HKSAR v. T. P. D.

CACC 177/2016

[2018] HKCA 275

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 177 OF 2016

(ON APPEAL FROM DCCC NO 1014 OF 2015)

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J U D G M E N T

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Hon Zervos J (giving the Judgment of the Court):

1.  The applicant appeals against his conviction for three offences of indecent assault of another person, contrary to section 122(1) of the Crimes Ordinance, Cap 200, following his trial before District Court Judge CP Pang (the judge) on 30 May 2016. The victim of the three alleged indecent assaults was the applicant’s elder daughter; the offences being alleged to have taken place on the evening of 22 July 2015 at the family home. The judge sentenced the applicant to concurrent terms of 2 years and 6 months’ imprisonment on each offence.

2.  On 17 June 2016, the applicant filed a notice of application for leave to appeal against conviction and sentence which was heard by McWalters JA on 14 July 2017.  At the hearing, the applicant abandoned his application for leave to appeal against sentence and in a written judgment handed down on 27 July 2017, McWalters JA refused leave to appeal against conviction, having concluded that the grounds of appeal were not reasonably arguable.[1]

3.  On 3 August 2017, the applicant filed a notice of renewal of application to renew his application for leave to appeal against conviction.  By the time this appeal came on before us, the applicant had served his sentence and he had been discharged from custody.[2] 

The case background

4.  At trial, the elder daughter and her mother gave evidence for the prosecution and they were designated X and N respectively in order to maintain their anonymity.  We will use these designations when appropriate in this judgment. 

5.  The applicant was 59 years old at the time of the offence.  He grew up in Hong Kong and later qualified as an engineer.  He became an American citizen through a previous marriage.  He met N, who is Vietnamese, in Vietnam in 2001 and they married in Hong Kong in 2004.  After they got married, the coupled variously lived in Vietnam and Hong Kong but it would appear that in 2009 they eventually settled in Hong Kong, after a failed business venture in Vietnam. 

6.  The couple have two children, X, who was about to turn 10 at the time of the offence, and her younger sister by two years, both of whom were born in Hong Kong.  They also have American citizenship through their father. 

7.  The family lived in a village house in the New Territories.  It consisted of a single room apartment with a kitchen and bathroom.  There were two beds in the room, a “big bed” and a “small bed”.  The small bed was a mattress that was placed vertically against the wall during the daytime.  The usual sleeping arrangements of the family were that N would sleep with the two girls on the big bed and the applicant would sleep on the small bed.  When N was away, the applicant would sleep with the two girls on the big bed.

8.  The applicant worked as a teacher and the mother supplemented their income by conducting cookery classes in Vietnamese cuisine. The two children were home-schooled following an American study plan taught by the defendant and N.  It appears there were plans afoot for the family to move to America.

9.  It was not in dispute that the relationship between the applicant and N had deteriorated to the point where they were constantly arguing and fighting with each other.  There had been occasions in the past that N sought to divorce the applicant by initiating proceedings in Vietnam but they were not pursued.

10.  The prosecution case was that at about midnight on 22 July 2015, in the family home, the applicant when sleeping with his two daughters, touched X’s legs, vagina and breasts on three occasions over a period of about an hour.  X eventually told her father to stop, which he did.  The next day the applicant told X that he was sorry and asked her not to tell her mother or anyone else.  N was away from Hong Kong during this time, from 20 to 27 July 2015, conducting cookery classes in Beijing.

11.  It was about a month later, on 24 August 2015, that N noticed X was watching cartoons of a sexual nature on her computer tablet. She decided because of X’s sexual curiosity that she would give the two girls a sex education talk.  It was at the end of the talk that X mentioned the incident with her father to N. 

12.  N text messaged the applicant about the matter and confronted him when he returned home that evening.  He told her that he was not aware of what he was doing that night but, when he became aware, he stopped.  He said that he thought it was his wife.  N told the applicant to leave and that she wanted a divorce.  The applicant agreed to leave.

13.  The next day, on 25 August 2015, N decided to discuss the matter with X again on the pretext of a further sex education talk with the two girls but on this occasion she recorded the conversation on her mobile telephone.  She commenced the conversation by referring to an incident when she was molested as a young girl by her uncle and asking X about what she had told her the day before in relation to the incident with her father.  N did not disclose the audio recording to the police when the alleged incident was later reported to them, even though she did provide it to the Legal Aid Department in November 2015 when seeking legal assistance to institute divorce proceedings.

14.  Following a family discussion, the applicant did not leave the family as he had previously agreed.  It seemed that the younger daughter did not want her father to leave and X did not want to take the matter further.  The family discussion was recorded according to N but was not produced at trial.[3]

15.  About a month later, on 21 September 2015, the applicant had a heated argument with N after he found out that she had arranged the girls to go to the normal school instead of doing the home school program. The police were called but N did not report the incident between X and the applicant.  That night, N left the family home with the two girls and stayed in a hotel.  

16.  On the next day, 22 September 2015, N sought the assistance of officers of the Social Welfare Department.  It was then that N disclosed to the social welfare officer the incident between X and the applicant, which resulted in the matter being reported to the police.  N and the two girls were placed in a shelter.

17.  On 23 September 2015, X was interviewed by a social worker of the Social Welfare Department which was video recorded.

18.  The defence case was that the applicant did not touch his daughter as alleged and that the allegations of indecent assault were orchestrated by N, who was seeking a divorce and wanting to secure custody of the children.  

19.  The applicant denied apologising to X for touching her or asking her not to tell anybody about the alleged incident.  He agreed that he was confronted by N about the incident and said to her that he was not aware of what he was doing, and when he was aware he stopped, but denied saying that he thought it was his wife, so he did that.  His repeated response to the allegations was that he did not recall the incident.

The grounds of appeal

20.  Mr John Haynes, counsel for the applicant, at this appeal and at the trial, has put forward five grounds of appeal.[4]

21.  First, he submits that the judge failed to properly analyse and objectively address the numerous and significant defects in the evidence of X and N.  He describes their testimony as “significantly forgetful, unclear, illogical, inconsistent, contradictory and untruthful” and submits that the defects in their evidence can be measured against other evidence consisting of X’s video recorded interview,[5] the audio recorded conversation between N and X,[6] the travel records of N[7] and the text messages from N to a friend.[8] 

22.  Secondly, he submits that the judge misdirected himself of the potential factual significance of X refusing to watch her video recorded interview before giving her supplementary unsworn evidence. 

23.  Thirdly, he submits that the judge wrongly allowed the prosecution to re-examine X on crucial matters which had not been raised in cross-examination.  

24.  Fourthly, he submits that the judge wrongly rejected the defence submission of no case to answer and failed to give an appropriate reasoned ruling.

25.  Fifthly, he submits that in light of the previous grounds of appeal, the conviction is unsafe and unsatisfactory.

The prosecution case

26.  The prosecution case was based on the evidence of X and N and the social worker who conducted the video recorded interview with X. 

X’s evidence

27.  X’s evidence at trial consisted of her video recorded interview with the social worker, which became her examination-in-chief pursuant to the provisions of section 79C of the Criminal Procedure Ordinance, Cap 221, (the CPO).  The video recorded interview and a certified transcript of it were produced as exhibits by way of admitted fact.[9] 

28.  So far as material, section 79C reads:[10]

“…

(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 or mentally incapacitated person 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 or mentally incapacitated person shall be called by the party who tendered the recording in evidence;

(b) the child or mentally incapacitated person 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.

(7) Where a video recording is given in evidence, any statement made by the child or mentally incapacitated person which is disclosed by the recording shall be treated as if given by that witness in direct oral testimony and accordingly—

(a) any such statement shall be admissible evidence of any fact of which such testimony from him would be admissible;

(b) no such statement shall be capable of corroborating any other evidence given by him,

and in estimating the weight, if any, to be attached to such a statement, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.

…”

29.  X’s video recorded interview was supplemented by her oral evidence, which she gave pursuant to section 79B of the CPO.[11]  So far as material, section 79B reads:

“…

(2) Where a child, other than the defendant, is to give evidence, or be examined on video recorded evidence given under section 79C, in proceedings in respect of—

(a) an offence of sexual abuse;

(b) an offence of cruelty; or

(c) an offence which involves an assault on, or injury or a threat of injury to, a person and the offence is triable—

(i) on indictment; or

(ii) either summarily or on indictment,

the court may, on application or on its own motion, permit the child to give evidence or be examined by way of a live television link, subject to such conditions as the court considers appropriate in the circumstances.

