HKSAR v. HERDER JOHNATHON PHILLIP

HCMA 397/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 397 OF 2005

(ON APPEAL FROM FLCC 3172/2004)

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J U D G M E N T

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1.  The appellant seeks to overturn his conviction for indecent assault that arose from his work as a tutorial teacher at a children's kindergarten.  He is a 25 year old man with a previously unblemished and good character.  The victim was a seven-year-old girl, called Sharon, whom he was teaching for the first time in a small class of three.

2.  The case for the prosecution was based on the evidence of the young complainant to the effect that that whilst the appellant sat at a table with her he touched her lower private parts over her trousers below the table; that the touching was done with his fingers moving up and down together in motion with the palm open; that the duration of the touching was some five minutes; that she felt uncomfortable and used her hand to take his hand away; that after about five minutes she went to a whiteboard, standing to write her name upon it at the request of the appellant; that he stood behind her and inserted his hand between her legs from her backside; that he then pressed upwards to her ‘urination part’; and that this fondling lasted for about five or six minutes.

3.  The defence case, based on the evidence given by the appellant, was that there was no intentional or deliberate touching of an indecent sort and that any touching that did occur was accidental; that there could have been accidental touching as the appellant pulled the stall upon which the complainant was sitting towards him and that he lifted her up by holding her hips in order to write on the whiteboard.

4.  The magistrate believed the complainant and disbelieved the appellant and accordingly convicted him.  He had also been charged with a separate but similar incident in respect of another pupil just over a fortnight before.  In respect of this charge he was acquitted, the main reason being that the magistrate could not be sure from the description given by the complainant that the touching was intentional.

5.  The most convenient way to deal with the issues raised is to follow the perfected grounds of appeal.

6.  Ground 1(a) complains that the magistrate failed to take account of and consider that the allegations upon which the appellant was convicted were from the uncorroborated testimony of a seven-year-old complainant in a case of a sexual nature.

7.  Grounds1(b) complains that the magistrate failed to consider that young witnesses can give what appears to be most convincing, yet utterly untruthful evidence, either intentionally or as a result of fantasy.

8.  Of course by virtue of the repeal of the statutory requirement for corroboration of the unsworn evidence of children and the operation of sections 4A and 4B of the Evidence Ordinance, corroboration was not required and no warning as to the danger of convicting without corroboration was required.

9.  The idea that this experienced magistrate, Miss D’Almada Remedios, did not appreciate that this case turned on the weight to be given to the unsupported evidence of a seven-year-old is unworthy of contemplation.  Any court charged with making the difficult decision that this case calls for is bound, for obvious reasons, to give the matter the most anxious attention.  The statement of findings in this case demonstrates such attention, and at paragraph 39 it posed the issue in the case thus

“Has the prosecution prove their case beyond all reasonable doubt?  Is Sharon an honest and reliable witness?  Could she be mistaken, fabricating, or inventing her account?”

That paragraph in my judgement accurately stated what was at issue.  It needed no further frills or talk of corroboration or support.

10.  It was said that the capacity of young witnesses to give wholly untruthful evidence was illustrated by the evidence of the boy Dexter who was called by the prosecution.  He told the court that he had seen the appellant rubbing the bottom of the complainant when she was writing on the whiteboard.  The magistrate did not, however, act upon this incriminating evidence as the witness had said that the appellant also kissed Sharon on the cheek and that he and his companion had both reacted disgustedly to it.  Sharon never mentioned this kiss and it was not mentioned in the admitted brief summary of the evidence of the other boy, and it was not mentioned in Dexter’s own witness statement.  The suggestion that the magistrate failed to appreciate that young witnesses could be unreliable, for whatever reason, was not a good one.

11.  It was argued that the magistrate had not considered fantasy.  Counsel for the respondent, who was counsel at the trial, makes the good point that fantasy was never suggested to the witness.  The case put was mistake.  This was no oversight, as the transcript reveals the magistrate ensuring that counsel for the appellant, who also appeared below, was happy that he had put his case.  However, never mind what was actually put, the words used by the magistrate that I have set out above as appearing at paragraph 39 of the statement of findings reveal consideration of mistake, fabrication and invention.  Confirmation from the dictionary reveals that fabrication has the sense of a conscious action of inventing a lie or dishonest story, whereas invention embraces the faculty of inventing or devising, involving creativity and inventiveness. 

