HKSAR v. WONG CHUNG KA

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1105 OF 1997

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J U D G M E N T

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1. The Appellant in this matter, Wong Chung-ka, a man in his early twenties, was convicted after trial of the offence of indecent assault contrary to Section 122(1) of the Crimes Ordinance, Cap. 200, and now appeals against that conviction.

An outline of the incident.

2. On 11th July 1997 at about eight o'clock in the evening, a young woman named Cheung Ching-yee, who was at that time a student at the Baptist University, went to the university with her boyfriend. The purpose of her visit was to clean out her locker which was in a corridor area on the 5th floor of the science tower.

3. A set of male and female toilets was located close to her locker. In order to enter either, it was necessary first to go through an outer door. On the other side of this door, there were two doors which were at an angle to each other. The one door bore the standard image of a man to indicate the male toilet, the other bore the standard image of a woman to indicate the female toilet. Photographs exhibited at trial showed these images to be clearly visible.

4. Wishing to make use of the female toilet, the young woman walked across to the outer door. However, as she was about to go through it, the door was suddenly opened from the other side and a man came out. The young woman testified that the surprise of it gave her a shock. She said that she was facing the man. She said that the fluorescent lighting was bright. As he had inadvertently given her a surprise, the man apologised to her, saying sorry. The young woman said that she did not reply but went past him and through the inner door into the female toilet.

5. It should be mentioned that at this time the young woman's boyfriend, a man named Wong Ka Lok, was waiting for her in the corridor area. It was his evidence also that he saw a man in the immediate vicinity of the toilets. The man was walking, he said, and he was walking too. He said, however, that he did not pay much attention to the man.

6. Having entered the female toilet, the young woman made use of one of the cubicles. While she was still in the cubicle, she said she heard somebody else entering the female toilet. When she came out of her cubicle, the young woman said that she went across to the wash basins in order to wash her hands. There were mirrors set above the wash basins and it was her evidence that, in the reflection of these mirrors, she saw a man come out of the cubicle which was next to the one she had used. She said that she recognised him as the man who had walked through the outer door to leave the toilets just minutes before. That man, she said, was the Appellant.

7. Before the Magistrate, therefore, the young woman made two identifications of the Appellant: first, as the man who walked out of the toilet area through the outer door, giving her a shock and, second, as the man she saw shortly thereafter inside the female toilet. It was the Appellant's case (to which I shall refer in greater detail shortly) that he had come to the toilets as a stranger in the building and had only entered once for the legitimate purpose of using the toilet to urinate. It was his defence that he entered the female toilet in error. While, therefore, he did not contest the second identification, the correctness of that first identification became a central issue at trial.

8. As to what transpired inside the female toilet, the young woman said that initially the Appellant took several steps in the direction of the exit. Then, however, he rushed towards her. He had a brown paper bag in his hand which he attempted to place over her head. He only managed, however, to pull it down over her head to about the level of her eyebrows before it was torn.

9. There was a struggle. The young woman testified that she was frightened and called for help. She said that the Appellant attempted to grab her hand and in the struggle he pushed her backwards against a section of partitioning with such force that she hurt her shoulder. She said that the Appellant still came towards her and in the struggle she fell to the floor. As she was still shouting for help, it was the testimony of the young woman that the Appellant used a hand to cover her month. At the same time, she said, the Appellant used his other hand to reach down to her private parts and to scratch them once. When this happened, she said, she was lying on her back; the Appellant was above her but not pressing against her body.

10. At about this time, in answer to her cries, she said that she heard somebody outside the door of the female toilet. She said that the Appellant heard it too and rose to his feet. He did so at the moment her boyfriend entered. The young woman said that she heard the Appellant protest that it was some sort of misunderstanding. Upon hearing this, she said, she told her boyfriend that the Appellant had indecently assaulted her.

11. It was the prosecution case that the Appellant then attempted to flee. However, he was pursued by the boyfriend and another young man who had been alerted by the cries for help. These two men seized the Appellant who was struggling. According to this second young man, the Appellant persisted in his attempt to flee and, as a result, what may be described as a moving struggle them took place. During cross-examination, when asked if he and the boyfriend had purposefully assaulted the Appellant, the second young man denied any such intention. In part, the transcript of his cross-examination reads:

Q. How long have you been taking karate lessons? How long: how many months or years?

A. Three weeks.

Q. And you don't remember whether you assaulted the defendant or not? Is that correct or wrong?

A. I did not say it. I just told you that we had a struggle.

Q. Did you assault the defendant at any time?

A. I had not assaulted him.

Q. How did you explain your injury to your right hand, and your right hand only? That's all you told the police that you suffered injuries - right hand, the punch, here.

A. I have mentioned earlier the defendant pushed me and the victim's boyfriend away with his hand and he kicked me and the victim's boyfriend away. Three of us had once fallen on to the floor and I believed that I sustained injuries in the course of it.

