HKSAR v. LAU PIK CHEONG PATRICK

HCMA 35/2017

[2018] HKCFI 579

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 35 OF 2017

(ON APPEAL FROM KTCC NO 3201 OF 2016)

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JUDGMENT

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Introduction

1.  The appellant was charged with one count of “indecent assault”,contrary to section 122(1) of the Crimes Ordinance (Cap. 200).  He pleaded not guilty to the charge but was convicted after trial by Deputy Magistrate Chao Tsz-kwan, Jolie (“the magistrate”) and was sentenced to 28 days’ imprisonment.  The appellant now appeals against his conviction and was granted bail pending appeal.

The prosecution case

2.  The incident took place on 10 December 2015 inside a compartment of a MTR train leaving from the platform of the Mongkok Station towards the direction to Central when the appellant entered the compartment and suddenly used his both hands to grab PW1, a Thai woman’s breast for about a second who was standing close to the doorway at the time.  PW1 felt painful and moved 1 or 2 steps backward.  The appellant pretended as if nothing had happened.  PW1 was angry and accused the appellant in her broken Cantonese.  The appellant looked at her and told her to shut up.  He was well-built and PW1 was scared and she went away and did not talk to him further.  She later sat down on the passenger seat and took out her mobile phone to take a picture of the appellant.  When the train arrived at the Tsim Sha Tsui Station and the train door was about to close, the appellant suddenly jumped out of the train and was nowhere to be found.  PW1 continued with her journey to work and later called her supervisor, Ms. Chan (PW2) and reported that she would be late for work in the restaurant.  She also complained to PW2 about the incident of her being indecently assaulted by a male on the MTR train.  PW1 however did not make a report to the police thereafter.

3.  On 31 January 2016, at around 1030 hours, PW1 travelled by the MTR to work as usual and changed at Mongkok Station. When PW1 was about to get onto the train, she immediately recognized the appellant as the male who had indecently assaulted her. The appellant was leaning his body against the glass panel near the doorway. PW1 recognized his face on the side, and she also recognized the same rucksack which he was carrying was the same she saw the male was carrying on 10 December 2015.

4.  PW1 kept an eye on the appellant inside the train and she took out her mobile phone to take a picture of him.  The appellant later got off at Admiralty Station and went the opposite platform of the Island line.  PW1 followed the appellant all the way to Wanchai Station. She followed  the appellant to go up to the concourse using the escalator.  She took more pictures of him but thereafter, the appellant turned back and saw her.  The appellant asked her why she had to take picture of him and he said he had to call the police.  PW1 also called the police subsequently. 

5.  Police officers including WPC 12011 (PW3) were summonsed to Wanchai Station to handle the dispute.  After investigation, PW3 subsequently arrested the appellant for the offence of “Indecent Assault” and cautioned him.  In reply to the caution, the appellant said, “Her back was towards the compartment.  I did not do this.”  The statement was post-recorded in the notebook[1] between 1235 and 1320 hours on the same day in Wanchai Police Station (“the notebook”).

6.  It was also not in dispute that subsequently, between 2005 and 2100 hours, inside Mongkok Police Station, WDPC 55631 Chan Choi Fung conducted a cautioned record of interview[2] with the appellant (“the cautioned statement”). At trial, the defence took no issue of voluntariness in both the notebook and cautioned statement.

The defence case

7.  The appellant elected to give evidence, but did not call any defence witness.

8.  At the trial, the appellant took no issue of identity in this case.  He simply denied that he had indecently assaulted PW1 as alleged.

9.  On 10 December 2015, he went to his office at Wanchai in the morning as usual.  He left his home in Mongkok at 1020 hours with his rucksack loaded with various items inside.  He took MTR at Mongkok Station.  As soon as he arrived at the platform, he saw a MTR train had already entered into the platform, with doors open and there were many people in the doorway at different doors.  He tried to look for a compartment with fewer people at the doorway so as to enter the train.  He found one and then he heard the door closing sound.  He immediately rushed into that compartment, and at the time, he was holding his mobile phone in his right hand, with his rucksack in front of him. 

