HKSAR v. AU MAN KIT

HCMA737/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 737 OF 2010

(ON APPEAL FROM KTCC 2753 OF 2010)

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REASONS FOR JUDGMENT

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Introduction

1.  The appellant was charged with 2 counts of “indecent assault”, contrary to section 122(1) of the Crimes Ordinance, Cap. 200.  On 18 August 2010 he was convicted after trial at the Kwun Tong Magistracy and sentenced to be imprisoned for 4 month.  On 1 April I dismissed his appeal against the convictions and said I would hand down my reasons.  These are my reasons. 

Prosecution case

2.  On 23 January 2010 PW1 the complaint, PW2 and others (Wong and So) together with the appellant went to a restaurant in Tai Kok Tsui for a meal after their overnight shift at “A-Pub”—premises owned by the appellant and where PW1 and PW2 were employed.  After the meal, they all shared a taxi to go home.  Wong took the front passenger seat whilst others sat in the rear PW2 sat on the far left side and immediately on her right was the appellant.  On the right side of the appellant was PW1 and SO was sitting on the far right side. 

3.  SO alighted from the taxi when it arrived at Langham Place in Mongkok.  Then the taxi headed towards Sham Shui Po where PW1 and PW2 had rented a flat and lived together.  During that journey, the appellant kissed PW1 on her mouth against her will.  The appellant also put his right arm around her shoulder and then inserted it underneath PW1’s T-shirt and squeezed her right breast.  He then inserted his right hand into PW1’s jeans and underpants and used two fingers to rub her private part.  PW1 said in evidence that she did not consent to this.  It was the prosecutions case that the appellant had raised his left arm which had a jacket hanging over it so that PW2 could not see what he was doing.  PW1 did not cry for help as she was very frightened and did not know what to do.  The journey took about 5 minutes.  

4.  Having reached their destination, PW1, PW2 and Wong alighted from the taxi, PW1 was distressed.  PW2 and Wong tried to comfort her.  The appellant also alighted from the taxi and was following them.  They hurried into the premises to avoid him.  The appellant pressed the doorbell of the main gate of the flat, until one of the other tenants answered the door. He went to PW1 and PW2’s flat, PW2 answered the door and let the appellant in because he told her that he wanted to use the toilet.  PW2 went out of the room to make a phone call to her supervisor to complain about the appellant’s earlier behaviour. 

5.  The appellant then went into PW1’s room.  PW1 and Wong were frightened and had gone to the bed and covered themselves with a quilt.  The appellant pulled away the quilt and tried to grab hold of Wong. Wong immediately ran out of the room.  The appellant then pulled PW1 to his side and started to unzip her jacket.  At that juncture, PW2 returned to the room and pulled PW1 away and rushed out of the room and as they were running downstairs, the appellant left the flat and was heard to be making a phone call. 

6.  PW2 asked PW1 to report the matter to the police but PW1 refused because she feared they would lose their jobs and they needed their salaries to pay the rent. 

7.  PW1 continued to work at the appellant’s bar until early February when she and PW2 were fired by the appellant.  It was not until 9 March 2010 that the appellant finally paid PW1 her outstanding salary.  After receiving the salary, PW1 met some friends who advised her to report the matter to the police, which she did on the same day. 

Defence case

8.  The appellant elected to give evidence but did not call any witness.  He was 39 years old and had a clear record.  He was the proprietor of “A-Pub”.  It was not in dispute that the appellant, PW1, PW2 and Wong and SO boarded a taxi after their meal at about 11 a.m. on the date of the alleged offences.  However, the appellant said it was SO who took the front passenger seat while the rest took the rear seats.  PW2 took the seat on the far left and next to her was the appellant.  PW1 sat on the right side of the appellant and Wong took the seat on the far right. 

9.  SO got off at Langham Place.  Then the taxi went to PW1 and PW2’s home in Sham Shui Po.  During this journey, PW1 and PW2 were playing and fooling around.  They were making jokes, pushing and pulling at each other.  The appellant who sat between them was annoyed and told them to stop.  The appellant did not indecently assault PW1 in the taxi.  The evidence of PW1 and PW2 that he did was fabricated. 

10.  When the taxi reached PW1 and PW2’s home, both of them and Wong alighted.  As the appellant had to answer the call of nature, he asked the taxi driver to wait for him and he went to their flat to use the toilet which he did and then left.  He had not indecently assaulted PW1 in her room the evidence that he did was fabricated. 

11.  He had fired PW1 and PW2 because they were regularly late for work and did not provide satisfactory explanative for this and not turning up as required. 

