HKSAR v. LI SIK HO, FRANKI

CACC 6/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 6 OF 2006

(ON APPEAL FROM HCCC NO. 139 OF 2005)

______________________

______________________

___________________________________

REASONS  FOR  JUDGMENT

__________________________________

Hon Stock JA (giving the Reasons for Judgment of the Court):

Introduction

1.  The applicant was convicted on 24 November 2005 after trial before Deputy High Court Judge Toh and a jury of a series of sexual offences with the complainant who is his daughter.  He applied for leave to appeal against those convictions and on 6 July 2006, we dismissed that application and said that we would in due course give reasons.  These are those reasons.

The Indictment

2.  There were six counts on the indictment:

(1)    An allegation of gross indecency with a girl under the age of 16 years, the offence said to have taken place in 2002 in a room at the Shek Lei Estate in Tsuen Wan, where the applicant and his daughter and wife were living together with his mother-in-law.  At this time the complainant was aged about nine years.

(2)    An assertion of an indecent assault between September 2002 and 30 September 2003 at a staircase at the Shek Yam Shopping Centre in Tsuen Wan.

(3)    An assertion of a further indecent assault between March 2003 and the end of June 2004 in a room in the Sing Shing Building, Tsuen Wan, to which the applicant, his wife and the complainant had by then moved.

(4)    An indecent assault said to have taken place in June 2004 in the same room.

(5)    A count of rape.  The allegation here was that the applicant had raped his daughter at their home in a room in which she was lying on a bunk bed he, so it was asserted, taking off her clothes and inserting a portion of his penis into her private parts causing her pain.

(6)    A further allegation of indecent assault between June and September 2004, once again at the home in the Sing Shing Building.

The verdict

3.  The jury convicted the applicant unanimously on all counts save the third in respect of which they convicted him by a majority.  The judge sentenced the applicant to a total of 12 years’ imprisonment.  There was no application for leave to appeal against sentence.

The evidence

4.  The evidence before the jury involved a direct conflict between that of the complainant and that of the applicant.  In January 2005 she was interviewed and the interview recorded on video tape and that was played before the jury, as her evidence in-chief.  It suffices at the moment to say that in that video interview she provided a detailed description of each of the events said by the prosecution to constitute the offences charged.  There can be no question but that if what she was saying was true, each of the acts attributed by her to the applicant amounted to an indecent assault and, in the case of Count 5 rape, although whether on that count the evidence was enough to prove penetration is a matter with which the applicant takes issue and which we must specifically address.

5.  There was no medical evidence to support the complaint.  Indeed the applicant says that such medical evidence as there was undermined it.  She was examined by a doctor on 6 January 2005 and the doctor found nothing unusual with the urethral and vaginal opening.  The patient was too tense to permit a proper examination of the hymen. 

6.  Evidence was also given by the complainant’s mother, that is to say, the applicant's former wife.  By the time of the complaint, there had been a falling out between husband and wife.  They had separated, and one of the suggestions put on behalf of the applicant at trial was that the wife had coached the daughter what to say.

7.  The applicant himself gave evidence and his assertion was that the entire story provided by his daughter was untrue.  It was a made up story.  As to why that might be so, he suggested that he had been a strict disciplinarian when it came to his daughter’s education and had been driven to smack her several times and, furthermore, he suspected that his wife may have coached her to make false accusations against him.

The grounds of complaint

8.  In these proceedings, the applicant represented himself and he provided two sets of grounds of appeal, a shorter original set and a longer more recent one.  Although they descend into a long list of separate particulars, to some of which we shall shortly turn, one theme to be discerned within them is that the trial judge’s summing-up was not fair, that her terminology was weighted, and that she failed to mention certain factors in his favour whilst glossing over unsatisfactory aspects of the complainant's testimony.

9.  In relation to the summing-up we note that the trial judge emphasised to the jury on many occasions that they were not entitled to convict the applicant on any single count unless they were sure in respect of that count of his guilt.  She reminded the jury that the applicant had a clear record and of the relevance of that fact.  She accurately defined the ingredients of the various sexual offences with which he was charged and summarised in some detail the testimony of the girl as well as the applicant’s.

10.  In his original brief grounds of appeal, the applicant made four points including the following two:

(1)    That the judge failed to point out, let alone stress, to the jury that the complainant did not make any complaint between September 2004 and January 2005, a factor which he says was pertinent to his defence not least when one appreciates that in those months he, the applicant, was not living at home.

(2)    That  in addressing the jury the judge was "too emotional".

Neither of these points was addressed by Mr Lo, who appeared for the respondent, in his written submissions.  They should have been.

