HKSAR v. CHAN KWING TUNG

DCCC 212/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 212 OF 2013

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REASONS FOR VERDICT

1.  Charge

The defendant was charged with two offences of indecent assault on two young girls aged 8 and 9 years contrary to section 122 (1) of the Crimes Ordinance Cap.200.

2.  The defendant pleaded not guilty to the charges.

3.  Overview

At the material time the defendant was a 25 years old maths tutorial teacher giving lessons at a residential flat in Chong Long House, Ching Ho Estate, Sheung Shui, N.T (the tutorial centre). It is alleged that the two offences occurred whilst the defendant was tutoring two of his girl students, Y aged 9 years and X aged 8 years old at the tutorial centre. The first charge relates to an indecent assault on girl Y on 5 January 2013. The second charge relates to an indecent assault on girl X on 13 January 2013.

4.  The prosecution case

The indecent assault on girl Y aged 9 was by touching Y’s private parts with his fingers. He rubbed his fingers up and down her private parts on the outside of her pants on four separate occasions during the tutorial on 5 January.

5.  The indecent assault on girl X aged 8 was by putting his hand into her underpants and touching her private parts with his fingers on two separate occasions during tutorial on 13 January. 

6.  The girls then made complaints to their mothers about the indecent assaults shortly after the touching.  Girl X told her mother about the touching a day after the incident whilst girl Y told her mother about 10 days later.  The incidents were reported to the police separately but immediately after the girls complaints to their mothers.  Thereafter on the following day the girls were then interviewed by woman police officers separately and respectively in video recorded interviews. 

7.  The defence case

There was no dispute that the defendant was the girls tutor at the tutorial centre. They called him Maksim gor-gor. He had taught them for approximately four months since September 2010 about once a week. The defendant denied both indecent assault allegations and denied ever touching the girls let alone in an indecent manner. It was the defence case that the allegations by the girls were a fabrication. The girls had a motive to invent their allegations against the defendant as they felt under pressure or stressed with their tutorial lessons and their school homework. They did not want to continue with the maths tutorial with the defendant, hence they made up these allegations so that they would not be required to attend their maths tutorial anymore.

8.  Issues

The principal issue in this case was if the defendant had indecently assaulted the two girls X and Y? A resolution of this issue turns principally on the credibility of the girls X and Y.

9.  Other issues for consideration were:-

(i) if Y’s alleged indecent assault was committed on 5 January as opposed to 12 January,

(ii) was Y mistaken or unreliable as to the date of 5 January as her initial complaint was that the assault occurred on 12 January

(iii) as Y had given 2 different dates for the alleged occurrence of the indecent assault upon her was she an unreliable and untruthful witness and

(iv) whether any weight could be placed on the complaint made by Y to her mother Madam C.

10.  Witnesses

The prosecution called six witnesses (PW’s 1-6). The girls Y and X were PW1 and PW2. The girls Y and X were not physically present in the court room. They were in another room in the court building which was connected by a live TV link to the courtroom. Their examination in chief was heard in the form of video recorded evidence. A recording was played of an interview they had with a woman police officer a day after their complaint to the police. Y’s video interview was conducted on 16 January and X’s on 15 January 2013. The girls were cross-examined by way of live television link. All the remaining evidence was conducted at the trial in the usual manner.

11.  So that the identity of the girls were not disclosed, the mothers of the girls were referred to in the trial as Madam C and Z.  They were PW3 and PW4.  C was Y’s mother and Z was X’s mother.  Their evidence principally concerned the complaints made by the girls. 

12.  PW5 was woman police officer (WPO) 10675.  WPO had received the complaint from X’s mother and X, of the indecent assault whilst at the Sheung Shui police station on the 14 January, the day after the alleged indecent assault on X.

13.  PW6 was WPO 11513.  She had received the telephone report of the indecent assault made by Y’s mother on 15 January 2013. Later that day she heard Y’s complaint from Y at Y’s home and took Y to hospital in the presence of Y’s mother.  

14.  The defendant elected not to give evidence.  I drew no adverse inference from the defendant’s right to remain silent.  The defendant called his brother DW1 as a witness.  DW1’s evidence was that he was present together with X and Y at the tutorial given by the defendant on 5 January 2013 and noticed nothing unusual. 

15.  Proof

I have borne in mind that it is for the prosecution to prove beyond all reasonable doubt that the defendant did indecently assault the two girls in each charge. No onus whatsoever lies on the defendant.

16.  I have taken into account that the evidence on each charge must be considered separately from the other.  However in my verdict I have at times referred to the evidence or analysis together so as not to duplicate myself but have always kept in mind that each charge must be proved on the evidence individually. 

17.  The prosecution evidence

The following evidence in paragraphs 18 to 24 was not disputed by the defendant.

18.  By January 2013 both girls X and Y had been attending the tutorial centre for English and Maths lessons for several months.  The girls did not necessarily attend the same tutorial classes for these two subjects.  They attended English tutorials with a lady who they called Ivy.  She resided at that flat.  Their maths tutorial tutor was the defendant.  Incidentally Ivy was the defendant’s elder cousin.  The girls had commenced English tutorials with Ivy first then later Ivy had introduced the defendant to them for maths tutorials.  The defendant did not reside at the flat where the tutorial centre was located.

19.  The English and maths tutorials were on different days of the week.  Maths tutorials were usually held on Saturdays but no particular hour for the tutorial was set sometimes they were in the morning and sometimes in the afternoon.  Each tutorial was usually for one and a half hours.  Sometimes the tutorials would overrun to more than one and a half hours. The over-running did not worry the mothers of the girls as it was their understanding that the defendant needed more time to tutor the girls.

