R. v. LAM CHI HIN

1996, No. MA 1489

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. The appellant was convicted before a magistrate of indecent assault on a female on board a MTR train compartment between Mongkok Station and Jordan Station. He now appeals against conviction.

2. The prosecution evidence was the complainant PW1 was at the platform in Mongkok Station when she felt her buttock was touched for three to four seconds by the erected penis of a man. She turned and saw a man whom she identified as the appellant was behind her. When the train arrived, she boarded the train followed by the appellant. She told the magistrate that during the journey, the appellant used his erected penis to touch her at her rump. She moved up the compartment. The appellant for the third time used his erected penis to touch her buttock and his thigh to touch her thigh. She then looked at the appellant and said to him that he had indecently assaulted her a few times touching her body and she would call the police. She said the appellant immediately responded saying "I didn't".

3. She told the magistrate that the train was crowded and the average distance between each person in the compartment was four inches to six inches. The compartment was therefore very crowded indeed. She also said that between the stations, the train braked occasionally and sometimes it swerved to left or right. Thus, the train could not have been running smoothly.

4. She said she was sure it was the appellant's penis which touched her because she saw a bulging area in the centre of the trousers of the appellant. The rest of his trousers was even and his hands were by his sides.

5. The evidence was that the appellant was arrested by PW3 after the train reached Tsimshatsui Station. PW3, the arresting officer, told the magistrate that when he arrested the appellant, he searched his trousers pockets and found a watch in his left pocket and some keys in the right pocket. But he could not remember if there was a wallet. It should be noted that when the magistrate asked him if there was any object bulging, he replied "watch". Thus, his evidence was there was a bulge in the right pocket area of the appellant's trousers and this was not consistent with the evidence of PW1. Be that as it may, PW3's evidence was that he seized the underpants of the appellant but he found nothing significant about his underpants. No reason was given as to why he seized the appellant's underpants, but if he was looking for signs that might be evidence of the appellant's erection, there was definitely no such evidence.

6. PW3 cautioned the appellant and the latter replied that he might have accidentally bumped into PW1 from time to time because the compartment was crowded and the train travelled in a wobbly manner.

7. The prosecution also called an independent witness PW2 who was a passenger in the same compartment as PW1 and the appellant at the time. PW2 knew neither the appellant nor PW1. PW2 told the magistrate that the compartment was quite crowded, about every body was touching each other. Thus, the compartment could not be said to be not very crowded. He told the magistrate that he saw PW1 and the appellant standing in front of him. He was opposite to both of them. Apart from a vertical pole between him and PW1, there was nothing else. He drew a sketch showing the positions of himself, the pole and the appellant and PW1. On his evidence, he was in a position to see clearly what happened between PW1 and the appellant. He told the magistrate nothing happened during the journey. Later he heard PW1 say, "This person had indecently assaulted me". He heard the appellant immediate denied he did so. Then PW1 said, "You have done that a few times, you feel good about this". To this, the appellant again denied. PW1 tried to reach the emergency stop but she could not and she used her mobile phone to make calls. Thus, PW2's evidence again showed the compartment was packed. When the train arrived at Jordan Station, the train door opened. He heard PW1 tell the appellant not to leave. The appellant remained on the train. When the train reached Tsimshatsui Station, police arrested the appellant.

8. It should be noted that PW2's evidence was that he went to Central but he thought that he should go back to tell the police what happened. He returned to Tsimshatsui and went to the Tsimshatsui police station and gave a statement. In his statement, he told the police he did not see the appellant indecently assault PW1. He said he returned and volunteered to assist the police because he did not want to see an innocent person misunderstood.

9. The appellant gave evidence that the train was crowded and he had to squeeze into the compartment because it was then 8:30 a.m. Nothing happened until later when PW1 who was standing in front of him accused him of touching her. His immediate response was he asked what happened. Then she accused him of indecent assault and he was confused and shocked. His response was "No, I didn't. I didn't". He told the magistrate he did not move after he squeezed into the compartment; he did not move and he never touched PW1. He called a character witness who was his headmaster in his secondary school who had known him for seven years. The appellant was a Hong Kong University student. His witness told the magistrate that the appellant's conduct in the school until graduation in Form 7 was a consistent "A-". He was described as a gentle, kind and practical person.

10. The magistrate in his findings started off with the rejection of the evidence of the appellant after he gave himself the necessary good character direction. His conclusion was :-

"I found the defendant's evidence to be inherently improbable, inconsistent and thoroughly unreliable. I bore in mind his initial denial and continuing denial throughout and the consistency of his position. Having closely observed his demeanour throughout and having considered his evidence, I found him to be an intelligent young man, but without doubt a dissembling and disingenuous witness."

11. Nothing in the evidence of the appellant indicated that his evidence was inconsistent. It would appear that the magistrate was solely relying on his observation of the demeanour of the appellant to found his disbelief in his evidence. The magistrate then reminded himself that the burden of proof was on the prosecution. He accepted the evidence of PW1 and PW3 and convicted the appellant.

12. Regarding PW2, he questioned the motivation of PW2 in making himself a part of the proceedings. He said :-

"... He was not a witness to the event itself and agreed that he was suspicious of the complainant. I found that PW2 was an unhelpful witness as to the facts. It was quite clear that he did not believe the complaint was justified and although he agreed the assault might have taken place, it was clear he didn't think it had. I disregarded his evidence as I found it dangerous to give it any weight at all; I found that he was pre-disposed to testify in a manner favourable to the defendant rather than objectively."

13. The magistrate also made findings of fact that the train was not very crowded and the carriage was running very smoothly. He also found as a fact that PW1 told the appellant that he had indecently assaulted her five times.

14. The main ground of appeal was that the magistrate erred in disregarding the evidence of PW2. Other grounds were the magistrate failed to pay sufficient regard to the discrepancies in the evidence of PW1 when contradicted with the evidence of PW2 and there was no basis for his conclusion that the evidence of the appellant was inherently improbable.

15. The prosecution had put forth PW2 as an independent witness of truth who saw what happened on the train and took the trouble to go back to the police station to assist because he did not want to see an innocent person convicted. There was nothing to show that PW2 was not in a position to see the assault if it happened. His evidence that nothing happened during the journey was directly in conflict with the evidence of PW1 that she had moved up the compartment to avoid the appellant after she was touched the first time in the compartment. His evidence in such material aspects as the crowdedness in the compartment, the appellant's instantaneous reaction when accused of indecent assault and that even given the opportunity at Jordan Station, the appellant never sought to escape, was confirmed by the evidence of PW1. His evidence also supported the evidence of the appellant. There was nothing in the evidence to indicate that PW2 was predisposed to give evidence in favour of the appellant. PW2's evidence that the indecent assault might have occurred but he doubted if it did, showed that he was being objective rather than as the magistrate found it to be. There was nothing inherently improbable in the evidence of PW2.

16. The magistrate in his findings had not resolved the material conflicts in the prosecution case. His finding that PW2 was not a witness to the event was not supported by evidence. His finding that the carriage was running smoothly and the compartment was not very crowded was against the evidence.

17. The appellant's evidence as to the condition in the compartment and the wobbling of the train to left and right during the journey, his denials and remaining on board to wait for the arrival of the police officer was confirmed by the evidence of PW1 and PW2. The appellant's evidence that he did not move in the compartment was confirmed by the evidence of PW2. For what reason the magistrate found his evidence inherently improbable is not known.

18. The conviction of the appellant could not have been safe. The appeal is allowed, the conviction quashed and the sentence set aside.