12.  Associated with ground 1, in argument, was a claim that in the interview, recorded on videotape which formed the evidence in chief of the complaint, there was no instruction to the complainant to tell the truth.  It was not argued that this affected the admissibility of the evidence, but it was said to diminish its weight.  The interviewer, between paragraphs 27 and 30, was asked questions to establish if the witness understood what telling the truth meant.  The answers given revealed that she did.  It was obvious, in my judgment, from the asking of those questions in the circumstances then existing that this young witness could have been in no doubt as to which course the interviewer wanted her to follow, namely telling the truth.  Further the magistrate established at trial that this young witness understood that it was good to tell the truth and that she was to do so.

13.  There was nothing in ground 1.

14.  Ground 2 complained of an error of fact, in that the magistrate said that there were three other pupils in the class at the time when there were only two.  The error was not material and the point was not pursued on appeal.  It was the only slip in an otherwise impressively diligent statement of findings.

15.  Ground 3(a) said that the magistrate erred in placing too much weight on the evidence of the complainant.  The way this was argued was to claim that the evidence of recent complaint from Sharon to her mother was treated as evidence of the truth of the facts of which complaint was made.

16.  This ground was completely untenable.  At paragraph 42 of the statement of findings the magistrate described the recent complaint in terms that assisted the credibility of Sharon.  Paragraph 43 opens with the words “ the fact that the complaint was made is not evidence of the facts complained of but evidence of the consistency of the victim.”  The paragraph then went on to deal with findings the magistrate made concerning the evidence given by the complainant.  It is simply not the case that the magistrate confused consistency with corroboration as was argued before me.  What is said in the statement of findings does not begin to suggest that the magistrate used the complaint other than as going to consistency.

17.  In argument this ground was expanded to complain that the magistrate failed to consider the lack of any distressed condition and the lack of medical evidence as Sharon had said the assault was painful.  It was to be expected that neither of these matters were worthy of mention in view of the limited nature of the indecent assault described by Sharon.  The evidence from Sharon's mother was, when Sharon made her immediate complaint, she was then “very unhappy”.  In my judgment that was just the observation to be expected following an incident such as that of which complaint was made and no greater distress was to be expected.  Whatever it was that this seven-year-old meant by using the term painful to describe how she had been handled, it was clear that she was never suggesting force that would produce injury such that a visit to the doctor was called for.

18.  Ground 3(b) claims that the magistrate wrongly treated the omission by Sharon of a significant portion of the events, namely the pulling of the stall, as enhancing her credibility.

19.  The pulling of the stall was not mentioned in Sharon's evidence in chief but it was readily conceded by her in cross-examination.  It was argued that the failure to mention this in her evidence in chief was to omit an essential stage in the events described and may have been deliberate so as to remove any circumstances in which the touching was accidental.  If Sharon was right the pulling of the stall was not a matter of significance.  Just how the appellant came to be within touching distance was not, in my judgment, an essential stage in the events.  When one reads the transcript of the evidence in chief it is clear that Sharon was not asked to give a movement by movement, slow motion, account.  At paragraph 171 she was asked what happened and she went straight to being touched and the questions then went on and did not go backwards.  The fact that she did not mention this detail in the interview that comprised her evidence in chief did not damage her in the eyes of the magistrate and it does not in mine.

20.  Complaint is made that the magistrate took the view that the immediate concession in cross-examination favoured Sharon.  In my judgment there is nothing in that complaint.  The magistrate made the point that she was so young that she would not know the defence the appellant was running at the time she made the answer.  What a court looks for, especially in the case of an unsophisticated young witness, is how their answers appear to engage the history of events.  What the magistrate noted here, and was entitled to rely upon, was a witness whose recollection was seen directly to engage the events and who was not running her answers through a filter in an attempt to support and maintain a dishonest or invented story.

21.  Ground 3(c) attacks the finding of the magistrate that it was incredulous to believe that the action by the appellant [of pulling the stall] could be so wrongly and adversely interpreted by Sharon against the appellant.  This goes to the nub of the issue concerning mistake.  The appellant demonstrated how he had pulled the stall, placing his fingers on top and his thumb underneath to pull the stall.  If the appellant had in the course of such an action accidentally touched Sharon's private parts the touching would have been no more than fleeting with rigid and stationary fingers.  This is completely different from the extended contact described by Sharon with the fingers persistently moving to touch her private parts palm upwards and with Sharon having to remove that hand.  The judgment of the magistrate was that the two were so different that mistake would not run.  I agree with that judgment.

22.  There was nothing in ground for 3.

23.  Ground 4 claims that the magistrate erred in failing to consider that the effect of discrepancies and shortcomings in the evidence of Sharon should give rise to reasonable doubt as to her veracity or reliability.

