HKSAR v. KWONG SIU KWAN

HCMA 525/2008

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 525 OF 2008

(ON APPEAL FROM FLCC 3201/2007)

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J U D G M E N T

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1.  On 18 May 2008, the appellant in this case was acquitted of a charge of indecent assault contrary to Section 122(1) of the Crimes Ordinance, Chapter 200, Laws of Hong Kong.  Pursuant to that acquittal, an application for costs was made on the appellant’s behalf, such application was refused.

2.  It is against the refusal of that application that the appellant now appeals.

3.  The facts giving rise to the appellant being charged arose when the appellant offered a lift to PW1.  The appellant was an off-duty ambulanceman.  During the journey, PW1 felt pain in her chest which undoubtedly on the evidence resulted in the appellant pulling up his vehicle on to the road-side.  There was a conflict in the evidence of PW1, the complainant, who alleged that the appellant had squeezed her left and right breasts a number of times.  The appellant for his part whilst admitting that he did touch lightly the complainant’s chest above her breasts and explaining his reason for doing so, he denied indecently assaulting her in the way the complainant had expressed.

4.  Explaining his reasons for acquitting the appellant, the learned Magistrate in his Statement of Findings said this:

“It is true that the credibility of PW1 (the complainant) is in doubt.  There are material discrepancies between her evidence in court and in her witness statement.  Secondly, the defendant’s evidence might be true.”

In short, it seems clear that the learned Magistrate had a doubt over the truth of the testimony of the complainant and therefore acquitted the appellant.

5.  The normal rule regarding costs is that an acquitted defendant should generally be awarded his costs unless there are positive reasons to deprive him of his costs, one such reason being that the defendant has brought suspicion upon himself.  In exercising his discretion, the judge must consider the conduct of the defendant generally, and the most relevant conduct would be his conduct during the investigation and at trial, including how he responded upon enquiry, the answers he gave when confronted with the accusation and the consistency of those answers.  Here, the explanation of the appellant in his statement to the police was wholly consistent with the evidence he gave at trial.

6.  In the present case, the learned Magistrate found that the appellant had brought suspicion on himself.  He said this:

“The defendant used his right hand to press PW1’s body on the positions above her left and right breasts (emphasis mine) in the car; in the absence of third party, i.e. another female; in a situation that is contrary to code of practice, I rule that they are suspicious act.”

By making this finding, the learned Magistrate clearly accepted the evidence of the appellant.  How this can be suspicious in the context of the appellant explaining why he did so, is unclear.

7.  One reason may be the fact that the learned Magistrate referred to the appellant as being an ambulanceman who by his conduct was in breach of a code of conduct which recommends the presence of a female escort when handling female patients.

8.  In determining that the appellant brought suspicion on himself and thereby depriving him of his costs, I find that the learned Magistrate fell into error.  Firstly, the appellant was off duty as an ambulanceman at the time, but secondly and more importantly, the learned Magistrate had some difficulty in accepting the credibility of the complainant and indeed expressed the opinion that the evidence of the appellant may be true.

9.  The appellant is to have his costs, to be taxed if not agreed.