HKSAR v. BOONKONG SUPIT

DCCC 1134/2018

[2021] HKDC 858

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1134 OF 2018

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REASONS FOR VERDICT

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1.  The defendant originally faced a total of 5 charges. 4 of those charges had already been dismissed prior to the commencement of this trial. The only remaining charge, namely Charge (2), is the subject matter in the present trial.

2.  Charge (2)  is an indecent conduct towards a child under the age of 16 years charge, contrary to sections 146(1)  and 153P of the Crimes Ordinance.  The particulars of offence initially stated that the defendant, on a day unknown in 2016, in Thailand, committed an act of gross indecency with or towards X, a girl of the age of about 11 years.

3.  The prosecution subsequently amended its particulars by expanding the dates of the offence to “on a day unknown between 2016 and March, 2017”.

4.  The defendant pleaded not guilty to the Amended Charge (2).

5.  A substantial part of the prosecution's case against the defendant is based on a video recorded interview conducted by the police on the defendant between the hours 1305 to 1448 on the 8 September 2018 (“the VRI”).  Admissibility of the VRI as well as other related documents were challenged by the defence.  The alternative procedure was therefore adopted.

Prosecution witnesses

6.  The prosecution called all together 6 prosecution witnesses.

7.  The first prosecution witness is Social Worker A (“PW1”).

8.  She is a social worker responsible for school counseling.  It was her testimony that on the 7 September 2018, she had a chat with a student at school and subsequently interviewed this student.  As a result of such interview, she informed the Social Welfare Office as the subject matter in question was related to child abuse.

9.  PW1 wrote down on Exhibit P17 the name of the said student in Chinese characters.

10.  PW1 further told this court that this student was originally from Thailand but was studying in a Hong Kong school at the time of the said interview.

11.  The second prosecution witness is Detective Police Constable 14588 (“PW2”).

12.  PW2 told this court that in the late evening on the 7 September 2018, he and his team members, arrived at the defendant’s premises in Kowloon City (“the Premises”)  for the purpose of arresting the defendant.

13.  According to PW2, upon the police arrival, PW2 himself revealed his police identity to the defendant and informed the defendant that the purpose of the police’s visit was to investigate an indecent assault case that occurred in March 2018 in relation to a 13-years-old girl.  PW2 recalled telling the name of the girl to the defendant.

14.  The defendant allowed the police to go into the Premises.  After confirming the identity of the defendant, PW2 declared arrest on the defendant for the offence of indecent assault and cautioned him.  The defendant responded, also in Cantonese, by saying: “I didn't do it”

15.  The defendant was subsequently taken to the Kowloon City Police Station.

16.  PW2 subsequently served on the defendant a “Notice to Persons in Police Custody or Involved in Police Enquires (Pol 153)” (“Exhibit PP5”).  This piece of document was printed in Thai.  PW2 did not read the content of Exhibit PP5 to the defendant but allowed him read the same by himself.  It took about 5 to 6 minutes for the defendant to complete his reading and after which the defendant made no request.  The defendant subsequently signed on Exhibit PP5.

17.  PW2 interviewed the defendant again on the following day.  This time he was assisted by a Thai interpreter, Madam Wannee Poon (“PW3”).  With the assistance of PW3, another “Notice to Persons in Police Custody or Involved in Police Enquires (Pol 153)” (“Exhibit PP6”)  was served on the defendant.  PW1 was able to observe that PW3 was explaining to the defendant in Thai, albeit PW2 was not able to understand the same.

18.  Around mid-day on 8 September 2018, again with the assistance of PW3, a written statement (“Exhibit PP7”)  was taken from the defendant.

19.  Exhibit PP7 was written in both Chinese and Thai.  PW2, PW3 and the defendant all signed on it.

20.  PW2 confirmed that before and during the taking of Exhibit PP7, no force, threat or inducement was administered on the defendant by PW2 himself or anyone in his presence.

21.  After the completion of Exhibit PP7, a copy of which was given to the defendant.  The defendant acknowledged the receipt of the said copy in an “Acknowledgment of Receipt of a Copy of a Statement/Document” (“Exhibit PP8”).  Again PW3 assisted in the interpretation throughout this process.

