HKSAR v. CHU CHI WAH

CACC 211/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 211 OF 2009

(ON APPEAL FROM HCCC NO. 28 OF 2009)

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BETWEEN

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J U D G M E N T

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Hon Yeung, JA (giving the judgment of the Court):

Introduction

1.  The applicant Chu Chi Wah was indicted for 13 offences, other than the 7^th offence, which was Conspiracy to Procure an Abortion, all the other 12 offences were Unlawful Sexual Intercourse with an Underage Girl.

2.  The victim of this case X was a girl born on 3 December 1991. At part of the times of the commission of these offences, i.e. before 2004, X was under 13, while at other times she was over 13. Therefore, 7 of the 12 counts of Unlawful Sexual Intercourse with an Underage Girl for which the applicant was indicted (i.e. counts 1-6 and count 8) were Unlawful Sexual Intercourse with a Girl under 13, and the other 5 counts (i.e. counts 9-13) were Unlawful Sexual Intercourse with a Girl under 16.

3.  The applicant denied all the charges. He was tried before Deputy High Court Judge Maggie Poon (as she then was) with a jury. The trial began on 12 March 2009.

4.  On 18 May 2009, the jury returned a verdict of guilty in respect of counts 1 to 6 and counts 8 to 12 of the Unlawful Sexual Intercourse with an Underage Girl offences, while the verdicts in respect of count 7 Conspiracy to Procure an Abortion and count 13 Unlawful Sexual Intercourse with a Girl under 16 were not guilty.

5.  For counts 1, 2, 3 - 6 and count 8 of the Unlawful Sexual Intercourse with a Girl under 13 offences, the applicant was sentenced to 8 years’ or 6 years’ imprisonment for each count. The sentences are to run concurrently. As for counts 9 to 12 of the Unlawful Sexual Intercourse with a Girl Under 16 offences, the applicant received 4 years’ imprisonment on each count. The sentences are to run concurrently, but 2 years of the term is to run consecutively to the aforesaid 8 years’ imprisonment. The defendant has to serve a total of 10 years’ imprisonment.

6.  The applicant seeks leave to appeal against his conviction.

Prosecution case

7.  The facts of the case and the issues raised in the appeal are not particularly material, and a brief description is sufficient. The applicant was the teacher of X. He started teaching her since she was a primary 2 student. In September 2003 X was promoted to Form 1 and from that time onwards, she went to the applicant’s home to receive private tuition. The place where the applicant gave private tuition was his dwelling place at No. 385 Nathan Road, Yaumatei, Kowloon.

8.  X stated that starting from January 2004 the applicant had sexual intercourse with her on multiple occasions. X remembered that the 1^st occasion took place between 1 January and 29 February 2004; that the 2^nd occasion was one to two weeks after the 1^st one; that the 3^rd occasion was also one to two weeks after the 2^nd one; and that the 4^th, 5^th and 6^th occasions took place between 1 March 2004 and 30 June 2004.

9.  According to X, before her 13^th birthday i.e. before 3 December 2004, she had sexual intercourse with the applicant several dozen times. At the beginning, it was once or twice every one to two weeks, but then it became more and more frequent. X specifically said that during May and June in 2004, on every Saturday after she finished jogging she stayed overnight at the applicant’s dwelling place and that she had sexual intercourse with him once or twice each week. She said that as a result of these activities she was pregnant and that in July or August in 2004 she had an abortion. Less than 2 weeks after the abortion, the applicant resumed having sexual intercourse with her.

10.  X gave evidence that after her 13^th birthday i.e. after 3 December 2004, the applicant had sexual intercourse with her regularly, about 10 times every month. The last time was in December 2006.

11.  The evidence-in-chief of X was given by way of video recording according to section 79C of the Criminal Procedure Ordinance (“the Ordinance”). The video recording of the evidence-in-chief was done in November 2008. X could not remember clearly the exact time when each intercourse with the applicant took place. However, she could recall that the 1^st time took place in January or February of 2004.

12.  X said that in May and June 2004, she had sexual intercourse with the applicant nearly 3 times weekly, and that consequently she was pregnant in July or August 2004. She said the applicant suggested that she should have an abortion and he accompanied her to a On Kay [transliteration of 安琪] Gynaecological Clinic. She alone entered the clinic. After the abortion, the applicant picked her up and they left the clinic together.

13.  X went on to say that after the abortion and up to December 2006 when they broke up, she had sexual intercourse with the applicant on average 2 to 3 times a week. X pointed out that after the abortion, sexual intercourse should be suspended for at least 1 month, but in less than 2 weeks the applicant asked her to allow him to make love to her.

14.  When the defence counsel cross-examined X, he put it to her that she had strong desire to show off, that she was very good at creating something out of nothing and that she had lied before. X answered that a human being would certainly lie but she would not take the risk to lie in Court. She maintained that all her evidence was true.

15.  The counsel submitted that X’s evidence was not credible, that it was riddled with contradictions and that part of her evidence was not consistent with the witness statements given to the police. X admitted that she did not tell the whole truth in her witness statements because during the interviews with the police officers, her mother was present and she did not know everything about this matter.

