HKSAR v. CHOI CHEUK MAN

HCMA 542/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 542 OF 1999

(On Appeal from SPCC 2365 of 1999)

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J U D G M E N T

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1. This Appellant appeals against his conviction on one charge of Indecent Assault. The facts which the Magistrate found were that the complainant, the victim of this assault, was leaned against by the Appellant during the course of a crowded MTR journey while the Appellant rubbed his lower body up and down against her and then later, against her handbag. Unfortunately, for Appellant, an undercover police officer who was on the train, witnessed what had occurred and Appellant was arrested.

2. The arguments before the Court were that the Magistrate was wrong in the way that he dealt with the evidence; that he did not recognise discrepancies or, if he did recognise them, did not deal with them properly; that he wrongly interrupted counsel in cross-examination; that he failed to consider the police officer's delay in stopping the Appellant, or the victim's apparent lack of reaction to the assault until she was approached by the police officer; that he failed to consider the anatomical unlikelihood of the victim's story, particularly her claim to have been able to feel the Appellant's erect penis through several layers of clothing. It was further argued that the Magistrate should not have admitted alleged verbal admissions into evidence. On that last point, I note that although the Magistrate admitted them into evidence, he expressly avoided reliance on them.

3. Having considered the facts of this case and Magistrate's Statement of Findings, I am satisfied that he had before him all the proper considerations that he needed to in this case. There was ample evidence on which he could find the Appellant guilty.

4. The only point raised that caused me to consider it further, was an alleged interruption which had taken place during the trial, when the Magistrate asked the witness-complainant to leave the court, while he had a discussion with defence counsel over the manner on which he was questioning the victim.

5. Having considered the interruptions and the nature of the interruptions, it is quite plain that the Magistrate was attempting to assist counsel who was making a rather clumsy attempt to cross-examine the complainant by the use of hypothetical questions and suggestions. It had become obvious to the Magistrate that the witness could not understand why certain questions were being asked of her and for some questions, she was answering either incorrectly, or on the basis of a misunderstanding that appeared clear to the Magistrate, but of which defence counsel seemed unaware.

6. The Magistrate initially attempted to assist counsel on this matter during the cross-examination, but he then asked the witness to leave the court and discussed with defence counsel the manner in which he was questioning the witness explaining to counsel, who did not appear to have grasped the difficulty, that the witness was not understanding fully the purport of the questions and was answering at cross purposes.

7. The Magistrate made no attempt to stop counsel from questioning the victim, or trying to elicit the matters that he wanted to, or needed to elicit, but merely pointed out that the witness was confused and he might like to consider revising the form in which he was putting his questions, so the witness could more readily answer them.

8. I am satisfied that although this was an interruption of the cross-examination, that it was not an inappropriate interruption, nor did it indicate that the Magistrate had prematurely made up in his mind about the case. This appeal is dismissed.