HKSAR v. SHERLOCK, KEVIN PATRICK

HCMA73/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 73 OF 2009

(ON APPEAL FROM ESCC 1831 OF 2008)

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BETWEEN

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J U D G M E N T

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1.  The appellant was convicted, after a trial before Mr William Lam at Eastern Magistracy, of an offence of indecent assault contrary to section 122(1) of the Crimes Ordinance. He was fined $3,000 and now appeals his conviction.

2.  The prosecution’s case was that the appellant had squeezed the breast of PW1 whilst she was waiting at an intersection in Lockhart Road in Wanchai with a female friend (“PW2”) at about 11 p.m. PW1 and PW2 had telephoned the police after the appellant had refused to apologize, and waited outside the nearby fast food shop where the appellant had gone until the police arrived.

3.  When the appellant was eventually spoken to and cautioned by the police, he denied doing anything wrong and, later, when charged wrote upon the charge sheet that he had innocently brushed against PW1, had waited for the police to arrive at the scene and had cooperated with them. He wrote also that he had refused police bail as he regarded that as an admission of guilt.

4.  When giving evidence at trial the appellant expanded upon his statement to the police saying that he had been drinking prior to the incident and stumbled into PW1 and may have brushed against her breast with his hands as he was not paying attention to where he was walking because he was at that time looking up at signs over the footpath to locate the bar where he was to meet some people.

5.  He said additionally that he was a homosexual and had no interest in the female body and therefore no motive to do what he was alleged to have done.

6.  Various complaints were made as to errors it was asserted the magistrate had made in approaching and dealing with the evidence. Those complaints were set out in formal perfected grounds of appeal provided by Mr Surman of counsel for the appellant, which may be summarized as follows :

(1)  that the conviction was against the weight of evidence and that consequently there was a lurking doubt as to the safety of the conviction; and

(2)  that the magistrate erred in law in that he reversed the burden of proof and did his own research based upon the possibility of the appellant being bi-sexual, and wrongly gave credit to the prosecution case in accepting that the prosecution were unable, as a matter of practicality, to challenge the appellant’s case that he was a homosexual.

7.  I have set out the grounds of appeal though, as will be seen, it may well be that given that, as stated in HKSAR v Chou Shih Bin [2005] 8 HKCFAR 70, appeals from magistrates’ convictions are dealt with by the Court of First Instance as re-hearings, grounds of appeal now serve little more purpose than to alert the appellate court and of course the respondent as to the areas of evidence or the aspects of the case which the appellant says were wrongly dealt with or analysed by the magistrate and which are particularly relevant to the re‑hearing on appeal.

8.  In regard to the re‑hearing the appellate court is at large and must come to its own finding of fact, giving weight to the reality that the magistrate’s assessment of the credibility of witnesses was made with the benefit of seeing and hearing those witnesses in person.

9.  In Chou Shih Bin, Bokhary PJ said in dealing with the provisions of section 118(1)(a), (b) and section 119(1)(d) of the Magistrates’ Ordinance (Cap. 227), which are the provisions applicable to this appeal as they are to all appeals to this court pursuant to section 113 of the Ordinance, that :

“18.  In R v. Lam Kan [1962] HKLR 234 Rigby J, speaking for the Full Court, held that provisions similar to those now under consideration created an appeal “at large”, and rejected a submission that the appellate court should not form its own independent judgment.  As noted by Blair-Kerr J in R v. Lo Yim-kai [1966] HKLR 414, a rehearing in this sense is not a rehearing de novo, being instead a rehearing on the material before the magistrate supplemented by any fresh evidence which the appellate court may admit…”

and adopted the comments of Dawson J in Harris v Caladine [1991] 172 CLR 84 where he said at page 125 :

“A hearing de novo may be contrasted with an appeal stricto sensu and an appeal by way of rehearing.  In an appeal stricto sensu the question is whether, upon the material before the tribunal below, the conclusion which was reached was correct.  An appeal by way of rehearing involves the rehearing of the matter as at the date of the appeal, but upon the evidence called before the tribunal below, subject to a power to receive further evidence.  On an appeal by way of rehearing the rights of the parties must be determined by reference to the circumstances, including the law, as they exist at the time of the rehearing.  But an appeal by way of rehearing does not call for a fresh hearing as does a hearing de novo; the appeal court does not hear the witnesses again: see Builders Licensing Board v. Sperway Constructions (Syd.) Pty Ltd (1976) 135 C.L.R. 616 at pp 619-620; Quilter v. Mapleson (1882) 9 Q.B.D. 672, at p.676; and Victorian Stevedoring and General Contracting Co. Pty Ltd and Meakes v. Dignan (1931) 46 C.L.R. 73 at pp 107-111.”

