HKSAR v. CHUNG MAN KIN

HCMA 44/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 44 OF 2013

(ON APPEAL FROM STCC 3911 OF 2012)

____________

____________

_______________

J U D G M E N T

_______________

1.  This Appellant, a man of pervious good character aged 50 at the time of the indecent assault alleged against him, was convicted after trial in the Magistrates’ Court of that offence. He now appeals against his conviction.

2.  Three perfected grounds of appeal have been filed on his behalf.  Ground 1 is that the Magistrate “erred in law and wrongly failed to evaluate the evidence in a safe manner”.  That is followed by several pages of particulars.  The essence of this ground and the particulars to it is that the Magistrate erred when he said that the prosecution’s case relied mainly on the evidence of PW1 the alleged victim, that the case was a one-against-one situation and that therefore the credibility and reliability of the evidence of PW1 was very important and decisive.  This meant, it is argued on the Appellant’s behalf, that the Magistrate did not apply, or properly apply, his mind to the Appellant’s defence of mistaken belief of consent on PW1’s part.  It is also complained under this ground that the Magistrate did not evaluate the Appellant’s evidence and defence and did not approach the case properly.

3.  Upon a careful consideration of everything urged under this ground, I have come to the conclusion that it must fail.  This is so for three reasons.  First of all, it was not a case in which the Appellant’s evidence and PW1’s evidence matched as far as what was done and said between them.  Her evidence pointed to a situation more serious than his evidence suggested.  If the Magistrate felt sure that the evidence of PW1 was accurate and that the Appellant’s evidence was not, then the Magistrate would be entitled to find that the defence of mistake collapsed.  So the Magistrate was justified in treating PW1’s credibility and reliability as very important and indeed decisive.

4.  Secondly, and in any event, what the Magistrate said taken as a whole satisfies me that he gave due consideration to the issue of mistake.

5.  Thirdly, I am satisfied that on a fair reading of what the Magistrate said, it is clear that his evaluation of the Appellant’s evidence and defence and his approach to the case was proper.

6.  Ground 2 reads:

“(1) Further or in the alternative and particularly so if ground 1 above fails the Trial Magistrate erred in law and failed to give himself a lies direction appropriate to this case which was of fundamental importance since the Appellant not only admitted that he lied to the police (SF 95) but was also found to have lied in evidence about going to PW1’s room to see a red tee shirt and being given a photograph by her (SF paras 31-33, 60-62, 72, 76, 79-80, 89, 95-96 and 98);

(2) The Prosecution in their closing submission relied upon the Appellant’s lies to the Police because “if it was a consensual situation, why didn’t (the Appellant) explain that at the time to the police? I suggest (the Appellant) did not do so because (the Appellant) knew very well that it was not a consensual situation” (AB77Q-T);

(3) Without an appropriate lies direction the danger is that the Trial Magistrate may have used any of the Appellant’s lies improperly to wrongly assist himself to find the Appellant’s guilt.

Authority: Yuen Kwai Choi (2003) 5 HKFAR 113 at paras. 30-40.”

7.  Having given careful consideration to everything urged under this ground, I have come to the conclusion that it also fails.  I am satisfied that the Magistrate did not treat the Appellant’s lies as being in any way supportive of the charge on which he was being tried.  So there was no need for any self-direction on lies.

8.  Ground 3 is that by reason of the matters put forward in support of the other two grounds, there is a lurking doubt as to the Appellant’s guilt and that his conviction is unsafe and unsatisfactory.  I am satisfied, as I have already indicated, that there is nothing in those matters.  Upon a careful consideration of everything urged on the Appellant’s behalf, I am satisfied that there was evidence on which to convict and that the Magistrate gave proper consideration to all the evidence going to the question of guilt or innocence and to the question of whether or not guilt was duly proved beyond reasonable doubt.  Ground 3 also fails.

9.  Accordingly, the appeal is dismissed.