22.  Between 1305 to 1448 hours on 8 September 2018, PW1 and his colleague Detective Police Constable 58604 (“PW4”)  conducted the VRI with the defendant with the assistance of PW3.  The Master Disc, the Working Copy, the Transcript in original Chinese and Thai and the English Translation of the Transcript were marked as Exhibits PP9, PP10, PP11 and PP12 accordingly.

23.  Parties had also agreed to the correction to Exhibit PP12 at various stages of the trial.  Such corrections were marked as Exhibit PP12(a), PP12(b)  and PP12 (c).

24.  PW1 confirmed that before and during the VRI, no force, threat or inducement was administered on the defendant by PW2 himself or anyone in his presence.

25.  The communication between PW2 and the defendant had all along been in Cantonese.  PW2 found that he had no problem in communicating with the defendant.

26.  PW2 further told this court that the name of Girl X was communicated to the defendant during the arrest process of the defendant as well as during the VRI.

27.  PW2 wrote down the name of Girl X in English letters on Exhibit P18.

28.  PW2 was also referred to the content in an Occurrence Book at pages 152-154 [Exhibit P19]. It was him who recorded down entries at #3881 and #3899 therein according to the information furnished to him by his colleague.  Those said entries revealed that PW3 was the Thai interpreter who assisted the police on 8 September 2018 in the present case whereas another Thai interpreter was engaged on the previous day.

29.  During cross examination, PW2 was challenged by the defence on, inter alia, the following matters:-

(i)  That the defendant was pushed and handcuffed by the police in the Premises;

(ii)  Whilst still inside the Premises, the defendant made a request to the police, in Cantonese, that he wanted to call his girlfriend. That was met by the response from the police of: “Don't say anything now, go to the police station;

(iii)  PW2 did not tell the defendant the purpose of their visit;

(iv)  PW2 never mention the age of the girl to the defendant;

(v)  When the defendant arrived at the police station, he was taken into a cell room. There the defendant made his request of calling his girlfriend again. This time, PW4 told the defendant: “We are off duty now, do it tomorrow”; and

(vi)  Not paying sufficient heed to the well-being of the defendant after he expressed, during the VRI, that he had not eaten.

30.  PW2 denied the aforesaid allegations against him.

31.  The third prosecution witness, PW3, was and still is a registered Thai-Chinese interpreter.  She confirmed that on 8 September 2018, she was invited by the police to render her assistance in the present case.

32.  Due to the lapse of time, however, she was not able to recall the minute details in which he dealt with the defendant nor the exact conversation that she had with him. 

33.  What PW3 was able to recall was: that she had explained the entire content of Exhibit PP6 to the defendant; she took part in the interpretation and translation insofar as Exhibits PP7 and PP8 were concerned; and she further took part as an interpreter during the course of the VRI.    

34.  PW3 was challenged by the defence during cross-examination on the following matters:-

(i)  that she took part as an interpreter in the present case prior to meeting the defendant on 8 September 2018;

(ii)  that she only read out the first paragraph in Exhibit PP6 to the defendant whilst handed such document to the defendant and told him to read it by himself;

(iii)  that she failed to ascertained from the defendant that they speak the same dialect in Thai; and

(iv)  that her interpretation during the VRI was not accurate in that she prompted questions that were not asked by the police and what was said by the police and the defendant were, on occasions, not accurately interpreted.

35.  PW3 explained that she was not able to recall whether or not she rendered assistance to the police on 7 September 2018, albeit it seemed to her that she might have taken part in asking the victim questions.

36.  PW3 told this court that it was her normal practice to explain the entirety of document like Exhibit PP6 to a suspect.

37.  As to the accuracy on her interpretation, PW3 acknowledged that she had, on several occasions, omitted in interpreting what was said by Police as well as the defendant. PW3 said that those were sheer omissions on her part.  The same was not done deliberately. 

38.  Further, she also acknowledged that extra questions were asked by her during the VRI.  She explained that she was only doing so for the purpose of making a coherent sense of the questions and/or answers involved.

