HKSAR v. SZE LAM KWONG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY CRIMINAL APPEAL NO. 924 OF 1997

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J U D G M E N T

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1. On 8th September 1997, the Appellant was convicted after trial of a single offence of indecent assault and sentenced to seven days imprisonment. He now appeals against conviction and sentence.

2. It was the prosecution case that at about 7.00 p.m. on 14th March 1997, the complainant, a business lady in her twenties, took the MTR train from Tsim Sha Tsui across the harbour to Admiralty. It was her intention to alight from the train at Admiralty in order to cross the platform and then catch the train bound for Wan Chai which pulled up on the far side of the platform.

3. En route to Admiralty, she said that there were just two other persons in her compartment. As counsel for the Appellant has pointed out, on a Friday night in the midst of the rush hour, that would have been a highly unusual state of affairs. It was the Complainant's testimony that, as the train pulled into the station and while she was standing facing the door, she felt a man's body pressed against her back. She turned and saw that it was the Appellant. She was alarmed, she said, presumably because the available space made it unnecessary for anybody to be so close to her. As a result, she said, when she left the train to cross the platform, she kept the Appellant in her sight. It must be emphasised that the alleged incident inside the train was not the subject of the charge.

4. The Complainant testified that, as she was crossing the platform, the Appellant was walking some ten feet to her left. However, as they neared the far side of the platform and were some ten feet from its edge, the Appellant suddenly dashed across, passing behind her. As he did so, he used his right hand to 'touch the centre of her hip forcefully from right to left'. The complainant said that she spun around and saw the Appellant walking away from her. It was this touching of the complainant's hip that the magistrate found to be the act of indecent assault.

5. The complainant testified that the indecent assault occurred about twenty seconds after she had alighted from the train. In that twenty seconds she had walked across the platform and was aware of the fact that a Wan Chai train had arrived, taken on board passengers and had departed. She said that, when she turned and saw the Appellant, he was 'the only one in that position of the platform'. She said that she looked around to see if there were other persons in the vicinity but there was nobody else there. She then shouted out that she had been indecently assaulted, she pursued the Appellant and caught hold of him. Angry words were exchanged during which, according to her, the Appellant accused her in colloquial terms of being a prostitute and 'deserving it'. The police were called.

6. The Appellant testified in his defence. He said that, to his memory, en route from Tsim Sha Tsui the compartment was very crowded. There were thirty people or so in it and eight or nine of those people alighted at Admiralty. He was one of them. As he was walking across the platform, he said he noticed the Complainant glare at him but he had no idea why. He said that he had not intentionally pressed himself against anybody in the train.

7. The Appellant said that he walked across the platform intending to take the escalator upstairs where he was scheduled to meet his girlfriend. He accepted therefore that he had to cut across the platform. It was the defence case that, far from there being nobody in the vicinity, the platform was crowded. The Appellant said that he did not intentionally touch anybody and the first he knew of the matter was when he was stopped close to the escalator and accused by complainant of indecent assault. The Appellant admitted that there were angry words. He admitted that the Complainant was protesting in such a dramatic fashion that at one stage he did say to her words to the effect of: "Why don't you look at yourself? You look like a chicken [a prostitute]."

8. A central aspect of the defence case was the good character of the Appellant; that he was of unblemished record, a university graduate and well thought of in his community. In short, that he was not the sort of person who would commit - to use counsel's expression - such a 'bizarre and fleeting assault'.

9. As to the number of people to be found in the immediate area of the platform between 7.00 and 7.30 p.m. on a Friday, statistics were obtained from the MTR Corporation to the effect that on average some 12,600 persons would be expected to enter, leave or cross that area in that time. In the circumstances, it was the defence contention that the Complainant's evidence as to the almost empty compartment and the lack of persons in the immediate vicinity when the alleged assault took place was inherently incredible and was fashioned in that way by the Complainant so that she could not be accused of mistaking her assailant in the crush and movement of commuters. I am constrained to say, having read the transcript, that I have sympathy with that contention.

10. As for the indecent assault itself, the Complainant accepted that she did not see the Appellant's hand move across her hips. If it had been across the back of her body, of course, it would have been an action of the utmost difficulty for her to witness. She spoke of the contact, however, as being forceful. Nothing was said by her of the touch lingering on her body or of an attempted caress or anything of that nature. How, therefore, she could be certain it was the hand which actually had contact and not, for example, the side of the arm, is not certain. Despite the Complainant's acceptance that she did not see the hand on her hip, in his Statement of Findings, the magistrate said the following:

"I was drawn to [Complainant's] statement to the police about the incident made 2 days afterwards. It stated, "suddenly I felt somebody use his hand to touch my hip". I considered her testimony and her statement. I found that that the truth was: she saw the touch not just felt it. If I erred on this and it could not be accepted that she saw the touch, yet given the 2-feet distance between [Complainant] and the defendant and the lack of people around and behind in the vicinity, the irresistible inference was that no one other than the defendant could have touched her hip."

11. Despite the statistical evidence of high congestion during the rush hour on a Friday night, the Magistrate accepted Complainant's evidence that there were only two other people with her in the train compartment on the way to Admiralty; he further accepted that, when the assault took place, there was nobody else in the immediate vicinity and that the Complainant could not therefore have been mistaken as who made body contact with her.

12. However, with respect to the magistrate, in light of the fact that the alleged assault consisted of a forceful stroke or lateral push across the back of Complainant's body, it was necessary for him to direct his mind to two matters of importance; first, where exactly on Complainant's body the assault was perpetrated and second, whether, in the circumstances, it amounted to an indecent assault.

13. In respect of the first matter, the magistrate referred only to the centre of Complainant's hip. But what area of the body is that? It can range from the buttocks to the small of the back. Clearly, a touch across the small of the back may be viewed very differently by a tribunal of fact from a touch across the buttocks. A pushing action to the small of the back may well be seen by right - minded persons as nothing more than a common assault, perhaps a display of irritation or anger. On the other hand an action that may be described as a stroke of the hand across the buttocks which is in close proximity to the woman's sexual organs may well be seen as an assault in circumstances of indecency.

14. Flowing from this, it must be remembered that it is always incumbent upon the prosecution not only to prove the assault but to prove that it was beyond reasonable doubt an assault which right-minded people would consider indecent.

15. Lord Ackner in R. v. Court [1988] I WLR 1071at page 1085 set out the essential elements of the offence as follows:-

"On a charge of indecent assault the prosecution must prove: (1) that the accused intentionally assaulted the victim (2) that the assault, or the assault and the circumstances accompanying it, are capable of being considered by right-minded persons as indecent; (3) that the accused intended to commit such an assault as is referred to in (2) above."

16. While in the present case the belief of the Complainant that the assault was indecent was one of the factors which the Magistrate could take into account, it was necessary for him to apply the objective test set out in (2) above and make a finding of fact in that regard. This, with respect, he did not do. It was not sufficient in the circumstances of this case to say simply that there was manual contact with the area of the Complainant's hip and that of itself, must amount to indecent assault. For the fact is, it may not.

17. I consider that the magistrate's failure in this regard renders the conviction unsafe. I do not, therefore need to consider the Appellant's further grounds of appeal. The appeal is allowed, the conviction is quashed and the sentence set aside.