HKSAR v. C (A Minor)

HCMA 789/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 789 OF 2012

(ON APPEAL FROM KCCC NO 700112 OF 2012)

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JUDGMENT

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1.  The appellant was convicted after trial of an offence of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap 200. The particulars of offence are that the appellant on the 1^st day of August 2012, in compartment number C357 of a train travelling from Prince Edward Station to Kowloon Tong Station, Kowloon, in Hong Kong, indecently assaulted another person, namely female X. He was sentenced to probation for 15 months.

2.  He now appeals against the conviction.

Evidence of the Prosecution

3.  The first prosecution witness (“PW1”) was X named in the charge and is a female in her early 20’s.  She is married and was 5 months pregnant at the time of her testimony.  On 1 August 2012 at about 1825 hours she boarded a train at Prince Edward Station on the way to go home in Shatin after work.  She was wearing a dress of thin fabric which was down to her knee level.  When she was walking into the train compartment she felt someone coming into contact with her left buttock for 5 to 6 seconds. The body contact ceased after she came to a standstill inside the train compartment. 

4.  This is referred to as the first episode in this judgment. 

5.  PW1 stood closed to the train door, facing the front of the train.  Her left shoulder was more or less in contact with the door and there was nothing for her to hold on to stabilise herself.

6.  During the journey from Prince Edward Station to Shek Kip Mei Station PW1 suddenly felt a hardened penis pressed against her left buttock with considerable force.  It lasted 2 to 3 seconds and the train was moving normally at that time.  Turning the upper part of her body to look back she saw a male backing off.  She walked half a pace forward, getting closer to a suitcase placed on the floor by a passenger.

7.  This is the second episode.

8.  The third episode took place during the journey from Shek Kip Mei Station to Kowloon Tong Station.  PW1 felt a hardened penis pressed against her left buttock for 5 to 6 seconds. It then ceased, only to resume again after a lapse of about 2 to 3 seconds.  This went on for 4 to 5 times. During that time the train was moving steadily.

9.  By the time the train got to Kowloon Tong Station the body contact had ceased.  PW1 alighted and was intercepted by a female who was the second prosecution witness, WPC 1410 (“PW2”).

10.  PW2 and the third prosecution witness, PC 7380 (“PW3”), were on patrol in plain clothes on the MTR lines.  PW2 noticed the appellant staring at girls at Kowloon Tong Station.  At 1823 hours the appellant boarded a Yaumatei bound train and then alighted at Shek Kip Mei Station.  PW2 followed him.

11.  At 1826 hours the appellant boarded a Tiu Keng Ling bound train and alighted at Kowloon Tong Station.  At 1830 hours the appellant boarded a Yaumatei bound train and alighted at Prince Edward Station.  The appellant then lined up behind PW1 to wait for the train heading for Tiu Keng Ling.  PW2 saw that the appellant stood very close to PW1.  When the train arrived all 3 of them boarded the train.

12.  PW2 said that the train was crowded but there was space between the passengers.  After the train had left Prince Edward Station and was moving steadily, PW2 saw that the appellant bent his knees and used the lower part of his body to press against the left rear waist of PW1 near the buttock for 2 to 3 seconds.  PW1 turned back to have a look and then moved a little forward while the appellant backed off.

13.  A while later the appellant moved forward to get very close to PW1 again.  PW2 did not see any further body contact between the appellant and PW1 again during the remainder of the journey up to Kowloon Tong Station.

14.  PW2 said that she had made the observation about one step away from the protagonists.

15.  PW3 said that he had boarded a Tiu Keng Ling bound train at Prince Edward Station.  He was alone by himself in a train compartment and he saw that PW2 and the fourth prosecution witness (“PW4”), a station sergeant, were in the adjoining compartment.  When the train arrived at Kowloon Tong Station he saw that PW2 and PW4 alighted from the train.  PW2 intercepted a female while PW4 followed the appellant.  PW3 later arrested the appellant for the offence of indecent assault.  Under caution the appellant said that he had not done it.    

16.  PW4 said that he had boarded the same train as the appellant and stood close to PW1, PW2 and the appellant.   

17.  The appellant was subsequently interviewed under caution and he made a denial, saying that he had an appointment to have dinner with his grandfather at the grandfather’s home at Prince Edward at 2000 hours and as it was early he took a joyride in the MTR.   