39.  PW3 confirmed that throughout her communication with the defendant at different stages on 8 September 2018, she understood fully what the defendant said to her and vice-versa.

40.  The fourth prosecution witness, PW4 was one of PW2’s team member who took part in arresting the defendant as well as conducting the VRI.

41.  During cross-examination, PW4 acknowledged that he was responsible for compiling the investigation report in the present case.  He further acknowledged that he recorded down in the said investigation report concerning the video recorded interview of Girl X on 7 September 2018 that 2 Thai interpreters were involved in assisting the police and one of them was PW3. 

42.  The fifth prosecution witness was Ms Cheung Tsz Yin, immigration officer of the Immigration Department (“PW5”).

43.  PW5 was responsible for producing 2 set of immigration movement records. 

44.  The movement record of Girl X was Exhibit P2 whilst the movement record of the defendant was Exhibit P13.

45.  The sixth prosecution witness was Mr Fan Chi Yan, chief immigration officer of the Immigration Department (“PW6”). 

46.  PW6 produced the birth certificate of Girl X: Exhibit P1.

47.  With regard to the admissibility of Exhibits PP5 to PP12(c), this court ruled that there was a case to answer for the defendant. 

48.  The defendant elected to testify for the special issue as well as calling Dr Chan Sze Tong (“DW2”)  as defence witness.

49.  The defendant told this court in his testimony that in the evening on 7 September 2018, a group of police officers arrived at his residence.  The defendant said that he was pushed back into the inner part of the Premises by the police.

50.  He was handcuffed by the police.

51.  The police spoke to the defendant in Cantonese which the defendant failed to understand except the phrase “非禮” (meaning indecent assault).

52.  As the arrest was a shock to the defendant, he was minded to ask the police the reason of his arrest.  In not being able to express himself clearly in Cantonese, all he managed to say was: “Didn't do it”

53.  The defendant also requested the police, in Cantonese, that he wanted to call his girlfriend. That was met by the response from the police of: “Don't say anything now, go to the police station.  

54.  When the defendant arrived at the police station, he was taken into a cell room.  There he made his request again, in Cantonese, for calling his girlfriend.  This time, PW4 told the defendant: “We are off duty now, do it tomorrow”

55.  In respect of Exhibit PP5, the defendant said that upon receiving the same, he found it hard to digest its content as he was at a bad mood at the time.  The reason that he affixed his signature of it was because he was told by PW2 to do so and he complied.   

56.  The defendant also described that in the morning on 8 September 2018, he experienced headache.  He thus requested the cell guard to provide him with some painkillers.  He was told by the cell guard, however, that an application for such medication need to be made and the process of which would be quite long.  Upon hearing that the defendant pursued no further with the painkillers and bore with the headache.

57.  The defendant explained that his headaches stemmed from a previous traffic accident encountered by him.  3 photographs depicting the consequential injury of the said traffic accident were produced as Exhibit D1 (a)-(c).

58.  Although breakfast was provided to the defendant in the morning on 8 September 2018 by the police, due to the defendant’s emotional state at the time, he consumed no food.

59.  The defendant confirmed that he met PW3 later that morning.  The defendant described that PW3 only read out the first paragraph in Exhibit PP6 to him.  Thereafter PW3 merely handed this document to the defendant and he was told to read it by himself.

60.  The defendant described that during the course of the VRI, he was both hungry and experiencing headache.

61.  During cross-examination, the prosecution asked the defendant to explain as to what he meant when he said to the police: “I didn't do it”.  To that the defendant repeatedly stressed that he said such words as he wanted to ask the police what he did wrong.

62.  Subsequently, when the prosecution pressed further by drawing the defendant’s attention to the content of Exhibit PP7, the defendant then acknowledged that he signed in such document because the content in Exhibit PP7 was correct and reflected what happened there and then.

63.  With regard to the headache experienced by the defendant, it was initially maintained by him that he started to experience such headache after he woke up in the morning on 8 September 2018.  However, as the cross-examination progressed, the defendant began to suggest that such headache started to develop as early as the night before.   

