HKSAR v. TPD

DCCC 1014/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1014 OF 2015

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Reasons for Verdict

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1.  The defendant pleaded not guilty to three charges of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap 200.

2.  The 59-year-old defendant is the father of the complainant who was 9 years old at the time of the alleged offences.  To avoid revealing the identity of the complainant, she is referred to as “X” in the proceedings of the trial.  The complainant’s mother is referred to as “N”.

The prosecution case

3.  The prosecution case is briefly this.  The alleged offences took place on or about 22 July 2015 in the family home at a small village house in the New Territories.  The alleged incident occurred on a Wednesday night during the period from 20 to 27 July 2015 when the mother was not in Hong Kong.  On that night, at around midnight, when the defendant was sleeping with his daughters, he touched his elder daughter’s legs, vagina and breasts on a bed on three occasions.  The touching lasted for about an hour.  X eventually asked the defendant to stop.  Defendant said, “Okay” and “Good night.”  The next day, he said to X that he was sorry and asked X not to tell her mother or anyone.

Undisputed background

4.  The defendant married N in 2004.  They have two children, X and her younger sister.  The younger sister is about 2 years younger.  The family lived in a village house in the New Territories; the apartment was one room with a kitchen and a bathroom.  There were two beds in the room, the “big bed” and the “small bed”.  The small bed was actually a mattress which was put up against the wall vertically at daytime and placed on the floor parallel to the big bed during sleeping times.

5.  At the time of the alleged incident, X and the younger daughter were home-schooled following an American study plan taught by the defendant and N.  The family had lived in Vietnam and Hong Kong alternately.  The defendant and N had business in Vietnam. 

6.  The couple’s relationship does not appear to be harmonious.  N had filed for divorce twice in Vietnam but withdrawn her applications subsequently.  In November 2015, after the alleged incident she sought assistance from the Legal Aid Department for divorce proceedings in Hong Kong. 

7.  N did not have a job, but she was working in Beijing, teaching cooking between 20 and 27 July 2015.  During this period of time, the defendant was the only person taking care of the two daughters in Hong Kong. 

8.  After the alleged incident, X did not tell anyone about it.  She only told her mother on a day near the end of August 2015.  Her mother did not report the matter to the police immediately.  The family still lived together. 

9.  On the night of 21 September 2015, following a row of the couple over N’s arrangement getting the two daughters into a local school, N called the police to the home.  The alleged incident was not reported to the police officer during the police visit.  After the police visit, N and the two daughters left the family home and they have since been living in a shelter home.

10.  The alleged incident was first disclosed to the Social Welfare Department on 22 September 2015 and to the police on the following day when a video-recorded interview with X was conducted. 

11.  The defendant was arrested on 23 September 2015.  The apartment of the defendant was searched and his computer and telephone were seized for examination.  Nothing incriminating was found. 

The videoed interview received in evidence

12.  X’s evidence-in-chief consists of the videotaped interview recorded on 23 September 2015 and a brief clarification in court by Mr Marray, counsel on fiat, for the prosecution.  The videotape was received in evidence pursuant to section 79C of the Criminal Procedure Ordinance, Cap 221, (“the Ordinance”).

13.  Notice of application for leave to tender in evidence the video recording under section 79C of the Ordinance was filed by the prosecution on 8 December 2015.  Upon the solicitors for the defendant confirming no objection to the application by a letter dated 25 February 2016, His Honour Judge W K Kwok granted the application on 3 March 2016.  I do not think that I need to give a new order to admit the videotape.  Had there been any argument on the necessity of such separate order, I would have no hesitation to give one.

14.  Being a child under 14 years of age, X gave unsworn evidence in a room outside the courtroom via a live television link pursuant to section 79B of the Ordinance. 

15.  When the prosecution just started to play the videotaped interview to X to refresh her memory, Mr Haynes, counsel for the defendant, took objection that the videotape should not be watched by X as she had not requested to view it for refreshing memory purpose.  When Mr Marry asked X whether she needed to view it to refresh her memory, X said that she did not, as she had a clear memory.  Mr Marray therefore only played the videotape in open court in the absence of X. 

