HKSAR v. YU KWOK ON

[English Translation – 英譯本]
CACC 363/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 363 OF 2009

(ON APPEAL FROM HCCC NO. 130 of 2009)

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REASONS FOR JUDGMENT

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Hon Yeung J (giving the reasons for judgment of the Court):

Background

1.  The Applicant (Yu Kwok On) was arraigned on five counts of indecent assault (Counts 1 to 5), one count of indecent conduct towards a child (Count 6), and one count of rape (Count 7). He pleaded not guilty to all the charges and was tried before Deputy High Court Judge Derek Pang (as he then was) sitting with a jury.

2.  On 16 September 2009, the jury convicted the Applicant of indecent assault in Count 5 and indecent conduct towards a child in Count 6 but acquitted him on the rest of the charges.

3.  On 9 October 2009, Deputy Judge Pang sentenced the Applicant to 4 years’ imprisonment on each of the charges, 2 years of which were to be served consecutively, thus making a total of 6 years’ imprisonment.

4.  The Applicant was aggrieved by his conviction and sentence. Through his counsel, Mr David Ma, he applied for leave to appeal against both his conviction and sentence. At the hearing, Mr Ma informed the court that the Applicant abandoned his application against sentence, which was accordingly dismissed. His application against conviction was also dismissed after the hearing. We now give the reasons for our decision.

Prosecution case and evidence

5.  The case concerned two girls, X and Y. X, the elder sister, was born on 18 December 1987, while Y, the younger sister, was born on 28 March 1992. Between 1993 and 1994, X and Y lived with their family in Lower Ngau Tau Kok Estate. Since May 2003, they have resided at Wo Che Estate in Shatin.

6.  The Applicant is X and Y’s eldest uncle. He lived with his family in Jat Min Chuen, Shatin between 1994 and 2004.

7.  From September 2001 to July 2008, Y studied in Primary 4 to Form 4. Because of her poor academic performance, Y repeated Form 4 between September 2008 and July 2009, during which time she was absent from school for 21 days. On 23 September 2008, her teacher interviewed her to try to understand her situation. Y revealed that she had been sexually assaulted, which led to the police investigation and follow-up.

8.  The prosecution case was that the Applicant indecently assaulted X three times between 1 September 1994 and 31 December 1997 (indecent assault in Counts 1 to 3,) at X and her family’s home in Lower Ngau Tau Kok Estate and the Applicant’s home in Jat Min Chuen, Shatin. The prosecution also alleged that the Applicant had sexually assaulted Y three times, namely, indecently assaulting her twice between 1 September 2001 and 30 June 2002 and between 1 September 2003 and 31 July 2005 (Counts 4 and 5); committing an act of gross indecency towards her between 1 September 2004 and 31 July 2007 (Count 6), in addition to raping her between 1 September 2007 and 31 July 2008 (Count 7). According to the prosecution case, the locations where his sexual assaults on Y took place was Y and her family’s home in Wo Che Estate, Shatin or the Applicant’s home at Jat Min Chuen.

9.  The prosecution evidence against the Applicant mainly came from X and Y. In her evidence, X gave details about how the Applicant had indecently assaulted her on numerous occasions as alleged in Counts 1 to 3. However, X also indicated that since the Applicant moved out to live alone in Shamshuipo in January or February of 2008, she still visited him because she had little awareness of the incidents when they happened and did not therefore have any hatred of the Applicant.

10.  It was Y’s evidence that when she was in Primary 4, namely between 1 September 2001 and 30 June 2002, she was taken to the Applicant’s home in Jat Min Chuen on a certain evening. Meanwhile, when there was no adult present, the Applicant put his hand(s) under her clothing to touch her breasts. Moreover, on a certain day in 2004 or 2005, while she was taking an afternoon nap at her Wo Che Estate home, the Applicant arrived, lifted her T-shirt, fondled her breasts and reached down to touch her private parts, inserting his finger(s) into her vagina and lightly moving it (them) up and down. According to Y, in the course of it the Applicant did loosen his own trousers and put his hand inside. Eventually the Applicant withdrew his hand and re-arranged her clothes for her. He gave her $10 or $20 to buy snacks before he left.

