HKSAR v. CHENG CHI HO

CACC 57 /2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL 

CRIMINAL APPEAL NO. 57 OF 2006 

(ON APPEAL FROM HCCC 303 of 2004) 

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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 appellant, Cheng Chi-ho, appeared before Ngyuen J sitting with a jury on an indictment consisting of a charge of rape and an alternative charge of unlawful sexual intercourse with a mentally incapacitated person.

2.  The appellant pleaded not guilty to both charges. The appellant was acquitted of rape but convicted of unlawful sexual intercourse with a mentally incapacitated person, and sentenced to 240 hours of community service.

3.  The appellant was granted leave to appeal against conviction out of time. On 26 September 2008, we allowed his appeal and quashed the conviction. These are the reasons.

The Facts

4.  The victim, Tsui (born on 5 January 1989), was at the material time 15 years and 4 months’ old, and was attending a special school for the mentally retarded (“the school”).

5.  A clinical psychologist assessed and found the victim to have an IQ of 41, as compared to 100 for a normal person, which fell into the range of moderate rate of retardation with the ability similar to a 6 to 8-year old child. She also said the victim’s verbal ability and performance ability were respectively 55 and 45 out of 100 for a normal person, and that her ability of total independence was lower than that of children of the same age, only equal that of a child of 12 years and 9 months. Although the victim was able to take care of personal hygiene and do simple purchases, she had difficulty in counting.

6.  On 11 May 2004, the victim told a social worker at the school that Lai Ka-lung (“Lai”) and Chow Chi-kin (“Chow”) had made nuisance calls to her. She also said she met Chow twice, first on 1 May 2004 and then on 9 May 2004, which was Mother’s Day when they went to the waterfront at Wah Kwai Estate to chat. She said Chow touched her breasts and her private parts.

7.  The matter was reported to the school principal and the victim’s grandmother was contacted.

8.  The victim then told the social worker that having bumped into Chow on 9 May 2004 near her home, they went from Wah Kwai Estate to Wah Fu Estate and at a staircase landing, Chow touched her breasts and attempted to have sexual intercourse with her after taking off her jeans. The victim said it hurt and she appeared to be bleeding.

9.  The victim then further said Chow, introduced to her by Lai, was jobless, and was about three years older than her.

10.  The matter was reported to the police, leading to the arrest of the appellant.

The Evidence

11.  The victim’s video-recorded evidence against the appellant was presented under ss 79B and 79C of the Criminal Procedure Ordinance, Cap 221. In the first interview, the victim described how Chow took off her clothes, touched her to “make her wet”, and then had sexual intercourse with her. She said Chow entered her deeply and she felt pain and was bleeding.

12.  The victim also said Chow did not wear a condom, but she did not know if he had ejaculated. The victim said she did not stop Chow when he took off her clothes to touch her and then inserted his penis into her private parts. She said she only tried to push him away when it hurt. The victim said Chow had promised to take her to Japan.

13.  In the second interview, the victim said she went to a police station to identify someone. She said she identified the person at No. 6 as Chow. She said the person she identified molested and raped her, and she could recognise his face and his haircut. The victim said the appellant was Chow.

14.  In cross-examination, the victim further said Lai introduced the appellant to her, and they then talked on the phone many times before the meeting on 9 May 2004. She said she met the appellant outside a 7-Eleven store.

15.  The victim denied the suggestion that she had, on 25 April 2004, greeted the appellant and embraced him when he came to her flat. She also denied the suggestion that she took the appellant’s hand to touch her breasts and her pelvis near her private parts.

16.  The victim further denied the suggestion that when the appellant asked her if she had sex with any of her boyfriends, she told him that she had sex with a boy two or three times. It was put to the victim that the appellant had asked her if she had sex with Ng Ka-lok and that she mixed the appellant up with Ng Ka-lok. The victim denied the suggestion.

17.  The statement of a Woman Chief Inspector who conducted the Identification Parade on 9 July 2004, in which the victim identified the appellant, was read out.

