HKSAR v. LAU KWAI CHUNG

HCMA171/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.171 OF 2000

(ON APPEAL FROM ESCC 2965 OF 1999)

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J U D G M E N T

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1. The appellant was convicted on 21 January 2000 of one charge of indecent assault. He now appeals that conviction.

2. The facts were not in the main in dispute. The appellant is some 40 years of age and works as an office assistant at the Hong Kong Arts Centre in Wanchai. The victim named in the charge was a young girl of the age of 12 years who studies music at the Hong Kong Arts Centre. In the afternoon of 21 September 1999, she went to the Arts Centre after her school day to attend music lesson and to practice, that was on the 9th floor of the building. She waited until about 3:40 when she was then sent to a room to commence her practice. Some five minutes after she entered the room, the appellant, who was known to her in his capacity as a clerical assistant but not well, entered the room and asked her to meet him after the completion of her practice and lesson. She continued with her practice and at about 6 p.m. left the room and met the appellant. The appellant took her some distance from the room where she had been practising to a small room which is used for the storage of musical instruments. Photographs of that room were placed in evidence and it can be seen to be a small crowded room which one would not expect to be regularly visited by groups of people.

3. Inside that room, the appellant asked her whether she would be with him on the Mid-Autumn Festival. She said she had no time to do so. The appellant then pushed her against the wall near the door, held her arms and kissed her on the lips, a kiss which lasted three to four seconds. She resisted and after having kissed her, the appellant released his grip and she picked up her musical instrument and left. At some stage during the incident, she was given a packet of sweets by the appellant which he had already placed upon a shelf in the storeroom in advance.

4. The grounds of appeal are that firstly, the evidence led during the course of the trial did not amount to a sufficiency of evidence for the magistrate to convict the appellant of the offence of indecent assault; secondly, that the magistrate erred in drawing an inference that the appellant intended to indecently assault the alleged victim; thirdly, that the magistrate failed to direct himself correctly as to the effect of the appellant being of previous good character; and fourthly, that the conviction was against the weight of the evidence.

5. I will deal with the first two grounds together.

6. Mr Whitehouse, for the appellant, cites two cases in favour of the proposition that a kiss in itself is not an indecent act. They are R. v. Lam Chi Chee, Mag.App. No.783 of 1992 and R. v. Fong Chi Wai, Mag.App. No.1096 of 1995. They were each a case where a young woman was either kissed or an attempt was made to kiss her in circumstances where the court, in each case, held that there was no accompanying indecency.

7. It is trite law that for an indecent assault to take place, there must be, first of all, an assault, which Mr Whitehouse very properly agrees, took place on this occasion, and that it must be accompanied by circumstances which a right-minded person would consider to be indecent. The matter was set out by Lord Diplock in R. v. Court [1988] 2 WLR 1071 at 1085, when he said :

"I would accordingly dismiss the appeal and answer the certified question as follows:

'On a charge of indecent assault the prosecution must prove:

(1) that the accused intentionally assaulted the victim; (2) that the assault, or the assault and the circumstances accompanying it, are capable of being considered by right-minded persons as indecent; (3) that the accused intended to commit such an assault as is referred to in (2) above.'

These requirements, as counsel for the prosecution confirmed, should give rise to no difficulty or complication."

In the case before the magistrate, the first condition was satisfied. The accused must have intentionally assaulted the victim. Certainly at the point where she started to struggle and he was holding her, an assault took place.

8. Mr Whitehouse argues that what followed was a kiss and nothing more and that in the circumstances, it did not amount to an act which a right-minded person would regard as indecent, and further, that there is no evidence that the appellant intended an indecency.

9. I would agree with his argument to the extent that a kiss itself need not be indecent. However, it is quite obvious, from consideration of the authorities, that a kiss itself can, in some circumstances, amount to indecency when there are circumstances which a right-minded person would find indecent. In R. v. Leeson [1968] 52 Cr App Rep 185, a kissing of a baby-sitter by her employer in circumstances where he asked for acts of a sexual nature and was rejected was sufficient for the court to find that the acts were indecent.

10. What the magistrate had to consider here was a situation where a 40-year-old man invited a 12-year-old girl to meet him, not on the spur of the moment, but some hours after the invitation was issued. In his evidence, the appellant said that it was a moment of impulse; that he found her cute and in the circumstances at finding her particularly adorable at that moment of time, he kissed her. This is at some odds with the rest of the evidence which indicates that this matter had a considerable amount of planning. The meeting was planned by the arrangement of the appointment some hours in advance; the bag of sweets, which had in advance been placed upon the shelf in the room where the assault took place and that the appellant took, either by leading or by suggestion or by request, the young girl to that room which was an isolated place. It was clearly a reasonable and proper inference to be drawn that the appellant was of the view that the act which was to take place in that room was not one which he was prepared to be seen to be doing in the open and public gaze.

11. I am of the view that the magistrate was entitled to consider, from all those circumstances when added to the actual act committed by the appellant, that a person viewing them of normal and morally upright mind would consider that to do those acts in the manner that they were done were repugnant and did amount to indecency and that the appellant had that intention when he did so. Therefore, I cannot criticize the finding that the magistrate has made and the appeal against conviction is dismissed.

12. I have not, in doing so, overlooked the other two grounds of appeal. The third ground of appeal being that the proper Vye direction had not been given in respect of the character of the appellant, the magistrate did, in his findings, both oral and written, remind himself that the appellant had a clear criminal record. There was no point in him doing so in respect of his findings as to conviction unless he did so on the basis of Vye, it is not necessary for a magistrate to account every warning that he must give himself. I am satisfied that he had it in the forefront of his mind when considering this evidence. Similarly, the last ground of appeal that the conviction is unsafe and unsatisfactory is dealt with for the reasons that I have given above.