…”

X’s video recorded interview

30.  The social worker who conducted the video recorded interview was Ms Ling Wai-yu of the Social Welfare Department.  The interview took place in the afternoon of 23 September 2015, which was about two months after the date of the alleged incident.

31.  At the commencement of the interview, Ms Ling explained the procedures of the interview to X, and told her that the interview would be video recorded and restricted.  She also told her that her mother was in the sitting room next door and that she would be able to watch and hear what she had to say on the television set.[12] She then asked a number of background questions, including questions as to whether X understood what it meant to tell the truth, to which X said that she did, explaining the difference between telling the truth and telling a lie.[13]

32.  Ms Ling noted that X had been brought to the interview room by a police officer so that something must have happened.  She asked her to tell her the details of it from beginning to end.  X responded by saying: “I came here because we had some family problems, every day my mother and father always fight about something, something very small.”  She added: “Sometimes they fight and argue about big things, very big things, so that’s why we came here, solve some of the problems.”[14]

33.  Ms Ling then broached the subject by noting with X that she had previously told her mother something had happened to her and could she tell her what it was.  After repeating the question, and again noting that she had told her mother something had happened, X replied by asking whether it was about her father.  At this point, she asked X what had she told her mother.  X replied: “I told my mother about the story of me and my father and my sister at home.”[15] When she was asked what it was about, X said:

“83. C: My mother went somewhere, somewhere to teach cooking, and she earn very little, and while she was there, she was… she was in hotel, a nice hotel, and then one night, I don’t know when, (UNCLEAR) when…when my mother at…my mother was gone and…and me my dad and my…and me and my sister, went to bed sleeping.

84. B: What after this?

85. C: Sleeping and then my dad at 12, 12 o’clock, he started to touch me.

86. B: What happened next?

87. C: Then I went to the small bed sleep because we had two beds and our house is very small…small, and then he came down, and then he touched me again, so I call up back on the big bed, just sleep and then he comes up and touch me again, so I went to the bathroom, then I come back and then I ask my father to stop touching me. And…that’s all I know.

88. B: You…

89. C: That’s what I remember.

90. B: That’s all you remember…OK. You say that he touched you, you say, is it?

91. C: Yes.

92. B: Which part of your body?

93. C: Private part.

94. B: Private part. Can you specific the name of the private part?

95. C: I don’t want to say.”[16]

34.  X was then asked if she could point to her private part, which she did by pointing to her breasts and vagina.  When she was asked how she was touched, she said she did not know because she was “half asleep”,[17] although she added that it was only with his hand that her father had touched her.[18]

35.  X went on to explain that she was wearing a sleeping dress and underwear.  When asked how she was touched, X said that she could not remember, and when further queried on the subject she said that she could remember “only a little bit”.  She then said:

“153. C: I remember he touched the outside of my dress, I think inside too.

154. B: You think inside too. How come you think is inside too?

155. C: I was asleep.

156. B: You were asleep?

157. C: I was so tired.

158. B: You are so tired. OK. What do you feel at that time?

159. C: Uncomfortable.

160. B: Uncomfortable.

161. C: So I went to the bathroom and come back and ask my father to stop.”[19]

36.  X said that her father touched her on three occasions, touching her from her legs to her head, including her vagina and breasts. 

37.  The first occasion was when X was sleeping on the big bed with her father and sister when her father woke her up by touching her.[20]  Her father started by touching her leg and coming up to her vagina and then to her breasts.  When asked how he moved his hand, she said: “I don’t know, just around and around and around.”  That is all she remembered, her father moving his hand around her vagina.[21] She later referred to this as “bad touching” and said that at the time she felt scared and uncomfortable.  She added that she was sad that it had happened.[22]  The touching lasted for about 15 minutes.[23] 

38.  The second occasion, according to X, occurred when she either went down to the small bed or her father asked her to come down where he touched her again.[24] She said the touching lasted for 15 or 20 minutes.[25]  She said that he touched her in the same place, namely her private part which she eventually said was her breasts and vagina.[26]

39.  The third and final occasion was when X went back up to the big bed and had slept for about 10 minutes when her father came up and touched her again.  The touching lasted about 15 or 20 minutes.  He touched her leg, breasts and vagina for 20 minutes.[27] She went to the bathroom and when she came back, she asked her father to stop touching her and he said “OK and sorry, and then good night.”[28]  She said that the duration of the incident was about one hour after which she then fell asleep.[29] 

40.  The next day X’s father said sorry to her and told her to forget about it and not to tell her mother or anyone else.[30] 

41.  When asked when the incident occurred, X said she remembered it was 2014 and on a Wednesday, when her mother was in Beijing.[31]

X’s oral evidence

42.  X gave her oral evidence on 5 April 2016 before the judge, which was about 8 months after the alleged offences and 6 months after the video recorded interview.  As already mentioned, X testified by way of live television link and she proceeded to give her evidence after the judge had established that she understood the difference between telling the truth and telling a lie. 

43.  Both prosecution and defence counsel questioned X about her statement in the video recorded interview that the incident occurred in 2014.  She explained that her statement  was a mistake and that the incident actually happened in 2015 on the third night when her mother was away conducting cookery classes in Beijing. 

44.  In cross-examination, X agreed that after the alleged incident, she carried on as normal.[32]  She said she was too afraid to tell anyone and she just kept quiet and forgot about it.[33]  She did not tell her younger sister, nor her mother when she returned from Beijing. 

45.  X agreed that her father looked after her and her younger sister very well when their mother was away and that she had no complaints.[34] She also agreed that her father never tried to touch her improperly again.[35]

46.  Of the relationship of her parents, X described how they always argued, even over little things, and that they sometimes fought with each other.[36]  She agreed that her mother wanted to leave her father and was looking for a place to live away from him.  She also agreed that her mother wanted to keep her and her sister together with her.[37]

47.  A matter of significance in this appeal is the evidence of X in relation to the circumstances in which she disclosed to N the alleged incident with the applicant.  The point made by Mr Haynes was that X first told N about the alleged incident after N had told her how she had been molested by her uncle when she was 13.  He submitted that N had planted in the mind of X a sexual complaint against the applicant by referring to her childhood experience and that this was a rehearsal to the second conversation that she recorded.  On this issue, the following exchange took place in the cross-examination of X:

“Q. Yes. Now, you can’t remember the exact day, the exact time, when you first told your mother about this, can you? Is that right?

A. Yes.

Q. For example, perhaps this might help you. Can you remember where you were when you first told your Mum?

A. At home.

Q. Yes. And can you remember whether anyone apart from your Mum was present?

A. My sister.

Q. So your little sister was there.

A. Yes.

Q. And how did you start to tell your mother?

A. Well, first she told me about – she told me about – I can’t actually remember.

Q. Well, I’m going to try and jog your memory, okay, and you tell me if I’ve got it wrong. Did she start to tell you that when she herself was only about 13, her uncle had touched her improperly?

A. Yes.

Q. Yes. So you were then almost at your 10^th birthday, all right? Yes?

A. Yes.

Q. And your mother tells you about improper sexual touching by her uncle when herself was only about 13, right?

A. Yes, she told me about that and then I tell her my incident.

Q. Yes. So the topic of sexual incident was introduced by your mother.

A. Yes.

Q. Yes. Was there ever any talk about how, if your father had touched you wrongly, your mother would have a much better chance of getting custody when the divorce happened?

A. No.

Q. But did your mother tell you why – you see, she spoke about being abused by her uncle before you said anything about your father doing anything wrong, right?

A. Because I think I was ready to learn about that just in case if anyone do that to me.

Q. Well, yes, but so she starts to talk about men touching a young girl, right?

A. Yes.

Q. What, was this suddenly introduced after breakfast, or what?

A. Suddenly – I think after lunch ordered.

Q. But that was in the days when she and your father were constantly fighting, and she was talking about leaving him and divorce, right?

A. She did not talk to him about that, but she talked of that to me and my little sister.

Q. Yes. And so having introduced the topic of bad touching by older man on a young girl, that caused you to tell her that your father had touched you when she was away in Beijing.

