HKSAR v. Man Yiu Ting

FAMC No.36 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO.36 OF 2014 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCMA NO.58 OF 2014)

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Between :

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REASONS FOR DETERMINATION

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Mr Justice Ribeiro PJ :

1.We dismissed this application for leave to appeal for reasons which we now provide.

2.The applicant was convicted of indecent assault, the prosecution’s case being that he had squeezed the female complainant’s buttock as she was about to alight from an MTR train.  The applicant did not give evidence, but his defence was that he was not the person who did the act and that another man present might well have been the guilty party.

3.The magistrate[1] considered the evidence of the four prosecution witnesses, the main one being the complainant.  He found them honest and reliable, and their evidence clear and straightforward.  In analysing the evidence, he gave certain reasons for rejecting the defence suggestion that it was the other man who had touched the complainant and found the prosecution’s case proved beyond reasonable doubt.

4.The Judge[2] dismissed the applicant’s appeal.  He had contended that the verdict was unsafe because the magistrate had concluded on factually unsound grounds that he had done the act.  The Judge accepted some criticisms of the basis on which the magistrate had rejected the suggestion that it was the other man who done the act.  However, after a detailed review of the evidence, he found that such evidence as a whole justified eliminating the other man and provided an ample basis for a safe conviction.

5.The applicant now seeks leave on the substantial and grave injustice ground, essentially inviting the Court to re-examine the facts which have already been scrutinised twice in the courts below.  As we have repeatedly stated, the Court of Final Appeal does not function as a second appellate court in criminal cases.  It is not there to entertain a third round of arguments on the facts.  There is no point of law of great and general importance and no reasonable basis for arguing that the case comes within the substantial and grave injustice category.  We accordingly refuse leave to appeal.  Any applications of this kind should expect to be dealt with under Rule 7 of the Court’s Rules.

Mr MK Wong SC and Mr Alex YH Lai, instructed by B.C. Chow & Co., for the applicant

Mr David Leung, DDPP, and Ms Cherry Ho, PP, of the Department of Justice, for the respondent