HKSAR v. NG YUK YAM

HCMA264/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.264 OF 2006

(ON APPEAL FROM KCCC 162 OF 2006)

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J U D G M E N T

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1. The appellant was convicted after trial of one charge of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap.200.  He was fined and he now appeals his conviction. 

The prosecution case

2. At the material time, PW1 was stepping out of a shop located at the address set out in the particulars of the charge.  She said that the appellant, who was walking from her right to her left, deliberately used his hand to move upwards on the inside of her thigh.  She demonstrated in court the upward movement of the open hand up her thigh towards her private parts.   

3. PW1 then grabbed the appellant.  Thereafter an oral altercation ensued, resulting in her making a report to the police.  PW1 told the court that prior to police arrival, the appellant had made a number of attempts to escape and she held on to him and threatened to shout loudly.  Eventually the appellant stood still, and said, “I'm sorry.  I just stroked you once, I did not do it on purpose.  Please give me a chance.”  Shortly afterwards the police arrived and the appellant was arrested.

Defence case

4. The appellant elected to give evidence and told the court that he was a married man with a clear record.  He came to Hong Kong in 2003 and he said that at the material time he had received a phone call and was in a hurry to go home.  He claimed to be holding a bottle of water in his left hand and a mobile phone in his right hand and accidentally collided into PW1.

5. The appellant came before me today to seek an adjournment in order to get representation either privately or by the Legal Aid Department.  I noted that the same application was made before Beeson J on 28 April 2006, resulting in an adjournment granted but a warning was specifically given to the appellant to seek legal aid assistance as soon as possible.  He was warned that if he should appear in court on the next occasion without a lawyer he would have to deal with the matter himself.  He did apply for legal aid in May but his legal aid was refused.  He came before me this morning unrepresented and sought similar application for adjournment.  His application for adjournment was refused.  As he has complained that he did not know English and was not aware of what was in the Statement of Findings, I had a court interpreter to assist to interpret to him the whole Statement of Findings in order for him to formulate his grounds of appeal.

6. Subsequently the following grounds of appeal were raised : 

(1) that the magistrate erred in accepting PW1's evidence when what she said was inherently improbable in view of the congested condition of the street at that time; and

(2) that the magistrate should not have rejected his evidence.

7. Ms Sin for the respondent replied that the magistrate had seen and heard the witnesses; that he was in a best position to adjudge their credibility, which he had done with proper evaluation.  It was submitted that there was nothing perverse in his findings of fact.

My judgment

8. This is a case that turns on the credibility of PW1 and the appellant.  The magistrate has seen and heard the witnesses, he was in a far better position to form an opinion as to their respective credibility.  According to the magistrate, the appellant was asked on a number of occasions to explain how the collision came about.  The magistrate found that the appellant “seemed unable to do so and speculated that his mobile phone must have somehow come into contact with the victim, without describing exactly how that was possible”.  Furthermore, the appellant gave evidence that he told PW1 that perhaps his mobile phone had come into contact with her thigh but that was never put to PW1 whilst PW1 gave evidence. 

9. The magistrate's assessment of credibility was based on sound observation and reasoning.  He had borne in mind the burden and standard of proof and had taken into account the appellant's clear record in considering the appellant's evidence.  The version put forward by the appellant, that is, an accidental collision, was against common sense and inherently improbable.  The magistrate was entitled to find PW1 to be an honest and reliable witness and reject the evidence of the appellant. 

10. There is nothing in this appeal.  I dismiss this appeal and affirm the conviction.