HKSAR v. CHENG WAI KEUNG

HCMA 1016/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1016 OF 2000

(ON APPEAL FROM STCC 881/2000)

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JUDGMENT

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1. The appellant, Cheng Wai-keung, was convicted, after trial, on 30 August, 2000 by Miss Amanda Woodcock, Permanent Magistrate, sitting at Shatin Magistracy, of an offence of indecent assault, contrary to section 122(1) of the Crimes Ordinance. He was sentenced on the same day to perform 60 hours of community service. He now appeals his conviction but not his sentence.

2. The appellant is of previous clear record. He was represented at trial by counsel.

3. The appellant is a practitioner of Chinese medicine at a clinic in Wai Wah Centre, Shatin. His clinic is adjacent to the 1st prosecution witness' clinic. The 1st prosecution witness is a dentist, and the 2nd prosecution witness is his assistant.

4. The 3rd prosecution witness, the complainant, is the daughter of the 2nd prosecution witness. She is by profession an insurance agent. She was a frequent visitor to the appellant's clinic for massage treatment for pain in her shoulders, hip and waist. They had become acquainted and she had sold him two insurance policies. She had received treatment from him several times. She had also received treatment from his wife, who worked at his clinic.

5. It is the prosecution's case that on 20 June 2000 the 3rd prosecution witness visited her mother at work, and had then gone to see the appellant for treatment. She had no prior appointment, but he was free to treat her. Only the 3rd prosecution witness and the appellant were in the clinic.

6. He massaged her neck and shoulders from behind while she sat on a chair. Then he massaged her waist whilst she lay face down on a bed or treatment couch. After this treatment she told the appellant that her shoulders were still painful, and he asked her to sit up on the bed.

7. According to her evidence, he stood behind her and massaged her again. She was sitting on the bed with her legs crossed underneath her in a lotus position. She said that after five minutes of manipulation of her shoulders he slid his hands over her shoulders to the front of her body above the chest area and suddenly squeezed both of her breasts hard with both of his hands.

8. The 3rd prosecution witness elbowed him away, he withdrew his hands and apologised. According to her he said that he could not help himself as he had not seen his wife for two months and that he could not resist doing what he had done. The magistrate -- and there is no complaint about this -- took the reference to "not seeing his wife for two months" to be an allusion to the fact that he had not had sexual relations with his wife for two months.

9. The 3rd prosecution witness said that she shouted at him and left his clinic. She immediately went next door and told the 1st prosecution witness and the 2nd prosecution witness, her mother, what had just happened. Her mother went to the appellant's clinic and confronted him. He told her that it was a misunderstanding. The police were called.

10. The appellant gave evidence; he agreed that he had been treating the 3rd prosecution witness, but disputed that he had ever intentionally assaulted her by squeezing her breasts. He said in evidence that he was manipulating her waist while she was in a particular position lying down on the treatment couch. While he was doing this his left elbow accidentally brushed against her left breast. He maintained that it was an accident and unintentional. He said that he had never manipulated her shoulders from behind while she sat on the bed.

11. He suggested that the 3rd prosecution witness had a motive to lay false complaint against him as he told her before the treatment started that he wished to cancel the insurance policies she had arranged for him. It was suggested that she was angry with him because of this and that when he accidentally touched her left breast she jumped to the wrong conclusion and thought that he was indecently assaulting her.

12. On appeal today the appellant is represented by Mr Ian Polson, who was not his counsel at trial.

13. The grounds of appeal are as follows:

"1. The learned trial magistrate erred in law in convicting the appellant.

1.1 In her reasons for judgment (page 49 of the transcript, lines M-N) the learned magistrate

purported to chose between which two versions she was to believe.

1.2 The learned trial magistrate never adequately dealt with the core issue that the contact could have been accidental (page 51 of the transcript,lines N- P) particularly as the defendant had been engaged to touch various parts of the 3rd prosecution witness' body in the course of bona fide treatment.

2. In all the circumstances the conviction is unsafe and unsatisfactory."

14. As to the ground pleaded in paragraph 1.1, what the magistrate said in her oral reasons delivered at the time of conviction of the defendant, is this:

"This is a case of one-against-one. There are two versions of the events. Either PW3 is lying or exaggerating to a greater extent, or the defendant is lying. There is no corroboration in this case and there is no necessity for corroboration, but I have nevertheless considered the fact that there is none."

