HKSAR v. Chan Mo San Michael

HCMA 98/2023

[2024] HKCFI 68

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 98 OF 2023

(ON APPEAL FROM ESCC 1146/2022)

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BETWEEN

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J U D G M E N T

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APPEAL AGAINST CONVICTION

Indecent Assault

1.The appellant was convicted after trial of one count of indecent assault on a co-worker, a female Miss “X”.  He now appeals against his conviction only.

2.The prosecution case was that the appellant shared an office with X and another colleague, PW2.  On 10 February 2022 at around 10 am, X went to get water from a water dispenser next to the door just inside this office.  Whilst there, the appellant walked past her and with the fingers of his right hand, he touched her buttocks by sweeping his palm upwards.  The appellant carried on walking past and left the room.

3.PW2 who had turned her chair in order for X to walk by to get to the water dispenser was still looking in that general direction and saw the appellant’s right hand and his action.  She was sure he was not holding anything in either hand but later said she was not sure about his left hand.

4.PW3 gave evidence that 4 days later, she summoned X to her office to question her about an issue with the appellant’s computer she was meant to deal with but had not, and X cried telling her that the appellant touched her left buttock 4 days earlier.  PW3 reported the matter to the company and an internal investigation was set up.

5.At the conclusion of the internal investigation, the company suggested she, X, make a report to the police.  On 25 April 2020, a member of staff accompanied X and PW2 to the police station to report the appellant.

6.The appellant gave evidence and called a witness. The defence case was he never intentionally touched X when he walked past her because at that time he was on his mobile phone.  He held the phone in his left hand.  Twice he left the room about 10am as evidenced by CCTV footage.  He was walking and talking at the same time when he left the office room.  He had phone records and WhatsApp messages to remind him of those calls, both were important conversations.  If he did touch her, it was an accident because he has no recollection of it since he did not intend to touch her.  Moreover, because of rheumatoid arthritis in his hands, he is careful of his movements as banging his hands on passing items can be painful.

7.The defence case was that X and PW2 were in fact good friends and both X and PW2 had a poor relationship with the appellant.  He complained about their performance at work and in particular X’s constant tardiness.  In fact, she complained of this assault 4 days later only when PW3 called her into the office to ask why she had not dealt with the appellant’s computer issue despite a request to do so and despite it being her job.  Only then, did she break down, cry and accuse him.  The defence case is they both falsely accused the appellant.  His defence witness, DW2 save evidence of how the appellant had previously repeated to him a complaint by X against other male colleagues for stalking her.

REASONS FOR CONVICTION

8.The magistrate rejected the evidence from the appellant as being incredible and unreliable.  He found both X and PW2 as well as PW3 credible and reliable witnesses.  He accepted their evidence in its entirety.  He considered submissions and concluded that the appellant had intentionally indecently assaulted X and found the prosecution had proved the elements of the offence beyond reasonable doubt resulting in the appellant’s conviction despite a previous clear record.

9.The magistrate considered the defence submission that Miss X, as part of her duty at work, failed to arrange for the appellants computer to be fixed and when asked to explain why not by PW3, her superior, she concocted the story of being indecently assaulted by the appellant.  The defence suggest this was part of her motive.

10.The magistrate considered the defence submission that X had a history of making allegations against other male colleagues as well as the appellant for inappropriate behaviour such as following her stalking her after work, staring at her, the appellant forcing her to eat a biscuit and stroking her ear whilst talking to her.  The magistrate considered the fact X agreed she made these allegations because they did happen but did not report them to her superior because they were not so serious.  However, she did consider being indecently assaulted by the appellant serious enough to report to her superior and then the police.  The magistrate did not believe she concocted those allegations nor this allegation against the appellant that resulted in a conviction.

11.The magistrate did not accept the defence submission that after she reported it to her senior and an internal investigation conducted, she was pressurised into making a police report against the appellant when she had fabricated the incident because a colleague took her to the police station and because she had taken it too far.

12.The magistrate rejected the defence submission that her explanation as to why she did not report the appellant’s assault until 4 days later did not ring true and did affect her credibility.  The first time this assault was mentioned was not until she was called into PW3’s office and confronted with her dereliction of duty regarding the appellant’s computer problem.  The magistrate accepted her explanation and found it credible.  The magistrate rejected all submissions by the defence, which pinpointed her inconsistencies and found they did not affect credibility or honesty.

