HKSAR v. LEE LAI MAN

HCMA709/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.709 OF 2005

(ON APPEAL FROM ESCC 1790 OF 2005)

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J U D G M E N T

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1. This is an appeal by the appellant against his conviction by Mr Eddie Yip on 29 June 2005 at Eastern Magistracy of one charge of indecent assault and one charge of common assault. 

2. The prosecution case was that the alleged victim, Miss Mok Man Yi (“PW1”), was indecently assaulted by the defendant as she waited to buy fish at a fish stall in the Canal Road Flyover Market around 2:30 p.m. on 8 February 2005 and that after she had grasped his sleeve to prevent him fleeing, he had assaulted her by a punch to her upper right arm. 

3. The prosecution case depended on the evidence of Miss Mok herself.  The defendant himself elected not to give evidence and called no witnesses. 

4. Miss Mok’s evidence was that she was in a queue at the fish stall at the material time.  She was wearing trousers.  She suddenly felt someone push his fist between her legs touching her between her anus and her vulva.  She turned around immediately while the man’s fist was still at that position.  She then pushed the man away.  She identified the man as being the appellant and said that he had been touching her with his right hand. 

5. She said that the appellant appeared to be intending to leave so she grabbed his left sleeve in the vicinity of his elbow with her right hand.  She had then accused the appellant of touching her and “feeling her up” and asked passers-by to report the matter to the police.  The appellant had not said anything but had then punched the middle part of her upper arm with his fist and then immediately fled away.  She had chased after him, pointing at him and shouting “indecent assault”.  She said that at one point in the chase when she was unable to catch up with him, he had turned around and said to her : “It’s obvious that I felt you up.  You are unable to catch me up.  Go home.”  She had then continued chasing him into Tang Lung Street where the street was blocked by a crowd of people present.  She said that the defendant stood with the people and “pretended to be ignorant”. 

6. Seeing that he was intending to leave, she had shouted out that he had indecently assaulted her.  A male passer-by had told him not to leave and had said that he should “clear up what happened with this lady first”.  People gathered to watch.  She said that some hawker control officers from the Food and Environment Hygiene Department assisted her    by preventing the appellant from leaving.  She made a report to the police by dialling 999 on her mobile phone. 

7. The appellant had attempted to discourage her from making a report by saying a number of things, amongst them were words to the effect that it was troublesome to attend court, he was free as he did not work and asking whether she would have time to attend court.  The police arrived after about 15 minutes.  

8. It was an admitted fact that after being arrested and cautioned, the appellant had said : “I didn’t indecently assault her.  She hit my left arm.  I intended to grab her.”  It was also an admitted fact that the appellant was a man of previous good character.  Two character reference letters were submitted by consent. 

9. Although he had not given or called evidence, the case that was suggested to PW1 was that it had been an accidental touch.  In his Statement of Findings the magistrate said this :

“The defence say that it was an accidental touch.  I do not accept that any accident could result in the defendant’s fist being put in between PW1’s thighs on a spot between her vulva and anus for 3 seconds.  Besides, when the defendant elected to give an explanation under caution, he never alleged accident.  I find that it was not, and could not possibly be, an accident.”

10. The 1^st ground of appeal advanced by Mr Leung for the appellant is that the magistrate was wrong to reject the defence of an accidental touch on the basis that :

(a)  no accident could result in the appellant’s fist being put between PW1’s thighs on the spot between her vulva and anus for 3 seconds; and

(b)  that when the defendant elected to give an explanation under caution, he never alleged accident. 

11. It is further alleged that the magistrate was wrong to find the exculpatory response of the appellant not credible without stating any reason. 

12. I find nothing illogical in the magistrate’s finding that the touching alleged by Miss Mok (which was not challenged) could not be an accident.  Taking all the features together, the position of the touch, the fact that it was done with the defendant’s fist and the duration of the touch, the circumstances were inconsistent with an accident.  Mr Leung for the appellant was unable to provide any convincing scenario in which such a touch might have occurred accidentally.  He questioned how Miss Mok could be sure that it was the appellant’s fist that was between her legs.  But her evidence in this regard was not challenged.  Indeed defence counsel himself refers to what she felt as being a “fist, in other words, the bony part of a human being’s hand” and Miss Mok had said that that was what she felt. 

13. If the touch to Miss Mok had simply been a brief touch on her buttocks, the fact that the appellant had not alleged an accident when he was cautioned by the police would not be significant.  He might have been unaware that he had touched Miss Mok and the simple denial that he had indecently assaulted her would be a normal reaction.  However the touching alleged by Miss Mok was one of which the appellant cannot have failed to be aware.  If there had been some extraordinary circumstance which led him accidentally to touch her in that way, then one would have expected him to say so to the police officer.  The reference by the magistrate to the absence of allegation of accident by the appellant was not a reference to an irrelevant consideration. 

