HKSAR v. CHAN SAI YUNG

HCMA 162/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 162 OF 2002

(ON APPEAL FROM WSCC 7422/2001)

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J U D G M E N T

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1. On 22 January 2002 the appellant was convicted after trial at Western Magistracy of an offence of indecent assault and he was sentenced to a term of 6 months imprisonment.

2. He appeals against both conviction and sentence.

3. The perfected grounds of appeal against conviction settled by Mr Egan who appears for the appellant read as follows:

"1. The conviction was against the evidence and the weight of the evidence and was unsafe and unsatisfactory for the following reasons:-

(a) although stating that he did, the learned magistrate could not properly have applied the criminal onus and criminal standard of proof to the facts of this case for had he done so he would not have convicted the appellant on the available evidence;

(b) the learned magistrate dismissed as immaterial numerous material inconsistencies, discrepancies and irregularities involving the evidence of the two principle prosecution witnesses when collectively they should have caused him to have a "reasonable doubt"; and

(c) the learned magistrate allowed himself to speculate as to the motives and actions of the appellant as opposed to basing his verdict on inferences properly drawn from proven or indisputable facts.

2. Whilst never reluctant to make findings of fact adverse to the appellant at no time did the learned magistrate consider, as the evidence would suggest that he should have done, that what he was in fact dealing with here was not the case of a callous, lust-filled pervert preying upon a young couple petting in a public park, but rather a somewhat nosy, eccentric and puritanical busybody whose "touching" of the young lady in question may well have been done without the necessary "sexual intention" required to constitute the "mens rea" of the offence of "indecent assault" - (See Court [1989] AC28). In this case the error of the learned magistrate was an error of law."

4. The perfected grounds of appeal against sentence read as follows:

"1. The sentence imposed - an immediate custodial sentence of 6 months imprisonment - was in all the circumstances of this particular case both wrong in principle and manifestly excessive.

2. The learned magistrate erred in law in proceeding directly to impose an immediate custodial sentence for the reasons that follow:

(a) having found as he did that the appellant "fitted the criteria for a community service order" (CSO) the learned magistrate should have deferred sentence and called for a CSO report; and

(b) accepting as he did that there was an element of "bizarre" behaviour on the part of the appellant on the night in question the learned magistrate should have called for a medical/psychiatric report before proceeding to sentence."

5. Before coming to the facts that led to the prosecution of the appellant I should state that at the outset of his submissions before me Mr Egan indicated that, having had the opportunity of reading the transcript of the evidence given at trial and further considering the 20 pages comprising the learned Magistrates' statement of findings, he would no longer pursue the first ground of the appeal against conviction. That approach was, in my view, eminently sensible as the Magistrate had plainly gone to great trouble in fully addressing those very concerns expressed in that ground of appeal.

6. That being so, and without wishing to over simplify the matter this appeal against conviction can find its thrust in this question:

"Had the prosecution proved at trial to the satisfaction of the Magistrate not only that the appellant had assaulted the victim and that that assault was in fact indecent, but also that at the time of the assault the appellant intended to commit it?"

And the question which then follows is this:

"Was it necessary for the magistrate to be satisfied not only that the appellant intended to commit the assault but also that he intended to do so in the full knowledge that it was indecent?"

7. If I have understood Mr Egan's argument correctly he does not question the fact that the Magistrate was perfectly entitled to find that the appellant did indeed assault the victim and that the assault (certainly on the evidence of the victim and her boyfriend) was indecent but what he does question is the Magistrate's apparent approach or non-approach to the appellant's intent, and I will return to that matter later in this judgment.

8. Perhaps part of the importance of the point is that the appellant's intention was not presented to the Magistrate at trial as being the principal issue (irrespective of the differing accounts of the precise nature of the assault - both accounts arguably leading to the conclusion that the assault was indecent albeit on one version more serious than on the other). The Magistrate was plainly led to believe that the principal issue was whether the appellant had touched the victim at all.

9. At the commencement of his statement of findings the Magistrate put the matter in this way:

"The defendant is accused of indecent assault. It is alleged that late one night he approached a young courting couple in Chater Garden. They were engaged in intimate behaviour with each other. Just before the defendant appeared the young woman had removed her underpants. The prosecution case is that the defendant approached them in this dark and deserted corner of Chater Garden, challenged them and that he sat next to the girl, put his hand up her skirt and touched her private parts. It is an allegation which he has denied. There has been no issue as to whether the couple were engaging in intimate acts of some sort or that the girls (underpants) had been removed; neither is there an issue as to the identity of the accused. The central issue is whether he touched the girl or not."