X’s evidence

16.  In the video-recorded interview with Miss Ling Wai-yu, a government social worker, X said as follows.

Charge 1

(1) One night when her mother went somewhere to teach cooking, she and her father and younger sister went to bed for sleeping (counter 83);

(2) At 12 o’clock her father started to touch her (counter 85);

(3) He touched her private part, X pointing to her breasts and vagina to describe her private part (counters 93, 97, 99, 145 and 147);

(4) He touched her with his left hand (counter 111);

(5) At the time she was wearing her sleeping clothes (a dress and underwear) (counters 127 to 137);

(6) He touched her inside and outside her clothes (counter 153);

(7) He touched her for 15 minutes (counter 245);

Charge 2

(8) She felt scared and uncomfortable (counter 217);

(9) She went down from the big bed to the small bed to sleep (counter 203);

(10) Her father came down to the small bed and touched her again (counter 205);

(11) He touched her on the breasts and vagina (counters 249 to 265);

(12) In the small bed he touched her for around 20 minutes (counter 457);

Charge 3

(13) Then she went back to the big bed, she slept there for 10 minutes. Then he came up and touched her again (counters 267, 275 and 463);

(14) He touched the skin of her leg and breasts (counters 267 and 469). He touched her vagina for 20 minutes (counter 483);

(15) Then she went to the bathroom. When she came back she asked her father to stop (counter 277);

(16) Her father said, “Okay. Sorry” and “Good night” (counters 286 to 289);

(17) Overall, the touching lasted for an hour (counter 373);

(18) The next day, her father said he was sorry and told her not to tell mummy, her younger sister or anyone (counter 393).

17.  Mr Marry was allowed to clarify briefly with X about the date of the incident which she said in the videoed interview was in 2014.  She clarified with Mr Marry and confirmed again in cross-examination that the incident actually happened in 2015 on the third night when her mother was teaching cooking in Beijing. 

18.  After the alleged incident, she carried on as normal with the defendant.  She did not tell her younger sister or her mother when she returned from Beijing.  She was afraid to tell anyone.  She first told her mother about this incident about one month later.  She agreed that the defendant looked after her and her younger sister well.  She loved her father. She said her parents always argued over everything, they even fought with each other.  Her mother had told her she was trying to find somewhere to live separately from her father and keep the two daughters with her. 

19.  On the day she first told her mother about the alleged incident, it was in a sex education talk when her mother told her own experience of being sexually abused by her uncle when she was 13, then she told her mother about the alleged incident. She did not know their conversation was recorded by her mother at that time.  She only found it out a few weeks ago when her mother told her.

20.  X said at the alleged incident she first thought that her father was “half-asleep”, but later on she knew that he was not because he woke up to do something.  When he came back, he repeated touching her again. 

21.  Asked in cross-examination what the first touching was, X said she could not remember.  Asked further what happened between 11 and 12 o’clock, X said she “could not remember that much”.  There was so much “distraction” after that night, so she could not remember.  She disagreed that it was a dream.

22.  She denied that the alleged incident was taught by her mother nor did she agree that she did this in order to help her mother. She said she did not feel the social worker in the videoed interview was pushing her to make answers.  She denied that the touching did not happen.  She said she loved her father, she can forgive him but cannot rebuild her relationship with him. 

23.  In re-examination of X’s answers in cross-examination that she could not remember the details of the incident, X said she could remember half of the touching.  Despite the objection by Mr Haynes on ground that the question did not arise from cross-examination, I allowed Mr Marray to ask X what she could now remember.  X then said for the first incident on the big bed the defendant touched around her legs; for the second incident on the small bed, the defendant touched her vagina; during the third touching on the big bed, the defendant touched her legs and then her breasts. 

The mother’s evidence

24.  N testified on 21 August 2015 (she later said it was 24 August), she noticed that X was watching cartoons on her tablet computer about sex.  X said she was curious about it.  N then decided to give her daughters a sex education lesson.  She talked with them about sex, pregnancy and how to protect their bodies.  At the end of the lesson, X was confused and scared.  She told N that one night in July when N was in Beijing, the defendant touched her private part and her breasts.  Upon hearing that, N was shocked. She immediately texted the defendant who did not reply. 

25.  When the defendant returned home that evening, she confronted him with X’s allegation.  The defendant said to her that he was not aware of what he was doing that night, but when he was aware, he stopped. He said he thought it was his wife, so he did that.  N said she did not want him as husband and asked him to leave the home.  The defendant agreed. 

26.  On the next day, N decided to ask X for more details of the alleged incident.  She felt it necessary to record the conversation with X.  She therefore recorded it with her mobile phone without notice of X.  In order to get more details, N started with telling X her own experience of sexual abuse by her uncle when she was aged 13.  The transcript of the audio recording supplied by the prosecution as unused material was produced by the defence as Exhibit D2. 

27.  During the next few days, the younger daughter said she did not want her father to leave the family.  X also said she did not want to report the matter to the police because she did not want to see her father going to prison.  The family of four had a talk and the conversation was recorded by N.  The transcript of the conversation was not produced to the court. 

28.  After a few days, the defendant did not leave the family as he promised earlier.  On 21 September the couple had a serious argument when the defendant learned that N had arranged the daughters to go to normal school.  N called the police for assistance as the defendant was still swearing and shouting at 10 pm.  When the police came, N did not report the alleged incident to them.  She only left the family home with her two daughters to live in a hotel on that night and later in a shelter home.

29.  On 22 September N told the social workers of the Social Welfare Department everything.  The social workers reported the matter to the police.

