HKSAR v. NASIR, MEHMOOD

HCMA 1150/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 1150 OF 2005

(ON APPEAL FROM STCC 3977/2005)

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J U D G M E N T

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1.  This Appellant was convicted after trial of one count of Indecent Assault, contrary to section 122(1) of the Crimes Ordinance, Cap 200, and sentenced to one month’s imprisonment.  He appealed against sentence only, but at the hearing applied for leave to appeal against conviction out of time.  Leave was granted and the case was adjourned so the Appellant could file grounds of appeal.  The Appellant did not file written grounds of appeal, but relied on the standard grounds and advanced oral grounds at this appeal.

2.  Briefly, the facts alleged that the victim, a 35 years’ old Indonesian woman, had gone out to buy a newspaper for her employer.  She was followed home by the Appellant, whom she did not know.  He asked her to be his girlfriend and to go out with him.  As she was about to enter her block, he asked her telephone number; she refused all requests.

3.  The Appellant who, unknown to the victim, lived in the same building, followed her into the building and into the lift.  In the lift, he asked her again to be his girlfriend, but she rejected him.  The lift reached the victim’s floor and she left the lift.  According to the victim, the Appellant followed her out and blocked her way.  She was very scared and because she did not want him to know where she lived, she went via the staircase down to the next floor.  She was about to leave the staircase and go back into the corridor when the Appellant caught up with her and embraced her from behind.  He embraced her so tightly that she swayed and fell forward.  At that point, she shouted for help and the Appellant fled downstairs.

4.  The victim described the embrace, the subject of the assault: “his both hands were embracing my shoulders just above my breasts.”  She said that in the course of the embrace, the Appellant did touch her breasts and he was pressed close behind her.  The victim gave evidence and the Magistrate found that she was not shaken in cross-examination.

5.  After the alleged assault, the victim went back to her employer’s house.  Her employer gave evidence confirming that she was nervous and in tears on her return.  Eventually, she told him about the incident and later that day a report was made to the police.

6.  The Appellant chose not to give evidence.  The defence case was that the Appellant and the victim had walked back from the shop together.  They chatted together, without incident.

7.  The Appellant asked her to be his girlfriend but the victim said that she did not have time.  It was only on reaching the 8/F of their building that the victim told the Appellant to go home and he understood, finally, that she did not want to have contact with him.

8.  The Appellant was said to have left by the staircase, re-entering the lift lobby.  He was on the staircase after starting to walk downstairs when the victim opened the door and shouted something at him.

9.  The Magistrate found that the Appellant had intentionally assaulted the victim.  She found that the assault and the circumstances surrounding it was capable of being considered by right-minded persons as indecent.  She was satisfied too that the Appellant had intended to commit such assault.  Accordingly, she convicted the Appellant.

10.  Although the Appellant represented himself on appeal, at trial, he was represented by a very experienced counsel, Mr James McGowan.  Counsel made every point that he could in favour of the Appellant.

11.  The Appellant’s first point of appeal appeared to be that he was stopped from giving evidence at the trial.  I have no doubt his counsel advised him carefully about that matter, and that the advice was proper.  In any event the Appellant has given a lengthy account of what he said happened at this appeal hearing.

12.  The second ground of appeal was that the Magistrate had taken account wrongly of the victim’s evidence, instead of accepting the Appellant’s evidence.  It was for the Magistrate to judge the credibility of the victim.  She was satisfied that the event occurred as the victim described.

13.  The third ground was a complaint that the Magistrate had wrongly relied on the evidence of the employer as proving the offence.  A careful perusal of the Magistrate’s Reasons for Verdict and the relevant parts of the transcript, indicate no more than that the Magistrate summarised the employer’s evidence.  Its only relevance was to show that the victim arrived home that day in a distressed state, which was supportive of her story.

14.  The other matter raised on appeal was that there had been an attempt by police to force the Appellant to sign a statement that he did not wish to sign.  This related to the WPC 57118 who arrested and cautioned the Appellant.  Under caution, the Appellant had admitted embracing the victim.  No voire dire was held on this matter because the Appellant denied making any statement.

15.  Mr McGowan made a lengthy and detailed final submission, pointing out what he considered were defects in the prosecution evidence.  Those matters were considered by the Magistrate; clearly she believed the evidence of the prosecution witnesses and was satisfied that the offence was proved.  I cannot see any error in her doing so.  The matters raised on appeal were all raised by Mr McGowan at trial.  There is no merit in this appeal which is dismissed.

Appeal Against Sentence

16.  In sentencing, the Magistrate took into account comparable cases, obtained a background report and heard submissions from counsel.  She considered that this offence was more serious than an indecent assault which occurred on public transport.

17.  The Magistrate noted that the Appellant embraced the victim to stop her leaving, his hands or arms had contact with her breasts, and although the touch was not of the most serious kind, the circumstances in which it occurred were frightening for the victim.  She had been followed and pestered by a man she had not seen before.  She rebuffed him several times, but he continued to pester her, block her way, follow her, and grab her.

18.  For that reason the Magistrate took a higher starting point of six weeks.  She took into account Appellant’s clear record and personal circumstances, and reduced the sentence to one month’s imprisonment.  This sentence is not excessive or wrong in principle.  This was a frightening assault on a vulnerable victim.  The appeal against conviction and sentence is dismissed.