HKSAR v. YEUNG TIN SHUN

[English Translation - 英譯本]
CACC 244/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 244 OF 2009

(ON APPEAL FROM DCCC NO.1205 OF 2008)

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BETWEEN

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JUDGMENT

Hon Tong J (giving the judgment of the Court):

Background

1.  The applicant was charged with one count of Indecent Conduct Towards A Child Under The Age Of 16 Years, contrary to section 146(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong.  The particulars of offence stated that the applicant, on 26 May 2008, in his private car at Lot S of the water catchment, Shing Mun Reservoir, Tsuen Wan, committed an act of gross indecency towards X, a girl under the age of 16 years.

2.  The applicant pleaded not guilty but was found guilty after trial before Deputy District Judge Johnny Chan, and was sentenced to 24 months’ imprisonment.

3.  The applicant initially applied for leave to appeal against both conviction and sentence. Later, on 3 November 2009, he abandoned the application for leave to appeal against sentence, which application was dismissed by the Court on 4 November. The applicant now applies for leave to appeal against conviction only.

Prosecution case

4.  In brief, the prosecution case is basically as follows:

(i) The girl involved in this case was a Form 2 student. She was 15 years and 7 months old at the time when the offence was committed. She was a member of the fencing club of the school where she was studying. The applicant was 33 years old. He was a primary school teacher and also a part-time fencing instructor of the girl’s school; because of this, he came to know the girl.

(ii) About 5 p.m. on 26 May 2008, the applicant invited the girl to have dinner together after school. Subsequently, he drove the girl to Shing Mun Reservoir, Tsuen Wan. Sometime between 8 p.m. and 9 p.m., he parked his car near Lot S of the water catchment, Shing Mun Reservoir.

(iii) Sometime between 9 p.m. and 10 p.m., PW2 was patrolling in a police vehicle and reached the above-mentioned location. He spotted the applicant’s private car and saw that the girl was sitting, in a riding position, on the body of the applicant, who was sitting on the driver seat, with her back towards the windscreen, while the applicant’s arms were around her waist. PW2 alighted, walked to the car and shone his torch into the car. The girl immediately turned round and sat on the passenger seat beside the driver seat. The police constable decided to investigate this matter. At that time no woman police officer was present, so PW2 called for assistance through the radio.

(iv) Later, PW3 and other police constables came. He questioned the applicant. PW3 gave evidence that the applicant admitted under caution that he had committed acts of indecency towards the girl.

5.  In his Reasons for Verdict, Deputy Judge Chan set out clearly the evidence given by the witnesses of this case.  He recorded that it was not disputed that at the time of the offence the girl was 15 years and 7 months old, while the applicant was 33 years old.

6.  Deputy Judge Chan stated that the prosecution applied to tender as evidence the notebook record and the verbal admission made by the applicant at the scene to PW3. The contents of the notebook record included the reply made by the applicant which he confirmed by signing it at the scene and the post-recorded cautioned statement which was processed subsequently at the police station.  The defence objected to the application and submitted their written reasons for objecting it.  Deputy Judge Chan dealt with this matter by way of the alternative procedure.

7.  As far as the girl’s evidence is concerned, Deputy Judge Chan pointed out that her evidence in chief was based on her video recordings, but after she was cross-examined by the defence, the prosecution asked that she be treated as a hostile witness. Having heard submissions on this matter, Deputy Judge Chan granted the prosecution’s application and then the prosecution cross-examined the girl.

8.  Deputy Judge Chan stated that he reopened the hearing on the special issue at the request of the defence.  The reason was that the defence learnt subsequently that the applicant was suffering from temporal lobe epilepsy.  In this connection, the defence called other witnesses to give evidence.  Finally, having considered the evidence and submissions from both sides, Deputy Judge Chan ruled that both the verbal admission and the notebook record were admissible as evidence.