A. Yes.”[38]

48.  We observe that it is not clear that this part of X’s evidence was dealing with the first occasion when she disclosed the alleged incident, and there appears to have been no attempt to distinguish between the two conversations when X was cross-examined.  In fact, the questioning seems to focus on the audio recorded conversation, as X was asked if she knew it had been recorded by her mother, to which she responded that she only found out about it a few weeks prior to giving evidence when her mother told her.[39]

49.  Of the audio recorded conversation with her mother, X said that she remembered “a little bit” of what she said about her father on that occasion.  It was noted that when telling her mother about her father, she said on several occasions that she could not remember the details. She told her mother that she was “90 percent asleep” and only “10 percent awake” so she could not remember very much.  When questioned about these comments, she responded that she did not say them, adding that she was not so sleepy that night.  She agreed that she told her mother that “it was a little bit blurry” and that she was “a little bit half asleep”.[40]

50.  X was taken to her comments to her mother that she thought “it was a dream” and that she was “90 percent awake” which she corrected at the time to “90 percent asleep” but she said she could not remember them. It was put to her that she made these comments to her mother and that they were true, but she maintained that she could not remember making them.[41] 

51.  X first thought that her father was “half asleep”, but realised that he was not because he woke up to do something, and when he came back, he repeated touching her.[42]

52.  X remembered her mother telling her that this was not normal, and she agreed that she answered her by saying that she did not know, and that she was half asleep.[43]

53.  X agreed that her mother told her that she may be a victim of wrong touching by an older man, and that this caused her to tell her mother these things about her father.  She thought she told her mother that she was half asleep at the time but she still could not remember saying it.[44] 

54.  X was asked if she was upset about the touching, to which she responded not anymore.  She said that she had forgot about it and could not remember.  She said: “Always distractions, always make my memory go bye-bye.”[45]

55.  When she was questioned about the first touching, X said she could not remember.  She was asked if she could describe what happened.  She said she could not remember that much.  She said she could only remember “…the time, the night.  That’s all I remember, nothing else.”  She explained that after that night she forgot everything.  She said there was so much distraction, referring to the family arguments, that she forgot about it and could not remember.[46] She agreed that she thought she was half asleep during part of the touching. 

56.  X was taken to a passage in her video recorded interview where Ms Ling asked her which part of her body her father touched, and she responded by saying “here and here”, pointing to her vagina and breasts. Ms Ling followed up by asking her how did her father touch her, to which she replied that she could not remember.  She agreed she said that.[47] 

57.  X was then taken to her evidence when she told her father to stop after coming back from bathroom, and she was asked why she did not tell him to stop after the first time.  She said she did not know how to answer the question.  She agreed that she was unable to answer because some of the things were very unclear in her head, although she disagreed that it was a bit like a dream.  She said that she was asleep but woke up when her father touched her.[48]

58.  X confirmed that she gave different estimates of time of the duration of the touchings in her interview with Ms Ling and agreed that her memory was “a bit fuzzy”.[49]

59.  X denied that the alleged incident was taught to her by her mother and that her mother told her that she would have a better chance of getting custody of her and her sister if her father had wrongly touched her.[50]

60.  It was put to X that the touching by her father did not happen, to which she responded: “The touching did happen.”[51]

61.  After acknowledging that she loved her father, X was asked:

“Q. And if it hadn’t been for your mother talking to you about sex education and about being abused herself, you would have put this whole thing behind you and not done anything about it; forgiven your father.

A. Well, I think the thing that he did is – I can forgive him, but I will not leave in the past yet.

Q. No. But you weren’t going to do anything about it until your mother brought up this.

A. Yes.

Q. That’s right, isn’t it?

A. Yes.

Q. Yes. And you still feel now that you can rebuild your relationship with your father?

A. No.

Q. You don’t think so?

A. No.”[52]

62.  Mr John Marray, prosecution counsel at the trial, re-examined X, but an objection was raised by Mr Haynes on the basis that the subject of his questions did not arise in cross-examination, and that he was seeking to improperly elicit evidence from X by asking leading questions about the nature of the touching that she claimed took place which she said she could not remember and could not describe. 

63.  The judge allowed the re-examination because X had said that she could remember “half” of the touching, and therefore he allowed her to be re-examined about what she could remember. 

64.  X said that in respect of the first incident on the big bed, the applicant touched her around her legs; the second incident on the small bed, the applicant touched her vagina; and the third incident on the big bed, the applicant touched her legs and then her breasts.[53] 

65.  The judge at the conclusion of X’s evidence, asked her whether before the conversation she had with her mother which was recorded did she tell her about the alleged incident.  She said she had not and that it was her mother who told her first and then she told her about the incident with her father.  She confirmed that her mother had given her a sex education talk before she mentioned the alleged incident.  She said that the sex education talk and her telling her mother about the alleged incident occurred on the same day.[54]

N’s evidence

66.  Evidence that the complainant in a sexual case made a complaint soon after the alleged offence, and the terms of that complaint, are admissible to show the consistency of the complainant’s evidence.  Such evidence is only relevant to the complainant’s credibility.  In general terms, to be admissible the complaint must have been made at the first reasonable opportunity after the alleged offence.[55]

67.  N gave evidence on the issue of recent complaint as well as other matters relevant to the alleged offences. 

68.  N testified that on 21 August 2015 (which she later corrected to 24 August 2015), she noticed X was watching some cartoons of a sexual nature on her computer tablet.[56] On seeing this, she confronted X who said she was curious.[57]  She was initially angry but decided then and there to give X and her younger sister a sex education lesson as part of their home schooling.  At the end of the lesson, she said X was “so confused and scared” that X disclosed to her that “when I was away in July in Beijing that daddy one night had touched her.”[58]  X told her about the applicant having touched her private part when she was away in Beijing.  X told her that one night at about midnight, her father touched her when the three of them were sleeping on the big bed.  He touched her from the leg up to her private part.  X said that the incident lasted about one hour.  X said that she thought it was normal but she did not want to be disturbed like that so she moved to the small bed.  Her father moved down with her and started doing the same thing again.  She felt uncomfortable and moved to the big bed and he moved up next to her, and he did the same thing yet again.  She then went to the toilet and finally told her father to stop.  X said that the next morning her father told her this was a secret between her and him and not to tell her sister or her mother.[59] 

69.  N text messaged the applicant about the matter and later that evening when he returned home, she confronted him.  She said the applicant told her that he was not aware of what he was doing that night and when he was aware, he stopped.  He said he thought it was her, referring to N, so he did that. 

70.  Of her conversations with X, N was asked if she recorded them.  She said:

“A. On that day, I didn’t. On the 24^th, I didn’t because I was so shocked, what she said to me. The next day, I asked her more in detail. The first day, I didn’t ask her, not so detailed like I just said to you. Then the next day, I asked her more details because my spirit was calm more, and I knew it that I need to record the conversation because she was telling me everything. But she didn’t notice that I was recording it.

Q. Right. Now, just pause there. Right. Well, I’m not going to go into the contents of the second conversation which you recorded. I just want to confirm that you did record, that the recording you made is when you broached the subject again the next day.

A. Yes.

Q. Did you raise this matter with your husband?

A. On the first day, after she told me the incident, and then I text-messaged him about her curiosity about sex and love, and he was – come to the truth, and I asked him, “why did you do that to your own daughter? At that time, he was teaching somewhere. So he didn’t reply the message. He came home, and we all sat down to have a family talk, and he just said to me that he was not aware of what he was doing at that night but when he was aware, he stopped. But because I …

COURT: One moment.

Q. Yes, carry on.

A. He said that he thought she was me. So he did that.

COURT: Sorry. “He said he” – “she was”?

A. He thought…

COURT: He thought…

A. … that she was his wife. So he did that. But I couldn’t accept what he said. So I asked him to – I said to him that I don’t want him as a husband because this is not good for the family, especially hurt my daughter and me. So I asked him to leave the house, and he agreed. He agreed to, but then the next few days, he didn’t leave. So after three days, I brought the issue again and with – during those three days, the second daughter didn’t want him to leave. She wanted to live with him and want him to stay so that the family has the parents, so they have the parents. And the eldest daughter said that she doesn’t want to report this to the police because she doesn’t want to see her father go to prison. So I listened to both of my daughters, and we had family talk together on 25 August, and I knew that at that time I need (needed?) to take the record.”[60]

71.  On the following day, 25 August 2015, N talked with X again about the incident.  She commenced by recounting an incident she had when she was indecently assaulted by her uncle.  She recorded the conversation on her mobile telephone. 

72.  N was cross-examined about the occasions that she left the children in the care of the applicant whilst she was either in Vietnam or away.  She eventually confirmed that there were lengthy periods when she was away and the children were in the care of the applicant.  She confirmed that the most recent occasion was from 15 May to 23 June 2015, shortly before the alleged offences. 

73.  N was also cross-examined about her relationship with the applicant and confirmed that it had deteriorated and that there were occasions in Vietnam when she instituted divorce proceedings against him.  She confirmed that she also instituted divorce proceedings in Hong Kong in November 2015 and sought legal assistance soon after the incident had been reported to the police.  In the following exchange, it was noted that she had not disclosed the audio recording to the police, but had done so to the Legal Aid Department:

“Q. And you then disclosed, while seeking advice on divorce, the recording of the sex-education conversation.

