R. v. CHAN CHI KEUNG

1997, No. MA 88

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. This is an appeal from Magistrate Mr Ma who convicted a man of indecently assaulting an 18 year old schoolgirl on a train.

2. She took the train at the Fanling KCR Station. Her father was with her all the time. She said that the platform was very crowded and while she was entering the compartment someone touched her buttock and this happened a few times again after she was inside the Shatin bound train. Apparently, with her father standing next to her, one would have expected that any schoolgirl or young girl to have immediately complained, but apparently, she did not complain. When the train got to Shatin, there was a person who was clearly the appellant, who was standing next to her. When the train was going towards Tai Wai, she said that she was touched again.

3. The appellant gave evidence and denied the allegation. There was no independent evidence and there was no corroboration . Generally speaking, these are matters for magistrates to decide on issues of fact. The courts are always highly supportive and protective towards young women who are indecently assaulted on trains. It must be a very distressing thing for any woman who happened to be on a train and was touched by someone who is a complete stranger and courts nowadays sentence people to prison for this type of offences.

4. The unusual feature, apart from the lack of complaint to her father, was the description which she gave in her evidence which Mr Cheng Huan, Q.C. appearing as he does for the appellant, has drawn to my attention. She said that there were many people around her. A man in a white shirt was on her left hand side behind her and that there was a person between her and the appellant. So she was standing near her father with this man on the left hand side and behind her. She then said that she felt a touch and her body turned around clockwise. So she turned as it were away from the person on the left and then she said she looked to her right and it was the right hand of the person who was on her right, slightly in front of her. I am not quite sure what she meant by that and Mr Cheng Huan said this is a material matter that the magistrate should have dealt with. Magistrates have a very difficult task. They do not have to evaluate all of the evidence and they are professionals, and we are entitled to assume they approach the matter perfectly properly. This magistrate clearly did examine the matter carefully.

5. The other unusual feature was that when looking at the appellant's evidence, the magistrate did not believe him when he said that perhaps the train had braked sharply and someone else bumped into this young girl. The magistrate said if it were someone else, why did not that other person get arrested?

6. The fact that she said that it was this man, in the presence of the father, does not increase the weight to be attached to her evidence. If she was wrong in identification, she would be wrong all the way through. And if she was wrong in identification, she would then identify the wrong person. These cases, as I said, are always very difficult because men unfortunately often take the opportunity in crowded train compartments to assault young women under the cover of a large number of people. As I said it must be extremely upsetting to any young woman to be assaulted in this way. However, the courts stringently ensure that in question of identification there must be certainty in that identification.

7. I can find no other evidence at all, having looked through these papers, which in any way links this appellant. He clearly was on the train, of course, but there were no other evidence. The father saw nothing. This is an unusual feature of the case. I have dealt with a number of these cases, it is the first time I have come across a young girl being assaulted when her father was standing right next to her. Of course that does not mean she cannot be assaulted. There is a material discrepancy, in my judgment, which the magistrate perhaps overlooked. He clearly did not accept the evidence of the appellant. That, of course, does not prove guilt. People tell lies out of a variety of reasons. He was there and he was being accused, people may tell lies out of panic or reasons unconnected with events. But it does not prove guilt at all. The magistrate reminded himself of the good character of the appellant and said :

"When assessing his evidence, I have to consider in his favour that he is someone who is more likely to tell the truth."

The magistrate also has to consider, under the standard Berrada direction that he is a person of that age that it is more probable than not that he did not do it. That perhaps was a slight error by the magistrate.

I have looked at all these papers and there is, in my judgment, a lurking doubt in this case. Having examined all the evidence and accepting that I have not seen the witnesses as the magistrate did, I do consider as a matter of justice that I could not say that I am sure that the identification was the correct one. In my judgment, therefore this appeal does fall within that category where a judge is entitled to intervene on the ground that the conviction was unsafe or unsatisfactory. The appeal against conviction is therefore allowed and the conviction is quashed.