HKSAR v. LEE WING KAM

HCMA 1184/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1184 OF 2002

(ON APPEAL FROM KCCC 14539/2002)

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J U D G M E N T

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Introduction

1. The Appellant was convicted after trial by a Magistrate of one count of Indecent Assault, contrary to section 122(1) of the Crimes Ordinance (Cap. 200). He was sentenced to 14 days imprisonment. The Appellant appeals against conviction.

Summary of Facts

2. On the 22nd June 2002, inside the train compartment of the MTR, the Appellant indecently assaulted PW1, a 17-year-old woman, by putting his private parts into contact with PW1's left buttock on three separate occasions - the third one was after PW1 moved one step forward to avoid the bodily contact. The attack was witnessed by PW2, a plain-clothed police officer who was on duty with a woman plain-clothed officer (PW3).

3. The Appellant was arrested for the offence of indecent assault and under caution he claimed to have come into contact with PW1 unintentionally due to the crowdedness of the train.

Grounds of Appeal

4. Basically, Mr Mitchell-Heggs, counsel for the Appellant, attacked the learned Magistrate's findings of facts. In essence, he complained that the learned Magistrate had not given adequate consideration to various discrepancies and inconsistencies in the prosecution evidence or due weight to various defence contentions. These are:

(1) The direct conflict between PW1's version that she had already alighted from the train and was on the platform when she was intercepted by PW3 with the police version was that PW2 instructed PW3 to take PW1 off the train for enquiry;

(2) The unsatisfactory confrontational way in which PW1 identified the Appellant: the Appellant was being held by PW2 on the platform;

(3) PW1 in evidence-in-chief said she had told PW3 she thought she had been indecently assaulted and retracted the words 'I think' during cross-examination, saying that it was a slip of tongue;

(4) PW1 testified in court that she looked back after the 1st contact but glanced sideways during the subsequent contacts when there was no reference to such sideway glances in her statement;

(5) PW2's terminology in describing the three assaults changed from more forceful ones described in the witness statement to milder forms in court:

(a) 1st assault: from "pressed against and bump into" (頂撞) to "press against" (頂);

(b) 2nd assault: "firmly and tightly" (緊貼) to "get close to" (貼向); and

(c) 3rd assault: "press against and come into contact tightly and firmly" (頂住緊貼) to "come into contact with" (貼住);

(6) PW2's failure to make a record in his statement that the Appellant's penis was erect as he did not know how to write the Chinese characters (勃) and his omission in describing PW1's expressions during the attack;

(7) PW3's failure to mention PW1's expressions at all;

5. Mr Mitchell-Heggs submitted PW2's evidence was not credit-worthy. The Appellant might well have done something suspicious but he asked me to consider whether it so happened that PW2 decided to 'close the matter' to apprehend the Appellant when PW1 about to get off the train? Or that before the time was ripe PW1, as far as PW2 was concerned, suddenly and unexpectedly left the train; PW2 thus have to make a snap decision and took the Appellant off the train? Mr Mitchell-Heggs submitted that PW2 had to justify his action and the identification of the Appellant was done in such a confrontational style. Further, PW1 only thought she had been indecently assaulted, it was a 'Freudian slip' when she used the terms "I think" during examination-in-chief.

Judgment

6. With due respect to Mr Mitchell-Heggs, he is asking me, sitting on appeal, to disturb findings of facts by the learned Magistrate. All those inconsistencies, discrepancies and other matters raised by him had been fully argued before the learned Magistrate during the trial and the learned Magistrate was fully aware of them when he evaluate the evidence. In his extremely detailed Statement of Findings (19 tightly-typed, single-spaced pages), he set out the evidence of various witnesses in great length. He also set out Mr Mitchell-Hegg's submissions in detail. The learned Magistrate gave reasons why he accepted the evidence of the prosecution, that there was indeed an indecent assault on PW1. No doubt Mr Mitchell-heggs' theory of 'pre-mature' arrest is an interesting one, as an appeal court, it is not for me to disturb the learned Magistrate's findings of facts without grounds. The learned Magistrate is fully entitled to accept PW2's evidence that he did not know how to write the Chinese character for erect (勃), and, as a result of which, he did not record in his statement the fact that the Appellant's penis was erect. The learned Magistrate is fully entitled to find that PW1 said "I think" as a result of a slip of the tongue. Quite how I could say that it was a 'Freudian slip' is beyond me.

7. The learned Magistrate's findings are supported by evidence which he is clearly entitled to accept. He was aware of the inconsistencies, discrepancies and 'failings' (as described by Mr Mitchell-Heggs) on the part of PW2 and PW3. Mr Mitchell-Heggs' theory and submissions did not find favour with the learned Magistrate.

8. In my judgment, the Appellant has failed to demonstrate that the conviction is either unsafe or unsatisfactory. The appeal is dismissed.