CHEUNG CHEUK FAI v. HKSAR

FAMC No. 53 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 53 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 179 OF 2005)

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

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Mr Justice Chan PJ:

1. The applicant was convicted by a magistrate of indecent assault.  His conviction was upheld by a Deputy Judge in the Court of First Instance. In seeking leave to appeal to the Court of Final Appeal, Mr Ma on his behalf complains that since the judge held that the magistrate had made a number of errors, she should have allowed the appeal.

2. The allegations of the victim were hardly disputed: while she was travelling on a bus, the applicant sitting next to her touched her thigh on two occasions; on each occasion, this was done several times and for about 5 to 10 seconds. Under caution by the police upon arrest, the applicant said that although there was physical contact, he did not touch the victim’s thigh.  At the trial, the applicant’s defence was that he was asleep at the material time and did not know what happened.

3. The judge identified three or four errors made by the magistrate.  She found that these errors were not material and concluded that the magistrate’s decision was well supported by the evidence.  For the present purpose, it is not necessary to deal with the errors individually.  Suffice it to say that it is submitted that the effect of these errors is that the magistrate had wrongly and unfairly rejected the applicant’s defence that he was asleep and thus lacked the necessary mens rea and that the judge was wrong to uphold the conviction.

4. We think that the judge was entitled to come to that view. The magistrate was satisfied that the victim was honest and reliable. In fact her evidence on how she was touched was not seriously challenged.  If she was indeed touched in the manner as she described, and this was what the magistrate referred to as the “whole process/incident and the behaviour of the applicant”, there could be no question of any accidental touching by the applicant while he was asleep. Once the magistrate accepted her evidence, as he was entitled to do, the applicant’s defence must be rejected and was rightly rejected in this case.  The magistrate and the judge were correct in coming to their conclusions.

5. We do not think it is reasonably arguable that the applicant had suffered substantial and grave injustice.  The application for leave to appeal is dismissed.