10.  The appellant stated that after he had got into the compartment, he saw PW1 standing in the middle of the doorway which was relatively to the left hand-side.  He did not see her face but only her back.  He said after he had entered the compartment, he might have accidentally brushed her back once.  PW1 then moved a few steps forward to the middle of the compartment, turned around and looked at him.  She said something to herself but he did not know what she was saying.  He ignored her and remained near the door thereafter.  He got off at Admiralty Station and took another train to Wanchai Station as usual.

11.  At about 1030 hours on 31 January 2016, the appellant took the MTR at Mongkok Station to go to work.  During the journey, he noticed PW1 in the middle of the compartment using her mobile phone facing him.  He did not know what she was doing and he did not recognize her at the time.  He got off at the Admiralty Station to interchange at the opposite platform as usual.  After he had got onto the train and before the train arrived at the Wanchai Station, he saw PW1 moving closer to him and used her mobile phone to take pictures of him secretly.  He told her to stop taking pictures of him or he would call the police.  PW1 did not stop and took a picture of him. 

12.  The appellant alighted from the train at Wanchai Station and he was followed by PW1.  As he took the ascending escalator, she was at a higher level, and he was at a lower level.  PW1 turned back and kept taking pictures of him.  Besides, she also used her right hand to hit his shoulders many times.  He then took out a torch from his rucksack and pointed it to her in order to stop her from taking pictures of him.  The appellant confirmed in the trial that the male image shown in the two photos[3] captured by PW1 in her mobile phone was him.

13.  When the appellant and PW1 both arrived at the concourse, he pointed at PW1 and asked her not to leave.  He told her he would call the police.  He went to the ticket office and asked the MTR staff to call the police.  The staff took them to the office where they waited for the police to arrive.  After waiting for more than 15 minutes, one female and one male officer arrived.  The male police officer talked to him while the female police officer talked to PW1.  About 15 minutes later, another police officer in white shirt came.  He asked PW1 some questions and the appellant was later arrested.

Grounds of appeal

14.  Mr Victor Lee, on behalf of the appellant, put forward altogether six grounds in support of the appeal as follows:

 (1) the magistrate failed to properly consider the credibility of the appellant based on the principle of Lee Fuk-hing v HKSAR [2005] 1 HKLRD 349;

 (2) the magistrate failed to properly consider the whole content of the cautioned statements of the appellant which are mixed statements and she erred in finding that the appellant’s claiming that he did not know and recognize who PW1 was until later in the investigation could not be true;

 (3) the magistrate was wrong to hold that when the appellant grabbed the breasts of PW1, the train had already departed from the platform.  Such finding was both illogical and inherently improbable in view of the evidence of prosecution witnesses;

 (4) the magistrate failed to give adequate reasons on her findings that the appellant was evasive and frequently did not answer questions put to him in a straightforward manner;

 (5) the magistrate failed to properly consider or pay sufficient attention to the discrepancies between the evidence of PW1 and PW2; and

 (6) the magistrate failed to properly resolve the discrepancy of PW1’s evidence in her findings in that she said in evidence that the appellant grabbed her breast but she also admitted that she told PW2 that a man had pressed her breasts.

The respondent’s reply

15.  Ms. Christal Chan, Senior Public Prosecutor, on behalf of the respondent, submitted in reply that the magistrate had fully considered all the evidence of the case.  It is submitted that, having considered all the evidence and applying the appropriate legal principles, the magistrate was correct to convict the appellant as charged and the appeal against conviction should be dismissed.  I shall refer to her submissions on each ground of appeal in more details in the following discussion.

Discussion

16.  I shall first deal with ground (3) to (6).  As can be seen, these grounds of appeals revolve around the credibility and reliability of PW1 and appellant which were already argued before the magistrate.  They are nothing more than repeated attempts to criticize the magistrate to accept PW1 as an honest and truthful witness and incidentally her decision to reject the evidence of the appellant as testified at the trial before her.

