HKSAR v. MOHAMMED JAQUB BALOCH

CACC 365/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 365 OF 2005

(ON APPEAL FROM HCCC NO. 363 of 2004)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.  On 21 July 2005, the applicant, aged 17, was convicted by a jury of non-consensual buggery, contrary to section 118A of the Crimes Ordinance, Cap. 200, following a trial of 5 days before Deputy High Court Judge Saunders.  Later, the judge made an order for the applicant's detention in a Training Centre.  This matter now comes before us as an application for leave to appeal against conviction and sentence.

Prosecution's case

2.  The prosecution relied almost entirely on the evidence of the complainant, a boy aged 9 at the time of the alleged offence.  Having regard to the lengthy delay in bringing the case to trial, about which we shall have more to say in due course, the complainant was 11 years old by the time he gave evidence.  His evidence-in-chief was contained in videotapes which were played to the jury whereas cross-examination was conducted by video-link.

3.  The complainant's evidence amounted to an assertion that on 16 September 2003 the applicant, with whom he had been acquainted through his mosque for some time, had taken him at about 6 to 6.30 pm as he was making his way home from the mosque to a staircase landing between the 1^st and 2^nd floors of Fung Hing House in the Hing Wah Estate.  Both the applicant and the complainant lived in this estate but neither of them lived in that block.

4.  The complainant stated that the applicant had unzipped himself and he described also the applicant's erect penis and how the applicant had put saliva onto it.  He alleged that when anal penetration took place on three or four occasions, after he had been made to bend down over the stairs with his trousers pulled down, it was painful and made him bleed.  The complainant accepted, when cross-examined, that when penetration took place he had not been able to see that it was the applicant's penis which was inserted into his anus.  He did, however, maintain that it was the penis and he refuted the suggestion that the applicant may have used a finger.

5.  Immediately afterwards, the complainant went home where his mother noticed that he was in a distressed state.  His mother also saw blood on his trousers and when she questioned the complainant about what had happened she said that her son replied that the applicant, who he named as “Jaqub”, had “done things” to him.  This witness had given evidence that the complainant reached home at about 7.00 pm.

6.  A medical examination of the complainant during the afternoon of the day following the alleged offence established that there were two longitudinal tears to the anus which seemed fresh and that there was a trace of bloodstaining.  The anal tears were consistent with having been produced by the “passage of hard, sizeable object(s) through the anus (for example – but not necessarily – an erect penis) …”

7.  Forensic evidence failed to detect the presence of any semen on the anal swab taken from the complainant and, equally, no “foreign DNA” was found.  A small bloodstain on the back of the complainant's trousers was subjected to DNA analysis but negative results were obtained.

8.  On 24 October 2003, the complainant identified the applicant at a formal identification parade as the culprit.

Defence case

9.  The applicant, a person of previous good character, gave evidence denying the offence.  In essence, the case for the defence was one of alibi reinforced by the suggestion that the complainant had not been speaking the truth because, as agreed evidence concerning the applicant's movements on 16 September 2003 showed, the applicant would not have reached the Hing Wah Estate until some time between 6.20 and 6.25 pm.  The importance of this timing was that a religious teacher (called by the prosecution) from the Chaiwan Mosque had stated that the complainant had left the mosque at about 5.30 pm.  The complainant's own evidence about the length of time it would have taken him to walk to the Hing Wah Estate was “ten minutes”.  Accordingly, the defence suggested that the complainant should have arrived in the vicinity of Fung Hing House where someone accosted him by 5.45 or 6.00 pm at the latest.  It was contended, therefore, that the person responsible could not have been the applicant because he would have reached the location where the alleged offence occurred some 20 or 25 minutes after the complainant had been waylaid.

Grounds of appeal

10.  Mr Hoosen, on the applicant's behalf, has presented this application with commendable sensitivity.  He advanced seven substantive grounds of appeal.

(1)     Whether sufficient evidence to establish an act of buggery

11.  In the 1^st ground of appeal, it was submitted that there was no evidence which was sufficiently conclusive to establish that there had been the insertion of a penis into the complainant's anus when the complainant had agreed in cross-examination that he had been unable to see this for himself and when the medical evidence was equally consistent with something else, such as a finger, having caused the anal injuries.  Mr Hoosen, who also appeared in the court below, submitted in this context that the judge had erred in leaving this count to the jury after he had made a submission of no case to answer.