20.  At the tutorials the girls would be give maths exercises to complete by the defendant and when they completed the exercise they would hand it in to the defendant for marking.  The defendant’s brother DW1 if he was at present at the tutorial he would be there assisting his brother in marking or correcting the exercises of the students who were present or work left behind by other students.  He did not tutor.

21.  The girls were taught maths by the defendant whom they referred to as Maksim gor-gor.  The maths tutorials were usually held in one of the two small rooms of the flat situated off the living room.  The indecent assault on the girls were alleged to have been committed in the same small room. 

22.  The small room was depicted in the booklet of photographs exhibit P1, the room is the one on the left as seen in photo 9. The photo of the room is shown in photos 10, 11 and 12. 

23.  On 5 January 2013 (Saturday) X and Y attended a maths tutorial with the defendant.  On 13 January 2013 (Sunday) X attended a maths tutorial with the defendant however Y was not present.  On both dates there were other children in the maths tutorial apart from X and Y.

24.  X’s tutorial was changed from Saturday 12 January to Sunday 13 January, as X was having a maths exam the following day at her school.

25.  Girl Y and X said that during the tutorials on the 5 and 12 January they sat at the table depicted in photo 11 which was oblong in shape but opened at the time.  

26.  Y and X gave evidence that the indecent assault by the defendant occurred on them on 5 January and 13 January respectively.  After their classes on those dates they did not attend any further classes with the defendant. 

27.  PW1 Girl Y’s evidence

Y was born on 5 August 2003. She was 9 years old on 5 January 2013. She had commenced her tutorials with the defendant since about September 2012. She would be assigned school maths homework by her school as well as maths tutorial homework by the defendant.

28.  On 5 January Y attended the tutorial centre for maths in the afternoon.  She recalled that she left the tutorial at about 8 pm but did not recall exactly what time she arrived there. 

29.  On that day in her class were other students named Jerry and girl X.  Sitting at the table with them in class were the defendant and the defendant’s younger brother Lavigne (DW1). 

30.  The defendant gave the students exercises to do in the tutorial and when they had completed them they would hand them to the defendant for checking.  The defendant’s brother Lavin did not teach her or the other student but assisted the defendant by correcting their (the students) exercises.

31.  Y drew a sketch in court exhibit P4 to depict where each of them sat at the table in the tutorial.  At the table Jerry was sitting next to her on her left on the long end of the table with their backs towards the door.  X sat opposite to her.  While the defendant and his brother (depicted as M and L) sat on the short end of the table to the left of Jerry. 

32.  Y recounted that during the tutorial on 5 January when she did not understand her homework or know how to do the exercises given to her by the defendant she would consult him and ask for his assistance.  When she did so the defendant would leave his seat from the table and go over to where she was sitting to assist her.  She would remain sitting on her stool beside the table.  He squatted or knelt between her and Jerry.  While assisting her he would at the same time touch her private parts.  He used his right hand to touch her private parts over her jeans.

33.  Y described that the defendant touched her on the outside of her jeans.  She put in plain words the defendant’s touching as “brushing” his fingers “up and down” over her “urinating parts.”  She said that the defendant used his fingers to press down on her urinating part for a few seconds.  There was not much force but the force got greater after subsequent occasions. 

34.  Y stated that during that tutorial the defendant touched her on about three to four separate occasions.  On each occasion he touched her on her urinating part but the only difference if any was that the first and second time that day he brushed her lightly and the third time he brushed her a bit harder and the fourth time with a bit more force.  After each occasion the defendant would return to his seat.  Whenever she encountered something she did not understand she called out to the defendant “Maksim gor-gor I do not understand.” He would then go over to her to assist her and at the same time he touched her private parts.  Y’s evidence was that while teaching her or helping her with her understanding he would at the same time use his hand to touch her private parts. 

35.  There were several minutes between each occasion that the defendant touched Y’s private parts.  She recalled the touching by the defendant happened between 5.30 pm and 7.30 pm as she looked at the clock whenever she went to the toilet. 

36.  Y said that when the defendant touched her she did not feel happy however she felt a little itchy.  When the defendant had touched her the second time she pushed him away with both hands.  The defendant however just pushed her hands away and continued to touch her. 

37.  In cross-examination she admitted she cried towards the end of that tutorial close to 8 pm.  This was the first time there was any evidence that PW1 had said she cried.  She had never mentioned this before.  In cross-examination she said she cried because of the pressure she felt from being unable to complete her school homework.  In re-examination she said she cried because the defendant had scolded her and touched her.  Nevertheless when she cried the defendant had taken her to the kitchen and it was there that she told him not to touch her anymore.  She told the defendant not to brush her anymore and the defendant said “all right I won’t brush you again” but she said that despite his promise he came back to do it again whenever he went over to her after she had asked him for his assistance. 

38.  It was Y’s evidence that Lavigne the defendant’s younger brother did not see what the defendant was doing to her (that is he did not see the defendant touching her private parts) because he was very busy correcting the exercises.  As for the other students she believed they did not see what the defendant did to her as they were all doing their work as well and were not looking.  When the defendant was touching her the defendant was at an angle and had his back to Jerry who was sitting to the left of her. 

39.  The first time she told anyone about the defendant touching her was on 15 January when her mother asked her.  Y said that on 15 January when her mother asked her if the defendant had touched her she recalled the date as 12 January.  That was the date she also told the WPO PW6 on 15 January when a report was made to the police. 

40.  Y said when she was at home on 15 January after telling her mother and the WPO she remembered she was mistaken about the date being 12 January.  She had thought about correcting the date but did not mention it to her mother.  By the time she remembered the WPO was no longer in her company. Before the video interview on 16 January whilst on the way to the video interview Y told a WPO called Mandy that she had remembered the date incorrectly and told her the correct date of 5 January.

