HKSAR v. S. R. M.

DCCC 755/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 755 OF 2015

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REASONS FOR VERDICT

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The Charges and Pleas

1.  The defendant appeared before me facing 3 charges of Indecent Assault (Charge 1 to 3).

2.  All 3 charges concern X, a boy born on the 31 December 2002.

3.  All 3 offences allegedly took place in a flat in Kwai Chung where X lived with his parents and elder sister since birth.  The defendant worked as a live-in domestic helper for X’s family when the offences allegedly took place.

4.  Charge 1 allegedly took place on a day unknown between 1 July 2011 and 31 August 2011.  X was about 8 years and 7 months on 1 July 2011.

5.  Charge 2 allegedly took place on a day unknown between 1 July 2011 and 31 August 2011, on an occasion other than that as particularized in Charge1.  The Prosecution says Charge 2 took place 1 week after the defendant committed Charge 1.

6.  Charge 3 allegedly took place on a day unknown between 1 July 2011 and 26 March 2013, on an occasion other than that as particularized in Charge 1 and 2. X was aged about 10 years and 2 months on 26 March 2013.

7.  The Defendant pleaded not guilty to all charges.

The Prosecution Case

8.  As said, it is the Prosecution case that the defendant indecently assaulted X in the flat that X’s family resided when she worked as a domestic helper for X’s family.

9.  X was 8 years and 7 months old when the first incident of indecent assault (Charge 1) took place, the second incident of incident assault (Charge 2) took place one week after the first incident.  Charge 1 and 2 took place during the summer vacation and X was home alone with the defendant.  Both Charge 1 and 2 took place on the bunk bed inside the bed room of the defendant.

10.  The Prosecution says the defendant had indecently assaulted X on numerous occasions during the period between 1 July 2011 and 26 March 2013.  On one occasion, the defendant indecently assaulted X in the toilet, that incident is the subject matter of Charge 3.

11.  On all occasions, the Prosecution says the defendant would remove the pants of X and then her own pants.  She would then molest the penis of X, position her vagina against the penis and cause a penetration.

12.  X did not make any complaint until about the indecent assaults by the defendant until 1 July 2015.

13.  The Prosecution case depends on the evidence of X.

The Admitted Facts

14.  Facts which are not in disputes are admitted pursuant to Section 65C of the Criminal Procedure Ordinance, Cap 211.  It is admitted that:-

(i) X (“PW1”) was born on 31^st December 2002;

(ii) X lived with his mother Y (“PW2”) and father Z (“PW3”) and sister in a flat (“the flat”) in Kwai Chung since he was born;

(iii) A report was made to the police by X and his parents on 7 July 2015;

(iv) A video recorded interview was conducted with X on 9 July 2015 between 3:26 pm and 4:46 pm. The record of interview was produced as P1 and adopted as the evidence in chief of X;

(v) The defendant was interviewed by the police on 14 and 15 July 2015. She participated in both interviews voluntarily. Mr Arthur, counsel on fiat, did not seek to produce them as evidence;

(vi) 35 photographs of the flat were taken by the police on 14 July 2015. P5 is the album of the photographs;

(vii) P4 is a sketch plan of the flat drawn by the police;

(viii) The chain of evidence in respect of the exhibits is admitted; and

(ix) The defendant has a clear record in Hong Kong.

Witnesses Called by the Prosecution

15.  The Prosecution called 4 witnesses, they are:-

(i) PW1 - Boy X (X was 13 years old at the time of the trial, he gave his evidence unsworn);

(ii) PW2 - Madam Y (the mother of X);

(iii) PW3 - Z (X’s father), who is a serving police officer; and

(iv) PW4 - Dr Ho Tsz Wai, Dr Ho is a pediatrician and she gave evidence as an expert witness.

A Case to Answer and the Defendant’s Election

16.  After Mr Arthur closed the case for the Prosecution, I ruled that the defendant had a case to answer on all 3 charges.  She elected to give evidence but called no defence witness.

Witness Statements and Reference Letter Produced by Consent

17.  In addition to the exhibits produced under the Admitted Facts, two statements were produced pursuant to Section 65B of the Criminal Procedure Ordinance:-

(i) a statement made by the General Studies teacher of X in the school year 2014-2015 (P6 the original and P6a the certified translation); and

(ii) a statement made by the employer of the defendant at the time of her arrest was produced as Exhibit D2.