16.  X stressed that she did not know that it was wrong to have sexual intercourse with the applicant. She trusted the applicant and thought that what she did with the applicant could not be wrong. X said that she continued to go to the applicant’s home to receive private tuition because she did not want her mother to become suspicious. She explained that after her first sexual intercourse with the applicant, she did not “care” about it anymore, so she did not refuse to continue to have sexual intercourse with the applicant.

17.  Based on the information provided by X, the police searched a Pang On Kay [transliteration of 彭安琪] Chinese Medicine Clinic. No western medicine or abortion equipment was found in the clinic, so no one was prosecuted after investigation.

18.  Besides X, X’s mother also gave evidence against the applicant. Her evidence was that after X was promoted to secondary school, she asked the applicant to allow X to go to his dwelling place to receive private tuition. Initially, she picked up X and went home with her. Later, she allowed X to return home on her own. Some time after that, X said that she would play ball games on Saturdays at Aberdeen with the applicant and other schoolmates, and that when the ball games were over, it would be very late at night and besides, the homework was left at the applicant’s home. The result was that she allowed X to stay overnight at the applicant’s home.

19.  X’s mother testified that she had received a telephone call from the applicant. At that time the applicant called himself “Chu Sir”. He said that he and X had “fallen in love”. She said to the applicant, “ Don’t have any misunderstanding. You are her teacher now and throughout your life you will be her teacher. This kind of bond will last even longer. Don’t fancy about that thing; don’t have excessive desire. You’d better continue to be her teacher. The difference in age between the two of you is so big that even if I accept that and even if there is any result, it won’t last. The divorce rate nowadays is so high. I just want my daughter to concentrate in her education.”

20.  X’s mother said that she had questioned X about this but X said “There’s nothing”. At last, she decided that she would not allow X to go to the applicant’s home to receive private tuition any more. X’s mother insisted that the person who telephoned her and claimed that he and X had “fallen in love” was the applicant.

21.  Dr Lau [transliteration of 劉] of the Forensic Pathology Service gave evidence that he examined X on 12 September 2008 and found that there were tears in her hymen which were probably caused by sexual intercourse. However, he could not be sure when the sexual intercourse took place, nor could he tell whether X had undergone any abortion operation.

Defence evidence

22.  The applicant’s case was that X lied and falsely accused him. In his evidence, he admitted that he began to teach X when she was in primary 3. His description of X was that she was lively, talkative, fond of play, imaginative and would do something aggressive against those who were more able than she.

23.  The applicant admitted that in September 2003 after X was promoted to Form 1, she began to go to his home to receive private tuition. Later, because there was a lot of homework to do, she stayed at his home until 8-9 o’clock. Starting from September 2004, X stayed overnight at his home on Saturdays. X slept in his bedroom, while he and 2 male students “ slept in the living room.”

24.  The applicant agreed that in early 2005 he, at the request of X, provided her with a telephone, but X had never returned to him the money required for the telephone. The applicant said that on [one] occasion, X lost temper over some minor matters and asked her mother to come at once to take her away from the applicant’s home.

25.  According to the applicant, there was a period of one month during which X’s mother refused to allow X to go to his home to receive private tuition. The reason was that X had a love affair with a schoolmate. Only in December 2005 was X allowed to resume having private tuition in the applicant’s home.

26.  The applicant gave evidence about a number of incidents which made X unhappy with him. He said that in January 2006, at the request of X’s mother, he had X’s mobile telephone service changed to another telephone service provider so as to prevent her from ceaselessly sending text messages to her schoolmates. In the summer vacation of 2006, X persuaded him into buying a mobile telephone for her, but X had never paid for it.

27.  The applicant put special emphasis on an incident which happened in November 2006. One day, X’s mother telephoned the applicant and asked him to look secretly at matters about the love affair between X and the boys recorded in X’s diary. She would use this as a reason for disallowing X to continue to receive private tuition. When the applicant was looking secretly at X’s diary, X discovered that. She snatched away the diary and slapped the applicant. The applicant said that he was “blinded by anger”, so that he not only slapped X, but scolded her for having deceived her mother and him. He also told X that she could not receive any more private tuition. X then left, but on the following day she still came to the applicant’s home for private tuition and she went on doing so until after mid December 2000. At that time X’s mother again accused X of lying and for that reason decided not to allow X to go to the applicant’s home for private tuition.

28.  Later, X returned to the applicant his home keys and said that she would return to him the mobile telephone which he bought for her earlier. However, the applicant told her that she could use it until she bought a new telephone. The applicant said that X still contacted him and from time to time invited him through her schoolmates or over the telephone to go with her to have a look at the latest mobile telephone models or to go to the movies, or she would ask him about her homework, but he refused all such invitations.

29.  The applicant denied that he had ever done anything improper to X or had ever told her to have an abortion. The applicant thought that X learned about the abortion clinic from a schoolmate and then she made up a story about abortion and used it against him. The applicant strongly protested that X falsely accused him because he had slapped her and she bore a grudge against him for that.

30.  The applicant stressed that the relationship between him and X was at all times confined to a solemn teacher and student relationship. He had never cherished any special affection for X.

