HCMA 582/2018
[2019] HKCFI 2379
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MAGISTRACY APPEAL NO 582 OF 2018
(ON APPEAL FROM WEST KOWLOON MAGISTRACY
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BETWEEN
HKSAR
Respondent
and
FINAN BORIS ANTHONY
Appellant
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Before: Deputy High Court Judge Sham in Chambers
Date of Written Submission of the Respondent: 21 August 2019
Date of Written Submission of the Appellant: 30 August 2019
Date of Decision: 15 October 2019
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D E C I S I O N
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Introduction
1. The Appellant was convicted of one count of indecent assault following a trial in the Magistrates’ court and was sentenced to 5 months’ imprisonment[1] . His appeal against conviction was upheld by me[2] and now the Respondent is seeking a retrial of the case to which the Appellant objects.
2. The case is a bit unusual in the sense that the Defence did not dispute the acts of the offence (Actus Reus), but alleged that whatever the Appellant had done to the victim, it wasn’t voluntary and he had had no memory of it afterwards. Put it in another way, the Appellant lacked the requisite Mens Rea for the acts in question.
3. The Defence told the trial court through an expert that the Appellant was more likely than not to have been suffering from a medical condition called “Sexsomnia” at the time of the offence; although not realising it himself, the Appellant testified to his behaviour at the material times, which to my mind was consistent with such a condition. And it was for this reason I allowed the appeal.
4. As can be seen from the above, the only issue at trial was whether the Defence case was worthy of belief. If it is true or probably true, the Appellant should be acquitted. Upon a proper analysis of the evidence of the case, I was of the opinion that the Appellant’s testimony made sense and had a degree of plausibility.
Retrial
5. The Respondent set out a variety of reasons in support of the application for a retrial, the main reasons being the serious nature of the offence, the narrow issues at trial (the credibility and reliability of the defence witnesses), the reasonable prospect of conviction on retrial, and the public interest of bringing the guilty to justice etc.
6. Mr J Reading SC for the Appellant in reply to it submitted that:
“……The present case concerns the evidence and the weight thereof. All of the evidence that was available was led before His Worship on the trial of this matter - there is no new or additional evidence. Had the court properly considered/weighed that evidence then the determination should have been a finding of reasonable doubt in favour of the appellant, and that would have been the end of the matter……”
7. As I have said before the issue of the case turned on a narrow point - whether the Defence case was worthy of belief; either the court accepted it or rejected it, there was no other options.
8. The reasoning of the learned magistrate was in my view flawed and I have given reasons for that in my judgment (I do not intend to repeat them here); suffice it to say had the learned magistrate given sufficient weight to the evidence of the defence witnesses, the inescapable conclusion would have been one of acquittal.
9. That being the case, there is no reasonable prospect of a conviction on retrial, and therefore there is no point in ordering one.
10. The application for a retrial is therefore refused.
Costs
11. The Appellant applies for an order for the costs of the appeal and the trial below. Mr Reading SC submitted that:
“Whilst the defence in this case was unusual, the fact is that the appellant maintained from the beginning that he was not conscious during any indecent touching of Miss X; further the prosecution received Dr Hung’s report and thereafter arranged their own rebuttal (expert) witness. The defendant did not bring suspicion upon himself, there were no surprises in his evidence and it is submitted that is no other bases for refusing him his costs.”
12. Miss Christal Chan ADPP (Ag) for the Respondent, however, argued that given the exceptional circumstances of the present case, the Appellant should be denied any costs either for the appeal or for the trial below.
13. She submitted first of all that the appeal was allowed not based on the defence of sexsomnia and there was no fault on the part of the prosecution; secondly, the unchallenged account of the victim has brought suspicion upon the Appellant.
14. Put simply, sexsomnia, which is a medical condition, is a sleep disorder, the sufferer would act out sexually while sleeping and would have no recollection of the activity when waking up. The main theme is the unconscious involuntary actions on the part of the sufferer.
15. Though not clinically diagnosed with it at the time of the offence, the description of his behaviour by him in some respects was consistent with such a condition. If his testimony was accepted, his acts of indecency could not be termed as “voluntary”; generally speaking, anyone who has done something out of his control due to a medical condition should not be held responsible for it in law, therefore, it would only be just in the circumstances that he should be entitled to the costs for this appeal as well as the trial below.
16. I therefore order that the Appellant should have the costs for the appeal and the trial below, to be taxed if not agreed.
(Sham)
Deputy High Court Judge
Ms Christal Chan, ADPP (Ag.) of the Department of Justice, for the Respondent.
Mr John Reading, S.C. instructed by LCP Solicitors & Notaries for the Appellant.
[1] The Appellant was granted bail pending appeal.
[2] Judgment of the appeal was handed down on 25 July 2019.