HKSAR v. TSUI YUN CHOR

CACC157/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.157 OF 2003

(ON APPEAL FROM HCCC 332 OF 2002)

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REASONS FOR JUDGMENT

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Hon McMahon J (giving the judgment of the Court) :

Introduction

1. The applicant was convicted by a jury of an offence of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap.200 and of two offences of incest, contrary to section 47(1)(b) of the same ordinance following a trial before Deputy Judge Barnes. The applicant sought leave to appeal those convictions before us. We dismissed the application on 26 March 2004. We now give our reasons.

The prosecution case

2. The complainant in respect of all three offences was the applicant's daughter who, at the time of the first offence (that of indecent assault), was 11 years old.

3. The offences occurred in the family flat in Mongkok and took place over the course of about a year. The offence of indecent assault and the first of the incest offences took place in a bedroom in the flat. The second offence of incest took place in the bathroom. The offence of indecent assault involved the applicant forcibly pulling off the complainant's clothing and kissing her private parts. He tried to insert his penis into her private parts but the complainant successfully resisted, and the incident ended there.

4. On the occasions of the two offences of incest the facts were substantially the same except that the applicant had at least partial intercourse on each occasion with the complainant.

Grounds of appeal

5. The first ground of appeal put forward by Mr Edwin Choy for the applicant related to the evidence of PW2, the mother of the complainant and wife of the applicant. The applicant had presented his case on the simple basis that the complainant's evidence against him was a fabrication motivated by her hatred of him stemming from a generally conflictual family relationship and particularly from the recent discovery by the complainant and her mother that the applicant had a mistress for whom he had purchased a flat.

6. As a part of that general issue, during the cross-examination of PW2, the applicant's counsel had tried to establish that PW2 had once attacked the applicant with a pair of scissors. The trial judge had intervened and told PW2 of her right to refuse to answer that question if the answer was or tended to be self-incriminatory. PW2 initially exercised that right.

7. Mr Choy argues that as a result the judge should have directed the jury that it was open to them to infer from PW2's reliance upon her right against self-incrimination that she had in fact attacked the applicant in the manner alleged, and that the failure of the trial judge to direct the jury in that way was a material non-direction.

8. In our judgment there is no general principle that a judge should direct a jury in the terms suggested by Mr Choy in circumstances where a witness relies upon their right to refuse to answer a question where their answer may incriminate them. Indeed to do so in most cases would be to do no more than state the obvious.

9. A reliance upon the right against self-incrimination by a witness may occur in a large variety of situations. It is conceivable in some circumstances that the particular question the witness refuses to answer is fundamental to the issues at trial. It is equally conceivable the question really advances the issues little if at all.

10. In the former situation it may well be that the judge should not let the matter lie. What should properly be done would depend very much upon the circumstances of the trial. In some circumstances it may be thought proper that the witness is provided with a limited immunity to the effect his evidence will not be later used against him and thereby be required to answer the material question.

11. In other circumstances, it may be appropriate for the judge to take the matter no further. Where the question which the witness refuses to answer relates to a marginal or peripheral issue, the trial judge would be perfectly entitled to not further mention the matter. Equally, where the area of evidence is essentially common ground, the refusal of one witness to answer an incriminatory question relating to that issue may well have no meaningful impact on the trial whatsoever. So that again, a trial judge would be right to take the matter no further.

12. In the present case it was never in issue that PW2 and the applicant, her husband, had argued and quarrelled quite seriously as a result of the applicant having a girlfriend or girlfriends for one of whom he had purchased a flat. It was common ground that these quarrels occurred in front of their children, including the complainant, and on occasion had resulted in the police coming to the family flat. On another occasion the applicant had attacked the complainant, bruising her during a family argument. Against that background, it is difficult to see what was to be added by a question concerning PW2 inflicting a small cut on the leg of the applicant with a pair of household scissors. There can have been no material prejudice to the applicant's case by any refusal of PW2 to answer that question. On that basis alone, the trial judge cannot be criticised for not having given any particular direction to the jury as to how to approach PW2's initial refusal to answer the material question.

13. But in any event, PW2 did eventually provide an answer to the question. That followed counsel for the applicant at trial suggesting the warning given was not necessary as the alleged assault with scissors by PW2 was a minor matter and that there was no realistic prospect of a prosecution. PW2, following an adjournment whilst the trial judge considered what counsel had urged upon her, then voluntarily answered the question originally put by counsel. Her answer was to the effect she could not remember any such incident. That may not have been the answer sought after by counsel, but it was an answer. However the nature of that answer, in the context of her earlier refusal to do so means that it was highly likely the jury would have concluded there was an incident of the type suggested in any event.

