HKSAR v. MICHAEL KARL CORBIN

HCMA122/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 122 OF 2010

(ON APPEAL FROM ESCC 3246 OF 2009)

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BETWEEN

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J U D G M E N T

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1.  The 18 year-old appellant was convicted after trial of an offence of indecent assault and fined $5,000 at Eastern Magistracy.  He was acquitted of another three charges of assaulting a member of the Hong Kong Auxiliary Police.  He now appeals his conviction.

2.  The prosecution case was that as the victim of the offence (“PW1”) was walking down a street in Lan Kwai Fong with her boyfriend (“PW2”), the appellant, who was standing with a group of people intentionally reached out as she passed by and squeezed her right breast.  The incident occurred late at night and during a beer festival. 

3.  The appellant’s case was that he had been in Lan Kwai Fong celebrating his 18^th birthday at that time and was drunk.  He had been about to go home with some friends (“DW2” and “DW3”), when he had been offered a final beer by an acquaintance who was with a separate group of people.  As he reached out to take it, he overbalanced and pushed backward with his arm to regain his balance and his hand touched PW1.  He had then been slapped by PW1, and a passing team of police were called to the scene and eventually arrested the appellant. 

4.  The appellant gave evidence in support of his case and called the two witnesses who were with him at the scene, (i.e. DW2 and DW3). 

5.  The grounds of appeal advanced by Mr McGowan for the appellant are, in summary, that the court failed to assess the defence and prosecution cases properly.

6.  The first complaint made by Mr McGowan is that the magistrate failed to understand that an accidental touching of PW1’s breast, even a drunken accidental touching, was a defence to the charge.  He calls in aid comments made by the magistrate at trial after he had delivered his verdict and given oral reasons for that verdict.

7.  The magistrate had said :

“ In my judgment, on the last occasion, I had clearly said I did not believe the evidence of the defendant. I wish to add that, even assuming, assuming only, defendant’s evidence were to be believed, I wish to point out that self-induced voluntary intoxication is not a defence for the charge against the defendant in this case. And this point had already been mentioned in the prosecutor’s written submission. I wish the defence counsel would explain this legal principle to the defendant.”

8.  It is not entirely clear on the papers before me why the magistrate felt obliged to say this.  Earlier he had requested the prosecutor to deal with the law relating to self-induced intoxication and its relationship to crimes of basic intent.  And the prosecutor had done so at some length in his final address.  But in my view this principle had nothing to do with the central issue in this case.

9.  That issue was whether the touching of PW1’s breast by the appellant may have been accidental.  If the touching was or might have been accidental, as the appellant claimed, then there was no proof of the element of intent required to found the offence of assault.  And in those circumstances any discussion of, or reference to, the principle that drunkenness is no “defence” to a crime of basic intent was wholly unnecessary and, more importantly, irrelevant.  Lord Salmon put it this way in R v Majewski (H.L.) [1977] AC 443 at p.481-482 :

“ Reverting to assault and assault occasioning actual bodily harm and all other crimes of which a man may be guilty without forming any special intent, the question is–can the accused rely by way of defence on evidence that, at the time of the alleged offence he was so much under the influence of drink or drugs, taken voluntarily, that he did not know what he was doing. It follows from what I have said earlier in this speech that an assault committed accidentally is not a criminal offence. A man may, e.g. thought-lessly throw out his hand to stop a taxi, or open the door of his car and accidentally hit a passer-by and perhaps unhappily cause him quite serious bodily harm. In such circumstances, the man who caused the injury would be liable civilly for damages but clearly he would have committed no crime. …

There are many cases in which injuries are caused by pure accident. I have already given examples of such cases : to these could be added injuries inflicted during an epileptic fit, or whilst sleep walking, and in many other ways. No one, I think, would suggest that any such case could give rise to criminal liability.

It is argued on behalf of the appellant that a man who makes a vicious assault may at the material time have been so intoxicated by drink or drugs that he no more knew what he was doing than did any of the person in the examples I have given and that therefore he too cannot be found guilty of a criminal offence.

To my mind there is a very real distinction between such a case and the examples I have given. A man who by voluntarily taking drink and drugs gets himself into an aggressive state in which he does not know what he is doing and then makes a vicious assault can hardly say with any plausibility that what he did was a pure accident which should render him immune from any criminal liability. …”

10.  In the present case, it was not a question as to whether the appellant was so reduced by drunkenness in his mental faculties that even though he had deliberately touched PW1, that he may have done so without control or without appreciating the true nature of his action, and so did not intend to assault her. 

