HKSAR v. CHOW KIN CHUEN

HCMA 175/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 175 OF 2011

(ON APPEAL FROM FLCC 2019 OF 2010)

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J U D G M E N T

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Background

1.  The appellant was charged with 4 counts of indecent assault, contrary to section 122(1) of the Crimes Ordinance.

2.  The appellant pleaded not guilty to all the charges.  He was convicted after trial and sentenced to a total of 14 months.  He sought to appeal against both conviction and sentence.  Later, the appellant abandoned the appeal against sentence.

3.  The trial was conducted in Chinese, however, for the appeal, which was done in English, all the relevant documents were translated into English.

The prosecution case

4.  All the 4 offences involved the same underage girl, X, the location of the incidents were also the same, i.e. a flat in Shatin.

5.  At the trial, the prosecution had called a total of 6 witnesses.  X, the girl victim of these charges, was the main witness.  She had adopted her 2 taped interviews as her evidence‑in‑chief.

6.  X and the appellant were relatives.  The appellant was her uncle (二姑丈). 

7.  In August 2003, X, having trouble with her mother (PW2), was arranged to stay at the appellant’s home.  The appellant’s son and daughter were living in the same flat, which was the unit referred to in the charge.

8.  In the same year after she moved in, according to X, on one occasion when she was permitted to play on the computer, the appellant suddenly touched her breasts for 1 to 2 minutes.  She felt embarrassed and walked away from the appellant. She did not mention the incident to anyone.

9.  On a subsequent occasion in 2003, while she was again playing computer games in the room, the appellant used his hands to press on her breast for several minutes.  This time he went further and inserted his hands under her shirt and touched her breast.  He also touched her private parts from outside her pants. The appellant stopped when someone appeared to be coming home.  X said she dared not tell anyone about the incident.

10.  Then on a morning between September and December 2003, the appellant told her to lie down on his bed and close her eyes.  X said she felt her clothes being lifted up and the appellant touched her breast area.  He also loosened her pants, parted her legs and used his fingers to fondle her private parts.  X said the appellant’s fingernails had caused her pain.  The appellant said something indecent which made her uncomfortable and nervous.  Then he asked her to turn over and he felt her private parts.  After a while, he helped her put back her pants.

11.  According to X, the incident of the 4^th Charge took place on a day in September 2004. What transpired was that the appellant asked X to watch porn cartoon with him. During that, he lifted up her clothes and licked her breast area for several minutes.  Having finished, the appellant then gave her some biscuits and made some obscene remarks.  X said she just went to the bathroom to clean herself up.

12.  According to X, when she was still living in the appellant’s home, he would threaten her not to disclose about the molesting every time she would return home for the weekend.

13.  X then related what had happened afterwards leading to her disclosing the incidents to the school social worker (PW4) in February 2009.  She said she felt upset and had nightmares.  PW4 had suggested to her that she should inform her family but she declined as she did not want her mother to worry. Subsequently, X said that the appellant had an argument with her eldest uncle. She felt that the appellant was bullying her family, so she disclosed the incident to her aunt.  She was told that the appellant had denied the allegations and even made a report to the police. 

14.  PW2 is X’s mother.  She confirmed the background of how X had ended up staying with the appellant’s family from August 2003 to 2005.  She said that during that period, X would return to her once a week.  In March 2010, PW2 said that X appeared to be emotionally unstable, so she asked her about it, but X just said that the appellant had not treated her well, nothing about any molesting.  She only learned about the accusation of indecent assault after the appellant had made a report to the police.

15.  PW3 was X’s schoolmate.  She testified that in October 2009, X had related to her about how the appellant had molested her and made her watch porn movies.  X further said that she dared not to tell her mother.  PW3 said she informed the school social worker, PW4, about the incident although X told her not to disclose the matter.

16.  PW4 was the social worker involved.  She said she got to know X in a voluntary service in the summer of 2008.  She came to know that she did not have a happy childhood and was not living with her parents.  In February 2009, she had met X concerning her poor school performance.  During that meeting, X revealed to her about the touching by the appellant.  PW4 said she made a brief record of what X had said.  There were further meetings with X in which X had given more details about the touching episodes.

17.  There were also 2 other social workers from the Social Welfare Department called by the prosecution to testify.  I believe their evidence had no significant bearing on the case.  I will not go into the details.

