HKSAR v. J.S.

DCCC 963/2021

[2024] HKDC 562

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 963 OF 2021

________________________

________________________

________________________

REASONS FOR VERDICT

________________________

INTRODUCTION

1.  The defendant (“D”)  is charged with three charges of indecent assault on another person (Charges 1 to 3)  and one charge of indecent conduct towards a child under the age of 16 years (Charge 4).

2.  Charge 1 was alleged to have taken place in March 2018. Charges 2 and 3 were alleged to have taken place sometime between March and April 2018. Charge 4 was alleged to have taken place in late April 2018.

3.  The complainant in all four charges is X who was born in February 2006. In March and April 2018, X was 12 years old.

4.  At trial, the prosecution called four prosecution witnesses as follows:

PW1: X

PW2: B (X’s mother)

PW3: Madam Yeung (landlord of Room 3, Flat 1, 2/F, Kai Chi Building, 10 Lo Tak Court, Tsuen Wan (“Room 3”)  at the material time)

PW4: Madam Lam (estate agent for PW3 who rented out Room 3 for PW3 at the material time)

5.  Three sets of Admitted Facts, namely Exhibits P10, P13 and P17, were produced pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221, Laws of Hong Kong. A number of exhibits were produced thereunder.

6.  The defence did not make half-time submissions. I ruled a case to answer for each of the four charges. D elected to testify. In addition, he called three defence witnesses as follows:

DW2: L SINGH

DW3: R GILL

DW4: P TAMANG

7.  D has a clear record. I have therefore reminded myself that his credibility is high and the propensity of him committing crime is low. I have also reminded myself that the burden of proof is on the prosecution to prove each charge beyond all reasonable doubt.

PROSECUTION CASE

8.  B gave birth to X in February 2006[1].

9.  B divorced X’s biological father (“F”)  in 2013.

10.  B and D got married in July 2014. B and D were then 35 and 25 years old respectively[2]. As a result of the marriage, D has become X’s stepfather.

11.  At all material times, D, B, X, X’s elder brother and a domestic helper resided together at a flat in Shek Kip Mei (the “Flat”). D, B and X shared a bedroom (the “Bedroom”)  in which X used to sleep in a smaller bed[3] whilst D and B used to sleep in a bigger bed[4]. X’s brother used to sleep in another bedroom. The domestic helper used to sleep in the sofa in the living room.

12.  In early May 2018, D and B had an argument and D moved out of the Flat.

13.  On 18 February 2020, X revealed to B that D had molested her in 2018. A report to the police was subsequently made.

14.  Two video-recorded interviews were conducted with X on 24 March 2020[5] and 3 December 2020[6] respectively.

15.  In the first video-recorded interview (“1^st Interview”), X said[7]:

•  D had touched her private parts: counter 258.

•  D had touched her for at least 6 times: counters 283 and 767.

•  Counter 289: D had “kissed me on my lips” … “touched me on my breast and afterwards, after days, at first he kissed my lips”.

•  D had also touched her vagina and tried to insert his finger into her vagina: counters 297 and 309.

•  The incidents happened in March and April 2018. It started in March 2018: counters 329 and 337.

•  After the last incident in around April 2018, X told D that she would tell B. D then stopped molesting her: counters 343 and 351.

•  The first incident:

➢  D kissed X on her lips and then touched her left breast on top of her clothes with one hand. X said she was not sure which side of her breasts D had touched. She thought D touched her left breast: counters 357, 377, 386, 388, 414, 438, 597, 605, 617, 628, 640, 646 and 652.

➢  Counter 365: “I think that he also touched (his)  hand in my vagina the first time but I am not sure so I am just telling.”

➢  Counter 369: “When it happened the first time, he only kissed me, he touched with hand on my breast, but I, but I think so he also touched in my vagina, but I am not sure. That’s why I am saying only breast and kiss.”

➢  When D went into the bedroom, X was on her bed engaged in her phone (but she was not sure): counters 404, 496, 498, 502, 504, 514 and 577.

➢  X thought D had kissed her once or twice for less than 30 seconds: counters 474, 476, 482 and 573.

➢  D stopped kissing her and touching her breast after 1 minute: counters 814, 819 and 823.

•  The “vagina” incident:

➢  D also touched her vagina: counter 297.

➢  D tried to insert his finger into her vagina: counter 309.

➢  On a separate occasion, D tried to poke/insert his finger into her vagina under her pants when she was lying on the bed looking at her phone: counters 1197, 1206, 1217, 1222, 1228, 1245, 1248, 1261, 1264 and 1272.

➢  X could not remember how long that incident had lasted: counter 1291.

➢  D also touched her breast and kissed her: counters 1364 and 1372.

➢  When D’s hand was in her pants, she way trying to pull his hand: counters 1396 to 1400.

➢  Counter 1405: “I don’t remember that I tried to remove or not.”

➢  That incident happened at night perhaps: counter 1417.

•  The “penis” incident:

➢  D took his penis out, gave her his penis and made her hold his penis on her right (or left)  hand under his pants: counters 930, 947, 953, 993, 1001, 1020, 1022, 1025, 1029, 1032, 1054, 1059 and 1146.

➢  Counter 1039: “He was wearing pants like it was down, so I can feel his –.”

➢  Counter 1042: “I think he opened it, I don’t know.”

➢  D had taken out his penis: counter 1061.

➢  “All of sudden I (X)  just stared at him and he was doing strange actions that was all”: counter 955.

➢  At the material time, X was laying on the bed. D laid on her left hand side: counters 971 to 975.

➢  At first, X was busy on the phone watching footages in YouTube. When D laid down with her, she put her phone away: counters 981, 983 and 985.