A. To the Legal Aid, yes.

Q. Yes. You hadn’t told the police about it.

A. I hadn’t because I put it on file and when the Legal Aid asked me to give the unacceptable behaviour, why I wanted to divorce, so I went back and looked at on my phone, listen to all the records that I made.

Q. Yes. Now, all along, you were using your so-called sex-education talk. You were going to use it as something in favour of your divorce. That was the whole purpose of making the recording.

A. No, it was not. Why I did it? Because I wanted to save it so that in the future, my daughter can see what happened and still remember.”[61]

74.  N was questioned about the number of times that she was away in Vietnam when the children were in the care of the applicant and how the children missed their father.  She was referred to text messages[62] between her and a friend on 16 September 2015 in which she stated that the children were missing their father and arranged for their return to Hong Kong so that they could see him.[63]  She also mentioned in the text messages that she was thinking of moving out and that she had a “Plan A” to get a job to support the girls or “Plan B” to move back to Vietnam.[64]

75.  N denied that she recorded the conversation to use it in divorce proceedings and to secure custody of her daughters. 

76.  N also denied that she had used her own experience of being sexually abused to plant a similar allegation in X’s mind against the applicant.

“Q. …You see, we have the recording, and in the recording, the first thing you talk about is sexual abuse of yourself.

A. Yes. After she told me the sexual abuse, and then I said to her “I had the same what you had, but it happened to me by my uncle”.

Q. I suggest even on the first day which was unrecorded, it was only after you’d talked about sexual abuse that she mentioned any bad touching by her father. That’s the truth, isn’t it?

A. No, it’s not. It was not.

Q. So if she thinks that’s the way it happened, she has got it wrong, has she?

A. No, she disclosed the secret by herself. The next day, I want (wanted?) her to go more details, and then I told her my secret of being abused by my uncle, and then…

Q. All right.

A. …she felt that she and I had the same problem. So she go (went?) more into detail to tell me.”[65]

77.  It was put to N that she planted the idea of sexual abuse in the mind of X which she denied.

“Q. You see, what I suggest to you is that you, knowing your elder daughter quite well, realised that if you planted in her mind the idea that you had suffered an abuse, she might say that she had suffered an abuse. That’s what happened.

A. It was not like that. She told me first on the first day, and then I shared my secret…

Q. Look, she…

A. …after she’d shared her secret.

Q. No, she told us that she didn’t share her secret until after you’d told her about your own abuse.

A. I don’t think so, sir.”[66]

The audio recording

78.  During the cross-examination of X and N, Mr Haynes questioned them about the audio recorded conversation on 25 August 2015 as a previous inconsistent statement, although at times he asked general questions about what was said.  At the conclusion of N’s evidence, the defence produced a transcript of the audio recording as an exhibit.[67]

79.  It was on the next day, after having been told by X that she had been touched by her father, that N recorded on her mobile phone a conversation with X about the incident.[68]  At the time, X was with her younger sister, and N told X that she wanted to talk to her.  X did not know the conversation was being recorded. 

80.  N started the conversation by recounting to the girls her own personal experience of having been molested by her uncle when she was 13.  She said she was sleeping with her uncle who she thought was nice and who always cared for her but in the middle of the night he started touching her.  She explained to the girls that he had also threatened her not to tell anyone “like Daddy told you”, directing her remarks to X.  She then asked X what did he say to you?[69] X said that her father told her “I am sorry, please keep it a secret between you and me, and don’t tell anything to mummy.” 

81.  N instructed X to tell her what happened like she had told her yesterday, asking her to describe it very well so that her younger sister could learn and would be aware of any men who come and try to reach the both of them.[70]

82.  X initially said that she could not remember and added that she remembered a little more yesterday.  Upon N’s urging, she said that her father one night started touching her legs and she woke up.  She said she thought it was a dream.  She then said she went to the small bed and her father started touching her again there.  He touched first her legs and then her vagina and nipples, although he did not open her underpants.  This account by X was given in the following exchange:

“33. B Mm I … that all night slept with daddy in big bed, and then (C: Then what?) … fell asleep then I fell asleep then daddy – I think daddy started touching my legs so I – so I feel something so I woke quickly, really quickly. And then I saw it was daddy but I – I – I think I just thought that was a dream.

34. A And then you went back to sleep or what?

35. B Yeah.

36. A And then what happened?

37. B Then daddy went over – over to the small bed. Right?

38. A I don’t know. You have to remember what happened. And after that what happened?

39. B I think, I think daddy asked me to go to the small bed or I asked him either way. And then I slept on the small bed.

40. A With him? Um, and then what happened?

41. B He started touch me again. First my legs then my bom and then my …

42. A What is bom? Bom is vagina?

43. B Yea, vagina, and then my nipples. But he didn’t open my underpants.”[71]

83.  X was asked by her mother to describe how she was touched.  She said that her father touched her nipples and vagina.  She thought his finger touched her vagina, although she said she could not remember much and it was a little blurry.  She said she was only fifty percent awake.[72] 

84.  X went on to explain that she thought the incident was a dream.  She said that she was fifty percent and then ninety percent asleep and that she could not remember that much.[73] 

85.  The recording continues with the mother giving a sex education talk to the children. 

86.  It is of significance that during this conversation, there are constant references to what X had told N the day before about the incident with her father.[74] Confirming that there had been two conversations between N and X about the alleged incident with the latter conversation being recorded by N. 

87.  It would also appear from the initial comments of N about her childhood experience and the response from X, that this was the first time N had mentioned it to X.  The recording starts with N saying to X that “I really want to talk with you” and then proceeds as follows:

“2. B But I am not sure if I want to go to school.

3. A Yes.

4. C Mammy …

5. A Can you support? At least you have friends, you have socialize, right, you have er, people who care for you and I will help you to make sure that no strangers, no relatives, men come close to you. Okay, when I was thirteen years old I was sleeping with my uncle who – who I think is nice, he treated me nice, always care about me and then he started like in middle of the night touching me and did that.

6. B Did you know?

7. A I know very well.

8. B Did you stop him?”

88.  The recording continues with N describing what she went through and X questioning her about it in a way that N’s childhood experience was being told to her for the first time. 

The defence case

89.  The defence case was that N had manipulated X into making a false allegation against the applicant and that she had done so in order to advance her interests in future divorce proceedings, in particular, to secure custody of the daughters.  The means by which N was able to achieve this was by telling X of the sexual assault on her as a young girl by her uncle and using this story to encourage or coax X into making up a similar story in respect of the applicant.

The applicant’s evidence

90.  The applicant gave evidence.  He said that N had always been talking about a divorce and that they had fought.  He said that N applied for divorce in Vietnam twice before 2009 and later withdrew the application. He said that N was often away leaving the care of the two daughters up to him alone. 

91.  At the time of the incident, the applicant was working almost full time as an English teacher in China and he would travel there daily to teach. 

92.  Between 20 and 27 July 2015, when N was away in Beijing, he had sole care of the two girls.  He explained that during this period, at nights he would read a story to the girls on the big bed.  When the girls fell asleep, the applicant slept on the small bed where he would usually sleep. 

93.  He said that he did not indecently assault X. He explained that throughout this period, X behaved normally, including when N returned to Hong Kong. 

94.  On 22 August 2015, he said he received text messages from N making allegations of sexual abuse against him.  When he arrived home, N confronted him by asking if he had touched X’s breasts and vagina. He said he was shocked and he replied that he did not recall such an incident occurring.  He said that was all he said.  He explained that he could not enlarge on his explanation as he was subjected to a barrage of questions and repeated accusations. 

95.  He knew N had been sexually abused by her uncle when she was young as she previously told him.

96.  He explained that he loved his daughters and never had any inappropriate sexual thoughts about them.  He said that as a result of the false allegations, he suffered from depression and had personal difficulties as a result. 

97.  In cross-examination, he agreed he did say to N that he was not aware of what he was doing, and when he was aware, he stopped. However, it was not said during the confrontation on 22 August but later on 25 August.  He denied ever saying that he thought that X was his wife. 

98.  On this subject, the applicant was questioned as follows:

“Q. No, I just want to – these few words. Did you tell your wife that when you were aware, you stopped, in relation to the touching?