64.  Follow-up questions were asked by the prosecution as to whether the defendant ask for any medication for the headache before he went to sleep, to that the defendant explained: “On the first night I had headache, I could bear with it.  But in the morning, I had the headache that I couldn't bear and so I asked for the medicine”. 

65.  The prosecution pressed yet further by asking: “Why didn't you ask for any medication when you first got your headache?  The defendant replied by saying: “Because on that night I asked the supervising personnel as to why I was being arrested.  They didn't care at all.  So, on that night I didn't make a request”.

66.  Regarding what was said by PW3 during the VRI, the defendant put forward the notion that he did not fully understand the Thai spoken by PW3.  He explained this by saying that the Thai dialect spoken by PW3 was what he regarded as “Real Thai”, whereas the one that he was familiar with was spoken by the people on the fringes of Thailand, the province in which he was born being one of them.   

67.  The prosecution challenged the defendant by suggesting to him that he seemed to have no problem in answering all the questions asked of him during the VRI, to that he said: “During the VRI I did not quite understand.  But when I looked at the transcript, I only knew by then what I answered there was problem or problematic”.  When the prosecution pressed further by demanding an answer for the same question, the defendant replied that when he answered those questions asked by the police, he gave some of his answers “without listening or understanding the question clearly”.

68.  The prosecution pressed on and asked the defendant the reason behind him doing so.  The reply given by the defendant was: “Because at the time I was in bad mood and was hungry or that I was nervous.  I thought about my wife.  I had headache.  And I would like to go home”

69.  With regard to Exhibit PP6, the prosecution challenged the defendant by suggesting to him that he affixed his signature on it because he understood all the rights stipulated therein.  To that the defendant replied: “I didn't understand fully the content.  He asked me to sign therefore I signed.  I didn't think it mattered because I did not do anything wrong”.

70.  The prosecution followed that up by asking: “You had a chance to read through it and was given time to do it before you signed?”  To that the defendant replied: “I did read but I didn't pay attention to it because I didn't do anything wrong.  Because when I read the text, it needs a lot of time.  And the words there I found it hard to comprehend and I need a lot of time for reading”.

71.  Similar explanation was given by the defendant when he was faced with the same challenge by the prosecution insofar as Exhibit PP7 was concerned.

72.  However, when the defendant was asked by the prosecution whether nor not it was the case that Exhibit PP7 was translated to him by PW3, the defendant postulated the notion that PW3 did no such translation and that he was told to read the same by himself.

73.  DW2 is a Neurosurgeon who was testifying as an expert witness.

74.  DW2 had the opportunity to assess the defendant in the year 2020.

75.  A report of the defendant dated 10 August 2020 was compiled by DW2 [Exhibit D2].  

76.  In Exhibit D2, DW2 outlined the traffic accident suffered by the defendant in the year 2018 in Thailand as well as the consequential injuries.

77.  With regard to the physical state of the defendant during the VRI, it was the opinion of DW2 (at paragraph # 7.3)  that: “As the interview went on, (the defendant)  became stressed and had a headache.  The headache may be due to dehydration, or to muscular tension associated with stress.  It could also be a symptom of hypoglycaemia.  The (defendant)  reported that he was mentally confused at certain points in time, and he did not understand fully what was translated through the interpreter.”

78.  DW2 concluded that during the VRI, the defendant was in state of stress, with possible hypoglycaemia and dehydration.  If he were in a state of hypoglycaemia, the veracity of his statements could be affected.

79.  In cross-examination, DW2 confirmed that the defendant made no complaint of any distress or headache.

80.  DW2 agreed with the prosecution that even if the defendant was in a state of hypoglycaemia, it would not necessarily affect the veracity of the defendant’s statement.

Ruling on the Special Issue

81.  I find PW2, PW3 and PW4 all to be honest and reliable witnesses.  They related to this court the events that they were able to recall whilst candidly acknowledged those that they were not able to do so.

82.  I am satisfied so that I am sure that the course of arrest of the defendant as well as the way in which Exhibits PP5, PP6, PP7, PP8 and the VRI were all made and conducted as per PW2’s testimony.

