HKSAR v. TONG YUNG EDDIE

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 253 of 1998

(On appeal from SKC 3774 of 1997)

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J U D G M E N T

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1. The Appellant is a man in his mid-twenties. On 4th February this year, he was convicted by Miss Angela Kot sitting at the South Kowloon Magistracy on the one charge which he faced which was of indecent assault committed against a woman in an MTR train on 29th October last year. The victim's evidence was of being touched on her buttocks four times. The last two times was witnessed by an Acting Chief Inspector of Police who happened to be on the train.

2. Five perfected grounds of appeal have been filed. The first reads as follows:

"The learned trial magistrate failed sufficiently to take into account the good character of the Appellant in assessing his credibility as a witness in the trial and his propensity (or lack of it) to have committed the offence charged."

3. This ground is not made out. The Magistrate said in terms that she bore in mind that the Appellant was a person of good character. There is nothing to suggest that she failed in any way sufficiently to take that into account. After all she was not directing a jury and was merely indicating her own thought processes as a professional tribunal.

4. The second ground of appeal reads as follows:

"The learned trial magistrate misdirected herself in relation to the way she approached the issue of credibility and propensity seemingly relying upon the evidence of "the defence witness" in this regard and not upon the fact of the Appellant's good character."

5. I do not regard this ground as made out. In addition to relying on his clear record the Appellant called his supervisor who gave it as her opinion that he was a good subordinate, hardworking, very polite and got on well with the colleagues in a decent manner. Far from being wrong to make a specific reference to the evidence of that defence witness, the Magistrate was right to do so. Such evidence was additional to the clear record. Rightly the magistrate so treated it, which was something in the Appellant's favour not against him.

6. The third ground of appeal reads as follows:

"Given the circumstances of the case the learned magistrate was wrong to conclude that "anyone hearing the Prosecution witnesses' description of the defendant's act will surely come to the only conclusion that it's a deliberate touch under circumstances of indecency.""

7. It was the Appellant's case that any touch was unintentional and the Appellant was entitled to be believed in absence of compelling reasons why his explanation should not be accepted. This ground is not made out. The victim's evidence was, as I have said, of being touched four times. As to the evidence of the Acting Chief Inspector, this is what the Magistrate said:

"Referring to the Acting Chief Inspector as PW2 and to the victim as PW1 at page 130 of the transcript. PW2 then saw the Defendant, with his upper body turned to the right, used his left hand with fingers crooked, touched PW1 for about one second. PW1 turned around, looked at the Defendant and walked to her left for half a step. PW2 kept the Defendant under observation. After about half minute, PW2 saw the Defendant turned his body, used his left hand with fingers crooked, stretched forward for about one foot and touched the right buttock of PW1 again."

The Magistrate had compelling reasons for rejecting the Appellant's explanation.

8. The fourth ground of appeal reads as follows:

"The learned trial magistrate was wrong to conclude that "it would be absurd for the Defendant to say that he was too deep in thought and was not aware of the presence of PW1 and if he had ever bumped into PW1 and yet he was aware of the others bumping into him". It is submitted that it is not unusual for persons travelling on public transport to "switch off" and not be fully aware on what is going on around them - particularly so given the Appellant's circumstances at the time."

9. I do not consider this ground to have been made out. People may switch off while travelling on public transport but the evidence of the Appellant's conduct given by the victim and the Acting Chief Inspector pointed to the Appellant being anything but switched off.

10. The fifth ground and final ground of appeal reads as follows:

"In all the circumstances of the case the conviction is unsafe and/or unsatisfactory, particularly so given the inherent unlikelihood that a person of good character would deliberately conduct himself in the manner described in the evidence of the prosecution witnesses."

11. The inherent unlikelihood referred to in this ground is catered for by the burden and standard of proof in criminal trials. The Magistrate was not mistaken as to either. As to the Appellant's good character, the Magistrate has, as I have already indicated, taken the same properly into account.

12. A new point taken by counsel for the Appellant which point is not among those included in the perfected grounds of appeal filed yesterday is one to the effect that the victim in fact failed to appear in court on the day when the case was first set down for hearing and that she only appeared at the adjourned hearing. Counsel for the Appellant suggested that that might have been because the victim herself was unsure whether the Appellant had deliberately touched her. The victim has offered an acceptable explanation which was accepted by the Magistrate. There is nothing in this new point.

13. Accordingly, this appeal is dismissed.