18.  A reference letter written by Madam Y dated 30 March 2013 was produced as Exhibit D1.

The Defence Case

19.  The defendant denied she had ever indecently assaulted X.  She said X was lying.  The defendant had no idea why X made up the story.

20.  The defendant admitted that relationship between X’s family and the defendant had all along been good.  

21.  The defendant said she is a lesbian and she is not attracted to males.  She has never been intimate with a male.  She had two lengthy same-sex relationships in Hong Kong.  She said during the period between 1 July 2011 and 26 March 2013, she was not sexually active.

Closing Submissions

22.  I am grateful to Mr Arthur and Mr Hemmings for their detailed and careful closing submissions. 

23.  I have considered all the evidence I received and submissions by counsel before my verdict.

The Evidence of Uncharged Acts

24.  It is the Prosecution case that the defendant had indecently assaulted X on numerous occasions and the three charges which the defendant faces are representative charges (Paragraph 16 of the Prosecution Closing Submissions).

25.  The video interview of X contains evidence of uncharged acts.

26.  The principles of evidence on “uncharged acts” were discussed in HKSAR v Kwok Hing Tony [2010] 3 HKLRD 769.  The Court of Appeal held in Kwok that:-

“(1) When a defendant faced an offence on an unknown date within a lengthy period of time at a location where the complainant and the defendant were often likely to meet, evidence of “uncharged acts” might lead to unfairness to the defendant because if he could not distinguish acts with which he was charged with from those with which he was not, he would not be able to present a defence to the charge.

(2) The prosecution should pay particular attention when drafting an indictment where there was evidence of charged acts and uncharged acts occurring on overlapping dates. Unless there was evidence of a special fact to validate the charged act, a defendant would find it difficult to know the date of the act with which he was charged and to present a relevant defence to the charge.

(3) The principles of evidence on “uncharged acts” were as follows (Gipp v R (1998) 194 CLR 106, R v Nieterink (1999) 76 SASR 56, R v Kostaras (2002) 133 A Crim R 399 applied):-

(a) The admissibility of “uncharged acts” depended on the individual circumstances of each case, and the court was not bound to refuse to admit such evidence by reason of its nature alone (R v M(T) [2000] 1 WLR 421, HKSAR v Chan Pui Mun (unrep., CACC 514/2006, [2008] HKEC 2071) applied; R v Pettman (unrep., English Court of Appeal, 2 May 1985) considered);

(b) Even though such evidence was not used in a particular case as identification evidence of the defendant, or as similar fact evidence to prove that the defendant had committed the offence charged, or by the defendant to challenge the credibility of the complainant, the court could still admit evidence of “uncharged acts” if its refusal to do so would result in the jury having an incomplete or incomprehensible account of events, in circumstances including:-

(i) To prove the setting and context in which the offence occurred; or

(ii) To explain the defendant’s confidence in repeating the offence; or

(iii) To explain unusual acts on the part of the complainant (such as the lack of surprise or fear, or the lack of complaint, or acts of acquiescence) or;

(iv) To explain why the complainant was unable to recall the specific date and details of the offence charged.

(c) The court should refuse to admit evidence of “uncharged acts” if it considered that the prejudicial effect outweighed its probative force;

(d) However, if the court admitted evidence of “uncharged acts”, when directing the jury on such evidence, the judge should be alert to two points namely: (i) the standard of proof; and (ii) the use to which such evidence could be put;

(e) In general, the standard of proof for evidence of “uncharged acts” was beyond reasonable doubt;

(f) The use to which such evidence of “uncharged acts” could be put include explaining the nature of relationship between the defendant and the complainant as well as the matters set out in (b) above, but the judge must specifically remind the jury that they might not infer from such evidence that the defendant had committed similar offences, or that he was the sort of person likely to commit the offence.

27.  In the present case, although Mr Hemmings argued that the three charges faced by the defendant are not “sample charges” (Paragraph 2 of the Defence Closing Submissions), he took no issue with the admissibility of the evidence of uncharged acts referred to in the video recorded interview of X, in fact, Mr Hemmings summited that the evidence of uncharged acts is relevant to the credibility of X (Paragraph 3 of the Defence Closing Submissions).