9.  A rather special feature of this case is that in the video recordings the girl said that the applicant had committed acts of indecency towards her, but under cross-examination by the defence, she denied her evidence in this area.  Deputy Judge Chan carried out a careful analysis of the girl’s evidence in his Reasons for Verdict.  His analysis and conclusion are set out below (page 35-36 of the bundle):

“168. PW1 (i.e. girl X) was successfully turned into a hostile witness by the prosecution and was cross-examined by them. The Court has to consider whether [she] is a reliable witness. The evidence [she] gave in Court is contradictory to the contents of the video recordings used as her evidence in chief. The Court has to consider whether, in the light of the contradictions in her evidence, her evidence is still credible and whether there is any danger in relying on her evidence.

169. At last, the Court finds that the contents of PW1’s video recordings are supported by PW2’s evidence and the defendant’s admission. The Court is of the view that it is indeed dangerous to rely solely on PW1’s evidence given in the form of the video recordings. However, in this case besides PW1’s evidence given during her interviews, there are also PW2’s evidence and the defendant’s admission, which can support her evidence. As for PW1’s evidence given in Court, the Court finds that obviously [she] was not telling the truth when she was in Court. The Court considers that the explanation given by PW1 as to the discrepancies between what she said in the video interviews and her evidence in Court is not convincing. The Court rejects PW1’s evidence that because she wanted to leave the scene and the police station as soon as possible, she said something which she thought the police would like to hear.

170. The Court’s view is that there are inherent improbabilities in PW1’s evidence that if she said something which the police wanted to hear, she could leave earlier. The Court believes that once PW1 told the police what she said in the video recordings, there was more reason for the police to ask PW1 to stay to assist them in the investigation. When PW1 told the police that intimacies had taken place between she and the defendant, the police would need PW1 even more to stay to assist them to investigate what happened between she and the defendant. The Court considers that what PW1 said in Court, i.e. she lied during the video recorded interviews because she was under pressure, is definitely not the truth. At that time, PW1’s mother was in the police station and she watched over the process of the video recordings through the close circuit television. In the course of the video recordings, PW1 could have told the video recording officers that she did not want to continue with the video recorded interviews and that she wanted to leave the police station, or when she was taking a rest she could have complained to her mother or told her mother that she did not want to continue with the video recorded interviews but wanted to leave. However, she did none of that. The Court finds that the explanation she gave in Court is unconvincing.

……

172. In the Court’s view, during the video recorded interviews, PW1 was quite protective towards the defendant. She tried her best to play down the degree of intimacy and the intensity of the intimate acts between she and the defendant. PW1 often answered questions by saying, “I don’t remember’, but in fact it is not true that she did not remember the answers to the questions; rather, she was trying her best not to say anything detrimental to the defendant. However, as a result of the social worker’s careful and patient questioning, PW1 eventually disclosed part of the truth, including the fact that the relationship between the defendant and she was one of boyfriend and girlfriend, and that the defendant asked PW1 to embrace him, then PW1 put her arms round the defendant’s waist, while the defendant put his hands on PW1’s back and then kissed PW1 on the forehead; then PW1 twined her arms around the defendant’s neck; the defendant reclined the seat, unzipped his trousers and asked PW1 to kiss his lower part (i.e. penis); and PW1 did that.

173. The Court believes that PW1 did not have any motive to fabricate a story that the defendant and she were boyfriend and girlfriend. Actually, the statement given by PW1 during the video recorded interviews that the defendant and she were boyfriend and girlfriend is a true statement. 2, Intimacies such as embracing, kissing PW1 on the forehead, PW1’s twining her arms around the defendant’s neck and PW1’s kissing the defendant’s penis as described by PW1 in the video recorded interviews did actually occur.”1 [emphasis added]

10.  Deputy Judge Chan made the following comments and conclusions about other prosecution witnesses (see page 36 and 37 of the bundle):

“175. The Court finds that PW2 is an honest and reliable witness. The Court is satisfied that PW2 at the scene saw that PW1 was sitting in the car, and that, as described by PW2, PW1 was sitting on the driver seat, that is to say, sitting, in a riding position, on the defendant, with her back towards the windscreen of the private car. The defendant was sitting on the driver seat. At that time the back of the chair was in an upright position. The defendant’s arms were around PW1’s waist. The Court is aware that the scene was not illuminated by street lights and that at the material time it was night-time, but PW2 lit up the place with his torch and saw what happened, as described above, within a short distance. The Court is satisfied that PW2 unmistakenly saw a girl in school uniform, who was later identified to be PW1, sitting on the body of the defendant, who was sitting on the driver seat of the private car.

