HKSAR v. CHAN YUI HONG

HCMA 392/2024

[2025] HKCFI 4221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 392 OF 2024

(On appeal from ESCC 677/2024)

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JUDGMENT

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1.  The Appellant was charged with one count of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap. 200, to which he pleaded not guilty. He was convicted after trial and sentenced to two weeks’ imprisonment. The Appellant now appeals against the conviction.

Prosecution Case

2.  The Prosecution and the Defence signed and submitted a set of admitted facts (P1), confirming that, at the material time, the complainant Female X worked as a part-time waitress at a restaurant named “Blaze Craft” on Hollywood Road. It was also confirmed that the Appellant was arrested on 26 November 2023, he voluntarily attended an identification parade on 26 January 2024 where he was positively identified by X and that he has a clear record in Hong Kong.

3.  The Prosecution called only one witness, that was X.

4.  At night on 20 October 2023, while X (a student aged 19) was working at the bar counter of the restaurant, the Appellant went over to her and introduced himself as one of the owners of the place. At about 11 p.m., as there were no more customers, two kitchen staff members, the Appellant, a male manager and X went outside the restaurant for drinks and chats.

5.  At about 12 midnight, X left alone to go home. She intended to walk down to Central MTR station. While she was waiting at the traffic lights outside the restaurant, the Appellant suddenly appeared next to her and offered to carry her paper bag for her. X agreed. As they were crossing the road, the Appellant suddenly used his right hand to grab hold of X’s left hand. X was shocked but given the Appellant was her boss and the big difference in age and position between them, X did not know how to react.

6.  As they were approaching the middle of Stanley Street, the street became quite dim and empty. The Appellant suddenly forcibly pulled X to the rear fire escape door of a building, and forcibly kissed her mouth. X felt his tongue and she used her teeth to block his tongue. This lasted for 2 to 3 seconds. X pushed the Appellant away and ran away immediately, walking at a fast pace, thinking when she got to the MTR station, then she could get rid of him.

7.  The Appellant continued to follow X. After 30 to 40 metres, the Appellant suddenly pulled X into another fire escape back door area, forcibly kissed her on her mouth and X felt his tongue again. This time it lasted for around 3 seconds. X again pushed the Appellant away and walked very fast towards the MTR station.

8.  The Appellant kept saying to X that he lived in Tung Chung and whether he should go to X’s home. X did not reply. X was worried that as the street was quiet, the Appellant would commit further acts of violence or indecency against her. As X continued to walk at a fast pace, the Appellant placed his right arm over her shoulders forcefully. His right palm touched her right breast several times, with patting movement for 2 to 3 seconds.

9.  X felt that she could not tolerate the Appellant any longer. She saw a minibus stopped on the side of the road. She grabbed the bag back from the Appellant, said “Don’t follow me!” and boarded the minibus. Once inside the minibus, X started crying and called her friend Tiffany. She then received a call from her mother who informed her that she was going to Central to pick her up. X did not dare to get off from the minibus at that time, fearing that the Appellant would be there. She got off about 2 minutes later and ran to the Central Market to meet her mother.

10.  On that same night, X wrote a letter (D1) to the manager of the restaurant Eric to explain the incident and to tender her resignation. As she had already committed to work on the night of the restaurant’s first anniversary party, she still went to work on that night of the anniversary. When she got to work, she gave the letter D1 to Eric and asked him to read it only after the party as she did not want to affect his mood. However, she soon learnt from other staff members that the Appellant would attend the party as well and she became anxious and panicked. She told two female staff members about the incident and they told her to inform Eric immediately. She then asked Eric to read the letter right away. Having read the letter, Eric told X that she could leave and he would handle the matter.

11.  X said that she did not consent to the two kisses and the touch on her breast by the Appellant. She had let the Appellant to hold her hand only because she was shocked at that moment when it happened and she did not know how to react.

Defence Case

12.  The Appellant elected not to give evidence nor did he call any defence witnesses.

13.  The defence case, as revealed from the cross-examination of X, was that both kisses were consensual and that the Appellant had never touched X’s breast.

