HKSAR v. MOHAMMAD, ISHTIAQ ASHRAF

HCMA 722/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 722 OF 2011

(ON APPEAL FROM KCCC NO. 28 OF 2011)

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BETWEEN

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JUDGMENT

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Introduction

1.  On 8 September 2011 the appellant was convicted by Deputy Magistrate Ho Wai Yang sitting at Kowloon City Magistrates Court of the offence of having unlawful sexual intercourse with a girl under 16 contrary to section 124(1) of the Crimes Ordinance, Cap 200.  He was sentenced to 21 weeks imprisonment and had served this sentence by the time this appeal was heard on 28 June 2012.  At the conclusion of the appeal I reserved my judgment.

The Trial

2.  The prosecution case was that on 4 August 2010 the victim, PW1, saw the appellant at his street stall in Sham Shui Po[1] and in a conversation with him she agreed to accompany him and stay the night with him.  PW1 accompanied the appellant and his younger brother to a premises at Kam Tin and there had sexual intercourse with him.  PW1 said no condom was used by the appellant and she could not recall if the appellant ejaculated.  The sexual intercourse was entirely consensual but PW1 was only 14 years of age.  This was not PW1’s first experience of sexual intercourse.

3.  PW1’s mother had, understandably, become anxious at PW1’s absence and when PW1 returned home on 5 August the mother questioned her closely on what had happened to her and specifically asked her whether she had been indecently assaulted or had had sexual intercourse with someone.  She answered her mother “no” but when later the mother took her to the police station, she revealed that she had had sexual intercourse with an Indian Pakastani male.  It was in response to this admission that a forensic examination of her genital area then took place.  This examination was negative both for injuries and the presence of semen.

4.  On 12 August 2010 the police conducted the first of two videos interviews with PW1.  In this interview PW1 did not say anything about having had sexual intercourse with the appellant and claimed to have forgotten the events of the evening of 4 August.  The transcript of this interview was produced by the prosecution and it is clear to me that it would be naïve to suggest that PW1’s failure to recall events was due to a genuine lapse of memory. Notwithstanding PW1’s willingness to reveal the incident to the police on 5 August, by the 12 August she had apparently lost interest in pursuing the matter and was doing her best to ensure it would not proceed.  Why she had this attitude was not truly revealed in cross-examination.

5.  However she subsequently cooperated with the police investigation and in the evening of 7 October 2010 she and her mother were taken in a police car to the street where the appellant worked and there PW1 identified the appellant as the person with whom she had had sexual intercourse on the evening of 4 August 2010.  The appellant was then arrested.  What transpired between 12 August and 7 October to transform PW1 from an unwilling to a willing witness is not clear although the following exchange took place in cross-examination after PW1 admitted that her mother had restricted her movement after her failure to return home on 4 August:

“Q: Well, did you think what you had to do in order to get your freedom again?

A. Not to have sexual intercourse with anyone else.

Q. Yes.

A. …. and not to get acquainted with anyone easily.

Q. Yes. And did you think that, if you went and made a statement to the police saying that you had had sexual intercourse, your mum would be happier?

A. Yes.

Q. Yes. And did you also think that, if you admitted to the police that you had had sexual intercourse, your mum would again allow you to go out alone by yourself?

A. I can go out alone again?

Q. Yes, to regain your freedom of movement.

A. Yes, I did.

Q. And so you decided to admit that you had had sexual intercourse, is it?

A.   Yes.”

6.  On 9 November 2010 PW1 participated in a second video interview and this time she described having had sexual intercourse with the appellant on 4 August 2010.  This video interview became her evidence in chief at trial.

7.  In this interview she denied knowing the appellant before 4 August and said she came to know him that day when she and her cousin went to a scrap dealer to buy a table.  She described the place where the appellant took her as a warehouse at Kam Tin.  She described the person who took her as being about 40 years old and being Pakistani.  She mentioned him as having one identifying feature, namely a hair protruding from his face.  She said the appellant took her to Kam Tin in his own vehicle and they arrived there at some time between 11 pm and midnight.  She stayed about 10 hours and the appellant dropped her off in Shamshuipo around midday on 5 August.  She went to a friend’s place and that friend took her home.  She arrived home around 1 pm and lied to her mother as to where she had been.  She said her mother was suspicious that she may have had sexual intercourse and so took her to the police station.  There she admitted what had happened.

8.  Under cross-examination PW1 admitted that between May and August 2012 she had frequented the area where the appellant plied his trade and had come to know him.  They were not strangers to each other; indeed it was the defence case at trial that they were well acquainted and PW1 agreed that this was so.

