HKSAR v. SUN CHUN MAN

HCMA 384/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 384 OF 2013

(ON APPEAL FROM ESCC 364 OF 2013)

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J U D G M E N T

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1.  This appellant appeals against his conviction in the Magistrates Court on a charge of indecent assault while travelling on a MTR train. The defence suggested that the alleged victim might have been touched by another man. The prosecution's own evidence was that this other man was holding on to a handrail with one hand. But the Magistrate appears to have been under the impression, by reason of what is now agreed was a misinterpretation, that this evidence was that he was holding on to the handrail with his "hands", using the plural. This inaccurate impression naturally contributed to the Magistrate's rejection of this suggestion that the alleged victim might have been touched by this other man.

2.  In these circumstances and without any need to deal with the other grounds of appeal, the conviction cannot be regarded as safe. The appeal is therefore allowed to quash the conviction.

3.  Having heard counsel for the respondent urging a retrial and counsel for the appellant arguing against a retrial, I have come to the conclusion, all things considered, that the just course is to order a retrial, and I do so. Since there is going to be a retrial, I have kept my reasons brief in order to avoid the danger of saying anything that might prejudice a retrial.