HKSAR v. YHN

[ENGLISH TRANSLATION – 英譯本]

CACC 251/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 251 OF 2014

(ON APPEAL FROM HCCC NO. 381 OF 2013)

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REASONS FOR JUDGMENT

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Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1.  The Applicant (YHN) was the brother of the three victims (X,Y,Z).

2.  The Applicant was born on 24 June 1994, and X,Y,Z were triplets born on 10 May 1995.  X,Y,Z were taken away by the Social Welfare Department since their early childhood and placed to live in different Children’s Homes.

3.  In the summer vacation of 2005, X was permitted to return to her parents’ home and to live with the parents, the Applicant and an Indonesian maid.  X was admitted to the New Comers’ Ward in 2006, and in the same year sent to the Po Leung Kuk where she lived till the summer vacation of 2010.  X subsequently returned home to live with her parents and the Applicant.

4.  Y was admitted to the New Comers’ Ward in 2004, and in the same year sent to the Po Leung Kuk where she lived till the summer vacation of 2008.  Y subsequently returned home to live with her parents and the Applicant.

5.  In 2004, Z was permitted to return to her parents’ home and live with the parents, the Applicant and an Indonesian maid.

6.  It was the prosecution case that on multiple occasions between 1 October 2005 and 31 August 2008, the Applicant sexually abused X, Y and Z at home, for which the Applicant was charged with 8 charges.

7.  The 1^st and the 4^th counts of indecent assault involved X.  It was alleged that the Applicant on two occasions between 1 October and 3 October 2005, and between 29 July and 25 November 2006, indecently assaulted X.

8.  The 6^th and the 7^th counts of indecent assault and the 8^th count of attempted rape involved Y. It was alleged that the Applicant on two occasions between 1 January 2007 and 31 December 2007 indecently assaulted Y, and that he attempted to rape Y between 1 July and 31 August 2008.

9.  The 2^nd, 3^rd and 5^th counts of indecent assault involved Z.  It was alleged that the Applicant on three occasions between 1 January  and 31 December 2006, and between 1 January and 31 January 2007, indecently assaulted Z.

10.  The Applicant was under the age of 14 at the time of offences as alleged in the 1^st to 7^th counts and just turned 14 at the time of offence as alleged in the 8^th count. 

11.  The Applicant pleaded not guilty to all charges and stood trial before Mr Justice Li (the Judge) with a jury in the Court of the First Instance of the High Court.

12.  On 3 June 2014, the jury convicted the Applicant of all eight counts.  On 30 June 2014, the Judge sentenced the Applicant to a total of 5 years’ imprisonment.

13.  On 24 July 2014, the Applicant made an application for leave to appeal against conviction on all counts.

14.  On 12 February 2015, the Applicant informed the court that he abandoned his application and consequently his application was dismissed.

15.  On 5 March 2015, the Applicant asked the court to treat his Notice of Abandonment as a nullity and to grant him leave to appeal against conviction.

16.  The Applicant stated the following in his affirmation in support of the application:

“It was because (1) I heard people say in the Correctional Institution that if my appeal failed, the term of imprisonment would be lengthened, (2) if I cancelled my appeal after a date had been fixed, the term of imprisonment would be lengthened as I would be deemed by the court to have wasted the public funds, so I cancelled the appeal before a date had been fixed for the appeal, (3) my family mentioned to me that it was commented on the newspapers that the sentence in the case was too lenient, (4) for the reasons above, I cancelled the appeal before counsel assigned by the Legal Aid Department came to see me.”

Grounds of appeal

17.  In respect of the Applicant’s abandonment of appeal, Mr Cheung, counsel for the Applicant, laid emphasis on the fact that by the time the Applicant served the Notice of Appeal, he had already filed with court the grounds of appeal and written submissions, and that the Applicant filed the Notice of Abandonment of Appeal without obtaining any legal advice or knowing his chance of success on appeal.  Mr Cheung also highlighted the fact that the Applicant applied to have his Notice of Abandonment of Appeal treated as a nullity extremely briefly after such notice had been filed.  Mr Cheung contended that the court should therefore, as sought by the Applicant, treat his Notice of Abandonment of Appeal as a nullity and examine the conviction afresh to decide whether the convictions against him were safe.    

18.  Mr Cheung submitted that the Applicant was under the age of 14 at the time of offence as alleged in the 1^st to 7^th counts of indecent assault.  He argued that the Applicant was therefore protected by a rebuttable presumption of Doli Incapax.  He also stressed that a person over 10 but under 14 years of age is presumed to be not able to tell right from wrong and hence incapable of committing crime.  The burden is on the prosecution to prove not only that the Applicant had committed an actus reus with the requisite mens rea, but also that he was Doli Capax when the act constituting the offence was committed, in other words, he knew right from wrong and that the particular act he committed was seriously wrong as opposed to merely naughty or mischievous.