Defence Evidence

18.  The appellant was 14 years old, about 180 centimetres tall and lived at Mongkok on the day in question.  He was to arrive at his grandfather’s home for dinner at 2000 hours.  He left home and entered Yaumatei Station at about 1800 hours.  As he had plenty of time and it was hot outside he decided to take a joy ride on the MTR which was cool.  He did not choose to go to shopping malls because he did not want to do the walking in the streets.

19.  At Yaumatei Station he boarded a Tiu Keng Ling bound train and alighted at Kowloon Tong Station.  He stayed there for about 10 minutes and then boarded a train bound for Yaumatei.  He alighted at Shek Kip Mei Station where he boarded a Tiu Keng Ling bound train and alighted at Kowloon Tong Station.  He stayed there for a while and boarded a train headed for Yaumatei, alighting at Prince Edward Station.

20.  After staying at Prince Edward Station for about 5 minutes he lined up behind PW1 to wait for and then boarded a train going in the direction of Tiu Keng Ling.  He held on to a vertical hand bar and PW1 was standing about half a pace in front of him, also holding on to a vertical hand bar. 

21.  During the journey from Prince Edward Station to Shek Kip Mei Station he had bumped against the body of PW1 two to three times because of the vibration of the train in motion and because the train was crowded.  It was his chest and belly which come into contact with PW1’s back near the waist.  His lower part was probably not in contact with PW1 because he had never intentionally done such a thing.

22.  The appellant said there was no space for him to move backward.  After the body contact PW1 did turn back to have a look and she continued to stand where she was.  There was no body contact during the journey from Shek Kip Mei Station to Kowloon Tong Station.  The appellant said that he had never intentionally made any body contact with PW1.

23.  When the appellant alighted at Kowloon Tong Station at about 1845 hours he was intercepted by the police and was arrested afterwards.

Grounds of Appeal

24.  The grounds of appeal are:

(a) the material discrepancies between PW1, PW2 and PW3 should have created a reasonable doubt in favour of the appellant;

(b) the magistrate erred in concluding that it was the appellant’s hard penis which pressed PW1’s left buttock during the second and third episodes;

(c) the magistrate failed to consider the reaction of PW1 during and after the third episode;

(d) the magistrate erred in admitting prejudicial and irrelevant evidence; and

(e) the magistrate failed to properly consider the response of the appellant on being confronted and the inherent unlikelihood of the appellant committing the offence.

Failing to Properly Analyse the Evidence

25.  The grounds of appeal (a) and (b) can be dealt with together.

26.  The appellant complains that the magistrate failed to properly analyse the material conflicts and discrepancies in the evidence of PW1 and PW2 before coming to the conclusion of accepting the evidence of PW1 in total but rejecting that of PW2. 

27.  The conflicts and discrepancies referred to by the appellant concern the position of the protagonists on board of the train and the number of body contacts which took place between PW1 and the appellant.

28.  There were indeed such conflicts and discrepancies in the evidence of PW1 and PW2.  The court, however, does not agree that the magistrate failed to properly analyse them.  The magistrate, both in the oral verdict and the statement of findings, pointed out the discrepancies in the evidence of the 2 prosecution witnesses.  In respect of PW1’s evidence he said;

“PW1 gave her evidence clearly, calmly, carefully and in a factual manner. I did not see any element of purposeful exaggeration in her evidence. She is an impressive witness.”

29.  The magistrate also dealt with the inconsistencies between PW1’s evidence in court and the contents of her witness statement given to the police.  After analysing such inconsistencies he came to the conclusion that the evidence of PW1 in court was truthful and reliable.

30.  The magistrate after reviewing the evidence of PW2 came to the following conclusion:

“62. PW2 did not testify in a careful manner. PW2 did not listen to questions carefully. Also there are some odd features in her testimony. On day one of the trial, she said she was not sure where the team leader, PW4, the station sergeant was while inside the train compartment in question. On day two of the trial, she said that PW4 was standing on her left-hand side, and she indicated PW4’s position on the sketch: Exhibit P2A. This seems somewhat odd to me.

63. Further, under cross-examination, when PW2 was asked if PW1 was holding on to a vertical hand bar, she said she was not clear about that and she volunteered the information that in her witness statement she said she could only see PW1’s back from behind.  This description was contrary to what PW2 had purported to illustrate by her sketch, Exhibit P2, showing the positions of the protagonists.  When questioned further, PW2 reverted to say that she was actually observing the left-hand side of PW1 during the incident.  But if PW2 were in fact viewing the left-hand side of PW1, then it would be somewhat odd for her being unable to see if PW1 was holding on to a vertical hand bar or not.  This seems rather odd to me.”

