HKSAR v. LEE WAI KWONG

HCMA 486/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 486 OF 1998

(ON APPEAL FROM SKC 4396 OF 1997)

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J U D G M E N T

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1. The Appellant was convicted after trial by a Magistrate sitting at South Kowloon Magistracy of the offence of Indecent Assault contrary to Section 122(1) of the Crimes Ordinance Cap. 200 and was sentenced to a term of 2 months imprisonment. The Particulars of the charge was amended prior to the trial from "at the platform of the Mass Transit Railway Tsimshatsui Station" to "on board the Mass Transit Railway at Tsimshatsui Station". The amended charge was the one which the Appellant had pleaded to and which he was convicted of. He now appeals against that conviction.

2. The Prosecution called 3 witnesses. Briefly, Miss Pangilinaw (PW1) gave evidence that on 19th December last, she was wearing a skirt the hem of which was nine inches above the knees. At about 6 p.m., whilst boarding the MTR train at the Tsimshatsui station, she felt a hand touching her buttock underneath her skirt for 2 to 3 seconds. She turned around and asked "why, why, why". She boarded the train and the man who had touched her followed her. Whilst on board, she again felt a "hard thing" touching her buttock underneath her skirt. She described this man as wearing a dark brown colour jacket. Then a police officer approached her and asked if something had happened to which she replied in the affirmative. At the Jordan station, police officers led her and the man off the train. When asked whether she could remember the man who touched her, she replied that she was not sure of his face but knew he wore a brown jacket. The police then showed to her the Appellant and she confirmed that he was the man. She identified the Appellant in court. The touch which she had demonstrated was one of rubbing up and down between the buttocks. Under cross-examination, she agreed that the second "touch" took place very shortly before the Jordan station and that the Appellant was carrying a bag.

3. Police Constable 54631 (PW2) gave evidence that at about 5:53 p.m. on 19th December last, he was on the platform of the Tsimshatsui MTR station with other colleagues. He noticed the Appellant, who wore a dark green jacket, standing there without boarding the trains. The Appellant then went to stand behind PW1. Whilst boarding the next train, the Appellant used his left hand to touch the buttocks of PW1 underneath the skirt for about 3 seconds. When on board, he again saw the Appellant touch PW1 underneath her skirt; this time for about 2 seconds. At Jordan station, he revealed his identity to the Appellant and requested the Appellant to get off. His colleague, Police Constable 49765, did the same with PW1. On the platform he asked the Appellant what had he done earlier inside the compartment and the Appellant replied "Nothing. I am just taking an MTR back home". Upon arrest and under caution, the Appellant said that he might have touched the lady carelessly when boarding but he had never touched her on board the train. Under cross-examination, he said that he followed the Appellant before he saw the Appellant doing anything because he suspected that the Appellant might want to commit indecent assault. He said that at the time of boarding, there was no pushing. He could not remember whether the Appellant was carrying a bag. He maintained that the second touch was at the Tsimshatsui station prior to the door of the train closing. It was his colleague who told him at the Jordan station platform that PW1 had identified the Appellant as the man who had indecently assaulted her.

4. Police Constable 49765 (PW3) gave evidence that on the same day and at the time in question, he was together with PW2 at the Tsimshatui MTR station. He saw the Appellant in dark green jacket wandering around the platform and then placed himself behind PW1 when she appeared there to queue for boarding. He followed PW2 to board the train and saw the Appellant use his left hand to press onto the buttock of PW1 and pushed her to board the train. He could not remember whether the Appellant was carrying anything. Inside the train, PW2 blocked his view and he only saw PW1 turning her head and took a look at the Appellant. Upon arrival at Jordan station, when he saw PW2 reveal his identity to the Appellant, he did the same to PW1. On the platform there, PW1 told him that "the people touch me" and pointed at her buttock. PW1 also said she did not know the Appellant. PW1 was asked by him whether the Appellant was the one who had touched her and she replied in the affirmative. Under cross-examination, PW3 agreed that the touch he saw may have been accidental.

5. The Appellant gave evidence that whilst waiting to board the MTR train at the Tsimshatsui station, he did not notice PW1. When the train arrived, he and others boarded by pressing into the compartment. He was carrying a bag which he carried everyday and when boarding he was holding it with both hands to his chest. When inside the train, which was quite packed, he held onto the bag with one hand and the rail with the other. When the train arrived at Jordan, he was told to get off by a police officer who said he was suspected of indecently assaulting the lady. On the platform he told PW2 that he was on his way home. After PW2 had spoken to PW3, PW2 declared arrest on him and under caution, he admitted he might have touched the lady carelessly when boarding but had never touched her again on the train. Under cross-examination, he maintained that he had never noticed the presence of PW1, not even when PW3 asked PW1 to get off the train.

