HKSAR v. TSANG YEE TAO

IN THE COURT OF APPEAL

1996, No. 719
(Criminal)

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J U D G M E N T

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Mortimer, V.-P. (giving the judgment of the Court):

1. On 18 November 1996 the applicant was convicted before Gall J and a jury of six offences of incest with his daughter. She was under 13 for the first five of those.

2. The offences began in September 1994. He was sentenced to a total of 6 years imprisonment. He now seeks leave to appeal against his conviction. He says he was unfairly prevented from cross examining his daughter on relevant points.

3. The case against him depended entirely upon the evidence of his daughter which was uncorroborated and unsupported by other evidence. His conviction, therefore, depended entirely upon the jury accepting the truth and the accuracy of her evidence.

At trial

4. Counsel wished to cross-examine the daughter about three matters. The judge refused to allow the cross-examination. The first matter was the daughter's platonic relationship with one of her teachers at school. The second matter also related to that. He wanted to cross-examine the daughter about a letter which she had written to that teacher although it would appear it had never been sent to him. The third matter was that counsel wished to cross-examine the girl about threats directed against father made to an uncle on the telephone. That was also refused.

5. The defence put forward was that the daughter was fabricating the account. In cross-examination, although she stoutly maintained the truth of her allegation concerning the offences, she was prepared to admit to hating and despising her father and to other matters which went to her credibility. In the past she had lied, she had forged signatures, pretending that they were her parent's signatures on documents at school, and she had stolen money from her mother. The basis upon which counsel wished to cross-examine was that he was in possession of statements from the teacher who was also on the back of the indictment. He wanted the teacher to be tendered so that he could cross-examine about the relationship between the daughter and the teacher. Very broadly he wanted to ask about one of the reasons why the girl had first complained about the sexual behaviour of her father. It appears from the teacher's statement that the girl complained to him about being beaten by father, but that the complaint about sexual harassment only came in consequence of a direct question from the teacher. He said, "I then asked her if he had sexually harassed her. She said yes."

6. The matter went further because in a second statement the teacher said that he had taken the girl out to lunch and had told her, among other things, that he loved her. That was relevant to the unsent letter which had been found after these matters came to light. In that letter, the girl writes to the teacher things like "I know that you will love me," and concludes "I love you". It expresses certain suicidal thoughts. It also says, "every time I stay at home to face my father and mother, I am so toilsome and unhappy". The judge ruled that cross-examination on those matters was irrelevant and was not to be permitted.

7. Thirdly, the counsel wanted to cross-examine the girl about a telephone conversation which it was alleged she had had with a person who may be her uncle. He was stopped from cross-examining on this. It was suggested - probably before the date of the first offence in the indictment - she had said to that man on the telephone that she would make sure that her father would die or drop dead. Again, a point relevant to a possible motive or animus for the girl to make up an account against father.

The respondent's case

8. These matters were central to the defence that was put forward. Mr Cross SC, for the Secretary for Justice, does not find it possible to support the judge's ruling that the proposed cross-examination was irrelevant and should not be permitted. He does contend, however, that such cross-examination could not have helped the applicant because the girl admitted that she hated and despised her father and many other matters favourable to the defence, including a failure to report the offences until some 10 months after the date of the last offence of incest. Mr Cross suggests, therefore, that the appeal should not be allowed on that basis.

Conclusion

9. We agree that the basis upon which the judge ruled the cross-examination out is difficult to understand. These were points which were essential to the defence. It was unfair to the applicant not to allow them to be put forward and it is not possible to speculate as to the effect of such cross-examination. Mr Cross may be right. It may have made the position worse for the applicant. On the other hand, he may not be right. We are not prepared to speculate. The judge ought to have allowed these matters to be advanced in fairness. They were so important to the defence. We conclude that this appeal should be allowed.

10. There is one final point put forward, that is on cross-examination of the girl on the medical examination evidence. The judge ruled that out, in our view, perfectly properly.

11. In those circumstances, we grant leave. We treat this hearing as the appeal. We allow the appeal and quash the convictions.