HKSAR v. CHAN CHUN YIN

HCMA62/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.62 OF 2003

(ON APPEAL FROM KCCC 700260 OF 2002)

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J U D G M E N T

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1. The appellant was tried in the Juvenile Court on one charge of indecent assault and, on 17 October 2002, the magistrate made a determination that the elements of the offence of indecent assault had been made out and imposed a sentence of a $3,000 fine and a Care and Protection Order for a period of one year in respect of the appellant. The appellant now appeals the determination on the basis broadly that the conviction was on the weight or forget the weight of the evidence; that in finding the facts as he did, the learned magistrate erred in overlooking important and significant collateral evidence indicative of the veracity of the appellant's assertion of the accident; that the magistrate erred in not addressing or resolving the issue of leading or suggestive questioning by the mother of the victim which may have led to her overstating the situation when she gave evidence and that he further failed to place any or any appropriate weight upon the evidence of PW3 and the sole witness for the defence, both of whom were teachers involved with the appellant and both of whom gave him a good character reference.

2. The facts as alleged by the prosecution at trial were that on 21 August 2002, in the morning, the appellant and other children together with the victim were being tuited inside a classroom at a tutorial school which they attended. At about 10:30a.m., two other children left the room and the tutor also went out of the tutorial room in order to make a telephone call. That left the appellant and the young lady subject of the charge, alone in the classroom. It was alleged that the appellant approached the girl, touched her hair with one hand. He then reached out his right hand and was said to have squeezed her left breast with all the fingers of that hand. The tutor and the other two students returned to the room and nothing was said, and the lesson continued to its normal finish. The girl made no complaint at that time nor did she move from her position next to the appellant.

3. The girl was then taken by her parents on a 20 minute journey in their private car to a piano lesson which she undertook for a period of some 45 minutes and then went with her parents home. When she reached home, she telephoned a friend of about her own age named Daisy. She discussed the matter with Daisy and later disclosed the incident to her mother.

4. Very properly the parents of the girl were concerned about what they might have happened to her daughter, and they returned to the tutorial school where a confrontation meeting was held with the appellant, the victim, the parents of the victim and the tutorial teacher all present.

5. During the course of that meeting, the mother of the victim testified in evidence that the appellant admitted to indecently assaulting her daughter and that he apologised to her. It is clear from her evidence which was largely discredited by the magistrate in his reasons that she was unaware of the meaning of the words "indecent assault" and her evidence cannot be taken to be an admission by the appellant to an assault indecent in nature.

6. The only direct evidence in respect of that meeting and as to what was said by the appellant comes from PW3 who was the teacher who conducted the tutorial. He said :

And the defendant said, while he was playing with her, he touched her breast. But, at that time, Mr Lam was a bit agitated and he had interrupted Lam (Chan) Chun-yin's speaking. That's it. And then, he asked her daughter to relate the incident because her daughter, Lam Jak-yan was there. Because her daughter, Lam Jak-yan, at that time, was crying."

Therefore, the first mention of this matter was a touch during playing.

7. Later, in cross-examination, it was put to the witness that he had said that to the police :

"He tried to touch Lam Jak Yan's bun, but Lam Jak Yan dodged therefore he actually accidentally touched her breast."

The witness accepted that it was what he had told the police. The evidence of what had happened therefore would seem unequivocally to be that the appellant, immediately after the events upon being confronted by group of people, admitted that there had been a touching but did that make that statement in terms that it was accidental in the course of playfulness.

8. The magistrate, in dealing with this particular point in his findings, said :

"... from the evidence of Mr Yeung and, also, from the question put by the defence counsel in cross-examination, I believe defendant's version of the event was that it was an accidental touch of PW1 breast."

9. In his Reasons for Verdict, the magistrate said this :

"The Defendant was a person of good moral standard but the Defendant also admitted 'touching' the victim's breast on that day while he was playing with the victim."

10. The magistrate, by couching the evidence in those particular terms, may have considered that the nature of the touching was a detraction from what he otherwise found to be a good moral standard. If that is so, then it conflicts with his finding that the evidence of PW3 was that the touching was accidental. A touching which is accidental could hardly have detracted from a good moral standard only one which was deliberate could do so. It would seem to be potential for a difference between the written reasons given by the magistrate and those given by him orally.

11. I have considered all the arguments of counsel for the appellant, Mr Surman who very carefully produced a very effective skeleton argument as well as what has been argued before me by Ms Leung who similarly has been most helpful in her approach to this matter.

12. Taking overall the factors placed before the magistrate and the matters which I have raised, I have a lurking doubt that in overall terms that the evidence before the magistrate as analysed by him leads to the conclusion that beyond reasonable doubt the appellant had admitted the offence which led to the declaration against him. Having that lurking doubt, this appeal against the determination of the magistrate is allowed. The order for payment of a fine and the Care and Protection Order are set aside.