HKSAR v. POON KWAN NOK PAM

HCMA 348/2017

[2018] HKCFI 159

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 348 OF 2017

(ON APPEAL FROM STCC 384 OF 2017)

_______________

_______________

_______________

J U D G M E N T

_______________

1.  The appellant was charged with two offences of indecent assault.  After trial, he was convicted of both offences by a deputy magistrate (“the magistrate”).  He now appeals against both his convictions.

Prosecution case

2.  The prosecution case depends wholly upon the evidence of the female complainant (“PW1”).  The alleged offences took place in the morning on 23 February (1^st charge) and 3 March 2016 (2^nd charge), during the bus journey on a bus 681P from Ma On Shan to Sheung Wan. The journey lasted for almost an hour.  During both journeys, the appellant and PW1 sat on adjacent seats on the upper deck. PW1 sat next to the window. They were strangers to each other.

1^st charge

3.  On 23 February 2016, PW1 sat on a left window seat on the upper deck.  The appellant got on the bus later and sat on the aisle seat next to PW1.  After a while, the appellant’s left elbow touched PW1’s right breast two to three times, each lasted for about one second.  PW1 thought the touches were accidental.  When the bus moved on, PW1 felt similar touches, she therefore moved closer to the window.  The touches continued when the bus went through Eastern Harbour Crossing.

4.  At one stage, the appellant held up his briefcase to search inside and PW1 felt the appellant’s left elbow touching her breast with force.  Later, PW1 saw the appellant touch her thigh with his hand ( the part between his index finger and thumb).  His palm was facing upward and moving to and fro PW1’s thigh and calf.  Finally, when the appellant left his seat at Fenwick Street, Wan Chai, she felt her breast pressed by the appellant left elbow again.

5.  PW1 was scared after the incident.  However she was not sure whether the touches were intentional.  No police report was made that day.

6.  Between 23 February and 3 March, PW1 saw the appellant on the same bus on occasions but the appellant did not sit next to her.

2^nd charge

7.  On 3 March 2016, PW1 sat on a left window seat and the appellant sat next to her again.  Owing to her previous experience, PW1 secretly started a video recording by placing her phone on her lap.  During the journey, the appellant’s left hand moved to and fro on his thigh and the back of his hand touched PW1’s thigh for two to three seconds.  When the bus was approaching Shatin Hospital, PW1 felt her right breast being pressed for two to three times.  Inside Tate’s Cairn Tunnel, she saw her thigh touched in a similar manner.

8.  When the bus had passed the tunnel, near Lam Tin MTR station, PW1 felt her breast forcefully pressed by the appellant’s elbow.

9.  The assault went on inside Eastern Harbour Crossing Tunnel, the appellant again moved his hand to and fro PW1’s thigh and calf with his left palm up.  There were two other incidents of breast touching before the appellant alighted at Fenwick Street.

10.  After the incident, PW1 called an organization known as Rainlily for counselling. PW2 answered the call and advised PW1 to report the case.  PW1 was then accompanied by another social worker in the evening to report the matter to the police.

The arrest

11.  On 4 March 2016, PW1 saw the appellant get on the same bus.  She requested the bus driver to stop and sought police assistance.  Police constable, PW3, attended the scene and PW1 identified the appellant as the man who had assaulted her indecently.

12.  Under arrest and caution, the appellant denied having indecently assaulted PW1.

Defence case

13.  The appellant gave evidence.  The appellant confirmed that he took bus 681P on 23 February and 3 March.  He agreed that he sat next to PW1 on 3 March.  However, he had no impression of anything particular during these two journeys.  He denied having intentionally assaulted PW1.

14.  The defence also called the appellant’s wife (DW2) and two of the appellant’s superiors, DW3 and DW4, as character witnesses.  Their statements were produced pursuant to section 65B of the Criminal Procedure Ordinance, Cap 221.

The magistrate’s ruling

15.  The magistrate identified the main issues as follows:

(1) Whether the appellant touched PW1?

(2) Whether the identification of the appellant on 23 February was correct?

(3) Whether the touches were intentional?

