HKSAR v. CHAN TAK SHING

HCMA850/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 850 OF 2008

(ON APPEAL FROM TMCC 2406 OF 2008)

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J U D G M E N T

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1. This is an appeal by the appellant against his conviction by Mr Smout on 9 September 2008 on a charge of indecent assault contrary to section 122(1) of Crimes Ordinance, Cap. 200.

2. It was alleged that he had assaulted a 15-year-old girl named Chow Oi Ying inside a bus on 9 June 2008 at Yuen Long.

3. The prosecution case depended on the evidence of the complainant, Miss Chow Oi Ying, which was accepted by the magistrate.  Her evidence was that she had boarded a double decker bus travelling on Route No. E34 at the Tung Chung Cable Car Terminal, intending to travel to Yuen Long.  She sat on the second last row on the upper deck on the left side next to the window.  At a later stage the appellant came and sat next to her.  She found this strange because there were other rows with both seats vacant.  She listened to music on her MP3 player.  She felt uneasy because the appellant was always staring at her breasts.  For the majority of the journey the appellant did not do anything more.  However at a time after the electronic sign on the bus had indicated that the next stop was that at Tai Tong Road and at a time when her eyes were closed the appellant had put his left leg on top of her right leg and his left arm around her right arm.  He then used his left elbow to brush against her right breast.  She felt frightened but did nothing because she was afraid he had a weapon in his possession.  While holding his rucksack with his right hand he put his left hand inside her skirt and touched and caressed her right thigh near her underwear.  After a while her telephone had rung.  The appellant had then slowly withdrawn his left leg and held his rucksack with both hands.  He also slowly moved his leg back to its original position.  She said that she pretended to wake up and then went down and made a complaint to the bus driver.  He directed her to some police officers who were on beat patrol.  She alighted from the bus, ran towards a police officer and told him what had happened.  She pointed out the appellant who had then alighted from the bus.  He then ran away pursued by the police officer who caught him.

4. The bus driver (PW2) and the police officer (PW3) confirmed that Miss Chow had complained to them and that the appellant had run away before being intercepted.

5. The appellant, a 50-year-old bus driver of previous good character, denied that there had been any such indecent assault.  He said that he had sat next to Miss Chow because most of the seats in the upper deck were occupied and there were only three to four seats free, but that some of them had items on the seats.  He said that Miss Chow seemed quite dissatisfied when he asked her to move her bag from the seat next to her.  He denied staring at her breasts.  He accepted that because of the narrowness of the seats the outside of his left thigh might have come in contact with Miss Chow’s right thigh.  He had been so engrossed in reading a book that he forgot to get off the bus at the Tai Tong Road bus stop.  He said that maybe his left hand had touched Miss Chow’s right thigh for less than a second when picking up his rucksack.  The point of contact was on her upper leg where the leg was not covered by her skirt.  He denied entangling his arms or legs with Miss Chow’s, touching her breast, caressing her thigh or running away.

6. The magistrate took into account the appellant’s clear record.  Nonetheless he believed the evidence of Miss Chow and disbelieved the evidence of the appellant.  He was satisfied that the touching of Miss Chow by the appellant could not have been accidental.

7. Mr Acton-Bond, who appeared for the appellant, has gone through the evidence of Miss Chow with a very fine tooth-comb.  He has drawn the court’s attention to a number of aspects of her evidence and the way the magistrate dealt with them which he submits render the magistrate’s verdict unsafe and unsatisfactory.

8. His first submission before me (ground 7) was that the magistrate erred in accepting Miss Chow’s evidence regarding the vacancy of seats on the upper deck at the time the appellant sat down beside her because of a failure to take into account a discrepancy in Miss Chow’s evidence as to whether there were vacancies in the seats behind her and his failure properly to consider the evidence from the defence witness from the bus company as to the route, the fare structure and the number of persons who had boarded the bus using Octopus cards prior to the Tung Chung Cable Car bus stop in the light of common experience.  Furthermore he sought to adduce additional evidence regarding the seating on the bus.  I permitted him to adduce further documentary evidence from the bus company, which apparently showed that the bus in question had 21 passenger seats on the bottom deck and 53 seats on the upper deck. 