12.  The appellant was cross-examined and said, that he lived in Tai Kok Tsui and the restaurant was located within walking distance of his home.  However, he was asked to escort PW1 and her colleagues to their home.  The appellant said that although he was the only male in the party, he did not take the front passenger seat as SO had already taken it. Notwithstanding that he knew PW1 and PW2 were lovers, he did not let PW1 and PW2 sit together because PW1 had asked him to take the seat he did.  When asked why he did not take the front seat when SO departed, the appellant said he knew it was going to be a short journey and he did not bother.  He agreed that he did have a jacket hanging on his forearm in the taxi but he did not use it to block the view of anyone.  He accepted that it would take less than 5 minutes to travel from PW1’s home back to his home and he could have waited until he returned home to use the toilet.  However, he decided to ask to let him use the toilet because he thought they would have no objection.  He did not use the toilet in the restaurant because it was dirty.  PW1 was terminated on 22 February because she was injured when she had tattoo placed on her leg and was always late.  PW2 was terminated on 8 February as she had failed to return to work after having promised to do so on several occasions.  

The appeal

13.  Ground 1 of the perfected grounds of appeal reads as follows :

(1) The learned magistrate erred in failing properly to evaluate the evidence in his Statement of Findings and on a proper evaluation of the evidence he should been left with a doubt as to the guilt of the appellant. 

14.  Thereafter the following particulars of this ground are advanced they being :

(a) The learned magistrate did not specify the facts he found proved and upon which he relied in arriving at his verdict. 

Discussion

15.  The particulars of the offences alleged were :

Charge 1

          Au Man Kit you are charged that on the 23^rd day of January 2010 on board a taxi traveling along Shanghai Street outside Langham Place 331-593 Shanghai Street, Mongkok, Kowloon in Hong Kong.  You did indecently assault another person, namely [PW1].  

Charge 2

          Au Man Kit you are charged that on the 23^rd day of January 2010 at Room B, 1/Floor, 185 Ki Lung Street, Sham Shui Po, Kowloon in Hong Kong.  You did indecently assault another person namely [PW1]. 

16.  The victim named in both charges, PW1, gave evidence which if accepted clearly established that both charges were made out.  She described as to each location on the day specified conduct by the appellant which if not consensual was clearly indecent.  The appellant’s account was that the evidence of PW1 was in its entirety a fabrication.  If this was or may have been true he must have been acquitted. The magistrate did not formally recite the particulars of the charge when finding the offences proved.  He was not required to.  What the magistrate said was this :

“38. Base on the evidence I accepted, I am satisfied that the Defendant did assault PW1 on two occasions as described by PW1 and PW2. I am also satisfied that any reasonable person would consider those acts indecent and the Defendant deliberately assaulted PW1.

39. In conclusion, I am satisfied that the prosecution has proved beyond all reasonable doubt of all elements of the charges…”

17.  Nothing more specific or elaborate was required. The magistrate found that the evidence of PW1 and PW2 was truthful.  The suggestion in this ground of appeal that the magistrate did not properly evaluate the evidence in his Statement of Findings is in fact the substance of ground 2.  

18.  The second part of this ground namely he should have been left with a doubt as to the guilt of the appellant is in effect ground 4. 

19.  Ground 2 of the perfected grounds of appeal reads as follows :

“The learned magistrate erred in concluding that PW1 and PW2 were credible witnesses, despite a number of inconsistencies in their evidence because he failed to direct himself when assessing their evidence that he should treat their evidence with caution.”

Thereafter there are 3 particulars specified which it is said required their evidence to be treated with caution.  

20.  Like the first ground of appeal it is not immediately apparent whether it is suggested the evidence was unreliable because there were inconsistencies as between PW1 and PW2 or that given that there were inconsistencies their evidence had to be approached with greater caution because of the particulars. 

21.  The three particulars specified in ground 2 are as follows :

(a) The nature of the allegations is this case concerned allegations of indecent assault and traditionally such allegations should be treated with caution because such allegations are easy to make and difficult to refute. 

(b) PW1 and PW2 were in a close personal relationship i.e. they were lesbian lovers.  

(c) PW2 made no complaint to the police in this matter until she and PW2 who had been employed by the appellant were dismissed from their employment. 

Inconsistencies

22.  It is to be remembered that both PW1 and PW2 were cross-examined extensively. That is not a criticism of trial counsel but it does mean that the magistrate was fully alert to what inconsistencies there were and whether they were material.  He concluded this :

“28. Defence Counsel submitted that her evidence [PW1] is inconsistent with PW2. While I agree that there are some inconsistencies in their evidence, I consider them minor and immaterial. As the evidence consists of so many details, it is understandable that there are some minor inconsistencies. The ultimate question must be whether they were telling the truth, not whether they gave an account identical to the minute detail.

29. PW1 was unshaken under very thorough cross-examination, and there is no inherent improbability in her evidence. After very careful consideration, I firmly believe she has told the truth. I find her to be an honest and reliable witness, and I accept her evidence.

30. I have carefully considered the evidence of PW2. Her evidence was clear and straightforward. She also gave a very detailed account of the incident and she was unshaken under cross-examination. She was also very sincere and impartial in giving her evidence. For example, her evidence about Charge 2 was that she could not see anything as she was in a hurry to carry PW1 away from the bed. If PW2 were framing up the Defendant, why didn’t she just say that she saw the Defendant unzipping the jacket of PW1 so that her evidence would be totally consistent with PW1?

31. The differences between the evidence of PW1 and PW2 only show that they were not concocting evidence together to frame up the Defendant.  These differences are not inconsistencies as they are not contradictory.  These differences only show that they were giving evidence according to their own memory.”