31.  The applicant called 2 students to testify. Both of them said that it was only in September 2004 that X began to stay overnight at the applicant’s home on Saturdays. However, X slept in a bedroom, while the applicant slept in the living room. They said that the applicant had never gone with X into the bedroom or into the storeroom, and that the door of the bedroom could not fully shut. One of the students even testified that he saw the applicant and X slap each other. Subsequently, X said to that schoolmate, “Why the hell did he look at my things? I had never been slapped by anyone before in my life. I will get even with him later”. Then X asked that male schoolmate to “lend a hand to frame Ah Sir for the 11 characters offence”. When the schoolmate indicated that he was not willing to do that, X asked him not to “reveal” it.

Grounds of appeal

32.  On the face of it, the issues in this case all boiled down to this factual issue, namely whether X had sexual intercourse with X between January 2004 and December 2006 as alleged by her on the days mentioned in the charges.

33. The applicant’s counsel Mr. Richard Wong put forward a number of legal points as the grounds of appeal.

34.  Mr. Wong submitted that the trial judge should not have granted the prosecution’s application made under section 79C of the Ordinance for treating X’s video recording as her evidence-in-chief.

35.  Mr. Wong said that at the time of the recording X was 17 years and 5 months old, and that she behaved like a mature person in the course of the questioning-and-answering during the recording. Mr. Wong emphasized that X was not to be examined by way of a live television link provided for under section 79B and had to face the applicant in Court and be cross-examined by his counsel in any event. Mr. Wong said that under these circumstances, X did not need to be protected by section 79C, therefore the trial judge should not have accepted that X could use the video recording as her examination-in-chief.

36.  Mr. Wong submitted that the trial judge should not have ruled that X’s video recording could be given in evidence without excluding any content. Mr. Wong considered that the following 3 categories of content should have been excluded from the video recording, namely (1) content about whether X was willing to have sexual intercourse with X; (2) content about sexual intercourse between X and the applicant which X talked about but was not included in the sexual intercourse specified in the charges (“uncharged acts”); and (3) content about complaints made by X to her boyfriend. Mr. Wong pointed out emphatically that these 3 categories of evidence were not relevant to the charges and were prejudicial to the applicant, therefore these 3 categories of evidence should have been excluded from X’s video rerecording before it could be given in evidence.

37.  Mr. Wong further submitted that part of X’s video recording infringed upon the legal principles about previous consistent statement. The trial judge did not exclude that part, nor did she give any directions to the jury about how to deal with such evidence, thereby going back on what she had promised to do during the argument between the prosecution and the defence.

38.  Mr. Wong argued that all the evidence against the applicant emanated from X, but the verdict returned by the jury in respect of the 13^th charge against the applicant, namely Unlawful Sexual Intercourse with a Girl under 16, was not guilty, while the verdicts in respect of all other charges of Unlawful Sexual Intercourse were guilty. Mr. Wong considered that the verdicts returned by the jury were inconsistent verdicts.

39.  Finally, Mr. Wong complained that when the trial judge gave directions to the jury, she voiced strong views about the applicant’s evidence. Her directions were unbalanced and unfair to the applicant, therefore the verdicts of guilty against the applicant were unsafe and unsatisfactory.

Discussion

40.  Under Section 79C, in proceedings in respect of an offence of sexual abuse, a video recording of a child which relates to any matter in issue in the proceedings may, with leave of the Court, be given in evidence.

41.  The purpose of this provision is to strike a balance between the defendant’s interests and the victim’s interests in a particular kind of offence, so as to ensure that the trial is fair and just. Section 79C also provides that:

“(4)  Where a video recording is tendered in evidence under this section, the court shall grant leave to admit the recording unless –

(a)  it appears that the child… will not be available for cross-examination;

(b)  any rules of court requiring disclosure of the circumstances in which the recording was made have not been complied with to the satisfaction of the court; or

(c)  the court is of the opinion, having regard to all the circumstances of the case, that in the interests of justice the recording ought not to be admitted, and where the court grants such leave it may, if it is of the opinion that in the interests of justice any part of the recording ought not to be admitted, direct that that part shall be excluded.

(5)  In considering whether any part of a video recording ought to be excluded, the court shall consider whether any prejudice to the defendant, or one of the defendants, which might result from the admission of that part is outweighed by the desirability of showing the whole, or substantially the whole, of the recorded interview.

(6)  Where a video recording is admitted –

(a)  the child… shall be called by the party who tendered the recording in evidence;

(b)  the child… shall not be examined in chief, save with leave of the court, on any matter which, in the opinion of the court, has been dealt with in his recorded testimony.”…

42.  In section 79 Interpretation it is laid down that “child” means a person who:

“in the case of an offence of sexual abuse –

(i)  is under 17 years of age; or

(ii)  for the purposes of section 79C, if the person was under that age when a video recording to which section 79C applies was made in respect of him, is under 18 years of age;”

43.  X was born on 3 December 1991. The video-recorded interview took place on 18 November 2008 when X was nearly but not yet reached 17 years of age. The trial began on 12 March 2009. X began to testify on 7 May 2009 and finished testifying on 11 May 2009. At that time X was 17 years and 5 months old, still under 18. X fully fit the definition of “child” in the Ordinance.