9.  The appellant did not give evidence or call any witnesses.  The defence case as put in cross-examination of PW1 was that PW1 was falsely accusing the appellant and in doing so may have been motivated by the ill-will she felt towards the appellant arising from an occasion a few days before 7 October when the appellant had refused to give PW1 $50 but shortly after had given $20 to PW1’s friend.  PW1 acknowledged that there was an occasion when she was angry with the appellant but denied it had anything to do with money.  Rather, she said it was because she had seen the appellant groping her friend.  This is reflected in the following exerpt from her cross-examination:

“Q. You were absolutely angry, were you not, with that man?

A. Correct.

Q. And, one or two days later, you led the police to get him arrested; isn’t that right?

A. Disagree.

Q. It was you got him arrested because you were angry he had given your friend some money but not you.

A. Disagree.

Q. What you did was, your mother was at your back not letting you go out by yourself and here was the man who had upset you; you thought you’ll kill two birds with one stone: satisfy your mother and also get -- or teach this man a lesson. Isn’t that what happened?

A. No.”

10.  Notwithstanding this putting of the defence case there still remained at trial some confusion as to what the defence case was in respect of PW1’s identification of the appellant.  However it became clear on appeal that it was part of the defence case that PW1 and the appellant were well acquainted with each other and that this was not a case of innocent mis-identification calling for a Turnbull direction; rather it was a case of a deliberate false accusation motivated by malice.

11.  Of course, quite apart from any personal animus PW1 might have harbored against the appellant there was the issue of whether PW1 was a reliable witness whose evidence could be safely acted upon in the absence of any other supporting evidence.  There was no doubt that PW1 was a very troubled young girl who was living a rebellious lifestyle and who when first asked about the events of 4 - 5 August was not forthcoming in revealing details of the offence.  I should also mention that the forensic pathologist who examined PW1 noted the presence of healing wounds on PW1’s left wrist and right forearm.  The parallel patterns of these wounds were consistent with the claim by PW1 that they had been self-inflicted.

The Grounds of Appeal

12.  The grounds of appeal all concern PW1 and the magistrate’s evaluation of her evidence.  The first ground of appeal is that the magistrate failed to properly evaluate the evidence.  The second ground is that PW1’s identification of the appellant is not reliable.  The third and final ground is that in view of certain aspects of PW1’s evidence, PW1 is not a credible witness and these aspects of which criticism is made were not properly evaluated by the magistrate.

13.  For all of these reasons the appellant says his conviction is unsafe and unsatisfactory.

The Magistrate’s Statement of Findings

14.  The Deputy Magistrate reminded herself that “this is a “one-on-one” case and that “I should be extra cautious when assessing the evidence of PW1” and that “I should approach the testimony of PW1 and PW2 with extreme caution.  I further reminded myself of the dangers of convicting the appellant based on allegations made by PW1’s only”.

15.  She clearly recognised that the only issue was PW1’s credibility and she assessed that taking into account all the criticisms made of it by defence counsel.  The first video interview had been put into evidence and so she addressed the failure by PW1, in that interview, to reveal anything of the incident with the appellant.  She concluded that PW1’s refusal to say anything was due to her low mood and her reluctance to reveal to the police what had happened and did not affect her credibility and reliability.

16.  Much was made by Ms Panesar, who appeared both at trial and on appeal, of PW1’s poor memory.  I think it would be disingenuous not to recognize that PW1 was an unenthusiastic witness and at times her answers reflected a desire to say no more than was absolutely necessary.  But the magistrate accepted that, on key matters, PW1’s memory was not impaired and her credibility and reliability were unshaken.

17.  On the question of fabrication the magistrate took into account PW1’s admission that she thought she might regain her freedom if she admitted having sex with the appellant.  But the magistrate concluded that when PW1’s evidence was looked at as a whole, what PW1 was in fact saying was not that she lied to regain her freedom; but rather she was acknowledging that at the time the thought had crossed her mind she could regain her freedom by admitting to her mother what in fact had happened.

18.  In respect of the forensic evidence the magistrate found that it did not cast doubt on PW1’s credibility.  As the sexual intercourse was consensual and PW1 did not see any sign of ejaculation, the lack of injuries and the absence of semen was neutral evidence.  However, the consequence was that there was no supporting evidence whatsoever for PW1’s claim that an act of sexual intercourse had in fact taken place.

19.  The magistrate concluded that PW1’s evidence was consistent with her second video interview, saying of her:

“Having considered her evidence, I found her to be an honest and reliable witness.”

