HKSAR v. WAN YATMAN

[English Translation – 英譯本]
HCMA 67/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 67 OF 2014

(ON APPEAL FROM FLCC NO. 3439 OF 2013)

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JUDGMENT

1.  The appellant was charged with six counts of indecent assault[1]. His case was heard in the Fanling Magistracy. He pleaded not guilty but was found guilty after trial. The magistrate sentenced him to six weeks’ imprisonment for each charge and ordered that three weeks of the term of sentence of the second to the sixth charges be run consecutively to the sentence for the first charge, making a total of 21 weeks’ imprisonment. The appellant appeals against the convictions and sentences.

Prosecution case

2.  The following is a summary of the facts as alleged by the prosecution.

3.  The victim (PW1) worked as a reporter in the Mainland-Taiwan team of the news department of a newspaper group.  The day of the offence was a day within her probation period.  Her main duties were to write news reports, and to process and classify news photographs.  There was no working desk specifically assigned to her.  The appellant was the person-in-charge of that section and was PW1’s immediate superior.

4.  Charges (1) to (4) and charge (6) (hereinafter referred to as the 1^st group of offences) relate to five indecent assaults.  The first one happened in late May 2012, about one week after PW1 reported to duty.  The last time took place one day in August.  On 24 August PW1 successfully passed the probation period.

5.  What happened during these five assaults were very much alike except for slight differences.  They all happened around 5:30 pm.  On each occasion, PW1 and two female colleagues were sorting out photographs in the aisle between one row of cabinets and one row of working desks.  The width of the aisle was about one metre.  When PW1 was sorting out photographs, she felt that several fingers of someone moved lightly across her buttocks once from left to right.  She immediately turned her body, looked to the right and saw that there was a man on her right side less than one metre away from her.  The man was walking towards the smoking room.  His hands were down and at his sides, without holding anything.  PW1’s evidence was that the man was the appellant.  She did not see anyone else walking in the aisle.

6.  Charge (5) (hereinafter referred to as the 2^nd group of offences) is about an incident which happened in late July.  PW1 was writing a news report at a working desk.  The appellant came to the chair on which she was sitting.  He briefed her about something and gave her instructions.  In the course of his doing so, he put his right palm on the middle part of her back over her clothes, and pressed his palm on the buckle of her bra.  She was very afraid and bent her body forward to get close to the desk as much as possible, but the appellant’s palm still pressed on the buckle of her bra.  This lasted two to three minutes.

Defence case

7.  At the trial the appellant did not give evidence but he called two witnesses.

8.  The first defence witness (DW1) was a colleague of the appellant.  Besides testifying as to the good character of the appellant, he also gave evidence about the fact that the appellant was not present at the scene.  The magistrate summarized his evidence in this area as follows[2]:

“28. According to the company’s policy, the appellant, being the person-in-charge of the Mainland-Taiwan team, was required to go to the conference room on the 8^th floor of… Press Centre everyday at 5:30 pm to attend a meeting. 10 to 13 people attended this meeting, including the boss, the persons-in-charge of various sections of the newspaper, and the editors of other teams and groups. That being the case, during the period between 5:30 pm and 6 pm each day, the appellant would not be present in the aisle where the offences took place. Mr Wong agreed with the statement that he himself did not need to attend such meetings unless the appellant was on leave on a particular day.

29. Under cross-examination, Mr Wong agreed with the proposition that such meetings would not begin until every person concerned was present, and that therefore a meeting did not necessarily begin at 5:30 on the dot.  Mr Wong did not know at what time each meeting ended.”

9.  DW2 was also a reporter of the Mainland-Taiwan team of the company.  She gave evidence about what happened when she carried out her daily duties and testified about the good character of the appellant.

Findings made by the magistrate

10.  The magistrate was satisfied that PW1 was an honest and reliable witness and that she had given an accurate and fair account of the incidents involved in the 1^st group of offences.  She found that on each occasion PW1 made a clear and unmistaken observation of the person who touched her.  She was sure that PW1 could not possibly misidentified anyone.

11.  She took the view that DW1’s evidence about the appellant’s being not present at the scene was of no assistance to her in deciding that issue.

12.  She found that the touching incidents were not accidents, that they were intentional acts of assault, that on each occasion the appellant’s intention was to indecently assault PW1 and that a right-minded person would consider such assaults to be indecent.

13.  As regards the 2^nd group of offences, the magistrate similarly made the finding that PW1 gave an accurate and fair account of the incident.

