HKSAR v. LAI TAK CHI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.370
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. Following a trial before Deputy Judge Wright in the District Court, this Applicant was convicted on 16th May 1997 on six charges of indecent assault and one charge of attempting to pervert the course of public justice contrary to Common Law. The first three indecent assault charges related to offences on victim F (PW1) on dates between April and June 1996. The other indecent assaults (charges 4 to 6) were allegedly committed upon L (PW2) in November and December 1996. Particulars of the seventh charge, attempting to pervert the course of public justice, read as follows:

"Lai Tak-chi, on or about the 11th day of December, 1996, in Hong Kong, attempted to pervert the course of public justice by inciting, inducing or instructing Tsang Sze-sze to make a false statement to the Royal Hong Kong Police Force, intending thereby to pervert the course of public justice."

2. This is an application for leave to appeal against conviction on all counts. The allegations can be put quite shortly. The Applicant was an Auxiliary Police Officer. In the course of his duties, he had come across a girl, PW4, whose identity card he had asked to see. He then took her telephone number and her address. Later, the Applicant got in touch with PW4 and asked her to meet him late one evening. She went to meet the Applicant in the company of PW2, who was her 14 year-old friend. As the night wore on, PW4 went home leaving the Applicant alone in the company of PW2. During this time the Applicant took PW2's telephone number and was told her age.

3. In the Deputy Judge's Reasons for Verdict, charges 4 and 5, which depended upon the evidence of PW2, are summarized in this way:

"She next met the Defendant again in the company of PW4 on the night of 22/23 November 1996; once again PW4 left earlier than she - albeit well after midnight - leaving her alone with the Defendant; the Defendant said he would see her home; she said she was cold and he suggested hugging her; she refused and he lent her his jacket; they sat on a bench and talked for a while before continuing their journey; they paused for a while beside the Shing Mun River; he embraced her from behind; she told him to stop but he squeezed her right breast before taking away his hand; subsequently he suddenly took her around the waist and kissed her 'furiously' whilst groping beneath her skirt and touching her buttocks; she pushed him away."

4. The last indecent assault in the series, charge 6, which also affected PW2, occurred late at night as well. This was during a meeting arranged by the Applicant where he had taken the victim out on a joyride. When the vehicle parked in a dead-end street, he touched her private parts through her clothing. She was embarrassed at what he did and asked the Applicant to take his hand away.

5. The Applicant arranged to see PW2 again and he was arrested when he attended the meeting place. PW2 identified him as the culprit. In his wallet were found the telephone numbers and names of PW1 and PW3 and this evidence in due course led to the allegations made in the first three charges.

Turning to those charges, PW1 was a 14 year-old girl when she came to meet the Applicant for the first time. The Deputy Judge set out in summary form the background to these assaults:

"In her evidence PW1 says that, as a result of a complaint made by her in connection with an unrelated offence, the Defendant and another uniformed police officer visited her home. During that visit the Defendant ascertained personal details from her, including her telephone number; that evening he telephoned her. The following Saturday she received another telephone call from him when he enquired whether others were present in the flat. She answered in the negative, whereupon he announced his intention to visit her. Some two hours later, by which time her younger sister was present, she admitted him to the flat. He took her into an internal room and closed the door. He told her his name was Tony. He later lay her on the bed, removed her pyjama trousers, lowered her underpants and inserted two fingers of the right hand into her vagina for a period of approximately one minute. She felt pain but did not speak or struggle because she was very scared. He then helped her dress."

6. Later the judge described the indecent assault on PW1 in charge 2 as having taken place in a car. He said:

"... thereafter (the Applicant) inserted his hand beneath the clothing she was wearing and touched her genitals; again she did not protest or struggle because she was scared; this incident lasted for what she described as a while ...."

7. The third offence on PW1 is described in the Reasons for Verdict in this way:

"Thereafter a further meeting occurred in June at PW3's home in To Kwa Wan. She had gone there after school; the Defendant arrived at around 4.00 p.m. at the invitation of PW3; after entering the flat the Defendant, PW3 and she went into PW3's room; all three of them sat on the bed; the Defendant said that PW3 had not seen him kissing her, PW1, which he then proceeded to do; he lay her down on the bed and then inserted two fingers of his left hand into her vagina whilst PW3 watched; he then went to PW3 and touched her breast at which stage PW1 left the room; the Defendant and PW3 remained in the room for a long while; after he emerged he left PW3's flat with her at around 6.00 p.m. and saw her home."

8. The seventh charge was solely dependent upon the evidence of PW5, who was another female the Applicant had first met in the course of his normal duties. However, he had subsequently met her in Shatin where the girl's evidence was that he touched her waist and she had reacted by using foul language at him. In the Reasons for Verdict, the Deputy Judge summed the matter up in this way:

"About the 11th or 12th December 1996 he contacted her, saying he had been 'set up' and if she was asked by police officers or other persons about him she should feign ignorance. He asked her not to mention his page number to anyone and not to tell anyone she knew him. She made no response. She was later approached by police and identified the Defendant at the identity parade on 27 December 1996."

9. In his interviews with the police, the Applicant made a number of admissions to acts of consensual indecency which, by virtue of s.122(2) of the Crimes Ordinance, Cap.200, provided him with no defence in view of the ages of the girls concerned.

10. In the trial, the Applicant gave evidence in which he denied any indecent behaviour with the girls who were named in the charges, and he gave innocent explanations for all of his meetings with them. So far as the last charge is concerned, the Applicant's evidence was in flat contradiction of PW5's testimony. With these matters in mind, the Applicant has raised a number of points which he has drafted in writing for our consideration and, during the course of the hearing today has brought to our attention, from the transcript of the hearing and from the Reasons for Verdict, a number of contradictions which arose during the course of the girl's evidence. These matters mainly deal with topics concerned with the reliability and credibility of the five young female witnesses, all of whom gave evidence against the Applicant at trial. We are not here to evaluate the evidence of witnesses who we did not see and have not heard. This is not a retrial of what took place in the District Court. We have, however, been able to establish that the trial judge in no way misdirected himself as to the law or as to the facts. He reviewed with complete fairness and commendable thoroughness all of the evidence he had heard. The Reasons for Verdict, which include a faultless legal explanation for the seventh charge, are entirely sensible and cannot be criticized.

11. We should mention also that the Applicant believed that his application might be assisted by Magistracy Appeal No.621 of 1997. The facts of that case were different to those in this, and it lays down no principle of any assistance to us in the consideration of this application.

12. There is no merit in this application and, therefore, it must be dismissed.