41.  Y therefore related the corrected date of 5 January in the video recorded interview towards the end of her interview when she was asked about the date. 

42.  In the video recorded interview with Y (exhibit P3) and transcript of the interview exhibit P3A at counter 730) she recalled that the date for the indecent assault by the defendant was not the 12 January but the 5 January 2013.  She explained that the reason she remembered was because on 12 January she had gone to the tutorial centre for her lesson but was told on arrival by her English tutor Ivy ‘Che Che,’ that the defendant was not there and that he had gone back to Sichuan.  So if she did not have a lesson on the Saturday 12 January her last lesson with the defendant was Saturday 5 January.

43.  Complaint made by Y to her mother Madam C and Woman Police Officer PW6

Y’s mother went to collect Y after school on a Tuesday 15 January at about 5.30 pm. Madam C had been informed by the English tutor that another student had been indecently assaulted by the defendant. Soon after collecting Y she asked Y if the defendant had touched her. Y initially denied that the defendant had touched her. When her mother asked her again Y replied that the defendant had touched her private parts. Y’s mother immediately called the police. In the telephone conversation she had spoken to woman police officer (WPO). PW6 and other male police officers then went to Y’s residence and interviewed Y and her mother. Soon after that Y was taken to the North District Hospital for examination. After being seen at the hospital Y returned home. It was apparent from Y’s complaint on 15 January that Y had been touched by the defendant three days previously on Saturday 12 January.

44.  How Y told her mother about the touching by the defendant

Y said that when her mother came to collect her at school, her mother brought her to one side away from the school. Her mother told her that her English teacher Ivy had told her mother a daughter had been touched by Maksim gor-gor and her mother asked if the same thing had happened to her. When her mother asked her initially if she had been touched by the defendant, she did not admit it. However on the second occasion when her mother asked her again she told her that the defendant had touched her. She said her mother had said to her “did he yes or no?” She explained that she did not admit it to her mother the first time because she was shy. She understood that the touching was an indecent assault as her mother had explained to her that it was when a man touched her on her urinating part. After she had told her mother they walked home with her mother pushing her baby brother in the pram. Their walk took about 20 minutes. Shortly after they arrived home police officers went to their home where she told the police officer about the touching by the defendant. She was later taken to the hospital.

45.  Y’s mother’s evidence (Madam C)

Madam C said she received a telephone call in the afternoon of 15 January from Y’s English tutor Ivy. Ivy informed her that her younger cousin, the defendant, had indecently assaulted one of his girl students. She was asked by Ivy if her daughter had been indecently assaulted. Madam C replied that she did not know and her daughter had not said anything to her when she returned from class.

46.  On that same day Madam C went to collect her daughter Y after school.  She picked up Y at 5.30 pm.  When she picked her up she took her away from the school gates so she could ask Y discreetly.  She asked Y if her maths tutor had touched her.  Y however did not reply but remained silent for about two to three minutes.  She observed that Y looked afraid and unhappy.  C then gave her some water.  She told Y not to be afraid and that “mummy would take care of her.”  She told her that she was to tell her mother the truth as it was very important.  She then asked Y again if her maths tutor had touched her yes or no.  Y then said yes he had touched her on her urinating part.  Y told her she had been touched not just once but more than once.  Madam C observed that Y looked upset but did not cry.  After Y had told her she then told Y that another classmate had who had been indecently assaulted had already made a report to the police. 

47.  Madam C said that it took approximately 10 minutes for Y to say that the defendant had touched her as she was silent, very quiet and unhappy therefore she had to pursue the matter with Y.  When Y did tell her she asked Y why she did not tell her about it, Y replied that she was afraid. 

48.  As a result of hearing what Y told Madam C she immediately telephoned the police from her mobile phone whilst she was nearby to the school. She said she was emotional and she felt weak at the knees.  She spoke to the police in Mandarin as she was not able to speak Cantonese well at that time.  After Y had told her she Y and her baby son she was pushing in a pram walked back home from the school which took about 20 minutes.  Soon after they arrived home PW6 and other police officers arrived at their flat.  She told PW6 what Y had told her.  Y was then interviewed by PW6.

49.  Initially Madam C was unable to recall when was Y’s last date of her tutorial class whether it was the 5 or 12 January however she recalled later in her testimony that it should have been 5 January. 

50.  In cross-examination C was asked matters other than the complaint by Y to her. They were principally about her going to the tutorial centre and having a quarrel with the defendant on 5 January 2013 and about pressure felt and put on her daughter Y. 

51.  It was suggested by the defence that C went to the tutorial to deliver a maths text book from her school on 5 January which Y had forgotten to bring and that an argument ensued.  In the argument C was blaming the defendant for Y’s inability to complete her maths homework on time.  This was all denied by C. 

52.  C said she had gone to the tutorial centre on 5 January as she wanted to speak with the defendant about the method he was teaching Y to do multiplication and there was no argument.  She did however speak to him for about 10 minutes in the corridor by the lift.  When she went to the centre she was only able to see into the living room area however she did not see Y there but knew Y was at the centre having tutorial. 

53.  As to the length of the maths tutorials C said they would be arranged for 1½ hours, however sometimes they run would longer than that.  They would be longer as the defendant told her Y was very slow when he taught her how to do homework and she did not know how to do it.  She however still paid a flat fee of $600 a month no matter how long the tutorials were.  On 5 January the tutorial that Y attended was for about 3 hours from 5 pm to 8 pm. 

54.  C denied all suggestions put by Mr Percy counsel for the defendant which were inter alia :-

(a) that C had instructed the defendant not to release Y until she had finished her school homework,

(b)that on previous occasions Y had been unhappy or upset that she was made to stay at the tutorials so late and for so long,

(c) that C was putting undue pressure on Y by continuing with the maths tutorial with the defendant and

(d)that Y did not like her maths tutorial.