11.  Y also gave evidence that the Applicant assaulted her on another occasion when she was in Form 1 to Form 3, i.e. between September 2004 and July 2007. She said that on that particular afternoon, only she and her younger brother were home, and she was sleeping in the double bed in her mother’s room. When the Applicant arrived at her home, he climbed into the bed, kissed her on the lips and neck before putting his hand(s) under her clothes to touch her breasts and private parts. Meanwhile he even inserted his finger(s) into her vagina. Later, the Applicant got out of bed to remove his trousers, exposing his erected penis. He put his penis in Y’s mouth and in the course of doing so, he held Y’s head in place with his hands. Y indicated her unwillingness, but she did not reject the Applicant’s conduct. She merely kept the Applicant’s penis in her mouth and let him move himself. Y indicated that the Applicant’s behaviour was very “dirty” and “disgusting”, and she found it hard to bear since she had something “thrust” down her throat. Y also testified that the Applicant had said nothing throughout and soon after he stopped his movements, he sat for a while at the sitting room and then he left.

12.  According to Y, the Applicant’s last sexual assault on her took place when she was in Form 4 for the first time, namely between September 2007 and July 2008. She said the weather was still warm on the day in question and she was wearing a short-sleeved upper garment. She thought it was a Saturday as she did not need to go to school. She said the Applicant indecently assaulted her first before inserting his penis into her private parts and moving up and down several times, which caused her great pain. Later the Applicant withdrew it and said to her, “No condom. Next time.”

13.  Y admitted that she started to skip classes in secondary school as she had too much homework and was under too much pressure. She was also repeatedly late because she overslept. She even admitted that she had sexual intercourse with a man surnamed Ho just 10 days after she had met him in mid-August 2007, and that in the following two months she had sex with Ho for a total of five times at places including her mother’s bedroom. In fact, the police found from Ho’s camera numerous video clips depicting him and Y having sex and also nude images of Y, which gave rise to Ho being charged with five counts of having sexual intercourse with a girl under 16.

14.  Y indicated that she had performed oral sex on Ho, and that she knew how to do it because she had heard her classmates describe it and had done it with the Applicant before.

15.  In response to the defence’s suggestion about her claiming that her father could not have taken her to the Applicant’s home so as to give the Applicant the initial chance to indecently assault her, Y said that she might have mixed up her father with her stepfather. Y indicated that she could not remember the date when the Applicant raped her, nor was she able to tell whether the rape took place before or after she had met Ho.

The Defence

16.  The Applicant denied all the charges brought against him by the prosecution. In giving evidence in his own defence, the Applicant described his family background. He said he had been married for 22 years and had a son aged 21 and a daughter aged 16. He indicated that his family enjoyed a good relationship with his younger sister’s family and there had been frequent contacts and mutual visits between them. In 2008, the Applicant and his wife suffered a downturn in their relationship. As a result, he moved out to live alone in Shamshuipo. Meanwhile X did go there to visit him.

17.  The Applicant testified that the relationship between his sister (namely X and Y’s mother) and her husband had also turned sour and after X and Y’s father had moved out from the family home, she met her current husband, Mr Pang, between 1999 and 2000. According to the Applicant, X turned bad later and became wayward and out of control. This, he said, caused X and Y’s mother to suffer a mild psychiatric illness. As a result, the Applicant would lecture X and Y whenever they misbehaved.

18.  The Applicant claimed that after his sister had remarried, the two families had fewer contacts but there were still mutual visits, roughly at bi-monthly intervals. In fact, during the period between 2004 and 2008, he paid an average of one visit each month to his sister’s home in order to assist her in disciplining X and Y. The Applicant stressed that he did not stay long at X and Y’s home and every time the domestic helper employed by his sister was present.

19.  The Applicant indicated that he did not understand why X and Y would make allegations of sexual assaults against him.

20.  Ms Choi, the Applicant’s former wife, also gave evidence. She said that the Applicant was not very good at getting along with his children, but he was a family man. She stressed that it was only two days before his arrest that she first heard of the allegation of improper conduct against him, namely his alleged sexual assaults on X and Y. Ms Choi said that before the matter came to light, X and Y never looked as if they wanted to avoid the Applicant, nor did they appear uneasy in front of him. Ms Choi confirmed that after the relationship between the Applicant’s sister and her husband had turned sour, the Applicant’s sister began to suffer a psychiatric illness.