16.  The magistrate considered the case against and for the appellant on each charge separately.

17.  Having analyzed the evidence of PW1 in details, the magistrate found PW1’s evidence logical and coherent.  He found her an honest and reliable witness.

18.  On the other hand, the magistrate noted that the appellant has a clear record and gave himself directions favourable to the appellant in terms of credibility and propensity.  He noted the appellant’s explanation in his mixed statement to the police.  He also accepted the evidence of the character witnesses.  He reminded himself that if the appellant’s evidence was true or might be true, he should acquit the appellant.  Having considered all these evidence, the magistrate did not find the appellant’s evidence true and rejected it. 

19.  The magistrate did not find PW1’s observation on 23 February as a fleeting glance or one made under difficult circumstances.  He was sure the appellant was the person sitting next to PW1 on 23 February and 3 March.

20.  The magistrate further found that the touches on both occasions were not accidental.  He gave detailed reasons at para 67 of the Statement of Findings. The magistrate accepted PW1’s evidence as facts and found that the appellant touched her breast and thigh in both bus journeys.

21.  At the outset, the magistrate acknowledged that accidental touches are not uncommon on a bus because of its movements.  He also accepted that with his big build, the appellant might have to occupy more space than what the seat would allow.  However, the magistrate found the touches not accidental.  His reasons are briefly:

(1) On both occasions, the appellant moved his hand to and fro PW1’s thigh and calf.  The “gesture” with his left palm up was unnatural.

(2) He elbowed her several times in the course of the journey.  To enable the search of his brief case, he could have turned or moved his body to the right.  It was strange that he would further stretch his left arm when his arm was already in contact with PW1.  This touch was also followed by the touch on her thigh.

(3) On 23 February, when the appellant left his seat, it was impossible that his balance would shift to the left and cause another touch of PW1’s breast.

The grounds of appeal

22.  In the 7-page Perfected Grounds of Appeal, there are 13 grounds of appeal.  I shall set out the main points of the grounds as Mr Muhgal, counsel for the appellant, highlighted in his skeleton written submissions:

Grounds 1 & 2:	The magistrate erred in ruling the contacts were all intentional.
Ground 3:	The magistrate erred in accepting PW1’s evidence in full.
Ground 4:	The existence of the contemporaneous note made by PW1.
Ground 5:	Failed to take into account inconsistent evidence of PW1.
Ground 6:	Inconsistency of PW1 and PW2’s evidence.
Ground 7:	Erred in putting weight on the demeanor of the appellant.
Ground 8:	Inherent physical impossibility and implausibility of the contacts.
Ground 9 & 10:	Relied on wrong reason to dismiss the appellant’s evidence.
Grounds 11 & 12:	Good character evidence.
Ground 13:	The convictions are unsafe and/or unsatisfactory.

23.  I will classify the grounds of appeal into five categories:

(1) The magistrate wrongly found PW1 a credible and reliable witness.

(2) The magistrate erred in putting weight on the appellant’s demeanor to draw adverse inference against him.

(3) The magistrate wrongly failed to properly consider the evidence of the appellant and his character witnesses.

(4) It is wrong to find that the touches were intentional.

(5) The convictions are unsafe and/or unsatisfactory.

24.  The respondent supports the convictions by the magistrate.  Mr Sean, SADPP, for the respondent submits that in a magistracy appeal which is heard by way of “re-hearing”, the appeal court will only depart from a magistrate’s determination of witness credibility if it is “plainly wrong”: HKSAR v Fok, James Alistair [2015] 4 HKC 247.  The magistrate in this case gave sufficient reason to explain his decision.  He assessed the evidence in accordance with established legal principles.  It cannot be shown in this case that the magistrate made any error in law.  Nor can it be seen that any of the magistrate’s findings were plainly wrong.

Discussion

Ground 3 – Erred in accepting PW1’s evidence in full

25.  I will first start with the credibility of PW1 and return to Grounds 1 and 2 at the end of the discussion.

26.  A magistracy appeal is heard by way of a “re-hearing”.  McWalters J (as he then was) in HKSAR v Ip Chin Kei[1] summarized the relevant principles which included:

“(5) The appellate court will only depart from a magistrate’s finding of fact or determination of a witness’s credibility if satisfied that it is plainly wrong.