14. It cannot be said that the magistrate had failed to state his reasons for not finding the exculpatory response of the appellant not credible.  He has just done so. 

15. I find no substance in this ground of appeal.

16. The 2^nd ground of appeal is founded on a remark in the course of the magistrate’s Statement of Findings as follows :

“Contrary to the defence submission, I regard that it might not necessarily be crowded in the market, say, a few inches or a few feet behind PW1, during the crucial few seconds when the touch was said to take place.” 

It is argued that this did not amount to a clear finding of fact regarding the density of the crowd, which was crucial to the defence of accident. 

17. It is correct that this passage does not amount to a finding of fact on this issue.  What it is though is simply a comment on the submission made by defence counsel on the evidence of PW1.  The reference to “defence submission” and the heading in bold type “On PW1’s Evidence” put that beyond doubt.

18. The magistrate did not recite the evidence of PW1 regarding crowding in the market.  She had agreed that the area in which she was standing was jammed with people.  She did not agree that there were a lot of people trying to move through the jam.  She disagreed that there was pushing or shoving.  She said that when she was touched by the appellant, she was in a queue.  She described it as being like a queue at a bank and that she was several inches in front of the appellant. 

19. There was no ground to suggest that the magistrate did not take the conditions in the market into account when reaching his conclusion.  His comment, though somewhat curiously worded, indicated that he did take the circumstances into account.  In any event, her evidence that it was the appellant who had touched her was not challenged and in the very next sentence, the magistrate went on to say that he did not accept that any accident could result in the appellant’s fist being put in between PW1’s thighs on the spot between her vulva and anus for 3 seconds. 

20. The 3^rd ground of appeal alleges that the magistrate was wrong to resolve what is alleged were “inconsistencies between PW1’s testimony and the medical report unfairly in her favour by speculation”. 

21. The evidence of Miss Mok was that her arm was red and swollen as a result of the assault by the appellant and that that had been seen by the doctor.  No doctor was called to give evidence.  A medical report of the doctor who saw Miss Mok at the Accident and Emergency Department in the Ruttonjee Hospital at 15:39 hours that day was admitted as Exhibit P2.  

22. The report referred to :

“Tenderness of right hand without associated bruise.  Range of movement of right shoulder was normal.  Muscle power of right shoulder was normal.” 

There was no reference to redness and swelling in the medical report. 

23. It is not correct to allege that there was inconsistency in the strict sense between the allegation of Miss Mok and the medical report of the doctor, but it is urged on behalf of the appellant that if a doctor had observed redness and swelling he would have referred to it in the medical report. 

24. The magistrate dealt with the matter in this way : 

“There is no evidence, whether from PW1 or any other source, as to the degree and extent of redness and swelling she had.  Nor do we know if Dr. Yuen would mention trivial redness and swelling in his medical findings.  He could have stopped at ‘Tenderness at right arm.’  He apparently focused on, and hence mentioned, even the absence of any ‘associated bruise’.  He did not likewise mention the absence of any redness and swelling.  Therefore I am unable to conclude the medical report whether there was not a trace of redness and swelling visible or Dr. Yuen simply considered it too trivial to be worthy of mention from a medical point of view.  As matters stand, PW1 cannot be criticized for making up an injury.” 

25. That was, in my view, a perfectly permissible analysis of the evidence.  It did not involve speculation.  The evidence as it stood did not indicate that Miss Mok was someone whose evidence was unreliable.  He accepted her evidence.

26. The 4^th ground of appeal is essentially an allegation of bias by the magistrate that he had abandoned his position of neutrality and descended into the arena.  As I understand this submission, it is alleged that he appeared to assume the role of opponent to defence counsel.

27. This allegation arises from the magistrate’s comments regarding the demeanour of Miss Mok (PW1) when she was giving evidence.  It was alleged that she appeared to have been in tears at one moment and at other times smiled and giggled.  Clearly this was a submission regarding her credibility.  The magistrate dealt with this submission in his Reason for Verdict in these terms :

“… Defence counsel also smiles at me and PW1 at times.  During his half-time submissions when he suggests that it might be an accident for such a touch to land on that spot of PW1’s body, two gentlemen of those instructing him break into a peel of laughter.  So I asked myself, on this solemn occasion of their client’s trial for serious offences, are defence counsel and those instructing him having a lot of fun in their roles in court?  I asked myself if PW1’s smiles and giggles in response to defence counsel’s unique way of questioning, is she to be branded a liar?  Can she take the path back to normal life after the incident?  Whilst defence counsel and those instructing him have been smiling and laughing on a more extensive scale, he will tolerate neither tears nor smiles of PW1.  I find no substance in this complaint about PW1’s demeanour.”