21.  Ms Choi also indicated that she did not understand why X and Y would make allegations of sexual assaults against the Applicant.

Trial judge’s directions to the jury

22.  The issue involved in the case was simple. What the jury had to resolve was simply whether they were sure that all or part of X and Y’s evidence against the Applicant was true.

23.  Apart from explaining to the jury the burden and the standard of proof, the trial judge made it clear to the jury that they were entitled to accept all or part of a witness’ evidence. If they rejected part of a witness’ evidence, they must carefully consider whether the rest of that witness’ evidence was credible. The trial judge also impressed on the jury that if they found doubts in the overall evidence, if they were not sure that the Applicant had committed the crime in question, they must acquit him on the relevant charges. The trial judge pointed out to the jury that if they found that the Applicant’s version given in his defence was true or might be true, they must acquit him.

24.  After the trial judge had summed up the case and given directions to the jury, the jury raised this question: “If there is doubt about one or more pieces of evidence in respect of a certain charge, is it the case that the jury must acquit the defendant even though we are sure of the rest of the evidence? Are we permitted to evaluate the importance or significance of the doubtful evidence in relation to the case?”

25.  Having discussed with counsel on both sides, the trial judge gave further directions to the jury as follows:

“In fact it has all been mentioned in my earlier directions, I suppose.  First, I would like to repeat one point, which is that in respect of a witness’ evidence, you don’t have to either totally believe him or totally disbelieve him.  Experience tells us that people don’t necessarily talk that way, right?  Some parts are true, some are not; some parts are accurate, some are not.  It is a matter for you to decide which parts you accept and which parts you reject.  It is all right to accept part of a witness’ evidence but reject the rest of his evidence.  But do bear in mind that if you reject part of a witness’ evidence, you have to take extra care in deciding whether the rest of his evidence is credible or not.”

26.  In respect of the indecent assault in Count 5, the trial judge gave the following directions to the jury:

“For the latter, the sequence is lifting the upper garment, putting a hand inside to touch her breasts, then putting a hand under the panties to touch her private parts and inserting a finger or fingers into her vagina.  With so many acts, how are you to go about them?  The answer is, in respect of each count, if you are sure that any of the acts did happen and that it meets the definition of indecent assault, you will convict him on that count.  I needn’t say more if that is the case with two or more acts.  However, if your opinion differs in respect of a certain count, say, some of you are only sure that the defendant did one thing, such as touching her breasts, while the others are only sure that he did another thing, such as touching her private parts.  Then what should you do?  The answer is, it will be sufficient if at least five of you are sure that the defendant did any one of the things.”

Grounds of appeal

27.  Mr Ma on behalf the Applicant put forward three grounds of appeal.

28.  Mr Ma submitted that in respect of the jury’s question, the further directions that the trial judge gave were inadequate. In particular, in response to the jury’s question, “Are we permitted to evaluate the importance or significance of the doubtful evidence in relation to the case”, the trial judge’s remarks, namely,“But do bear in mind that if you reject part of a witness’ evidence, you have to take extra care in deciding whether the rest of his evidence is credible or not”, did not adequately answer the jury’s question. Counsel argued that the trial judge’s response should have at least included the following:

“a) It is certainly up to them to decide in respect of the evidence, whether they will accept or reject which part of it;

b) When making a decision to accept or reject evidence, they must bear in mind that the burden of proof is on the prosecution and the standard is beyond reasonable doubt;

c) When making a decision to accept or reject evidence, they should also carefully consider the reasons why they reject certain evidence and see whether those reasons will affect the credibility or reliability of the other evidence;

d) On the other hand, the jury should also consider if the evidence they want to reject is of any importance or significance;

e) If the evidence rejected is not important or significant and the reasons for the rejection do not affect the overall credibility or reliability, then the jury may safely disregard the evidence in question and concentrate on the remaining evidence;

f) If the evidence rejected is important or significant, the jury should be more cautious and thorough in considering the reasons why they reject such evidence and how that would affect the witness’ credibility and reliability; and

g) The jury must bear in mind that if a witness is incredible in respect of some important or significant issues (such as lying or making serious mistakes), his or her overall credibility or reliability will necessarily be seriously undermined and they should take extra care.”

