HKSAR v. CHAO MAN KEUNG

HCMA976/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.976 OF 1999

(ON APPEAL FROM SPCC 5389/99)

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J U D G M E N T

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1. The appellant was acquitted on 3 September 1999 of one charge of indecent assault which was said to have taken place on the Mass Transit Railway on a journey between Admiralty and Tsim Sha Tsui. Upon acquittal, an application was made by his counsel, Mr Jenkyn Jones, for costs and the magistrate refused that application on the basis that the applicant had brought suspicion upon himself, and it is that order which is now appealed.

2. The facts were that two police officers had occasion to observe the applicant on the Railway Station at Admiralty and to see him board the train. Evidence was given by a young lady of certain indecent rubbing against her. At the end of the trial, having heard all the evidence addressesed, the magistrate said this :

"I carefully consider the evidence of the prosecution witnesses. I found the Prosecution's evidence plagued with inconsistencies, some of which were material. Without exhausting the list, the discrepancies included what, if anything happened on the platform, state of crowdiness on the platform, the alleged incident in the compartment of the train, the number of time the episode occurred, the state of crowdiness on the train and also whether there were any reaction or the lack of reaction of PW1. I found I cannot in this case reconcile on material discrepancies in this case. Moreover, I have no reason to prefer the version of PW1 or PW2 or PW3, or one of them or either of them. I have carefully considered the evidence of the Defendant and the submissions by his counsel. I found that the Defendant is an honest and reliable witness. On the totality of the evidence, I found the Prosecution has failed to prove assault, let alone indecent assault, beyond unreasonable doubt. I am bound by law to give benefit of the doubt(s) to the Defendant which I must. Further I found it extremely unsafe and unsatisfactory to convict the Defendant given the material discrepancies in this case. Defendant is accordingly acquitted of the charge."

The magistrate found himself unable to rely upon the victim or either police officers' evidence by virtue of the inconsistencies between them.

3. The applicant in his evidence denied that he had missed the train, he denied focusing his attention upon women and denied the indecent assault upon the victim. Clearly, the magistrate having found him an honest and reliable witness, his evidence must have been believed.

4. In his reasons for refusing costs, the magistrate said this :

" ..... I found the Defendant entered Admiralty MTR Station at 1821 hours. He was observed by both PW2 and PW3. PW2 started observing the Defendant when he noticed the Defendant frequently paying attention to female passengers. The Defendant failed to board a train when one arrived although there was enough space for him to do so. The Defendant was then seen to follow PW1 and boarded a train at about 1825 hours in a manner which can be described as very close to PW1. There were no other passengers behind the Defendant. Inside the compartment of the train the Defendant was positioned within a close distance of PW1. PW3 also saw the Defendant paying attention to young female girls and the Defendant's eyes were observed to have followed females.

In the circumstances, I found that the Defendant's conduct in the Admiralty MTR Station brought suspicion upon himself."

5. I firstly find that an acquitted accused is entitled to costs, by that being HKSAR v. C.D.F. Coghlan, HCMA No.1004 of 1998.

6. I further find that those costs ought to be awarded unless the acquittal was a technical one or the applicant brought suspicion upon himself. I cannot say that the magistrate was right in this case having found that he could not believe the police officers and having found that the applicant was an honest and reliable witness. In then relying upon principally the evidence of PW2, to say that by looking at ladies which was denied and failing to board the first train that came which was denied were matters which brought suspicion upon the applicant.

7. This has not been a proper exercise to pass the magistrate and this appeal is allowed, and costs will be awarded to the applicant in the court below, to be taxed if not agreed. The applicant is further awarded costs of this hearing, to be taxed if not agreed.