GAN FOCK WAI, STEPHEN v. HKSAR

FAMC NO. 7 OF 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 7 OF 2009 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA NO. 591 OF 2008)

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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. It is complained that the joinder of these two charges was a departure from accepted norms.  In our view, the trial together of two charges like these is within accepted norms.  It is then complained that the magistrate misused evidence on the 1st charge to convict on the 2nd charge.  In the circumstances, we do not think that the evidence on the 1st charge could have adversely affected a proper consideration of whether the driver involved in the 2nd charge was reliable in his evidence.  And the appeal judge was, in our view, justified in her view to the effect that the driver’s evidence was properly accepted and that, on such evidence, the only sensible conclusion was that the applicant had persisted in touching the driver intimately even after he must have known – and did know – that he was doing so without the driver’s consent. 

2.  In such circumstances, there is no basis for an appeal to the Court of Final Appeal, and leave to bring such an appeal is refused.