29.  Mr Ma also referred to the directions that the trial judge gave to the jury in relation to the indecent assault in Count 5, namely, “some of you are only sure that the defendant did one thing, such as touching her breasts, while the others are only sure that he did another thing, such as touching her private parts. Then what should you do? The answer is, it will be sufficient if at least five of you are sure that the defendant did any one of the things.”

30.  Mr Ma stressed that the above directions might have led to one consequence, namely, even though only three persons were sure about the touching of the breasts, two persons were sure about the touching of the private parts and two persons were sure about the inserting of a finger or fingers into the private parts, the jury would still have to convict the Applicant, despite the fact that there were no more than five persons who were sure that the Applicant had committed a particular act of indecent assault.

31.  Finally, Mr Ma argued that the jury, by acquitting the Applicant on Counts 4 and 7 but convicting him on Counts 5 and 6, had returned inconsistent verdicts.

32.  Mr Ma stressed that in respect of the above four counts, all the evidence came from Y and the issue that the jury had to resolve was whether Y’s evidence was credible and could lead to a conviction. Therefore the verdicts of guilty on two counts but not guilty on the other two were both unreasonable and illogical.

Discussion

33.  After the trial judge had summed up the facts and given his directions, the basic question that the jury raised was whether they could reject the prosecution’s allegation against the Applicant on one count while accepting the prosecution evidence against the Applicant on another, and accordingly convict him on that count.

34.  In respect of the above issue, the trial judge had on numerous occasions clearly indicated to the jury that they were entitled to accept part of a witness’ evidence but reject the rest of his evidence (Lines G-J on page 12 and Lines N-P on page 27 of the transcript).

35.  The trial judge also repeatedly reminded the jury that if they rejected part of a witness’ evidence, they would have to take extra care in handling the rest of that witness’ evidence (Lines I-K on page 12 and Lines P-Q on page 27 of the transcript).

36.  Regarding the jury’s subsequent question, namely, whether they could evaluate the importance or significance of the doubtful evidence in relation to the case, the answer was also obvious.

37.  When the trial judge directed the jury that they were entitled to accept part of a witness’ evidence but reject the rest of that witness’ evidence, he also reminded them that in those circumstances, they would have to take extra care in handling that witness’ evidence to see if it was credible.

38.  The trial judge stressed to the jury that all the prosecution evidence against the applicant came from X and Y and there was no other evidence. Both X and Y were young and there might have been youthful misunderstanding. Consequently, the jury must treat their evidence with caution and they could convict the Applicant only if the prosecution made them sure that he was guilty.

39.  The issue that the jury had to resolve was simple, and the trial judge should also be straightforward and make things readily understandable to the jury when responding to their questions. We do not see any reasons why the trial judge should follow the 7 points proposed by Mr Ma in response to the jury’s question; that would only make matters complicated. In fact, the reply given by the trial judge has properly included the elements set out by Mr Ma. We do not agree with Mr Ma’s submission that the further directions given to the jury by the trial judge was inadequate or inappropriate.

40.  In HKSAR v Chan Shek-wai (CACC 472/2001), Mr Justice Stuart-Moore succinctly spelled out on page 11 of the judgment the applicable principle regarding “inconsistent verdict”:

“So far as general principle is concerned, the burden of showing that verdicts are inconsistent falls squarely upon an appellant.  Furthermore, not only must inconsistency be established but this must be shown to have been such as to call for interference by an appellant court.”

41.  In HKSAR v Chan Kai Lam (CACC 311/2003), this Court remarked that when dealing with an appeal which relied on the ground of “inconsistent verdicts”, a firm approach should be adopted. From relevant cases this Court cited the following paragraphs:

“To succeed the appellant must show, firstly, that the verdicts are logically inconsistent, secondly, that they are so inconsistent as to demand interference by an appellate court – i.e. that there is no way in which the logically inconsistent verdicts can be sensibly explained.”

“All of these directions and those to which we have earlier referred, serve to illustrate yet again the importance of according respect to the verdict given by a jury.  Having said that, obviously if the verdict amounts to what can effectively be described as nonsense, then it cannot be allowed to stand.”