6. The Appellant was convicted as charged. The learned Magistrate, at the time said, inter alia, that:

" ... inconsistencies in their evidence is something to be expected and inevitable. Given the evidence of PW2 that he was behind the defendant and observed him touching PW1's buttock underneath the skirt on both occasions, I find the difference in the description of the colour of the jacket to be insignificant. There is no question of mistaken identity here. Although PW1 didn't see the face of the man who indecently assaulted her, from the evidence of PW2, there is no doubt that it was the defendant who did it. PW1 and PW2's evidence corroborate each other, and from the description of the touch by PW1 ... the only conclusion one can draw from this is an intentional act in the circumstances of indecency. I've also considered the evidence of the defendant. I have also reminded myself the defendant is a person of good character, but I do not accept his evidence. According to the defendant, he didn't notice the presence of PW1 all through the incident, not even at the time when she was asked to get off the train by the police officers. This is something incredible ... Apparently, the defendant was trying to conceal the fact that the victim was standing in front of him."

In her Statement of Findings, after reciting the evidence of the witnesses including that of the Appellant, the learned Magistrate said very much the same things she said during her oral judgment. The only additional matter she referred to was that "Although PW3 agreed with the defence's suggestion that it may be an accidental touch, the description of PW1 about the touch clearly rebuts such an observation".

7. Mr Marash and Mr Poots who appear for the Appellant here but not below, raised 6 grounds of appeal against conviction and very diligently dissected the transcript into many parts in support thereof. The grounds are that:

1. The learned Magistrate had failed to state which of the two alleged assaults took place on board the MTR at Tsimshatsui station and convicted the Appellant without considering which of those assaults related to the charge;

2. The finding that identification was not in issue was erroneous and the learned Magistrate had failed to give herself the warning on the dangers of identification evidence;

3. The finding that the evidence of PW1 was corroborated by that of PW2 as to identity of the culprit was wrong because PW1 could not identify the culprit except by clothing which was different to that worn by the Appellant;

4. The learned Magistrate had failed properly to consider and to adequately resolve major inconsistencies in the Prosecution's case;

5. The learned Magistrate had failed to give herself the full "Berrada" direction; and

6. In all the circumstances, the conviction was unsafe and unsatisfactory.

8. I have read the full transcript of the proceedings. Before I deal with the grounds of appeal, it is necessary that I quote certain parts of it which I found to be helpful and pertinent.

9. Firstly, PW2 in evidence said that the Appellant's answer to the verbal caution was "Earlier on perhaps when I was boarding - perhaps I had touched the lady inadvertently or carelessly ...".

10. Secondly, Mr Hagon, during the examination-in-chief of the Appellant asked the following questions:

Q: Now, after you were arrested, you were cautioned and it was then, was it not, looking at the written ...

Mr Hagon: It hasn't been produced, Madam, but ...

Q: the officer arrested you, alleging that you had indecently assaulted the female at the platform of Tsimshatsui Police Station (sic), evidence that we've heard. And also, it was alleged that you had assaulted the same lady again inside the train. That's what he told you in his caution, isn't it?

A: Yes.

Q: So he made you aware of the allegations, and you've heard what he says your reply was, and is that the gist of what you said, namely, "I didn't - I might have touched the female when boarding the train. However, I didn't touch the buttocks (sic) of her after boarding the train. Probably it was because there were too many people on the platform and inside the train?" Are those the words you said?

A: Yes.

Q: What you were saying then, Mr LEE, you may have inadventently touched the lady as you were boarding the train, but you didn't do anything else in the train. You didn't touch her after that.

A: Yes.

Q: Well, I will ask you two last questions, Mr. LEE. Did you, deliberately and in an indecent way, indecently assault that young girl - that girl - sorry, we don't know her age - 24? - either on the platform or as you were boarding the train?

INTERPRETER: On the platform and at the train?

Q: Well, on the first allegation, did you deliberately touch that girl in an indecent manner?

A: No."

