HKSAR v. FINAN BORIS ANTHONY

FAMC No. 62 of 2019

[2020] HKCFA 19

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 62 OF 2019 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 582 OF 2018)

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ:

1.  After hearing the parties’ submissions, we dismissed this application for leave to appeal and indicated that we would hand down our reasons for doing so in due course. These are our reasons.

2.  On 7 November 2018, the respondent was convicted after trial before a magistrate[1] of one count of indecent assault, contrary to s.122(1) of the Crimes Ordinance (Cap.200).[2]  He was sentenced to five months’ imprisonment by the magistrate, but was granted bail pending appeal.  His appeal against conviction was allowed by a deputy judge of the Court of First Instance on 25 July 2019.[3]  The prosecution then applied to the deputy judge for a re-trial and, following the filing of written submissions by the parties, the deputy judge handed down his decision refusing to order a re-trial.[4]  It is from that latter decision that the prosecution, as applicant, seeks leave to appeal to the Court of Final Appeal.

3.  The prosecution case against the respondent arose from the aftermath of a party attended by former secondary schoolmates, 5 male and 4 female, then aged in their mid-20s, held in a twin-bed hotel room overnight on 9 and 10 July 2016.  Alcohol was consumed at the party and the group played card games late into the night.  It was arranged that the female members of the group would sleep on one bed and the men on the other.  At around 10am the next morning, the female complainant (PW1) awoke to discover that someone was using his hand to grasp her, and that he touched her arm and waist and finally reached her left buttock.  The person then extended his hand inside her underpants and reached her posterior rugae.[5] The complainant opened her eyes and only then saw the respondent lying on her bed.  She noticed that the respondent’s eyes were also open.  The respondent hugged her and kissed her mouth.  The complainant felt scared and used her hands to cover her mouth and protect her breasts.

4.  The complainant later left the hotel and did not have any contact with the respondent for 8 days.  On 18 July 2016, she then sent a WhatsApp message to the respondent demanding an apology.  A series of exchanges of WhatsApp messages ensued and she then made a complaint to the police leading to the respondent’s prosecution.

5.  At the trial, the respondent did not challenge the complainant’s evidence and the only issue was therefore the respondent’s mens rea.  It was his defence that he did not have any knowledge or memory of the incident.  The defence called a psychiatrist (DW3) to give expert evidence that the respondent suffered from a condition known as sexsomnia at the time of the offence.  The respondent’s fiancée (DW2) gave evidence that the respondent would sometimes touch and kiss her during the night when they were sleeping.  When she would complain the next morning, the respondent would claim to have no recollection of events.

6.  By way of rebuttal, the prosecution also called expert evidence from a psychiatrist (PW2), who disagreed with the defence expert that the respondent suffered from sexsomnia.

7.  The magistrate accepted the complainant’s evidence as credible and reliable.  He declined, on the other hand, to accept the respondent’s evidence, primarily on the basis that he considered the respondent’s reaction in his exchanges of WhatsApp messages with the complainant was inconsistent with the respondent having amnesia about the incident, which should have been the case if he had been suffering from sexsomnia.  He also rejected the evidence of the respondent’s fiancée, finding her to be neither honest nor credible.  The magistrate ultimately concluded that the respondent was fully aware of what he had done to the complainant when he touched her and that he did not suffer from sexsomnia at the material time.  He found that the respondent touched the complainant consciously and was acting voluntarily.[6] He therefore convicted the respondent.

8.  On appeal to the Court of First Instance under s.113 of the Magistrates Ordinance (Cap.227), the deputy judge reviewed the evidence, focusing closely on the WhatsApp messages exchanged between the respondent and the complainant.  He considered the WhatsApp messages were inconsistent with the magistrate’s findings in at least two respects.  He considered the respondent’s defence case had a degree of plausibility and that his and his fiancée’s evidence had been given less weight than it warranted and had been improperly rejected by the magistrate.  He therefore concluded that the conviction was unsafe and unsatisfactory and allowed the appeal, quashed the conviction and set aside the sentence imposed.

9.  It will therefore be seen that the deputy judge departed from the magistrate’s determination on an issue of credibility and, for that reason, allowed the appeal and quashed the respondent’s conviction.  That is a course open to an appellate court on a magistracy appeal by way of rehearing pursuant to s.113 of the Magistrates Ordinance but, since it does not enjoy the advantage of having received the evidence first-hand which the magistrate enjoyed, the appellate court will only do so if it is satisfied that the magistrate’s finding of fact or determination of a witness’s credibility is “plainly wrong”: Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70 at [19] and HKSAR v Ip Chin Kei [2012] 4 HKLRD 383 at [65]. 

10.  From such a decision, the Appeal Committee will only exceptionally grant leave to appeal to the Court of Final Appeal on the substantial and grave injustice limb since the Court does not function as a court of criminal appeal in the usual way.  It is not the Court’s function to review convictions to see if they are safe and satisfactory, which is the task entrusted to the intermediate appeal court: see So Yiu Fung v HKSAR (1999) 2 HKCFAR 539 at pp.541I-542B and 543F; HKSAR v Sham Man Wai (2014) 17 HKCFAR 825 at [7]-[8].  Similarly, where the prosecution seeks to appeal against the quashing of a conviction, it is not the function of the Court to re-try the facts: see HKSAR v To Chak Hang (2015) 18 HKCFAR 541 at [5].