➢  Counters 993 and 995: “I think right hand.”

➢  Counters 1020 and 1022: “I think it was left now.”

➢  Counter 1025: “Or right. I don’t know…”

➢  She felt that the penis was hard and slimy: counters 1082, 1084, 1087 and 1090.

➢  That incident was not the last occasion D molested her: counter 1121.

➢  That incident seemed to have happened in March: counter 1129.

➢  That incident lasted for 15 minutes: counters 1139, 1141, 1146 and 1148.

➢  That incident happened at night: counter 1160.

16.  In the second video-recorded interview (“2^nd Interview”), X said[8]:

•  The first incident:

➢  When D kissed her, he also touched her breast: counters 292 to 296, 348, 350, 352, 358, 364 and 437.

➢  D kissed her lips with his lips: counter 308.

➢  D had kissed her for “at least less thirty seconds, if I am not wrong”: counter 314.

➢  Counter 352: “Yes, yes, only these both” (Only kissed her lips and touched her breasts: counter 353.)

➢  X did not want to say D had touched her vagina in that incident: counters 397and 399.

➢  D might have or might not have touched her vagina: counter 412.

➢  Counter 412: “… maybe he didn’t touch my vagina, because if – if he did, I think he would know that I am not that stupid, and how I will know that it is a bad thing to do.”

➢  Counter 414: “No, he wouldn’t think that I am that stupid. He will always think that I am in – I am in primary 6, and I would obviously know that this isn’t a good thing for a stepfather to do to me.”

➢  In short, for the first occasion, D kissed X and touched her breast with hand: counters 436 and 437.

➢  Counters 773 and 774: The first incident happened at night in March 2018.

➢  The first incident might have happened when she was sitting on her bed or her parents’ bed: counters 787, 789 and 791.

➢  D touched her vagina and breast and kissed her: counter 1009.

•  The second incident:

➢  What happened on the second occasion was probably similar to the first occasion: counters 494, 751, 756, 758, 799, 802 and 960.

➢  It probably took place on her bed: counter 770.

➢  Or it took place on the bed of her parents: counters 787 and 791.

➢  She was not sure which breast D touched. Maybe her left breast, maybe both: counter 812.

➢  D also touched around her nipples: counter 827.

➢  She was not sure how long the second incident lasted. Maybe five or six minutes. Maybe even more or less. She was not sure: counters 851 and 875.

➢  It happened in the evening: counter 919.

➢  D touched her breast, kissed her and touched her vagina: counter 1009.

•  The “vagina” incident:

➢  At first, D kissed her. Then he went inside her pants and tried to insert his finger into her vagina. She tried to take/pull his hand out: counters 609, 614, 616, 621, 624, 632 and 636.

➢  Counter 650: “… I was not lying down. I was stood up I think, I was awakened or maybe I was lying down, yes, I was lying.”

➢  Out of the 6 occasions D had molested her, he only tried to put his finger into her vagina once: counters 655 and 657.

➢  D put his hand inside her undies: counter 665.

➢  About D putting his finger into her vagina, X said she thought it only happened once or twice. “Probably one time. I guess. Not too sure.”: counter 951.

➢  D touched her vagina, kissed her and touched her breasts: counter 968.

•  The “penis” incident:

➢  D took out his penis, put it on her hand and made her touch it: counters 324, 327, 545 and 547.

➢  The “penis” incident was not the second incident. It was the fifth or sixth occasion. She was not too sure: counters 489, 943 and 1045.

➢  D mostly made her hold his penis. He handed his penis to her: counters 545 and 547.

➢  She did not know what D was handing to her. It seemed like a penis because the feeling was weird. She did not know what it was. Afterwards, she just released it. She was confused: counters 553, 555, 557 and 559.

➢  She could not remember whether her hand was on D’s penis continuously for the whole 15 minutes or not: counter 596.

➢  The “penis” incident was probably the last incident: counter 937.

•  When D kissed her, he used his tongue and put it into her mouth once or twice or thrice: counters 689, 691, 693, 695, 698, 901, 906 and 909. X was not too sure on which occasions D did that. “Maybe on occasions two, four and five”: counter 703.

•  D had touched her vagina 2 to 3 times, and gave her his penis 1 time. She thought it was the last time he molested her when D gave her his penis: counter 710.

•  Counter 731: “… When he kissed me, he touched my breast, he would have kissed me four to five times, I don’t know much, I am not sure, he used to kiss me many times. He used to touch my breasts whenever he got a chance. He would have done to my vagina at least two to three times, and he gave me his penis once, and he inserted his finger at least once in my vagina, I think one to two times, more than once.”

•  D had touched her vagina on 3 to 4 different occasions. Whenever D touched her breasts and rolled around her nipples, he would go inside her undies and touch her vagina: counters 984 to 996.

•  X was not sure whether, on the first and second incidents when D kissed her and touched her breast, D also touched her vagina: counters 1000 and 1002.

•  Counter 1002: “… I don’t want to seem like a liar. So that’s why I usually say ‘I don’t think so.’, ‘I think so.’ Something like that.”

•  Counter 1009: “The one which is the first one, he – my vagina and – he – he (touched)  my breast and kissed me, then later on he – on mine … he to my breast -, kissed (me)  and touched my vagina with (his)  hand, then later on when he handed me his penis er – then later on he to me – then later on he – the finger to me, he inserted the finger in my v- and then afterwards he handed his penis to me. I think (this is)  how it is.”

•  Counter 1011: “In the third, I don’t remember which – which – which one first (and)  which one not first, I don’t remember.”

