HKSAR v. BHALLA RAM

HCMA691/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.691 OF 2002

(ON APPEAL FROM WSCC 616 OF 2002)

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J U D G M E N T

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1. These are always difficult cases. The appellant in this matter is a married man, aged 35, a man of previous good character. He has a six year-old son. He is a long time resident of Hong Kong, a university graduate. His wife has good employment. He has indicated to me that, unfortunately, he has been unemployed for a year or so and that his wife is the sole breadwinner.

2. And now, on 5 June this year, following a trial before Mr Wyeth at the Western Magistrates' Court, he was convicted on a charge of indecent assault, a type of offence which, I am afraid to say, is rather prevalent on our crowded public transport system. On this occasion, the complainant who was a young woman was travelling on a cross tunnel bus. The appellant sat next to her. He says he was intoxicated. I suspect he probably was given the nature of the allegations that he had placed his hand on her thigh. She made it abundantly clear that she required him to desist. He, notwithstanding, that very firm instruction, continued to try more of the same and he did so on two or three occasions after she told him to stop. That must have been a very alarming incident for the complainant. She at least had the presence of mind to make a telephone call on her mobile telephone. The bus was eventually stopped. The police came. The defendant at that stage denied the matter. He then, at trial, pleaded not guilty, persisted in a defence to the effect that this had all been invented by the complainant. By virtue of his not guilty plea, she had to come to court and tell the court all about it. The appellant was then convicted in really the face of strong evidence. The learned magistrate was alive to the gravity of the offence and having regard to the authorities which bear on this type of behaviour, he imposed a sentence of 21 days' imprisonment. Given the short sentence, he correctly admitted the appellant to bail pending to his appeal.

3. Wisely, in my view, the appellant has, this morning, withdrawn his appeal against conviction. So the only matter that I now need to consider is whether the sentence of 21 days can properly be said to be wrong in principle or manifestly excessive or perhaps, in the general exercise of my discretion, whether there is material here which would justify interference.

4. Quite clearly, a sentence of 21 days following a plea of not guilty cannot be said to be wrong in principle or remotely manifestly excessive. In fact the appellant today has thrown himself at the mercy of the court. I accept that this was behaviour that was completely out of character and I have no doubt that he is a man who usually conducts himself in a respectable way. He is a family man and it is always difficult when faced with this sort of individual to send someone like this to prison. But one really must approach these matters consistently. We have a crowded transport system. Women who use the transport system are susceptable to this sort of behaviour. It is very distressing for women to have to put up with this sort of behaviour.

5. The appellant behaved in a most unattractive way and then carried this forward by pleading not guilty and instructing his counsel to call the complainant's honesty into question. I am sorry. There is nothing here that would justify my interfering with the sentence. The appeal must stand dismissed.