Deputy Magistrate Eric Yao acquitted a defendant (“D”) charged with indecent assault and criminal damage and ordered the prosecution to pay costs to the defence (except costs for permanent stay application).

Both D and the complainant, X, were around 17 and did not know one another. The prosecution case was that D followed X on a rainy night and brushed X’s breast once. It was said that D threw X’s phone with great force onto the ground. In stark contrast, the defence case was that D slipped and fell amidst the rain and fell onto X. Only X’s back was bumped into by D’s elbow by accident. Both D’s and X’s phones dropped to the ground. When D tried to pass X’s phone to X, X asked for a compensation of HK$ 2,000 from D and threatened to call the police if the demand was refused. D refused, and X called the police.

The trial began with a permanent stay application since on-site police officers said they thought they were investigating a “robbery” case as requested by the 999-call centre. When defence tried to obtain the audio recording of the 999 call made by X, it was revealed that the police did not seize the recording and it was no longer available due to lapse of time. Having heard arguments, the court dismissed the permanent stay application.

The Magistrate found numerous doubts in the prosecution’s case.

(i) X said she called Y, her boyfriend, immediately after the alleged incident. However, X never complained about being molested – rather X only said her mouth was covered by someone.

(ii) Y gave a different account of what X told her in the alleged call, adding that X complained of being pushed onto the ground. X’s and Y’s accounts were simply different.

(iii) By way of admitted facts, the prosecution and the defence agreed the call history between X and Y. There was never a call between them after the alleged indecent assault. The court had great doubt accepting X’s and Y’s version.

(iv) X subsequently called 999. Yet, when making the report, X never complained being indecently assaulted. Instead, she complained her mobile phone being snatched. The court found that beyond imagination.

(v) X gave numerous versions about how she told the police about the indecent assault, including “her left breast being brushed”, “her right breast being brushed”, “she forgot which side of her breast being brushed”, and “she already forgotten how she told the police at the scene”.

(vi) The court inspected the state of X’s mobile phone. If X’s version that D threw her phone onto the floor was true, the extent of damage would not have been so minor.

The Magistrate found X unreliable and found D not guilty in both charges.

Simon So, appearing with Herman Ho, represented D in the 3-day trial. They also made a High Court bail application before Anna Lai J after Ag Principal Magistrate Winnie Lau refused admitting D to bail when he was first charged. The Judge granted D bail after him being remanded for 7 days.