44.  One of the conditions for the Court’s admitting a video recording of a “child” witness as evidence is that the child must be available for cross-examination. Therefore, the fact that X had to undergo a face-to-face cross-examination can never be a reason for excluding such video recording. We will not overlook the fact that the pressure and difficulties which confront a child witness during the examination-in-chief stage are not the same as those in the cross-examination stage. In a sexual abuse case, it is not unusual that a child victim in Court during the examination-in-chief stage is unable to describe how the defendant abused him/her, with the result that the prosecution cannot prove their case. A child witness who is able to stand up to cross-examination in Court is not necessarily able during the examination-in-chief stage to tell the Court the course of events. The legislators certainly had this situation in their mind, and therefore under section 79C, on the one hand it is allowed to treat the video recording of a child witness as his/her examination-in-chief, and on the other hand the child is required to be available for cross-examination.

45.  Different people will have different views as to whether X behaved like a mature person during the recording. This is not the main factor in the Court’s consideration of whether leave should be granted for giving the video recording in evidence.

46.  In R v Chan Bing For [1997] 2 HKC 205 Liu JA, when considering the taking of the evidence of a child witness through close circuit television, had this to say:

“ The long-established procedure of having the physical presence of a child witness in Court should generally yield to such a statutory protection.  Discretion should be favourably exercised in the case of a sexual abuse child victim unless the Court is otherwise persuaded that protection would not be necessary or a fair trial could not otherwise be attained.  The Court may simply act on the age of the child, the nature of the offence and the nature of the allegations, such as those disclosed in the Crown’s opening.  The application need not be fortified by other evidence, such as social welfare or psychological report.”

47.  We agree with Liu JA’s view. In cases involving sexual abuse against children, the Court should presume that the child witnesses concerned need the protections provided by the Ordinance. The Court should exercise its discretion to allow the child witnesses to give evidence by using the procedures prescribed in sections 79A, 79B or 79C, unless the giving of evidence by using these procedures without the child witnesses giving evidence in Court will lead to an unfair trial. We do not accept Mr. Wong’s argument that the trial judge erred in granting leave to the prosecution to treat X’s video recording as her examination in-chief in accordance with section 79C.

48.  The contents of X’s video recording showed that the number of times of sexual intercourse between she and the applicant which she alleged had taken place were far more than those specified in the charges. These illegal acts not included in the charges (“uncharged acts”) would be unfavourable to the applicant but it is not necessary that evidence related to “uncharged acts” can never be tendered as evidence. It had always been the prosecution’s position that the number of times specified in the charges were not the total number of times of the sexual intercourse between the applicant and X. The jury was well aware of the prosecution’s position.

49.  In cases involving sexual abuse against children, evidence concerning “uncharged acts” can be relevant and admissible evidence.

50.  First of all, such evidence can be background information which explains the relationship between the defendant and the victim. Such evidence can serve to explain why the victim cannot remember the details of a particular event; explain the victim’s behaviour, including why she allowed the defendant to interfere with her on multiple occasions without making any complaint; and explain why the defendant could flagrantly and confidently make the victim submit and allow him to sexually abuse her again and again without the need to use any threat or inducement.

51.  At the trial, Mr. Wong placed emphasis on the following points, including why the applicant could flagrantly have sexual intercourse with X in a bedroom at the same time when other students were doing homework in the living room; why X made mistakes about the date of a particular occasion on which she had sexual intercourse with the applicant; why she did not get away from the applicant when he behaved improperly to her; and why X could not remember the details of individual occasions of sexual intercourse.

52.  The answers to the above questions are likely that X and the applicant had sexual intercourse so frequently that it became their regular activity. In fact, X clearly said that over the years she had sexual intercourse with the applicant on many occasions, so many that except the first occasion about which she had a relatively clear recollection, as for other occasions she might mix up one occasion with another and she could not remember clearly what happened on those occasions.

53.  We repeat the following remarks made by this Court in another case of similar nature, HKSAR v Kwok Hing Tony (CACC 26/2008):

“1.  The issue of whether evidence of “uncharged acts” is admissible or not must be decided on the individual circumstances of each case, and the court is not bound to refuse to admit such evidence by reason of its nature alone (R v M & Ors [2000] 1 WLR 421, 426-7, citing R v Pettman (unrep) 2 May 1985, C. A..  R v M & Ors was followed in HKSAR v Chan PuiMun CACC 514/2006 unrep 16 July 2008).

2.  Even though such evidence is not used in a particular case as identification evidence of the defendant, or as similar fact evidence to prove that the defendant had committed the offence charged, or deployed by the defendant to challenge the credibility of the complainant, the court may still admit evidence of “uncharged acts” in circumstances including the following:

-  to prove the setting and context in which the offence occurred, or

-  to explain the defendant’s confidence in repeating the offence, or

-  to explain unusual acts on the part of the complainant (such as the lack of surprise or fear, or the lack of complaint, or acts of acquiescence), or

-  to explain why the complainant is unable to recall the specific date and details of the offence charged.