•  About when the “penis” and “vagina” incidents took place, X said “It’s probably in March or April. I am not too sure when or when. It’s either March or April.”, “I am not that sure. It only seems to me that it is in March/‌April.…”, “I think it was summer.”, “It’s either spring or summer.”: counters 1018, 1023, 1031 and 1040.

•  Counter 1055: “Firstly, when I don’t even know when (has)  it happened, I am only guessing that in the first one, would have happened like this. In the third one, this would have happened. In the fourth one, this would have happened. In the fifth or sixth time, this would have happened. The first thing is, I am guessing indeed.”

•  D left the Flat on 4 May 2018 after he had a fight with B: counter 1082.

•  On 18 February 2020, X told B that she was molested by D: counter 1101.

17.  During her evidence-in-chief, X testified that it was most likely that all the incidents took place in her bed, i.e. the bed in red as shown in Exhibit P5(6)  and P5(7).

18.  The prosecution called PW3 and PW4 because the defence filed an alibi notice alleging that in March and April 2018 when Charges 1 to 4 were alleged to have taken place in the Flat, D had already moved out of the Flat and was residing at Room 3 with DW4.

19.  PW3 was one of the two registered joint owners of Flat 1, 2/F, Kai Chi Building, 10 Lo Tak Court, Tsuen Wan (“Flat 1”)  since 2016. A Tenancy Agreement[9] regarding Room 3 was signed on 6 May 2018 between PW3 as landlord and D as tenant for a term of one year from 10 May 2018 to 9 May 2019 at a monthly rent of HK$3,800. D was given a rent free period of 4 days from 6 to 9 May 2018.

20.  A few months before PW3 rented out Room 3 to D, PW3 started having Flat 1 renovated and sub-divided into five rooms. Room 3 was one of the five sub-divided rooms. After Flat 1 was sub-divided into five rooms and before D rented Room 3, no one else rented any of the sub-divided rooms. After Flat 1 was sub-divided into five rooms, Room 3 was the first room rented out and D was the first person who rented Room 3. After D had rented Room 3, gradually all other rooms were rented out to Chinese people. D was the only non-Chinese tenant.

21.  PW4 was PW3’s estate agent. In about end of April or early May 2018, PW3 entrusted PW4 for renting out the sub-divided rooms of Flat 1. At that time, the conditions of all the sub-divided rooms were new and all the sub-divided rooms were un-occupied.

DEFENCE CASE

22.  The following is the gist of D’s evidence-in-chief:

(1)  He got married with B in July 2014 but it was a bogus marriage. He had never slept with B in the same bed.

(2)  In order to have a bogus marriage with B, D had paid B HK$150,000. In addition, he was required to pay B HK$10,000 per month as household expenses and room rent.

(3)  After D and B got married, D got a visa from the Immigration Department in 2015. He then got a second visa in 2017.

(4)  While he was living in the Flat, he was required to do household chores. He also had disputes with B because he was unable to pay the monthly fee of HK$10,000 on time. Eventually B took D’s ATM card. D also gave the PIN of his ATM card to B.

(5)  D treated X as his younger sister.

(6)  He moved out of the Flat in January 2018 because he was required to do household chores so much so that he did not have enough rest – he was woken up in the middle of his sleep and was told to go buy groceries etc. Further, B’s domestic helper did not cook for him so that he had to get food from outside.

(7)  After he moved out of the Flat in January 2018, at first he stayed with his cousin J KAUL (“JK”). Subsequently he stayed with a guy called Malhi for about 15 days. In late January 2018, he started to stay with DW4 at Room 3.

(8)  In late April 2018, he saw a note stuck on Room 3’s door saying “Rent Not Paid”. D called and enquired with DW4 who told D that he did not want to stay at Room 3 anymore. DW4 gave D a phone number of a Chinese person. Subsequently that Chinese person gave D the address of PW4 and told D to rent Room 3 through PW4. D approached PW4 and rented Room 3.

(9)  D moved out of Room 3 in around October/‌November 2018.

(10)  When his second visa was due to expire in 2019, he informed B and F of the same as B was the sponsor of his visa. B and F asked D to pay HK$300,000 for the visa extension.

(11)  D was only able to give HK$50,000 to B who then signed a visa extension form for D in May 2019.

(12)  D then passed the signed visa extension form to his lawyer who forwarded the form with other requisite documents to the Immigration Department. After a while, the Immigration Department asked for further documents. D then called F and B and told them about it. F and B asked D to go to the Flat to talk about it.

(13)  D went to the Flat in June 2019. There, they had an argument about the outstanding HK$250,000 D was supposed to pay them for the visa extension. As a result of the argument, D had a fight with F who punched D so that D sustained injury on his right eye as shown in Exhibits D6(1-2).

(14)  After that incident in June 2019, D got a call from the Immigration Department asking him to go to their offices for an interview. D contacted his lawyer who said B had refused to extend his visa because he had failed to pay the outstanding HK$250,000.

(15)  In around late December 2019, D received a memorandum of departure from the Immigration Department. D then told B that what she and F had done was wrong, and he would expose it to the Immigration Department.

(16)  F and B then kept calling him asking him to settle it by paying them money so that he could get his visa.

(17)  D was upset and told them he would not follow what they said, and that he would tell the Immigration Department about the bogus marriage.

(18)  In response, B said on the phone that if D did so, he would also be sent to jail or be sent back to India. D never paid the outstanding HK$250,000 to B or F.

(19)  In the two cautioned video-recorded interviews with the police both conducted on 6 May 2020 (the “VRIs”), he had said that:

•  he lived with B in the Flat as husband and wife – D testified that he said so in the VRIs because he did not want the police know about his bogus marriage with B;

•  he moved out of the Flat in early 2017 – D testified that he said so in the VRIs because it was a slip of the tongue and he could not recall when he moved out of the Flat;

•  he was asked to pay HK$200,000 – D testified that he said so in the VRIs because it was just a miscalculation in his mind.

