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HCMA 145/2015
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MAGISTRACY APPEAL NO 145 OF 2015
(ON APPEAL FROM TMCC 3482/2014)
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BETWEEN

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HKSAR

Respondent
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CHAN HO MING

Appellant

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Before: Deputy High Court Judge Anthony Kwok in Court

Date of Hearing: 23 March 2016

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Date of Judgment: 21 June 2016

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JUDGMENT

BACKGROUND
1.

On 26 January 2015, the appellant was convicted of two counts of

indecent assault, contrary to section 122(1) of the Crimes Ordinance,

(Cap 200), following a trial in the Tuen Mun Magistracy before Deputy
Magistrate Michael Chan (the Magistrate).

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He was sentenced on

9 February 2015 to 14 days imprisonment on charge 1 and two months

imprisonment on charge 2, both sentences to run consecutively. The

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appellant originally appealed against both conviction and sentence and

was granted bail pending his appeal. He later abandoned his appeal
against sentence.
2.

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The trial was conducted in Chinese. By order of Master Wong

made on 25 June 2015, this appeal is conducted in English upon

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application by the appellant.

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PROSECUTION CASE
3.

The prosecution case consists of two civilian witnesses, female X

(the alleged victim) (PW1) and her boy friend (PW2). There was
an Admitted Facts (Exh P3) and also produced was a cautioned

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Record of Interview (Exh P5) made by the appellant in response to

the two allegations of indecent assaults as charged.

The

prosecution case is helpfully summarized by Mr Raymond Cheng,

Senior Public Prosecutor at para 2-15 of his skeleton submissions

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which I shall adopt as follows:N

It was the prosecution case that the Appellant had

indecently assaulted X (PW1, in her 20s) inside a LRT train
on 19 May 2014 and 2 months later at the Tuen Mun MTR
Station on 5 August 2014.
X took route No. 505 of the LRT every working day
to the city for work from Sam Shing Estate LRT Station via
the Tuen Mun MTR Station roughly between 0740 and
0800 hours.
On 19 May 2014
At about 0745 hours on 19 May 2014, X was
travelling on board of a route No. 505 LRT train. X was
standing near one of the doors facing the window. When the
train reached Yau Oi Estate, she felt something soft rubbing
against her left and right buttocks for around 30 seconds. X
looked back and saw a male persons belly just 2 inches away
from her buttocks. X then saw the male person taking out his

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mobile phone with a shaking hand. X believed that the male

person had rubbed his belly against her buttocks and was
nervous at the time.
X kept an eye on the male person for the ensuing twoLRT-station journey to the Tuen Mun MTR Station where
both alighted. X noted that male person wore a pair of
spectacles with thick black rim; had a mole on his left cheek;
and did not have much hair on his head.
After having alighted the train, X did not apprehend
the Appellant but sent a text message to her boyfriend via
Whatsapp saying that she had been indecently assaulted by a
male person in his 40s. X expressed fury in the message and
suggested that had she not been in a hurry to work, she would
not have let go the matter.
Records of Xs and the Appellants Octopus cards
confirmed that both had travelled between the Sam Shing
Estate LRT Station and the Tuen Mun MTR Station between
0740 and 0800 hours on 19 May 2014.
X originally testified at trial that the rubbing lasted
for just 6 to 7 seconds but corrected herself under
cross-examination that the rubbing in fact lasted for
30 seconds as she had stated in her witness statement.

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On 5 August 2014
On 5 August 2014 which was another working day, X
reached the Tuen Mun MTR Station at about 0742 hours to
change for the West Rail. X took the escalator No. E7 to the
West Rail platform. Xs head was down at the time looking
at her mobile phone. Before X stepped on the escalator, she
had a sense of being touched at her left buttock. At the same
time, she saw out of the corner of her eyes a persons hand
retrieving from the direction of her left buttock. X looked
back and saw a male person retrieving his right hand. X did
not actually see a hand touching her left buttock.
X noted that the male person wore a pair of spectacles
with thick black rim; had a mole on his left cheek; and did
not have much hair on his head. X noticed that the male
person had a rucksack on his back.
X then stepped back and let the male person pass to
take the escalator first. The two of them then took the same
escalator to the top for the West Rail platform with X one
step behind the male person.

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Whilst still on the escalator, X recalled that it was the

same male person who had indecently assaulted her on
19 May 2014. X therefore kept an eye on the male person
and when she reached the top of the escalator, she saw a staff
member of the MTR and approached her to make a
complaint. X at the same time saw the male person at the
front of the platform. X therefore led the staff to the male
person and told the staff that the male person had indecently
assaulted her. A report was made and this male person, i.e.
the Appellant, was later arrested by the police.
X admitted under cross-examination having stated in
her witness statement that it was the male persons left
instead of right hand that she saw he retrieved after having
touched her buttock. X however denied the suggestion that
she could not be sure that it was either one of the
males hands and that the touching, if any, was inadvertent.
X also denied the suggestion the male person was carrying
the rucksack on his front instead of his back.
Cautioned Interview
The Appellant admitted in his cautioned interview
that he should have had travelled on a No. 505 LRT train
between the Sam Shing Estate LRT Station and the
Tuen Mun MTR Station between 0700 and 0800 hours on 19
May 2014 but he had forgotten if he had seen X. He denied
having rubbed Xs buttocks with his belly and he suggested
that X might have misidentified him. The Appellant admitted
having asked X in front of the MTR staff on 5 August 2014
whether she had misidentified him but it was in relation to
the alleged previous indecent assault on the LRT train on
19 May 2014 and not the alleged indecent assault on
5 August 2014.
In relation to the incident on 5 August 2014, the Appellant in
the same cautioned interview denied having indecently
assaulted X and claimed that it was his rucksack which he
carried in his front that might have hit against Xs left
buttock.

DEFENCE CASE
4.

The appellant elected not to give evidence in the trial nor did he
call any witness to testify on his behalf. He has a clear record.

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THE MAGISTRATES FINDINGS (AND ANALYSIS OF EVIDENCE)

5.

The Magistrates findings (and analysis of evidence) can be found

in his Statement of Findings at paras 17 to 25:
17.
I, having carefully considered PW1s evidence,
regarded her as an honest and reliable witness and the
evidence she gave was clear without exaggeration. Her
evidence under cross examination remained unshaken.
Minor inconsistencies exist between her testimony in court,
her statement taken by the police and what she had told the
woman police officer. I believe that the statement was
written by the police officer and PW1 did not write it herself,
so inevitably there will be inconsistencies between her
answers to questions put to her by the police officer, and her
replies to the questions put by both the prosecution and
defence counsel in court.
Having considered these
inconsistencies, I am of the view that they are not material
discrepancies and do not contradict each other. It can be said
that these inconsistencies do not bear any significance.

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18.
I consider it to be more appropriate to deal with the
second charge first.
19.
The Defence case is that PW1 had made a wrong
identification of the Defendant, who did not touch PW1s
buttocks. If PW1s buttocks had been touched, perhaps it
was done by someone else, or perhaps by some other objects.
Also, if PW1s buttocks had been touched by the Defendant,
perhaps it was the Defendants backpack placed in front of
him that was in contact with PW1, and it was done
inadvertently.

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20.
I have borne in mind the Turnbull guidelines.
However, I accept PW1s evidence. After she felt that her
buttocks was being touched, and after she had spotted the
Defendant, her sight all along was fastened on the Defendant
until she and the staff had approached the Defendant and
pointed out the Defendant to the staff. Further, PW1 could
clearly describe the Defendants clothing, eyeglasses and said
that he did not have much hair, but had a mole on his left
cheek. I do not have any reasonable doubt, which means I
am sure, that PW1s identification of the Defendant is
correct. I do not need to rely and had not relied on any
corroborating evidence, but corroborating evidence actually
exists. On page 4 of the Defendants Record of Interview,
the Defendant said I believe it was my backpack which had
hit against the girl., and on page 5 and told her that my
backpack had hit against her. As regards the Defendant
asking PW1 whether she had identified the wrong person,
and I believe she might have wrongly identified me as
someone else who had touched her on the Light Rail., the
Defendant was referring to the previous occasion inside the
Light Rail compartment, instead of referring to the incident
occurring at Tuen Mun station.
21.
As to whether there was touching or not, PW1 was
sure that the Defendant had touched her. She said she felt
someone had touched the left side of her buttocks. At the
time she was pressing the keys on her telephone, with her
head looking downwards and so out of the corner of her eyes,
she saw someone touching her left buttocks. She looked
back and saw a male withdrawing his hand instantly. That
male was wearing white shirt, black trousers, carrying a
brown/black backpack on his back. PW1s positive answers
remained unshaken under cross-examination.
22.
I accept PW1s evidence. I believe beyond all
reasonable doubts, that means I am sure that PW1 did not
mistake something else for a hand; nor did she mistake
actually someone elses hand for the Defendants hand. In
my view, PW1 did not make such mistakes. I consider that
PW1s feeling was reliable. Besides, it was not merely
feeling, she saw it out of the corner of her eyes.
23.
I refuse to accept the Defendants denials and
explanations, which have not cast any doubts on PW1s
evidence. I believe beyond all reasonable doubts, that means
I am sure that the Defendants backpack was not placed in
front of him, and it was not the Defendants backpack that
was inadvertently laid against PW1s buttocks. I believe
beyond all reasonable doubts, that means I am sure that the

