HKSAR v. KWOK HING TONY

English Translation (英譯本)

CACC 26/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 26 OF 2008

(ON APPEAL FROM HCCC NO. 71 of 2007)

----------------------

----------------------

----------------------------------------

REASONS FOR JUDGMENT

--------------------------------------

Hon Yuen JA (giving the reasons for judgment of the Court):

1.    This appeal is concerned with evidence of “uncharged acts”, namely:

(1)     whether it is admissible;

(2)     if it is, how it should be dealt with in a judge’s directions to a     jury.

2.  On 13 May 2010, after considering submissions from counsel for the Applicant and the Respondent respectively, we gave the Applicant leave to appeal, treated the application as the appeal proper and allowed the appeal.  We quashed the conviction and ordered a re-trial.  Our reasons appear below.

Background

3.   The Applicant Kwok Hing, Tony was charged with 7 offences, the 1^st to 4^th offences involving a girl (referred to as “Y”), and the 5^th to 7^th offences involving Y’s elder brother (referred to as “X”).  X was born in 1987 and Y was born in 1991.

4.   In 1992, when X was 5 and Y was 1, the Applicant started to live together with their mother, and the two children regarded him as their stepfather.  In 2000, when X was 13 and Y was 9, the Applicant and their mother separated, whereupon the two children moved away with their mother whilst continuing to have contact with the Applicant, including visiting him at his home, which was where the two children used to live.

Charges

5.   In early 2007, the Applicant was charged with 9 offences, and after trial he was acquitted of 2 of the charges, leaving 7 charges for which the jury was unable to arrive at a verdict, leading to a re-trial.  The chronology of the 7 offences charged is as follows:

(a)    On a day unknown about a week prior to the occasion in Charge 5 between 1 April 1993 and 31 October 1994, the Applicant committed gross indecency on X (then 7 years old), the prosecution alleging that the Applicant caused X to perform oral sex on him (Charge 7);

(b)   On a day unknown between 1 April 1993 and 31 October 1994, he committed buggery with X (then 7 years old) without his consent (Charge 5);

(c)   On a day unknown between 1 September 2000 and 30 September 2000, he committed buggery with X (then 13 years old) without his consent (Charge 6);

(d)   On a day unknown between 1 September 2004 and 31 October 2004, he committed buggery with Y (then 13 years old) without her consent (Charge 1);

(e)    On a day unknown between 1 January 2005 and 31 January 2005, he had unlawful sexual intercourse with Y (then 14 years old) (Charge 2);

(f)    On 27 January 2006, he had unlawful sexual intercourse with Y (then 14 years old) (Charge 3);

(g)   On a day unknown between 1 September 2006 and 30 September 2006, he had unlawful sexual intercourse with Y (then 15 years old) (Charge 4).

Trial

6.    In December 2007, the Applicant was retried before Barnes J and a jury.  Y being then 16 years old, the prosecution used her video recorded interview as evidence in chief, and she was cross-examined and re-examined by live television link.  X, then 20 years old, gave evidence in court.

7.    At the conclusion of the trial the jury found the Applicant guilty on all charges, for which he was subsequently sentenced to a total term of  imprisonment of 18 years.  He applied for leave to appeal against conviction, for which this court granted legal aid, and he is now represented by counsel.  He has also applied for leave to appeal against sentence out of time.

Ground of appeal

8.    The only ground of appeal against conviction is that when X and Y gave evidence, they alleged that apart from the 7 offences charged, the Applicant had also carried out similar acts on them on many occasions (referred to cumulatively below as “ uncharged acts”).  Y alleged that the Applicant had committed buggery with her without her consent on some 20 to 40 occasions, and also had sexual intercourse with her on 10 - 20 occasions.  When X was cross-examined, he also said that the Applicant had made him perform oral sex on him on more than 10 occasions, and committed buggery with him on more than 10 but less than 100 occasions.  The defence referred to X’s evidence at the previous trial at which he had testified that between 1993 and 2000, the Applicant had “molested” him on about 80 occasions and, on his reckoning, on more than 100 occasions.  X admitted that he had said so.

Judge’s directions

9.    In respect of this evidence of “uncharged acts”, the judge gave the following directions to the jury [translated]:

“According to [Y], in fact buggery and sexual intercourse were not restricted to the offences with which the Applicant is now charged, she has said that there was buggery on at least 20 occasions, and even possibly 30 - 40 occasions, but at least 20 occasions.  As for sexual intercourse, there were 10 - 20 occasions.

And [X] also said that in fact there was buggery on more than one occasion, of course you must remember you can only consider and decide whether he is guilty of the 7 charges which he is now facing, that is, those are only background material, you should not say ‘I now say that buggery occurred at age 4, and that you are guilty of the offence on that occasion’, no, not so now, now our 7 charges state clearly within specific years, specific months, and where they occurred, so you can still only consider if he is guilty of the charges which he faces,but the background is that in fact it is said that these were not the only occasions”.  (Emphasis added in italics).