(20)  D denied ever having sexually molested X.

(21)  Before D came to Hong Kong, he had already met F. F is the brother of D’s father.

(22)  Eventually D got married with B in July 2014. D has known B since 1997/1998 when she married F in India. B married D for money so that D could come to Hong Kong. It was a bogus marriage.

(23)  D lived in the Flat after he got married to B in July 2014. He slept in the bedroom of X’s brother. Sometimes he slept in the living room of the Flat. B and F used to sleep in a big bed in the Bedroom. X slept in a small bed in the Bedroom. D had never slept in the Bedroom.

23.  The gist of DW2’s evidence is that:

(1)  Between 2015 and 2019, he was living in the Flat.

(2)  F and B used to sleep in the big bed in the Bedroom shown in Exhibit P5(8).

(3)  X used to sleep in the smaller bed in the Bedroom shown in Exhibit P5(7).

(4)  D used to sleep in the other bedroom where X’s brother used to sleep. Sometimes D slept in the sofa in the living room. DW2 had never seen D sleeping in the Bedroom.

(5)  DW2 moved out of the Flat in 2019, and D moved out of the Flat around 8 to 9 months before he (DW2)  did.

24.  DW3’s grandfather and X’s grandfather were brothers. DW3 has known X since X was born. DW3 came to Hong Kong in May 2015. DW3 and X met each other regularly. DW3’s son was born in 2020. On an occasion after DW3 gave birth to her son, B and X went to visit DW3. On that occasion when X and DW3 were alone in a room, DW3 asked X about the allegations of D having harassed/‌molested X, X said she was just following B to file a case against D. X did not tell DW3 whether she was really molested by D. X told DW3 that she did not feel it right that D would go to jail, and that she just did it to follow her mom B.

25.  According to DW4, D started staying with him at Room 3 at the beginning of January 2018.

ANALYSIS OF EVIDENCE

PW1 (X)

26.  Regarding X’s evidence, I have the following observations:

(1)  The “penis” incident

(i)  Regarding the “penis” incident, most of X’s evidence is that it was the fifth or sixth (or even the last)  occasion[10] D had molested her, and that it took place after the “vagina” incident. On that basis and in light of X’s evidence that in the “vagina” incident, D had tried to insert his finger into her vagina and such had caused her pain, one would expect that in the “penis” incident when initially D lay on X’s bed next to X’s left hand side, X would have at least been on guard against what D was about to do. However, according to X in the 1^st Interview, when D laid down with her, she merely put her phone away and remained laying on the bed together with D.

(ii)  In this connection, in the 2^nd Interview when X was talking about the first incident, she said, “… maybe he didn’t touch my vagina, because if – if he did, I think he would know that I am not that stupid, and how I will know that it is a bad thing to do.”[11] and “… I am in primary 6, and I would obviously know that this isn’t a good thing for a stepfather to do to me.”[12] According to X, even in the first incident she was already not that stupid and she knew kissing her on her lips and touching her breast was a bad thing to do. One wonders why, subsequently in the “penis” incident, she did not go away or do anything to prevent D from laying next to her on the bed.

(iii)  Further, when defence counsel asked her whether she had said anything (for example “what are you doing?”)  to D when D laid down beside her on her left, X testified, “Why would I? So, no.”

(iv)  Throughout X’s evidence, be it in the two Interviews or her testimony in court, X was quite adamant that she had been holding D’s penis for at least 15 minutes. In cross-examination, X said it could be more than 15 minutes. In re-examination when the prosecution asked her how long D grabbed her hand to touch his penis, she said, “… I think I said 15 minutes. But I’m pretty sure that it was kind of like that long. I don’t think it should be less than that since I remember all the details that he did that to me.…” In this connection, X was able to tell that the first incident had lasted for approximately 30 seconds and that the second incident might have lasted for 5 or 6 minutes. Indeed, X said in cross-examination on the second incident that “… But I’m sure that sometimes you can tell how long a person took and I know he did not take 2 minutes or 3 minutes.” X was already 12 years old and a primary 6 student at the material time so much so that X should have a sense of how long 15 minutes was. Coupled with what she said at trial about her estimation of length of time, it is difficult to say that when X said the “penis” incident lasted for at least 15 minutes, X was only giving a rough estimate of the duration and a general impression/‌recollection that the “penis” incident lasted long.

(v)  X said in cross-examination that she touched D’s penis continuously without removing her hand from his penis. X also said that when she realized it was D’s penis she was made holding, she pushed D away. She said during the 15 minutes she was holding D’s penis, she did not look down to see what she was holding. Again, on the basis that the “penis” incident was the last or the second last incident she was molested by D and in light of what had happened at the “vagina” incident, one would expect X to, as soon as D held her hand to make her hold his penis, take a look at what she was made holding. However, her evidence is that she did not realize it was D’s penis until at least 15 minutes. Further, there is no evidence as to why she did not or could not take a look at what she was holding during the 15 minutes.

(vi)  Throughout X’s evidence, she was unable to recall which hand she was made holding D’s penis. However, she testified at re-examination that “... I think I said 15 minutes. But I’m pretty sure that it was kind of like that long. I don’t think it should be less than that since I remember all the details that he did that to me ...”. It appears to me that contrary to what X said in court, she was not able to remember sufficient details.