11.  It is only circumstances such as those that were before the court in Majewski which gave inception to the principle expressed by the magistrate after giving his oral reasons for verdict.  Indeed on the evidence before the magistrate, there could have been no doubt that the appellant was aware of the nature of his actions in the period of time leading up to and immediately before the touching of PW1. 

12.  The appellant in his evidence was able to give a clear account of events.  The magistrate summarized his evidence in that regard as follows :

“12. The Defendant elected to give evidence. In the early hour of 12.7.2009, the Defendant was having drinks with his friends in Lan Kwai Fong area to celebrate his birthday on 12.7.2009. At around 12:30am, the Defendant’s friends realized he was too drunk and decided to take him home. They were walking downslope to leave Lan Kwai Fong and came across another friend. That friend knew it was defendant’s birthday and offered to buy defendant a beer. The Defendant followed that friend to get the beer and they walked upslope. It was crowded and the floor was slippery. The Defendant fell forward and pulled out his right hand to steady himself. His hand landed on something and he pushed off that thing.”

The “thing” of course was PW1.

13.  Accordingly the sole issue was, on the appellant’s evidence, whether he had accidentally touched PW1.  Any discussion of drunkenness not being a “defence” to crimes of basic intent was unnecessary.  That principle did not apply to this case and I think there is some merit in Mr McGowan’s assertion that the magistrate on the face of his comments appeared to be of the view that the drunkenness of the appellant meant that the appellant may have been in some way liable for the assault, whether or not it was an accidental touching. 

14.  I note however that it is clear from the magistrate’s statement of findings that he found the touching was intentional :

“23. Having considered PW1 and PW2’s evidence carefully, I was sure the Defendant did use his hand to grab PW1’s right breast intentionally at the material time. It was not accidental as alleged by the Defendant. … Having found as I did, I was satisfied beyond reasonable doubt that the Defendant was guilty of charge 1. [the offence of indecent assault]”

This is a re-hearing and any error of law by the magistrate, as logically flows from the principles stated in HKSAR v Chou Shih Bin (2005) 8 HKCFAR 70, may be corrected by this court in the course of this re-hearing by the correct application of principle to its findings of fact. See also HKSAR v Sherlock, HCMA73/2009. In other words, should I agree with the magistrate that the touching of PW1 by the appellant was intentional and not an accident then this conviction will stand.

15.  I turn now to the complaints advanced by Mr McGowan as to the magistrate’s finding that the appellant intentionally touched the breast of PW1.

16.  The first is that the magistrate in rejecting the evidence of the appellant, and of the two witnesses he called (who were friends of his and who had been with him, or in the vicinity when the accident occurred) had failed to give reasons for the rejection of their evidence.

17.  I do not think that is so.  The magistrate said this regarding the appellant :

“17. … the Defendant in his evidence in court said he did not know what he had touched when he stumbled. He only knew his hand landed on something. Having considered his evidence carefully, I had found the Defendant to be a dishonest and unreliable witness. For example, he said he had drunk a lot and was very drunk at the material time. However, the Defendant was able to say PW1 was very drunk and the floor was slippery. If the Defendant was really very drunk as he had claimed, I did not believe he could remember the details and sequence of the incident so well.”

18.  In my view that was, albeit somewhat spartan reasoning, sufficient.  It went to the heart of the appellant’s case that he was so drunk that he slipped and accidentally touched PW1, without knowing what he had done and without understanding what all the fuss that followed the event was about.  The magistrate pointed out that the appellant was apparently clear-headed enough to have been able to recall other events and their chronology in surprising detail.  That finding considerably undermined the appellant’s assertion (and that of his witnesses) that he was so drunk as to have been unaware of what had happened.  I take into account in the assessment of the appellant’s evidence the improbability of matters occurring as he said, and I will return to that later in this judgment. 

19.  So far as the two witnesses called by the appellant were concerned, the first (DW2) said in his evidence that he did not see the incident when the appellant touched PW1, but saw only that which followed.  He confirmed however that the appellant was drunk at the time immediately prior to the incident. 

20.  The magistrate did not reject the evidence of DW2 as to what had happened.  He did not need to, as DW2 had not seen in fact what had happened at the relevant moment. 

