HKSAR v. IP CHI SHING

CACC 373 /2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 373 OF 2010

(ON APPEAL FROM DCCC 298 OF 2010)

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BETWEEN

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REASONS FOR JUDGMENT

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

Introduction

1.  The applicant (Ip Chi-Shing) appeared before Deputy Judge Chainrai in the District Court on two charges of indecent assault. It was alleged that the applicant, between May and December 2008, had twice indecently assaulted a 5-year old girl (“the girl”) in his residence in Shek Yuk House, Chun Shek Estate in Shatin (“the flat”). The applicant pleaded not guilty to the charges, but was convicted. He sought leave to appeal against conviction.

2.  On 8 June 2011, we dismissed the application and indicated that we would hand down our reasons in due course. This we now do.

The Prosecution Case

3.  The girl was born in October 2002. Her evidence in chief, video recorded in November 2009 when she was 7 years old and studying in Primary1, was tendered under s 79C of the Criminal Procedure Ordinance.

4.  The girl said her father often asked her to go up to the flat, which was close to her home at Tsang Tai Uk, to borrow money from the applicant. She described an occasion in May or June 2008 when she was asked to do so. She said she went up to the flat whilst her father waited downstairs.

5.  According to the girl, the applicant opened the door and after she expressed the purpose of her visit, the applicant placed her on a bed and removed her clothing before indecently assaulting her by inserting his finger into her private parts and touching her breasts with both hands. The applicant then gave her the money with an extra $20 for her to buy something to eat after she got dressed. The girl then joined up with her father and gave him the money. The girl said she told her father about the extra $20, but not what the applicant did to her.

6.  The girl alleged that the applicant had touched her on 10 other occasions and she was given an extra $20 on each occasion. Those occasions did not form the subject matter of any other charge and the judge paid no regard to those other occasions.

7.  Although in the video recorded evidence in chief the girl only described in detail one occasion of indecent assault, she described another occasion when she gave further evidence in chief in court.

8.  She said one to two weeks after the first occasion, when she went up to the flat to borrow money again, the applicant touched her in the same way as he did after her clothes were removed. The applicant also gave her $20, which she used to buy snacks. The girl alleged that the applicant would not indecently assault her when there were others present in the flat, but would only do so when there was no one else there.

9.  The two occasions formed the subject matter of the two charges against the applicant.

10.  The girl was cross-examined on various aspects, particularly as to why she did not inform her teachers when the indecent assault took place. She said she had no idea about such behavior until a social welfare officer gave her a sex education talk in November 2009. She also said she did not want her father to know about it.

11.  The girl talked about some skin ailment on her back and legs. She said she was given “medicine” and her father would apply it on her back whereas she would apply it on the legs by herself when she felt itchy.

12.  When it was suggested to her that the applicant had never removed her clothes, but only helped her to apply the “medicine”, the girl denied the suggestion. She said she was not taught what to say against the applicant.

13.  The girl’s father confirmed that he would send the girl up to the flat to borrow money when the girl was about 5 or 6 years old. He said the applicant was very nice to the girl. He also said that he was aware that the applicant had applied ointment for her on at least two occasions when she felt itchy. He said he smelt the ointment after she came down from the flat.

14.  The girl’s father claimed that the applicant had bought two tubes of cream, giving one to him for the girl’s use and keeping one for his own use. He said he had been told by a male social worker that the girl had been assaulted on her private parts when she played with a 9-year old boy. He alleged that the girl had many “Kai Ye”s (“sworn or god-fathers”) in Chun Shek Estate.

15.  The girl’s father confirmed that the girl had been removed from his custody and was placed under the care of the Social Welfare Department towards the end of 2008 after he was prosecuted for assaulting her.

16.  The social welfare officer (“Aunty Yu”), in charge of the girl since July 2009, mentioned a sex education talk that she gave to a group of girls, including the girl on 5 November 2009. She said the girl told her afterward that she had been touched by an Uncle Ip on her private parts. Aunty Yu said when she asked the girl if she had been touched over the clothes, she did not answer, but only rushed up to her one minute later, saying that it was not over the clothes.

17.  In cross-examination, Aunty Yu accepted that the girl initially said she was touched with her clothes on, but subsequently said she was touched after her trousers had been taken off.

18.  The prosecution evidence also consisted of the record of the applicant’s interview under caution (P7). The applicant confirmed, during the interview, that the girl’s father often borrowed money from him, the last time being in November 2008 and that he was still owed $1,470. He also confirmed that sometimes the girl would come up the flat to get money for her father. He said there were occasions when the girl would stay in the flat for about 15 minutes watching TV or sitting on the massage chair to wait. He said he would sometimes give her an extra $20 when she complained of not having a meal. The applicant denied indecently assaulting the girl.

