WAI SIU KWONG v. HKSAR

FAMC No. 9 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 9 OF 2001 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA NO. 1224 OF 2000)

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DETERMINATION

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Mr Justice Chan PJ :

1. This application is based on the substantial and grave injustice limb of s.32 of the Hong Kong Court of Final Appeal Ordinance, Cap 484. It is said that the applicant has suffered substantial and grave injustice because the conviction was reached as a result of the magistrate's error of law.

2. The applicant was convicted after trial of an act of indecency in public contrary to s.148(1) of the Crimes Ordinance, Cap 200. He was seen by a student nurse PW1 to be masturbating on the upper deck of a bus. PW1 told her friend PW2 who was sitting next to her what she saw. The magistrate believed the evidence of PW1 and rejected the applicant's. In dealing with the evidence of PW2, the magistrate described her evidence as to what PW1 had told her as evidence of a "recent complaint", but he said it did not amount to corroboration. At best, he said, it bolstered the credibility of PW1. On appeal, the judge said this was not a sexual offence requiring corroboration, but she took the view that there was no justification for saying that the magistrate acted in any way improperly or allowed his reference to a recent complaint to bolster his consideration of PW1's evidence.

3. Counsel submits that the magistrate had in fact used, or at least it was not clear whether he had used, PW2's evidence to bolster PW1's credibility, that the magistrate's wrong reference to recent complaint had rendered the conviction unsafe and unsatisfactory and that the judge was wrong to hold in effect that the magistrate's error was not a material irregularity.

4. In our view, the magistrate's reference to PW2's evidence must be considered in the context. It first came out during counsel's final submission at the trial. Counsel for the applicant submitted that the prosecution relied mainly on the evidence of PW1. The magistrate was at pains to correct him by saying that the prosecution relied "exclusively" not just mainly on PW1's evidence. The magistrate also added that PW2 was only tendered for cross-examination at the request of the defence and "did not say anything". The magistrate repeated the gist of this exchange in his oral verdict and set this out again in his statement of finding. Hence, looking at it in this context, it is clear that the magistrate was emphasising that he relied only on PW1's evidence in support of the prosecution's case and that he did not intend to rely on PW2's evidence. He was far from saying that he would rely on PW2's evidence to bolster PW1's credibility. In fact, he went on in his statement of finding to explain with good reasons why he considered PW1 to be a credible and honest witness and why he rejected the applicant's evidence. It is obvious that the reference to the recent complaint did not influence his assessment of the evidence against the applicant.

5. We do not see any injustice in this case. For these reasons, we refuse the application.