R. v. LAI HO MING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.567 OF 1996

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J U D G M E N T

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1. The appellant was convicted after trial of indecent assault. He was sentenced to 21 days imprisonment. He now appeals against conviction.

2. The prosecution case is this. On 12th January 1996 at about 8:30 a.m., the victim was travelling on a crowded MTR train from Yaumatei. She was standing behind the appellant and facing his back. There was a short distance of about a few inches between the two. The appellant had some space in front of him and was holding a newspaper which was about half open. The appellant got closer to her and started to use the back of his left arm to rub against her left chest around her breast. She said she saw it and she felt it. She said that the arm rubbed in an upward and downward motion for about 3 seconds. She then moved back as much as she could but apparently that only meant about another few more inches. She said the appellant moved back towards her and did it again by rubbing his arm against her breast for a few seconds. She then moved back yet again and put up her knuckles in front of her chest in order to protect herself. The appellant leaned backwards against her and she tried to straighten herself and in order to resist the appellant, she arched backwards. At that stage, the appellant apparently felt some discomfort because of the knuckles, turned round and glared at her. She stepped back at him. An argument then ensued. I do not need to go into the exact words of the argument. Suffice it to say that although the victim did not mention she was indecently assaulted, the appellant referred to something which was rather unpleasant. During the argument, the victim asked the appellant to stop pushing and the train finally stopped at Admiralty Station. The argument continued. The staff of the MTR were called and the matter was reported to the police.

3. The appellant gave evidence. He said that he was travelling from Lai Chi Kok Station. At Yaumatei, there were lot of people and according to him, "I turned around. I saw PW1 standing behind me, with another person between us and the person then moved away." He also said that there were some ladies in front of him and he was not reading a newspaper. It was simply under his arm. When the train reached the station, he felt that he was being pushed from behind. He stood still for 2 seconds and the push disappeared. Butt he was again suddenly pushed from behind. He then turned round and saw the victim who said : "don't take advantage". A quarrel ensued. I think he mentioned in evidence that at one stage he challenged the victim to call the police.

4. There was no independent witness. It was one man's word against another. The learned Magistrate warned himself of the danger of convicting without corroboration. In such circumstances, he considered the evidence, accepted that of the victim and rejected that of the appellant. He finally convicted him.

5. A number of grounds of appeal are being pursued. Counsel submits that there is not sufficient evidence of any deliberate act by the appellant and that the Magistrate had not applied his mind to the possibility of an accident. It is submitted by the counsel for the appellant that the victim came and stood behind the appellant and it was not the appellant who tried to get to the victim. He argues that there is no evidence that the appellant had looked behind him and that it was usual for a person on an MTR reading newspaper to have his arm coming into contact with the person behind. It is argued that there is no evidence of any indecent intent.

6. The prosecution case is not that there was an accident. It was not a touch and go situation. According to the victim, the appellant did it twice. When it was done the first time, she stepped back and the appellant moved back and did it a second time. It was not a simple accidental contact but rubbing for a few seconds. After the second time, the victim stepped further back and the appellant leaned further backwards. In my view, a woman in these circumstances, would certainly be able to distinguish between a simple contact by accident and a deliberate act of indecent assault such as rubbing of the breast in the present case.

7. Counsel submits that the evidence of the victim was not unequivocal. I must disagree with that because according to her evidence, she said "He didn't touch and leave, it was touch and moving, but contacted the whole time".

8. Counsel also refers to a part of the evidence where the victim said: "As train to Admiralty, we argued and I said, 'You not pushing, take a look at you position'. He looked, and seemed surprised, he realised what I said was true." It is submitted that if the victim said the appellant was surprised, this may be an indication that the appellant was not aware of what was happening and therefore this went to show that he had no intention to commit indecent assault. With respect, I do not agree. The evidence shows that this part came much later. It was after the victim had moved back a second time, after they had passed Tsimshatsui and were on the way to Admiralty, that the appellant turned back and glared at the victim. It was after a quarrel had already started and the appellant and the victim were at Admiralty that the victim said that. It is quite clear that the comment made by the victim was at a later stage. They had already started an argument which was about whether the appellant was further pushing or the victim was pushing him. So I do not think this part of the evidence would go to indicate that the appellant had no intention at all. From the evidence, I think the learned Magistrate was certainly entitled to draw the inference that the appellant did the act deliberately.

9. Another ground of appeal is that the victim did not cry out at the first opportunity. There could be many reasons for not doing so. Sometimes it would be due to the psychological effect of an indecent assault on the woman. Sometimes it would be due to embarrassment. Sometimes it would be due to the crowded circumstances of the place. But be that as it may, when she was asked, she replied "The subway was crowded, I wanted to give you the benefit of the doubt, I don't cry out every time someone bumps into me."

10. Counsel submits that this clearly indicates that the victim at the material time was not sure that the appellant had indecently assaulted her or that it was simply an accidental bumping. With respect, I do not agree. One has to look at the evidence in the context. After the victim had said the above, the cross-examination continued and she said :

"Q. You stepped back and said I offended you further?

A. Yes.

Q. Why were you still unable to be certain I offended you?

A. I was uncomfortable, you glared at me and I at you - I thought that would be enough to make you stop.

Q. First time I rubbed you, you stepped back and I rubbed you again?

A. Yes.

Q. You could have said I assaulted you indecently?

A. I was certain you did.

Q. Why not asked for assistance?

A. I just reacted, I don't have experience, I don't know how many times before I complained."

11. I think that gives the whole picture of what was the feeling of the victim at the time. The first time, it could be an accident but according to her it was probably not because it was not a touch-and-go situation. It was a rubbing of her breast. Still she wanted to give him the benefit of the doubt. In the second time, she became certain. That was what she said in her evidence. I think it is noteworthy for her to say : "I don't know how many times before I complained". That gives an idea of what was in her mind at the material time. It was after the argument and the challenge by the appellant that the victim felt unable to tolerate such conduct and attitude. After that, she reported to the staff and the police. I think it was understandable that she behaved in such a way.

12. I think that the learned Magistrate was entitled to come to the conclusion that he did. He had already warned himself of the danger of convicting in the absence of corroboration, particularly in the case of one person's word against another. However, I think the evidence is quite clear.

13. In the circumstances, I do not think any of the grounds of appeal can be sustained. The appeal is therefore dismissed.