HKSAR v. CHEUNG KWAI LEUNG

HCMA 493/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. HCMA 493 OF 1999

(On Appeal from WSCC 4128/99)

____________

____________

______________

J U D G M E N T

______________

1. This Appellant appeals against his conviction in the magistracy for an offence of Indecency in Public.

2. The Appellant, whilst a passenger on the MTR, exposed his penis and moved it with his hand. This was seen by 2 passengers, one female and one male. The female passenger remonstrated with the Appellant on realising that the exposure was not accidental. The passengers reported the incident. The Appellant in evidence explained his actions by saying he had some discomfort in his lower abdomen and was trying to relieve the pain.

3. The main ground of appeal was that the Magistrate had failed to warn himself of the danger of convicting, on uncorroborated evidence.

4. The offence with which the Appellant was charged was not a sexual offence requiring corroboration and it was unnecessary for him to so direct himself. If corroboration had been required it was available in any event, as both passengers had witnessed the exposure, albeit from different vantage points and at slightly different times.

5. The Magistrate analysed the evidence carefully and found he could rely on the accounts given by the two eye-witnesses. I do not consider, as Appellant's counsel appeared to suggest, that it was incumbent on the Magistrate to consider all permutations of possible defences in the light of the defence advanced. There was ample evidence to support this conviction and this appeal is dismissed.