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Defendant had used his hand to touch PW1s buttocks, an act

which constitutes an assault, and the only reasonable and
irresistible inference that can be drawn is that such an assault
was indecent. Therefore, I find the Defendant guilty of the
offence in Chare 2.
24.
In relation to Charge 1, I remind myself that PW1s
identification of the Defendant is totally different from that in
Charge 2. The related incident occurred two and a half
months prior to PW1 saying that she could identify the
Defendant. The allegations made by the prosecution against
the Defendant, totally depend on whether PW1s
identification of the defendant is correct. I have reminded
myself of the Turnbull guidelines. Because some witnesses
firmly believe in certain matters, therefore they may lead me
also to firmly believe in those matters. Yet these witnesses
can be mistaken. I need to carefully consider under what
circumstances PW1 identified the Defendant, how long the
observation had lasted for, how far the distance in between
was, what the lighting then was, whether there was anything
obstructing her observation on the Defendant, as well as if
there are any special reasons that could account for her
identification of the Defendant. Having carefully considered
PW1s evidence, I am satisfied that she had observed the
Defendant for the duration of a journey between two Light
Rail stops, and the distance between her and the Defendant
was very close with nothing obstructing her observation on
him. Although there is no direct evidence concerning the
lighting, the time then was around 8:00am. The Light Rail
was travelling above the ground and there should be lighting
inside the compartment. I consider the only reasonable and
irresistible inference is that at the time the lighting was
sufficient. PW1 could clearly describe the Defendants
clothing, spectacles, and the special features of the Defendant
i.e. without much hair and a mole on the left cheek. Having
carefully considered PW1s evidence, I believe beyond all
reasonable doubts, that means I am sure that PW1s
identification of the Defendant is correct and reliable. I do
not need to rely on any corroborating evidence. However,
there is actually some corroborating evidence, which is the
Octopus card records from the Octopus Company and MTR
company, showing that the usage records of both the
Defendants and PW1s Octopus cards for the period from
7:40am to 8:00am on 19.5.2014 at Light Rail Sam Shing
Stop and West Rail Tuen Mun Station, and the Defendant
also admitted that on 19.5.2014 he got up at 7am and traveled
on the Light Rail 505 from Sam Shing to Tuen Mun to
change for the West Rail to go to work.

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25.
Another issue which is in dispute is that at that time
whether the Defendant had used his belly to rub against
PW1s buttock. I accept PW1s evidence that she felt
something soft rubbing against her buttocks. Sometimes she
said for 6 to 7 seconds and at other times she said for 30
seconds. I consider that it would be very difficult for anyone
to make an accurate estimation of time. I consider this
inconsistency regarding the time is not important. I am
satisfied that the Defendant was the only person behind PW1
and the Defendants belly was 2 inches away from PW1s
buttocks. Having carefully considered all the evidence, I
believe beyond all reasonable doubts, that means I am sure
that the Defendant had used his belly to rub against PW1s
buttocks. I believe beyond all reasonable doubts, that means
I am sure that it was rubbing done by intent instead of
accidental contact, and it is an assault. The only reasonable
and irresistible inference that I can draw is that it was an
indecent assault. I find beyond all reasonable doubts, that
means I am sure that the Defendant had indecently assaulted
PW1 on 19.5.2014 in the compartment of Light Rail train
route 505 (Sam Shing Estaste to Tuen Mun bound), while it
was approaching Yau O stop. I therefore find the Defendant
guilty of Charge 1.

6.

The Magistrate properly directed himself in respect of the burden

and standard of proof required at para 13 of the Statement of

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Findings and gave the appellants good character direction in terms

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of propensity to commit crimes.

7.

As can be seen from the paragraphs cited, the Magistrate has evaluated

the evidence of the PW1 at length and accepted her evidence (see paras 17 to
22 of the Statement of Findings) with reasons given.

He was satisfied

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beyond reasonable doubt that PW1 has correctly identified the appellant as
the man who indecently assaulted her on both occasions.
8.

The Magistrate also has evaluated the case of the appellant as put
by the defence and refused to accept his denials and explanations

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in the Record of Interview (see para 23 of the Statement of

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Findings).

GROUNDS OF APPEAL
9.

Mr Cheng Huan SC

leading

Mr Edward H M Tang,

for

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appellant, has raised four grounds of appeal, namely:

(1)

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The prosecution, prior to and during the course of the trial,

failed to properly exercise its duty of disclosure in that it

failed to disclose to the appellant the CCTV footage taken at
the time and place of the 2nd Charge. The failure to exercise

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its duty of disclosure deprived the appellant of the right to a

fair trial and rendered the convictions unsafe and

unsatisfactory;
(2)

The learned magistrate erred in allowing the prosecution to

carry

out

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identification

by

PW1

during

examination-in-chief which was a material irregularity

which deprived the appellant of a right to a fair trial and
rendered the convictions unsafe and unsatisfactory;
(3)

The learned magistrate failed to consider adequately or at all

the marked discrepancies between the witness statement of
PW1, her evidence in examination-in-chief and her evidence

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in cross-examination and he failed to provide any or any

adequate reasons for accepting the evidence of PW1 as
credible and reliable despite the various inconsistencies in

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her evidence;
(4)

The learned magistrate erred in concluding by way of

conjecture and/or inference that the respective assaults on

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19 May 2014 (the 1st Charge) and 5 August 2014 (the

2nd Charge) were indecent.

GROUND (1)
10.

Mr Cheng has submitted, as his first ground of appeal, that the

appellant was deprived of his right to a fair trial because the
prosecution has failed to disclose to the appellant the CCTV
recordings taken at the Tuen Mun Station on 5 August 2014 in
relation to charge 2 which might have advanced the defence case.
It is pointed out that the police were in fact provided with the

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CCTV recordings by the MTR Corporation Ltd (MTRC).

However, such CCTV recordings were not provided to the defence

despite explicit requests being made by the appellants former

solicitors. The existence of the CCTV recordings was not made
known to the appellant until after the conclusion of trial. It now
transpired that after viewing the CCTV recordings, the

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policeman (DPC 9916) who was instructed to obtain from the

MTRC a copy of the relevant CCTV recordings formed the view
that the seizure of the recordings was not necessary as the images

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recorded did not capture the location of the offence, the foot of
escalator E7. As a result, the recordings has not been retained or
seized by the police and the same had subsequently been

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overwritten by new recordings according to MTRC.

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11.

Mr Cheng has referred to a number of authorities in which the loss

of evidence and the non-disclosure of material have all proved

fatal to prosecution.

He cited HKSAR v. Lee Ming Tee and

Securities and Futures (Third Party) (2003) 6 HKCFAR 336 and

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submitted that as a general principle, the prosecution had a positive

duty to ascertain and disclose to the defence unused material in its
control or possession where it appeared likely such material would

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be relevant or possibly relevant to an issue in the case or would

raise or possibly raise a new issue whose existence is not apparent
from the evidence that the prosecution proposed to use.
12.

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He also referred to a more recent magistracy appeal case HKSAR v

Ho Loy [2015] 3 HKLRD 385 in which Mr Justice Zervos held

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that the failure of the prosecution to disclose to the appellant who

was convicted of failing to comply with a traffic sign Transport
Department Reports (which existed prior to the trial) on the traffic

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signs was a material irregularity. It was held that the reports were
clearly relevant and could have provided a train of enquiry to
admissible evidence. Consequently, as a result of non-disclosure,

the appellant was deprived of relevant information that she had

specifically requested and which could have been used in
presenting her case both at trial and on appeal.
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Finally, my attention was drawn to another magistracy appeal case

HKSAR v. Chu Man Kit, Gary (unreported) HCMA 584/2007 in

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which Madam Justice Beeson allowed an appeal on the ground of

material non-disclosure of CCTV recordings relevant to a charge
of indecent assault. It emerged after the appellant was convicted

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and sentenced that the police had in fact seized the CCTV footage
during its investigation of the case. As such, the appellant was
only provided with the CCTV recordings after the trial.

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disclosure and further conceded that the contents of the CCTV

recordings might be relevant, or possibly relevant, to an issue in
the case.
14.

Obviously, every case must be decided on its own facts.

15.