19.  Mr Cheung contended that in order to show that the Applicant knew his own act was seriously wrong, it was necessary for the prosecution to adduce substantial evidence other than that in support of actus reus, without which the prosecution would have failed to rebut the presumption of Doli Incapax in law and the Applicant would have no case to answer on the charges against him. 

20.  Mr Cheung submitted that the prosecution did not adduce any other evidence to show that the Applicant knew his own acts of indecent assault in the 1^st to 7^th counts were seriously wrong, and that the Judge in his direction to the jury did not tell the jury how they should approach the evidence in that respect, if any, based on which the jury had to decide whether the Applicant knew right from wrong and hence whether he was capable of committing crime.  Mr Cheung was of the view that with this being the case, the convictions of the Applicant on the 1^st to 7^th counts were unsafe.

21.  In respect of the 8^th count, Mr Cheung conceded that the Applicant was already over 14 years of age at the time of offence, and hence the principle of Doli Incapax did not apply. However, Mr Cheung pointed out in his written submissions that the Judge, in directing the jury, dealt with the elements of the offence of indecent assault immediately after he dealt with the elements of the offence of attempted rape, and that the judge pointed out to the jury that as Y was under 16 years of age, she could not consent to the Applicant’s indecent assault on her.  Mr Cheung further submitted that the Judge’s approach would have confused the jury, having misled them into believing that Y as a child under 16 years of age could not give consent to sexual intercourse with the Applicant, and that it was unnecessary for them to take into consideration the issue of whether Y did give consent to sexual intercourse when they dealt with the offence of attempted rape.  

22.  Mr Cheung also submitted that the Judge failed to direct the jury to consider whether the Applicant had mistakenly believed that Y consented to sexual intercourse with him.  Mr Cheung stressed that at the material time, Y did not struggle or ask for help while Z was also present.  Mr Cheung was of the view that those were pieces of evidence in support of the suggestion  that the Applicant could have believed that Y consented to sexual intercourse.

23.  The Judge directed the jury in respect of the evidence given by X as follows:

“In making his final submissions, defence counsel pointed out that according to what Ah Ching [transliteration] said, the sex abuse happened four or five times a week lasting for a year. What Mr Lam of counsel took issue with was that given the defendant’s age, whether he would have sexual capacity as such. Well, in the first place, the sex abuse alleged by Ah Ching took place during the time she was back home on summer vacation, instead of taking place continuously. In respect of the issue of sexual capacity, the offence which the defendant is now facing is actually indecent assault, which does not necessarily involve the act of sexual intercourse or relate to sexual capacity. After all, sexual capacity varies individually. We have to refrain from over-speculation; and indecent assault is not directly relevant to sexual capacity. You all understood, right? You should all remember what I am saying: elements constituting indecent assault are some acts done and those acts are indecent, and that would be indecent assault, understood?”

24.  Mr Cheung argued that the above direction given by the Judge was unfair, because except for the 5^th count, the rest of the counts all involved sexual intercourse or anal sex, the allegations of which were all necessarily relevant to the Applicant’s sexual capacity.

25.  The last complaint made by Mr Cheung was relevant to the letter of complaints written by X to her parents in April 2012.  Mr Cheung submitted that the Judge had mistakenly accepted the letter as evidence, as the letter was hearsay evidence, which was compiled not until half year after the offence.  Mr Cheung contended that the letter was not contemporaneous and therefore insufficient to constitute a recent complaint being admissible into evidence.

26.  Although Mr Cheung had put forward various arguments, he focused on dealing with the issue of whether the Applicant was Doli Incapax, without making reference to the rest of his grounds of appeal when he presented his submissions to the court.

The Respondent’s Position

27.  Mr Franco Kuan, Senior Public Prosecutor, for the Respondent, pointed out in his written submissions that the application made by the Applicant was one for treating his Notice of Abandonment of Appeal as a nullity.  Mr Kuan emphasized that when signing the Notice of Abandonment, the Applicant must have understood the nature of the document and be aware of the consequences that must come along with the signing of the Notice of Abandonment.  Therefore it was by no means necessary for the court to consider the merits of the present case before dismissing the application.

28.  Mr Kuan cited a number of cases in support of his position.

29.  Mr Kuan further submitted that there was sufficient evidence to show that the Applicant knew his acts were extremely wrong and serious at the time he committed the offence, and that there was also evidence to show that he had sophisticated sexual knowledge.