14.  She considered that DW2 could only testify as to her personal experience of what happened when the appellant taught her, and that since she did not witness the incident in question, she did not give any weight to her evidence.

15.  She found that what the appellant did was clearly an intentional act of assault, that his intention was to indecently assault PW1 and that a right-minded person would consider his act to be indecent.

16.  For these reasons, she found the appellant guilty of all the charges.

Grounds of appeal against conviction

17.  At the appeal hearing, the appellant was represented by Mr Wong Man-kit SC and Mr William Lam of counsel[3]. They put forward the following grounds for the appeal against conviction:

(1) In respect of the 1^st group of offences, the magistrate erred in finding that DW1’s evidence was of no assistance and that the appellant was present in the aisle at the time of the offences.

(2) In respect of the 1^st group of offences, the magistrate did not remind herself that even in assessing the identification of someone whom the witness knew, the guidelines laid down in R v Turnbull[4] should still be considered.  The process of her analysis of the evidence showed that she did not follow the guidelines laid down in that case, and that she erred in concluding that the appellant was the person who committed the offences by depending on the fact that PW1 identified the appellant by relying on his way of walking.

(3) In respect of the 2^nd group of offences, the magistrate erred in finding that the appellant harboured an indecent intention when he put his right palm on PW1’s back over the buckle of PW1’s bra, and that a right-minded person would consider that such act was indecent.  Furthermore, the magistrate erred in failing to consider or make any finding as to whether the appellant genuinely thought that PW1 consented to his putting his hand on her back.

(4) The convictions are unsafe and unsatisfactory.

Discussion and considerations

Ground of appeal (1)

18.  At the trial, the defence’s purpose of calling DW1 was obviously to prove that the appellant was not at the scene at the times of commission of the 1^st group of offences.  Mr Wong went so far as to say this in his submission: DW1 “provided the alibi evidence for the appellant; that is to say, when these offences were committed, he would not be present at the scene where they were committed, but would definitely be present in the conference room attending a meeting.”

19.  The main point of DW1’s evidence is that the appellant was the person-in-charge of the Mainland-Taiwan team, and that he was required to be present in the conference room every day at 5:30 pm to attend a “pre-editing meeting”, which lasted half an hour, with the boss, the chief editor and the persons-in-charge of various sections of the newspaper.  The regulations of the company stipulated that those who were to attend the meeting had to be punctual.  There were people who were late but just a very few would be so.  Moreover, he sat beside the appellant.  He knew whether or not the appellant was in his seat.

20.  On the other hand, Mr Wong submitted that PW1 was not able to tell accurately when the offences took place.  According to her evidence, the moments at which she was touched should be between 5:45 pm and 6 pm, therefore, it was necessary for the magistrate to seriously consider the alibi evidence of the defence.

21.  The basis of Mr Wong’s submission in this area is the evidence of PW1 given in re-examination[5]. However, Mr Martin Hui, Senior Assistant Director of Public Prosecutions, for the respondent, argued that the court should not overlook the overall evidence given by PW1 in this area, in particular her evidence that she began to sort out the photographs at 5:30 pm and that the sorting out process required 15-30 minutes[6]. Since sorting out the photographs could finish by 5:45 pm, it was perfectly possible that the touching incidents occurred before 5:45 pm.

22.  In the Statement of Findings there is this sentence by the magistrate: “PW1 estimated that the time when the appellant[’s hand] moved lightly across her buttocks was about 5:30 pm.”[7]

23.  I have noticed that the magistrate used the word “about”.  However, her way of expression would give the impression that her understanding of PW1’s evidence was that the touchings occurred during the early stage of her sorting out the photographs.  This view of her evidence is too harsh to the appellant.  This is particularly so when the following is taken into account:  It was only during PW1’s re-examination stage when she was asked whether the touchings occurred during the early stage of her sorting out the photographs that she said it occurred within 15 to 30 minutes after it began at about 5:30 pm[8]. Judging from common sense, had PW1 been touched shortly after 5:30 pm, she would not have answered in this way.  Elsewhere in her evidence, PW1 mentioned 5:30 pm, but I agree with Mr Wong’s observation, ie it appeared that she was just referring to the time when she began to sort out the photographs.

24.  The major issue under this ground of appeal is whether the magistrate erred in finding that DW1’s evidence was of no assistance to the court in relation to the issue whether PW1’s identification evidence was accurate.  In considering this issue, the following must be taken into account: PW1 could not say definitely at what times she was assaulted, and in the circumstances of this case, any error about time is not insignificant.

