HKSAR v. LAI KING WAH

HCMA 1110/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1110 OF 2003

(ON APPEAL FROM STCC 908/2003)

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J U D G M E N T

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1. This is an appeal against conviction. The Appellant was convicted of two charges of Indecent Assault and was sentenced to four-month hospital order.

2. These two cases happened on the same day in New Town Plaza. At that time, there were people in the Plaza watching a pop star signing autographs. The two victims in the case were amongst them. PW1 said that at that time, she was at the railing and she was looking down to watch the pop singer signing autographs. There was a man standing behind her and she felt something touching the inside of her right thigh and calf. She felt it was hairy and she felt itchy, this lasted she said for about two or three seconds. She therefore looked behind her and she saw a man standing there, so she moved a step forward and she felt the touching again on the inside of her right thigh and calf and this lasted again for one or two seconds. Then, when she looked behind her the man had left. PW3 and PW4 identified the Appellant as the person who had been behind PW1 at that relevant time.

3. The third prosecution witness, was a civilian, and he said that he saw the Appellant, lifting and lowering his right leg at 45 degrees and touching the buttock of the first prosecution witness. The fourth prosecution witness, a police officer, saw a similar event.

4. The victim in the second charge was PW2. She was also another young lady aged about 16 years old. She was also watching Joey Yung at the time. She said that the Appellant was standing behind her and she felt something touch her left buttock and thigh. She said it was like someone using the lower part of his body to touch her and it happened about six times; and on each occasion it was about one to two seconds. She said that she looked behind her and saw the Appellant standing behind her. She tried to move away but the Appellant followed her, so eventually, she said she looked at him aggressively and it was only then that the Appellant went away.

5. The fifth prosecution witness was a police officer and he gave evidence that he saw the Appellant pushing into the second prosecution witness.

6. The Appellant chose not to give evidence. He was represented by a duty lawyer at the trial. The learned Magistrate found that from the cross-examination, it was apparent that the defence was not disputing the identity of the Appellant, nor disputing his presence at the scene. It was submitted before the learned Magistrate that the incidents described by the witnesses could have been accidental or misconstrued. The learned Magistrate considered this but decided at the end of the day that these assaults were indecent and that these were premeditated acts. So the Appellant was convicted.

7. The Appellant is represented by Mr Ching on his appeal against his conviction for charge 1 only. Mr Ching, first of all, argued that the learned Magistrate had failed to deal sufficiently with the discrepancies between the prosecution witnesses on charge 1. It is clear that the learned Magistrate at p. 4-5 of his Statement of Findings had dealt with the discrepancies in this case.

8. First of all, the learned Magistrate dealt with the discrepancies between the first prosecution witness and the third and fourth prosecution witnesses as to the area where the victim was touched and also the time. The learned Magistrate decided that these discrepancies were more apparent than real. He found that the impressions of time are highly subjective and therefore it is highly unreliable as far as a lay witness is amended. Also, he decided that the difference in description as to where PW1 was touched was due to the fact that the other witnesses were standing in different positions.

9. Mr Ching also complains that the learned Magistrate had failed to make specific findings of fact in this case. He complains that the learned Magistrate merely enunciated what the evidence was but never made a specific finding. I have to agree with Ms Lam that it is clear from p. 14 of the appeal bundle that the learned Magistrate had in the middle of the page started his findings by saying:

"I found the prosecution witnesses to be reliable and truthful."

So when he went on to enunciate the evidence he was in fact stating his findings of fact. After that, he then said that he found that the prosecution evidence had set out a particularly strong case.

10. The final complaint from Mr Ching is that the learned Magistrate was wrong in not considering that these touches may be accidental in view of the number of persons in the vicinity and the possibility that the bumping or the touching could be accidental.

11. It is clear from the learned Magistrate's Statement of Findings that he was well aware of the fact that there were a lot of people watching the pop singer and it was also brought out, by defence counsel in his submissions, the possibility that these assaults were accidental. But the learned Magistrate specifically found, can be seen in his Statement of Findings and in his oral reasons, that these assaults were not accidental because of the way in which the assaults occurred and the nature and duration.

12. The Appellant represented himself in relation to his appeal against conviction on charge 2. Basically, it appears his objection was based on the fact that he considered that there were doubts in the case and that he had been wrongly convicted. He brought out the fact that the victim in the second charge had not screamed and he objected to the learned Magistrate saying that he was wearing no underwear. He said his underwear was attached to his trousers. It is clear from exhibit P3 that the Appellant was not wearing trousers but wearing shorts at the time.

13. Having read the learned Magistrate's oral reasons for verdict and his Statement of Findings, there was ample evidence to support the learned Magistrate's findings that the Appellant had indecently assaulted both victims in the two charges. Whilst this appeal was being argued, I found that at p. 13 of the appeal bundle, at the end of the second paragraph when the learned Magistrate was dealing with the first charge, he said that PW1 said it had happened six times on and off for 1 to 2 seconds each time.

14. I drew that to the attention of both counsel and Mr Ching then submitted, therefore, that the Magistrate was wrong to have made two findings because on the facts, PW1 had there were only 2 assaults on her.

15. I have read the learned Magistrate's oral reasons for verdict and it is clear he did not make such a mistake in his oral reasons for verdict. So clearly this was a mistake made at the time when he prepared his Statement of Findings. It is clearly an error but it is not an error that would affect the propriety of the conviction of the Appellant.

16. I find therefore that there are no grounds to say that the learned Magistrate was wrong in his conviction of the Appellant on both charges and therefore the appeal against conviction of both charges is dismissed.