11. Thirdly, Mr Hagon, during his final submissions to the learned Magistrate said this: "All PW2 says in his statement is, he asked him what was he doing on the train. That's all he said. Then he spoke to PW3, not in the presence of the defendant, and he came along and said, "Right, I'm arresting you," and the defendant's reply, or the gist of his reply, Madam, is that, "I might have touched the female when boarding the train. However, I didn't touch the buttock (sic) after boarding the train." And that's what he told the police when immediately attacked (sic). He didn't deny it all, which he could have. "No, no. No such thing." He conceded, which is quite right, because he could have touched her."

12. Ground 1: As is usual in the Magistracies, but unfortunately in this case, the Prosecution did not open its case before proceeding to call evidence. This together with the amendment to the Particulars of the charge, might have caused the 'confusion' which forms the basis of this ground because on the evidence, there were two assaults. Mr Hagon, who appeared for the Appellant at the trial, during his final submission, referred to the "strange charge" of "At the platform of the Mass Transit Rail Link"; no doubt referring, though inaccurately, to the Particulars of the charge before it was amended. The learned Magistrate informed him at the time that the Particulars had been amended to "on board the Mass Transit Railway" prior to the trial. How it was that Mr Hagon had no knowledge of the amendment and had started the trial without first checking the Particulars of the charge I do not know. However, no application was made by him when he was so informed. It must be noted that although the charge was amended, the reference to Tsimshatsui station was retained. In my view, this indicated that the Prosecution's case was in respect of the assault which took place during the boarding; that is, what has been called the "first assault" in these proceedings. It really mattered very little whether this assault was on the platform just before boarding or whether it was on the train immediately after boarding. The evidence as to this assault was clear and it was also clear, by the reference to Tsimshatsui station in the Particulars, that the charge did not refer to the second assault. Further, the only assault which PW3 saw was the one at the Tsimshatsui station. The fact that the learned Magistrate had made special mention of his agreement with the suggestion put in cross-examination that the assault may have been accidental, must mean that she was considering the first assault as the subject matter of the charge. Hence, I do not find that the first ground is of substance and it fails.

13. Ground 2: It is correct that PW1 was not able to identify the Appellant as the culprit by his facial features and that her description of the colour of his jacket was different to that given by PW2 and PW3. However, it must be remembered that this was not a case of proving, by identification evidence, that the Appellant was at the scene. That he was there could not have been challenged and indeed it was not. The answer given by the Appellant upon being cautioned crystallized the issue to whether the 'contact', to use a neutral word, was intentional or accidental. It can be seen from the parts of the transcript which I have quoted that the Appellant accepted he gave that answer. Furthermore, from the way in which Mr Hagon had phrased his questions in the examination-in-chief of the Appellant and what he had said in final submission, it is clear that the answer to caution was in accordance with his instructions. It was quite unfortunate that Mr Hagon had misquoted that answer by adding to it the word "buttocks". This then became evidence which tended to shew the Appellant was aware PW1 was touched on her buttocks whilst on the train though PW2 had never mentioned this to him in caution. However, I place no weight on this because counsel's carelessness should not result in a disadvantage to his client. There was no issue taken during the trial by Mr Hagon that the Appellant was not there and PW2's evidence as to the Appellant's answer to caution was never challenged. That being the situation, it cannot now be said that the issue of identity was raised at the trial. As can be seen from the quotes of the transcript, Mr Hagon in conducting the defence, simply raised the issue of whether the touch was intentional or inadvertent; and consequentially, not even challenging the Prosecution's allegation that the Appellant had "touched" PW1. In the circumstances, I do not think that the Turnbull warning was necessary. Further, there was no complaint that PW2 was in a position which made his observation of the Appellant difficult and therefore his identification evidence unreliable. Admittedly, both PW2 and PW3 were unable to say whether the Appellant had with him a bag; such being the allegation of the Appellant and supported by the evidence of PW1. However, this fact does not go to the identity of the culprit which PW2 said was the Appellant. Having considered the submissions and the many cases which Mr Marash has cited, I am of the view that the learned Magistrate was not wrong. On the evidence and the way the defence was conducted, she was entitled on her findings to conclude, as she did, that there was no question of mistaken identity. Therefore the second ground fails.

