THE QUEEN v. SHUM KUI-SANG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 684 OF 1986

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BETWEEN

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JUDGMENT

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1. The appellant SHUM Kui-sang was convicted of indecently assaulted Madam LAI Kit-ha ("the complainant") on the 21st April, 1986 while on board a bus.

2. On the 18th of July, I allowed the appeal reserving my reasons for doing so. These I now give.

3. The complainant had testified, inter alia, that "I felt someone touching me when I opened my eyes. I could see the defendant's hand about 3" away from my breast." Later she said, "I saw the defendant's hand when I opened my eyes resting on my right breast" (emphasis added). She was not asked to explain this apparent discrepancy.

4. Mr TSANG Hin-chun was an officer of the Cross Harbour Tunnel. He spoke to the complainant. His evidence was that the complainant said that the defendant had elbowed her (emphasis added). He went on to say "The defendant told me that at the time he was sitting next to a female passenger and that he bumped into her accidentally. The (complainant) said that at the time the defendant touched her left side with his right hand" (emphasis added).

5. The learned magistrate found, inter alia, that the appellant touched the victim's breast with his hand.

6. That may have been so, but the magistrate made no finding of fact that that contact was intentional - mens rea is an essential ingredient of indecent assault.

7. Crown Counsel informed the Court that he could not argue in support of the conviction.

8. I found the conviction unsafe and unsatisfactory and I allowed the appeal, quashed the conviction and set aside the sentence.