HKSAR v. ADVINCULA, JOMEL ZULUETA

HCMA 147/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 147 OF 2013

(ON APPEAL FROM ESCC 1656 OF 2012)

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JUDGMENT

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1.  This is an appeal against a conviction for indecent assault and against the sentence of 200 hours of community service imposed for that offence.

2.  There was evidence on which the Magistrate could and did safely find that the Appellant touched a woman more than once in such a way as would amount to indecent assault if that had been done deliberately. But there was an issue as to whether it was accidental. In the course of finding that it was not accidental, the Magistrate said this in para. 28 of her Statement of Findings:

“The next question I have to consider is the possibility of accidental touch in respect of the second set of touches. Taking into account all the circumstances, I am satisfied that the second set of touches was not accidental. It was a deliberate act:

(1) The fact that the defendant withdrew his hand from PW1 when PW1 turned around is sufficient to draw the irresistible inference that the touching was intentional.

(2) When confronted by PW1 and subsequently by the male passenger who spoke to the defendant in English, the defendant said nothing. If the touching had been accidental, one would have expected the defendant to either explain that it was either accidental or apologise to PW1 for having accidentally touched her.

(3) The touching was on PW1’s inner thigh and, as described by PW1, the touch was inserted in a much deeper way than the previous set of touches. This certainly rules out the possibility of an accident.

(4) If it were an accidental touch, it could or should have happened just once, not twice.”

3.  The point made by the Magistrate in item (2) is flawed in that, as she found in para. 7 of her Statement of Findings, the Appellant, when asked by the male passenger if he had indecently assaulted the woman, “kept nodding his head and saying sorry”. So it is not accurate to say that he said nothing. His saying sorry could have been an apology for having accidentally touched the woman.

4.  The point made by the Magistrate in item (3) is putting it too high. That fact tends to show that it was not an accident, but it does not go so far as to rule out the possibility of an accident.

5.  In my view, the possibility of accident was not given the consideration it called for and the conviction is hence unsafe. Accordingly I allow the appeal to quash the conviction.