HKSAR v. SRM

CACC 111/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 111 OF 2016

(ON APPEAL FROM DCCC NO 755 OF 2015)

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J U D G M E N T

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Hon Macrae JA (giving the Judgment of the Court):

1.  The appellant was convicted on 29 February 2016, following a trial before HH Judge Johnny Chan in the District Court, of three charges of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap 200. On 21 April 2016, the appellant was sentenced to an overall sentence of 4½ years’ imprisonment.

2.  On 14 March 2017, the appellant was granted leave to appeal against conviction by a Single Judge[1], having earlier abandoned her appeal against sentence.  On 13 October 2017, having heard argument from the parties, we reserved judgment in this matter.  This is our decision.

The facts

3.  The three charges against the appellant occurred between 1 July 2011 and 26 March 2013, while the appellant was employed as a domestic helper in the household of the complainant’s family.  The complainant was the male child of the appellant’s employers, having been born on 31 December 2002.  We shall refer to him throughout this judgment as ‘X’.  The appellant left her employment with X’s family in March 2013, the employers having decided that they no longer had need of a domestic helper.  They parted company on perfectly amicable terms and, indeed, met socially on occasion thereafter.

4.  The facts giving rise to Charge 1 were said to have taken place on an unknown day between 1 July 2011 and 31 August 2011, when X would have been about 8½ years old.  Charge 2 took place during the same period but about a week after the incident in Charge 1.  Charge 3 was alleged to have occurred on a day unknown between 1 July 2011 and 26 March 2013, when X would have been about 10 years old.

5.  On each of the occasions alleged in the three charges, X claimed that, when the family were out of the flat, the appellant would remove his pants and then her own pants.  She would then molest X’s penis, stand between his legs, position her vagina against his penis and cause full penetration for approximately 5 minutes.  Charges 1 and 2 took place as X lay on a bunk bed inside the appellant’s bedroom with his legs dangling over the edge of the bed: Charge 3 took place in the bathroom, with X sitting on the closed toilet seat.

6.  It was the prosecution’s case that the appellant had indecently assaulted him on numerous other occasions between the period of the first two charges and the last charge; accordingly, the three charges were said to be representative charges.

7.  In January 2015, X was taught about animal reproduction at school by his primary school teacher[2], during which lessons he came to understand what had happened to him during the period of the charges.  Accordingly, he made a report to his mother on 7 July 2015, following the release of the results of his secondary school allocation.  A report was made to the police on the same day, and a video recorded interview lasting 1 hour 20 minutes was then conducted with X by a police officer in the presence of a social worker on 9 July 2015[3].  The appellant was duly arrested on 14 July 2015.

X’s evidence

8.  The prosecution case depended entirely on the unsworn evidence of a child of tender years.  His evidence comprised the video recorded interview taken on 9 July 2015, which was treated as his examination-in-chief, as well as further examination-in-chief and cross-examination conducted in open court via live video-link.

9.  In his video recorded interview, X recalled waking up one morning in mid‑July 2011, during his summer holiday, to find the appellant looking very angry and threatening not to take care of him anymore. She was packing clothes from her wardrobe into a bag, which she then zipped up and appeared to be intending to leave.  When he pleaded with her not to leave, she took him into her bedroom, removed his pants, closed the curtains and removed her own pants.  The appellant then manipulated X’s penis with her hand for about 5 minutes, after which she leaned forward and X’s penis entered her vagina.  His penis remained inside the appellant’s vagina for about 5 minutes while she moved up and down.  Afterwards, he saw fluid on his body.  These facts formed the basis of Charge 1.

10.  A similar incident happened about a week later, the incident following the same course and sequence of events as the first occasion.  Although X testified that the same thing happened on several other occasions, usually on a Saturday or Sunday when his family members were out of the flat, the second occasion formed the basis of Charge 2.

11.  In respect of the later occasion which took place in the bathroom in 2013, X was told by the appellant to sit on the toilet seat, after which she removed his pants, took off her own pants and molested his penis, again for about 5 minutes.  She then lent towards him and told him to insert his penis into her.  His penis having inserted into her vagina, the appellant then moved up and down for about 5 minutes, after which she pulled up his pants and told him to return to the sitting room.

