R. v. Cheng Siu Tong

HCMA001508/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1508 OF 1996

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Coram: Hon Gall, J. in Court

Date of hearing: 28 February 1997

Date of judgment: 28 February 1997

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J U D G M E N T

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1. The appellant was convicted on 19th November 1996 of one count of attempted indecent assault. The matter arose from a journey on the MTR on 31st August 1996 at about 5:40 pm and the young lady involved was a student aged 15 years at that time.

2. The learned magistrate found that there had been no touching between the young lady and the appellant and found that upon the basis of evidence given by an undercover policeman in plain clothes, who was on the train to protect against indecent assaults, and who stood nearby and watched the two of them during the journey. In all the circumstances, the evidence amounted to a movement by the young lady to protect her upper body by clasping her arms around herself and no evidence of any touching.

3. The Crown concedes that in these circumstances it was essential that the magistrate warned himself of the desirability that the evidence of the young lady be corroborated. Mr Liu concedes that the absence of such a warning is fatal to the conviction but urges upon me that the matter should be sent back for retrial. I accept his concession and the appeal against conviction is allowed.

4. I have considered fully all that Mr Liu had said and what has been said by Mr Buchanan in respect of a retrial. The retrial, of course, would be in respect of an attempted indecent assault and taking all that I have seen from the papers and the interest of the public in respect of matters such as this, I do not find that a retrial is warranted and I make no such order.

Representation:

Mr Y.M. Liu, S.C.C., for Crown

Mr Robert B. Buchanan, inst'd by M/s Poon, Yeung and Li, for Appellant