(6) Error by the Magistrate, especially an error constituting a material irregularity, may lead to the appellate court allowing the appeal and quashing the conviction.

(7) The test in determining whether an error by the Magistrate should lead to the appeal being allowed and the conviction quashed is whether it is just for such an order to be made.

(8) Absent the appellate court identifying any error by the Magistrate and absent any of the grounds of appeal succeeding, the appellate court must still perform its statutory duty of conducting a rehearing. This requires the appellate court to be satisfied that on the evidence adduced by the prosecution the guilt of the appellant has been proven beyond reasonable doubt, failing which the appeal must be allowed.”

27.  His Lordship identified the particular difficulty for an appellate court when it is invited to interfere with the magistrate’s assessment of the credibility of a witness.  As the magistrate has the benefit of seeing and hearing the witnesses, he is in a better position to assess the witnesses’ credibility.  For that reason an appellate court will only depart from a magistrate’s determination of a witness’s credibility if it is “plainly wrong”.

28.  Mr Mughal criticizes that the magistrate failed to consider sufficiently the material inconsistencies and discrepancies in PW1’s evidence.

No complaint for 23 February incident

29.  The first criticism is about PW1’s making no complaint or report for the 23 February incident.

30.  The defence emphasizes that PW1 has a law degree and legal background.  Defence counsel submits that the magistrate relied on inaccurate account of PW1’s evidence to justify why PW1 made no complaint about the 26 February incident.  The magistrate found that it was reasonable for a legally trained person not to make a report to police when she was not sure whether she was indecently assaulted. However, PW1 changed her evidence in cross-examination stating that she was sure the appellant’s actions were not unintentional.

31.  In my judgment, the matters complained of by the appellant were fully canvassed and sufficiently dealt with by the magistrate. I do not think the magistrate misapprehended the evidence of PW1, nor did the magistrate ignore the discrepancies.

32.  On 23 February, PW1 was scared and not very sure if the appellant’s actions were intentional.  But she did have suspicion after the incident, that is why she wrote down on a note about what happened.

33.  As the magistrate observed, PW3 testified that on 4 March PW1 told him the touches on 23 February were accidental.  The magistrate said the answer must be considered in the context.  Taking into account that the situation on 4 March would not allow PW1 to make a detailed description, he found that PW1 was only telling PW3 about her state of mind on 23 February.  In my view, the interpretation of PW1’s evidence is not improper.  The magistrate did not misapprehend her evidence.

PW1 did not do anything to rescue herself

34.  The defence complained at the trial and repeats in this appeal again that PW1 did not take any action to rescue herself from the persistent bodily contacts of the appellant.  The magistrate dealt with this criticism in paras 43 – 45 of his statement of findings.  The magistrate accepted that PW1 was scared and not sure whether the touches were intentional at that time.  She did not want to make a scene about it.  Understanding that young women may feel scared and embarrassed in such a situation, the magistrate accepted her explanation as reasonable.  The magistrate also accepted the explanation of her that, in the second incident, she did not move as she was trying to capture the assault with her phone.  In my judgment, the magistrate’s reasoning cannot be faulted and he was entitled to take the views as he did.

35.  There is no merit in this ground.

Ground 4 – The existence of the contemporaneous note made by PW1

36.  It is complained that PW1 only mentioned about the existence of a note to record the two incidents for the first time in cross examination.  The note was however not produced.  The appellant’s counsel submits that the magistrate erred in shifting the prosecution’s continuing and proactive duty of full and timely disclosure to the appellant.  The defence relies on HKSAR v Wun Shu Fai CACC 48/2015.  It is also submitted that the magistrate erred in finding that the note existed and rejecting the appellant’s assertion that PW1 made up the existence of the note to bolster her evidence.

37.  At the time of the trial, the note was not in the possession of the prosecution and no longer existed.  PW4 confirmed that PW1 referred to the note when making her statement on 3 March.  It might have been better for PW4 to seize the note.  However the credibility of PW1 would not be affected by the absence of the note.

