HKSAR v. TANG KWOK KUI

HCMA521/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 521 OF 1998

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J U D G M E N T

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1. The Appellant was convicted of the offence of indecent assault by Miss Maggie Poon in Sha Tin Magistracy. He was convicted on 14th May 1998 and was remanded 14 days in custody for a probation officer's report to be obtained. On 28th May 1998, he was sentenced by the learned Magistrate to 21 days' imprisonment. He now appeals against both his conviction and sentence. The allegation of the prosecution is that on 15th April 1998, the Complainant, PW1, was travelling on board a KCR train when she was indecently assaulted by the Appellant.

2. She gave evidence that whilst she was standing in one of the carriages of the train she was touched on her buttocks by the Appellant. Further along in the journey, she testified that she was touched on her waist area by the Appellant after which she was assaulted on her breasts.

3. Mr Wong, who appeared for the Appellant, has advanced five grounds of appeal against conviction. The first ground is that the learned Magistrate convicted the Appellant based solely on the evidence of the Complainant when such evidence was wholly discredited and had been shown to be inconsistent, unreliable, contradictory and not credible. He then sets out nine matters of details of the evidence which he said show that PW1 had been discredited as a truthful witness.

4. I shall not go into the details of those particulars because I apprehend that these details would not be of much interest to people reading this judgment. Suffice it to say that the purpose of a trial before a single Magistrate or a single District Judge sitting without a jury is for the prosecution to try and show, beyond a reasonable doubt, that the defendant on trial is guilty of the offence that he is charged with. The trail Magistrate or District Judge hears the evidence of the prosecution witnesses and observes the demeanour of these witnesses when giving evidence and when subjected to cross-examination.

5. At the end of the trial, if the trial judge or Magistrate accepts that these prosecution witnesses have narrated the truth, and if he has no reasonable doubt about any aspect of the prosecution witnesses' evidence, and provided that all the ingredients of the offence have been proved, he is entitled to arrive at a verdict of guilty. If he has a reasonable doubt or reasonable doubts about the evidence adduced by the prosecution, then of course, in law, he has to give the benefit of that doubt to the defendant and acquit the defendant.

6. The trial process is not such that the trial judge or trial Magistrate has to have an answer to every challenge of the prosecution witnesses' evidence, nor has the trial judge or Magistrate the obligation to set out all the inconsistencies in the prosecution's case and deal with each inconsistency. Findings of fact are for the trial court and not for an appellate court. An appellate court should only interfere with the finding of fact by a trial court if matters are raised which at the end of the appeal would have the effect of leaving the appellate court with a lurking doubt about the correctness of the conviction.

7. I quote from the judgment of Roberts CJ in Sheikh Abdul Rahman Bux v. R [1981] CA 756. Roberts CJ said :

"It was argued for the defendants that the judge should have included in his judgment a careful dissection of each piece of evidence on which there could be said to have been some inconsistency or conflict, whether between the evidence of different prosecution witnesses or between different parts of the evidence of the same witness. This would place a wholly unreasonable burden on the trial judge. In our view, it is sufficient if the judge shows that he is aware that these inconsistencies exist and that nevertheless having taken them into account he is prepared to believe the various witnesses involved, save to such an extent as he may specify."

8. In the present appeal, Mr Wong relies most heavily on the fact that there are apparent inconsistencies in the evidence of PW1. He relies also on apparent inconsistencies between PW1's evidence given in court and what was said by her in her statement to the police. In relation to the latter, and it is of course well-known that it is very difficult for a statement, especially a statement narrated in Cantonese and recorded in Chinese, to try and incorporate into it all the little details of the witnesses' evidence. There is a multitude of reasons for that, one of which is of course the fact that the statement taker may not have asked the questions which would have prompted the giving of details such as are given in court when evidence is given by the witness.

9. Another reason is of course that the statement giver may have decided that in the police statement, a lot of minor details need not be gone into. Mr Wong has complained that in the evidence given by PW1, she appeared to have said initially that the Appellant touched her on the waist area and his hand worked its way up to her breast. In another part of her evidence, it would appear that she was saying that his hand was not on her waist but was on the door of the carriage of the train, and from there, he then touched her on her breast. This consistency is, in my judgment, more apparent than real.

10. As Mr Hui, appearing for the prosecution, has submitted, it may well have been the case that the Appellant touched the waist area of the Complainant, but because the Complainant was standing right in front of the door of the carriage, and because the train was at the time very crowded, it may well have been that the Appellant's hand also touched the door of the train and the hand worked its way up to her breast area.