10. In his statement the Magistrate recited the evidence which was before him. He accepted that of the prosecution witnesses and rejected that of the appellant. What he said (inter alia) about the appellant's case was this and I make no apology for reciting it at length because it helpfully sets out what the appellant's case was at trial:

"I have given anxious consideration to the defendant's own account of events. In the end, I am sure it is an account which should be rejected. I find, first of all, that his reasons for being in Chater Garden at all are implausible. The route which he says he was taking to his bus is not the natural route for a man going home after a day's work. He would have gone by the direct route rather than taking the circuitous line though the gardens, crossing the road, up onto the footbridge before doubling back to the bus stops.

Secondly, I find the defendant's account of the reasons for his interference to be inconsistent and unbelievable. He first said that he had heard the comment of passers-by and then having seen the couple having sexual intercourse, he had been so outraged by their conduct, behaving like that next to the Legco building, that he had gone forward to intervene. PW2, he said, did not see him until he was next to them. Yet, later in his evidence, he changed his stance. He said he saw them as he walked past and initially he did not intend to do anything. But as he went past, they noticed him and PW2 looked at him in a "very unfriendly manner". It was this hostility which caused him to go up and see what they were doing. This inconsistency not only severely undermines his credibility, it also raises the question of why he should go over to intervene at all, rather than, as would, in my judgment, be expected in such a situation, simply calling out, telling them to stop or to behave properly. Neither of his versions was consistent with common sense or the reality of the situation and I reject what he says.

Thirdly, the reason he gives for touching the skirt of this girl is unbelievable. According to him they were plainly having sexual intercourse. He saw that PW2's trousers and pants were down, that PW1 had her skirt hitched up. They were moving in a manner consistent with sexual intercourse. If that was so, there would not only have been no reason to become involved in an argument with two aggressive people (as he says they were) over the underpants which he says were in view; but even more so, there would be no possibility that he would reach down to the seated girl to lift her skirt to see if he could determine, in the dark, whether she was wearing underpants. Such a thought could never have crossed his mind. The fact is that the defendant has had to contrive a reason for grabbing her skirt. It is one which I entirely reject.

I appreciate that the defendant is said to be someone who will intervene if he sees something improper taking place, but throwing a smoker out of a lift is a rather different proposition to grabbing the skirt of a young woman who is shouting obscenities with a view to lifting it up to look underneath, especially when her boyfriend, also allegedly shouting aggressive obscenities in this "fierce" argument, is standing next to you. The defendant would, if those circumstances were true, have feared of his physical safety and would not have turned his back on a potential attacker.

I have also given careful considerations to the fact that the defendant, having indecently assaulted PW1, according to the witnesses, did not make good his escape when they left Chater Garden. He stayed with them for a considerable distance until they found a police officer. At first blush it may seem to be inconsistent with the allegation. However this aspect of the case must be seen in the context of all the evidence."

11. At the end of his 'statement' the Magistrate sets out his principal findings as follows:

"(a) PW1 and 2 were engaged in physical intimacy in the park but were not having sexual intercourse.

(b) The girl's underpants were removed in the manner described by them and in particular, the pants were not placed on the kerb but were out of sight in the bag.

(c) The defendant, having seen the removal of the underpants, intervened, behaving in an officious manner though not expressly stating that he was an official or a police officer.

(d) The PW's were shocked, confused and embarrassed by this intervention; they were not abusive or aggressive.

(e) The defendant appreciated that they were vulnerable and exploited the situation to sit beside PW1, reach under her skirt, knowing that she was not wearing pants, and touch her private parts.

(f) PW2 realized at that point that the defendant was not an official.

(g) The PW's left the scene but the defendant did not disengage from them. He followed, taunting them. He was teasing them in the belief that their situation made it impossible for them to report him.

(h) PW1 and 2 were initially reluctant to make a report, particularly PW1, but eventually and partly through fear that the defendant would follow them onto the MTR, they decided to do so.

(i) The defendant did not anticipate the report. He had his back to the police officer as they initially reported. He had not seen him himself and may not have immediately realized what they were doing.

(j) The defendant told PW3 that if they made a complaint against him, he would make one against them. He was not therefore genuinely concerned to report their conduct to the police and that was not the reason he had followed them."

12. The Magistrate did not add that he also found as facts that:

(1) the appellant intentionally assaulted the victim although that is quite apparent from 11(e) above;

(2) that the assault or the assault and the circumstances accompanying it were capable of being considered by right minded persons as being indecent (the reality being that such persons could not conceive of it being anything other than indecent); and

(3) that the appellant intended to commit such an assault (i.e. an assault that was indecent).

13. Plainly, or so it seems to me, there was no need for him to mention 12(1) and (2) above but was his silence in respect of 12(3) indicative of the fact that he had not applied his mind to it given that counsel at trial had not sought to make an issue out of it? And if not, given the appellant's behaviour on the night in question (which the Magistrate rightly described as bizarre) was it open to the Magistrate to infer the fact at 12(3) above rather than to infer that the appellant's intention was no more than to behave in a "nosy, eccentric and puritanical" manner? And, finally and most importantly in this context, is it an essential element of the offence at all?

