HKSAR v. LAM MAN HUNG and Another

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 989 OF 1997

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J U D G M E N T

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1. The 1st Appellant was convicted of an offence of Indecent Assault contrary to section 122(1) of the Crimes Ordinance and the 2nd Appellant was charged of Common Assault contrary to Common Law and section 40 of the Offences Against the Person Ordinance, Cap. 212. The 1st Appellant was sentenced to 28 days imprisonment, the 2nd Appellant to 14 days imprisonment. They each appeal today against conviction and sentence.

2. The 1st Appellant was unrepresented for both appeal against conviction and sentence. The 2nd Appellant dealt with his own appeal against conviction, but was represented in respect of the appeal against sentence.

3. The facts that gave rise to the charges were fairly simple. A domestic helper who was lost, was making her way back to Hennessy Road from Happy Valley direction when the two Appellants started to follow her speaking in Cantonese about 61/2 metres behind her. They continued to follow her, making comments and laughing at her. She attempted to escape their attentions by crossing the road but the two Appellants followed. The 1st Appellant approached closer and told the woman that she was beautiful, the woman ignored him and continued to walk. The 1st Appellant then came up behind her and touched the lower half of the cheek of her buttock. The woman who was carrying a bottle of drinking water turned round and threw some of the contents at the 1st Appellant, swearing at him. She continued to walk on, at which stage the 2nd Appellant picked up a stone from nearby road works and from a distance of about 4 metres threw it at the woman. The woman was hit on the lower back. She was not injured as a result of the stone hitting her but there was a mark later found on her clothes. The incidents were actually observed by some officers of the Emergency Unit who saw both the indecent assault and the stone throwing. They later arrested the Appellants.

4. In the Magistracy, each Appellant pleaded not guilty to the charges and denied they had committed either offence. 1st Appellant gave a fairly unbelievable account of having been teasing his friend when his friend became angry and threw a stone at him which missed. As the 1st Appellant ran away to avoid it, he slipped over and, losing his balance, reached up and touched the shoulder of the woman. This was completely contrary to anything the police saw and certainly not in accordance with what the woman said in court.

5. The Magistrate did not believe the accounts given by the Appellants and with very good reason. I am satisfied having considered the evidence carefully, that the Magistrate was fully aware of what he had to direct himself on and that he assessed the credibility of the witnesses carefully. Unusually, the Indecent Assault could be corroborated by the police witness. The Magistrate convicted each of the Appellants. Neither conviction is unsafe and each is confirmed.

6. In respect of sentence the 1st Appellant was treated as a man of clear record and the Magistrate imposed a sentence of 28 days imprisonment. In sentencing, the Magistrate was aware of the personal particulars of the Appellant as put forward by his lawyer. Those were that the Appellant was 51 years of age, he was married and operated a cooked food store in Mainland China, that he earned about $7,000.00 a month, that he had a wife in Hong Kong and two children, one at work, the other a student. It was urged on the Magistrate that this was not a premeditated event, that it was a mere touch on the buttock and leniency was requested.

7. Today the Appellant has repeated those matters and also put before the court the fact that he is the sole support of his 80 year old mother. I am satisfied having considered the nature of this particularly unkind offence that there is nothing inappropriate or wrong with the sentence of 28 days imposed by the Magistrate. I confirm the sentence in respect of the 1st Defendant and order that it be served immediately. This woman was followed, made mock of and indecently assaulted - when she endeavoured to retaliate she was assaulted with a stone. The experience must have been terrifying, and the Magistrate, properly, took account of those matters.

8. In respect of the 2nd Appellant's offence, after trial he told the Magistrate that he was 43, that he had a wife and children, that he suffered from an occupational illness and could not continue with regular employment. He was on public assistance but worked at times as a casual worker. This Appellant had a clear record. Those matters were reiterated today by counsel. It was stated that the offence was not a premeditated one and that the woman was not hurt in any way. However, the same considerations apply here, this was an unprovoked attack on a woman quite late at night, a woman who was walking home by herself and it also took place immediately after the 2nd Appellant must have seen the indecent assault carried out by his friend. The Appellant might have been entitled to greater sympathy if he actually pleaded guilty, though it was his right not to do so.

9. Although I consider the sentence might be slightly high for a first offender, I do not consider that it is so manifestly excessive that I should interfere with it and the sentence is affirmed. The appeal against sentence in respect of each of these Appellants is dismissed.