14. In all those circumstances, it seems to us that the trial judge committed no error in not directing the jury that they could infer from PW2's original refusal to answer that she had attacked the applicant with scissors.

15. The second ground advanced by Mr Choy is that the trial judge, in her summing up, unfairly weighted her remarks in favour of one of the two prosecution medical experts.

16. The complainant had been examined by two doctors following her complaints of incidents of sexual assaults by the applicant. The first occasion was in February 2000, soon after the first offence of incest. That examination was conducted by a gynaecologist, PW4, as a result of the complainant having told her mother, PW2, that her father had molested her. The second occasion was in July 2002, some 15 months or so after the final offence of incest when the examination was carried out by a forensic pathologist, PW3, as part of the investigation arising following the complainant going to the police.

17. The hymen of the victim was found to be intact by both doctors upon their examinations. That was evidence relied upon at trial by the applicant as tending to establish that the complainant had never had sexual intercourse and that her allegations against him were therefore fabrications.

18. In this regard, the evidence of PW4, the gynaecologist, was perhaps somewhat more favourable to the applicant's case. PW4 had agreed with defence counsel during cross-examination that the more occasions a woman had sexual intercourse the more likely it was that the hymen would be damaged. PW3, the forensic pathologist, did not go so far in the sense that he said that : "Every episode of intercourse has a chance of injuring the woman's private parts, but it does not mean it is simple arithmetic or an additive effect."

19. Dealing with this apparent difference in opinion between the two prosecution witnesses, the judge in her summing up said :

" Dr Tang is a gynaecologist and obstetrician. He agreed with Mr Delaney for the defence, the proposition that more incidents of sexual intercourse would increase the risk of injury. So, on the face of it, Dr Tang's opinion differs from Dr Hau's, because you member Dr Hau said it is not a question of arithmetics, it is not additive. However, Dr Tang did say - he added: 'This sort of case is usually for a forensic pathologist.'

Of course, you have heard that Dr Hau is a forensic pathologist and consultant as well. So, you may think that Dr Tang is deferring to the opinion of a forensic pathologist regarding this particular area, it is a matter for you.

You should bear in mind that if, having given this matter careful consideration, you do not accept the evidence of Dr Hau, you do not have to act upon it. You must also remember ultimately it is for you to decide if sexual intercourse had indeed taken place and as many as three times, between [the complainant] and her father."

20. Mr Choy complains of two things. Firstly, he says the judge should not have suggested to the jury that PW4, the gynaecologist, was deferring to PW3. In this regard, PW4 had said in his evidence-in-chief that he did not specialize in examining complainants in sexual assault cases. In cross-examination he was asked about that again and replied that : "These sorts of cases I leave to the forensic pathologists." Mr Choy says that that does not necessarily mean that PW4 was deferring to PW3 on the issue as to whether the more incidents of sexual intercourse a woman participates in, the greater the risk of damage to her hymen.

21. It should be borne in mind that both doctors agreed that each episode of sexual intercourse carries with it a risk of injury to the woman's hymen. PW4's evidence was quite simply that the more incidents of sexual intercourse a woman had then the greater the risk of damage to the hymen. PW3's evidence agreed that each episode of intercourse resulted in a risk of injury to the hymen, but added the qualification that this risk did not increase on a simple mathematical or additive basis on each occasion. Accordingly it was on the relatively narrow issue as to how or in what way the risk of injury increases that PW3 and PW4 apparently differed. We say "apparently" because what PW3 meant by his qualification that the increase in risk was not "simple arithmetic or of additive effect" or what he based that view upon was not taken further in evidence.

22. It is against that evidential background that we turn to the ground of appeal. There is no doubt on the evidence at trial that PW3 was a very experienced forensic pathologist. He was cross-examined in this regard and said he had examined hundreds of cases relating to allegations of sexual offences and had read considerable literature on the subject. Equally, PW4 was an experienced gynaecologist. But the general thrust of his evidence was that he, as a gynaecologist, did not examine his patients with the purpose of a criminal investigation in mind. In our judgment it was quite obvious from the evidence at trial and was not in issue that PW3 was the more experienced of the two doctors in the examination of a person such as the complainant for the purposes of such an investigation. It was that which PW4 had effectively accepted when he said he left such cases to forensic pathologists.

23. The particular question of in what way the frequency of intercourse is related to the likelihood of injury to a young girl's hymen would appear to lie within the expertise of a gynaecologist as well as that of a forensic pathologist. But it was in our view open to the jury to conclude that the greater experience of PW3 in the field of forensic pathology made his evidence the more reliable on any such issue before them. PW4's comments were an apparent acknowledgment of this. It may be that the judges reference to PW4 "deferring" to PW3 in this regard was stronger than desirable but we do not think that her comments in this regard were in any material way wrongly weighted in favour of the prosecution case.

