HKSAR v. CHAU SHU HO

CACC 228/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 228 OF 2007

(ON APPEAL FROM HCCC NO. 12 OF 2007)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

Introduction

1. In May 2007, the applicant faced trial in the High Court before Deputy Judge Pang and a jury upon an indictment containing five counts alleging indecent assault and a sixth count alleging common assault.  On 31 May 2007 he was convicted upon all counts, save the second, and sentenced to a total term of eight years’ imprisonment.  He now seeks leave to appeal against those convictions and that sentence.

The prosecution case

2. The offences are alleged to have taken place between late May 2006 and the end of August 2006.  At the material time, the complainant was a boy (‘C’) aged 10 years.  The applicant was aged 43 years.

3. C lived at home in Mongkok with his mother and his two brothers.  He was in the habit of visiting a library, after school, at the Tai Kok Tsui Municipal Services Building in Mongkok.  It was at that library that he met the applicant.

4. The only prosecution evidence came from C himself and some admitted facts.

5. The boy testified that he had first engaged the applicant in conversation when, at the library, he asked to borrow the applicant’s mobile telephone in order to contact his mother.  The applicant had said that he was a teacher.  There came a time when C brought the applicant home and introduced him to his mother.  There was evidence that the applicant taught the boys some English and then left.  An hour or so later, the applicant telephoned and said that he had lost his keys and it was agreed that he would stay at their home for a couple of nights.  The applicant then said that his own premises were under renovation.  Cross-examination revealed that it was not an issue that for a prolonged period thereafter the applicant lived in the same premises as the boy, his mother and his siblings.

6. The first count alleged an indecent assault at a staircase at the library in May 2006.  C said that he had been reading at the library and that when night had already fallen, the applicant asked him to walk down the stairs with him in the building.  When they reached the landing between the second and third floors, the applicant pulled down C’s trousers and put the boy’s penis in his mouth.  C said that he was so scared that he did not dare shout.  The two of them then went home. 

7. The second incident was alleged to have taken place in the shower room at the flat.  This was an occasion when C’s family members were in the adjoining living room.  C asserted that there was an indecent assault, in that the applicant kissed his chest, sucked his penis, and made the boy do the same to the applicant.  Upon this count the applicant was unanimously acquitted.

8. The third count related to an indecent assault which is alleged to have taken place at the back of the upper deck of a bus on a morning when the applicant took C to school.  There were no passengers in the immediate vicinity and the evidence was that the applicant pulled down the boy’s trousers and again put the boy’s penis in his mouth.

9. The fourth count related to an incident on 19 June 2006 in a room at a place known as Caritas Lodge in Boundary Street, Kowloon.  One of the admitted facts was that in the afternoon of that day, the applicant had checked in there to stay for one night and had moved out the following day.  C’s account was that on or about 19 June, the applicant said that he would like to have the boy stay in his home for a couple of days and the mother agreed.  Instead of going to the applicant’s home, however, they went to this guesthouse where eventually they went to bed and during the night, the boy was awakened.  The boy’s penis was put into the applicant’s mouth and then the boy’s trousers were removed and the applicant rubbed his penis against the outside of the boy’s exposed buttocks and ejaculated.  

10. The fifth count was another count alleging indecent assault, this time at the family’s flat in Mongkok in late August 2006.  The boy’s mother was away from home, visiting the Mainland.  The two brothers were sent out to play and, according to the boy’s evidence, the boy was made to take off all his clothes in the living room and the applicant squatted down to suck his penis.  The boy told the applicant that it hurt, but his complaint was ignored.  Then the applicant rubbed his penis outside the area of the boy’s exposed anus and ejaculated.  The boy was told that if he did not co-operate, gifts which the applicant had given him would be taken away.  

11. On an afternoon in late August 2006, according to C’s testimony, the applicant took him out of his home against his wishes to a mall known as Metro Harbour View.  The allegation here was of an assault in which the applicant hit the boy with the applicant’s computer bag in consequence of which the boy was thrown against a glass plate, whereafter the applicant said to the boy that if he told anyone he would be hit again.

12. In September 2006, the boy visited his grandmother on the Mainland and whilst there told her of the applicant’s assaults upon him.  The police were informed and the applicant was arrested on 27 September 2006.  No admissions were made by the applicant under caution.

13. Two video interviews were conducted of the boy on 28 September 2006 and these constituted the evidence in-chief.  He was cross-examined at length.