176. The Court notices that the description given by PW2 about seeing PW1 sitting, in a riding position, on the defendant’s body in the car is different from what was admitted by the defendant and PW1. Nevertheless, the Court is satisfied that PW1 saw the above-mentioned body contacts within a short distance under illumination by torch light and that he saw PW1 turn round and return to her seat.

177. PW2’s evidence about what he saw the defendant and PW1 doing is different from what PW1 said in the video recorded interviews and is also different from what the defendant verbally admitted at the scene and from the admission recorded in the post-recorded cautioned statement. The Court believes that PW2 honestly gave evidence about what he witnessed; on the other hand, PW1 was trying her best to make the incident appear to be less serious than it was, while the defendant made admission about the incident according to what he himself wished to say.

178. Furthermore, PW2 appeared at the scene only at a later stage. The Court considers that it is not strange at all that PW2 did not see what contacts there were between PW1 and the defendant at the earlier stage, i.e. before PW2 arrived. However, what PW2 saw did support the allegation that the defendant and PW1 had intimate contacts in the car. Admittedly, the action which PW2 saw, namely PW1 sitting on the defendant’s body, in a riding position, with her back towards the windscreen of the private car, falls short of being indecent, but it strongly supports the allegation that the defendant and X, i.e. PW1 did have intimate contacts in the car. It also supports what PW1 said in the video recorded interviews, i.e. before the constable arrived she and the defendant had even more intimate contacts as described in the video recorded interviews.

179. The Court finds that PW3 is an honest and reliable witness. The Court has already commented on the evidence about the special issue and will not repeat it. As far as the general issue is concerned, the Court accepts PW3’s evidence that at the scene where the defendant was arrested, the defendant did, as stated by PW3, make the verbal admission recorded in the notebook. The Court is satisfied that PW3 accurately recorded in his notebook the conversation between he and the defendant. The Court gives full weight to the admission in question.”

11.  Deputy Judge Chan’s decision regarding this case as a whole is as follows (see page 37 of the bundle):

“183. Judging from all the evidence before the Court, the Court is satisfied that the defendant and X did embrace each other; the defendant did kiss X on the forehead; X did twine her arms around the defendant’s neck and the defendant did take out his penis for X to have intimate contact with it. Having considered all the evidence, the Court finds that the defence’s allegation that the police constables fabricated evidence to frame up the defendant is not substantiated. The Court finds that there are inherent improbabilities in the defendant’s allegation that the constables fabricated the evidence.

184. The police constables involved in this case, including PW2 and PW3, had to put the admission words into the defendant’s mouth, and to force or induce the defendant to sign to confirm that he, being a teacher, indecently assaulted an underage girl. The police not only needed to make the defendant confess, but also needed to find a victim, to make the girl X (i.e. the fencing student of the defendant) to cooperate with them to make up the accusations that there were intimate body contacts between the defendant and she.

185. Judging from the evidence before the Court, the Court is sure that when PW2 reached the scene on patrol he saw that PW1 was sitting on the defendant, in a riding position, in the car, with her back towards the windscreen of the car. Because of that, he carried out further investigation. He called for police vehicle no. 68 to come to assist him only because of what he saw at the scene.

