在地鐵及巴士上發生的非禮案

四十七歲牧師吳漢超，涉嫌在港鐵車廂內勃起下體，揩擦身旁女乘客大腿被控非禮，昨於東區法院裁定表面證供成立後，他不自辯。辯方讀出的五封品格證人信件，分別是由恒生商學書院校長崔康常、被告妻子、一名放射治療師和兩名教會職員撰寫，信中指被告是柴灣平安福音堂的傳道人，專注青少年工作，均稱讚被告的品格及為人；信中亦透露被告自從被控非禮後，已不敢到人多熱鬧的地方。

以上的新聞是東方日報2月25日的報導。讓我也凑熱鬧，談論公共交通工具上發生的非禮案。這類非禮案最常見的是在地鐵及巴士上發生。怎樣才算是非禮呢？不如引用香港上訴法院時常引用的英國上議院合議庭(House of Lord) 的R v Court〔1989〕案例中，Lord Ackner的介定，

For the defendant to be liable to be convicted of the offence of indecent assault, where the circumstances of the alleged offence can be given an innocent as well as an indecent interpretation, without the prosecution being obliged to establish that the defendant intended to commit both an assault and an indecent one, seems to me quite unacceptable and not what Parliament intended.

I, therefore, conclude that on a charge of indecent assault the prosecution must not only prove that the accused intentionally assaulted the victim, but that in so doing he intended to commit an indecent assault i.e. an assault which right-minded persons would think was indecent. Accordingly, any evidence which tends to explain the reason for the defendant's conduct, be it his own admission or otherwise, would be relevant to establish whether or not he intended to commit, not only an assault, but an indecent one.

杜溎峰暫委法官在香港特別行政區訴楊立志，HCMA497/2005一案中，就猥褻侵犯(俗稱非禮)罪的元素，概括了Lord Ackner的講法：

「5. 要證明被告人犯上猥褻性侵犯，控方須證明(一)被告人做了罪行作為，即侵犯受害人，(二)有意圖侵犯受害人及(三)當他侵犯受害人時存有猥褻意圖。這意圖為一名正常思想的人會視該侵犯與其總體的情况為猥褻，及該侵犯者存有這知悉或罔顧一位正常思想的人會否視該侵犯為猥褻，仍進行侵犯受害人。」

在香港上訴案判辭中，我可歸納幾種常見的情況。在巴士上受害人打瞌睡，被告刻意選擇坐在她旁邊，雙手交疊胸前裝睡，然後伸手摸受害人胸部外側的位置。也有伸手摸受害人大髀或大髀內側，有些被告會把公事包放在大髀上，以作掩飾。也有被告坐在受害人後面，從車窗與座椅之間的空隙，向前伸手摸前座位受害人胸外側或者大髀外側。當然也有站立在擠逼車廂用下體壓向受害人的情況，也有在下車時快速摸胸或下體，受害人來不及反應，被告已經下了車。至於在地鐵，一般被告會選擇上下班人多擠逼，金鐘至油蔴地之間的車站作案。有些被告會在月台徘徊，找尋獵物，跟隨上車下手。最常見的做法是站在受害人後面，用下體壓向受害人。

有見在地鐵車廂非禮情況猖獗，警方成立了反非禮的便裝巡邏隊十多年，在上下班時間執勤。不少案件是由他們告知受害人遭到非禮，而邀請她們做證人的。這種情況下一般定罪率較高。巴士上沒有同類的便裝警察巡邏，發生非禮基本上依賴受害人的證供來指證被告。

萬一成為受害者，應該怎樣處理呢？首先，不要反應過敏，請先弄清楚是否行車顛簸，引致意外的接觸，以免冤枉好人。若果在擠逼車廂，要看清楚是誰擠壓或摸你，否則不知是誰幹的，白白被非禮。肯定了真的被非禮，便應指責被告，叫其他乘客幫忙及報警，不要讓被告走掉。在那種情況下不能做淑女，羞愧畏縮。但千萬不要做潑婦，不能罵不堪入耳的說話，否則惹來其他乘客厭惡，不肯挺身相助。在現場對被告的指責要清晰，但不要過份詳盡。要搞清楚對方用左手抑或右手，左邊右邊等。在場的乘客有可能是證人，到場的警員必定是證人，他們都有可能覆述在現場投訴的對話。如果他們的講法與受害人的不一致，要把被告定罪便會增加難度。