(vii)  Regarding which hand she was made holding D’s penis, on the basis of her evidence that D laid on her left hand side:

(a)  Assuming it was her right hand D made her hold his penis, then D would have to reach across her body, hold her right hand and put her right hand on his penis. In that scenario, one would expect that X would have to adjust her body at least a little (contrast to laying flat on her bed)  and turn her body to her left at least a little so that her right hand could hold D’s penis in a not-so-awkward/‌uncomfortable position. Consequentially, one would expect that somehow X would be able to see what she was made holding during that 15 minutes. However, X’s evidence is that during that 15 minutes, she did not look down to see what she was holding.

(b)  Further, if it was her right hand D made her hold his penis but X remained laying flat on her bed without turning her body to the left at least a little, one would expect that during the 15 minutes when D made her touch and stroke his penis, it would be quite uncomfortable for X to do what she did, and so X would have been able to remember the incident more vividly. However, X was unable to tell which hand she was made holding D’s penis.

(c)  All in all, if D was laying on X’s left hand side and if it was X’s right hand which D made her hold his penis, it appears not so sensical that X did not realize what she was holding until 15 minutes later.

(d)  Assuming it was her left hand D made her hold his penis, then maybe it was not necessary for X to adjust her body to do what D made her to do. In that scenario, perhaps X could keep laying flat on the bed but then again, one wonders why she did not take a look at what she was made holding. In this connection, there is no evidence/explanation at all as to why X did not look during that 15 minutes.

(e)  Furthermore, X said in the 2^nd Interview that it seemed like a penis because the feeling was weird[13]. If such was the case (that the feeling was weird), one wonders why X did not push D away sooner or why she did not take a look at what she was made holding until 15 minutes later.

(viii)  When being cross-examined on whether the “penis” incident was the fifth or sixth incident, X said, “The only thing I remember is that he did that to me. So I don’t remember was it the first, second, third, fourth, fifth or sixth. What I truly know that he did it.” Defence counsel then asked whether the “penis” incident could have been the first, second, third or fourth incident, X said it could have been. Looking at that piece of X’s evidence and on the basis that X said in the 2^nd Interview that the “penis” incident only took place once on the last occasion[14], one is left with wondering whether the “penis” incident took place on an occasion other than the fifth or sixth one, and if so, whether D did so in addition to other indecent assaults alleged to have taken place in Charges 1 to 3.

(ix)  After X said the “penis” incident could have been the first, second, third or fourth incident, she continued on and said, “Yes. But I will say to listen to me because I’m the one who did the interview, so I probably know four years ago[15] that that is what happened…” Defence counsel then asked her whether she could remember it at the witness stand, X said, “Right now, of course not.” If at trial X could not remember on which occasion the “penis” incident took place and if her memory was clearer 4 years ago when she was interviewed, one wonders why she testified that the “penis” incident could have been the first, second, third or fourth incident. There is no clarification whether X really meant it, or she merely said it on the spur of the moment.

(x)  In light of my observations stated above, I am not sure whether the “penis” incident actually took place as X described.

(2)  Regarding X’s evidence relating to Charges 1 to 3, I have the following observations:

(i)  Whilst X said in the two Interviews that all four incidents happened at night, at trial she said they all took place during daytime.

(ii)  In explaining why there was such a change, she said in cross-examination, “I’m saying whatever I said four years ago is I think at night. I didn’t say, ‘Oh, it is at night. I remember that really clearly.’”, and “I’m saying it’s more possibility that it’s at day because all of the other occasions happened at daytime.” In effect, X was saying that she used “I think” in the Interviews to show that she was not sure then, and her memory was better when she testified at trial. However, when she testified at trial, every now and then she said her memory when she was interviewed 4 years ago was better than when she was testifying in court: see sub-paragraph (iii)  below. One wonders whether what she said in the Interviews or what she said at trial is more reliable. How does one realistically pick and choose between them?

(iii)  Regarding the first incident, in cross-examination X said in addition to D kissing her on the lips and touching her breast, D also used his tongue. That was different from the 2^nd Interview when X said she was not too sure on which occasion D used his tongue and it might be on occasions two, four and five.[16] If X’s evidence was just like that, one could have taken X’s testimony in court as final, ie D also used his tongue in the first incident. However, during cross-examination X had said repeatedly that her memory when she was interviewed 4 years ago in 2020 was better/‌clearer than her memory during trial: “… so I’m going to listen to the girl who was talking in the interview in 2020”, “… perhaps in 2018 I remember it better, but right now I don’t remember much of it. So whatever I said in the video is supposingly to be correct”, “… Perhaps when I was doing the video I remembered that there more clearly than I remember now …” and “… So I’m telling you that whatever I said for – in the interview, like in 2020, perhaps in the video I can remember that he was – someone probably called him. But right now I don’t remember if someone did call him…” I also repeat my observation stated in paragraph 26(1)(ix)  above. With X’s evidence like that, how does one decide whether what she said in the Interviews or what she said at trial is more reliable? How does one realistically pick and choose between them when the two versions do not quite tally?

(iv)  On one hand X said her memory in 2020 when she was interviewed was better than at trial in 2024, but on the other hand she testified the opposite: “… In the video I’m sure that I – some of the words that I described or said may not be the exact way because I was young that time and I was not really sure how to describe the order…”.

(v)  When defence counsel pointed out to her that in the Interviews, she could not be sure whether her touching of D’s penis happened first or D’s inserting his finger into her vagina happened first, she said, “Of course, yes, I can’t be sure. Even right now, I can’t be sure. So I’m just telling you, I think. Again, I think” and “Yes, I’m – I’m assuming right now, yes.” Defence counsel then asked her if she was guessing. She answered “Yes”.