13.Similarly, the magistrate considered the evidence of PW2 and rejected the defence submission that she was not truthful about how good a friend X was and how she personally had no grudge against the appellant.  The magistrate did not think this witness would falsely accuse the appellant.  He believed that she had to turn her chair to give way to X to get to the water machine and that the photograph taken by the police was accurate.  The photographs showed there was not enough space for X to walk past PW2 unless PW2 swiveled her chair.

14.He did not believe they conspired to move the desks to deceive the police when they took photographs.  The magistrate did not believe they would fabricate this to frame the appellant when it amounted to perverting the course of public justice and would attract a custodial sentence.

15.Although PW2 told the police in her witness statement that the appellants hands, both left and right were empty when he assaulted X, in cross examination she said she did not know now whether the appellant was carrying anything in his left hand at the time.  By then, it had been put to X, the witness before her that the appellant was not only holding a mobile phone in his left hand but was talking on it when he walked past the water dispenser according to CCTV footage.  Despite there being two very different scenarios, the magistrate believed it was understandable that she was not focusing on anything but the indecent assault.  Therefore, this did not affect credibility.

16.The magistrate took into account PW3’s evidence that X and PW2 did have a good working relationship but rejected the defence submission that the two witnesses had said otherwise.  The magistrate did not see any contradiction because relationships between colleagues can be very subjective and a matter of personal opinion.  The magistrate rejected the submission on the basis that if they were conspiring to falsely accuse the appellant then they were committing a criminal act of perverting the course of justice, which might end with them serving a term of imprisonment; he did not think they would take the risk under the circumstances.

17.The CCTV was considered, reviewed, and accepted that it captured the appellant walking out of the room.  He is clearly holding a mobile phone to his ear.  However, the magistrate said this does not mean he did not indecently assault X and he could have only put the phone in his hand after indecently assaulting X.  The magistrate considered the CCTV footage irrelevant and did not assist the defence.

18.The magistrate then went on to analyse the evidence of the appellant.  He rejected the evidence that the appellant was on the phone the moment he walked past the water dispenser.  He rejected the appellant’s evidence of what he was discussing on the phone at the time, which was his mother’s living arrangements due to Covid affected by neighbours who had contracted Covid.  He found the fact he could then not remember in what hand he held his phone meant he was contradicting himself.  The fact he said he did not touch X but could not remember which hand he was using to hold his phone was also self-contradictory evidence.

19.He questioned why the appellant could remember being on the phone at the time but could not recall whether X was by that water dispenser.  He found this contrary to common sense and indicated a fabrication of evidence.

20.The appellant had denied feeling there was any contact with X.  The appellant had said the chances it was an accidental touch was very slim because he really did not feel any contact.  He had no such recollection or feeling of contact.  The magistrate regarded these answers evasive.

21.The magistrate considered the fact that the appellant in evidence gave an example of X’s incompetence at work which was not put to her during cross-examination.  From this, he found the appellant exaggerating and fabricating the evidence “along the way” which I presume means he was making up his evidence as he was giving evidence in the witness box.

22.The appellant gave evidence that he had arthritis in his hands, which made him careful when walking to avoid hurting his hands and causing himself pain.  The magistrate described the appellant as trying to paint the picture that his arthritis was so serious that he was very careful and therefore did not touch X.  The prosecution asked him whether his arthritis affected his duties at work to which the appellant said he did not understand to what kind of work the prosecution was referring.  The magistrate found his answers evasive.

23.The defence case was that there was bad blood or history between the appellant and X as well as PW2.  He had made numerous complaints against them both relating to their work performance.  They wanted him out of the office and transferred to another site so concocted this indecent assault.  The magistrate considered the fact that X did not need to take the complaint to the police and would not take the risk of going to court, perjure herself and both of them jointly committing the offence of perverting the course of justice.  Therefore, this submission from the defence was contrary to common sense and could not stand.

GROUNDS OF APPEAL

24.The first ground of appeal is that the magistrate erred in finding that the police photographs accurately reflected the office layout and the scene of the indecent assault.

