HKSAR v. HUSSAIN, MAZHAR

HCMA 331/2019

[2019] HKCFI 3063

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 331 OF 2019

(ON APPEAL FROM WEST KOWLOON MAGISTRACY

CASE NO WKCC 5848 OF 2018)

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REASONS FOR JUDGMENT

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1.  The appellant was convicted after trial before a magistrate of one charge of indecent assault and was sentenced to 9 months’ imprisonment.

2.  He appealed against conviction and sentence. He had not stated any grounds of appeal in his Form 101 (against conviction), and he simply relied on the printed ground on his Form 102 (against sentence) that is his sentence was too severe.

3.  He was represented at trial by duty lawyer but he acted for himself during the appeal hearing.

The Court’s decision

4.  After reading and hearing parties’ submissions, I dismissed the appeals against conviction and sentence. I said reasons would be handed down later. Here are the reasons.

The magistrate’s findings of facts

5.  The magistrate recorded his findings of facts in para 36 of the Statement of Findings which is reproduced below:

“36. Having considered all the evidence, I find that the prosecution has proved the following facts beyond reasonable doubt:

a. At about 3 pm on 26 December 2018, X, who was wearing a T-shirt and a pair of short pants without a bra, was sleeping at the lower bunk bed which was placed at the living area of the Flat. The Defendant was also inside the Flat.

b. At about 6 pm on that day, the Defendant come onto X’s bed, lying at the inner area of the lower bunk bed, using his lower part to touch X’s buttock for about 10 seconds. X’s buttock was not covered by the blanket. X pushed the Defendant away by using her elbow.

c. The Defendant then used his private part to touch X’s buttock the second time. X likewise used her elbow to push the Defendant away.

d. The Defendant used his right hand to touch X from her waist to her right breast outside her T-shirt. The Defendant squeezed her right breast once. X pushed him away and sat up.

e.  The Defendant embraced X with his both hands, pressed her down onto the bed, and told her to enjoy and he would not hurt her. X kept struggling and said that she would call the police. The Defendant still embraced her tightly. X repeated that she would call the police, and then the Defendant released her and went back to his own room.”

The Defence case at trial

6.  The appellant gave evidence at trial. The essence was that he was married to X’s mother on 19 October 2017 and came to Hong Kong in 2018. At about 12 am on 26 December 2018, after watching a movie on his mobile phone with X’s mother in the room of the subject flat, the couple went to sleep. The appellant woke up at about 2:30 pm the same day and, thereafter, had been staying in his room for checking emails and WhatsApp messages. He did not know where X’s mother had gone. He was not aware of X’s presence inside the flat. At 6-7 pm, while the appellant was using his mobile phone in his room, the police suddenly opened the door and arrested him. He denied having committed any indecent assault as alleged.  The appellant produced a copy of the WhatsApp messages (exhibit D1) showing he was communicating with somebody between 6:18 and 6:22 pm on that day.

The magistrate’s reasons for sentence

7.  The magistrate recorded his reasons for sentence in paras 42-47 of the Statement of Findings which are reproduced below:

“42. The Defendant, aged 26, was born in Pakistan and come to Hong Kong in 2017. He has a clear criminal record.

43. The Defence submitted that the incident was not the worst kind of indecent assault as it involved no force (notwithstanding the Defendant’s embracing act), no injury nor premeditation.

44. There is no sentencing tariff for indecent assault offence. I remind myself that each case depends on its own facts. Having said that, I have taken into account the following cases before sentence.

45. In HKSAR v. [Leung] Sing Yiu (transliteration), HCMA 584/2015 (Chinese judgment, 15 February 2016, unreported), the appellant, being the step father of the victim, extended his hand into the pant of the victim and touched her private parts on three occasions. He pleaded guilty to the charges. The magistrate adopted a starting point of 12 months imprisonment. The sentence was not disturbed on appeal.

46. In HKSAR v. Ng Lap Kuen (transliteration), HCMA 581/2008 (Chinese judgment, 9 September 2008, unreported), the appellant used his arm to touch a 13-year-old girl’s breast and to pat her on her buttock when she was on an escalator. The appellant was convicted after trial. The CFI considered that an imprisonment term of 9 months is appropriate.

47.  Madam X was not under age at the time of the incident. The relationship between the Defendant and Madam X was not good and they seldom communicated with each other. Having said that, there still exists a stepfather and daughter relationship, and but for that relationship, the Defendant would not have been present in the Flat when Madam X was sleeping in the lower bunk bed. Having considered all the circumstances, I adopt a starting point of 9 months’ imprisonment. There being no other aggravating or mitigating factors, the Defendant is sentenced to 9 months’ imprisonment.”

Summary of appellant’s submissions on conviction

8.  The appellant made the following submissions on conviction.

9.  The appellant did not touch the complainant X during that time. It’s against his character. He had a clear record.

10.  X did not like the appellant. She did not accept the marriage between her mother and the appellant.

11.  X’s evidence was not reasonable: she said in evidence she allowed the appellant to come on her bed and allowed the appellant to touch her without protesting or fighting and she did not call anyone for help or try to escape; at the same time, she changed her clothing and went out.

