Lui Tak Yin, Derek v. HKSAR

FAMC No. 6 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 6 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA NO. 917 OF 2004)

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Between:

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Appeal Committee: Chief Justice Li, Mr Justice Bokhary PJ and Mr Justice Chan PJ

Date of Hearing: 10 June 2005

Date of Determination: 10 June 2005

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DETERMINATION

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Mr Justice Bokhary PJ:

1.Applying on the “substantial and grave injustice” ground, this applicant seeks leave to appeal to the Court of Final Appeal from a judgment of the High Court affirming his conviction in the Magistrate’s Court on a charge of loitering causing concern, contrary to s.160(3) of the Crimes Ordinance, Cap. 200. 

2.Having taken out an application for leave to appeal against both conviction and sentence, he has pursued the application only in respect of conviction.

3.Certain facts were not in dispute at the trial.  These undisputed facts were as follows.  The applicant entered the ladies’ toilet at a karaoke establishment.  A woman was inside one of the cubicles there.  The applicant stood on the toilet seat of an adjoining cubicle.  While he was doing so, his head was on a level higher than the top of the partition between the two cubicles.  The woman saw him.

4.It was on those facts that the prosecution alleged ¾ and the magistrate found ¾ that the applicant had behaved as what is colloquially called a “peeping tom” and had committed the offence charged.

5.The applicant gave evidence to the effect that he was so drunk that he had entered the toilet without realising that it was a ladies’ toilet rather than a gentlemen’s toilet.  He also relied on the evidence of a member of the karaoke establishment’s staff, whom the prosecution called, and a doctor, whom the defence called.  The staff member saw the applicant at the scene, and the doctor examined the applicant when he was taken to hospital.  Their evidence was relevant to whether the applicant was drunk and, if so, how drunk he was.  Might he have been so drunk as not to realise that the toilet which he entered was for ladies?  This issue was to be resolved upon the whole of the evidence and by reference to the whole of the circumstances disclosed by the evidence.

6.With the advantage of having received the evidence at first-hand, the magistrate felt sure that the applicant had not been as drunk as that.

7.No point of law is in issue.  The case turned on facts.  An intermediate appeal has been brought, and has failed.  The Court of Appeal does not function as a second court of criminal appeal in the normal way.  In order to obtain leave to appeal to the Court of Final Appeal on the “substantial and grave injustice” ground, an applicant has a high hurdle to surmount.  He has to show that it is reasonably arguable that there has been to his disadvantage a departure from accepted norms so serious as to warrant a second criminal appeal even though no controversy over any point of law of great and general importance is involved.  The applicant has failed to show that. 

8.Accordingly leave is refused.

Mr Wong Man Kit SC and Mr Lawrence Hui (instructed by Messrs H.M. Tsang & Co.) for the applicant

Mr Cheung Wai Sun and Ms Rosaline Leung (of the Department of Justice) for the respondent