HKSAR v. CHENG SHU KAN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 670 of 1998

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J U D G E M E N T

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1. The Appellant Cheng Shu Kan was charged that on 9th of April 1998 on board a KMB bus he had indecently assaulted female Cheng Pui Ying. He pleaded not guilty and was convicted after trial.

2. The learned magistrate had made certain findings, I do not propose to repeat the findings at length. I shall perhaps do a summary. The learned magistrate found that the complainant was sitting on board the upper deck of a bus, the Appellant at some stages got on board the bus and sat on the same seat to the left side of the complainant. When the bus was moving along Kwai Chung Road, he complainant felt something was brushing repeatedly against the upper part of her left thigh, this was the first act of indecent assault.

3. And then at about 1:15, when the bus reached the fly-over of Tsun Mun Road this time the touching was on the left thigh of the victim of the complainant. This constituted the second act of indecent assault. When the bus was near Tsun Mun Town, the third act of indecent assault took place. When the complainant put the allegation of the indecent assault to the Appellant, he denied that he had indecently assaulted her and he told the complainant not to frame him up. Eventually, he Appellant apologized and told her not to create trouble. A report was then made to the police and the Appellant was subsequently arrested by PW3.

4. Under caution, the Appellant said the following words. I propose to repeat what he said in full as it had important bearings on this appeal. "Ah Sir, I did not do that, I have no idea why the girl framed me up like that. I am not on bad terms with her, I have no grievance. It may be the case that when I felt asleep, I inadvertently touched her with my hand several times."

5. Mr. Kevin Chan, counsel for the appellant, raised in his ground of appeal that the learned magistrate erred in holding that this amounted to an admission or half-hearted admission. It is worth scrutinising the terms of this so called 'admission' closely. In my judgment, this is not a mixed statement, - partly inculpatory and partly exculpatory. The explanation of touching was predicated upon an assumption that he was sleeping. It was not an outright admission of guilt. It was merely evidence showing the reaction of the Appellant when he was first taxed by the arresting officer. The learned magistrate could have disregarded this part of the prosecution's case. But instead, the learned magistrate had dealt with this issue a number of times both when prosecuting counsel was addressing him in the closing speech, in his oral reasons and also in his written reasons.

6. In Pilley (1921) 16 Criminal Appeal Reports 138, the appellant was arrested with a number of other persons and those other persons had given explanations implicating the appellant. The arresting officer then put the matters to the appellant and the appellant said: "that's right". On appeal, it was said that the admission was ambiguous and as it was the only evidence against the appellant the conviction was quashed. I take it as well settled law that before an admission can operate against the maker, it must be clear and unambiguous.

7. In this case, therefore, the learned magistrate had adopted a serious flaw in his reasons in convicting the Appellant as evidenced by the fact that he had devoted five paragraphs to this so called 'half-hearted admission' in his final reasons for verdict. Mr. Chan had raised a number of other grounds. As I see it, the first ground that he raised had demonstrated the learned magistrate's judgment suffers from this serious flaw, there is no need therefore for me to consider the rest of the grounds that had been advanced.

8. I, therefore, allow the appeal and set aside the conviction. Upon application by the Appellant, and having heard counsel for the Government and the Appellant I allow costs for this appeal to the Appellant. Costs are to be taxed if not agreed.