HKSAR v. SINGH MANJIT

HCMA 659/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 659 OF 2015

(ON APPEAL FROM KCCC 2804 OF 2015)

____________

_______________

J U D G M E N T
_______________

1. The appellant was convicted after trial by Mr David Iu, Deputy Magistrate, of one charge of indecent assault contrary to section 122(1) of the Crimes Ordinance[1], and sentenced to 14 days imprisonment. The appellant appeals against conviction only, having earlier abandoned his appeal against sentence.

INTRODUCTION

2. The charge alleged that on 18 April 2015 the appellant indecently assaulted Miss X inside a No 5 bus which was travelling from Fu Shan to Tsim Sha Tsui. 

PROSECUTION CASE

3. The prosecution called only one witness Miss X. In summary, Miss X testified that at about 7:30am on 18 April 2015 she was waiting at the bus stop on Kin Hing Street, San Po Kong for a No 5 bus.  Miss X was on her way to work.

4. A double-decker bus arrived.  Miss X sat downstairs in the priority seat next to the window on the left hand side of the bus, close to the exit door.  As soon as Miss X sat down, a male, who Miss X described as an Indian or Pakistani male; around 30 years, medium build; 1.75 metres tall, with a beard and short hair and who got on the bus at the same bus stop as Miss X, sat down next to Miss X.  The male was carrying a blackish-red rucksack.  Miss X was puzzled why the male sat next to her as there were other empty seats on the bus. 

5. Miss X crossed her legs with her left leg over her right leg and put a small handbag on top of her left thigh.  Miss X put her arms around her bag while holding her mobile phone, which she played with throughout the journey. 

6. When the bus reached Ping Chi Street in Hung Hom two to three people alighted.  At that moment the male reached out his left hand and touched the inner side of Miss X’s left thigh, close to the knee.  Miss X said the male touched her once for about one second, describing the touch as a downward brush with the male using the lower part of his fingers and the palm of his hand to brush her thigh[2].  Miss X waswearing a short skirt and said that the male touched her skin and not the skirt. 

7. At the time Miss X was still holding her phone and wearing an earpiece.  After brushing, Miss X the male immediately got off the bus.  By the time Miss X realised what had happened the male had already got off the bus. 

8. Miss X only took a glance at the male when he sat next to her.  After the male alighted, Miss X only saw the left side of his face for one to two seconds.  Miss X said she had seen this male four or five times before as they both got on the bus at the same bus stop on Kin Hing Street in San Po Kong. Miss X also recalled having seen the male alight once before at Ping Chi Street. 

9. Miss X did not make a report the same day because she was frightened.  The next day Miss X had a meal with her boyfriend.  When her boyfriend saw Miss X was upset and frightened he asked what had happened.  Miss X then related what had happened on the bus.  The boyfriend told Miss X to make a report to the police and accompanied her to the Wong Tai Sin police station[3].

10. At 7:25am on 25 April, Miss X went to work.  Miss X was frightened and was therefore accompanied by her boyfriend.  While waiting for the bus, Miss X saw the male who indecently assaulted her.  Miss X immediately informed her boyfriend who told her not to get on the bus.  The male got on the bus followed by the boyfriend.  Miss X took the next bus. 

11. The boyfriend later called Miss X saying he had reported the matter to the police and asked Miss X to get off at Ping Chi Street.  On arrival at Ping Chi Street, the police had already stopped the male.  Miss X pointed out the male to the police as the person who had indecently assaulted her[4].  In court, Miss X identified the appellant as this male.

12. Admitted in evidence[5] was that the appellant was arrested on 25 April 2015 and made two records of interview[6], one the same day and the other on 17 June 2015.  In summary, the appellant told the police that on 18 April 2015 he took a route No 5 bus.  When the bus approached his stop the driver applied the brake which caused the appellant to lose his balance and his left hand accidentally touched a Chinese lady.

DEFENCE CASE

13. The appellant elected not to give evidence and called no witnesses.  The defence case put in cross-examination was that the appellant had accidentally touched Miss X[7]. The defence also relied on what the appellant told the police in the two records of interview[8].