186. The Court considers that if PW2 at the scene had seen that [the defendant] and PW1 were just sitting on the seats in the private car, without doing anything unusual, he would surely not have called for the police officers in police vehicle no. 68 to come to the scene to assist him. The Court finds that PW3 declared to the defendant at the scene that he was under arrest only because the defendant made the verbal admission to him at the scene. The Court is of the view that if the defendant did not make any admission to the police constables at the scene and the constables did not know whether the girl X would cooperate with them in framing up the defendant, then in there circumstances, it is unbelievable that they would, as alleged by the defence, take X and the defendant, without arresting him, to the police station.

187. On the basis of the defendant’s admission, the actions which PW2 saw at the scene and the things said by the girl X during the video recorded interviews, the Court finds that it is beyond reasonable doubt that at the scene in the car intimate contacts did occur between the defendant and X, including the defendant touching the breasts and the lower part of the girl X and the defendant taking out his penis for the girl X to touch it and kiss it.” [emphasis added]

12.  Deputy Judge Chan held that according to the moral standard of ordinary citizens, what the applicant did to the girl, especially taking out his penis for the girl to kiss it, was indecent, and that the indecency was serious enough to be gross.  He therefore found the applicant guilty.

Grounds of appeal

13.  Mr. Alex Ng, counsel for the applicant, put forward the following grounds of appeal:

(1) The trial judge erred in law and in his findings of fact in that he wrongly adopted girl X’s video recorded interview evidence (“video evidence”) as the factual basis of the conviction.

(2) The trial judge erred in his findings of fact in that he admitted PW3’s evidence about the applicant’s verbal admission and about the contents post recorded in the notebook, having totally neglected the serious inherent improbabilities in his evidence.

(2.1) Alternatively, the trial judge proceeded on a wrong legal basis when he dealt with PC 1987’s questioning the applicant without cautioning him.

(3) In these circumstances, the conviction is unsafe.

Applicant’s submissions

14.  Mr. Ng submitted that in general, if a witness in Court denied the truth of the statements he gave earlier, then the statements, including sworn statements, should not be treated as evidence.  Mr. Ng referred to the judgment given by the English Court of Appeal in R v Goldens, 45 Cr. App. R. 5, CCA (at p.11):

“When a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements whether sworn or unsworn, do not constitute evidence upon which they can act.”

On this point Mr. Ng also cited other cases in support, including The Queen v Yip Moon Ting and another [1984] HKLR 443, Driscoll v the Queen [1977] 51 ALJR 731 and R v Maw [1994] Crim. L.R. 841.

15.  Mr. Ng accepted that the video recordings of the girl were given in evidence by virtue of section 79C of the Criminal Procedure Ordinance, Cap. 221, Laws of Hong Kong, but he argued that there were unsafe areas in the trial judge’s assessment of the girl’s evidence.  He stressed that the girl’s evidence basically denied that the applicant had done any indecent act towards her and she said that the version of the events described by her in her video evidence was untrue.  This situation was similar to the one commented on by the English Court of Appeal in R v Birch, 18 Cr. App. R. 26:

“Apart from authority, the general position here was that the chief witness for the crown could not be believed on oath. Of course, there might be enough other evidence to justify a conviction. Was there here? The confusion arose from supposing that depositions in the Court below are per se evidence at the trial: they are not. You cannot leave a jury to act on a statement which the witness herself says is untrue.”

16.  Mr. Ng submitted that there were special features in this case in that when the girl denied in Court the main allegations made in the video evidence, the defence counsel would not then engage in any in-depth cross-examination about the contents of the video evidence.  Therefore, the defence counsel would be put into a difficult position because of the changes in the testimony of the girl in Court and the trial judge’s subsequent decisions as to which parts of the facts he would accept and which parts he would reject, and this would lead to unfairness.

17.  Mr. Ng pointed out that there were cases in which the English Court of Appeal held that a conviction was unsafe and unsatisfactory because it was not possible for the defence to carry out any effective cross-examination.  (see R v Janusz Marian Malicki [2009] EWCA Crim. 365 and R v M [2008] EWCA Crim 2751.)