12.  The judge dealt in considerable detail with what he called the first of three issues which the jury would have to decide, namely, whether or not there had been an act of buggery.  The jury were told in terms that it would not be sufficient for the prosecution to establish that a finger or some other instrument had been inserted into the complainant's anus.  The judge reminded the jury of the complainant's evidence that the person who did this to him “knelt behind [the complainant] and that that person's knees touched the back of his knees.”  The jury were also given comprehensive directions, which are not criticised, about the way in which inferences could be drawn.  Amongst other things, the judge directed the jury in these terms:

“In this particular case, the prosecution says there is direct evidence that something was inserted into [the complainant's] anus.  You have that from the medical evidence.  There is direct evidence from [the complainant] that his trousers were pulled down.  There is direct evidence from [the complainant] that when he was bending down over the stairs, the person who was behind him had that person's knees in contact with the back of [the complainant's] knees.  There is direct evidence from [the complainant] that the other person undid the zip of his trousers.  There is direct evidence from [the complainant] that he saw a penis.

The prosecution says that the only reasonable inference to draw from those facts is that that person inserted his penis in [the complainant's] anus.

On the other hand, the defence says although that might be one inference which could be drawn, it's not the only inference that could be drawn and that one other inference that one might reasonably draw is that a finger or something else was inserted in [the complainant's] anus.  It is a matter for you as to the inference you draw.  You may only do so if that inference is the only reasonable inference to draw from the proved facts.” (Appeal bundle p. 78)

13.  We are satisfied that there was an abundance of evidence from which the jury could draw the inference that buggery had taken place.  It follows, therefore, that this ground must fail.

(2) and (3)  Whether material irregularity necessitating the discharge of the jury

14.  In his 2^nd ground of appeal, Mr Hoosen argued that a material irregularity had occurred in the course of the trial when the three videotapes of the complainant's account, forming his examination-in-chief, were mistakenly sent out to the jury during their deliberations on verdict.  The 3^rd ground alleged that the judge had erred in not acceding to an application which Mr Hoosen had made that the jury should be discharged.  As these grounds are closely connected, we shall deal with them together.

15.  After the jury had retired, they called for the tapes of the applicant's interviews which they had been told during the summing up they were entitled to do.  Unfortunately, and in error, the jury were given not only the interview tapes but also the three tapes forming the complainant's evidence-in-chief pursuant to section 79C of the Criminal Procedure Ordinance, Cap. 221.  However, there was a problem with the equipment the jury had been given for playing the tapes and they sent a message to the judge saying:

“We can't get any sound on the machine.”

The judge was then told that the jury had been given the tapes of the complainant's evidence and, as soon as he realised this, he indicated they should be retrieved and he sent a message to the jury that somebody would be found to fix the machine.  A subsequent message from the jury was sent to the judge saying:

“We fixed the machine.  We've listened to about one minute of [the complainant's] interview with the social worker.”

16.  Counsel were duly informed about all of this when they returned to court and it was decided that the jury should be recalled to court so that counsel could hear for themselves what had actually happened in the jury room.  It then emerged from answers given by the foreman of the jury that they had watched the first of the complainant's tapes for about “one or two minutes” with no sound and then, with sound, they had watched the tape for “30 seconds or [up] to a minute.”  The part played was at “the very beginning”.  The foreman then added:

“As a matter of fact, we are not paying attention on what they are talking in the tape.  We just make sure that the sound's coming from the tape.  That's all.”

He reiterated that they played the complainant's tape for “about 30 seconds.  That is, the sound comes out then we change to another tape.”  Earlier, the foreman had indicated that they had then turned to one of the applicant's interview tapes which is what the jury had requested in the first place.

17.  When the judge tried to ascertain from the jury where in the 1^st tape of the complainant's evidence they had reached, the foreman stated that he had not noticed but another juror then indicated to the judge that it had been “when the kid came in with the social worker … and they sit down”.  The foreman added:

“Yes, just when the kid's come in, then we stop.”

18.  At the earlier suggestion of the judge, Mr Hoosen then requested an adjournment to consider his position and to take instructions.  On his return to court, Mr Hoosen invited the judge to discharge the jury saying:

“Of course, at that time, the boy hasn't said anything about his account of the incident.  That's accepted.  But what I'm concerned about is this and I also relate this to my observation when [the complainant's] evidence first started that [the complainant] is a very loveable looking boy, if I can put it that way, and the jury when they first saw him on the monitor, when he started his evidence, I noticed some of them were smiling and giving the impression they were impressed by his cuteness if I can put it that way.

Now whatever their impression was at the first time, that's nobody's business.  I mean, that's the way they take – however they took him, whatever they had in mind at that time.  But what has happened now is that when they watched the tape without sound for two minutes, they were looking at [the complainant] coming into the room, sitting down and also acting in a way – I'll call it a cute way – which tends to form a favourable view or create a favourable impression.” (Appeal bundle p. 73)

19.  The judge ruled in the exercise of his discretion, having heard the remaining arguments which were advanced, that no harm had been done and that he would deal with the matter by an “appropriate direction”.

