HKSAR v. TING KWOK BUN

HCMA 41/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 41 OF 2005

(ON APPEAL FROM KTCC 5865/2004)

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REASONS  FOR  JUDGMENT

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1.  I dismissed this appeal against conviction on 1 April 2005 and said I would give the reasons for my decision at a later date.  Those reasons now follow.

2.  This Appellant was convicted after trial in the Magistracy of one count of Indecent Assault and sentenced to 80 hours of Community Service.  He seeks to appeal against conviction only.

3.  The prosecution’s case was that the victim, PW1, was walking down an escalator on her way to the platform at the Mongkok MTR station.  She passed the Appellant who was standing on her right and he touched her buttock by a slight queeze, the duration of the squeeze being one to two seconds.

4.  PW1 asked the Appellant, when she reached the platform, why he had touched her.  At that stage he said “sorry” and claimed that it had been an inadvertent bumping

5.  It was the defence case that the touch was accidental.  The Appellant did not testify or call any witnesses in his defence.

6.  It was an admitted fact that under caution after arrest, the Appellant said: “I understand, but I did not do it”. 

Grounds of Appeal

7.  The 1^st ground of appeal was that the Magistrate failed to consider all the evidence in excluding the possibility of accidental contact.

8.  The 2^nd ground of appeal was that the Magistrate erred in not giving any, or any sufficient, consideration to the issue of the Appellant’s intent.

9.  The 3^rd ground of appeal was that there was at the very least a lurking doubt as to the Appellant’s guilt, such as to render his conviction unsafe and unsatisfactory.

10.  In support of the 1^st ground, Mr Parry, who appeared for the Appellant, said that the victim was in a hurry and there had been an inadvertent touching because she was rushing to catch her train.  The Appellant had accidentally bumped into her. 

11.  It was submitted further that the contact time, claimed by PW1 to have lasted for 1 to 2 seconds, was so short that it was difficult to distinguish accurately between a deliberate contact and an accidental touch.

12.  Counsel submitted that a light squeeze could be an accidental touch, particularly if bodily contact caused pressure to be applied during the accidental bumping and that the Magistrate erred in dismissing the possibility of accident.

13.  It was suggested further that PW1 was very unaware of her surroundings, as her evidence was that on a Friday evening at 5 p.m., the MTR was not crowded.  She said too that she did not know that it was customary to walk on the left hand side when overtaking on Hong Kong escalators, nor did she know there were 2 levels on the escalator travelling to her platform.  She did not regard it as a long escalator.  PW1’s lack of awareness about these minor details was said to cast doubt on her reliability as a witness.

14.  The Magistrate was aware from the very beginning, as shown in his Statement of Findings, that this case turned entirely on credibility.  He noted that PW1 walked down the escalator on the left side passing a stationary male, who then began to walk down with her.  She felt her right buttock was touched for 1 to 2 seconds by a hand.  She looked to the right and saw the male, whom she identified as the Appellant, withdrawing his left hand about 1 second after the touch.  At that stage, he was on the step immediately behind her.  She felt that her buttock had been squeezed and this made her uneasy.  On the platform she asked him why he had touched her and he said “sorry” and that it had been an inadvertent bumping.  PW1 reported to the police.

15.  She said that all the fingers of a hand were used to support her buttock, then squeeze it slightly and she could feel pressure.  She agreed that in her witness statement she said first that she had been touched and later went on to say that she had been lightly squeezed.  She disagreed that there was a fundamental difference between a touch and a squeeze.

16.  The Magistrate noted her comments about the touch/squeeze and concluded that when she referred to a light squeeze,she was simply elaborating on, or explaining, what kind of touch it was.

17.  The Magistrate accepted the evidence of PW1 and found that her right buttock was squeezed by all the fingers of a human hand.  He was satisfied that whether or not the MTR was crowded, the Appellant at the relevant time was on the escalator step immediately behind PW1 and no one else was on that step.  The closest person to them was six to seven steps further behind.

18.  The Magistrate considered whether or not this physical contact could have been accidental taking into account the short duration and the nature of the touch, but concluded it could only have been the result of an intentional act.

19.  I am satisfied having considered the transcript and the Magistrate’s Statement of Findings that he did consider properly the question of whether or not the touching was, or might be, accidental.  Clearly he accepted PW1’s evidence and believed her.  He was satisfied she knew the difference between inadvertent bumping or touching contact and a deliberate, albeit short, light squeeze of the buttock.   There is nothing in this ground of appeal.

20.  The 2^nd ground of appeal was that the Magistrate had not given any, or any sufficient, consideration to the issue of the Appellant’s intent at the time.  The basis of this ground was that because PW1 was wearing sports shoes as she descended the escalator, and as the Appellant did not look backwards he would have been unaware who was descending the escalator, or what sex that person was.  As the Appellant’s first sight of PW1 was when she came alongside him and because she was hurrying it was most improbable that the Appellant could have had sufficient time to form the necessary criminal intent for any deliberate indecent contact.  Further, it was highly unlikely that the Appellant would deliberately touch the victim when he was likely to be observed by other people.

21.  Ms Sin, for the Respondent, referred to passages in the Statement of Findings in which the Magistrate had addressed the question of the Appellant’s intent.  He expressly stated:

“In my view, this squeeze could not have been accidental.  It could only have been the result of an intentional act.  I am satisfied of that beyond a reasonable doubt.

I am sure the defendant intended to use his left hand to squeeze PW1’s right buttock.  This amounts in law, I find, to an assault upon her person.

I am satisfied on all the evidence, in the circumstances, that the assault was indecent and that the defendant intended to commit an assault of an indecent nature.”

(B15)

22.  PW1 said that she walked down on the left side of the escalator and had seen the train was arriving.  When she passed the Appellant, she said that “he walked down together apace with me”.  During that period, PW1 felt her right buttock had been touched and that it was held, or supported, for one or two seconds.  She felt it was a hand and looked to her right and saw the Appellant withdrawing his left hand.  She assessed the time as one to two seconds, which is quite long enough for an intention to be formed.

23.  Linked with this 2^nd ground, was a submission that the Magistrate did not address properly the question of propensity.

24.  In fact, the Magistrate in delivering his oral reasons at trial began by saying he had considered all the evidence and had taken into account the Appellant’s clear record and that he had directed himself, in accordance with the relevant authorities, on both propensity and credibility.  It is difficult to see what more he should have done.  This 2^nd ground fails also.

25.  Ground 3 was that the points raised on the 1^st and 2^nd grounds must make an appellate court consider that this conviction is unsafe and unsatisfactory.  They do nothing of the sort.

26.  I can find no basis on which to disturb this verdict and the appeal against conviction is dismissed.