HKSAR v. FUNG KA LUK

HCMA 620/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 620 OF 2002

(ON APPEAL FROM ESCC 837 OF 2002)

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REASONS OF JUDGMENT

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1. On 29 October 2002, I allowed the appeal, quashed the conviction of the appellant, Fung Ka-luk and set aside the sentence imposed on him. I now give reasons.

2. The appellant was convicted after trial before a magistrate of one charge of indecent assault. He was sentenced to 9 months' imprisonment. He appeals against conviction.

3. The complainant was a 6 year-old girl at the time of the trial. She was 5 when the offence took place. The prosecution case was that the complainant lived with her father, the appellant, in a small flat of a housing estate most of the time because her mother only came to Hong Kong twice each year to visit them on two-way permits. When the mother was not in Hong Kong, the appellant was the only person to take care of the complainant. On 27 August 2001 the complainant went to live with a foster parent because the appellant was hospitalized. The complainant gave evidence in chief by way of a video recording and was crossed examined through television link. She said that during an evening between 5 p.m. and 8 p.m. on a day unknown in December 2000, the complainant and the appellant were alone in the flat. It was after school and the sky was dark. She was lying on her bed on the lower bunk and the appellant was sitting on it. He was dressed. They were watching television and the lights were on. The appellant pulled down her pants and she was naked. He put his palm on her private part which she described as the body part that she used to urinate. He kept his palm there for a long time and she felt very painful. Subsequently she pulled her pants up. Throughout, the appellant said nothing. She had not told anyone about the incident. When asked if she had told her mother, she replied that she had not because she had forgotten about it.

4. During her stay with the foster-parent, a 66 year-old Mrs Kong who was PW2 in the trial. Mrs Kong showed her a booklet entitled "Pamphlet on Family Sex Education" which Mrs Kong received from the complainant's nursery school. When the complainant saw a cartoon with the figure touching the other in the private part, she cried loudly and told Mrs Kong that her father touched her there frequently. This was on 5 December 2001. Mrs Kong reported the matter to the police the next day and the complainant was interviewed by a clinical psychologist of the Social Welfare Department which was video recorded.

5. The appellant gave evidence and denied the allegation. He was 59 year-old and practised as a fortune teller at Wong Tai Sin Temple. He said that the complainant had a habit of placing her hands over her private parts whilst sleeping. He had helped bathe her and dry her afterwards. He said that the complainant had imagined the incident and was instructed by Mrs Kong to make the allegations against him.

6. There was no corroboration and the magistrate was mindful of the lack of it and the danger of convicting without it. The magistrate, however, found the complainant honest and reliable and accepted her evidence. He also considered what the complainant told Mrs Kong on 5 December 2001, a year after what was alleged to have happened, to be a recent complaint citing a passage from the judgment of Roch LJ in R v. Valentine [1996] 2 Cr. App. R 213 where the learned Lord Justice said at p. 233:

"The complaint has to be made within a reasonable time of the offence and on the first occasion that reasonably offers itself for the complainant concerned to make the complaint that was made in the terms in which it was made."

This passage is a statement of general principle but it must be considered in the context of the facts of that case. In Valentine, the complainant, a young woman, was raped at 12:30 a.m. and arrived home at 2:30 a.m. She did not tell her parents and brother. The next morning before going to work she told her brother that she had been attacked with a knife. It was only in the evening that she told a friend that she had been raped. In HKSAR v Hung Wai-tak [2000] 4 HKC 641, the complaint was made four and a half days after the rape and was held by the Court of Appeal to be a recent complaint. In a whole year, the complainant in this appeal had many opportunities to tell her mother when she was in Hong Kong and her teachers of what her father did to her but she did not. Having regard to the authorities and the facts of this case, I have doubts whether what the complainant told Mrs Kong a year afterwards could be admitted as evidence of recent complaint. But that is not the end of the matter.

7. I am indebted to Mr Gibson Shaw who appeared before this court on behalf of the appellant and through his diligent research has been rewarded with the Canadian case of R v. W. H. M. There were three decisions at three different levels. The case started with the trial in first instance in the Prince Edward Island Supreme Court Trial Division. The accused was acquitted and the Crown appealed to the Prince Edward Island Supreme Court Appeal Division which dismissed the appeal by a majority. The Crown further appealed to the Supreme Court of Canada. There the majority judgment was upheld and the appeal was dismissed unanimously. It would be instructive to set out the headnotes of the trial before MacDonald C. J. T. D. [1990 W. C. B. J. Lexis 8383] and the decision of the Prince Edward Island Supreme Court, Appeal Division [1990 W. C. B. J. Lexis 9912].

"SEXUAL OFFENCES - Sexual assault - Proof of offence - Uncorroborated evidence of child complainant.

SUMMARY: Trial of accused on charges of indecent assault and sexual assault, contrary to ss. 149(1) and 246.1 respectively of the Criminal Code - Accused acquitted of both charges - The accused was alleged to have sexually assaulted the daughter of his common law wife over a period of a number of years - Although corroboration of the complainant's evidence was not required, it was important here to consider the evidence to determine whether there were facts to confirm the evidence of the complainant - The lack of medical evidence, which would indicate whether the complainant had been sexually abused in the manner she described, was a most significant deficiency in the Crown's case here - There was also no real indication of the complainant's behavioural conduct which could be indicative of sexual abuse - There were many conflicting points in the evidence of the complainant so that her unsupported testimony could not have much weight.

EVIDENCE - Credibility - General - Child witness.

SEXUAL OFFENCES - Sexual assault - Proof of offence - Uncorroborated evidence of child complainant.

TRIAL - Charge to jury - Reasonable doubt - Necessity trier of fact be "sure" of guilt.

SUMMARY: Appeal by Crown from the accused's acquittal, 10 W.C.B. (2d) 35, on charges of indecent assault and sexual assault, contrary to ss. 149(1) and 246.1 of the Criminal Code - Held (McQuaid J.A. dissenting): Appeal dismissed - Per majority: (1) The trial judge did not err in concluding that he was required to be "sure" of the accused's guilt before convicting - (2) While corroboration was no longer required in such a case, supporting or confirming evidence which implicated the accused in support of the evidence of the complainant may well be required - The trial judge did not err in that regard here - (3) While the court should use discretion when assessing the credibility of young children, the ultimate burden of proof beyond reasonable doubt was still the same, whether the court was dealing with child witnesses or adults - The trial judge had not erred in assessing the credibility of the complainant here [*2] - Per McQuaid J.A. dissenting: (1) To be "sure" of the guilt of the accused denoted a certainty beyond any question whatever of doubt and therefore imposed a higher burden upon the Crown than proof beyond a reasonable doubt - (2) Although it was not improper for the trial judge to comment on the inconsistencies in the complainant's testimony, he committed an error in law in the piecemeal fashion in which he treated them - The proper perspective was to consider the victim's evidence as a whole and to apply the appropriate criterion of reasonable doubt to that evidence in its totality - It was not an appropriate standard in sexual assault cases involving a child victim to impose a "reasonable adult" standard in assessing credibility - A new trial should therefore be ordered."

I would respectfully agree with the Prince Edward Island Supreme Court, Appeal Division that:

"While corroboration was no longer required in such a case, supporting or confirming evidence which implicated the accused in support of the evidence of the complainant may well be required ... "

This is especially important where the complainant is a girl of very tender years.

8. In my view, the conviction could not be regarded as safe and satisfactory and should be set aside. Accordingly, the appeal would be allowed.