14. Ground 3: Mr Marash, with respect, quite correctly submitted that since PW1 could not properly identify the Appellant as the culprit, therefore her 'evidence on identity' could not have been corroborated by that of PW2. However, when the learned Magistrate found that the evidence of PW1 and PW2 corroborated each other, she did not specifically mention that it was in respect of identification. Indeed, she was quite aware, having recited PW1's evidence, that PW1 was not able to recognize the face of the culprit. Therefore she could not have been referring to evidence to corroborate PW1 on the aspect of identification. PW1's evidence was that whilst she was boarding the train, she was touched on her buttock underneath her skirt for 2 to 3 seconds. PW2's evidence was that when PW1 boarded the train, the Appellant was behind her and he saw the Appellant touch PW1's buttock underneath her skirt for about 3 seconds. This must have been what the learned Magistrate was referring to when she said that PW1 and PW2 each gave clear and consistent evidence which corroborated each other. I find that there is no possibility that the learned Magistrate would have forgotten, or misinterpreted the evidence of PW1 as to identification in such a way, that she could have found PW2's evidence corroborated PW1's evidence on that. In the premises, ground 3 fails.

15. I shall deal with Ground 4 together with Ground 6 because it is more convenient to consider them together.

16. Ground 5: The learned Magistrate, both in her oral judgment and Statement of Findings, said that in considering the evidence of the Appellant, she had in mind the fact that the Appellant was a person of good character. Nonetheless, she did not accept his evidence. Mr Marash submitted that this meant that the learned Magistrate had only taken into account the Appellant's good character in considering the Appellant's credibility but not in respect of propensity; and that was wrong. He cited the case of R v. CHUNG Siu-ping Mag. App. No. 113 of 1997 in support. However, CHUNG's case was decided before the recent case of TANG Siu-man v. HKSAR FACC No. 1 of 1997, and the instant case was heard after the judgment in TANG's case was delivered. In TANG's case, the Court of Final Appeal held that there was no need to impose the Vye and Aziz regimes on trial judges (in respect of their directions to juries); and that at the end of the day, an appellate court will look at a summing-up to decide whether or not it was fair and balanced (in the circumstances of the case), that being the ultimate test. In respect of the Vye and Aziz directions, Mr Justice Litton PJ said:

"These are not directions on law which a jury is bound to follow. They relate to evidence which, at the end of the day, is the province of the jury. However entrenched these rules might be in the criminal justice system they can amount to nothing more than an indication of the way the jury might properly make use of the evidence (emphasis supplied)."

With that in mind, with respect, I do not agree that from what the learned Magistrate had said, Mr Marash's complaint has been made out. The fact that the learned Magistrate had taken the trouble to specifically mention that she had kept the Appellant's good character in mind when considering his evidence shows that she had considered the Appellant's evidence in a fair manner. Since this was a jury matter, and she was also the jury, I find this ground not of substance.

17. Ground 4: Mr Marash has gone to a lot of trouble in highlighting parts of the evidence to demonstrate the inconsistencies which he complains of. Mr Wong for the Respondent, very fairly acknowledged that there were such inconsistencies. The learned Magistrate, both in her oral judgment and her Statement of Findings, also recognized this situation. The way in which she had dealt with them was to find that "such inconsistencies was something to be expected and inevitable". As has been said before on many occasions by these courts, discrepancies, improbabilities and omissions will always be present in the evidence of a case. A Magistrate is not expected to deal expressly with each and every such matter which the defence may be able to find in its favour. [R v. R.E.Low [1961] HKLR 13; R v. Sheik Abdul Rahman Bux & Ors. [1989] 1HKLR 1 (CA).] A realistic approach must be adopted by asking whether any matters which were not dealt with were of such material and significance that they would lead an appellate court to conclude there was doubt as to credibility on central issues. Mr Wong also submitted that it was always open to a Magistrate to accept part of the evidence of one witness and part of the evidence of another. With respect, that observation, though correct, must be confined to instances where the court was sure that the discrepancies did not arise because the witnesses were untruthful and that they were not in relation to central issues. Unless these criteria are met, this practice should not be adopted as it may well give rise to justified complaints and, more importantly, injustice. When a complaint is made in respect of this practice, an appellate court will have regard to the parts which have been ignored to decide whether in the circumstances, they formed major difficulties on central issues which therefore required the Magistrate to satisfactorily resolve. I have considered all the parts of the evidence which Mr Marash has drawn to my attention. In respect of the first assault, the evidence of PW1 and PW2 did not differ at all. Both PW1 and PW2 in evidence clearly stated that PW1 was touched, whilst boarding the train, underneath her skirt for 2 to 3 seconds.