(vi)  X’s use of “I think” bears some relevance because she said in cross-examination that “I kept say(ing)  ‘I think’ because I was not sure”. I also repeat my observation stated in paragraph 26(2)(ii)  above. Towards the end of re-examination when the prosecution asked X about the duration of the second incident, X initially said, “I think it’s more than 30 – I mean, definitely more than 30 seconds.” She then immediately added, “Scratch the ‘I think’. It was some – few minutes, perhaps.” X was making the point that whenever she prefaced an expression with “I think”, it meant she was not sure. In this connection, it is noted that she had used “I think”, “I am not sure” and “I don’t know” in her two Interviews for quite a number of times[17].

(vii)  It was put to X that she had never called D her stepfather. X said, “I think I just called him by his name. Or I would call him P-A-P-A, Papa.” Defence counsel then suggested that she had never called D “Papa”. X replied, “I don’t know”, “… I don’t know, I’m not sure. It was long time ago.” Given D started living in the Flat in July 2014 until 4 May 2018, I find it difficult to understand why X did not know or was unsure whether she had ever called D “Papa”.

(viii)  In counter 1009 of Exhibit P2C when X talked about the sequence of incidents, X said, “The one which is the first one, he – my vagina and – he – he (touched)  my breast and kissed me, then later on he – on mine … he to my breast -, kissed (me)  and touched my vagina with (his)  hand, then later on when he handed me his penis er – then later on he to me – then later on he – the finger to me, he inserted the finger in my v- and then afterwards he handed his penis to me. I think (this is)  how it is.” According to the aforesaid sequence of incidents, D had handed her his penis twice, not once as she said in counter 710 of Exhibit P2C. Furthermore, one of D’s handing of his penis incidents happened not on the last or second last occasion but on an occasion after the first and second incidents. Such is not the case put forward by the prosecution.

(ix)  In counter 1055 of Exhibit P2C, X said, “Firstly, when I don’t even know when (has)  it happened, I am only guessing that in the first one, would have happened like this. In the third one, this would have happened. In the fourth one, this would have happened. In the fifth or sixth time, this would have happened. The first thing is, I am guessing indeed.” In cross-examination, defence counsel tried to clarify from X what she meant when she said in the second Interview that she was “guessing indeed”. X tried to explain it but it was not clear what she was trying to say. In re-examination, the prosecution asked her what she meant when she said she was guessing, she said, “What I meant here is that – I mean, obviously I did not explain it well, but I will try – I will try to explain it as much as I could from my – for me to recall. So basically, what I’m guessing is that perhaps that, for example, the breast touching and everything, that happened first; and then the second, he perhaps give me his – his penis. You know, like what incident happened first. Like first incident was that; second incident was that; third incident was that. Because you know I don’t even know what’s the meaning of ‘occasion’.”, and “So all I was literally telling was the – was what he did to me. But it’s that – it’s just that I can’t recall which was first, second or third, you know because I can’t possibly tell you that because I really don’t remember which one was first, second or third.”

(x)  Furthermore, there were a lot of “I don’t remember” and “I don’t know” in X’s testimony. In this connection, X was adamant that D had done what she described in the Interviews and at trial. However, X was unable to give further details of the incidents. It is understandable as she was interviewed almost two years after the incidents, and she testified almost six years after the incidents.

(xi)  Mr Justic Stock (as he then was)  said in R v Kwong Wing On HCMA 574 of 1996 that “microscopic dissection of a transcript will always uncover a discrepancy, a failure to answer a question, some inherent improbability or other, a piece of evidence not included in statements to the police, and a myriad of bits and pieces upon which to build pages of grounds of appeal. In the real world, and even with truthful witnesses, these discrepancies, improbabilities, and omissions will occur. Indeed if they do not, then the evidence is attacked as being artificial or collusive. A magistrate is not expected to deal expressly with every comforting crumb to which the defence may be able to point. A realistic attitude must be encouraged, and the approach to such attacks is to ask whether there have been material and significant discrepancies, improbabilities or omissions, such as would lead or should lead a tribunal to doubt credibility on central facts.”

(xii)  I am inclined to believe in general terms that D had done somethings to X before he moved out of the Flat on May 2018. However, when it comes to criminal trials the prosecution has to prove the case beyond all reasonable doubts before a defendant can be convicted. With my observations on X’s evidence as aforesaid[18], I am not sure X’s evidence can be safely and satisfactorily relied on.

All in all, the quality of X’s evidence is not to the extent that I can safely and satisfactorily rely on to convict D on any of the present four charges.

27.  Without X’s evidence, the prosecution has no other evidence to support the four charges. Nonetheless, I would like to give a few comments on the evidence of D and all other witnesses.

PW2 (also referred to as “B”)

28.  The prosecution called B to prove that (i)  D moved out from the Flat on 4 May 2018, (ii)  D and B used to share the same bed depicted in Exhibit P5(8)  when they lived together in the Flat, and (iii)  X told her about what D did to X on 18 February 2020.

29.  During cross-examination, it was put/suggested to B that (i)  the marriage between D and B was bogus, (ii)  B and D never shared the same bed in the Flat, (iii)  because D was unable to pay B the full amount of HK$300,000 for B to act as his sponsor for his visa extension in 2019, D threatened to expose the bogus marriage to the authorities, (iv)  B became stressed and worried because of D’s threat, and (v)  as a result, X made up the allegations of being molested by D.

30.  There is no need for me to determine whether the marriage between B and D was bogus or not. Even if it was a bogus marriage, they could still share the same bed, particularly when B’s working hours were from 1 pm to 1 am the next day and D’s working hours were from 8 or 9 pm to 7 am the next day so much so that they did not have many overlapping hours sharing the same bed. Further, according to D’s evidence, the Immigration Department would go to the Flat to random check their status as husband and wife. It was therefore not impossible that even if the marriage was bogus, D and B would share the same bed so as to make it look like they were living as husband and wife. After all, they could share the same bed without doing anything else as husband and wife.