21.  As to the remaining defence witness (DW3), the evidence given by him was that he had seen the appellant stumble and reach out with his arm to steady himself and so accidentally touch the right breast of PW1.  In his evidence-in-chief, he had said :

“A. Well, then, then I saw a couple coming down, and the beer being passed to Michael and Michael reaching with his left hand and looking directly at the beer, began falling backwards, which he -- so he stuck out his right hand, grabbing on to the woman’s right breast in order to gain balance. This was momentarily, and, and he just got -- once he regained his balance, he took the beer and, and started heading down towards us.”

22.  When in cross-examination he was asked for more detail, he said :

“A. Well, like I said, he stuck out his left hand, and was looking directly at the beer. And then I saw his right hand move like this, and then hold on for just a moment, gain his, like, gain his balance and then just push off, and then grab the beer, and then turned around and started walking down the, the hill.”

23.  As a starting point and bearing in mind that PW1 and her boyfriend PW2 were walking down the street at the time of the incident, it seems to me improbable that just at the moment PW1 passed behind the appellant, he had put up his arm behind him to regain his balance and so grabbed PW1’s right breast, in order to push himself off without noticing what had happened.  Further, I have read the evidence of DW3 and, as Ms Sezen Chong for the respondent points out, DW3 gave evidence to the effect that the appellant had returned up the sloping street to receive a beer offered by his acquaintance.  DW3 had said that the streets were crowded in Lan Kwai Fong at that time due to the beer festivals.  DW3 was plainly a distance away from the appellant at the time of the incident because he gave evidence that after the incident :

“From what I remember, the woman slapped him twice across the head but he didn’t even turn around. He continued walking, walking down without any recollection of what just happened. The boyfriend stopped him, and started telling him off so me and the guys went up and started talking, talking in place because he clearly had no idea what was happening. …”

24.  In other words it is clear DW3 was not in the immediate vicinity of the incident which had occurred in a crowded street.  That in my view renders DW3, in the circumstances, a less reliable witness.  In that regard, I might add that it seems to me to be likely a less than certain conclusion, by a witness at a distance, as to whether a person accidentally or deliberately touches another person.  Further DW3 had also been drinking (though I accept not so much as had the appellant) and was according to his evidence waiting with his friends for the appellant to collect his beer and return.  In my view, DW3’s evidence of what happened being accidental must be less reliable than that of PW1 and PW2 who were involved in the incident, in the case of PW1, and immediately adjacent to it, in the case of PW2.

25.  Nor do I think the magistrate was wrong to take into account in assessing DW3’s credibility that he was a friend of the appellant’s.  As a matter of common sense the relationship between witnesses and the defendant is a factor to take into account when assessing the reliability of that witness.

26.  The next complaint advanced by Mr McGowan is the corollary of what I have just said.  It is that the magistrate failed to take into account the relationship between PW1 and PW2 in assessing whether PW2 may have consciously or unconsciously supported PW1’s version of events in his own evidence because of their relationship rather than give evidence in accordance with his own recollection. 

27.  There is nothing to suggest however that the magistrate did not take the relationship of PW1 and PW2 into account, and in my view he, as a matter of simple common sense, most certainly would have done so.  However there is no doubt it would have been better for the magistrate to have said he had done so in view of the comments he had made regarding DW3 being a friend of the appellant.

28.  Mr McGowan complains also that the magistrate did not properly examine the contradictions and discrepancies contained in the evidence of PW1 and PW2.  I am satisfied that he did, and that I agree with his findings that both witnesses were honest and reliable.  In arguing this ground, the first complaint of Mr McGowan is that the evidence of PW1 that she had only had three drinks over the 3½ hours she and PW2 had been in Lan Kwai Fong for the beer festival was unbelievable, particularly in view of the fact that she had earlier played golf that day and must have been thirsty, as I understand the argument, and that she had had two convictions some years earlier related to driving and alcohol.

29.  I do not think these aspects of the evidence in any way undermine PW1’s fundamental reliability as a witness, either individually or in aggregate.  When questioned about these matters in her evidence, she answered straightforwardly and did not attempt to evade the questions or qualify her answers.

30.  But the fundamental complaint concerning PW1’s evidence is that she was inconsistent in asserting that, on the one hand, she only noticed the appellant when he touched and squeezed her breast when on the other, she had said and demonstrated that the appellant had “raised his arm and squeezed her breast”.  Mr McGowan argues that her evidence was inconsistent in this regard as PW1 could not have both noticed the appellant for the first time only when he touched her, and have been able to have seen him raise his arm prior to that.