18.  The statement of Lai was also read out. Lai confirmed that the victim was his schoolmate and that after leaving the school in 2002, he occasionally contacted her.

19.  Lai said that in March 2004 at the Aberdeen promenade when he was fishing, he came to know a 20-year old male who claimed to be Chow Chi-kin. Subsequently Chow Chi-kin told him that his real name was Cheng Chi-ho.

20.  Lai also said he gave Cheng Chi-ho’s mobile phone number to the victim, who later told him that she had called Cheng Chi-ho. In April 2004, Cheng Chi-ho told him that the victim had phoned him and that he had arranged to meet her.

21.  The Forensic Pathologist, who examined the victim on 11 May 2004, confirmed the presence of a healing tear in the victim’s hymen and it was consistent with the tear having been caused about two days before the examination.

The Defence Case

22.  The appellant, 23 at the material time, finished Form V and then attended a vocational school of business and commerce before setting up a private tuition school. He also ran some other small business.

23.  He said he met Lai in April 2004 and often went fishing with him. The appellant admitted that at the beginning of their acquaintance, he told Lai that his name was Chow Chi-kin, but there was no sinister reason and he in fact revealed his real name to him later.

24.  The appellant further admitted that Lai introduced him to the victim during a three-way telephone conversation on or about 22 April 2004 and thereafter he had many telephone conversations with the victim, sometimes late at night.

25.  The appellant said he met the victim on 24 April 2004 in Wah Fu Estate when he was posting advertisement leaflets for his tuition school, and the victim told him where she lived and said she wanted to see him. There were further telephone conversations on 25 April 2004 and the victim invited him to go to her house, as she wanted to see him.

26.  The appellant went to visit the victim shortly after 1 a.m. on 26 April 2004 and they had a chat at the staircase opposite to her house when the victim said she liked him very much.

27.  The appellant said the victim repeatedly took his hand to touch her breasts and private parts, but he withdrew and left her to go home in Aberdeen. The appellant’s Octopus card indicated journeys at 1.15 a.m. and 2.20 a.m., each costing $3.5, which were consistent with his evidence.

28.  The appellant said he disliked the victim, yet she kept calling him and asked him to be her boyfriend, although he had told her that he had a girlfriend.

29.  The appellant mentioned an occasion when the victim connected him to Ng Ka-lok, and then told Ng that she did not want to be with him anymore. Ng asked her why and she did not answer and instead told the appellant to cut the line.

30.  According to the appellant, the victim told him that she had broken up with her boyfriend and wanted him to be her boyfriend. When the appellant asked her if she had had sex with Ng, the victim did not answer. When asked: “How many persons she had done this thing with”, she said “Two to three times”.

31.  The appellant further said that in the first week of May 2004, the victim rang him a number of times late at night and asked him to be her boyfriend, which he refused. The appellant said it never occurred to him that the victim was mentally abnormal. He said he never had sexual intercourse with or sexual contact with her and had never promised to take her to Japan. The appellant said he never met the victim again after 26 April 2004, and only knew that she was mentally retarded after knowing where she studied in mid-May 2004.

32.  The appellant’s defence was alibi. He said he did not see the victim on 9 May 2004.

33.  The appellant said that on 9 May 2004, he had lunch with his parents and grandparents before meeting Cheng Kai-man at 2 p.m. to go fishing in a motorised boat and that they remained at sea until 7 p.m. when they went home.

34.  When asked why there was a record on his mobile phone showing that a call was made to Cheng Kai-man’s home at 3.57 p.m., the appellant said it was Cheng Kai-man who used his phone to call his father, “maybe he wanted to save some air time”.

35.  In support of his defence, the appellant called Cheng Kai-man and the victim’s grandmother to give evidence.

36.  Cheng Kai-man confirmed the appellant’s evidence that they met to go fishing on 9 May 2004, although he was unable to remember the date of any of the other 10 odd occasions when they went fishing.

37.  Cheng Kai-man was unable to remember making use of the appellant’s mobile phone to call his father at 3.57 p.m. However, he said his recollection was that he did go out to sea with the appellant on that day.