25.  Mr Wong submitted that in these circumstances the magistrate erred in finding that DW1’s evidence was of no use, thereby overlooking material evidence which could have exonerated the appellant from the charges.

26.  The magistrate gave the following explanation about the decision she made in this aspect:

“46. I had carefully considered Mr Wong’s evidence. Mr Wong said that under normal circumstances, the appellant was required to go to the conference room on the 8^th floor around 5:30 pm every day to attend a meeting. In fact, Mr Wong himself was not required to attend that meeting. Therefore, it was not difficult for me to understand that he would not know at what time the meeting began and at what time it finished. Furthermore, Mr Wong agreed that when he was sitting at his working desk working, he simply would not know who was walking in the aisle behind him where the offences took place. Having considered all evidence carefully, I considered that Mr Wong’s evidence was of no assistance in respect of this issue.”[9]

27.  Mr Hui supported the view taken by the magistrate, because DW1 did not know what actually happened at all: all he could say was what would happen generally, and his evidence failed to undermine PW1’s identification evidence.

28.  In my judgment, the direct effect of DW1’s evidence was not sufficient to show that DW1 was definitely attending a meeting each time when an offence took place.  However, it was sufficient to prove that every day the appellant had the duty to attend a meeting which began at 5:30 pm and he had to be punctual.  DW1 was not present at the meeting.  He did not see whether the appellant had really attended any meeting, nor could he tell at what time the appellant arrive at the conference room.  However, the appellant was required to attend this meeting during that period of time every day; and further, the meeting would not begin until every person who should be present was present. The purpose of the meeting was to decide what articles should be used for each section of the newspaper, which piece of news or story should be the headline news or headline story of each section and what contents should each section contain.  After the meeting finished the appellant was to compile a complete list of articles in preparation for a meeting with the editors.  All these matters had to be attended to by the appellant.

29.  The fact that the appellant was required to attend an important meeting does not mean that he would not make use of this opportunity to molest anyone.  However, in the circumstances of this case, this is circumstantial evidence relevant to the assessment of PW1’s identification evidence.  It could not be completely ignored just because DW1 was not able to say directly that the appellant was not at the scene, and particularly if the indecent assaults on PW1 did not happen during the early stage of her sorting out the photographs, this evidence would be even more relevant, because in that case the probability that when PW1 was assaulted the appellant was already attending the meeting would be even higher.

30.  The magistrate said she considered that DW1’s evidence was of no assistance in respect of “this issue”, by which she meant the accuracy of PW1’s identification.  Since the magistrate had, in several paragraphs, given an account of the findings she made about PW1’s evidence, I cannot rule out the possibility that when she came to the conclusion in question she had considered DW1’s evidence.  Even seen in this light, the account she gave about how she assessed and evaluate [DW1’s evidence] is less than sufficient and makes me worry that she had not given adequate consideration to the significance of DW1’s evidence.  I do not agree with Mr Wong’s submission that the appellant was definitely attending the meeting but it is hard to take issue with the point that the appellant was required to attend a meeting in the time slots in question.

Ground of appeal (2)

31.  This ground of appeal is directed against the assessment made by the magistrate of PW1’s identification evidence.  Mr Wong submitted that even in assessing the identification of someone whom the witness knew, the guidelines laid down in the case of Turnbull[10] should still be considered, and that the magistrate had erred in failing to do that.  He asserted that in any event there was a good chance that PW1 had been mistaken in her identification and that the assessment made by the magistrate was wrong.

32.  In the present case, the appellant was the superior of PW1.  They saw each other every day and the places where each of them worked were close to each other. Therefore, Mr Hui emphasized that this was a case of a witness recognizing someone whom the witness knew.

33.  In a criminal case, if the prosecution rely on identification evidence, the court must very carefully assess the identification to see whether it is accurate and correct and whether such evidence can be safely relied upon.  The reason is simple: it is because cases of mistaken identification did occur from time to time.  An honest person who is convinced that he is not mistaken in his identification may nevertheless be really mistaken.

34.  Generally speaking, recognition of someone whom the witness knows may be more reliable than identification of a person who is a stranger to the witness.  However, sometimes people do make mistakes in the recognition of those known to them. Therefore, the guidelines in Turnbull should still be borne in mind.

35.  As long as the magistrate took into account relevant factors and made appropriate assessment and evaluation, she did not need to recite the Turnbull guidelines one by one.  However, she was duty-bound to explain in the Statement of Findings in what way she took into account the guidelines and how she carefully assessed and evaluated relevant evidence.