18.  According to Mr. Ng, Deputy Judge Chan’s conclusion that PW2’s evidence could support the girl’s evidence was also unsafe, because he did not sufficiently consider the following factors:

(i) The girl in her video evidence had never said that she had been sitting, in a riding position, on the applicant’s body, and the intimate acts in question took place when the policeman appeared; and

(ii) The girl’s sitting, in a riding-position, on the applicant’s body, without more, did not constitute indecency.

19.  Mr. Ng, based on his analysis, complained that it was inappropriate for Deputy Judge Chan to hold that PW3’s questioning the applicant upon his arrival at the scene, without cautioning the applicant first, was acceptable.  Mr. Ng argued that the Court overlooked the fact that PW2 had already conducted a preliminary questioning and knew how old the girl was.  In the mind of PW2, a crime had been committed at the scene.  Any police officer who came to the scene subsequently should not, on the ground that he came only at a “later” stage, neglect the requirement to administer a caution immediately.

20.  As far as PW3’s credibility is concerned, Mr. Ng specially pointed out that there were grave inherent improbabilities in his (PW3’s) evidence about the handling and recording of the verbal admission.  Although this was a finding of fact, there were areas to which the attention of the Court of Appeal should be drawn (paragraph 17 of the written submissions).  His views were:

(i) PC5758 (PW2) would certainly not omit the focus of the investigation — the age of the girl — and fail to tell PC1987 (PW3) about that;

(ii) According to PC1987’s evidence, under the circumstances in existence at that time, he specifically cautioned the applicant before carrying on with the questioning. If that was the case, how come he would forget to write down the caution;

(iii) PC 1987’s evidence was that immediately after the applicant admitted that he had “touched” the girl X, he cautioned the applicant and asked him the questions which were, together with the answers (including the girl’s age), recorded on page 76 and 77 of the notebook. If PC1987 at that time, as he said in his evidence, did not know how old the girl was, why would he decide to caution the applicant? “Touching” a girl who was above 16 (with her consent) obviously was not a crime. The only reasonable inference was that the questioning recorded on page 76 and 77 was not carried out under caution (so there was no caution). The credibility/ reliability of PC1987 should be called into question and the admission, evidence of which came from him, should be rejected by the Court of Appeal.

21.  Mr. Ng in his supplemental written submissions added that according to R v Nelson and Rose [1998] 2 Cr. App. R. 399, CA, “The appropriate time to administer the caution is when, on an objective test, there are grounds for suspicion, falling short of evidence supporting a prima facie case of guilt, that an offence has been committed by the person questioned”.  In addition, in R v Hawkins [2005] EWCA Crim. 1723, the English Court of Appeal held that when an interviewee had been questioned at different times and the officer who questioned him at an earlier time suspected that the interviewee had committed certain crimes, but the officer who questioned him later, in ignorance of this result of the earlier questioning, carried on the questioning without cautioning the interviewee, then the confession thus obtained ought to be rejected.

Respondent’s submissions

22.  The respondent’s representative, Mr. Alex Lee, Senior Assistant Director of Public Prosecutions, replied to the applicant’s arguments point by point in his written submissions.

23.  The respondent agreed that generally speaking, to convict just by relying on the contents of the girl’s video evidence would be dangerous and that this point was accepted by the trial judge.  However, the respondent submitted that the Deputy Judge had made it clear that in this case besides the girl’s video evidence, there were also evidence about what PW2 observed and the admission made by the applicant. The respondent pointed out that the significance of PW2’s evidence was that it could serve as circumstantial evidence in support of the prosecution’s allegations and this, in combination with the applicant’s admission, fortified the prosecution evidence so that the prosecution evidence as a whole was sufficient to found a conviction.

