HKSAR v. LEE KWOK TING

[English Translation – 英譯本]
HCMA128/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 128 OF 2013

(ON APPEAL FROM ESCC 4212 OF 2012)

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JUDGMENT

1. The appellant was charged with one count of indecent assault, contrary to section 122(1) of the Crimes Ordinance[1]. He pleaded not guilty at the Eastern Magistracy and was convicted after trial. He now appeals the conviction.

Prosecution case

2. In brief, the prosecution case is as follows: the victim (PW1) and the appellant were waiting for the train at the Admiralty MTR station at the same time.  The appellant took out his already erect penis from the open fly of his pants and pressed it towards the victim’s buttocks.  The victim noticed this and scolded him.  He tried to leave but was stopped by others at the scene.

Defence case

3. At trial, the appellant, in exercise of his right, elected not to give evidence.  In cross-examination, his defence counsel[2] focused on raising doubts as to whether it was a penis that the victim saw.

4. The appellant was arrested at the scene.  His immediate response was that he did not “come into contact with” the victim; it was just that she was hit by his reusable bag.

The magistrate’s findings

5. The magistrate was satisfied that the victim and other prosecution witnesses were veracious and reliable and accepted their testimony.  She also found that:

(1)   The appellant pressed his penis towards the victim’s buttocks and the contact lasted for one to two seconds;

(2)   This act was purposeful, not at all inadvertent; it was a deliberate assault;

(3)   This assault was indecent;

(4)   The appellant had an indecent intention at the time of the assault.

Grounds of appeal

6. Also represented by Mr. Osmond Lam of Counsel on appeal, the appellant advanced the following grounds of appeal:

(1)   In arriving at her verdict, the magistrate placed too much reliance on PW1’s observations within one to two seconds;

(2)   The magistrate erred in finding that PW1 remained unshaken under cross-examination;

(3)   There was no evidence to support the magistrate’s finding that PW1 had an unblocked view of the appellant’s penis;

(4)   Although the magistrate said that it was not necessary for her to rely on the defendant’s act of escape as supportive of the prosecution case, her finding that the defendant’s act of escape was inconsistent with his allegation that he was innocent did have a bearing on the magistrate’s verdict of guilty; or to say the least, the magistrate’s finding in relation to the defendant’s act of escape was erroneous; and

(5)   All in all, the appellant’s conviction was unsafe and unsatisfactory.

Discussion

The first three grounds of appeal

7. These three grounds of appeal can be dealt with together as they all relate to the magistrate’s finding that the hard object that came into contact with the victim’s buttocks was the appellant’s penis.

8. It is beyond doubt that the magistrate clearly identified the most important issue in the case, namely what the hard object that came into contact with the victim’s buttocks was.[3]

9. She indicated that in making her evaluation, she had taken into account the following factors:

(1)   The observation was fleeting, lasting as it did for one to two seconds;

(2)   There was nothing in the way between the victim and the appellant;

(3)   The two of them was only about 6 inches apart.

10. The essence of the submissions made by Mr. Lam in the appeal hearing is as follows:

(1)   The magistrate erred in finding that the victim remained unshaken under cross-examination and hence her evidence was reliable. Although the victim said she clearly saw that the hard object concerned was a penis, she also mentioned more than once that she did not want to put the blame on the wrong person.  This showed that she was actually not sure of her own observations.

(2)   In its examination-in-chief, the prosecution failed to inquire about the quality of identification in accordance with the guidelines in R v Turnbull[4].

(3)   There was no evidence to support the magistrate’s finding that the victim’s observation was unblocked.

11. Having considered the evidence in the present case, I find that the magistrate’s finding that the victim was a veracious and reliable witness is proper and reasonable.  In his written submissions, Mr. Lam pointed out that there were inconsistencies in the victim’s testimony on the duration of her observation.  Having read the transcript, I do not subscribe to this view.  Besides, the magistrate must certainly have been well aware that the observation was fleeting and must have taken this as a basis for consideration.

12. The victim testified that she was sure what she saw was a penis.  It is true that, even if the witness was veracious, the court was not bound to be satisfied with or accept her evidence that she was sure about what she saw; whether her evidence as to her observation was to be accepted in full had to be carefully assessed. R v Turnbull is a case concerning facial identification and cannot be bracketed with the present case.  The issue in the present case is whether or not what the victim alleged to have seen was definitely a penis.  That said, in considering whether the court could be completely satisfied with this piece of evidence, many of the factors mentioned in R v Turnbull should be taken into account.

