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Hksar v Wong Shing Yam

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date17 August 2018
Neutral Citation[2018] HKCFA 38
Year2018
Judgement NumberFAMC57/2017
Subject MatterMiscellaneous Proceedings (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FAMC57/2017 HKSAR v. WONG SHING YAM

FAMC No 57 of 2017

[2018] HKCFA 38

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 57 OF 2017 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO 221 OF 2016)

____________________

BETWEEN
HKSAR Respondent
and
WONG SHING YAM（黃承任） Applicant

____________________

Appeal Committee: Mr Justice Ribeiro PJ, Mr Justice Tang PJ and Mr Justice Fok PJ

Date of Hearing and Determination: 9 August 2018

Date of Reasons for Determination: 17 August 2018

___________________________________________

R E A S O N S F O R D E T E R M I N A T I O N

___________________________________________

Mr Justice Tang PJ:

1. The applicant was a teacher and he was charged with the indecent assault of a seven-year old girl (“PW1”) in his class on two occasions between 1 February 2015 and 18 May 2015. He was convicted of one and acquitted of the other and sentenced to imprisonment for 12 months. His appeal was dismissed by Deputy High Court Judge CP Pang on 1 February 2017.

2. The applicant applied, more than eight months out of time, for leave to appeal to this court on the substantial and grave injustice ground. Initially, one of the grounds relied on was that there had been material non-disclosure by the prosecution. This ground was rightly withdrawn by the applicant when the respondent demonstrated in its submissions that the complaint could not be sustained. We mention this because but for this abandoned ground, we might have disposed of the application under Rule 7.

3. At the hearing, essentially, the applicant relied on two points. First, that the evidence of PW1 that it was the applicant who had indecently assaulted her was unreliable. Secondly, the allegation that he had indecently assaulted her in a classroom with an open door and in the presence of other pupils was inherently improbable.

The evidence

4. PW1 was seven at the time of the alleged offences and eight at trial. The applicant, as he was entitled to do, did not give evidence.

5. PW1’s evidence[1] was that the assaults took place on two occasions during classes presided over by the applicant. She was in primary one and there were seven or eight pupils in her small remedial class. There were four tables in the classroom but only two were occupied. She shared a table with two boys and sat in the middle. She said, in respect of the first charge, that the applicant approached her from the right and standing to her right, put his left hand on the table and used his right hand, which went under his left arm, to lift up her dress and touch her very softly,[2] in her words “on my peeing part”.[3] When asked how she felt, she said “I felt nothing, I just felt that he was -- felt very mad -- I felt very mad at him.”[4] She also said when the applicant touched her she didn’t look at the person touching her. She said “I didn’t want to look at him, just -- I intentionally did not want to look, just didn’t want to look.”[5]

6. In respect of the second charge, which PW1 said took place on a later date, she said the applicant was standing behind her and she could feel that that he touched her with his genitals. She felt that the thing which he used to touch her, was like a gemstone and oval in shape.[6] The applicant was acquitted of this charge. Although the Magistrate accepted PW1’s evidence, he said he could not be sure whether the applicant touched her with his fingers or accidentally because of the “space of the passage behind the girl.” He was of the view the charge had not been proved beyond reasonable doubt.

7. Before us, the applicant submitted that it was possible that PW1 was not touched by the applicant, but was touched by one of her classmates with whom she shared a table. The applicant relied on what PW1 said under cross-examination:

“Q: I would like to ask you, actually, is there any possibility that the person who touched you was indeed the classmate sitting beside you?

A: No.

Q: Since you told me that you did not see the person who touched you, that is why I have to ask you. As Chu Pak Hei[7] was sitting so close to you, was there any possibility that the person who touched you was a classmate of yours?

A: It was possible.”

8. Understandably, much was made of this evidence both at trial, and before the Deputy Judge. It...

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