HKSAR v. LAI KANG WAN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.308
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 18th May 1998, this Applicant was convicted in the District Court, following a trial before Judge Davies, on a charge of indecently assaulting his stepdaughter (PW1) then aged 9 years and 11 months. For this offence he later received a 12-month prison sentence. He now seeks leave to appeal against conviction.

2. His grounds are set out on two separate bases. The first of these is that prosecuting counsel was unable to place before the court, in any of his submissions, evidence or a reason to show that the victim had been indecently assaulted whilst the Applicant was applying soap to her body whilst she was being bathed by him. Following from that, the judge, he believes, convicted him simply because it was the opinion of the judge that his stepdaughter should have been able to bathe herself. It is stated in the grounds of appeal that the victim was then 8, but the Applicant has accepted that he was mistaken.

3. The second ground of appeal is that on 3rd June 1998, when sentence was being passed, the judge seemed to have drawn an inference, without any reason, that the victim had been assaulted indecently by the Applicant. Furthermore, the judge appears to have considered that she had suffered "psychological impact", even though no psychologist's report or social worker's report had been called for.

4. This last reference in the Applicant's grounds is to something which was said by the judge when he passed sentence. This is not an application in relation to sentence, but the psychological impact on the victim, whilst it may have been relevant to sentence, was most assuredly not part of the reasons which were carefully expressed by the judge for convicting the Applicant of this charge.

5. Today the Applicant has added a number of further grounds of appeal. He points out that he used to bathe his stepdaughter when she was much younger, in the days when the family were living in Costa Rica, but that since they have moved to Hong Kong, he has done so far less frequently. He has pointed out also that if the conviction is allowed to stand, he will have no opportunity of returning to Costa Rica. He continued by telling us a number of matters, which can only be described as evidential, which he believes might have affected the verdict if the judge had heard them. Amongst the things he has drawn to our attention are a large number of letters which have drawings on them which indicate that his stepdaughter has apparently forgiven him. He concluded by asking this court to give him a fair trial.

6. The Applicant should know that this court is not concerned with re-trying this charge on fresh evidence. The Court of Appeal has the duty of examining trials which have taken place to ensure that no mistake has been made in the previous court. Consequently, the matters which have been raised today have no relevance.

7. Returning to what was heard by the District Court judge, although the young victim was called to give evidence by way of closed circuit television in court, she did not, as events turned out, give any direct evidence against the Applicant. The Applicant himself did not give evidence at his trial. However, the evidence which led to this Applicant's conviction was what he told the police during the course of an interview with them. This was shortly after his arrest and it was admitted without challenge.

8. The judge summarized this in his Reasons for Verdict as follows:

".... The defendant admitted to having bathed his stepdaughter on the night in question and to having touched her breasts and her vagina but only during the course of applying soap to her body. He has said that this was only the fourth time he had ever bathed his stepdaughter and that her mother was not at home at the time.

This evidence needs to be considered in the context of a girl aged almost 10 years old, who is big for her age and, according to the forensic pathologist, was already developing secondary sexual characteristics ........................

Having seen and heard her I am satisfied that this girl was capable both physically and mentally of bathing herself, and on her own unchallenged evidence had been bathing herself for a long time prior to this particular occasion. I do not consider it appropriate for me or any other judicial tribunal to fix arbitrarily an age following which no father or step-father could bath his daughter or step-daughter. However, what does seem obvious is that fathers and stepfathers need to be very circumspect when it comes to the bathing of daughters and stepdaughters and, as they grow older, so that circumspection becomes even more important. When, however, the child reaches the early stages of puberty then this development would rule out any thought of assisting a daughter or stepdaughter to bath, with or without her consent.

In the present case there are additional factors which eliminate any claim of a possible lack of circumspection on this defendant's behalf. The girl had been bathing or showering herself for a long time. As mentioned, this was only the fourth time the defendant had ever assisted her to do so in the six years or so that he had been her stepfather. This would rule out any excuse that bathing her had become such a regular course of conduct that he had merely failed to realize it had gone on for too long. Also, I find it no coincidence that this somewhat isolated event occurred during the temporary absence of the girl's mother.

As was said in R v Lam Tsz-wah, [1984] HKLR 54, a court may more readily draw an inference adverse to the accused from circumstantial evidence in the absence of testimony from the accused."

9. The judge then reviewed another case in which the same or a similar point was made before coming to his conclusion that this was a deliberate indecent assault, and he said in the final paragraph of his Reasons:

"Bearing in mind the totality of the evidence, I am satisfied beyond reasonable doubt that this was not the careless touching of the private parts during the innocent bathing of a child as claimed by the defendant in his cautioned statement, but the deliberate and ugly act of child molestation."

10. In the opinion of this court, the judge was fully entitled to reach this conclusion upon the evidence which he had heard in the trial.

11. There is no merit in this application and it is dismissed.