30.  Mr Kuan argued that on the said evidence, any reasonable jury would have come to the only conclusion that the Applicant was capable of committing crime, although he was below 14 years of age at the time of offences.  Mr Kuan was of the view that the court could uphold the convictions on the 1^st to 7^th counts by applying the proviso.  

31.  Mr Kuan also submitted that the Judge’s direction to the jury was sufficient and reasonable.  He stressed that at the trial of first instance, at no time did the Applicant raise any argument that he mistakenly believed that Y consented to sexual intercourse with him, and that the Judge did not have to direct the jury on the Applicant’s position that he could have mistakenly believed that Y consented to sexual intercourse with him.

32.  Mr Kuan’s position is that even if the merits of the case had to be taken into consideration, none of the grounds of appeal put forward by the Applicant was sufficient to merit the quashing of the convictions against the Applicant.     

Discussion

33.  The Court of Appeal has long determined whether a convicted person, having abandoned an appeal, is entitled to have an application for leave to appeal restored.

34.  We wish to repeat the decision made in HKSAR v Leung Yu Hin (CACC 357/2009):

“The Applicant had abandoned his application for leave to appeal, which has accordingly been dismissed by the Court of Appeal. It is the principle established by this court in various cases that only where the Applicant’s act of abandonment has been treated as a nullity that the court of appeal has jurisdiction to entertain the reopening of an application for leave to appeal. It has been stressed by the court time and again that in order to persuade the court to treat the abandonment of application as a nullity, it is necessary for the Applicant to adduce sufficient evidence to prove that his act of abandonment was not the result of an informed decision, in other words, the mind of the Applicant did not go with his act of abandonment. (See cases such as HKSAR v Lai Siu Cheung [2005] HKLRD 1, HKSAR v Law Sui Kei [2007] 3 HKLRD 114)”

35.  As stated in the Applicant’s affirmation, he abandoned the appeal for only one reason, which was for fear of an increased sentence after appeal.  The Applicant however had never mentioned that he did not understand the nature of the Notice of Abandonment of Appeal or the consequence that must follow.  Actually, given the fact that the Applicant deliberately decided to abandon the appeal for fear of an increased sentence, his abandonment of appeal must have been a deliberate decision made only after thorough consideration.

36.  The Applicant failed to adduce any evidence to show that his abandonment of appeal was not the result of an informed decision.  He has expressed his obvious intention of abandoning the appeal.

37.  We consider that there is simply no basis for the Applicant to make his application for treating the abandonment of appeal as a nullity, and that there is no need for us to consider the merits of the application for leave to appeal before we dismiss it.

38.  That said, for the sake of completeness, we will briefly deal with the other grounds of appeal put forward by the Applicant.

39.  The Applicant was under 14 years of age at the time of offences in the 1^st to 7^th counts.  Section 3 of the Juvenile Offenders Ordinance provides that it shall be conclusively presumed that no child under the age of 10 years can be guilty of an offence as they are Doli Incapax.  It is also a presumption, yet rebuttable, under the common law that a child between 10 to 14 years of age is Doli Incapax. It can be rebutted only where there is positive and unequivocal evidence to show that the child involved knew his act was seriously wrong.

40.  Lord Lowry made the following comments in C v DPP [1995] 2 Cr App R 166, at 187 B-E：

“A long and uncontradicted line of authority makes two prepositions clear. The first is that the prosecution must prove that the child defendant did the act charged and that when doing that act he knew that it was a wrong act as district from an act of mere naughtiness or childish mischief. The criminal standard of proof applies...

...

The second clearly established proposition is that evidence to prove the defendant’s guilty knowledge, as defined above, must not be mere proof of the doing of the act charged, however horrifying or obviously wrong that act may be.”

41.  Although evidence to prove a child defendant’s knowledge of his act being wrong must not be mere proof of the doing of the act charged, in considering the question of whether the child defendant has the guilty knowledge, the surrounding circumstances of the offence, the child defendant’s behaviour and demeanour both before and after committing the act are evidence all relevant to determining whether he was capable of committing crime.

42.  In determining whether a child defendant has the guilty knowledge and in proving his awareness of the criminal acts he committed being seriously wrong, evidence such as the following would be relevant: a child defendant took a victim to a remote place where intervention by others was unlikely and subjected her to assault; the child defendant threatened the victim before the assault and used violence against her in the course of it, which brought obvious distress to the victim; a child defendant uttered threats to a victim after assaulting her in order to prevent disclosure; repetition of the same offence; the sexual sophistication the child defendant demonstrated and the sex education he had received at the time of committing the offence (See cases such as A v DPP [1997] 1 Cr App R 27, L and B v DPP [1998] 2 Cr App R 69, and R v ML [2013] NICA 23).