55.  C was asked about how Y was when she returned home on 5 January.  C said that on 5 January when Y returned home after the tutorial with the defendant she was very upset, almost crying but not crying.  It was the first time she had seen her in that condition.  She concerned and therefore asked Y what the matter was.  Y told her that the defendant had scolded her for using a pen and not a calculator to do a maths problem.  After hearing that C telephoned her English tutorial teacher Ivy to ask her why Y was so unhappy that day.  C said she did not call the defendant but called Ivy instead as Ivy was at the tutorial centre that day and she would have known what had happened.

56.  Madam C eventually recalled that 5 January 2013 was the last tutorial that Y attended.  She remembered Ivy had told her that the defendant was out of Hong Kong on Saturday 12 January and her recollection was that she was told the defendant went to Sichuan. 

57.  Girl X’s evidence

X was 8 years old on 13 January and at the time she gave evidence. She was attending primary 3. She attends school from 8 am to 3.20 pm. She attended English tutorial twice a week and attended maths tutorial every Saturday. However her maths tutorial was changed from Saturday 12 January to Sunday 13 January since she was having a maths exam at school on Monday 14 January.

58.  At 5 pm on Sunday 13 January she went to her maths tutorial at the tutorial centre.  The tutorial was to be for one and a half hours from 5 pm to 6.30 pm.  There were two other students at the tutorial.  They were both boys in primary 4 and primary 6.  They were sitting in the small room on the left of the living room at the table with the defendant.  One of the boys was her neighbour the other she did not know.  The one she did not know was sitting next to her.  X sat at the shorter end of the table while the defendant sat at the longer side of the table. 

59.  During the tutorial the defendant would sit down at the table and correct exercises done by the students. 

60.  When she attended the tutorial on Sunday she was given exercises to do by the defendant.  When she had completed her exercises he had given her she stood up off her stool to hand the paper to him.  The defendant however then came over to her and stood behind her.  She was facing the desk and the defendant was behind her.  He then reached his hand around her waist and put his hand into her tight pants. 

61.  X described the defendant pulling open her pair of elastic waistband pants with his left hand then using his right hand to reach inside to touch her private parts under her underpants.  She felt his fingers on her private parts where she would “wee-wee” or the part that was used for urinating.  She said that the defendant put his finger onto her parts she used for going to the toilet.  When he did that she felt disturbed.  He had inserted his fingers in her pants for about thirty seconds.  After that he withdrew his hand. 

62.  After that the defendant went to teach her neighbour then he went back to her a few minutes later.  He again pulled open her pants and reached his hand inside under her underpants and touched her private parts again for about 30 seconds.  She said that the defendant did not say anything while doing this to her but talked about the maths exercise that she did in the tutorial.  He was expressionless. 

63.  X said although the two boy students were in the room they did not see what was happening as they were doing their exercises with their heads down.  After that she continued to the end of her class until she called her mother to pick her up when class finished.   

64.  At the time the defendant was touching her private parts she felt very embarrassed.  She dared not say anything because there were other students there and she feared they would know.  She therefore remained silent. 

65.  When she returned home she did not tell her mother that the defendant had touched her.  However her mother told her that the defendant had called her mother when they returned home.  She recalled that her mother said the defendant had asked if he had given too many assignments to her creating pressure on her.  She replied to her mother that she would do her best in the exam the next day. 

66.  The following day Monday during her lunch time, her mother went to her school to give her medicine for her nose allergy.  After she had taken her medicine she told her mother she had something to tell her.  She then told her about the defendant touching her private parts in the tutorial the day before. 

67.  Under cross-examination X said that she was very tired when she went to the maths tutorial at 5 pm.  She was not feeling enthusiastic about her maths exam.  She denied being under any pressure by her parents or herself to do well, although she had hoped to be amongst the top three in her class. 

68.  X demonstrated that when she stood up the table reached the level of her chest.  Anything below her chest would be under the tabletop.  She said that the defendant did not reach over her head but moved around her waist to put his hands into her underpants.  When she was standing up, the defendant was sitting on her stool that she had just got up from.  She was standing between his legs or his knees at the time. 

69.  On the second occasion X said that when the defendant touched her on her private parts she said she was sitting on her stool and the defendant sat on another wooden stool behind her.  He did the same thing to her in that he put his hands inside her underpants to touch her private parts.  She did not know why the defendant went over to her the second time.  She agreed that the table was small enough to hand her completed exercises to the defendant across the table however she did not know why the defendant went over to collect her completed exercises. 

70.  She believed that she left the tutorial that day later than usual at about 8 pm as the defendant told her he would give her exercises to work on for her exam coming up the following day.  

71.  X denied the suggestion by Mr Percy, that she had been unhappy with her maths tutorials.  She denied the suggestion that before that tutorial she had decided that she did not want to carry on with the maths tutorials.  Contrarily she said in re-examination by Mr Arthur counsel-on-fiat that it was only after the touching by the defendant that she did not want to carry on with the tutorials because she knew that the defendant would touch her again. 

72.  Under detailed cross examination by Mr Percy, X said she reached home about 10 minutes after the tutorial had finished.  Upon arriving home she continued with her revision in her bedroom whilst her mother cooked her dinner.  She then had her dinner and watched TV with her mother.  After that she went on to look at her school internet and thereafter went to bed.  She went to her maths exam in the morning and after her mother went to give her medicine for her nose allergy she told her mother about the defendant. 

73.  X telling her mother Z about the touching by the defendant

X said that she after she returned home from the tutorial and just before she went to sleep she had intended to tell her mother about the defendant touching her. She said that usually her mother would be in her bedroom and wait for her to go to sleep. However that night her mother left her alone in her room to sleep and therefore as she did not see her mother she forgot to tell her mother before she went to sleep.