14. During the course of his argument Mr Egan referred me to the case of R v Court [1989] AC 28 HL and, in particular, to the headnote which reads (inter alia):

"it was necessary for the prosecution to prove not only that the accused intentionally assaulted the victim but that, in doing so, he intended to commit an assault which right minded persons would think was indecent..."

15. In the context of the particular circumstances in Court's case what is cited in Archbold [2002 Edition] at paras 20.149(d) and (e) is important and (if read in isolation) deflective. What they say is this:-

"(d) Cases which ordinarily present no problem are those in which the facts, devoid of explanation, will give rise to the irresistible inference that the defendant intended to assault his victim in a manner which right-minded persons would clearly think was indecent. Where the circumstances are such as only to be capable of constituting an indecent assault, in order to determine whether or not right-minded persons might think that the assault was indecent the following factors are relevant:

(i) the relationship of the defendant to the victim (relative, friend, stranger);

(ii) how the defendant had come to embark on this conduct and why he was so behaving.

Such information helps a jury to answer the vital question: are we sure that the defendant not only intended to commit an assault but an assault which was indecent? Any evidence which tends to explain the reason for the defendant's conduct is relevant to establish whether or not he intended to commit not only an assault but an indecent one.

(e) The prosecution must prove (i) that the accused intentionally assaulted the victim; (ii) that the assault, or the assault and the circumstances accompanying it, are capable of being considered by right minded persons as indecent; and (iii) that the accused intended to commit such an assault as is referred to in (ii) above."

16. What is important in that passage, so far as the case before me is concerned, is the second sentence which makes it plain that such requisite intent relates only to those cases in which the circumstances are such that the indecent nature of the conduct is questionable. What I was not specifically referred to in argument either by Mr Egan or Mr Man for the Respondent was the judgment in R v C [1992] CLR 642 which is dealt with in the final paragraph of 20.149 of Archbold.

17. What (inter alia) that judgment determined was as follows:-

"it was important to bear in mind that Court was a case of equivocal indecent assault in the sense that what occurred could or could not be regarded as indecent,.....However, in cases such as the present there was no equivocal aspect to the assault if it occurred it was undoubtedly indecent. There was no requirement to consider C's motive or intent if he in fact did what was alleged. It would be clear beyond doubt that it was indecent and in such a situation the House of Lords was not altering the position which previously pertained on the requisite intent for indecent assault. All they were seeking to do was deal with ways in which in the case of an equivocal action the nature of the assault itself could be identified. That was clear from the way in which they answered the certified question. Whilst Lord Keith had said "that a wicked intention is an essential ingredient of the offence of indecent assault, as indeed it is of most other crimes against the person" (p. 33B), he agreed with the speeches of Lords Griffiths and Ackner and should not be regarded as indicating any different approach to that indicated in those speeches. That being so, what was the law prior to Court remains the law and indecent assault remains an offence of basic intent,......"

18. If that is a correct determination of the law, and for my part I certainly accept that it is, proof of an intention on the part of the appellant, beyond a basic intention to assault the victim, was not required.

19. It must therefore follow that if the appellant's assault upon the victim (and nobody doubts that there was an assault) was undoubtedly or unequivocably indecent then no proof of his intention beyond an intention to commit 'an assault' is required and it must inevitably follow a magistrate or tribunal is not required to address the question of any intended indecency when giving reasons for a conviction.

20. For what it is worth I am in no doubt, even on the appellant's account of matters at trial, that when he lifted the victim's skirt in the circumstances in which he did so that was itself an inherently indecent assault.

21. I say 'for what it is worth' because of course the magistrate rejected the account of the appellant and accepted that of the victim that he had in fact touched the area of her private parts. That was the more 'inherently indecent' and, for myself, I cannot imagine that any 'right minded person' would conclude otherwise.

22. For all of these reasons the appeal against conviction must be dismissed.

Appeal against sentence

23. Given the nature of this offence I do not agree with the contention that the magistrate should have deferred sentence and called for a Community Service Order report. That would have served no realistic purpose.

24. It is my view however, given the 'bizarre' nature of the offence (as described by the magistrate) and the appellant's conduct generally on the night in question, that a psychiatric report might have been helpful in deciding whether a custodial sentence was appropriate not only for the offence but also for the offender. In particular such a report might have indicated the need for some treatment and, if so, where such treatment might be administered.

25. That being so the appellant will be remanded in custody now for that purpose and he will be brought back before this court on the 18 October at 9:30 a.m. for me to consider further the question of sentence in the light of what such report might say.