HKSAR v. CHENG YIU KUEN

HCMA 1252/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1252 OF 2001

(ON APPEAL FROM NKCC 5587/2001)

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J U D G M E N T

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1. In this case, the Defendant had pleaded not guilty to a charge of indecent assault，but at the conclusion of the trial, the learned Magistrate convicted him of common assault and acquitted him of the charge of indecent assault and he was fined $1,000.00.

2. The facts of this case are not extraordinarily unusual or difficult, the complainant, who was PW1, and her husband were in the Sino Centre in Nathan Road, Mongkok. On 26 August this year at about 5 p.m, she was shopping with her husband and she was standing outside a shop while her husband was inside. As she was waiting for her husband near the entrance of the shop, the Appellant had passed in front of her from her right to her left and bumped forcefully into her left breast with his left arm.

3. She said that she became angry and she stared at the Defendant who had proceeded to walk on for a distance of a few feet and stopped in front of the display window of the shop nearby, and he looked back towards her. He looked down when he noticed that she was looking at him and looked back at her again.

4. Due to the force of the contact and the defendant looking back at her, she was of the opinion that the bumping was deliberate. She said she approached the Defendant and when she was beside him, the Appellant gave her a quick glance and then left.

5. At that stage, she said her husband joined her and she told her husband about the matter and she said that her husband then approached the Defendant and asked him why he had bumped into his wife. The Appellant said the words: "What's the matter" and left.

6. PW1 said she followed the Appellant and scolded him, there were some exchanges between PW1 and the Appellant and eventually PW1 asked the Appellant to accompany her to the police station to which the Appellant agreed. But on the way, they ran into a police sergeant and the matter was then reported to the police.

7. PW1, when being cross-examined, denied that the Appellant had apologised to her after the bumping. It was also suggested to her that there were so many people around that the contact between her and the Appellant was accidental and PW1 agreed that there were people around but it was not as crowded as shown in the photographs, Exhibits D1 and D2.

8. The Defendant elected to give evidence. He is 28 years old and has a clear record. On that day, he was shopping in Sino Centre, and he said that when he left a shop, there were many people outside the shop and when he was walking past the space outside the watch shop, his left arm bumped into someone because there were other people around and it was very crowded and he was walking at a faster pace than normal. He said after the contact he hesitated, turned his head and said sorry to the first prosecution witness but he was not sure whether she had heard it or not. So he continued on to the next shop and when he was standing there looking at the window display, he felt that PW1 was looking at him. Then he left the Centre and was subsequently approached by both prosecution witnesses and he was asked why he had bumped into PW1. The Appellant said he denied contact because he had apologised to her earlier and thought that should have settled the matter. Because PW1 insisted on going to the police station, he went along with that suggestion as he felt he had no choice.

9. In cross-examination, the Defendant said he was walking fast at the time of the incident because there were people behind him. That, in gist, was his evidence.

10. The learned Magistrate, after reminding himself of the Appellant's good character and also the burden of proof being on the prosecution, proceeded to assess the evidence of the Defendant. He did not accept the evidence of the Appellant and in fact came to the conclusion that the Appellant was lying.

11. Nevertheless, when he assessed the evidence of the prosecution he was not satisfied that the prosecution had proved that the assault was an indecent one, therefore on that basis he felt that the prosecution's evidence only managed to prove the Appellant was guilty of common assault. He did not accept that the contact was accidental or reckless.

12. The Appellant's appeal today is based on 4 grounds; the first ground of appeal is that the learned Magistrate should have found that there was no case to answer, because in a crowded shopping centre, it would be hard to prove that the bumping was not accidental but a deliberate one. On this point, all I have to say is that the learned Magistrate had the opportunity of listening to the evidence, observing the witnesses and had made the factual finding that the contact between the Appellant and the first prosecution witness was a deliberate one. He based that on the circumstances of the incident given by PW1, and the reaction of the Appellant. I see no merit in this ground of appeal.

13. As far as in the second ground of the appeal was concerned, the Appellant complained that the learned Magistrate's decision that PW1's evidence that the contact was deliberate, was inadmissible opinion evidence, and his subsequent rejection of the Defendant's evidence that the contact had been accidental combined with the Magistrate's dissatisfaction with the peripheral aspect of the evidence, rendered his decision illogical and incorrect and also that the learned Magistrate could not rely on lies as evidence of guilt. On this point, all I want to say is, it is clear from the learned Magistrate's statement of findings and his oral reasons that he did not rely on lies as evidence of guilt, in fact he went out of this way to say that. Even if he did not believe the Defendant, the prosecution always had the burden of proof. I do not find any merit in this ground of appeal.

14. As for the third ground of appeal, the complaint is that the learned Magistrate had failed to state upon what evidence he had based his finding that the Defendant had acted deliberately and that there was no such evidence. As I had mentioned earlier on, the evidence came from PW1: the location where she was standing, the fact that the shopping centre was not as crowded as depicted in the photographs and the contact was a forceful one. All these supported the learned Magistrate's ultimate findings that he believed PW1's evidence as credible and reliable. Therefore, in those circumstances, he could not but find that the assault was a deliberate one. Also PW1's had said that after the contact, the Appellant had stood in front of a nearby shop and looked at her.

15. Even if the appellate court is of the opinion that it probably may reach a different conclusion on the facts, it is not the province of the appellate court to displace the finding of fact of the magistrate, if he had made a proper assessment of the witnesses evidence. It is only in a case where the appellate court finds that the evidence do not support the finding of fact or that there is a lurking doubt that the appellate court would interfere with a Magistrate's finding on the facts. I do not see that here so I do not see any merit in the third ground of the appeal.

16. Its for the fourth ground of appeals, the appellant complains about the frequent interventions by the learned Magistrate during counsel's final submissions. After a careful reading of the transcript, I came to the conclusion that the learned Magistrate was merely directing counsel's mind to the issues. Counsel was making a submission on the fact that the contact was accidental as the Centre was crowded. The learned Magistrate did try in his interventions to direct counsel's mind to what particulars were required for proof of indecent assault and also whether the evidence before him only amounted, at most, to a common assault and this can be seen at page 22 of the appeal bundle. When the learned Magistrate asked counsel about that, unfortunately counsel had his mind on the fact that it was an accidental part bumping and did not pay much attention to the fact that common assault is an alternative to indecent assault. But this is not the fault of the Magistrate, the learned Magistrate did direct counsel's mind on that aspect and therefore had given a chance to counsel to address him on that matter. So I do not find any merit in the fourth ground of appeal.

17. Counsel for the Appellant had tried to evoke the sympathy of this court for this young man who had faced a terrible charge which was a smear on his reputation, but sympathy, unfortunately has no place in an appeal. I have to look at the facts which were before the learned Magistrate and determine whether the learned Magistrate made any mistakes when he made his findings, both in law and in fact.

18. In this case, I cannot find that the learned Magistrate had made any mistakes either in law or on facts. Although it is unfortunate that the learned Magistrate, in conclusion, in his oral reasons, had said to the Appellant that had he been convicted of indecent assault, he would have gone to prison, it was a totally gratuitous remark but I do not accept Mr Haynes' submission that it reflected that the learned Magistrate's ultimate finding that the Appellant was guilty of common assault was coloured by the fact that he had in mind that the Appellant's conduct amounted in some way to an indecent assault.

19. I therefore dismiss the appeal against conviction.