24.  In response to Mr. Ng’s submission about the video evidence, the respondent argued that the girl’s 3 video recordings, namely (P4) to (P6) were admitted in evidence in accordance with the Criminal Procedure Ordinance, Cap. 221, Laws of Hong Kong.  Their evidential value was therefore different from the ordinary prior inconsistent statements referred to by Mr. Ng.  These video recordings about her interviews should be regarded as the evidence in chief of the girl (see section 79C(6)(b) and Chim Hon Man v HKSAR [1999] 1 HKC 428, 438A-C).  That being so, when the girl, under cross-examination, denied the truth of what she said during the video recordings, the effect was the same as that when a witness, under cross-examination, denied the truth of his evidence in chief.  In principle, this was distinguishable from the cases such as R v Yip Moon Ting [1984] HKLR 443 cited by the applicant.

25.  The respondent’s view was that the correct understanding of the law on this issue was :

(1) What the girl said in the video evidence, even though contradictory to what she said under cross-examination, was still part of her evidence;

(2) When the girl contradicted herself in her evidence, it was not necessary for the Court to reject the whole of her evidence;

(3) In assessing the girl’s evidence, the Court was certainly required to consider carefully whether she was still reliable, and which parts of her evidence were credible and which parts were not; and

(4) The Court should warn itself of the danger of accepting the evidence of a witness who had been shown to have said different things at different times which contradicted each other, and then decide what suitable weight to attach to the different versions.

26.  The respondent considered that in the circumstances of this case, Deputy Judge Chan dealt with the girl’s evidence in a fair manner in accordance with the principles and could not be faulted.

27.  Furthermore, the respondent stressed that the trial judge was the trier of factual issues and that the findings he made about the credibility of PW3 were reasonable ones and ones which he was entitled to make, and therefore should not lightly be interfered with in an appeal (see HKSAR and Lee Hon Shun, CACC 626/1990).

28.  The respondent submitted that Mr. Ng himself agreed that “What was observed by PC5758, namely the girl sitting, in a riding position, on the body of the applicant, on its own did not constitute indecency”; therefore, before the applicant admitted to PW3 that he had done any indecent acts to the girl, the police (whether it was PW2 or PW3) did not have sufficient “evidence” for them to caution the applicant.  Even if PW2 knew that the girl was under 16, that would not make any difference.  The trial judge found that PW3 was credible and reliable and that what he learnt from PW2 were only preliminary findings, including the fact that PW2 saw the girl sitting, in a riding position, on the body of the applicant.  For that reason, even if PW3 did not caution the applicant there and then, he was not in any way wrong (paragraph 85 of the Reasons for Verdict).

29.  The respondent’s view was that even if PW3 had contravened some of the rules for the questioning of suspects, it did not follow that the applicant’s verbal admission should automatically be disqualified from being admissible evidence.  In assessing its admissibility, the Court was required to consider, inter alia, whether the verbal admission was made voluntarily and whether the Court should exercise its discretion to exclude it.  The result was dependant on the particular circumstances of each case (see: SJ v Lam Tat Ming [2002] 2 HKC 693, 703E; HKSAR v Hung Kong Nam & Anor, CACC 346/2006, para. 28 on p.10).  The respondent submitted that since the applicant, with clear knowledge of the content of the notebook record, wrote down the declaration and appended his signature to confirm it, the trial judge’s refusal to exercise his discretion was a correct decision.

30.  The respondent submitted that the grounds put forward by the applicant did not show that the conviction was unsafe or unsatisfactory.

Discussion

31.  The record in the notebook, on its own, shows that the first question which PW3 put to the applicant at the scene was whether he knew what the girl’s name was.  Following that, he asked the applicant what the relationship between he and the girl was, how old the girl was and what he and the girl had done in the car.  After the applicant gave his answers, PW3 arrested and cautioned him.  Under these circumstances, the applicant further said that he liked the girl and that at that moment he was seized with a sudden impulse and touched her.  That means the witness only cautioned the applicant once, and that was done after the arrest.

