HKSAR v. KAN WAI HO

HCMA134/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 134 OF 2007

(ON APPEAL FROM TWCC 39 OF 2007)

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J U D G M E N T

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1. The appellant was convicted by Mr John Glass sitting at Tsuen Wan Magistrates’ Court on 18 January 2007 of two offences, one of common assault and one of indecent assault.  He was fined a total of $3,000.  He now appeals against his convictions.

2. The prosecution’s case rested very much on the evidence of the victim who gave evidence that in relation to the 1^st Charge, she was at her place of work which was also the appellant’s place of work and was walking in the car park basement of the building where both of them worked.  She was carrying some cleaning equipment and she saw a rat walking across her path.  She said that the appellant came from behind her and stroked her hair once from the crown of her head down to the base of her neck in one movement.  In relation to the 2^nd Charge, she said she was on the 23^rd floor outside the ladies toilet when the appellant also appeared at the scene and ran his hand from the crown of her head down her back to her waist in a single stroke. 

3. These incidents had occurred on two days in October 2006.  However, a report to the police was not made until 14 November 2006.  What had happened was on the day following the first incident, she made a complaint to her supervisor, PW2.  PW2 said to her words to the effect that the appellant was probably playing with her and asked her not to take the matter so seriously.  It was for that reason that, according to her, after the second incident occurred she did not complain to PW2 but to a social worker, PW3.  But that was only on 13 November 2006.  On PW3’s advice the victim made a report to the police on 14 November 2006.

4. The victim obviously felt that these two incidents were of sufficient gravity to cause her to, in respect of each incident, make a complaint to a third party.  When she gave evidence before Mr Glass, she cried a number of times. 

5. Mr Glass considered her evidence and noted that questions were raised by the defence about the victim’s mental stability.  He also noted that she had had an argument with her colleagues previously and she had experienced some other problems with the appellant.  He found that she was a woman with some personal stresses, but he found that such stresses and her prior experience with the appellant had not interfered with her mental stability and had not caused her to make up the incidents in question or for her to embellish upon such incidents.  After considering the above, he said he was still impressed by PW1, the victim.  He found that she was an honest and reliable witness and he found that he could accept her evidence.  It was on the basis of the magistrate’s acceptance of the victim’s evidence that he returned the verdict that he did.

6. I have a transcript of the victim’s evidence but I am very mindful of the fact that I did not hear her evidence nor did I see her give her evidence and the manner in which she answered questions in cross-examination.

7. Mr Wong, on behalf of the appellant, advances three grounds of appeal.  The first ground is basically a complaint that in view of the discrepancies between PW1’s evidence and that of PW2 and PW3, the magistrate should not have accepted PW1’s evidence.  The discrepancies in relation to the 1^st Charge are that while the victim had said in the witness box that she was touched by the appellant from her head to the bottom of her neck, according to PW2, what PW1 said to her was that she had been touched from her head to her back.  According to PW3, PW1 had told her that in the two incidents the appellant had used his hand or hands to touch from her head to her back.

8. The magistrate dealt with this discrepancy and he found that the inconsistency was not material and his reason for so finding was that in relation to PW2 he said she was not really concentrating when PW1 was telling her about the incident, and PW2 dismissed the incident lightly.  In relation to PW3, the magistrate found that her evidence in this respect was in a general form and did not relate to specific details. 

9. In my view the magistrate was entitled to find that PW2 was not paying particular attention to what PW1 was telling her as was shown by PW2’s advice to PW1 that she should not treat the matter so seriously.

10. In relation to PW3, PW1’s evidence was that because PW2 could not assist her after the first incident, when the second incident happened, she decided not to tell PW2 but to PW3.  It would appear that in relation to the conversation between PW1 and PW3, it would have been confined to the second incident and so I find it a bit difficult to understand PW3’s evidence that in relation to both incidents, PW1 had told her, PW3, that she had been touched from her head to her back. 

11. The response of Miss Chan, for the respondent, to that ground of appeal is that Charge 1 was amended from indecent assault to common assault and so, as long as there was mention of physical contact, it was not a matter of such moment where she said she had been touched.

12. The next discrepancy that Mr Wong relies upon is in relation to the 2^nd Charge where the victim had said that she was touched from her head to her back, and in the course of that the strap of her brassiere was also touched over her clothing.  The discrepancy that Mr Wong relies upon is PW2’s evidence that when she had a conversation with PW1, PW1 told her that on the 23^rd floor the assailant had held his hands against his waist and did not allow her to pass or as the interpreter called it “with arms akimbo”.  Mr Wong says this version is so different from the victim’s version that it should have reflected on PW1’s credibility. 

13. My view is that when PW2 narrated that conversation in court she was referring probably to another incident other than the second incident.  The second incident, after it occurred, was narrated by the victim not to PW2 but to PW3.  I cannot agree with Mr Wong’s criticism that the magistrate should not have attributed reasons to PW2 and PW3 to explain away the discrepancies.

14. The second ground that Mr Wong relies upon is that the magistrate did not consider sufficiently the possibility of an accidental touch in relation to Charge 1.  The appellant had given evidence and he said that he had been following PW1 when she stopped suddenly.  He reacted by naturally using his hand to prevent PW1 from bumping into him.  But he also said that there had been no contact between them.

15. The appellant had a clear record and the magistrate had properly given himself the Barrada directions.  He found that he was not impressed with his evidence and he found that he did not believe that he was telling the truth.  The magistrate was entitled to make such a finding, and so I see no merit in Ground 2.

16. Ground 3 advanced by Mr Wong is the rhetorical question : Was the touch in the 2^nd Charge an indecent assault?  He submits that a right-minded person would not consider the touch to be indecent because the touch was of a short duration and it was done over the victim’s clothing. 

17. The magistrate had reminded himself that for all indecent assault charge, there must be proof that the assault was accompanied by indecency, and according to right-minded people, the appellant himself must have intended the assault to be indecent.  He did not in terms make a specific finding that the touch in this case was indecent, but that is implicit by the verdict of guilty that he returned on the 2^nd Charge.  

18. I take into account Miss Chan’s response to this ground that the victim and the appellant were at best only colleagues working in the same building.  He was not entitled to touch her from the crown of her head down to her waist albeit in a single stroke.  In the course of doing that, he had also touched over her clothing the strap of her brassiere.  In my view the magistrate was entitled and indeed was correct to find that right-minded people would have considered that touch to be indecent, and that the appellant did intend the assault to be accompanied by indecency. 

19. The facts here are somewhat different from a previous appeal that I heard recently, HCMA528/2007 where the appellant while travelling on a bus touched the strap of a lady passenger’s brassiere over her clothing.  In that case I upheld the magistrate’s finding that that touch did amount to an indecent assault. 

20. In the circumstances despite Mr Wong’s able argument I have to dismiss the appellant’s appeal against his conviction.