10.  Bokhary PJ goes on to conclude that :

19.  An appeal under s.113 of the Magistrates Ordinance is by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so. … Where the facts are concerned, the appellate tribunal will recognise that it does not enjoy the advantage of having received the evidence at first-hand which the magistrate enjoyed.  Even so, it will not fail to quash a conviction that it considers unsafe…”

11.  I might add that it naturally must follow that, because this appeal is in the nature of a re‑hearing, any error of law by the magistrate must also be a matter which can be re‑addressed on the re‑hearing. In other words rather than any error of law vitiating a conviction and requiring the conviction to be quashed, the appellate court for the purposes of the re‑hearing should apply the correct principles of law as part of the re‑hearing process and assess the evidence on that basis.

12.  That being so it is difficult to see how, or in what circumstances, the appellate court would be justified in ordering any matter to be reheard by a magistrate as each of both the facts and the law are for the appellate court to determine or apply, though the possibility of such circumstances cannot be ruled out entirely.

13.  With that background of the principles to be applied in this appeal I will deal firstly with the evidence before the magistrate and the criticisms of it made by Mr Surman.

14.  The primary prosecution witness was PW1. I have read her evidence, though I bear in mind that I did not have the benefit that the magistrate had of seeing her give evidence and of seeing the demonstrations of events she gave at the time of her evidence.

15.  Her evidence was given in a plain and straightforward manner. There were two areas which came under particular attack by Mr Surman (who appeared both at trial and before me).

16.  The first material aspect of PW1’s evidence which Mr Surman puts forward as creating doubt as to her credibility relates to her demonstration as to how the appellant approached her at the time of the incident.

17.  For the purposes of this demonstration PW1 adopted the role of the appellant and, as she demonstrated the approach of the appellant, she stumbled. She said eventually that it was her own stumble caused by her shoes catching on the courtroom carpet and was not meant to mean that the appellant had himself stumbled.

18.  Following her demonstration her evidence-in-chief proceeded as follows :

“Q.  So, you demonstrated that here is an act of stumble on the defendant, was that the case at that time?

A.  Maybe.

Q.  Why do you say so?

A.  Because, at that time, I was looking on my left hand side.

Q.  So?

A.  I was talking to my friend, and then suddenly, a male on my right hand side did an act just as I demonstrate just now.  Therefore, my previous answer, on the last question is maybe.

Q.  So, you were not sure?

A.  Not sure.

Q.  Then why do you demonstrate a stumble act, if you are not sure?

A.  Because, actually, my high heels is quite high today, so, stuck in the carpet.

Q.  So, in fact, if there was a stumble on that day, you were not sure?

A.  I’m not sure.

Q.  You demonstrated today with a stumble just because of the high heel shoes…

A.  Yes.

Q.  That caused the stumble?

A.  Yes.

Q.  So, you did not intend to have that stumble act?

A.  No.

Q.  So, what you know is that someone hold your — held your back and the front of you and squeezed your breast, that’s it?

A.  Yes.”

and in cross-examination, after a review of her evidence, she was questioned, and answered, as follows :

“Q.  And then suddenly a man stumbles into you, right?

A.  Yes.

Q.  And he says, I’m sorry and you start shouting, ‘You’ve touched me, you’ve touched my breast’ and so on?

A.  He didn’t say, ‘I’m sorry.’

Q.  Isn’t that what he said the moment he bumped into you?

A.  No.”

19.  The appellant when he gave his evidence-in-chief gave it as follows :

“Q.  Right, and you mentioned just now that you were looking up, what, at the signs?

A.  At the bar signs, yes.

Q.  The bar signs.  So, what happened?

A.  I bumped into — I stumbled into two ladies who were waiting at the crossing lights.

Q.  Deliberately?

A.  Not at all, I did — I did not actually see them until I bumped into them.  I immediately apologized, I immediately said : Oh, sorry.

Q.  And when you bumped into them, did you put our your hands to stop yourself?

A.  I think, instinctively, I just went : Oh, sorry.

Q.  And then what happened?

A.  Then one lady, who I now know as ‘Luft’, began shouting at me that I had touched her breast and demanding an apology, to which I felt indignant, because I had apologised for bumping into her, and I certainly did not touch her first.”

and in cross-examination :

“Q.  And then how — can you tell us, how exactly did you bump into her?

A.  I fell into her.

Q.  So your whole body fell into her?  Or your hands fell into her?  Anything?

A.  I didn’t fall on top of her.  I stumbled into her and I used my hands to deflect, I said : Oh, sorry.  At the point of contact, I said : Oh, sorry, and moved my hands aside.