12.  X was asked on a number of occasions during the video recorded interview about the state of his penis during the alleged assaults.  In respect of the first assault, he maintained that he had had no physical reaction to the manipulation of his penis and that his penis had remained “soft” throughout the incident.  When asked if his penis had touched the appellant’s private parts, he said that it had inserted into the “inside” of her private parts[4]. Although he could not remember the state of his penis in respect of the second and third incidents, it seems clear, and it is accepted by both parties before us, that a plain reading of the entirety of his account would suggest that the assaults were the same in each case, as was their duration, as was his response.  At no stage did he say that his penis was aroused, or hard or had undergone any “change of temperature”, as it was also euphemistically described for him by the police officer conducting the interview.

13.  Although at trial prosecuting counsel asked some questions in examination-in-chief about the layout of the flat, he did not ask any questions about the indecent assaults themselves, nor seek leave to elaborate or clarify any of the answers X had given in the video recorded interview. However, X’s account of the assaults was directly engaged in cross-examination by defence counsel, Mr John Hemmings, who appears before us as he did on behalf of the appellant at trial.

14.  In respect of the first two incidents charged, Mr Hemmings established that, on each occasion, the appellant had stood between X’s parted legs, supporting herself with her hands on either side of his body as he lay on the edge of the bed.  X agreed that he had done nothing to assist the insertion of his penis into the appellant’s vagina, which had happened naturally as a result of her leaning over him[5]. Similarly, during the incident in the bathroom, the appellant had stood between his legs supporting herself on the cistern of the toilet as he entered her[6].

15.  X explained that, although he was scared, he did not tell his parents what had happened because he was afraid that the appellant would stop working for the family[7]. Further, he did not begin to understand what had happened to him until he attended lessons at school on animal reproduction[8].

16.  There was no re‑examination of X by prosecuting counsel.

17.  Dr Ho Tsz Wai, a paediatrician, gave evidence for the prosecution as PW4.  She had physically examined X on 7 July 2015.  She testified in cross-examination that the penis of an 8‑year‑old boy of normal development, assuming that it was in a completely flaccid state, could not penetrate the vagina of an adult woman[9]. However, in re‑examination, Dr Ho was asked in general terms if it was possible for a boy aged 8 years and 7 months to achieve a penile erection.  She said that it was possible[10].

The defence case

18.  The appellant elected to give evidence in her defence, and further produced a reference letter written by X’s mother recommending the appellant as a domestic helper[11], as well as a statement from her employer at the time of her arrest, testifying as to her good character[12]. She maintained that she had had a good relationship with X and his family, with whom she had remained in contact after she left the family’s employment; on none of these subsequent occasions did X betray any signs indicating that he was unhappy with the appellant.

19.  The appellant further testified that she was unmarried and had never been intimate with a male, because she was a lesbian. Since arriving in Hong Kong in 2001, she had had two long‑term relationships; one lasting for nine years, the other for some five years up until the trial.

20.  In cross-examination, the appellant was asked whether she could explain why X should have made up the allegations against her.  She said she had no idea.  She accepted that he did not exhibit any malice towards her and that he was truthful to his parents.  However, she insisted that he was not telling the truth about these incidents.

Reasons for Verdict

21.  The judge was satisfied with X’s explanation for the lateness of his complaint, given that he had not fully understood what was happening to him until he was taught about the reproductive process of animals at school in January 2015.  Further, he could see no reason why X should have made up the allegations against the appellant in July 2015, when she had already parted company with the family for more than two years; nevertheless, he said that he would “treat the evidence of X with extreme care”[13] and bear in the mind the criticisms that were made of X’s account.

22.  However, he did not accept the thrust of defence counsel’s argument that the description of the acts given by X was anatomically impossible[14], although he did not go into any analysis of this issue.

23.  He considered that there was a ring of truth about the details surrounding the indecent assaults, such as X waking up late, the closing of the curtains and the keeping of the door open while the assaults took place[15].