31.  This explains why the magistrate came to the conclusion that:

“56. Insofar as there are conflicts between the evidence of PW1 and PW2, I am sure the evidence of PW1 is reliable, whereas that of PW2 is the opposite.”

32.  The respondent cites the following passage in the case of HKSAR v Yip Siu Tak HCMA 364/2001 to illustrate how a professional magistrate is expected to deal with the evidence in a case:

“a professional magistrate is not required to detail his thinking process in respect of each and every issue in dispute and give his reasons in full. A professional magistrate brings to bear not only his knowledge of the law and his skill in applying it, but also his experience of life and experience in judging the facts. He may, for example, consider an issue so obvious or so insignificant in the light of the totality of the evidence that he does not consider it necessary to expressly deal with it in his judgment…”

33.  In the view of the court the magistrate had sufficiently considered the evidence of PW1 and PW2 and given sufficient reasons of why he accepted the evidence of PW1 but rejected the evidence of PW2 which was in conflict with that of PW1.  This was a finding of facts by the magistrate which is reasonable and logical.  The court is of the view there is no justification to interfere with such a conclusion.

34.  The appellant also complains that the magistrate failed to analyse the evidence of PW4 who independently supported the sketch of PW2 (Exhibit P2). 

35.  The court does not agree with the observation of the appellant.  There was nothing in the evidence of PW4 to the effect that he agreed to the sketch of PW2.  The sketch was never shown to him and he only said that he was standing with his back to the doors and he was to the left of the doors.  He also said he was 2 to 3 feet away from PW1 and was close to the appellant and PW2. There was nothing in his evidence which, as claimed by the appellant, confirmed the positions of PW1, PW2 and the appellant as depicted in the sketch.

36.  The appellant submits that the evidence of PW4 cannot be reconciled with that of PW1 and the magistrate failed to give reason why he accepted the evidence PW4 which would put the evidence of PW1 in doubt.

37.  The court does not agree that the evidence of PW1 and PW4 cannot be reconciled.  The evidence of PW1 was that on board of the train she stood facing the front of the train with her left shoulder slightly touching the door of the train and there was a person in front of her.  The evidence of PW1 and PW4 is clearly not in conflict with each other and the latter certainly does not cast doubt on the former.

38.  The appellant submits that, as the evidence stands, both PW1 and PW4 would claim to be standing on the same spot with no or little room for the appellant. 

39.  As pointed out above the court has come to the conclusion that the evidence of PW1 and PW4 is not in conflict.  It is common knowledge that the door of a train compartment is quite wide and is certainly wide enough for several passengers to stand side by side.  The evidence of PW1 makes perfect sense and is reasonable.  There must surely be sufficient room for the appellant because even the appellant himself admitted in his own evidence that he was there, about a pace behind PW1 and had had body contacts with her.  

40.  The appellant points out that PW4 gave no account of having seen any body contact between PW1 and the appellant and that the magistrate made no analysis about it. 

41.  The court notices that PW4 was tendered for cross‑examination at the request of the defence.  No question was, however, put to him as to whether he had seen any body contact between PW1 and the appellant.  It was not in dispute that there was such contact between the two them.  Obviously, PW4 was silent about this not because he had not seen it but because he was not asked.

42.  The appellant criticises the magistrate for failing to analyse all the relevant evidence before coming to the conclusion that the body contacts between PW1 and the appellant in the second and third episodes were deliberate acts on the part of the appellant.  The appellant submits that both PW1 and appellant were not holding on to a handrail and they were subject to the lateral movements of the train while in motion and, more significantly, the forward and backward forces, particularly when the train was accelerating out of a station and decelerating or braking when approaching a station.  It is the contention of the appellant that these could cause instability between passengers, thus causing the body contacts.

43.  The court finds such criticism and contention unfounded.  The magistrate analysed the situation and gave reasons for his ruling that the body contacts in the second and third episodes were intentional and not accidental touches:

“71. In relation to the 2^nd episode, I am sure that the defendant had intentionally pressed his hardened penis against the left buttock of PW1 with considerable force, and the pressing lasted two to three seconds. I am sure that this constituted an assault, and it is indecent.

