R. v. CHEUNG KEI KWONG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 163 OF 1995

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J U D G M E N T

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1. This is an appeal against conviction from a temporary magistrate at the San Po Kong Magistracy. The Appellant was convicted of indecent assault on a young woman on the MTR. She described, while just before getting off the train at 6.00 o'clock at the crowded time, how she had been "scooped" between her buttocks quite deliberately, and she said it was the Appellant who did it. He was standing behind her. She spoke to him. He swore at her and said he had not done it. Whether he ran or just went with the mass of people is neither here or there. He was seen later by a police officer and under caution, he said that he accidentally touched her.

2. The issue really was an issue for the magistrate on the facts to decide whether he accepted the evidence of this young woman. She gave her evidence, he said, in a convincing manner. The Appellant for some unknown reason decided not to give evidence. I said yesterday, I have said again, I do not know why people in the Magistrates' Court do not give evidence when they are charged with an offence. They have a right, of course, not to go into witness box, but the magistrate then only hears one side of the story. He described the statement as exculpatory. Mr. McCoy criticizes this and said it was a mixed statement because he says that he wanted to get off from the crowd and he accidentally knocked the girl. It may be the magistrate was in error when he says that no statement was made on oath or tested in cross-examination. Mr. McCoy criticizes that and says since that the magistrate was saying because he had not gone in the witness box to deny, then I should hold it against him.

3. The Appellant is a person of good character but the magistrate took that into account and gave himself the appropriate direction. These cases generally do occur at this crowded time. Young women ought to be protected from people such as this. This appeal is dismissed.