74.  Immediately after X said she had forgotten to tell her mother Mr Percy promptly suggested to her that she did not tell her mother because the incident never happened.  Without any hesitation X swiftly disagreed.

75.  X recounted that she did tell her mother about the touching by the defendant the following day.  She her mother at school when her mother came to give her the medicine.  After she told her mother, she went back to classes but her mother took her out of school earlier that day at about 3 pm.  Her parents then took her to the police station.

76.  X’s mother’s (Madam Z’s) evidence

Madam Z was the mother of X. She was married and had 2 children X and a 15 year old son. Commencing from last year 2012 X had extra tuition in maths by the defendant. X attended went once a week. Every Saturday.

77.  The tutorial on Saturday 12 January 2013 was changed to Sunday 13 January as her daughter was having a maths exam on 14 January 2013.  The defendant made the change of the class from Saturday to Sunday 13 January in the afternoon from 5 - 6.30pm as he knew her daughters exam was coming up.

78.  On Sunday 13 January she sent X to the tutorial. When X finished her tutorial X called her and she went there to pick X up at about 7.30 pm.

79.  When she returned home the defendant telephoned her and asked her if there was anything unusual about X.  Madam Z replied there was not.

80.  On the following Monday morning X went to school and had her exam in the morning. Previously a doctor had prescribed X some medicine for her nose allergy so at lunchtime before 1 pm she brought the medicine to X at her school.

81.  Z saw X at school during her lunch break on the hall on the ground floor.  X took the medicine.  After taking her medicine X said "mummy there is something I'd like to tell u."  She said "mummy I feel that this tutor Maksim gor gor is a bit strange.”  Then Z asked her how was he a bit strange.  X told her that when the tutorial class was about to finish Maksim gor gor inserted his hand to touch her private parts that was used for urinating.  Z asked X if at that time she said anything to tell him to stop.  She said she was very scared and she didn’t dare to say anything.  Z asked her if she was feeling any discomfort on her private part used for urinating.  X said no.  Having been informed by X about the touching Z informed her husband.  Her daughter went back to class for a short while she waited for her husband to collect them from school.  She took her daughter away from school early before school finished to make a report to police.

82.  From school they went to Sheung Shui Police Station to make a report at about 3 pm.  The police said that day that they wanted to interview her on video but as her daughter was having exams the next day Z declined to have it on that day.

83.  Eventually X went to the police station on the following day 16 January to have the video interview about the incident with a WPO. 

84.  In cross examination Z agreed that she and her husband sent X to tutorial in about September 2012 as her maths was not good. That her daughter had a busy schedule after school attending tutorials.  Z denied her daughter was under pressure but admitted that just before exams she might feel under pressure.  She denied that before X complained of being touched that X did not want to attend maths tutorial. 

85.  It was further put to Z but strenuously denied that the defendant had telephoned Z in the evening after the tutorial as he was concerned with X’s low mood caused by getting too much homework. 

86.  Madam Z stated that the defendant called her to say “Madam Z, is there anything unusual about X?”  she replied to the defendant nothing unusual she is eating now thank you very much.  Madam Z told X that the defendant had called as he was very concerned about her examination tomorrow. Madam Z said she was in fact very happy to receive the call from the defendant, she had never received a call from him before this one.  She denied the suggestion by Mr Percy that the defendant made monthly phone calls to her or her husband to up date them about their daughter X.

87.  It is not necessary for me to set out the evidence of the WPO’s PW5 and PW6 and the complaints made to them by X and Y.

88.  DW1’s evidence

DW1 is the defendant’s brother. He is 16 years old. He was interviewed by the police about the tutorial on 5 January on 19 February 2013. He stated that he was at the tutorial with Y, X, students Steven, Kelvin and the defendant on 5 January. He remembered X only came for about half an hour in that tutorial from 4.30 to 5.00 pm. He also recalled that the defendant had left the tutorial for about half an hour to an hour as Y’s mother had come to see him. He heard them quarrelling.

89.  He went to assist the defendant to correct the exercises by the students there or the work left behind by other students.  He had assisted the defendant on previous occasions but 5 January was the last date that he assisted the defendant. 

90.  About an hour before Y left the tutorial he had seen Y cry because the defendant had scolded her.  Y had asked him about her homework and defendant scolded her for not learning it yet.

91.  He never saw Y leave the room and he did not see Y push the defendant.  He did not see or notice anything unusual.  He said the defendant did not move around during the tutorial. 

92.  Submissions

I have taken into account all the submissions and evidence made before me. I will not reiterate all the submissions made but will just deal with the salient ones. The fact that I have not mentioned or referred to a submission or evidence does not mean I have not considered it in arriving at my decision.

93.  Mr Percy’s principal grounds were that the girls X and Y were not credible witnesses.  He referred to a number of inconsistencies in their evidence as well as their evidence with other witnesses.  It was his submissions that these allegations were very easy to make but difficult to refute.  He suggested that the motive for the girls fabrication of their account of the indecent assault was because the girls were under too much pressure from home and tutorial homework and did not want to carry on with their maths tutorial any longer.

94.  Analysis

The main question is therefore were these false or invented accusations by the girls X and Y? In answering this question I turn to consider the credibility of X and Y.

95.  Reliability of girl Y as to the date of the touching being on 5 January and not 12 January

Mr Percy submitted in depth of the fact that Y gave contradictory dates as to the date the touching by the defendant occurred. He submitted that if Y was mistaken or wrong about the date she alleged the offence occurred then her reliability and credibility as a witness was undermined.

