THE QUEEN v. LOUIS ANTONIO OSMOND

IN THE COURT OF APPEAL

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JUDGMENT

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Li, V.-P.:

1. The applicant was originally charged with the offence of rape. He was convicted of indecent assault in the event and was sentenced to 4 years imprisonment. He now applies for leave to appeal against conviction as well as sentence.

2. The prosecution evidence leading to the conviction of the applicant was fairly straight-forward. The applicant was known to the victim's family. The victim being a girl of 5. He had visited the victim's home before.

3. At about 3 p.m. on the 15th of April last year the applicant went to the victim's home at Nam Shun Estate and asked the victim's father for permission to take her and her young brother out to play. This was refused and the victim's father then went to sleep. At about 4 p.m. on the same day a security guard of China Light & Power dormitory saw the applicant with the victim walking in the direction of the applicant's home. In the meanwhile the father had a conversation with his young son around 4 p.m. As a result he went in search of the victim. He was not able to find her. Eventually he joined his wife and returned home where they found the victim in a very distressed condition. In fact she was crying. She was examined and the parents found injuries on her private parts. She was taken to Queen Elizabeth Hospital and subsequently examined by a government forensic pathologist. These examinations found and confirmed that she had abrasions and bruises on her private parts. Vaginal and vulval swabs were taken. A pubic hair was found on her underpants. There were traces of blood on her underpants. She had a ruptured hymen, a new tear.

4. The defendant was traced and arrested at his home. The bed covers, mattresses and his clothings were seized by the police. On examination of his clothing blood stains were found on the pullover he was wearing on the 15th of April, the day of the incident, and also on the left side of his trousers. The blood, on examination and analysis, was found to belong to the same blood group of the victim's. The evidence was that it could have been transferred from the victim to the applicant. Only 1% of the people in Hong Kong could have belonged to that blood group. There was certain evidence of fibre transfer from the clothing of the victim to those of the applicant and some fibres of the clothing of the victim were found on the bed sheets that were seized from the applicant's bed. A couple of days later, the girl was taken to the applicant's home and a conversation between her and Inspector Reid, a police constable as an interpreter, in the presence of the applicant took place. The girl was asked to point out the room in which she was raped and the girl went over to the applicant's room and pointed. at it and stopped.

5. There is no defence evidence because the applicant, as he was entitled to do, declined to give evidence or call witnesses. On that basis the direction was to the effect that there was no question that the girl had been interferred with at some time on the day of 15th of April 1984. The only question was one of identity, namely whether the applicant interferred with the girl. The jury was directed to this issue and this issue alone. The summing-up to the jury was extremely fair. It was pointed out to them that the pubic hair was of no evidential value. The spermatozoa found on the vaginal swab was no proof that it belonged to the applicant. The fibre transfer could have been effected by the applicant. carrying the little girl. There is no evidence as to when the fibre was transferred to the bed sheet. However, there is one piece of important evidence pointed out to the jury, i.e. the blood on the applicant could have been transferred from the little girl to the applicant. It could not have been so transferred solely by the applicant carrying the girl. The victim's blood was on her underpants. At the time when the applicant carried her there was no blood on the long trousers, the outer garment she was wearing. On such basis the jury convicted the applicant of indecent assault instead of rape as charged.

6. Learned counsel for the applicant advanced broadly two grounds on behalf of the applicant against conviction. The first one was that the evidence of Inspector Reid which he says is hearsay and, as such, inadmissible. However, when Inspector Reid was called the defence had no objection to the witness being led. When the conversation and action was taking place at the home of the applicant it was done throughout in the presence of the applicant whose ability to understand Chinese, English and Portuguese conversation had not been challenged. Whatever was said between the girl and the police constable was done within the hearing of the applicant, so was the conversation in English between the constable and Inspector Reid. As such we find that it is quite proper for the trial judge to allow such evidence to be admitted. We cannot find any irregularity on that basis.

7. As to the other ground, the judge had very fairly told the jury that there was no evidence to connect the applicant with the victim except the blood transfer. This is typically a jury question and we have no justification to interfere with the jury's conclusion which they arrived at after a fair summing-up. Despite Mr. Alderdice's very powerful and pursuasive agrument, we are not inclined to interfere with the verdict of the jury.

8. As to sentence, we feel that although it is on a high side yet it is a very serious case. Untold damage has been done to a young girl who is interfered with sexually albeit not raped. We never can tell the consequences that this girl might suffer throughout her life at a later stage. The judge is justified in having regard to matters of this nature giving rise to public outrage. Mr. Alderdice has said all that could have been said on behalf of the applicant against sentence. Hard as it may seem the sentence is not manifestly excessive. If we were to interfere with the sentence, it would be a matter of trimming. That we are not prepared to do. In the circumstances, the applicant's application both for leave to appeal against conviction and against sentence are refused.