30.  In November 2015 N approached the Legal Aid Department for assistance in filing a petition for divorce.  She was asked to give evidence of unacceptable behaviour of her husband, so she gave the audio recording of the conversation with X and the family talks to the Legal Aid Department.  These recordings were disclosed to the defence by the prosecution as unused material. 

31.  N denied that she recorded the conversation with X in order to use it to get custody of her daughters.  She said she recorded it so that in the future her daughter would know what had happened.  She disagreed that she told X her own experience of being sexually abused in order to plant in X’s mind that X had suffered an abuse. 

32.  N was cross-examined on some text messages she texted in September 2015 to one Katrina who is the wife of the defendant’s friend.  N agreed that she sent the messages to Katrina.  The text messages are produced as defence exhibit D1.

In the messages N told Katrina that she would separate from the defendant, she was moving out from the family home and she needed a temporary place.

The defence case

33.  The defence case is a complete denial of the alleged incident of touching of X during the period in July 2015 when N was out of Hong Kong.  The defendant denies apologising to X for the touching or asking her not to tell anybody about the alleged incident.  The alleged explanation offered by the defendant upon accusation of the sexual abuse by N is partially denied.  The defendant admits in cross-examination that he did say he was not aware of what he was doing, when he was aware, he stopped.  He however denies ever saying he thought it was his wife, that is why he did that.

34.  The suggestion of the defence is that both X and N have motive to fabricate the story against the defendant.  While N was seeking a divorce and custody of the children, X was trying to stop the fighting and quarrelling of her parents, she was helping her mother.  The fabrications were engineered by N by telling her past experience of sexual abuse by her uncle to turn X’s bed dream into a damaging complaint against the defendant. 

The defendant’s evidence

35.  The defendant is a 59 years old man with a clear record.  He testified that he met N in Vietnam in 2001 and they married in Hong Kong in 2004.  From 2004 to 2015, the couple lived in Vietnam and Hong Kong.  N gave birth to the two daughters in Hong Kong.  As the defendant is an American citizen, the two daughters have acquired American citizenship.  The family had decided to migrate to USA.  N filed an application form for the visa to USA in October 2014.  She last signed a letter on 31 August 2015 in respect of the application.

36.  The defendant said N had always been talking about a divorce.  The couple had fighting before.  N applied for divorce in Vietnam twice before 2009 and later withdrew the application.  N had often deserted the family leaving the care of the two daughters to him alone.

37.  At the relevant time the defendant was working almost full time as an English teacher in China.  He travelled to China every day to teach.  Between 20 and 27 July 2015, when N was in Beijing, the two daughters were under the sole care of the defendant.  At the nights during this period of time he read a story to the daughters in the big bed.  When the daughters fell asleep, the defendant slept in the small bed where he ordinarily sleeps.  He did not indecently assault X.  Throughout this period, X behaved as normal.  After N returned to Hong Kong, X behaved as usual. 

38.  On 22 August 2015, a Saturday, N texted him messages making allegation of sexual abuse against him.  When he came home, N confronted him asking if he had touched the breasts and vagina of X.  The defendant was shocked.  He replied that he did not recall such an incident occurring.  That was all he said.  He could not enlarge on his explanation as he was under a barrage of questions and repeated accusations. 

39.  He said N had previously told him that she had been sexually abused by her uncle when she was young. 

40.  The defendant said he had never had any inappropriate sexual thoughts about his daughters.  He loved his daughters.  As a result of the wrongful allegations, he suffered from depression.  He feels difficulty in working, doing anything or talking with anyone.  He has shut himself off. 

41.  In cross-examination he agreed he did say to N that he was not aware of what he was doing, and when he was aware, he stopped. However, it was not said in the confrontation on 22 August, but a later date on 25 August.  He denied ever saying that he thought the daughter was his wife.

42.  Mr Marray asked a series of questions putting to the defendant that he touched X’s private parts, that he followed X to move from the big bed to the small bed and move back from the small bed to the big bed, that X coming back from the bathroom asking him to stop, that the defendant said, “Okay” and “Good night.”  The defendant gave one same answer to all these questions - “I do not recall the incident occurring.”

The character witness

43.  Mr Ariez is a semi-retired engineer specialising in robotics and computer numerical control.  He says he became acquainted with the defendant in 1972 when they studied in the same school in Hong Kong.  Since 2013 the two families have met each other from time to time.  As part of his voluntary community work, the defendant and his wife introduced him to universities in Vietnam to help the universities in software development.  He gave a lecture there to assist the students.

44.  During that period of time, he worked closely with N who impressed him as a rather determined character with a rigid view of the world.  He says she was always concerned about money and her family circumstances. While the defendant was very happy with his relationship with his wife, N was not so happy.