The respondent referred me to the Court of Appeals decision in

HKSAR v Cheung Wai [1998] 4 HKC 249 at p253F-H and
submitted that the correct approach to this ground of appeal is the

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same approach to an application to a trial judge to an application to

stay the proceedings. As was held in R v Holgate (No.1) [1996] 3
HKC 315, the test in the present case is whether the appellant has

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shown on a balance of probabilities that his trial was so prejudiced

by the unavailability of the CCTV recordings of 5 August 2014
that it was beyond the power of the trial magistrate to preside over

and hold a fair trial?

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16.

The respondent further relied heavily on R(Ebrahim) v Feltham

Magistrates Court [2000] 1 WLR 1293 in which the Queens

Bench Division held that in determining whether a complaint of
abuse of process can be made out on the ground that the police had

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failed to obtain and/or retain materials which might be useful to the

defence, the following questions should be asked:
(a)

Did the police fail in their duty by not obtaining or retaining

the materials?

(b)

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If there was no duty to obtain and/or retain that materials

before the defence first sought its retention, then there can be
no question of the subsequent trial being unfair.

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(c)

Even if there has been a breach of the obligation to obtain or

retain the relevant materials, the trial should only be stayed
if the defence can show, on a balance of probabilities, that

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owing to the absence of the relevant materials the defendant

would suffer serious prejudice to the extent that a fair trial

could not take place; and in ruling on that question the court
should also bear in mind that a fair trial according to law
involves fairness both to the defendant and the prosecution

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and that the trial process itself is equipped to deal with the
bulk of the complaint on which applications for a stay are
founded.
(d)

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A stay should only be granted if the polices failure result

from such bad behaviour, in the sense of bad faith or serious

fault, as to render it unfair that the defendant should be tried

at all.
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17.

The respondent contended that the Feltham case has a very similar

factual background with the present case. It also concerned a case where the
police failed to realize the potential relevance of the CCTV recordings and

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seized the recordings after having view them and found the incident of
assault complained of was not captured. The recordings were subsequently
erased. The trial magistrate refused to stay the proceedings and in dismissing

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the defendants application for judicial review, the Queens Bench Division
upheld the trial magistrates decision.

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18.

In the present case, the respondent argued that during the trial, the

defence counsel did not dispute at trial that in the 2 nd Charge, the appellant
had met female X at the foot of the E7 escalator of the Tuen Mun MTR

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Station on 5 August 2014 but disputed that the alleged indecent assault could
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have been caused by the accidental touch of the rucksack which the appellant
had carried on his front having hit Xs left buttock accidentally.
19.

According to the affirmation filed by the policeman DPC 9916, he had

watched the CCTV recordings captured from four CCTV cameras of

5 August 2014 and he formed the view that none of which contained

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anything valuable to investigation of the case. In response to the appellants

complaint, the respondent has produced, by way of fresh evidence, CCTV
recordings from the same four CCTV cameras on 1 December 2015 which

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confirm that none of the four CCTV cameras captured the offence
location i.e. the foot of the E7 escalator.

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20.

In the circumstances, the respondent submitted that the police had not

failed their duty in not seizing the original CCTV recordings after having
found that they had not captured anything of value.
21.

On the other hand, given that the appellants defence of an accidental

touch by his rucksack had already been mentioned in his cautioned interview

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on 5 August 2014, the appellant raised the point that arguably, the recordings
of 5 August 2014 of two of the four CCTV cameras, i.e. TA3_Unpaid and
TA3, which covered the area around the turnstiles at Exit A of the Tuen

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Mun MTR Station and the E7 escalator might be able to confirm that the
appellant had been carrying his rucksack on his front when he entered the
station concourse and thereby cast doubt on PW1s credibility. However, the

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respondent submitted that since it was only suggested to PW1at trial that the
appellant was carrying his rucksack on his front when the alleged indecent
assault took place at the foot of the E7 escalator which PW1 denied, the fact

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that (i) the camera TA3_Unpaid captured only a small part of the E7
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escalator but not the foot of the escalator; and (ii) the camera TA3 did not
capture the foot of the escalator at all, effectively dismiss any suggestion of
relevance the appellant might have in respect to the now missing recordings

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of 5 August 2014.
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22.

In further support of its argument, the respondent also cited R v

Medway [2000] Crim LR 415 which also concerned a case of CCTV

recordings having been destroyed. The appellant in that case was convicted
of robbery after trial. A CCTV camera was operating in the area in which the

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robbery took place but was not used by the police who looked at the
recording and decided that it had nothing of value and the recording was
destroyed. In the absence of malice on the part of the police and that there

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was nothing to show that the absence of the recording would make the
conviction unsafe, the appellants appeal against the trial judges refusal to
stay the trial was dismissed.
23.

The respondent also referred me to a similar case of DPP v Fell [2013]

EWHC 562 (Admin) where the Queens Bench Division recently held that

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the trial magistrate had erred in staying the defendants trial on a count of
battery on the ground that a CCTV footage had been erased accidentally after
it had been viewed by a police officer and a bystander who gave

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contradictory accounts in their statements as to what they saw in the footage

which covered part of the incident.

Applying the test laid down in

R (Ebrahim) v Feltham Magistrates Court (supra.), the Queens Bench

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Division held that inconsistencies in witness evidence were to be expected in

criminal proceedings, especially where a short, fast-moving incident
involving violence was concerned and the loss of the CCTV evidence did not

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approach the level of prejudice necessary to warrant the exceptional course

of granting a stay of proceedings.
24.

The respondent submitted that the absence of the original CCTV

recordings of 5 August 2014 in the present case would not have made any
difference to the outcome of the appellants trial because the central issue

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concerning the trial, namely, what had happened at the foot of the
E7 escalator, could not have been captured in any of the missing recordings
anyway. This important feature distinguishes the present case from HKSAR

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v Lau Ngai Chu [2002] 2 HKC 591 in which the 10 CCTV recordings that
had not been disclosed prior to the appellants trial were retained and had
been made available to the appellant after the trial who was able to

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demonstrate that parts of 3 of the 10 recordings were relevant to three

important issues which were subject of the trial. The respondent therefore
submitted that HKSAR v Lee Ming Tee and Securities and Futures

Commission (Third Party) (supra.), HKSAR v Ho Loy (supra.) and HKSAR v

Chu Man Kit, Gary (supra.) relied upon by the appellant can also be
distinguished in the same manner.
25.

It is submitted by the respondent that even if the police had in the

present case failed their duty in not seizing the original CCTV recordings, the

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failure resulted only from oversight but not bad behaviour, in the sense of
bad faith or serious fault, on the part of the police so as to render it unfair that
the appellant should be tried at all.
26.

It is submitted therefore that no fault lies with the police for allowing

the CCTV recordings of 5 August 2014 be destroyed as they are now

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demonstrated to have no marginal relevance to the main issue in the original

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trial, namely, whether PW1 was indecently assaulted at the foot of the E7
escalator and their absence could not have made any difference to the
outcome of the trial.
27.

In conclusion, the respondent submitted that the appellant has not been

able to show on a balance of probabilities that the appellants trial was so

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prejudiced by the unavailability of the CCTV recordings. Since their absence

could not have made any difference to the outcome of the original trial, this
ground should be dismissed.

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DISCUSSION ON GROUND (1)

28.

The above authorities cited by the respondent establish that the

absence of evidence such as CCTV recordings may prevent a fair trial but
does not automatically do so. The authorities relied by the appellant has a
common feature in that the missing evidence are all directly relevant to the
issues at trial. I accept that the paramount consideration in this case therefore

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is whether owing to the absence of the CCTV recordings, the defence would
suffer serious prejudice to the extent that a fair trial could not take place. The
starting point for consideration must be whether the missing recordings were

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relevant or determinative for the central issues that were fallen to be decided
during the trial.

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29.

I should say at the outset that I am satisfied that what has emerged

during the hearing of this appeal shows that it is not a case that the police has
acted in bad faith in not seizing the CCTV recordings or deliberately

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allowing the recordings to be erased or destroyed. It is apparent from reading

the affirmation of DPC 9916 that after viewing the CCTV recordings on
15 August 2014, he was of the view that the footage did not cover the offence

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location and thus was of no value for police investigation. Neither he nor the
officer-in-charge of the case had ever given consideration to any significance
it might have and thus the police did not see fit to apply for a warrant from

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the court to seize the recordings from the MTRC. By the time the solicitors
then acting for the Appellant first made enquiry with the police about the
CCTV recordings which was on 4 December 2014, the same has already

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been recycled and lost permanently as normally any recordings would only
be kept for 28 days according to MTRC.

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30.