Analysis

11.  We shall deal first with the complaint about an emotive summing-up.  The applicant amplified this ground orally by suggesting that in course of her summing-up of the girl’s evidence concerning the alleged rape, the judge had put on a girl’s voice thereby rendering the atmosphere emotive.  

12.  We asked Mr Lo about this; what the respondent’s stand was.  Mr Lo told us that he had considered the point.  That is surprising because it was not addressed in his written submissions.  It was not mentioned at all.  It should have been.  It was a specific ground of appeal.  It was also surprising that he had not listened to the recording of the summing-up.  How he hoped fairly to deal with the point without doing so, we cannot say.  Be that as it may, he told us that he had conferred with trial counsel as well as with the officer in-charge of the case and that what had emerged was a view that the judge had imitated the tone of the witness to a certain extent and when pressed by us about what he thereby meant, he said that the judge had put on a voice that was not her own.  That was a dramatic concession.  It was again a surprising one for if indeed that view had been taken by counsel at trial and by the officer in-charge of the case and communicated to counsel on appeal in response to his deliberate investigation on the very point, one would have expected counsel on the appeal to have revealed as much in the written argument.  He would have been under a duty to do so.  But it was not revealed.  Indeed the ground itself was not mentioned by him in that document, let alone his assessment that supposedly supported it.  We expressed our deep concern that this assessment had not been drawn to our attention and no sooner had we done so, there was then a complete volte face by Mr Lo by which we mean a new stand to the effect that the judge had not put on a voice at all but had summed up in her usual way.  In the event, we listened, in open court, to the recording of the summing-up in its relevant parts and our conclusion was that there was nothing in this ground whatsoever.

13.  In relation to the complaint about the failure of the judge to point out the potential significance of no complaint between September 2004 and January 2005, this was indeed a matter omitted from the summing-up, in the sense that although the fact emerged that the applicant moved out from the matrimonial home in September and there was no complaint until January, the judge did not suggest that there was something odd about the gap or that the defence sought some support from the point.  It became obvious however why the judge did not do so: it is because no questions were put to the girl as to why there had been no complaint in the intervening period.  It is not a point upon which the defence had sought to capitalize at trial.  No doubt there was a sound tactical reason for the failure to do so but, it not having been pursued, the judge can hardly be criticised for not making a point which in the absence of such pursuit could carry little weight.

14.  We noted a number of other matters that the applicant had suggested enured to his benefit that were not pointed out by the judge in her summing-up, and we examined each.  It transpired, however, that they were points that could have been made, so he contended, on his behalf in the course of the trial but were not, so that, in the event, no criticism can be placed at the door of the trial judge for not having mentioned them.  For example, he said that it was a point in his favour that whilst his wife's relatives had visited from the Mainland between 2003 and 2004 and lived in the same premises, no complaint had been made by the girl about any indecent conduct, yet this had not been mentioned by the judge to the jury.  Yet the applicant conceded that this was not a point about which any questions had been asked either of the complainant or of her mother.  It had, in other words, not emerged in the evidence.  Then the applicant complained about the fact that the judge did not point out that the toilet in which indecent conduct was said to have taken place in respect of one of the counts was too small to allow of that conduct.  Yet when we pressed the matter, it was conceded by him that his counsel did not mention it on his behalf.  Counsel who appeared for this applicant at trial is a highly experienced criminal practitioner and we have no doubt but that had it been a cogent point in his favour that could have been made, it would have been made. 

15.  Of the other points made by the applicant there are a number which we specifically mention:

(1)    In relation to Count 2, the alleged indecent assault on the stairs of the shopping centre, the judge said that:

“If you feel that her evidence is credible, reliable and truthful and you are sure that it happened, then you must consider, understand the circumstances, was the assault done intentionally by the defendant on [the complainant] and that assault, did it happen in circumstances which you consider indecent and did the defendant to commit such an assault?  So look at what happened that [the complainant] has described as having happened and then you can properly come to your conclusion.” 

The applicant’s complaint in this regard is that the phraseology used by the judge is a supposition put by her to the jury that what the complainant described did indeed happen.  We find the last sentence in the passage we have cited odd and, with respect, somewhat meaningless but in the context of what immediately preceded it and in the context of the summing-up as a whole it was made sufficiently clear to the jury that no conviction could follow unless they were sure that the account given by the complainant was in fact a true account.