28.  I am satisfied that the inclusion of the evidence of uncharged acts in the present case would not lead to unfairness to the defendant.  It is not in dispute that the main duty of the defendant during the time she worked for the family was to take care of X during the daytime when both Y and Z were out for work.  The case of the defendant is that she had never indecently assaulted X throughout the period she worked as a domestic helper, not that she did not have the opportunity to do so.

29.  Charge 1 allegedly took place on a day in the summer vacation of 2001.  Charge 2 concerned the second occasion that the defendant indecently assaulted X, Charge 2 allegedly took place one week after Charge 1.  Charge 3 concerned the only occasion that X said the defendant indecently assaulted in the toilet.  I am satisfied that the defendant should have no difficult to know the approximate date of the alleged indecent assault with which he was charged and to present a relevant defence to the charge.

30.  In my judgment, the evidence of the uncharged acts should be admitted in order to show a complete and comprehensible account of events.

31.  The evidence of uncharged acts which allegedly took place after first two incidents (the subject matters of Charge 1 and 2) is relevant to show the setting and context in which Charge 3 took place. 

32.  The evidence of uncharged acts which allegedly took place after first two incidents (the subject matters of Charge 1 and 2) is relevant to explain the defendant’s confidence in repeating the offence (ie Charge 3).

33.  The evidence of uncharged acts is also relevant to explain the unusual acts on the part of X, ie his lack of complain.

34.  The evidence of uncharged acts which allegedly took place after first two incidents (the subject matters of Charge 1 and 2) is relevant to explain the inability on the part of X to recall the specific date and details of Charge 3.

35.  The evidence of uncharged acts which allegedly took place after first two incidents (the subject matters of Charge 1 and 2) can be used to explain the relationship between the defendant and X.

36.  It is for the Prosecution to prove beyond reasonable doubt that the uncharged acts which allegedly took place after first two incidents (the subject matters of Charge 1 and 2) had in fact taken place.

37.  I would not infer from the evidence of uncharged acts that the defendant had committed similar offences, or that she was the sort of person likely to commit the three offences under complaint.

Recent Complaint

38.  I agree with paragraph 20 of Mr Arthur’s Closing Submissions.  In determining whether the complaints made by X to his parents (Y and Z) should be accepted as recent complaint, I should not adopt a literal application of the word “recent”, nor should I consider the notion of “recent” in vacuum ie to only consider the temporal proximity between the occurrence of the offence and the making of the complaint.  This court should take into account all relevant facts and circumstances of the case including the subjective situation in which X was placed and factors that were operating on the child at the material time after the events.

39.  In considering whether the complaints made by X to his parents on 7 July 2015 amount to recent complaint, I have borne in mind the youthfulness of X.  X had a fear of pregnancy and he panicked after he was taught the subject of animal reproduction at school.  X’s fear over the matter is supported by the evidence of Y, on 7 July 2015, X was emotionally very unstable and upon probing by Y, he confided that he had committed a crime.  The boy’s understanding of the wrongfulness of the alleged assaults on him was obviously limited as he told his mother that he himself had committed a criminal offence as a result of what the defendant had done on him.

40.  I also find that the ability of X to make a complaint to his parents was more inhibited as we can see from P6, the statement of the teacher who taught X General Studies, the subject of animal reproduction was only taught to X sometime in January 2015 (See P6, the statement of the teacher).  From the evidence of the mother, it is clear that not until the time the parents had to prepare X for school examination they did a revision with X over the topic of animal reproduction, before the revision and the short discussion, the parents had not discussed the topic of animal reproduction with X.  

41.  I agree with Mr Arthur that “the temporal proximity between the last of the series of incidents and the complaint to his mother was a time span of about 2 years and 3 months. However, it was not actually until January 2015 that he realized that he had been violated and he further explains his failure to complain until the conversation with his mother on ^h July 2015.  At that time, he was still not an adult – he was still a young juvenile aged 12 years 7 months.” (Paragraph 24 of the Prosecution Closing Submissions) 

42.  X was cross-examined about why it took him over 2 years to make a complaint to his parents.  X explained that he did not tell his parents what had happened as he was afraid that the defendant would leave her employment, he failed to complain also for the reason that he was scared and he did not know how to tell his parents.  In my judgment, X’s failure to complain should be considered in the light of his age and understanding of the nature of things that had happened on him.  I accept the evidence of X as to why he did not make a complaint before 7 July 2015.

