HKSAR v. YEUNG MING LUP

HCMA 264/2025

[2026] HKCFI 2440

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 264 OF 2025

(ON APPEAL FROM ESCC 502/2025)

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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 count of indecent assault[1]. He was sentenced to 14 days’ imprisonment and was granted bail pending appeal.

2.  The appellant now appeals against conviction.

Prosecution case

3.  In this case, the prosecution called two witnesses, namely the victim female X (PW1) and Mr. Chan Tuen San (PW2).

4.  By way of admitted facts, the identity of the appellant was not in dispute. It was agreed that on 18 September 2024 at about 4:40 p.m., the appellant and X were at Leisure and Cultural Services Department office, Chai Wan Park, Yee Shun Street, Chai Wan, Hong Kong. They were colleagues at the material time. At about 5:50 p.m. on the same day, WPC 35443 arrested and cautioned the appellant for the offence of indecent assault. Under caution, the appellant said “I helped her to tap her back, knead shoulder, it was on her instructions” (“我幫佢揼背脊，摙膊頭，係佢吩咐嘅”).

5.  X’s evidence was that she was on duty with the appellant at the material time. They worked in the same office. At around 4:40 p.m., the appellant came over to talk to X on his chair with wheels. He was next to X on her right. X was sitting with normal sitting posture and the appellant inserted his hand in between of X’s right inner thigh outside her trousers and stopped for two to three seconds and touched two to three times. The appellant’s hand also moved forward and backward on X’s thigh. X then pushed the appellant away and said “don’t touch me again. You have already assaulted me.”  The appellant replied, “would it not be fine for even a touch?”  The appellant then slid his chair back to the counter. At around 4:45 p.m., the appellant approached X again and touched her back by inserting his left hand inside X’s two layers of garment as shown in Exhibit P2(3) and moved upward to the buckle of X’s bra. There was a touch of skin. The appellant did a circular movement with his left hand and stopped at the buckle of X’s bra for two to three seconds and X stood up. The whole process lasted for around 3 seconds. X then shouted loudly “indecent assault” to call Mr. Chan (i.e. PW2) to come over. Mr. Chan’s office was right next to the booking office where the appellant and X were. X then requested to call the police. X had not given any consent to the two touches.

6.  Mr. Chan was the supervisor of both the appellant and X. On 18 September 2024 at around 4:40 p.m., while he was working in the managerial office, he suddenly heard that X shouted “Mr. Chan” and he then went to the booking office and asked what had happened. When he arrived, he saw X was hiding her head in her arms with her forearms on the desk and she was crying. The appellant sat on the wooden chair on the left and was approximately 2 metres away from X. X said the appellant touched her and Mr. Chan asked the appellant if something like that happened. The appellant did not reply him directly. As X was emotional, Mr. Chan asked X to go to the managerial office to calm down. After about 7 to 8 minutes, X calmed down and Mr. Chan asked X what had happened. X said the appellant touched her hand, her waist and her thigh. He thus asked a female security guard to accompany X. Then he went back to the booking office to question the appellant who indicated that he did not do so. Mr. Chan suggested X to consider reporting to the police but X was emotionally unstable and could not make decision. Later, X requested Mr. Chan to call the police for her.

Defence Case

7.  After the magistrate ruled a case to answer, the appellant elected not to give evidence or call any defence witness. His case was as reflected in his reply under caution.

Magistrate’s findings

8.  The magistrate reminded herself the relevant directions applicable to the consideration and assessment of evidence before reaching the verdict[2]. She also reminded herself the elements of the offence[3]. Mr. Chan’s evidence was not challenged by the defence. His evidence was accepted by the magistrate as truthful and reliable[4].

9.  X’s evidence was challenged by the defence. The magistrate found X’s evidence remained unshaken under cross-examination and accept her evidence as truthful and reliable[5]:

“14. Dealing first with the evidence of X, having carefully considered her evidence and each of the challenges raised by Mr. Boyton, I found her ability to express herself was limited, and often she needed to use her body gesture to express. However, to be fair to her, as a civilian witness in particular she did not impress me as a well-educated person, I found that she had already tried her best to explain to the court the entire incident.

15. In gist, there were two allegations of touching by the Defendant at two different periods of time. In relation to the 2^nd touching, all along X’s evidence was that the Defendant’s left hand inserted into her clothing and moved upward to the buckle of her bra. During examination in chief, the prosecution suggested to X that the hand was inserted from the bottom of the t-shirt and X agreed to that. When I looked at the evidence as a whole, X did say a couple of times that the Defendant touched up to the buckle of the her bra. If the Defendant’s hand was inserted from the bottom, it would be logical there was contact of the waist area up to the bra buckle as according to X, there were circular movements at her back with her demonstration on a piece of paper when X was cross-examined by the Defence that when she made the complaint to the police and PW2, she said the Defendant indecently assaulted her waist. In view of the above, I found there was no inconsistence as to the body parts being touched and the complaint lodged by X.

