HO CHUNG YIN v. HKSAR

FAMC No. 36 of 2002

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 36 OF 2002(CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 682 OF 2002)

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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. This applicant was convicted in the Magistrate's Court of indecent assault. His appeal to the High Court was dismissed. He now seeks leave to appeal to the Court of Final Appeal. He contends that it is reasonably arguable that he has suffered substantial and grave injustice in that exculpatory evidence in his favour had been ignored by the Magistrate and that this omission on the Magistrate's part had itself in turn been ignored by the intermediate appellate court. What was this evidence? It was evidence that upon arrest and under caution, the applicant had told the police that he had done no more than tap the complainant's shoulder and ask her what her price was, he thinking that she was a prostitute.

2. The complainant's account was very different. If the applicant had indeed touched her in the manner which she described, then there could be no doubt that he had indecently assaulted her. The Magistrate felt sure that the applicant had touched the complainant in the manner which she described. In her Statement of Findings, the Magistrate referred in terms to the exculpatory statement which the applicant had made upon arrest and under caution. Is there any danger that the Magistrate did not have that exculpatory statement in mind when she convicted? Despite Mr Ross's able argument, we are of the view that there is, in all the circumstances, no such danger. Accordingly there is simply no foundation for the argument which the applicant wishes to pursue before the Court of Final Appeal. Leave to appeal is therefore refused.