HKSAR v. LEUNG KIM WAI

HCMA 465/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 465 OF 2000

(On Appeal from Eastern Magistracy No. ESCC 3930/1999)

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J U D G M E N T

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1. The Appellant was convicted after trial of two offences of indecent assault on 27 March 2000 in the Eastern Magistracy. He was sentenced to a total term of 15 months' imprisonment. The Appellant now appeals against both conviction and sentence.

2. The prosecution's case is that the Appellant, on two separate occasions in September 1998 and January 1999, indecently assaulted his daughter at their place of residence. The victim at the time was 15 years old. On the first occasion, the Appellant was said to have entered the bathroom when his daughter was taking a shower. The Appellant touched the victim's breasts and her virgina and also used his fingers to part her labia. On the second occasion, the Appellant was said to have squeezed the breasts and private parts of the victim with great force.

3. The main evidence for the prosecution came from the victim. She gave her evidence - in - chief by way of video-tape recording. She was then cross-examined. There was also a tape interview with the Defendant which was admitted as evidence by consent. The Defendant had elected not to give evidence nor call any defence witness.

4. The grounds relied upon by the Appellant in his appeal were two-fold. It was firstly said that the victim was a habitual liar and her evidence in Court against him was a pack of lies. Secondly, it was said that the victim was misled or threatened by the Social Welfare Officer into giving false evidence against him.

5. The criticism levelled by the Appellant against the victim's evidence is relevant to the question of credibility of the victim. The magistrate had, however, very carefully assessed the evidence of the victim in both his oral reasons for verdict delivered in Court and in his written statement of finding. The magistrate was impressed that the victim was a genuine honest and reliable witness. He was satisfied that her evidence is truthful and credible. On that basis, the magistrate accepted her evidence upon which the convictions were found. The allegations of lies and the examples of misbehaviour cited by the Appellant in his appeal had in fact been put to the victim in the course of cross-examination. These matters had no doubt been considered by the magistrate in assessing the credibility of the victim. There is nothing in the submissions of the Appellant that goes to indicate or suggests that the magistrate had erred in accepting the evidence of the victim, notwithstanding the criticisms and attacks made against her by the defence counsel at trial. The Appellant had also submitted that all he had done was in an attempt to discipline the victim due to her nocturnal activities. That explanation had been offered by the Appellant in his taped interview. It had also been considered by the magistrate, but was rejected for reasons stated in the statement of finding.

6. The allegation by the Appellant that the victim was misled or threatened into giving false evidence against him was in no way supported by any evidence at the trial or before this Court. In fact, one must ask rhetorically what benefit the Social Welfare Officer stands to gain by doing so. There is simply no good reason why the Social Welfare Officer would wish the victim to give false evidence and to make false accusations against the Appellant.

7. In short, there is nothing in any of the reasons or submissions advanced by the Appellant in support of his appeal against conviction. The appeal is therefore dismissed.

8. As to the appeal against sentence, the Appellant had advanced no submissions that is relevant to the issue. He merely repeated his allegations that the victim was a liar and that the magistrate ought not to have believed her completely. He also repeated his allegation against the Social Welfare Officer. None of these submissions is relevant to the appeal against sentence. What these submissions show, however, is that there is no remorse at all on the part of the Appellant towards the offences that he had been convicted of . There is nothing in the appeal against sentence and the appeal is accordingly dismissed.

9. In the circumstances, both the appeals against conviction and sentence are dismissed.