25.The second ground of appeal is that the magistrate erred in finding that the appellant deliberately put his mobile phone to his ear to talk or pretended to talk for the benefit of the CCTV camera to create an illusion when he went out of the office or the room after the indecent assault.

26.The third ground of appeal is that the magistrate erred in not attaching enough weight to the appellant’s evidence of good character in the form of a police appreciation letter for thwarting a robbery and other community service.

27.The fourth ground of appeal is that the magistrate erred in his analysis of the CCTV footage.  It not only supported the appellant’s defence but also undermined PW2’s crucial evidence.

28.The fifth ground of appeal is that the magistrate erred in using prejudicial evidence of uncharged acts against the appellant.

29.The sixth ground of appeal is that the magistrate erred in finding the victim, X, PW1 an honest and truthful witness.  The seventh ground of appeal is the same except that it was aimed at PW2; the magistrate erred in finding them honest and truthful witnesses.

30.The eighth ground of appeal is that the magistrate erred in finding the appellant, incredible, and unreliable witness.  The ninth ground is that the magistrate erred in rejecting the defence witness, DW2’s evidence.

31.The last ground, the tenth ground of appeal is that there remained a lurking doubt after a consideration of the above nine grounds whether the appellant intentionally in decently assaulted X.

LEGAL PRINCIPLES – APPEALS

32.A magistracy appeal is conducted by way of a “rehearing” on the evidence heard before the magistrate.  The legal principles concerning the approach to magistracy appeals include the principle that the appellate court will only depart from the lower courts finding of fact and assessment of the credibility of a witness where the finding of fact is plainly wrong.

33.Moreover, the test in deciding whether the magistrate has erred in a manner that the appeal should be allowed is whether it is just for the conviction to be quashed.  Notwithstanding the absence of any error by the magistrate, the appellate court must still perform the statutory requirement of conducting a “rehearing”.  The court should examine closely whether on the evidence adduced the charge was proved beyond reasonable doubt, failing which the appeal should be allowed.

34.The trial magistrate enjoyed the advantage unlike the appellate court, of having seen and heard the witnesses giving evidence.  Therefore, the reliability and credibility of witnesses is within the ambit of the trial magistrate’s assessment.

35.The credibility of witnesses in this case is central to the issue.  It is unrealistic to expect magistrate to deal expressly with every detail referred to by the defence in its attack of the credibility of witnesses.  A microscopic dissection of a transcript or a statement of findings or submissions will always uncover something unreasonable, a failure to answer a question directly or at all, a piece of evidence not included in the statement of a witness which usually make up the bulk of the grounds of appeal.

36.When this is the case, Stock J (as he then was) pointed out in R v Kwong Wing On, HCMA 574/1996 that “in the real world, and even with truthful witnesses, these discrepancies, improbabilities, and omissions will occur.  Indeed if they do not, then the evidence is attacked as being artificial or collusive.  The magistrate is not expected to deal expressly with every comforting crumb to which the defence may be able to point.  A realistic attitude must be encouraged, and the approach to such attacks is to ask whether there have been material and significant discrepancies, improbabilities or omissions, such as would lead or should lead a tribunal to doubt credibility on central facts.”

37.Unless the magistrate is shown to have misquoted, or omitted, or failed to consider and analyse any significant aspect of the evidence, the conviction must stand.  Unless findings are shown to be unreasonable, illogical, or inherently improbable the conviction must stand.

CONSIDERATION

Ground 1

38.I have compared the police photographs of the office layout in Exhibit P1 taken on 26 April 2022 and compared them to the two photographs of Exhibits D1 and D2 taken on 22 February 2022.  The appellant bought the office furniture and arranged the furniture years before the offence. He is sure that his photographs D1 and D2 are accurate.

39.The appellant is sure that the photographs taken by the police depict a scene where the desks have been pushed back and moved.  It is suggested the reason is so that the evidence from PW2 that she had to swivel her chair in order for X to leave her desk and go to the water dispenser was credible.  It was because she swiveled her chair and faced the direction of the water dispenser, did she see the appellant touch X’s buttock.

40.The magistrate said at paragraph 34 of his statement of findings that he believed the police photographs Exhibit P1 were accurate.  He found there was not enough room for X to walk out from her desk to the water dispenser, which meant PW2 if sat at her desk had to swivel her chair.  The Magistrate did not consider the defence case that the desks had been moved and the photographs were different.  The respondent in answer to this ground sees no significant difference in the two sets of photographs.