(2)    Then there is a complaint that the evidence did not suffice to warrant a conviction for rape because the only evidence that there had been any amount of penetration appeared in the testimony of the applicant’s wife who had said that the complainant mentioned penetration in January 2005. We do not agree with the applicant that the judge failed properly to direct the jury in this regard.  She advised the jury, correctly, that partial penetration sufficed for the purpose of an allegation of rape and of the evidence of the girl herself that "his portion of penis been put into my yin.”  She reminded the jury too of the girl’s testimony that at the time when he was pressing against her she felt pain, the judge adding: “So if you believe her evidence, if you think she is telling the truth, that may help you in considering whether there was unlawful sexual intercourse.”  The use of the word “think” in this context and in similar contexts elsewhere is loose and inappropriate but, given the fact that immediately after the use of it here, as elsewhere, the judge has expressly reiterated the need for the jury to be sure of the truth of the allegations before they could convict and in this particular instance that “the prosecution has to prove so that you are sure that there was penetration by the defendant’s penis into [the complainant’s] vagina”, the directions as a whole in this regard did not constitute any material misdirection.  The suggestion that there was reliance on evidence from the mother of the complainant that the complaint made by the girl to her itself contained an assertion of penetration is unwarranted because that assertion is only to be found in a written statement made by the mother which was not adduced in evidence.  There was no oral testimony as to the content of the complaint.

(3)    The applicant points to that part of the summing-up in which the judge reminded the jury of the evidence of the girl that “when her father was going to have sex with her, he would apply Mummy’s hand cream to his penis.  You will remember, members of the jury, that the defendant said that his wife had housewife's hands, she said, and so he bought her some prescription hand cream from Mongkok and that hand cream was put by the window in Sing Shing Building.”  Here we see the judge pointing to testimony that supports the girl’s evidence on a material matter, one of those indicia of truth to which a jury might well look.  The applicant’s point however was that the judge’s summing-up in this regard was erroneous because the evidence was that this was not hand cream in the ordinary sense in which that word is used, but a prescription ointment that he, the applicant, was unlikely to have permitted to be used upon his penis.  We think there is little in this point and the applicant is not himself able to say whether it was a point deployed on his behalf by his counsel. 

(4)    In relation to Count 2, the applicant complains about a suggested confusion by the girl on a matter which he suggests is of some importance.  It relates to Count 2, an allegation of sexual indecency at a staircase at a shopping centre.  In the summing-up the judge alluded to this as follows:

       “Then, further on in the tape, she goes on to describe what the prosecution says are evidence in relation to Count 2.  Count 2 is relating to what happened at grandma’s place.  You remember she gave an account about how she wanted to go out and the defendant hid her panties and forced her to wear her trousers without her panties, her underpants, and she said she thought it was very uncomfortable.

       She said that they went to a shopping centre.  You remember that further down in the tape she suddenly remembered that it was not grandma’s place.  The shopping centre was not near grandma’s place but was actually Sing Shing Building.  So she corrected herself.  Nevertheless, she said at the shopping centre, the defendant took her to a rear staircase and there was a cardboard on the floor.  The defendant pulled down her trousers to the calves and pulled down his trousers to the calves and lay on top of her.  Their private parts touched each other.”

The applicant says that this change of story demonstrates that the girl was telling lies for how could she confuse two places?  What this matter amounts to is this: In her video interview, the girl said that the shopping centre at which this incident had happened was one to which she and the applicant had made their way from her grandmother’s home.  Later, however, in the interview, she recalled that they had not gone there from her grandmother's home but rather from the home at which they lived in Sing Shing Building.  The shopping centre, it transpires, is on the same estate as Sing Shing Building.  This was not a change of story as to where the incident itself took place.  That would have been highly material.  We have read the manner in which this evidence emerged and in which she corrected herself and it reads very naturally and, in the event, we are satisfied that there is nothing material in this point.

16.  There were two further matters not raised by the applicant that appeared to us, before the hearing of the application, to warrant investigation.  They were constituted, first, by evidence that the applicant watched pornographic material and, secondly, in the mention in evidence of the fact of a complaint by the girl with no concomitant direction about recent complaint.  Neither of these points was raised by the applicant and we notified counsel in advance that we wished to be addressed upon them.  In the event we are satisfied that the testimony about pornographic material was, in the light of testimony given by the girl, admissible, and we note that no objection was taken by counsel for the applicant about the brief mention of the fact that there came a time when as a result of something said by the girl, a report was made.  We are satisfied that no sustainable ground appeal arises in either regard.  

17.  It is not necessary to itemize the remaining specific points raised by the applicant save to say that we have considered them and that they do not constitute grounds for upsetting these convictions.

Conclusion

18.  Accordingly, the application for leave to appeal against conviction was dismissed.