The defence case

14. The applicant did not give evidence.  He called no evidence on his behalf.

15. Apart from denying that any of the assaults took place, a variety of suggestions were put to the boy in cross-examination as to why he was making up the account he gave.  At one stage it was put to him that he and his mother had conspired to frame the applicant because, to his mother’s suggested chagrin, the applicant had formed a relationship with another woman; the boy denied this, as well as any suggestion that his mother had formed a relationship with the applicant.  At another stage, it was put to the boy that his mother was abusive and that once he found himself in the Mainland, he made up a reason not to return, namely, the suggested fear of the applicant.  Then it was suggested to him that he was making up stories because he was angry that the applicant had finally left the family home.

A suggested inconsistency

16. The first ground of appeal is that the acquittal on the second count is logically inconsistent with the convictions upon the other counts and that the inconsistency is such as to call for interference by this Court.

17. We do not agree.

18. It is well-established that when such a complaint is raised, the burden is upon the applicant to show, first, that the verdicts are inconsistent and, if so, that they are so inconsistent as to call for interference by the appellate tribunal, in other words that “there is no way in which the logically inconsistent verdicts can sensibly be explained”: R v Clarke & Fletcher (CA, Cases 96/5638/X2 and 96/5797/X2 July 30, 1996 unreported).  See also R v Durante 56 Cr App R 708, and HKSAR v Chan Kai Lam CACC 311 of 2003, 22 September 2004, unreported.

19. The applicant has not discharged the burden.  The only argument advanced is that C’s testimony stood or fell as a whole, a point supported, according to this argument, by the judge’s suggestion in the summing-up that if the jurors were not sure that the boy had told them the truth about one charge, they should be very cautious about the other charges.

20. That was a common sense cautionary note in the circumstances of this case, but the point about the second count upon the indictment was that there may be several reasons, quite distinct from deliberate untruthfulness, why the jury may have felt uneasy.  What distinguished this count from the others was that the incident alleged embraced more separate acts of indecency than any of the other counts, and the judge had taken great care to direct the jury that they could not convict in such a factual context unless a majority was agreed upon a particular one, at least, of the acts.  Moreover, the incident was alleged to have taken place when the family was still on the premises and it may be that the jury felt that the boy’s memory about this incident was, as to its circumstances, unreliable – to be distinguished from deliberately untruthful – given in particular the fact that, according to the boy, this was hardly the only incident of indecent assault to which he had been subjected.

Inferences

21. The second ground advanced relates to the judge’s directions as to inferences.  What the judge said was this:

“Before you can draw any inference, it must be the only inference.  The emphasis is on the word, "only."  If the facts you find proved are capable of leading to two or more reasonable inferences then you should draw neither or none of them or your conclusion will be arbitrary and nothing short of guesswork.  By the same token, if the facts you find proved are reasonably capable of leading to an inference adverse to the defendant but are also capable of leading to an inference not adverse to him, then you must not draw the adverse inference.  There is simply no basis to do so.”

22. It is suggested that the effect of this direction was to have instructed the jury to ignore a reasonable inference favourable to the applicant, and not to give the applicant the benefit of any doubt.  

23. This is not, we think, logical.  What the judge was addressing was the approach to two or more inferences that might lead to different conclusions.  So if, for example, there were two conclusions that might be drawn, neither inculpatory, but conclusions nonetheless, logic does not dictate that a particular one has to be drawn; rather, logic dictates that in relation to that particular point a conclusion cannot be reached.  All the more so if there are three or more conclusions that might be drawn: as long as the one adverse to the defendant is not drawn, how can a jury make a decision which one to draw?  The same holds true if one inference is adverse to a defendant and the other is not; but in such an instance there is the need to emphasise to the jury that the adverse conclusion must at all costs avoided.  This is why the standard direction is worded as it is, that if there are two inferences that may be drawn, one favourable to the defendant, the other adverse, the adverse inference must not be drawn.

24. It is, we think, preferable for a judge to stick to the standard direction in this regard which makes no reference to drawing “neither or none of [the inferences]” but merely directs the jury not to draw the adverse inference.  There was no danger in any event in this case of the jury being deflected from giving the applicant the benefit of the doubt, even where doubt existed.  The judge gave ample direction to this jury not to convict upon anyone count on the indictment unless the prosecution had proved its case so that the jury was sure of the applicant’s guilt upon that count, and had told them that if any part of the case put on behalf of the applicant was or might be correct, they were to acquit.  We do not believe that there was a risk of the jury being misled as to its proper approach.

