HKSAR v. Mok King Wai

HCMA000243/1999

1999, No. MA243

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 243 OF 1999

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Coram : The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 19 May 1999

Date of Delivery of Judgment: 19 May 1999

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J U D G M E N T

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1. On 4th January this year this Appellant was convicted in the Magistrate's court at San Po Kong on one charge of indecent assault. Sentence was passed on 9th February this year when the Appellant was sentenced to six weeks' imprisonment.

2. He now appeals against conviction and sentence. The first ground of appeal against conviction reads:

"That the evidence of PW1 was so full of internal and external contradictions that even after making appropriate allowances, it was unsafe to convict upon it."

3. Having considered the argument in support of this ground and studied the Magistrate's Statement of Findings, I am satisfied that the Magistrate could safely convict on the evidence of PW1, the victim, and that the first ground is not made out.

4. The second ground of appeal against conviction reads:

"That the Learned Magistrate failed to consider that the Appellant may have had an honest but mistaken belief that PW1 consented to his touching."

5. The foundation of the argument under this ground may be taken from paragraph 9 of the skeleton argument prepared by counsel for the Appellant where it is said that the Magistrate's

"... summary of his finding on the evidence (142G on) lays the evidential basis for a scenario on the Prosecution evidence in which the touching did take place but in a situation where the Defendant may have believed, with justification, that PW1 was and would consent. ("honest but mistaken belief"). Once that apparent consent was withdrawn he desisted."

6. In my judgment, it is simply not the case that the Magistrate's finding laid the evidential basis for such a scenario. The Appellant denied that he ever touched the victim. But the Magistrate found on the victim's evidence that the Appellant had touched her breast and private parts. There is nothing that makes honest and mistaken belief of consent a reasonable possibility in the present case. The second ground also fails.

7. There is nothing in the third ground, a complaint that the conviction was unsafe and unsatisfactory, which survives the failure of the first two grounds.

8. The appeal against conviction is dismissed.

9. I turn now to the appeal against sentence. The two grounds of appeal against sentence are:

"1. The Learned Magistrate in deciding that the only appropriate sentence was custodial are failed to take into account the particular circumstances of the case.

2. For the above and/or other reason the Sentence was manifestly excessive and/or wrong in principle."

10. It is clear from the Magistrate's Reasons for Sentence that he weighed all relevant factors with care before arriving at the sentence which he imposed. The Appellant was in the victim's home for the purpose of repairing a computer. She was 17 years old. And the Magistrate was justified in his view that the Appellant took advantage of the victim's na?ve and trusting nature to obtain sexual gratification by indecently assaulting her as he did.

11. I do not feel able to say that the Magistrate was not entitled to pass this sentence. The appeal against sentence is also dismissed.

Representation:

Mr. James McGowan (inst'd by M/s. Wong, Packwood & Co.) for the Appellant

Mr. Johnny Chan (of the Department of Justice) for the Respondent