12. It is not disputed that the Appellant was taken to an outside area and was physically restrained there until the police arrived. The police constable who arrived at the scene said that he noticed the Appellant was bleeding from the head. He arrested the Appellant for indecent assault and cautioned him.

13. The Appellant chose to give evidence. That evening, he said, although he was not a student there, he took a short cut through the university campus in order to catch a bus. It was drizzling and he removed his glasses so they would not get wet. The Appellant said that he wanted rather urgently to go to the toilet and sought directions from a student. This was how he came to the outer door of the toilet. He said that he had not yet put on his glasses and, when faced by the two inner doors, he mistakenly chose the door leading into the female toilet.

14. He said that he went into one of the cubicles and, when he came out, he saw the young woman. In his embarrassment, he walked towards the exit. At the same time he said he was sorry. However, the young woman shouted. He tried to explain that it was just a misunderstanding and, in the course of doing so, raised his hands. This obviously must have been misinterpreted by the young woman who immediately took the offensive and assaulted him. In his evidence-in-chief the Appellant described what happened in the following terms:

"I intended to tell her that it was only a misunderstanding. I intended to raise up both of my hands to express that I was sorry and I had no other intention. Before I finished saying, "I'm sorry," I had not yet fully raised up my hands, was just in the middle of the action of raising up may hands, and she kept hitting me. And then she hit me. I fended her off and she hit me, and she dragged the paper bag that I had in my hand. It was torn and she threw the paper bag away, and at the same time she treaded on me once and she fell."

15. He then went on to say the following:

"After she fell, I walked towards the door. When I opened the door, a boy rushed in. I said, It's only a misunderstanding. I wrongly entered the toilet carelessly. Before I finished saying those words, he punched me right on my head."

16. The Appellant then described how he was assaulted by the boyfriend and by the second young man who came to assist. He did not speak of attempting to flee.

The identification evidence.

17. As I have indicated, the young woman's identification of Appellant as the man she saw pushing open the outer door to leave the toilet area at the time she was first entering was a central issue of dispute. The reason is obvious. If the Appellant had been seen coming out of that door, it fatally undermined his evidence that he only entered the toilet area once and then by mistake. In this regard, in his Statement of Findings, the Magistrate said the following:

"... when I considered the issue of identification of the man PW1 [the young woman] saw when she first pushed open the door to the tiny hall, I had taken into account that even an honest witness could make mistake on identification; so I had to look into the issue carefully. Having considered the Turnbull guidelines and the circumstances in which the identification was made; including the lighting condition; length of observation; PW1 was stunned by the male's sudden appearance; she never came across that person prior to this incident and the time lapse in between for seeing him again etc. - I also reminded myself of the possible danger of wrong identification - I was satisfied that the quality of identification evidence was good and I found that the man PW1 saw when she pushed open the door to the tiny hall was the same man she subsequently saw in the female toilet ..."

18. These findings were criticised by Mr. Cheng Huan SC, who appeared for the Appellant, on two grounds; first, because the quality of the identification evidence was inherently poor and thereby suspect and, second, because the Magistrate did not consider the two identifications separately; that is, the identification by the young woman and her boyfriend.

19. With respect to the vigour and intelligence used to argue the points, I do not believe the Magistrate can be criticised in respect of either. The Magistrate clearly warned himself of the dangers of relying on identification evidence in this kind of circumstance. He had the benefit of hearing the young woman give her evidence and, in my judgment, was entitled to make a finding of fact that the young woman had made a correct identification. I am further satisfied that he was entitled to come to the conclusion that 'the quality of identification evidence was good'. In this regard, it must be remembered that the lighting was bright, that the young woman saw the Appellant fact-to-face and at a close distance. The Appellant spoke to her. Of significance was the fact that the encounter gave the young woman a shock; there was therefore good reason for her to remember the face and to recognise it again just a few minutes later when she saw the Appellant in the female toilet.

20. As for the criticism that the Magistrate failed to consider the two identifications separately; that is, the identification of the young woman and her boyfriend, it is clear from his Statement of Findings that the Magistrate did not consider the boyfriend's purported identification at all. He had good reason for ignoring it too as the boyfriend had said more than once that he had not paid any real attention to the man he saw. An ordinary reading of the Magistrate's findings supra shows that he only gave consideration to the identification evidence of the young woman.

Inconsistencies in the testimony of the prosecution witnesses.