16. Concerning the evidence about whether the Defendant sat on the wooden chair. I noticed that X’s initial evidence was the Defendant never sat on the wooden chair but later when she was asked again, she said the Defendant sat on the wooden chair when he came back on duty at around 2:45pm and changed to the black chair with wheels after he poured water. She also said that the Defendant sat on the wooden chair after the 2^nd touching. Despite that, her evidence in relation to the Defendant sat on the black chair with wheels during the two incidents of touching was consistent throughout.

17. Another criticism from the Defence was that according to X, after the 2^nd touching, as soon as X stood up, the Defendant rolled away, but later she changed to he rolled or walked away back to the counter. X agreed that PW2 would have seen the Defendant was walking away when he came to the booking room. This contradicted to what PW2 said the Defendant and X were 2 metres apart when he came into the booking room. X was already rest her forearms on the desk crying but not standing up. I found the discrepancies were immaterial as this depends on when PW2 came into the booking room. Considering Exhibits D1 and P2(1-2), the distance from where X sat and the wooden chair was not far and it would not take much time to reach the wooden chair from X’s desk. Even if there were 2 metres apart, it would only take a few steps to reach to the other end. Further, according to X, as soon as she stood up and shouted, the Defendant immediately went to the wooden chair.

18. I cannot disregard the fact that according to PW2, X was very emotional at that time, she had been crying for 7 to 8 minutes before she calmed down and it is understandable that she may have confused with what everyone was doing when PW2 came into the booking office. That also explained the discrepancies between X and PW2 whether she had shouted “indecent assault” or “Mr. Chan” and where their conversations took place. About reporting to the police, despite X was undecided initially she did report to the police on that day.

19. The Defence also criticized X’s evidence that she had mentioned telling Mr. Chan she did not sleep when she made the complaint about being touched by the Defendant to Mr. Chan. The context in relation to this was that X was repeating the conversations among herself, the Defendant and Mr. Chan when Mr. Chan came into the booking office. According to X, the Defendant denied indecently assaulted X to Mr. Chan and he only gave X a massage. X said that she was working and she did not sleep. Defence Counsel then asked X, “you did not sleep.” X replied, “I did not sleep. I did not sleep the entire day.” X said she told Mr. Chan she never slept. I found her answer about she did not sleep was neither here nor there. The way she described how she was touched was detail and her descriptions of the incidents were unshaken under cross-examination. That would not constitute any doubt to her evidence.”

10.  Regarding the appellant’s admissions under caution, the magistrate’s assessment is as follows[6]:

“22. I have considered the Defendant’s admissions said under caution, “I helped her tap her back and knead her shoulders.”, which was a mixed statement. I have reminded myself the principle of R v Sharp[7]. In addition, although a judge of fact was entitled to attach less weight to the exculpatory parts, it absolutely did not mean that no weight could be attached to them automatically: see HKSAR v Brook Edward Joshua[8].

23. I am fully aware that the Defendant is a man of clear record. Good character cannot by itself provide a defence to a criminal charge, but it should be taken into account as evidence in the defendant’s favour.

24. In the first place, although the defendant exercised his right not to give evidence, he did give an explanation to the police under caution. In considering the explanation given by the defendant and the weight to be attached to it, it should be borne in mind that the explanation was given by a person of good character. This should be taken into account in deciding whether or not the explanation was credible.

25. In the second place, the defendant’s good character may mean that he is less likely than otherwise to have committed the offence in this case.

26. Apparently, the Defendant admitted that there was some contact between him and X in the form of massage and on the instructions of X. However, X had already denied that she consented to any body contact with the Defendant during her testimony in Court. This part of evidence was unshaken under cross-examination I am fully aware that my duty was not to make a choice between the prosecution version and the defence version. Instead, if the defence version was or might be true, the prosecution would have failed to prove its case. In Court, there was no evidence to suggest that the relationship of X and the Defendant was so close that a massage would be delivered by the Defendant as a co-worker in the working environment during working hours. I therefore rejected the Defendant’s explanation about giving a massage to X.”

11.  Having accepted X’s and Mr. Chan’s evidence and rejected the appellant’s explanation under caution, the magistrate was sure that the appellant had indecently assaulted X by two acts on 18 September 2024 as testified by X. She was sure both acts were without the consent of X and unambiguously indecent. She found there was no evidence to support the possibility of mistaken belief from the appellant that X would have consented to the above-mentioned acts. She therefore found the appellant guilty of the charge[9].