28. What the magistrate was saying amounts to this : That time had elapsed since the incident and simply because she smiled or giggled when others in court were doing the same thing did not indicate that she was not telling the truth. 

29. Mr Leung does not suggest that this was not a proper conclusion for the magistrate to draw.  What he criticises is the impression given by the way in which the magistrate expressed himself. 

30. I accept that the magistrate could have expressed this conclusion more appropriately.  I agree that the magistrate’s manner of expression could be described as argumentative.  The reference to the conduct of those instructing defence counsel had the appearance of criticism of their account.  Such criticism was irrelevant to his consideration of the credibility of PW1.  

31. However this was an isolated matter.  It is not suggested that this formed part of a pattern of conduct by the magistrate in the conduct of the trial. 

32. The ultimate question is whether it would have led a fair-minded and informed observer to conclude that there was a real possibility that the magistrate was biased.  I find it would not.

33. The 5^th ground of appeal is based on an allegation of gross negligence by defence counsel at the trial.  Miss Mok (PW1) had made a witness statement to the police at 17:30 hours at Wanchai Police Station on the day of the incident.  It is alleged that by failing to cross-examine PW1 on discrepancies between that statement and her evidence-in-chief or otherwise, put those discrepancies before the court, the appellant was denied a fair trial and the appellant’s conviction is unsafe. 

34. Mr Leung did not persist in arguing that the failure by the magistrate to cross-examine about all of the matters referred to in the Re-Amended Perfected Grounds of Appeal Against Conviction amounted to the gross negligence by defence counsel, but he did maintain that defence counsel’s failure in respect of some of the matters did.  The matters to which he referred in argument were as follows :

(1)  PW1 had given evidence that when she first turned round, the hand of the defendant was still at her lower part.  In her statement to the police, she had said : “As soon as I got that feeling, I immediately turned around to my right hand side to look at my buttocks.  I saw a hand withdrawing from my anus position.”

(2)  In the witness statement after referring to seeing the right hand of the man (referred to as Mr A) withdrawing his hand from her anus position, there was a sentence crossed out which read “Mr A was holding a vest-shaped plastic bag in his right hand”.  It was submitted that cross-examination about this deleted passage by defence counsel might have raised the possibility that the appellant had been carrying a plastic bag, the lower part of which might have touched Miss Mok and caused her to believe that she was being indecently assaulted. 

(3)  In her witness statement, PW1 had failed to refer to the appellant as having told her that it was troublesome to attend court but he was free to do so as he did not work and, having asked her whether she worked, and if she would have time to attend court.  On the contrary in her witness statement PW1 had stated that at a time after she had intercepted the appellant and people had gathered he had said : “So many people, (so) crowded, who bothered to take advantage of you!”  She had also said that when waiting for the police to arrive the appellant had said : “It is just that I was in a hurry”.  These had then followed the sentence that had been deleted “An apology would do.”  It is suggested that all these matters should have been raised by defence counsel in cross-examination as they were consistent with an accidental touching. 

35. An affidavit of defence counsel was put before court.  He accepted there were discrepancies between the witness statement and the evidence of PW1 in court.  He said (and this was accepted by Mr Leung for the appellant) that he did carefully consider the advantages and disadvantages of pursuing this line of cross-examination and decided that, on balance, the advantages outweighed any benefit.  He said that he was concerned that if he confronted the witness with her statement, the court might exercise its discretion under section 14 of the Evidence Ordinance, Cap.8, to require production of the statement and that it would open the way to re-examination, which might result in prejudicial matters being brought out.  He feared that the court would then see consistencies in PW1’s account.  He was particularly concerned that the court’s attention should not be drawn to the consistency in PW1’s account about the appellant’s taunting her in a street.  The witness statement of PW1 described the appellant as having said : “Obviously I was taking advantage of you.  You can’t catch up with me.” 

36. He said he was also concerned about what PW1’s evidence might be if her attention was drawn to the sentence that had been deleted, referring to the appellant’s offer to apologise. 

37. He gave the reason why he did not pursue a line of cross-examination to suggest, on the basis of the deleted sentence, that PW1 may have been bumped accidentally by a shopping bag.  This was mainly because the description given by PW1 in her statement of being touched by what must have been a fist because it was warm and bony, at or near her private parts, was consistent with her evidence in court.  He concluded it would be most unlikely to be a shopping bag in the circumstances.  PW1’s description of what she felt touching her was also the reason he did not pursue the reference in her statement to seeing the appellant’s hand withdrawing rather than being still touching her.  Defence counsel said that his approach was to demonstrate that PW1 was an emotional and unreliable and possibly mistaken witness and to rely on the conflict between her evidence and the medical report and the absence of corroboration. 

