HKSAR v. ASIM, UR REHMAN

HCMA 50/2023

[2024] HKCFI 1768

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 50 OF 2023

(ON APPEAL FROM KCCC 700023/2022)

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J U D G M E N T

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Appeal against Conviction

1.  The appellant was convicted after trial in the Juvenile Court of one charge of indecent conduct towards a child under the age of 16 years old. He was sentenced to a rehabilitation centre order but bail was granted pending his appeal against conviction.

2.  The particulars of the offence are that the appellant between 15 September 2021 and 15 October 2021 inside a room of a building in Yau Ma Tei, Kowloon committed an act of gross indecency towards X, a girl under the age of 16. On the day of the offence, X was either 11 or 12 years old. The appellant was 14 years old and a Form 3 student at the time.

The Prosecution Case

3.  The appellant and the victim X met at school and started dating as boyfriend and girlfriend in mid to late September 2021. They dated for about a week before the offence in question and then broke up. The allegation is that on a weekday towards the end of September or the beginning of October 2021 between 3 to 5 pm, after school, X and the appellant were alone in X’s bedroom at her home.

4.  They were playing with toys when X noticed the appellant had an erection. X mentioned it and the appellant asked X to suck his penis. He removed his pants and X performed oral sex on him. After a while, she got tired and did not like it so stopped and told him she did not want to do it anymore. He said okay and put on his pants. He then ended their relationship.

5.  The prosecution called two witnesses X and her teacher Mr Max. He was presented as a witness of a recent complaint. She spoke to him on 12 February 2022 about the incident because he was a teacher of the school and a disciplinary master of both X and the appellant.

The Defence Case

6.  The appellant elected not give evidence. The defence case was put to X. It was the defence case that they were never in a relationship, never boyfriend and girlfriend and therefore, he never broke up with X. They were friends from school that hung out together sometimes after school. Not every day, just occasionally. He did go to her house on several occasions but the helper was always present and the bedroom door was always kept open.

7.  It was the defence case that she had feelings for him but he only wanted to be friends and nothing more. It was in October during the pandemic period when schools started again with in-person classes but the appellant did not resume his friendship with X nor continued to hang out with her, which upset her. She made allegations against him because she was upset that he ignored and rebuked her. She made similar allegations against two other boys from the same school at the same time.

8.  It was agreed between the prosecution and defence that the other two boys were tried separately. There were three Juvenile Court trials and the trial of this appellant went first. I have been told by defence that the other two were charged with sexual intercourse with a girl under 16, with X. In both their trials, the boys were acquitted and X was found to be not credible by the Juvenile Magistrate.

Reasons for Conviction

9.  It would appear and the respondent does not disagree, there were discrepancies between the evidence of X and Mr Max. The magistrate rejected Mr Max’s evidence; he found him honest but not reliable. He did not find Mr Max’s evidence undermined that of the victim, X. He found Mr Max nervous to such an extent that he could not safely rely on his evidence as being accurate. In any event, the magistrate found inconsistencies pointed out by the defence immaterial.

10.  The magistrate took into account that X spoke to Mr Max some 4 odd months since the incident. However, the magistrate did not make any finding as to whether he accepted Mr Max was a recent complainant. It would appear he did and therefore accepted his hearsay evidence as admissible but rejected it as unreliable.

11.  This left only X’s evidence. The magistrate said he considered it with caution because it was uncorroborated. He repeated her answer to a question put in cross-examination. It was suggested to her that she had fabricated the incident because she was upset that the appellant rejected her feelings and love. She said she would not want to destroy someone’s life by saying that.

12.  He considered the discrepancies in X’s evidence highlighted by the defence and found none of them material. In the same paragraph, the magistrate said “what is material is whether X appreciates that she is making a serious allegation which can significantly affect the life of another person, and the allegation cannot be made unless it is the truth.”

13.  He went on to say she was firm and unshaken in cross-examination, categorically saying she would not make something up to destroy someone’s life. As a result, the magistrate found her to be honest and reliable and her evidence the entire truth.

Legal Principles

14.  It is clearly established that a magistracy appeal is conducted by way of a rehearing on the evidence before the trial court.

15.  This can be supplemented by such further evidence as the appellate court may admit within its statutory power. In this case, I have a full transcript of the proceedings.

16.  Where findings of fact are based on oral testimony of witnesses, the appellate court would be subject to limitations and must exercise caution. The magistrate enjoyed the advantage of having seen and heard witnesses giving evidence, which the appellate court does not enjoy.

17.  However, the appellate court must work with those limitations when undertaking its duty to rehear the trial to reach its own conclusion on disputed issues of fact or law. In this case, the evidence of the prosecution witnesses was materially challenged. Therefore, credibility was an issue.

