HKSAR v. FAN WAI KIT

HCMA33/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.33 OF 2002

(ON APPEAL FROM STCC 1415 OF 2001)

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J U D G M E N T

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1. The appellant was convicted of three charges of indecent assaults on 28 November 2001 and was sentenced to a total of six months' imprisonment. The facts of the offences are not relevant to this appeal.

2. The appellant has appealed against conviction and in answer to the matters raised by the appellant Ms Sin, for the Department of Justice, has very helpfully placed before me a submission in respect of the conviction, a submission which is agreed by Mr Wong for the appellant. I can do no better than set out what Ms Sin says. She said :

"(i) The learned magistrate dealt with PW1's contemporaneous notes and her letter dated 20.8.2000 to Immigration Department in her findings. She made no assessment as to whether they showed inconsistencies or the lack of it in PW1's evidence. It seems the magistrate might have failed to appreciate the purpose for which these documents were produced and to give them the proper consideration required.

(ii) The statement of findings showed no evaluation of the appellant's evidence, particularly the positive evidence adduced. For example, the design of the bathroom door lock raised the question whether there was any truth in PW1's evidence that the appellant was holding a bunch of keys in his hand even the door could be unlocked from outside by the use of a coin.

(iii) The statement of findings showed that the learned magistrate appeared to rely on the demeanour of PW1 unreservingly with little evaluation on PW1's evidence. It has long been recognised that reliance on demeanour of sexual complainant could be a dangerous flaw."

3. Whilst none of these matters are matters which by themselves would warrant great concern on the part from Appeal Court together they must go to the 4th ground of appeal that the conviction is unsafe and unsatisfactory.

4. I agree with both Ms Sin and Mr Wong that in this case there must be a doubt concerning the safety of the conviction and the appeal in respect of each charge is allowed and the sentence in respect of each is set aside.