38.  Cheng Kai-man also produced his Octopus card to show that its entries were consistent with his evidence that he took No 98 route bus from Lei Tung Estate at 1341 hours to go to Aberdeen and then returned at 1905 hours.

39.  The victim’s grandmother said she had lunch with the victim on 9 May 2004 and returned home at about 3 p.m. The victim then went out, saying that she was buying a drink, and only returned at 3.45 p.m. The grandmother said she did not notice anything unusual about the victim, and when asked why it took her so long, the victim said she had to go to a new supermarket. The grandmother also said she did not notice anything unusual about the victim’s clothes when she washed them.

40.  Two witnesses’ statements were read to the jury and those witnesses spoke well of the appellant, saying that he was a decent, responsible and kind man.

The Judge’s Summing Up to the Jury

41.  On the mental capacity of the victim, the judge directed the jury in the following manner:

“this question of whether she was a mentally incapacitated person is a relevant question not only to the 2^nd count but also to the 1^st count, because when you consider …the question of whether she consented to the sexual intercourse…may well be tied in with the question of whether she was a mentally incapacitated person and whether the defendant knew that she was such a person…

I have given you, another handout, which is last one, the definitions of “mentally incapacitated person” in both English and Chinese

‘ Mentally incapacitated person means a mentally disordered person or

 mentally handicapped person within the meaning of the Mental Health

 Ordinance, Chapter 136, whose mental disorder or mental handicap, as the  case may be, is of such a nature or degree that that person is incapable of living an independent life or guarding himself against serious exploitation, or  will be so incapable when of an age to do so.’

Because it mentions ‘mental disorder’ and ‘mental handicap’ within the meaning of the Mental Health Ordinance, I have given you those definitions as well, and you will see that in the second page….

Again that seems to be quite a mouthful of technical words, so it may well be, member of the jury, that when you have considered this question of whether or not she is mentally incapacitated person, it may well be – and of course it is a matter for you – that you find that you are able to accept the evidence of the clinical psychologist, Miss Yu Siu-ling, whose evidence was not seriously challenged by the defence.

You will remember that what she said about this girl…On 19 May 2004, she conducted an assessment of intelligence on PW1, aged 15. She spent three to four hours with her. She said PW1 could engage in simple conversation relating to daily living but had difficulties with abstract reasoning. Her full scale of IQ was 41 out of 100 for a normal person. Forty-one falls into the range of moderate rate of retardation; i.e. her ability was similar to a 6 or 8-year-old child. Her verbal ability was relatively better – 55 out of 100. Her performance ability was relatively weak – 45 out of 100. Her abilities of total independence were lower than that of children of this same age, her abilities were equal to a child or 12 years and 9 months. Her personal living skills were that of 14 years and 6 months, which is almost normal because she was only 15 at the time. She could take care of personal hygiene and do simply purchases but had difficulty in counting…

This witness, Madam Yu, considered PW1 to be of moderate grade mental retardation and she said that PW1 falls within the definition of ‘mentally handicapped person’ in the Mental Health Ordinance, and also falls within the definition of ‘mentally handicapped person’ in the Crimes Ordinance. (Emphasis added) She considered PW1 a mentally disordered person or a mentally handicapped person.

42.  The judge extensively referred to the evidence adduced by both the prosecution and the defence, and identified the areas of conflict.

43.  The judge reminded the jury that the appellant’s Octopus card records did not contradict, but were consistent with his evidence, although it was not conclusive evidence, to show that the appellant did take the trips as he said because the Octopus card did not show destinations of the trips and that anyone could have used his Octopus card.

44.  The judge also extensively dealt with the evidence of both the appellant and Cheng Kai-man that they went out to the sea on 9 May 2004. The judge reminded the jury that Cheng Kai-man’s Octopus card records, though not conclusive, were consistent with his evidence that at 1.41 p.m. he went to Aberdeen to meet the appellant and then returned home at 7.05 p.m.