41.In evidence, PW3 said the defence photographs more accurately reflected the state of the furniture in that office on the material date when compared to the police photographs.  This prosecution witness agreed that there was enough room for someone to pass by without having to swivel PW2’s chair if she was of an ordinary build, which X was.  PW2 herself when asked the question whether the tables had been moved said she was not sure they had been moved for the police photographs.  When X was asked if they were moved for the police photographs, she said she did not move the table.

42.I have looked at the photographs and found that X’s desk, the desk in the middle of the room was pushed back in the police photographs when compared to the appellant’s photographs.  One can see that from the position of the whiteboard placed between the two desks; it shows X’s desk pushed back.

43.The magistrate said in that same paragraph 34 that he did not believe the two prosecution witnesses PW1 and 2 conspired to move the desks so that it would appear there was not enough room for X to walk past PW2.  He added that if they had done so, this would amount to perverting the course of public justice and would attract a severe custodial sentence.  It appears to be one of the reasons he found these witnesses credible.

44.This consideration is repeated at paragraph 38 of the statement of findings when the magistrate mentions this again.  He found they were colleagues with a normal ordinary working relationship and this does not necessarily mean they conspired together to falsely accuse the appellant.  He says again that to do so would risk being charged with perverting the course of justice and serving a term of imprisonment.  He did not think they would take the risk to frame the appellant.

45.In reality, in criminal trials, someone in a witness box will not be telling the truth under oath.  A risk of perjury does not mean, therefore, that a prosecution witness or a defence witness will not tell lies or untruths. The risk of a perjury charge does not mean, therefore, a witness is honest and credible.

46.Returning to a comparison of the police photographs and the appellant’s photographs, I do find there is a material difference and it would appear that the police photographs did not accurately reflect the room on the material day. Moreover, the prosecution witnesses themselves did not support the finding that those police photographs were accurate.  There is merit in this first ground.

Grounds 2 and 4

47.I will deal with both grounds together; they relate to material issues.  The magistrate did find that the CCTV footage supported the appellant’s evidence that he was on his mobile phone on the two occasions that he left the room that morning.  Despite this, in his conclusion he found the appellant intended to indecently assault X so deliberately went out to talk on the phone or pretend to talk on the phone for the benefit of the CCTV camera right after the indecent assault.  He did this to create an illusion that he was on the phone at the time and not touching X.

48.In relation to Ground 4, the magistrate erred in the analysis of the CCTV.  According to paragraph 39 of the statement of findings, he finds the appellant was holding a mobile phone as he walked out of the room.  The CCTV captures the exit of that room.  The magistrate found the appellant could have taken out his mobile phone after he indecently assaulted X on his way out of the office.  He found this possible because it was “common ground” that there was a separate room for the printer or the photocopying machine between the water dispenser and the exit of the room.

49.The respondent concedes that it was not common ground that there was a room for machines between the water dispenser and the exit of the room captured on CCTV.  The exit was immediately after the water dispenser.  The appellant’s submission is that obviously he would not have had time to first indecently assault X then take out his mobile before exiting the room.

50.This material mistake is relevant to the appellant’s submission that he was talking on his mobile phone before he left the room.  PW2 who allegedly witnessed the assault told the police in her witness statement that he, the appellant, had nothing in either his left or right hand when he assaulted X before leaving the room.  In her evidence in court, after it had been put to X before her and CCTV had been produced, she said she was no longer sure if his left hand was empty.

51.The point was made that even if he was on the phone, that did not preclude him from indecently assaulting X with his other hand.  The appellant’s submission to that supposition is that he gave evidence that was not challenged by the prosecution in his defence of the contents of his phone calls and WhatsApp messages that morning.  He could recollect the two conversations from the WhatsApp calls and timing on phone records.  One included convincing a colleague not to resign and the other related to rehousing his mother because there were Covid cases in their building.

52.I can see from the transcript that Mr Leung had the appellant’s relevant phone records in court during the course of the trial.  He did not produce them as a defence exhibit during the appellant’s examination in chief because he did not think it was disputed the appellant was using his mobile phone at the material time because he can be seen on the phone in the CCTV footage.  In addition, a discussion with the prosecution was had before the appellant entered the witness box and the prosecution did not challenge the fact the appellant was using his mobile phone at the time he walked past the water dispenser.