MAGISTRATE’S FINDINGS

14. In his statement of findings, the magistrate highlighted two issues for consideration, the identity of the appellant and whether the appellant touched Miss X accidentally[9].

15. The magistrate found Miss X a credible and reliable witness[10] and that full weight was to be attached to the inculpatory parts of the records of interview and no weight to the exculpatory parts[11] .  The magistrate was satisfied that the appellant admitted touching Miss X in the two records of interview[12]; the touch was not accidental[13]; the touch was indecent[14]and that the prosecution had proved all the elements of the offence[15]. 

GROUNDS OF APPEAL

16. Mrs Panesar, counsel for the appellant, advanced a total of six grounds of appeal.  Grounds 1 and 2(a) concern identification.  Grounds 2(b), 3 and 4 concern whether the touch was accidental.  Ground 5 complains that the magistrate failed to consider the issue of mens rea and ground 6 contends that there is a lurking doubt about the safety of the appellant’s conviction. 

THE RESPONDENT’S SUBMISSIONS

17. Mr Franco Kuan, for the respondent, submits that the evidence supporting identification was strong, with clear admissions made by the appellant; that the magistrate resolved all inconsistencies in the evidence; fully considered whether the touching was accidental; and found that the prosecution had proved all the elements of the offence. 

DISCUSSION

18. A magistracy appeal is conducted by way of rehearing on the evidence before the trial court supplemented by any further evidence the appellate court may admit.  Where facts are concerned the appellate tribunal, whilst recognising that it does not enjoy the advantage of having received the evidence at first-hand which the magistrate enjoyed, is required to come to its own conclusion about the guilt of the appellant[16]. 

19. In reaching its own conclusion an appellate court is not entitled to take on a fact finding role based solely on the transcript[17]. An appellate court will, however, only differ from a finding of fact or assessment of credibility when satisfied that the magistrate was plainly wrong[18].

20. In deciding whether a magistrate was plainly wrong an appellate court should objectively determine whether the finding as to credibility of a witness was one that no reasonable magistrate could have reached[19]. In other words, the conviction will be unsafe if the finding of fact made by the trial magistrate is unreasonable, illogical or inherently improbable, or it is shown that the magistrate has misunderstood, misquoted, or failed to consider any significant aspect of the evidence[20].

Identification

21. In his closing submission Mr Karbhari, solicitor representing the appellant at trial, submitted that there was improper identification; there was no identification parade and that the Turnbull[21] guidelines should apply as there was only a fleeting glance[22].  Mrs Panesar submits that this was a classic Turnbull case. 

22. In cross-examination Mr Karbhari asked a few questions about whether Miss X paid attention to the male sitting next to her[23]; that in her first witness statement she told the police she had not seen the male before[24]; and the reason she was able to identify the appellant[25]. Mrs Panesar submits by this cross-examination identity was a “live” issue which the magistrate failed to address properly.  However, to be noted is that at no time did Mr Karbhari put that Miss X was mistaken in her identification.  What was put was that the touching was accidental[26]. 

23. In his statement of findings the magistrate makes no reference to the decision in theR v Turnbull, nor warns himself in accordance with the principles established in Turnbull of the dangers of mistaken identification and the need to look for supporting evidence, where the quality of the identification is poor.  This would appear to be because the magistrate was satisfied that the appellant had admitted identity in the two records of interview[27].  It is therefore essential to determine whether this finding is correct.

24. By ground 1 Mrs Panesar submits that this finding was erroneous and that although the appellant admitted he sat next to a lady who he accidentally touched he did not at any stage admit sitting next to Miss X; that the lady he accidentally touched was Miss X or that he was even on the same bus as Miss X. 

25. Mrs Panesar points out that in the preamble to the first record of interview no details of the alleged offence were given to the appellant.  The appellant was arrested on 25 April for indecent assault[28]. In answer 1, the appellant immediately refers to the date of 18 April saying he took the No 5 bus to work and that when he alighted he lost his balance and accidentally touched a Chinese lady.  I have no doubt the appellant understood he was being arrested in connection with an alleged indecent assault on a bus on 18 April. 

