YEUNG LAP CHI v. HKSAR

FAMC No. 74 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 74 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 497 OF 2005)

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1.  The applicant was charged with indecently assaulting a woman on a bus on 30 July 2004.  He was tried before Peter Hui, Esq. in the Magistrate’s Court.  On 14 April 2005 Magistrate acquitted him of indecent assault but convicted him of attempted indecent assault.  He appealed against that conviction to the High Court.  On 24 August 2005 Deputy High Court Judge Anthony To quashed the conviction but ordered a retrial, saying that he acceded to “the respondent’s request to send the case back to the Magistrate’s Court for another magistrate to conduct a retrial”.  By virtue of s.119(1)(d) of the Magistrates Ordinance, Cap. 227, the powers of the High Court in an appeal from the Magistrate’s Court include the power to “direct that the case be heard by a magistrate de novo”.

2.  Following the order for a retrial, the applicant was notified by the Magistrate’s Court that he should appear before it on 14 September 2005.  He did so, and learned that in the retrial the prosecution was proceeding against him for indecent assault (of which he had been acquitted at trial) rather than for attempted indecent assault (of which he had been convicted at trial).  Through his counsel he entered a plea of autrefois acquit.  Whereupon the Magistrate’s Court adjourned the case to 14 October 2005 for mention.

3.  Before that date, by a Notice of Application filed on 16 September 2005, the applicant initiated an application for leave to appeal to the Court of Final Appeal against the High Court’s order that he be retried.  He seeks such leave under the “substantial and grave injustice” limb of s.32(2) of the Court of Final Appeal’s statute.  The contention in his Notice of Application is that no retrial at all should have been ordered, alternatively, that the High Court’s order that he be retried is invalid because it did not specify the offence for which he was to be retried.

4.  When the retrial case came up for mention in the Magistrate’s Court on 14 October 2005, it was further adjourned to 29 November 2005. 

5.  Before us the respondent accepts that the current charge of indecent assault is inappropriate, and indicated that it would seek to amend the charge to one of attempted indecent assault.  In the light of this stance on the part of the respondent, the appellant withdrew his contention that the order that he be retried is invalid for failure to specify the offence for which he is to be retried.

6.  Shortly stated, the argument for the applicant is now simply that the retrial, even for attempted indecent assault only, would involve going behind a clear finding by the magistrate that there was no indecency.  This argument is based on two things which the magistrate said.  The first was said in the course of the magistrate’s oral reasons, and is this:

“This touching, according to the prosecution – the victim’s evidence, was without malice, so it does not constitute common assault.”

As for the second thing, it is found in the magistrate’s Statement of Findings, and is this:

“I found that the prosecution had proved the allegations beyond reasonable doubt and that the evidence offered was absolutely sufficient.  However, having considered the fact that the appellant merely touched the part of PW2’s body beneath armpit, between her back and her breast, I could not fully accept that the assault by the appellant on PW2 was indecent.  However, I found that the conduct of the appellant sufficiently constituted tentative indecent assault, and therefore I found that the appellant was guilty of attempted indecent assault.”

7.  The problem facing the applicant is that whatever lack of clarity there may be in the magistrate’s utterances - and there is much in his utterances which are unclear - his finding of attempted indecent assault, mark the word “indecent”, is consistent only with a finding of indecency.

8.  In our view, there is no proper basis on which to grant leave to appeal to the Court of Final Appeal.  And such leave is accordingly refused.  The prosecution is at liberty to proceed on the order for retrial.  But it should - and no doubt will - give anxious consideration to whether or not the magistrate has left this matter in such a state that the wise course is not to proceed further.  This is a matter for the prosecution to decide.