53.However, as a result of cross examination by the prosecution and the suggestion that the appellant was pretending to use his phone when his intention was to indecently assault X but appear for the sake of the CCTV footage to be talking on the phone, defence counsel raised it before the end of the prosecution’s cross examination.  A reading of the transcript shows the defence wanted to apply for this exhibit to be produced but the court said there was no need to hand it up or produce it.

54.This leads me back to Ground 2, the magistrate found the appellant intended to indecently assault X so deliberately went out to talk on the phone or pretend to talk on the phone for the benefit of the CCTV camera right after the indecent assault.  This was in order to create an illusion that he was on the phone at the time and not touching X.

55.If the phone records did prove he was actually talking on the phone at the time then this would support the defence case.  It was obviously a material issue and the phone records should have been produced.  The finding that he was pretending to talk on his mobile phone must be wrong and unfair to the appellant.

56.Therefore, there is merit in Grounds 2 and 4.

Ground 3

57.There is no merit in Ground 3; the magistrate did remind himself of the good character direction regarding the appellant’s propensity to commit crime and his credibility.  As a professional judge, the magistrate did not need to go any further.

Ground 5

58.Much was said of the evidence from X about past behaviour towards her by the appellant and other colleagues.  She referred to previous incidents where the appellant force-fed her a biscuit, called her fat and touched her ear.  She referred to previous incidents where other male colleagues stalked her.

59.The appellant alleges the magistrate used the evidence of these uncharged acts prejudicial against the appellant.  These were not uncharged acts by definition nor indecent acts as described by the appellant so this ground is not made out.

60.The appellant however does highlight the fact that these previous incidents were mentioned for the first time during her evidence and not before. X agreed in cross-examination that they were raised by her for the first time in chief but then corrected herself and said that she had reported these matters to the police but the police had not recorded this part of her evidence when she made a witness statement.

61.This could affect her credibility as suggested by the appellant in submissions but was not dealt with by the magistrate except insofar as he found that she recounted these incidents, therefore, he accepts they were true.  That does not make her credible per se.

Grounds 6 to 9

62.I will deal with all these grounds together.  They relate to the magistrate’s findings that X and PW2 were credible and reliable witnesses as well as his findings that the appellant and his defence witness were not.

63.The appellant is aggrieved the magistrate did not deal with X, the victim’s evasiveness in a material issue.  She denied the reason PW3 asked her to go into her office was because of a dereliction of her duty; not dealing with the appellant’s computer problems promptly.  It is clear to me from the transcript that initially X was concealing the fact she had been summoned to PW3’s office in relation to a complaint made against her by the appellant.  Eventually, she admitted that was in fact the truth.  She admitted it was not her initiative to go to PW3 report the indecent assault as she appeared to initially suggest.  There is merit in this complaint.

64.This is material because it relates to motive.  A motive the appellant suggests is real when not only does PW3 support this part of his evidence but also supported the suggestion that both X and PW2 were more than just colleagues but also were good friends who were both subject to criticism and complaints by the appellant in the workplace.

65.However, both X and PW2 denied there was a history of complaints made by the appellant against them in relation to their work performance and tardiness. On the contrary, PW3 supported this suggestion.  Similarly, both denied they were good friends and PW3 disagreed and supported the suggestion that they were more than ordinary work place colleagues.

66.There is the discrepancy in PW2’s evidence about what she saw from a very short distance away from the water dispenser.  In her witness statement, she unequivocally stated that both of the appellant’s hands were empty when she saw him assault X.  In chief, she reconfirmed this was her evidence.  However, in cross-examination, she said she did not know whether the appellant was carrying anything in his left hand.  The appellant suggests the only explanation for her change in evidence was that after PW1 has given evidence, she would have known CCTV footage clearly showed the appellant talking on the phone held in his left hand.

67.The appellant’s complaint is that the magistrate did not deal with this material discrepancy either except to say it was understandable and not important that PW2 did not pay attention as to whether the appellant was holding anything in his left hand when she was watching his right hand indecently assault X.  This did not cast doubt on her evidence at all, paragraph 35 of the statement of findings. However, this was not her evidence.  There is merit in this complaint.