The defence case

18.  The appellant had chosen to testify and called 2 witnesses, i.e. his wife (DW2) and daughter (DW3).

19.  The appellant was 54 years old, and he was doing business in areas of clothing, Chinese herbs and dried seafood.  He confirmed X had moved to his home in mid-August 2003 and her parents were happy about the arrangement.  He knew that X had been a victim of abuse and the Social Welfare Department had stepped in to help her.  He said he had been nice to X. 

20.  He related to the court about the daily routine of the family and he pointed out that while X was staying with him, he would pay for all her living expenses.  He even gave her a mobile phone to use so that she could be located if necessary. He described their relationship to be like father and daughter.  He would even wash her hair and apply medicated oil on her body when she was not feeling well, and in that regard, the appellant said X had never expressed any objection.

21.  The appellant recalled that in 2003, X had gone back home for the Christmas holiday, then in the summer of 2005, X had returned to her own home for good as her mother (PW2) promised she would not hit X anymore.  After that, he would make calls to enquire about X.  He even sent a set of computer to her. 

22.  Later, he had fewer contacts with X as he was busy with his own business and he thought X had returned to a normal life.  However, in the Lunar New Year of 2009, when he met X again, the appellant said he felt X being unfriendly towards him.  He said he was puzzled but he thought that was due to the dispute among the adult relatives.

23.  Then on 11 March 2010, the appellant said X’s father went to his home and accused his family of cheating.  He was beaten up when he denied the accusation, and had to be hospitalized.  During his stay at the hospital, X, through her mother, had passed a message to him which was some kind of warning.  At the time, he did not pay much attention to the matter.  Later, the brother of X’s father had called his wife (DW2) asking for a meeting.  She was threatened that it was about something that could cause him (the appellant) to go to jail.  His wife was angry about this and having discussed with his son, he decided to make a report to the police.

24.  The appellant said X’s father was imprisoned for 3 months for having assaulted him.

25.  In short, the appellant denied having done the indecent acts to X.  He said his son and daughter had a computer at home but they were secured by passwords.  He himself did not know how to use a computer.  He actually disliked his children playing computer games.  He only learned later how to use the computer to transfer money online.

26.  The appellant’s wife, DW2, also said that the appellant had treated X like a daughter.  She also disclosed about the dispute among the relatives which involved X’s father and uncle.  Later, she confronted the appellant about X’s allegations.  He denied and appeared to be furious.

27.  DW3 was the appellant’s daughter, now a teacher.  I see no direct of her evidence on the case.

The magistrate’s assessment of the evidence

28.  The magistrate had gone through the evidence and submissions in great detail.  His decisions on the credibility and reliability of the witnesses could be stated simply as follows: there were major discrepancies in the testimonies given by the appellant and the 2 defence witnesses; individually, the evidence of the appellant and the 2 defence witnesses were unbelievable; X was an honest and reliable witness, PW2 was honest but unreliable due to her forgetfulness and no weight could be attached to her testimony; PW3, PW4, PW5 and PW6 were all truthful and reliable witnesses.

Grounds of appeal

29.  Counsel for the appellant, Mr Oliver Davies, put forward the following grounds for the appeal:

“The appellant appeals against his conviction upon the charge on the grounds that:

1. The learned magistrate wrongly permitted the prosecution to adduce hearsay evidence namely:

(i) The testimonies of:

(a) PW2 (the mother of PW1, the alleged victim);

(b) PW3 (a friend of PW1);

(c) PW4 (a social worker).

These witnesses testified about what had been said to them by PW1 several years after the alleged incidents. The learned magistrate gave full weight to the evidence of PW3 and PW4 and relied on such to show consistency with PW1’s testimony.

(ii) Exhibit Nos. 6, 8, 9 & 10, SMS messages between PW1 and PW4, which referred to the alleged assaults. These messages were written in 2010, approximately seven years after the alleged assaults.

(iii) Exhibits P.2 & P2A, video interview records of PW1.

2. The learned magistrate failed to properly consider the evidence of PW5. PW5 was a social worker attending PW1 at the time of the alleged incidents.

The appellant appeals against his sentence upon the charge on the grounds that:

1.  The sentence is manifestly excessive.”

Assessment

30.  Mr Davies had prepared a written submission to substantiate the grounds of appeal and Ms Lam, Senior Prosecutor, had responded to the arguments by a written submission.