A. I said that on 25 August, yes, sir – 2015.

Q. Okay. So – okay. Why did you say that on 25 August?

A. What do you mean, why?

Q. Well…

A. We were all – the accusation had been made. I’d answered that. Now…

Q. Right. So in other words, did…

A. Sir, I’m trying to answer you. Please, sir. Please; all right? This is very difficult and very emotional for me. I’m not a lawyer, and I feel that I’m getting battered into corner. Now, on 25 August 2015, put it within the context of an accusation had been made and I had answered it, and as a family, we were trying to move beyond that to also understand what was going on as a family. Now, how can I answer any more questions?

Q. Yes. When you said – you say you said this on the 25th – when you were aware…

A. That was not on the 25th.

Q. “When I was aware” – well, whatever day it was – “When I was aware, I stopped”. Yes, those words, okay? Just concentrate on those words.

A.        “When I was aware, I stopped.”

Q. Yes. So that means you were aware of touching your daughter.

A. I was not aware. I was not aware of the – I was not aware of the incident, that’s what I’m saying. I don’t recall the incident.

Q. Then why did you say “When I was aware, I stopped”?

A. When I was aware, I was aware. I mean – so I know what I’m doing.

Q. So why did you say you then – you stopped – “I stopped”?

A. I just used that term. It’s not a…

Q. So – meaningless word.

A. No, I – when I say the word “stopped”, I mean nothing happened. That’s all I’m saying. There’s a period of not recalling, and that’s it.

Q. But the word “stopped” is very – has a very different meaning from “nothing happened”, doesn’t it? “Stopped” means that you stopped doing something.

A. Yes.”[75]

99.  The applicant was further questioned about his statement but gave qualified and unresponsive answers.  Eventually, he denied that he told his wife “I thought that she was you, so I did that”.  When the subject was raised again, he said:

“… She asked me if in bed did I touch my eldest when she was in Beijing. Now – now, remember that we have two beds, and she asked me did I touch our eldest daughter when we were – when I was in the two beds, and she said this would have occurred in the two beds, and she described me touching her – I believe it was her breasts and around her vagina area, and she was clothed at the time. And my answer was one of shock, and I said simply I do not recall, and that was the same day, the evening, and I said, “I do not recall that happening – as you describe that happening in 2015,” right? And that was it. I said I do not recall. That’s it.”[76]

Character evidence of the applicant

100.  The applicant also produced character evidence in the form of letters[77] and called a character witness, who testified that he had known the applicant for more than 40 years.  He described him as the most kind and loving father.[78] 

101.  The witness also referred to an occasion when he escorted the applicant’s children on a flight from Vietnam to Hong Kong on 15 May 2015 when they returned to Hong Kong to stay with the applicant.[79]

The judge’s reasons for verdict

102.  The judge in his reasons for verdict rejected the evidence of the applicant and accepted the evidence of X and N.  The judge identified the issues before him as follows:

“ The central issue in this case is whether the defendant touched X in the way she described. This issue turns on the credibility of X and N. Other relevant issues are:

(1) Effect of X not being asked to watch and confirm the videoed interview;

(2) Whether the complaint by X to N can be regarded as a ‘recent complaint’:

(3) Whether the responses of the defendant upon confrontation and accusation can amount to a confession;

(4) Whether X was mistaken;

(5) Whether the defendant, if he indeed touched X as she described, was aware of what he was doing;

(6) Whether the touching was indecent.”[80]

103.  The first issue arose from Mr Haynes’ querying whether X should be allowed to watch her video interview without first being asked whether she needed to refresh her memory.  When asked, X said she did not need to refresh her memory and so she did not watch it when it was played in court.  During cross-examination, X at times could not recall what she said in her video interview, and as she had not confirmed what she had said in her video interview, it was submitted that no weight should be attached to its contents.  The judge rejected this submission.[81]  

104.  In respect of the second issue of recent complaint, the judge having taken into account relevant factors, including the age of X and her close relationship with the applicant, found that the complaint by X was made within reasonable time.[82]  Of the applicant’s allegation that what X said in the audio recorded conversation[83] was inconsistent with her testimony, the judge found that what X said in the video recorded evidence was materially consistent with the audio recorded conversation.  As such, he accepted that the complaint made by X to N was a recent complaint and that it was admissible.[84]  

105.  In respect of the third issue of the applicant’s out of court statement to N, the judge found that the meaning of what the applicant had said was too unclear to treat it as a confession,[85] although he found the response to be odd and illogical.[86]

106.  In respect of the fourth issue, the judge found that X was not mistaken.[87]

107.  In respect of the fifth issue, the judge found that the applicant was aware of what he was doing when he touched X as she described.[88]

108.  In respect of the sixth issue, the judge found that the touching was indecent.[89]  

109.  The judge in the course of addressing these issues also dealt with the defence arguments or complaints about the evidence of X and N. 

110.  The judge rejected the defence allegation that both X and N had the motive to lie because N wanted a divorce and the custody of her two daughters, and X, having said in her video recorded interview that she was there to solve some family problems, wanted to stop the fighting and quarrelling of her parents.  He observed that if N was concerned about a fight for custody of her daughters, she would have simply remained in Vietnam with them as the applicant was banned from entering Vietnam and it would be difficult for him to fight for custody there.[90] This is a reference to the fact that N had withdrawn her immigration sponsorship of the applicant in Vietnam, and it would appear on this basis he could not gain entry to the country.  He rejected the suggestion that X would be motivated to lie in order to stop the fighting and quarrelling of her parents.[91]

111.  The judge also examined in detail why the defence criticisms on a number of aspects of the evidence could not be made out. On the issue that the prosecution was allowed to re-examine X on what she could not remember during cross-examination,[92] the judge stated in his reasons for verdict that he did not take into account the impugned evidence.  On the issue that X only revealed the alleged incident after N shared her own experience,[93] the judge was satisfied that X was not coached to give evidence against the applicant in the conversation with N and in the interview with Ms Ling.[94]  On the issue of the criticisms and conflict of evidence of X and N, he said their overall evidence was “coherent, consistent and reasonable”.  He found them both to be credible witnesses.[95]

112.  Of the evidence of the applicant, the judge found that he was an unimpressive witness who was argumentative and evasive when answering questions.[96] He often repeated questions in avoiding answering them, and gave long and incomprehensible answers to simple questions.  Having considered the overall quality of his evidence, the judge found that the applicant was not an honest and credible witness.[97]  He explained:

“104. Taking all these matters into account, I am of the view that the defendant was an evasive witness. In particular his answers to questions in cross-examination about his responses upon accusation by N was incomprehensible. Facing a serious allegation by his wife, it is improbable that he would only give an answer that he did not recall the incident. It was an odd and illogical response to an accusation that he had indecently assaulted his daughter.”[98]

113.  Whilst we are not in the same position as the judge was to assess and evaluate the applicant’s evidence, a reading of the transcript in our view supports his conclusions.

114.  The judge found that the applicant touched X as she described which was intentional and indecent. 

The grounds of appeal

115.  It is becoming increasingly common in appeals to this Court for grounds of appeal to be advanced that are framed in terms of complaints about the evidence given at trial and the evaluation of it by the trial court.  This is the case in the present appeal, so it is appropriate that we briefly describe the approach that is taken and what is required when addressing such grounds. 

The “plainly wrong” test

116.  In R v Li Chun-yue,Criminal AppealNo. 240 of 1996, 9 October 1996, unreported, Mortimer JA, giving the judgment of the Court, in addressing the proper approach of an appellate court to submissions concerning the weight of evidence given at trial and the trial court’s evaluation of it, stated that:

“… this Court is asked to substitute its own evaluation of the witnesses and the evidence from a careful reading of the transcript, for that of the judge who heard and saw the witnesses at trial. This is not an exercise that this Court can undertake unless it is shown that the judge in some way failed in his duty. We must ask, has the judge’s evaluation been shown to be absent, irrelevant, lacking, careless or flawed in any substantial way? ...”

117.  Such a complaint raises the question as to whether the decision of the trial court could be said to be “plainly wrong”.  In the judgment of Ribeiro PJ in the Court of Final Appeal in HKSAR v Egan, the issue of the approach of an appellate court to the findings of a primary judge was addressed:[99]

“ It is well-established that an appellate court should be very slow to interfere with credibility findings made by the primary judge but that, if it can be shown that the findings are plainly wrong, such interference is mandated. Lord Reid’s statement of the position in Benmax v Austin Motor Co Ltd,[100] is well known:

“No one would seek to minimize the advantage enjoyed by the trial judge in determining any question whether a witness is or is not trying to tell what he believes to be the truth, and it is only in rare cases that an appeal court could be satisfied that the trial judge has reached a wrong decision about the credibility of a witness. But the advantage of seeing and hearing a witness goes beyond that: the trial judge may be led to a conclusion about the reliability of a witness's memory or his powers of observation by material not available to an appeal court. Evidence may read well in print but may be rightly discounted by the trial judge or, on the other hand, he may rightly attach importance to evidence which reads badly in print. Of course, the weight of the other evidence may be such as to show that the judge must have formed a wrong impression, but an appeal court is and should be slow to reverse any finding which appears to be based on any such considerations.”