31.  I do not think when PW1’s evidence is looked at in context there is any inconsistency.  She asserted continuously she had seen or noticed the appellant only when he touched her.  The two inconsistencies relied upon by Mr McGowan came about when she said in cross-examination :

“A. … I believe that his action at that time was in purpose, it was not that he just walked past and hit my breast with his elbow, he intentionally raised his arm to squeeze my breast, that’s why I insisted.

Q. Now, I put it to you, just agree or disagree, that you did not see the defendant before you felt the defendant’s hand on your breast?

A. Anyway, I wasn’t aware of him.

Q. So the answer to my question is, yes?

A. Yes.”

32.  It seems fairly clear to me that in suggesting the appellant had raised his arm, PW1 was not specifically saying she had seen this happen but simply that she assumed this to be so. 

33.  Secondly, Mr McGowan points to a demonstration given by PW1 as to what the appellant had done.  That is contained in the transcript in these terms :

“Q. Right. Now, can you just demonstrate to us how the defendant assaulted you? Pretend you are the defendant yourself. Can you stand up and jus show us how he assaulted you?

A. I’m the defendant?

Q. Yes, you are the defendant?

A. He did it like this …

INTERPRETER : Demonstration.

Q. So he just lifted his arm and grabbed you?

A. Yes.”

34.  So far as this is concerned the witness was asked to re-create what the appellant had done.  She was not asked what she saw.  There is no inconsistency in her demonstrating the appellant lifting his arm to grab her breast.  Having read PW1’s evidence, I am satisfied it contained no material inconsistencies. 

35.  PW2’s evidence was criticized because he had said initially in his evidence that the appellant had touched PW1 with his left hand.  When cross-examined on his witness statement, made the same night as the incident and which referred to the appellant using his right hand, PW2 changed his evidence in this regard and agreed that his witness statement was correct and that the appellant had in fact touched PW1’s breast with his right hand. 

36.  I do not think this inconsistency undermines the reliability of PW2 to any significant extent so far as the issues in the trial were concerned.  It is a common fault for even honest witnesses to confuse his left and right in evidence.  The fact that PW2 was a lawyer does not mean he is immune from that failing.  More importantly it was not disputed that the appellant had touched the breast of PW1 with his right hand.  The appellant said he had pushed back with his right hand against whatever it was behind him so as to regain his balance.  Both the appellant’s case and PW1 agreed that the appellant had touched her with his right hand.  In my view, given that common ground, PW2’s initial error in his evidence becomes immaterial.  Nor was there any other aspect of PW2’s evidence that provide any great contradiction or discrepancy either internally or in juxtaposition with the evidence of PW1.

37.  There was a suggestion that, in cross-examination, PW2 had admitted he noticed these events only after PW1 had screamed and so contradicted his earlier evidence that he had actually seen the incident.  The evidence had gone in this way :

“Q. Yes, then, suddenly, this incident took place. Now, let’s just get some more detail here. Did your girlfriend tell you that someone had grabbed her breast?

A. Sir, I saw what happened, and she screamed.

Q. Did you see it happen?

A. Yes, I saw it happened and she screamed, so, you know, by implication she told me that it had occurred by screaming and I saw it.”

38.  It is plain when taken in context PW2 was simply saying he had seen the incident and, in answering the previous question, was also saying PW1 had told him of the incident by way of her screaming.

39.  Mr McGowan’s final argument is that it was highly improbable that the appellant, a young man of previously unblemished character, would intentionally grab the breast of a passing woman who was in the company of her boyfriend and do so in a crowded public place.  

40.  I think as a matter of common sense, the submission loses weight when it is remembered that it was the appellant’s own case that he was very drunk as a result of celebrating his 18^th birthday in the midst of a beer festival at the time of the offence.

41.  In the context of that argument, so far as the probabilities are concerned, as I have said there is some inherent improbability in drunk or sober, a male, as was the appellant’s case, beginning to overbalance backwards and without looking, reach behind himself and push forward just as a woman passed close behind him, and by doing so come into contact not with just any part of her anatomy but with her breast.  Of course that is not impossible but nevertheless on the evidence as a whole I agree with the magistrate’s finding that the appellant deliberately grabbed the breast of PW1.

42.  For these reasons, the appeal is dismissed.