20.  Similar arguments were adopted in these proceedings to those placed before the trial judge.  It was submitted that a “real and grave danger of the jury being unfairly and unduly influenced so as to form a more favourable assessment of the demeanour of the victim than they might otherwise have done” had arisen.  Mr Hoosen also submitted that the further direction given by the judge was not sufficient to undo the harm that may have been done.  The judge's direction was in these terms:

“Yes, thank you very much for taking the time to wait for us.  I'm sorry we've kept you so long.

First of all, as to the tapes.  It was a mistake that you were given [the complainant's] tape.  You now know that.  You did watch it for a minute or two.  You saw some of it.  Some of you may have seen some of it.

When you come to consider his evidence, put what you saw in the jury room out of your mind.  Deal with it on the memory that you had of it as you left the court room – the demeanour of [the complainant]; the impressions that you formed from watching the tape on the first occasion.  And that will be all I need to say about that.

Of course, you have the other tape – [the applicant's] interview – and you're entitled to watch that and I think you have the sound going.  All right.” (Appeal bundle p. 77)

21.  We are quite satisfied that the judge was correct in his conclusion that no harm had, as it happened, been done.  The position might have been very different if the jury had, for a second time, been able to listen to the complainant's account but it is clear this had not occurred.

22.  The gravamen of Mr Hoosen's complaint in this regard is, however, that by seeing the complainant on tape at that late stage in the proceedings, there arose the danger that the jury's sympathy for the complainant would thereby have been revived, thus distracting them from an objective analysis of the evidence.  We think this submission was squarely before the judge who had the benefit of assessing the likely impact of the event in the context of the trial as a whole.  The matter was one for the judge's discretion and we are unable to say that this was wrongly exercised.

23.  Accordingly, these grounds fail.

(4) – (7)      Whether alibi defence fairly left for the jury's consideration

24.  Mr Hoosen complained in his four final grounds of appeal, which are closely linked, that the prosecutor had, in his final address, sought to undermine the complainant's evidence relating to the estimated time it would have taken for the complainant to walk home when this had never been raised as an issue at trial; that, because of this, the judge should have acceded to an application to discharge the jury; that the judge fell into error by lending support in the summing up to the prosecutor's attempts to undermine the complainant's evidence about timings; and that in the light of undisputed evidence that the applicant could not have reached the Hing Wah Estate until 6.20 to 6.25 pm, and that the complainant had left the mosque at about 5.30 pm, the complainant's evidence that he would have taken ten minutes to reach Fung Hing House was not fairly left to the jury.

25.  The judge was satisfied that there was no basis for discharging the jury on the ground that the prosecution had sought to impugn the integrity of the complainant and he informed Mr Hoosen that not only could he deal with the matter when addressing the jury in his final speech but that he, the judge, would also deal with it in the summing up.

26.  As a starting point for addressing Mr Hoosen's criticisms, it is plain on any view that an issue arose from the evidence concerning the timing of the offence and thereby, implicitly, the timing of the complainant's departure from his religious class at the mosque.  The complainant had said when first asked about the time of the offence that this had been at 6.00 pm.  However, he had later said it was dark and that it happened at “6.00, 6.00 or 6.30 pm”.  He had also referred to leaving the mosque at 6.00 pm and, in cross-examination, he said that the offence was committed at 6.30 pm.  Bearing in mind the complainant's account that it would have taken him ten minutes to reach Fung Hing House, his evidence relating to timing has to be contrasted with the religious teacher who had said, as we have already indicated, that the complainant left the mosque at about 5.30 pm.  On this aspect, the judge was careful to remind the jury about the way the religious teacher had been able to recall the time of the complainant's departure and added:

“So you may think that you can accept that [the complainant] left the mosque at around 5.30 or shortly after that time.” (Appeal bundle p. 16)

27.  Mr Saw SC, for the respondent, was right in our view to have submitted in his response that counsel were fully entitled to address this potentially important issue arising from the evidence and to provide such assistance to the jury as they felt able in resolving it.  Putting it shortly, the defence were plainly on notice that the strength of the “alibi” evidence was open to question.  That alibi evidence showed that the applicant had not arrived at the scene of the alleged crime until between 6.20 pm and 6.25 pm.  However, it very much depended on the jury's assessment of all the evidence, especially the complainant's account that the incident had occurred at 6.00 or 6.30 pm combined with the complainant's identification of the applicant, his mother's evidence about the time he arrived home and the fact that the place where the applicant got off the bus was directly across the road from the alleged crime scene.

