THE QUEEN v. LAU WAI TUNG

HEADNOTE

INDECENT ASSAULT - test of indecency - not confined to parts of body which are "overtly sexual"; but extends to any act which, in all the circumstances of the particular case, an ordinary observer would regard as an affront to customary standards of modesty.

CORROBORATION - no requirement that prosecution must affirmatively disprove the possibility of collusion between witnesses, before accepting evidence as corroborative, in the absence of positive suggestions or factors pointing to something more than a speculative possibility.

PRACTICE - duty of prosecutor to disclose previous inconsistent statement of prosecution witness.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 763 of 1985

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JUDGMENT

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1. On the 1st August 1985 the appellant was convicted of indecently assaulting a female ("Miss Leung") while she was travelling on a bus. Miss Leung complained that the appellant who was sitting behind her, had pushed his hand forward between the side of the bus and the back of the seat on which she was sitting, and had kept the fingers and palm of his hand on the left side of her body for several seconds before withdrawing it. According to Miss Leung, this was the second time that the appellant had touched that region of her body. Earlier, she had felt a touch underneath her left armpit. But, being unsure whether it was deliberate or accidental, she merely whispered her doubts to her friend ("Miss Yip"), who was sitting to her right on the same seat, and asked her to pay attention to the left side of her body. Miss Yip also gave evidence before the learned magistrate and, inter alia, testified as follows:

"I then saw a hand coming from behind her and moving horizontally. The hand touched her three inches below her left armpit. The hand touched her for one or two seconds. It was the defendant’s hand which was touching her. When the hand was later withdrawn I turned to face him. The palm of the hand was touching her. "

2. That, in essence, was the evidence for the prosecution. The appellant gave evidence as to his good character and called a witness in support thereof. He denied touching Miss Yeung deliberately or indecently, but acknowledged that he might have done so accidentally while his hand was resting on the hand-rail of the seat in front of him. There was a vague or indirect suggestion that such contact might have resulted from the unsteady motion of the bus as it turned from Nathan Road into Salisbury Road and approached the terminus at the Star Ferry.

3. The appellant now appeals against his conviction and relies upon "revised" grounds of appeal, dated the 8th October 1985 and submitted in substitution for those filed on the 8th August 1985. They can be summarised as follows :-

4. It is, I think, fair to remark that these grounds bear little relationship to the original grounds of appeal, or to what took place at the trial before the learned magistrate. The appellant's solicitor seems to have confined his questions and submissions to whether the appellant's alleged contact with Miss Leung was accidental or intentional, and the existence of certain discrepancies in the evidence of Miss Leung and Miss Yip. No reference was made to the need or desirability for corroboration or to the essential features of indecency.  It is, therefore, not surprising that the learned magistrate did not expressly touch upon these aspects in his statement of findings, or indicate that he had warned himself of the possibility of collusion between Miss Yeung and Miss Yip. In the circumstances of the present case, I do not think that he can be fairly criticised for such omissions. Furthermore, for reasons given later, I do not think that by themselves they would justify an appellate court substituting its views of the evidence, as it appears from the record, for those of the learned magistrate, formed in obviously more favourable conditions. On the basis of the evidence placed before the learned magistrate it was open to him to find that there was contact between the appellant's hand and Miss Yeung's body, and that such contact was deliberate or intentional. In my view, the only aspect of the second of the appellant's revised grounds of appeal which merits any consideration is whether that assault was accompanied by any circumstance of indecency.

5. The only indication that the learned magistrate addressed his mind to this important feature of the alleged offence is to be found in his general conclusion that the prosecution "had proved all the essential elements of the offence of indecent assault". In effect, Mr. Keane has attacked this conclusion as wholly inadequate, because it amounts to saying that merely touching a woman on the side of her body, without her consent, is an indecent assault. In his submission, such bodily contact lacks the quality of indecency because it is not "bvertly sexual", and it cannot take on that quality merely because the complainant thinks that the unwelcome contact with her body is motivated by a sexual purpose.  I would respectfully agree that the complainant's interpretation of the appellant's conduct is not really material. However, it does not appear that the learned magistrate relied on Miss Yeung's belief that the appellant was a "dirty guy " as providing that essential feature of the charge. That part of her evidence was not even singled out for emphasis by the learned magistrate, unlike other passages on which he clearly relied.

6. With the exception of Kwok Hung [1978] HKLR 173, and Sutton [1977] 1WLR 1086, I was not referred to any authorities directly on the question of what constitutes indecency. But I was referred to the discussion of this topic which is found in the second edition of Glanville Williams' Textbook of Criminal Law at pages 230-232. Mr. Keane contended that certain parts of the female anatomy could be touched by a male without his being at risk of being convicted of indecent assault. Principally, he contended that the "off-limits" region was confined to the breasts and private parts. Apart from seeking to rely on Miss Yeung's apparent reaction to, or interpretation of, the appellant's alleged behaviour, Miss Cheung submitted that the mere fact that the appellant had touched that part of the body of a complete stranger on a public bus suggested an indecent motive or purpose.

