HKSAR v. THABSEER MOHAMED FARHAN

HCMA 465/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 465 OF 2011

(ON APPEAL FROM KCCC 821/2011)

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J U D G M E N T

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1. The appellant was found guilty of one charge of indecent assault after a trial, he now appeals against conviction.

2. This case is an alleged indecent assault inside a crowded compartment of an MTR train.  PW1 was an 18‑year‑old school girl who first felt something touch her hip, she at first thought it was accidental.  Two to three seconds later, she was touched again and she felt fingers were brushing up and down.  The second touch lasted six to seven seconds.  She tried to turn around but it was so crowded that she could not move, so she could not see who was the person touching her.  She said she was touched in the area of the gap between her hips, on her waist.

3. PW2 was a police officer who had his eye on the appellant before he got onto the train compartment.  He saw the appellant move his backpack from his back to his front when he got on the train which aroused his suspicion.  PW2 said the compartment was quite crowded and he saw the appellant move his hand towards the victim, but he had to turn his head away when the appellant looked in his direction.  When he turned back, he observed the appellant with his palm facing outward and his thumb inside his palm slowly move his hand towards the hips of the victim and touched her for about 10 seconds.  PW2 said that although the train was crowded, people were about half a metre away from each other.

4. The appellant gave evidence.  He is a man of clear record.  He said that the train was very crowded and people pushed him from behind, so he pulled his bag to his front over his right shoulder.  He denied having touched the victim as described by PW2, but he was not sure if his hand, knocked by someone may have touched the victim accidentally.

5. The learned Magistrate did point out that there were inconsistencies between the account given by PW1 and PW2, particularly, when PW1 said that the compartment was so crowded that she could not turn around whilst PW2 said that people was standing about half a metre apart.  The learned Magistrate considered that estimates of distances “vary considerably with witnesses, but PW2 is a professional witness.”(see pg 12 of the appeal bundles).

6. The learned Magistrate considered the inconsistencies to be “not centrally material” and went on to accept the evidence of the PW1 and PW2 as being truthful, honest and reliable. The learned Magistrate did not accept the evidence of the appellant and rejected it, and considered that “those actions as observed by PW2 and felt by PW1 are not consistent with this being the accidental touch that he says it may have been”. At the end of the day, he convicted the appellant.

Appeal

7. Mr Sutherland on behalf of the appellant submitted 8 grounds of appeal, the 1^st 4 grounds complained that the learned Magistrate had erred in dealing with the inconsistencies in the evidence between PW1 and PW2, and had failed to properly consider the evidence of the appellant in particular his consistency with PW1’s evidence.

8. In relation to the way the learned Magistrate dealt with the evidence of PW1 and PW2, I do agree that the learned Magistrate had brushed away the inconsistencies as being immaterial.  In fact, as Mr Sutherland submitted, the main inconsistency between their evidence whether the compartment was so crowded that PW1 could not move, or whether it was as PW2 said that there was half a meter distance between the passengers is particularly material.  On this central aspect of the case, the appellant’s evidence was consistent with that of PW1.  Unfortunately, the learned Magistrate had failed to address the issue properly, there is a major difference between a train being so crowded that one could not move or turn around and a compartment where the victim and the appellant was half a meter apart from each other, and it is particular critical in this case because the learned Magistrate found that PW1 was an honest and truthful witness, but not the appellant. He failed to deal with the fact that the appellant’s evidence was consistent with PW1’s evidence, but inconsistent with that of PW2. 

9. I, therefore, agree with Mr Sutherland that the way the learned Magistrate have dealt with the evidence created a lurking doubt in this case as to the propriety of the conviction.

10. In addition to the above points, the 2^nd major ground of complaint by Mr Sutherland is that the learned Magistrate erred in finding beyond reasonable doubt that the alleged touch “ was clearly indecent both as to its intention and as to its location.”(see pg 14 of the appeal bundle), when the learned Magistrate later said in his reason for sentence “the indecent assault was — I think I said it on a previous occasion — borderline as to whether it, because of the location of the touch, could be classified as indecent assault, but it certainly was in an area that one would immediately consider as being an intimate touch: it was in the hip area.”(see pg 40, lines H to K of the appeal bundles). 

11. The “previous occasion” referred to by the learned Magistrate was at the time when Mr Sutherland was mitigating on behalf of the appellant where the learned Magistrate said “well, the location of touching made borderline as to whether it would be taken as an indecent assault or a common assault because of the locations.”(see pg 32 line R of the appeal bundle).

12. Mr Sutherland, pointed out that the learned Magistrate appeared to have retreated from his findings that the indecent assault was “clearly indecent both as to its location and as to its intent” when he was considering the proper sentence in light of his conviction.

13. It is unfortunate that the learned Magistrate had chosen to say those words.  I have no alternative but to agree with Mr Sutherland that the learned Magistrate may not have properly considered the legal definition of an indecent assault as it applied to this case.

14. Ms Lam pointed out that the learned Magistrate had said in  his reasons for verdict:

“For such a touch to be an indecent assault, it had to be done intentionally as to it being indecent and also in circumstances of indecency. Clearly, there was no consent to such touching and it was a part of a girl that may be considered to be – if someone touches here there – to be undue intimacy and familiarity. And in consider that as sufficient to establish the element of indecency. The touch was deliberate, was not consented to and was clearly indecent both as to its intention and as to its location.”

15. Ms Lam submitted that the learned Magistrate knew very well what the elements of an indecent assault are. That unfortunate remark made prior to sentencing was in relation to whether the appellant ought to be given a custodial sentence.

16. That may be a possible reason for the learned Magistrate’s remarks but this court cannot second guess what was in the learned Magistrate’s mind when he made those remarks.  If there is a doubt, the doubt ought to be resolved in favour of the appellant. 

17. Therefore, in all the circumstances, I find that the conviction was unsafe and unsatisfactory.  The appeal is allowed.