36.  That in the present case PW1 did not make any identification of the face cannot be overlooked.  Just by observing a person (the offender) from behind, PW1 alleged that the appellant was the offender.  The magistrate clearly stated that PW1 relied on the shape, the build, the height and the way of walking to make identification.  When identification is made by relying on facial appearance, the evidence needs to be carefully assessed.  When identification is made by relying on the factors stated by the magistrate, the court has to be doubly careful in assessing the evidence.  The chance of making mistakes in the case of identifying a person by what can be seen from behind the person is necessarily much bigger than identifying a person by his facial appearance.  After all, characteristics detectable by looking at a person from behind are hardly comparable with the uniqueness of the facial appearance of the person.

37.  I do not deny the possibility of identifying a person by observing him from behind, especially when the offence concerned is committed, as in the present case, in an office, but the relevant evidence must be scrutinized with extreme caution.  In assessing the accuracy of the evidence, relevant factors must be minutely examined, particularly those set out in Turnbull, including: the description of the defendant given by the witness and the defendant’s actual appearance, the conditions of the place at which the observation was carried out and the length of time of the observation.  As far as the present case is concerned, how many men there were working on the 8^th floor; when the appellant was viewed from behind, were there any characteristics which could distinguish him from other people; were there any peculiarities in his actions or movements; were there any unique features in the clothes he was wearing; how many opportunities the witness had to observe people related to this case from behind them; in what circumstances she carried out the observation; what was the quality of the observation, all these factors should be considered.  To a certain extent, it may be more appropriate to call such evidence circumstantial evidence rather than identification evidence, because unless the quality of the identification is very good, the prosecution would rely heavily on the overall circumstantial evidence to exclude the possibility that the offences were committed by other people.

38.  The magistrate stated that she considered the observation made by PW1 to be recognition of someone known to her.  She gave the following account about her assessment of PW1’s identification evidence:

“I found that around 5:30 pm respectively on a day unknown in late May, on a day unknown in early June, on a day unknown in mid-June, on a day unknown in July and on a day unknown in August, when PW1 was sorting out photographs, she suddenly felt that someone moved several fingers lightly from left to right across her buttocks. She looked to her right at once and saw that the appellant was on her right less than one metre away from her. I found that at the times when the offences were committed, no one else was walking in the aisle. On each occasion PW1 had the opportunity to observe the appellant from behind until he had walked for a distance of about five metres before she resumed doing the work which she was doing. Since what happened was that she recognized someone whom she knew, and taking into account the various considerations relating to the circumstances in which PW1 observed the appellant on each occasion, although on none of these occasions did PW1 have a frontal view of the appellant’s face, nor could she tell what clothes he was wearing or what colour his hair was, I found that she, by relying on the shape, build, height and way of walking of the person concerned, surely could clearly identify that each time when a person moved his fingers lightly across her buttocks, that person was the appellant. Having considered all the evidence, I found that on each occasion PW1 had made clear and unmistaken observation of the appellant. I was sure that the possibility that PW1 mistook another male colleague of the Mainland-Taiwan team or a male colleague of another team for the appellant did not exist.”

39.  Mr Hui made the following submission to support the findings made by the magistrate in this area:

“Admittedly, the magistrate did not go one step further and elaborate on ‘the various considerations relating to the circumstances’, but she was certainly referring to the circumstantial factors relevant to the accuracy of identification evidence referred to in Turnbull. It is accepted by the appellant that the magistrate did not need to spell out each and every item contained in the Turnbull guidelines. In view of the matters at issue between the prosecution and the defence and the topics focused on by the parties in their closing speeches, the fact that the magistrate did not say much about this point gave little cause for criticism.

Furthermore, the magistrate’s finding that PW1, ‘by relying on the shape, build, height and way of walking of the person concerned, surely could clearly identify that each time when a person moved his fingers lightly across her buttocks, that person was the appellant’ is supported by sufficient evidence.”

He pressed the point that:

“Judging from the background of this case and the way in which the offence was committed each time, the possibility that PW1 mistook the appellant for the offender did not exist. The argument advanced by the defence (ie PW1 might have mistaken another male colleague for the appellant) is nonsensical, divorced from reality and against common sense.”

40.  PW1 and the appellant were partners at work and they saw each other every day, but in the present case there are two special factors which cannot be overlooked:

(1) The times at which, according to PW1, she was assaulted were the times at which normally the appellant was required to attend a meeting;

(2) PW1 did not see the assaulter’s face but saw him only from behind.