7. In my view, the answer to the question whether the learned magistrate was entitled to come to the conclusion that the appellant's touching of Miss Yeung was indecent is to be found somewhere between the extremes of these submissions. It is essentially a matter of fact, and little, if any, assistance is to be derived from decided cases in other jurisdictions, because there may be different levels of tolerable behaviour and legitimate differences as to what an ordinary observer would regard as an affront to customary standards of modesty. The fact that Miss Yeung was a complete stranger does not, in my view, have any bearing on the question of indecency. At most, it precluded the appellant from relying on implied consent, or a belief in such consent. At the same time, I do not think that it is helpful, and for the purpose of disposing of the present appeal certainly not necessary, to specify the anatomical regions which can or cannot be touched without there being any circumstance of indecency. To confine the test of what is capable of amounting to indecency to "overtly sexual" acts like touching the breasts or "private parts", is in my respectful view, far too narrow. The act cannot be divorced from the circumstances in which it takes place. It should not be viewed in the abstract or in isolation. For this reason, I do not think that anything useful can be derived from considering whether the mere act of kissing a bashful maiden is an indecent assault, upon which question there appears to be some division of opinion in academic and judicial circles. In my view, much would depend upon whether the evidence indicated that the osculation took the form of the so-called "French kiss" or the "kiss of life", or was bestowed as an expression of respect or peace, or as a manifestation of love or lust. With the utmost respect, Mr. Keane's attempt to classify the appellant's act as merely touching the side or flank of Miss Yeung's body is unacceptable, because it wholly disregards the context in which it occurred. On the basis of the evidence, which the learned magistrate clearly believed and acted upon, the appellant intentionally, and surreptitiously, placed the bulk of his hand upon a part of Miss Yeung's body which must have been fairly close to her left breast. Such contact was sufficient, in my view, to constitute an indecent assault.

8. At the trial the real and only substantial issue was whether the appellant's contact with Miss Yeung's body was accidental or intentional. Having concluded that Miss Yeung and Miss Yip were "truthful, accurate and reliable" and that the appellant's evidence, where it conflicted with that of Miss Yeung, was "untruthful and unconvincing", the learned magistrate's findings of primary facts would seem to be unassailable in this court. Indeed, on the basis of those conclusions, it would have been open to the learned magistrate to convict the appellant solely upon the evidence of Miss Yeung subject to warning himself of the danger of so doing. But, he did not indicate that he was satisfied of the appellant's guilt simply on that basis. Instead, he proceeded to find that Miss Yeung's evidence was corroborated by that of Miss Yip. By looking for corroboration, one can perhaps surmise that the learned magistrate had some reservations regarding Miss Yeung's evidence. In any event, his finding that Miss Yeung's evidence was corroborated by Miss Yip has been attacked on the ground that it was  not established beyond reasonable doubt that Miss Yip's evidence came from an independent source or without a real chance of collusion with Miss Yeung.

9. In support of the latter proposition, Mr. Keane referred to certain proposition set out in Phipson on Evidence (13th ed) at pages 729-731. These appear to be based on dicta in D.P.P. v. Kilbourne [1973] A.C.729 and Boardman v. D.P.P. [1975] A.C.421, which are conveniently set out in the judgment of Lawton LJ in Johannsen [1977] 65 Cr. App. Rep. 101 at 104. Although these dicta were uttered in the context of the special situation of an accused person charged with offences involving a number of victims, and bearing certain striking similarities, I am prepared to accept that the absence of collusion is a necessary feature of any evidence relied on as corroborative, whether or not the case involves situations where corroboration is required as a matter of law or practice. But, beyond the special situations involved in these three cases, I do not think that there is any authority, which requires the prosecution to disprove affirmatively the possibility of collusion between two witnesses before the testimony of one can be accepted as corroborative of that of the other, or which requires the tribunal of fact to expressly warn itself of the possibility or chance of collusion. In the absence of any cross-examination of Miss Yeung or Miss Yip suggesting that they had put their heads together to concoct a false account, or any other feature which would alert the tribunal to that possibility, such collusion was, on the basis of the material before the learned magistrate, no more than a speculative possibility. (Cf. Chan Chun-nam, Crim. App. No.454 of 1984, 1st February 1985). In that kind of situation, the tribunal of fact requires, in my view, only a scintilla of evidence to satisfy itself that the evidence can be properly accepted as corroborative. In the present case, the fact that there were discrepancies in the evidence of the two girls tended to rule out the possibility of collusion between them. The facts that they were friends, youngish women involved in a complaint of a sexual nature, and had given similar or identical evidence, were not, in my view, sufficient to require the learned magistrate to do more than he did to evaluate their evidence before accepting Miss Yip's evidence as corroboration. The only feature of Miss Yip's evidence which might throw doubt on its corroborative value is the existence of a discrepancy between her evidence and her previous statement to the police. As the learned magistrate was unaware of this, and for the reason I have given, there is no substance in the third ground of appeal. Indeed, in reality the appellant's complaint in this regard is related to, or forms part of, his first ground of appeal, to which I now turn.