32.  However, when PW3 was in the witness box he provided a different version of the events.  He said that after he arrived at the scene, he spent 5 to 6 minutes on preliminary questioning of the applicant.  He asked the applicant how he came to know the girl and asked him for his background information.  PW3 said that he did not caution the applicant right at the beginning of this process because he needed to understand what had happened.  He considered that just the information he received from PW2 was not enough to make it necessary to caution the applicant, and that he needed to see what explanation the applicant could provide.

33.  PW3 said that what recorded on page 76 of his notebook were the questions he asked after he cautioned the applicant and the answers given by the applicant.  He said he forgot to write down the part about the caution, but he stressed that he asked those questions only after he cautioned the applicant.  What was recorded in the notebook were not the questions he asked during the preliminary investigation stage.  He stated that he recorded in pol.154 his preliminary investigation.  When the applicant said that he had “touched” the girl, he immediately cautioned the applicant and then asked him the questions recorded in the notebook.

34.  In this connection, Deputy Judge Chan made the following comments (see page 15 of the bundle):

“85. I am satisfied that PW3’s evidence is credible and reliable. PW3 gave evidence in a straight forward manner and did not hold back anything which he knew and saw. I find that when PW3 arrived at the scene, he received some preliminary information from PW2, including the fact that PW2 saw X sitting, in a riding positing, on the body of the defendant, who was sitting on his seat. Instead of cautioning the defendant instantly, PW3 chose to carry out [preliminary?] questioning of the defendant. There was nothing wrong in handling the matter in this way. To proceed in this way, PW3 did not mean to deliberately refrain from cautioning the defendant in order that the defendant would not be put on guard and therefore might make an admission.”2

……

87. …… I think that certain omissions in the notebook concerning, for example, times, places and the contents of the caution, must be viewed in the light of the circumstances in existence at the material time. At that time it was dark at the scene, PW3 had to rely on the light from the electric torch. After he cautioned the defendant, he asked him questions and there and then recorded the answers given by the defendant. It was under these circumstances and for this reason that PW3 omitted to record certain times, places and contents of the caution. If what the defence alleged is true, i.e. PW3 did not make the record in question at the scene, then when PW3 subsequently fabricated the record —— he certainly was fully aware of the importance of cautioning the defendant —— why did he not put down on page 76 the time, place and the contents of the caution? The Court considers that PW3’s evidence that at the scene he shone the torch on the notebook and that in his way [he] read the record made at the scene and signed is true, credible and reliable. The Court believes that because of the condition of the scene of crime, PW3 knew very well that after he returned to the police station he needed to make a complete record of the process of taking the cautioned statement. To deal with the matter in the way PW3 did, namely not making a full and complete record of the process of taking the cautioned statement at the scene, was reasonable and should be free from any criticism.”

35.  Our view is that on the face of it, the notebook record is a more logical description of the sequence of events: PW3 asked about the name of the girl first; then the relationship between the two people and then the age of the girl; when the applicant said that he had taken out his penis to let the girl touch it, PW3 immediately cautioned him.

36.  If what happened was not like this, if the sequence was that the witness had already asked the applicant some questions earlier, and that when the applicant said he had touched the girl the witness cautioned him; but after cautioning him, the witness again asked the applicant whether he knew what the girl’s name was, what the relationship between the two of them was, how old the girl was and what they had done in the car; and then when the applicant said that he had touched the girl’s breasts and lower part and had taken out his penis, the witness put him under arrest and again cautioned him, such an account actually renders the contents of the notebook a bit far-fetched.  The witness said that he forgot to write down the verbal admission which led to the first caution, and that he also forgot to write down the caution.  From an objective point of view, this is rather hard to believe.  The challenge made by the defence directed against the witness’s explanation cannot be said to be groundless.

37.  It was suggested that the witness thought it was necessary to immediately caution the applicant only when he heard the applicant admit that he had touched the girl, but actually long before that he already learnt from PW2 that PW2 saw the girl sitting on the applicant’s body.  We think that in view of what was going on at that time, it would have been fairer and more proper if PW3 had cautioned the applicant first before he questioned him (see R v Nelson and Rose and R v Hawkins, supra).

