The Queen v. Ho Siu Kar

HCMA001511/1989

Mag. App. No. 1511 of 1989

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HEADNOTE

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MAGISTRATE'S FAILURE TO RECORD IN THE STATEMENT OF FINDINGS THAT THE PREVIOUS GOOD CHARACTER HAD BEEN TAKEN INTO ACCOUNT IN ASSESSING CREDIBILITY NOT FATAL TO CONVICTION.

IT IS HOWEVER MORE SATISFACTORY FOR THIS TO BE RECORDED.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1511 OF 1989

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BETWEEN

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Coram: Hon. Ryan, J. in Court

Date of hearing: 20 February 1990

Date of delivery of judgment: 20 February 1990

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JUDGMENTE

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1. The appellant was convicted after trial by Mr D.J.G. Jones on a charge of indecent assault and he now appeals against that conviction.

2. The Crown relied upon the evidence of the complainant that the appellant had on the top deck of a double decker bus touched her in such a way as to amount to indecency. It was the defence case that an argument had developed between the two parties and that as a result the complainant had made a false accusation of indecent assault against the appellant.

3. The first ground of appeal is that the appellant was a man of good character, an university graduate, and that the Magistrate did not properly consider this point, particularly where in a case such as this there was no corroborativeevidence.

4. It is true that the Magistrate did not make specific reference in his Statement of Findings to having taken the appellant's good character into consideration in assessing credibility. He did, however, have the good character of the appellant before him and his attention was drawn to this in the appellant's Counsel's final speech. It would have been more satisfactory for him to have referred to this aspect in his findings, but I do not consider that his failing to do so is fatal to the conviction. I am satisfied he would have had it in his mind.

5. The second and third grounds of appeal relate to the evidence. Mr Rodway, who appears for the appellant, has taken me through the evidence at some length. I am asked to find that the Magistrate was wrong to accept the evidence of the complainant and to reject that of the appellant. The points that have been raised before me were matters that were before the Magistrate and his attention was drawn to them. He did not consider the discrepancies in the complainant's evidence to be of any significance. He correctly directed himself as to the need to look for corroboration and found that there was none. He saw and heard the complainant and with the direction as to corroboration in his mind, he was satisfied that she was a witness as to the truth and upon whom he could rely.

6. I cannot say that he was wrong. It is not a case where the evidence of the complainant is shown to be so implausible as to have been unacceptable. The appeal is therefore dismissed.

Representation:

Mr Coghlan, S.C.C. for Crown.

Mr G. Rodway, Q.C. leading James Kynoch, inst'd. by David Tsang & Co. for Appellant.

Appellant present in court