26. In the records of interview the defendant admitted that every day he usually leaves for work at 7:30am and arrives at work at 8:00am; on 18 April 2015 he got on bus No 5 near his home in San Po Kong at about 7:00am to go to work in Hung Hom; he was carrying a rucksack on his shoulders; he sat next to a lady near to the exit door; he never changed seat; and with his left hand he accidentally touched the lady he was sat next to when alighting from the bus[29]. 

27. I have no doubt that the appellant was talking about the same incident as Miss X.  The appellant admitted that he got on the same bus number, the same day and about the same time.  The appellant further admitted that he sat next to a lady by the exit doorsand that he touched the lady with his left hand, albeit accidentally, when alighting from the bus in Hung Hom. 

28. I am satisfied the magistrate was correct in saying that the appellant admitted sitting next to Miss X.  In these circumstances it was not necessary for the magistrate to be seen to give himself a Turnbull direction.  It would however have been better had the magistrate expressly stated whether he relied on the identification of the appellant by Miss X and that he was aware of the dangers of mistaken identification and the need to look for supporting evidence.  The records of interview provided that supporting evidence. 

29. This ground of appeal fails.   

30. For completeness I will deal with ground 2(a) which alleges material discrepancy in the evidence of Miss X and that of her witness statement as to whether she had seen the appellant before. 

31. In evidence-in-chief Miss X said that she had seen the male four or five times[30], whereas in cross-examination Miss X agreed that in her first witness statement made on 19 April, the day after the incident, she told the police she had not seen the male before[31]. 

32. Miss X explained that after she had told the police it was the first time she had seen the male she went back and calmed down.  When trying to recall his face Miss X said it seemed she had seen the male on the bus before.  Asked how many times she had seen the male, Miss X then said she had seen the male four or five times[32].

33. In cross-examination Miss X explained that when giving her first statement her memory was less than clear because she was very, very frightened[33]. Miss X also said that she was terrified and forgot many things but after calming down she began to recall things bit by bit.  Miss X then told the police who took other statements from her[34].

34. The agreement by Miss X in cross-examination that in her first witness statement she told the police she had not seen the male before is immediately followed by Miss X confirming that in further statements she had told the police she had seen the male four or five times[35].

35. In my view it is not at all surprising that after recollection Miss X could remember matters more clearly.  Further, this was not a case of recalling for the first time several months later in court.  As explained by Miss X after calming down she began to recall things bit by bit and then told the police who took other statements from her.

36. There is no merit in this ground of appeal.

Was the touch accidental?

37. Grounds 2(b), 3 and 4 essentially seek to challenge the findings of fact of the magistrate and his assessment of the credibility of Miss X. 

Inconsistencies in the evidence

38. Ground 2 as read with paragraph 26 of Mrs Panesar’s written submission complain of material discrepancies and inconsistencies in the evidence of Miss X and her first witness statement, which the magistrate failed to consider or resolve.  Some of these complaints relate to the issue of identification which has already been addressed. 

39. By ground 2(b) Mrs Panesar submits that there is a material discrepancy as to whether the culprit used the fingertips or the palm of his hand to touch Miss X.

40. In my view, this ground of appeal misstates the evidence.  At no time was fingertips mentioned.  The magistrate correctly stated the evidence of Miss X that the male used the lower end of the fingers close to the palm which brushed Miss X’s thigh[36], which description was agreed by Mr Karbhari[37].

41. Mrs Panesar clarified that her understanding of the evidence was that the lower end of the fingers was referring to the fingertips and that the inconsistency in the evidence of Miss X was not as to which part of the hand was used but whether there was a touch or a brush. 

42. Mrs Panesar submits that Miss X’s evidence in court that the male “brushed” her thigh is inconsistent with what she told the police in her first witness statement.  In cross-examination, Miss X agreed that in her first witness statement she told the police the male used his left palm to “touch” her left inner thigh for about two seconds and did not mention the male “brushed” her thigh[38]. Mr Karbhari also drew this difference to the attention of the magistrate in his closing submission[39].

