R. v. MAK WONG CHUEN

IN THE COURT OF APPEAL

1995, No. 771
(Criminal)

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J U D G M E N T

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Bokhary, J.A.:

1. This is an application for leave to appeal against conviction and sentence. We are now dealing with conviction.

2. The case comes to us from the District Court.

3. The applicant is a man in his mid-30's.

4. Last year, he appeared before Her Honour Judge Chu on four charges of indecent assault.

5. In the mid 1980's, he started to cohabit with the mother of the victim named in the first three charges. That victim was referred to at the trial as "the stepdaughter"; and we too will so refer to her. At the time when the cohabitation between her mother and the applicant began, she was three-years old. Sadly, her mother died in 1993. After her mother's death, she continued to live with the applicant.

6. The victim named in the 4th charge is a friend of the stepdaughter. She was referred to at the trial as "the friend"; and we too will so refer to her.

7. In the result, the judge acquitted the applicant on the first three charges following successful submissions of no case to answer thereon. But, on November 11 last year, she convicted him on the 4th charge; and, on the 24th of that month, she sentenced him to nine months' imprisonment thereon.

8. The incident the subject-matter of the charge on which the applicant was convicted took place on February 12 last year at the applicant's home.

9. That night, the friend was visiting the stepdaughter and planned to spend the night there. At the time, the stepdaughter was 13-years old, while the friend was 11-years old.

10. This is how the judge described the prosecution's evidence as to the incident and its aftermath:

"3. The prosecution case on the 4th Charge is that sometime after 11 p.m. on 11.2.95, [the friend] went to [the stepdaughter's] home in Canton Road to spend a night there. The Defendant was not at home at the time. The mother of [the stepdaughter] had passed away in 1993. The 2 girls slept on the lower bunk of a double bunk bed which was inside a room. [The stepdaughter] was on the inside and [the friend] was on the outside. On the upper bunk was the natural elder brother of [the stepdaughter], who was already asleep when [the friend] arrived.

4. After the girls got into bed, they chatted and eventually fell asleep. [The friend] said she fell into a deep sleep. Then after some time, she was waken up. When she was still half asleep and half awaken and lying in a position facing the upper bunk, she felt her left hand, which was initially placed across her left upper chest, being pulled from that position. She also felt that she was being touched on her left upper chest and slowly across to the middle of her chest near her breast bone. She opened her eyes and found the Defendant by the beside at arm's length from her. He was bending towards her and was withdrawing his hand.

5. After the Defendant went away [the friend] nudged [the stepdaughter] and called out her name to wake her up. [The friend] said she related to [the stepdaughter] what had happened and told her she was leaving. [The stepdaughter] got up and saw her off at the main door. [The friend] then walked to an address in Mongkok, which was her family used to live in before moving to Tai Po. She made several calls and paged her father as well at the management office downstairs her former residence. She managed to contact her father and she went upstairs and slept there.

6. Later in the same day, the girls saw each other again. They talked about the incident in the night at a restaurant in Tai Kok Tsui. That evening, [the friend] did not go home. She was reported missing by the Defendant. She returned home around mid-morning. In the course of enquiries into her missing by the police, [the stepdaughter] disclosed that she had been indecently assaulted by the Defendant over the past years. They are the subject matter of the 1st to 3rd Charges. [The stepdaughter] also told the WPC who took her statement (PW5) about the experience of [the friend] in the previous night. [The friend] was contacted and she confirmed it over the phone. The Defendant was subsequently arrested and prosecuted for the offences in this case."

11. A number of points were made on behalf of the applicant. We go straight to the way in which the judge dealt with the applicant's good character. She did so in paragraph 17 of her Reasons for Verdict; and that paragraph reads as follows:

"17. In reaching the conclusions, I have also directed my mind to the fact that the Defendant is a man of clear record. According to Mr. Pang Yiu-fai (DW1), the family's former social welfare officer, the Defendant had been viewed by [the stepdaughter] and his step son to have treated them well. It may be said that it is less likely for a person like him to have indecently assaulted a friend of his stepdaughter. On the other hand, the evidence suggests that, when the Defendant touched [the friend] on her breast, he was under the belief that she was asleep. This is reflected by his asking [the friend], on her opening her eyes, why she was still awake when it was so late. The act of the Defendant is not an open or overt one. It involves a touch of the breast, which was carried out in the middle of the night and in an unlit room. The room was meant to be an abode for the Defendant's family only. The Defendant was not in the flat when [the friend] went to bed and he had no means of knowing that his stepdaughter's friend was there. The circumstances of the case is not such that it is inherently improbable for a man of clear record to have committed the acts complained of."

12. Let us take first the penultimate sentence in that passage which sentence reads:

"The Defendant was not in the flat when [the friend] went to bed and he had no means of knowing that his stepdaughter's friend was there."

13. That sentence worries us as to whether the judge thought that the applicant was in the habit of indecently assaulting the stepdaughter and had indecently assaulted the friend thinking that she was the stepdaughter.

14. Mr Saw for the prosecution concedes that there is reason so to worry, for the sentence is otherwise difficult to explain.

15. Coming back to the fundamentals, however, the fact of the matter is that the direction which the judge gave herself on the relevance of the accused's good character is wholly wrong, as Mr Saw very properly concedes.

16. The question which he invited the court to ask itself was whether that error matters very much. In a case like this, it is crucial to get character right; and the judge got it wholly wrong. There is no need to consider the other grounds of appeal.

17. Treating the hearing of this application as the hearing of the appeal itself, we allow the appeal, quash the conviction and set aside the sentence.