HKSAR v. LAU CHUN KIT

FAMC No. 62 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 62 OF 2012 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCMA NO. 34 OF 2012)

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DETERMINATION

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Mr Justice Ribeiro PJ:

1.  We dismissed this leave application at the hearing with reasons to be given later.  These are our reasons.

2.  The applicant was convicted by Deputy Magistrate Kennis Tai Chiu-ki[1] on six counts of indecent assault in respect of two female complainants PW1 (charges 1 and 2) and PW2 (charges 3 to 6).  His appeal was dismissed by Deputy High Court Judge Yau.[2]

3.  The complainants were both fellow employees and the indecent assaults were in each case alleged to have occurred in the office, with the applicant brushing his hand against each complainant’s buttocks as she stood in a narrow aisle, slightly bent over while doing some office task, as he walked by. 

4.  The defence was that the applicant had not touched the complainants and that if there was any touching, it was accidental.  The magistrate accepted the evidence of PW1 and PW2 and rejected the applicant’s evidence, finding the charges proved beyond reasonable doubt.  The Judge upheld her findings.

5.  The applicant seeks leave on the substantial and grave injustice ground, contending that the magistrate had wrongly relied on the six alleged incidents of indecent touching as similar fact evidence in finding each of the offences proved. 

6.  The Judge accepted that the magistrate had indeed relied on the evidence of the other offences in aid of establishing each individual offence but held that she had been entitled to do so, citing HKSAR v Tham Chee Seng.[3] He held on the basis of that case that such evidence was admissible since it disclosed an underlying unity or striking similarity between the offences, so that common sense made the occurrence of such offences inexplicable or extremely hard to believe on the basis of coincidence.

7.  The Judge’s attention was unfortunately not directed to the Court’s decision in HKSAR v Zabed Ali,[4] which governs the position in Hong Kong. He was therefore unnecessarily seeking to identify “striking similarities” when that is no longer an essential requirement of admissibility.  Zabed Ali decided as follows:

(a) Mere propensity evidence is inadmissible.  In other words, evidence cannot be admitted to show that the accused has been guilty of other criminal acts for the purpose of supporting the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.[5]

(b) However, if the evidence is relevant to an issue in the case, for reasons other than to show a mere propensity to commit another offence, it may be admissible, notwithstanding that it also shows propensity.[6]

(c) Evidence coming within (b) above will only be admitted if its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused.[7]

8.  Mr David Ma, appearing for the applicant, submitted that it was reasonably arguable that the evidence in the present case merely went to propensity and so should have been excluded.

9.  We do not agree.  The issue was whether each contact may have been accidental. It was relevant to that issue that there were six contacts, such repetition entitling the magistrate and the Judge to find that the contact could not have been accidental.  Such evidence had considerable probative force and the Judge was entitled to rule it admissible notwithstanding its prejudicial effect.

10.  We accordingly refused leave to appeal.