R. v. WONG KA CHEUNG

MAGISTRACY APPEAL NO.1447 OF 1994

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

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J U D G M E N T

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1. The appellant was convicted after trial on a charge of indecent assault and he now appeals against that conviction.

2. The brief facts were that an 18 years old girl was travelling in a lift with two other persons intending to go to her home on the 11th floor of Montana Mansion. There were two other persons in the lift, one of whom alighted on the 9th floor. Her evidence was that on the journey from the 9th floor to the 11th floor, the man who had remained in the lift indecently assaulted her by squeezing her breast. She said that he was at the time holding a pornographic magazine which he was looking at. The complainant got out at the 11th floor, went to her home and immediately made a complaint to her sister saying that a man had squeezed her breast.

3. The two girls went to the ground floor and called the police. As they waited in the lobby, which was not the same lobby as the lift lobby which she had been in earlier, she saw the appellant whom she identified as the assailant. About 5 to 10 minutes had elapsed from the time of the incident to the time of the sighting of the appellant. It was her evidence that after they had grabbed the appellant he said nothing and that her sister then scolded him. She said that the appellant was wearing different clothing from the clothing he had been wearing at the time of the assault but that he was wearing the same slippers. She said that at the time he was apprehended, he was not carrying anything.

4. The sister's evidence confirmed that of the complainant up to the time that the appellant was apprehended. She said that after he had been apprehended, there was an altercation between the appellant, herself and some other persons who had come to assist them. She said, and this was confirmed by a police officer who came to the scene later, that the appellant was carrying a bag in which there were some pornographic magazines, one of which was the same as the one the complainant said he was reading in the lift. The appellant did not give evidence or call witnesses.

5. The first ground of appeal is that the magistrate failed or failed sufficiently to direct his mind as to the desirability of corroboration when the quality of the complainant's evidence was far from satisfactory or sufficient. Mr Luk who appears for the appellant has referred to some of the transcript in support of this ground of appeal. He makes the point that the complainant in her evidence said that the journey in the lift from the ground floor to the 9th floor had taken about 10 minutes, that it had taken another 10 minutes from the 9th floor to the 11th floor estimates which were clearly wrong, and particularly so in the light of the complainant's evidence that she had been in the lift with the appellant for only 5 minutes. He points to the evidence where the complainant said that after the appellant had been apprehended and accused of indecently assaulting her, he remained silent, whereas quite clearly from the other evidence, there had been a noisy altercation between the parties. He makes reference to the evidence of the complainant that the appellant was not carrying anything when apprehended whereas clearly from the other evidence he was carrying a plastic bag.

6. He also points to her evidence that while she was able to describe the shirt worn by the appellant at the time of the assault, she was not able to say what he was wearing at the time they apprehended him other than to say that the clothing was different although the slippers were the same.

7. The magistrate in his Statement of Findings made no reference to the time discrepancy. He made no reference to the difference in the evidence relating to what the appellant was holding at the time he was apprehended, although he did deal, to some extent, with what he described as, the complainant's rather confusing evidence about the apparel worn by the appellant. He acknowledged that there was no corroboration but was satisfied that the complainant was an honest and reliable witness who, in the well lit lift had the opportunity of observing clearly the face of the appellant. He therefore convicted the appellant as charged, and the question really to be answered is: Would he have come to a different conclusion had he directed himself to the inconsistencies to which I have referred.

8. I am satisfied that he would have come to the same conclusion. The lift was well lit, the complainant had ample opportunity to view clearly the face of her assailant and her evidence. She had been to some extent frightened by her experience, which would no doubt account for some of the minor discrepancies in her evidence. She very honestly said that the appellant was wearing different clothing when he was seen on the second occasion and in the 5 to 10 minute interval, quite clearly a person would have had an opportunity to change that clothing. In the absence of evidence to the contrary, the magistrate would have been entitled to draw the inference that such a change in clothing had been made.

9. I am satisfied that the magistrate has dealt with the issue properly and that the verdict is not in any way unsafe or unsatisfactory and accordingly the appeal against conviction will be dismissed.