THE QUEEN v. CHEUNG WING TIM

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JUDGMENT

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Power, J.:

1. The applicant in this matter faced three charges of incest. It was alleged that on a day unknown in August 1984 on or about the 18th of July 1985 and on the 31st of July he had had sexual intercourse with his daughter, Cheung Yim-wom.

2. He was found not guilty on the first two charges and guilty on the third charge.

3. Mr. Alderdice, who appears for the applicant firstly complains that the learned trial judge erred in law in permitting the mother of the complainant to give evidence of similar facts which indicated a propensity and were not admissible. The defence for the father was that he was an affectionate father. This evidence of the mother which showed something more than a fatherly interest between the defendant and the girl rebutted that defence. It is true that the learned judge might have worded his direction in this regard differently, but the evidence was admissible and was properly, in our view, before the jury.

4. The second ground urged by Mr. Alderdice is that there is nowhere in the summing-up a direction by the trial judge that the evidence of the pathologist, that the girl had had sexual intercourse, was not capable of constituting corroboration. When the summing-up is read as a whole it is difficult to see how this ground can be sustained. It is true that, at the time when the judge was directing the jury as to that evidence, he did not say specifically that this evidence was not corroborative evidence. He did tell the jury, however, that this could not help them in determining whether the accused had sexual intercourse with the girl and, very shortly thereafter, he said that the only corroborative evidence was confessional statement of the accused. Indeed, he was very clear in this direction, repeating it more than once, and telling the jury that if they rejected the statement then there would be "no corroboration of the girl's story and, in that event, you could not convict him, unless you were so sure that the girl was telling the truth, so sure that there was no risk of injustice in acting on her story".  In the circumstances, we can see no substance in this ground.

5. The third ground of appeal was that as the accused was acquitted by the jury on the second count and as the evidence on this count was identical in all respects to that on the third count, the verdict of guilty on the third count was against the weight of evidence and irreconcilable with the unanimous acquittal on the second count.

6. It is not correct to say, as this ground does, that there was no material difference between the evidence on the second and third counts. The first count charged intercourse on or about the 18th of July 1985; the third count charged intercourse on the 31st of July 1985. In his confession he made a general admission that he had had intercourse with his daughter but admitted intercourse on only one specific date. He said in answer to the last question asked of him that he could not remember clearly other occasions but that the last occasion was on "last night", i.e. the 31st of July. In those circumstances, the two verdicts cannot be said to be wholly irreconcilable. It seems clear that the jury was only prepared to convict, having been warned in very careful and clear terms by the judge with regard to corroboration and the dangers of convicting upon evidence unless they were sure of that evidence, where they had a clear admission as to a specific date. That disposes of all of the grounds of appeal. The application must be refused.