HKSAR v. CHAN YUE PAN

CACC537/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 537 OF 1998

(ON APPEAL FROM DCCC 697 OF 1998)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant in this matter faced three charges, two of indecency with a child and one of indecent assault on a person. The complainant, who was a boy of 9 years, was the same in each of the charges. In the first of them, it was alleged that on 1st March and 31st May, at Room 1012 Shui Sing House, Tin Shui Estate, Tin Shui Wai, New Territories, he committed an act of gross indecency with Fung Kwok-ming, a child under the age of 16 years. In the second, it was alleged that between 1st June 1997 and 31st July, at a public lavatory in Tin Shui Wai Park, he committed an act of gross indecency with the same child. In the third, it was alleged that between 1st August 1997 and 30th September, he indecently assaulted the same child.

2. The applicant pleaded not guilty to all three charges. He was found guilty after trial before Deputy Judge Geiser and was sentenced to imprisonment overall to a period of three years.

3. The evidence on all charges came solely from the complainant child. It was the prosecution case that at around 7 p.m. to 9 p.m. between March and April 1997, the applicant had come to the complainant's home and accused him of damaging his electronic cat. The complainant said that the applicant threatened to tell his mother about the damage unless he helped him by masturbating him. He said that the applicant took off his trousers and he used his right hand to rub the penis of the applicant until he ejaculated. He said on that occasion the applicant gave him eight Game boy tapes.

4. The second occasion, which occurred around June or July 1997, took place at the handicapped toilets at Tin Shui Wai. On that occasion the complainant said that the applicant came into the toilet while he was urinating and said words to the effect that his penis was small and that he had to touch the penis of someone else to make it big. The complainant said that the applicant then took off his trousers and made him touch his penis with his own penis very lightly. He said that the applicant did not ejaculate on that occasion.

5. The third charge, which occurred around August to September 1997, took place at the home of the applicant. The complainant said that the night before the incident he had seen the applicant at the Mutual Aid Committee and that the applicant had invited him to come home to play video games with him on the following morning. He said that on the following morning, he saw the applicant at the ground floor of his home and he went up to the flat with him and that, when they got there, the applicant again accused him of damaging his electronic cat and threatened to tell his mother about the damage unless the complainant allowed the applicant to rub his penis between his thighs. He said that the applicant, while he laid on a bed, had then rubbed his penis between his thighs until he ejaculated. Some time later the complainant told his mother what had happened and the matter was reported to the police.

6. The applicant in his cautioned statement denied the offences but he did admit going to the victim's home. The findings of the trial judge was as follows:

"I am satisfied that PW1 (the victim) was neither coached nor was he making up any of these allegations. He went into some detail in relation to these incidents, even to the extent of mentioning at one point that there seemed to be a special mark on the defendant's thigh, a fact which the defendant agreed to himself in cross-examination. He may have got muddled in relation to the details regarding the tapes and electronic cat but I find that this in no way detracts from his general credibility in the details of the allegations that he makes against the defendant. In short, I believe him and it is worthy of some note that he was, in fact, unshaken in cross-examination.

As far as the defendant's account is concerned, I say I disbelieve him. I am satisfied that his assertion that he should slap the victim over the head a few times for no reason other than he did not want to play video games with him is nothing other than a lie. It is a pathetic and cowardly attempt on the part of the defendant to give a motive for this 9-year-old child to set the defendant up. I am satisfied that nothing could be further from the truth.

I am fully alive to the fact that there is very little, if any, corroboration of the victim's testimony. However, I am comforted by the contents of section 4A of the Evidence Ordinance, Cap.8, Laws of Hong Kong, abrogating the requirements as to warnings about convicting on the uncorroborated evidence of a child.

Insofar as the first two charges are concerned, I find that I am satisfied to the required standard that the defendant did indeed commit the acts as alleged by the victim. I am further satisfied that those acts are indeed acts of gross indecency."

7. The applicant has set out a number of grounds at length. Before dealing with his written grounds, we shall deal with the submissions which he made orally to this court today.

8. He submitted that there was no medical evidence to establish that any of the offences had occurred, and that there was no evidence corroborating the evidence of the victim. He was perfectly right in those submissions. There was no medical evidence. Indeed, given the delay that occurred before the matters reported, there could not have been, nor was there any corroborative evidence but the judge was, as we have just indicated, was fully alive to this.