45.  Mr Ariez describes the defendant as an upright man, a superb family man and the most kind and loving father.  He finds it hard to believe that the defendant would hit his wife.  He confirms that he escorted the daughters of the defendant on a flight from Vietnam to Hong Kong on 15 May 2015 and returned them to the defendant. 

46.  A letter written by this witness and some character documents for the defendant have been admitted by consent. 

Issues

47.  The central issue in this case is whether the defendant touched X in the way she described.  This issue turns on the credibility of X and N.  Other relevant issues are:

(1) Effect of X not being asked to watch and confirm the videoed interview;

(2) Whether the complaint by X to N can be regarded as a “recent complaint”;

(3) Whether the responses of the defendant upon confrontation and accusation can amount to a confession;

(4) Whether X was mistaken;

(5) Whether the defendant, if he indeed touched X as she described, was aware of what he was doing;

(6) Whether the touching was indecent.

48.  It is the defence case that the allegation by X was a fabrication.  There is a suggestion that it was a ploy engineered by N with the motive of using it as a weapon to get custody of the children in divorce proceedings; X’s motive was to stop the fighting and quarrelling of her parents.

49.  The burden of proof is on the prosecution to prove beyond reasonable doubt.  The defendant needs not to prove anything.  If what the defendant says is true or might be true, then the prosecution has not successfully discharged the burden.  I have warned myself that this kind of allegation can easily be made but difficult to be rebutted.

Discussion

50.  I have considered all the submissions advanced and evidence adduced before me.  In this judgment, I will not repeat all the submissions and evidence but will just deal with the salient ones.

The video-recorded interview not confirmed by X in court

51.  Mr Haynes initially appeared to take issue with the admissibility of the video-recorded interview on the ground that Mr Marray overlooked asking X to watch and endorse the video in the witness-box that what she had said in the video was true.  He later clarified his position accepting that the video is admissible under the legislation as evidence-in-chief. However, as X has not confirmed the veracity, the video has no weight in evidential value. 

52.  Having been shown by the prosecution the Court of Final Appeal case in Chim Hon Man v HKSAR [1999] 21 HKCFAR, Mr Haynes accepts that there is no need in law for the child witness to confirm the accuracy of the video.  However, he is still taking the point that the fact that X did not confirm the video must have affected the weight of what she had said in the interview.  Mr Haynes says his qualification of weight argument has not been discussed in Chim Hon Man. 

53.  Section 79C of the Ordinance allows the court to admit a video recording of a child as evidence-in-chief and the videotape itself is evidence.  In Chim Hon Man, the Court of Final Appeal confirms that for section 79C to operate, it is unnecessary for the child to adopt the statement in the recording.

54.  Subsections of section 79C make it clear that it is the video recording that is received into evidence.  In my view, subsections (6) and (7) do not support Mr Haynes’ “weight argument”. 

55.  Subsection (6) provides that where a video recording is admitted:

“(b) The child ... shall not be examined in-chief save with the leave of the court on any matter which in the opinion of the court has been dealt with in its recorded testimony.” (emphasis added)

56.  Subsection (7) goes on to provide that where a video recording is given in evidence:

“Any statement made by the child ... which is disclosed by the recording shall be treated as if given by that witness in direct oral testimony ... and in estimating the weight, if any, to be attached to such a statement regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.” (emphasis added)

57.  The weight argument of Mr Haynes, in my judgment, is only an attempt to bypass Chim Hon Man and is contrary to the spirit of section 79C.  Whether or not the child swears to adopt the statement in the recording, the weight of the statement in the recording is always a matter that the court has to assess, taking into account of all the evidence and all the circumstances in the case.  However, the weight of the statement in the recording would not be discounted simply because the child has not confirmed again the accuracy of the statement in court.  Otherwise the whole purpose of this section will be defeated.  In my judgment, this argument must fail.

Whether X’s complaint to N was a “recent complaint”

58.  Mr Haynes complains that there was a double delay in this case - the delay in X’s complaint to N, and the delay in N’s complaint to the police.  It is argued that the complaint by X to N was not a recent complaint as there was a time lapse of about a month.  To be admissible, the complaint has to be made at the first reasonable opportunity after the offence.

59.  What is reasonable is a question of fact and degree.  The evidence is only admissible to prove consistency and not the facts complained of.  There was indeed a considerable time lapse between the offence and the complaint.  In R v Valentine [1996] 2 Cri App R 213, the English court set out the modern approach to the issue.  The case was followed in Hong Kong court in HKSAR v Hung Wai Tak [2000] 4 HKC 641.

60.  In this case, one must not ignore the age of X and her relationship with the defendant who was a person she loved and trusted at that time.  He asked X, and X promised him, not to tell the incident to anybody.  It should also be borne in mind that children might not have the same understanding as adults that a certain abusive behaviour is wrong or abnormal. In the circumstances of the case, I found that the complaint by X was made within a reasonable time.

