HKSAR v. TAN KELVIN

HCMA882/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 882 OF 2007

(ON APPEAL FROM ESCC 2717 OF 2007)

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J U D G M E N T

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1. This is an appeal by the appellant against his conviction by Mr Abu B. bin Wahab, sitting at Eastern Magistrates’ court on 5 September 2007 of the offence of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap. 200.

2. The charge alleged that he had assaulted Madam Ma Wai Yi (PW1) (“Madam Ma ”) on 1 June 2007 at Room 901, Axa Centre, 151 Gloucester Road, Wanchai.

3. The facts as found by the magistrate were that Madam Ma was a subordinate of the appellant in the accounting department of a company which had its offices in Axa Centre. 

4. On the evening of the day in question, the appellant, Madam Ma and other employees of the company had taken a colleague from the company’s Taiwan office out to dinner.  After dinner at about 7.30 p.m. the appellant and Madam Ma returned to the office to continue working.

5. At about 9.40 p.m. Madam Ma intended to leave.  She walked past the appellant’s room and said goodbye.  The appellant asked if she would be working the following day, a Saturday.  He then came out of the room and asked Madam Ma if she had to attend classes the following day.  Madam Ma said that she did not.

6. As to what happened next, the magistrate made the following findings :

“

The Defendant grabbed hold of PW1’s left-elbow.  PW1 asked the Defendant what was happening.  The Defendant did not reply.  There was a pause.  The Defendant moved closer and embraced PW1 in a sort of bear hug.  PW1 put her left arm across and in front of her body at about waist level to try fending off the Defendant.  She asked the Defendant to compose himself.  The Defendant said to PW1 that he liked her very much.  The Defendant kissed PW1 on her lips.  PW1 pushed the Defendant away and told the Defendant to stop or else she would report to the police.  The Defendant then released the embrace.”

The appellant then left the office. 

7. It was not disputed that shortly afterwards, the appellant had sent text messages to Madam Ma saying that he was really sorry to have scared her and he would never do it again. 

8. It was also not disputed that when the appellant had, on a later date, been arrested and cautioned for indecently assaulting Madam Ma, he had said that he had been very fond of her for a very long time, but had never told her about it.  He had kissed her on the spur of the moment to show her his fondness.

9. The learned magistrate rejected a suggestion made by defence counsel that it could have been accidental that the kiss had landed on Madam Ma’s lips rather than on her cheek.  He concluded :

“	… I found that the Defendant forced himself on an unwilling PW1.  He embraced her and forced a kiss on her lips.  A right-minded person seised of such circumstances would have concluded that there had been an indecent assault.  I found Prosecution had proved guilty beyond reasonable doubt. …”

10. The appellant’s 1^st ground of appeal relates to the test applied by the magistrate in assessing whether the appellant’s actions were indecent.  Mr Surman for the appellant suggested that the magistrate did or may have applied a subjective test rather than an objective test.

11. This submission is based upon a passage in his statement of findings in which he said :

“

Even if what happened was as put by the Defence, I considered that PW1 would have found it offensive and repugnant.  She would have considered it an indecent assault.  She would have complained to her boyfriend, PW2 and, ultimately, the police.  I do not think PW1 had embellished her case against the Defendant.”

12. I am not entirely clear why the magistrate made this reference to a situation which had been put to Madam Ma by defence counsel and denied by her, namely that the appellant had not embraced her but merely put his hands on her upper arms and had only kissed her on the cheek.

13. I am satisfied however that reading the magistrate’s statement of findings as a whole that it is clear that he did apply the correct objective test.  Not only in the passage to which I have referred earlier, (“a right-minded person seised of such circumstances would have concluded that there was an indecent assault”) did he refer to an objective test, but earlier he had expressly stated that “whether a kiss amounts to an indecent assault depends on the views of the right-minded person given the circumstances of the case.”

14. There is nothing to suggest in the passage of which Mr Surman complains that the magistrate was applying a subjective test to the actions of the appellant as he found them to be.  He was referring to the situation suggested by defence counsel and rejected by the witness as to what her reaction would have been to that situation.  Even though he commented that Madam Ma would have considered it an indecent assault, he did not say that it followed that it would have amounted to an indecent assault in law.

15. Mr Surman complains that even when the magistrate referred to the objective test, he did not set out or apply the appropriate test upon which a right-minded person determines indecency namely “whether what occurred was so offensive to contemporary standards of modesty and privacy as to be indecent” (see R. v. Court [1988] 2 WLR 1071).

16. I find that it was unnecessary for the magistrate to refer to this particular form of words.  They are implicit in the magistrate’s reference to the test of indecent assault depending on the views of a right-minded person.

17. In the 2^nd ground of appeal it was submitted that since a simple kiss is not necessarily indecent, the appellant can only be convicted of indecent assault if he intended to commit an assault which right-minded persons would think was indecent (see R. v. Court [1988] 2 WLR 107).  It was submitted that the magistrate failed to say whether such intent was proved. 

18. In the 3^rd ground of appeal it was submitted that the magistrate erred in fact and in law in finding that without more this single unpremeditated kiss was capable of being indecent.

19. These two submissions rest on the erroneous basis that what the magistrate found the appellant to have done was simply to have given Madam Ma a kiss, an act which is ambiguous as to whether it is indecent.

20. While the act of a man kissing a woman is not inherently indecent (See R. v. Lam Chi Chee, HCMA783/1992), the magistrate found that the appellant had embraced Madam Ma and forced a kiss upon her lips.  He found that it was not accidental that the kiss had been to Madam Ma’s lips.  He concluded that a right-minded person knowing all the circumstances would have concluded it was indecent.

21. I am satisfied, contrary to the submissions of Mr Surman, that the magistrate was perfectly entitled to come to the conclusion that the appellant had forced the kiss upon her.  PW1’s evidence was that the appellant had been “very forceful” when he embraced her and that she had been unsuccessful in her attempts to fend him off.  The appellant had only been able to kiss Madam Ma on the lips because of the embrace in which he was forcibly holding her, however briefly.

22. I find that the magistrate was perfectly entitled to come to the conclusion (Ground 4) that the actions of the appellant were “so offensive to contemporary standards of modesty and privacy as to be indecent”.  It would have been surprising if he had not.  Even in Westernized societies where a kiss upon the cheek can be a simple greeting, a kiss upon the lips carries a connotation of physical intimacy between the parties.  This is all the more true in Chinese society in contemporary Hong Kong where kissing in any form is not a customary mode of greeting adult friends or acquaintances.

23. The appellant did not merely kiss Madam Ma on the lips but did so when he was holding her in an embrace in circumstances when it would have been clear to him that it was against her wishes.

24. I am satisfied that based upon the findings of fact which the magistrate properly made as to the actions of the appellant he was right to come to the conclusion that this was an affront to the sexual modesty of Madam Ma and therefore an indecent assault albeit one at the lower end of the scale of gravity.

25. Insofar as the 5^th ground of appeal is concerned, I find that having clearly stated his findings as to what the appellant had done to Madam Ma, namely “embraced her and forced a kiss on her lips”, it was not necessary for the magistrate in the circumstances of this case to go into any further detail as to why he had found this assault to be indecent.

26. I dismiss the appeal.