HKSAR v. YEUNG FUK YEE FREDERICK

HCMA 449/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 449 OF 2011

(ON APPEAL FROM KTCC 7035 OF 2010)

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BETWEEN

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J U D G M E N T

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1.  This Appellant was convicted after trial in the Magistrate’s Court (So Wai Tak, Esq.) on a charge of indecent assault and sentenced to three months’ imprisonment. He now appeals against conviction and sentence.

2.  I will refer to the victim named in the charge as “Miss X”.  If her testimony is true, it is plain that the Appellant had indecently assaulted her as charged.  If the Appellant’s testimony is true, then what happened between him and Miss X would have happened with her consent and would not amount to any offence.  The Magistrate felt sure that Miss X’s testimony is true and that the Appellant’s testimony is false.  If the Magistrate went about his fact-finding task in a viable way, that view which he took of the facts could not be disturbed.

3.  Did he go about his fact-finding task in a viable way?  Three Perfected Grounds of Appeal against conviction have been filed on the Appellant’s behalf.  Four complaints are made under Ground 1.  The first is directed against para. 26 of the Magistrate’s Statement of Findings. That paragraph (in which the reference to “Exhibit P2” is to the Appellant’s exculpatory cautioned statement and the reference to “PW1” is to Miss X) reads:

“The Appellant claimed that the hugging and kissing occurred was consensual and they started to develop a relationship on the material day. He gave a detailed account of events in Exhibit P2. Surprisingly, apart from the alleged intimate contacts, he had never discussed their relationship with PW1. If they were about to start a relationship, he should be eager to know more about PW1. It is wholly unthinkable that he had not even expressly asked PW1 to be his girl friend. According to the version given by him, they came to have intimate relationship and contacts all out of a sudden.”

4.  As Mr Justice Bokhary PJ said in HKSAR v Egan (2010) 13 HKCFAR 314 at para. 3: “Appellate courts intervene for errors of substance, and not for inadequacies of expression”.  What, therefore, is the substance of what the Magistrate is saying in para. 26 of his Statement of Findings?  In my view, there is no getting away from the fact that he is there saying that it is wholly unthinkable that consensual intimacy had taken place between the Appellant and Miss X given that he had not expressly asked her to be his girlfriend.  I see no justification for the view that that is unthinkable.  By taking that view, the Magistrate had precluded himself for giving the Appellant’s case fair consideration.  That was an error of substance.  Indeed, it was an error by which the Appellant was denied a fair trial.

5.  In such circumstances, justice to the Appellant demands that this appeal be allowed to quash his conviction.  Without any reflection on Miss X, I allow the appeal and quash the Appellant’s conviction and set aside his sentence.