HKSAR v. CHEUNG SIU LUN

CACC 405/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 405 OF 2007

(ON APPEAL FROM DCCC NO. 698 OF 2007)

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JUDGMENT

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Hon Tang VP (giving the judgment of the Court):

1.  The applicant was charged with indecent assault contrary to section 122(1) of the Crimes Ordinance, Cap. 200.  He was convicted after trial and sentenced to 9 months’ imprisonment on 14 November 2007.  This is his application for leave to appeal against conviction.

2.  The alleged offence took place on a day in December 2006.  It came to light when PW1 (a 12-year old girl) was interviewed by a police missing person unit on 1 February 2007, following PW1 returning home on 23 January 2007, after she had been reported to the police to be missing on 18 January 2007.

3.  During the interview on 1 February 2007, she said that she had been indecently assaulted by the applicant on a day in December 2006.

4.  She was subsequently video-interviewed by a social worker, PW3, on 2 February 2007.  During the interview, she said that on a day in December, she was taken to the applicant’s home by the applicant together with her two other girlfriends.  She said that she had known PW1 for about two weeks.  They had a barbecue and had also been drinking.  After the two other girls were drunk, they were resting in a living room in a house.  She said she was not drunk, but she took two puffs of marijuana (“grass”) as a result of which she felt dizzy and feeble.  Later on she was indecently assaulted when she was forced to have oral sex with the applicant and the applicant had taken off her pants.

5.  The applicant has a twin brother and the applicant is the younger twin and is known as “Sai B” (“細B”).  The elder brother was “Dai B” (“大B”).  During the video-interview, she said that she did not know the applicant’s full name, but she knew that he has a tattoo on his left arm.  She described the tattoo as a single coloured big Chinese character with a stroke like a “standing man” (“人字邊”).  But she forgot what the word was.  She later identified the applicant in an ID parade on 4 April 2007.

6.  The case turned on the identification of the applicant.  That being the case, the evidence whether or not the applicant had a tattoo on his left arm was important.  Although the applicant did not give evidence, the learned judge proceeded on the basis from the photographs produced during the trial that the photographs in Exhibit D1 (namely photographs D to G) were taken from the applicant during the course of the trial and they indicated that he did not have a tattoo of a Chinese character as described by PW1.  PW1 said the tattoo she saw look like the tattoo on photograph C on Exhibit D1.  The two tattoos are vastly different.

7.  Nevertheless, the applicant was convicted because the learned judge concluded that the applicant must have removed the tattoo in preparation for trial.

8.  Mr Leung appearing for the applicant submitted in his written submission that the learned judge’s conclusion was not supported by any evidence.  It was sheer speculation by the learned judge.  The prosecution has conceded that the learned judge erred in attempting to resolve the issue by conducting his own research.  The prosecution also conceded that as a result the conviction could not be supported.

9.  Having regard to the concession made by the prosecution, which we believe to have been rightly made, it is unnecessary for us to deal with other matters raised on behalf of the applicant.

10.  In the circumstances leave to appeal is granted and treating the hearing as the hearing of the appeal, the appeal is allowed.