38.  The prosecution was not in possession of the note and had no knowledge of where it was at the trial. The issue was not followed up when PW1 gave her evidence.  In my judgement, the prosecution was not in breach of the duty of disclosure.  Neither did the magistrate shift the duty to the appellant.

39.  This ground fails too.

Ground 5 and 6 – Failed to take into account inconsistent evidence of PW1 and inconsistencies between PW1 and PW2

40.  Ground 5 repeats in effect the complaints about PW1’s not reporting to PW3 about the first incident, and saying initially that she was not sure whether the touches were intentional.  In my view, the magistrate adequately and reasonably dealt with these discrepancies.

41.  Ground 6 relates to the evidence whether PW1 told PW2 about the first incident.  PW1 did correct herself in cross examination that she was not sure whether she told PW2 about the first incident.  In my judgment, even if she did not mention about the first incident in her telephone conversation with PW2, it would not have affected her credibility.

42.  These two grounds fail.

Ground 7 – Erred in putting weight on the demeanour of the appellant

43.  This ground complains that the magistrate erred in finding that the video footage (Exhibit P3) was consistent with PW1’s evidence by wrongly relying on the demeanour of the appellant that was captured, which effectively equates the demeanour of the appellant to an intention to commit the offences.

44.  It is important to note that the magistrate emphasised in para 51 of the statement of findings that he did not consider the footage as an independent source of evidence probative to the charge.  The magistrate was fully aware that the video footage did not show the improper contacts. When he used the word “demeanor”, he was referring to the manner the appellant looked to the direction of the window and PW1, which was consistent with the evidence of PW1.

45.  I have viewed the video footage and find that it was not improper for the magistrate to find that the manner the appellant looking to his left was consistent with the description of PW1. The demeanor was only said to be consistent with PW1’s description of how she was touched.  Nowhere in the statement of findings, however, suggests that the magistrate “equated” the appellant’s demeanor to his intention to commit the offences.

46.  There is nothing in this ground.

Ground 8 – Inherent physical impossibility and implausibility of the contacts

47.  It was the evidence of PW1 that three contacts took place at the time when she was filming P3 on her mobile phone.  Mr Mughal submits that these three alleged contacts were not observable from the video footage.  There was not even movement of the appellant’s shoulder or arm amounting to the alleged hand and left elbow back and forth movements.  There was also a noticeable shoulder gap between the appellant and PW1.

48.  The magistrate was fully aware that the video footage did not show the actual improper contacts.  He found that it was because of the angle of the camera.  He also found that while there was some distance between the shoulders, it was possible for the appellant’s elbow to land on PW1’s breast, which would not require the appellant’s stretching his arm or elbow for the assault to take place.  The magistrate did not find the footage contradictory to the evidence of PW1.

49.  The magistrate viewed the footage and carefully considered the evidence of PW1.  I do not find any error in the magistrate’s reasoning.  Nor do I find the way PW1 was touched by the appellant as she alleged was inherently physically impossible.

Ground 9 & 10–  Wrong reason to dismiss the appellant’s evidence

50.  The complaint that the magistrate rejected the appellant’s evidence on the basis of inaccurate/misapprehended evidence is unfounded.  The relevant footages were played at the appeal hearing.  The magistrate gave detailed reasons why he did not accept the evidence of the appellant that the touches were unintentional. I do not see any error of the magistrate in the analysis of the evidence.

51.  These two grounds fail.

Grounds 11 and 12 – Good character evidence

52.  Mr Mugal submits that the appellant would unlikely jeopardize his life and career for momentary sexual gratification.  In my judgment, judicial experience tells that people do commit crime for stupidity. There is nothing in this ground.

