Chong King Chung v. HKSAR

FAMC No. 35 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 35 OF 2004 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA NO. 116 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: 24 May 2005

Date of Determination: 24 May 2005

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DETERMINATION

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Mr Justice Chan PJ:

1.According to s.32 of the Hong Kong Court of Final Appeal Ordinance, Cap 484, leave to appeal can only be granted if it can be shown that there is a point of law of great and general importance or that it is reasonably arguable that an applicant has suffered substantial and grave injustice. The applicant in the present case relies on the substantial and grave injustice limb.

2.He was convicted of 4 counts of indecent assault and 2 counts of assault on his domestic servant.  He was sentenced to a total of one year imprisonment.  His appeal against convictions and sentence was dismissed by the Court of First Instance.

3.In seeking leave to appeal to the Court of Final Appeal, the applicant complains that the magistrate had failed to rationally analyze the evidence and had made several mistakes.  He says that the alleged victim of these charges had framed him up because she was aware that he was about to dismiss her for her poor performance.  He points out in his long and detailed written submissions and his oral submission today that the domestic servant had changed her evidence and that her explanations were completely unreasonable and illogical.

4.The magistrate who heard the evidence had the advantage of watching the demeanour of the witnesses and was in a much better position than an appellate court to assess whether the witnesses were telling the truth or not.  All the points raised by the applicant had been carefully considered by the magistrate.  From the evidence adduced by the prosecution which the magistrate accepted, he was entitled to find that the applicant had committed the offences as charged.  The judge hearing the appeal agreed with his findings. We do not see any basis for saying that the magistrate and the judge were wrong to have come to their conclusions.  We do not think it is reasonably arguable that the applicant had suffered substantial and grave injustice.  The application for leave must be dismissed.

Applicant in person

Ms. Mary Sin of the Department of Justice for the Respondent