HKSAR v. WAI SIU KWONG

HCMA 1224/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1224 OF 2000

(ON APPEAL FROM SPCC 5066/2000)

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J U D G M E N T

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1. The Appellant appeals against his conviction in the Magistracy for an offence of Indecency in Public which involved his masturbating whilst a passenger on a bus, which act was witnessed by a female passenger.

2. It is submitted that the Magistrate wrongly took note of and referred to evidence of recent complaint to bolster the main witness's evidence and that he had used inadmissible hearsay to support that evidence although not corroborate it. It is suggested that the Magistrate thereby based his findings on irrelevant matters, or could have based his findings on irrelevant matters, to the prejudice of the Appellant. It was pointed out by Appellant's counsel that this was not a sexual offence and the doctrine of recent complaint has no application. That is correct. This was an offence of indecency in public; it may be of a sexual nature but it is not a sexual offence. The Magistrate should not have confused matters by using the term "recent complaint" as he did .

3. However, having been through the evidence as considered in the Magistrate's Statement of Findings, I am satisfied that there is no justification for saying that the Magistrate acted in any way improperly, or that he allowed his reference to recent complaint to bolster his consideration of the witness's evidence. It is quite clear that the Magistrate was satisfied on the cogent evidence of the witness that she had seen what she described and that this amounted to indecency in public.

4. There is no substance or merit in this appeal and it is dismissed.