On 22 July 2015, pursuant to section 83V of the Criminal Procedure

Ordinance (Cap 221), the appellant applied to file two affirmations by the
two solicitors acting for the appellant to disclose the correspondence between

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the police, the defence (before the trial) and the MTRC (after the trial)
regarding the availability of CCTV footage relating to both charges. The
affirmations and exhibits sought to show that such CCTV recordings were

not provided to the defence despite explicit requests being made to the
police.

In response, the respondent has applied for an adjournment to

conduct further investigations when the appeal hearing was first listed before

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Stanley Chan DHCJ on 4 December 2015. The application for adjournment

was opposed fiercely by the leading counsel for the appellant but was granted
eventually after hearing submissions from both sides. As a result of further

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enquiries, the respondent had sought to introduce additional evidence by way

of four affirmations by DPC 9916, the officer-in-charge of the case and two
operations safety officers of MTRC, regarding the CCTV recordings. There

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is no need for me to describe this evidence in great details. Suffice it to say

that after the adjournment, DPC 9916 had on 9 December 2015 applied for a
search warrant and obtained from MTRC new recordings of the same four
CCTV cameras which captured the CCTV recordings of the Tuen Mun MTR

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Station on 5 August 2014.

Having viewed the recordings, DPC 9916

confirmed that the areas covered by the four CCTV cameras as shown in the
new recordings were the same as the lost recordings. According to the new

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recordings, only CCTV camera number TA3-Unpaid covered a small part

of the E7 escalator which was far away from the camera and the foot of the
escalator, where the alleged indecent assault took place, was totally blocked

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from the view of the camera by a pillar in the concourse. Moreover, the
affirmation of the operations safety officer of MTRC also confirmed that the
four CCTV cameras were fixed cameras which were not movable during

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daily operation.
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31.

The appellant argued that the court should exercise its judicial

discretion to refuse to admit this new evidence from the respondent. They
submitted that the new recordings was taken on a different date as the lost
recordings and questioned what purpose it would serve to produce new

recordings of a date other than the date of the offence. Also, they said there
was no evidential basis to suggest the new recordings would capture the same
geographical location as the CCTV cameras on the offence date.
32.

The objections raised by the appellant can be disposed of without any

difficulty. First, the materials sought to be adduced by the respondent are

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directly relevant to the determination of appellants Ground 1 of appeal

against conviction regarding the non-disclosure of CCTV recordings.
Second, the materials that were sought to be adduced by the respondent were

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directly in response to the appellants Notice of Motion filed on 22 July 2015

and the two affirmations filed in support thereof. Third, DPC 9916 was the
only person who had viewed the lost recordings and he had deposed that the

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new recordings had captured the exact locations as the lost recordings which
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must be relevant for consideration. Fourth, the MTRC has confirmed that the
relevant four CCTV cameras were fixed as installed. There was simply no
basis for the appellant to suggest that there was no evidential value of the

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additional evidence adduced by the respondent regarding the new recordings.

Finally and also most importantly, the principal of fair trial involves fairness
both to the defendant and the prosecution. For the purpose of a proper

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consideration on Ground 1 of the appeal against conviction, it is necessary or

expedient in the interest of justice to admit the new evidence adduced by
both the appellant and the respondent and I so ordered.
33.

The appellant submitted that the ultimate question to be decided is

whether the undisclosed material was relevant or possibly relevant to an issue

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at trial. They submitted that the lost CCTV footage are relevant to the core
issues of the trial for the following reasons:(1)

bearing in mind that one of the contentions raised by the

defence counsel at trial was that the alleged touching of PW1
may have been accidental, the undisclosed CCTV recordings
could have demonstrated that the Tuen Mun Station was

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very crowded at the time of the offence which was denied by

PW1;
(2)

given that it was contended at trial that the appellant was

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carrying his backpack at his front at the time of the offence,

any touching of PW1 may have been by his backpack. The
appellant similarly claimed that any touching of PW1 may

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have been by his backpack when he was interviewed under

caution by the police. This was put expressly to PW1 during
cross-examination, to which she denied;

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(3)

one of the discrepancies which emerged from PW1s

evidence was whether she was holding her mobile phone at
the time of the alleged indecent assault. This is another

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aspect of the evidence which could have been captured by

the CCTV camera, thereby leading a possible line of cross-

examination to undermine the credibility of PW1;

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(4)

PW1 claimed that she kept an eye on the appellant who was
standing at the platform. The CCTV footage covering the
platform would have captured the circumstances under

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which PW1 came in contact with a staff of MTRC and the

subsequent confrontation with the appellant. Such objective
evidence could have undermined PW1s version of events
and affected the quality of the identification of the appellant,

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which was again an issue raised by the appellant

immediately after his arrest.
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34.

In the 2nd Charge, the time of the alleged offence was at around 0742

hours and it was a weekday morning inside a MTR West Rail station at Tuen

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Mun. It is unfair and incorrect for the appellant to say that PW1 had even
denied that the station was crowded at the time.

A closer look at the

questions posed by the defence counsel during the trial reveals the followings

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exchanges:
Q

Q:

Okay, it was a weekday that day, during rush hour,

everyone was in a hurry getting to work, including
you, right?

A:

Yes.

Q:

At that time, before you got onto the escalator, you

were unable to move forward because it was very
crowded, right?

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Have to-A:

No

Q:

Well, do you need to stand still and wait to get onto

the escalator?

A:

No need.

Q:

So there is no stopping, just walking slowly.

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35.

A:

Yes.

Q:

To get onto the escalator.

A:

Yes .

It is clear from the above questions and answers that PW1 did not deny

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that the MTR station was crowded. She clearly has said she had to walk
slowly to the escalator during the rush hours. What she disagreed was the

suggestion by the defence counsel that it was so crowded to the extent that
she could not move forward at all and needed to standstill and waited to get
into the escalator.

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36.

Based on the affirmation of DPC 9916, none of the four CCTV

cameras installed at the MTR station on the offence date cover the location at
the foot of the E7 escalator. As such, whilst the relevant footage would

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probably show that in general, the MTR station was crowded with many
commuters entering the paid area through the turnstiles and going up via the
escalator E7 to the platform to board the train but the relevant footage will

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not be in a position to show that people had to stop and standstill before
getting into the escalator due to its coverage. I have the opportunity of
viewing the new recordings in court and I must say I have to agree with the
observation of DPC 9916, namely, the CCTV recordings would not be able to
capture the offence location i.e. the foot of the escalator E7.
1

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37.

The same also applied to the suggestion by the appellant that he was

carrying his backpack at the front at the alleged time of offence and therefore
any touching of PW1 may be caused by the backpack. In the trial, there is no

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evidence from the appellant that he would only carry his backpack at the
front as a habit or only on the day in question. The fact remains that the
Appellant could well have carried his backpack at the back or at the front as

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he saw fit at any time as every normal person will do. Even assuming for a
moment that the CCTV footage did capture the appellant carrying his
backpack at the front at some point of time, it does not necessarily mean that

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he was in fact still carrying the backpack at his front at the time of the alleged
offence when he was standing behind PW1 at the foot of the escalator. Both
in her examination-in-chief or under cross-examination, PW1 only said the

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appellant had carried his backpack on his back at the time when she felt her
left buttock was being touched. She did not say that the appellant never carry
it at the front at any time. I must repeat that due to the limitation on the

coverage, the CCTV footage was not in a position to show what happened or
whether the appellant was carrying the backpack at the front at that very
moment when the alleged offence occurred at the foot of the escalator.
38.

On the other hand, the submission by the appellant ignored PW1s

evidence that as soon as she felt her left buttock being touched, she

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immediately turned her head and looked behind her and saw the appellant
withdrawing his hand swiftly. This piece of evidence from PW1 which could
not have been captured and shown by the lost recordings has effectively

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dismissed any suggestion by the defence that the touching of PW1 from
behind was accidental and possibly caused by the backpack carried in the
front by the appellant. As a matter of fact, based on this evidence, I consider
that whether the appellant was carrying his backpack in the front or at his

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back was only red herring as the touching was said to be by the hand and not
by other objects such as a backpack. It should also be pointed out that during
cross-examination of PW1, all that can be challenged by the defence counsel

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on this point was by putting to PW1 that she was not sure whether it was the
left hand or right hand which was withdrawn from her behind and that she
was actually not sure if the hand belonged to the appellant to which PW1 had

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both disagreed. I fail to see therefore how the lost recordings would be able
to assist the defence and undermine the credibility of PW1 if they were
available in the trial.
39.

