HKSAR v. CHU YU KWAN, ERIC

HCMA 105/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 105 OF 2005

(ON APPEAL FROM NKCC 3237 OF 2004)

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J U D G M E N T

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1.  The Appellant appeals against his conviction after trial before Albert Wong, Esq. in the Magistrate’s Court at North Kowloon on a charge of indecent assault.

2.  If the complainant’s evidence is to be believed, then the Appellant assaulted her and the assault was an indecent one.  But if the Appellant’s evidence is to be believed, then the intimate contact between them was with her consent, and no offence was committed.

3.  The Magistrate’s acceptance of the complainant’s evidence presents two problems.  One is that he attached some weight albeit little weight to a complaint which she made when, in light of his finding that it was the result of repeated questioning, he should have attached no weight at all to it.  The other is that he found that the complainant had been “less than frank” in an “important aspect of her testimony” but then ended by describing her as “an honest and credible witness” without explaining why he formed that view of her despite the lack of frankness of which he earlier spoke.  This is a serious problem since the lack of frankness was on an important matter, namely the issue of shouting for help.

4.  A Magistrate’s assessment of a witness is not lightly overturned on appeal.  But there are here fatal flaws in the Magistrate’s approach to the complainant’s evidence.  That being so, I am driven to intervene.

5.  The appeal is allowed to quash the Appellant’s conviction and set aside his sentence.