17.  It must be remembered that the magistrate had the advantage of seeing and hearing the witnesses and was in a better position to assess their credibility.  The appellate court would only depart from a magistrate’s determination of a witness’s credibility if it was “plainly wrong”.

18.  I would like to repeat the following passage by Stock J (as he then was) in R v Kwong Wing On and Another HCMA 574/1996:

“[12] Pausing at this juncture, I would say this: that microscopic dissection of a transcript will always uncover a discrepancy, a failure to answer a question, some inherent improbability or other,a piece of evidence not included in statements to the police, and a myriad of bits and pieces upon which to build pages of grounds of appeal. In the real world, and even with truthful witnesses, these discrepancies, improbabilities, and omissions will occur. Indeed if they do not, then the evidence is attacked as being artificial or collusive. A magistrate is not expected to deal expressly with every comforting crumb to which the defence may be able to point. A realistic attitude must be encouraged, and the approach to such attacks is to ask whether there have been material and significant discrepancies, improbabilities or omissions, such as would lead or should lead a tribunal to doubt credibility on central facts.”

19.  There is no substance on ground (3).  I entirely agree with the respondent’s analysis that there is no inherent improbability in the magistrate’s findings.  As Ms. Chan has correctly submitted, PW1 had been consistent in saying that the grabbing of her breasts lasted only for one second[4] and when the appellant grabbed her breasts, the train already departed fora while[5].  In fact, that is also consistent with the evidence of the appellant in that he also said when he found the doorway to enter the train compartment, he already heard the door closing sound.  Viewed in this light, the evidence of PW1 was perfectly reasonable and logical.  In light of the fact that the “grabbing” lasted only for a very short duration, about one second, I fail to see the logic and reasoning of this ground by Mr. Lee.  The offence happened when the appellant jumped into the train compartment at the time when it was about to leave.  He used his both hands to grab the breasts of PW1 once for about one second and in that second, the train had already departed from the station for a while.  There is no inherent improbability in what PW1 had said in the witness box.

20.  There is also nothing in ground (4).  In this ground, Mr. Lee cited HKSAR v CKS [2012] 3 HKLRD 588 and criticized the magistrate as she did not sufficiently state which part of the appellant’s evidence was evasive or which straightforward questions he did not answer.  As a professional judge, it was submitted that the magistrate was obliged to give reasons and not just conclusions.

21.  The magistrate had explained in great details in her Statement of Findings from paragraphs 46 to 53 how she arrived at the conclusion that she rejected the evidence of the appellant including observing the demeanor of the appellant when he testified and his making fresh evidence and allegation from the witness box in contrast with his cautioned statements.  I fail to see how the magistrate could still be criticized for failing to give adequate reasons on her findings against the appellant’s credibility.  The magistrate has demonstrated that she was fully aware of her duty to give adequate reasons for her findings in those paragraphs in her Statement of Findings.

22.  I can also deal with ground (5) and (6) together.  In ground (5), Mr. Lee quoted from the transcript of the trial and attempted to capitalize the discrepancies of evidence between PW1 and PW2 and submitted that the magistrate had failed to properly consider or pay sufficient attention to those discrepancies.  In ground (6), it was submitted that the magistrate failed to resolve the discrepancy of PW1’s evidence.  The alleged discrepancies are as follows:

 (i) PW1 gave evidence that after the indecent assault, she asked the appellant in Cantonese “What’s wrong?”  “Why did you rush in?”  “Is it an indecent assault?”  “Why you bully on a woman”. PW1 said the appellant replied to her by asking her to shut up and told her “Call the police”.  (p. 94I – K)

 (ii) PW1 further said she told her manager, PW2, the whole incident.  (p. 96C). Later in the cross-examination, she said when she called PW2, she told PW2 that a man had pressed against her breasts, not grab or squeezed.  It was because she was nervous and did not speak good Cantonese.