24.  The first matter relied upon is as to the sequence of events.  In her evidence in chief Sharon said that the touching under the table took place before the touching of the whiteboard.  In cross-examination she agreed to the suggestion that it was the other way round.  Having agreed to it, she did not alter her ground when asked twice more.  In re-examination she reverted to the original order.  This was perhaps the appellant’s best point.

25.  Of course the magistrate was well aware of this evidence and gave it due consideration.  Having done so she was of the view that the variance in sequence was not so material in the circumstances as to lead her to reject Sharon's evidence.  It was clear that the magistrate put this matter into the scales and weighed the evidence.  It goes without saying that the magistrate was in a much better position then than I am now to make that judgment.  The point is not so potent that one can say it must render Sharon's evidence unreliable.  It was good enough to merit proper consideration.  Proper consideration is what it received.  There is nothing before me, either in the papers or in argument, that makes me doubt the judgment of the magistrate in this regard.  Of course it is my judgment on the material before me at the end of the day which matters, though if some defect in the magistrates judgment can be demonstrated it will obviously assist the appellant.  No such defect is apparent.  It comes to this, that changes in the sequence of events of this nature, when the young witness remained firm about the existence and nature of those events, creates no reasonable doubt about the verdict of guilty.

26.  The second matter relied upon related to the duration of the two incidents put at five minutes at the table and five to six minutes at the whiteboard.  The magistrate did not treat these estimates as being accurate.  In the mouth of an adult an estimation of five minutes is often no more than an indication of a short time.  In the mouth of the seven-year-old that is likely to be the more so.  Realistically, counsel for the appellant concedes this to be so.  The point he makes in this regard is that if the touching was more than fleeting it was likely to result in a reaction in Sharon that she would be able to describe and that the incidents would more likely be observed by the other two boys in the room.

27.  The capacity of a seven-year-old to describe reactions to conduct such as the defendant’s is obviously limited.  On the material before me there is nothing in her reaction, or her description of it, that makes me doubt her veracity.  As to the other two boys seeing the touching, it has to remembered that it took place under the table and when the appellant stood behind Sharon at the whiteboard between her and the potential observers.  Dexter said that he did see touching, but of course he was not to be relied upon.  As regards the other boy, I quote from the admitted facts, “ he did not see the foreign teacher indecently assaulting a girl in the class because he was too focusing in drawing pictures”.

28.  The third matter argued here was that since Sharon had described the touching as painful, it was significant that she did not cry out.  This is a question of vocabulary and degree.  It is not a matter that troubled the magistrate and it is does not trouble me, as her description was not inconsistent with unpleasant sensation in circumstances where the natural domination of the teacher made protest the less likely.

29.  There was nothing in the fourth ground.

30.  Ground 5 claimed that the magistrate erred in failing sufficiently to consider that evidence other than that of Sharon should cause a reasonable doubt, namely that of the boys Dexter and Ernest.

31.  Counsel conceded as regards Dexter that he was probably seeking to have his cake and eat it.  If Dexter was unreliable, then he was not to be relied upon.  If it was not unreliable, his evidence directly supported one of the incidents and did the defence case great damage.  The statement of Ernest took the matter no further. It is to be expected that if a teacher chooses to grope a child in class he will take care to do so surreptitiously.

32.  The sixth and final ground of appeal claims that the magistrate failed to consider sufficiently the evidence of the appellant and his witness.  The witness was a character witness, and the magistrate dealt with good character quite properly.

33.  As regards the evidence of the appellant, the magistrate was fully aware of what he was saying and gave it due consideration.  She weighed his evidence along with the other evidence in the case and applied the appropriate burden and standard of proof.  She came to the conclusion that mistake by itself could not explain the contact described by Sharon and she found Sharon to be a witness who was telling the truth without invention or fabrication.  In those circumstances, as is common in such cases, the evidence of the appellant was not to be relied upon, not because it was shown to be unreliable by cross-examination but because it simply could not live with the evidence of the complainant when that evidence compelled belief.

34.  There was nothing in this last ground.

35.  Cases like this are not easy.  Any tribunal charged with the burden of deciding them well appreciates the appalling consequences if they fall into error and wrongly convict an innocent man.  The magistrate demonstrably brought to her task great care and common sense and judgment.  I am driven to say that nothing that I have heard makes me doubt her conclusion and nothing makes me doubt the correctness of the conviction.  The appeal against conviction is thus dismissed.

36.  The appeal against the sentence of 12 month’s imprisonment was abandoned.