HKSAR v. HEUNG KAM CHUEN

HCMA 1190 of 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 1190 OF 1998

(on appeal from Western Magistracy case no. 7755 of 1998)

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J U D G M E N T

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1. The Appellant was charged and convicted on one count of indecent assault contrary to S.122(1) of the crimes Ord. Cap. 200. He now appeals against conviction.

2. The facts disclosed that two plain clothe police constables (PW2 and PW3) on MTR petrol followed the Appellant into the train after they found the appellant acting in a suspicious manner. The Appellant followed the victim (PW1) into the train in Mongkok Station and stood close to the victim while these two police officers stood nearby. It was very crowded as it was 8:55a.m. on a weekday.

3. One of the police witnesses (PW2) in evidence said from where he stood inside the train he observed the Appellant bump his front groin region against PW1's bottom once for about 3-4 seconds after the train left Yaumatei. The Appellant did the same again before the train reached Tsimshatsui. He observed a bulge in front of the Appellant's trousers.

4. When the train reached Admiralty PW1 was approached by PW2 & 3. The Appellant was also arrested at Admiralty Station.

5. At the conclusion of the case immediately after final submission by counsel at p. 138 the learned Magistrate said, "Defendant, stand up, please. Defendant, I have considered all of the evidence in this case and of course I have considered your evidence and I have considered counsels' submissions. Most particularly, I have considered your clear record. I find myself satisfied beyond reasonable doubt that you committed this offence as alleged and I convict you of this offence. You face a custodial sentence. Your counsel will now address me in regard to sentence". After mitigation he said, " ... I have found that this offence took place under the nose of two police officers ..."

6. In his written reasons for verdict after having a more careful analysis of all the evidence he rejected the evidence of PW2. This goes to show he had not properly evaluated this evidence before convicting the Appellant.

7. As to PW3's evidence & credibility the learned Magistrate had this to say:

At p. 153 top para. - "PW(3) then further supported the earlier evidence of PW(1) and PW(2) as to what had occurred, with the notable exception that he unlike the others also testified that while in Yau Mai Tei station, and for a period thereafter the defendant kept his front up against the bottom of PW(1), continuously. It was also noted that PW(3) testified as PW(2), that the bumps lasted for 3 to 4 seconds and that they were of longer duration than the period of touching referred to by PW(1). I further noted that at one point in his evidence PW(3) testified, unlike PW(1), that he had in fact specifically inquired of her about a case of indecent assault when he approached her in the train. It is also relevant that he did not testify that he observed that the defendant had had an erection."

Then at p. 157 and p. 158 he said:

"As to the duration of the two bumps I considered however that PW(3) was more reliable. He is a professional witness whose evidence on duration was considered to be more reliable on this matter, than the evidence of PW(1) who was in fear at the time.

His testimony as to the continuous pressing however was clearly inconsistent with her evidence on this matter and I directed myself that I should attach weight to his evidence generally only if I was absolutely satisfied that whilst possibly mistaken, he had not testified dishonestly. Having so directed myself on the issue I found myself entirely satisfied that he had been honest but indeed was mistaken about his observation of what occurred at Yau Ma Tei. In this regard it is clear that his observation was first made while the train was stationary at Yau Ma Tei. Passengers had entered there and this sort of movement I was satisfied had caused error as to this particular observation. In the circumstances I considered that I could properly accept PW(1) on the matter of whether there had been continuous contact between herself at the perpetrator at this time."

9. It is difficult to understand why the learned Magistrate could have accepted the evidence of PW3 when at p. 153 he said "PW3 then further supported the earlier evidence of PW1 & PW2 as to what had occurred with the notable exception ..." He had rejected PW2's evidence.

10. PW3's evidence as to the duration of the contact cannot be supported because PW1 in respect of 1st bump at p. 24 F-G said "I did not notice that he was doing it deliberately". In respect of the 2nd bump at p. 25 F-G:

Q: "In essence, in terms of what you actually felt and the way you have described it, it was exactly the same as the first time, is that right"

A: "That is right."

11. The description of her feeling on her bottom must be more accurate than PW3, I cannot see how a professional witness' observation could be more reliable than PW1's sensation on the bottom.

12. Besides, the gross exaggeration in PW3's evidence that there was continuous pressing which was inconsistent with PW1's evidence can only mean either he was not able to see what happened clearly or that he had exaggerated his evidence so as to render his evidence unreliable.

13. After having rejected the evidence of PW2 it is difficult for the learned Magistrate to satisfy himself that PW1 had been bumped by an erected penis. PW3 in his evidence did not say that he observed any bulge in the groin region of Appellant's trousers. If the learned Magistrate accepted PW3's evidence then PW3 would have observed such erection. In the absence of such evidence, can it be inferred that there was no erection? PW1 in her evidence did not say that she did look at the Appellant's trousers nor did she explain why she felt it was the Appellant's penis which bumped into her.

14. It is therefore doubtful as to whether PW1 had been bumped by an erected penis.

15. There is also the question of whether the learned Magistrate had failed or adequately dealt with the issue of corroboration.

16. As I have stated earlier when the learned Magistrate delivered his verdict orally immediately after counsel's final submission, he said he had considered all the evidence and counsel's submission and he went on to say "Most particularly, I have considered your clear record". Obviously the learned Magistrate had not directed himself on corroboration which is so important in sexual offences.

17. It is incumbent on the learned Magistrate to remind himself and to be seen to remind himself of the need for corroboration in cases of this nature.

18. Eventhough the learned Magistrate had at p. 158 last para. said "I found myself satisfied beyond reasonable about that PW1's evidence, corroborated by that of PW3, compelled the conclusion that the defendant had (intentionally) committed the offence alleged". He did not attempt to identify which part of his evidence was capable of corroborating the testimony of PW1.

19. In HKSAR v. Lee Kam Wing CACC 353 of 1998 Chan CJHC after going through various previous decisions on corroboration was of the opinion that the Appellate Court in deciding whether a judge or magistrate had properly directed himself, should not be confined only to the reasons for verdict or the Statement of Findings. The Court should instead, look at all the circumstances of the trial in order to decide whether in the light of what was recorded on the transcript, the judge or magistrate had sufficiently alerted himself on the issue. At p. 9 Chan CHJC said, "The most important thing is that whether the judge has warned himself before he gives his decision, and whether he, having regard to the facts of the case, has taken extra care to avoid unsafe and unsatisfactory conviction. If the judge only makes reference in his judgment at a later stage that he has warned himself, but the whole of his findings shows that he has not dealt with the evidence of the complainant with extra care, then his claim that he has warned himself would be meaningless and untrue. We think that the Appellate Court should not quash a conviction simply because the judge or magistrate had not referred in his judgment that he has warned himself, but instead we should consider the facts of the whole case and other factors".

20. When giving his oral verdict the learned Magistrate had considered almost all material factors including the Appellant's clear record but not corroboration.

21. For reasons aforesaid it is unsafe to convict and the conviction cannot stand. The appeal against conviction is allowed and the sentence is set aside.