43. Mrs Panesar submits this inconsistency was not satisfactorily resolved by the magistrate.  The magistrate specifically dealt with the submission made by Mr Karbhari.  The magistrate noted the discrepancies but found them not to be major, obvious or serious in nature.  The magistrate accepted the explanation of Miss X given in re-examination that “touch” and “brush” meant the same thing to her[40]. 

44. In evidence when first describing what had happened Miss X said the male reached out his left hand and “touched” her thigh[41]. When asked to describe which part of the hand was used to touch her thigh.  Miss X replied,

“This part of the hand. He ‘brushed’ it past like this…then he got off[42].”

45. Miss X again used both “brush” and “touch” when asked to demonstrate what the male did[43]. Thereafter Miss X uses “brush” during the remainder of her evidence-in-chief.

46. In cross-examination, Miss X first used “touched”[44].  When Mr Karbhari cross-examined Miss X on her first witness statement in which Miss X said the male “touched” her, Miss X agreed that there was a difference between “touch” and “brush”[45].  This was clarified in re-examination[46] when Miss X said she thought “touch” and “brush” meant the same thing to her and that she had used “brush” in her third and fourth witness statements[47].

47. Although both in evidence-in-chief[48] and cross-examination[49] Miss X said the male “brushed” her not “touched” her, looking at the whole of the evidence of Miss X it is clear that Miss X was using “touch” and “brush” interchangeably.

48. The difference between “touch” and “brush”, if indeed there was a difference, is more apparent than real.  I agree with the magistrate that this was not a major discrepancy which would cause him to doubt the evidence of Miss X. 

49. There is no merit in this ground of appeal.

Failure to consider the defence case

50. Grounds 3 and 4 can be considered together.  By these grounds Mrs Panesar submits that the magistrate failed to properly consider the defence case of accident.   

51. Ground 3 complains that the magistrate wrongly rejected the defence case that the accident occurred because the bus braked suddenly.  In her written submission Mrs Panesar submits there was a fundamental inconsistency in the evidence of Miss X as to whether the bus was moving or was stationary when she was touched[50]. 

52. In evidence Miss X said the bus had stopped[51] whereas in cross-examination she agreed that in her first witness statement she said the bus had almost arrived.  This was when Miss X explained she was terrified when the first statement was taken.  When put she was not sure what the position of the bus was Miss X disagreed, saying she was sure[52].

53. This discrepancy was dealt with by the magistrate who found the difference not to be major, obvious or serious so as to hinder him from accepting the testimony of Miss X[53]. 

54. Notwithstanding this finding, the magistrate nevertheless went onto consider if the appellant had lost his balance when the bus was about to stop, whether the touching was accidental.  The magistrate rejected this version saying that if the appellant had lost his balance this would not have resulted in him brushing the thigh of Miss X[54].

55. The magistrate also dealt with other discrepancies raised by Mr Kabhari[55]. The magistrate gave careful consideration to all the evidence before finding Miss X was a credible and reliable witness.  I can find no error in his reasoning and cannot say he was plainly wrong to accept the evidence of Miss X. 

56. Ground 4 complains that the magistrate failed to consider at all whether the exculpatory parts of the records of interview were true or maybe true and erred in rejecting the exculpatory parts.

57. In her written submission, Mrs Panesar submits that the magistrate should have considered whether the exculpatory parts of the records of interview were true or may be true and whether they raised a reasonable doubt[56].  In her oral submission, Mrs Panesar referred to the cases of Liberato v The Queen[57]; Jim Fai v HKSAR[58] and Lee Fuk Hing v HKSAR[59], submitting that the magistrate should have directed himself in accordance with those decisions.

58. In HKSAR v Chand Gill[60] the Court of Appeal dismissed leave to appeal in respect of the applicant’s conviction for non-consensual buggery.  The applicant then applied pursuant to section 32(2) of the Court of Final Appeal Ordinance[61] for a certificate that a point of law of great and general importance was involved.  The point of law said to be of great and general importance was articulated as:

“Where the defendant elects not to testify under oath but has made a mixed statement under caution which is admitted into evidence, should the jury be directed as to the standard of proof applicable to the out-of-court statements of the accused?”