43.  X, Y and Z gave evidence that when committing assault on them, the Applicant would usually choose to do it in his own room and when the parents were not at home or already at sleep.  The Applicant sometimes would lock the door and when someone knocked on the door, the Applicant would immediately stop the acts.  Obviously, the Applicant was afraid that his acts of offence would be detected.  

44.  The Applicant threatened the victim before and after the offence so that they would submit to him and that his acts would not be disclosed.  When assaulting the victims, the Applicant also used violence against them, for which the Applicant had been punished by his father.  Besides, the victims showed fear and distress on numerous occasions where they were being assaulted.

45.  Even it was the first time that the Applicant had assaulted X (the 1^st count), the Applicant had demonstrated that he was quite sexually sophisticated.  He made X and Z watch a pornographic film in his room before instructing Z to take off her clothes and inserting into Z’s vagina a pencil and his finger respectively.  When Z said it was painful, the Applicant tried to insert his penis into her vagina.  Subsequently, he made X enter the bathroom to perform oral sex on him.  After the oral sex, the Applicant told X to rinse her mouth.  The Applicant made X and Z enter his room again, where he made X take off her clothes and he lied on top of X, thrusting his penis towards her vagina.  When X said it was painful and pushed the Applicant away, he pinned down both X’s arms and told her not to make any noise.

46.  The verdict returned by the jury obviously showed that they had accepted the allegations made against the Applicant by X, Y and Z; and according to their evidence, the Applicant was capable of committing crime during the material time period.

47.  We agree with Mr Kuan on the respondent’s position.  We are of the view that on the facts of the case, any reasonable jury properly directed must have found the Applicant to have known what he was doing at the time of offence to be seriously wrong, and thus finding him to be capable of committing crime.  Although the Judge should have directed the jury in respect of the issue of whether the Applicant was Doli Incapax, his failure to do so does not constitute the basis for quashing the convictions in the circumstances of the present case and we find the convictions safe and satisfactory.

48.  The present case involved multiple counts of indecent assault and one count of attempted rape.  It certainly followed that the Judge should have directed the jury properly in respect of all various counts.

49.  In directing the jury in respect of the charge of attempted rape, the Judge made it clear to the jury that the charge involved Y only and that Y did not consent to sexual intercourse with the Applicant.  The Judge emphasized that the jury must consider whether Y consented to sexual intercourse with the Applicant at the time of offence, and that if they did not accept Y’s evidence or they had any doubts in her evidence, they had to find the Applicant not guilty.  The main issue in that count was whether Y’s version of events was reliable.

50.  The Judge then turned to direct the jury in respect of the seven counts of indecent assault.  He first indicated to them that the allegations involved indecent assault on the three of them, ie X,Y, Z.  The Judge put emphasis on the fact that “the three victims were all under 16 years of age”, and that “in law, a person under 16 cannot consent to assault in any form...”.

51.  We do not find that the Judge’s approach would have confused the jury, causing them to mistakenly believe that they were not required to consider whether Y consented to sexual intercourse with the Applicant in deciding whether the Applicant had committed attempted rape in the 8^th count.

52.  The Applicant denied attempting intercourse with Y, saying Y was lying and framing him.  In the above circumstances, the issue of whether the Applicant would have mistakenly believed that Y consented to sexual intercourse with him did not even exist.  There was also no evidence to show that the Applicant had the basis to base his defence on such argument.  

53.  In our judgment, the Judge’s approach of not directing the jury on the issue was proper and correct.

54.  Mr Cheung made some other complaints in his written submissions, including one against the Judge’s comments on the Applicant’s sexual capacity and one concerning X’s letter of complaints to her parents.  We are of the view that, given the circumstances of the present case, the complaints are all trivial and irrelevant to the question of whether the conviction was safe and satisfactory.  

55.  Even if we treat the Notice of Abandonment of Appeal as a nullity and take into account the merits of the case, we would have arrived at the decision that the convictions against the Applicant are all safe and satisfactory.  We would grant him leave to appeal against the convictions on the 1^st to 7^th counts, but would apply the proviso to uphold the same convictions.  In respect of the conviction on the 8^th count, the application was dismissed and conviction upheld.

56.  However, the Applicant failed to prove that his abandonment of appeal was not an informed decision and we are satisfied that the mind of the Applicant went with his act of abandonment.  On this basis, the application was dismissed and convictions upheld.