HKSAR v. CHOI PAK NAM

HCMA566/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.566 OF 1998

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J U D G M E N T

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1. The Appellant was convicted of Indecent Assault and sentenced to 14 days' imprisonment. He appeals against conviction.

2. The Appellant and PW1 were passengers on a bus from Admiralty to Tsuen Wan. They were both standing at the front of the bus, near the driver's position. PW1 was in front; the Appellant was behind her or behind a little to her right. When the bus reached Kwai Fong, PW1 grabbed the Appellant's hand and slapped his face. She accused him of touching her bottom. The Appellant denied it. The driver stopped the bus. PW1 having spoken to her boy-friend who coincidentally called her mobile phone, dialed 999. The police came and the Appellant was arrested.

3. There is no dispute that some part of the Appellant's arm or hand touched PW1. She said that it was a deliberate touching of her bottom, the second since she and the Appellant had boarded the bus in Sheung Wan. He said that it was an accidental touch caused by the motion of the bus, when he having been steadying himself by pressing upwards against the ceiling, became tired and stopped pressing. The learned Magistrate accepted PW1's evidence. He did not believe that of the Appellant.

4. There are two grounds of appeal. The first is that the learned Magistrate erred in determining that negligible weight attached to the testimony of the bus driver regarding words which he agreed had been spoken by PW1 to the Appellant when she caught his hand. The second is that the learned Magistrate engaged in speculation into the physics of motion when he rejected the Appellant's explanation of an accidental touch caused by the motion of the bus.

5. In cross-examination, the bus driver agreed that PW1 had said to the Appellant :

" At first I thought your bag had bumped my bottom. Then I caught your hand. Now I knew you assaulted me."

This was put to him in terms. The record shows a long pause before he agreed with it. The learned Magistrate then asked if he had heard those exact words and he said that he had. According to the Appellant, the witness spoke those words to him. According to the witness, he did not.

6. Mr Lunn, for the Appellant, argued that the learned Magistrate had properly given himself a full direction as to the Appellant's good character and that this enabled the defence the more easily to indicate where he had been in error.

7. The learned Magistrate accepted the value of this concession to the defence. However, he went on to say the weight that can be given to such confirmation by PW2 of Counsel's suggestion is negligible. PW2 merely echoed the words of Counsel. He simply adopted with a simple affirmative the three sentences composed by Counsel, and pressed upon him. PW2 finally agreed to the proposition only after some initial reluctance.

8. Mr Lunn argued that the learned Magistrate was wrong to disregard the bus driver's evidence in this way, given that he had accepted that the value of this concession to the defence is not only that it contradicts PW1's recollection and supports the subsequent testimony of the Defendant, but also suggests that PW1's suspicions had been unjustly fuelled by other events which she had or might have misinterpreted.

9. Mr Lunn argued that this was relevant to a further passage in the judgment where the learned Magistrate said :

" I became certain that PW1 was trying to tell the truth without exaggeration. Whether her testimony was the truth or whether there might be a doubt awaited consideration of all the other evidence...."

10. In other words, as I understand it, the learned Magistrate had satisfied himself that PW1 was a truthful witness; he was considering whether there was further evidence to support her accuracy; this particular piece of evidence, however, did not support, but rather went against her accuracy.

11. The record shows as follows :

"Q : Is it right that you heard the girl say to the man, 'At first I thought your bag bumped my buttock, and now I catch your hand, then I realised that you had indecently assaulted me?' (Long pause)

A: Yes.

Court : You actually heard those exact words, did you?

A: Yes."

There is a problem here. The learned Magistrate accepted that the evidence of PW2 was of value to the defence. This suggests that if he had accepted it as evidence to which weight could be given, he might have come to a different conclusion regarding the accuracy of PW1's evidence. However he regarded PW2's evidence as being of negligible weight. Of course he has seen the witnesses and observed their demeanour and it is for him to accept or reject a witness's evidence or part of it. The problem is that the reasons which he gives do not appear to be supportable in view of what appears in the record.

12. It is true that PW2 only accepted that these words had been said after a long pause. However, the record does not show that they were pressed on him as such. The question was only asked once; the witness thought about it and agreed with it. When the Court asked him to confirm that he had heard those words, he did not in any way resile from his agreement that he had heard them. He did not appear unsure and hence unreliable though the only way to characterise his evidence as lacking in weight would be to find that he was unsure.

13. In the circumstances, it seems to me that Mr Lunn's argument must be accepted. The learned Magistrate erred in determining that negligible weight be attached to the evidence of PW2. There is a discrepancy which goes to the accuracy of PW1, which has not been properly resolved.

14. It is not necessary to consider the other ground of appeal. I have to find on the basis of the first ground that the conviction is unsafe and unsatisfactory. The conviction is quashed and the sentence set aside.