HKSAR v. LUK YUEN IAN HELIO

HCMA 1068/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1068 OF 1997

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J U D G M E N T

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1. The Appellant was convicted after trial by a magistrate sitting at the South Kowloon Magistracy of the offence of indecent assault contrary to section 122(1) of the Crimes Ordinance Cap. 200 and was penalized with the fine of $5,000.00.

2. The facts of the case were briefly that at about 1830 hours on the 25 August 1997, PW1, a Chinese female whilst getting off the MTR at the Tsim Sha Tsui Station, was indecently assaulted by the Appellant.

3. The allegation was that the Appellant had leant forward and stretched his arm to touch PW1 on the inner side of her thigh about two inches above her knee. There was in fact no dispute as to that. However, PW2, a Chinese male who allegedly was standing to the left of the Appellant at the time, said he saw the Appellant's movements clearly and gave evidence that the touch was on PW1's buttock, downwards to upwards motion on the centre, near to the right on the side, near the buttock on the inner side, near the buttock. I have referred to his evidence in this way because I am quoting the various parts of his answers that appear from the transcript. The learned magistrate heavily relied upon the evidence of PW2 as to the Appellant's movements to base his finding that the touch was deliberate and not, as was the case put forward by the Appellant at this trial, accidental.

4. The learned magistrate in arriving at this conclusion accepted the fact that PW2's evidence of where and how PW1 was touched was quite different from the evidence given by PW1 and indeed the Appellant. However, he found that the discrepancy was not of much significance. During the course of the trial, PW3, a policemen gave evidence that when PW2 told him about the incident he said that the Appellant had used his right hand to touch PW1. However, in Court PW2 said that it was the left hand. Unfortunately by the time PW3 gave his evidence, PW2 had already left the court's precincts and it later transpired that he was not available to attend court for further cross-examination until a date when the magistrate would have left Hong Kong.

5. Mr Raffell, who appears here for the Appellant but not at the instant trial submitted as one of his grounds of appeal that the learned magistrate's refusal for a trial de novo was a wrong exercise of discretion. Further, that it was a situation where either an adjournment ought to have been allowed to enable PW2 to be further cross-examined or the learned magistrate ought to have order a trial de novo. Since neither of those courses had been adopted, justice was not seen to be done. With respect, I find there is nothing in this ground. Whether it was the left hand or the right hand mattered very little in the circumstances of the case. What mattered was whether the Appellant did lean forward and stretched out his arm to touch PW1.

6. Mr Raffell also complained that the learned magistrate used the wrong test in finding that the assault was indecent and that his decision of rejecting the evidence given by the Appellant on the basis that it was highly improbable, tantamounted to reversing the onus of proof. Again with respect, I find nothing in these grounds. The magistrate was a professional magistrate and unless a statement of law or procedure he made was clearly wrong, there cannot be any complaint that he did not state the full test applied or used an unfortunate choice of word.

7. What does cause me some concern was how the learned magistrate had dealt with the glaring discrepancy between the evidence of PW2 and that of PW1 as to where the touch had landed. I find that the observation of learning forward and stretching of the arm cannot be logically separated from where the touch had landed. I agree with respect with Mr Wong, learned counsel for the respondent that there is nothing wrong in law in accepting one part of a witness' evidence and not other parts. Be that as it may, in this case, this artificial separation of PW2's evidence thereby avoiding the damaging effect of it in respect of the prosecution's case is not proper. If, indeed, PW2 clearly saw the motions of leaning forward and stretching of the arm, there is no reason why he did not also clearly see where the touch had landed. He said quite the opposite. Twice in his evidence he said he saw all this clearly. Unfortunately, his description of where the touch had landed on the body of PW1 was totally different from the evidence of PW1. Mr Wong for the respondent had fairly conceded that the prosecution's case was based on only one touch. This must, in my view, taint the rest of PW2's evidence. In other words, this must make his evidence as to what he saw immediately before and after the touching to be unreliable. In the circumstances, since this material difficulty with PW2's evidence was not satisfactorily resolved by the learned magistrate and since it was upon the very reliance he placed on this part of PW2's evidence which led him to conclude that the touch was deliberate, I find there is a lurking doubt as to whether the conviction is safe or satisfactory.

8. In these circumstances, the learned magistrate's verdict is reversed, the Appellant's appeal against conviction is allowed, the conviction is quashed and the order of $5,000.00 fine is set aside.