23.  The inconsistencies that are said on behalf of the appellant should render their evidence unreliable are set out in a table which forms part of the appellants written submissions.  I have examined these.  It suffices to say that they are not such as should have caused the magistrate to consider the evidence of either or both to be unreliable.  They are in the main part concerned with minutiae.  What is not addressed by the magistrate or the appellant’s counsel is the fact that there were a number of matters upon which they were entirely consistent and which upon examination indicated that they had not concocted their accounts.  For example PW1 said in response to a question in cross-examination that PW2 had rung another manager at their place of employment—whilst the appellant was using the toilet in their flat.  This was not in her witness statement and it was alleged that this was a fabrication and yet PW2 also gave the same account and it was adverted to in her witness statement.  She said that after the appellant had left their premises PW2 tried to persuade her to report the matter to the police—but she didn’t because she was afraid that she would lose her job.  PW2’s account was the same.  Both witnesses described how their employment had been terminated—not by the appellant but by another staff member at his behest.  Both did not tell the police that they had been dismissed from their employment. 

24.  There was also the fact that both PW1 and PW2 told the court where each of those who were in the taxi sat that morning—a very different account from that of the appellant.  There was on the face of it logical—the appellant’s was not. 

25.  As to the three particulars specified in this ground of appeal which are submitted should render their evidence to unreliable and engender a reasonable doubt, Mr Reading SC readily acknowledged that a direction to a jury or by a Judge as the fact finder as to the reliability of a complainant in an offence of this nature as suggested in the particulars of this ground of appeal should rarely be necessary or appropriate.  However in support of this ground of appeal.  He referred to a passage from R v Makanjuola and Easton 2 Cr.App.R. 469—(quoted at Archbold Hong Kong 2011 4 219)—which reads :

“ Lord Taylor CJ, giving the judgment of the court, said that they had been invited to give guidance as to the circumstances in which, as a matter of discretion, a judge, in summing up, ought to urge caution in regard to a particular witness and the terms in which that should he done. His Lordship continued:”

‘The circumstances and evidence in criminal cases are infinitely variable and it is impossible to categorise how a judge should deal with them. But it is clear that to carry on giving “discretionary” warnings generally and in the same terms as were previously obligatory would be contrary to the police and purpose of the 1994 Act [enacting the English abrogating provisions]. Whether, as a mater of discretion, a judge should give any warning and if so its strength and terms must depend upon the content and manner of the witness’s evidence, the circumstances of the case and the issues raised. The judge will often consider that no special warning is required at all. Where, however, the witness has been shown to be unreliable, he or she may consider it necessary to urge caution. In a more extreme case, if the witness is shown to have lied, to have made previous false complaints, or to bear the accused some grudge, a stronger warning may be thought appropriate and the judge may suggest it would be wise to look for some supporting material before acting on the impugned witness’s evidence.

…’” [My emphasis]

26.  Mr Reading submitted that the relationship between PW1 and PW2 was such that it raised the very real possibility that they would make untrue allegations against the appellant because of his having sacked them that is to say that bore him a grudge. 

27.  He emphasized the fact that PW1 only reported this matter to the police after the appellant had terminated her employment, in which case it could be said that she bore him a grudge because of that and had chosen to make a false allegations against him.  The magistrate addressed this :

“37. Defence Counsel submitted that it is possible that PW1 and PW2 framed up the Defendant to revenge for being dismissed by the Defendant. I do not believe it is possible. PW1 and PW2 only worked for the Defendant for a very short time. It is common ground that the Defendant had already paid all the salary in arrears. The dismissal cannot be described as amicable, but it was not particularly hostile. The job itself is not particularly good. Why would PW1 and PW2 take the trouble to frame up the Defendant under these circumstances? I do not see any doubt arising from these submissions.”

28.  The magistrate had turned his mind to this possibility.  It was an integral part of the cross-examination of PW1 and PW2 in the trial.  The magistrate was satisfied that this was not a motive.  He was satisfied that their evidence was credible.  There was to my mind no evidential support for the suggestion that they bore the appellant a grudge.  The only part of their evidence and the case generally that should have caused him to be concerned as to the truthfulness of their account was the delay in reporting the matter to the police.  This aspect was canvassed extensively in the trial. The magistrate was alert to its significance.  He was satisfied that the explanation given was sufficient to counter this criticism. 

29.  There was no merit in this ground of appeal. 

30.  Ground 3 reads as follows :

“The magistrate erred in not directing himself to ignore evidence given by PW1 which was patently hearsay.”

31.  Mr Reading accepted that this ground of appeal standing alone could not succeed because on the face of it the magistrate did not rely on any of the hearsay evidence which did emerge in the trial.  He also accepts that it was as a consequence of the cross-examination on behalf of the appellant that evidence which was hearsay emerged. 

32.  There was no merit in this ground of appeal. 

33.  This ground of appeal also failed. 

34.  Ground 4 submits that there must be a lurking doubt in respect of the convictions.  I did not agree. 

35.  The appeal was dismissed.