43.  On 7 July 2015, X went to school with Y for the school placement allotment result.  The two then went to a McDonald Restaurant for meal.  Y noticed that that X was emotionally unstable, he did not want to eat and asked to go home.  After they returned home, Y had a discussion with X and it was then X uttered “I committed a crime.”  He did not want to talk about what crime he had committed and he explained why he did not want to do so.  After some comforting words by Y, X said “Che Che (the defendant) did something to me.” (“姐姐搞我”) Y asked X a leading question “Did she have sexual act with you?”  X then cried and answered “Yes.”

44.  It is clear from the above that the “yes” from X which confirmed the preceding question by Y came from a leading question.  I would not take the answer as a recent complaint.

45.  Mr Arthur submitted that even the leading questions are put aside, the court is still left with the very real compliant that “Che Che did something to me.”

46.  It is the Prosecution case that the indecent assaults by the defendant on X took place on numerous occasions, it is impossible to discern from the utterance “Che Che did something to me” whether X was talking about the 3 occasions which are the subject matters of Charges 1 to 3 or some uncharged acts.  Furthermore, bearing in mind the time lapse between January 2015 and 7 July 2015, I am not prepared to take the utterance of “Che Che did something to me.” made by X to his Y as recent complaints.  What X told his father took place after the conversation with Y and the aforementioned leading question asked of X by Y. 

47.  The evidence that X complained to his parents on 7 July 2015 is admissible to explain why a report to the Police was made by X and the parents on 7 July 2015.

48.  The above discussion on recent complaint does not impugn on the credibility on X’s evidence.  During the time the defendant was in the employment of the family, X did not want the defendant to leave the household and he fear of the defendant leaving him overwhelmed any thought of complaining to his parents.  He was only a very young boy at the time the alleged offences took place.  After he was taught the subject of animal reproduction in January 2015, he just felt there was “something in his heart’, he did not know how to describe it but the stress he had made him not to tell his mother.  He was panicked as he was afraid that pregnancy might result from what had happened previously.  In my judgment, it is not unreasonable for a boy like X that he would allow himself to suffer the fear and panicked for long period of time until the matter reached a breaking point.  The matter reached a breaking point on 7 July 2015 when Y spoke to him about the school placement result and asked him his apparent unhappiness.

The Evidence of X

49.  It is not in dispute that the relationship between X’s family and the defendant had all along been good.  The defendant left her employment with X’s family on good terms.  In fact, after the defendant had left her employment with X’s family in March 2013, Y invited the defendant to have a gathering with the family in December 2014 for the celebration of Christmas and the birthday of the defendant, which falls on 30 December.  There is no reason why X, a boy of 13, should make up the allegations against the defendant in July 2015 when the defendant had left the family for more than 2 years.

50.  I treat the evidence of X with extreme care.  By its very nature, an allegation of sexual assault is easy to make up but difficult to rebut.  I am also aware that X gave his evidence unsworn.

51.  I have borne in mind all the criticisms that Mr Hemmings made of X.

52.  I do not agree with Mr Hemmings that “The juxtaposition of PW1 and the defendant as described by the boy during the alleged sexual assaults is anatomically impossible.” (Paragraph 13 of the Defence Closing Submissions) 

53.  X, when cross-examined on the issue, said when the indecent assaults on the bunk bed took place, he was lying on the lower deck of the bunk bed, with his body lying across the bed horizontally, his head facing the window and his feet facing the door.  He testified that his legs were apart but he could not remember if his feet were on the floor.  His buttock almost reached the edge of the bed.  The defendant was in between his two legs, leaning over.  When X’s penis inserted into the private parts of the defendant, the defendant supported her body with her hands, which were on both sides of X.

54.  For the incident in the bathroom, X said under cross-examination that he was sitting on the toilet seat with his back against the cistern.  The defendant leaned against X with her hands on the cistern.  X’s legs were apart and the defendant’s legs were in between X’s.

