HKSAR v. Lau Kwok Fai Bernard

HCMA001202/2001

HCMA 1202/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1202 OF 2001

(ON APPEAL FROM TMCC 1844/2001)

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Coram: Hon Beeson J in Court

Date of Hearing: 9 July 2002

Date of Reasons for Judgment: 12 July 2002

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REASONS FOR JUDGMENT

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1.This Appellant was convicted on 22 October 2001 in the Magistracy on one charge of Indecent Assault. Notice of Appeal Against Conviction was filed on 2 November 2001 but no perfected grounds were filed. Prior to the hearing date of the appeal (18 December 2001) a letter was sent to the court, on 17 December 2001, asking for an adjournment on the basis the Appellant was seeking legal aid. That adjournment was granted by Deputy Judge McMahon on the 18th and he ordered that the appeal be re-listed not before March 2002.

2.On 20 March 2002, the 2nd date of hearing of the appeal, a further application for adjournment was made on the basis that the application for legal aid had been refused. The court was advised that advice had been sought by the Appellant from solicitors and he told the court he was in a position to formally instruct the firm to engage counsel. On that basis he requested an adjournment which was granted by Gall J.

3.The 3rd hearing date for the appeal was fixed for 16 May 2002. A letter, dated 15 May, was sent to court asking for an adjournment and stating 'grounds will be submitted in full at the hearing'. On 16 May 2002 the court was advised that the Appellant needed legal representation, that he had to borrow from his colleagues and that he needed about one month's grace.

4.This further adjournment was granted by Deputy Judge McMahon who adjourned the hearing to a date be fixed not before 1 July 2002. Costs were reserved and the Appellant was advised that further adjournment was unlikely.

5.By the time of the new hearing date on 9 July 2002, no perfected grounds had been filed. The Notice of Hearing which was sent by registered mail was returned marked 'Unclaimed - returned to sender', although the Notice of Hearing sent by ordinary mail was not returned.

6.On 8 July 2002, there was further advice, by letter, that the Appellant would be applying for an adjournment. Attached was the letter dated 4 June addressed to the Registrar of the High Court informing the Registrar that the Appellant would "shortly" engage a solicitor, and naming solicitor. The letter was received after the appeal had been listed. A check with solicitors mentioned by the Appellant revealed that they had no formal instructions.

7.It is against that background that the Appellant appeared on 9 July and asked yet again for an adjournment. In the light of the previous history and the lack of action by the Appellant, the application was refused and the Appellant was told that he could either deal with the matter himself or the appeal would be dismissed by the court. The Appellant decided to represent himself on the hearing.

8.The Appellant at the time of the offence was a serving senior police inspector and the victim was a serving woman police constable. It appeared that after a dinner gathering with colleagues the Appellant had embraced the victim from behind and touched her breast and in the course of his contact with her suggested she spent the night with him. The evidence and the facts were set out by the Magistrate in his Statement of Findings; I do not propose to go through them in detail.

9.There were no perfected grounds of appeal. The Notice of Appeal stated that the conviction was against the weight of evidence; that certain of the evidence had been improperly rejected upon the hearing of the proceedings and there was no sufficient evidence to found the said conviction.

10.The grounds of appeal advanced by the Appellant before me were that the Magistrate had not dealt properly with the evidence and that he had not dealt in a comprehensive way with the evidence in his Statement of Findings. It was submitted that the Magistrate had not considered whether or not the touching had been accidental or not. A further submission was that the victim was emotionally agitated and that there were discrepancies in her evidence in relation to various phone calls that had been made. It was also suggested that the Magistrate had not paid attention to matters relating to the telephone calls.

11.Overall the complaint was that the Magistrate did not comprehensively consider all the evidence of the witnesses and that matters repeatedly raised by counsel at trial had not been dealt with by the Magistrate. It was also suggested that the Magistrate did not take into account sufficiently the Appellant's clear record. It was suggested the Magistrate was biased and the Appellant also submitted, as an indication of his innocence, that there had been no similar complaints despite the fact that he worked with the victim several months prior to the incident.

12.As the Appellant was a serving senior police inspector, it is not surprising that the Magistrate did not spend time in the Statement of Findings referring to his clear record; that was obvious to him and it was not necessary for him to refer to that fact other than stating that the Appellant was a serving police officer.

13.The alleged weaknesses and inconsistencies in the prosecution evidence which could have rendered the victim's evidence unreliable were put before the court by the defence counsel, noted by the Magistrate and considered by him. The Appellant had not given evidence nor called any witnesses. It appears that all matters advanced before me were matters that had been advanced before the Magistrate by the defence counsel who obviously dealt with the matters very thoroughly at trial.

14.Having considered the Magistrate's Statement of Findings, I am satisfied that there is no basis for interfering with this conviction and I dismiss the appeal against conviction.

Representation:

Miss Leung, S Y Rosaline, SGC, for HKSAR

Lau wo Fai Bernard, Appellant, in person