96.  The evidence was that when Y told her mother and the WPO on 15 January of the date of the indecent assault by the defendant that she was referring to Saturday 12 January.  It was not until the video recorded interview and further adopted by her in her testimony that she said she was mistaken about the date of 12 January and that the actual date was 5 January.

97.  The evidence was that maths tutorials were usually conducted every Saturday.  The 5 and 12 January were both Saturdays. So which Saturday was it?  I was satisfied that Y was honest and reliable when she corrected the date from 12 to 5 January for the following reasons when looked at either together or on its own. 

98.  I accept Y’s evidence that the correct date of the indecent assault on her was 5 January and she had recollected 12 January date incorrectly.  I believe by the time she remembered the correct date on 15 January the police officers were no longer in her presence.  It therefore follows and is wholly understandable that Y told the police officers of her mistake at the next opportunity.  That next opportunity was the following day when she went to the video recorded interview.  From the video interview it can be seen that the interviewing WPO mentioned that Y had told another police officer before the interview about the incorrect date.  This was clarified by the interviewing officer when she spoke to Y at the video interview conducted on the 16 January.  In that interview Y corrected the date.  Y explained in the interview why she remembered that it was not 12 January.  She said on 12 January she had gone to the tutorial centre and was told by Ivy that the defendant was away in Sichuan.  I wholly accept her account.  Her recollection is further supported by the evidence below of her mother, X and DW1.

99.  Y’s mother remembered being told by Ivy that the defendant was not in Hong Kong as he had gone to Sichuan and there was no tutorial on 12 January. 

100.  X and Y stated clearly that they attended tutorial together on 5 January.  X did not attend maths tutorial on Saturday 12 January as that was changed to Sunday 13 January.  As X did not attend a tutorial on 12 January Y could not have been present with X. 

101.  DW1 said that the last tutorial he assisted the defendant was on 5 January 2013.  He did not assist him any further after that date.  He was therefore not present on 12 January.  Y therefore could not have been present with DW1 on 12 January.

102.  The evidence of X, Y and DW1 show that the only tutorial that they were present at together was on Saturday 5 January.  X, Y and DW1’s evidence support each other’s evidence that they attended the same tutorial on 5 January.  This confirms Y’s evidence that 12 January date was incorrect. 

103.  Y could not have been at a tutorial with DW1 or X on 12 January as they were not present at a tutorial on that date.  Therefore discernibly the only tutorial Y attended together with X and DW1 was Saturday 5 January. 

104.  Moreover Y and her mother evidence support each others.  They were told by Ivy that the defendant was away in Sichuan on 12 January when Y attended at the centre.  It can be seen from the admitted facts exhibit PA2 however the defendant was present in Hong Kong on 12 January. This does not undermine their evidence as this is what they were told by the defendant’s cousin Ivy.  What they were told was that he was not in Hong Kong.  This is not something they would have known had they not been informed.  It is clear from the admitted facts that the defendant departed Hong Kong on 6 January and returned to Hong Kong on 11 January at 1923 hours.  Clearly the defendant was abroad for the week.  I do not believe their evidence of the defendant being abroad was purely coincidental.  I accept of course that what they were told was hearsay and is not the truth however that is the explanation that they gave for remembering there was no tutorial and I accept it. 

105.  I was satisfied that Y was reliable and accurate when she said the date she was touched was 5 January. 

106.  Inconsistencies in the evidence of Y and others

Mr Percy referred to a number of inconsistencies in Y’s evidence and her evidence with the other witnesses evidence in the trial. He submitted that this showed she was an unreliable witness. I have referred to some below.

107.  Persons present in the tutorial on 5 January

Mr Percy submitted that there was inconsistent evidence between Y and DW1 and X as to the number and names of the students at the tutorial on 5 January. Y said there were only three including her who were Jerry, X and herself while DW1 said that there were four students who were X, Y, Steven and Kelvin. When X was cross-examined X said she remembered Y was in that tutorial with her but could not remember who else was in that tutorial but then she later agreed with Mr Percy that the other students were Steven and Kelvin.

108.  Remembering the persons present at the tutorial is not significant.  Witnesses’ memory as to participants at the tutorial may differ.  This does not mean they are not telling the truth.  What is however significant about DW1, X and Y’s memory is that it is consistent with each other in that they remembered each other were there.  Both Y and X said they were at the tutorial together.  DW1 said he was present with X and Y.

109.  The table used in the small tutorial room

Both X and Y said that the table used in both tutorials was the black folded table depicted in photo 11. DW1 said that on 5 January that was not the table depicted in photo 11. DW1 said that the table used was not a folding table as seen in the photo and also it was creamy white in colour and not black.

110.  I turn here to deal with DW1’s evidence.  DW1 was shaken in cross-examination by Mr Arthur’s powerful cross-examination.  I was satisfied he was an unreliable witness.  He was a witness who was prepared to guess when giving evidence.  I was satisfied that he was saying anything to assist or favour his brother the defendant despite the untruths.  DW1 said he did not have a watch or a clock during the tutorial yet he was able to give precise times of students arriving and leaving and the defendant returning to the tutorial after seeing Madam C.  He acknowledged he was guessing.  DW1 said he was close to the defendant yet he had forgotten when the defendant went abroad and if he had left to China.  He was not sure if the defendant went to Sichuan.  I found his account far-fetched that despite him living with his brother he could not recall when his brother left and to where yet he could recall all the details of the tutorial on 5 January when there was nothing extraordinary about that tutorial.  DW1 had assisted the defendant in many tutorials previously, I was not persuaded that he was able to remember the minor details as he recounted.  How did DW1 recall the small details that Y did not leave the room at all?  How did he recall the defendant did not leave the room at all except when Madam C came?  Y on the undisputed evidence was at the tutorial from 5 pm to 8 pm at least 3 hours.  I would have been surprised if Y did not need to leave to go to the washroom during this period of time.  Y in fact did say she had gone to the washroom during the tutorial.  Her account is very plausible given the lengthy time she spent at the tutorial.  