9. Miss Chow’s evidence had been that at the time she sat down there were “around ten odd” passengers on the upper deck.  She was not sure how many rows had both seats available but “quite many”.  She said that she found it strange that the appellant had sat down beside her because there had been vacancies in the front and behind her.  She later corrected that answer when shown a sketch she had made with the assistance of the police and agreed that all the seats in the back row were occupied.  The defendant, on the other hand, had said that there were only three to four vacant seats.  The bus driver (PW2) said that the seats on the lower deck were fully occupied at that time.

10. In considering this ground I feel it is important to bear in mind that the magistrate did not say that he accepted Miss Chow’s evidence about the occupancy of the top deck to be accurate but simply that the evidence was not “significantly” shaken by evidence from the bus company and its representative.

11. I am satisfied that it was perfectly reasonable for the magistrate to attach no significance to the fact that Miss Chow had initially in court said that there were vacancies behind and in front of her.  She was giving evidence two months after the incident.  She was not saying there was nobody behind her.  Her attention is unlikely to have been focused on the people behind her.

12. In so far as her evidence of the other passengers on the top deck is concerned, what might be significant was not the exact number of those passengers as she would be highly unlikely to be able to make more than a rough guess, but whether there were a noticeable number of other free seats available which the appellant could have taken.  Her evidence that there were “around ten odd” other passengers is unlikely to be accurate in the light of the number of seats on the bus, the fact that it was on a long distance route and the number of passengers who had got on at earlier stops using an Octopus card, even if the bottom deck was completely full.  But I am satisfied that her evidence that there were a number of vacant rows (which was the significant part of her evidence) was not shaken by the evidence from the representative of bus company.  Nor was it significantly shaken by the new evidence adduced by Mr Acton-Bond as to the seating capacity of the bus on each deck.

13. Mr Acton-Bond argues that the magistrate failed expressly to consider and resolve alleged discrepancies in Miss Chow’s evidence. 

14. In ground 1 the alleged discrepancy relates to differences between her evidence and her earlier witness statement as to details of the indecent assault. 

15. While both in evidence in court and in her statement she had said that the appellant had first put his left leg on top of her right leg and his left arm around her right arm, his evidence in court was that the next thing that had happened was his elbow had then brushed across her right breast, whereas it is alleged that in her witness statement she had said that the back of his hand had brushed across her breast. 

16. Having considered the evidence concerned I consider this was probably not a discrepancy at all but simply a matter of translation as a result of the ambiguity in Chinese between “hand” and “arm”.  When she was giving evidence in court the initial translation of what she was saying was that it was his hand that had swept across her breast.  It was only after she gave a demonstration that it was realised that what she was talking about was his elbow.  When translating the witness statement the interpreter could only say that he “thought” it was hand she was referring to.  In both her evidence and in her statement she had said that the appellant had then caressed her thigh under her skirt.  In her witness statement, but not in court, she had referred to him then using his elbow to press against her breast several times.

17. This was an extremely minor discrepancy and consistent with the sort of difference one might expect from an honest witness describing an event on two different occasions.  I am satisfied it was not so significant that the magistrate needed to refer or resolve it.

18. In ground 2 Mr Acton-Bond suggests there was a discrepancy because initially Miss Chow had said that when he was caressing her thigh he did not retract the leg that was on top of her left leg, whereas later she said that the interlocking of the legs was not so light or so close at that time.

19. I do not see any discrepancy let alone any reason to suggest that the magistrate’s assessment of the evidence was flawed by his failure expressly to refer to this matter.

20. In his 3^rd ground it is alleged that the magistrate failed to give any sufficient consideration to the difficulty which would have been faced by the appellant in the limited space available on the bus of putting his leg across that of his neighbour and the impossibility or extreme difficulty in putting his left hand as far up Miss Chow’s skirt, bearing in mind the evidence of the arresting officer of the length of Miss Chow’s skirt.  I find no substance in either of these complaints even taking into account additional information supplied by Mr Acton-Bond on the hearing of the appeal that the distance between the edge of the seat and the back of the seat in front was 27 cm.  It is apparent from what Miss Chow said in her witness statement that when she said that the appellant put his left leg over her right leg, she was not saying that he put his thigh over her thigh but “hooking his left lower leg around her right lower leg”.  The distance between the seats would not have made such a manoeuvre difficult. 

