IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MAGISTRACY APPEAL NO. 46 OF 2001
(ON APPEAL FROM WSCC 11420/2000)
Coram: Hon Beeson J in Court
Date of Hearing: 7 March 2001
Date of Judgment: 7 March 2001
J U D G M E N T
1. The Appellant appeals against his conviction in the Magistracy on one charge of Indecent Assault and was fined $10,000. He now appealsagainst the conviction only.
2. The Appellant was the immediate work supervisor of the complainant in this case. Indecent touching was alleged to have occurred ina taxi when the complainant and the Appellant were taking a short taxi ride together. The complainant told her husband of the incidentlater that night and, after enquiring the next morning of the Equal Opportunities Commission as to what she should do, she was advisedto report to the police, which she did.
3. The grounds of appeal are basically two, that the Magistrate failed properly to assess the credibility of the complainant, in particular,because he failed to see the relevance of her accounts of earlier accidental touchings by the Appellant that she referred to in evidenceand that the Magistrate was wrong to ignore her “curious habit”, as Appellant’s counsel put it, of reporting to her husband suchaccidental touchings.
4. Further it was submitted that the Magistrate failed to consider properly, or at all, whether or not the Appellant might have beenmotivated by fantasy, or had a financial incentive of making a claim against the company where she and the Appellant worked. Counselsubmitted that the Magistrate inadequately assessed complainant’s evidence.
5. The second ground is that the Magistrate was wrong not to call further evidence to investigate the explanation given by the complainantas to why she had not referred, before trial, to a possible further indecent assault which took place the day after the date of theoffence. It was suggested that the prosecution should have called police officers to clarify what the complainant, allegedly, hadsaid to them about that incident and that as the prosecution had not done so the Magistrate’s failure to call evidence to resolvethe issue meant this was an unsafe and unsatisfactory conviction, because the matter was one which compromised the complaint’s credibility.
6. I have considered the transcript of the complainant’s evidence and also the Magistrate’s Statement of Findings. The Magistrate hadhad the opportunity of listening to the complainant being very extensively cross-examined, over a lengthy period, by defence counselat trial. He was fully aware of the personal circumstances of the Appellant and the complainant, vis-à-vis their working relationship.He examined that relationship in the light of the evidence given by the complainant and also that of the Appellant. He gave himselfa corroboration warning. Although he was not under any obligation to do so, he exercised his discretion in that regard.
7. He considered the demeanour of the witnesses and examined the various odd incidents that had been brought out in respect of the relationshipbetween the Appellant and complainant. Having done so he was able to dismiss them as indications that the complainant had reasonto, or was, fabricating her evidence.
8. He was satisfied overall that the complainant was telling “the plain and unvarnished truth”, about this incident. He was satisfiedthat the touchings complained of were indecent and that the complainant had not consented to those touchings.
9. He considered the further possible indecent assault alleged next day, but accepted the complainant’s explanation as to why it wasnot contained in her statement, but was first brought out in court.
10. Effectively, what happened the next day was irrelevant in terms of the complaint the basis of the charge. The Magistrate was dealingwith the complaint which occurred on 7th. What occurred on the 8th was not before him and no evidence had been led on that point.
11. I cannot see any substance in any of the grounds put forward by the Appellant in this case. I am satisfied that the Magistrate examinedthe evidence properly and that he was entitled on the evidence to come to the conclusion he did and convict the Appellant. This appealagainst conviction is dismissed.
Mr Cheung Wai Sun, DPGC, for DPP
Mr John McLanachan, instructed by Messrs Yuen & Partners, for Appellant