不要誤以為地鐵及公共交通工具上發生的非禮案是近年才發生的事，早在1991年上訴庭已經應律政司判刑覆核申請對地鐵非禮定下量刑指引。在AG and Wai Yan Shun CAAR17/1990，上訴庭對日益猖獗的地鐵非禮，定下初犯者判監14至28日的阻嚇指引，第二次犯案則判監2至6個月。

In our view, given the prevalence, for a first offence the "clang of the prison gates" should now be the normal sentencing option. A period of imprisonment between 14 and 28 days, depending on the place in the scale warranted by the facts would not be interfered with. For a second offence, sentence could well be between 2 to 6 months' imprisonment. (paragraph 28)

有關判刑指引一直沿用至今。非禮屬例外罪行excepted offence，不能判處緩刑。上訴庭也不排除在罕有的情況下，可判罰款。

假若是男性面對在公共交通工具上非禮的指控，又應該怎樣反應呢？沒有做過當然要否認。在人多擠逼的車廂，盡可能不要靠近女性，尤其避免下身的接觸。若果是由於行車顛簸引致，第一時間應該挪移避開。高等法院賴盤德法官(Peter Line) 在HKSAR v Chu Wai Ching (朱偉清) HCMA163/2008的非禮上訴案中講了這一段精警又幽默的話，

The final matter I deal with is this. It seems to me that most, if not all men in circumstances where you are pushed up against people in MTR trains are very conscious about touching. There is a reluctance for the sort of touching that took place here between lower limbs especially so if you happen to be standing right by and close to a young lady. Everyone knows that men do take advantage of such situations. If there is an accidental touching, most men who do not want to exploit it withdraw immediately and brace themselves and hold themselves in a way that would avoid any misunderstanding. I would suggest that is a common enough experience that most men have had on the MTR. (paragraph 13)

賴盤德法官1988年開始在香港做裁判官，那時候地鐵非禮，已經猖獗。他用一貫風趣口吻告誡在車廂擠逼佔到便宜的男士，意外觸及女士身體，應該退縮，以免誤會。

若果真的在無意接觸下引致非禮的指責，最好不要和女士吵架。當場否認指控，強調是出於誤會或意外，留在現場報警並等待警察到場處理。

朱偉清案是典型的地鐵非禮案情，張貼在此讓有興趣的人看下去，英文淺白易明，不涉法律觀點，是純事實的裁斷。



HCMA163/2008
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MAGISTRACY APPEAL NO. 163 OF 2008
(ON APPEAL FROM KCCC 492 OF 2008)

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BETWEEN

HKSAR

Respondent

and

CHU WAI CHING (朱偉淸)

Appellant

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Before: Deputy High Court Judge Line in Court

Date of Hearing: 27 March 2008

Date of Judgment: 27 March 2008

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J U D G M E N T

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1. This is an appeal against a conviction for indecent assault. The offence was alleged to have been committed on an MTR train between Admiralty and Tsim Sha Tsui, in the evening rush hour when the train was crowded.

2. The first prosecution witness who was called at the trial was a 27-year old female beauty consultant. The Appellant had stood behind her on the platform, waiting for the train. They both got on and it is common ground that they were very close to each other. They were in the view of the second prosecution witness who was called, who was a policeman on plainclothes duty. The policeman told the trial court that he observed the actions of this Appellant whereby he pressed the lower part of his body, his legs, against the young lady beauty consultant and that he did so in a way that prompted the policeman to arrest him when the train got to Tsim Sha Tsui.