The first factor could not totally exclude the possibility that the appellant was the person who assaulted PW1, but since the burden of proof was on the prosecution, when the overall impact produced by these two factors were taken into account, the magistrate had the duty to assess with extreme caution whether PW1’s allegation that the assaulter was the appellant was definitely true and correct.  The account given by the magistrate about her assessment and evaluation of PW1’s evidence was less than sufficient.

41.  However, the key point is whether the evidence, taken as a whole, supports the magistrate’s conclusion.

42.  What the magistrate regarded as crucially important is that PW1 could make identification by relying on the shape, build, height and way of walking of the assaulter.  Mr Hui also adduced some relevant evidence.  I have the following observations about these factors:

(1) Shape: Obviously the magistrate was not referring to the shape of the face, because PW1 did not say that she had seen the face of the offender, not even one side of his face.  Whether the shape referred to by the magistrate means the shape of the whole body, the trunk or the head, unless it is shown that there are some special features (in the present case there is no evidence about any special feature), to identify a person by relying on the shape of any part of the body seen from behind is hard to make anyone believe that the identification is safe.  It will of course be different if there is other evidence which is sufficient and can support the identification.

(2) Build and height: According to PW1’s description, that person was neither thin nor too fat, and was about 1.73 m tall[11]. Although  PW1 did say that there was nobody whose build was about the same as that of that person, she admitted that she did not pay attention to the build of the staff members of other teams (on the 8^th floor there were staff members of other teams, including the proofreading team and the internet team).  Furthermore, even if the build and the height of the appellant matched the descriptions given by PW1, the point which should not be overlooked is that such build and height are not remarkable at all.  The prosecution did not adduce any evidence to show that on the 8^th floor there was no man with such build and height.

(3) Way of walking: A special way of walking can serve to prove that a particular person is the offender.  How much weight can be given to such evidence is dependent on the circumstances.  In the present case, PW1 did not make any demonstration, did not give any oral description and did not explain in any way as to why she could identify the person by his way of walking.  Moreover, Mr Wong pointed out that actually PW1 did not say that she identified the assaulter by relying on his way of walking.  What happened was only that at her re-examination stage she was asked this question: “Were you familiar with the defendant’s build, the hair on his head and the way he walked?”, which was a leading question embedded with various items of information, and in reply she said “Yes”[12].  It was indeed the circumstance in which PW1 gave evidence about this aspect. However, this is not a case of no evidence, but rather a matter of how such evidence is to be assessed and how much weight should be given to it.

(4) The appellant’s jacket: PW1 gave evidence that during one of the assaults, the person who assaulted her was wearing a green Adidas jacket.  The defence did not dispute that the appellant had one green Adidas jacket. However, whether the jacket had any special features, was there any other person who had a jacket of the same or similar design and colour, whether at the material time the appellant’s jacket was placed at his seat (very close to the scene of crime), there is utterly no evidence about any of these points.  On top of that, PW1 was unable to tell what clothes the assaulter was wearing on any specified occasion of assault.  In other words, there is no solid evidence which shows the person who was wearing the green Adidas jacket was the assaulter on which occasion.

(5) Colour of hair on the appellant’s head: PW1 also testified that the appellant at different times dyed his hair in different colours, for example brownish gold and green.  This certainly can be cogent evidence, particularly if there is evidence that no one else had dyed his hair in these colours.  However, there is no such evidence and PW1 was not able to tell the colour of the assaulter’s hair on any specified occasion of assault.  This problem is the same as that in point (4). Point (5) is important in another way.  If the assaulter’s hair was dyed in a rather special colour, it is only logical that PW1’s attention would be drawn to that and she would remember it.  But she could not remember it.  Is it because she had been assaulted many times or are there any other reasons, including the fact that the assaulter did not dye his hair at all?  The magistrate had to consider the various possibilities.

(6) All along PW1’s eyes were on the assaulter: Her evidence was that she kept on looking at the man until he had walked about five metres and so she was sure that he was the appellant.  This was a factor which the magistrate could take into account, but she could not overlook the fact that PW1 was only looking at the man from behind.

(7) Other people would not walk past PW1’s back: Mr Hui submitted that even though there were other staff members on the 8^th floor, they did not need to use the narrow aisle behind PW1’s back, because they could go to where they wanted to go by taking other ways which were more unobstructed.  Mr Hui’s argument is not without reason, but if anyone was determined to do something bad, he would purposely walk past PW1 from somewhere behind her.  Apart from that, Mr Hui’s argument is also applicable to the appellant.  The time when an offence took place was the time he needed to go to attend a meeting.  For him to go to the conference room, he did not need to go to the place behind PW1, but should go in the opposite direction, ie go away from PW1.

