HKSAR v. HUNG LI SING

HCMA608/98

IN THE HIGH COURT OF THE

HONG KONG SPEICAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.608 OF 1998

--------------------

--------------------

----------------------

J U D G M E N T

----------------------

1. The Appellant was convicted of three charges by Miss Maggie Poon in Shatin Magistracy. The charges were two of indecent assault and one of impersonating a public officer. For the two indecent assaults, he was sentenced to six months' imprisonment and on the impersonating charge, three months' imprisonment to be served concurrently. He was convicted on 3rd June 1998 after which the learned Magistrate called for a probation officer and a psychiatric report and passed the sentences on 17th June 1998. He now appeals against both his conviction and sentence.

2. The facts of the case are that on 18th February 1998, a group of six youngsters, including PW1 to PW5 and a boy called Ng Chiu, were chatting on the 1st floor podium of Yiu Wo Estate in Ma On Shan, Shatin. Two of the girls, PW1 and PW4, and the boy Ng Chiu went downstairs to get food and drinks and on their way back they encountered the Appellant who was carrying plastic bags containing food. PW1, a Chinese girl, and Ng Chiu were stopped by the Appellant who claimed himself to be a police officer who knew a lot of triad people. The Appellant also claimed to be a probation officer. The Appellant also asked the two of them to write down on a piece of paper their names, addresses, telephone numbers and school. The two youngsters complied because they had been threatened with assault. Then the Appellant asked them to join their friends on the 1st floor which they did. After they were on the 1st floor for a brief period, the Appellant asked them to follow him to the staircase between the 7th and the 8th floors where the youngsters were asked to surround him and then there was a chat amongst them for approximately two hours during which time Ng Chiu was twice asked to go downstairs to buy beer as well as papers for the Appellant. During that period of time, the Appellant also took two of the girls, PW1 and PW2, downstairs and indecently assaulted them at the 7th floor staircase. According to PW2, the Appellant put his right hand around her waist and then touched her left buttock. PW1 gave evidence that the Appellant put his hand into her school uniform jacket and touched her from her abdomen up to her right breast. Then the Appellant asked PW1 to go downstairs to get him two cans of beer. At some stage, two of the girls, PW3 and PW4, left the group on the pretext that they were going to the washroom and they met up with a police officer, PW6. Subsequently, the Appellant was arrested.

3. Mr Alex Lau, who appears for the Appellant, has advanced six grounds of appeal against conviction.

4. The first ground is that the complaint by the two victims had been rendered inadmissible because the complaints had been made in answer to leading questions.

5. When the learned Magistrate gave her verdict, she gave fairly detailed oral reasons in Court which come to about four pages of the typed transcript. She found that the questioning of the two victims had been leading and suggestive and therefore she found that that rendered the complaint inadmissible. So that really takes away the first ground.

6. Ground two, as expanded upon verbally by Mr Lau, really amounts to a complaint that there was a duty on the Magistrate to define the ingredients of the offence and she failed to do so and she never drew any conclusions as regards whether the assaults on the two victims were in fact indecent.

7. The learned Magistrate, when giving her verbal reasons, did narrate the facts of the case as regards the indecent assaults. She then said that she accepted that both victims were telling the truth and she was placing reliance upon their evidence. It is true that she never specifically found as a fact that (a) there were the assaults on these two victims, and (b) in law those assaults amounted to indecent assaults. However, she did say in her Statement of Findings that she was satisfied that the offences happened as related by PW1 and PW2 and therefore she convicted the Appellant on the first and second charges accordingly.

8. In my judgment, an assault upon a young girl firstly around her waist and then upon her buttock is clearly an indecent assault. Similarly, for a man to put his hand into the jacket of a young girl and then touch the girl from her abdomen up to her breast is again clearly an indecent assault. Because these two assaults were so blatantly indecent and so clear-cut as regards the precise nature of the indecency, I find that it was not necessary for the learned Magistrate to have found that specifically. I therefore find that there is nothing to ground two.