Legal principles

38. The legal principles applicable where the conduct of his or her counsel at trial is advanced as a ground of appeal by the appellant were discussed by Sir Thomas Eichelbaum NPJ in Chong Ching Yuen v. HKSAR, FACC7/2003.  He said this :

“47.  To follow the concept of error of counsel as a ground of appeal, it is necessary to understand the authority of counsel in regard to the conduct of the trial.  This was well described by Gleeson CJ in R v. Birks (1990) 48 A Crim R 385, a decision of the Court of Appeal of New South Wales:

‘In our system of criminal justice a trial of an accused person is conducted in the manner of a contest between the Crown and the accused, and that trial has many (although not all) of the features which attend civil litigation conducted in accordance with what is sometimes described as the adversary system of justice.  To a large extent the parties to such proceedings are bound by the manner in which they conduct them.  It is the parties who decide, for example, what information will be put before a tribunal of fact, and the tribunal bases its decision on that information.

As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted.  Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics.  The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case.  For example, in Rondel v Worsley [1969] 1 AC 191 at 241, Lord Morris of Borth-y-Gest quoted with approval the following statement of the Lord President in the Scottish case of Batchelor v Pattison and Mackersy (1876) 3 R (Ct of Sess) 914, concerning the role of an advocate:

“… His legal right is to conduct the cause without any regard to the wishes of his client, so long as his mandate is unrecalled, and what he does bona fide according to his own judgment will bind his client, and will not expose him to any action for what he has done, even if the client’s interests are thereby prejudiced.”

In Halsbury’s Laws of England (4th ed), Vol 3(1), par 518 at 420, it is stated that:

“… a barrister is ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted.  Unless and until his instructions are withdrawn, counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considers best for the interests of his client.  This authority extends to all matters relating to the action, including the calling and cross-examination of witnesses, challenging a juror, deciding what points to take, choosing which of two inconsistent defences to put forward, and even to agreeing to a compromise of the action, or to a verdict, order or judgment.”’

48.  It follows, almost inevitably, that ordinarily, a tactical decision by counsel which, in hindsight, ought to have been made differently, will not provide any ground for appeal, any more than if such decision had been made by the defendant personally.  Nor will other forms of mere error of judgment. 

49.  Nevertheless the courts have recognized that in some exceptionalinstances, an error of sufficient proportion and consequence will enable the court to intervene and avert a miscarriage of justice.  To describe this ground, the expression “flagrant incompetence” has generally been used, …”

He went on to describe the use of the term “flagrant competence” as a convenient form of shorthand and to say, more often than not, assertions of incompetence relate not to the general competence of counsel but to the manner counsel dealt with a specific issue during trial. 

39. He went on to say :

“… The expression ‘flagrant incompetence’ rightly underlines an appellant’s need to show much more than a mistake, an error of judgment, or a decision to follow one course when in hindsight another would have been preferable.  But it should not deflect attention from the most critical point, namely given that there was a significant error of some kind, what will be decisive is the effect of the error on the trial.  As Lord Steyn said, in delivering the judgment of the Privy Council in Boodram v. The State [2002] 1 Cr App R 103:

‘… the general principle requires the court to focus on the impact of the faulty conduct.’  (at p.118)

The bottom line is that to succeed, an appellant must be able to show he or she received less than a fair trial. …”

40. I have considered counsel’s affidavit, the statement allegedly given by PW1 to the police on the day of the incident and the submissions that have been made to me.  PW1’s statement is not a statement that taken as a whole suggests the possibility of an accidental touch by the appellant.  As in her evidence at the trial, she was describing a fist pressing against the area of her private parts for about 3 seconds until she pushed the appellant away.  In her statement, she had even described the pressing as having been done with great force, a detail which had not been brought out at trial.  She described the appellant as having run away and having taunted her.  In the course of the chase he accepted that although he had taken advantage of her, she would not be able to catch him.  It was only after he had been intercepted by a passer-by and had attempted again to flee and people had gathered that he had said any words that might be considered suggesting accident. 

41. Furthermore, this is not a case where both the complainant and the appellant had given their accounts of what had occurred and that there were matters in the complainant’s statement to the police consistent with the appellant’s version which had not been brought out by his counsel.  In this case the appellant, having heard the evidence of PW1, elected, as he was entitled, not to give evidence.  There was, therefore, no explanation from the appellant why he touched Miss Mok in the way he did, why he had immediately fled and why he had uttered the alleged words to her during the chase.

42. It may be that in retrospect defence counsel would now decide to cross-examine PW1 on the basis of what she said in her statement that the appellant had said when he was finally intercepted.  It may be that many, even most, other counsel would have done so, but I do not find that counsel’s tactical decision at that time was one no competent counsel would take nor one that denied the appellant a fair trial.  I dismiss this ground of appeal. 

43. I am satisfied that the conviction of the appellant is not unsafe or unsatisfactory.  I dismiss the appeal against conviction.