HKSAR v. TAM TAT MING

HCMA280/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.280 OF 2000

(ON APPEAL FROM NKCC 6723 OF 1999)

---------------------------

----------------------

J U D G M E N T

----------------------

1. After his trial before a magistrate, the appellant was convicted of one charge of indecent assault. The incident occurred on 29 October 1999 inside an MTR train travelling from Prince Edward Station to Shek Kip Mei Station. The 1st prosecution witness, who was the alleged victim of this case, was standing in the proximity of the appellant. In the course of the journey, the lady found she was touched twice on her right thigh. She then summoned the police by means of her cellular phone. When they reached Lok Fu Station, the lady and the appellant went under escort to the control room. When asked about the alleged indecent assault, the appellant responded by saying that any contact was accidental.

2. The learned magistrate convicted the appellant based on the evidence of the alleged victim. He found that the contact was intentional and it was under circumstances of indecency. In his oral reasons, the learned magistrate said :

"... As this case involved a sexual offence, I reminded myself of the dangers of convicting a defendant upon the uncorroborated evidence."

3. What the learned magistrate found was the victim was touched on two occasions within a short span of time, and both acts were done under circumstances of indecency. The learned magistrate went on to say :

"... In this respect, I noted that the Defendant's evidence confirmed many particulars of PW1's evidence, i.e. that he was standing close to the victim and that he touched her once with his private parts.

There was, however, a material discrepancy between PW1 and the defendant as to the point of touch but not the level of touch on the thigh. There was no such confirming evidence in relation to the second touch. The evidence itself did not prove commission of the intentional touchings by the defendant."

4. In his written Statement of Findings, the passage quoted above was repeated as paragraph 22. However, the learned magistrate went on to observe in the following paragraph :

"As this case involved a sexual offence, I warned myself of the dangers of convicting the Defendant upon the uncorroborated evidence of PW1. After having done so I still found I was satisfied beyond reasonable doubt that PW1 was an honest and reliable witness and that I could accept her evidence."

5. Having read the transcript of his oral reasons and the subsequent Statement of Findings, it remains not entirely clear whether the magistrate did find evidence capable of corroboration of PW1's evidence. The oral reasons appears that he did find such corroboration but not so as reflected in paragraph 23 of the Statement of Findings. I find myself somewhat confused.

6. Mr Grounds, appearing for the appellant today has spotted this point without any difficulty. Ms Sin, for the respondent, tried to argue that the statement and the oral reasons should be read as a whole. The lack of corroboration, as the magistrate found, applied only to the second act of touching. But I do not think that can be a fair interpretation of the oral reasons. The learned magistrate referred to "touchings" in its plural form. The contention of Ms Sin did not justify the choice of diction by the learned magistrate.

7. After considering the difference of approach by the learned magistrate in the oral reasons and in his subsequent Statement of Findings, I am left with a real doubt as to whether the issue of corroboration and the law in relation thereto had been properly addressed or understood by the learned magistrate. The conviction of the appellant is rendered unsafe and unsatisfactory. I do not think there is any further need for me to deal with the balance of the grounds of appeal.

8. The appeal is allowed. The conviction is quashed and the sentence is set aside.