11. Mr Wong also complains that the learned Magistrate had wrongly rejected the Appellant's evidence. He quotes two reasons for the contention; the first is that she had wrongly attributed to the Appellant lies in his evidence when in fact there was no such thing. That was in relation to the point of whether he had got off the train at Tai Wai Station or whether he had accompanied the Complainant to get off the train. Both PW1 and PW2 - a platform assistant of the KCRC, testified to the fact that at Tai Wai Station after the train stopped, the Appellant got off the train, followed very closely behind by the Complainant, PW1, who was holding onto the rucksack that the Appellant had on his back.

12. The Appellant, under cross-examination, had initially said that he had got off the train first, but two answers later had said, "No, I got off the train together with the Complainant." The learned Magistrate had said that that was a factor which she took into account to access the credibility of the Appellant. Mr Wong says that was not a change of the Appellant's evidence, and should not have been a factor. I do not agree. My view is that the Appellant had at first agreed with the prosecution's evidence that he had got off the train first, but subsequently changed that evidence to say that he had got off together with the Complainant.

13. In my judgment, the Magistrate was entitled to take that fact into account when accessing the credibility of the Appellant. The other reason Mr Wong advances for saying that the Magistrate had wrongly rejected the Appellant's evidence was that when the Appellant gave the demonstration of his position in the train, he stretched out his hand, which was roughly at his chest area. The learned Magistrate had said that if that was the position of the Appellant's arm, he could not have accidentally touched on the breast of the Complainant because the Appellant is much taller than the Complainant. Mr Wong says that the demonstration was only a rough posture and no adverse inferences should have been drawn by the learned Magistrate against the Appellant.

14. I do not agree. The whole idea of the demonstration was to enable the Appellant to try and show the Magistrate how it came about that his hand accidentally came into contact with the breast of the Complainant. The Magistrate was entitled to take into account the fact that the Appellant was taller than the Complainant and if his arm was outstretched in the manner demonstrated, it could not possibly have touched the breast of the Complainant.

15. At the end of the day, the Appellant admitted that his hand did come into contact with the breast of the Complainant, but he said it was accidental. That, in so far as the allegation of the touching of the breast is concerned, then narrows the issue for the learned Magistrate, namely was the touching accidental or intentional.

16. The evidence of PW1 was not corroborated. The learned Magistrate gave reasons for finding that the contact with the Complainant's breast by the Appellant was intentional and not accidental. She gave herself a Berrada direction as regards the good character of the Appellant and she warned herself of the danger of acting on the uncorroborated evidence of the Complainant. In my judgment, the conviction is good and there is no reason whatsoever for the contention that the conviction is unsafe or unsatisfactory. The appeal against conviction is therefore dismissed.

17. Mr Wong also appeals against the sentence of 21 days' imprisonment imposed on the Appellant by the learned Magistrate. The Appellant was convicted on 14th May, he was then remanded 14 days in custody for the probation officer's report to be prepared. On 28th May, he was sentenced by the Magistrate to 21 days' imprisonment. However, on the same day, upon application, she admitted him to bail pending appeal.

18. I was informed by Mr Wong that after the conviction and sentence on the Appellant, the matter caused the Appellant's father so much distress that he suffered a brain haemorrhage and had to be hospitalized and was admitted into Tuen Mun Hospital on 16th June 1998. The Appellant's father is aged 67 and I am told he is still hospitalized at the Tuen Mun Hospital.

19. Another matter which I was informed of and which was, through no fault of anyone, not brought to the attention of the Magistrate, is the fact that the Appellant has now found a job as a technical apprentice in the Maintenance Department of an elevator maintenance company, and he is scheduled to start his apprenticeship five days from today at a monthly salary of $8,000.

20. The Court of Appeal has said in Wai Yan-shun, Application for Review No.17 of 1990, [1991] 2 HKLR 209, that a period of imprisonment of between 14 and 28 days would normally be appropriate for a first offence of indecent assault committed on the MTR or on a public train.

21. This was because the Court of Appeal was of the view that this type of offence was becoming more and more prevalent. That guideline was issued by the Court of Appeal in March 1991, but the guideline is still good today because unfortunately there is still a prevalence of this type of offence on board our public trains. Molesters of women who travel on board Hong Kong's public trains must be given the clear warning that if they commit these offences and if they are caught and convicted even as a first offender, they face immediate imprisonment.

22. The sentence of 21 days' imprisonment imposed by the Magistrate was not one day too long. However, having regard to the fact that this Appellant was already in custody for 14 days, and also having regard to the two matters which I have earlier on mentioned, which the Magistrate was not informed of, I am of the view that I can justifiably reduce the sentence from 21 days to 14 days to enable the Appellant to keep his liberty.

23. This hopefully will enable his farther to recover more quickly, and will enable him to take up the job which he has found, which seems to be quite a promising job. I hope that the Appellant has learned his lesson from this case, and will not ever breach the law again in future. The appeal against sentence is therefore allowed to the extent that the sentence is reduced from 21 days to 14 days. The 14 days have been served when the Appellant was kept in custody for the obtaining of the probation officer's report.