HKSAR v. LIU KA CHEUNG

HCMA 104/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 104 OF 2004

(ON APPEAL FROM KCCC 16629/2003)

____________

____________

_______________

J U D G M E N T

_______________

1. The Appellant was convicted after trial of one charge of indecent assault and was sentenced to a 3-month Hospital Order. He now appeals against both conviction and sentence.

2. The victim in the case gave evidence that she was walking one morning when the Appellant had passed by her very closely and extended his right hand and brushed the back of his right hand upward over her lower left breast. The second prosecution witness was with PW1and also saw the Appellant's hand extend toward PW1. As a result, the Appellant was subsequently arrested by police officers.

3. At the trial, the Appellant elected to testify and it was the Appellant's case that he did not touch PW1 but it was she who had brushed against him. This was a case where the issue was whether the Magistrate believed the witness for the prosecution and if he should reject the prosecution witnesses' evidence, there would be no case against the Appellant.

4. The learned Magistrate, after assessing the evidence, found that the prosecution witnesses were honest and truthful witnesses. He noted that the discrepancies, which had appeared in the testimony, were minor and did not affect his finding on their reliability. He considered that the circumstances of the touching did amount to an indecent assault. He also dealt with the evidence of the Defendant and he found that the Appellant was a dissembling witness and therefore rejected the Appellant's evidence and so at the end of the day convicted him.

5. The Appellant, in his grounds of appeal, said that at the time, the 1st prosecution witness was influenced by evil spirit and he again repeated his claim that it was PW1 who had brushed against him and not the other way round. Well, this matter was already canvassed before the learned Magistrate and the learned Magistrate did not believe him. The Magistrate's finding on fact is seldom disturbed on appeal unless it is clear that the learned Magistrate had been wrong either in law or there were no facts to support his finding.

6. I had read carefully the learned Magistrate's finding and the learned Magistrate had ample evidence to conclude as he did. So the appeal against conviction is dismissed.

7. Now as far as the appeal against sentence was concerned, the learned Magistrate did after his conviction of the Appellant remanded the Appellant in custody for psychiatric reports. In the two reports that were submitted to the learned Magistrate, the psychiatrists were of the opinion that the Appellant was suffering from paranoid psychosis suggestive of a schizophrenic illness and that he required inpatient psychiatric care at Siu Lam. The learned Magistrate then considered that in all the circumstances a Hospital Order would be appropriate in this case as recommended by both doctors for a period of 3 months.

8. The Appellant in his appeal against sentence seems ambivalent about what he wants to do. He claims that since he has nearly finished his 3 months in Siu Lam he was not particularly interested in appealing at this stage against that sentence. But on the other hand, he said that if the court considered that he should be released immediately, then he would, in other words, appeal against that sentence.

9. Well, it is clear from the Appellant's submission in this court that he still requires some psychiatric assistance. I am, therefore, convinced that the 3 months as recommended by both psychiatrists for inpatient care is appropriate for the Appellant. So his appeal against sentence is also dismissed.