In summary, the court may admit evidence of “uncharged acts” if its refusal to do so would result in the jury having an incomplete or incomprehensible account of events.”

54.  Whether X was willing to have sexual intercourse with the applicant, like the frequency of their having sexual intercourse, can shed light on some doubts and suspicions in this case, so it is not absolutely irrelevant. The applicant’s case was that he had never had any sexual intercourse with X, therefore it was not a matter of willing or unwilling. The applicant’s case would surely be put to X. We consider that what X said in the video recording about whether she was willing to have sexual intercourse with the applicant would not cause any injustice, therefore it was not necessary to exclude it.

55.  Mr. Wong also complained about the following two sections in the contents of X’s video recording:

(1)  “217. Interviewer: You can’t remember; mm, it doesn’t matter.  You mean that earlier, on 8 September, a statement had been taken [from you], is that what you mean?

218. X:  Mm, mm.

219. Interviewer:  Ah, I see.  Is that statement of yours about the same … er case which you described to me just now?

220. X:  The same, but the year is a bit different.”

(2)  “153. Interviewer: When did [you] tell him?

154. X:  This year, (Interviewer: Yes.) 20 … 25 August 2008.

155. Interviewer:  Huh, huh, where did the conversation take place?

156. X:  Through the computer I sent … sent … er sent him a file.  I mean I type a piece of writing by using Word … (Interviewer. Mm.) Microsoft Word, (Interviewer. Mm.) and then sent it to him, to tell him about it.

157. Interviewer:  Mm, what was the gist of its content?

158. X:  Er, I told him this thing happened.  …

368. X:  The first one who learnt about it was my boyfriend.  I mean I told him about it in August this year  (Interviewer: Ah.) and he was the first one to learn about it.”

56.  Mr. Wong’s position is that the first section is “previous consistent statement” and that the second section does not comply with the requirements of “recent complaint”, therefore they should not have been admitted as evidence.

57.  The first section only shows that X agreed that in an earlier statement she had mentioned something which was “about the same case which she described in the video recording”. X did not say what she said in her earlier statement, nor did she agree that what she said was the same as the content of the video recording. We do not agree that the first section constitutes “previous consistent statement”.

58.  The second section shows that X told her boyfriend that “this thing happened”, but the interviewer did not ask X to tell him and X did not tell him the details of what she told her boyfriend about what happened. X’s boyfriend gave evidence at trial. Both Mr. Wong and his assistant said that they could not remember the details of the evidence of X’s boyfriend. However, Mr. Wong conceded that if X’s boyfriend had given evidence that X told him that the applicant had done any improper thing to her, he surely would have objected on the ground that such evidence did not constitute “recent complaint”. In this case, evidence related to what X’s boyfriend had been told would not constitute any unfairness against the applicant.

59.  We do not agree that the two sections quoted above are in any way unfair or prejudicial to the applicant. The trial judge was justified in not excluding them. Although the trial judge did not do what she had earlier promised to do when Mr. Wong raised his objection, namely to give directions to the jury about the aforesaid 2 points – what Mr. Wong called “previous consistent statement” and “recent complaint”, judging from the background and all the circumstances of this case, what the trial judge did and what she omitted to do did not constitute unfair treatment. The ground of appeal argued by Mr. Wong concerning the first and the second sections of X’s video recording is not established.

60.  Furthermore, section 79C (5) of the Ordinance provides that:

“In considering whether any part of a video recording ought to be excluded, the court shall consider whether any prejudice to the defendant, or one of the defendants, which might result from the admission of that part is outweighed by the desirability of showing the whole, or substantially the whole, of the recorded interview.”

61.  The legislators surely understood that at the time when a video recording is made for use as evidence in respect of a “child” witness, the person in charge of the recording is not necessarily a lawyer or a person who has received legal training, and these categories of people are not necessarily present; therefore, the video recording made may not fully comply with the requirements and stipulations laid down in the law of evidence. Section 79C (5) shows that even if part of a video recording violates the requirements and stipulations laid down in the law of evidence, the Court has discretion to order that no part of the video recording shall be excluded. We agree with the submission made by the respondent’s representative Mr. David Leung, Senior Assistant Director of Public Prosecutions, that in the circumstances of this case, it is proper to admit the whole video recording in evidence and that nothing unfair was done to the applicant, because any possible prejudice to the applicant was outweighed by the desirability of showing the whole of the video recording.

62.  It is one thing that the whole of X’s video recording could be admitted in evidence, but it is another thing whether the trial judge had given proper directions to the jury in respect of the admitted evidence. X alleged that at the material times, the applicant had on many occasions had sexual intercourse, which were not included in the charges, with her. Obviously, these acts, i.e. the aforesaid “uncharged acts”, were potentially prejudicial to the applicant. It was incumbent on the trial judge to give directions to the jury about how to deal with these “uncharged acts”.

63.  In paragraph 145 of the judgment of Nancy Ann Kissel v HKSAR (FACC No. 2 of 2009), the Court of Final Appeal stressed that:

“We stress that where a trial judge comes to the conclusion that it is proper to admit evidence which has the capacity to be prejudicial, he should clearly direct the jury as to the use to which it can put the evidence.”