83.  I am also satisfied so that I am sure that PW3 performed her duty as a Thai-Chinese interpreter in the way described by her insofar as Exhibits PP6, PP7, PP8 and the VRI are concerned.

84.  On the other hand, I do not accept the allegations raised by the defendant nor do I find him to be a credible witness.

85.  A notable example would be the defendant’s assertion that at the time when the police declared arrest on him in the Premises, he was not able to understand anything said by PW2 in Cantonese bar the phrase of “非禮” (meaning indecent assault).

86.  Further, according to the defendant, as a result of him not being able to understand what the police said to him, he wanted to ask the police what wrong did he commit.  However, being not a person fluent in speaking Cantonese, what the defendant in fact replied, in Cantonese, was: “I didn’t do it”.

87.  I find this version described by the defendant is incredible by itself.  What makes it worst is that when the defendant was answering questions from the prosecution in relation to his headache, he described a scenario whereby he asked a “supervising personnel” as to why he was being arrested whilst he was detained in the police cell.

88.  Logic dictates that if such question was asked by the defendant, he must have had made such communication to the “supervising personnel” in Cantonese.  It therefore begs the question: If the defendant was able to make such enquiry before the “supervising personnel”, then why wasn’t he be able to ask the same question at the time of his arrest?

89.  The contradictory level of the defendant’s assertion in this aspect was augmented when he eventually agreed with the prosecution that in fact “the content in Exhibit PP7 was correct and reflected what happened there and then”.

90.  Another example of the incredibility nature of the defendant’s testimony is his assertion that he was not able to understand fully what was said by PW3 during the course of preparing Exhibits PP6, PP7and PP8 as well as during the VRI.

91.  It is clear that the defendant had answered each and every question put to him by PW3 during the course of the VRI.  Likewise, PW3 told this court that she had no problem in communicating with the defendant.

92.  It is also clear that, if PW3 was speaking what the defendant described as “Real Thai” during the VRI, the defendant himself must have had giving his answers in “Real Thai” as well.

93.  Such was also verified when this court made enquiry of the defendant whether he was able to understand the Thai spoken by the court’s interpreter during the course of this trial.  The defendant confirmed that (i)  the court’s interpreter was speaking “Real Thai” and (ii)  He was able to understand everything said by the court’s interpreter.

94.  Further, at no point, during the VRI, did the defendant indicate or express that he had a problem in understanding what was said to him by PW3.

95.  Yet a further example of the defendant’s incredible testimony is his assertion of headache.

96.  No complaint was made during the VRI by the defendant in relation to any distress, pain or headache.

97.  All in all, I do not find the defendant to be a credible witness. I reject his evidence.

98.  With regard to DW2, I accept the expert testimony of this witness.

99.  As to the physical state of the defendant on 7 & 8 September 2018, it is clear that all this expert witness was able to say was the possible cause of headache if the defendant did experience one.

100.  After considering all the evidence related to the special issue, I ruled that Exhibit PP5, 6, 7, 8 and 9 were made voluntarily by the defendant and I do not see the need to exercise my discretion to exclude any of them.  I ruled them to be admissible.

101.  The associated documents, namely Exhibit PP10, 11, 12, 12(a), 12(b), 12 (c)  and 12(d)  were also ruled by me to be admissible.

102.  They were thus admitted into evidence as Exhibits P5, 6, 7, 8, 9, 10, 11, 12, 12(a), 12(b), 12(c)  and 12(d).

103.  After the close of the prosecution case, submission of no case to answer was made by the defence.

104.  The essence of the defence’s submission was that the prosecution failed to prove, to the requisite standard, the age of Girl X.

105.  This court rejected the defence submission.

106.  It was stipulated under section 24(2)  of the Births and Death Registration Ordinance, Cap 174 that “Every entry and every certified copy of an entry in a register shall be received as evidence of the birth and death to which the entry relates without other or further proof of such entry”.

