HKSAR v. KHAN TARIQ

HCMA 192/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 192 OF 2009

(ON APPEAL FROM KCCC 5223/2008)

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BETWEEN

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J U D G M E N T

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1.  The appellant was convicted after trial of two counts of indecent assault. He now appeals against that conviction.

2.  In the trial below, he was represented by counsel. He appears in person on the appeal.

3.  The prosecution case in relation to the first charge was that he had indecently assault a female on 20 June 2008 inside a 7-11 Convenience Shop. That shop was in Jordan Road, Yaumatei, Kowloon.

4.  The second charge is that on 22 June 2008, at the junction of Ferry Street and Kansu Street, Yaumatei, Kowloon, he indecently assaulted a 14 year-old boy.

5.  Both complainants gave evidence. The appellant elected not to give evidence nor call any witness.

6.  The first prosecution witness (PW1) was the boy complainant in Charge 2. He said that on the material day at about 7 p.m., he had just finished playing basketball and was walking home. On the way home, the appellant had asked him for a lighter in Cantonese with an accent. PW1 said that the person, whom he identified as the appellant, also asked him for his name and his personal information. PW1 said the appellant then sat down on a concrete barrier and pulled his hand so he sat next to him. The appellant continued to hold on to PW1’s hand and told him he was not a sex maniac and indicated that they could be friends. PW1 then said the appellant touched him on his left outer area between the thigh and buttock with his right hand for several seconds. Then, the appellant talked about women’s needs and asked how old PW1’s mother was. The appellant mentioned something about PW1’s mother’s sexual needs and at the same time, he used the finger of his right hand to poke once at PW1’s penis on top of his sport’s pants. PW1 said he became frightened and wanted to leave, but the appellant pulled at his hand and made him stay another few minutes. The conversation with the appellant, according to PW1’s estimation, lasted about 5 to 10 minutes.

7.  PW1 left, but the appellant followed him. After about 10 to 20 metres, the appellant pulled him to the railings. The appellant then leaned towards PW1 and moved his penis up and down rubbing against the left outer area between the thigh and buttock of PW1 for about half a minute. PW1 said he was scared and he shouted at the appellant not to do it. PW1 said he could see the appellant’s face clearly. A female passer-by walked past. The appellant swore at her and then left the scene. PW1 walked with the female passer-by and then went home.

8.  PW1 told his mother what had happened. He and his mother went downstairs to locate the appellant. PW1 saw the appellant buying beer in a 7-11 shop. The police was informed, and after PW1 related the matter to the police, the appellant was point out to the police by him and the appellant was arrested.

9.  PW1 was tested on his evidence in relation to the identification of the appellant. He said that he did not normally wear glasses or spectacles, but he was slightly short-sighted which was only to the degree of –1 and –1.5.

10.  In cross-examination, PW1 said he could recognise the appellant clearly because the appellant had a bald patch on his head. When put to him that the only reason he recognised the appellant was because of the bald head, he disagreed. PW1 said he recognised the appellant by seeing his face. It was put to him that he only recognised the suspect male because he had a bald patch, moustache and big belly. PW1 disagreed. PW1 also mentioned in re-examination that at the time of the offence, he was dark skinned because it was summer time and he was sun-tanned, but at the time of the trial, his complexion has gone lighter.

11.  PW2 is the mother of PW1 and she gave evidence basically about what happened after her son had informed her about what had happened to him.

12.  PW3 was a police officer who arrived at the scene. He spoke to the appellant in Cantonese. The appellant understood and spoke fluent Cantonese, he said. After he declared arrest and caution on the appellant, the appellant said “I did not molest anyone. I was drunk”. The officer said the appellant was sober at all times when he saw him.

