HKSAR v. KWONG SIU KWAN

HCMA 525/2008

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 525 OF 2008

(ON APPEAL FROM FLCC 3201/2007)

———————-

BETWEEN

HKSAR Respondent
and
KWONG SIU KWAN Appellant

———————-

Before: Deputy High Court Judge Geiser in Court

Date of Hearing: 18 September 2008

Date of Handing Down Judgment: 12 November 2008

—————————————-

J U D G M E N T

————————————–

1. On 18 May 2008, the appellant in this case was acquitted of a charge of indecent assault contrary to Section 122(1) of the Crimes Ordinance, Chapter 200, Laws of Hong Kong. Pursuant to that acquittal, an application for costs was made on the appellant’s behalf, suchapplication was refused.

2. It is against the refusal of that application that the appellant now appeals.

3. The facts giving rise to the appellant being charged arose when the appellant offered a lift to PW1. The appellant was an off-dutyambulanceman. During the journey, PW1 felt pain in her chest which undoubtedly on the evidence resulted in the appellant pullingup his vehicle on to the road-side. There was a conflict in the evidence of PW1, the complainant, who alleged that the appellanthad squeezed her left and right breasts a number of times. The appellant for his part whilst admitting that he did touch lightlythe complainant’s chest above her breasts and explaining his reason for doing so, he denied indecently assaulting her in the waythe complainant had expressed.

4. Explaining his reasons for acquitting the appellant, the learned Magistrate in his Statement of Findings said this:

“It is true that the credibility of PW1 (the complainant) is in doubt. There are material discrepancies between her evidence incourt and in her witness statement. Secondly, the defendant’s evidence might be true.”

In short, it seems clear that the learned Magistrate had a doubt over the truth of the testimony of the complainant and thereforeacquitted the appellant.

5. The normal rule regarding costs is that an acquitted defendant should generally be awarded his costs unless there are positive reasonsto deprive him of his costs, one such reason being that the defendant has brought suspicion upon himself. In exercising his discretion,the judge must consider the conduct of the defendant generally, and the most relevant conduct would be his conduct during the investigationand at trial, including how he responded upon enquiry, the answers he gave when confronted with the accusation and the consistencyof those answers. Here, the explanation of the appellant in his statement to the police was wholly consistent with the evidencehe gave at trial.

6. In the present case, the learned Magistrate found that the appellant had brought suspicion on himself. He said this:

“The defendant used his right hand to press PW1’s body on the positions above her left and right breasts (emphasis mine) in the car; in the absence of third party, i.e. another female; in a situation that is contrary to code of practice,I rule that they are suspicious act.”

By making this finding, the learned Magistrate clearly accepted the evidence of the appellant. How this can be suspicious in thecontext of the appellant explaining why he did so, is unclear.

7. One reason may be the fact that the learned Magistrate referred to the appellant as being an ambulanceman who by his conduct wasin breach of a code of conduct which recommends the presence of a female escort when handling female patients.

8. In determining that the appellant brought suspicion on himself and thereby depriving him of his costs, I find that the learned Magistratefell into error. Firstly, the appellant was off duty as an ambulanceman at the time, but secondly and more importantly, the learnedMagistrate had some difficulty in accepting the credibility of the complainant and indeed expressed the opinion that the evidenceof the appellant may be true.

9. The appellant is to have his costs, to be taxed if not agreed.

(S J Geiser)
Deputy High Court Judge

Ms Sezen Chong, Public Prosecutor of the Department of Justice, for the Respondent

Mr Jenkyn-Jones, Toby R.W., instructed by Messrs Kong & Chang, for the Appellant