64.  The High Court of Australia pointed out in paragraph 77 on p.132 of the judgment of Gipp v The Queen [1998] 194 CLR 106:

“No doubt the evidence of general behaviour, if accepted, proved the commission of other criminal acts.  But it was not tendered as propensity evidence.  If the evidence had been tendered to prove propensity, it would have required careful direction in accordance with the principles emphasised by this Court on numerous occasions in recent years.  Moreover, as BRS v The Queen (1997) 191 CLR 275 shows, if evidence admitted for reasons other than propensity in fact reveals a criminal or reprehensible propensity on the part of the accused, a trial judge must carefully direct the jury as to the use which they can make of the evidence.  In BRS, McHugh J pointed out:

‘If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose.  In some cases, the judge need to be more specific.  He or she may need to direct the jurors that they cannot use the evidence for an identified purpose.  If the evidence is admitted because the Crown wishes to rely on the accused’s propensity as an element in the chain of proof, it is especially necessary that the judge give the jurors clear directions as to the manner in which they may use the propensity evidence’”.

65.  In another Australian case R v Nieterink (1999) 76 SASR 56, the Supreme Court of South Australia gave even more specific guidelines about how to deal with “uncharged acts”. It is sufficient just to cite the 3 points specified in the headnote:

“As to the use to be made of evidence of uncharged criminal acts, the jury must be directed, inter alia:

(a)  Not to act upon it unless satisfied that those acts were proved;

(b)  As to how they can use, and cannot use, such evidence;

(c)  Not to reason from such evidence that the accused had committed similar offences and/or was the sort of person who might commit the crimes charged;

(d)  Not to reason from such evidence that as similar conduct to that charged has occurred, they can convict on a particular count for which the accused is being tried.”

66.  In the present case, besides the 13 charges set out in the indictment, X in the video recording stated that between January 2004 and December 2006, a period of 3 years, the applicant regularly had sexual intercourse with her at the frequency of about 10 times per month. However, when the trial judge gave directions to the jury, she gave no explanation at all as to the purpose for which this “uncharged acts” evidence was produced; whether it was tendered as “similar fact” evidence; whether it was used to show that the applicant had the propensity to commit the offences in question; or whether it was used to explain some special circumstances in this case, including why X could not remember the details of certain events; why X allowed the applicant to interfere with her on multiple occasions without making any complaint and without keeping away from him and why the applicant would flagrantly and outrageously have sexual intercourse with X in a bedroom when other students were doing homework in the living room. The trial judge gave the jury no direction at all as to the manner in which they could use this “uncharged acts” evidence.

67.  Given that the trial judge gave no direction to the jury as to the use which they could make of the “uncharged acts” evidence, and that she gave no direction about the applicable standard of proof either, the trial was indeed unfair to the applicant and consequently his conviction is unsafe. For this reason, we should set aside the conviction.

68.  In order to show that we take both counsel’s submissions seriously, we shall also briefly deal with the other 2 grounds of appeal relied on by Mr. Wong.

69.  We do not agree with Mr. Wong’s argument that the verdicts returned by the jury in this case are inconsistent. In HKSAR v Chan Shek-Wai (CACC 472/2001), Mr. Justice Stuart-Moore succinctly spelled out on page 11 of the judgment the applicable principle regarding “inconsistent verdict”:

“So far as general principle is concerned, the burden of showing that verdicts are inconsistent falls squarely upon an appellant.  Furthermore, not only must inconsistency be established but this must be shown to have been such as to call for interference by an appellate court.”

70.  In HKSAR v Chan Lai Lam (CACC 311/2003), this Court remarked that when dealing with an appeal which relied on the ground of “inconsistent verdict”, a firm approach should be adopted. From relevant cases this Court cited the following paragraphs:

“To succeed the appellant must show, firstly, that the verdicts are logically inconsistent, secondly, that they are so inconsistent as to demand interference by an appellate court – i.e. that there is no way in which the logically inconsistent verdicts can be sensibly explained.”

“All of these directions and those to which we have earlier referred, serve to illustrate yet again the importance of according respect to the verdict given by a jury.  Having said that, obviously if the verdict amounts to what can effectively be described as nonsense, then it cannot be allowed to stand.”

71.  The verdicts of not guilty reached by the jury in respect of the 7^th charge, namely Conspiracy to Procure an Abortion and the 13^th charge, which is one of the charges of Unlawful Sexual Intercourse with a Girl under 16, are not inconsistent with the verdicts of guilty reached in respect of other charges. The evidence shows that the police had searched the clinic where X alleged that she had received an abortion, but no equipment or western medicine which could be used for abortion was found. X had been examined by a forensic pathologist but the pathologist could not conclusively prove that X had received any operation for induced abortion. In these circumstances, the jury had a good basis to hold that X’s allegation that she had undergone an operation for abortion might be a result of misunderstanding and this could also be the basis on which they gave the applicant benefit of the doubt.

72.  The 13^th charge stated that the applicant had sexual intercourse with X on a certain day in December 2006. However, on X’s evidence, in December 2006 she had already stopped receiving private tuition in the applicant’s home. The jury obviously was of the view that the day specified in the 13^th charge might be wrong, and for this reason gave the applicant benefit of the doubt. The verdicts of the jury are by no means inconsistent. There is certainly no sufficient reason for us to interfere with the verdicts reached by the jury on the ground that the verdicts are inconsistent.

