Lee Lai Man v. HKSAR

FAMC No. 44 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 44 OF 2006 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCMA NO. 709 OF 2005)

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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: 11 December 2006

Date of Determination: 11 December 2006

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

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Chief Justice Li:

1.On 29 June 2005, the applicant was convicted by the Magistrate (Mr Eddie Yip) of one charge of indecent assault and one charge of common assault.  He was sentenced to a total of three weeks imprisonment.

2.The conviction was based on the evidence of PW1, the victim.  According to her evidence, she was waiting in a queue at a fish stall at the Canal Road Market at around 2:30pm on 8 February 2005 which was Chinese New Year’s eve.  She was wearing trousers.  She suddenly felt someone push his fist between her legs touching her between her anus and her vulva.  She turned to look and saw it was the right fist of the applicant.  She pushed him away.  As he was starting to run away, she grabbed his left sleeve and accused him of touching her and “feeling her up”.  She asked passers-by to report to the Police.  The applicant, without saying anything, then punched her right upper arm.  She let go of him and he fled.  She gave chase.  During the chase, he had turned around and said to her, “It’s obvious that I felt you up.  You are unable to catch up with me.  Go home.”  The applicant was eventually apprehended with the help of others.  When cautioned after arrest, the applicant had said: “I didn’t indecently assault her.  She hit my left arm.  I intended to grab her”.

3.PW1’s evidence was that her arm was red swollen as a result of the assault.  She was examined by a doctor at Ruttonjee Hospital at 3:39pm that day.  The doctor was not called to give evidence but his report was admitted by agreement.  The report referred to “tenderness of right arm without associated bruise” and did not refer to redness and swelling.

4.The applicant did not give or call evidence.  His counsel conducted his case on the basis that it had been an accidental touch.  The applicant was a man of previous good character and two reference letters were submitted by consent.

5.The Magistrate found PW1 to be an honest and reliable witness and convicted the applicant.

6.On appeal to the Court of First Instance (Deputy Judge Longley), the applicant advanced five grounds of appeal.  In summary, they were: (1) The defence of accidental touch had been wrongly rejected; (2) The Magistrate had made an unsatisfactory remark regarding the density of the crowd at the market which did not amount to a finding; (3) The Magistrate was in error in resolving in PW1’s favour what the applicant alleged to be inconsistencies between PW1’s evidence and the medical report; (4) the Magistrate was apparently biased having regard to the way he dealt with defence submissions regarding PW1’s demeanour in the witness box; (5) Defence counsel was grossly negligent.

7.In his judgment, the Deputy Judge dealt with each of these grounds and dismissed the appeal.

8.In seeking leave to appeal on the substantial and grave injustice limb, the applicant essentially advances the same grounds as those argued before the Deputy Judge.  The Deputy Judge’s judgment dealt with the grounds relied on thoroughly and satisfactorily.  No arguable case has been shown to justify leave.  Accordingly, the application for leave is dismissed.

Mr Michael HK Leung (instructed by Messrs Herman HM Hui & Co.) for the applicant

Mr Cheung Wai-sun and Ms Winnie Lam (of the Department of Justice) for the respondent