HKSAR v. WONG TSE HO

HCMA130/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 130 OF 2006

(ON APPEAL FROM TWCC 2764 OF 2005)

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J U D G M E N T

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1.  This is an appeal against a conviction for indecent assault.  In a word, it was on 28 September of last year that this Appellant, a 16-year-old, followed a 23-year-old student from the MTR station at Tsing Yi at around midnight. 

2.  At the station, he trod on the back of her shoe.  He realised what he had done and apologised to her for it.  He then followed her in the direction of the estate upon which they both lived.  The young lady was aware that he walked very close to her and she did not like it.  So what she did was to try walking faster and walking slower but the Appellant kept level with her.  There then came a time when he leant across, stretched out his right hand and squeezed her left breast forcefully.  At the same time, he also squeezed the left side of her bottom but more lightly. 

3.  There was no issue at the trial that there was, at the time and place alleged, contact between the two.  The young lady student maintained that it was not accidental but deliberate.  She said it was not an accidental bumping into someone because he, in her view, deliberately squeezed her breast. 

4.  The Appellant gave evidence.  He said the contact was accidental.  He said that he had drunk too much.  He described himself as being drunk and dizzy and that, as he walked along, he had a severe headache and he could not walk steadily.  He said, “All along, I ducked my head and I wanted to go home quickly,” and that he bumped into the girl and lost his balance and so wanted to hold on to something and did so, thereby explaining the contact between the two of them.

5.  The magistrate saw and heard both the witnesses and obviously has an advantage over me in that respect.  He believed the young lady; he disbelieved the young man. 

6.  Before me today, Mr Ma relies on three grounds of appeal.  The first one concerns the magistrate’s finding that the Appellant was not so drunk that it would explain the contact as being accidental.  When people use the word “drunk”, they do so to describe many of the effects that drink has upon people.  What the magistrate pointed to in the evidence was that it was clear the Appellant was not so drunk that he was not really in control of himself.  He relied on things like the ability to apologise after stepping on the heel; moving at different speeds in order to keep up or slow down with the young lady; as well as the fact that no great smell of drink came to the attention of the young lady even though they were close to each other; and the fact that the Appellant was able to run away afterwards and make some intelligible response to the policemen who came and questioned him.  I can find nothing wrong in the magistrate’s evaluation of the role of drink in this case. 

7.  A complaint was made that the prosecutor below did not put to the Defendant that he was not drunk, whereby it is argued that this deprived the Appellant of the opportunity of dealing with the topic.  He dealt with that in his evidence-in-chief.  There is nothing in the point.

8.  The second ground of appeal related to the fact that the magistrate did not believe the evidence of a defence witness who said that the Appellant had drunk a substantial amount of beer, which he estimated would have been in the region of half a dozen bottles, and that he was drunk when he left their dinner.  The dinner had finished at about 11 o'clock in Mongkok. 

9.  Again, in assessing this witness, I only see what he said on paper and so it would need a point of some force for me to think the magistrate had made a wrong assessment in respect of him.  But, for the purposes of argument, that I will not take such a strong view as the magistrate and will not say that I disbelieve him completely.  However, the question is not exactly how much had been taken over what time, but the effect that it had on the Appellant.  That is what really matters in the case. 

10.  Of course, when one looks at the effect that it had upon him, there are other sources of evidence.  I have adverted to them already.  I form the view on the evidence before me that, even if the magistrate was wrong in saying he did not believe the defence witness, the effect of his evidence was so diluted by those other factors that indicated some degree of control by the Appellant of his actions, that there is nothing in the point. 

11.  Indeed, the evidence of the Appellant himself was not to the effect he was legless and rolling drunk and could not stand up and was falling all over the place; that was not the picture he painted.  What he said was that, all along he ducked his head down and wanted to go home quickly.  The picture is of someone with a headache, with his head down, walking fast and therefore walking into someone. 

12.  The third ground of appeal is based upon an exchange between Bench and Bar at the trial in the Magistrates Court when it was proposed to call a character witness for this now, 17-year-old boy with a clear record.  What the magistrate said was that he was never quite sure how a character reference improved on the Berrada direction which, he pointed out, dealt with the effect of a clear record in terms of credibility and propensity. 

13.  Mr So, who was defending the Appellant below, said that he wanted the magistrate to listen to the witness as the character witness had known the defendant for so many years, to which the magistrate said “All right”.  He then did listen to the evidence and in his statement of findings at paragraph 11, he said that he was impressed with this evidence and he accepted that the evidence was an honest account of the witness’s knowledge and belief concerning the character of the Appellant.  He thus took the evidence into account.  He pointed out, in the same paragraph in the statement of findings, that of course the character witness had not been present at the time of the incident and that there would be a part at least of the Appellant’s inner thoughts that would have remained private and unknown to the witness.  He made the comment that even the witness had admitted, when cross-examined below, that honest and upright people can sometimes do things out of character. 

14.  Of course, the magistrate, in his statement of findings, mentions the Berrada direction, in fact by name, that he gave himself.  It may have been wiser not to say “what does the calling of a character witness add to the evidence of a clear record,” but the facts I have just related demonstrate to me that he took the character evidence into account.  Indeed, it is the very fact that he did that, which prompted him to make the comments which explained why he was still minded to convict despite it.  It is thus that nothing in the grounds of appeal that have been argued in front of me make me doubt the correctness of this conviction. 

15.  These appeals are by way of a re-hearing.  I am well aware that the issue is at large, and that if I look at the material before me, and have a reasonable doubt, I should allow the appeal.  I have a full transcript in this case and, based on what I read there, I have no doubt the conviction is a good one.  The young lady came across as sensible, clear and credible and gave clear and good reasons for rejecting the suggestion of accident. 

16.  The transcript reveals the Appellant being in some difficulties, especially when it came to his explaining that if this was an accidental bumping, why did he not just stop and say sorry, like he had moments earlier when he had trod on the back of her shoe?  The answer he gave to that was that he did not stop and say sorry, that he just ran away.  He then said, at that stage, he did not know she was accusing him and the reason he ran was that he saw several people chasing him.  Common sense and the evidence of the young lady herself clearly demonstrate that those people did not join in the incident and start to chase him until she made the complaint about his behaviour. 

17.  The appeal against conviction is dismissed.