21. In his Statement of Findings, the Magistrate said the following in respect of the evidence of the three principal prosecution witnesses (PW1, the young woman; PW2, the boyfriend; PW3, the second young man):

"I was satisfied that PWs 1 to 3 were honest witness. It was suggested that there were inconsistencies, discrepancies and omission in the relevant police statements. I had considered all those matters carefully and I found none of them would affect the creditability of PWs 1 to 3 and they were all understandable. Main suggestion were (a) there was discrepancy between PW1 and PW2 about whether discussion were made about the matter, however, different people might have different understanding of the term of discussion and due to long lapse of time and PW1 was vary frighten in the incident, it was understandable that different answers were given. (b) There was discrepancy in PW1 and PW2's evidence as to whether PW1 told PW2 how the incident happened inside the toilet before the arrival of the Police. I found such discrepancy was understandable as at that time, it would be normal that somebody in such a state, could not recall such a minor matter. On the contrary, I would be surprised that if a person in such a circumstances could be that clear to recall every minor points in details. (c) As to the point of inconsistency in whether PW1 shouted for "help" or "indecent assault", in such a sudden and dangerous situation, it was understandable that one could not clearly recall exactly whether "help" or indecent assault" was in fact shouted.

22. These findings have been criticised by Mr. Cheng Huan on three grounds.

23. First, he has argued that there was a clear inconsistency in the evidence of the young woman and her boyfriend over the matter of whether, after they had made their witness statements, they had discussed the details of the event. It was the defence case that, having attacked the Appellant and caused injury to him over nothing more than a misunderstanding, the prosecution witnesses had invented the allegation of indecent assault to ensure that there were no repercussions in respect of the assault. Later conversations to ensure their invented stories tallied were, therefore, of importance.

24. In his evidence, the boyfriend said that he did discuss the event with the young woman on the day after he gave his witness statement, the purpose being to try and convince her not to be frightened. On that occasion, he said, the young woman gave her version of what had happened in the toilet but not in detail. On three or four occasions subsequent to that he said he had spoken to her about the matter. However, he was not asked in any detail about the purpose of these discussions, their depth or their detail. The boyfriend accepted that the young woman had asked him what he had told the police but he had not told her as she knew what had happened and it was therefore not necessary to tell her.

25. In the course of her testimony, the young woman was asked if she had discussed what happened with her boyfriend and said that she had not as she was very frightened. She expressed herself in the following terms:

"Every time I recalled this incident, I was very scared and I would tremble in fear every time I recalled the incident. Every time I tried to tell this incident, I could not do so, and my boyfriend keeps comforting me, asking me not to be scared. I have discussed this case with the counsellor of my university, the psychology group."

26. In my judgment, it is significant that the young woman did not make a bare denial of any discussion. Rather, she qualified it by saying: "Every time I tried to tell this incident, I could not do so and my boyfriend keeps comforting me ...." That sentence indicates that, in fact, there were discussions about the matter between the two of them but the young woman was unable to speak of the matter in any depth because of the emotional stress. That accords (in part at least) with the boyfriend's testimony that the purpose of one discussion had been to try and convince the young woman not to be frightened.

27. Second, Mr. Cheng Huan argued that there was also a clear inconsistency between the evidence of the two witnesses over the matter of whether they had discussed details of the incident before the police arrived at the scene. But with respect to counsel, in this regard the evidence of the young woman was patently uncertain. When first asked if she had discussed it with her boyfriend before she gave her witness statement, the young woman said that she could not be sure. She said that her boyfriend was only concerned with her feelings and just comforted her. When asked if she was sure he had never asked her how she was indecently assaulted, she answered: "At that time I was very frightened, I could remember that he only asked me not to be frightened any more." When the boyfriend gave his evidence, he said that there had been a discussion but it had only lasted 'several ten seconds' and had not been in detail. In my judgment, in light of such evidence, the Magistrate was entitled to find that the inconsistencies were minor and understandable.

28. Finally, it was argued on behalf of the Appellant that there was a material inconsistency in the young woman's evidence as to whether, when she was calling for help, she simply uttered the word 'help' or 'indecent assault'. I find nothing in this point. From a study of the transcript, it is clear in my view that the young woman called out several times seeking assistance. When she said that she called for help, she was not necessarily specifying the exact words she used. Her evidence, however, was clear when she said that, upon hearing the Appellant tell her boyfriend that it was only a misunderstanding, she protested that it was an indecent assault. In my judgment, having found the young woman to be an honest, credible witness, the Magistrate was entitled to take into account that in the fear and high emotion of the moment the young woman could not be expected to recall exactly what was said in sequential order. In any event, if a person is being indecently assaulted, it does not necessarily follow that in the cries for help, the specifics of the crime being perpetrated will be stated.

Appellant's allegation of assault.

