HKSAR v. L.F.

DCCC 140/2023

[2024] HKDC 1471

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 140 OF 2023

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REASONS FOR VERDICT

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1.  In this case the defendant faced two counts: “Indecent Assault on another person”, contrary to section 122(1)  of the Crimes Ordinance and “Criminal Intimidation”, contrary to section 24(a)(i)  and 27 of the Crimes Ordinance, Cap 200.

2.  The prosecution’s allegation was that the defendant on the 30^th day of September 2020, indecently assaulted the victim (his 12-year-old daughter)  by touching her buttocks, moving his hand up and then reach over her shoulder and to brushing her breast over her clothes. (1^st charge)

3.  In respect of the 2^nd charge, the prosecutions alleged that in subsequent argument, the defendant pointed a fruit knife at the victim and threatened to kill her.

4.  The defendant pleaded not guilty to both charges.

5.  The defendant had a clear record. The court in considering the evidence as a whole would accept that people who have a clear record is less likely to commit crimes; and if he chose to give evidence, his words carry more weight than those who are not willing or able to put this fact before the court.

6.  It is clear, and the defence did not dispute, that being touched in the way described would amount to indecent assault to the victim. Also, someone pointed a knife at someone and pointed and threatened that he would kill that person with that knife would amount to criminal intimidation. The only issue in this case was the victim’s credibility.

7.  In this case, I remind myself that there are no physical evidence to support or suggest that this had happened. I also accept that the allegation of indecent assault is easy to make and very hard to refute; that explains the old and now archaic rule that requires corroboration in cases of this kind. Although the rule no longer applies, in this case, there is corroborating evidence.

8.  The main witness (the victim X), a 12 years old girl was the product of a failed marriage. By reasons of her mother’s mental issues, she could not stay with her mother. She was at the time taken care of by the government. She stayed in a home for children with familial issues. There was a guardian to take care of the children. The victim was also overseen by a social worker. The victim did have home leave during which she could stay with her mother in the daytime and with her father (the defendant)  at nights over the weekend.

9.  On the 30^th day of September 2022, having spent the afternoon with her mother, the victim went to stay with the defendant in his flat in Yee Kuk Street. During that evening, the defendant was visited by his friend and his girlfriend. Sometime in the evening, after the victim had taken a bath, she went on to lie down on the upper level of a double-decker bed.

10.  The defendant told her to sit up, saying that sleeping with her hair wet would be bad for her health and offered to blow dry her hair. During the process, the defendant stood on the lower deck of the double bunker and blew dry her hair. The victim was facing the window with her back to her father, the defendant.

11.  She felt that the defendant touched her buttock and moved his hand up along her back and then reached over her shoulder and touched her breast over her garments. The victim was for a moment frozen and stunned, shocked and disgusted.

12.  She immediately told him to stop, lied down facing away from the defendant and covered herself with a quilt. The defendant then spanked her once on her buttock.

13.  Later on in the evening, the victim went into a heated argument with the defendant over money, during which the victim threatened to kill herself. Whereupon the defendant pointed a fruit knife at her, asking her to do it with that knife, if not, he would kill her himself. He then made a thrusting motion with the knife towards the victim.

14.  The knife did not come into contact with the victim but she nonetheless felt scared. Afterwards, the defendant’s girlfriend offered to take her out of the apartment to cool down. While outside in the street, the victim took a taxi to go to mother’s.

15.  The evidence in chief in this case was in the form of a recorded interview, during which the victim gave a clear account of what had happened. She had shown her ability to understand the difference between the truth and a lie. During the cross examination, she told the court that she had called her mother before arriving so that her mother could pay for the taxi, but the mother in her evidence stated otherwise it was the victim who paid for the taxi fare.

16.  The victim was otherwise unshaken under cross examination. Her words were corroborated by audio messages that she gave to her guardian, one Auntie Fromy. From around midnight, she gave a couple of messages to Auntie Fromy to the effect that she was touched by her father and she could not stay at her father’s home, she was scared. The audio messages were played in court. It was clear from the sound of her voice that she was emotional in distress.

17.  The victim’s version was also corroborated by that of her mother. All the evidence was so consistent with the victim’s account that I found the inconsistencies over who paid for the taxi fare insignificant; I chose to believe in the version of the victim, as it was consistent with her sending pictures of the taxi to her mother so that the latter could go down from her home to pay for the taxi and take her up to her mother’s place.

18.  It had been suggested that the victim had a reason to get away from the defendant. There was no evidence to support that contention. The defendant did say under caution that none of the alleged conduct taken place.

19.  What the defendant did admit was that he had spanked his daughter’s buttock once for misbehavior. If it was not done in a sexual way but as a disciplinary measure, albeit not being an acceptable means of discipline by contemporary standards, it would not be sufficient to prove indecent assault. However, as the defendant did not give evidence and that part of the exculpatory evidence was just something that the court should take into consideration in considering the inculpatory part.

20.  By choosing not to give evidence and not calling evidence in his defence, the defendant was only exercising his right. In the absence of evidence to support the abovementioned contention, ie: the girlfriend accompanied the victim downstairs and the defendant gave money to the victim to send her out to buy something, I had no evidence to make a finding to this effect.

21.  There was no evidence to contradict the victim’s account or to help the court to interpret the facts in a different light. The court could only look at the facts of the prosecution in the most favourable light for the defence in order to see whether the prosecution has proved the case beyond all reasonable doubt.

22.  In my view, the prosecution had succeeded. The victim had given a clear and unshaken account of what had happened that night which had obviously amount to a case of indecent assault and also a case of criminal intimidation. For these reasons, I found the defendant guilty of both counts.