55.  With respect to Mr Hemmings, I do not think the aforesaid evidence given by X shows that the assaults in the bed room and the bathroom as described by X were anatomically impossible.

56.  Mr Hemmings criticized X for his failure to tell which part of the defendant’s body came into contact with his body (Paragraph 3 of the Defence Closing Submissions)  Mr Hemmings was then cross-examining X about the indecent assaults in the bed room.  One should bear in mind that X testified during cross-examination that during the assaults, his eyes were opened, he was looking at the ceiling and he could also see the face of the defendant.  In my judgment, if X was looking at the face of the defendant and not his private parts, it is hardly surprising that X, a young boy who was put in fear at the time of the assaults, was not sure which part of the defendant’s body touched his.

57.  There is a ring of truth in some of the details given by X, eg he woke up late as it was the summer vacation and he did not have to go to school (82), the defendant closed the window curtain after she had taken off X’s pants, the room was still bright as the room door was kept opened and there was light from the corridor (219 – 227).

58.  Mr Hemmings said in paragraph 3 of his closing that, to his understanding, the incident in the bathroom (Charge 3) was the last occasion among the numerous indecent assaults referred to by X.  Mr Arthur said in paragraph 7 of the Prosecution Closing submissions that the incident in the toilet (Charge 3) was within the few months when the defendant was about to leave, Mr Arthur drew the Court to counter 732 of the video recorded interview of X.

59.  The following exchange took place between PC 2026 (A) and X (B) in the video recorded interview:-

723. A: Huh. Well, let me think again to see if there are any more questions to ask you. Huh. Er, the – okay, on the, the second occasion, I have nothing further. Well, the third occasion, just now, you talked about the incident inside the toilet….

724. B: Not, not sure on which occasion it was in er – er the toilet.

725. A: I see.

726. B: Anyway, there was an occasion, but as there were a number of occasions, (I) cannot remember it, I just remember the first and the second occasion.

727. A: I see. (You) just remember the first occasion and the second occasion.

728. B: But there were a number of occasions.

729. A: Mm. Huh. Well, er – the last occasion, when was the last occasion?

730. B: Cannot remember.

731. A: (You) cannot remember when the last occasion was?

732. B: I think, probably at the time, at the time, within the few months when she (was about) to leave.

60.  In the later part of the interview, X was asked again about the time when the incident in the bathroom took place:

737. A: Huh. Well, let me think again to see if there are further questions for you. Huh. That occasion in toilet, er, when was it at that time?

738. B: Probably in the morning after getting out of bed.

739. A: Mm. Er, the year, can (you) remember the year? For instance…

740. B: Cannot remember.

741. A: Er…

742. B: I, I cannot remember how many times before this occasion, and (I) cannot remember what class I was, which year, and which month either.

61.  In my judgment, the aforesaid answers given by X show that he was not sure when the incident in the toilet took place.  The incident which took place within the few months the defendant was about to leave was the last occasion X was indecently assaulted, not the approximate time when the incident in the bathroom took place.  When X spoke of the last occasion, he was not referring to the incident in the bathroom.

62.  Mr Hemmings said in paragraph 9 of the Defence Closing Submissions:-

“PW1 was perfectly clear in his evidence as to what form the alleged sexual assaults took. He said that on each occasion the defendant caressed his penis for about five minutes and then leaned over his body and placed her vagina over his penis. At all material times his penis remained soft and he had no particular sensation. She told him to insert his penis into her vagina and he did so. After that she moved up and down for about 5 minutes during which time his penis remained in her vagina. He said during each incident his penis remained soft and without any sensation.”

63.  Mr Hemmings was referring to the video recorded interview of X, not his evidence under cross-examination.

64.  My reading of the transcript of the video recorded of interview differs from Mr Hemmings.

65.  X only said his penis was soft when he was asked about the first occasion.   The following questions and answers between X (B) and the PC 2026 (A) concerned the first occasion, the officer was asking X about the condition of his penis when the defendant molested it:-

283. A: Huh. Er – well, at that time, how was your er – penis at that time? Hard, soft, or how was it?

284. B: Still soft.

285. A: Still soft, right?

286. B: Yes.

66.  The officer was then asking X about the condition of his penis when the defendant molested it.  The officer asked X about the condition of X’s penis again in counter 321 and the following exchange took place:-

321. A: Er, and then, you said that er- she leaned forward. Well, after leaning forward, she – er, what did you feel?

322. B: None.

323. A: Huh. Er, at that time, how was your penis(?) Soft, hard or what?

324. B: Still soft.

67.  On both counters 284 and 324, X was talking about the first occasion he was sexually assaulted by the defendant.

68.  He did not say his penis remained soft when he was asked about other occasions.

69.  In counters 543 to 656, the officer was asking X about the second occasion, the following exchange concerned the condition of X’s penis:-

581: A: Huh. Well, at that time, how was er- your penis? Soft, hard, or what?

