HKSAR v. MAK TSZ KIN, TERRY

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 2/98

____________

____________

______________

J U D G M E N T

______________

1. The Appellant was convicted in the Magistracy of 1 charge of Indecent Assault and now appeals against that conviction.

PROSECUTION EVIDENCE

2. The victim of the indecent assault was a 25 year old medical social worker. She caught a bus at 11:20 p.m. to go home. She sat in a window seat on the upper deck about three rows from the front of the bus. The Appellant boarded the bus near the Cross-Harbour Tunnel and sat next to the victim on her left. The victim felt an initial contact between her shoulder and the Appellant's shoulder and looked at him several times, she saw he had closed his eyes and assumed he was taking a rest. The victim then closed her eyes also and when the bus left the Aberdeen tunnel, she felt her left breast being touched. She opened her eyes and saw the Appellant's hand being withdrawn. She had felt the contact for about 2-3 seconds. She shouted at him asking "What are you doing", and then "What have you done" and hit his arm. The Appellant said to her "sorry". The victim stood up intending to leave but the Appellant did not immediately let her to do so. The victim described the touching as being with a palm with fingers extended. The woman made a report to the bus driver and a report to the police 2-3 minutes later.

THE EVIDENCE

3. The driver confirmed that a female passenger complained about an indecent assault at about 11:35 p.m.. The woman made a report to the police using her mobile telephone and a police constable arrived about 2-3 minutes later.

4. The police constable confirmed that he arrived at about 11:43 p.m., and he met the female victim who pointed out the Appellant who, at that stage, was sitting on the staircase inside the bus between the two decks. The officer said that when he arrested the Appellant he could detect a strong smell of alcohol. He took the Appellant back to the police station. There was no dispute about the identity of the Appellant. The police officer described at trial that when the Appellant got up he fell downstairs and had to be helped off the bus. After that Appellant staggered about and stumbled into a brick wall, hurting himself and as a result had to go to hospital.

THE DEFENCE EVIDENCE

5. The Appellant elected to give evidence and said that he had had dinner with friends that evening and he had drunk red wine and beer. He had also been to a bar before the dinner where he had drunk red wine. He confirmed that he got on the bus after dinner, that he was not clear whether he had gone upstairs, but sat next to somebody on the bus and intended to sleep. He claimed that the drink he had consumed had an effect on him and he was feeling dizzy. As a result his recollection was unclear. He seemed to recollect someone scolding him, but did not know why he was being scolded. He said he also remembered saying 'sorry' but he did not know whether he had bothered somebody or whether he had stopped somebody getting off the bus. He remembered the police arresting him but could not remember falling down the bus stairs nor bumping against the wall. He said he could not recall touching the victim's breast and that he would not ordinarily do so.

6. There were a number of grounds of appeal, first that the Magistrate failed to consider properly and evaluate discrepancies in the victim's evidence in relation to the actus reus of the alleged assault; that he wrongly failed to consider and evaluate evidence as to the drunkenness of the Appellant and contrived to resolve irreconcilable discrepancies between the evidences of PW1, PW2 and PW3 by conjecture and speculation. It was suggested that he was inconsistent in directing himself that there was no corroboration of the evidence of PW1 and then going on to direct himself that there was such corroboration. He was said to have wrongly prejudged the Appellant and convicted him in his own mind prior to the close of submissions. Finally, that he failed at the time of convicting the Appellant to take into account the evidence of DW2, the Appellant's common-law wife which went to his character, but also to his propensity for alcohol.

7. The Magistrate gave lengthy and very detailed reasons in his Statement of Findings as to why he convicted Appellant. Having considered those reasons I cannot see that he failed to properly consider the discrepancies in the victim's evidence. The only relevant discrepancy related to her initial account of how the touching had occurred. She said initially that she had seen the Appellant's hand on her breast, but her later answers showed she did not mean that but that she had seen the hand being withdrawn from her breast. She confirmed that her eyes had been closed at the time of the touch, but was able to give an estimate of the length of time the touching occurred. The Appellant endeavoured to show that because of his drunkenness he did not know what had happened and that it was possible because of his state that there was a touching, but if so any such touch would have been accidental.

8. The Magistrate looked at the evidence relating to the drunkenness very carefully. It was only at the time the police arrived the Appellant started to show any signs of obvious drunkenness and the police officer confirmed that he had smelled alcohol. The victim said she had not smelled alcohol and the Magistrate in his reasons did consider why she might not have been able to; this he was entitled to do in considering the evidence generally. There could have been any number of reason why the victim did not smell the alcohol that was smelled by the police officer. The Appellant was asked by the police at a much later stage whether he wanted to have a blood alcohol test and he refused. The Magistrate noted that fact and noted too that if Appellant had been very anxious to prove that he was drunk he might have been keener on the test however, the fact that none was done did not mean that the Magistrate simply speculated on the drunkenness. He had to assess the evidence of the drunkenness as it appeared from the evidence of the victim, the bus driver and the police officer and also what the Appellant said. He was entitled to conclude, as he did, that Appellant was exaggerating his evidence on this matter and that he had exaggerated his physical behaviour on the night of the incident once he realised a report was made to police.

9. In this regard the Magistrate was said to have failed to take the evidence of the common-law wife into account. The common-law wife was not present at the incident, nor was she present at the dinner at which the Appellant's drinking allegedly took place. Her comment as to character was all that her evidence was valid for. She was not in a position to comment on the Appellant's condition at the time of the incident. Her views on his propensity in relation to this type of offence were of no value and any evidence as to the fact that Appellant was in the habit of taking alcohol could have been given more than adequately by the Appellant himself. The Magistrate made it quite plain that he took into account the evidence of the common-law wife in respect of what she said of the Appellant's character.

10. I find no evidence from the findings of the Magistrate to show he had prejudged the Appellant and convicted him in his own mind, prior to the close of submissions, nor do I find that he misdirected himself on corroboration. I can find nothing unsafe about this conviction. Accordingly the appeal against conviction is dismissed.