68.There was in-depth analysis of the appellant’s evidence and a finding that in material aspects the appellant’s evidence was incredible and unreliable. At paragraph 40 (V) of the statement of findings, the magistrate quoted the appellant as saying he could not have touched X because he was holding his mobile phone.  A reading of the transcript shows no record of the appellant stating that he could not have touched X because he had a phone in his hand at the material time.

69.The magistrate found the appellant was trying to paint the picture that his rheumatoid arthritis was so serious that he would be very careful with his hands when he walked.  He found the appellant evasive when asked questions about his rheumatoid arthritis diagnosis.  Having read the transcript, questions put in cross-examination were not clear nor made much sense rather than the appellant was evasive.  This finding was unfair to the appellant.

70.The appellant submitted Exhibit D4 that included a private doctor’s letter confirming a diagnosis of active rheumatoid arthritis since 2016. It included letters from Tuen Mun hospital confirming the same diagnosis with documentary evidence of medication, therapy and treatment with ongoing follow-up appointments.

71.The magistrate did not refer to these documents or the diagnosis when he found the appellant was trying to paint a picture that his rheumatoid arthritis was serious.  In fact, during the trial, when the medical documents were submitted with no objection by the prosecution, the magistrate commented that the contents of the medical documents were hearsay and not evidence of his medical condition.  In court, he told Mr Leung for the appellant that normally medical reports would only be relied upon if supported by in court evidence of the doctor who wrote the reports.

72.From the transcript and the statement of findings, it seems that the magistrate accepted neither the reports nor the appellant’s evidence of his serious rheumatoid arthritis. The finding was that the appellant was trying to paint a picture that his rheumatoid arthritis was serious.  

73.These reports were not objected to by the prosecution; that is the contents of the reports were accepted by the prosecution.  Yet, it would appear the magistrate doubted the truthfulness of this diagnosis set out in these documents and expanded upon in evidence by the appellant.

74.The magistrate made findings that the appellant intended to indecently assault X but knew there was CCTV just after the door so pretended to be on the phone.  Call records were offered as proof but the magistrate indicated they were not necessary.  If that evidence was doubted, which it clearly was, then those records should have been examined.  This is unfair to the appellant.

CONCLUSION

75.This is a rehearing and I appreciate the magistrate had the benefit of observing the witnesses give evidence and be subjected to cross-examination. However, I do have the benefit of in-depth and in detail submissions from both the appellant and the respondent as well as the transcript of the entire trial.

76.In considering the prosecution’s evidence, I find that some of the prosecution’s evidence contradicted itself on material matters.  After a reading of the transcript and considering submissions made during the appeal, I find merits in some that affects the finding that both PW1 and 2 were credible and reliable.    Those include as I have said above, photos of the positions of the desks in the office, the reason why X was in PW3’s room when she made a complaint against the appellant, the bad history between the 2 prosecution witnesses and the appellant over work performance complaints.

77.I find hard to believe that PW2 had to swivel her chair every time the person sitting behind her wanted to move past her.  I find it hard to believe that she was directly facing the water dispenser when the appellant approached to touch X deliberately.  Her chair and therefore her position was very close to the water dispenser; the appellant would have seen her watching or facing the direction of the water dispenser yet still carried out the indecent assault in front of her. He did this whilst he had the presence of mind to pretend to be on his mobile phone for the benefit of the CCTV camera.  I find there to be some inherent improbability in the evidence of both PW1 and PW2.

78.Lastly, some findings against the appellant were not justified and unfair, as I have set out above.  There were enough merits in the grounds above to conclude that the conviction was not just or fair.  Accordingly, the appellant’s appeal against conviction is allowed and his conviction quashed.

79.Any application by the appellant for costs of the trial and of the present appeal must be made in writing within 14 days from the date hereof.  Any objection to the appellant’s application by the respondent must be made in writing within 7 days thereafter.  The appellant shall provide a response, if any, in writing to the respondent’s objections within 3 days thereafter.  The court will hand down its decision on the appellant’s cost application (if any) within 6 weeks.

Ms Sabra Lo, Senior Public Prosecutor of Department of Justice, for the Respondent

Mr Andrew Leung, instructed by Chaudhry Solicitors, for the Appellant