24.  As to the reliance by the defence on the fact that X’s penis remained “soft” on each occasion, the judge held that X only said his penis was “soft” when asked about the first occasion[16].  As to the second and third occasions, X said he was not sure[17]. The judge also noted the evidence of Dr Ho that the ability of a young male to achieve an erection was dependent on his stage of puberty[18].  Accordingly, the judge held, in a passage which we shall recite in full, since it forms the basis of this appeal, as follows[19]:

“75. X was quite adamant that his penis had inserted into the defendant’s vagina on the first occasion. The following exchange concerned whether insertion of X’s penis into the defendant’s vagina took place on the first occasion:-

335. A: Mm. Well, er – did your penis touch her private parts?

336. B: Yes.

337. A: Huh. Did it touch the inside of her private parts, inside or what?

338. B: Inside.

339. A: Huh. That is you felt your er – penis er - …

340. B: Inserted.

341. A: …inserted into her private parts, right?

342. B: Yes.[20]

76. Though X said his penis remained soft, his evidence was clear, his penis inserted into the private parts of the defendant on the first occasion. I have considered carefully the apparent incongruity of X’s evidence that insertion took place when the penis remained soft. I bear in mind X was only 8 years old when the first alleged sexual assault on him took place, his knowledge of life was limited and his parents had not taught him anything about sex education. In my judgment, a young boy like X who was put in fear when he experienced a sexual assault could easily get confused about the condition of his penis. I accept the evidence of X that he inserted his penis into the vagina of the defendant when the defendant leaned forward and positioned her vagina against the penis of X. It follows from my findings of insertion that X’s penis must then be in a state of erection. In my judgment, the state of erection was achieved after the defendant had molested X’s penis for a few minutes.

77. As for the second occasion and the occasion in the bathroom, I also accept the account given by X in his video recorded interview as true and reliable. I accept that on both occasions, X’s penis had inserted into the vagina of the defendant in the manner described by X. It follows from my findings of insertion that X’s penis must then be in a state of erection when the insertion took place on these two occasions. As in the case of Charge 1, the state of erection was achieved after the defendant had molested X’s penis for a few minutes.

78. In the end, I find X an honest and reliable witness. I attach full weight to what he said in his video recorded interview and his evidence in court.”

25.  The judge noted in three places in his Reasons for Verdict that the appellant could not explain why X should have made up the allegations against her.  First, as his general summary of the defence case, he noted[21]:

“The defendant had no idea why X made up the story.”

Secondly, in his evaluation of X’s evidence, the judge said[22]:

“There is no reason why X, a boy of 13, should make up the allegations against the defendant in July 2015 when the defendant had left the family for more than 2 years.”

Finally, in a section dealing with the appellant’s evidence, he noted[23]:

“When the defendant was cross-examined by Mr Arthur, she said she had no idea why X should make up the allegations of repeated sexual assaults against her. She agreed with Mr Arthur that apart from the allegations of sexual assaults, the defendant never had any concern about X being dishonest.”

26.  In respect of the appellant’s evidence, the judge found aspects of her evidence did not have the ring of truth; for example, her claim that she did not possess any luggage or bag which could be zipped up[24]. He said he had considered the appellant’s sexual orientation but found that it did not preclude her from committing the acts in question[25].

27.  The judge found all the elements of each charge proved and convicted the appellant accordingly.

Grounds of appeal

28.  On behalf of the appellant, Mr Hemmings has argued four grounds of appeal.  First, it is submitted that the judge made essential findings of fact that were contrary to the actual evidence adduced (Ground 1).  In particular, notwithstanding X’s evidence that his penis was “soft” in conjunction with Dr Ho’s expert evidence that, in such a state, an 8‑year‑old boy could not penetrate an adult vagina, the judge found that X’s penis must have been erect because he had entered inside the appellant’s private parts. Secondly, Mr Hemmings argued that the judge failed properly to consider the inherent improbabilities in X’s evidence, in particular that the acts described by him were anatomically impossible, given the state of his penis at the time and the relative positions of himself and the appellant (Ground 2).  Thirdly, it is said that the judge failed properly to consider the appellant’s evidence (Ground 3).  Fourthly, it was submitted that the repeated references by the judge in his Reasons for Verdict to the appellant’s failure to provide a reason for X to have made up the allegations against him, whilst they may have been relevant to the judge’s assessment of the complainant’s evidence, were not relevant to an evaluation of the appellant’s evidence (Ground 4).  Mr Hemmings places reliance in respect of this latter ground on the decision of the Court of Final Appeal in Wong Kwok Wang Warren v HKSAR[26].