The third suggestion by the appellant that the lost CCTV recordings

could have captured whether PW1 was holding her mobile phone at the time

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of the alleged offence so as to lead to a possible line of cross-examination to

undermine the credibility of PW1 was again far-fetched and speculative, to
say the least. Admittedly, although during examination-in-chief, PW1 said at

one point she was using the mobile phone while she was walking and felt
being touched, under cross-examination, she had already clarified that she
was in fact putting her phone into her handbag carried on her left shoulder

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after being reminded of what she has told the police in her statement. In both
scenario, what PW1 was trying to say was merely she was looking down so
she was able to see the hand of the appellant retrieving after the alleged

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touching on her buttock. Even treating that there was such an inconsistency
as alleged, it is minor and peripheral and I do not see how it could assist to
undermine the credibility of PW1 in the core issues. In any event, due to the

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problem of coverage, the lost recordings could not be in a position to show

whether PW1 was holding her mobile phone at the material time.

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40.

The last suggestion by the appellant of the relevance of the lost

recordings was in relation to the activities of PW1 and the appellant that
could have captured in the platform. It was contended that such objective

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evidence could have undermined PW1s version of events and affected the
quality of the identification of the appellant, which was an issue raised by the
appellant immediately after his arrest.
41.

A closer look at the response of the appellant when he was confronted

by PW1 at the platform reveals that this argument about misidentification in

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nd

relation to 2 Charge is totally misconceived. In the cautioned statement

(Exh. P5), the appellant admitted having asked PW1 in front of the MTR
staff on 5 August 2014 whether she had misidentified him but after

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clarification by the interviewing officer, the appellant already replied it was

in relation to the alleged previous indecent assault on the LRT train on
19 May 2014 and not the alleged indecent assault on 5 August 2014:
A2:

When inside Tuen Mun Station after passing the

MTR entry gate, using my Octopus Card and on
reaching the escalator. I felt that my backpack had hit
somebody. But I didnt pay attention to it and
proceeded to taking the escalator up to the platform. I
stood on the left side of the platform to wait for the
train. Shortly afterwards, I saw a girl and a female
staff walking towards me. The girl said I had touched
her, and that I had touched her at the LRT also. I then
asked her if she had identified the wrong person and
told her that it was my backpack which had hit her.

Q3:

A3:

Q4:

You said previously that you asked the girl if she had
identified the wrong person. What do you meant by
that?

A4:

Because I did not touch her. I had no impression of

seeing her before either. Therefore I believe she

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probably had identified the wrong person, it was

some other person who had touched her at the LRT. 3

42.

For this reason, it is clear that even the appellant did not dispute that

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the alleged incident in the 2nd Charge was not a case of misidentification.
What he was trying to say that it was a case of accidental touch. According
to him, therefore that was a case of misunderstanding not misidentification.

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Given the stance already adopted by the appellant in the cautioned statement,
I question the validity of the suggestion by the appellant in this hearing that
the lost recordings showing what happened in the platform could undermine
PW1s identification evidence.
43.

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Besides, I also question the relevance of the platform recordings for

the following reasons.

First, what happened in the platform was the

aftermath of the alleged indecent assault and therefore could not have a direct
bearing on what exactly happened at the foot of the escalator. Second, it is
not a case of first time identification by PW1 according to her evidence. She
was able to describe the special features in the appearance of the appellant
whom she already met a few months ago in the Light Rail train in May 2014.
The missing CCTV recordings, on the other hand, could well have reinforced
the case of PW1 that she was keeping an eye on the appellant all the time in
the platform and it is really anybodys guess.

As to the issue of

identification, it is worth pointing out that PW1 had not been cross-examined

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about the quality of her identification of the appellant in this incident. The
Magistrate has properly given himself the Turnbull warning on identification.
44.

In R v Medway (supra.), Professor J C Smith stated in his commentary

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to judgment that:

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Commentary The court remarks that where evidence has

been lost, tampered with or destroyed, it may well be that a
defendant will be disadvantaged; but it does not necessarily
follow that he cannot receive a fair trial. In the context, it
seems that a defendant is disadvantaged only if the absence
of the evidence might have made a difference in the outcome
of the trial. If there was a possibility of it, then clearly he
was. When the evidence had gone missing, there is no means
of knowing what difference it could have made. Even if the
police officer who viewed the tape acted in perfect good
faith, he may have been mistaken. He may have missed
something which would have weakened the prosecutions
case just as he may have missed something that would have
strengthened it. Presumably, the court has to assess how
likely it is that the particular evidence would have made a
difference. Since there must always, or almost always, be a
possibility, a stay will be refused where that possibility is
remote. There is an analogy with the law that the cause must
be proved beyond reasonable doubt, not beyond all doubt.

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45.

Applying the judgment in the Feltham case, the respondent also

submitted that the defence raised by the appellant in the present case was not
dependent upon the existence and production of the CCTV recordings

although if such evidence had existed it would have been of assistance

assuming it was the appellant claimed it to be. The appellant was perfectly
well able to give his account of the incident in exactly the same way as if it

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had occurred in a place where there was no suggestion of the existence of

CCTV cameras. However, the appellant had elected not to give evidence at
trial. I totally agree with this submission and whilst it was his undoubted

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right to not testify in the trial, it means that there is no evidence from the
appellant to undermine, explain or contradict the evidence put before the
Magistrate by the prosecution.
46.

In my judgment, after considering the submissions on this ground in

the round, the relevance of the missing recordings to the core issues of the

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trial as contended by the appellant is minimal and at its best marginal. The
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possibility that the missing evidence could have assisted and advanced the
defence case is remote and speculative. I am left in no doubt that the
appellants trial was not, in the circumstances of the case, prejudiced by the

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missing of the recordings, to the extent that a fair trial is impossible. There
was no question of malice or intentional omission, as opposed to mere
oversight, on the part of the police, although with hindsight, in the present

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circumstances, it would be more prudent for the police to retain and seize the
CCTV recordings first anyway and to treat them as unused materials and
therefore discoverable if subsequently the prosecuting authority had decided

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that they are not going to produce them in the trial.

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GROUND (2)
47.

In this ground, the Appellant contended that the Magistrate erred in

permitting dock identification of the Appellant by PW1 at trial. They cited

the leading case of HKSAR v Hoang Duc Hoa & Others [1997] 1 HKLRD 12
and stated the principle that judges should not allow dock identifications and

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prosecuting counsels should not seek to rely upon such if the identification is
the first time that the witness is called upon to identify an accused person
unless there is some very good reason. Normally, the only time that dock

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identification is permitted is in a true recognition case where the accused is

known well to the witness and has been described by him at the time or
shortly after the offence and so at trial, he simply confirms that this is the

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person about whom he speaks.

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48.

The appellant submitted that in the present case, PW1 was not

acquainted with the appellant for a very long time and in fact she only had
seen the appellant twice and therefore it could not be considered as case of

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recognition by the witness of a person she knew well and therefore dock
identification is not permissible.
49.

The appellant also tried to distinguish this case with the judgment of

HKSAR v. Ning Renzhong & Another (unreported) HCMA 1151/2005, 13

January 2006 where Mr Justice MacMahon held:
it may well be that there are often good reasons in a
particular case for no identification parade to be held. One
such circumstance in additional to those mentioned in Hoang
Duc Hoa is where arrest is made at the scene of the offence in
full view of the victim who is able to say that the person who
committed the crime was the person who they saw arrested
by the police.

50.

The appellant pointed out that the passage cited above echoes the

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views expressed by the Magistrate in allowing the dock identification.

51.

The Magistrate seemingly held the view that this was a case in which a

defendant was arrested at the scene of the offence in full view of the victim.

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The appellant submitted, however, by referring to the transcript of

proceedings that the evidence only showed that PW1 had been keeping her
eye on the male before she spotted the MTR staff and there is no reference as

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to whether she had lost sight of the male after she spotted the staff. It is
submitted that the implicit meaning in the Magistrates summary of evidence
was that PW1 more or less knew the location of the male since she had been

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keeping an eye on him before, and therefore, she was able to lead the staff to
the male.

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52.

In the end, the appellant submitted that therefore the present case is not

a case where an arrest is made at the scene of the offence in full view of the
victim. By the time the appellant was arrested, he was no longer at the scene

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of the alleged offence (i.e. the escalator) but had already reached the
platform. Also, PW1 had lost sight of the male and only located the appellant
afterwards.
53.

In reply, the respondent submitted that the only issue in this ground

was whether there had been any broken chain of identification by PW1 after

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the indecent assault and before the appellant was identified to the MTR staff.
The respondent pointed out that PW1 said after she had identified the
appellant at the bottom of the escalator as the assailant, she let him take the

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escalator only one step ahead until they reached the top of the escalator into
the platform. Her evidence was that she then kept watching to which train
compartment position the appellant went to wait for the train in the platform

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and so she knew where the appellant was standing. She then pointed the
appellant out to the MTR staff where the appellant was and they walked
towards him together.
54.

The respondent submitted that clearly it was not a case where PW1

only kept an eye on the appellant before getting hold of the staff and that she

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had lost sight of him after she had got hold of the staff. The Magistrate had
already clarified with PW1 on this point and he had not erred in holding that
she at all times had been watching the defendant and allowing the dock

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identification. I shall refer to the relevant transcript of proceedings in the

following paragraphs.

