HKSAR v. NG KAN

HCMA 22/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.  HCMA 22 OF 2005

(ON APPEAL FROM KCCC 12144/2004)

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J U D G M E N T

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1.  This Appellant was convicted after trial of one count of Common Assault.  He was represented at the trial and was sentenced to imprisonment for two months; bail was granted pending appeal.  Originally the Appellant was charged with Indecent Assault and a no case to answer submission on whether or not the element of “indecency” had been made out, succeeded; as a result the charge was amended to one of Common Assault.  The Appellant appeals against both conviction and sentence.

Background

2.  Both the victim and the Appellant worked for the same company.  The Appellant was an Assistant General Manager and senior to the complainant who was employed as a Telesales supervisor.  The prosecution evidence was that on the day in question, the victim had gone to have a work-related discussion with the Appellant.  The discussion took place in a conference room.  The Appellant and the victim sat facing each other about 3 feet apart.  The Appellant moved his chair close to the victim, then opened his legs and encircled the victim’s legs with his.  The Appellant thereafter grabbed the victim’s hands, and with his thumbs rubbed the back of both her hands, for 3-4 minutes.  Then the Appellant placed both his hands on her shoulders, his legs maintaining their earlier position.

3.  The Appellant leaned forward and grabbed the victim embracing her.  He pushed away her hair and kissed her once on the left cheek near the jaw line.  Then he moved his chair forward once more so his knees almost touched the victim’s.  Again, he placed both hands on her shoulders and quickly kissed her on the right cheek near the jaw line.  The victim shouted “Don’t do it”.  The Appellant merely laughed.  The victim tried to leave, at which point the Appellant threw himself towards her and kissed her on the left cheek near the jaw.  The victim stood up and rushed out.

4.  The defence was that all the Appellant had done was put his hands on the victim’s shoulder to console her.  There had been no kissing.

5.  The Appellant alleged that the victim was upset, because she was depressed, worried and had suicidal thoughts.  He said the victim was emotional because she cried during the meeting.  The victim agreed that she cried, but said it was because of what the Appellant was doing to her and because he was embracing her.

6.  The Appellant gave evidence that the victim had wanted to see him because she was angry with one of her subordinates.  She was worried about her financial situation and work and needed to consult a doctor.  He denied kissing her or grasping her hands.  He denied touching her knees with his inner thighs as his legs encircled hers. 

7.  There are three perfected grounds of appeal against conviction.

8.  The 1^st ground was that the conviction was unsafe and unsatisfactory because the Magistrate failed to evaluate the evidence in a proper manner, and the grounds set out those matters referred to.  It was suggested the Magistrate did not consider properly or at all whether the victim had reason to exaggerate, or magnify, or fabricate the events by reason of the matters set out in ground 1.

9.  The matters referred to, included, that there was no evidence of the Appellant having displayed an amorous attitude to the victim prior to the incident; that the victim was a tearful, emotional person who broke down very easily as demonstrated in court; that at the time of the incident the victim was under financial pressure and may suddenly have feared for her job, which may have led her to make up an untrue story about the Appellant; there were discrepancies as to whether the Appellant’s legs touched hers; the Magistrate failed to consider all the discrepancies; he did not hear any expert evidence about the victim’s mental health; he did not consider whether her problems might cause her to act in the way the Appellant described for no apparent reason and that there was no good reason advanced by the Magistrate for rejecting the Appellant’s evidence.

10.  The 2^nd ground was that there were material irregularities in the course of the trial, as the Magistrate failed to describe verbally for the audio recording all the demonstrations made by the witnesses.

11.  The 3^rd ground was that the conviction was unsafe and unsatisfactory.

12.  I don’t propose to deal with ground one except to say that I am satisfied the Magistrate was aware of the difficulties and discrepancies and that he considered those adequately in his Statement of Findings.

13.  The 2^nd ground was that the Magistrate failed to describe orally for the benefit of the recording system, the nature of various demonstrations made by the witnesses as to movements made or positions taken by the parties during the incident.