Q.  So you did stretch your hands at some stage?

A.  Not necessarily stretch, I wasn’t stretching, I was deflecting.

Q.  So, do you agree that you did have some body contact with the victim, that is PW1?

A.  Yes, I do, I don’t deny that there was physical contact.

Q.  Which part of your body come into contact with her body then?

A.  The front part of my hands, as I went like this.

Q.  Come into contact at which part of PW1?

A.  The front part of her body.

Q.  Including the breast area?

A.  I did not touch her breast.  If there was any contact, it was inadvertently.  I believe I may have brushed her breast.”

20.  Mr Surman suggests in this appeal that PW1, when she demonstrated the appellant stumbling into her, did so deliberately but later resciled from that position and said her own stumble was accidental when she realized it afforded the appellant support for his case that he accidentally came into contact with her.

21.  But two points can be made in that regard. Firstly PW1’s demonstration took place at the beginning of her evidence-in-chief and there was nothing in her subsequent evidence-in-chief to suggest that she had any understanding of what the appellant’s case was to be so as to give her reason to attempt to change her evidence in this regard. The fact that the appellant later adopted her demonstration and suggested he had stumbled is lessened in its force considering that he had, by that time, heard PW1’s evidence.

22.  Secondly, and perhaps more importantly, the demonstration took place in front of the magistrate, no doubt while he was paying it close attention. It is difficult to imagine that PW1’s demonstrated stumble, if simply acted out as a demonstration of what the appellant did, could immediately and successfully have been described by her as a real stumble when it was not. The magistrate was most certainly in the best position to determine this and in his Statement of Findings made no adverse mention of this aspect of PW1’s evidence, nor did he do so during the trial. It seems to me most unlikely that the magistrate would not have been able to immediately detect whether PW1’s stumble was accidental, as she said it was, or a deliberate, acted, demonstration. So far as I am concerned considerable weight should be given to the magistrate’s plainly regarding this aspect of the evidence as not undermining PW1’s credibility.

23.  The other area of PW1’s evidence which figured large in Mr Surman’s attack on her credibility concerned her evidence about a sketch plan which in cross-examination had been shown to her and which she had initially said she had drawn. That evidence went like this :

“Q.  On the location, you just told us that you drew a sketch?

A.  Yes.

Q.  Or a police officer drew a sketch on your instructions, yes?

A.  Yes.

Q.  Which was it?

A.  You mean?

Q.  The sketch.

A.  Actually, it’s on the draft paper.

Q.  Did you draw it?

A.  I draw it.

Q.  Right, is this it — have a look at this?  Have you got the original?  If you can have a look at the original, is that it?

A.  Yes.

…

Q.  In the bottom right-hand corner of the sketch, it says, ‘2008 0404 drawn by DPC4595’, of course, that’s not correct, you drew it, yes?

A.  I didn’t draw this one, what I …

Q.  You didn’t draw this one?

A.  I didn’t draw this one.

Q.  I thought you said you did draw this one.

A.  I didn’t draw this one, my point I made just now, like, I draw a diagram on a draft paper.

Q.  And I put this in front of you and said, is that the one, and you said, yes, I drew it.

A.  That is not drawn by me.

Q.  So, it’s not drawn by you, right.  So, you’d like to change that evidence.

A.  I clarified it.

Q.  Well, not, I asked you very clearly, did you draw this plan, your answer was, yes.

A.  Sorry, I didn’t draw this one, my apologies.”

24.  PW1 had plainly confused the sketch she had drawn for the police, with the sketch prepared by the police officer. Her error in this regard was trivial. There was not any reason for her to dishonestly pretend to have drawn a sketch which she had not. The sketch in very general terms simply described where she, her friend PW2 and the appellant had stood at the time of the incident. The precise location of this incident, and PW1 (and her friend PW2) were not sure exactly where it had happened, seems to me to carry the case no further. PW1’s mistaking the police-drawn sketch for one drawn by her matters not at all in terms of any assessment of PW1’s credibility. I note that Mr Surman in his submissions to the magistrate did not refer to this evidence at all. I cannot see any reason for PW1 to have deliberately lied about her authorship of the sketch and am satisfied it was merely a simple and immaterial error in her evidence.

25.  Other criticisms were made of PW1’s evidence including her occasional mistaking of left and right both in terms of direction and actions. That error is common with witnesses such as PW1 and I do not regard it as undermining her credibility in any material sense.

26.  It was said that PW1’s evidence was contradicted by PW2 because the evidence of both had been that they were standing at the intersection holding hands and shoulder to shoulder when the incident occurred. The appellant’s case was that if he had indecently assaulted PW1 as alleged, that PW2 would have noticed and that her evidence was that she did not. PW2 had said in her evidence that she was looking to her left at the time and only noticed something unusual when PW1 suddenly pushed into her. That evidence went as follows :

“Q.  So, you said, you were looking at the left-hand side, was that?