21. In so far as the second point is concerned the arresting officer said that Miss Chow had been wearing “a black mini skirt up to the knee level”.  He however had seen her when she was standing up.  The skirt was bound to have risen further above her knee when she was seated on the bus.  Even on the defendant’s own evidence he had come in contact with Miss Chow’s upper legs which were not covered by her skirt.  Neither of these matters were so significant that they called for the magistrate expressly to deal with them in his Statement of Findings.

22. In ground 4 it is alleged that the magistrate failed to give any or any sufficient consideration to the inherent unlikelihood of a person committing such an indecent assault on a bus with people in the seat behind.  There is no basis for suggesting that the magistrate did not have this in mind.  Indeed it is clear when he said “there was evidence that the last row was fully occupied, however in my view, the back of the seats PW1 and the defendant occupied would have prevented passengers on the last row from seeing what went on” that it was a matter that he had in mind.

23. Ground 5 criticises the magistrate’s finding that “it did not seem strange to me that she did not protest or resist the touching to what she was subjected.  I accept her explanation for that lack of resistance or protest.  She was frightened and she thought that the defendant might have an offensive weapon in his rucksack.” 

24. I am satisfied that there was nothing inherently improbable in the explanation given by Miss Chow, a 15-year-old girl, as to why she did not protect or resist.  It is suggested that because the appellant was wearing a shirt with a Citybus logo on it and there were passengers around that it was irrational for her to fear that she was in such peril.  There was however no evidence that Miss Chow was aware that the appellant was wearing a shirt bearing a Citybus logo.  She was trapped between a middle aged man, who was holding a rucksack on his legs and indecently assaulting her, and the window.  There were high backs to the seats.

25. It is said in ground 6 that the magistrate should have considered the extent to which the fact that the appellant was wearing a rival bus company’s uniform would make the alleged behaviour less likely.  There is nothing to suggest that this was not on one of the factors that the magistrate had in mind.  There is no obligation on a magistrate expressly to relate his whole thought process.  In any event it has to be borne in mind that the only way in which the appellant’s clothing differed from normal civilian clothing was the logo on his shirt.

26. Ground 8 alleges that although the magistrate had stated that the appellant had stared at her breasts through the journey, he had given no thought to the self consciousness of adolescents and their potential for imagining that others are looking at their body.  There is nothing in this ground.  What the magistrate was doing was simply stating what the evidence of Miss Chow was.  The appellant was not charged with staring at Miss Chow’s breasts.  There was no need for him to analyse this evidence.  He made no finding that the appellant had stared at Miss Chow’s breasts. 

27. Ground 9 criticises the dismissal by the magistrate of the difference between the complaint that Miss Chow said she made to the bus driver (in a loud voice that she had been indecently assaulted) and the complaint the bus driver said she made (in a low voice that she had been touched on the thigh by someone).  The magistrate said :

“     … In my view, that discrepancy is insignificant and does not detract from PW1’s [Miss Chow’s] credibility. 

       I find it unsurprising and unremarkable that one or the other of those two witnesses might erroneously remember the exact words used by [Miss Chow], or the manner in which she spoke them.” 

The magistrate’s comments cannot, in my view, be faulted. 

28. In ground 10 it is complained that the magistrate, having found that the appellant ran away for 20 metres after seeing the police officer with PW1, factored that finding into his overall view of PW1’s credibility as to what had happened earlier on the bus without, in effect, giving himself any flight/lies direction and reminding himself that such behaviour was not necessarily consistent with guilt on the central issues of the case.

29. In my view looking at the passage in context it is not correct to say that he factored the evidence of the appellant running into his view of PW1’s credibility.  He had just related the appellant’s evidence that he had not run away.  He was contrasting it with the evidence of the three prosecution witnesses that he had.  The context was the credibility of the defendant’s account of what had occurred.

30. In any event I am satisfied that it was not necessary in the circumstances for a professional magistrate to give himself a flight or lies direction.  He would have been well aware that inferences adverse to a defendant can only be drawn when they are the only reasonable inferences.

31. Finally it is suggested that although there is no longer any statutory requirement to do so the magistrate should have given himself some sort of warning analogous to the warning previously required that it was dangerous in sexual cases to rely on the uncorroborated evidence of an alleged victim.  I do not agree.  There was nothing in the circumstances of this case that made such a warning necessary.

32. I find that the magistrate correctly and properly came to the conclusion that the appellant was guilty of the offence charged.  I am satisfied that this was the correct verdict in this case.

33. I dismiss this appeal against conviction.