R. v. LEUNG KWOK WAI

1997, No. MA 32

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. The appellant was convicted of two charges of indecent assault after trial. The first charge related to an indecent assault of a woman Tsui Sau Chun on 1st June 1996. The 2nd charge related to an indecent assault on an Indonesian maid Sabit Anik Hariatin on 13th May 1996. He now appealed against both convictions.

2. The prosecution evidence was that the victim Tsui Sau Chun in the 1st charge was the landlady of a flat in which the appellant was tenant. When she returned home early at 3 am on 1st June 1996 and passed the appellant's room, the appellant asked her to go into his room. She refused and the appellant put his hand on her buttock in order to press her to go into his room. He then grabbed her hand to touch his private part and told her he missed her. Tsui struggled off and swore at him. This was later reported to the police.

3. The victim in the 2nd charge was Tsui's maid. Her evidence was that on 13th May 1996 the appellant had told him to rub oil on his back which she agreed and did so. When she was doing that, the appellant grabbed her hand and pressed her to hold his penis to masturbate him. She said she did not consent to masturbate the appellant. But she did not complain until 1st June 1996 when Tsui returned from the police station after making a report in respect of the offence in the 1st charge. She related what the appellant did to her two weeks ago to Tsui and a report was then made to the police.

4. The appellant did not give or call evidence.

5. The magistrate was aware that there was lack of corroboration in the evidence of both witnesses and the fact that the appellant had a clear record. She warned himself against the danger of convicting on the uncorroborated evidence of a victim in sex cases. She also gave herself the good character direction which she was obliged to do. She was also aware of the appellant's defence was that what he did to both victims was without their consent.

6. In relation to the evidence of PW1, after she examined the discrepancies between PW1 and PW2's evidence and the possibility of exaggeration, the magistrate accepted PW1's evidence.

7. In relation to PW2, the magistrate took into account the statements PW2 gave to the police and the discrepancies between her evidence and the police statements. The magistrate accepted PW2's evidence.

8. It should be noted that PW2 admitted that prior to 13th May 1996, she had rubbed oil for the appellant on the instruction of PW1. On 13th May 1996, she again rubbed oil on the appellant because the appellant asked her to do it the second time. She was in her room and after the door closed the appellant grabbed her hand to hold his penis for 1 minute. She was asked the following questions in cross-examination and she provided the following answers :

"(59) Did you attempt to release and hold back your hand during this 1 minute?

A. I was using my left hand to put on my eyes. I was thinking of whether to scold him or not.

(60) Why not hold back your hand?

A. I thought I suffered no other loss.

(61) You felt 無所謂 (You did not mind)?

A. Correct."

9. The evidence thus showed that she was not unwilling in allowing the appellant to grab her hand to hold his penis. She actually did not mind what was done. The element of lack of consent could not have been proved beyond reasonable doubt on such evidence of PW2.

10. PW2's complaint to PW1 as regards the occasions she said the appellant had indecently assaulted her was not consistent with her evidence at least in so far as the incident on 13th May 1996 was concerned. This showed the inconsistency of PW2's story.

11. The conviction on the 2nd count must be unsafe and unsatisfactory. The appeal against conviction on the 2nd count must be allowed and the sentence on that conviction must be set aside.

12. On the evidence of PW1 which the magistrate accepted, the magistrate was entitled to convict the appellant on the 1st count. The appeal against conviction on the 1st charge was dismissed.