14.  Ground 2 sets out areas in the transcript of evidence where counsel submits that the Magistrate did not make, but should have made, specific descriptions of what was happening.  These are at 50 R-T; 51 C-E; 51 G-N; 53 K-M; 83 D-L.  It is alleged that these omissions amount to material irregularities.

15.  I agree that in certain circumstances such omission or omissions could amount to material irregularities, but not every position or demonstration requires to be described in detail.  Often the meaning is plain from the wording of an answer or a series of answers.  In such circumstances a description is otiose.  Mr Wong for the Respondent drew the court’s attention to instances where convictions were quashed, either because demonstrations were not recorded at all, (The Queen v. Chan Chun-ching [1989] 2HKLR 311) or were recorded in a form which was not agreed.  (The Queen and Yin Chung-kan (Unreported) Mag. Appeal 477/1993).  In those cases however the demonstrations related to crucial parts of the evidence.

16.  A reading of the passages complained of does not reveal any difficulties likely to be caused by lack of a specific description, except possibly, in respect of the answer made by the victim at B 53 K-M, which may have been clearer if a description was given.  That relates however to a peripheral matter and the absence of a specific description would not amount to a material irregularity in the context of the evidence as a whole.  Further, there are usually many repetitions of parts of the evidence both in chief and in cross-examination which may obviate the need for repeated descriptions of positions or movements which are clear from the words used.  There was in any event ample evidence on which the Magistrate could find common assault.

17.  In this case the Magistrate’s abundantly cautious attitude was to the benefit of the Appellant, who, in my view is fortunate to have escaped the more serious conviction.  The incident must be viewed as a whole and the evidence of the enforced proximity, the encircling and touching of the victim’s legs, the thumb stroking and the kissing, if accepted, could have justified a finding of indecency.

18.  Essentially, the matter turned on the credibility of the witnesses and it is quite clear the Magistrate having considered the facts and the matters raised accepted the evidence of the victim.  There is no basis for interfering with the Magistrate’s findings or the conviction and the appeal against conviction is dismissed.

Appeal against sentence

19.  The perfected grounds of appeal against the sentence of 2 months’ imprisonment were that it was manifestly excessive and or wrong in principle in particular as the conviction was for common assault.  There was no evidence of previous amorous advances, or premeditation.  The Appellant was 52 years old, had a clear record and in consequence of the incident, had lost his job as a senior manager.  It was submitted that the Magistrate had failed to take sufficient account, in particular, of the loss of his job and the nature of the conviction.  Further, it was wrong and unjust to impose a deterrent sentence on the Appellant, whether for personal or general deterrence.

20.  The 2^nd ground was that the Magistrate erred in principle in failing to consider whether he should suspend the sentence of imprisonment he decided to impose.

21.  The 3rd ground was that in all the circumstances the proper sentence after trial was a fine, or, if a sentence of imprisonment was inevitable, then it should have been shorter than 2 months and suspended.

22.  In his Reasons for Sentence the Magistrate took into account the Appellant’s good character, age, the fact he was supportive of staff, that he had lost his job, and that he had been vilified by the press.  He did not consider a fine appropriate given the facts.  In particular, he noted that the victim was in a very junior position and took the view that the Appellant by abusing his position of authority had taken unfair advantage of the victim.

23.  The Magistrate considered that such an assault called for a deterrent sentence, a deterrent not only to the Appellant but to deter others from behaving in like manner.  Having heard full mitigation, the Magistrate concluded that a sentence of 2 months was appropriate.

24.  Although it is clear that the Appellant was abusing his authority and taking advantage of the victim, the Magistrate seems to have failed to remember that he was sentencing for an offence of common assault, not for indecent assault. The level of sentence imposed was at the level of sentence considered appropriate for a second offence of indecent assault, which was in the range of 2 to 7 months.

25.  Although this was a nasty abuse of his superior position, I am satisfied that the sentence passed was too severe given the Appellant’s previous good character and the nature of the conviction.  A sentence of imprisonment was appropriate as it was a sustained assault and there were not any exceptional circumstances which would justify suspending it.  The offence calls for the short sharp shock of a briefer sentence than the one imposed.

26.  Accordingly I allow the appeal against sentence, quash the original sentence and sentence the Appellant to 14 days imprisonment.