31.  First of all, the appellant would no longer pursue the 3^rd limb of the 1^st Ground, which was the issue regarding the admission of the 2 video interviews by X.  I must say this ground could hardly be argued anyway, because the admissibility of such interviews is governed by statute and usually dealt with before the commencement of the trial.  I could see no basis to raise such a matter now.

32.  The main complaint in the 1^st Ground is that the magistrate had wrongly permitted the prosecution to adduce hearsay evidence, the witnesses concerned were PW2 (the mother), PW3 (X’s schoolmate) and PW4 (the school social worker).

33.  I really think there is, in practical terms, no point in attacking the testimony of PW2.  As the appellant also noted, the magistrate’s assessment of PW2’s evidence was that she was forgetful and confused about the events.  The magistrate said he could not be sure if the mother’s evidence was reliable, hence there would be no weight attached.  In these circumstances, PW2’s testimony could have no relevance to the conviction.

34.  In relation to PW3, the magistrate stated in the Statement of Finding that, he believed PW3 to be an honest and reliable witness and had told the truth in court, and that her testimony, on the whole, was consistent with that of X.  The magistrate then discussed, with illustrations, that there were no major discrepancies between X and PW3.  I see there were no reference to the issue of recent complaint or this being rebuttal evidence (para 12, Statement of Findings).

35.  The magistrate also said he believed PW4 to be an honest and reliable witness, that she had told the truth and her evidence, on the whole, was consistent with that of X.  Again, the magistrate went into detail as to why he saw no discrepancies between their evidence.  There was also no reference to the issue of recent complaint or rebuttal evidence (para 13, Statement of Findings).

36.  Then the magistrate dealt with the evidence of these 2 particular witnesses in this way (para 14):

“ Although I accept and believe in the testimonies from PW3 and PW4, they were showing PW1 had complained to them. However, those complaints were not the first and recent one. I bear in mind that it does not mean that PW1’s testimony is credible and the accusation against the defendant is true even if the complaints were accepted.”

37.  I have read this paragraph many times, in isolation and in the context of the whole Statement of Finding.  The only conclusion I could reach is that the magistrate decided that these were not recent complaints made by X to PW3 and PW4, but they were admissible and relevant evidence to show what X had complained about.

38.  However, if they were not first and recent complaints, the basic position is that such evidence is generally inadmissible.  Here, the magistrate, in the previous paragraphs, had emphasized that their evidence were consistent with the evidence of X.  The magistrate had apparently relied on their evidence to show X to be a consistent and truthful witness.  The same approach could be seen in his oral reasons for verdict.

39.  In the decision of the Court of Appeal (香港特別行政區訴張學文 (Cheung Hok Man), CACC 340/2008, unreported, in Chinese), this area of the law had been canvassed and the basic principles reaffirmed: generally speaking, evidence of consistent complaints would not be admissible, the exception was the complaints of sexual victims made in the first reasonable opportunity regarding the alleged attack(s).  And even if the court permitted the admission of such “recent complaint” evidence, the trial judge must be cautious in directing the jury on the limited purpose of such evidence (para 10(1)(2)(3) of the judgment).

40.  The respondent had argued in her oral submission that such evidence could be considered as rebuttal evidence in light of the issues raised by the defence.  But as the appellant pointed out, such evidence had been called during the prosecution case.  And in any event, the magistrate had not analysed these testimonies in the context of rebuttal evidence.

41.  In the circumstances, although the magistrate mentioned in other places in his Statement of Findings that he recognized that there was no corroborative evidence in this case, and that all depended on the quality of the testimony of X, I cannot rule out the possibility that the magistrate had relied on what he considered to be consistent complaints, inadmissible in principle, to strengthen the credibility of X.  This alone renders the conviction unsafe.

42.  As to the grounds relating to the contents of the SMS message and PW5, I would accept the submissions by the respondent.  The SMS was an item on the agreed facts, and its contents had been used by the defence in cross-examining X.  On the other hand, the magistrate had already carefully and adequately analysed the evidence of PW5.  I could not see any real merits in these grounds.

43.  The circumstances of the case was highly suspicious, and even the applicant admitted that he would help wash X’s hair and applied medical oil on her.  But considering the applicable legal principles, I have no alternative but to allow the appeal.

Result

44.  I would allow the appeal, quashed the convictions and set aside the sentence.

45.  I would order that, if both parties agree, applications by the respondent or appellant, if any, can be made in writing.