20.  The magistrate then spent some time on the issue of identification and gave herself a Turnbull direction.  The confusion on this issue was understandable but, as I have previously said, there was no issue of mis‑identification; from the viewpoint of the defence this was a case of fabricated accusation against a person well known to PW1.  What defence counsel was really saying in respect of the identification evidence was that PW1’s evidence on identification was so inconsistent with the age of the appellant that it impacted on her credibility, making it clear that she was referring to somebody other than the appellant.  Thus, if PW1 had engaged in sexual intercourse, then in describing the male partner as 40 years old, PW1 could not be referring to the appellant who was only 27 years of age.

Discussion

21.  PW1 had previous sexual experience and it is clear from the evidence that this must have been known to the mother.  The mother was obviously convinced that PW1 had engaged in sexual activity and presumably that is why she immediately wished to involve the police.  Yet PW1 did not tell her mother of the incident with the appellant and was obviously a reluctant complainant. In these circumstances the question is raised as to whether the revelation to the police was simply the result of her succumbing to the pressure to say what everyone wanted her to say.  Indeed, PW1 answered this very question by saying, in effect, that that was why she told the police she had had sexual intercourse with the appellant, but at the same time maintaining her accusation was true. Then there is the negative forensic examination results later followed by PW1’s refusal to mention the sexual intercourse in the first video interview.

22.  The magistrate had a most difficult task in assessing the credibility of PW1 and in performing this task she did not have the benefit of seeing the witness first hand.  PW1 gave evidence by video link and inevitably this would have deprived the magistrate of some of the assistance that can be provided by demeanour.

23.  The magistrate’s evaluation of PW1 was considered and quite thorough. It may not have addressed every point raised by defence counsel but it revealed the magistrate to be conscious of the issues she had to consider and to be conscientious in doing so.

24.  Nevertheless, there are a number of matters that trouble me in respect of the magistrate’s assessment of PW1’s credibility.  This first is her treatment of the identification issue.  The points relating to identification that were raised by defence counsel were dismissed by the magistrate but in doing so she was assessing the weight to be given to them through the lens of mis‑identification rather than deliberate fabrication of the accusation. Because she did not have a true understanding of the defence case as it related to identification she failed to assess the impact of these identification matters on PW1’s credibility as a complainant who may have engaged in sexual activity with another and was deliberately falsely accusing the appellant as being that person.

25.  Secondly, the magistrate was dealing with a 15 year old complainant who was rebellious and clearly capable of lying in order to advance her interests. At the time of trial an application for a care and protection order has been made in respect of her and she was psychologically troubled, if not damaged, as reflected in her self‑mutilating conduct.  Indeed, towards the end of her evidence defence counsel was informed that PW1 was receiving psychiatric treatment at Princess Margaret hospital.  The prosecutor revealed that the information came from the mother who described the treatment as being for PW1’s mood.  No adjournment was sought to investigate this further and when asked about it PW1 simply said the treatment was for her emotional problems.  This was a very serious failure of disclosure by the prosecution who should have sought full information on PW1 before this case went to trial.

26.  Finally, although the magistrate has carefully analysed most of the different issues that impact on PW1’s credibility and reliability there is no indication that at the end of her evaluation of PW1 she stood back and considered whether the cumulative effect of all the concerns surrounding PW1 caused her to have any reasonable doubt about the safety of acting on her unsupported evidence.  This was particularly important in view of the evidence of PW1’s self-mutilating conduct, of the care and protection order and of the psychiatric treatment – none of which was fully revealed to the court.

27.  For all of these reasons I find the magistrate’s assessment of PW1’s credibility unsafe and for that reason alone I quash the conviction.  As this is an appeal by way of rehearing, I should say that for the same reasons, I cannot be satisfied beyond reasonable doubt of the guilt of this appellant based, as it is, solely upon the unsupported evidence of PW1.  I therefore reverse the decision of the magistrate, quash the conviction and acquit the appellant.

28.  However before leaving this case there is one further matter that is of concern to me from my reading of the transcript of this trial.  That is, the impact on the fairness of the trial of the misunderstanding on the true nature of the defence case in relation to the issue of identification.  There was clearly a lot of frustration between bar and bench and this is evidenced by the volume of transcript taken up by the exchanges between the two.  This effected the flow of the cross-examination of PW1 and hindered defence counsel in her ability to advance her client’s interests.  I appreciate that the magistrate was trying to lessen the ordeal to which PW1 was subject but the appellant was on trial for a serious criminal offence and after reading the transcript I can’t help but feel that PW1’s interests were allowed to prevail over those of the appellant to the prejudice of his right to a fair trial.