53.  Mr Mugal further submits that three character witnesses told the court what they observed of the appellant as a husband, an employee and as a colleague.  All three spoke highly of the appellant in his personal and professional life.  The character evidence adduced covered not only the general and professional conduct of the appellant, but also his attitudes and behaviour towards women. However while much was said of the appellant’s positive good character, the magistrate only dealt with the appellant’s good character evidence very briefly as follows:

“I note that the appellant has a clear record. I give him favourable direction in respect of his credibility and propensity.” (para21 of SF)

“I accept the evidence of the character witnesses, DW2 to DW4. I accept that the appellant has a previous good character. As stated above, I would consider his propensity and credibility in a favourable manner.” (para 56 of SF)

54.  Given the exemplary character of the appellant, it is submitted, adequate reasons should have been given to support the findings that the touches were deliberate and that the appellant intended to indecently assault PW1.  Counsel for the appellant relies on HKSAR v Kotecha, Krishna Rajesh HCMA 502/2016.

55.  In my judgment, it is not incumbent upon the magistrate to set out the statements of the character witnesses in details listing out every factor that he has considered.  What is necessary is a demonstration that he has sufficiently and properly considered the evidence of the character witnesses and the appellant’s good character.

56.  The magistrate indeed referred to the evidence of the character witnesses briefly in the statement of findings.  However it does not appear to me that the magistrate gave insufficient weight or consideration to the evidence. 

57.  It is to be noted that at paragraph 56 of the Statement of Findings, the magistrate reminded himself that the appellant has a previous good character and therefore considered his propensity and credibility in a manner favourable to him.  Obviously he was aware of the Berrada 2-limb direction for a defendant with good character.  In the same paragraph, the magistrate referred to the evidence of the character witnesses and said “ I accept the evidence of the character witnessess”.  Clearly the magistrate took into account of the evidence of the character witnesses when he considered the propensity and credibility of the appellant.  In my judgment, the magistrate well demonstrated that he had sufficiently and properly considered the appellant’s good character before he convicted the appellant.

58.  The facts in Kotecha, the case relied upon by Mr Mughal,are very different from the present case.  In that case, the complainant, sitting next to the defendant in an aircraft, had laid her head on the defendant’s shoulder for some time.  The defendant had also previously offered assistance to help the complainant to put her hand luggage in the overhead compartment.  Moreover the trial magistrate in that case only stated he had “considered the letters of good character” without indicating whether their evidence were accepted.  The Deputy Judge hence in the special circumstances of that case made the comment that “sufficient reasons should be given by the court if the character evidence is in the end rejected or disregarded.”

59.  In the present case, PW1 and the appellant were total strangers to each other and had no communication at all on the two occasions.  The magistrate had not only considered, but also accepted, the evidence of the character witnesses.

60.  Given that the magistrate had accepted the evidence of the character witnesses and taken the evidence into consideration when he considered the propensity and credibility of the appellant, I do not think the magistrate was in error by making no specific reference to the contents of the character witnesses’ statements.

61.  These two grounds fail altogether.

Ground 13 – Conviction unsafe and unsatisfactory

62.  Magistracy appeals are heard by way of re-hearing.  There are indeed discrepancies and inconsistencies in the evidence of the prosecution.  However the court should adopt a realistic and pragmatic approach in considering the contradictions or discrepancies to consider whether they are indeed material so much so that it would affect the credibility of the witnesses.  I do not see such kind of discrepancies and inconsistencies in the present case.  The finding of credibility of the witnesses and the appellant cannot be said to be “plainly wrong”.

63.  I now return to Grounds 1-2 on intention. The magistrate appreciated that accidental touches are not uncommon on a bus because of its movement. He gave detailed reasons why he excluded such a possibility. I find his reasons sound and reasonable. On both occasions, the touching by the appellant were multiple throughout the one-hour journey and in contact with sensitive parts of a female’s body, in particular, the right breast of the complainant.  In my judgment the possibility of accidental touching is simply implausible.

64.  In the circumstances of the two incidents, the assaults must be indecent. 

65.  In my judgment, the magistrate has carefully and meticulously analyzed all the evidence in this case.  I cannot find any fault in his analysis.  There is absolutely no basis for me to intervene any of his findings.

66.  For the reasons given, the convictions on both charges are neither unsafe nor unsatisfactory.

The result

67.  The appeal against both convictions is dismissed accordingly.