KUM CHUN TONG v. HKSAR

FAMC No. 22 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 22 OF 2008 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCMA NO. 280 OF 2007)

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D E T E R M I N A T I O N

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Chief Justice Li:

1.  The applicant was convicted by the Magistrate (Ms A Yim) of one count of indecent assault and sentenced to a community service order for 180 hours.  His appeal against conviction was dismissed by the Court of First Instance (Nguyen J).

2.  The victim PW1 and the applicant were both immigration officers.  PW1 and PW2 were subordinates of the applicant.  The prosecution’s case is summarized in Nguyen J’s judgment.  In brief, the indecent assault occurred as PW1 was walking along a corridor towards a guard post at Sha Tau Kok Control Point.  The applicant grabbed hold of the sides of her waist, put his arms around her waist and attempted to kiss her.  Later on, after work, she related the incident to PW2.  PW2 subsequently contacted the applicant and sought to obtain for PW1 an apology from the applicant.

3.  According to the applicant, the incident was an accidental and trivial bump which did not amount to indecent assualt.  The defence case was that PW1 and PW2 were lovers and made up the story against the applicant as they both had grudges against him as they had been punished by him for neglect of duty.

4.  The case turned mainly on the credibility of PW1.  At the trial, the Magistrate found that both PW1 and PW2 were honest witnesses who had neither made up nor exaggerated their evidence.  The Magistrate considered that they were frank about the neglect of duty incidents.  They had both denied the suggestion in cross-examination that they were lovers.  PW1 said she had a boyfriend whilst PW2 said that he had a wife.  The Magistrate found that the applicant’s evidence was not credible and rejected it.

5.  Mr Patrick Cheung for the respondent fairly accepts that the Judge had applied the wrong test and should have followed the approach laid down in this Court’s decision in Chou Shih-bin v HKSAR (2005) 8 HKCFAR 70.  However, he submits that applying the right approach, the result on appeal would have been the same.

6.  We agree with that submission.  The Magistrate was entitled to accept the prosecution evidence and to convict on the strength of it.

7.  On this application, the applicant also relies on the alleged incompetence of his counsel at trial.  We are satisfied that there is no substance in this allegation and that the applicant had a fair trial.

8.  Further, the applicant says that he did not present new evidence before the Judge because, being in person at the appeal, he was unaware that the Judge had a discretion to receive further evidence on appeal.  The discretion to admit new evidence on appeal is rarely exercised.  The new evidence in question consisted of further evidence from the applicant himself.  This is evidence which he could have given when he was in the witness box at the trial.  Moreover, in our view, such evidence would not have assisted his case.  In these circumstances, the Judge plainly would have refused to admit it applying the relevant criteria. 

9.  In our view, no arguable case of departure from accepted norms of justice has been made out to justify the grant of leave under the substantial and grave injustice limb.  Accordingly, the application for leave is dismissed.