A.  Well, no particular reason, just looked at it.

Q.  Were you both just standing at the pedestrian crossing, or that you were talking or doing any other things while waiting for the red light to change?

A.  No, not doing anything, no talking.

Q.  And what special things happened?

A.  While waiting, no.

Q.  Anything happened at all that night, that evening?

A.  While we were waiting to cross the road, we were no talking.  Well, I suddenly felt my friend lost her balance, and fell towards me.  Then I turned around and asked her what happened.  And she hold me that that person tumbled on her and that person grabbed the chance to touch her breast.  Then we, my friend, used English to ask what he was doing, then that person ignored us and kept walking, then my friend — then my friend requested him to apologise.  He refused, and he was very drunk.  He could not stand properly and was swaying, that’s why we called the police.”

27.  I will return to this aspect of PW2’s evidence. As will be seen it is the appellant’s best point.

28.  The balance of the attack on PW1’s credibility concerned matters which were fundamentally trivial and which could have in no way any effect on her credibility.

29.  The evidence of the appellant was to the effect he was a homosexual and that evidence was supported by a witness he called, DW2, who had known him for many years. I accept that this evidence was not challenged in any substantial way and accordingly that the appellant was, at the time of the incident, a homosexual.

30.  Although it is not necessary for me to do so I wish also to say that it appears from the Statement of Findings that prior to returning his verdict the magistrate had done his own research on the internet concerning homosexuality or bi-sexuality, because as part of those findings he stated :

“Has Deft’s alleged sexual orientation weakened or raised any doubt about the Prosecution’s case?  Not wishing to turn this judgment into a medical text, I should cite a reference on the subject of sexual orientations, whether homosexual or bisexual, thus: ‘a bisexual may … elect not to act on the attraction to the other gender’ : see for example the website MedicineNet.com, among others.  All DW2 could say was that Deft had shown no interest in women when as a teenager, and that as far as he could see, the Deft had not changed since.  But DW2 has not been put forward as Deft’s current or recent homosexual partner.  If he had been, the evidence would have been taken a completely different colour…”

31.  I am not exactly sure of where the magistrate’s reasoning went to on this but, I accept from counsel that the magistrate’s internet research was a matter that counsel were not informed of prior to his verdict being delivered.

32.  A tribunal of fact should not do its own research into a matter which has a bearing on its findings. It should most certainly not act upon the results of any such research; to do so would normally, and in the circumstances of this case did, amount to a material irregularity.

33.  Nevertheless on the basis of the principles expressed in Chou Shih Bin I am satisfied I can arrive at my own findings in this case and that the magistrate’s error of law in this regard, or indeed in any other regard, does not, in any event, matter.

34.  We have therefore a witness PW1 and her friend PW2 who, from the material before me, are credible and believable. On the other hand the appellant is apparently a homosexual and I assume if that were so, he had no obvious reason to sexually assault PW1.

35.  It may well be that indecent assaults can occur for reasons other than sexual gratification, but no other such reason was ever suggested or compassed in this case. I bear in mind that the prosecution does not have to establish motive, nevertheless, the appellant’s sexual orientation does not have a bearing on whether his actions were deliberate.

36.  More importantly I note from the evidence that PW2 did not see the appellant come into contact with PW1, but only felt PW1 fall against her. I note also that PW2 said PW1 had told her the appellant “tumbled on her and grabbed the chance to touch her breast”. When PW2 did observe the appellant she noticed he was drunk and swaying.

37.  It was at the end of the day the appellant’s case that he was drunk and bumped or stumbled into PW1 and that he put out his hand at the time and in doing so may have touched PW1’s breast.

38.  Like the magistrate I treat his evidence with considerable caution. To put it bluntly in cases of this sort it is an often abused defence that a defendant accidentally came into contact with his victim and I note PW1 said the appellant “squeezed” her breast and did so twice. That is fundamentally inconsistent with an accidental bumping. But in those circumstances, it is somewhat surprising that PW2 did not observe at least some of the incident. Particularly as PW1 said the appellant’s other hand went around her shoulder and she was gripped in something like a “bear-hug”, by a person PW2 described as very drunk and unable to stand without swaying.

39.  I take into account also the appellant did not attempt to leave the scene but apparently waited for the police at the fast food shop and later refused police bail as he thought that to accept it may have amounted to an admission of guilt.

40.  All in all, while I have great reservations about the appellant’s credibility, I am not able to say the prosecution has made me sure of his guilt. There is at least a possibility that PW1 misunderstood what had happened and believed the appellant had assaulted her in the way she described when he had in fact come into contact with her drunkenly and accidentally. For that reason I am of the view the evidence does not sustain the conviction and the appeal must be allowed.

41.  The conviction is quashed.