HKSAR v. LEE YIU KAI

HCMA369/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.369 OF 2000

(ON APPEAL FROM ESCC No.4035/1999)

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J U D G M E N T

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1. The appellant was convicted after trial on the 13th of March 2000 of one charge of indecent assault and was later ordered to serve 100 hours community service. He now appeals the conviction.

2. The facts in the main are not in dispute. At about 7.35 p.m. on 21 December, the complainant, who was a 16-year old school girl, was travelling home in uniform on the MTR. As she alighted from the train at the Causeway Bay Station, she felt someone touch her left buttock. The appellant admitted touching the complainant but not indecently. The complainant testified that when she felt the touch, the hand remained unmoving upon her for about two seconds and she turned and grasped the hand. She said she saw that it was touching her with the palm against her. She used her left hand and grasped the left hand of the appellant. She asked what he was doing but he ignored her and walked off. She grasped his sweater and when he complained and she let go, he ran off. Two passersby stopped the appellant. After a short conversation the appellant asked the men to release him and they did so. When they did so, he again ran. A passerby again caught him and a policeman arrived on the scene.

3. The parties went to Wan Chai Police station where the appellant made a statement under caution. He said:

" My left hand did touch the girl but I do not know which part of her I had touched because at that time there were a lot of people inside the compartment. I was pushed from behind. Only when I lost my balance and titled forward did I touch the girl. I do not know which part of her I had touched."

4. In her evidence, the complainant testified that when she turned and grasped the hand of the appellant, she saw that she and the appellant were the last persons to leave the compartment for the platform.

5. It was common ground that the train had been crowded and that people had stood close together during the journey. It was the evidence of the appellant that when the door was opened people from behind pushed to the front. He said:

"Q. Which part of your body touched her?

A. I believe the back of my hand.

Q. Why did you touch her?

A. Because at the time I lost my balance and I moved towards the front and in front of me there was something, so I touched the thing in front of me."

The factual issue was, therefore, whether the appellant placed the palm of his hand on the buttock of the complainant and held it there, or whether he lost his balance and in regaining it touched her with what he believed to be the back of his hand. The legal issue was whether the prosecution had proved a deliberate act of assault that was indecent in the face of the testimony of the appellant that the touching was innocent and accidental.

6. The first ground of appeal was that the magistrate founded his conviction on a number of facts not sustainable in the light of the evidence adduced at trial. The first was that the magistrate found that there was no one behind the appellant to push him when he touched the complainant.

7. It was the evidence of the complainant that when she turned and grasped the hand of the appellant, they were the last two to leave the compartment. Mr Poll argues that the evidence relates to a time later than when the appellant must have been pushed and that he could have been pushed and by the time the complainant had turned the pusher had left. I find the conclusion of the magistrate to be one he was entitled to draw. The complainant said that she grasped the hand of the appellant and turned and at that point they "were the latest one who came out", that is, the last persons to leave the carriage. It is entirely reasonable to infer that if a person or persons pushed the appellant from behind, forcing him forward to touch the complainant, they would not have passed around him and completely left the carriage before the complainant grasped the hand of the appellant and turned.

8. The second finding of the magistrate which was challenged, was his finding that if the appellant was pushed as he alleged, the contact "would have been a shove against her body and not a touch." I accept the argument that an equally reasonable inference to be drawn from a push from behind is that you would touch the person in front as be shoved against that person.

9. The third finding was that he found that if the appellant had accidentally touched the complainant, then it would have not been with the palm but the back of the hand. The evidence for this comes from the appellant who said he believed that he touched the complainant with the back of his hand.

10. The last finding of fact complained of was that had the appellant lost his balance and as a consequence touched the complainant, he would have touched her back or shoulder. There was no direct evidence to support this finding. It was an inference drawn by the magistrate and would seem that an equal inference could be drawn that a person who loses his balance might, depending upon many factors, touch almost anywhere on the person in front of him.

11. There is to a degree some merit in the arguments but I must consider them in the context of the whole of the evidence.

12. Firstly the magistrate clearly did not accept the appellant as a witness of truth. Mr Poll's argument is that he did so because of the matters he raised above, thus the disbelief was not warranted.

13. The magistrate said this about the complainant :

"I found her to be a cogent witness, and whilst I need to be sure that she is not mistaken and that she has not misunderstood, I have no doubt that she was truthful and accurate in all material respects and I am sure of this position even without any corroboration."

Mr Poll argues that the magistrate having believed the complainant then made findings that matched that assessment regardless of their support by the evidence. The magistrate did not believe the appellant and that disbelief was only imparted upon the two matters upon which I have found limited support in the evidence.

14. The magistrate did however have one more piece of evidence to consider and that is the subject of the next ground of appeal. The basis of that ground is that the magistrate was in error in finding that the actions of the appellant, when confronted, amounted to flight which was supportive of the prosecution's case. HKSAR v. MO Shiu-shing [1999] 1 HKC 43 held that flight may be supportive of the case for the prosecution if it has been proved that no innocent reason existed to run away. In this case the complainant held the hand of the appellant and he walked away. She then held his sweater and when he said she would damage it and she let go, he ran. He was caught and when he said that he had done nothing and asked to be released, ran again only to be caught again. The appellant said that the complainant was very aggressive and that he was frightened so he ran. When he was stopped by the two men and let go, he said he ran again because he was frightened and had never been accused of indecent assault before. The magistrate did not believe his evidence. It was a reasonable inference to draw from a person first walking away from the complainant and then running from her that he was in fear of her. Then he was stopped by persons independent of both of them in circumstances where the complainant could not have been of danger to him. He then asked the men not to hold him and when released, he ran again. The whole sequence of events and their distance from the complainant remaining a threat to the appellant draws a wholly different inference and particularly when it is considered in the light of the disbelief by the magistrate of the evidence of the appellant.

The magistrate was entitled to find that the actions of the appellant amounted to flight and that the prosecution had proved there was no innocent reason for it. Thus that evidence supported the evidence of the complainant and upon the whole of the evidence, the magistrate was entitled to come to the conclusion that he did.

15. The last ground of appeal is that the conviction is unsafe and unsatisfactory. I have considered the whole of the evidence an the arguments thereon, and I am satisfied that it is not.

16. This appeal is dismissed.