19.  The applicant objected to the admissibility of the record of interview, not on the basis that it was involuntary, although he had earlier refused to be interviewed on video, but on the basis that the record was incomplete. The applicant agreed that P7 was an accurate record, but suggested that he had more to say at the interview than what was recorded. He alleged that the officer told him that he should only answer what he was asked.

20.  The defence suggested that the applicant, having told the officer that he had not indecently assaulted the girl, had not used his fingers to insert into her lower parts, and absolutely did not touch her chest, had further said that the girl was suffering from skin problem all over her body, including her legs, and that he had applied ointment on her, and so possibly there was bodily contact between them. However, the officer stopped him saying that he had not asked him those things and that he should not answer them until he was asked. 

The Defence Case

21.  The applicant denied the allegation of indecent assault. He said he was 69 years old and was not in good health, although he still had to take care of his wife who was suffering mental illness.

22.  The applicant said he came to know the girl’s father in 2007 and they became friendly in 2008 when he also came to know the girl whom he liked. The applicant confirmed that the girl had visited him on a number of times, the first in the summer of 2008 when she told him that her father wanted to borrow money. He said the girl also wanted him to apply ointment for her.

23.  The applicant said he became aware of the girl’s skin problem in mid-2008 and he suggested an ointment that he had used before. When the girl’s father said he had no money, he offered to buy two and gave one to the girl’s father to keep at home.

24.  The applicant said in the summer of 2008 on the ground floor of Shek Yuk House he asked the girl’s father if he had applied the ointment for the girl, and the girl said no one had done so. The applicant said that the girl and her father both indicated that they wanted him to apply it on her. He then returned home to get the ointment and applied it on her thighs and below, but not her body as he did not dare to lift up her upper garment.

25.  Contrary to the evidence of the girl’s father, the applicant said the girl’s father was present when he applied the ointment on the girl’s body. The applicant further said that the girl’s father did not care much about her when asked why he did not apply the ointment on his own daughter.

26.  The applicant said apart from two occasions when he applied ointment for the girl in public, there were other occasions when he did it at home. The first time was when she came up alone to borrow money for her father and for the ointment to be applied. He said he was alone in the flat at that time.

27.  The applicant insisted that he only applied ointment on the girl when she asked him to do so and he did not feel anything unusual about it as he treated her as if she was his own granddaughter.

28.  The applicant was able to say that the girl came the flat alone on five occasions when ointment was applied on her, on 10-odd occasions when she came to borrow money and on two occasions when she came with her father to repay the loans.

29.  The applicant confirmed that, out of pity, he would sometimes give the girl an extra $10 or $20 to buy noodle at the nearby 7-Eleven because she said she had not eaten earlier.

30.  The applicant said he had probably accidentally touched her private parts because her skin problem had extended to the groin area, her abdomen, chest area and back, but he denied having inserted his finger into her vagina.

31.  The applicant alleged that the girl had herself removed her upper garments and trousers during winter so that ointment could be applied, but not in hot weather when she only wore one upper garment, which could be lifted for him to apply the ointment.

32.  The applicant insisted that the ointment application was not mentioned in the interview record because the officer did not ask him and did not completely record what he had said.

33.  The applicant called two witnesses to give evidence on his behalf. Mr Kwok, whose evidence was not challenged, confirmed that the girl was his sworn daughter and that she was taken by her father to the chess playing area of Shek Yuk House where she would be interacting with his friends, including the applicant.

34.  Mr Kwok said he had also given money to the girl to be given to her father and had noticed the girl’s skin problem in 2009 or 2010.

35.  The other defence witness, Wong Wai-fun, said that the girl was pitiful as she had to borrow money from people around to buy food when she did not have enough to eat. He said he had given her money on two occasions.

36.  Mr Wong alleged that the girl was fond of lying and had lied on many occasions. As an example, he said on one occasion, the girl asked him for money saying that she had no food to eat when in fact she had just finished a meal in a restaurant, and on another occasion when she said she did not get any food when someone had just brought her food from 7-Eleven.

The Judge’s Findings

37.  The judge rejected Mr Wong’s evidence that the girl was fond of lying and expressed considerable amount of scepticism about the father’ s evidence.

38.  The judge pointed out that the only evidence against the applicant came from the girl and that there was no corroboration. She reminded herself that the girl’s complaint of indecent assault against the applicant only came one year after they took place, but she said there was an explanation for it.

39.  The judge detailed the girl’s evidence and the circumstances in which the matters came to light. The judge concluded, despite some vagueness in her evidence, that the girl was trying her best to describe what had happened to her. The judge said there was nothing sinister about the way in which the girl described how the applicant indecently assaulted her, namely that initially the girl told Aunty Yu that she had been touched over her clothes correcting that almost immediately to having touched her under her clothes.