‘True’ vs ‘Correct’

25. The third ground is a criticism of the judge in saying to the jury that “... if the defence is put forward and the defence is or may be correct, then you must acquit.”  The suggestion is that the word ‘true’ should have been used rather than ‘correct’ because in the context of this case ‘correctness’ of the defence case might have been taken by the jury as something to be assessed in terms of propriety or impropriety.  The point makes no sense and has no merit.

Tailoring

26. The fourth ground deserves similar short shrift.  It is that the summing-up was not sufficiently tailored to the case, in particular that the warnings that the judge gave about the dangers of relying upon the testimony of C were inadequate.  In our judgment, quite the contrary is the case.  The summing-up was not only comprehensive, but painstakingly fair to the applicant and tailored exactly to the circumstances of the case.  All the suggested weaknesses in the testimony of the boy were drawn to the attention of the jury, and the jury was warned about the ease with which allegations of the kind in this case can be made and about the propensity of children sometimes to fantasise or make up stories without appreciating the grave consequences of doing so.

Discrepancies

27. Then there is a ground that has required extensive attention to the details of the interviews of the boy and of his testimony at trial.  The suggestions is that a comparison of those two versions reveals material discrepancies such as should leave this court with a lurking doubt as to the safety of the conviction.

28. It is as well to state the approach to be adopted upon an invitation to invoke the “lurking doubt.” principle.  It is conveniently encapsulated in two judgments of Roberts CJ:

(1) In Tang Wai-tong and another v R [1979] HKLR 479 at 486-487, he said that:

“We think that the lurking doubt formula must be applied with great caution.  An appellate court, reading the papers are not seeing witnesses in the way that a jury does, must be cautious in imposing its subjective feelings for the conclusions reached by men and women who have had the advantage of seeing the witnesses and assessing their credibility.

In our view, “lurking doubt” means not an insubstantial doubt but a substantial remaining doubt.”

(2) In R v Diu Lap-Nin 1983 Crim App No. 1439, 26 January 1984, unreported, he said that:

“Without wishing to lay down any rule that the lurking doubt principle should not be applied where a defendant gives no evidence, we do state our view that such a failure makes it much less likely that a court will feel that doubt, which is a matter of instinct and experience as well as of evidence.”

29. We do not intend to rehearse in this judgment the suggested discrepancies.  We have studied them in the proper context in which they allegedly emerged.  Some of the discrepancies are more imagined than real and none gives us cause for concluding that we should go behind the jury’s conclusions.  We note in this regard that the questioning was exceptionally detailed and that quite a few of the individual questions themselves embraced several questions and that many were palpably irrelevant.  It should come as a surprise to no-one that this 10-year-old witness might at times have been confused as to detail.  It should further be remembered that he was giving evidence about events that had taken place up to a year before.  Furthermore, the jury had the advantage of seeing and hearing two hours of recorded interview of the boy; and in addition a cross-examination of unusual length.  The boy was cross-examined for about two hours on 22 May 2007; for the whole court day on 23 May; and for another two hours or so on 24 May.  Suggested flaws in his evidence were put before him repeatedly and, although our impression is necessarily less informed than that of the jury, what strikes us from the transcript of the cross-examination is the detail of his evidence, the spontaneity of some of his answers, and the telling nature of some of that detail.

30. This ground fails.

An intervention

31. There is a newly added ground proffered to us which complains of an intervention by the judge in the course of cross-examination.  The intervention was to the effect that counsel in her cross-examination of the boy was making points that had been “repeated and repeated and repeated again and again and again.”  We think that the interruption and the comment was entirely justified.

Oppressive cross-examination

32. Whilst it is defence counsel’s duty to explore in full the credibility of a witness’s account, whatever the age or vulnerability of a witness, it is a judge’s duty to see that cross-examination is fair and not oppressive.  This particular cross-examination of this 10-year old witness was dramatically and obviously far too long and questions were repetitive and unclear.  This should not have been allowed to happen. 

Conviction: result

33. The application for leave to appeal against the convictions is dismissed.

Sentence

34. At the date of sentence, the applicant was aged 44 years.  He was not a person of previous good character, for on 23 January 2006 he was convicted of theft, assault occasioning actual bodily harm and criminal damage for which he was sentenced to a few weeks imprisonment.  This does not go, nor was it used by the sentencing judge, in aggravation of sentence but we note in passing that the assault was on the applicant’s girlfriend, of a kind which the complainant in this case said had been visited from time to time by the applicant upon the complainant’s mother.