43.  The magistrate was entitled to make her findings after considering all the circumstances.  Sometimes, evidence about certain matters, when looked at individually, may not be strong, but the combined effect produced when they are added up can be sufficient evidence.  That said, in this case, the magistrate did not show that she had made sufficient assessment and evaluation.  Bearing in mind the above considerations, I consider that the magistrate’s finding that the identification was accurate is not safe and is not supported by sufficient evidence.  I have gone over PW1’s evidence recorded in the transcript.  She confidently and firmly pointed her finger at the appellant, saying that he was the assaulter, but she did not adduce sufficient evidence to enable the magistrate to assess her evidence relating to this issue to see whether it was undoubtedly accurate and correct and fully reliable.  Just as the court pointed out in Turnbull, the fact that a witness is honest, credible and fully confident and his evidence is unshaken does not mean that his identification must be accurate and correct.

Ground of appeal (3)

44.  This ground of appeal concerns the second group of offences.

45.  The prosecution’s allegation is that the appellant touched the buckle of PW1’s bra with his hand outside her clothes.  At the trial, the defence case was that the appellant did not do that and that he just patted PW1’s shoulder as a sign of encouragement.[13]

46.  The appellant did not give evidence at the trial.  The magistrate accepted PW1’s evidence and found that he had done what she described.

47.  The following are the main points of this ground of appeal put forward by Mr Wong:

(1) The magistrate erred in finding that a right-minded person would consider the act in question as indecent;

(2) The magistrate erred in finding that the appellant did such act with an indecent intention;

(3) The magistrate erred in failing to consider or make any finding as to whether the appellant genuinely thought that PW1 consented to his putting his hand on her back in that manner.

48.  The magistrate made the following findings in respect of this charge:

“56. I found that on a day unknown in late July, when the appellant was teaching PW1 how to write newspaper articles, he put his right palm on the middle part of her back and press it with force on the buckle of her bra. I accepted PW1’s evidence that she bent her body forward so that it was close to the working desk to try to avoid being touched by the appellant, but that the appellant ignored her reaction and continued to press his hand on the buckle of PW1’s bra for about two to three minutes.

57. In my judgment, such act of the appellant was one of the forms in which an indecent assault could take place and it disconcerted PW1. Even though she tried to avoid his action by bending her body forward, the appellant did not draw back his hand, which continued to press on the buckle of her bra with force for as long as two to three minutes. Taking into account all the circumstances, I found that a person who looked objectively at what happened would surely consider that such conduct of the appellant was a kind of sexual harassment. I was sure that the appellant’s touching of PW1’s back and the buckle of her bra was not accidental. The appellant’s act clearly constituted an intentional assault. His intention was to indecently assault PW1 and a right-minded person would consider the overall circumstances in which this act of assault took place as indecent.

58. I had carefully considered the evidence given by Mr Wong and Miss Wong as to the appellant’s character. Even taken into account such evidence, I did not believe that the appellant had not done the acts of assault stated in any of the charges.”[14]

49.  In the classic authority R v Court[15], the House of Lords held that indecent assault comprised the following elements:

(1) The defendant intentionally assaulted the victim;

(2) The assault, or the assault and the circumstances accompanying it, are capable of being considered by right-minded persons as indecent; and

(3) The defendant intended to commit such an assault as is referred to in (2).

50.  In the present case, the magistrate found that the act of the appellant was an assault, and further, an intentional assault, but this finding is not an issue of the appeal.

51.  The first issue of the appeal is whether the relevant act was indecent.  This is a finding of fact.  What the magistrate had to decide was whether a right-minded person would consider the act so offensive to contemporary standards of modesty and privacy as to be indecent[16].

52.  Some acts are incapable of being considered as indecent, an example of which is the removal of a shoe from a girl’s foot by the appellant in R v George[17].  Even though such acts are done by the defendant with sexual desire or obscene motive in his mind, which he keeps it to himself, there is no indecent assault.

53.  On the other hand, some acts are obscene and overtly sexual, for example, fondling the private parts of the victim.  If the defendant did any of such acts, it is not necessary to consider his motive or intent. This principle was confirmed by the Court of Final Appeal in HKSAR v Fok Ka Shing[18].  In Court, Lord Ackner remarked that although intention was an important element of the offence, if the act in question was unambiguously indecent, then unless the defendant could come up with an explanation, such act would necessarily cause a right-minded person to draw an irresistible inference that the defendant intended to assault the victim in a manner which was indecent.