61.  To be admissible as a recent complaint as evidence of consistency, the terms of the complaint must also be consistent with the complainant’s testimony.  If the complaint is inconsistent with the testimony of the complainant, the evidence of complaint cannot be adduced as it would not support the credit of the complainant.

62.  Mr Haynes produced a transcript of the audio recording (exhibit D2) on the basis of previous inconsistent statement. However, I found that what X said in the videoed interview and the audio recording were materially consistent with each other.  I accept that the complaint by X to N was a recent complaint, admissible to prove consistency and relevant to the credibility of X.

Motive to lie

63.  It is strongly suggested that both X and N have objectives to be achieved if the defendant is convicted.  N is seeking a divorce and custody of the two daughters; X was trying to stop the quarrelling and fighting of her parents. 

64.  A desire to gain the upper hand in a custody battle may be a strong motive for a mother to manipulate her daughter to make up an accusation against the father. 

65.  It is not disputed that the couple’s marriage was not a happy one.  N had twice filed application for divorce in Vietnam. However, the application had been withdrawn when N decided to reconcile the marriage and the whole family decided to settle in Hong Kong in 2009.  It is to be noted that the divorce proceedings in Hong Kong was not set in motion in August 2015. 

66.  The defence theory of N’s motive is also contradicted by the evidence that N allowed the two daughters to return from Vietnam to Hong Kong twice in 2015.

67.  The undisputed immigration records show that N departed Hong Kong on 26 December 2014 and returned to Hong Kong on 19 January 2015.  She departed Hong Kong on 15 March 2015 and returned to Hong Kong on 24 June 2015.  In her unchallenged evidence, N said on 26 December 2014 as she had to take care of her dying father in Vietnam, she, the defendant and the two daughters left Hong Kong for Vietnam.  However, upon arrival in Vietnam, the defendant was refused entry.  N stayed in Vietnam with her daughters while the defendant returned to Hong Kong by himself. 

68.  N also said in March 2015, the defendant smashed her external hard disk drive and asked her to leave the house, so she left Hong Kong for Vietnam with her daughters.  It is undisputed that in May 2015 the two daughters returned to Hong Kong under the escort of the defendant’s character witness.  N only returned on 24 June 2015. 

69.  Vietnam is her home country and the defendant was banned from entering the country.  It would be difficult for the defendant to fight for custody of the two daughters if they remained in there.  If N had the idea of fighting the custody of the children in mind, it is not logical that she would have returned to Hong Kong with the two children in January 2015 and even sent them back to Hong Kong to join the defendant in May 2015.

70.  Relying on the answers of X at the beginning of the videoed interview saying she came “to solve some family problems”, Mr Haynes suggests that it is indicative of her motive being to stop the fighting and quarrelling of her parents.  I find that there is no basis for this inference.  A father indecently assaulted his daughter is also a family problem.

Other criticisms of the prosecution’s evidence

71.  The first point taken by the defence in cross-examination of X was the date of the alleged offences.  X said in the interview that the incident happened in 2014.  She corrected in court that she actually meant 2015 when her mother was in Beijing.  She did not agree to the suggestion that she deliberately said it wrongly to give her father an escape from her allegations.  Having considered the whole videoed interview in the context, I am sure that it was a genuine slip of tongue.

72.  Mr Haynes criticises that X did not confirm the videoed interview and avoided to give details of the touching in cross-examination by claiming she could not remember.  He therefore did not cross-examine her in details and hence her evidence has not been tested.  There is therefore no evidence of veracity of her answers in the videoed interview.

73.  I cannot accept these criticisms.  When the prosecution started to play the videoed interview in court to X to refresh her memory, objection was raised by the defence on the ground that a witness should not be force-fed an earlier statement unless she wants to look at it.  X did not refuse to watch the video.  She was in fact watching it when the objection was raised.  She did not want to watch because she believed she still had a clear memory of the incident.    

74.  I do not find that she refused or avoided to give details of the incident in cross-examination.  The incident happened almost nine months ago.  She had not refreshed her memory by watching the videoed interview.  It is not surprising that she only found out she could not remember the details of the incident during cross-examination.

75.  It is submitted that it was an irregularity when this court allowed the prosecutor to re-examine X on what she could now remember when she had said she could not remember the details of the touching in cross-examination.  This complaint cannot be made out.  A witness can be allowed to read his or her contemporaneous record of what he or she had said to refresh his or her memory.  The prosecutor is entitled to clarify what X meant when she said she could not remember.  It arose from cross-examination.  When X clarified that she could remember “half” of the incident, she should be allowed to clarify what was the “half” she could now remember.

76.  N impressed me as a strong woman.  She was firm, consistent and unshaken in the skilful and detailed cross-examination by the defence. 