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55.

The respondent also emphasized the fact that it was not the first time

PW1 had seen the appellant. PW1 could not have failed to identify the
appellant given the three distinct features of his appearance, namely, that he

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wore a pair of spectacles with thick black rim; had a mole on his left cheek;
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and did not have much hair on his head. The combination of these features
clearly makes the appellant easily and readily recognizable. In addition,
PW1 could also clearly identify the appellants clothing and that he was
carrying a rucksack on both occasions.

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It is submitted that PW1s

identification evidence is cogent and safe.

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DISCUSSION ON GROUND (2)

56.

The principle governing the identification of a defendant in court was

very clearly set out in R v Hoang Duc Hoa and others [1997] HKLRD 12.
Mortimer JA (as he then was) said at page 14D-E:
This is not to say that in a proper case a dock identification
cannot be allowed. A dock identification is admissible in
evidence. We sound a note of warning, however, because
judges should not allow dock identifications and prosecuting
counsel should not seek to rely upon such, if the
identification is the first time that the witness is called upon
to identify an accused person unless there is some very good
reason. The obvious reason is that an accused has refused to
attend an identification parade and that no other proper
means of identification has been possible before trial, such as
a group identification of a structured identification by means
of photographs or some other recognised and proper
procedure. Normally, the only time that a dock identification
is permitted is in a true recognition case where the accused is
known well to the witness and has been described by him at
the time or shortly after the offence and so at trial, he simply
confirms that this is the person about whom he speaks.

57.

In the magistracy appeal case of HKSAR v. Lau Man Shing and

another [2002] 2 HKLRD E11 it was also held that a dock identification is

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admissible where the witness has previously identified the defendant at the
scene, even though no subsequent formal identification procedure was
carried out:

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10.
In this appeal learned senior counsel had fairly
conceded that identification evidence in court per se is not
inadmissible as a matter of law. The central issue at the trial,
as quite correctly stated by the magistrate, was the quality of
the identification evidence of the prosecution witnesses.
Senior counsel sought to argue that because of the weakness
in the identification evidence, they should never have formed
the basis of admitting the court identification.
11.
This argument has a number of inherent weaknesses.
It was never disputed by the defence at the trial that the
appellants were the persons arrested by the police in the early
evening of 24 July. What is being described as "court
identification" was not an attempt by the prosecution to invite
the witnesses to identify the appellants for the first time. It is
no more than evidence confirming that the appellants were
the persons arrested by the police. I am unable to see any
valid basis for objecting the admissibility of this evidence.
The magistrate had acted quite properly in admitting the
evidence in the way as he did. Learned senior counsel
appeared to have based his argument on the erroneous
conception that the magistrate should not have allowed
questions be put to the prosecution witnesses as to whether
the defendants sitting in the dock were in fact the persons
arrested by the police. This is clearly not the case as this is
not identification for the first time. (emphasis added)

58.

The issue of dock identification was fully canvassed at the trial. The

Magistrate had this to say in his Statement of Findings to explain why he

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allowed the identification in court:O

7.
The police did not arrange for an identification
parade. The prosecution asked for leave to allow PW1 to
carry out a dock identification, upon which the defence raised
objection and cited the authority of HCMA 761/2005
HKSAR v. Tang Chun Yu in support of their objection.
8.
The cited authority HKSAR v. Tang Chun YU is a
case of the Court of First Instance of the High Court, which
is binding on this Court. However, theres a substantial point
of difference between the facts of this case and that case. The
witness in that case only pointed out the defendant of that
case 19 days after he/she was being assaulted whilst PW1
pointed out the defendant to the MTR staff after a very short
period of time. Further, in her evidence, PW1 mentioned that
within that short duration she at all times had been watching

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the defendant. Therefore, I consider that the authority of

HKSAR v. Tang Chun Yu is not applicable to this case.
Moreover, if the police had arranged an identification parade
after PW1 pointed out the defendant to the MTR staff, the
purpose of which would only be to verify whether PW1
could identify the person she had pointed out to the MTR
staff from the identification parade. Therefore an
identification parade, as far as this case is concerned, would
not serve any purpose.
Hence, I allowed PW1 to carry out a dock identification and
PW1 identified the Defendant. 4

59.

In the present case, the purpose of the dock identification was no more

than asking PW1 to confirm that the appellant was the male whom she

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pointed out to the MTR staff in the platform. The appellants submission that
the location of the identification by PW1 to the MTR staff was in the

platform was not the same location of the floor of the escalator was frankly
hair-splitting and untenable. Also their attempt to say that the appellant has
lost sight of the appellant as she has to spot the MTR staff was only a wild
guess. They emphasized that PW1 had been keeping her eye on the male

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before she spotted the staff and there is no reference as to whether she had
lost sight of the male after she spotted the staff.

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60.

Plainly, this submission was based on one reply by PW1 to the

prosecutor during examination-in-chief:

61.

Q:

Well, while you were seeking assistance, did you

check the mans situation, like where he was?

A:

Yes, I kept watching him until I got hold of a staff. 5

However, this submission ignored the evidence that PW1 had also told

the court in evidence that as soon as she took the escalator and followed the
4
5

Appeal bundle p.96-97

Appeal bundle p.240A-C

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appellant into the platform, she could already see a female MTR staff
standing in the platform.6 It therefore is a not a case where PW1 needed to
go to different parts of the platform area to search for assistance. I wholly

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agree with the respondents analysis of PW1s evidence regarding her

activities in the platform. It is abundantly clear to me that the totality of her
evidence was that she had all along kept an eye on the appellant and did not

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lost sight of him in the platform at all. She knew where the appellant was
standing as he was waiting for the train in the platform and then went straight
to fetch the MTR staff and immediately returned together with him to

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approach the appellant. The Magistrate also clarified with PW1 on this point:
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Court: You said to locate, but just now you also said he
was never out of your sight, you kept watching him,
so you dont actually really mean to search for him
when you said locate, right?

62.

Q:

So its not searching, do you mean search

Court:

Not to search, not

Q:

Or to

A:

Because I already knew

Q:

Yes.

A:

knew where he was. 7

Since PW1 already knew where the MTR staff was, she did not need to

find the staff and she already knew she was there and where she was standing

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in the platform. Also one should not forget that PW1 was able to identify the
appellant not just by a fleeting glance but by the three distinguished features
as pointed out by the respondent in his submission as well as his clothing

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(black trousers and black leather shoes) and the rucksack that he was carrying
(black backpack with white rim). Finally, the appellant was standing in the
6
7

Appeal bundle p.239N-P

Appeal bundle p.240M-241A

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platform waiting for the train which means he had not moved his position. I
must also repeat here once again that it was never the Appellants case during
the trial that he was misidentified by PW1 on 5 August 2014. The 5 August

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incident had nothing to do with misidentification. It was only about

misunderstanding. The appellant never deny that he was not standing behind
PW1 before coming onto the escalator. All he said or could say was it was

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just an accidental touch possibly by his backpack as he too felt it. During the
confrontation in the platform, the appellant heard PW1s allegation that he
was the assailant in the LRT incident in 19 May 2014 and he just told her he
had misidentified him in relation to that incident but not the incident on 2

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nd

Charge. There is simply no substance on this ground.

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GROUND (3)
63.

The chief complaint by the appellants in this ground was that the

Magistrate failed to consider the marked discrepancies existed in the

evidence of PW1 and he failed to provide any or any adequate reasons for

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accepting the evidence of PW1 as credible and reliable despite the various
inconsistencies in her evidence.

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64.

As submitted by the Appellant, such discrepancies included:P

(1)

During examination-in-chief, PW1 stated in relation to

Charge 2 that at the time, she was walking slowly towards
the escalator while pressing her mobile phone at the same
time when she saw with the corner of her eyes someone
touching the left side of her buttocks with his left hand.

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However, under cross-examination and in her witness

statement, PW1 stated that at the time she was waiting to
board the escalator and had placed her mobile phone into her

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bag when she felt something touching buttocks, and upon

suspicion, turned around and saw the appellant withdrawing
his right hand; and
(2)

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During examination-in-chief, PW1 stated in relation to

Charge 1 that at the time, she was facing the window of the
Light Rail Vehicle when she felt something soft rubbing

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against her buttocks for 6-7 seconds. However, PW1 stated

the alleged rubbing lasted approximately 30 seconds.
65.