54.  Some acts, of which an example was what happened in Court, ie spanking a young girl’s buttocks outside her shorts with the hand, are not unambiguously indecent, but can be regarded as capable of being an indecent assault.  If the defendant did such an act, it is necessary to determine whether the defendant intended to commit an assault which was indecent. Lord Ackner said that in considering this issue, factors which could be taken in account included the following:

(1) the relationship of the defendant to the victim;

(2) how the defendant had come to embark on this conduct;

(3) why he was so behaving;

(4) the defendant’s explanation, if any, which can be used to determine the nature of the conduct in question, and ultimately to determine whether the defendant intended to make an assault which was indecent on the victim.  Where the overall circumstances show that though the conduct can be interpreted as an indecent assault, it also admit a different interpretation, then the defendant should not be convicted.

55.  In my judgment, the circumstances of the present case are such that the appellant’s conduct at most could be regarded as only capable of amounting to an indecent assault. Therefore, before finding that the assault committed by the defendant was indecent, the court had to be sure that he had the intention to act indecently.

56.  The magistrate did make her finding about this issue and she provided her reasons[19].

57.  Mr Hui supported the magistrate’s finding and, citing HKSAR v Ip Chin Kei[20] in support, he submitted that the following principles underlay magistracy appeals:

(1) The appellate court will only depart from a magistrate’s finding of fact or determination of a witness’s credibility if satisfied that it is plainly wrong.

(2) The test in determining whether an error by the magistrate should lead to the appeal being allowed is whether it is just to quash the conviction.

(3) Absent the appellate court identifying any error by the magistrate, the appellate court must still perform its statutory duty of conducting a rehearing.  This requires the appellate court to be satisfied that on the evidence the guilt of the appellant has been proven beyond reasonable doubt, failing which the appeal must be allowed.

58.  At the trial, the appellant exercised his right and elected not to give evidence, so all relevant evidence came from PW1.

59.  The offence was committed in a place of work.  The relationship between the appellant and PW1 was one of superior and subordinate.  No other relationship existed between them.  PW1 had worked at that place for about two months.  She had not yet passed the probation period.

60.  At the material time, the appellant was briefing PW1.  It was not necessary to put his hand on that part of PW1’s back.

61.  As regards the question of whether the appellant deliberately placed his hand on the buckle of PW1’s bra, an important consideration is whether the appellant ought to know that was what he was doing.  PW1 testified that at the material time she was wearing a jacket.  There is no evidence about what kind of material it was made of, about its design or its thickness.  I must refrain from rashly making any speculation.  In these circumstances, given PW1’s evidence that the appellant pressed on it with force, logically speaking, the probability that the appellant knew what he was pressing on is high.  Nevertheless, the standard of proof is that I must be sure of it; a high probability does not suffice. Besides, I agree with Mr Wong’s submission that the fact that PW1 felt that something was pressing on the intimate clothing which she was wearing did not mean that the appellant had the same feeling.  If the appellant was not aware that he was pressing on the buckle of PW1’s bra, it would be difficult to draw the inference that he definitely had an indecent intention.

62.  Even assuming that the appellant knew what he was doing, but what kind of intention did such conduct reflect?  Did the appellant do that for deriving satisfaction from it?  It appears that it is hard to have a definite answer.  Did he do it for taking liberties with her and is this the only reasonable inference supported by the evidence as a whole?  Can it be said that there is no possibility that there is an innocent explanation?  I think the answer is no.  Brassieres and underwear can give rise to fantasies, but if a man places his hand on the shoulder of a female subordinate, this act implies that his hand was over the strap of her bra.  In the absence of other circumstances which point to an indecent intention, a right-minded person will not necessarily be sure that the man is indecently assaulting the female subordinate.  To press one’s hand on the buckle of someone’s bra is something different, but is it sufficient to enable a right-minded person to be sure that the person who did this had an indecent intention?  The magistrate was sure that it is. I will not readily subscribe to this conclusion.  I cannot overlook the fact that all the appellant did was placing his hand on that part of PW1’s back.  He did not do any other act, nor did he say any improper thing, and there is no evidence that he wore any expression or his body moved in any way that was obscene or at least upset anyone.

63.  Mr Wong also complained that the magistrate did not consider, nor did she make any finding as to whether the appellant genuinely believed that PW1 consented to his putting his hand on that place and in that manner.

64.  At the trial, the appellant did not give evidence, so there was no direct evidence from the appellant about his genuine belief and the defence case put to PW1 was only that the appellant had never put his hand on her back.

