HKSAR v. YAU YEE HONG

HCMA 571/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 571 OF 1999

(On Appeal From Eastern Magistracy Case No. ESCC 931 of 1999)

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J U D G M E N T

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1. The Appellant appeals against his conviction in the Magistracy on a charge of Indecent Assault. His appeal against sentence was abandoned prior to this hearing. The only ground of appeal argued on behalf of the Appellant was that the learned Magistrate's finding that the statement-taker of PW1's first witness statement was inattentive, was not supported by any evidence other than that of PW1, the complainant.

2. The complaint is that the victim made two statements. In her first statement, she referred to her breast being touched twice. In the second statement, she referred to her breast being touched three times. In her evidence-in-chief she said her breast was touched three times and effectively followed the account she had given in her second statement. She was cross-examined about these differences and accounted for them by saying that the statement taker, in her view, did not take down what she said accurately and used wrong words. She indicated, and this is at p.348 of the bundle, that the police officer was effectively concentrating on things other than her statement.

3. However, there was lengthy cross-examination on this discrepancy between the first statement and what was eventually heard as evidence in chief. Although it has been suggested that the Magistrate made a finding of fact in relation to the police officer that it is not the case; what the Magistrate was doing is what he is required to do, that is assessing the discrepancy between what the victim had said on first being questioned about the assault and what she had eventually stated in evidence in court.

4. The Magistrate was fully alive to this matter and he dealt with it in his Statement of Findings. He believed, as he was entitled to do, the victim's evidence and having given himself the appropriate warnings, he found the Appellant guilty.

5. Having been through the papers and considered the grounds of appeal, I am satisfied that there were ample grounds on which the Magistrate could reach the conclusion he did. This appeal against conviction is dismissed.