72. In relation to the 3^rd episode, I am sure that the defendant had intentionally pressed his hardened penis against the left buttock of PW1 four to five times, and each time it lasted for about five to six seconds. I am sure that this constituted an assault, and it is indecent.

73. I am sure that the above had come about not because of the vibration generated by the train in motion.  I am aware and I am sure that the train compartment was crowded, but nonetheless I am sure that the above would not have occurred if the defendant had not done so intentionally.”

44.  The conclusion of the magistrate is supported by the evidence of the case.  Although PW1 agreed that the second episode happened shortly after the train had started to move, she was adamant that the train was in motion and was moving steadily. 

45.  In respect of the third episode PW1 further pointed out that the train came to a halt about 10 seconds after the last body contact had ceased (Appeal Bundle page 98 I-K).  The third episode comprised 4 to 5 times of body contacts each lasting 5 to 6 seconds.  The first touching must have occurred not less than 30 seconds before the train came to a halt.  This shows that the contacts could not have been caused by the deceleration or braking of the train.

46.  It is rightly pointed out in the submission of the respondent:

“32. It is submitted that the above finding, in particular the body contacts were not ascribed to the vibration of the train in motion, was supported by sufficient evidential basis, namely the evidence of PW1 who had confirmed that the train was steadily in motion without abnormal wobbling. It is noteworthy that the Appellant had never suggested at trial that the body contacts between him and PW1 were contributed by the initial acceleration of the train and/or the braking of the same. It was common ground that the contacts occurred when the train was in motion.”

47.  The appellant submits that there was no evidence of any of the prosecution witness witnessing the appellant having the sign of a hardened penis and that PW1 could only speak as to her sensation and what she believed to be a hardened penis pressing against her. 

48.  It is not in dispute that PW1 is a married woman and was pregnant at the time of the offence.  There is also no dispute that there were body contacts between PW1 and the appellant.  There were a number of such contacts and each lasted 2 seconds or more and some of the contacts were forceful.  PW1 was wearing a dress made of thin fabric at that time.  This would naturally enable her to feel clearly the object pressing against her buttock.  She is a married woman and it is not surprising that she was able to tell that the object was a hardened penis.

49.  Although none of the prosecution witness testified to the effect that they had seen the appellant having signs of a hardened penis it is neither here nor there.  As can be seen in Exhibit P3, the photographs depicting the appearance and clothing of the appellant at the time of the incident, he was wearing a pair of loose trousers of knee length.  Unless the appellant was closely examined it could not easily be seen even if he had a hardened penis.

50.  Obviously, the fact that PW1 did not actually see the object pressing against her buttock and that no prosecution witness mentioned seeing signs of the appellant having a hardened penis had not raised any doubt in the mind of the magistrate.  In the view of the court the findings of the magistrate is supported by evidence and there is no ground to fault him. 

51.  Grounds of appeal (a) and (b) fail.

Reaction of PW1

52.  The appellant submits that the magistrate failed to analyse and/or gave insufficient weight and consideration to PW1’s failure to react to the situation inside the train compartment; her lack of any sign of distress and her failure to make or having no intention to complain which were inconsistent with the allegation of being indecently assaulted.

53.  It is not true that PW1 failed to react to what happened inside the train compartment.  After the body contact in the second episode, PW1 turned back and saw a male backing off.  She then walked half a pace forward, getting closer to a suitcase placed on the floor by a passenger. She was obviously trying to keep a distance from the male and such a reaction was consistent with the scenario described by her.    

54.  There was indeed no evidence of PW1 being emotional or in distress.  This is not surprising because the response of a female to indecent assault would vary from one individual to another.  There is no lack of examples that a female even when being indecently assaulted in busy public places like the MTR would choose to keep quiet about it.  After all, being indecently assaulted is not something a female would take pride in and a lot of females are too shy to seek help or to confront the assailant or make a fuss of it.      

55.  PW1 said in evidence that she would not have taken any action if she had not been approached by PW2.  This was consistent with the analysis above.  PW1 had in fact explained that she was too scared at that time and did not know how to handle the situation.  The response of PW1 to the incident was, in the view of the court, a reasonable and natural one.  In fact, such a response strengthens the magistrate’s finding that PW1 was an honest and reliable witness.  If she was to frame up or exaggerate a case against the appellant she would have feinted a much stronger response.      