111.  It was also shown that DW1’s eye sight was unreliable.  Despite being shown the video tape of Y’s video recorded interview where she was clearly depicted he said that he was unable to recognise her in the video.  Nevertheless despite saying it was a blurry picture he was said he was able to recognise it was Y. 

112.  DW1 said he did not know who X was until the day before he gave evidence.  In his evidence in chief he referred to the girls X and Y.  He had never mentioned X in his statement to the police on 19 February 2013, yet surprisingly in his testimony he was able to mention many detailed and minor matters about X in reference to the tutorial on 5 January some eight months previously.  I found doubtful that DW1 would have such a detailed memory of X and the events of that tutorial some eight months later.  The defendant scolding Y and making her cry would on the other hand be an event to recollect. I was satisfied that DW1 correctly remembered Y crying in the tutorial on 5 January and that X and Y and other students were present on that date.  I accept that 5 January was the last tutorial he assisted the defendant. 

113.  Did Y and her mother walk home or take a bus home from school on 15 January

Both Y and her mother said after she was collected from school on 15 January they walked home. They both remembered they walked home because whenever the mother C had the baby and the pram with her they would walk as it was inconvenient to get on a bus with a pram. This however was contrary to PW6’s evidence when she said Madam C told her that they were on the way home from school on a bus.

114.  When Madam C was talking to PW6 on the telephone Madam C said at that time she was very emotional and her legs went weak as a result of what Y told her.  Madam C said she remembered talking to PW6 in Mandarin as her Cantonese was not so good then.  It may be that Madam C was not talking so coherently (as was demonstrated similarly in her evidence at this trial). PW6 may have heard C say she was on bus or even that Madam C said words to the effect she was on a bus however nothing turns on this evidence.  It is not material in my consideration.  What I do however accept is that Y and Madam C walked home because they always did so when the baby was in the pram.  Their evidence supported each others.  I do not believe they colluded or rehearsed this evidence amongst themselves. 

115.  Inconsistencies and observations of X’s evidence

Mr Percy submitted that X gave inconsistent evidence as to how the defendant put his arm around her to touch her private parts. He submitted :-

(i) In X’s video interview she stated that the defendant reached over her right shoulder while she was standing up whilst in her testimony she said the defendant never reached over her shoulder but his hand went around her waist.

(ii) In the video interview X said she was standing up when the defendant touched her whilst in her testimony she said the first time the defendant touched her she was standing up but the second time she was sitting down.

(iii) In X’s video interview or testimony she did not mention the defendant touched her “pat pat” or thigh even though that is what s WPO PW5 said X told her when she saw her at the police station on 13 January.

116.  When X was recounting how the defendant touched her in her video recorded interview at no time did X ever freely recall herself that the defendant reached over her shoulder to touch her private parts.  Those words came from the WPO in the form of a leading question.  At counter 323 of the transcript (exhibit P5A) the WPO said to X “That means (he) reached his hand inside over your shoulder, is that correct?”  In answer to that at counter 324 X said “mm” “mm.” 

117.  Whereas in her testimony X freely and clearly explained when questioned in her own words that the defendant put his hand around her waist, opened her pants and inserted his hands in her underpants. 

118.  I was satisfied that X may have confused what actually happened with the answer suggested by the WPO and replied with an affirmative answer. 

119.  In the video interview X was asked about how the defendant touched her.  On each of the two occasions she described how he put his hand into her underpants and touched her private parts.  The upshot of her evidence appeared to be that he did this when she was standing.  In cross-examination she said she was sitting on the second occasion. 

120.  The fact that she did not mention she was sitting down when she was touched on the second occasion in the video interview is not critical. X is an 8 year old girl being asked to describe a very traumatic incident.  Her omission of this specific detail is not extraordinary.  The fact that her she did not mention it or that it was inconsistent with her earlier version is not evident of her not telling the truth.  All along she was consistent with her evidence that the defendant touched her twice inside her underpants on her private parts with his fingers. 

121.  X never said in the video interview or testimony that she was touched on her pat pat (bottom) or thigh.  All along she had said she was touched on her private parts.  If X had told PW5 that that was where she was touched (as well as her private parts) that is reasonable.   X had stated that the defendant used his fingers to touch her private parts in her underpants.  The bottom and thigh areas are very close to her private parts.  PW5 made clear when she interviewed X she was only getting an initial understanding of the incident, she was not going into any details.  Once she had sufficient evidence she went to report to her senior.  The discrepancy in X’s account is of no substance.  Materially the consistency in X’s complaint was that she was touched on her private parts and she had maintained that account to her mother, PW5, in her video interview and in her testimony. 

122.  Neither DW1 or X or other students observing the touching by the defendant on X and Y

It was not the prosecution case that either X or Y complained when the touching occurred. They did not complain or cry out in the tutorial to the other students, the defendant or DW1 in the tutorial. Y pushed the defendant away with both hands. The fact that the other students or DW1 did not see them being indecently assaulted or did not see Y push the defendant does not prove or mean that no indecent assault or pushing took place. It is clear from the evidence by X and Y during both tutorials on the 5 and 12 January that the other students and DW1 were focused on doing or correcting their exercises during the tutorial. Furthermore on the evidence the touching by the defendant on X and Y was out of sight of the others as the girls private parts were below the table they were sitting or standing at or the defendant was positioned at an angle.

123.  I turn now to consider other prosecution evidence.

124.  The defendant telephoning Madam Z after the tutorial on 13 January

Madam Z stated soon after X returned home the defendant telephoned her. Madam Z said she was very happy to hear the defendant’s voice as she thought that he was concerned about X doing well in her exam the following day and that he was asking about her well being. This was the first time the defendant had telephoned her.