582: B: Not sure, cannot remember.

70.  In other words, X did not say his penis remained soft when Charge 2 took place.

71.  When X spoke about the incident in the bathroom, he was not asked and he did not say his penis remained soft.  The only references to the condition of his penis appear in counters 853 to 858:-

853. A: Huh. Er, did (you) feel any change of temperature, for instance, er- did your penis feel hot – er, er, hotter…

854. B: Not sure.

855. A: …cooler or how?

856. B: Not sure.

857. A: Speak up.

858. B: Not sure.

72.  In paragraphs 10 and 11 of the Defence Closing Submissions, Mr Hemmings submitted that Dr Ho opined that it is impossible for a boy of eight whose penis is soft to insert his penis into an adult woman’s vagina.  Mr Hemmings submitted that in the light of Dr Ho’s testimony, the alleged sexual assaults relied upon by the prosecution could not possibly have taken place.

73.  One should also note the evidence of Dr Ho that the ability of a young male to achieve an erection is dependent on his stage of puberty at all.

74.  In my judgment, the criticisms that Mr Hemmings made of X should be read in the light of what X said in the video recorded interview, not as Mr Hemmings said in paragraph 9 of the Defence Closing Submissions.

75.  X was quite adamant that his penis had inserted into the defendant’s vagina on the first occasion. The following exchange concerned whether insertion of X’s penis into the defendant’s vagina took place on the first occasion:-

335. A: Mm. Well, er – did your penis touch her private parts?

336. B: Yes.

337. A: Huh. Did it touch the inside of her private parts, inside or what?

338. B: Inside.

339. A: Huh. That is, you felt your er – penis er - …

340. B: Inserted.

341. A: …inserted into her private parts, right?

342. B: Yes.

76.  Though X said his penis remained soft, his evidence was clear, his penis inserted into the private parts of the defendant on the first occasion.  I have considered carefully the apparent incongruity of X’s evidence that insertion took place when the penis remained soft.  I bear in mind X was only 8 years old when the first alleged sexual assault on him took place, his knowledge of life was limited and his parents had not taught him anything about sex education.  In my judgment, a young boy like X who was put in fear when he experienced a sexual assault could easily get confused about the condition of his penis.  I accept the evidence of X that he inserted his penis into the vagina of the defendant when the defendant leaned forward and positioned her vagina against the penis of X.  It follows from my findings of insertion that X’s penis must then be in a state of erection. In my judgment, the state of erection was achieved after the defendant had molested X’s penis for a few minutes.

77.  As for the second occasion and the occasion in the bathroom, I also accept the account given by X in his video recorded interview as true and reliable.  I accept that on both occasions, X’s penis had inserted into the vagina of the defendant in the manner described by X.  It follows from my findings of insertion that X’s penis must then be in a state of erection when the insertion took place on these two occasions.  As in the case of Charge 1, the state of erection was achieved after the defendant had molested X’s penis for a few minutes.

78.  In the end, I find X an honest and reliable witness.  I attach full weight to what he said in his video recorded interview and his evidence in court.

The Evidence of the Parents (Y and Z)

79.  I find the evidence of Y and Z both credible and reliable.  For the reasons given, I do not accept the evidence of X’s complaints to his parents on 7 July 2015 should be taken as recent complaints.  The complaints made by X on 7 July 2015 explain why a report to the police was made on that day.

80.  From the reference letter written by Y, it is clear that her performance was held in high esteem by the witness.

The Evidence of the Defendant

81.  The defendant has a clear record.  I have considered the statement of the employer of the defendant at the time of her arrest.  Given the good character of the defendant, she is more likely to tell the truth in her evidence and less likely to commit the three charges under complaint and the uncharged acts.