73.  When a criminal case is tried in the Court of First Instance, the trial judge and the jury have different functions to fulfil. The jury is the judge in factual matters and the trial judge should trust them to make correct decisions. In giving directions to the jury, the trial judge is certainly entitled to express his views on factual issues, but the words and expressions used should be mild and balanced, not strong or one-sided. Otherwise, an onlooker who is aware of what is going on may feel that the trial judge has usurped the function exclusive to the jury and may think that the trial process is unfair.

74.  To quote the following passages from the headnote to the judgment of HKSAR v Yeung Chor Ming [2004] 1 HKLRD 136 will suffice:

“(1)  The ultimate question was whether the summing-up as a whole was balanced and fair.  This was one aspect of the long-established principle that justice must not only be done, but must be seen to be done …

(2)  The principles governing the judge’s powers and duties in relation to summing-up could be summarised as follows:

(a)  The judge should never take away the jury’s function as the sole arbiter of facts.  Hence, the wording and comments made in the course of the summing-up should not give the impression that the judge was directing the jury to accept his views on the facts …

(b)  The wording and comments made in the course of the summing-up should not give the impression that the judge was making another speech for the prosecution …

(c)  Subject to (a) and (b) above, the judge was entitled to provide reasonable, impartial and fair explanation, analysis and comments on the parties’ cases and evidence, which would help the jury reach a conclusion …

(d)  Where (a) or (b) above was contravened, the unbalance of the summing-up would not be saved by the usual reminder or direction that the jury were the sole arbiter of facts, or that it was a matter for the jury to draw a conclusion or verdict on the facts, or that the jury were free to reject any of the judge’s comments with which they disagreed … ”

75.  It is undeniable that a significant part of the applicant’s evidence was not convincing, especially the evidence about the events which, according to the applicant, caused X to tell lies to falsely accuse him, including X’s refusal to return to the applicant the money spent on buying two mobile phones for her and the occasion on which they slapped each other.

76.  With reference to the above two events, the trial judge made comments in her summing up to the jury as follows:

“The defendant bought at different times two wireless phones, mobile phones and gave them to X.  However, he stressed that these two phones were not gifts.  The defendant said that the first phone was a 3G phone and that X told him she would get money from her elder brother in order to return the money to him.  But after a while, nothing happened.  He asked X about it and X just gave him equivocal answers.  What’s strange in this matter is that when X’s mother telephoned the defendant and asked him why he gave X such an expensive gift, the defendant not only did not clarify the situation by saying, “It’s not a gift”, but he even told X’s mother, “I had bought it anyway and I didn’t want to be mean, so I treated it as a birthday gift”.  Then it was the West Kowloon incident, the defendant said that on that occasion he again could not resist X, who kept on [  ] [sic] him and repeatedly asked him to buy a white Sony Ericsson. On that occasion he again trusted X, who said that when she got to Form 4 she would have more pocket money, then she would pay.  He said he relented and bought X the phone.  You will remember that after this incident, X’s mother telephoned the defendant again and asked him, “Why did you buy another phone for X?”  In this conversation between the two of them, she asked the defendant, “You’d better take the phone back or return it [to the company].”  What was the defendant’s reply to X’s mother? The defendant said, “ You can treat it as an encouragement for X being able to be admitted to the science class at Form 4.”  When the defendant was asked how much the phone actually cost, he said it was one thousand odd to two thousand odd dollars.  He was not sure.  Then Mr. So [transliteration of 蘇] questioned him, “You expected that she would repay you.  There is no reason why you cannot remember how much money you wanted her to repay you and how much money the phone cost, right?”  The defendant answered, “It happened many years ago.  I cannot remember everything.”  Then Mr. So put another question to him, “Why didn’t you return the phone [to the company] or take it back for your own use?”  The defendant said, “You have bought a mobile phone yourself.  [You know] you can’t return it [to the company].  The phone was a model for ladies.  How could I use it?”  You will remember that later, when X stopped receiving private tuition, she went to his home to pack up her things, and she left behind the bunch of keys and the phone, but the defendant still--  According to his evidence, he said to X, “You can take it away and use it.”  Ladies and gentlemen, please think about this.  The defendant said that on the first occasion when he bought the 3G telephone, he was cheated.  At first he did not intend to treat it as a gift for her.  At first he thought that she would repay him, but in the end she did not pay him back the money. Then why didn’t he become wiser?  Why was there a second occasion when he bought the second telephone at West Kowloon?  Why can he remember clearly some details such as what happened on which day, but in relation to how much the telephone cost, he didn’t take it seriously and cannot remember it?  Were the two phones, as what X said, gifts given to her by the defendant, or were they, after he was cheated by X two times, after X failed to repay him, when he had no other alternatives, treated by him as a birthday gift or encouragement gift?  Do you think that under an ordinary private tutor and student relationship, he would give her such an expensive gift which cost one thousand odd to two thousand dollars, approximately equivalent to the tuition fees for 5 tuition lessons?  Can these two phones help you to decide what the relationship was between the defendant and X?  Please consider this point yourselves.”

