LO CHUNG HONG v. HKSAR

FAMC No. 50 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 50 OF 2010 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA NO. 984 OF 2009)

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Between:

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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, who was a doctor at the Tuen Mun Hospital, was convicted of indecent assault on a 15 year old female patient who went to the hospital for consultation and treatment of her gastroenteritis conditions. It was alleged that during the consultation, the applicant, in the absence of any nursing staff, pulled up her dress and bra and touched her breasts. The applicant denied that this had happened.

2.  It was common ground that the complainant and the applicant did not know each other before the incident. There was no evidence to suggest why she would choose to frame up the applicant or that she had any motive to tell lies against him. Although the complainant had failed to identify the applicant at an ID parade, identification was never in issue. It is also not disputed that after the incident, the complainant told her classmate and her family members what happened and on the following day lodged a complaint to the senior management of the hospital, although only the classmate gave evidence at the trial.

3.  In seeking leave to appeal to the Court of Final Appeal on the substantial and grave injustice ground, the applicant relies on 3 particulars of complaint: the first two in effect complain that the Magistrate should not have accepted the complainant’s evidence and the third alleges that he should not have rejected the evidence of the applicant.

4.  In respect of the first two complaints, it is submitted that the Magistrate, in assessing the credibility of the complainant, had wrongly relied on evidence of recent complaint and her failure to identify the applicant and to conclude that she was an honest and reliable witness.

5.  In our view, these two complaints are not reasonably arguable. It is clear from paragraphs 25 to 27 of the Magistrate’s Reasons for Verdict that he had carefully evaluated the evidence of the complainant and was impressed by her evidence and the way she gave evidence, describing her evidence as “natural”, and without “exaggeration or fabrication of details”. There is no question of the Magistrate having to rely on the complainant’s failure to identify the applicant or any evidence of recent complaint to support her evidence in order to come to the conclusion that she was a credible witness.

6.  The Magistrate’s reference in paragraph 26 to the complainant’s failure to make any identification was meant as an illustration of the lack of intent on her part to fabricate against the applicant. It was also clear from paragraph 27, when it is read in context, that the Magistrate did not rely on recent complaint as evidence against the applicant but was merely reminding himself of the lack of corroborative evidence.

7.  The third complaint alleges that the Magistrate had misapprehended the applicant’s evidence and erroneously rejected his evidence. The applicant had earlier made a statement to the police about the incident. His statement was quite clear and unambiguous: he was there purporting to tell his version of what actually happened at the time of the incident. He was cross-examined as to why he could remember such details and he gave an explanation. The Magistrate having examined the applicant’s statement carefully in paragraph 22, came to the view that what the applicant said in his statement was what actually happened at the time of the incident rather than what happened generally. The Magistrate heard the applicant’s explanation and assessed his evidence in the light of such explanation. Obviously the magistrate was not satisfied with it. He was entitled to come to the conclusion that the applicant was not telling the truth.  There is no substance in this ground.

8.  We are not satisfied that there is any substantial and grave injustice. Accordingly, the application for leave is refused.