HKSAR v. FUNG PING LUNG

HCMA 671/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 671 OF 2003

(ON APPEAL FROM KCCC 7827/2003)

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J U D G M E N T

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1. This is an appeal against conviction. The Appellant was convicted after trial of one charge of indecent assault. The prosecution's case was that on the material day at about 6:15 p.m., the Appellant was seen to be standing behind PW1 and that he repeatedly pressed his private parts against her buttock. This was on two distinct occasions and on the last occasion before he left the train, he touched her buttocks.

2. The learned Magistrate noted that the Appellant is a man of clear record and that is, therefore, relevant when he was considering propensity. The learned Magistrate also noted that there was no issue of identity involved and the defence would be one of denial that there was any contact with the body of the victim. So the learned Magistrate correctly pointed out at paragraph 6 in the Statement of Findings that it was not suggested by the defence that if "the alleged acts occurred, they would not be an indecent assault".

3. The learned Magistrate then proceeded to deal with the evidence of the two police officers who were witnesses to the assault. One was a senior police constable (PW2) and the other was a police sergeant (PW3). They noticed the Appellant standing in an area between two platforms and they suspected that he was paying particular attention to passing females, so they put him under observation. It was an admitted fact that the Appellant had entered the MTR station at 5:23 p.m. at Jordan station. He was seen by the two police officers on the platform of Tsimshatsui MTR station at 6:15 p.m..

4. Then, PW2 saw the Appellant join a queue of passengers waiting for the train to Yaumatei. The Appellant positioned himself behind PW1 and so PW2 and 3 continued their observation. When the train arrived, the Appellant followed PW1 into the MTR compartment. The police officers noticed that the Appellant stood behind PW1. The police's witnesses said that the train was crowded but not as packed as sometimes is the case and therefore passengers were not forced to stand against each other.

5. PW1's account was that when the train left Tsimshatsui station, she realized that there was a man behind her pressing with his private parts and it occurred seven or eight times between Tsimshatsui and Jordan. At Jordan station, passengers got off. The train became less crowded.

6. PW1 said she, at some point, did glance over her left shoulder and saw the man. As the train then proceeded towards Yaumatei, she moved and the man moved behind her and then did the same pressing action again. She said she looked again and saw it was the same man but she ignored what was happening because she said she was due to alight at Yaumatei.

7. When the train arrived at the station and before the door opened, she said she moved slightly forward and as she moved off, she felt a touch to the left side of her buttock. She immediately turned to look and saw that it was the same man who had been standing behind her and this man's hand was withdrawing from her. When she alighted from the train, she was intercepted by a police officer and she also saw that the police had intercepted the Appellant.

8. The learned Magistrate in his Statement of Findings then dealt with the discrepancies which had emerged from the evidence of the prosecution witnesses. The learned Magistrate also noticed, in paragraph 25 on the Statement of Findings, that PW3 actually saw the Appellant bending his knees and also saw the Appellant touching the victim.

9. At Yaumatei station, PW3 said he intercepted the Appellant and asked him to go to the platform and the Appellant said to him: "Don't get me wrong; I didn't do anything". When asked what he meant by that the Appellant remained silent. It was put by counsel representing the Appellant to all the witnesses that the Appellant had not touched the complainant.

10. The learned Magistrate found as a fact that the three prosecution witnesses were honest witnesses and that they were all trying to give an accurate account of the events. He was particularly impressed with PW1 and believed her although he did find that some part of her evidence was not accurate. The learned Magistrate then went on to deal with the discrepancies which became apparent in the evidence of PW1 as against PW2 and 3. For example, the exact positions of the participant in the train whether the PW1 took one step or two to her left whether she was one body space or two from the Appellant at the particular point in time. He considered that these were not important discrepancies. As for the discrepancy between the timing of the touch itself given by PW1 in court and in her witness statement, again the learned Magistrate considered that time estimates are unreliable and he did not find that that had affected the reliability of PW1.

11. The learned Magistrate also considered the fact that PW1 would naturally have been upset and anxious at the time and therefore the mistakes she may have made in her evidence were not of such a quality that would undermine her evidence. It was also submitted to the learned magistrate that the PW1 did not intend to report to the police and had not screamed indecent assault and the learned Magistrate, after considering the submissions, decided that he accepted PW1's evidence that as she was about to alight she thought the problem was about to go away.

12. The learned Magistrate at paragraph 41 of Statement of Findings alluded to the fact that there were different words used to describe the touching by the hand but he did not find that these descriptions had any adverse bearing on the credibility of the witnesses.

13. So at the end of day, the learned Magistrate found that the evidence was overwhelming and convicted the Appellant. The Appellant was represented by counsel at his trial and he elected not to give evidence. On appeal, he is also represented by counsel and Ms Yiu submitted a total of eight grounds on his behalf.

14. In her first ground of the appeal, she complained that the learned Magistrate had failed to reconcile the inherent improbabilities of the prosecution's evidence. This was in relation to the height of the Appellant as opposed to that of PW1. It had been submitted by defence counsel before the learned Magistrate and the learned Magistrate, as I have said, did note that it was the evidence of one of the police officers that he saw the Appellant bending his knees at the time of the assault. As to the other two complaints about the reaction of PW1 and the movement of the party inside the compartment, the learned Magistrate had already dealt with that.

15. As to the second ground that the learned Magistrate had failed to resolve the major discrepancies and inconsistency, I find no merit in that ground of appeal and similarly, I do not find any merit in ground 3.

16. The fourth ground that the learned Magistrate was biased against the Appellant when he considered that the Appellant was in the MTR station for over 50 minutes before he was seen by the police officers, that the Appellant was using the time to pick his victim. Ms Yiu complained that by saying that the learned Magistrate was biased against the Appellant. Also she complained about the folding of the envelope which the Appellant was holding, both these matters, the learned Magistrate had inferred from the circumstances of the case before him. And I do not find any merit in the complaint that the learned Magistrate had therefore been biased.

17. Again the ground 5, I find no merit in the complaint that the learned Magistrate had failed to consider the issue of propensity thoroughly. The learned Magistrate had not only reminded himself of the clear record of the Appellant but the learned Magistrate was well aware of the occupation of the Appellant at that time as he was a Customs Officer.

18. Ground 6 was an attack on the learned Magistrate's constant interruptions but there was no merit in this ground because the areas that were pointed out to me show that on those occasions the learned Magistrate was wholly justified in interrupting the questioning of counsel.

19. Ground 7 is a complaint that the prosecution had failed to prove the requisite mense rea of the offence. Mr Lam had correctly pointed out by referring to the case of HKSAR v Chan Sai Yung, MA No. 162 of 2002. Mr Justice Jackson there had held and said that:

"Indecent assault remained an offence of basic intent. In cases where the assault was undoubtedly or unequivocally indecent, as was the case here, no proof of intention beyond an intention to commit an assault was required and adopted that."

20. There was no doubt at all that the circumstances of this indecent assault as described by the witnesses show that this assault was undoubtedly and unequivocally indecent. Finally, Ms Yiu submitted that there is a lurking doubt in this case but I find no such doubt. So the appeal is dismissed.