35. The judge had the advantage of a number of reports.  In relation to the applicant there was prepared a probation officer’s report as well as a psychological report.  Amongst the many previous jobs held by the applicant had been that of teaching assistant and private tutor in the course of and up to May 2006.  The applicant continued to deny any involvement in the offences of which he had been convicted.  He admitted to some intimate contact with the boy such as kissing his face and having a bath with him but denied any impropriety.  By the time of sentence he had committed himself to helping young new immigrants.  The risk assessment made of him was that he presented a moderate risk of sexual re-offending and psychological follow-up was recommended.  

36. Given the private tuition role that the applicant has taken up in the past, we express the hope that he will not assume such a role in the future.  In the absence of any register with legislative force, hope is all there is.

37. The judge also had the advantage of a detailed psychological report on the victim.  The clinical psychologist saw both the boy and his mother.  The point was made that as the applicant had claimed to be a teacher, the boy had trusted him the more readily and had brought him home.  The boy was reported as having sleeping difficulties and frequent nightmares related to sexual abuse.  Personality changes have been noted and in particular the boy was now peculiarly sensitive to physical touch.  He is fearful of going to the public library, and we note in this regard that this was one of the few constructive pleasures he had previously enjoyed.  The psychologist concluded that the boy manifests significant post-traumatic stress disorder including “re-experiencing the dramatic events, avoidance behaviour and hyper-arousal, all of which warrants psychological intervention.”  He suffers anxiety and fear.  The mother suffers depression (albeit a pre-existing condition) and a sense of guilt.

38. The sentencing judge noted that in relation to all the indecent assaults, the boy had been an unwilling party and had feared reporting what was happening.  He noted the contents of the reports, and took the following starting points for each offence which, given the absence of mitigating factors, were crystallized into the sentences in fact imposed.  In respect of Counts 1 and 3, he imposed a sentence of three years’ imprisonment upon each count.  In respect of Counts 4 and 5, he imposed four years’ imprisonment on each count; and he imposed a term of nine months’ imprisonment for the offence covered by Count 6.  He ordered the sentences for Counts 1 and 3 to run consecutively to each other; the sentences for Counts 4 and 5 to be concurrent with each other, but consecutive to the sentences imposed upon Counts 1 and 3 to the extent of two years.  He ordered the sentence on Count 6 to run concurrently with the rest.  This made a total of eight years’ imprisonment.

39. It is argued on behalf of the applicant that this totality was manifestly excessive.  The applicant prays in aid that no force was used on the boy who, it is said, did not complain to anyone and offered no resistance.  We are taken to a number of cases of indecent assault where lower sentences have been imposed.

40. In his sentencing remarks, the judge said that he did “not regard [the applicant] as someone in a position of trust towards the victim.”  In that regard, the judge was, in our respectful judgment, in error.  The applicant was manifestly in a position of trust in relation to the boy and any submission that might be made to the contrary would be surprising given that it was put to the complainant in terms in cross-examination that his mother trusted the applicant with the complainant and with his brothers.  That was self-evidently correct.  The applicant had represented himself as a teacher and was trusted for that reason.  He had befriended the boy and purported to be his protector, and was trusted for that reason too.  His mother took the applicant into the home and on occasions left him in the company of one or more of her sons, and for that reason as well the applicant was in a position of trust.

41. It is correct that the boy did not give evidence of any direct threats of assaults if he did not comply with the applicant’s sexual demands, and that is a fact to be taken into account.  However, the boy’s evidence, when seen in full, reveals a clear element of fear by reason of the applicant’s attitude, facial expressions, demands, and his physical abuse of the mother.

42. In HKSAR v Kong Yun Chiu [2007] 4 HKC 391, this Court emphasized the severely aggravating feature that is constituted in indecent assault cases when the victim is a child, and that such offences call for substantial terms of imprisonment.  In this particular case, the applicant was aged in his 40s and the victim was a mere boy aged 10 years, living in the same house as the applicant with little choice but to do what vulgarly was demanded of him.  The nature of the acts, especially those the subject of Counts 4 and 5, were grossly abusive.  The applicant engaged upon a prolonged course of premeditated abuse and there were multiple offences.  He corrupted the boy with gifts and threatened to deprive him of them if he failed to co-operate.  He enhanced the trust placed in him by falsely representing that he was a teacher in a Catholic school.  He has shown no remorse, and there is evidence of a moderate risk of re-offending.  There are no mitigating features.  The boy remains severely traumatized by the extensive abuse that has been visited upon him.  

43. In our judgment, in all these circumstances, the overall sentence of eight years’ imprisonment cannot be criticized.  We would comment in passing that, in our view, the individual sentences in relation to Counts 4 and 5 were too low.

44. The application for leave to appeal against sentence is dismissed.