9. The third ground is that in view of the evidence that the Appellant had claimed himself to be a police officer and also a probation officer, that there was therefore a burden upon the learned Magistrate to amend the charge so that the charge reflected both claims by the Appellant. Counsel submits that the failure to amend the charge rendered the charge null and void.

10. The Appellant was in fact charged with falsely pretending to be a police officer of the Hong Kong Police Force. I find that in law it was not necessary for the Magistrate to amend the charge so that it complies completely with the evidence given at the trial. If the evidence disclosed two offences of claiming, it was up to the prosecution whether they wanted to prefer a second charge of claiming. Insofar as the one charge which was preferred against the Appellant is concerned, in my view the evidence did substantiate the ingredients of that offence.

11. The fourth ground is that the learned Magistrate had wrongly admitted hearsay evidence. The hearsay evidence is said to be in the evidence of PW2 when PW2 gave evidence about a stage when PW1 and Ng Chiu came up to him, PW2, and told him and the group that the male, the Appellant, had claimed himself to be a police officer. That, strictly speaking, was hearsay evidence but it is quite clear that the learned Magistrate was not relying upon that bit of PW2's evidence to convict the Appellant of the third charge. In her verbal Reasons, she said she had considered the evidence of PW1 and the statements from Ng Chiu tendered under s.65B of the Criminal Procedure Ordinance. She said that she accepted PW1's evidence that the Appellant had said to her in the presence of Ng Chiu that he was a police officer and it was based upon that that the learned Magistrate convicted the Appellant of the third charge. Clearly, she was not acting, in so convicting him on the third charge, on the evidence of PW2.

12. Ground five complains that the learned Magistrate never gave herself the warning of the danger of convicting without independent corroboration of the evidence of the victims. The Magistrate clearly did, both in her verbal reasons and also in her Statement of Findings.

13. The last ground of appeal is that the evidence showed that at the time of the alleged assaults, the Appellant was holding two bags of food in one of his hands and therefore Counsel rhetorically asked whether it would then be possible for the Appellant to commit the two assaults. Miss Lily Ho, appearing for the prosecution, has submitted that the evidence was not that the Appellant was holding the bags in one of his hands throughout the time. The evidence showed that at some stage, he put the bags down onto the ground nearby to where he was standing. In any case, in my judgment, the two indecent assaults could have been committed whilst the Appellant was holding the bags in one of his hands because the assaults were committed with only one hand.

14. The appeal against conviction is therefore dismissed.

15. The Appellant also appeals against sentence on the basis that he being a first offender, an immediate sentence of six months' imprisonment was unduly harsh and that a non-custodial sentence would be appropriate and justifiable. The learned Magistrate in her Reasons for Sentence mentioned the need to protect young girls from assaults by strangers. She quoted the case of HKSAR v Chan Chi Hou, Cri.App.No.1 of 1997 which reinforces the view that young girls should be protected from molestation by strangers and because of that, deterrent sentences are called for.

16. The learned Magistrate also found that there was a degree of planning to these offences in that the assaults were not committed spontaneously as soon as the Appellant came across the two girls but involved the Appellant making a false claim that he was a police officer and spending some time with the two girls before committing the assaults.

17. The Appellant is aged 47, married with two daughters and a son and had worked for the Government as an ambulanceman in the Fire Services Department. He retired in 1996 and at the time of the conviction in 1998, he was working as a Traffic Officer in the Shing Mun Tunnel.

18. I reaffirm that Courts have a duty to protect young girls from indecent assaults by strangers. I reaffirm that because of the seeming prevalence of these offences the Courts have a duty to pass deterrent sentences so as to deter people of such minds to commit these offences. When deterrent sentences are called for, it matters not that the offender is a first offender. These sentences by the learned Magistrate, in my view, cannot be said to be manifestly excessive or wrong in principle. She properly took into account all relevant matters before assessing sentence. In the circumstances, I dismiss the appeal against sentence.