HKSAR v. YUEN CHIU WING

HCMA369/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 369 OF 2008

(ON APPEAL FROM KCCC 8856 OF 2008)

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Reasons  for  JUDGMENT

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1. The appellant was charged with the offence of Indecent Assault.  The particulars alleged that on 30 January 2008, inside the compartment of MTR train from Jordan Station towards Yaumatei Station, Kowloon, in Hong Kong, the appellant had indecently assaulted another person, namely Celine A.C.Y. Russell.

2. The appellant pleaded not guilty to the charge and was convicted after trial.  He was sentenced to an imprisonment of 21 days.  The appellant sought to appeal against the conviction.

3. The main witness was a student of 16.  What had transpired was that on the day in question, she boarded the MTR at Jordan.  On the way to the Yaumatei Station, she said she felt a hand pressed against her left buttock, the contact was subtle, like a push.  She said she tried to look at the person but the touching did not stop.  She explained that she had not really looked at the person who had touched her.  In fact she could not see what had come into contact with her, but she did feel it.  She said she was touched in that way for three times.  When she got off the station, she was stopped by a police officer.

4. In her cross-examination, the witness said that when she was touched, she had looked to the left-hand side, and had tried to move to avoid the touch, but she did not knock her body back.  She pointed out that the touching did not feel accidental to her.  She had indicated on a sketch where she was standing inside the compartment.  She said that the distance between her and the people behind was about 10 cm.

5. The witness further explained that she managed to see the side of the face of the person who was behind her, to the left.  She disagreed with the defence suggestion that she was not sure whether she had been indecently assaulted.  She stated that she did not call for help because she did not want to make a fuss about it.  She also maintained that there was no difference between what was recorded in her witness statement about what the police had asked her.

6. PW2 was the plain-cloth police officer who was on MTR duty.  According to him, he had noticed the appellant when the latter was on the platform at Jordan, queuing up behind PW1.  He said that the way the appellant was looking at PW1 had aroused his suspicion.  PW2 had then kept his observation on the appellant after the latter boarded the train.  He said he was standing behind PW1, and he himself had seen the appellant using his right hand to touch, for three times, the left buttock of PW1.  He described that the appellant had touched the middle area of PW1’s left buttock, each time was between 1 to 2 seconds.  On the third touching, PW2 said he saw PW1 turned her head and looked back to her left-hand side.  Then the appellant stopped.

7. When the train arrived at Yaumatei Station, PW2 said his colleague, PW3, approached PW1.  Later, he also revealed his police identity to the appellant.  The appellant was arrested for the offence of indecent assault.  The appellant denied the offence after he was cautioned.  PW2 said his view was not obstructed in his observation of the incident and that the lighting inside the compartment was normal.

8. PW2 had also drawn a sketch to show the relative positions of the relevant parties.  The defence pointed out to PW2 that, at one stage in the journey, PW1 had knocked back against the man behind her, it was another man and that PW2 was not even there.  PW2 disagreed with these suggestions. 

9. PW3 was the other officer who was on duty with PW2.  He had also observed the appellant when the latter was on the platform.  He did see his colleague, PW1, and the appellant boarding the compartment but he did not witness the incident as he was at the other end of the compartment.

10. PW3 said that, following PW1, he had also alighted at the Yaumatei Station.  He intercepted PW1 as PW2 had gestured him to do so.  According to PW3, PW1 had said, in Cantonese, that a man, on her left, had used his right hand to touch her left buttock for three times.

11. That was basically the prosecution case.

12. The appellant had elected to give evidence.  He had a clear record.  His account was that when he entered the compartment, he noticed a certain girl on his right, they were shoulder to shoulder, and this girl later got off the train in Yamatei.  The appellant said, during the journey this girl, PW1, had bumped against a man behind her but that was not PW2.  PW1 had actually turned her head and apologized to that man.

13. Later, PW2 took him out of the compartment at Mongkok Station and had him arrested.  The appellant insisted that he had not touched the buttock of PW1.

14. The appellant had called three character witnesses to testify on his behalf.  DW1 was the appellant’s girlfriend.  She described the appellant to be honest and righteous.  They were actually planning to get married.  DW2 was the appellant’s friend.  He said that the appellant was diligent, reliable and honest.  He pointed out in cross-examination that the appellant had even warned him when he was getting too friendly or having bodily contact with females, saying that it could lead to misunderstanding.  But DW2 admitted that he did not know of the appellant’s “sexual inclination”.  DW3 was another friend of the appellant’s.  He said he trusted that the appellant would not lie.

15. That was basically the defence case.

16. The magistrate had obviously considered the evidence with care.  From the outset, he had reminded himself of the appellant’s good character and had given the usual direction in this regard.  The magistrate was fully aware of the special need for caution in view of the nature of this type of case.

17. The magistrate was mindful of the submissions regarding discrepancies in the prosecution case.  On where PW1 was allegedly touched, the magistrate had not ignored that there were differences between the versions given by PW1 and PW2.  However, the magistrate found that the touching had taken place in the buttock region.  In connection with this core issue, the magistrate unreservedly found that : “PW1 felt it, PW2 saw it.”