13. All of the factors the magistrate had taken into account are factors that should have been taken into account.  There was no evidence to support Mr. Lam’s criticism of the magistrate’s finding that nothing lied in the way between the victim and the appellant.

14. I agree that neither in examination-in-chief nor during cross-examination was the victim directly asked whether there was any obstacle between her and the appellant.  However, there was no evidence in this respect.  The testimony of the victim in this respect was, in brief, as follows:

·     She turned her head to her right side, looked back at an angle of 45 degrees and saw the foremost part of the penis of a man[5];

·     the penis was erect[6];

·     and had been pulled out from the open fly of the man’s pants[7];

·     she saw about 1.5 inches of it[8];

·     she looked at it for one to two seconds, and the appellant immediately covered his penis with a black reusable bag[9].

15. In the final analysis, what the magistrate had to determine was whether she could be satisfied on the evidence that the victim’s testimony that what she saw was a penis was accurate and correct.

16. In the appeal hearing, Mr. Lam could only point out that, in making an evaluation in that regard, the magistrate had merely omitted the point of whether there was anything in the way between the victim and the appellant.

17. Apart from that, Mr. Lam argued that the victim had said more than once that she did not want to put the blame on the wrong person and therefore brushed aside the reusable bag being held by the appellant.  This, it was submitted, showed that the victim was actually not sure about her own observation.

18. At trial, the defence also focused on this issue while cross-examining the victim.  The victim maintained that she was sure about what she saw and that she brushed aside the reusable bag not because she was not sure but merely because she was enraged by the appellant who had to use a reusable bag to cover it.  She also added that she saw the appellant do the act of “stuffing something back in” with his right hand and that she questioned him “What you are doing?”.[10]

19. As Senior Public Prosecutor Miss Chiu pointed out, one would wish to look for solid evidence even if one was sure that one’s observations were correct.

20. In my view, what the victim did was not indicative of the possibility that she was in fact not sure.

21. In short, I find that the magistrate’s findings in this respect are proper and supported by sufficient evidence.

The fourth ground of appeal

22. This ground of appeal concerns the magistrate’s approach to the evidence that the appellant had fled from the scene.  Mr. Lam submitted that the magistrate’s findings as to why the appellant  fled were erroneous, and therefore, even if the magistrate said that it was not necessary for her to rely on the evidence in that regard, such evidence might have had a bearing on her final verdict.

23. The magistrate’s took the following approach:

“25. Regarding the defendant’s flight, PW1 testified that when she felt that her buttocks were being touched by a hard object and when she was about to look back, the defendant was already backing away and saying ‘I didn’t’. He backed away and fled and was later stopped by a passenger.

26. According to PW2’s evidence, when he, the defendant and others were waiting for the police, the defendant fled. In the course of his flight, even though the defendant found that the escalator was operating in the opposite direction, he still ran down recklessly. The defendant was eventually stopped by other passengers. When PW2 asked the defendant why he fled, he said he was wrongly accused of what he had not done. Under caution, the defendant denied having committed the offence in question.

27. Although the defendant knew how to protect himself by indicating to the prosecution witness that he had been wrongly accused and by denying the charges under caution, he had chosen not to remain on the spot to explain to the police what had happened but had instead chosen to flee once and again before the arrival of the police. He even ran down the escalator operating in the opposite direction while taking to his heels recklessly and in blatant disregard of his own safety. This is inconsistent with his statement that he was innocent. I do not think that the defendant fled for innocent reasons. Of course, the fact that the defendant had fled is not in itself evidence of guilt; his flight can only be regarded as evidence in support of the prosecution case.

28.    However, based on PW1’s evidence which I have accepted, her evidence is sufficient proof that the defendant has committed the offence of indecent assault.  It is not necessary for me to rely on the defendant’s flight to support the prosecution case.[11]”

24. The magistrate made it clear at the outset that the victim’s evidence was sufficient to establish the offence in question without any need to rely on the defendant’s flight to support the prosecution case.  Mr. Lam’s concerns are unfounded.

25. The magistrate’s approach to the evidence in this respect accorded with legal principles and the conclusion drawn was also reasonable.  Her findings should not be disturbed.

26. This ground of appeal fails.

The fifth ground of appeal

27. This is a catch-all ground.  The appellant has not put forward sufficient reasons to convince me that his conviction is unsafe and unsatisfactory.

Conclusion

28. For the above reasons, I dismiss the appeal and affirm the conviction.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor.