HKSAR v. Leung Chi Keung

HCMA000939/2003

HCMA939/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.939 OF 2003

(ON APPEAL FROM ESCC 1249 OF 2003)

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Coram: Hon Pang J in Court

Date of Hearing: 19 April 2004

Date of Judgment: 19 April 2004

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JUDGMENT

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1.This is an application by the appellant, Leung Chi Keung, for a certificate under section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, that this case involves a point of law which is of great and general importance.

2.The question sought to be certified by the applicant is as follows :

"Is it permissible in law for genuine distress condition of a complainant in a case of indecent assault to be used to disprove the possibility of fantasy of being sexually abused on the part of the complainant?"

3.The applicant was convicted of three counts of indecent assault in the Magistracy after trial and his appeal to the Court of First Instance was dismissed.

4.The case relied upon by senior counsel for the appellant is R. v. Chauhan 73 Crim. App. R. 232, a decision by the English Court of Appeal. The case involves the distress condition of the victim in the context of corroborative evidence.

5.The present case is not concerned with corroborative evidence. Corroboration, as a matter of practice, is no longer required in sexual offences. The distress condition of the victim in this case was held to be admissible evidence and was so admitted in the court below.

6.The next question to be asked is, of course, for what purpose was this evidence admissible? It is settled law that the distress condition of the alleged victim in a sexual assault it is admissible to rebut the suggestion of consent. The argument would thus go : could this be evidence to rebut an allegation of fantasy on the victim's part? Common sense dictates that it must be admissible for all purposes including the allegation of fantasy.

7.This is a straightforward evidential point. That being the reason, I do not see fit to issue a certificate to certify the question raised. This is, of course, no bar to the appellant making the application before the Court of Final Appeal.

Representation:

Mr W.S. Cheung, SADPP and Miss Winnie Lam, GC of Department of Justice, for the Respondent

Mr M.K. Wong, SC leading Mr K.W. Luk, instructed by Messrs Au-Yeung, Cheng, Ho & Tin, for the Appellant