R. v. LAM CHI HUNG

IN THE HIGH COURT

1995, No. 36
Magistracy Appeal

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J U D G M E N T

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Litton, V.-P.:

1. The appellant Lam Chi Hung was convicted on 6 December 1994 by Mr Thomas Tsang in the North Kowloon Magistracy on one charge of indecent assault, contrary to Section 122(1) of the Crimes Ordinance. He was sentenced to 14 days' imprisonment.

2. The evidence relied upon by the magistrate to convict was to this effect. On 20 October 1994, a Thursday, PW1, the complainant aged 22, had just boarded an MTR train at Prince Edward Station. She felt a hand "passing through her buttocks" and lifting up. She was then wearing a skirt and jacket. She felt her lower part touched by the hand. She turned round and saw the appellant directly behind her, as she described it, withdrawing his left hand and "backing off". His left palm was cupped. She said the appellant's backing off caused people around to back off as well. She grabbed hold of the appellant and accused him. This aroused the attention of a police officer PW2.

3. PW2 who also testified at the trial said he heard a female voice saying "Have you had enough touching?" and a male voice replying "I did not touch you." PW2 arrested the appellant who under caution said he did not do it.

4. The appellant was unrepresented at the trial. The magistrate ruled that there was a case to answer and explained to the appellant that he had the right to give evidence or remain silence or to call witnesses. The appellant gave evidence but called no witnesses.

5. The appellant said he entered the train compartment and stood close to the glass door. He did not get close to PW1. There was a woman standing next to him. Then he was grabbed by PW1 who said "Have you had enough touching?" and he immediately denied involvement. His case was that he had never touched PW1, did not "back off" in the way she described and was wholly innocent.

6. That was the totality of the evidence on which the magistrate convicted.

7. In essence, the magistrate convicted because he concluded that PW1 was both "honest and reliable" as a witness.

8. One aspect of the evidence which the magistrate, in his statement of findings, said he disregarded was this: PW1 claimed in her evidence that this was the second time the appellant had indecently assaulted her, as on the previous day the appellant had indecently assaulted her as well. She also testified that when she grabbed his clothes she had said to him "It is you again" and the appellant had responded "What is me again". As to this the magistrate said "I ignore this piece of irrelevant evidence against the appellant being prejudicial to him."

9. As it seems to me this piece of evidence was highly material. It was, according to PW1's testimony, the basis upon which she had recognised the appellant as her assailant on the morning in question. She had identified the appellant as the man who on two consecutive days had indecently assaulted her.

10. The crime on which the appellant stood convicted occurred on 20 October. Where was he on 19 October? For all the magistrate knew, he might not have been on an MTR train at all, in which case PW1's identification of the appellant as the one who had committed the indecent assault must almost inevitably have been unreliable.

11. The magistrate approached the case as one of pure credibility. He said he found PW1 an honest and reliable witness and disbelieved the appellant's evidence in so far as it differed from that of PW1. But in fact the appellant's evidence did not materially differ from PW1's, except perhaps on one rather slender point: as to whether he had "backed off" and whether he had his left palm cupped: it is not clear what these matters actually amounted to in a crowded MTR train during the morning rush hour.

12. The appellant never denied that PW1 grabbed his clothes and accused him of touching her. It was, in effect, no part of the appellant's case to question PW1's essential veracity. His case quite simply was that this was one of mistaken identity. As to this crucial issue of identity the magistrate appears not to have addressed his mind at all.

13. After conviction certain facts concerning the appellant's background emerged. He was a man of good character, 27 years old, employed as an information technology officer at the Land Development Corporation. But this only became revealed after he was convicted.

14. One can sympathise with the difficulty of a magistrate concerning character evidence when a defendant is unrepresented. It might be difficult for the magistrate to question the defendant in the witness-box concerning his background and character for fear that prejudicial material might emerge. But in a case like the present, good character weighs considerably in the scales: obviously, where a man is of good character, a court would be less likely to find him guilty of an offence of this kind than if he were otherwise. When the clear record of the appellant was brought to the magistrate's attention after conviction he said this:

"However, in this particular case, I have no doubt the PW1 is honest and reliable. Even if I had known of the clear record status of defendant (before conviction), my verdict of one of guilty would have remained the same."

15. A magistrate has, of course, the jurisdiction of review under s104(1) of the Magistrates Ordinance, which was not exercised in this case. But leaving that aside, what is significant is this: in the passage quoted above the magistrate reiterated his view that the case turned essentially upon PW1's honesty and reliability. He never addressed his mind to the possibility that an honest and reliable witness might be mistaken when it came to the identity of the assailant. Plainly this conviction is unsafe and unsatisfactory. The appeal is therefore allowed and the conviction is set aside.