9. We turn to the written grounds.

10. In the first of these, the applicant submits that the delay which occurred before the complainant made any report of the matters indicates that he is a clever, cunning and untruthful. This is echoed in his second ground in which he says that the delay in reporting to the police indicates that the complainant had undertaken a degree of planning in this matter which, the applicant submits, was planning undertaken falsely to implicate him. The judge was fully aware of the sequence of events, of the time lapse between each offence and of the delay in reporting them. They were matters which he had to take into account when making his assessment of credibility of the complainant. We have no doubt that he did so. There is nothing in either of these two grounds.

11. The applicant then raised in Ground 3 a number of, he suggested, improbabilities in the complainant's evidence and concluded saying:

"The judge however did not believe me but believed in the victim instead."

12. This is certainly so. The judge did accept the evidence of the "victim" in the clear terms which we have just read. It was for the judge to make up his mind as to matters of credibility. Such matters are essentially for the trial judge who sees and hears the witnesses. They were, we are satisfied, properly determined by him and no criticism can be leveled against his findings of fact.

13. We turn to Ground 4 which again raises the reliability of the complainant's evidence.

14. The applicant is submitting, in short, that the complainant is not to be believed as to the second incident because it is incredible that the complainant would have associated himself with the applicant in the way in did if he was, as he suggested, terrified after the first incident. Again this is a matter of credibility. We have no doubt that the trial judge was alive to these matters but, having seen and heard the witness, he was satisfied that the complainant was truthful and there is no warrant for calling that finding into doubt.

15. We turn to Ground 5 which again challenges the judge's acceptance of the evidence of the complainant and suggests that he had, prior to the occurrence of the third offence, ample time in which to report the matter if the other two offences had in fact occurred. It is suggested that if they had occurred, the complainant would, at least, have stayed away and would not have gone to the applicant's home on that occasion and that this must raise doubt as to the truth of the complainant's evidence. Again we can say no more than we have already said. These were matters essentially for the trial judge who, having considered them carefully, was satisfied that the victim was truthful.

16. In his sixth ground, the applicant says:

"In his decision, the judge said that the victim did not produce any substantial exhibit or witness present at the scene, i.e. a third party. Though there was doubt in the victim's evidence, (the judge said that) the defendant, i.e. me, was not able to produce strong evidence to show that I was not at the scene."

17. The trial judge did not anywhere indicate that "there was doubt in the victim's evidence". It is true that he said that he had to take into account the possibility that the complainant might be fanaticizing and that he noted that the complainant had got muddled at times as regards details but nowhere does he say that he was in any doubt as to the truthfulness of his evidence. In fact he said:

"Despite his very tender years, he was a good witness. Indeed he displayed to me a maturity beyond his years."

He went on to say that when considering his evidence he had to consider the possibility that he might have been coached to give the answers which he gave to the interviewing officer. He concluded by saying that he was satisfied that he had neither been coached nor was he making up any of the allegations.

18. Finally there is nothing anywhere which would indicate that the judge threw an onus on the applicant to prove anything. What the judge said was:

"I disbelieve him. I am satisfied that his assertion that he should slap the victim over the head a few times for no reason other than he did not want to play video games with him is nothing other than a lie. It is a pathetic and cowardly attempt on the part of the defendant to give a motive for this 9-year-old child to set the defendant up. I am satisfied that nothing could be further from the truth."

19. These were very positive findings which leave no room for the suggestion that the judge threw an onus upon the applicant to produce evidence that he was not at the scene.

20. There is no merit in any of the matters raised by the applicant today and his application for leave to appeal against conviction is dismissed.

21. We turn to sentence.

22. The applicant in his written grounds, and again today, suggests that the three year sentence imposed upon him was excessive. We do not agree. He submits that there should have been a community service order. Again, we do not agree. These were three separate bad offences in which he abused a position of authority of sorts and took advantage of a boy of tender years. We are satisfied that three years overall was by no means excessive.

23. The applicant argued grounds which have no merit of any sort. We are satisfied that it would be proper to order that there by three months of loss of time between the filing of the notice of appeal and today's hearing. This which will have the effect of increasing the time to be served by a period of three months.