12.  X changed her evidence: initially she said she felt her bed vibrating and when she opened her eyes she saw the appellant on her bed; but during cross-examination, she said she was not fully woken. In X’s initial evidence, she said she saw the appellant was standing on her bed but later in evidence, she described the appellant in a different posture (Appeal Bundle 21T-22C).

13.  The magistrate did not give any weight to the lock of the door. X said the door could not be opened from the outside once locked on the inside (Appeal Bundle 23T-24F). The lock was not like that – it was a single key operated lock; but even if the lock was as described by X, she could still shout and call for help. Moreover, X only reported to the police after a long time.

14.  There were no similarities in her and her boyfriend’s evidence; rather, there were a lot of inconsistencies. She said she called her mother when she was returning to the subject flat with her boyfriend; but according to her boyfriend, he made a phone call to X’s elder sister only (Appeal Bundle 23H-J).

15.  The appellant complained that the magistrate had wrongly disbelieved him; that there was no CCTV proof that X was inside the subject building at the relevant time; that no statements had been taken from residents in adjoining flats.

Summary of appellant’s submissions on sentence

16.  The appellant made the following submissions on sentence.

17.  The authorities referred to by the magistrate were related to victims under 14 and therefore dissimilar to the appellant’s case. Also, there was no trust or bonding between the appellant and the complainant X. The appellant promised that he would not re-offend. Lastly, he asked for mercy and leniency.

Respondent’s submissions on conviction

18.  The respondent submitted that the only issue was the credibility of witnesses; that the magistrate concluded X to be a simple-minded and an unsophisticated person in light of her age, education background, employment and demeanour in the witness box. The respondent further submitted that the magistrate had analyzed the evidence of X, PW2 (X’s boyfriend) and the appellant in detail. The respondent concluded by saying that there is no basis to suggest that the magistrate’s findings on the credibility of witnesses were plainly wrong.

Respondent’s submissions on sentence

19.  The respondent submitted that there is no tariff for the offence of indecent assault; that the sentencing principles laid down by the court for the offence of indecent assault on young children by adults have highlighted the following three crucial considerations (see SJ v Huang Long-wei [2009] 3 HKLRD 136):

(1)   To deter others from committing similar offences;

(2)   To show the abhorrence of members of the public to offences of this nature; and

(3)   To redress the grievance suffered by the victim and his/her friends and relatives.

20.  The respondent further submitted that whilst it is not useful to compare the sentence of individual cases with the present case as each case has its own unique facts, that the facts of the present case is less serious than Leung Sing Yiu but more serious than Ng Lap Kuen because of the presence of the trust element.

21.  The respondent concluded by saying that the starting point of 9 months’ imprisonment cannot be said to be manifestly excessive.

The Court’s consideration

Regarding conviction

22.  The magistrate had already reminded himself of the appellant’s clear record and the consequences for such.

23.  The appellant was legally represented at trial. It could be seen from the transcript that his lawyer had made extensive criticisms of the prosecution witnesses’ evidence in final submissions (Appeal Bundle 43M-45R). It is clear that the magistrate had dealt with these criticisms in much detail in paras 19-28 of the Statement of Findings, covering essentially the same points that were raised again here on appeal.

24.  The magistrate did not find any inconsistency or inherent impossibility in X’s evidence. Moreover, he did not consider the inconsistency between X’s and her boyfriend’s evidence to be material. I agreed with the magistrate’s analysis.

25.  The magistrate detailed his reasons for disbelieving the appellant’s evidence in paras 29-34 of the Statement of Findings. I also agreed with his analysis.

26.  The appellant’s complaint that there was a failure by the prosecution to obtain and thereafter adduce other evidence which might exonerate him has no merits.

27.  I have myself gone through the evidence of X, her boyfriend and the appellant in transcript form. There is sufficient evidence to convict.

Regarding sentence

28.  It is noted that the victim in Leung Sing Yiu was 11-12 at the time of the offences while that in Ng Lap Kuen was 13 at the relevant time.

29.  According to the Brief Facts (Appeal Bundle 12), X was aged 19; and according to the Statement of Findings para 20, X was a young girl completing Form 6 education and was at the time of the trial doing part-time waitress work.

30.  I agreed with the respondent’s submission that when it comes to sentence, each case would depend on its own facts. Making bland comparisons between two cases might not be too useful.

31.  I agreed with the magistrate’s reasoning especially his finding that there was a breach of trust. My view is despite the relatively older X, the 9 months’ imprisonment sentence imposed on the appellant after trial in the context of this case was not wrong in principle nor manifestly excessive.

Conclusion

32.  For the above reasons, I have already dismissed the appeals against conviction and appeal. Moreover, I confirmed the conviction and sentence.