HKSAR v. TSAO HUNG WAI

HCMA 943/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 943 OF 2001

(ON APPEAL FROM NKCC 3905/2001)

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J U D G M E N T

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1. On 3 September 2001 the appellant was convicted, after trial, of an offence of indecent assault committed on 10 May upon a 17 year old school girl who was standing up whilst travelling on a Mass Transit Railway train.

2. The appellant appealed against his conviction and, on 19 March, having heard argument on behalf of both the appellant and the respondent I allowed the appeal, quashed the conviction and set aside the sentence imposed of 21 days imprisonment. I said at that time that I would give my reasons for that decision in writing in due course. These are my reasons.

3. The grounds of appeal against the conviction advanced by Mr Egan who appeared both at trial and before me on behalf of the appellant were these:-

(a) The conviction was unsafe and unsatisfactory; and

(b) that if there was indeed any assault on any of the several occasions when the appellant came into contact with the girl (which was denied) it was not, upon the evidence, an indecent assault but at most a common assault.

4. I should perhaps commence this judgment by saying that prior to hearing oral argument from counsel I had ample opportunity to read the appeal bundle and, in particular, the learned Magistrate's statement of findings and the transcript provided. It was plain from such reading that the learned Magistrate (having rejected the evidence of 2 police prosecution witnesses who said they had witnessed what had taken place and one of whom who had suggested to the girl that she had been indecently assaulted) apparently relied for the conviction upon the uncorroborated evidence of the girl concerned who said (in terms) that whilst she was 'bumped' by the appellant on a number of occasions during the journey, she was not conscious of being assaulted, let alone indecently so, and that when she was so 'bumped' she conceded that each 'bump' (save perhaps the last which she said was an 'obvious' one) may have been accidental.

5. It is also apparent that the learned Magistrate whilst directing himself regarding the appellant's good character did not see fit to direct himself upon the effect of lies which he was satisfied that the appellant had told.

6. At the commencement of his submissions Mr Egan referred me to page 1556 of Blackstone's Criminal Practice (1999 Edition) which is reproduced at page 1626 of the 2002 Edition and which reads as follows:

"The case of Cooper [1969] 1 QB 267 continues to provide guidance on how the word 'unsafe' should be interpreted in determining a criminal appeal. In that case, Lord Widgery CJ explained that if the overall feel of a case left the court with a 'lurking doubt' as to whether an injustice may have been done, then a conviction will be quashed, notwithstanding that the trial was error-free. Lord Widgery said (at p. 271 C-G):

[This is] a case in which every issue was before the jury and in which the jury was properly instructed, and, accordingly, a case in which this court will be very reluctant indeed to intervene. It has been said over and over again throughout the years that this court must recognise the advantage which a jury has in seeing and hearing the witnesses, and if all the material was before the jury and the summing-up was impeccable, this court should not lightly interfere. Indeed, until the passing of the Criminal Appeal Act 1966 [which somewhat widened the court's powers to quash a conviction] it was almost unheard of for this court to interfere in such a case.

However, now our powers are somewhat different, and we are indeed charged to allow an appeal against conviction if we think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. That means that in cases of this

kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it.

Similarly, Lord Kilbrandon in Stafford v DPP [1974] AC 878 at p. 912 summarised the test to be applied by each member of the appellate court thus: 'Have I a reasonable doubt, or perhaps even a lurking doubt, that this conviction may be unsafe or unsatisfactory?'"

7. Mr Egan proceeded from there to submit that applying that last question to the present appeal the answer must be in the affirmative for the reasons which he then suggested which included the following:-

(a) there must be a doubt that there was any assault at all let alone an indecent assault given that, in her evidence, the girl said that each time that the appellant came into contact with her it might have been an accident;

(b) the learned Magistrate was perhaps (given the nature of the case) 'over protective' towards the girl when she was giving her evidence to the apparent disadvantage of the appellant. Mr Egan, by reference to the transcript, pointed to a number of occasions when the Magistrate plainly endeavoured by leading questions to get the girl to give evidence in support of the allegations both of assault and indecency albeit that this she steadfastly declined to do;

(c) the learned Magistrate having plainly formed a view that there was, so to speak, 'no smoke without fire' and that he believed the girl's account of matters (albeit bereft of the essential ingredients of the offence charged) proceeded then (as it were to justify that belief) not merely to state that he disbelieved the appellant but to go further and to conclude that he lied about at least 2 matters;

(d) that the Magistrate having reached that conclusion concerning lies, it was at least desirable (in the particular circumstances of this case) for him to have directed himself concerning the possible reasons for those lies; and

(e) that the learned Magistrate fell into error when he concluded in his statement of findings as follows:-

"I was satisfied so that I was sure that the defendant was the person who bumped PW1 on each and every occasion.

I was satisfied so that I was sure his actions were intentional and constituted an assault on PW1.

I was satisfied so that I was sure that the assault and the circumstances surrounding it are capable of being considered as indecent by right-minded individuals. I was of the view that no right-minded person could possibly consider the deliberate touching of a young girl's buttock in these circumstances not to be indecent."