18. Ground 6: Section 119(1)(d) of the Magistrates Ordinance Cap. 227 empowers this court to confirm, reverse or vary a Magistrate's decision upon appeal. Since this is an appeal against conviction, this court can only either confirm or reverse the verdict. Unlike S. 83 of the Criminal Procedure Ordinance, Cap. 221, S. 119(1)(d) does not set out grounds upon which an appeal against conviction is to be allowed. However, appeals have always been allowed upon grounds which came within those set out in S. 83. One such ground is that "under all the circumstances of the case the conviction was unsafe or unsatisfactory": S. 83(1)(a). This is a general and all encompassing ground and is Mr Marash's Ground 6. In the normal course, when all specific grounds of appeal have failed, an appeal would be dismissed. However, an appellate court has a residual discretion to consider the evidence as a whole to determine whether it was content to let the matter stand as it is, or whether there is some lurking doubt which makes it wonder whether an injustice has been done. [vide: R v. Lake (1976) 64 Cr. App. R. 172, 177 and R v. Bracewell (1979) 68 Cr. App. R. 44, 52]. This is commonly known as the "lurking doubt" principle. Until the early seventies, the "lurking doubt" ground was something of a novelty to the courts of Hong Kong. However, since then, it has been recognized as a ground of appeal. By its nature, it is very wide and inclusive and does not depend upon any one particularly complaint which by itself may not be of much substance. It tantamounts to inviting an appellate court to substitute its "feel" about the case to see whether it is comfortable with the guilty verdict [vide: McMullin J (as he then was) in Ng Sheung-kwan v. R [1974] HKLR 482 (Full court)]. In other words, an appellate court is asked to deal with the cumulative effect of all that has been complained of and come to a decision on whether or not it felt the conviction was unsafe and unsatisfactory. The "lurking doubt" approach must be applied with great caution because it is asking an appellate court to substitute its subjective view for the decision reached by, in this case, a Magistrate who have had the benefit of observing the demeanour of witnesses and accordingly assess their credibility. It is only when an appellate court, in so doing, is left with a substantial remaining doubt that injustice may have been done would a "lurking doubt" ground of appeal succeed [vide: Tang Wai-ting & Anr. v. R [1979] HKLR 479 (CA)]. As pointed out by Mr Marash under Ground 4, there are a number of discrepancies which exist in the evidence of this case. I am of the view that though they are not of much significance individually, nonetheless they are of significance if taken together and accorded proper weight. Examples of these are: whether PW1 turned around after the first assault to say "why, why, why" before boarding or was that done on board the train; that PW1 said the culprit wore a brown jacket as opposed to PW2 and PW3's evidence that the Appellant wore a green jacket; that PW1 said the Appellant had carried a bag whereas PW2 and PW3, who were watching the Appellant closely, were unable to say whether that was so; that PW1 demonstrated the touch as rubbing up and down between her buttocks yet this was never so described by either PW2 or PW3; that PW2 said that at the time of boarding, there was no pushing whereas PW3 said that the Appellant had used his left hand to press on the buttock of PW1 and pushed her onto the train; that PW1 and PW2 said that the hand was underneath the skirt whereas PW3 did not mention seeing the Appellant's hand underneath PW1's skirt; that PW1 was shewn the Appellant by pointing before being asked whether he was the culprit; that PW1 told PW2 she was not sure of the face of the culprit yet she was able to confirm to PW3 that it was the Appellant; that PW3 said that the touch he saw may have been an accidental touch, and so on. None of these matters taken individually could have amounted to much or be of much effect in view of the evidence given by PW1 and PW2 about the first assault. However, taken together, they do paint a somewhat distorted picture. Having been through the whole transcript, and having paid particular attention to the parts of the evidence which I have set out, I do feel uncomfortable about the conviction and am of the view that there is real cause for doubt as to whether the Appellant did deliberately touch PW1 indecently. Perhaps if the defence's final submission had simply put before the learned Magistrate the situation of having on the one hand the evidence of PW1 and PW2 but on the other hand there were those parts of the evidence which I have listed, the learned Magistrate might have arrived at a different conclusion. Unfortunately that was not done. The final submission more or less totally ignored the evidence of PW1 and PW2 on the first assault and the learned Magistrate was inundated with a whole host of matters which did not centre upon those discrepancies. "Lurking doubt" is the crux of this ground of appeal. I find that I do have a substantial doubt that injustice may have been done and therefore this ground is of substance and succeeds.

19. In the circumstances, with some reluctance, I find that the conviction is not safe nor satisfactory. The appeal is allowed. The learned Magistrate's verdict is reversed. The conviction is quashed and the sentence set aside.