15. In this paragraph I believe that the magistrate did no more than identify the real issues in the case, the resolution of the conflict between the evidence of the complainant, the 3rd prosecution witness, and that of the appellant. The 3rd prosecution witness said that the appellant had deliberately squeezed her breasts once very hard with both of his hands when she was sitting on the bed and he was standing behind her. He, on the other hand, maintained that his left elbow had accidentally bumped against her left breast while he was manipulating her waist while she was lying on the bed. As there was no corroboration of either accounts, the magistrate, quite rightly, categorised the case as being a one-against-one allegation.

16. Strictly speaking, she was not correct to continue by saying, "Either PW3 is lying or exaggerating to a great extent or the defendant is lying." There remained a third possibility: that both were lying. Without more, this may have been fatal to the conviction. However, the magistrate proceeded to recount the evidence of both the witness for the prosecution and the witness for the defendant, the defendant himself, and to evaluate the evidence.

17. She came to make specific findings in respect of the 3rd prosecution's witness' evidence. She found her evidence to be "very clear and cogent" on the issue of whether or not it was an accidental assault. She found that the 3rd prosecution witness had no motive to make false allegations against the appellant, who - as she told the magistrate - she respected as a medical practitioner and had come to know quite well. She found that the 3rd prosecution witness did not make her complaint to the 1st and 2nd prosecution witnesses and the police because of an accidental elbowing by the defendant, but rather that it was a deliberate hard squeeze done by him with both of his hands to both of her breasts that caused her to make a complaint. And she found that the 3rd prosecution witness was a truthful witness, and that she accepted that the assault took place as the 3rd prosecution witness described.

18. The magistrate's discussion of the evidence was meticulous; as Mr Polson conceded. It is obvious that the magistrate did not come to her decision to convict by preferring the 3rd prosecution witness' evidence rather than the appellant's. She made, as she had to, positive findings that the 3rd prosecution witness was a witness of truth and that she accepted her evidence.

19. I do not read the magistrate's statement at paragraph 19 of the statement of findings prepared for this appeal - which reads as follows, "I found after careful consideration of the evidence of PW3 and the appellant that I accepted the evidence of PW3" - the rest is not relevant - as a further indication that she was approaching her task as one of preference. What she said there is no more than a simple statement: that, as trier of fact ,she accepted the prosecution's evidence.

20. Mr Polson does not strenuously argue the ground pleaded in paragraph 1.2. However, I have to say that it is clear that the magistrate was well aware of the appellant's evidence. He gave evidence in considerable detail as to how the purported accidental bumping of the complainant's left breast came about. He placed before the magistrate various materials on the relevant postures that are adopted in the course of his art. The magistrate was alive - very alive - to the issue of accidental bumping. She noted the defendant's evidence and the materials put before her when recounting the appellant's case.

21. Intertwined with the defence of accidental conduct was the defendant's suggestion that the 3rd prosecution witness had framed him, or exaggerated her evidence, because of his cancellation of the insurance policies. The magistrate considered this claim and she rejected it.

22. She noted the defendant had been consistent in maintaining his innocence throughout, right from the moment the incident occurred and she commented that he did not come across as a "cunning or quick-witted person".

23. From the transcript there is no basis for the complaint that the magistrate failed to deal adequately with the defendant's explanations by way of his defence.

24. I take Ground 2 to be a general sweeping-up ground, nevertheless, it requires dealing with. The magistrate directed herself adequately and properly on the issues of corroboration, recent complaint and the appellant's previous good character. She was aware - and she indicated that she was aware - that the prosecution had to prove its case against the appellant beyond reasonable doubt.

25. This case, like so many that come before the courts, turned on the credibility of the 3rd prosecution witness and the appellant in their accounts as to what took place. Under our system of justice these issues fall to be decided entirely by the magistrate as the tribunal of fact. Having seen and heard the witnesses, including the defendant, the magistrate accepted the 3rd prosecution witness' evidence. There is nothing in the appeal bundle that persuades me that she was wrong to do so.

26. I am satisfied that the conviction is neither unsafe nor unsatisfactory, the appeal against conviction is dismissed.