31.  Towards the end of cross-examination on B when defence counsel showed her a number of photographs, B refused to answer defence counsel’s questions to identify the following persons in the following photographs. Immediately after her refusal as aforesaid, this Court also asked B to answer defence counsel’s questions but B still refused to answer:

•  whether the man in red shirt on the far right of Exhibit D13(3)  was F;

•  whether the groom shown in Exhibit D14(1)  was B’s brother;

•  whether the bride in Exhibit D14(1)  was Jaswant KAUL who subsequently got married to F and became X’s step-mother;

•  whether the man on the far right of Exhibit P14(2)  was D;

•  whether Exhibit D15 was taken in 2014 when Exhibit D15 showed B in Ocean Park; and

•  whether the lady in the far right with a yellow jacket in Exhibit D15 was Jaswant KAUL.

B also refused to answer defence counsel’s following two questions despite immediately after her refusal this Court also asked B to answer:

•  that on 4 February 2016 and 1 February 2019[19], B had purchased properties in India; and

•  that B’s status in those transactions as a purchaser was F’s wife.

32.  I do not find B a forthcoming or frank witness. For some reasons, she had things to hide. I refuse to accept her evidence.

PW 3

33.  Defence attacked PW3 on her memory about when the renovation for sub-dividing Flat 1 into five rooms took place. I do not find such attack weakened the quality of PW3’s evidence.

34.  Whilst PW3 stated in her witness statement that D failed to pay rent for the last two months prior to his termination of the lease, PW3 said in court that D was merely late in paying rent. I think her written statement simply did not fully express what PW3 wanted to say but it did not affect PW3’s credibility or reliability.

35.  I find PW3 credible and reliable. I accept her evidence. In particular, I accept PW3’s evidence that from January to May 2018, she did not rent out Room 3 to a Napalese man.

PW4

36.  Cross-examination on PW4 did not reveal anything which affected PW4’s credibility or reliability. I accept PW4’s evidence.

D

37.  I find D neither credible nor reliable. In this connection, I have the following observations:

•  At the VRIs[20] when D was cautioned for the offence of indecent assault on X in March 2018 in the Flat, he said he had moved out of the Flat in early 2017. On the other hand, D testified at trial that he had moved out of the Flat in January 2018.

•  In the VRIs, D said he had moved to a place on the second floor, Kai Chi Building, Lo Tak Court, Tsuen Wan in early 2017, and then he had moved to another place at Sze Pei Square, Tsuen Wan in 2018. Such does not tally with his evidence at trial that he had moved out of the Flat in January 2018.

•  In the VRIs, he was in effect saying that it was a real marriage between B and him. At trial, D said it was a bogus marriage.

•  In the VRIs, D said he slept with B when he was living in the Flat. At trial, he said B slept with F in the big bed in the Bedroom.

•  He said in the VRIs that he had lived alone at a place in Lo Tak Court in 2017 for around one year. At trial, he said he had lived with DW4 at Room 3 (which is in Lo Tak Court)  from January to April 2018. I do not accept his explanation at trial that he lied about having lived alone because he did not want to involve/‌bother DW4 who was then in Nepal and whose father had passed away. A lie is a lie, and he lied knowing that he was under caution.

•  In the VIRs, D said he had not given B any money since he had moved out of the Flat in 2017. At trial, he said that he had paid $50,000 to B in May 2019 for the extension of his visa.

•  D’s account regarding Room 3 is also inconsistent with that of DW4:

➢  Whilst D said he had started living in Room 3 with DW4 at the end of January 2018, DW4 said it happened at the beginning of January 2018.

➢  D said DW4 had stopped living in Room 3 in end of April 2018, but DW4 said he had moved out in March 2018.

➢  D said DW4 had told him on the phone to contact a Chinese male for renting Room 3, but DW4 said he had told D in person to speak to a Chinese male for renting Room 3.

D is someone who is prepared to make up stories to suit his purpose. I refuse to accept his evidence that he had moved out of the Flat in January 2018. Regarding his marriage with B, he said in the VRIs that it was real but at trial, he said it was bogus. He testified that he had lied at the VRIs because he was afraid of being found out that it was a bogus marriage. He further testified that he was telling the truth to the court that his marriage with B was bogus and that he would not lie to the honourable court. As this case is not about whether his marriage with B was bogus, there is no need for me to determine on that matter. One way or the other, D is a liar.

DW2

38.  I have the following observations on DW2’s evidence:

•  Initially DW2 said D moved out of the Flat around 8 to 9 months before DW2 moved out of the Flat in 2019. Towards the end of his cross-examination, DW2 said it could be half a year to a year D moved out of the Flat before DW2 did the same. DW2 could not remember which month in 2019 he moved out of the Flat, but he remembered he moved out after D had an argument with F in the Flat when D was injured. According to D’s evidence, that incident took place in June 2019. If D moved out of the Flat one year before DW2 moved out of the Flat, then D did not move out of the Flat before June 2018. As such, DW2’s evidence is inconsistent with D’s evidence that he moved out of the Flat in January 2018.

•  DW2 also said that during his and D’s stay at the Flat, every now and then B had asked D to stay somewhere else because the Flat had other visitors. DW2 also said from 2015 until 2019 when he moved out of the Flat, all along he was living in the Flat. In this connection, on the basis of the defence case that B and D’s marriage was a bogus one and the Immigration Department would go visit the Flat to random check whether D was really living with B as husband and wife, it is non-sensical that B would tell D to stay somewhere else for a few days when the Flat had other visitors.

