THE QUEEN v. CHAN PO CHEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1604 of 1990.

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BETWEEN

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JUDGMENT

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1. On 1st October 1990 the appellant was convicted in the magistrate court at south kowloon of indecent assault on a female, contrary to section 122(1) of the Crimes Ordinance   Cap. 200 of the laws of Hong Kong.

2. The allegation contained in the charge was that the appellant on the 9th August 1990 in the MTR train Jordan Station, kowloon in Hong Kong did indecently assault YU Yee-chung, a woman.

3. This was a very short trial in which the complainant YU Yee-chung and a police officer, who was on the train at the time, were the only two prosecution witnesses.  The appellant also gave evidence in his defence.

4. YU Yee-chung's testimony was that the train was very crowded and she felt someone behind pressing against her right rear side.   She felt the person was using a hand to press against her. After she felt the touch, she turned to look once.   She described how she was touched on her right buttock and she turned and saw a man on her right rear nearest to her, shorter than she was, wearing light coloured clothes.   She then moved forward a little.   However, he still touched her.   Again she described it being very crowded at the time and he was still pressing against her.

5. Later in examination-in-chief it was her evidence that when the man first touched her, she thought it was his hand which touched her.   She identified the man as the appellant.   In cross-examination she confirmed that "the first time was a hand" and when asked what was the second touch she replied "After moving forward, the second time I think his lower body."   She admitted that in a pre-trial statement she had described the second touch as being with a hand.    She now thought the statement was correct but she cannot now remember clearly.   She now thought it was a hand on the second occasion.    Later in cross-examination she said that she felt a pinch or touch. Then she said a touch but she thought it was deliberate.   She was certain it was a deliberate action.

6. The second prosecution witness was PC47169.   He saw the man using his left hand to hold the hand grip.   When the train moved he saw this man using his lower body to press the girl's buttocks.   This was for about 10 seconds.    Then he saw him used his right hand to touch the right buttock of the girl.    Then he also used his lower body to press the buttock of this girl for about 15 seconds.   He saw the girl move forward a little but the man also moved forward to press against the girl's buttock.   He described himself as standing about 12 inches from the girl and the man facing them both from the side and he had an un-obstructed view and could see their faces.   In cross-examination he admitted that he had seen three bodily contacts and that PW1 moved forward between the second and third contact.

7. The defendant in his evidence denied touching the complainant's buttock with his hand, but he admitted he could have come into bodily contact with her as it was very crowded.    But there was no other reason for such contact and if there was such contact, it was accidental.

8. In his statement of findings the magistrate set out in a number of paragraphs the evidence of the prosecution witnesses and also one paragraph on the defendant's evidence.    He concluded by saying:-

9. Because of the use of the and/or combination in his findings the appellant was allowed to amend his grounds of appeal to add a fourth ground that the learned magistrate's findings were inconclusive.

10. Mr. Coghlan for the Crown somewhat reluctantly felt obliged  to concede the appeal on this ground.

11. In my judgment he was right to do so.   The use of the and/or combination meant that the magistrate was not making a specific finding of fact about what happened.

12. A man's guilt cannot be based on two possible but alternative findings of fact.

13. In the circumstances, I was of the view that the conviction was unsafe and unsatisfactory and I allowed the appeal and set aside the conviction.