R. v. SHEK CHI CHIU

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 922 OF 1996

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J U D G M E N T

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1. This appellant was convicted at the South Kowloon Magistracy by Mr Wyeth, an experienced Magistrate, of indecent assault. It was a case which occurred on the MTR, going between Tsim Sha Tsui and Jordan.

2. There was a young Filipina girl on the train who was clearly indecently assaulted. She gave her evidence very well. She described what had happened to her - it must have been a very frightening experience for her. Because of her fear, she did not actually turn round and look at the person who indecently assaulted her.

3. There was a plain clothes police officer on the train whose job was to look for these sort of things - to save women being indecently assaulted on the MTR. He saw the appellant, but did not see him doing anything. He saw him standing near the girl. She said the man was standing behind and wearing a brown jacket. There was no identification. It is an unusual case. There is grave suspicion that it was this man.

4. The magistrate said that he disbelieved the evidence of the appellant and that he was well aware that his guilt did not automatically flow from this. The burden of proof is on the prosecution. The prosecution must make the magistrate sure of two things - first that the girl was indecently assaulted, which she clearly was, and secondly that it was the defendant. The magistrate wrongly recorded at p.41 that : "She glanced back and saw the appellant's right hand on her buttocks." There was no evidence of this.

5. This case, as I said, has a number of unusual features. I think there is very strong suspicion that it was the appellant who indecently assaulted this girl. However, these cases must be tried according to law. The law is that the prosecution must make the judge or magistrate sure. I think there is a lurking doubt and the conviction is unsafe and unsatisfactory. On that basis alone, I would allow the appeal.

6. This man whom, in my judgment, was wrongly convicted served 21 days imprisonment. I do not know why. He was apparently put into custody for preparation of reports. It is quite wrong in principle to imprison people unless it is part of a sentence because an appeal may be made. When the reports came back, they did not show anything about this man at all. Magistrates must be very careful not to remand people in custody before sentence. It gives the impression that it is some form of punishment.