Grounds of appeal

12.  In the notice of appeal, the appellant relied on the general grounds stated therein.

13.  In his written submissions in Chinese dated 20 August 2025, the appellant:

(1)  gave an account of what happened and emphasized that the incident was merely an accident;

(2)  mentioned some discussions and/or advice between his legal representatives and him regarding this case; and

(3)  challenged what Mr. Chan stated in his written witness statement about previous warning issued to the appellant for touching X.

14.  At the appeal hearing, the appellant also emphasized that X was not credible and reliable. The appellant claimed that X framed him.

15.  Given the appellant mentioned about some discussions and/or advice given by his legal representatives and seemed to have complaint about their performance, I enquired with the appellant as to whether he intended to rely on incompetence of his legal representatives as one of the grounds of appeal. I also explained to him the relevant procedure to be adopted if his answer was in the affirmative. After repeated clarification and explanation, the appellant confirmed that he had no complaint against his legal representatives.

Respondent’s submissions

16.  The respondent pointed out that as the appellant elected not to give evidence at trial, his version of the events as set out in the written submissions was not part of the evidence and could not be used to support his appeal. Nevertheless, his suggestion that he was merely giving X a massage was included in his admissions under caution, which had been carefully considered by the magistrate. It was submitted that the magistrate gave abundant and sound reasons for rejecting the appellant’s exculpatory explanation[10].

17.  It was further pointed out that the appellant’s criticism against what Mr. Chan stated in the written witness statement could not constitute a valid ground of appeal as Mr. Chan did not give evidence about the “previous warning” during trial and was not asked about it in any way. The magistrate did not take into account the “previous warning” when determining whether the appellant was guilty.

18.  The respondent emphasized that the magistrate had correctly stated that the burden of proof rested upon the prosecution. She noted that this was a one-against-one case and she had carefully analyzed X’s and Mr. Chan’s evidence. In particular, she gave detailed reasons for rejecting the criticisms against X, and found that X was being consistent in general; there was no significant discrepancy between X’s and Mr. Chan’s versions; and there was no improbability or omission which would cause her to doubt the prosecution case. The magistrate carefully evaluated all the evidence before her and she had abundant basis to conclude that the prosecution had proved all the elements of the charge beyond reasonable doubt.

19.  It was submitted that the conviction was neither unsafe nor unsatisfactory and the appeal should be dismissed.

Consideration

20.  The Court of Final Appeal in HKSAR v Hui Lai Ki (許麗琪) (2024) 27 HKCFAR 265 held that magistracy appeal is conducted by way of rehearing on the evidence before the trial court, supplemented by such further evidence as the intermediate appellate court may admit within its statutory power. The judge must be satisfied that the appellant’s guilt has been proved beyond reasonable doubt on the evidence, failing which the appeal must be allowed. On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the magistrate to convict. It was recognized that an appellate court conducting a rehearing would be subject to limitations arising from the fact that it does not have the advantage of receiving witness evidence first-hand. Hence, it must exercise caution when considering findings of facts based on oral testimony. Yet, despite those limitations, it remains the duty of the appellate court on an appeal by way of rehearing to come to its own conclusion on disputed issues of fact or law.

21.  Regarding the appellant’s version of events as set out in his written submissions, as the appellant did not give evidence at trial, his version of events is not part of the evidence of trial and thus will not be considered in the appeal.

22.  As pointed out by the respondent, the appellant’s claim that he was giving a massage to X was included in his admissions under caution. From the magistrate’s analysis, she was fully aware of the legal principles applicable to the assessment of the appellant’s mixed statement under caution. She reminded herself of the relevant direction regarding the appellant’s clear record when assessing the mixed statement. Given X testified in court that she did not consent to the contact and there was no evidence to suggest the relationship between X and the appellant was so close such that the appellant would provide massage to his colleague X during working hours, I find the magistrate was correct in rejecting the appellant’s explanation under caution.

23.  As far as the credibility and reliability of X is concerned, the magistrate considered and dealt with all the challenges raised by the defence in details. I do not find any error in her analysis[11]. I agree with her assessment that there was no significant discrepancy between the evidence of X and Mr. Chan. The magistrate was entitled to accept the evidence of X and Mr. Chan. Based on the evidence accepted by the magistrate, she was entitled to find the acts were without the consent of X and indecent. Thus, there is sufficient evidence to convict the appellant.

24.  In view of the above, on rehearing, I am satisfied that the appellant’s guilt has been proved beyond reasonable doubt on the evidence. The appeal against conviction is dismissed. As the appellant has been granted bail, he has to serve the sentence forthwith.