HKSAR v. NG WAI FUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 74 of 1998

(On appeal from EJ 700155 of 1997)

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J U D G M E N T

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1. The Appellant is a 14 year old boy. In November last year he was tried before James Lee Esquire in the Magistrate's Court at Eastern on one charge of indecent assault. At the end of the trial, he was convicted. Reports were called for and he was subsequently placed on probation for a period of 18 months. He now appeals against his conviction.

2. The broad circumstances were these. The victim named in the charge was one of the two girls sitting next to each other on a bus while the Appellant was one of four boys sitting behind the two girls. There was some horseplay between the boys and somehow or other one or the other of the boys accidentally hit one of the girls on the head. This led to angry words between the boys and the girls. Later the Appellant, using his fingers, touched the victim's buttocks twice. Her evidence as accepted by the magistrate was consistent only with indecent assault by him on her. His evidence, which was rejected by the magistrate, was that his touching her was accidental in the course of his attempting to tie what was called a "tape" of the victim's companion's dress to the metal bar of the seat: this being in fun and to get his own back for the scolding which the girls had given the boys.

3. It was a question of fact. Despite everything urged by counsel for the Appellant I do not feel able to disturb the findings of fact made by the magistrate who, unlike this Court received the evidence at first-hand seeing and hearing the witnesses.

4. As to the argument that the magistrate failed to make a finding as to indecency, my view is that while the magistrate could have expressed himself more fully, he did in fact make the necessary finding: that flows simply from the circumstances once the defence of accident was rejected. I dismiss the appeal.