Mr Egan says, as to that, that the Magistrate appears to have concluded that each 'bumping' constituted an 'intentional assault' - in spite of the girl's evidence and not because of it - but that it was only the last one, when considered in the light of what had preceded it, that was indecent. However on the evidence, so Mr Egan argues, the prosecution had failed to prove that that last 'bumping' was intentional and was therefore an assault, and that the evidence was that there had not been a 'touching' in the sense that that word implies.

8. As to that last matter the learned Magistrate said this in his statement of findings:-

"In relation to the alleged assault PW1 used the expression bump on each occasion. Counsel for the defendant submitted that one would expect in the case of indecent assault an offender would stroke, fondle or squeeze the intimate part of the victim rather than bump into it. It was submitted that this term is more consistent with an unintended or accidental contact with the victim.

The contact must be viewed in the context of all the circumstances to ascertain if it has been been proved beyond reasonable doubt to be an indecent assault."

Seeking, I think to echo the apparent views of the Magistrate, Mr Cheung for the respondent said to me during the hearing of this appeal that the prosecution could not realistically rely upon any single act of 'bumping', looked at in isolation, as constituting the offence of indecent assault, but that it was the whole course of the appellant's conduct which led, and rightly led, to his conviction.

9. As it were in justification of his complaints which I have outlined above Mr Egan pointed to a number of extracts from the transcript as follows:-

(a) During PW1's examination in chief (about 1/3 of which consisted of questions posed not by the prosecutor but by the Magistrate himself apparently to enable him to better understand the girl's evidence and the questions asked of her):-

"Q. What did you do then, after you felt a touch?

A. I ignored it because it was very crowded at the time. I thought that it was an accident, he touched me accidentally......

Q. Now, tell us step-by step, according to - when the train reached Jordan Station, what happened? In sequence, please.

A. When the train reached Jordan Station, nothing happened at all. But, from the station of Tsim Sha Tsui to Yau Ma Tei, he kept bumping onto me.

. . . . . .

Q. So, can you tell approximately how many touches did you feel?

A. (Witness answers in English) Total?

Q. From Jordan to Yau Ma Tei?

Mr Egan: Your Worship, I think the evidence was "bumping", wasn't it? Nothing...

Court: "I felt that someone bumped by buttock".

Mr Egan: "Nothing happened at Jordan Station but, from Tsim Sha Tsui to Yau Ma Tei, he kept bumping me".

Court: "From Jordan to Yau Ma Tei, I felt somebody bump my buttock on the left-hand side several times."

Mr Egan: Thank you.

Court: I want to clarify the word "several".

Mr Egan: Your Worship.

A. Four to five times.

Court: Thank you.

Q. And each touch lasted for approximately...

Mr Egan: "Bumping".

Mr Lai: I'm sorry.

Q. Each bumping lasted for...

A. One to two seconds.

Q. All right. Now, did you do anything during these two...

Court: Well, could you describe the bumping, please, thank you?

Mr Lai: Yes.

Q. Can you tell us the - where the bump...

Court: No, describe.

Q. Can you describe in words, first of all, describe in words how the bump was?

A. ...(indistinct)...

Interpreter: As demonstrated.

Court: Sorry?

Interpreter: "The same bump as before."

Court: It was a hand moving across your buttock; is that what you're...

A. Bumped.

. . . . . .

Court: "...with strong force".

Q. Now, can you describe in words how the touch - the bumping or touch was...

Mr Egan: No, "bumping".

Q. ... on this occasion.

Court: "Bumping".

Mr Egan: Not...

Q. Bumping.

Mr Egan: ..."bumping or touching".

Mr Lai: Yes, all right.

Mr Egan: "Bumping".

Q. How the bumping was on this occasion, can you describe?

A. At the Mong Kok Station?

Q. That's correct.

Interpreter: As demonstrated.

A. He bumped onto me forcefully.

Court: Sorry, yes, could you demonstrate again, please, Madam? So, it's as before, only more forcefully? Is that what you're saying?

A. Correct, obviously he did it deliberately.

Mr Egan: No, no, I'm not having that. That's an opinion.

Court: Yes.

Mr Egan: I object to that, your Worship.

Court: Yes.

. . . . . .

Q. What bumped your buttock?

Court: "What was it that came into contact with you?"

Mr Lai: Yes.

(Court's question not interpreted)

Q. At Mong Kok Station.

A. Hand.

Q. Can you tell us which part of - of the hand?

A. It bumped onto me.

Interpreter: It's demonstrated.

Court: You're holding up your hand but was it the knuckles or what? The joint?

A. I didn't notice but I felt that he bumped onto me with his fist.

Court: "His fist"."

and (b) During PW1's cross-examination:-

"Q. You see, what you're saying is this, isn't it really? All the previous bumpings between Tsim Sha Tsui and Mong Kok Station you were prepared to accept may have been accidental.

A. I thought he bumped onto me during the first few times at Tsim Sha Tsui Station was accidentally; but, later on, I felt that he did it deliberately.

