HKSAR v. LEE HON SUN

HCMA 853/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 853 OF 2002

(ON APPEAL FROM NKCC 2940/2002)

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J U D G M E N T

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1. The Appellant was convicted of one charge of Indecent Assault and sentenced to three weeks' imprisonment. He lodged his appeal against both conviction and sentence. Before me, he pursued only the former.

The Prosecution's Case

2. The prosecution's case was that the Appellant followed PW1 into a crowded MTR compartment. There, for five minutes between Tsim Sha Tsui and Mong Kok, he pressed his private parts against her buttocks. This was notwithstanding PW1's attempts to move and avoid contact. The entire incident was witnessed by PW2 to 4, three police officers in plainclothes.

The Proceedings Below

3. All PW1 to 4 gave evidence, but not the Appellant. Instead, he called DW1, a psychiatrist whose evidence was that the Appellant was suffering from panic disorder and had no idea what he was doing.

The Magistrate's Findings

4. The Magistrate found PW1 both credible and reliable, and to have clearly set out the incident in total. On her evidence, and rejecting DW1's, the Magistrate had these findings -

"(i) I find from the description given by PW1 of the object pressed on her, there is an inference that it was the private part of the D that was being pressed onto her; and that it is the only irresistible inference that can be drawn;

(ii) I find from the evidence of PW1 that the pressing by the D's private part had been from TST to MK station;

(iii) I find that the pressing of D's private part onto PW1 was deliberate;

(iv) I find that the pressing by the D's private part was in the eyes of the right-minded person an indecent one;

(v) I find that the D had intentionally committed the assault and that the act was not accidental;"

5. Regarding PW2 to 4, this is what the Magistrate said -

"41. Since I accept the evidence of PW1 in that she found herself to be the second last person to board through the train door of her compartment with the D being the last person. I do not accept that PW2 and PW4 could possibly have boarded the train through the same door as PW1 and the D.

42. As the observations by PW2 and PW4 were made after they have entered the train behind PW1 and the D, although I accept that they were on the train, I am unsure as to where they really stood. I have doubts as to the accuracy of their observations. I therefore disregard the evidence of PW2 and PW4 to the extent that I am unable to give the observations that they made in the train any weight.

43. I have considered the evidence of PW3. His observations of PW2 and PW4 were made from over a distance of 10 feet in a crowded environment. I find that any observations of his would not be completely reliable, hence I do not rely on it."

Grounds of Appeal

6. Mr Macrae has, on behalf of the Appellant, advanced a number of grounds. All of them boil down to the point that, on PW1's evidence alone, the Magistrate was not entitled to her conclusions. As an aside, he criticized the Magistrate for failing to consider a statement made by the Appellant when first taxed of the offence.

The Evidence

7. As pointed out by Counsel, the incident can be divided into stages.

8. The first was from Tsim Sha Tsui to Jordan. It was 6:25 in the evening and very congested. It was so much so that PW1 could only get on the second train that came to the station. Even then, she was the second last one to get on board, to be followed by the Appellant. For the next minute or so, she was stuck between the door and the other passengers. There were so many people that there was not enough room to for her to raise her head. Although she could feel the Appellant's front pressing against her back and buttocks, she conceded that he might not have been able to disengage himself.

9. The second stage was from Jordan to Yau Ma Tei. There was, during the interchange of passengers at Jordan, room for PW1 to move to the end of the seats and hold on to a pole at the glass plate. The Appellant followed her and did the same. When the train moved on, PW1 was again surrounded by people. She was trapped in a small human circle and again felt the Appellant pressing against her back and buttocks. To rid herself of the contact, she had moved her hips and bent one of her legs but all she managed was shift the touching from one buttock to the other. She also sensed horizontal movements of the Appellant's private parts.

10. To put everything in context, PW1 did say that there were gaps (mostly unquantified) between her and the people to her front and sides. What she did not say, however, was the situation at her back. She was asked whether she could see the "crowding condition" (sic) inside the compartment and her answer was that she did not notice. In cross-examination, she conceded that the Appellant might have held on to the same pole to steady himself. She conceded that it was better for him to do so above her shoulder than round her waist. She agreed that the touching shifted from one buttock to the other because she had moved her hips. She agreed that the horizontal movements of the Appellant's private parts were small and she was unsure that it was indecent assault. She conceded that the compartment could still have been crowded.

11. The third stage of the journey was form Yau Ma Tei to Mong Kok. Everything remained more or less the same except the warm, limp "object" that had been pressing against PW1's buttocks became harder. In cross-examination, however, PW1 agreed that that assertion was never in her statement. She agreed that she had never told PW2 to 4 that she had been indecently assaulted, just "touched". She agreed that she was confused by the Appellant's action. She was asked what she meant by that in re-examination and her answer was that she was not sure whether the man had done it with his hands.

Conclusion

12. Having read the evidence in full, I share Mr Macrae's concern about the Magistrate's conclusions. I am unable to see how it can be said beyond reasonable doubt that the touching was deliberate. While what the Appellant did was suspicious to the extreme, that strip of the MTR is, by common knowledge, busiest at those hours. To prove indecent assault, there has got to be clear evidence negating accidental and/or unavoidable contact. The prosecutor was obviously aware of this and had elicited from PW2 such evidence as the condition of the rest of the compartment. With his evidence dismissed at a stroke, however, the evidence of the Appellant's pressing was left in a vacuum.

13. I should add that, at the time of the alleged offence, the Appellant was carrying a plastic bag. In it was or were one or some mobile phone case(s). This is what the police found, hence real evidence, and does not form part of their observation. Given PW1's "confusion" as to what it was that actually pressed against her buttocks (hands or private parts) a third possibility was something that ought to have been dealt with. It was not.

14. In my judgment, this is a case where an intervention on the findings of fact is justified. This being so, there is no need to deal with Mr Macrae's other point. The Appellant's conviction is quashed and his sentence set aside.