•  During cross-examination on X and B, it was never suggested that DW2 was living in the Flat all the time from 2015 to 2019.

DW2’s evidence is inconsistent with that of D’s and is non-sensical. I find him neither credible nor reliable. I refuse to accept his evidence.

DW3

39.  I have the following observations on DW3’s evidence:

•  According to DW3’s evidence, X had told her (DW3)  that she (X)  was following what B had told her (X)  to do, ie to file a case against D for molesting X. DW3 did not testify that B had told X to fabricate evidence against D. From the evidence revealed by the prosecution, B did make X file a case against D with the police. What X told DW3 was true. As such, DW3’s evidence in this regard is neither here nor there.

•  In any event, there is no evidence that DW3 and X were so close that X would treat DW3 as a confidant and tell DW3 that the allegations against D were all fabrications.

•  Regarding DW3’s evidence that the marriage between B and D was bogus, there is no evidence that DW3 had personal knowledge about whether B and D’s marriage was real or not. Indeed, there is no evidence from D that DW3 had any personal knowledge about his marriage with B. Neither was it ever put or suggested by the defence counsel to B that DW3 had any personal knowledge about whether B and D’s marriage was real or not. DW3’s evidence that B and D’s marriage was bogus was totally hearsay and hence inadmissible.

•  Likewise, DW3’s evidence that B and F pressed D for paying them money in exchange for D’s extension of his visa was all hearsay and inadmissible.

•  DW3 said B made X file a case against D in order to press D to pay them money. From the flow of DW3’s evidence, it was merely DW3’s speculation. There is no evidence that DW3 had any personal knowledge about that.

•  In a way DW3 was acting as a character witness to say that D was not a person who would do things as alleged by X. However, there is insufficient evidence to show how close DW3 was with D and how frequent she spent time with D. After all, DW3 only came to Hong Kong in May 2015 whilst D was already married to B in July 2014. At least for that period of time, there is no evidence that DW3 could spend time with D in person. I find DW3’s character evidence neither here nor there.

In light of my aforesaid observations, I am of the view that DW3’s evidence neither strengthened the defence case nor weakened the prosecution case.

DW4

40.  I have already pointed out the discrepancies between D and DW4’s evidence when I commented on D’s evidence in paragraph 37 above. I would like to add the following:

•  D said DW4 had, when DW4 moved out of Room 3, given him two keys, one to the main door to Flat 1 and one to Room 3. However, DW4 testified that the main door to Flat 1 was always open and there was no key to the main door.

•  D said in April 2018, there was a note stuck at the door to Room 3 saying “Rent Not Paid”. However, according to DW4, he had already informed the Chinese male he dealt with for renting Room 3 that he (DW4)  would stop renting Room 3 and they agreed that DW4 could use the 2 months’ security deposit to offset the rents for February and March 2018. The accounts given by D and DW4 were different.

•  D testified that when DW4 moved out of Room 3, DW4 had given D two keys, one to the main door to Flat 1, and one to Room 3. However, DW4 said when he moved out of Room 3, he simply threw away the key to Room 3. He did not give the key to D.

I find DW4 neither credible nor reliable. I refuse to accept his evidence.

CONCLUSION

41.  X is the only person relied on by the prosecution to substantiate Charges 1 to 4 in this case. As I have indicated above, I am not sure X’s evidence can be safely and satisfactorily relied on. Without accepting X’s evidence, I cannot convict D even though I do not accept the evidence put forward by the defence.

P.S.

42.  D testified in court that his marriage with B was bogus. I did not make any determination on this matter. I leave it to the authorities to consider whether this matter should be pursued further.

[1] Exhibit P3

[2] Exhibit P4

[3] Exhibit P5(6)  and P5(7)

[4] Exhibit P5(8)

[5] Exhibits P1, P1A, P1B and P1C. Also see paragraph 2 of Exhibit P10 (Admitted Facts).

[6] Exhibits P2, P2A, P2B and P2C. Also see paragraph 4 of Exhibit P10 (Admitted Facts).

[7] The counter numbers mentioned below are counter numbers used in Exhibit P1C.

[8] The counter numbers mentioned below are counter numbers used in Exhibit P2C.

[9] Exhibit P8A

[10] In re-examination, X said, “… So basically, what I’m guessing is that perhaps that, for example, the breast touching and everything, that happened first; and then the second, he perhaps give me his – his penis. You know, like what incident happened first. Like first incident was that; second incident was that; third incident was that. …”

[11] Counter 412 of Exhibit P2C.

[12] Counter 414 of Exhibit P2C.

[13] Counter 553 of Exhibit P2C.

[14] Counter 710 of Exhibit P2C.

[15] The two Interviews were conducted 4 years before this trial which started in late January 2024.

[16] Counter 703 of Exhibit P2C.

[17] Counters 351, 365, 369, 404, 457, 476, 565, 573, 622, 642, 646, 658, 790, 819, 862, 993, 1020, 1025, 1042, 1047, 1084, 1087, 1090, 1102, 1110, 1121, 1129, 1139, 1148, 1160, 1240, 1261, 1264, 1372 and 1413 of Exhibit P1C; and counters 358, 412, 470, 648, 650, 655, 703, 710, 731, 733, 737, 745, 782, 787, 802, 812, 851, 861, 875, 883, 892, 919, 924, 943, 951, 964, 972, 988, 1000, 1009, 1018 and 1023 of Exhibit P2C.

[18] Including my observations on X’s evidence regarding the “penis” incident.

[19] When D and B were officially married.

[20] See Exhibits P6C and 7C