10. Subsequent to the trial, the appellant's solicitors obtained a copy of the written statement made by Miss Yip to the police on the day of the alleged offence i.e. the 14th June 1985. It is common ground that the court prosecutor did not disclose to the appellant's solicitor the existence or contents of that statement at the trial. In fairness to him, his professionally qualified adversary, the appellant's solicitor, did not call for its production at that time. It may be that the statement was not disclosed because the court prosecutor did not consider that there was any inconsistency or any material inconsistency, as Miss Cheung contended at the hearing of this appeal. With respect, the prosecutor's assessment of the difference between the statement and the evidence of a witness, even if correct, does not justify failure to disclose it to the defence. The difference may be immaterial to the prosecution's case; yet most material to that of the defence. Even the slightest inconsistency may be a very powerful weapon in the hands of a skillful cross-examiner.

11. In the present case, there was, in my view, a prima facie material inconsistency between Miss Yip's statement and her evidence regarding the alleged second touching by the appellant. All that she said about this in her statement was:-

"Until the bus reached its terminus at Tsimshatsui Ferry Pier, I suddenly saw the left hand of [the appellant] withdrawing from the left side of the body of [Miss Yeung] . "

12. The reference to the "left side of the body" is ambiguous, but this sentence suggests that Miss Yip merely observed the last stage of this incident, i.e. the withdrawal of the appellant's hand. There is no mention of seeing it coming from behind, horizontally, or touching Miss Yeung three inches below the armpit for one or two seconds. I appreciate that, if taxed with these differences at the trial, Miss Yip might have given satisfactory explanations for the ambiguities and/or inconsistencies. Equally, her credibility and reliability as a witness, on which the learned magistrate clearly relied, might have been completely demolished, and some support provided for the suggestion of collusion between her and Miss Yeung.

13. In Szeto Ming [1978] HKLR 61, the conviction of the appellant was quashed, and a re-trial ordered, because the prosecutor had failed to disclose a "material and potentially fatal discrepancy" between the evidence of a prosecution Witness and her previous written statement made to the police. In that case, the appellant was not legally represented. But, in my view, the fact that an accused person is legally represented does not relieve the prosecutor of his duty to disclose such material. In Mohamed Fiaz Baksh [1958] A.C.167, at least one of the defendants was represented by counsel at the trial. Yet the prosecution's failure to disclose previous inconsistent statements of prosecution witnesses resulted in the convictions being quashed. Nor in my view, can it make any difference that the prosecutor is not legally qualified. Court prosecutors in Hong Kong receive some training from Crown Counsel before conducting cases in the magistracies. Such training presumably includes guidance on their duties with regard to the presentation of the evidence and the calling of witnesses. (Cf. Archbold's Pleading, Evidence and Practice in Criminal Case (42nd ed : 1985) Chap 4 Section X and para. 4-179). In the present case, it cannot be said with confidence that the discrepancy was "potentially fatal" to the Crown's case. But, in my view, it was sufficiently material to warrant the quashing of the appellant's conviction. There is no room for applying the proviso, and the only remaining question is whether there should be a retrial.

14. Miss Cheung contended that the discrepancy was such as to call for a retrial. She also contended that it did not call for a retrial, apparently because the discrepancy was not material or potentially fatal. For the reasons I have already given, I reject that submission. Mr. Keane submitted that the alleged offence was not sufficiently grave and it was not in the public interest to order a retrial with the further worry and expense. I have given this question long and anxious consideration. It is, in my view, particularly unfortunate that Miss Yip's previous statement was not disclosed at the trial. In Ng Yuk Kin [1955] HKLR 49, a particularly serious case of rape, Gould Acting C.J. said (at p.60):

"It is in the interest of the public, the complainant, and the appellant himself that the question of guilt or otherwise be determined finally by the verdict of a Jury, and not left as something which must remain undecided by reason of a defect in legal machinery. "

15. That observation, which found approval in the Privy Council in Au Pui-Kuen v. tt-Gen [1979] HKLR 16, 19 is one which I have considered very carefully, as well as the cogency of the evidence adduced at the appellant's trial and its probable weight in the event of a retrial. At the same time, the power to order a retrial is, in my view, one not to be exercised too freely. In the present case, I do not think that the heinousness of the alleged offence is very great, and I do not think that the public interest requires that the witnesses and the appellant be subjected to the ordeal of a further trial, especially when the first trial has been rendered defective due to the fault of the prosecutor. Furthermore, in addition to the undisclosed inconsistency, there were certain discrepancies in the evidence of the two young girls. In his Statement of Findings the learned magistrate stated that the Court "gave full weight" to such "apparent inconsistencies". Up to a point, that is so. But nowhere does be indicate how he evaluated the glaring contradiction between Miss Yeung and Miss Yip as to the former's reaction to the second touching. According to Miss Yeung, she turned round and remonstrated angrily with the appellant. According to Miss Yip, her friend merely stared at the appellant and did not say anything to him. In all the circumstances of this unusual case, the appellant's conviction is unsafe and unsatisfactory. For the reasons given, I do not propose to order a re-trial. The appeal must be allowed and the conviction quashed. Under section 120 of the Magistrates Ordinance (Cap. 227), I order the Respondent to pay the Appellant's costs of the appeal only, to be taxed if not agreed.