42.  In HKSAR v Li King Sing Ivan [2001] 2 HKC 539, Mr Justice Stuart-Moore VP also cited two English Court of Appeal cases to show that even though a jury accepted part of a witness’ evidence and convict a defendant on a certain charge while at the same time reject the same witness’ evidence which led to a not guilty verdict on another count, that did not mean that the jury’s verdicts were “inconsistent”.

43.  In R v Ven der Molen [1997] Crim LR 604, at page 605, the English Court of Appeal said:

“…it did not follow that because the jury must have disbelieved a witness or rejected his or her evidence with the result that it acquitted on one count, it was necessarily acting irrationally to rely on the evidence of the same witness to convict on another count.  The Court had to be very careful not to usurp the role of the jury who had heard the witnesses and considered the matter long and hard.”

44.  In the following year, the English Court of Appeal also held in R v G [1998] Crim LR 483 that:

“A person’s credibility is not a seamless robe, any more than is their reliability.  The jury had to consider (as they were rightly directed) each count separately, and might take a different view of the reliability of the evidence on different counts.  It was too simplistic to draw a stark distinction between reliability and credibility (as had been put in the argument).  It was for the jury to decide on the basis of all the material before it whether it was sure of the particular allegation in each count.”

45.  Mr Ma argued that since all the evidence concerning Counts 4 to 7 came from Y, the fact that the jury acquitted the Applicant on Counts 4 and 7 but convicted him on Count 5 and 6 showed that their verdicts were inconsistent.

46.  Mr Ma’s approach to this matter was exactly in conflict with the proper approach propounded in the above cases.

47.  As submitted by Ms Sally Yam on behalf of the Respondent, the location and time of the four offences were different, and more importantly, the details that Y gave in respect of the Applicant’s sexual assaults on her on the various occasions also differed substantially. When Y described matters relating to Counts 5 and 6, she gave more details and there were special features which were also consistent with the Applicant’s evidence.

48.  We cannot overlook that fact that the offence in Count 4 took place the earliest and according to Y’s allegation, the Applicant’s children and her younger brother were all present at the time of the offence. In addition, according to Y, the Applicant’s assault on her was relatively mild and short. The jury must have given him the benefit of the doubt and acquitted him on that count.

49.  Similarly, we cannot overlook the fact that shortly after the Applicant’s alleged rape of her (Count 7), Y met a man and had sexual intercourse with him five times within a short period of time. She even allowed that man to film their sexual activities and take nude photos of her. Later Y also indicated that she was not certain whether she met the man before or after the Applicant had raped her.

50.  The jury must likewise have given the Applicant the benefit of the doubt and acquitted him on Count 7.

51.  The jury gave the Applicant the benefit of the doubt in respect of Counts 4 and 7 but at the same time convicted him on Counts 5 and 6. That does not mean that the jury’s verdicts were inconsistent. The ground of appeal put forward by Mr Ma as to the jury’s inconsistent verdicts cannot stand.

52.  In Y’s evidence, when the Applicant indecently assaulted her, he started by lifting her upper garment, then putting a hand inside to touch her breasts, before reaching under her panties to touch her private parts and insert a finger or fingers into her vagina. If any of the acts described above did happen, it would definitely amount to indecent assault. The directions given by the trial judge to the jury were that they did not have to be sure that the Applicant had done all the acts of indecent assault; as long as at least five of them were sure that the Applicant had done any of the above acts to Y, it would amount to indecent assault. The directions given by the trial judge were proper and correct and would not lead to the consequence described by Mr Ma, namely, the Applicant would be convicted of indecent assault even though only three persons were sure about the touching of the breasts, two persons about the touching of the private parts, and two persons about the inserting of a finger or fingers into the vagina.

53.  The verdicts in this case were entirely based on the jury’s assessment of Y’s evidence. The jury was given the chance to examine Y’s demeanour long and hard when she was in the witness box, and they must also have carefully considered and analyzed her evidence. The jury was entitled to accept Y’s allegation that the Applicant had indecently assaulted her and committed indecent acts against her in circumstances set out in Counts 5 and 6. We see nothing unsafe about the Applicant’s conviction in respect of the two charges.

54.  The Applicant's application for leave to appeal against conviction was dismissed.