In Ting Kwok Keung v Tam Dick Yuen,[101] having cited that passage and others to like effect, Mr Justice Bokhary PJ identified the proper approach of the appellate court as follows:

“The question for the Court of Appeal is whether, even though it does not enjoy the advantages enjoyed by the trial judge who received the evidence at first-hand, it is nevertheless satisfied that his conclusion on the facts is plainly wrong. The Court of Appeal should intervene if so satisfied. But if not so satisfied, the Court of Appeal should defer to the trial judge’s conclusion even if in some doubt as to its correctness.” ”

118.  Subsequently, the Supreme Court of the United Kingdom in the successive cases of McGraddie v McGraddie [2013] UKSC 58 and Henderson v Foxworth Investments Ltd and Anor [2014] 1 WLR 2600 addressed the test of “plainly wrong” in the context of an appeal stricto sensu (where there is an error on the record). Lord Reed gave the judgment of the court in both cases, and in Henderson after an extensive review of the relevant authority when analyzing the “plainly wrong” test, concluded:

“67. It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the marking of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”

119.  With these principles in mind, we now turn to consider the grounds of appeal.

Ground 1: The judge’s failure to analyse the defects in the evidence of the prosecution witnesses

120.  Mr Haynes submits a variety of complaints in relation to the judge’s analysis of the evidence of X and N and his treatment of X as a witness.  He identifies as the central issue in this case, the credibility and reliability of the evidence of X and N.  He submits that there was a serious question as to whether X could be believed and whether N coached X to transform a vague and innocent incident to a definite and improper one in order to have the upper hand in her matrimonial dispute with the applicant. 

121.  He prefaces his submissions by pointing out that there was a two-stage delay in the making of the complaint by X.  Here he is referring to the fact that the incident occurred on 22 July 2015, but it was not until 24 and 25 August 2015 that X first mentioned it to N, and later, on 23 September 2015, when it was reported to the authorities, the day N and the two girls had left the family home and were placed in a shelter.  We note that the judge found that the elements of recent complaint were made out and no issue has been taken in relation to this matter in this appeal.[102]

122.  He further points out that the applicant is a person of good character who at the age of 59 had not been in trouble with the law, nor had it been suggested that he had a bad or improper relationship with his daughters, and therefore the offences were completely out of character.  He finally points out that there is no evidence that the applicant sought sexual gratification or that he had any perverse interests or materials, even after his personal items and home had been searched.  These latter two matters were noted and taken into account by the judge.[103]

123.  In an effort to address the numerous complaints of Mr Haynes, we have harnessed them under the following headings:

(1)   The unreliability of X’s evidence;

(2)   The judge’s treatment of X;

(3)   The conflicting evidence between X and N;

(4)   The manipulation by N to make a false accusation.

124.  We will address each of these headings by considering the specific issues or matters that have been raised by Mr Haynes, although we have felt it necessary that we should also address the applicant’s evidence for the sake of completeness. 

The unreliability of X’s evidence

125.  Mr Haynes argues that there were numerous aspects to X’s video interview and oral testimony which called into question the reliability of her recollections and the credibility of her evidence. 

126.  He complains that the evidence of X in her video recorded interview was full of inconsistency, vagueness and uncertainty.  At trial, he submitted a list of comments in relation to the video recorded interview and the audio recording, which he submits revealed serious flaws in X’s evidence.[104] The list of matters focuses on answers by X where she stated that she could not remember or did not know something or described a matter in general terms.  Whilst X had given such answers, they have to be appreciated in their proper context.  There are occasions when X is questioned about what took place with the applicant, where she commences by initially responding that she cannot remember but then goes into detail when questioned further about it. 

127.  Mr Haynes complains that the judge did not give due consideration to the flaws that he identified.  He further complains that the judge treated X too kindly and was over indulgent to her when she presented her evidence because she was a child witness.

128.  It is clear that the judge was fully aware of the need to carefully scrutinise the evidence of X before accepting it.  The judge concluded that the video recorded interview was conducted in a fair and proper manner, where the questions asked were generally non-leading and allowing X to answer them in her own way and in her own words.  The judge said:[105]

“93. X’s answers were generally simple, clear and unambiguous. When leading questions were asked, she did not just agree. Sometimes she disagreed and even corrected Miss Ling when the suggestions were incorrect (See examples at counters 398 to 399 and 412 to 413). It is quite clear that she would not simply adopt the suggestion in the questions.

94. In the interview, X was natural and relaxed.  She answered promptly and smoothly.  She did not appear to be reciting her lines.  I cannot agree with the defence submission that her evidence in the interview is full of inconsistency, vagueness and uncertainty. In my judgment, her evidence viewed in totality and context was consistent and clear.”

129.  Mr Haynes complains that in cross-examination, X did not give any detailed evidence about the “bad touchings” and responded by saying that she only remembered the time and nothing else.[106]  He went as far as to argue that there was a degree of “evasive cunning” in her answers as illustrated when she was asked why she did not ask her father to stop the first time, and why she did not tell her sister about the alleged incident, to which she responded to both questions by saying that she did not know how to answer the question.[107] He further complains that X did not answer questions and that there were protracted pauses when responding to questions. 

130.  Mr Haynes also complains that X did not respond when the applicant’s case was put to her.  With respect, that is not correct because X insisted that the touching did take place.

131.  The judge rejected the defence criticisms of X. On the evidence before him, the judge was satisfied that X was a normal and intelligent girl and went on to state:[108]

“108. … In the videoed interview and audio recording, she demonstrated her ability to resist suggestive questions. I do not accept the suggestion that she might have been subconsciously misled by N to believe what had happened to her mother also happened to her. Nor do I accept the possibility that what she described in the incident might be her dream. I am sure that she has the ability to distinguish between fact and fantasy.

109. The defence relies on some expressions used by X in the videoed interview and the audio recording to suggest that X was probably dreaming. A child has limited vocabulary. In my judgment, the expressions of “I thought it was a dream”, “I was half asleep”, “90 per cent asleep and 10 per cent awake”, viewed in context, were intended by X to convey the message that she was on the bed trying to sleep.

110. X could give the details of where and how she was touched on the three occasions and her conversation with the defendant. She woke up and went to the bathroom. The defendant also woke up to do something. The next day he apologised to her and asked her not to disclose the incident to anyone. All these logical and coherent details of the incident could not have been fantasy or a dream.”[109]

132.  We do not find that there is any substance in these complaints for they fail to take into account the entirety of X’s evidence, as well as her age and circumstances.  This was a point that was stressed by the judge in his reasons for verdict, who took into account the time that had elapsed since the incident and that a child may not be able to explain matters with the same degree of articulation and consistency expected of an adult.[110] 

The judge’s treatment of X

133.  We do not agree with Mr Haynes’ submissions that the judge treated X’s evidence unduly favourably.  As far as we are concerned, the judge approached X’s evidence as required by the relevant statutory provisions and in accordance with general principles.  We could not detect any signs of favourable treatment of X by the judge. 

134.  Of course, the fact that a witness is a child is a matter to be taken into account as well as other relevant factors when assessing and evaluating his or her evidence.  It is in the interests of the administration of justice that courts, within acceptable norms, attend to the requirements of a witness, so that his or her ability to give evidence properly and fully is not affected.  Statutory provisions are in place to address the reasonable concerns and anxieties of a child witness in a case concerning a sexual offence.  These provisions have been designed to ensure that a witness comes forward and gives evidence and feels reasonably assured that appropriate measures are in place to lessen the trauma and anxiety in giving evidence in such cases, whilst at the same time ensuring a fair trial is received by a defendant. 

135.  It is submitted by Mr Haynes that the judge had failed to observe normal legal principles designed to ensure that the trial is seen to be fair and the standards and burden of proof are observed.  He contends that the judge was seen to have a favourable state of mind towards X at a very early stage of the trial and this is evidenced by him referring to X as “the victim”.  He submits that the judge had clearly demonstrated a favourable disposition to the “victim”. 

136.  Mr Derek Wong, for the respondent, rightly points out that when the judge used the term “victim”,[111] he was not referring to X but to other victims of cases of this type.  He submits that there is no evidential basis for this complaint.  Even if the judge had on occasion used the expression “victim”, it was merely a term of reference, and could not be said to display a prejudicial state of mind against the applicant. 