18.  If the appellate court is not satisfied on the evidence of the appellant’s guilt beyond reasonable doubt then the appeal must be allowed. If the appellate court comes to a different view on that evidence, that justifies a decision to allow the appeal.

19.  What this means is that the appellate court is required to consider and weigh all the available evidence, relevant evidence and reach its own conclusion as to whether the elements of charges are proved to the requisite standard, beyond reasonable doubt.

Grounds of Appeal

20.  Mr Donald represented the appellant in his appeal. He sets out two grounds of appeal as follows;

a.  The magistrate erred in convicting the appellant by simply relying on the fact that the allegation was true because X claimed that “she would not make something up to destroy someone’s life”. The magistrate did not address, make any findings or in any way deal with the specific discrepancies in X’s evidence regarding the material details of the allegation.

b.  The magistrate erred in finding that what was material was whether complainant appreciated that she was making a serious allegation against the appellant, she knew it would significantly affect the appellant’s life and that she would not have made the allegation unless it was the truth. Therefore, the appellant’s conviction is unsafe and unsatisfactory.

Discussion

21.  Mr Donald has suggested that PW2 did give evidence of a recent complaint. 4 odd months may seem a long time but not so long that his evidence should have been ruled out in view of his position as a teacher and person in authority. He highlights discrepancies between the evidence of X and her teacher.

22.  Mr Max, the teacher, gave evidence that X told him that in early September the appellant and her had fallen in love. In late September, they had oral sex in her bedroom and in mid-October, the relationship broke up after the appellant stopped returning her messages and phone calls.

23.  In her evidence in chief which was her video recorded interview conducted with the assistance of a social worker organised by Mr Max, X gave a different version of events. She said the day after she performed oral sex on the appellant, he broke up with her. She claimed to have been heartbroken. She also agreed in evidence that she was in love with him not that they were in love with each other.

24.  She was asked in cross-examination how the appellant broke up with her. She said she could not remember if it was by a text message or a phone call. When it was suggested to her that a heartbroken person would not forget such a traumatic event, she then said she recalled he telephoned her.

25.  There was another discrepancy and that was her initial evidence in her interview that they hung out every day after school. However, in cross-examination she agreed it was not everyday.

26.  Mr Donald has suggested the magistrate was wrong to reject the teacher’s evidence outright. It appears he simply preferred the evidence of Miss X over that of the teacher. If he had found the teacher credible then the discrepancies could not have been ignored and would have created a doubt in the appellant’s favour.

27.  There were also discrepancies in X’s own evidence or inconsistencies which the defence argue were material in that they went to her credibility and the heart of the allegation. However, they were just dealt with in a perfunctory manner; found to be immaterial. They should have been addressed individually to show a proper evaluation of the evidence.

28.  However, the most serious complaint made by Mr Donald is that it would appear from the reasons given, the magistrate found her credible because she said in court that she would not frame someone, she would not make something up to destroy that person’s life.

29.  I agree that discrepancies were not dealt with or evaluated properly. Certainly not to an extent the appellant could know why they were dismissed as immaterial. It is simply not enough to say they are immaterial yet her declaration she would not ruin someone’s life was material. Material in this context means important enough to lead to the finding she was credible and the offence proved beyond reasonable doubt.

30.  This is a rehearing and knowing what I do now and that is X went on to give evidence against two other young men making similar allegations but was not believed, I can reassess the evidence and submissions made during the trial with that additional knowledge. The respondent agrees I can take into account. It is agreed that she was disbelieved in the following two trials.

31.  It is also agreed there were discrepancies. The respondent suggests they were not material and goes on to try to demonstrate that. It may well be that the discrepancies were not so material nor so serious as to affect her credibility but they must be seen to have been addressed and evaluated properly. How the magistrate came to find them immaterial should have been made known to the appellant.

32.  I have not disregarded the teacher’s evidence, I find it admissible and therefore it should have been evaluated especially as there were discrepancies in what he was told by X, what she has said in her video recorded interview and what she said in court.

33.  I am not satisfied there was a proper assessment of the evidence. It cannot be right to find her credible because she said she would not frame somebody. It cannot be right to find she therefore, did not.

34.  In my own assessment, I find the discrepancies between the evidence of the two witnesses as well as the victim’s own evidence enough to cast doubt on her credibility. Therefore, the appeal must be allowed.

35.  The appeal against conviction is allowed and the appellant’s conviction quashed. The sentence is set aside.

36.  Costs should follow the cause in this case. The cost of this appeal to be to the appellant to be taxed, if not agreed. There will be no order as to costs below.