Q. At what point of time do you say you formed the impression it was deliberate?

A. When the train reached Jordan Station.

Q. At Jordan Station?

Court: Yes.

Q. Right. You see, surely, surely, if you had felt that these four to five bumps between Jordan and Yau Ma Tei were deliberate, you would have looked, wouldn't you, for the person who had caused the bumping?

A. I looked around and there were some people standing beside me.

Q. You see, look, you made no deliberate attempt to identify anyone that was responsible for bumping you between Jordan and Yau Ma Tei. That's a fact, isn't it?

A. No, I didn't deliberately look for who bumped me.

Q. And I suggest that the reason for that was that, at Yau Ma Tei, you were prepared or still prepared to believe or accept that the bumping was or may have been accidental.

A. Yes, maybe it was accidental...

Court: Sorry?

Interpreter: "Maybe it was accidental..."

A. ...or it was a deliberate. I am not sure, so I ignore it.

. . . . . ."

10. The prosecution's case was that 2 plain clothes' police officers observed the appellant's conduct towards the girl on the MTR. Having heard, and considered their evidence the learned Magistrate had this to say:-

"In cross-examination she agreed that it was a common experience to be bumped on the MTR but said the bumping on the buttock was obvious at Mong Kok Station. She agreed that the earlier bumpings could have been accidental.

PW1 said that the police had told her that she had been indecently assaulted because they saw it."......

PW2 was a police officer on duty at the Tsim Sha Tsui MTR Station. He said that he saw the defendant at Tsim Sha Tsui at the platform for Mong Kok bound trains. The defendant was wearing a suit and glasses and had with him a bag with a shoulder strap. ......

He said that when the defendant boarded the train he signalled to his colleague PW3 that they should follow. PW2 took up a position inside the compartment some 6 feet to the right of the defendant with PW3 to his right. He said that the defendant was standing immediately behind PW1 with his right hand covering the side flap of his shoulder bag. He said he saw the defendant bump the left buttock of PW1 with his bag and right hand. His evidence varied with that of PW1 in that he claimed she was bumped a number of times between Yau Ma Tei and Mong Kok whereas PW1 said that the only bump after Yau Ma Tei was at Mong Kok Station.

It was suggested to PW2 that he had tailored his evidence to coincide with that of PW1 as to when PW1 moved her position in the compartment. PW1 had told the court that she had moved further into the compartment at Jordan and had moved so as to lean on the glass partition at Yau Ma Tei. PW2 initially said that PW1's position was more or less the same after Jordan and that she moved so as to lean on the glass at Yau Ma Tei. ......

PW2 was referred to his witness statement made on the day of the incident which stated that the movement by PW1 to the glass partition was made at Jordan not Yau Ma Tei and that PW1 did not change her position at Yau Ma Tei. PW2 said that she changed her position at both stations.

PW2 denied that he had changed his version of events so as to coincide with PW1 but was unable to explain why his oral evidence differed from his written statement.

In his evidence PW2 said that at Mong Kok the defendant bumped very forcefully and dragged along the right buttock of PW1 whereas in his witness statement he had used the terms pressing and stroking to describe the defendant's action. Again it was suggested that somehow PW2 had been informed of what PW1 had said in court and had given evidence to agree with what she had said.

The evidence of PW3 was in similar terms to that of PW2 except that he indicated that the defendant's right hand was on top of the bag with the thumb and index finger round the strap."......

11. Having heard the evidence of the police officers - who it might properly be said were the only witnesses to "an indecent" assault as opposed to a "common" assault the learned Magistrate said this:-

"I found PW2's evidence as to what happened on the train to be unreliable. He was unable to offer the court an explanation as to why his evidence differed from his witness statement in certain important aspects and how it was that those variations happened to coincide with the evidence of PW1.

His evidence and that of PW3 varied with the evidence of PW1 [the girl] as to the contact between PW1 and the defendant after Yau Ma Tei. I was not sure that the officers could have seen what they purported to see from their position inside the compartment."

Conclusion

12. By reason of what I have recited above and, in particular, the fact that the evidence of the police officers was not accepted; the fact that the girl agreed that those officers, or one of them, had suggested to her that she had been 'indecently' assaulted when that was apparently not her view of the matter, and the fact that the girl herself acknowledged that she had been 'bumped' a number of times by the appellant but that those 'bumps', save the last which she thought was intentional, may have been accidental, I find myself unable to conclude that the conviction of the appellant for the offence of indecent assault was safe and satisfactory.

13. It was not only that it was for the prosecution to prove an intentional assault but also one which was indecent and (in addition) an intention on the part of the appellant to commit such an assault.

14. Whilst I have no doubt whatsoever that, (despite the fact that he did not accept the police evidence,) on the evidence of the girl alone the learned Magistrate might properly have convicted the appellant of a common assault (arising out of the last contact between her and the appellant) - it was not in my view open to him, in the absence of the police evidence which he rejected, to conclude that that contact was intentional; indecent and intentionally so.

15. It was for all of these reasons I allowed this appeal; quashed the conviction and set aside the sentence.