Further, Y had also said that the Applicant had sexually violated her at the age of 4, and the judge gave directions to the jury as follows:

“Now, you remember that [Y] said she had been sexually violated from the age of 4, she also said so in the note to the teacher, age 4, and I had told you yesterday ‘you must not say because she had mentioned age 4, you can say “look, the defendant had committed the offence at age 4"’, don’t, because the charges now do not have such an event at age 4, but only those 4 occasions, what you must consider is that what Y has come to speak about are those 4 occasions”.

Issue on appeal

10.   The issue on the appeal is whether the above directions which the trial judge gave to the jury were appropriate or adequate.

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

12.    In Chim Hon Man v HKSAR (1999) 2 HKCFAR 145, the Court of Final Appeal has held that the defendant has a right to know clearly the particular act which forms the foundation of the charge.  Sir Anthony Mason NPJ said (pp.161-2):

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

13.    At p.162, Sir Anthony applied S v The Queen (1989-1990) 168 CLR 266 which affirmed the principle that even though the case involved sexual molestation of a child over a long period of time, that does not provide an exception for the prosecution to present a specimen count.  At pp.163-4, Sir Anthony suggested how an indictment may be drawn to deal with a case where offences cannot be differentiated but which occurred over a relatively short period of time.

14.    However in our case, the 5^th charge refers to an occasion when the Applicant committed buggery with X without his consent on an unknown date within the period 1 April 1993 to 31 October 1994.  This is a period of some 1½ years, but at the same time, X also said that between 1993 and 2000, the Applicant had sexually violated him in similar ways on numerous occasions, for which he was not charged.  When there is  evidence of charged acts and uncharged acts occurring on overlapping dates, then unless there is evidence of a special fact to validate the charged act, a defendant would find it difficult to know what is the date for which act he is charged, and to present a relevant defence to the charge.  This is a point to which the prosecution should pay particular attention when drafting an indictment.

15.    Coming back to how one should deal with evidence of “uncharged acts”, counsel for the Applicant has referred us to a number of Australian cases, i.e. Gibb v The Queen 194 CLR 106, R v Nieterink (1999) SASR and Nicholas Kostaras [2002] SASC 326, among which Nieterink contains the most thorough and comprehensive discussions.

Principles of law

16.     In our view, the principles of law on evidence of “uncharged acts” derived from the above Australian cases and other English cases are as follows:

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

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

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

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

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

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

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

3. Of course the court should refuse to admit evidence of “uncharged acts” if it considers that the prejudicial effect on the defendant outweighs its probative force.

4. However if the court admits evidence of “uncharged acts”, the judge should be alert to two points when directing the jury on such evidence: (a) the standard of proof and (b) the use to which such evidence may be put.

5. (a) We consider that generally the standard of proof for evidence of “uncharged acts” should be beyond reasonable doubt.

6. (b) The use to which such evidence may be put may include explaining the nature of the relationship between the defendant and the complainant as well as the matters set out in point (2), but the judge must specifically remind the jury that they may not infer from such evidence that the defendant had committed similar offences, or that he is the sort of person with a propensity to commit the offence.

Discussion

17.   In the present case, as far as the standard of proof was concerned, the judge did not tell the jury that they must not consider such evidence unless they were sure that the “uncharged acts” had in fact occurred.

18.    Further, in directing the jury, the judge said only that the evidence of “uncharged acts” was “background” or “background material”.  Although the word “background” has been used in previous cases to describe this type of evidence (Pettman), we agree with the court in Nieterink that the use of this word is debatable.  Words such as “background” and “background material” are ambiguous and may give the jury the impression that such evidence was uncontroversial (Nieterink paras. 90-91), or may give the jury the impression that the defendant had a propensity to commit the offence (Kostaras para. 53).  On top of that, the judge’s direction to the jury that the 7 charges the defendant now faced referred to specific dates and places may have given the jury the impression that the “uncharged acts” lacked only specific dates and places.

19.    For the reasons set out above, we took the view that the judge had failed to direct the jury on the standard of proof when considering the evidence of “uncharged acts”.  The judge had also failed to give adequate directions to the jury on the evidence of “uncharged acts”, resulting in unfairness to the Applicant.

Order

20.    Accordingly we gave the Applicant leave to appeal, treated the application as the appeal proper, allowed the appeal and quashed the conviction. 

21.     The Respondent having asked for a re-trial and this not having been opposed by counsel for the Applicant, we consider that this being a serious case, there should be an order for re-trial.  It is not necessary for us to deal with the application for leave to appeal against sentence.