45.  In connection with the video-recorded evidence of the victim, the judge reminded the jury of the transcripts of her videotaped interviews. In particular, the judge told the jury:

“You have of course a transcript of the videotaped interview of PW1 (the victim) and I have given you the numbers of the answers which I consider to be important so you can refer to them if you wish…but otherwise you may think that the transcript would be sufficient for you to review the evidence.”

Grounds of Appeal

46.  In his written submissions, the appellant listed out several grounds of appeal, supplemented with detailed arguments.

47.  The appellant said the judge had misdirected the jury on the issue of whether the victim was a mentally incapacitated person. He emphasized that the evidence of the clinical psychologist did not support the prosecution case that the victim was mentally incapacitated.

48.  The appellant submitted what appeared to be the comments by Judge Stanley Chan, in a District Court criminal case (“DCCC 1217/2007”) involving a defendant with the same name as the victim. The appellant suggested that the defendant in DCCC 1217/2007 was the victim in this case and that her conduct in DCCC 1217/2007, as identified by Judge Chan, indicated that she was not a mentally incapacitated person.

49.  The appellant pointed out the discrepancies and contradictions in the evidence of the victim and suggested that she was not a truthful or reliable witness. He emphasized that there was no supporting evidence showing that he had met the victim on 9 May 2004. He said the police had inspected the CCTV recordings of Wah Kwai Estate and the 7-Eleven store, and none captured his presence at the scene.

50.  The appellant said according to the Forensic Pathologist, the healing tear in the victim’s hymen was not “recent” and therefore it did not support the prosecution case against him.

51.  The appellant repeated the evidence supporting his alibi defence and complained that when the judge pointed out that others could have used his Octopus card, he had misdirected the jury.

52.  The appellant further suggested that the judge should not have told the jury that it was sufficient for them to confine their attention to the transcripts of the video interviews when reviewing the victim’s evidence.

The Respondent’s Position

53.  Ms Mary Sin, on behalf of the respondent made concessions on two points, (1) the judge’s direction on whether the victim was a mentally incapacitated person could have misled the jury, and (2) the judge should not have told the jury that the transcripts of the video interviews were sufficient for them to review the victim’s evidence.

Discussion

54.  The appellant’s reference to DCCC 1217/2007 was not something we could have regard to for the simple reason that it had not been adduced as evidence at trial. Indeed, the case in DCCC 1217/2007 only occurred in 2007, three years after the appellant was alleged to have committed the offence.

55.  The appellant was right to refer to the discrepancies and contradictions in the evidence of the victim. The appellant was entitled to emphasize the evidence consistent with his alibi defence. However, the judge had carefully and sufficiently reminded the jury of those matters to enable them to make a decision.

56.  The judge had also properly and sufficiently directed the jury in relation to the defence case, including the Octopus-card records. The judge specifically reminded the jury that the appellant’s Octopus-card records were consistent with his evidence, although there was no conclusive evidence that the appellant was the actual user of the octopus card. The direction was proper and correct.

57.  It was an admitted fact that the quality of the CCTV recordings of the 7-Eleven store was poor and the images of persons were difficult to see. There was no evidence that CCTV would cover every spot within the vicinity of the Wah Kwai Estate, and therefore the absence of video recordings confirming the appellant’s presence did not mean that he was never there. The evidence did not prove, one way or the other, if the appellant was there at the material times.

58.  The Forensic Pathologist’s evidence was consistent with the victim’s evidence of having sexual intercourse about two days before the examination on 11 May 2004.

59.  The appellant’s complaints in respect of CCTV recordings and the Forensic Pathologist’s evidence had not been made out.

60.  The offence in question is unlawful sexual intercourse with a mentally incapacitated person, which under s 117 of the Crimes Ordinance Cap 2000, means “a mentally disordered person or a mentally handicapped person within the meaning of the Mental Health Ordinance (Cap 136) whose mental disorder or mental handicap, as the case may be, is of such a nature or degree that that person is incapable of living an independent life or guarding himself against serious exploitation, or will be so incapable when of an age to do so.”