11.  The question of whether or not the deputy judge was right to quash the respondent’s conviction is not the focus of this application since it is not against that decision of the deputy judge that the prosecution applies for leave to appeal to the Court of Final Appeal.  Instead, as indicated at [2] above, it is from the subsequent decision dated 15 October 2019 that the prosecution seeks to appeal.  In that decision, the deputy judge exercised his discretion not to order a re-trial. That there is such a power on a magistracy appeal by way of re-hearing pursuant to s.113 of the Magistrates Ordinance is not in doubt.  Such a power is expressly contained in s.119(1)(d) of the same ordinance.[7]

12.  In his decision refusing the prosecution’s application for a re-trial, the deputy judge noted that the only issue at trial was whether the defence case was worthy of belief: if it were true or probably true, the respondent should be acquitted.[8] The deputy judge reiterated that the magistrate’s reasoning was, in his view, flawed and that, had he given sufficient weight to the evidence of the defence witnesses, “the inescapable conclusion would have been one of acquittal.”[9]  The deputy judge concluded: “That being the case, there is no reasonable prospect of a conviction on retrial, and therefore there is no point in ordering one.”[10]

13.  In her written submissions in support of the application for leave to appeal, Ms Vinci Lam,[11] contended on behalf of the prosecution that, applying the relevant factors governing an appellate court’s discretion to order a re-trial after quashing a conviction, the most relevant factors weighed in favour of a re-trial and the interests of justice demanded one to be ordered in the circumstances of this case.[12]  Ms Lam’s submissions analysed the deputy judge’s reasons for overturning the magistrate’s findings in detail and contended that they were unsound.   She submitted:

“The Judge’s decision that ‘had the learned magistrate given sufficient weight to the evidence of the defence witnesses, the inescapable conclusion would have been one of acquittal’ was a decision based on his own factual findings which were made without seeing and hearing witnesses direct and without explaining why the Prosecution expert’s evidence should be rejected. As the Judge said, ‘the issue of the case turned on a narrow point – whether the Defence case was worthy of belief’. This is precisely the kind of ruling an appellate Court should be slow to interfere [with], let alone to make, especially when the key issues to be determined are witness credibility and reliability.”[13]

14.  We were not persuaded that this was a proper case in which to grant leave to appeal to the Court of Final Appeal.

15.  In support of her submissions, Ms Lam cited a number of well-known cases, including Benmax v Austin Motor Co Ltd [1955] AC 370 and Powell v Streatham Manor Nursing Home [1935] AC 243, emphasising that a trial court is far better placed to assess witness credibility.  However, these are cases that concern the position of the Court of Appeal in an appeal in the strict sense.

16.  In contrast, the present case concerned an appeal by way of rehearing under s.113 of the Magistrates Ordinance.  That is not an appeal in the strict sense.  Such an appeal is conducted by way of rehearing on the evidence before the trial court supplemented by such further evidence as the appellate court might admit under its statutory power to do so.  Whether or not the magistrate is shown to have been in error, the appellate court must still perform its statutory duty of conducting a rehearing, requiring it to be satisfied that on the evidence adduced by the prosecution the guilt of the appellant has been proven beyond reasonable doubt, failing which the appeal must be allowed.

17.  In any event, as explained above, the prosecution’s application for leave to appeal in the present case is against the deputy judge’s decision to refuse to order a re-trial, not against his allowing the respondent’s appeal and quashing his conviction.  Whilst s.119(1)(d) of the Magistrates Ordinance provides that a re-trial is one of the possible outcomes of a magistracy appeal under s.113 of that ordinance, and the situation described by McWalters J in HKSAR v Ip Chin Kei[14] is one example of where such an outcome might be appropriate, the present case is not one in which, upon the deputy judge allowing the appeal against conviction, an order for a re-trial was an appropriate order to be made.

18.  On the basis of what was common ground between the expert witnesses as regards sexsomnia, the only issue was whether the respondent had any memory of what he had done and was conscious at the time.  The only issue in the case therefore turned on the credibility of the respective witnesses.  The magistrate made findings as to the respective credibility of the witnesses and, disbelieving the respondent and his fiancée, was satisfied that the respondent was fully aware of what he did when he touched the complainant and did not suffer from sexsomnia, and that he touched her consciously and was acting voluntarily.  The deputy judge was “entitled, indeed bound, to come to his own conclusion”[15] about the respondent’s mens rea and, for his part, he came to an opposite conclusion as to the credibility of the respondent and his fiancée and held that the magistrate was wrong to have rejected their evidence.  As already pointed out (at [11]), the issue of whether the deputy judge was right to do so is not before us on this application for leave to appeal.  Nor is the issue of whether the judge was wrong to conclude that there would be no reasonable prospect of a conviction on retrial if one were ordered.

19.  Ms Lam referred us to various cases in which appellate courts had exercised a discretion to order a re-trial after quashing a conviction.  These were Ting James Henry v HKSAR,[16] Kissel v HKSAR,[17] HKSAR v Ng Chun-to Raymond and Another[18] and HKSAR v Wu Wing Kit (No.2).[19]  It is important to recognise, however, that these were cases which were appeals in the strict sense and not by way of rehearing as in the present case.  In those cases, it was not the function of the appellate court to determine, as it was here, if the guilt of the appellant was nevertheless proved beyond reasonable doubt on the basis of the admissible evidence before it.  In that context, an order for a retrial makes sense.  Here, the position was quite different because, as already explained, the deputy judge was bound to come to his own conclusion about the respondent’s mens rea.

20.  For these reasons, we dismissed the prosecution’s application for leave to appeal to the Court of Final Appeal in respect of the deputy judge’s refusal to order a retrial.