HKSAR v. YIU YAU HO DANIEL

HCMA 619/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 619 OF 2005

(ON APPEAL FROM ESCC 4836 of 2004)

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J U D G M E N T

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1.  This Appellant, a man of previous good character in his late 20s, appeals against his conviction before A J Wyeth, Esq in the Magistrate’s Court at Eastern on a charge of indecent assault, contrary to s.122(1) of the Crimes Ordinance, Cap. 200.

2.  The prosecution’s case was wholly dependant on the evidence of the woman who the Appellant was charged with indecently assaulting.  She was the first witness for the prosecution, and I will refer to her simply as “PW1”.  If what PW1 testified had happened to her did in fact happen, then there can be no doubt that she was indecently assaulted.  And if the circumstances were as she testified, the irresistible inference would be that the person who indecently assaulted her was the Appellant.  The Magistrate, having seen and heard them, felt sure that PW1’s testimony was reliable and that the Appellant’s testimony was not.

3.  Three perfected grounds of appeal, each directed to the contention that the Appellant’s conviction is unsafe and unsatisfactory, have been filed.  They read:

“1.     The Appellant did not receive a fair trial by virtue of his Counsel’s conduct of the case; in particular Counsel made insufficient and inadequate enquiry by way of cross-examination of PW1 into crucial details and the surrounding circumstances of the alleged offence.

2.      In any event, such evidence as was available should have resulted in a reasonable doubt, of the Appellant’s guilt in that PW1’s description of the assault was such that it was physically impossible for the Appellant to have committed it, alternatively it was at least inconsistent with the Appellant being the perpetrator.

3.      Further or alternatively, that grounds 1 & 2 above together and/or in combination with other features of the case that were favourable to the Appellant should give rise to a lurking doubt.”

4.  The Appellant applied for the admission as fresh evidence on appeal of PW1’s statement to the police and its translation into English. Since the arguments for and against the admission of this evidence involved practically everything argued in the appeal itself and with the agreement of counsel, I did not deal with the application for fresh evidence on appeal as a preliminary matter but instead received the fresh evidence de bene esse.

5.  Turning to Ground 1, I begin by referring to the decision of the Court of Final Appeal in Chong Ching Yuen v. HKSAR (2004) 7 HKCFAR 126.  It was held by the Court of Final Appeal in that case: (i) that for defence incompetence to constitute a ground of appeal such incompetence has to have resulted in the trial having been something less than a fair trial (see p.133H); and (ii) that it is unlikely that anything short of a very high degree of defence incompetence would ever reduce or contribute to reducing a trial to something less than a fair trial (see p.135D).

6.  In my view, defence counsel’s failure to rely on PW1’s statement to the police and to cross-examine her on it was within the range of choices open to a competent defender in all the circumstances.  Neither that failure nor anything else rendered this trial less than fair.  Ground 1 fails.

7.  As to Ground 2, I do not accept what it asserts.  It fails.

8.  Ground 3, which depends on the first two grounds, fails along with them.

9.  Neither on the evidence at the trial nor on such evidence augmented by the fresh evidence which I have received de bene esse do I find this conviction unsafe or unsatisfactory.  This appeal is accordingly dismissed.