 (iii) PW2 in her evidence said that at the phone call, PW1 mentioned that she asked “Why you treat me like this?”  She asked that male but he didn’t reply.  (p. 132J – L)

 (iv) When PW2 was asked “Is it also true that there is no mention on the phone call to you on 10 December by PW1, that her breasts were grabbed for one second?”  PW2 said “No”.  (p. 132N – O) 

The first thing to remember is PW2 was not a direct witness.  She was only receiving PW1’s recent complaint and repeated what she heard from PW1 over the telephone.  The respondent was right to remind me that PW1 was a Thai lady and she was in a state of shock when she called up PW2.  That there might have been some immaterial difference in details when she recalled the incident was perfectly understandable.  The difference between “grabbing” and “pressing” was not as significant as it looks due to the fact that PW1’s mother tongue is Thai and not Cantonese.  In fact, PW1 also said in court that “when I called I was nervous.  I do not speak good Cantonese.”  I also fully agree with the submission by Ms. Chan that there is no “material and significant discrepancies” in the evidence of PW1 and PW2 that “would lead or should lead a tribunal to doubt credibility on central facts” as stated by Stock J (as he then was) at paragraph 12 of R v Kwong Wing On and Another (supra).  Reading the Statement of the Findings as a whole, it is quite clear that the magistrate has adverted to the alleged discrepancies between PW1 and PW2 and having seen and heard them giving evidence in court, she was perfectly entitled to find both PW1 and PW2 honest and reliable witnesses and accepted their evidence together.

23.  Grounds (3) to (6) therefore fails.

24.  I now turn to Ground (1) put forward by Mr. Lee which is about the magistrate’s finding of the credibility against the appellant had involved infringement on the principle of right of silence of a defendant as stated in Lee Fuk-hing v HKSAR (supra).  It was submitted that it was inappropriate for the magistrate to use the appellant’s silence against him.

25.  Mr. Lee said the magistrate erred in finding that the appellant was making up allegations in the witness box as she was in fact relying on the fact that the appellant did not told the police the following matters of the defence case:

 (i) the allegation of PW1 had hit the appellant on 31 January 2016; 

 (ii) the situation that the appellant was holding a mobile phone on his right hand; and

 (iii) the rucksack of the appellant might have brushed the back of victim.

26.  Mr. Lee criticized the magistrate for adversely finding the credibility of the appellant based on his failure of explanation under caution. Ms. Chan, on the other hand, submitted that the appellant in the present case had waived his right of silence by making statements under caution.  She submitted that the appellant made a statement under caution and that is different from a situation where he remained silent.  The magistrate was therefore entitled, sitting as the tribunal of law and facts, to consider the appellant’s cautioned statement and ‘draw relevant and fair inferences’ even if they are adverse to the accused.  The respondent submitted that there is no substance in this ground.

27.  It is true that In Lee Fuk-hing (supra), the Court of Final Appeal said that:

“ it is inappropriate in Hong Kong to use a person’s silence against him in any way”.[6]

But the court also clarified that:

“if an accused person makes a statement to the police (under caution or otherwise) which is inconsistent with his defence which can be fairly criticized on other grounds it is open to the prosecution to cross examine and comment upon that statement and its relevance to the defence. The judge may also invite the jury to draw relevant and fair inferences even if they are adverse to the accused.”[7]

28.  As the matter stands, the appellant did not remain silent under caution. He had both replied under caution when he was arrested by PW3 in the MTR station and later when he was in the police station for further investigation.  In both occasions, the appellant maintained that PW1’s back was towards him when he entered the compartment and he generally denied the allegation of indecent assault by PW1.  In answer (4) of the subsequent cautioned statement, the appellant further said, “Because I usually carried my backpack in front of me on my chest, with my hands engaged in playing (mobile/video games), it’s totally impossible for (me) to indecently assault others.” 

