HKSAR v. LAM SAI MIU

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. CACC 81 OF 1998
(ON APPEAL FROM DCC1234 OF 1997)

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J U D G M E N T

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Chan, CJHC (delivering the judgment of the court) :

1. The Applicant was convicted after trial before Deputy Judge Duggan in the District Court of one count of indecent assault. He was sentenced to 3 1/2 years' imprisonment. He now applies for leave to appeal against conviction.

2. The complainant was at the time of the trial an eight year old girl. Her parents were separated and she was living with her mother. In the early part of 1997, her mother had to go to China from time to time on business trips. During those trips, the complainant was left in the care of a lady who was a neighbour living in another flat in the same building. The complainant would stay in the neighbour's flat. The Applicant is the husband of the lady. On those occasions when the complainant had to stay with the Applicant's family, she would sleep in the same bed as the lady, the Applicant and their 2 year old son. There were two other children in another room. According to the complainant, on a date in January 1997, before day break, after the lady had apparently gone out to work, the Applicant removed her trousers and briefs and, to use the complainant's own words, :

"used his fingers and urinating part to bother my urinating part."

After the act, the Applicant used a tissue to wipe the complainant's urinating part and then his own. The complainant also said that the same thing happened on other occasions in the months that followed.

3. Several months later, during a casual conversation between the complainant and her mother, when her monther warned her to be careful of indecent assault by others, the complainant told her mother about what the Applicant did to her. The matter was then reported to the police. The complainant was interviewed by a police officer in the presence of a social worker. The interview was video-taped and was used as evidence in chief. She was also cross-examined on the CCTV. Her mother also gave evidence as to how the report came about.

4. The Applicant was legally represented at the trial. He elected not to give evidence or to call any witness. It is only fair to say that apart from the denial to the charge, no real defence was put up, although one could possibly be gathered from the cross-examination of the complainant and her mother. In essence, it was suggested to the complainant that the Applicant on the night in question when they were sleeping together in the same bed, might have got up to go to the toilet and accidentally pressed on the complainant and that the complainant might have mistaken that to be the act which bothered her. She denied that suggestion. It was also suggested to the complainant and her mother that her mother might have a grudge against the lady neighbour and that she had discussed with the complainant as to what the complainant should tell the police. This was also denied by the witnesses.

5. The trial judge dealt with the evidence carefully. He warned himself of the danger of convicting without corroborative evidence as there was indeed no corroborative evidence in this case. He also reminded himself of the Applicant's clear record. However, in his judgment, he was satisfied beyond reasonable doubt that the complainant was truthful and reliable notwithstanding her young age and that she had not exaggerated the evidence.

6. In this application, the Applicant relies on a number of grounds. The first ground is that the judge was unfair in that he had helped the prosecutor in questioning the female victim. It is not in doubt that the complainant was a witness of tender age. There are clearly inherent difficulties in trying to get her to tell what had happended and to answer clearly questions put to her in cross-examination. It is, therefore, quite proper for the judge, while trying to be as fair as possible to both the prosecution and the defence, to assist the young witness in clarifying and simplifying the questions put to her. We do not see anything unfair in that.

7. Another ground of appeal is that there are inconsistencies between the evidence of the complainant and that of her mother, but the judge resolved such inconsistencies by describing them as the misunderstanding of the witnesses. It is said that the judge was unfair. In our view, the so called inconsistencies only relate to how the matter came to light and got to be reported to the police. They are not particularly relevant to the main issue in the case. It would seem that the most important question is whether the complainant's evidence regarding the Applicant's indecent assault is true and reliable. The trial judge was well aware of these inconsistencies and had considered all the evidence before him in the light of these inconsistencies. Having warned himself of the danger of convicting without corroborative evidence and alerted himself to these inconsistencies, the trial judge was still satisfied beyond reasonable doubt that the complainant was truthful and reliable. Apparently these inconsistencies had not affected the complainant's credibility.

8. From the trasncript, it is clear that the complainant's evidence on the crucial part of the incident is clear and unequivocal. She obviously knew the diffence between truth and imagination. Her evidence did not come out as a result of any prompting at all. During the cross-examination by the Applicant's lawyer, she was misled in a number of minor aspects. However, when she came to the important parts, she was clear and adamant and stuck to what she said during the police interview.

9. Another ground of appeal is that there was no corroboration. This of course is correct. But as mentioned earlier, the judge had clearly reminded himself of the inherent danger and yet was able to be satisfied that the offence had been committed.

10. The Applicant also complains that there was no medical evidence. The trial judge was clearly aware of that and made a specific mention in his Reasons for Verdict. However, in view of the fact that the offence was committed over one year before the trial and that it was an indecent assault case, he came to the view that the lack of such medical evidence was not fatal. We do not think the judge can be criticised.

11. It is also submitted by the Applicant and that the complainant could only refer in detail to a one instance and was not able to describe the other alleged instances which she had mentioned during her interview with the police. This is in fact correct. But given her young age and knowledge of these matters, this is not surprising. In fact she did not disclose what happened to her in January 1997 until she was asked 6 months later. The prosecution had originally laid two other similar charges against the Applicant but in view of the fact that the complainant could not give any detail regarding the other instances, the Applicant was acquitted of these other charges.

12. We have carefully considered all the points made by the Applicant. We cannot see any merit in any of these points. The application must therefore be dismissed.

13. We would, however, note that the application has been dragged on for quite some time. The Applicant, notwithstanding the lack of merit in this application, had put up excuse after excuse. He initially applied for all the transcript and submissions by counsel. He then applied for a Chinese translation of the transcript. He was finally provided with the translation of the Reasons for Verdict. Before the hearing of this application, we warned the Applicant that if having heard him, we took the view that there was no merit in his application, we would seriously consider ordering a loss of time. For the reasons which we have given, we do find that there is indeed absolutely no merit in the application. We think that this is an appropriate case to exercise our power and order that there be loss of time for 4 months and we so order.