GAN FOCK WAI, STEPHEN v. HKSAR

FAMC NO. 7 OF 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 7 OF 2009 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA NO. 591 OF 2008)

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Between:

GAN, FOCK-WAI, STEPHEN (顏福偉) Applicant
– and –
HONG KONG SPECIAL ADMINISTRATIVE REGION Respondent

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Appeal Committee : Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing : 26 March 2009
Date of Determination : 26 March 2009

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

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Mr Justice Bokhary PJ :

1. It is complained that the joinder of these two charges was a departure from accepted norms. In our view, the trial together of twocharges like these is within accepted norms. It is then complained that the magistrate misused evidence on the 1st charge to convicton the 2nd charge. In the circumstances, we do not think that the evidence on the 1st charge could have adversely affected a properconsideration of whether the driver involved in the 2nd charge was reliable in his evidence. And the appeal judge was, in our view,justified in her view to the effect that the driver’s evidence was properly accepted and that, on such evidence, the only sensibleconclusion was that the applicant had persisted in touching the driver intimately even after he must have known – and did know– that he was doing so without the driver’s consent.

2. In such circumstances, there is no basis for an appeal to the Court of Final Appeal, and leave to bring such an appeal is refused.

(Kemal Bokhary) (Patrick Chan) (RAV Ribeiro)
Permanent Judge Permanent Judge Permanent Judge

Mr Neville Sarony SC (instructed by Messrs Woo Kwan Lee & Lo) for the applicant

Ms Polly Wan (of the Department of Justice) for the respondent