3. The first prosecution witness described how she had felt the Appellant pressing against her. She described the contact as being between his lower body and hers; in particular, his legs sandwiching hers for a part of the time on the journey. She thought to herself, “How could it be that I am being indecently assaulted?” but she did not make any complaint out loud when it occurred. When the policeman asked her what had happened after the arrest of the Appellant at Tsim Sha Tsui, she said that she had felt uncomfortable. It was suggested to her that she had not felt herself to have been indecently assaulted, but she rejected that.

4. The trial magistrate believed the evidence of PW1 and PW2 and he rejected the evidence given by the Appellant along the lines that it was a crowded train and any physical contact between the two of them was merely accidental and not intentional.

5. The Appellant is unrepresented before me today, but has suffered nothing to his detriment thereby because he made some very clear and well argued submissions. He raised four points. The first point concerned discrepancies that existed between the evidence of the two prosecution witnesses. The magistrate was aware of them because he has set them out in his statement of findings, and he judged that they were not such discrepancies as would indicate that the witnesses were either untruthful or unreliable.

6. I agree with that assessment. Whether or not, for instance, the victim put her hand on a handrail was a matter of insignificant detail, which one would not necessarily commit to memory. Describing the actions of people in circumstances such as this is a process that is bound to lead to different descriptions of the same act by two honest and reliable witnesses, and discrepancies about whether there was one or two movements at a particular stage are only to be expected.

7. The second point the Appellant made was that the victim did not actually see her leg being sandwiched by the Appellant. It was only something she felt. The fact is that the contact down there was observed by the policeman. If there is such physical contact, a witness does not have to see it to be able to say ,reliably, that she felt it. The fact that she did not see it does not raise any doubt in my mind.

8. The third point was made concerning the significance of the clothing that was worn. In particular, the Appellant points to the fact that the young lady wore a jacket that covered her buttocks and that he had on a 1½-inch thick waist-bag around his waist. Whilst those are matters to be borne in mind, they obviously could not of themselves prevent what those prosecution witnesses described.

9. The fourth point concerned the crowding of the compartment and was really a point designed to say that any touching could have been accidental. The magistrate was alive to that and I like to think I am, too. There is a world of difference between accidental contact and something that is deliberate in these circumstances and it is easy to observe it, though it is quite difficult to describe in words. An important matter in this regard was that the policeman described there being space behind the Appellant; in other words, there was no need for the physical contact, certainly of the duration that was described by the witnesses.

10. The prosecution’s evidence below was strong and it was strong because the young lady was able to confirm what it was that the policeman had observed. Both of them insisted that this was an indecent assault. It is the force of that point which drove the Appellant before me today to argue that it was because the policeman drew her attention to his allegation of indecent assault that she came to think that what had occurred had been indecent, and that she had not thought it at the time.

11. The magistrate had the advantage over me of having actually seen the young lady in question. It would be a wicked thing to do to invent a false allegation deliberately against a man in these circumstances, and she was adamant that, at the time, she thought about what was happening in terms of it being an indecent assault.

12. The point that she therefore was somehow influenced by later events to take a different view of what had occurred at the time is one I therefore reject.

13. The final matter I deal with is this. It seems to me that most, if not all men in circumstances where you are pushed up against people in MTR trains are very conscious about touching. There is a reluctance for the sort of touching that took place here between lower limbs especially so if you happen to be standing right by and close to a young lady. Everyone knows that men do take advantage of such situations. If there is an accidental touching, most men who do not want to exploit it withdraw immediately and brace themselves and hold themselves in a way that would avoid any misunderstanding. I would suggest that is a common enough experience that most men have had on the MTR.

14. That was not the case here and a very experienced magistrate saw and heard the parties. He had no doubt on the evidence and gives good and unassailable reasons why in his statement of findings. I re-hear the matter on the material the Ordinance directs that I should have regard to. Despite the clear and helpful submissions of the Appellant in person, I share the view of the magistrate. The appeal is dismissed.

(P Line)
Deputy High Court Judge



Representations:

Mr Frederick Chung, Senior Government Counsel of the Department of Justice, for the Respondent

Appellant CHU Wai- Ching (朱偉淸), in present