24. Mr Choy further complains in respect of the second ground that a direction in the terms of that thought appropriate in the case of R. v. Platt [1981] Crim. L.R. 332 should have been given where in the present case there was a difference or an apparent difference in opinion between the two expert witnesses. In Platt's case, the English Court of Appeal said, concerning the directions to be given to a jury in a situation where expert evidence was in conflict :

".... The only safe way of directing the jury was either to tell them that before they accepted the opinion of the prosecution's pathologist they must feel sure that he was correct, or else to tell them that they were to assume that the defence pathologist was right and, therefore, to approach the case on the other evidence solely and not base their approach on the pathologist's evidence at all. Unfortunately the judge had done neither but had asked the jury to decide which of the two bodies of medical evidence they preferred. In the extraordinary circumstances, that was a misdirection and the conviction would be quashed."

25. That case involved quite unusual circumstances involving the estimated time of death of a baby boy. Two pathologists gave evidence. One's opinion was the time of death could have been no more than 90 minutes after the injuries were sustained, so incriminating the appellant. The other said the time of death could have been up to six hours after the injuries were sustained, so allowing the possibility of others apart from the appellant having inflicted the injuries. That difference in time was the sole and fundamental issue in the case.

26. As the court said in its judgment, there is no general rule applicable to directions to be given in the circumstances of a conflict of expert evidence. The important principle in that case was that the jury should not have been left in a position where they thought they could choose between two experts' opinion, preferring one perhaps to the other even though they were less than sure of the preferred opinion and then on the basis of the preferred opinion proceed to convict. In other words, the appeal in that case was allowed because the directions given by the trial judge were such as to potentially allow the jury to proceed to a conviction where they were not satisfied beyond reasonable doubt of the factual basis of their finding of guilt.

27. In the present case that did not happen. The issue between the two experts was not the sole and fundamental issue before the jury. As we have said the two experts were perhaps not that far apart in their opinions. The difference between them was really a matter of degree. The particular issue relied upon by Mr Choy was one of a number of matters the jury would no doubt have considered before accepting the evidence of the complainant. The jury had been directed carefully and thoroughly about the necessity of being satisfied of the applicant's guilt to the proper standard before convicting him.

28. There was no possibility of them ignoring that direction and proceeding to convict the applicant on the simple basis of their preferring PW3's opinion to that of PW4 on the narrow issue of how the risk of injury to a woman's hymen increased with the frequency of sexual intercourse.

29. In the circumstances of this case, we do not think a direction such as that given in Platt was necessary. The second ground cannot succeed.

30. The third ground asserts that expert evidence the applicant wished to call at trial was wrongly ruled inadmissible. That evidence was to be from a psychiatrist who the applicant wished to call to give scientific evidence on the propensity of girls' fabricating stories of their being sexually molested. In particular the proposed evidence was to the effect that young girls whose parents were involved in marital arguments or discord may fabricate false allegations of sexual abuse.

31. The judge took the view that the issue of possible fabrication by the complainant of her allegations of sexual abuse by her father in the present case was not one upon which expert evidence was admissible. The judge, in her ruling on this matter, pointed out that there was no suggestion that the victim was suffering from any particular mental disability or condition, she being a normal 11-year-old girl in that regard and, accordingly, there was no need for the jury to be assisted by the opinion of an expert in regard to the victim's credibility.

32. In this, we think the judge was plainly right. Questions of credibility of witnesses arise continuously during a trial. The jury is there to determine those questions. They use their common sense in doing so. Factors such as education, age, jealousy, greed, dislike and many more are taken into account by jurors as a matter of course in determining the motives of witnesses in giving their evidence.

33. The generalist opinion of an expert that a child may take sides in a family dispute and tell lies about the behaviour of an opposing parent is unnecessary. Such a motivation is well able to be approached within the parameters of ordinary experience and common sense a jury brings with it to a criminal trial.

34. In circumstances where a witness or complainant can be shown to suffer from a certain condition or be subject to special circumstances which may affect that person's reliability as a witness, which condition or circumstances are perhaps outside the everyday knowledge or experience of a jury, an expert may well then be properly allowed to give evidence as to that.

35. But in the present case the reason put forward by the applicant for his daughter telling lies about him sexually abusing her was something well within the jury's ability to deal with without expert evidence. Any such evidence would have amounted to little more than a statement of the obvious. There is no merit in this ground of appeal.

36. For these reasons, the application for leave to appeal against conviction was dismissed.