HKSAR v. CHAN CHI YAN

HCMA258/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.258 OF 2006

(ON APPEAL FROM ESCC2815 OF 2005)

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J U D G M E N T

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1. The appellant was charged with a single count of 'indecent assault', contrary to section 122(1) of the Crimes Ordinance, Cap. 200.  After trial, he was convicted of 'common assault' and sentenced to a fine of $4,000.  He now appeals against the conviction.

The prosecution's case

2. Quoting from the magistrate's Statement of Findings :

“3. The prosecution case put shortly, was that PW1, Ms KWOK, aged 22 years was walking on a platform at Causeway Bay MTR station, from which platform she was waiting to catch a train travelling towards Wanchai. PW1 was unaccompanied and the platform was not crowded.

4. PW1 saw the appellant walking towards her on the platform. He presented to her then as 'Just normal'.

5. As the appellant walked past PW1, on her right side, he extended his right hand out to his right side and pressed his open palm against PW1's lower abdomen, just below her belt line.  There was no associated finger movement but PW1 said the hand stayed in that position for 'one second'.

…

8. Concluding she had been indecently assaulted, PW1 called out to the appellant who was continuing to walk off behind PW1.  She was initially ignored.  She then called out asking why the appellant had indecently assaulted her.  At that the appellant ran off, pursued by PW1 and an unknown male who came to PW1's assistance.

9. The chase of the appellant led upstairs to the B and C Exits where the appellant jumped straight over the turnstiles and continued running.  As this happened a staff member of the MTR, PW2, saw the appellant's actions with PW1 in pursuit. PW2 went to intercept the appellant, ran after him and caught up with the appellant when he fell to the floor after colliding with an unknown member of the public as he ran through the lobby area beyond the turnstiles he had just vaulted over.

10. PW2 took hold of the appellant who remained on the floor.  The appellant said 'Sorry, I know I am wrong.  I indecently assaulted someone.  Please forgive me.'

11. While the appellant was in PW2's presence he smelt of alcohol, vomited and was 'conscious but (with) inconsistent speech'.”

The defence case

3. Next there is the defence case, plus what the magistrate made of the appellant and his witness :

“12.  The defence case, put shortly, was that the appellant had attended a wedding banquet in Causeway Bay that evening at which he had consumed a lot of alcohol, 'at least one bottle of red wine'.  The appellant normally rarely drank alcohol.  He went to the MTR station to take a train home to Taikoo Shing.  While on the platform he felt unwell and needing to vomit.  He did not vomit in a rubbish bin on the platform as he also urgently needed to urinate.

13.  The defence case was that the appellant was unaware of any contact with PW1.

14.  The appellant left the platform and went upstairs intending to use a toilet at a restaurant near the MTR exit. At the turnstiles he couldn't find his octopus card so he jumped over the turnstiles and went towards the exit.  He had some recollection of colliding with someone and he fell to the floor.  He had not indecently assaulted PW1.  He had not made the admission PW2 gave evidence of.

15.  The appellant gave evidence in keeping with the foregoing reference to the defence case.

16.  I accepted his evidence, supported by other evidence, of him attending the wedding banquet and consuming rather more alcohol than was his usual practice.  Otherwise I did not believe his evidence.  His account of his actions within the MTR station was inherently improbable to say the best of it.

17.  I was aware the appellant's guilt did not follow from my disbelieving his evidence and that it remained for the prosecution to prove the charge beyond reasonable doubt.

 18.  DW2 was Dr. LEE Ka-yan.  He presented as an honest witness.  I accepted his evidence as to the appellant's character.  I also accepted his evidence of the appellant being an 'occasional drinker' usually and of over indulging in red wine to the point of intoxication earlier on the night in question.”

The magistrate's conclusions

4. Finally, the magistrate explained why the appellant should be found guilty :

“19.  PW1 was an impressive witness.  Her evidence was clear, cogent and compelling.  I believed her.

20.  I also believed the evidence of PW2, the MTR staff member and PW3, the attending police officer.

21.  On the evidence I accepted I found the appellant was in an intoxicated state on the platform in question as he approached PW1.

22.  It is not possible to make any finding as to the degree of the appellant's intoxication.  As to that I noted the evidence of him later vomiting, smelling of alcohol and having 'inconsistent speech' following his apprehension.  I also noted he presented 'just as normal' to PW1 on the platform.  I also noted the vomiting and other signs of alcohol consumption took place after the exertion of running up the levels from the platform to the lobby, vaulting the turnstiles and continuing to run.  This activity would be hard to accomplish in an advanced state of intoxication.  I also noted the inconsistency in the appellant's evidence as to having no memory of contact with PW1 but being able to claim a clear recollection of not having made the remarks upon his apprehension, spoken of by PW2 in evidence.

23.  In any event I found the appellant had been under the influence of alcohol to some extent at the relevant time.

24.  The appellant's intoxication was 'voluntary'.

25.  The law on voluntary intoxication as to offences of 'basic intent', such as assault, is clear and well known.  Archbold Hong Kong 2005 at paragraph 20-191 notes as to that 'self-induced intoxication provides no defence and is irrelevant'.

26.  From the evidence I accepted I was in no doubt the appellant had intentionally moved his arm and hand and intentionally placed his hand against PW1's lower abdomen and left it in place there briefly as he walked passed her.

27.  Such an intentional application of force constituted an assault upon PW1 by the appellant.

28.  Due to the evidence of the appellant's alcohol consumption and the circumstances of the application of force to PW1 and despite the admission I found the appellant had made to PW2 as to having 'indecently assaulted someone.  Please forgive me', I the appellant gave the benefit of the doubt as to proof of the 'indecent' element of the charge and convicted him of the lesser included charge of common assault.”

Grounds of appeal

5. Various grounds have been advanced.

6. None of them carries the appellant's case any further in my judgment.

7. What really concerns me, however, is the seemingly indiscriminate use of or reference to the evidence of the appellant's 'flight' at trial.

8. A defendant's running away, disappearing and/or concealment of a crime after the fact are analogous to lies : HKSAR v. Mo Shiu Shing (1999) 1 HKC 43.  As such, the tribunal of fact must, amongst other things, be directed on the “innocent reasons” why a person may act in any of those manners, the simplest one of which is that he panicked.  This is essential whether or not it is explicitly advanced as the case of the defendant.

9. I accept that a full-blown direction may not be necessary for a professional tribunal.  But there is nothing in the papers to show that the magistrate or anyone in the trial was alert to the potential danger of referring to the appellant's movements after PW1 had made known her complaint.

10. For this reason, I find the conviction unsafe and unsatisfactory.  The appeal is allowed.  The conviction is quashed and the sentence set aside.