29.  This answer was apparently in contrast with what he said in court in that his rucksack might have brushed the back of PW1 and also he was holding his mobile phone on his right hand when he entered the compartment.  The magistrate was thus entitled to take these discrepancies into account and came to the conclusion as she did that the appellant was making up his story as he testified in the witness box.

30.  As for the comment by the Magistrate over the appellant’s failure to mention that he was hit by her on the shoulder on 31 January 2016 when she took photos of him on the escalator, I would agree that first looking at the matter, it was not inconsistent with his statement to the police but after reading the Statement of Findings more carefully, it was obvious to me that here the magistrate was only repeating the submission by the prosecution that he never made such a complaint to PW3 as well as under caution at scene or during the record of interview.

31.  In the paragraphs that followed, the magistrate was rather concentrated on discussing her findings that based on the appellant’s reply under caution that her back was towards the compartment, his assertion that he did not know and recognize PW1 until later in the investigation could not be true.  It was against this background and based on this finding that the magistrate commented that at the time of the arrest, the appellant should know what the allegation by PW1 against him was all about yet he still did not mention to PW3 that PW1 had hit him at all on that day.  In my judgment, this is only a fair comment in light of the state of the evidence and one must also not forget that PW1, whose evidence the magistrate had entirely accepted, has never admitted ever hitting the appellant on his shoulder on 31 January 2016 as put by the defence. 

32.  As for ground (2), Mr. Lee submitted that the magistrate failed to properly consider the whole contents of his statements in the notebook in which the appellant stated under caution that “Her back was towards the compartment, I did not do this.”[8]  In the cautioned statement, Mr. Lee submitted that the appellant had already explained what he meant by saying “What I want to say is that usually, I saw the people standing with their back towards the compartment.  I guessed that the woman also stood in this way on that day, that’s why I said so.”

33.  Mr. Lee apparently relied on R v Sharp [1988] 1 WLR 7 and criticized the magistrate for failing to properly consider the whole content of the appellant’s statement and to use his oral reply alone and disregard his explanation on the cautioned statement when she made an adverse finding against the appellant.

34.  In response, Ms. Chan submitted that the magistrate had given appropriate considerations in all the statements given by the appellant including his verbal reply at the scene under caution and his subsequent cautioned statement.  Ms. Chan said the magistrate in her Statement of Findings[9] made lengthy reference to the mixed statement made by the appellant.  From paragraphs 49 to 51, she considered the circumstances and timing the appellant said the mixed statement and stated, “He was able to give a direct response to this allegation of indecent assault against Ms X”[10]. She considered the content of the mixed statement with his subsequent cautioned statement as well as the evidence he gave in the witness box[11]. It is the submitted that the magistrate had given sufficient and careful consideration of the mixed statement. 

35.  In my judgment, the magistrate had clearly rejected the appellant’s explanation in his cautioned statement as untrue when he apparently was able to give a direct response at the scene to a specific serious allegation of indecent assault by a woman he said he did not remember seeing before. It was odd, to say the least, for him to say in immediate response to the allegation that “her back was towards me” at the material time if he only meant that it was because usually people was standing with their backs against the door of compartment.  We all know from our experience travelling in the MTR that many people are also standing in the opposite direction facing the door of the compartment.  It is perhaps unfortunate that the magistrate did not mention the appellant’s explanation in his cautioned statement but there is no basis to submit that she did not consider his explanation at all and even from the perspective of re-hearing, I would still say that the appellant’s explanation in this regard in his cautioned statement was just so illogical as well as nonsensical and should be rejected by the magistrate.

36.  There first two grounds thus also fail.

Conclusion

37.  For these reasons, I am satisfied that the magistrate had fairly and properly considered the issues raised by the appellant and was not plainly wrong in her findings as to the credibility of the prosecution witnesses especially PW1.  There is no merit or substance on any ground of the appeal and I find no basis to interfere with the Magistrate’s finding of facts and the conclusion that she has reached and the appeal is accordingly dismissed.

38.  The appellant should serve his 28 days’ imprisonment sentence forthwith.