HKSAR v. MANOLACHE,ADRIAN DANIEL

HCMA 839/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 839 OF 2011

(ON APPEAL FROM ESCC 4283/2011)

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BETWEEN

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J U D G M E N T

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1.  This is an appeal against a refusal of the defence’s application for costs in the Court below. The appellant in this case was charged with indecent assault. He was acquitted after trial.

2.  The evidence for the prosecution was that PW1 had boarded a very crowded tram, and was standing on the upper step, after she had passed one of the two turnstiles.  She was against the turnstile.

3.  PW1 was standing on the right upper step outside the right turnstile and the evidence showed that there was a Hong Kong male standing outside the turnstile on the left.  When the appellant boarded, he stood on the right upper step directly behind PW1.  PW1 was facing the inside of the tram.  The appellant was facing the back of PW1.  The appellant grabbed the pole on his left and the railing on his right, and the lower part of his body pressed against PW1.  PW1 said that as the tram was moving forward, she felt 3 nudges to the middle part of her buttock from behind.  The position was maintained until some passengers got off at the next stop.  PW1 passed through to the turnstile. When she turned around, she said she saw the appellant move across to the lower step on the left.  At that time she noticed that the appellant had an erection, so she believed that it was his private part that had nudged against her.  Soon after that PW1 said she went to the upper deck and to the window seat at the right.  She said the appellant also walked up and took a seat on the left hand side in front of her.  She said that he had turned his head and gave her a glance.  PW1 then complained over the phone to her husband and then made a report to the police.

4.  The appellant elected to give evidence in this case.  He was a man of good character.  He was a tourist in Hong Kong and staying with his friend. On that day, he was on his way to Peng Chau for sightseeing.  He was taking the tram to Central.  He said he had a backpack on his back and after he got on the tram, because of the lack of space with a rucksack on his back, he had to rotate his body to enable the door to be closed.

5.  His evidence was that also in the side pocket of his shorts, I am told by Mr Polson, that the shorts are commonly called “cargo shorts”, there was a wallet and camera etc.  The defendant was of tall build and  the distance from the ground to his shorts was measured including the part where he had the above mentioned articles in his pocket.  So Mr Polson said that according to the measurements the contact point, because of the difference between the appellant’s height to PW1’s height, was nearly some 20 cm different so if it was the appellant’s private parts that touched PW1 it would have meant that the contact point was to the back of PW1 rather than her buttocks.  That may be so, but we are talking about static  measurements, common sense tells us that a human being can move his body up and down but granted that Mr Polson’s point was the difference in height makes it more realistic that perhaps what was in contact with PW1’s buttocks were the things in his pocket rather than his private parts.

6.  The learned Magistrate very correctly analysed the evidence in this case.  At the end of the case, she found that PW1 was an honest witness and accepted her evidence.  The learned Magistrate said that she could not rule out the possibility that the nudges were accidental and that the contact point as demonstrated in court gave her a doubt as to actually which part of the defendant’s body came into contact with PW1’s buttock.  Therefore, she gave, properly, the benefit of the doubt to the defendant and acquitted him.

7.  Upon an application for costs, the learned Magistrate correctly identified the principles involved in an application for costs upon an acquittal and said that costs are normally awarded unless there are positive reasons not to do so.  She identified that the positive reasons in the present case was that the defendant had by his own conduct brought suspicion upon himself.

8.  In this matter, she also correctly identified that the “standard of proof” is not that required in the trial sense: R v Kwok Moon Yan [1989] HKLR 396 at 400.  The learned Magistrate at the end identified the points which she considered the defendant had brought suspicion  on himself.  The appellant was the last person to board the tram as he squeezed himself in.  He had not attempted to remove his rucksack before boarding or after boarding.  He stood on the same level as that of PW1 but not on the lower step.  Furthermore, he could have stood behind the male on the left when he boarded the tram.  So by squeezing himself behind PW1, he had placed himself in a predicament, and an obvious risk was created.  The learned Magistrate also noticed that the appellant said he was not in a rush, it was unnecessary for him to squeeze into the crowded tram.  And with the rucksack on his back, he had no room to manoeuvre.  He was in close proximity to PW1.  He had also grabbed one hand on the railing and the other hand on the pole thus effectively having his arms around PW1. 

9.  So with all those circumstances in mind, the learned Magistrate refused the application for costs.

10.  On appeal, Mr Polson very properly said he is not contesting that the learned Magistrate had misunderstood the principles involved,  but the only bone of contention is that she had applied them wrongly.  Mr Polson’s main point is that when the learned Magistrate found the defendant bringing suspicion on himself, she had failed to use her common sense in coming to that conclusion.  She had not paid attention to the reality of tram travel in Hong Kong, and the fact of the matter is that when a tram arrived after one has waited for several 10 minutes and squeezed himself onto the tram as the defendant had done.  It had not occurred to him that he was squeezing behind a woman or a man.  Therefore he did not take the necessary steps that the learned Magistrate had considered.  Basically, Mr Polson said that it was wrong of the learned Magistrate to have considered all those matters which she thought by his conduct had brought suspicion on himself.

11.  The point really is, as Mr Wong had very correctly pointed out in his written submissions, and I pray in aid the words of Mr Justice Hartmann (as he then was) in HKSAR v Li Siu Tong & Others HCMA 547 /2000, where he said at paragraphs 9 to 10 that:-

“…there must be such a proximity between the behaviour that is condemned and the alleged criminal conduct that it can reasonably be said, not just that the Appellants behaved badly but that their conduct brought suspicion upon themselves inrespect of their alleged criminal conduct.”

“…What amounts to 'relevant' conduct will differ according to the circumstances of each and every case. While the relevant conduct, generally speaking, will be the conduct of the Appellants during the police investigation and at trial, that does not, in my opinion, prevent the magistrate from considering the Appellants' actions directly surrounding the alleged criminal conduct.”

12.  This was even made more clear in the case of TingJamesHenry v HKSAR (2007) 10 HKCFAR 730, where the former Chief Justice held at paragraph 16:-

“By his conduct prior to the investigation and trial stages, including conduct which formed part of the setting for the charges laid against him, the defendant may plainly have brought suspicion upon himself. There is no reason to ignore such conduct in the exercise of the court’s discretion on costs following an acquittal on the charges laid, provided always that the discretion is not exercised so as to undermine the presumption of innocence, and in particular, provided that its exercise does not involve the court in adopting a position at variance with the defendant’s acquittal by the tribunal of fact.”

13.  It seems to me that the learned Magistrate had not in anyway offended the principles laid down, particularly by our former Chief Justice.  It is also a principle that the award of cost is discretionary and the appellate court would be slow to interfere with the exercise of the discretion in the award of costs.  The learned trial Magistrate had the advantage of hearing the case.  Also she had considered fully the circumstances, which at the end of the day she decided that the benefit of the doubt should go to the defendant.  But, nevertheless, she is not shut out from considering the very facts that were before her when considering whether to award costs.  I do not find that she has misapplied the principles and there is no reason at all to interfere with the learned Magistrate’s exercise of her discretion, so the appeal is dismissed.