HKSAR v. HUNG SIU YEE

HCMA 712/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 712 OF 2002

(ON APPEAL FROM ESCC 827/2002)

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J U D G M E N T

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1. This is an appeal against conviction for an offence contrary to section 125 of the Crimes Ordinance which makes it an offence for a man to have sexual intercourse with a mentally incapacitated female.

2. It was not disputed that the complainant in question was mentally incapacitated. She had an IQ of 63 and a mental age of 10 years. Given her problems, it was not surprising that she was not a satisfactory witness. Her evidence-in-chief was received by the playing of a video-recorded interview.

3. She knew the appellant. He worked as a cleaner at the place where she spent her days working in a sheltered workshop. Her story was that she was in the female lavatory when he came in. He got her into a cubicle and he thrust himself into her lower parts. In the video interview, that assertion of entry into her was one that was repeated and about which she was clear. She said that the activity caused her pain. She said that she did not know whether he ejaculated inside her or outside of her. Or rather, to be accurate, when asked that, she did not give a clear answer. She said that after the event, the appellant wiped her underneath with tissues. At one stage, when asked what part of her had been entered, she could not name it, but later in the interview - at paragraph 248 - she said it was the vagina.

4. The appellant did not give evidence at the trial. Within 24 hours, the victim had been medically examined and samples had been taken from her. No semen was found either inside or on the outside of her vagina or, indeed, anywhere else on her body. However, on the outside back of her underpants there was a semen stain which by DNA analysis resulted in a random match probability of 1 in over 38 billion. Everyone proceeded on the basis that that sperm came from the appellant.

5. Given that there was no evidence to contradict the girl called by the defence, and the finding of the DNA analysis, it is an overwhelming inference that something sexual passed between the appellant and the victim at the material time.

6. Mr Dunn, who makes his submissions in his usual careful and measured way, today limits his grounds of appeal to saying that what the prosecution could not prove here was penetration of the vagina. He bases that on the vagueness and the displayed lack of knowledge of her own anatomy that is apparent in the evidence of the victim. He points out that when she was cross-examined, she said she did not know what a vagina was, and that she said "agree" to the suggestion that a vagina could be used for defecating and that, in a demonstration in the court below, when describing her lower parts, she indicated her bottom. Those points are ones that are available to be made with some force.

7. Mr Cheung today, for the respondents, says that it is necessary, and I agree with him, to look for some support for the complainant's evidence in her assertion that it was her vagina that was penetrated. The respondent points to that which the Magistrate readily identified, and which is apparent to me, namely that support was to be found in the evidence of Dr Poon. On examination, he found a 5-millimetre long, superficial linear abrasion with a reddish raw base at the posterior forchette of the vagina. The Magistrate took that piece of evidence, along with the fact that the victim had asserted that it was painful and she had felt pain when the insertion took place, and he then, on that basis, inferred that the insertion had been of the vagina.

8. Mr Alex Ng, who defended ably below and who appears with Mr Dunn here today, cross-examined Dr Poon. His suggestion was that an injury such as that could have been caused by the lady cleaning herself. Dr Poon could not exclude that as a possibility but he said the injury was most likely caused by the insertion of something, such as a penis, into the vagina, and it was less likely to be caused by cleaning. He justified that opinion by pointing out that, in cleaning, it is the anterior, the front part of the private parts that are touched and not the back part, whereas the injury to the back part is what you would expect from the insertion of a penis in circumstances such as the complainant described. In my judgment, the Magistrate was quite entitled to draw the inference in question, and it is one that I would draw.

9. However, that is not the end of the issue because it was the fact that, in fingernail scrapings taken from the complainant's left hand, there was a stain which gave a positive reaction to a chemical test for blood. The DNA typing of that stain indicated that it was the blood, in effect, of the victim. There was a 1 to 13 million random match. What Mr Dunn argues is this: he says that no one appreciated the true significance of this at the Magistrates Court. It did not figure in the argument there. He says that it is on the cards that this lady, by scratching herself, caused the abrasion to her private parts that I have already described.

10. Looking at that piece of evidence against all the circumstances existing here, it does not, in my judgment, stop the inference that the penetration was of the vagina running. The age and the extent of the stain are not dealt with. The fingernail scrapings were not taken until the early hours of the morning following the day of the incident, the incident taking place at 3 pm. It is not as if the findings of the expert in this regard demonstrated what one might call a bloody fingernail. It is merely described as a stain. One can well imagine that stain getting there by merely scratching a spot or something like that. It may have got there by the lady touching the abrasion, to which I have already referred, on her private parts.

11. Even though it is attractively argued by Mr Dunn, the fact is that putting this piece of evidence in the scales, does not persuade me that it is unsafe to draw the inference, given the evidence of the girl as to feeling pain and the injury described by Dr Poon which was - and I use his words - "a very fresh injury".

12. Finally, I think one is entitled, and the Magistrate would have been entitled, to consider the general situation here. Given the Magistrate accepted - I can quite see why he did - that the complainant was right when she said there was some insertion, the vagina is, frankly, a more natural object of attention in that regard than the anus. Whilst I appreciate the description that the victim was able to give was limited due to her mental incapacity, the fact is one may have expected a greater indication of pain if the insertion had been of the anus.

13. There was a very careful and thorough statement of findings made by the Magistrate, David Dufton, Esq. The only reason he did not deal with the fingernail was that it was not a matter that was argued before him. Nothing argued before me today makes me doubt his findings that the penetration was of the vagina.

14. The respondents argue today that if there had been a doubt as to the penetration being of the vagina, then the evidence called would have justified a conviction for indecent assault, the complainant being unable to consent by reason of her mental condition.

15. Mr Dunn, realistically, says that that would put him in a difficult position. There is, frankly, no ground to argue against it. He would have urged me to that course, I believe, in the hope that he could, in those circumstances, make some submissions about the length of the sentence. Whilst it is not necessary for the disposal of this appeal, and I am conscious I have not heard any detailed argument upon it, all I can say is I think he would have had an uphill task to persuade me that the sentence of 12 months was not a correct sentence even if the conviction had been for indecent assault.

16. There was a second line of attack on the conviction which is based on the fact that, at the end of the cross-examination of the victim, it was put to her that the attack did not happen. After a pause of 11 seconds, the victim said the word "agree". In re-examination, the victim said that the assault did in fact take place. The Magistrate took the very sensible step of replaying the audio recording and asking her what it was that she had agreed to. The victim said that she had not known how to answer the question. She went on to repeat her evidence implicating the appellant.

17. Whilst, on paper, a denial that the incident had taken place looks to be a good ground for an attack on the conviction, those who were there would obviously be in much the better position to judge exactly what damage had been caused by the answer. With that in mind, I turned to a transcript of the final submissions. The prosecutor immediately got up and went to the point and started to address the Magistrate about it. Mr Ng intervened and said he was not taking that point. That was realistic of him because he was there and able to judge what had actually happened. It was clear that the victim had not intentionally meant to assert that the attack had not taken place.

18. Accordingly, the order I make today is to confirm the conviction entered by the Magistrate.