THE QUEEN v. HUNG WAH SUN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 806 OF 1988

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J U D G M E N T

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1. The Appellant pleaded not guilty, to a charge of indecent assault. The Complainant's evidence was that she was travelling on a crowded bus from the Star Ferry Terminus to To Kwa Wan in the early afternoon on the day of the alleged offence. She sat on a seat facing the aisle and was joined there by the Appellant who was apparently a stranger to her. There was no evidence as to the girl's age but she aid that she was a garment factory worker. She said that during the journey the Appellant touched her breast four times. I read from her evidence as follows:

"After I felt being touched, I knew full well that he was touching me and I showed no particular response save that I moved away a little bit hoping that he would take my warning. He then withdrew his hand. However, several seconds later he touched me once again in the same impression as the previous one. He was again touching my left breast That was the last-straw I seized him by the left hand with both hands of mine and I seized his left hand it was still on my breast. After I seized his hand; I ended up in a quarrel with him."

She gave the Court a demonstration of how the Appellant did the touching using a carrier bag to conceal his movements.

2. In cross-examination, it was never suggested that the Appellant had not touched her at all; never suggested he had not touched her breast and never suggested that her allegation of multiple touching was an exaggeration.

3. The Appellant did not give evidence nor did he call any witness. Insofar as his defence could be gleaned from cross-examination, it was that any touching of her was accidental. In his final submissions, the Appellant's solicitor submitted that on the evidence it was possible that the touching was an accident and a misunderstanding.

4. The learned magistrate accepted the girl's evidence and convicted the Appellant. He now appeals against that conviction and Mr. Gunston who appears for him on this appeal he did not appear -- for him at the trial -- put forward four grounds of appeal.

5. The first part of the first ground complains that the girl's evidence lacked credibility in that she failed to make any oral complaint or intimate in any way orally to the Appellant that she was annoyed or upset at any time during the first three incidents except for saying that she moved away a little bit and bent forward a little bit. As to this it can be observed that perhaps that behaviour indicated, that she was not given to flights of sexual fantasy, not prone to make hasty judgments not prone to point an excusing finger on flimsy foundations, but a sober woman who waited until "the last straw", as she described it, clearly demonstrated that the man was deliberately touching her.

6. I, therefore, see no substance in this criticism.

7. The second part of the first ground complains that her description of what she felt and saw was equally consistent with accidental touching as with deliberate indecent assault.

8. The learned magistrate in his Statement of Findings said this:

"Perhaps the first and/or second touching were accidental but I have no doubt after that the Defendant deliberately touched PW1's left breast because in order to do so, it would be necessary for the Defendant's left fist or hand to be protruding from underneath his right upper arm and to touch PW1's left breast that left fist or hand would need to pass under or over PW1's left arm. I have no doubt PW1 saw the Defendant's hand touching her left breast and that he did so deliberately."

9. I agree with those observations and that finding and accordingly find no merit in this complaint.

10. The second ground alleges that the learned magistrate misdirected himself in failing to give himself the proper warning regarding the need for corroboration in cases of this kind.

11. The basis of this complaint is that the learned magistrate said:

"I bear in mind that it is desirable to look for corroboration of PW1's evidence in a case of this nature."

That, of course, was not the proper way to spell out the warning. No criticism could have been made, had he said that he warned himself of the danger of convicting in the absence of corroboration. However the full text of what he said in this connection reads as follows:

"I bear in mind the evidence of PW3 is not corroboration of PW1's evidence but merely goes to show consistency in PW1's evidence. I bear in mind, that it is desirable 'to "'look for corroboration of PW1's evidence in a case of this nature, There is no such corroboration. However, it is permissible to convict on the evidence of PW1 if I am satisfied that I can accept her evidence without corroboration."

12. In his final submissions, the Appellant's solicitor said this:

"Submit the Court is left with only the evidence of the Complainant. On the best version no corroboration and no corroboration sought to be introduced. Trite law the situation Court is in is it is dangerous to convict Defendant on this offence. The Court may convict Defendant if it is satisfied Complainant is telling the truth, but it is dangerous to do so. Submit it is dangerous to convict even if the Court is absolutely satisfied the Complainant is telling the truth and the reason I say that is because it is possible. this was an accident and a misunderstanding,"

13. The learned magistrate clearly had the correct approach in mind, otherwise, he would not have looked for corroboration, would not have made the point that there was none and the further point that it was nevertheless permissible to convict if he could be sure that the girl told the truth even though her evidence was not corroborated.

14. Ground 2 also complains that the magistrate made a further error by stating "it appears to be unnecessary to look for corroboration of PW1's evidence or for that matter, to even concern myself as to whether or not there was a reason to complain". In this connection he referred to a recent decision of the Court of Appeal in England in R. v. Chance reported in the Times Newspaper on the 13th of July 1988 Mr. Gunston submits that the learned magistrate has misconstrued that decision and with respect to the learned magistrate, I agree.

15. In Chance the Court of Appeal in the final section of its judgment dealt with the four situations in which the issue of corroboration arises. The fourth type of case is headed "where the offence itself is in issue". Here, whilst it could perhaps be said that the fact of touching was not specifically challenged, the offence itself was clearly in issue. In such a case, the court of Appeal specifically said and I read from the bottom of the third column on the second page of the report:

"Here the usual warning has always to be given."

The learned magistrate did not say that he regarded the case as one not requiring corroboration. He obviously did not so regard it because, as I said earlier, he did in fact look for corroboration He gave cogent reasons, the reasons I have read out earlier for concluding without any scope for doubt that the girl told the truth. Although the learned magistrate did not express the corroboration warning in the proper classical terms it could well be that a warning given in the learned magistrate's terms by a Judge to a jury would be held to be a fatal misdirection -- but in this case, the learned magistrate's findings show that he did have the proper warning in mind, did properly apply it but decided that he was able to convict on the uncorroborated evidence of the girl. The evidence in this case, once it was accepted that the girl had been touched four times; could lead to no other conclusion than that the later touching of her breast must have been deliberate.

16. Ground 3 alleges that he erred in failing to take into account the unlikelihood of the girl's story being true in view of the circumstances in which the alleged indecent assault tool place. It is Mr. Gunston's contention that with the girl and the Appellant sitting on a seat facing the aisle with strap-hanging passengers in the aisle adjacent to their knees, that those passengers would have seen any indecent assault had it taken place because they would of necessity be looking downwards in the direction of the Appellant and the Complainant.

17. The learned magistrate however had the benefit of a demonstration given by the girl and he was able to conclude with the benefit of that demonstration that there was nothing unlikely or incredible in the version which she related. He accepted her evidence and I can see no reason why he should have done otherwise.

18. The fourth ground of appeal is the general ground that in all the circumstances the conviction was unsafe and unsatisfactory but since it relies on there being merit in one or other of the grounds I have just dealt with that ground also must fail.

19. In the result the appeal is dismissed.