HKSAR v. "Z"

FAMC No. 68 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 68 OF 2011 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 291 OF 2010)

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Between

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DETERMINATION

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Mr Justice Ribeiro PJ :

1.As Mr Gerard McCoy SC pointed out, this was, or should have been, an extremely simple case.  The applicant was charged with indecent assault, the allegation being that he squeezed the buttock of a 14 year old girl (“Miss X”).  He admitted touching her, but denied indecent assault.  His case was that he had merely touched Miss X on the shoulder to get her to move out of his way as he was attempting to cross the road. 

2.As the magistrate[1] noted, it was a simple issue of credibility.  He believed the prosecution witnesses and rejected the applicant’s account of the events.  He found the charge proved to the requisite standard and convicted the appellant, sentencing him to four weeks’ imprisonment.  Line J[2] dismissed the appeal against conviction but reduced the sentence to one of 7 days’ imprisonment.

3.Mr McCoy seeks leave to appeal on the basis of what are in substance three grounds.  Two of these are directed at the Judge and one at the magistrate. 

4.The magistrate is said to have violated the rule in Browne v Dunn[3] or to have breached the rules of natural justice by convicting on the basis of certain inconsistencies and weaknesses in the applicant’s evidence when some of those points had not been put to him.  We do not think there is anything in this ground.  The magistrate was not bound to accept any particular item of evidence because there had not been cross-examination on it.  He made his findings on the basis of the evidence as a whole deciding to accept the prosecution version and rejecting the contrary evidence adduced for the defence.  There was no unfairness and everyone was fully able to deal with the single issue of credibility.

5.The Judge is firstly criticised for making the following statement:

“No one called upon to judge such an issue will decide the case without having in mind the inherent probabilities. I judge that the inherent probabilities here were firmly on the side of the respondent. The idea of men appreciating a pretty backside and falling to the temptation or impulse of squeezing it is not one that is hard to imagine. Equally, the idea of a 14 year old inventing on the spur of the moment a deliberately false allegation against a stranger that her bottom had been touched because she had been touched on the shoulder, in a public place, in the company of her sisters, is one that, whilst not impossible, is much the less likely.” (§5)

6.A defendant will often submit that a reasonable doubt arises because the prosecution’s case flies against the inherent probabilities.   But it was an elementary mistake to suggest that a conviction is sound because it was inherently more likely that the complainant’s, rather than the defendant’s, account was true.  But it was the Judge’s mistake.  There was no error and no injustice in the way the magistrate made his findings.   We wish to make it clear in passing that we do not accept the Judge’s ill-advised suggestion about purported male impulses.

7.The second criticism concerns the Judge’s statement that the complaint about the applicant made by Miss X to her sister was properly admitted as part of the res gestae.   Mr McCoy argues that this raises a point of law of great and general importance concerning the relationship between the res gestae doctrine and the rule regarding evidence of recent complaint discussed in Leung Chi Keung v HKSAR[4].

8.We do not agree.  Evidence of Miss X’s complaint to her sister and their joint confrontation of the applicant was not adduced or received as hearsay but merely as part of the circumstances surrounding the alleged offence.  The applicant’s identity was not in dispute.  It was accepted that he had touched Miss X.  The only question was whether he had touched her shoulder or had indecently assaulted her.  There was accordingly no need to consider whether any hearsay was admissible under the doctrine of res gestae.  No relevant point of law arises.

9.Mr McCoy also criticises the solicitor who represented the applicant at the trial for wrongly accepting that it would be proper for the magistrate to regard the complaint as evidence of the truth of its contents.  It is not clear to us that such was the effect of what the solicitor submitted.  In any event the magistrate evidently gave this no weight, not having anywhere suggested that he was relying on any hearsay evidence.

10.For these reasons, we refuse leave to appeal and dismiss the application.

Mr Gerard McCoy SC and Mr Timothy Parker, instructed by Vidler & Co and assigned by the Legal Aid Department, for the applicant

Mr William Tam DDPP (Ag), of the Department of Justice, for the respondent