Lee Chung-chan, Born v. HKSAR

FAMC No. 43 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 43 OF 2004 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 361 OF 2004)

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Between:

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Appeal Committee:Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing:4 November 2004

Date of Determination:4 November 2004

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1.When hearing an appeal from the Magistrate’s Court, the question for the High Court is not merely whether there has been an error at the trial.  It is whether the error makes it just to allow the appeal.

2.Trying the applicant on a charge of indecent assault, the magistrate was confronted with broad circumstances of a common nature.  The complainant and the applicant were passengers on a public light bus.  Each gave evidence.  Although it has been submitted on the applicant’s behalf that the complainant’s account can be reconciled with the notion of accident, we are of the view that her account, if accurate, pointed inexorably to deliberate conduct on the applicant’s part plainly amounting to an indecent assault by him upon her.  His account, on the other hand, was to the effect that such physical contact as he may have had with her was accidental, brought about as he tried to steady himself in the lurching vehicle.

3.The errors which the appeal judge found that the magistrate had made were errors made in the course of rejecting the applicant’s account of accident.  As to his acceptance of the complaint’s account, the magistrate said:

“The manner in which she related the entire incident was natural, fluent and consistent.  Therefore, I think she must have had true experience of the incident in order to be able to provide such clear, detailed, natural, fluent and consistent testimony.”

There is nothing to suggest that the magistrate had, in forming that view of the complainant’s reliability, failed to take proper advantage of having received the complainant’s evidence at first-hand.  And her account, once it is accepted, wholly negatived the notion of accident. 

4.Looking at the whole of what the magistrate said in his Statement of Findings and the reality of the matter, it is clear that his rejection of the applicant’s account of accident was not based on any errors made in the course of considering that account.  It was based on his acceptance, for viable reasons on the whole of the evidence, of the complainant’s account and the fact that it left no room for any reasonable possibility that the physical contact between the applicant and her had been accidental.  In such circumstances, the appeal judge was justified in taking the view that there was no error which made it just to allow the appeal.

5.Accordingly leave to appeal to the Court of Final Appeal is refused.

Mr Victor K.C. Lee (instructed by Messrs K.C. Ho & Fong) for the applicant

Mr Francis Lo (of the Department of Justice) for the respondent