59. Mrs Panesar, representing the applicant in that case, argued that where a “mixed statement” was put into evidence and the defendant does not himself give evidence on oath, the jury must still be directed that if what is asserted in that record of interview is or may be true, he must be acquitted.  This is the same argument made by Mrs Panesar in this appeal. 

60. The Court of Appeal in declining to certify the question posed rejected Mrs Panesar’s argument that such a direction was necessary where the defendant did not give evidence. 

61. In making the same argument in this appeal Mrs Panesar did not refer to the decision in Chand Gill.  Only when the court indicated that they anticipated this argument being made and asked whether this direction was necessary where the defendant elected not to give evidence, did Mrs Panesar say that she was taking this issue to the Court of Final Appeal, the Court of Appeal having refused to grant a certificate for leave to appeal to the Court of Final Appeal. 

62. Mrs Panesar explained that when she prepared the written submissions she was in the United Kingdom and unaware of the decision of the Court of Appeal.  The Amended Perfected Grounds of Appeal are dated 8 December 2015, which is prior to the date of the judgment in Chand Gill[62]whereas the written submissions are dated 23 January 2016, which is after the date of the judgment.

63. When arguing this ground of appeal, Mrs Panesar was clearly aware that last month the Court of Appeal had rejected the very same argument and therefore should at the very least have told the court of that decision when commencing to argue this ground of appeal. 

64. In Chand Gill the Court of Appeal said that where the applicant did not testify, the judge was obliged to give two particular directions relating to out-of-court statements given by a defendant who did not give evidence.  First, as to credibility, where the applicant has no previous convictions the judge is to tell the jury that his good character supported the credibility of what he had told the police in his record of interview.  Second, the judge was to explain that the jury must consider the whole of a mixed statement in deciding where the truth lay[63].

65. The magistrate gave both directions as to credibility[64] and as to the approach to a “mixed statement”[65]. No complaint is made in regard to these directions. 

66. The Court of Appeal in Chand Gill assuming that the Liberato principles applied with equal force, where a defendant elects not to give evidence, said that the important thing was the message that must be brought home to a jury was that they cannot convict if the defendant raises a reasonable doubt about his guilt[66].  The Court of Appeal was satisfied that the judge had correctly directed the jury[67].

67. The magistrate correctly directed himself with regard to the burden and standard of proof[68]. The magistrate could have been under no misapprehension that not only must he be sure of Miss X’s evidence but also that before he could convict it was for the prosecution to disprove beyond reasonable doubt the appellant’s assertion this was an accident[69].

68. Only after careful consideration of all the evidence did the magistrate conclude that no weight was to be attached to the exculpatory parts of the records of interview, which were not made on oath and had not been tested by cross-examination[70]. I can find no error in the magistrate’s reasoning and cannot say he was plainly wrong to attach no weight to the exculpatory parts of the records of interview.

69. There is no merit in the grounds of appeal that the magistrate failed to properly consider the defence.

70. By Ground 5 Mrs Panesar submits that the magistrate has failed to consider the mens rea of the appellant.  In determining whether the touch was deliberate or accidental the magistrate had considered whether the appellant intended to touch Miss X.  Further the magistrate stated that the prosecution had proved all the elements of the offence, including that the appellant intended to commit such an assault[71]. 

71. There is no merit in this ground of appeal.

72. The final ground of appeal is that there is a lurking doubt.  For the reasons already given there is no merit in this ground of appeal.

73. I find nothing unreasonable, illogical or inherently improbable in the magistrate’s findings or that the magistrate has misunderstood, misquoted, or failed to consider any significant aspect of the evidence.  The appeal being a rehearing I have carefully considered all the evidence in the appeal bundle. Like the magistrate I find no reason not to believe the evidence of Miss X. I agree with the magistrate that full weight should be attached to the admissions in the records of interview and no weight to the exculpatory parts that what happened was an accident.  I reject that what happened was or may have been an accident.  I am satisfied beyond reasonable doubt as to the guilt of the appellant.

74. The appeal against conviction is dismissed.  Having abandoned his appeal against sentence the appellant will now serve his sentence.