38.  The question is that if the trial judge should have rejected PW3’s evidence or should have ruled that the admission in question was inadmissible, then was the rest of the prosecution evidence insufficient to support the conviction?  In our judgement, the answer is that it was not.

39.  Firstly, we agree with the respondent’s submission on the principles about how we are to understand the girl’s evidence (see para. 25, supra).  What the girl said in the video evidence is not a written statement given by a witness to the police under usual circumstances but was the evidence in chief of the girl.  Under the special circumstances of this case, the trial judge was entitled to judge whether the content of the video evidence was true or false.  After seeing and hearing the girl give evidence, Deputy Judge Chan made meticulous, objective and fair analysis of her evidence and finally rejected the explanation she made in her attempt to deny the truth of her video evidence.

40.  What is important is that Deputy Judge Chan clearly pointed out that it was dangerous to rely solely on the girl’s video evidence as the basis of the conviction.  Therefore, Deputy Judge Chan fully understood the strength and weakness in the girl’s evidence.  The verdict he gave was by no means rashly given.

41.  Secondly, what PW2 saw was regarded by Deputy Judge Chan as evidence which could support part of the girl’s evidence; and what PW2 saw was that in the car the girl was sitting on the applicant, with their arms around each other’s body.

42.  Deputy Judge Chan accepted what PW2 observed as true and further, he made the following analysis (see page 36 of the bundle):

“178. Furthermore, PW2 appeared at the scene only at a later stage, the Court considers that it is not strange at all that PW2 did not see what contacts there were between PW1 and the defendant at the earlier stage, i.e. before PW2 arrived. However, what PW2 saw did support the allegation that the defendant and PW1 had intimate contacts in the car. Admittedly, the action which PW2 saw, namely PW1 sitting on the defendant’s body, in a riding position, with her back towards the windscreen of the private car, falls short of being indecent, but it strongly supports the allegation that the defendant and X, i.e. PW1 did have intimate contacts in the car……” [emphasis added]

43.  Based on this conclusion, Deputy Judge Chan found that the intimate contacts between them included the applicant touching the breasts and the lower part of the girl and the applicant taking out his penis for the girl to touch it and kiss it.

44.  We believe that PW3’s evidence and the applicant’s admission were a separate and discrete unit. Even if it was removed, there were the girl’s evidence and PW2’s evidence, which could be the basis of Deputy Judge Chan’s analysis and findings, and could support the verdict of guilty.

45.  We agree with the respondent’s submission that in considering whether the verdict in this case was safe, the Court should have regard to the undisputed facts which formed the setting of this case: Having had dinner in Yaumatei, the applicant drove the girl to the water catchment of Shing Mun Reservoir, where there was no street light and at the material time, there was no pedestrian either.  Before the police constable arrived, they had been there for about half an hour. In order to see, the constable had to turn on his electric torch.  PW2 saw that the girl was sitting on the applicant, with the applicant embracing her.  Once she was seen, she got away from him and sat on the passenger seat.

46.  We hold that when the evidence is viewed in this light, there is nothing unreasonable or unsafe in Deputy Judge Chan’s conclusion.

47.  We do not accept Mr. Ng’s submission that as a result of the girl’s denying the truth of her evidence in chief, it was impossible for the defence to conduct a fair cross-examination. The record shows that the defence counsel had cross-examined the girl extensively on issues including the relationship between the girl and the applicant, what was done on that night, what happened after the police came and the questioning of her by the police.  Deputy Judge Chan did not in any way restrain the defence from cross-examining the girl.  As to how the defence counsel should conduct his cross-examination, what questions should be put, what details should be clarified, it was for him to make his professional decisions.  Mr. Ng complained that because the girl “went back on what she said”, the defence was thrown into a dilemma and consequently the trial was unfair. We find that this complaint is not substantiated. 

48.  In our judgment, the conviction is not unsafe. 

Conclusion

49.  For the above reasons, we dismiss the application for leave to appeal against conviction.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.