65.  In the English Court of Appeal case of R v Kimber[21], Lawton LJ remarked that in respect of this offence, the prosecution had to prove that the defendant intended to lay hands on the victim without her consent, and that therefore if the defendant might have genuinely believed that the victim was consenting, even though his belief was a mistaken belief, the prosecution would have failed to prove the charge.

66.  It is not necessary for a magistrate to consider this matter in every indecent assault case, even if the issue is whether the victim did not consent.  The point is whether there is any evidential basis for the issue of genuine belief to be raised (see HKSAR v TSANG SAI KIT[22]), and evidence relevant to this issue does not need to come from the defence.

67.  In the present case, PW1’s reaction was that after her back was touched she bent her body forward to keep it close to the working desk.  Apart from that, in the whole process which lasted about three minutes, she did not show any reaction by saying anything or moving in any way.  In the end, the appellant finished briefing her and walked away.

68.  In these circumstances, I consider that the state of the evidence is such that there is room for the issue of genuine belief to be raised.

69.  Mr Hui did not dispute that, but he submitted that the finding made by the magistrate that the appellant intended to indecently assault PW1 showed that she had also found that he did not genuinely believe PW1 consented to what he did.

70.  This is a very bold submission, but one with which I cannot agree.  When it is necessary to consider this issue, a magistrate has the duty to clearly state that he has considered it and to set out the reasons for the findings.  The magistrate in the present case did not do that.  I am not satisfied that she reached her final verdict only after she had taken the relevant considerations.

71.  According to the Court of Final Appeal case Chou Shih Bin v HKSAR[23], a magistracy appeal is dealt with by way of rehearing on the evidence before the trial court.

72.  In another Court of Final Appeal case, Raymond Chen v HKSAR[24], Mr Justice Litton, NPJ observed that a judge who was hearing an appeal could not, by relying only on the evidence as appeared in the transcript, take on a fact finding role and re-convict the defendant.[25]

73.  However, as pointed out by Mr Justice Ribeiro, PJ in Lee To Nei v HKSAR[26], where the magistrate would undoubtedly have entered the same verdict if he had correctly applied the relevant law and considered the case, an appellate court has power under section 119(d) of the Magistrates Ordinance[27] to confirm the magistrate’s decision.

74.  After careful consideration, I do not think that I should exercise the above-mentioned power in the present case.

Conclusion

75.  The conduct of the appellant certainly upset PW1.  Even other people who saw what he did would frown upon it and be disgusted.

76.  Notwithstanding that, there had to be sufficient evidence to establish each and every element of the offence and to prove that the appellant was the offender before he could be convicted of the indecent assault charges.  As far as the evidence of this case is concerned, the convictions are not safe.

76.   For the above reasons, I allow the appeal.  The convictions of all the charges are quashed and all sentences are set aside.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr P. Y. Lo, Barrister-at-law

[1] Contrary to section 122(1) of the Crimes Ordinance, Cap 200 Laws of Hong Kong.

[2] See paragraphs 28 and 29 of the Statement of Findings.

[3] At the trial, the appellant was represented by Ms Judy Ma of counsel.

[4] [1977] 1 QB 224.

[5] Page 171H of the appeal bundle.

[6] Page 148G of the appeal bundle.

[7] Paragraph 15 of the Statement of Findings.

[8] Page 171F-H of the appeal bundle.

[9] Paragraph 46 of the Statement of Findings.

[10] [1977] 1 QB 224.

[11] Page 151P-S of the appeal bundle.

[12] Page 170O-P of the appeal bundle.

[13] Page 162K-L of the appeal bundle.

[14] Paragraphs 56-58 of the Statement of Findings.

[15] [1989] 1 AC 28.

[16] Per Lord Ackner in Court.

[17] [1956] Crim L.R. 52.

[18] FAMC 60 & 61/2012.

[19] See paragraph 50 of this judgment.

[20] [2012] 4 HKLRD 383.

[21] [1983] 1 WLR 1118.

[22] [1997] 3 HKC 79[0].

[23] (2005) 8 HKCFAR 70.

[24] [2011] 2 HKLRD 189.

[25] The original text in English is “53. The Judge then, as it were, shed his appellate gown, took on a fact finding role, looked at all the evidence as appeared in the transcript and in effect re-convicted the defendant: solely on the basis of the transcript.  This is simply impermissible.”

[26] (2012) 15 HKCFAR 162.

[27] Cap 227, Laws of Hong Kong.