13.  PW4 was the complainant in Charge 1. She works as a cashier at the 7-11 Shop at Jordan Road. There was another male staff in the shop working with her, but from time to time he would be in the storeroom of the shop. She said that at 2:40 a.m., a male person, whom she subsequently identified as the appellant, entered the shop and asked for change. After she handed him the banknote, she said he took her hand and kissed her on the back of her hand once. She quickly withdrew her hand and the appellant then moved to stand to the left of her, and he told her in Cantonese that he wanted to make friends with her. The appellant continued to stay inside the shop and during that time, he had added value to his octopus card and also bought a packet of cigarettes.

14.  The appellant then put his right hand on her right shoulder and swept his hand down her back to her right waist. His palm also touched her buttock for a while and moved upward near the right side of her right breast. She used her hands to cover her breasts and tried to push his hand away. At about 3:30 a.m., some newspapers were delivered to the shop and she went to the entrance to put the newspapers on the rack. When she turned around, the appellant was standing right in front of her and put his arms around her, but withdrew his hands quickly and said he wanted to make friends. Later, the appellant went up to where she was standing and put his hands around her body very tightly and she felt his penis bumping the lower part of her abdomen. She was very scared and shouted loudly. Her colleague and a security guard from the next building appeared and the appellant left.

15.  A CCTV tape (Exh. P5) was also provided and played in court and showed the various exchanges between PW4 and the appellant. PW4 said that it was the first day on the job when the incident happened. Questions were put to her that her action had given the appellant an impression that she allowed him to touch her. She disagreed. PW4 described the first hugging by the appellant as a friendly gesture and was acceptable. However, she found the second hugging was not, because she felt his penis pressing against her.

16.  At the end of the prosecution’s case, counsel for the appellant made a lengthy submission. The learned Magistrate correctly pointed out that in relation to the second charge, the young boy’s identification was really the crucial issue in the case; and in relation to the first charge, whether the complainant had consented to the assault on her. The learned Magistrate then assessed the evidence, and found that PW4 had indicated her unwillingness to be assaulted because when the appellant had stretched his hand out near her breast, she had pushed his hand away and protected her breasts with her hands, so there was no doubt that the victim would not have consented to the final hugging where the appellant pressed his penis against her abdomen.

17.  As for the boy, the complainant in the second charge, the learned Magistrate found that on the evidence which he had given, there was no question that he had made the correct identification. The learned Magistrate said the lighting condition although not bright, it would have been sufficient for PW1 to be able to see the face of the appellant. Furthermore, PW1 had seen the appellant’s face at a close distance for a few minutes, either 5 to 10 minutes. PW1 had said that the appellant had a bald patch, big belly, moustache and dark complexion, but PW1 had stressed that he recognised the appellant by looking at his face, not from those features.

18.  It was said that the appellant is cross-eyed. But the learned Magistrate found that it was night time, the appellant had a dark complexion, so it was not unusual if PW1 did not notice that the appellant was cross-eyed.

19.  After having considered all the evidence, the learned Magistrate found that it was proved beyond a reasonable doubt that the appellant had committed both counts of indecent assault.

20.  On the appeal, the appellant, acting in person, reiterated that he felt that the identification evidence was poor, and that the complainant in the first charge had consented to his assault on her. He complained that the boy did not see that his right eye was smaller and that the boy had not been able to say what clothing he wore.

21.  The fact of the matter is the learned Magistrate had already dealt sufficiently with the fact that the boy had not noted the appellant was cross-eyes because of the complexion of the appellant, and it was at night. The trial was some months after the event, so for the boy not to remember or be sure of what the appellant was wearing is understandable.

22.  The appellant also complains that the boy lied when he said he had a black or deeply tanned complexion at the time.

23.  As I have earlier said, the boy had explained that when the incident happened, it was summer, and therefore he was very sun-tanned as opposed to the time when he gave evidence. So the learned Magistrate had accepted the boy’s explanation.

24.  I have read the Statement of Findings and the transcript of this oral findings of the learned Magistrate, I find that the learned Magistrate’s conviction was based on good evidence, therefore there is no ground to interfere with the learned Magistrate’s findings. So the appeal is dismissed.