HKSAR v. HO KAM LUN

HCMA 183/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 183 OF 2012

(ON APPEAL FROM ESCC 3839 OF 2011)

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BETWEEN

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J U D G M E N T

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1.  This is an appeal against a conviction for indecent assault. The Appellant is a man of previous good character in his mid-20s.

2.  The prosecution’s case was that he, while behind the complainant, reached out and touched her buttocks.  She, as PW1, and her boyfriend, as PW2, gave evidence in support of the case.  The Appellant’s evidence was that the contact was accidental.

3.  A police officer who had interviewed the complainant and her boyfriend gave evidence as PW3.  He gave evidence that they had reported the incident as a brushing.  Of PW3’s evidence, the Magistrate said:

“I found that I had doubt upon the accuracy of PW3’s evidence as he did not make any record of what had happened and he had not followed the usual police procedure of speaking to each party in the case individually. I rejected his evidence that the incident had been reported as a brushing.”

4.  It would appear that the Magistrate was of a view that it would assist the defence if the incident had been reported as a brushing. In such circumstances, this police officer’s evidence that the incident had been so reported should not have been simply rejected just because the Magistrate doubted its accuracy.  Having regarded to the criminal burden and standard of proof, evidence favourable to the defence operates in the defence’s favour not only if such evidence is true but also if it might be true.

5.  The way in which the Magistrate approached and treated this officer’s evidence is an incorrect approach in law.  I am unable to regard the conviction as proper, safe or satisfactory.

6.  In the result, I allow the appeal, quash the conviction and set aside the sentence.  Having done so on this ground, I do not propose to say anything about the other grounds of appeal.