HKSAR v. SULDAAN, YUSUF SULDAAN

HCMA 262/2019

[2021] HKCFI 3116

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 262 OF 2019

(ON APPEAL FROM KCCC 2978 OF 2018)

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JUDGMENT

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Introduction

1.  The appellant was convicted after trial by the Magistrate Mr Raymond Wong on 21 May 2019 of the offence of Indecent Assault, contrary to s122(1) of the Crimes Ordinance, Cap 200.  He was sentenced to a period of imprisonment of three weeks, which he has served.  By his Notice of Appeal, dated 29 May 2019, the appellant seeks to appeal conviction only.

The Charge

2.  The particulars of the charge, were as follows:

“...SULDAAN Yusuf Suldaan, you are charged that on the 30^th day of September 2018, at the rear lane of Chung King Mansions, 36-44 Nathan Road, Tsim Sha Tsui, Kowloon, in Hong Kong you indecently assaulted another person, namely female X.”

The Prosecution Case

3.  The prosecution case consisted of just two witnesses, which included the complainant and the arresting officer.  It was alleged that the complainant, who worked within Chungking Mansions, was walking down the rear lane adjacent to Chungking Mansions, when the defendant approached her, blocked her way and touched the upper part of her right breast.  According to PW1, the defendant had spoken to her as he approached her and said in English, “You look very like my sister”.  This approach had frightened the complainant and she had told him, in both English and Chinese, not to talk to her but he continued to approach and blocked her way.  In response, the complainant said in English, “Don’t get any closer again, I will call the police” and indicated she would do so as she was holding her mobile phone.  The defendant then suddenly touched the upper part of her right breast with his left hand and then moved his hand from right to left.  As a consequence, the complainant called the police.  As the incident had taken place over three to four minutes and as she had clearly seen his face for one minute, the complainant was able to positively identify the defendant some 10 minutes later as he was standing in the lobby of Chungking Mansions, she did so from his physical appearance and from his clothing.

The Defence Case

4.  The appellant elected to give evidence but called no other witnesses.  He is a HKID holder and lives in Chungking Mansions. He said that he was returning home that morning after finishing work and had purchased some food before waiting in the lift lobby.  He had not been near the rear lane and had not seen PW1.  He denied indecently assaulting her.  However, it would appear that at some stage of the proceedings (perhaps in closing), an alternative proposition was put forward that if the defendant was found to be present in the rear lane at the material time, any touching which took place was accidental.  Both lines of defence were considered by the Magistrate and by this Court.

The Grounds of Appeal

5.  The appellant represented himself in this appeal. There were no grounds of appeal or written submissions.  In Court he submitted that he had informed his legal representative that there was a CCTV recording of the incident and that it would clear him of the charge.  As a result, the hearing was adjourned for the matter to be canvassed by the respondent.  For some reason unknown to the Court, the matter was not re-listed until 18 October 2021.  The appellant did not attend when the matter was called on and time was given for him to appear.  He did not attend at mid‑day when it was called on again at which time the respondent informed the Court that attempts had been made to contact the appellant but to no avail.

The Procedure on Appeal

6.  An appeal under section 113 of the Magistrates Ordinance, Cap 227, is by way of rehearing of the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power so to do (section 118(1)(b)): Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70.  It allows the judge on appeal to make whatever order the judge thinks just (section 119(1)(d)).

7.  On a rehearing, the appellate court is required to assess the evidence and come to its own conclusions as to whether that evidence proves the essential elements of the offence to the requisite standard: HKSAR v Ip Chin Kei & Others HCMA 301/2011.

8.  This court is entitled and indeed bound to come to its own conclusion about the evidence on contested issues of fact and law.  Per James J in Histollo Pty Ltd v Director-General National Parks & Wildlife (1998) 45 NSWLR 661: “It is not incumbent upon the appellant to show that such conclusion (whether at half time or on verdict[1]) was not open to the trial court in the sense of being a conclusion to which on the evidence, it should not have come.  It is merely necessary to persuade this court on a review of the evidence that guilt is not, to the necessary standard, proved by the prosecutor.  If, as at trial, on the rehearing there is a reasonable doubt of guilt, the appeal must be upheld.”

9.  Because this is a rehearing upon the evidence as it was before the Magistrate and is not a retrial, there are practical constraints placed upon the court in the exercise of its duties in making findings of fact and determinations in respect of the credibility of witnesses: HKSAR v Ip Chin Kei & Others supra.  So far as the facts are concerned this court recognises that it does not have the advantage of having received evidence at first hand which the Magistrate enjoyed.  The same applies to the opportunity to see and hear the witnesses.  To offset that constraint, the court is entitled to have regard to the Magistrate’s Statement of Findings to ascertain what determinations the Magistrate made as to the credibility of witnesses and the reasons given for such determinations.

10.  As this is a rehearing, it is for the appellant to persuade the court that the prosecution should not have succeeded in the court below as there is a reasonable doubt as to his guilt.  It is therefore for the prosecution to persuade the court that this is not the case.  Following Lam Kau v R [1962] 2 HKLR 234:

“It is as much for the Crown to sustain as for the appellant to seek to disturb the conviction”.

That does not mean that all of the evidence before the Magistrate is repeated once more in this court.  Only that evidence which the parties determine is necessary to satisfy the burden placed upon them is required to be revisited.  Some leeway may be necessary where the appellant is unrepresented upon appeal.

The Evidence

11.  The evidence in this case rested upon the oral evidence of PW1, PW2 and DW1.  There were Admitted Facts and photographs.  PW1’s evidence was clearly pivotal as was her identification of the defendant.  Mr Lee, on behalf of the respondent pointed out that PW1 had been cross examined about the existence of the CCTV tapes but no application had been made by the appellant to have it produced.  Subsequent enquiries indicate that the police had viewed the CCTV but it was of no evidential value.

Magistrate’s Findings

12.  The Magistrate was aware of the difficulty in cases involving sexual offences where the evidence is often “one against one”.  He analysed the evidence of PW1 with extreme caution.  He paid equal attention to the issue of identification as the Defence had argued that this was a case of mistaken identity; was based upon a fleeting glimpse and the identification had been made at a time when the defendant had already been intercepted by a police officer.  Moreover, no formal identification parade took place thereafter.  He was in the best position to assess the credibility of the witness and the circumstances surrounding the identification evidence, which he accepted and which would include the time period over which the defendant and victim were alone in the alleyway and his dress as well as his facial appearance.  This was not a fleeting glimpse case albeit that the two had spoken to each other only briefly.  This court would be slow to reverse the finding of the Magistrate as to the credibility of a witness, including her ability to identify the witness, unless satisfied that his conclusion on the facts was plainly wrong: Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336.

The Law

13.  For a conviction to be overturned the applicant must show that the prosecution has failed to prove beyond reasonable doubt that:

(a)  The accused intentionally assaulted the complainant; and

(b)  that such assault and the circumstances in which it was carried out would be considered by a right minded person as indecent; and

(c)  that the accused intended to commit such an assault.

Conclusion

14.  At a rehearing the appellate court is required to assess the evidence and come to its own conclusion as to whether the prosecution has proved the elements of the offence charged[2].  The additional transcript has not changed the Court’s view that the Magistrate carried out his function in a proper manner.  Having carefully considered the evidence, I am satisfied beyond reasonable doubt that the appellant indecently assaulted PW1 in the manner advanced under the charge.  This appeal is dismissed.

15.  In the circumstances of his non‑appearance at the adjourned hearing, there will be no award as to costs.