HKSAR v. LAM KA YEUNG

HCMA 693/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 693 2003

(ON APPEAL FROM NKCC 3275/2003)

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J U D G M E N T

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1. The Appellant was tried in the Magistracy on one charge of indecent assault. The facts were that the Appellant had indecently assaulted a 16 years old student while crossing a pedestrian crossing. In support of that charge, the prosecution called two witnesses. The first witness was the victim in the case and the second witness was a passer-by who subsequently intercepted the Appellant.

2. PW1's evidence was that she was crossing the pedestrian crossing at Argyle Street with two classmates. She was in the middle, sandwich between her two classmates. She had noted that the Appellant was walking diagonally towards her. Her evidence was that when the Appellant was 1 metre away, he extended his right arm towards her and stroke upwards touching her private part. She was scared and yelled, she gave chase and subsequently PW2 intercepted the Appellant some distance away. She confronted the Appellant at the scene and the Appellant denied and asked her not to blame him.

3. PW2's evidence was basically was that he saw PW1 yelling at the Appellant telling him not to be and therefore he stopped the Appellant. When he stopped the Appellant, the Appellant admitted that he had accidentally bumped into the victim. At that time, PW1 complained to him about the indecent assault.

4. Now, the learned Magistrate in acquitting the Appellant found that the evidence of the stroke which was described by PW1 was there very unusual because PW1 was sandwich between her classmates and he found it that unfortunate that the classmate was not called to give evidence. PW1's evidence was that the classmate was not aware of the incident until PW1 informed her, and so in those circumstances, he felt it was not safe to convict the Appellant at that stage who was represented by counsel, Ms Panesar applied the court.

5. The learned Magistrate after considering the case of the HKSAR v Li Siu-tong, HCMA 547 of 2000, refused that application because he felt that the Appellant had put suspicion on himself. First of all, because the PW1 was walking in the middle of two classmates and the Appellant had bumped into PW1, who was in the middle. Secondly the Appellant kept on running despite the fact that PW1 had yelled at him and chased after him and he had only been stopped after being intercepted by PW2. Thirdly, he said that he did accept PW1's version that the accidental bumping was with the arms stretching out in such an awkward manner and therefore that also caused suspicion.

6. Ms Panesar in her appeal today from the refusal of the learned Magistrate to grant cost to the Defendant, mainly rely on the submission that the learned Magistrate, by refusing this application for cost, in a way, was punishing the Appellant and therefore the learned Magistrate had not exercised discretion judicially.

7. It is clear that the evidence that was given by PW1 was accepted by the Chief Magistrate as being an accurate account and that there was no sign of exaggeration, but he had acquitted the Appellant basically because he found that the stoke that she described was unusual in the circumstances. It is also accepted law that an acquitted Defendant is entitled to his costs unless positive reason exists for not making such an order.

8. The learned Magistrate obviously had to consider the circumstances of that offence, the circumstances of the acquittal and at the end of the day decide if such positive reasons existed. It is accepted also by the learned Magistrate that upon being stopped by PW2, the Appellant had admitted that he had accidentally bumped into PW1. It is also clear from PW2's evidence that the Appellant was running despite PW1 yelling at him to stop.

9. As the Respondent's counsel pointed out, it is a discretion of the trial judge, and the court, sitting on appeal, should only interfere when the judge had clearly gone outside the ambit of his power. The question I ask here, is has the learned Magistrate gone outside his power, it is clear that he had not. The factors that he had considered in refusing cost were valid factors and valid reasons and these were positive reasons for him not making such an order.

10. I therefore do not see that the learned Magistrate had done anything which was outside his discretion any power or that he was acting in judicially in refusing the order for cost. So the appeal is dismissed.