HKSAR v. LI KIN KWAN

HCMA316/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.316 OF 2000

(ON APPEAL FROM SPCC 8181/99)

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J U D G M E N T

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1. The appellant was convicted on 24 February 2000 of indecent assault and was sentenced to two months' imprisonment. He now appeals against that conviction. There is no appeal in respective of the sentence.

2. The facts alleged by the prosecution in that case were that on 27 November 1999 in the early hours of the morning, a young lady was alone in Ming On Street bus stop, standing and waiting for the bus. Her evidence was that she suddenly felt that a hand was inserted beneath her skirt from behind and that the fingers of that hand touched her private parts. She saw a male walking very close to her, and no one else was in sight. She shouted at him and chased him, he ran. He had been holding a telephone close to his ear as though he were using it, but she did not hear anyone talking. At Po Loi Street, a man caught hold of that male but he successfully escaped, having denied that he had indecently assaulted her. Two other males joined in the chase and he was finally caught at Berkeley Street. No issue arose as to the identity of the appellant as it was conceded by him in his statement to police that he had bumped into the woman.

3. He gave evidence that it set out in the magistrate's findings in his rejection of that testimony :

"I rejected the appellant's testimony. I did not believe him. His testimony contradicted a previous voluntary statement he had made to the police (exhibit P1). Therein he had stated that he had bumped against a woman. In his testimony he testified that he had had no bodily contact with her, as far as he was aware, but his mobile telephone might have had contact with her. I rejected both versions. It also seemed unlikely to me that a drunken man (even accepting that such persons do not always act logically or rationally), and drunk on brandy for the first time, would agree to join a late-night game of mahjong, an endeavour that would require both concentration and staying power. Even accepting that he had drunkenly agreed to take part in a wholly unsuitable, in his condition, pastime; that would not prevent him from acting impulsively or compulsively in the way PW1 testified on his way to the game."

4. The magistrate drew no adverse inference from the flight of the appellant but found the victim to be an honest and truthful witness. An appeal is not a rehearing of the evidence in a court below. I have considered whether or not the magistrate's approach to the evidence can have any measure be criticized, and found that it cannot be.

5. I am satisfied that the magistrate has properly evaluated the evidence and can find no criticism of the manner in which he rejected the evidence of the applicant, nor in his finding of proof beyond reasonable doubt. The appeal against conviction is dismissed.