R. v. CHAN PAK KEUNG

IN THE HIGH COURT

1994, No. 783

Magistracy Appeal

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J U D G M E N T

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Litton, J.A. (sitting as an additional Judge of the High Court):

1. This is an appeal against conviction passed on the appellant CHAN Pak-keung by Mr Z E Li at the Eastern Magistracy on one charge of indecent assault contrary to section 122(1) of the Crimes Ordinance. The appellant is a herbalist by occupation, aged 36. He is a married man. The offence with which he stood convicted allegedly occurred on 24 February 1994 at the 5/F of the Hong Kong Convention and Exhibition Centre, Harbour Road where a careers exhibition was taking place. The complainant is a young woman aged 16, a Form V student who was at the careers exhibition with a classmate when the incident assault allegedly occurred.

2. The complaint briefly was to this effect. There were a lot of people about at the Exhibition Centre and the complainant was viewing the stalls with a classmate when the appellant came up from behind and bumped her breast with his elbow. He repeated this a few minutes later. This occurred at a busy time, at about 4.45pm. The only prosecution witnesses were (1) the complainant herself and (2) a police officer to whom eventually a report was made. The appellant was thereupon arrested at the Exhibition Centre. The classmate did not testify at the trial. The appellant himself did not give evidence nor call any witnesses.

Case for appellant

3. In essence the case for the appellant was that he might well have bumped into the complainant at the crowded exhibition hall; but if he did, it would have been accidental and he had no intention of indecently assaulting her. The question for the magistrate was therefore whether, upon all the evidence before him, he was satisfied beyond a reasonable doubt that the appellant had the necessary criminal intent.

Grounds of Appeal

4. A number of grounds of appeal have now been put forward on the appellant's behalf by his counsel Mr Alexander Lau. One I can dispose of quickly. It is to this effect: that the magistrate in his reasons for conviction failed to warn himself of the danger of convicting on the uncorroborated testimony of the complainant. In fact what the magistrate said in convicting the appellant was this:

"I am aware that there is no corroborative evidence and that there is real danger of convicting on uncorroborated evidence."

5. It seems to me that this is a sufficient reminder to himself of the danger of relying solely upon the testimony of the complainant. The magistrate must have been aware that in instances like these exaggeration and invention can occur and sometimes do occur, and trial courts must be alert to such possibilities.

6. The ground of appeal which troubles me however is this: Has the magistrate sufficiently evaluated all the facts before him to be satisfied beyond a reasonable doubt that this appellant had the necessary criminal intent? A close examination of the facts becomes crucial.

Complainant's evidence

7. As I understand the testimony of the complainant it was to this effect. When the incident first occurred, there were many people about. It occurred in a "flash of a second" and she did not form the impression that she had been indecently assaulted. She said nothing to her classmate and appeared not to have thought anything about it.

8. The second incident occurred about two minutes later and according to the Statement of Findings it was this incident which in essence formed the subject-matter of the charge found to have been proved. In examination-in- chief this was what the complainant said:

"On the second occasion, there were fewer people than the first time. There was a lot of empty space around me. Suddenly the Defendant came up from behind on my left. He bumped my left breast with his right elbow and then went away in quick paces. I stood there and looked.

At time of second bump, he was in front of me very close to me. He was half way across me. At that time, he was carrying something with one hand, I can't remember which hand."

9. The magistrate in his Statement of Findings as regards the second occasion said this:

"As at the time there were few people around, she sensed that it was an indecent assault."

10. This in fact is not a wholly accurate summary of the effect of the evidence. She did not say that there were "few people around". What she did say was that there were "fewer people" than the first occasion. Later on she said that there were in fact lots of people at the exhibition hall when the second bump occurred. The finding that the second assault happened with few people around is not one borne out by the evidence.

11. The other erroneous finding is this. The magistrate said "She sensed that it was an indecent assault." The tenor of the evidence points the other way. Even after the second bump she did not seem to have considered that an intentional assault had occurred. She did not at that point speak to her classmate. What she said in court was this. After the appellant had gone away she then saw him bump another girl in the same manner and then she went on to say:

"So I felt that he indecently assaulted girls intentionally. Then I spoke to my classmate NG Lai-fong. I pointed that man to her. Then we walked together and followed him."

12. It is therefore clear from what has been stated above that she concluded that the second occasion was an indecent assault not by reference to the effect on her of the second bump but by what she observed as having occurred to another person later.

Conclusion

13. The question therefore is whether, upon the totality of the evidence, a court can be satisfied beyond a reasonable doubt that the appellant intended an indecent assault upon the complainant. In this regard the court can of course properly take into account the fact that there was no contrary evidence from the appellant; nevertheless, at the end of the day, the court must be satisfied on all the evidence, beyond a reasonable doubt, that the appellant intentionally assaulted the complainant before it can safely convict.

14. In my judgment, the magistrate had failed to appreciate that even on the second occasion there were in fact people around and the possibility of an accidental bump could not be excluded. He might have misread his own notes when concluded that there were "few people around". This is one of those cases, perhaps rare, when an appellate court on reviewing the whole of the evidence is left with a lurking doubt as to whether an injustice has been done.

15. In my judgment the conviction in all the circumstances as I have outlined is unsafe and unsatisfactory. The appeal is allowed. The conviction and sentence are discharged.