107.  The Birth Certificate of Girl X (Exhibit P1)  recorded both her name in English as well as in Chinese characters. 

108.  In Exhibit P7 and P11, the name of Girl X in English was stated therein.

109.  The name of Girl X in Chinese characters was written down by PW1 on Exhibit P17.

110.  This court was satisfied that the prosecution had established sufficient nexus in proving, to the requisite standard, that Exhibit P1 is the Birth Certificate of Girl X.

111.  By the application of section 24(2)  of the Births and Death Registration Ordinance, this court was satisfied to the requisite standard as to the age of Girl X.

112.  In view of the aforesaid, this court ruled that there was a case to answer for the defendant in respect of the Amended Charge (2).

113.  The defendant elected not to testifying nor call any defence witness for the general issues.

Analysis

114.  As all along maintained by the prosecution, their case rest almost entirely on the admission made by the defendant in the VRI as there was no live evidence from Girl X.

115.  It is clear from what the defendant related to the police during the VRI that there was an occasion in Thailand, when both the defendant and Girl X were in X’s maternal grandmother’s home, the defendant took out his penis and placed the same close to Girl X’s mouth for about 2 seconds.

116.  According to the prosecution’s case, as particularized in the original Charge (2), such incident took place “on an unknown date in 2016”.

117.  Towards the end of the prosecution, the prosecution elected to amend Charge (2)  by stretching the date of the offence to “on a day unknown between 2016 and March, 2017”.

118.  That became Amended Charge (2).

119.  There is no doubt that the prosecution bears the burden to prove each and every element of the offence as stated in the charge.  The date of the offence is obviously an essential ingredient that must be proved.

120.  From what was revealed in the VRI, reading in conjunction with Exhibit P12, it is clear that the initial allegation put forward by the police against the defendant was an incident allegedly happened in the year 2018 and the location of which was in Hong Kong.

121.  As the VRI progressed, the defendant related to the police the subject matter of Amended Charge (2).  The police were trying to ascertain from the defendant the date when such incident occurred.  To that the defendant repeatedly said that he was not certain.

122.  When the police pressed further in this regard, there were the following exchanges between the PW3, PW4 and the defendant at # 572 to #584 in Exhibit P12.

“596	C	Well, earlier, that is, (asked)  why, you asked me why (I)did those acts, (it)was because I was drunk.
570	B	He got drunk by himself?
571	C	Drunk, I got drunk by myself.
572	B	Therefore, he d-d-d-d-did such (act of)  taking (out his)  penis and (putting it)  in front of Girl X earlier?
573	C	It’s because you were drunk, so you took your penis out and put your penis next to a mouth of a child?
574	D	Yes.
575	C	Yes.
576	B	At that time, how old was Girl X?
577	C	How old was Girl X at that time?
578	D	At that time she not yet come here.  I was with her mother for four years, then it should be around the first two years of our relationship. She still a very little girl.
579	C	She had not come yet [(She)”Still had not come here” means(she)  still has not come to Hong Kong, right?]
580	D	No, not yet come to Hong Kong.
581	C	(It)  was before she came to Hong Kong, at that time she was still little, probably around two years ago.
582	B	Two years ago, two years ago, that is, the year (2016), well, I want to ask, how many of (these)similar incidents took place?
583	C	So how many time did this kind of incident happened?
584	D	It happened only once. One time only.”

123.  It is clear from the aforesaid exchanges that the time frame of “two years ago” and “the year 2016” were not originated from the defendant himself, but from PW3 and PW4 respectively.

124.  There are no other answer coming from the defendant during the VRI that suggest that the incident stipulated in the Amended Charge 2 occurred “on a day unknown between 2016 and March, 2017”.

125.  All that was said by the defendant was that he known his girlfriend for about 4 years and that prior to Girl X coming to Hong Kong, there had been many occasions that he was staying at the home of Girl X’s maternal grandmother.

126.  With the aforesaid evidence, this court cannot be sure whether the incident as alleged in the Amended Charge (2)  fall within the time frame as stipulated.

127.  It is for this reason that the prosecution fails to prove Amended Charge (2)  beyond reasonable doubt.

128.  The defendant is therefore acquitted accordingly.