial.  He was well aware that PW1 was the most important witness and that credibility was the only issue.  He gave himself proper directions on the evidence of recent complaint.  He examined with care the discrepancies between PW1’s oral evidence and her statements to the police.  He did not consider such discrepancies remarkable or significant, nor did he find they detracted from her credibility.

15.  As to demeanour, in particular, he examined that factor and found that PW1’s demeanour after the first incident, which to other people, was apparently normal and calm, was not a surprise.  The first incident; although unpleasant, was of shorter duration and less frightening.  The second incident was far more serious and caused her much greater distress, some of which was obvious to people who had seen or spoken to her after that incident.  The Magistrate dealt with the discrepancies, considered their weight, and was satisfied that PW1 was a credible witness. 

16.  The Magistrate concentrated also on the inherent probabilities of PW1’s actions and behaviour.  He accepted that she was sufficiently disturbed so as not to remember the details of how she had recorded her day’s work at the end of her shift.  He was aware that it was PW1’s last day of work; that she required payment for that work and he considered how this might have affected the way she behaved after the incident.  It was a significant loss if she forewent her earnings.  He noted the allegations about her exaggerating her sales figures and her failure to tell her family about her work as a beer promoter, but found, as he was entitled to do, that those matters, even if true, did not affect her credibility in relation to the indecent assault.

17.  The evidence indicated that the Appellant apparently was in a privileged position, vis-a-vis the staff and/or the partners of the restaurant.  This was shown, for example, by his being permitted to put drinks on a tab.  He was considered a quasi-employee in terms of entertaining other patrons. 

18.  PW1 had been working at the restaurant for 5 days and was aware of this.  That knowledge too may have coloured her reactions and her reluctance to report the incident to the restaurant management.  DW1 was a partner of the restaurant and it was through him the allegation about inflated sales figures was made. 

19.  Having considered the Magistrate’s Statement of Findings; the manner in which he dealt with the discrepancies; his reliance on the inherent probabilities of events that unfolded, I am satisfied that he had in mind the matters raised by the defence and gave his decision after proper resolution of them.

20.  The matters submitted on appeal and those argued at trial were almost identical.  This appeared to be an attempt to retry on appeal issues that were within the Magistrate’s province and which had been resolved satisfactorily by him, albeit that they did not accord with the Appellant’s view of events.  I was satisfied there was no basis on which I could interfere with this conviction.  Accordingly the appeal against conviction was dismissed.