77.  Mr Haynes submits that according to the evidence of X, it was after N telling her own experience of being sexually abused that X talked about the alleged incident.  With respect, I cannot agree with this understanding of the evidence.  I do not think that X was referring to the first day she mentioned about the alleged incident.  It is apparent from the conversation recorded in the audio recording that there was a previous conversation about the alleged incident the day before. 

78.  Considered in the context of her evidence, when X said her mother told her story first, she was referring to the conversation recorded by N.  It happened on the second day.  I do not think there is inconsistency between X and N in this regard. 

79.  The defence emphasises that X did not wake up her younger sister to tell her the incident and there was a double delay of the complaint by X and N.  The audio recording was not produced to the police immediately when the report was made. 

80.  I agree that there was indeed a time lapse for these complaints.  It is also noted that X continued to live with the defendant without noticeable change in her attitude.  However, one must take into consideration of all the circumstances to consider whether the complaints were unreasonably late and X’s attitude unreasonable.

81.  X was only 9 at that time.  The defendant asked her and she promised not to tell anybody about the incident.  She trusted the defendant and depended upon him.  I do not find X’s complaint unreasonably late or her attitude after the incident so unusual to cast any doubt on her evidence. 

82.  The late complaint by N to the police can be well explained.  If she told the police, the family would be destroyed.  The family was not well off, she was not in employment and she had no place to live in Hong Kong.  She was also influenced by the daughters’ wish.  Both of them did not want their father to go to jail.  It was not an easy decision to make to tell others that her husband had indecently abused their own daughter. Moreover, the defendant had promised her to leave the family.  It is understandable that when the defendant did not keep his promise, she eventually decided to tell the social worker when she received support from the Social Welfare Department.  It was the Social Welfare Department which informed the police about the sexual abuse incident. 

83.  The audio recording was not produced to the police immediately when the report was made.  I do not think that it is fatal to the credibility of N.  The videoed interview with X was already conducted and X told the police the whole story.  It might not occur to N that she should also give the audio recording to the police. 

84.  Mr Haynes cross-examined X and N on the audio recording of the conversation between X and N, and the WhatsApp messages between N and Katrina to establish inconsistencies in and between their evidence.

85.  Mr Haynes refers to examples, in particular at counters 296 to 309 in the videoed interview where X said that the incident happened in 2014 three times and that she told her mother it happened two months ago.  I have found that, looking at the whole context, 2014 was a genuine slip of tongue.  The two months’ lapse in counter 309 was referring to the time between the alleged incident and the date of the interview.  Having considered all the inconsistencies referred to by the defence, I do not find the audio recording contains anything materially different from what X said in the videoed interview. 

86.  Nor do I find the text messages to Katrina contradicted the evidence of N.  To the contrary, I find the text messages materially consistent with the evidence of N. 

87.  Rather, apparent inconsistency is noted in re-examination of X when she described the touching in this way: in the big bed touching around her leg, in the small bed touching her vagina, in the big bed touching her leg and her breasts.  She qualified herself by saying she could not remember much.  This is not consistent with the videoed interview. 

88.  In my judgment, memory whether that of children or adults does not operate like a video recorder.  Memory may be diminished or strengthened.  Normally the longer the gap between an event and its recall, the more likely the memory details will be lost.  Inconsistency in children’s accounts does not necessarily equate to inaccuracy or lies in repeated recalls.  Moreover, children may have different perspectives and focusses from adults as to what is important to remember. 

89.  I am not surprised that after nine months of the incident, X lost memory of the details in court and gave a slightly different account.

The court’s observation about the videoed interview and the audio recording

90.  I noticed that occasionally leading questions were asked by the social worker, Miss Ling, in the videoed interview.  In my view, for a girl aged 9 only, leading questions and prompting are sometimes necessary and unavoidable.  They can focus the child on a particular point, to steer the child to the next point of event, and to provide an opportunity for clarification and further recall.  This is permissible if the questions are not dictating or suggesting to the child that something has happened in a certain way. 

91.  Mr Haynes criticises that Miss Ling at the beginning of the videoed interview should not have told X that her mother would watch and hear what she said in the interview.  He says this would make X to think that she had better repeat her mother’s lies if they had connived together.  I would agree that it might be better in some cases to simply tell a child witness that her parent or guardian would be around and available in case she needs.  However, what is more important is the overall manner the interview was conducted.

92.  In my judgment, the interview was conducted in a fair and proper manner.  Miss Ling was not suggestive to X that something had happened.  She was generally asking open-ended questions allowing X to answer in her own way and in her own words. 

93.  X’s answers were generally simple, clear and unambiguous.  When leading questions were asked, she did not just agree. Sometimes she disagreed and even corrected Miss Ling when the suggestions were incorrect (See examples at counters 398 to 399 and 412 to 413).  It is quite clear that she would not simply adopt the suggestions in the questions. 

