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.
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)
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)
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)
CHU WAI CHING (朱偉淸)
Before: Deputy High Court Judge Line in Court
Date of Hearing: 27 March 2008
Date of Judgment: 27 March 2008
J U D G M E N T
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.
Deputy High Court Judge
Mr Frederick Chung, Senior Government Counsel of the Department of Justice, for the Respondent
Appellant CHU Wai- Ching (朱偉淸), in present