“The defendant was sure that after the slapping- each-other-incident as described by him, he had only told X’s mother that there was some conflict between he and X.  He did not tell X’s mother that they had slapped each other.  He said it’s because he himself felt embarrassed.  According to his evidence, X went away angrily, but on the next tuition day, X came as usual for tuition.  Both of them refrained from talking about that incident.  You remember the defendant has given evidence that X was of strong character and had an intense rebellious temperament.  When her mother and she went to have her mobile telephone service changed to another mobile telephone service provider.  She went away when she was in Causeway Bay, went away in a fit of anger.  Well, when the defendant succeeded in coaxing her to return home, according to the defendant, the whole family had to pretend that they had fallen asleep and dared not say anything.  Ladies and gentlemen, the defendant’s evidence is that after X was slapped, she swallowed this humiliation in silence, pretended as if nothing had happened and went back there to receive tuition.  Do you think that such evidence is reasonable or is it contrary to logic?  The defendant talked about a looking-at-her-diary incident.  He told you why there was this incident; what happened in and the result of this incident.  Do you think it is true or invented?  Please make your own decision.

You will also remember that when Mr. Wong asked X about the diary, the instant response of X was this answer: “Oh, so, it was lost on that day! I just remember that I had taken it out to the streets, and after that it was missing.” She also said, “At first I thought that mum took away my diary, now it turns out that he took it away.”  After that, Mr. Wong put it to X that when she came out from the toilet, she saw that the defendant was looking secretly at her diary; she snatched it away and slapped the defendant once.  X categorically denied that.  Mr. Wong put it to X that on that occasion she was slapped once by the defendant in front of Law Wing Lam [transliteration of 羅永林]; as a result she was psychologically injured.  X replied, “The defendant had never slapped me in front of any schoolmates of junior classes.  You’d better ask Law Wing Lam whether he saw such thing ever happened.”  Do you think that these were X’s spontaneous responses or well-prepared responses?  Was there ever a slapping-each-other-incident?  Please consider it yourselves.”…

77.  In our judgment, the above passages show that the trial judge placed excessive emphasis on the weak points of the defence case, so that it gives the impression that she was making another speech for the prosecution, rather than providing impartial and fair analysis and comments on the facts of the case.

Conclusion

78.  We hold that the trial judge did not give any direction to the jury about the “uncharged acts” and therefore rendering the conviction unsafe. We grant leave to the applicant to appeal against conviction. We treat this application as the appeal and allow the appeal. The conviction and sentence against the applicant are set aside.

Postscript

79.  This case involves the handling of evidence about “uncharged acts”. The period within which an individual offence which the applicant allegedly committed was not a certain day, or a short period, but one month, two months, three months or even as long as one year. The prosecution alleged that within these periods of time, besides the sexual intercourse specified in the individual charges, there were many other sexual intercourse between the applicant and X. According to the prosecution, in any one of the periods of time referred to by the charges, the applicant did many other “uncharged acts”, the exact number of which is not known. Owing to the fact that the offences and many other “uncharged acts” took place within the same place and the same periods of time, and under the same circumstances, the acts specified in the charges cannot be separated or differentiated from the many “uncharged acts” at all.

80.  This handling method has two major defects: (1) It may lead to unfairness to the defendant, because the defence cannot distinguish which acts are the acts referred to in the charges and which acts are “uncharged acts”, and therefore may encounter difficulties when preparing its defence; (2) It will also be difficult for the trial judge to give directions to the jury as to these “uncharged acts”.

81.  In HKSAR v Kwok Hing Tony (CACC 26/2008), this Court expressed its concern about the same matter. We cite paragraph 12 of the judgment of that case:

“We would first mention a matter of concern, which is that when an offence which a defence faces refers to an ‘unknown date’ within a lengthy period of time, and the location is a place where the defendant and the complainant are often likely to meet, the appearance of evidence of “uncharged acts” may lead to unfairness to the defendant, because if he cannot distinguish acts with which he is charged from those with which he is not, he would not be able to present a defence corresponding to the charge.

In Chim Hon Man v HKSAR (1999) 2 HKCFAR 145, the Court of Final Appeal has held that the defendant has a right to know clearly the particular act which forms the foundation of the charge.  Sir Anthony Mason NPJ said:

‘Knowledge of the particular act, matter or thing which is the foundation of the charge is important in enabling the accused to ascertain and prove what, if any, defence, for example, an alibi, he may have to the offence charged and to subject a complainant’s evidence to searching scrutiny by reference to the surrounding circumstances.  An accused person may be subjected to unfairness and embarrassment if he is called upon to meet a charge of one offence based upon evidence of the commission of multiple offences, more particularly if the evidence is such that it does not enable each such offence to be clearly differentiated from the others.  The degree of unfairness or embarrassment may vary according to the circumstances.  If the prosecution case is based on evidence of many offences in an extended period of time the unfairness may be considerable.’”

82.  We hope that the Department of Justice would take into consideration the concern we have when they draft any indictment, so that the same problem would not appear again.