137.  We agree with Mr Wong’s submissions and have no hesitation in rejecting this complaint. 

138.  From our overall assessment, the procedures that were employed and the treatment of X when she gave evidence, followed the statutory provisions and the established practices in place to deal with a child witness in a sexual offence case.

The conflicting evidence between X and N

139.  It was not disputed that the recounting by N of her childhood experience preceded X’s repetition of her complaint in the audio recorded conversation.  However, it was N’s evidence that she only related this incident from her past with her daughters on the following day, 25 August 2015, in order to prompt X to repeat the complaint. 

140.  It seems to have been accepted at trial that there were two conversations between X and N on 24 and 25 August 2015, and that on the latter occasion N recorded the conversation.  However, the defence case was that N had also told X of her childhood experience on 24 August and this is how X was encouraged to make up a similar complaint about the applicant. 

141.  Mr Haynes contends that there was a grave risk that N had provoked X’s alleged complaint by telling her about her own experience of sexual abuse when she was 13.  He argues that the judge ignored the evidence of X that it was only after N had recited her own experience of sexual abuse that she voiced her complaint.  The judge rightly rejected this submission.  He said:

“77. Mr Haynes submits that according to the evidence of X, it was after N telling her own experience of being sexually abused that X talked about the alleged incident. With respect, I cannot agree with this understanding of the evidence. I do not think that X was referring to the first day she mentioned about the alleged incident. It is apparent from the conversation recorded in the audio recording that there was a previous conversation about the alleged incident the day before.

78. Considered in the context of her evidence, when X said her mother told her story first, she was referring to the conversation recorded by N. It happened on the second day. I do not think there is inconsistency between X and N in this regard.”[112]

142.  Mr Haynes submits that there was evidence from X to support the defence case.  This is because, in X’s evidence, she seemed unable to distinguish between the two occasions in which she told her mother of the applicant’s conduct.[113]

143.  We have already examined the audio recorded conversation where N mentions at the outset her childhood experience, but as we noted from X’s responses, we are satisfied that it indicates that X was being told about N’s childhood experience for the first time.[114] 

The manipulation by N to make a false accusation

144.  Mr Haynes submits that there were “powerful ulterior motives” shared by X and N which were not duly considered by the judge.  He argues that given the history and acrimony of the marital discord between N and the applicant which culminated in the period leading up to September 2015, there was strong motivation for N to separate from the applicant which it was submitted X shared so that N and the two girls could eventually live in Vietnam.

145.  Mr Haynes points to the fact that N had previously lodged divorce proceedings on two occasions in Vietnam which were not pursued, and had rescinded her immigration sponsorship of the applicant so that he could not gain entry to Vietnam.  He also argues that the judge misinterpreted the on and off relationship between N and the applicant.  There is no doubt that the matrimonial relationship between N and the applicant had deteriorated to a point where it had broken down irretrievably.  A position that the parties had acknowledged. 

146.  The allegation by Mr Haynes that X was manipulated by N into making a false accusation against the applicant and shared N’s motives to live separately from the applicant is not supported by the evidence.  To suggest as Mr Haynes has that X had joined forces with her mother to facilitate a separation from the applicant is simply without foundation.  As we have said, there is no doubt that the marital relationship between N and the applicant had deteriorated but the evidence does not support the allegation that X was a willing participant in a false allegation of sexual assault. 

147.  N denied the suggestion that she was manipulating X to make a false allegation against the applicant so as to advance her interests in future divorce proceedings and denied mentioning her childhood incident to X on 24 August 2015. 

148.  In an effort to buttress this submission, Mr Haynes argues that the judge rejected the only meaning of X’s statements in her video recorded interview that she was there to address family problems and had to be pressed three times by Ms Ling to tell her what had happened, which was only elicited when she was asked what she had told her mother.  He contends that there was an obvious risk of contrivance which was not given due and proper consideration by the judge. 

149.  We reject this submission.  It must be borne in mind that N and the two girls had left the family home, and on the previous day had been placed in a shelter because of the matrimonial dispute between N and the applicant.  It was then that N disclosed the incident between X and the applicant to a social welfare officer who reported the matter to the police. The next day X was taken to speak to Ms Ling who did not indicate to her what it was that she wanted to talk to her about.  In light of the circumstances, it is therefore not surprising that X responded by saying that she came there because they had some family problems.  Ms Ling introduced herself to X as a social worker who talked to children and to help them, and later she said to her that something must have happened and asked her details about it.  It was then that X said that they had some family problems.  It seems clear that she was not aware of the focus of the inquiry by Ms Ling, which only emerged later that it was in regards to the alleged incident between her and her father.  The judge correctly, in our view, rejected the proposition of contrivance between X and N, and found no basis for it.[115]

150.  Mr Haynes also argues that there was an obvious risk that the first complaint was prompted by N recounting about her own experience of sexual abuse and was a rehearsal to groom X for the audio recorded conversation which he submits was designed and produced to assist her in her divorce proceedings and secure custody of her daughters.  He also complains that Ms Ling begins the video recorded interview by telling X that N will watch and hear everything and later in order to prompt X having not got a response to tell her “what happened”, asks her to tell her “what you told your mother”.  Mr Haynes acknowledges that X gradually responded but submits that she did so trying her best to remember what she had told her mother who was watching and hearing what she had to say.  He submits that the possibility of complicity between X and N, and X being coaxed into making the accusation, warranted consideration by the judge.  He also submits that N’s sexual abuse story was inexplicable and wrongly regarded by the judge as having not preceded X’s first complaint. 

151.  Again we are of the view that the judge was right to conclude as he did, that N referred to her childhood experience with her uncle only on the occasion when she recorded her conversation with X the following day.

The applicant’s evidence

152.  As already noted, the judge having found the applicant to be an unimpressive witness, rejected his evidence.  He noted that the applicant agreed in cross-examination that he said to N that he was not aware of what he was doing, and when he was aware, he stopped.  The only difference between N and the applicant on this matter is that the applicant denied ever saying that he thought X was his wife and that this exchange did not occur in the confrontation on 22 August but on 25 August 2015. 

153.  The judge noted that the applicant was asked a series of questions where it was put to him that he touched X’s private parts, that he followed X from the big bed to the small bed, and from the small bed back to the big bed, that when X came back from the bathroom she asked him to stop and the defendant said, “Okay” and “Good night”, and to all these questions he gave the same answer, “I do not recall the incident occurring.”[116]

154.  The judge observed that the applicant was particularly evasive in relation to the questions about his responses to the accusation by N.  He said:[117]

“100. First, it is to be noted that when N gave evidence about the responses of the defendant, Mr Haynes put to her that “no such thing was said by him”. What the defendant said was to the effect that if anything happened, he must have been asleep. In his evidence-in-chief, the defendant said all he replied at that time was “he did not recall such an incident.” He did not say anything else.

101. In cross-examination, the defendant was argumentative with Mr Marray about the date he was asked in respect of the defendant’s responses to N’s allegation. He repeatedly asked the prosecutor to specify the date. The date does not appear to matter. Eventually, Mr Marray asked the defendant whether he had ever said to N the words she quoted him in court. The defendant first replied he did not understand the question as he was not a lawyer. He later answered, “It wasn’t on the 22^nd … on the 25^th, yes.” He finally admitted that he did on 25 August 2015 say words to the effect that he was not aware and when he was aware, he stopped. He did not say that in his evidence-in-chief.”

155.  The judge decided not to treat the utterance of the defendant as a confession of having touched X.  This was a rather generous interpretation, given the applicant’s acknowledgment that he had said it and his inability to explain what he meant.  In any event, in our view, its significance lies in the fact that he acknowledged that an incident had taken place, or at least had not denied it having occurred, with X on the occasion alleged by her. 

Dismissal of this ground

156.  The judge in his reasons for verdict conducted a thorough and careful analysis of the complaints raised under this ground. 

157.  The assessment of the reliability and credibility of the applicant’s evidence was very much a matter for the judge, and we cannot find any apparent error or irregularity in that assessment.

158.  The allegation that X was manipulated by N into making a false accusation against the applicant, was explicitly rejected by N and there is no evidence to support it in the cross-examination of X.  It was the case that there was simply no evidence to support this allegation.  We find there is no basis to suggest the judge erred in rejecting this submission. 