18. As to the appellant’s position in the compartment, the magistrate was also aware that PW1 and PW2 had different descriptions.  PW1 said that the appellant was behind her on her left hand side, facing the same direction, whereas PW2 said the appellant was behind but next to the left hand side of PW1 and facing her.  Nevertheless, the magistrate took the view that these were not material discrepancies.  What he considered to be important was that PW2 did, obviously, see the action of the appellant.

19. The magistrate found that there was nothing sinister in the fact that the appellant was not arrested earlier.  He accepted PW2’s explanation that he had to wait for the appropriate time for the arrest as he was then inside as crowded compartment.

20. On the evidence of the appellant, the magistrate concluded that he did not believe the event had taken place as the appellant had described and he rejected the latter’s evidence.  He commented that the appellant had tailored his evidence, particularly about the position where he was standing. 

21. The magistrate had not ignored the evidence of the defence witnesses who had testified to the good character and honesty of the appellant.  But as the magistrate pointed out, none of them were present at the scene and their testimonies could not take the matter further.

22. The magistrate came to the conclusion that the prosecution witnesses were honest and truthful.  He found that PW1 was indecently assaulted and PW2 had seen the indecent act committed by the appellant.  Hence, the magistrate found the charge proved beyond reasonable doubt.

23. The appellant raised the following grounds in support of his appeal against the conviction :

(1)     In finding the three prosecution witnesses to be honest and reliable, the magistrate :

(i)      failed to properly resolve some fundamental and material discrepancies/inconsistencies; and

(ii)      failed to properly resolve certain inherent improbabilities in the testimonies of the three prosecution witnesses.

(2)     The magistrate had shown apparent bias against the appellant when he rejected the appellant’s entire account.

(3)     In rejecting the appellant’s evidence, the learned magistrate erred in simply choosing to believe in the evidence of the prosecution witnesses, without directing himself to assess all the evidence impartially and fairly (in particular given the state of the prosecution’s evidence as stated in Grounds 1(i) and 1(ii) above), so much so that he failed to find that the appellant’s evidence did indeed give rise to a reasonable doubt to the charge against him.

(4)     In assessing the evidence of the defence/character witnesses called by the appellant, the learned magistrate erred :

(i)      in placing or having seemingly placed under weight on the fact that these defence witnesses were not at scene; and

(ii)      in failing to consider or properly consider their testimony as to the appellant’s integrity; honestly; righteousness; and sexual inclination.

24. Counsel for the appellant, Mr Li, had very helpfully prepared a detailed written submission to expand on the grounds of appeal.  The respondent had, in turn, submitted a full written reply dealing with each of the issues raised by the appellant.

25. In relation to the ground of “apparent bias”, Mr Li was effectively complaining about two matters :

(1)     the magistrate’s comment on the appellant’s evidence that he had noticed PW1 after boarding the train; and

(2)     the magistrate’s saying that the appellant had tailored his evidence.

26. Mr Li pointed out that what the appellant had said was simply that after he had entered the train compartment, he noticed that a certain girl was then standing on his right.  This was a neutral statement.  However, in reaction to his neutral statement, the magistrate made the comment that the appellant had noticed PW1 virtually right away, bearing in mind that it was a crowded train.  Mr Li said that a similar point was made by the magistrate in his Reasons for Verdict, and these comments had the effect of implying that the appellant had PW1 “targetted” at an early stage.

27. Mr Li submitted :

“Thus, it is humbly that the learned Magistrate was apparently biased against the Appellant by making such comments to such a neutral piece of evidence.  The fact that the Appellant had noticed Pw1 does not mean he had not noticed anyone else when he entered the compartment.  The comments should, for fairness sake, have been asked of the Appellant when he was still in the witness box.”  (paragraph 23 of the appellant’s written submissions)

28. Mr Li’s point might have been significant if PW2 had not testified that when he was on duty at the platform in the Jordan Station, he had noticed the appellant queue up behind PW1, and because of the way the appellant was looking at PW1, PW2’s suspicion was aroused (see the 3^rd paragraph at page 3 of the Statement of Findings).

29. Against the background of PW2’s evidence about the way the appellant had looked at PW1, when the appellant himself gave evidence of about noticing the girl when he boarded the train, I see nothing wrong about the magistrate’s comments, particularly when the magistrate found PW2’s evidence credible.  He was simply echoing PW2’s observation and the appellant’s “acknowledgement”.  I do not accept that the magistrate was showing bias in this regard.  He was just analysing the evidence.

30. Mr Li contended that the magistrate had wrongfully accused the appellant for having tailored his evidence.  I am not going to go into the first instance raised by Mr Li as to whether there was initial touching and whether the distance of one or two inches between PW1 and the appellant could constitute touching.  Mr Li’s main complaint appeared to be that the magistrate had stated in his Statement of Findings that :

“… [the appellant] is trying to again tailor his evidence that he had not stood behind PW1 to her left, and so could not have touched her as PW1 and PW2 attested to.  I reject his evidence.”