40.  The judge found the girl truthful and reliable.

41.  The judge accepted entirely the evidence of the officer who interviewed the applicant under caution. The judge concluded that the applicant had in fact not mentioned anything about the ointment application on the girl during the interview.

42.  The judge rejected the evidence of the applicant, pointing out that there were a number of discrepancies in his evidence.

43.  The judge concluded that the applicant did indecently assault the girl on the two occasions as charged and she therefore convicted the applicant.

Grounds of Appeal

44.  Despite the length of the perfected grounds of appeal against conviction as formulated by Mr William Allan, Counsel for the applicant, the only ground appeared to be that the judge should not have accepted the evidence of the girl.

45.  Mr Allan pointed out the various matters that he considered favourable to the applicant and suggested that the judge had failed to have proper regard to them or to the “overall evidence”. Mr Allan complained about the shortcomings of the girl’s evidence, including the fact that the girl only mentioned one incident of indecent assault in her video recorded evidence in chief, yet mentioned a further incident in her verbal evidence.

46.  Mr Allan emphasized that the father’s evidence was favourable to the applicant and suggested that Mr Wong would not lie against the girl.

47.  Mr Allan argued that the judge had not sufficiently directed herself of the fact that it was only after “Aunty Yu” asked the girl if anyone had touched “them” that the girl came up with her allegation against the applicant. Mr Allan further emphasized that the applicant, a 69-year old man, had a clear record and that he had denied the allegation against him when he was arrested and when he was interviewed under caution.

48.  Mr Allan suggested that in all the circumstances, the conviction against the applicant is unsafe and unsatisfactory.

Discussion

49.  As in most, if not all of this type of cases, the only evidence against a defendant is that of the victim and very often because of the victim’s age and the circumstances in which the offences are committed, there are aspects of the victim’s evidence which could be perceived as unsatisfactory.

50.  Despite the young age of the girl, being 5 at the time of the offences and 7 at the time when she gave the video-recorded evidence, and the total lack of any motive, there was the suggestion that the girl had lied about the applicant and that she was a habitual liar. Evidence was called to support the allegation that the girl had lied on previous occasions.

51.  The judge was fully aware of the shortcomings of the girl’s evidence, as identified and relied on by Mr Allan. The judge had listed them out in her reasons for verdict. There is no basis for Mr Allan’s suggestion that the judge did not have proper regard to them.

52.  Despite the shortcomings of the girl’s evidence, the question we had to decide was whether it was open to the judge to accept her evidence that the applicant had indecently assaulted her, including the inserting of his finger into her private parts, and was there any lurking doubt about the applicant’s guilt.

53.  The applicant, in his evidence, heavily relied on the suggestion that he had applied ointment on the victim’s body and that the victim could have misunderstood what he did, particularly when, during a sex education talk, “Aunty Yu” taught the girl how to protect herself.

54.  However, the applicant did not mention this aspect when he was interviewed by the police under caution. The judge had also identified other aspect of his evidence. The judge was entitled to reject the applicant’s evidence.

55.  The girl had been subject to vigorous and searching cross-examination and the judge clearly had carefully considered her evidence. The judge took the view that “ the girl’s description of the indecent assault by the applicant was very clear and specific. She described how she was carried to the bed and undressed, and her breasts and private parts were touched by the applicant, and that he had inserted his finger into the part where she urinated and she found this very painful”.

56.  The judge took the view that her description about the finger inserting into her private parts was not something that a 7-year old could make up. In reaching the conclusion as she did, the judge had taken into consideration that the applicant was 69 years old and had a clear record.

57.  The defence’s suggestion that there could have been misunderstanding as the applicant might have accidentally touched her when applying ointment was not convincing in the light of the specific allegation by the girl. In our view, the girl’s description of what the applicant did left no room for any misunderstanding.

58.  The father, despite being called as a prosecution witness, was clearly trying to smear the girl and cast doubt on her allegation against the applicant when he said he heard that the girl had been assaulted on her private parts by a 9-year old boy and that the girl had many “Kai Ye’s” in the area, implying that it was the other “Kai Ye” who did what was alleged against the applicant. Bearing also in mind that the girl was removed from her father’s custody, the judge was right not to attach weight to the father’s evidence. The judge was also entitled to disbelieve Mr Wong and she had stated why.

59.  An appellate tribunal would not interfere with the finding of facts made by the trial court based on the credibility of a witness except in the most exceptional circumstances, as it does not enjoy the advantage of having received the evidence at first hand.

60.  The judge had dealt with practically every complaint that Mr Allan made. In our view, the judge was entitled to accept the evidence of the girl and her approach to the case could not be faulted.

61.  We did not find the conviction against the applicant in any way unsafe or unsatisfactory. We therefore dismissed the application for leave to appeal.