IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MAGISTRACY APPEAL NO.939 OF 2003
(ON APPEAL FROM ESCC 1249 OF 2003)
Coram: Hon Pang J in Court
Date of Hearing: 19 April 2004
Date of Judgment: 19 April 2004
1. This is an application by the appellant, Leung Chi Keung, for a certificate under section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, that this case involves a point of law which is of great and general importance.
2. The question sought to be certified by the applicant is as follows :
3. The applicant was convicted of three counts of indecent assault in the Magistracy after trial and his appeal to the Court of FirstInstance was dismissed.
4. The case relied upon by senior counsel for the appellant is R. v. Chauhan 73 Crim. App. R. 232, a decision by the English Court of Appeal. The case involves the distress condition of the victim in the contextof corroborative evidence.
5. The present case is not concerned with corroborative evidence. Corroboration, as a matter of practice, is no longer required in sexualoffences. The distress condition of the victim in this case was held to be admissible evidence and was so admitted in the court below.
6. The next question to be asked is, of course, for what purpose was this evidence admissible? It is settled law that the distress conditionof the alleged victim in a sexual assault it is admissible to rebut the suggestion of consent. The argument would thus go : couldthis be evidence to rebut an allegation of fantasy on the victim’s part? Common sense dictates that it must be admissible for allpurposes including the allegation of fantasy.
7. This is a straightforward evidential point. That being the reason, I do not see fit to issue a certificate to certify the questionraised. This is, of course, no bar to the appellant making the application before the Court of Final Appeal.
Mr W.S. Cheung, SADPP and Miss Winnie Lam, GC of Department of Justice, for the Respondent
Mr M.K. Wong, SC leading Mr K.W. Luk, instructed by Messrs Au-Yeung, Cheng, Ho & Tin, for the Appellant