HKSAR v. CHANG KAM TONG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL No. 544 of 1999

(On appeal from SKCC 908 of 1999)

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J U D G M E N T

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1. This is my judgment. Mr Cosgrove's complaint, which includes all his grounds of appeal, is that because the learned magistrate had rejected the evidence of PW4 on the basis that she found that he had exaggerated his evidence, this, as it were, tainted the whole of the prosecution's case. The reason is that prosecution witnesses who are police officers would only lie to mislead the court. This argument seems attractive on the face of it. Miss HO for the respondent submitted that since PW3's evidence was accepted, this was not the situation that pertained in the case.

2. I have considered submissions of both counsel and taken time to again read through what the learned magistrate has said in her oral judgment and also the written reasons. PW3's evidence was indeed accepted and accepted independently. I do not find therefore that Mr Cosgrove's submission is substantiated. The learned magistrate especially rejected PW4's evidence on the basis of exaggeration and not on lies. Further, she found his evidence simply unreliable. Therefore, the effect is as if PW4 had not given evidence. It is therefore a far cry from having found or finding that PW4 had lied to the court and that these lies therefore should taint the whole of the prosecution's case.

3. In respect of discrepancies, it is correct that there were discrepancies and the learned magistrate had, in fact, acknowledged them. However, they were not such discrepancies which had caused the learned magistrate any reasonable doubt. In fact, she had considered each and every such discrepancy, eight of them in all, very carefully and had, in my opinion, properly and satisfactorily resolved them.

4. As to expert evidence being required in respect of the sensitivity of the penis, with respect, no reasonable tribunal would accept that. Expert evidence is not required for such a matter. Normally expert evidence would only be required when the court had difficulty in understanding or assessing evidence in respect of matters which are not commonly known. Sensitivity of the penis is not such a subject.

5. In the circumstances, I find that none of the grounds of appeal is of substance and accordingly the appeal against conviction is dismissed.