THE QUEEN v. LUI TAK FAI

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 195 of 1991

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BETWEEN

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JUDGMENT

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1. The appellant was convicted of indecent assault on a woman contrary to s. 122(1) of the Crimes Ordinance, and in the second count of resisting a police officer contrary to s. 63 of the Police Force Ordinance.

2. His main ground of appeal is that, on the basis of the evidence accepted by the trial magistrate, it was "physically impossible for the defendant to press his lower part" on the buttock of the woman. With regard to the second charge, it is argued that, besides the various discrepancies in the prosecution case, the appellant not giving evidence, there was no clear evidence to show that he was under arrest and obliged to obey the police officer.

3. This incident occurred on an MTR train between Tsimshatsui and Jordan stations. The female victim (P.W.1), a clerk aged 22, boarded the train at Tsimshatsui at about 7 p.m. A constable (P.W.2) who was in plain clothes and was attached to the Action Squad, MTR, was patrolling the platform at the time and, on seeing the appellant board the train after the girl, he too got in. The compartment was "quite crowded" according to the girl, and "not that crowded" according to the constable. However, the constable said that the girl stood about 5 feet from the door in the middle with her back to the door. The appellant was behind the girl, about 2 feet to 3 feet from the door, and the constable stood one foot to the appellant's right. The female victim said that the appellant was behind her and she gave an account of how the appellant's lower part remained in contact with her buttock all the way up to Jordan station. She said that when she first realised this she wanted to step forward but could not because of the people in front of her. She said that the appellant's left hand, part of which she was able to see furtively, was also touching the same part of her anatomy. At Jordan she changed her position but the appellant followed her and again stood behind her. She said that this time the whole of his body touched her back and buttocks. She felt unhappy about it. She was certain that the appellant touched her intentionally with his private parts. In answer to a question from the court how she knew it was his private parts, she said,

 

"It is difficult to describe. I  felt something hard touching me. When it touched me I immediately knew what it was. It is a direct feeling."

4. As the train approached Yaumati, the constable revealed his identity to both of them and asked them to get off at that station. At the platform he asked the appellant for his identity card, which he refused to produce saying he had done nothing. The constable is alleged to have told him that he was charging him for the offence of  indecent assault.  On the way upstairs the appellant is alleged to have tried to run away but was subdued after a struggle of about a minute.

5. The constable gave a version of what he saw happen between the appellant and the girl which was markedly at variance with the latter's account. He said that the appellant had his right hand aloft, holding the area of the map above the door, and he continued.

 

"I saw the defendant moving his body forward and touched the girl's body.  I realised there was space behind the defendant and he acted in this way, so I kept a closer look at him.  After the door closed, the train started to move.

 

The defendant used the lower part of his body to swing. He carried this on from Tsimshatsui to Jordan about 2 minutes time. He was acting this way and I saw a girl take a look at him by turning around."

6. He said that she looked at him again and the appellant ignored her. The constable then revealed his identity to both and asked them to get down at Jordan station, where he declared arrest of the appellant for indecent assault on the girl. He said that on the way to the police office at the station, after they had gone past the exit barrier, the appellant allegedly broke loose and ran a couple of steps. He was grabbed after a struggle and taken to the police office.

7. Faced with these contradictory versions, the magistrate thought that neither of the witnesses had made their evidence up or exaggerated their evidence and expressed this view:

 

"They both were straightforward and were trying their best to give an accurate account of what happened. I was convinced that PW1 was wrong in a large part of her evidence, not deliberately but genuinely. She was a quiet lady, clearly deeply embarrassed at having to relive the circumstances in open court. She had been through an upsetting ordeal and she said on occasion that she had been afraid during the incident. I also noted that. The incident itself was four months before the trial. I had no doubt at all that she was confused about precisely what happened and where."

8. He entertained no such doubts about PW2 whom he accepted as "a dispassionate observer" who gave clear and unambiguous evidence. He found him "straightforward, truthful and accurate" and felt that. he could safely rely oh his evidence.

9. While the versions given by the two prosecution witnessses were manifestly discrepant, it is I think undeniable that the one major advantage that the female victim had over the other witness was the feel of the touch to, or contact with, her body. Only she could tell with certainty and accuracy which part of her bony was being touched, stroked or groped from the feel that the contact gave her.  Her answer to the learned magistrate, which obviously impressed him for he described it as a "very good answer", illustrates this graphically.

10. It is a fundamental part of the judicial function to resolve any conflict in the material evidence and it must be remembered that because a witness is seen to be discredited is ho reason for totally excluding the whole of his evidence as it is always open to a jury or a judge sitting alone to accept part of the evidence of a witness while rejecting other parts. Admittedly, discrepancies in the evidence of witnesses on material points should not be lightly passed over as they seriously affect the value of their testimony. Here, the learned trial magistrate, though favourably impressed by the honesty and genuine motives of the victim, felt unable to accept her evidence for this reason:

 

"It seemed to me that the fact that P.W.1 did, in the event, give evidence which differed markedly from P.W.2 did not mean that I must acquit the defendant. This was not a case where the prosecution presented two equally credible witnesses whose evidence exhibited discrepancies. There were good reasons why I felt P.W.1 was not credible and had simply got much of her evidence wrong."

11. With respect I find that this is a misconception of the prosecution case. As I see it, they put forth those two persons as witnesses of truth and never changed their position with regard to them. They did not apply to have either of them declared hostile, and it was on that basis that their veracity had to be judged. I may simply add this. The grounds upon which the trial magistrate relied are more often than not advanced in such cases as reasons for accepting the evidence rather than rejecting it of witnesses like this victim.

12. Having rejected the whole of the testimony of P.W.1, he was left with only the constable. Although the lower court found him truthful and accurate, that finding is challenged on the basis that the distance between the appellant and the victim was such that the constable's account of the indecent assault was "physically impossible". It is open to an appellate court to differ from the court which heard the evidence where it is manifest that the evidence accepted by such court of first instance is contradictory or is so improbable as to be incredible or is for other sufficient reason unworthy of acceptance. The learned trial magistrate summarised the evidence in this manner:

 

"He [that is, PW2] followed them into the train compartment and saw PW1 stand in the middle of the train with her back to the door, the defendant stood behind her and PW2 stood about one foot to his right. There were other people on the train. The defendant stood with his right hand raised and reaching backward to touch a map over the door. He moved his lower body forward to touch PWl's body and when the train started to move swing his lower body in a circular motion against P.W.I. He continued this for about 2 minutes ..."

13. What is not mentioned there is the distance between the appellant and the victim which emerges from the constable's account of the relative distances.  Based on that account, the distance between the two was 2 feet to 3 feet and it was this gap which the appellant had to bridge in order to make contact with the victim. Considering this evidence carefully I am inclined to agree with the submission that the constable's version of the indecent assault was so improbable as to be unbelievable not only from the physical position allegedly adopted by the appellant to do so but also because it would have been so prominent and in full view of the other passengers standing close to them. Because of these doubts,  I am of the opinion that the conviction on the second count is equally unsafe and unsatisfactory.

14. This appeal is allowed. Both convictions are quashed and I order that the fines and costs paid by the appellant are to be refunded to him.