94.  In the interview, X was natural and relaxed. She answered promptly and smoothly.  She did not appear to be reciting her lines.  I cannot agree with the defence submission that her evidence in the interview is full of inconsistency, vagueness and uncertainty.  In my judgment, her evidence viewed in totality and context was consistent and clear.

95.  N was not professionally trained to interview a child witness.  She should not be criticised for not avoiding leading questions.  Moreover, in my view, the transcript of the audio recording shows that she was not eager to prompt X by asking leading and suggestive questions. Her questions were generally asked in the style of “What happened?”, “Can you tell me?”, “How did he do?”, “What did he do?”...  X was allowed to speak in her own words.  It does not appear to me that N was coaching or suggesting to X that her father had sexually abused her.  

96.  It is also noticed that when leading questions were posed, X would not simply answer in the affirmative (See examples at counters 169 to 170 and 162 to 163). 

97.  In my judgment, the overall evidence of X and N were coherent, consistent and reasonable.  They were firm and unshaken in cross-examination.  Both of them impressed me as credible witnesses.

The defendant

98.  The defendant is an educated man.  He is a qualified engineer as well as a teacher in English.  He has a clear record.  I give myself the Berrada direction.  I bear in mind that he does not need to prove anything and he has the right to silence. 

99.  I have to say that the defendant was not impressive in the witness-box.  He presented his evidence in an evasive and argumentative manner.  He often repeated the questions he was asked before he gave his own answers.  He gave long and incomprehensible answers to simple questions.  He was particularly evasive to the questions about his responses upon accusation by N.

100.  First, it is to be noted that when N gave evidence about the responses of the defendant, Mr Haynes put to her that “no such thing was said by him”.  What the defendant said was to the effect that if anything happened, he must have been asleep.  In his evidence-in-chief, the defendant said all he replied at that time was “he did not recall such an incident.”   He did not say anything else. 

101.  In cross-examination, the defendant was argumentative with Mr Marray about the date he was asked in respect of the defendant’s responses to N’s allegation.  He repeatedly asked the prosecutor to specify the date.  The date does not appear to matter.  Eventually, Mr Marray asked the defendant whether he had ever said to N the words she quoted him in court.  The defendant first replied he did not understand the question as he was not a lawyer.  He later answered, “It wasn’t on the 22nd ... on the 25th, yes.”  He finally admitted that he did on 25 August 2015 say words to the effect that he was not aware and when he was aware, he stopped.  He did not say that in his evidence-in-chief.

102.  Asked what he meant, the defendant gave the impression that he was going around in a circle.  To give a flavour of the style and tone of the defendant’s answers, I quote a series of questions and answers: 

Q: So is that true you said that you stopped when you were aware?

A: Now I said that I did not recall

...

So what I was aware of, I can talk about ... what I am aware of, nothing happened.

Q: ... did you tell your wife that when you were aware, you stopped in relation to the touching?

A: I said that on 25 August.

Q: Why did you say that on 25 August?

A: Sir, I am trying to answer ... this is very difficult ... I am not a lawyer.

Q: When you said this on the 25th that when you were aware...

A: That was not on the 25th.

Q: Why did you say, “When I was aware, I stopped”?

A: When I was aware, I was aware. I mean ... I know what I am doing.

Q: Why did you say, “I stopped”?

A: When I say the word “stop”, I mean nothing happened. I am aware of what I am doing. If I am not aware of something, then I don’t recall.

Court: Aware of doing what?

A: Consciously being aware.

Court: Aware of what? I don’t understand.

A: Just aware of everything going on around me.

Q: ... did you ever tell your wife that you thought that your daughter was her and that’s why I did that?

A: In my entire life? Or are you just talking about ... 21st, 22nd or 23rd ... please narrow it down.

103.  I bear in mind that an honest witness may present his case badly in court because of stress and nervousness.  Demeanour of a witness may not be reliable.  I have also read the article of Celia Green quoted by Mr Haynes to support his submission how this kind of accusation may impact on an accused person.  I also bear in mind the defendant’s right to silence.

104.  Taking all these matters into account, I am of the view that the defendant was an evasive witness.  In particular his answers to questions in cross-examination about his responses upon accusation by N was incomprehensible.  Facing a serious allegation by his wife, it is improbable that he would only give an answer that he did not recall the incident.  It was an odd and illogical response to an accusation that he had indecently assaulted his daughter.

105.  The defendant gave evidence of his good caring of the two daughters.  He said he loves X.  He had a good relationship with her and she held no grudge against him.  He described N as an irresponsible mother, often leaving the care of the two daughters to him.  It is unreasonable that X would fabricate a serious sexual allegation against her father in order to help an irresponsible mother.

