HKSAR v. LAW CHI FAT ALFRED

HCMA887/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 887 OF 1998

(On appeal from ESC2265 of 1998)

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J U D G M E N T

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1. On 24 August 1998, J Brennan Esq., magistrate, convicted the appellant after trial for the offence of indecent assault, namely, that on 11 July 1998 inside a lift in the Convention Plaza Apartments he indecently assaulted a named female. He appeals that conviction on the general ground that it was unsafe and unsatisfactory. There are perfected grounds of appeal, as I shall come to.

2. The prosecution's primary witness was the named victim whom I shall call, as she was at the trial, PW1. Her apartment is in the Convention Plaza. She entered one of the lifts on the ground floor in the early hours of the day in question, heading for home. Her destination was the 11th floor. From there she has to change to another lift. The appellant, whose identity was not in dispute, followed her in. PW1 stood on the right side of the lift, facing the doors, as they closed. The appellant stood to the left and slightly behind her.

3. He began talking to her, first in English and then Cantonese. She moved away from the appellant but he moved towards her. She became frightened and started crying. She was by now up against the door, close to the buttons. The appellant stretched his right hand towards her left hip. She pushed it away, but he persisted and, with some pressure, touched her left hip. Asked to clarify the nature of this touching, she said that he grabbed her left hip. Then PW1 began screaming and slapped the appellant's face. The appellant smiled and laughed. Then the lift stopped and the doors opened.

4. PW1 ran out screaming. Security arrived. The appellant remained in the lift, the doors began to close but PW1 prevented this by pressing the Open button. She used her mobile phone to call the police, saying, "This man molested me in the lift." She was upset and still crying. The appellant apologised saying he only wanted to be friends.

5. The second witness was a security guard on duty at the 11th floor lobby. He was attracted to the lift by the sound of PW1 shouting. He heard her say, "Why did you touch me? Don't go." PW1 complained to him "Indecent assault" and not to let the man go. The appellant told him he wanted to be friends and was joking.

6. The remaining witness was a police officer who came in response to PW1's call. He arrested the appellant. After caution, the appellant said to him, "I did not indecently assault her, I just wanted to chat with her. I want to make a phone call."

7. That was the prosecution case.

8. The appellant chose to give evidence. He said he held an executive position, he had no previous convictions. Prior to the incident he had been at a neighbourhood disco. He had been drinking.

9. He went to the Convention Plaza Apartments to make a phone call. He knew there were telephones on the 11th floor. He had his own portable but those on the 11th floor are free. He was a bit drunk. He entered the lift. He was on the right, PW1 was on his left. He asked PW1 the time. She did not respond. He did not reach out to touch her or attempt to do so. Just before the 11th floor he said, "I just want to be your friend, that's all. You don't have to be so proud and make yourself to be so special high class." He accepted he was intoxicated and this may have been said robustly. Then it was that PW1 rushed out, shouting "Indecent assault".

10. That was the appellant's case.

11. The magistrate had a material dispute of facts to resolve. He took into account that the appellant had a clear record and that this had to be a factor in considering his credibility and a propensity or otherwise to commit the offence. He warned himself of the particular danger of convicting an accused of a sexual offence without corroboration. He paid heed that PW1 made a complaint shortly after the alleged incident, whilst recognising this did not amount to corroboration. He reminded himself the burden was at all times on the prosecution to prove the appellant's guilt.

12. In the event, he accepted as the embellished truth the account of PW1. He found her to be impressive in the witness box, not given to exaggeration or misinterpretation of harmless overtures of the appellant. He did not believe the appellant as to why he was in the lift or what happened in the lift. The appellant, having himself raised the issue of self-induced intoxication, he considered whether the prosecution had proved intention. He found it had. He found as a fact that the appellant had intentionally assaulted PW1 by grabbing her hip. He was satisfied that in the circumstances a right-minded person would regard it as indecent. He found all the essential ingredients in the charge proved and convicted the appellant.

13. In his perfected grounds of appeal, the appellant claims the conviction is unsafe and unsatisfactory because the magistrate found "The appellant then stretched out his right hand towards her right hip, at which PW1 pushed it away." He complains this is contrary to PW1's evidence. He says this erring on such a crucial issue reveals the magistrate did not evaluate the evidence properly. He also says PW1 could have been mistaken as to the appellant's intentions, given her emotional and panicky state. Finally, he says there was no basis for rejecting the appellant's stated reason for going to the 11th floor and what happened on the way there.

14. I have had the benefit of full submissions from Mr IU for the appellant. He has expanded on the grounds of appeal and submits that, taken individually and collectively, they reveal that the conviction is unsafe and unsatisfactory.

15. As for the first ground, the magistrate did, when recounting PW1's evidence in the statement of findings, record the appellant touching her right hip. In fact the transcript reveals that she did say that at first and then repeated it, and only later retracted, saying that she had made a mistake and that it was not her right hip but her left hip.

16. I have no doubt this slip of tongue by her caused a slip of pen by the magistrate. But it was not a finding of fact. That came later when he stated, "I was sure beyond reasonable doubt that the appellant intentionally assaulted PW1 by grabbing her hip." There was no error by the magistrate on a crucial issue. He was not obliged to ask himself why or how PW1 had been mistaken. He found her to be telling the truth and this would have encompassed her saying that she had made a mistake. And nothing comes of the point that at first she said "touched" and later "grabbed". The expression "he grabbed" in context was her elaborating on the nature of the touching that she had experienced.

17. The remaining two grounds go to the magistrate's assessment of the evidence as it was adduced by those witnesses who gave it.

18. Having considered all the evidence, he came to findings of fact. An appellate court which lacks the advantage of listening to the evidence as it unfolds and assessing the witnesses as they give it will be slow to interfere with such findings unless they are not sustainable on the evidence.

19. The magistrate's approach to how he dealt with that evidence was undertaken with some care. It is a matter of settled principle that a trial court, professionally trained, is not obliged to recount all the matters to which he or she has paid heed in the process which leads to findings of fact and law. He reminded himself the fundamental principle of where the burden of proof lay and the need for special caution where the prosecution relies on the uncorroborated evidence of a victim of alleged sexual misconduct. His approach was, in my view, without fault.

20. The appellant's conviction was neither unsafe nor unsatisfactory. The appeal against conviction is dismissed.