HKSAR v. CHOI CHEUK FAI

HCMA590/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 590 OF 2008

(ON APPEAL FROM KTCC 917 OF 2008)

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J U D G M E N T

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1. This is an appeal by the appellant against his conviction on 15 May 2008 at Kwun Tong Magistrates’ Court by Ms L.K. Loh of two counts of indecent assault.

2. Both charges alleged that the appellant indecently assaulted Ms Tse Wing Sze (PW1) at a noodle café in the Choi Ming Shopping Centre in Tseung Kwan O on 31 December 2007.

3. Ms Tse, the alleged victim, was a waitress at the noodle café.  Her evidence was that, at 4:30 p.m. on the day in question, the appellant had touched her on the right buttock with his left hand as she was leading him to his seat.  That touching was a subject to the 1^st charge.

4. She said that after he had sat down and given his order, she confirmed his order by pointing at the menu with her finger and that at that point he touched her hand.  After taking the appellant’s order she turned to leave the table and the appellant touched her on the buttock again.  This touching is the subject to the 2^nd charge.  She said that she immediately telephoned to a colleague and made a telephone call to her boy friend, Chiu Chi Wai (PW2), who promised to go to the restaurant immediately.

5. She said that she had asked her boss about the CCTV tape of the shop but her boss had said that the hard disk was without a space and the images of that day were not recorded.

6. She also said that the appellant was a regular customer and that his table was at the corner where her colleagues would not have noticed what he was doing. 

7. Mr Chiu Chi Wai, her boy friend, gave evidence of the complaint made by Ms Tse on the telephone to him.  It was consistent with Ms Tse’s evidence.  He said that she sounded frightened.  He said that when he spoke to the appellant after arriving at the restaurant the appellant had at first denied touching Ms Tse, but when he told the appellant not to leave as he had called the police the appellant had said : “I did it only because I liked her.  Sorry.”

8. The appellant gave evidence that Ms Tse had led him to his table and that he had pointed out the dish he wanted from the menu.  He denied touching her at any time.  He said that when Mr Chiu arrived and accused him of touching Ms Tse and had told him that he had reported it to the police and that he should not leave, he was very scared because he had been falsely accused.  He said he told the police that he did not touch Ms Tse.  

9. The appellant put forward no formal written grounds of appeal.  Before the court today he simply said that he had not committed the offences.  He also said that there were TV cameras in the room and that there were three other waitresses at the doorway who would have seen Ms Tse showing him to the table.  

10. When the case came before the magistrate she had decided the case on the evidence before her.  This is an appeal and therefore this court must consider the case from the same evidence.  The magistrate had the advantage of seeing the witnesses give their evidence.  In such circumstances this court will not interfere with her findings as to the credibility of witnesses unless it can be shown that she was or might be wrong. 

11. I am satisfied that the learned magistrate very carefully evaluated the evidence in this case.  Although it is no longer a legal necessity to do so, she warned herself that it was dangerous to convict on the evidence of the complainant alone unless her evidence was corroborated.  She proceeded on the basis that there was no independent confirmation although the admission which she was satisfied that the appellant had voluntarily made to Mr Chiu was itself confirmation of Ms Tse’s account. 

12. This was a case that ultimately determined upon the magistrate’s assessment of the credibility of the witnesses who gave evidence before her.  She found the prosecution witnesses were truthful witnesses.  She did not believe the appellant.  Nothing that has been said to me by the appellant today casts any doubt in my mind on the correctness of her evaluation of the witnesses.

13. I am satisfied that the learned magistrate was correct when she said that these assaults would have been considered indecent by right-minded people.

14. I dismiss the appeal against conviction.