106.  The fact that N allowed the two daughters to go back to Hong Kong from Vietnam under the escort of the defendant’s friend, his character witness in this case, is destructive of the defence theory of N orchestrating a ploy in order to get custody of the children in the divorce proceedings.  While I accept Mr Ariez is a respectable man, I am afraid that his limited knowledge of the defendant and N cannot help much in this case.  He does not even know the couple used violence to each other.  He says he finds it hard to believe that the defendant would hit his wife.  The fact is that the defendant admitted it in court. 

107.  Having considered all the evidence and the submissions, I find both X and N honest and credible witness, the defendant is not. 

Whether X was mistaken

108.  There is no suggestion that X suffers any mental problem.  On the evidence before me, I am satisfied that X is a normal and intelligent girl.  In the videoed interview and audio recording, she demonstrated her ability to resist suggestive questions.  I do not accept the suggestion that she might have been subconsciously misled by N to believe what had happened to her mother also happened to her.  Nor do I accept the possibility that what she described in the incident might be her dream.  I am sure that she has the ability to distinguish between fact and fantasy. 

109.  The defence relies on some expressions used by X in the videoed interview and the audio recording to suggest that X was probably dreaming.  A child has limited vocabulary.  In my judgment, the expressions of “I thought it was a dream”, “I was half asleep”, “90 per cent asleep and 10 per cent awake”, viewed in context, were intended by X to convey the message that she was on the bed trying to sleep. 

110.  X could give the details of where and how she was touched on the three occasions and her conversation with the defendant. She woke up and went to the bathroom.  The defendant also woke up to do something.  The next day he apologised to her and asked her not to disclose the incident to anyone.  All these logical and coherent details of the incident could not have been fantasy or a dream.

The facts found by the court

111.  X and N are honest and credible witnesses.  I accept the evidence of X in the video-recorded interview.  I do not rely on her description of the alleged incident in re-examination as she could not remember the details.  I find the facts of this case, inter alia, as follows.

112.  On or about 22 July 2015, at about midnight, the defendant was sleeping with X and her younger sister on the big bed.  The defendant touched X’s breasts and vagina.  She felt uncomfortable and moved to sleep on the small bed, the mattress on the floor.  The defendant came down to the small bed and continued to touch her breasts and vagina.  X went back to the big bed when the defendant continued to touch her breasts and vagina.  X went to the bathroom.  When she came back, she asked the defendant to stop. The defendant said, “Okay.  Good night” and stopped.  The touching lasted for about an hour.  The next day the defendant said to X that he was sorry.  He asked X not to tell anyone about the incident.

113.  X told N the incident on a day near the end of August 2015.  I find the exact date irrelevant.  On that night, when the defendant returned home, N confronted the defendant with the accusation of X.  The defendant said he was not aware of what he was doing; when he was aware, he stopped; he did it because he thought it was his wife. 

Responses of the defendant upon accusation as confession

114.  The prosecution interprets the defendant’s responses as admission of actus reus of touching X and denial of mens rea on ground of mistake.  I would however hold a narrow view in the interpretation of the defendant’s responses.  The utterance of the defendant might probably mean he touched X by mistake.  However, in my view, the meaning of the utterance is not absolutely clear.  I would take the interpretation more favourable to the defendant.  I will not treat his utterance as confession of having touched his daughter.

Was the defendant aware of what he was doing

115.  It is not specifically raised as a defence, nor has the defendant suggested in his evidence that he was not aware of what he was doing.  However, his responses upon accusation contain an exculpatory explanation that he mistook X for N.  Such a defence of mistake though not specifically raised should be considered.

116.  The burden is on the prosecution to prove that the defendant knew he was touching the private parts and breasts of X.  The defendant continuously touched X’s private parts starting from the big bed, down to the mattress and back to the big bed.  He woke up to do something. When X asked the defendant to stop, he stopped and apologised to X.  He also asked X not to tell anybody about this incident. 

117.  There is no evidence or suggestion that the defendant was suffering from sleepwalking.  In my judgment, the defendant could not have done all these when he was asleep or dreaming.  His wife was not in Hong Kong, he could not be mistaking his daughter for his wife. 

118.  The only reasonable and irresistible inference which can be drawn is that he knew he was touching the breasts and vagina of his daughter.  The touching was the defendant’s conscious and voluntary act. 

Was the touching indecent

119.  I applied the test in R v Court [1989] AC 28.  I am sure that the defendant intentionally touched the breasts and vagina of X on the big bed, on the mattress and again on the big bed.  Such touching must be considered by a right-minded person as indecent.  I find that the defendant intended to touch X in a way that was capable of being considered by right-minded people as indecent.  X was only 9 years old at that time.  Even if X consented to the touching, it would not provide the defendant with a defence. 

Conclusion

120.  I am satisfied beyond reasonable doubt that the prosecution has proved all the elements of the offence in each of the charges. I find the defendant guilty of all the three charges.