31. Mr Li said that the appellant had not tailored his evidence as it had never been the prosecution’s case or evidence that the appellant was standing behind PW1 to her left.  While recognizing there was some difference in the description of where the appellant was standing in relation to PW1, the magistrate had apparently found that the appellant was in such a position as to enable him to carry out the act, which was seen by PW2.  In fact, according to the sketch of PW2, the appellant was indeed positioned behind PW1 to her left, and according to PW1, after she was touched, she had, at one time, turned behind to the left to try to take a look.

32. In any event, I do not agree that by using the word “tailoring” the magistrate had shown bias towards the appellant nor did it reveal a situation where the magistrate had suffered from a “misconceived imagery” about the positions of the parties.  There was no misconception which had affected the magistrate’s impartial assessment of all the evidence.

33. Mr Li also complained that the magistrate had wrongfully rejected the appellant’s testimony.  He had specially focused on the rejection of the appellant’s statement that PW1 had jerked back, hit someone other than PW2, and said “excuse me”.  Mr Li criticized the magistrate for not believing the appellant on this matter. 

34. Mr Li made this submission :

“However, when Pw1 was asked whether she had at some stage knocked her body back to give someone behind her a warning, she said it was not a knock back and indicated that it was a slight turn.  Whether it was an act of knocking back; jerking back or slight turning, it was merely a matter of interpretation by the individuals from different angle.  Given Pw1’s evidence on this aspect, one cannot negate the real possibility that the Appellant might have seen Pw1 move and thus described what he had seen as a knocking back.  It is not a case where Pw1 denied any movement.  Further, she might have said ‘excuse me’ when she knew the train might soon approach the station and prepared to get off.  It was a crowded train.  She might have forgotten she had said so.”  (emphasis added) (paragraph 34 of the appellant’s written submissions)

35. I do not find the above argument convincing.  The appellant said PW1 had apologized to the man behind (who was not PW2) and PW1 clearly said she did not.  This answer also negated the defence suggestion that PW2 was not even there.  What was contended by Mr Li was really a theory without evidential basis.

36. As to the defence witnesses, Mr Li said that the three witnesses called had testified to the appellant’s integrity, honesty, righteousness and, more essentially, sexual inclination.  Mr Li pointed out that the appellant’s girlfriend had known him for seven years, she knew the appellant was not a seedy person.  Mr Li submitted that Mr Ng had known the appellant for eight years, and he had never seen the appellant displaying any sexual perversion.  Mr Li further mentioned that Mr Lam had testified that the appellant would even advise him not to have fun or to be too close to the female colleagues.

37. Mr Li contended that the magistrate had erred in not placing any weight on the defence witnesses’ testimony in this regard.

38. First of all, I do not think it right to say any of the witnesses were called to testify on the “sexual inclination” of the appellant.  I think what was meant here was the propensity of the appellant in committing a crime of this nature.  However, this kind of offence could be committed on impulse, even by someone who is usually honest, proper and righteous.  In any case, the fact that the magistrate found the appellant guilty did not mean he had failed to evaluate the character evidence.  The magistrate had to, after all, make a balance of all such character evidence against the evidence of those who actually were present at the scene.  In this instance, the magistrate, after due consideration, had accepted the evidence of PW1, who said she was indecently touched, and PW2, who said he had seen it happen.

39. I do not agree that the magistrate had wrongfully rejected the appellant’s testimony and had failed to give proper evaluation to the evidence of the defence witnesses.

40. Mr Li, in his other ground, complained that the magistrate had failed to resolve the fundamental/material discrepancies, and had not paid heed to the inherent improbabilities in the prosecution case.  He had given full details in his written submission.

41. What the appellant had raised here were really matters of evidence and facts.  Having seen and heard all the witnesses, the magistrate, in exercising his jury function, had made findings on the basic facts of the case.  He had also given his reasons.  In this regard, I would agree with the respondent’s observations that in his assessment of the evidence of the prosecution witnesses, the magistrate had already dealt with all the major issues upon which the defence had challenged in the cross-examination.  The magistrate had given the prosecution evidence a fair and careful assessment before coming to the view that PW1, PW2 and PW3 were honest and believable witnesses (see paragraphs 35 and 36 of the respondent’s written submissions).

42. This was not a case where a police officer alleged that a person had indecently assaulted another without producing the victim as a witness.  Here, PW2 said he saw the appellant touching PW1 and PW1 on the whole actually corroborated PW2’s account.  I really could not see why PW1 had to lie in order to support the officer’s story, if it was not true.  In fact, she was not going to make a fuss about it and was going to leave.  If she was indeed touched, then there was nothing improbable about PW2 seeing it and arresting the appellant afterwards.  Furthermore, I do not think there is anything surprising if some discrepancies in the different accounts remained, especially when one is doing a frame by frame comparison of a relatively short but continuous event involving different angles and positions.

43. I am of the view that the magistrate had borne in mind the main discrepancies and inconsistencies among the prosecution witnesses and yet he accepted their evidence.  The factual findings were within the domain of the magistrate who had seen and heard the witnesses first-hand.  The magistrate’s findings were reasonable, not perverse and it cannot be said that his conclusions were without evidential basis.  The core of the prosecution’s case was clear and I see no reason to disturb the conviction.

44. Hence, the appeal on conviction must be dismissed.