R. v. CHAN CHI MING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.131 OF 1997

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J U D G M E N T

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1. The appellant was convicted after trial of two counts of indecent assault. These two incidents occurred one after another on a crowded MTR train during the morning rush hours.

2. The first prosecution witness alleged that the appellant stood behind her, used both hands to hold both sides of her hips and pressed his private parts at her buttock for 20 seconds with some movements. She turned round and stared at the appellant angrily. She did not take any action but stood aside. Later on, she saw the appellant standing behind another girl who was the second prosecution witness.

3. The second witness alleged that the appellant was standing behind her. He used his hands to cross around her shoulder and to hold onto the handrails so that he was very close to her back. He then used his private parts to push at and rub against her bottom. When the girl tried to avoid it by moving forward, the pressing and the rubbing continued for about 3-4 minutes. She turned round to have an argument with the appellant. Foul languages were exchanged. It was alleged that this girl had slapped the appellant in the face. While they were doing that, the first witness also raised the matter with the appellant. Shortly after that, the two matters were reported to the police. The appellant was then apprehended.

4. With regard to the first incident, the appellant said it was someone who had bumped his hand which therefore bumped at the first girl's left hip. With regard to the second witness, he was holding the handrails and only had contact with the girl's arm. He vigorously denied that he had done the sort of thing described by the girls.

5. The learned magistrate heard the evidence of the witnesses including the appellant. He reminded himself of the danger of convicting on a sexual offence without corroboration. He also reminded himself that the appellant had a clear record.

6. This is a case where it is admitted that the appellant was in fact behind the two girls and to some extent he also admitted that he had been in contact with the girls. It remains for the learned magistrate, having looked at the evidence, to decide whether he would believe the evidence of the two girls in respect of these two separate incidents. The learned magistrate had borne in mind all the relevant evidence and having warned himself of the dangers, was satisfied beyond reasonable doubt that the appellant had indeed committed the two offences. He was in the best position to assess the evidence. I take note of the physical condition of the appellant in the light of the appellant's submission that it was unlikely for him in his condition to have committed the offences. But that is neither here nor there. In fact the learned magistrate had taken that into account in considering whether in fact in his condition he would be capable of committing the two offences. Having considered all the evidence, the learned magistrate still convicted him.

7. I have looked at the transcript and his reasons for the conviction. I find that there is nothing which is deficient. There is no reason for me to depart from his conclusion. In the circumstances, I do not think the two convictions can be interfered with. The appeal is therefore dismissed.