61.  To establish a charge of unlawful sexual intercourse with a mentally incapacitated person, the prosecution had to establish not only that the victim was a mentally disordered person or a mentally handicapped person within the meaning of the Mental Health Ordinance, but also that the victim, because of his mental disorder or mental handicap, was incapable of living an independent life or guarding himself against serious exploitation (See HKSAR v Chan Po Shan & Another [2004] 3 HKLR 966).

62.  The judge told the jury that the clinical psychologist considered the victim fell within the definition of “mentally handicapped person” in the Mental Health Ordinance, and also fell within the definition of “mentally handicapped person” in the Crimes Ordinance. This was probably a slip of the tongue as the Crimes Ordinance only defines “mentally incapacitated person” and not “mentally handicapped person”.

63.  There was evidence to support the view that the victim was in fact incapable of living an independent life or guarding herself against serious exploitation when “her ability of total independence were lower than that of children of the same age, only equal to a child of 12 years and 9 months” and that her rate of retardation was such that her ability was similar to a 6 – 8 year-old child.

64.  At the time of the offence, the victim was 15 years and 9 months old and under s 124 of the Crimes Ordinance, it is an offence for a man to have unlawful sexual intercourse with a girl under the age of 16.

65.  The reason for such an “absolute offence” is perhaps because the law does not regard a girl under the age of 16 capable of guarding herself against exploitation of a sexual nature.

66.  The victim was a mentally disordered or handicapped person within the meaning of the Mental Health Ordinance, and was under 16 at the time of the offence. There was evidence that could have been relied on to prove that she was incapable of guarding herself against exploitation of a sexual nature, which must be serious exploitation.

67.  However, we did not find it necessary to decide if the issue relating to the victim’s mental condition sufficient to vitiate the conviction against the appellant.

68.  The case essentially rested on the credibility and reliability of the victim, which was of course a matter for the jury to decide, after properly reviewing her evidence.

69.  The transcripts of the victim’s videotaped interviews were not themselves evidence and they were only presented to the jury to assist them to properly understand her evidence.

70.  The videotaped interviews, under s 79C of the Criminal Procedure Ordinance, tendered with the leave of the court, were evidence and the jury must have regard to such evidence to determine the credibility and reliability of the victim.

71.  The issues relating to evidence of a child witness given by way of video recording were canvassed in R v Welstead [1996] 1 Cr A R 59 where it was held that “the judge was entitled to allow the jury to have copies of the transcripts of the video recordings whilst those recordings were being played, provided (1) that the transcripts would in fact be likely to assist them in following the evidence of the witnesses in question; (2) that the judge made clear to the jury that the transcripts were made available to them only for that limited purpose, and that they should concentrate primarily on the oral evidence; and (3) that the judge gave the jury such directions, both at the time and in the summing-up, as would be likely to be effective safeguards against the risk of disproportionate weight being given to the transcripts”.

72.  Evans LJ emphasized at p 68 (E), that “the video recording enables the jury to observe the child’s demeanour as a witness, just as it can do if the evidence is given orally and in court”.

73.  The judge could provide the jury with transcripts of the video recordings whilst they were being played, if that would assist them to follow the evidence, but the judge must make clear to the jury that they were only provided to them for that limited purpose.

74.  However, the judge not only failed to properly direct the jury that they should concentrate on the victim’s oral evidence as contained in the video recordings and that the transcripts were available to them only for the limited purpose of assisting them in following the evidence of the victim, but also wrongly emphasized to the jury that the transcripts would be sufficient to review the evidence of the victim, when the transcripts themselves were not evidence.

75.  The judge’s direction to the jury would no doubt have created a risk of the jury giving disproportionate weight to the transcripts.

76.  We were of the view, as fairly conceded by Ms Sin on behalf of the respondent, that there was a material irregularity in the judge’s summing-up to the jury on how the jury should approach the transcripts of the victim’s video recorded evidence.

77.  The conviction against the appellant in the circumstances was unsafe and unsatisfactory. We therefore allowed the appeal and quashed the conviction against the appellant.