HKSAR v. PETER MARTIN CHELLONE

HCMA 340/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 340 OF 2011

(ON APPEAL FROM KCCC 5094 OF 2010)

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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 conviction for indecent assault and the sentence of 9 weeks’ imprisonment imposed for it.

2.  The prosecution’s case was that the Appellant, a man of previous good character in his late fifties, had indecently assaulted a girl of 13 whom he was standing near on board an MTR train.  In order to prove that case, the prosecution called the girl and two police officers who were on board that train watching the Appellant and the girl.  As was his right, the Appellant did not give evidence.  The defence called a doctor who spoke of the Appellant’s difficulties with co-ordination, balance and his reliance on vision to move his limbs with any precision.

3.  In finding the prosecution’s case proved beyond reasonable doubt, the Magistrate carefully and expressly disavowed reliance on much of the prosecution’s evidence, being the parts which could reasonably be reconciled with the Appellant’s innocence.  Instead the Magistrate acted on the evidence of one of the police witnesses whose crucial evidence was as follows. The Appellant slowly moved his left hand upwards with the back of that hand very close to the girl’s right buttock.  Moving his hand upwards, the Appellant touched her right buttock area.  The touch lasted about 4 seconds.

4.  On that evidence, which she felt sure was accurate, the Magistrate found, as what she considered to be matters of irresistible inference, that the Appellant had touched the girl intentionally and indecently.

5.  Under what is put forward as the first ground of appeal, the Appellant seeks to adduce fresh evidence to show that he has lived in Hong Kong for 17 years.  It is contended that this is relevant to the weight to be given to the Appellant’s good character.  I will proceed on the basis that the Appellant has lived in Hong Kong for that long.  But I do not think that has any impact.  The Magistrate had given full weight to the Appellant’s good character.

6.  Separately, there is a notice of motion dated 23 November 2011 to adduce further evidence on appeal.  I have, on a de bene esse basis, looked at the affidavit, proof of evidence, letter and identity card which are the subject-matter of this notice of motion.  Having regard to all the circumstances including the basis on which the Magistrate convicted, I do not regard any of that material as capable of taking the Appellant’s case any further.

7.  The remaining grounds of appeal against conviction are grounds 2 to 8, ground 9 having been abandoned.  These remaining grounds are very lengthy.  I have considered them in full, and will not recite or summarise them.  They are all directed essentially to the evidence and the Magistrate’s approach to the evidence.  There is reliance on what is called “previous manifestations of the effects of the Appellant’s medical condition as contained in a letter of mitigation prepared for the sentencing hearing”.

8.  Having considered all of the grounds of appeal against conviction put forward and the arguments urged in support of them, I find no substance in them.  The Magistrate proceeded with great care, placing no weight on any part of the prosecution’s case that was peripheral or doubtful.  There is no proper basis on which to disturb this conviction.  The appeal against conviction is dismissed.

9.  That leaves the appeal against sentence to be considered.  Having regard to the sentences in the past cases drawn to my attention, it appears to me that the sentence in the present case, bearing in mind the circumstances of those cases and of this one, would be manifestly excessive unless there has been a steep rise in the prevalence of indecent assaults on the MTR or other forms of public transport.  No evidence or material pointing to such a rise has been placed before me.  It may well be that the question of such a rise will be examined upon adequate evidence or other material in such future case.

10.  As things stand, I consider it appropriate to reduce the present sentence.  The question becomes by how much it ought to be reduced.  I have in effect been urged by counsel for the Appellant to reduce the sentence to an extent that would avoid any further incarceration of the Appellant who had been in custody for 14 days and is now on bail.  In all the circumstances, I do not feel able to reduce the sentence to that extent.  All things considered, I allow the appeal against sentence to the extent of reducing the sentence from 9 weeks’ imprisonment to 5 weeks’ imprisonment.