82.  Mr Arthur aptly epitomized the evidence of the defendant as a complete denial of all the allegations (Paragraph 10 of the Prosecution Closing Submissions).

83.  When the defendant was cross-examined by Mr Arthur, she said she had no idea why X should make up the allegations of repeated sexual assaults against her.  She agreed with Mr Arthur that apart from the allegations of sexual assaults, the defendant never had any concern about X being dishonest. 

84.  When the defendant was asked if she ever saw X as a boy with wild fights of imagination, the defendant could only think of an occasion when X held the telephone receiver for no reason when X was 5 years old.  I agree with Mr Arthur that the act of a 5 years old kid holding a telephone receiver is no more than an imaginative play.  The defendant said X was a freak sometimes but the only incident that the defendant could speak of was the one when X was 5 years old and he got angry for reason that she did not know.  In my judgment, it is a travesty of the true nature of events for the defendant to take the incident of X holding a telephone receiver as an example of X being a boy with wild flights of imagination and to describe X as a freak for the reason she gave us.

85.  It is not in dispute that the defendant first came to Hong Kong in 2001and started to work as a domestic helper.  Before the defendant’s employment with X’s family, she had worked for 2 households between 2001 and 2007.  She started to work for X’s family in 2007.  In my judgment, given her long period of stay in Hong Kong, the defendant’s evidence under cross-examination that she did not have luggage and she did not have a bag which could be zipped up does not have a ring of truth.

I have considered the defendant’s evidence about her sexual orientation. She said she is not attracted to males and has never been intimate with a male. Since she came to Hong Kong in 2001, she had 2 lengthy same-sex relationships. She said she was not sexually active during the period in question, ie 1 July 2011 until 26 March 2013. In my judgment, the sexual orientation of the defendant does not preclude her from committing the 3 offences and the uncharged acts in question.

The Uncharged Acts – the Findings

86.  I accept as true and reliable what X said in the video recorded interview about the uncharged acts. I am satisfied beyond reasonable doubt that the uncharged acts mentioned by X had taken place in the way X described.  The evidence of the uncharged acts is admissible only for the purposes I identified and not for any other purpose.

87.  As I said, I would not infer from the evidence of uncharged acts that the defendant had committed similar offences, or that she was the sort of person likely to commit the three offences under complaint.

Findings

88.  On the evidence before me, I am satisfied beyond reasonable doubt the following had taken place:-

In relation to Charge 1:-

(i) On an occasion when X was with the defendant in the flat on an unknown date between 1 July 2011 and 31 August 2011, the defendant threw a temper for no apparent reason and said she would not take care of X anymore. The defendant seemed to pack up as if she was leaving. X was very scared and he asked the defendant not to leave.

(ii) The defendant took X into her room and told X to lie on the bed. X did as told.

(iii) The defendant took of X’s pants and then hers.

(iv) The defendant molested X’s penis with of one of her hands.

(v) She leaned over X, positioned her vaginal against the penis of X and caused a penetration of X’s penis into her vagina.

(vi) It is not clear from the evidence if X had ejaculated.

In relation to Charge 2:-

(i) The defendant did the same to X for the second time one week later. There was on one else in the flat. She said to X that she would leave unless X would follow her into her room. X was scared as he worried that she would leave. He did as told.

(ii) The defendant did the same thing as she did on the first occasion, molested X’s penis and then caused a penetration of X’s penis into her vagina.

(iii) It is not clear from the evidence if X had ejaculated.

In relation to Charge 3:-

(i) On one occasion when X was indecent assaulted in the toilet of the flat, that occasion took place after Charge 1 and 2 but before the defendant left her employment on 26^th March 2013.

(ii) The defendant took off X’s pants, then her own pants inside the toilet. X was made to sit on the toilet seat.

(iii) The defendant molested X’s penis and then caused a penetration of X’s penis into her vagina.

(iv) It is not clear from the evidence if X had ejaculated.

Verdict

89.  On the evidence before me, I am satisfied beyond reasonable doubt that all the elements of the offence in relation to Charges 1 to 3 are proved against the defendant.

90.  For the reasons given, I find the defendant guilty of Charges 1 to 3.