56.  Ground of appeal (c) fails.

Admitting Irrelevant and Prejudicial Evidence

57.  The appellant complains that the magistrate wrongly allowed the prosecution to adduce evidence regarding the appellant commuting back and forth between different train stations and staring at girls wearing short skirts, contending that it was prejudicial evidence of the character or conduct of the appellant on other occasions which showed mere propensity with no probative value at all.  The appellant cites the case of HKSAR v Zabed Ali FACC 2/2003 in support, arguing that evidence of the character or of the misconduct of an accused on other occasions tendered to show his bad disposition was not admissible. 

58.  The court has no quarrel about the principle laid down in this case that mere propensity evidence was not admissible unless the evidence is also relevant to an issue in the case as having sufficient probative value to outweigh its prejudicial effect.  As pointed out in Makin v The Attorney General for New South Wales [1894] AC57 and Zabed Ali such evidence might be so relevant if it bore upon the question of whether the acts alleged to constitute the crime charged in the indictment were designed or accidental.  It is the view of the court that the irrelevant and prejudicial evidence complained of by the appellant is in fact admissible on this basis. 

59.  It must, however, be pointed out that the real issue in the present case is not whether the magistrate had wrongfully admitted the evidence of the appellant commuting between different train stations and staring at girls wearing short skirts, because the magistrate had not relied on the evidence at all.  Although he allowed the evidence to be given by PW2 he had eventually rejected her evidence.  He, therefore, could not have taken the evidence into account. 

60.  When the appellant gave evidence he told the court that as it was not yet time for him to have dinner with his grandfather he killed the time by joyriding in the MTR.  The magistrate did consider such evidence and concluded that it was inherently improbable for the appellant to resort to taking a joyride by commuting back and forth between different stations closed to each another during busy hours.  He rejected such evidence and is, in the view of the court, perfectly entitled to do that.

61.  The evidence of the appellant about joyriding did not make sense at all.  According to his evidence he entered the MTR at Yaumatei Station where he boarded a train and alighted at Kowloon Tong Station.  That is to say he had travelled only 4 stations.  He stayed there for about 10 minutes and then took a train to go back to Shek Kip Mei Station. This time he had travelled only one station.  He then went back to Kowloon Tong Station, again travelling only one station.  There he took a train to go back to Prince Edward Station, travelling only 2 stations. After staying there for about 5 minutes he followed PW1 to board the train where the incident occurred.   

62.  It was a weekday and the time was rush hours. He kept boarding and alighting from the trains.  It was for certain that he did not occupy a seat while on board of the trains.  The joyriding the appellant claimed he was doing could not be joyful at all.  The magistrate’s conclusion that the appellant was not telling the truth is reasonable and logical.  This was the only occasion the magistrate referred to and made use of such evidence and it can be seen in his verbal verdict and statement of findings that he had not relied on the evidence to arrive at the verdict in the present case.  The complaint of the appellant is unfounded.   

63.  Ground of appeal (d) fails.       

Failing to Consider the Unlikelihood of Appellant Committing the Offence

64.  The appellant criticises the magistrate of failing to properly consider the inherent improbability of the appellant, being a young person of only 14 years old with a clear record, deliberately using his hardened penis to indecently assault a woman on a crowded train and failing to properly consider the immediate denial of the appellant when first confronted before rejecting his innocent account of joy‑riding and accidental contact with PW1.

65.  This ground of appeal concerns the finding of facts by the magistrate which the court has already dealt with.  As analysed and pointed out above the magistrate had carefully considered all the evidence in the case before he came to the conclusion that PW1 was an honest and reliable witness and accepted her evidence.

66.  Similarly, the magistrate carefully analysed what the appellant said in the record of interview and in court before he came to the conclusion that the appellant was not telling the truth in both and rejected his evidence. The magistrate correctly regarded the record of interview of the appellant as containing mixed statements and considered its contents in accordance with the principle of R v Sharp [1988] 1 WLR 7. He fairly bore in mind that it was also evidence of the appellant’s reaction when first taxed with the accusation of having committed indecent assault and that the immediate denial of the appellant was to his advantage.

67.  The magistrate also properly gave himself the Berrada direction in respect of the clear record of the appellant.  The magistrate acted fairly and impartially and gave the benefit of doubt to the appellant in respect of the body contact in the first episode.   

68.  The court is of the view that the finding of facts by the magistrate is reasonable and logical and there is no ground for the court to interfere with it.  Ground of appeal (e) has no merit.

Conclusion

69.  The conviction of the appellant is founded on ample and sufficient evidence and the appeal against conviction is dismissed.