R. v. LIU CHUN KIT

1997, No. MA 18

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. This is an appeal from Mr Tong sitting at the Magistrates Court in South Kowloon.

2. The appellant before me today was charged with indecent assaulting a fellow employee. There had been certain altercation between them about the fact that she had been chasing him for certain documents and that it may be that the appellant thought that he had been losing some face and thought that she was causing him some problems. They met up in the corridor and the appellant said to this young lady "you'd hurt me just a moment ago" and then he asked whether or not she would compensate him.

3. I am not quite sure what that meant. In my judgment, I doubt if it meant that she would permit him to sexually or indecently assault her because what happened, according to the undisputed evidence, is that the appellant suddenly gripped her left arm and twisted it behind her back as she was on the point of leaving. At the same time he inserted his hand into the neck opening of her vest. Mr Forrest in his usual able way has pointed out that that is an unusual set of circumstances to justify an indecent assault. There seems to be no evidence that there was indeed in his mind at the relevant time the necessary intent to assault indecently. His behaviour, however has been accepted as disgraceful, I accept that was so. What he did to that young girl was quite wrong.

4. Although in one sense the evidence was capable of amounting to indecent assault, in my judgment, this is still a criminal matter, and the magistrate has to be sure. He said : "I find no motive to frame up the defendant." That I also accept. I think there was no motive to for her to frame up the appellant and therefore her evidence should be believed that indeed she was assaulted.

5. However, there is an element of doubt as to whether the assault was an indecent one. That being so. I am satisfied so that I am sure there was an assault, but I would not be satisfied so that I was sure that it was indecent. To that extent, therefore, the appeal is allowed. I allow the appeal, quash the conviction for indecent assault and I substitute the conviction for common assault. I also reduce the fine to one of $500.

6. I have said on a number of occasions before and I know magistrates sometimes feel sensitive about judges criticising them or appearing to criticise them, but for this type of offence which in any view was at the lowest level of indecent assault to remand in custody is quite wrong. There was no necessity to obtain a detention centre report. The problem is that when a magistrate does that, it gives the appearance of a punishment which may not be warranted.