HKSAR v. SO YUK SING

HCMA 1002/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1002 OF 2002

(ON APPEAL FROM ESCC 1722/2002)

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J U D G M E N T

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1. This is an appeal against conviction on a single charge of indecent assault which occurred on board an MTR train between Tsim Sha Tsui and Jordan stations.

2. The person assaulted was a 12 year old schoolgirl who was in the company of and talking to friends. She was unaware of the assault itself. She was alerted only when another passenger shouted. Thereafter she was told not to alight the train. Her statement was read into evidence.

3. The main witness for the prosecution was a Ms Chan, the lady whose shout alerted the schoolgirl. She gave evidence and was cross-examined at length before the Magistrate. I have read the transcript of the evidence. In essence, she says that she saw the Appellant's exposed penis, or a portion of it, make contact with the schoolgirl at her back. Her attention alerted the Appellant who covered his penis with loose clothing he was wearing. She spoke to a person next to her telling him that the Appellant had indecently assaulted the schoolgirl but that person did not appear to comprehend what she was trying to convey.

4. She addressed the Appellant directly. She shouted out "indecent assault". At Jordan station the Appellant attempted to leave the train but was prevented from doing so. She, the schoolgirl, the Appellant and various others alighted at Yau Ma Tei station and awaited the arrival of the police.

5. A second passenger, a Mr Ho, confirmed that Ms Chan had spoken to another male who did not respond to her. Ms Chan told him, Mr Ho, that the Appellant had undone his zipper. There was then an argument between Ms Chan and the Appellant but he was unaware of its content. It was he who suggested they alight at Yau Ma Tei station and call the police.

6. A police officer arrested the Appellant who denied the offence under caution.

7. The Appellant gave evidence. He denied having exposed his penis or touched the schoolgirl with it. He admitted that another portion of his body came into contact, accidentally, with the schoolgirl. When Ms Chan had challenged him as to why he had undone his zipper he had first thought that she was referring to a zipper on a bag he was carrying. He became embarrassed by the attention she was creating: for this reason he sought to leave the train but was prevented from doing so.

8. The Magistrate rightly observed that the outcome of this matter depended upon the credibility of the witnesses. She had the opportunity of seeing and hearing them. In that sense she is the eyes and ears of this court. She was in by far the best position of assessing the witnesses.

9. Mr Richard Wong who appeared for the Appellant here and below repeats, in substance but with supplementation, all of the points that he made to the Magistrate. She demonstrated that she was fully alive to each of the criticisms which was passed, particularly in regard to the reliability of Ms Chan. She dealt with the issues with which she needed to deal in considerable detail: it is well settled that a Magistrate is not required to deal with every single issue raised or to set out his or her entire thought process.

10. Of course there are minor discrepancies in the evidence of the witnesses. They were no more than one would expect in circumstances such as these. I disagree that Ms Chan was telling four different versions: as the Magistrate found, she told one version which on the whole was consistent. That she provided more detail when asked on different occasions is no indication, in this matter, of unreliability.

11. For compelling reasons the Magistrate accepted the evidence of the prosecution witnesses. She was alive to a lack of direct support for Ms Chan's evidence but, that notwithstanding, was satisfied that Ms Chan was a witness of truth and accuracy. It is unfortunate that she chose to use the word "corroboration" when demonstrating her awareness of the dangers of convicting, in matters of this nature, on the unsupported evidence of a single witness.

12. She disbelieved the Appellant. There are instances when a magistrate or judge sitting alone is able to do little more than say, simply, that the evidence of a given witness is not believable in the overall circumstances of the trial. Although this matter comes close to such a situation, the Magistrate did give such reasons as she was able and as were necessary in the circumstances.

13. In my judgement she did not place "significant emphasis" on the question of demeanour. The remarks of Litton, JA., as he then was, in R v NG Wing Ming (1994) 2 HKC 464 must be seen in the light of the far more recent observation by the Court of Appeal in HKSAR v CHENG Kam Fai and Another CACC263/2001 that

"As every jurist with criminal experience should be aware, demeanour may play an important part in the decision reached by a jury or by a judge or magistrate sitting alone. It is not possible to generalise or to be too dogmatic as to its precise importance because, as so often is the position, this will entirely depend on a consideration of the circumstances of each individual case."

14. There is nothing in the Magistrates reasons which suggests that she is in any way wrong in her assessment of the witnesses or the evidence. There is no error in the Magistrates Court which makes it just that the appeal should be allowed and the conviction set aside as is contemplated in CHING Kok Yin v HKSAR (2000) 3 HKCFAR 387.

15. On this appeal my powers are derived from s. 119(1) of the Magistrates Ordinance, Cap. 227. Of particular relevance is s. 119(1)(d). If the Magistrate had made any mistake of law or misapprehension of the evidence, that would have been a factor to take into account in determining how to use those powers. Even so, the fact that there is no error on the part of the Magistrate does not preclude me from coming to a different conclusion on the evidence and then making such other order as I may think just. In this matter there is nothing before me which would cause me to come to a conclusion different from that of the Magistrate. My view coincides entirely with hers.

16. I confirm the Magistrate's order and dismiss the appeal.