HKSAR v. YIP CHI YUNG

HCMA94/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 94 OF 2009

(ON APPEAL FROM TMCC NO. 4416 OF 2008)

----------------------

---------------------- 

----------------------

J U D G M E N T

----------------------

1.  This is an appeal against a conviction for indecent assault.  At the material time, a 16-year-old schoolgirl was going home and she was in the lift going up to the 27th floor.  Also in the lift was the Appellant, a decent young man with a clear record.  He was going to the 28th floor.  They were level with each in the lift and they were the only occupants of it.

2.  When the lift doors opened at the 27th floor, the girl started to step out of the lift.  At this juncture, she felt her left buttock was touched once.  She turned round and saw that the Appellant was pressing the ‘door close’ lift button with his right hand.  She inferred, therefore, that it was his left hand that had just touched her buttock.

3.  It was suggested in cross-examination of her that the Appellant had leant his body to the right, while she was beside him, to press the lift button.  She disagreed.  It was suggested to her that the touching was accidental and she disagreed with that.  She described the hand touching her and saying she was sure of that even though she did not see it because she could feel the touch of the fingers.  She said that her bottom was touched for one to two seconds, during which she felt and described a slight ‘lifting-up’ action.  It was the lifting-up action that convinced her that the touching was intentional and led her to disagree with the suggestion of accident.

4.  The Appellant gave evidence.  He explained why he was in a hurry and went to press the ‘door close’ button.  He said he was behind the girl and, as he leant over to press the lift button, he believed his left hand bumped into her buttock.  His case was that the touch was accidental.

5.  The issue is thus a very narrow one.  Accepting the description given by the young lady, is that enough to found the conviction for indecent assault?  Because it is common ground, in the way this appeal has been argued before me, that if the touch by the Appellant in these circumstances was deliberate, guilt would follow.  If it was not deliberate, or there was a doubt about that, obviously, guilt would not follow.

6.  I have hesitated in these reasons to use the word “goose,” but it is a useful word in the circumstances because it describes that which the schoolgirl related.  I am fortified in using the term because it appears in the Oxford English Dictionary without being characterised as slang, and its meaning includes “to poke or tickle a sensitive part of the body”.  What common-sense and experience of life tells one is that, frankly, you know if you have been goosed.  An accidental bump and a goose are two different things. 

7.  In arguing the appeal in front of me today, Mr Kelvin Chan, who has made his submissions very nicely to me, says that the description in the papers would be consistent with the back of the Appellant’s hand and the top sides of his fingers touching the young lady’s bottom. 

8.  Obviously, if the back of a man’s hand brushes past the buttocks of the girl as she gets out of the lift and he moves across, then that is something that could happen accidentally.  But that is not what the girl described.  The feel of the fingers on her buttock and the lifting, I cannot imagine being achieved by the back of his hand being against her and somehow his fingers being pushed upwards and into her.  It is just not a competing, realistic scenario on the evidence. 

9.  The experienced magistrate who heard this case had the advantage over me of being able to see and hear the witnesses live.  I am called on to make the same judgment and assessment as he was but I do it from the papers.  My judgment, on the papers, coincides with that of the magistrate.  The evidence as given by PW1 does make me sure that this was not an accidental touching and that it was deliberate. 

10.  Accordingly, I come to the same conclusion as the magistrate and dismiss the appeal.