HKSAR v. Gurung Subash

HCMA 893/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 893 OF 2010

(ON APPEAL FROM ESCC 3311 OF 2010)

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BETWEEN

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Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 13 July 2011

Date of Judgment: 20 July 2011

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J U D G M E N T

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1.The prosecution’s case on each charge depended on the evidence of the alleged victim. If the reliability of his evidence is open to reasonable doubt, neither charge would be duly proved.

2.The Appellant did not enter the witness-box, but he called one witness.  If the evidence of this defence witness might be true, the reliability of the alleged victim’s evidence would be open to reasonable doubt.  In wholly rejecting the evidence of this defence witness, the Magistrate said that he had been less than frank with the court.  This was because, the Magistrate said, the CCTV footage played at the trial showed the Appellant and the alleged victim in direct confrontation with each other a couple of times.

3.But that footage, which I have watched in court, does not make it safe to say what the Magistrate said on the basis of his viewing of such footage.  The concern which that gives me is increased by the fact that the Magistrate used the footage not merely to question the accuracy of the defence witness’s account, but actually to find him less than frank.  In my view, this problem in respect of the CCTV footage renders both convictions unsafe.

4.There are other grounds of appeal, but I need not go into them.  The appeal is allowed to quash the convictions.

Mr. Phillip Ross, instructed by Messrs Jal. N. Karbhari & Co., for the Appellant

Mr Andrew Cheng, of the Department of Justice, for the Respondent