IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MAGISTRACY APPEAL NO. 1184 OF 2002
(ON APPEAL FROM KCCC 14539/2002)
Coram: Deputy High Court Judge Barnes in Court
Date of Hearing: 27 March 2003
Date of Judgment: 14 April 2003
J U D G M E N T
1. The Appellant was convicted after trial by a Magistrate of one count of Indecent Assault, contrary to section 122(1) of the Crimes Ordinance (Cap. 200). He was sentenced to 14 days imprisonment. The Appellant appeals against conviction.
Summary of Facts
2. On the 22nd June 2002, inside the train compartment of the MTR, the Appellant indecently assaulted PW1, a 17-year-old woman, by puttinghis private parts into contact with PW1’s left buttock on three separate occasions – the third one was after PW1 moved one step forwardto avoid the bodily contact. The attack was witnessed by PW2, a plain-clothed police officer who was on duty with a woman plain-clothedofficer (PW3).
3. The Appellant was arrested for the offence of indecent assault and under caution he claimed to have come into contact with PW1 unintentionallydue to the crowdedness of the train.
Grounds of Appeal
4. Basically, Mr Mitchell-Heggs, counsel for the Appellant, attacked the learned Magistrate’s findings of facts. In essence, he complainedthat the learned Magistrate had not given adequate consideration to various discrepancies and inconsistencies in the prosecutionevidence or due weight to various defence contentions. These are:
5. Mr Mitchell-Heggs submitted PW2’s evidence was not credit-worthy. The Appellant might well have done something suspicious but heasked me to consider whether it so happened that PW2 decided to ‘close the matter’ to apprehend the Appellant when PW1 about to getoff the train? Or that before the time was ripe PW1, as far as PW2 was concerned, suddenly and unexpectedly left the train; PW2 thushave to make a snap decision and took the Appellant off the train? Mr Mitchell-Heggs submitted that PW2 had to justify his actionand the identification of the Appellant was done in such a confrontational style. Further, PW1 only thought she had been indecentlyassaulted, it was a ‘Freudian slip’ when she used the terms “I think” during examination-in-chief.
6. With due respect to Mr Mitchell-Heggs, he is asking me, sitting on appeal, to disturb findings of facts by the learned Magistrate.All those inconsistencies, discrepancies and other matters raised by him had been fully argued before the learned Magistrate duringthe trial and the learned Magistrate was fully aware of them when he evaluate the evidence. In his extremely detailed Statement ofFindings (19 tightly-typed, single-spaced pages), he set out the evidence of various witnesses in great length. He also set out MrMitchell-Hegg’s submissions in detail. The learned Magistrate gave reasons why he accepted the evidence of the prosecution, thatthere was indeed an indecent assault on PW1. No doubt Mr Mitchell-heggs’ theory of ‘pre-mature’ arrest is an interesting one, asan appeal court, it is not for me to disturb the learned Magistrate’s findings of facts without grounds. The learned Magistrate isfully entitled to accept PW2’s evidence that he did not know how to write the Chinese character for erect (勃), and, as a resultof which, he did not record in his statement the fact that the Appellant’s penis was erect. The learned Magistrate is fully entitledto find that PW1 said “I think” as a result of a slip of the tongue. Quite how I could say that it was a ‘Freudian slip’ is beyondme.
7. The learned Magistrate’s findings are supported by evidence which he is clearly entitled to accept. He was aware of the inconsistencies,discrepancies and ‘failings’ (as described by Mr Mitchell-Heggs) on the part of PW2 and PW3. Mr Mitchell-Heggs’ theory and submissionsdid not find favour with the learned Magistrate.
8. In my judgment, the Appellant has failed to demonstrate that the conviction is either unsafe or unsatisfactory. The appeal is dismissed.
Mr Ho Wai Kin, Victor, GC of the Director of Public Prosecutions, for the Respondent
Mr Anthony B Mitchell-Heggs, instructed by Messrs Lawrence K Y Lo & Co., for the Appellant