28.  This aspect of the case was covered in full by the judge and the jury were given a detailed summary of Mr Hoosen's cross-examination of the complainant relating to the timing of events.  In conclusion, the judge said:

“If you accept Mr Hoosen's submission and decide that [the complainant] left the mosque at 5.30, that it took him 10 minutes to walk to Hing Wah Estate and that the incident took place soon after [the complainant's] arrival at Fung Hing House, then the incident must have taken place before or around 6.00 pm.  You will remember that when he was first asked the time, [the complainant] said the incident was at 6.00 pm.  If you decide that the incident took place at 6.00 pm, it could not have been [the applicant] with [the complainant] and you must find [the applicant] not guilty.

When you come to assess the issue of time, use your own experience of young children and time.  It may take an adult 10 minutes to walk from the mosque to Fung Hing House, but you will use your own experience of life and how children walk by themselves from one place to another when you assess this evidence.  Use your own experience as children and recall how time passes for children and whether or not children always go from one place to another without any delay in the way that an adult with a purpose may go.  It is for you to decide how much weight you will give to [the complainant's] evidence as to how long it took for him to get to Fung Hing House and whether or not he was there after 6.25 pm.

……

If you find that you believe what [the complainant] says as to what happened and who did it, but that his evidence as to time may not be relied upon because of his age, you may think that the precise time of the offence was not all that important.  It is a matter for you.” (Appeal bundle pp. 17-18)

29.  In our opinion, the judge was entitled to have made these observations which amounted to no more than a statement of the obvious and had presented the issue fully and fairly to the jury.

30.  It follows, therefore, that we have found no substance in these grounds.

Conclusion

31.  We are satisfied that the conviction was neither unsafe nor unsatisfactory and, accordingly, the application in regard to conviction is dismissed.

Sentence

32.  In passing sentence on 10 August 2005, the judge emphasised the gravity of the offence and he had taken the precaution of obtaining a psychologist's report to determine whether the applicant was likely to be a danger to society.  The report indicated that the applicant was not such a danger and was unlikely to re-offend in this way again.  Importantly, the judge then turned to the lengthy delay before trial which he rightly described as unfair both to the applicant and to the complainant.

33.  The judge then made an order for detention at a Training Centre which, having regard to the applicant's age and all the other circumstances, was in our view appropriate.  He was 15 years old at the time of the offence.  This application is, therefore, dismissed.

Delay

34.  Practice Direction 9.5, relating to: “Evidence by way of live television link or video recorded testimony” states, at paragraph 2, that:

“Cases involving vulnerable witnesses should be given priority for listing purposes.”

Quite obviously, no priority was given to the present case.  On the contrary, the delay was unusually lengthy.

35.  Here, the facts were uncomplicated and, on any view, the trial was unlikely to last more than a few days.  Despite this, the committal to the High Court did not take place until December 2004 for an offence committed on 16 September 2003 which had been followed by the arrest of the applicant only a few weeks later in October 2003.  Following committal, the trial was then fixed for hearing on 13 July 2005.  The delay in all was about 22 months.

36.  It will be quite apparent to any responsible person that for a 9-year-old victim to have been left waiting to give evidence for just under two years is wholly unacceptable.  There were no complicated issues and the applicant, on bail throughout, did not abscond.  In short, this was a relatively straightforward case involving a vulnerable witness whose evidence concerned a serious allegation.  We were told there were translation issues.  Nonetheless, this is a case which should have been committed for trial within a few months and should have been tried within a few months thereafter.

37.  It is difficult to lay down hard and fast guidelines for the fast-tracking of special cases such as this when the circumstances in each case will have infinitely variable factors to be considered.  However, where children are due to give evidence, we would expect a concentrated effort by all concerned to effect an expedited trial.  Leaving aside exceptional circumstances, it should generally be possible to bring on the trial within six months of a defendant's arrest.  If it is a concern that the convenience of the diaries of counsel cannot be met, this is to be regarded as a secondary consideration.

38.  We find the delay in this case, as to which it is only fair to point out that the counsel directly involved in these proceedings bear no blame whatsoever, to be a matter of grave concern.  We hope never to see such a situation arise again.  The prosecution and those responsible for listing at every court level bear a heavy responsibility for ensuring that such cases are given a high priority and, where difficulties are encountered in obtaining an early listing date, the matter should immediately be brought to the notice of a judge or magistrate as the case may be with a view to arranging an expedited date for hearing.