125.  The reasons for telephoning her as suggested by the defendant were all rejected by Madam Z. 

126.  I was satisfied that the defendant telephoned her not because he was concerned about X’s progress in maths or that she was under stress from homework.  The timing of the phone call and the fact that it was the first and only time since X had been going to the defendant’s tutorial is noteworthy.  Why did the defendant suddenly out of the blue telephone Madam C and ask her if there was anything “unusual” about X?  The words “unusual” are specific.  It is not for me to guess or make any assumptions however in all probability the defendant knowing full well what he had done was either eager to see if X was upset or affected from his touching of her or was curious if she had even told her mother what had happened.

127.  Complaint of X and Y to their mothers

Both girls complained to their mothers about the defendant’s touching. On the evidence X made a recent complaint to the mother the following day approximately 18 hours after the touching.

128.  X’s complaint to her mother was made at an early opportunity shortly after the incident.  The statement by her was spontaneous in the sense that it was an unassisted account of what the defendant did.  It was made immediately after the mother had given her some medicine.  The complaint made by her was not made as a result of any questioning or prompting by her mother.  X described to her mother where and how the defendant touched her. 

129.  Y’s complaint to her mother on the other hand was made some 10 days after the incident and on account of her mother asking her if the defendant touched her.  I accept that the answer from Y came as a result of prompting by the mother, however the mother’s prompting did not suggest to Y how the defendant touched her.  Her asking if the defendant touched her was very neutral.  Touching could be in a number of ways, the defendant could have touched her on her arm or back.  There was nothing asked about indecently assaulting or touching her on her private parts.  After the neutral question posed by Y’s mother Y herself unprompted said that the defendant had touched her urinating parts.  I was satisfied that I could place weight on the complaint made by X and Y to her mother.

130.  The fact that the complaint was made by X and Y is however not evidence of the facts complained of but evidence of the consistency of the girls conduct with their testimony. 

131.  Y’s mother’s observation of Y after the tutorials on the 5 January

When Y returned home Madam C saw that Y was upset almost crying. The first time Y mentioned she was crying was in her testimony. The mother did not know she had been crying. C immediately telephoned Ivy as she was concerned about the condition of her daughter. It was clear that her perception was correct as confirmed by Y and DW1. Y was clearly upset when she returned home. This is evidence of Y’s distress caused by the defendant scolding her and of him touching her. It supports the fact that Y was upset because the defendant had indecently assaulted her.

132.  Credibility of the Prosecution witnesses

The prosecution witnesses were searchingly cross-examined by Mr Percy no stone was left un-turned. Detailed lengthy cross-examination was made of the girls and their mothers. Precise details were elicited, these details varied between the witnesses themselves and/or to their initial accounts made to the police. It comes as no surprise that as a result of precise details inconsistent accounts arise. I bore in mind particularly that girls X and Y were 8 and 9 years old. The witnesses were giving evidence about events that occurred eight months previously. The inconsistencies in the evidence were not material. They did not demonstrate that the witnesses were unreliable and untruthful. I found the prosecution witnesses to be honest and reliable witnesses. Although Madam C, Y’s mother did not always answer the questions with a relevant answer and at times showed a complete misunderstanding to some simple questions, this however did not show her to be unworthy of belief. It was apparent that Madam C was still rather troubled about the indecent assault on Y and that was paramount in her mind in her evidence.

133.  Credibility of X and Y

I have borne in mind that each charge is to be considered individually. My decision on whether the prosecution has proved the case beyond all reasonable doubt against the defendant is looked at in isolation of both charges, and in isolation of the evidence adduced in relation to the other charge.

134.  I shall however make my observations on X and Y together for fear of repeating myself.  Could the girls X and Y be mistaken, fabricating, or inventing their accounts? 

135.  This was not the girls first tutorial with the defendant. They had both been attending tutorials with him since September 2012 for some four months.  There was no discussion amongst themselves about the incidents.  Both girls denied the suggestion that they did not want to continue with maths tutorial as there was too much pressure on them from homework and tutorial work or extra curricular activities after school. 

136.  There was no suggestion made by the defence of any grudge or dislike to the defendant.  There was no evidence of any grudges with the defendant.  They did not say they did not like him.  Nor did they say they did not want to continue with maths tutorials before they were touched by the defendant.  

137.  X and Y were very articulate, mature and intelligent for their tender years.  It was clear to me that they knew the clear difference between lies and the truth.  They showed a very obvious understanding of the importance of telling the truth.  Despite their youth they were able to understand difficult and meticulous questions.  They were expressive and positive in their answers.  If they did not understand a question they said so.  They were swift to disagree with anything put to them that they did not agree with.  They both unwaveringly disagreed with the suggestion put to them that they had fabricated their accounts against the defendant. 

138.  An example of Y’s maturity is the following exchange between Y and Mr Percy:-

Q. although you (X and Y) go to different schools u do meet and socialize on the estate?

A we don’t socialize but we do meet.

139.  Y had a good understanding of the question.  Her reply was very grown-up and clear.  Children do not usually use the term socialise but “play or hang out.”  I was satisfied that there was no discussion or collusion as hinted by Mr Percy between X and Y concerning the indecent assaults. 

140.  I do not believe that they invented their story. I do not believe they would be conniving and spin a tale against the defendant. I found them to be telling the truth. 

141.  I was satisfied that both X and Y were honest and reliable witnesses. 

142.  Conclusion

On the evidence before me I was satisfied beyond all reasonable doubt that the defendant is guilty of both charges. The defendant is convicted of charges 1 and 2 accordingly.