29. It was part of the defence case that the boyfriend and the second young man over-reacted in coming to the assistance of the young woman and, far from just subduing Appellant, they gave him a beating. Having done so, however, and in order to justify that beating, they had to invent the allegation of indecent assault or persist in that allegation which they must have appreciated had been based on an initial misunderstanding and no more. Mr. Cheng Huan argued that there was evidence of just such an assault and that the Magistrate was wrong to find as a fact that the two prosecuting witnesses would not deliberately have carried out such an assault. In this regard, the Magistrate said the following:

"About the point that whether the Defendant was assaulted by PW2 and PW3, PW2 and PW3's evidence revealed the situation as chaotic. PW1 described she saw three of them holding each other, twisting into a big group. PW2 described he tried to kick the Defendant during the struggle. PW3 said it couldn't be said whether he hit the Defendant or the Defendant hit him. I accepted the situation was chaotic. During a chase, the Defendant being caught, he managed to free himself and being caught again, struggled among parties and finally being subdued, so I could not eliminate excessive force might be used by PW2 and/or PW3 in order to subdue the Defendant. However, I did not believe PW2 and PW3 would deliberately to assault the Defendant under such circumstances."

30. It is clear from this passage that the Magistrate did take into account the possibility that a degree of 'excessive force' might have been employed. However, even making allowance for that, he was satisfied that the young woman had given an honest and truthful account of what had happened to her in the toilet and that there had at that time been an indecent assault. The Magistrate stated his findings as follows:

"I was satisfied PW1 gave me an honest and truthful account as to what happened in the female toilet without exaggeration. PW1 gave straight forward evidence, unshaken under intensive cross-examination. I was satisfied she was very frightened soon after the incident and she had to attend subsequent counselling service in the University. I was satisfied that the Defendant did use a paper bag to hood, pushed her and used one hand to cover her mouth and used another hand to scratch her private part as described by her. It was suggested that she tried to protect her boy friend (PW2). I did not believe that PW1 would make up an indecent assault story to frame up the Defendant in such a fashion in order to save PW2 from wrongful assaulting the Defendant. That would be impossible because she was in a state of fear and without knowing what an independent witness, PW3, had seen and would tell the Police. Also in such limited time, I did not believe on could make up such a complicated story, including making use of a paper bag ...."

31. In my judgment, the Magistrate was entitled to take all these matters into account in deciding whether the defence case had raised a reasonable doubt in his mind, especially the fact that one of the three persons involved was an independent third party who had initially at least done nothing more than act as a good citizen and come to the aid of a woman calling for help.

The 'indecency' of the assault.

32. It was argued that the Magistrate failed to take into account the fact that the indecency of the assault was inherently unlikely. Again, I find nothing in this point. The Magistrate found as a fact that the Appellant had not accidentally walked into the female toilet, he found as a fact that the Appellant attempted to push a paper bag over the young woman's face, that he put his hand over her mouth and that he intentionally reached down and touched the woman's private parts. All the surrounding circumstances spoke of indecency and the Magistrate found as a fact, as he was entitled to do, that the touch to the private parts had been intentional. Yes, this may have been an inept, fumbling assault, it may in the circumstances have been rash and doomed to end in failure, but that does not detract from the fact that it was an intended assault of a clearly indecent nature.

The rejection of Appellant's evidence.

33. It was argued that the Magistrate gave no cogent reasons for rejecting the evidence of the Appellant, a young man with a good academic history and a clear record. I cannot agree. Put simply, the Magistrate did not find the Appellant to be credible. He found his version of events to be inherently improbable and found Appellant unimpressive as a witness, becoming 'uneasy and cautious' at critical points of his evidence.

34. As I have said, the Magistrate had the benefit of hearing each witness give evidence and be subject to cross-examination. He was the one best able to make the necessary findings of fact and an appeal court will be loath to upset those findings. In this regard I can do no better than cite the dicta of Keith J. in R. v. Hui Kee Fung (Mag. App. 196 of 1994) in which he said:

"... appeals from decisions of magistrates on questions of fact should not be regarded by the litigants as simply another opportunity to re-try the facts. An appeal to the High Court is not a rehearing of the case. The Judge does not even see the witnesses. It will be rare indeed for a Judge to say that the findings of fact made by the magistrate were so contrary to the weight of the evidence that doubts as to the correctness of the magistrate's findings exist. There may occasionally be cases in which a defendant believes that he has been the victim of a miscarriage of justice, because the magistrate has chosen to believe the witnesses who gave evidence against him and disbelieve him. But if there are no sustainable grounds of appeal, a belief in one's innocence is not sufficient to justify the invocation of an appellate process which treats the findings of fact made by a court of first instance as so sacrosanct as our system of criminal justice does."

35. In my judgment, the findings of the Magistrate in this case were in no way contrary to the weight of the evidence. His findings were not unsafe or in any way unsatisfactory. Mr. Cheng Huan argued everything that could be argued on behalf of this young man. I have sympathy for the Appellant in his predicament. I am told that he may be in danger of forfeiting the university degree which he has worked so hard to attain. But that is not for this Court, that is for the academic body empowered to consider such matters. The appeal must be dismissed.