Magistrate’s Findings

14.  The Magistrate, having considered the defence criticisms of X’s evidence, decided to accept her evidence and found that the events of the night occurred in the way she described. Regarding the touching of X’s breast, the Magistrate was not sure as to whether it was intentional on the part of the Appellant. On the other hand, regarding the two kisses on X’s mouth, the Magistrate found them to be intentional and excluded the defence suggested possibility of mistaken belief of consent. The Magistrate then found that the Prosecution had proved the charge of indecent assault beyond a reasonable doubt and convicted the Appellant accordingly.

Grounds of Appeal

15.  The Appellant relied on a total of two grounds of appeal, namely:

Ground 1:  the conviction was against the weight of evidence in that the Magistrate failed to deal with adequately or at all the major discrepancies or inconsistencies or contradictions in the evidence of X.

Ground 2:  the Magistrate’s treatment of the evidence as a whole led to the Appellant’s conviction being unsafe in all the circumstance of the case.

My Analysis and Decision

16.  I have considered all the written and oral submissions by both parties but do not seek to repeat all of them in detail. I shall however refer to those relevant and important parts in my subsequent analysis.

17.  According to the Court of Final Appeal’s decision in HKSAR v Hui Lai Ki (2024) 27 HKCFAR 265, magistracy appeals are to be conducted by way of rehearing. The judge must be satisfied that the appellant’s guilt has been proven beyond reasonable doubt on the evidence, failing which the appeal must be allowed. An appellate court conducting a rehearing would be subject to limitations arising from the fact that it does not have the advantage of receiving witness evidence first-hand. Hence, it must exercise caution when considering findings of fact based on oral testimony. Yet, despite those limitations, it remains the duty of the appellate court on an appeal by way of rehearing to come to its own conclusion on disputed issues of fact or law.

18.  The two grounds of appeal, which centered on the criticisms of X’s evidence and the complaints about the Magistrate’s assessment, could be conveniently dealt with together.

19.  In summary, there are two areas of criticisms raised by the Appellant in relation to X’s evidence, (1) the discrepancies or inconsistencies or contradictions between what was recorded in her witness statements and what she said in evidence, as well as those discrepancies or inconsistencies or contradictions in her evidence in Court; and (2) the discrepancies or inconsistencies or contradictions between what X testified against the Appellant and what she previously said or wrote to other people about this incident. In addition, as argument (3), the Appellant also relied on what X did at the material time and argued that it could lead to the Appellant’s mistaken belief of her consent to the kisses.

20.  I first deal with (1), the alleged discrepancies or inconsistencies or contradictions in X’s evidence itself and those between her evidence and her witness statements.

21.  The Appellant complained that X gave different versions as to whether she was “pushed” or “pulled” to the fire escape doors when the Appellant forcibly kissed her on two occasions. This was in fact an area which was heavily relied upon by the defence at the trial and had been carefully considered by the Magistrate[1].

22.  I went through the relevant transcripts of X’s evidence[2]. X had in fact explained that the Appellant had both pushed and pulled her and she said her usage of those words meant the same thing to her. As rightly observed by the Magistrate, whether push or pull (or both), “the effect of X’s evidence is the same: namely that the Defendant had suddenly by force taken her into the fire escape area”[3], on this X had all along been consistent and clear. The difference in description, if any, be it “push” or “pull” or both, is of no significance.

23.  The Appellant also complained that X said in her evidence that she ran away immediately after the kisses by the Appellant, but she in her first witness statement only stated that she pushed the Appellant away. I noted from the relevant transcripts[4], when X was cross-examined on that and the relevant part of her statement was read to her as “I immediately pushed the suspicious person away and left”. The two versions, in statement and in evidence, were basically consistent. What is important in that aspect of X’s evidence was that, on both occasions when X was forcibly kissed by the Appellant, she apparently tried to refuse and avoid, by pushing the Appellant away and/or running away herself immediately to get away from the Appellant, as summarized by the Magistrate[5]. By such actions or responses, X had clearly shown to the Appellant that the kisses were not acceptable.

24.  The Appellant also complained that X did not mention in her witness statements that the Appellant had kept asking where she was going. It is noted that X had in fact mentioned in her letter D1[6] to the manager Eric about the Appellant’s repeated questions of her home and where she was going at the time. This is in any event immaterial, just like another complaint of the Appellant about X not having mentioned in her witness statements that she had at one stage told the Appellant not to follow her when she got onto a minibus.