159.  We have come to the conclusion that it cannot be shown that the judge was plainly wrong in addressing the complaints raised in this ground.  They all concern the weight of the evidence given at trial and the judge’s evaluation of it.  As observed by Mortimer JA in Li Chun-yue, it would be only in exceptional circumstances, where it was shown that the judge’s evaluation of the evidence was materially flawed, that this Court would substitute its own evaluation of witnesses and the evidence from a consideration of the transcript, for that of the judge who heard and saw the witnesses at trial. 

Ground 2: The judge’s misdirection on X’s refusal to confirm her video recorded interview

160.  The second ground of appeal is that the judge misdirected himself as to the potential factual significance of X’s refusal to accept the opportunity to confirm or qualify her video recorded interview which became her examination-in-chief.

161.  According to Mr Haynes, the basis of this ground is that X was invited to view the video recorded interview in order to refresh her memory but declined to do so because she could remember.  He points out that later X was shown to have difficulty recalling matters and therefore gave a false reason for not viewing the video recorded interview. 

162.  In addressing this ground of appeal it needs to be noted that the video recorded interview was admitted into evidence by leave of the court without objection from the applicant.[118] 

163.  In his reasons for verdict, the judge addressed this complaint which has been repeated before us.  He referred to the relevant statutory provisions under section 79C and to the leading authority on the subject, Chim Hon Man v HKSAR [1999] 21 HKCFAR 145.  He rightly rejected Mr Haynes’ submission that no weight should be given to the video recorded interview because X had not confirmed it.[119]

164.  As the judge explained in his reasons for verdict:[120]

“57. The weight argument of Mr Haynes, in my judgment, is only an attempt to bypass Chim Hon Man and is contrary to the spirit of section 79C. Whether or not the child swears to adopt the statement in the recording, the weight of the statement in the recording is always a matter that the court has to assess, taking into account of all the evidence and all the circumstances in the case. However, the weight of the statement in the recording would not be discounted simply because the child has not confirmed again the accuracy of the statement in court. Otherwise the whole purpose of this section will be defeated. In my judgment, this argument must fail.”

165.  Special measures have been introduced in most common law jurisdictions to ensure the reception of evidence from a particular class of witnesses in certain specified criminal cases.  Such special measures have been enacted in Hong Kong under Part IIIA of the CPO. 

166.  The reception of video recorded evidence in criminal cases is regulated by the provisions of section 79C, as supplemented by the Live Television and Video Recorded Evidence Rules and Practice Direction 9.5 dated 27 August 2015.[121]

167.  In general, section 79C permits the evidence-in-chief of an eligible witness to take the form of a video recorded interview with a police officer, or a Government employed social worker or clinical psychologist, unless the witness is not available for cross-examination, or the rules of court requiring disclosure of the circumstances in which the recording was made have not been complied with to the court’s satisfaction, or 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.  The court also retains discretion to exclude a part of the admitted recording if it is of the opinion it is in the interests of justice to do so.[122]

168.  In Chim Hon Man v HKSAR (1999) 2 HKCFAR 145, Sir Anthony Mason NPJ addressed the evidential effect of video recorded testimony under section 79C and explained subsection (7) at 156A-E:

“The effect of this subsection is to give to the statements in the recording the same effect they would have if given in evidence on oath or affirmation, thus, making it unnecessary for the child to be sworn and to adopt the statements in the recording.

It should also be noted that sub-s.(7), though requiring that the child shall be called to give evidence, contemplates that the child will be called, after the video recording has been admitted into evidence, “by the party who tendered the recording in evidence”. In other words, the recording is already in evidence and has evidential effect before the child is called to give evidence.

It follows that s.79C makes the video recording admissible and gives evidential effect to the statements which it records as if those statements had been given by the witness in direct oral testimony, without the need for the witness to be sworn or to give oral evidence adopting the statements.  Section 79C may be seen as providing for an exception to the general rule that only oral testimony on oath or affirmation may be admitted in a criminal trial.  That is the view which has been taken of comparable legislation in England (R v Day [1997] 1 Cr App R 181, R v Sharman [1998] 1 Cr App R 406).  A more accurate view of the operation of s.79C is that it makes the video recording admissible as evidence and then provides that a statement made by the child in the recording shall have the same effect as if given in direct oral testimony.”

169.  There is no requirement under the relevant provisions, rules and directions for the witness to confirm the contents of the recording.  Once the recording is admitted it becomes the evidence-in-chief of the witness.  Any statement made by the witness in the recording has the same effect as if given in oral testimony.[123] There is also no requirement for the witness to be present when the video recording is played in court.

170.  There is no substance to this ground of appeal.

Ground 3: The judge wrongly allowing the prosecution to re-examine X

171.  The third ground of appeal is that the judge wrongly allowed the prosecutor to re-examine X on matters crucial to the prosecution which did not arise from cross-examination. 

172.  The re-examination focussed on how and where X was touched by her father.[124] Mr Haynes objected to the questioning but the judge allowed it to continue. 

173.  When Mr Haynes cross-examined X, he asked her whether she could remember how the applicant touched her and she responded by saying that she could not.[125] He then questioned her about what she had told Ms Ling during the video recorded interview as to how she was touched, and confirmed with her that she indicated to Ms Ling where she had been touched.  He asked her to explain how her father touched her, whereupon she said she could not remember.  It should be noted, however, that in the video recorded interview, she gave a detailed account as to when and how she was touched by her father. 

174.  Mr Haynes finally put to X that the “bad touchings” did not occur to which she said in reply: “[T]he touching did happen”.[126]

175.  It would appear that the subject of how and where X was touched by her father did arise in cross-examination and the prosecution was therefore entitled to re-examine on it.

176.  The judge in his reasons for verdict addressed Mr Haynes’ objection to this evidence,[127] noting that X said in re-examination that she could “half” remember the incident and on that basis he reasoned that she was entitled to clarify or explain the “half” that she could remember.[128]  In any event, the judge decided not to rely on X’s evidence in re-examination, which he made abundantly clear in his reasons for verdict.[129]  There is no reason to doubt, and none is apparent, that the judge did not rely on the impugned evidence of X in re-examination when he came to consider his verdict. 

177.  We would add that there appeared to have been no irregularity when the judge allowed the prosecution to re-examine X on this subject, and it was therefore evidence before him to consider.  However, the fact that X could not remember how her father touched her when she was cross-examined, having given a description of the touching in the video recorded interview, and the apparent inconsistency between her description of the touching in re-examination and what she said in the video recorded interview, were issues which the judge addressed in his reasons for verdict.  He found that, X having not refreshed her memory, and the incident having occurred 9 months before, it was not surprising that she could not remember the details of the incident during cross-examination, and that she gave a slightly different account of the touching in re-examination.[130] 

178.  We find that the judge’s evaluation and conclusions were reasonable and justified. 

179.  There is no substance to this ground of appeal.

Ground 4: The judge wrongly rejected without reasons the defence submission of no case to answer

180.  The fourth ground of appeal is that the judge wrongly rejected the defence submission of no case to answer and failed to give appropriate reasons for doing so.  

181.  There is no substance to this ground which seeks to rely on the test of no case to answer as set out in R v Galbraith (1981) 73 Cr App R 124.  There are two limbs to the Galbraith test in order to establish that there is no case to answer.  The first limb is where there is no evidence that a crime has been committed by the defendant.  The second limb is where there is some evidence before the court, but it is of a tenuous or inconsistent nature.  In those circumstances, the court has to consider whether the evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it.  However, where the strength or weakness of the prosecution evidence depends on the view to be taken of a witness’s reliability then the court should find a case to answer. 

182.  In the present case, the application was made under the second limb, taking issue as to the credibility and reliability of X’s evidence. 

183.  After hearing submissions from counsel,[131] the judge ruled that there was a case to answer on all three offences.[132]  The basis of the judge’s decision is apparent from the record, and clear from the circumstances. In any event, the judge later comprehensively set out in his reasons for verdict why he found X to be both credible and reliable.[133] 

184.  There is no substance to this ground of appeal.

Ground 5: Unsafe and unsatisfactory

185.  At the hearing of the leave application, McWalters JA granted the applicant leave to amend the perfected grounds of appeal to include a fifth ground to the effect that by reason of the first four grounds the convictions were unsafe and unsatisfactory. 

186.  This ground fails as there is nothing of substance in the previous grounds that either individually or collectively would render the convictions unsafe or unsatisfactory. 

Conclusion

187.  In light of the nature of this appeal, we have given it our anxious consideration but, after a detailed analysis of the grounds, the evidence given at trial and the evaluation of it by the judge, we find that there is no basis for us to interfere with the judge’s verdict, and the renewed application for leave to appeal is refused.