The appellant referred to para 17 of the Statement of Findings and

criticized how the Magistrate came to the conclusion that these were only

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minor inconsistencies and his attempt to explain away the inconsistencies and
blamed the interviewing police officer for the inconsistencies:
17. [PW1s] evidence under cross-examination
remained unshaken. Minor inconsistencies exist between her
testimony in court, her statement taken by the police and
what she had told the woman police officer. I believe that the
statement was written by the police officer and PW1 did not
write it herself, so inevitably there will be inconsistencies
between her answers to questions put to her by the police
officer, and her replies to the questions put by both the
prosecution and defence counsel in court. Having considered
these inconsistencies, I consider they are not material
discrepancies and do not contradict each other. It can be said
that these inconsistencies do not bear any significance.

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66.

In reply, the respondent submitted that the trial magistrate had

considered the discrepancy regarding the duration of the rubbing in the first
incident and said in his Statement of Findings that:
25. Sometimes she said for 6 to 7 seconds and at other
times she said for 30 seconds. I consider that it would be very
difficult for anyone to make an accurate estimation of time. I
consider this inconsistency regarding the time is not
important.

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67.

In delivering his oral Reasons for Verdict, the Magistrate also

explained that PW1 would not have checked her watch for how long the
rubbing had lasted. It is submitted that it is only natural for a lady to feel

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shocked, embarrassed and furious when being indecently assaulted. It is

readily conceivable that one would not be able to give an accurate estimate of
time given the agitated state of mind. It is submitted that the magistrate had

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carefully considered the discrepancy and rightly considered that it was

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insignificant.

68.

Regarding the second incident, PW1 testified in her evidence-in-chief

that she had been sending text messages on her mobile phone when she felt
her left buttock being touched but she admitted under cross-examination that

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it was when she was putting away her mobile phone instead. Nevertheless, it
was PW1s clear evidence that her head was down at the time and that was
why she saw the appellants hand.

The respondent submitted that the

discrepancy is minor enough that counsel for the appellant had not bothered
to mention it in his closing speech, More importantly, it was the defence case
at trial that PW1 was either accidentally touched by the appellants rucksack

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or by the appellants hand. It was not the defence case that PW1 had not
been touched.

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69.

The prosecution submitted that the Magistrate had not erred in his

assessment of the credibility and reliability of PW1s evidence and that

Ground 3 should be dismissed.

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DISCUSSION ON GROUND (3)

70.

In my judgment, the two inconsistencies identified by the appellants in

support of the argument are far from significant. In relation to whether

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it was 6 to 7 seconds or 30 seconds, the Magistrate had correctly

pointed out that PW1 was not watching her watch at the time when she
was being touched.

It is only natural that a lady under the

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circumstances would feel shock or even in fear and therefore confused

with the time. The difference in terms of numbers may be big but in
either case, it was talking about a relatively short duration. I do not see

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how the discrepancy in PW1s subjective impressions with time would

undermine her credibility in general.

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71.

In relation to the second incident, I also agree with the respondent that

whether she was texting with the mobile phone of putting the phone back to
her handbag was immaterial. Both scenarios indicated that PW1 was looking

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down when she was being touched in the left buttock and she could see one
hand of the appellant was retrieving. In my mind, PW1 was only relating to
the court what she was doing when she entered the paid area with her

Octopus Card and bearing in mind of what she had said in total, it is clear
that the touching took place at around the same time when she just finished
using the mobile phone and putting it back to her handbag and hence when

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she was questioned in greater details by the defence counsel, a slightly

different version emerged from PW1.

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72.

Even the Magistrate was not entirely correct when he attempted to lay

the blames on the interviewing police officers without any evidential basis
and sought to explain away the existence of the inconsistencies, it does not

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detract from the fact that the inconsistencies were by themselves minor. In
any event, the Magistrate had the advantage of seeing and hearing PW1 and
he was entitled to find that she was on the whole a credible witness whose

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73.

In respect of the credibility of witnesses, the law is well stated in

HKSAR v Singh Balraj [2003] 3 HKC 621 at para 14 :14.

Whether or not a prosecution witnesss evidence can
be safely accepted or a defence witnesss evidence can be
safely rejected depends very often on the impression which
the magistrate forms when seeing and hearing the witnesses.
Such an impression, which will naturally be formed in the
context of the inherent probabilities, does not readily lend
itself to being described in words. If our legal system
proceeded on the bases that the appellate court needed to
have such a description, it would not room for the jury
system. And yet the jury system exists as the one to which
the most serious criminal cases are entrusted under our legal
system.

In fact, I could do no better than to refer to the following passage by Stock J

(as he then was) regarding the more realistic approach to inconsistencies in

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the often-cited case of R v KWONG Wing-on and Another (09/08/1996,

HCMA 574/1996):
12. Pausing at this juncture, I would say this : that
microscopic dissection of a transcript will always uncover a
discrepancy, a failure to answer a question, some inherent
improbability or other, a piece of evidence not included in
statements to the police, and a myriad of bits and pieces upon
which to build pages of grounds of appeal. In the real world,
and even with truthful witnesses, these discrepancies,
improbabilities, and omissions will occur. Indeed if they do
not, then the evidence is attacked as being artificial or
collusive. A magistrate is not expected to deal expressly with
every comforting crumb to which the defence may be able to
point. A realistic attitude must be encouraged, and the
approach to such attacks is to ask whether there have been
material and significant discrepancies, improbabilities or
omissions, such as would lead or should lead a tribunal to
doubt credibility on central facts.

74.

Stock J mentioned in the case that there is a great danger of losing

sight of the wood for the trees if the appellant had focused too much on

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inconsistencies and I judged that this is exactly what happened in this ground
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of Appeal.

GROUND (4)
75.

In this ground, the appellant submitted that the Magistrate erred in

concluding by way of conjecture and/or inference that the respective assaults

on 19 May 2014 (1st Charge) and 5 August 2014 (2nd Charge) were indecent.
76.

The Appellant relied on Kwan Ping Bong & Another v The Queen

[1979] A.C. 609 and submitted that an inference can only be drawn if it was
the one and only one reasonable inference that no reasonable man could fail
to draw from the direct facts proved.
77.

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In relation to 1st Charge , they contended that the evidence of PW1

taken to its highestmerely established that there was contact between the
appellants belly and PW1s buttocks.

There was no further evidence

regarding the contact between the Appellants belly and PWs buttocks which
could support and inference of indecency.

Even if there was, it was

submitted that an inference of indecency was not the only reasonable

inference. Other inferences including inadvertence, accidental touching
could equally have been drawn and the Magistrate made no attempt to rule
out the possibility of such inferences.
78.

Similarly, in respect of 2nd Charge , they contended that the

evidence of PW1 taken to its highest merely established

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contact between the appellants hand and PW1s buttocks. The

possibility of an accident was explicitly put forward by trial
counsel for the appellant (albeit disagreed by PW1). The question

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of indecency was not explored in any detail, whether by the

Magistrate or counsel for the prosecution.

According to the

submission, the Magistrate seemingly assumed that any contract

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with PW1s buttocks was indecent in nature. This is apparent from

para 23 of his Statement of Findings in which the Magistrate stated
that:

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I believe beyond all reasonable doubts, that means I am sure

that the Defendant had used his hand to touch PW1s
buttocks, an act which constitutes an assault, and the only
reasonable and irresistible inference that can be drawn is that
such an assault was indecent.

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The appellant complained that the Magistrate made no reference to any

other primary facts aside from the touching itself which was

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supportive of the inference of indecency.

79.

The respondent prefaced its submission by referring to the well-known

case of R v Court [1989] AC 28 and submitted that indecent assault

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comprised the following elements:

(a)

the accused intentionally assaulted the complainant;

(b)

the

assault,

or

the

assault

and

the

circumstances

accompanying it, are capable of being considered by rightminded persons as indecent; and
(c)
80.

Wan

Yat

Man

[2015]

HKLRD

586,

where

Deputy Judge Albert Wong (as he then was) succinctly summarised the
relevant law as follows:

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the accused intended to commit such an assault.

The respondent also referred me to another magistracy appeal case

HKSAR

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51.
The first issue of the appeal is whether the relevant
act was indecent. This is a finding of fact. What the
magistrate had to decide was whether a right-minded person
would consider the act so offensive to contemporary
standards of modesty and privacy as to be indecent.

