HKSAR v. Wong Wing Cheung

HCMA 491/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 491 OF 2011

(ON APPEAL FROM ESCC 1453 OF 2011)

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BETWEEN

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Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 6 October 2011

Date of Judgment: 6 October 2011

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J U D G M E N T

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1.This is an appeal against a conviction for indecent assault and the sentence of 21 days’ imprisonment imposed following that conviction.

2.Dealing with the evidence of the victim named in the charge, the Magistrate said this in para. 12 of his Statement of Findings:

“There is no inherent improbability in her evidence. I could not think of any reason why she would fabricate such allegation against a stranger.”

3.Of course a consideration of the inherent probabilities has a proper place in the process of finding facts in a criminal case; but in a prosecution for indecent assault where there is a question of accidental touching, such an observation appears to treat it as inherently probable that the accused would commit an indecent assault.  That runs counter to even the proper approach to a civil claim let alone the burden and standard of proof in a criminal case.  The second observation excludes the possibility of an honest mistake on the woman’s part.  I do not think that such a possibility can be safely excluded from due consideration.

4.There are other points reasonably open to the Appellant, but I do not consider necessary to go into them.  On the matters which I have already discussed, I regard this conviction as unsafe.  Accordingly, I allow the appeal so as to quash the conviction and set aside the sentence. The appeal against sentence therefore does not arise.

Mr Henry Ma, instructed by Messrs Christine M. Koo & Ip, for the Appellant

Miss Eva Chan, of the Department of Justice, for the Respondent