25.  The Appellant’s another complaint was that X did not mention in her witness statements that she had told the two fellow waitresses about the incident. According to X, she told the two waitresses about the incident because she came to realize that the Appellant would also attend the restaurant’s anniversary party, that she was nervous and panicked and did not want to see the Appellant again, she therefore told them what had happened before to seek their advice as to what to do[7]. That was not meant or intended to be a complaint made to the waitresses about the Appellant’s behavior and therefore not an important matter in X’s view to be reported to the police.

26.  Now I move on to consider (2), the alleged discrepancies or inconsistencies or contradictions between what X said in her evidence against the Appellant and what she previously said or wrote to other people about this incident.

27.  The first complaint in this area raised by the Appellant was that X had only detailed one kiss to her friend Tiffany after she got onto the minibus. In fact, according to X’s own evidence[8], what she had told Tiffany over the phone was “Today, I was forcibly kissed by the boss and, just now, he was trying to follow me back home. I was so scared now”. As such, she did not in fact give the detail but simply told her friend that she had been forcibly kissed by the boss. It is important to note that the Prosecution never relied upon, so as the Magistrate, what X said to her friend Tiffany on phone as evidence of recent complaint.

28.  The next complaint arose from the letter D1 written by X to the restaurant manager Eric shortly after the incident but before she reported to the police. The Appellant heavily complained that X in that letter had left out a lot of important details of the alleged indecent acts of the Appellant. I read that letter D1[9] carefully. It was a 5-page-letter in Chinese. First of all, it is most important to note that it was in fact not a letter of complaint by X about the Appellant’s behavior, it was instead a letter expressing X’s own emotions and feelings. As such, the fact that that letter did not contain a lot of details about what happened between X and the Appellant during the incident is understandable and reasonable. In another way, it is also correct for the Magistrate to observe that that letter D1 which X wrote to her then restaurant manager Eric was only intended to be a resignation letter.[10]

29.  On the other hand, the fact that X had written in the letter D1 about the Appellant first coming over to carry her paper bag for her, touching and then grabbing her hand, and lastly kissed her suddenly[11], are to a certain extent consistent with X’s relevant evidence in Court. In fact, X also explained during cross-examination that “ At that time, I wrote in the letter he kissed. It means that he did have…this act ”[12]. She also explained that she only wrote down her mind including her emotions and what she did not write down did not mean it did not happen, and that when she was writing, she was emotional and kept crying[13].

30.  As I previously said, there is another argument (3) by the Appellant. The Appellant submitted that, X’s behavior at the material time, namely allowing the Appellant to hold her hand as they walked together, might have given the Appellant a wrong impression and that the Appellant could have a mistaken belief that she consented to his acts. It was also submitted that X was able to push the Appellant away, run away by herself and board a minibus, all showed that X was not under the Appellant’s control at any time.

31.  I have considered all the relevant circumstances. First, as a background, leaving aside the differences in age and position in the restaurant, X and the Appellant were at the material time almost strangers or at least not familiar with each other. Further, I have carefully considered all the relevant evidence of X[14]. According to X, when the Appellant suddenly grabbed her hand she was too shocked to respond. She walked at an extremely fast pace as she thought when arriving at the MTR station she could then leave the Appellant behind. More importantly, when the Appellant escalated his action by forcibly kissing her and inserting his tongue into her mouth, X immediately reacted to resist by using her teeth to block his tongue, pushed him away and left. Up to that stage, it was clear to any reasonable man and also to the Appellant that there were clear responses of no consent on the part of X of such intimate acts. Still, the Appellant went on and at a later stage again forcibly kissed X and inserted his tongue into her mouth for the second time. Under those circumstances, there is simply no room or possibility for any mistaken belief of consent.

32.  In fact, the Magistrate was alive to such defence argument of mistaken belief and had correctly dealt with it. As rightly observed by the Magistrate, “X not having shaken his hand off or said anything to the Defendant, in my view, does not give the impression that she would consent to and welcome any further sudden physical acts of affection from the Defendant, particularly by forcefully pushing/pulling her into a fire escape area”[15], to this I entirely agree.

33.  Both grounds of appeal fail.

34.  I have conducted this appeal by way of “rehearing” and considered all the evidence with care. I agree with all the Magistrate’s analysis of the evidence and come to same conclusion to convict. I am sure there is sufficient evidence to prove the charge of indecent assault beyond a reasonable doubt. I accordingly dismiss this appeal against the conviction. The conviction should stand.