52.
Some acts are incapable of being considered as
indecent, an example of which is the removal of a shoe from
a girls foot by the appellant in R v George [1956] Crim LR
52. Even though such acts are done by the defendant with
sexual desire or obscene motive in his mind, which he keeps
it to himself, there is no indecent assault.
53.
On the other hand, some acts are obscene and overtly
sexual, for example, fondling the private parts of the victim.
If the defendant did any of such acts, it is not necessary to
consider his motive or intent. This principle was confirmed
by the Court of Final Appeal in HKSAR v Fok Ka Shing
(2013) 16 HKCFAR 413. In R v Court, Lord Ackner
remarked that although intention was an important element of
the offence, if the act in question was unambiguously
indecent, then unless the defendant could come up with an
explanation, such act would necessarily cause a right-minded
person to draw an irresistible inference that the defendant
intended to assault the victim in a manner which was
indecent.
54.
Some acts, of which an example was what happened
in R v Court, ie spanking a young girls buttocks outside her
shorts with the hand, are not unambiguously indecent, but
can be regarded as capable of being an indecent assault. If
the defendant did such an act, it is necessary to determine
whether the defendant intended to commit an assault which
was indecent. Lord Ackner said that in considering this issue,
factors which could be taken in account included the
following:
(1) the relationship of the defendant to the victim;
(2) how the defendant had come to embark on this
conduct;
(3) why he was so behaving;
(4) the defendants explanation, if any, which can be used
todetermine the nature of the conduct in question, and
ultimately to determine whether the defendant
intended to make an assault which was indecent on
the victim. Where the overall circumstances show
that though the conduct can be interpreted as an
indecent assault, it also admit a different

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interpretation, then the defendant should not be

convicted.

THE 19 MAY 2014 INCIDENT

81.

PW1s evidence was that the LRT train was crowded but not packed

and the degree of the crowdedness would not have caused the appellants
belly to touch her buttocks. On crowdedness, PW1 denied under crossexamination that she did not walk away from the appellant after the indecent

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assault because the train was so crowded. According to PW1, the appellant
was the only person behind her at the time.

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82.

PW1 described that the appellant used his belly to rub her buttocks

(both left and right sides) as opposed to simply touch or brush against

her buttocks suggesting that (a) force was used by the appellant to press his
belly against PW1s buttocks with pressure; (b) the appellants belly rubbed
over PW1s left and right buttocks back and forth or with a rotary motion;
and (c) the act had been repeated.
83.

There was no suggestion that the appellant rubbed his belly against

PW1s buttocks because the wobbling motion of the train. It was the defence

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case that PW1 had misidentified the appellant to be the assailant but not that
PW1 had not been indecently assaulted or that the assault was accidental.
The appellant elected not to give evidence and there is therefore only the

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evidence of PW1 to consider.

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84.

Ladies travelling on trains in Hong Kong are most vulnerable to

indecent assaults for the trains are often crowded and assailants are more than
ready to take advantage of the condition. PW1 was a total stranger to the
appellant and PW1s back was in full view of the appellant. There was no

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reason for the appellant to stand as close to PW1s back as he did. The
appellant must know that it was PW1s buttocks that his belly was rubbing
against because they were right in front of him. It is submitted that the

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Magistrate was correct in finding that the rubbing was deliberate and not
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accidental.

85.

As opposed to simply touching or brush against PW1s buttocks,

by rubbing his belly against PW1s buttocks with pressure, it is submitted

that with no innocent explanation to the contrary, a right-minded persons

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would consider the assault as indecent because the act had seriously infringed
upon PW1s dignity and privacy.

The appellant was obviously taking

advantage of the circumstances at the time to rub his belly against PW1s

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buttocks for an indecent purpose. It is submitted that the Magistrate had not
erred in concluding that the rubbing was not accidental and that the only
irresistible inference that can be drawn was that it was an indecent assault.

(See also HKSAR v Cheung Cheuk Fai [2004-2005] HKCLRT 267)

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THE 5 AUGUST 2014 INCIDENT

86.

It was PW1s evidence that the Tuen Mun MTR concourse and the

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escalator in question were not particularly crowded on the day of the incident
which suggests that the touching of her left buttock could not be accidental
and that she had seen the appellant retrieve his hand after the assault. PW1

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clearly remembered that the appellant had his rucksack on his back instead of
his front which suggests that it was not the rucksack that had accidentally
touched her left buttock when the appellant approached her from behind.

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The appellant elected not to give evidence and there is therefore only the
evidence of PW1 to consider.

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87.

The respondent pointed out that PW1 was wearing a skirt on the day of

the incident. She was a total stranger to the appellant and PW1s back was in
full view of the appellant. There was no reason for the appellant to stand as

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close to her back as he did given that the station concourse was not
particularly crowded on the day in question.

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88.

In both HKSAR v Li Ka Man, HCMA 824/2010 and HKSAR v Wong

Sai Shing, HCMA 463/2013, it was held that a right-minded person would
consider an unexplained intentional touching of a female strangers buttock

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by a male person to be indecent.

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89.

The respondent submitted that with no innocent explanation to the

contrary, a right-minded person would consider the assault as indecent

because the act had seriously infringed upon PW1s dignity and privacy.
They also submitted that the Magistrate had not erred in concluding that the

touching of PW1s left buttock was not accidental and that the only
irresistible inference that can be drawn is that it was an indecent assault.

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DISCUSSION ON GROUND (4)

90.

The major complaint by the appellant in this ground was the

Magistrate erred in drawing the inference of indecency in both occasions

which formed the basis of the two charges. The singularly important feature

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in this trial is the appellant had elected not to give evidence. I have already in
para 45 of the Judgment highlighted the legal effects of this decision by the
appellant. The respondent similarly submitted that under the circumstances,

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the Magistrate was entitled to draw the necessary inference in the

circumstances.

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91.

To answer to the criticisms of the appellant on this ground, I would

further refer to the Chinese judgment of

HCMA614/2006. In that judgment Nguyen J quoted the following extracts

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and cases :
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(1)

Bruce and McCoy on Criminal Evidence in Hong Kong:

There are circumstances in which a court may more readily
draw an inference adverse to the accused from evidence in
the absence of testimony from the accused.

(2)

According

to

Lo

Sui

Wing

&

Another,

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CACC 509/1989Macdougall JA said :

Where an inference of guilt may properly be drawn from a
set of facts, a jury or a judge sitting without a jury, is entitled
in the absence of a credible explanation leading to a different
conclusion, to convict the accused on the basis of that
inference.

(3)

Fuad VP in R v Cunningham, HCMA 941/1992, remarked

that an accused person should not be surprised if an
inference which can legitimately be drawn is more readily

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drawn when the accused elects not to give evidence.

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(4)

(5)

The Court of appeal, in R v Chong Kin Cheong,

CACC 196/1995, said:

A judge or jury faced with evidence from the prosecution

which is unanswered by testimony from the accused is not
required to imagine possible defences of which there is no
evidence, but, rather, is required to act upon the evidence
available.

In R v Tan Siew Gim [1995] 1 HKLR 299, it was held that :

Where the inference of guilt is available to the tribunal of
facts and no explanation is given, it is not open to complain
on appeal that another inference was available to be drawn,
particularly when the facts cry out for an explanation.

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92.

I believe the above authorities had succinctly summarized the legal

principles in relation to drawing an adverse inference when an accused

person elected not to give evidence. What the appellant had said in his

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cautioned statement is only exculpatory statement which has not been

repeated on oath and had not been tested under cross-examination. The
Magistrate was also entitled to decline to attach any weight to the suggestion

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or explanation that there was no touching in the 1 Charge or that the

touching was by accident in the 2nd Charge. After a careful consideration of
the submissions, I judge that in both charges, there is no good reason for the

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appellant to touch the buttocks of PW1 by using his belly or his hand. The
Magistrate was thus perfectly entitled to come to the conclusion that the
rubbing or touching was deliberate and not accidental. In the circumstances,

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any right-minded person would consider such an unexplained and intentional

touching of PW1s buttock by the appellant to be indecent and his finding
that such an assault was indecent could not be faulted.
93.

In conclusion, a Magistracy appeal is in the nature of re-hearing and

the appellate court will only depart from a magistrates determination of

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witness credibility if it is plainly wrong (see HKSAR v FOK, James

Alistair [2015] 4 HKC 247). At para 10 the test of plainly wrong is said to be
as follows:-

10. In deciding whether a magistrate was plainly wrong

in his finding as to the credibility of a witness, an appellate
court should objectively determine whether the magistrates
finding cannot reasonably be explained or justified. In other
words, the finding was one that no reasonable magistrate
could have reached.

94.

The Magistrate has had the advantage of seeing and hearing the

witness PW1 and is in a better position to assess her credibility. It is for that

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reason that an appellate court will only depart from a magistrates

determination of the credibility of a witness if it is plainly wrong. In my
analysis, the Magistrate did not commit any error in his assessment of the

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credibility of the witness and had committed no fault in the course of

analyzing and evaluating the evidence. His finding of fact and therefore the
guilty verdicts reached on both charges should not be interfered with.

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ORDER
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95.

The appeal against convictions on both charges is dismissed

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accordingly.

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(Anthony Kwok)
Deputy High Court Judge

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Mr Raymond Cheng, Senior Public Prosecutor of the Department Of

Justice, for the respondent
Mr Cheng Huan SC and Mr Edward Tang Ho Ming, instructed by
SSW & Associates, for the appellant

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