29.  It can be seen that there is an element of overlap in these grounds of appeal.  The argument as to the improbabilities of X’s evidence and the suggestion of anatomical impossibility depends to some extent on whether the judge’s finding that there was full penetration by X into the appellant’s vagina was justified, when such a finding was made in defiance of the evidence.  Similarly, the proper evaluation of the appellant’s evidence to some extent depends on whether the judge did in fact hold against her that she could not explain why X should have made up the allegations against her.

The respondent’s submissions

30.  Mr Eddie Sean, on behalf of the respondent, argued in response to Ground 1 that the state of X’s penis was a matter of degree, and could be determined by common experience of life, without recourse to expert evidence.  To that extent, Dr Ho’s opinion was not determinative of the issue.  Moreover, the state of X’s arousal may not have been understood or appreciated by X himself at his young age, and would have depended on the circumstances prevailing at the time.  Accordingly, it was not necessarily impossible for X’s penis, whatever its true state, to have entered into the appellant’s private parts.

31.  As to Ground 2, Mr Sean submitted that it was not put explicitly to X that what he was describing was physically impossible. It was therefore unfair to make the submission now.  In any event, it could not be said that what X described was anatomically impossible.

32.  In respect of Ground 3, the respondent submitted that there was no valid basis for the contention that the judge did not properly evaluate the appellant’s evidence.  The judge had taken into account all relevant factors before arriving at his conclusion, including the appellant’s sexual orientation.

33.  In response to Ground 4, Mr Sean submitted that, although the judge did not warn himself about the limited use to which the appellant’s failure to ascribe a reason for X making up the allegations against her could be put, he should be presumed to have assessed the evidence in a professional manner in accordance with established authority.  He submitted that the failure to give himself such a warning was not necessarily fatal[27], and this Court should not interfere with a trial judge’s finding on credibility unless it was “plainly wrong”[28].

34.  Mr Sean drew our attention, in particular, to HKSAR v Singh Balwinder[29], a case involving  allegations of rape and indecent assault, where the judge’s failure to direct the jury that there was no obligation on the applicant to show that the complainant had a motive to lie did not lead to the overturning of the conviction, since the judge had properly and repeatedly directed the jury on the burden and standard of proof and instructed them that it was not for the applicant to prove his innocence.  Mr Sean’s point was that these are standard directions, which a judge of the District Court is not required to spell out and can be taken to have understood and applied correctly.

Discussion

35.  This has been a difficult appeal for this Court to resolve; not least because the verdict depended on the unsworn and unsupported evidence of a child of tender years making very serious allegations some years after the event against a domestic helper in a trusted position of unblemished character.  Nor was it an easy case for the judge to determine.  We have to say, however, that his task was not assisted by the failure of prosecuting counsel at trial (not Mr Sean) either to seek leave to clarify certain curious or objectively odd aspects of the evidence of X in his video recorded interview, or to re‑examine the witness when it became clear that cross-examination had exposed serious question marks about the feasibility or physical possibility of what he was describing.  We acknowledge that it would have required sensitivity, skill, and perhaps indulgence by all concerned, to extract from X exactly what he meant about the insertion of his penis into the appellant’s private parts and the relative positioning of the parties on each occasion, but that is the function of an experienced and competent prosecutor. It is not good enough simply to place an inherently strange and unexplained account before a judge and expect him to resolve it unaided.

36.  In this particular case, the witness could, and should, have been asked to clarify what he meant by “inserting” his penis “inside” the appellant’s private parts, whether he or she manually assisted that exercise, and how such an insertion was achieved when she was standing between his legs with her legs together.  As for the state of his arousal, it could have been explored in examination-in-chief whether the appellant’s 5‑minute manual manipulation of his penis had in fact had any effect on him.  There were also issues of respective height and relative position to explore, which could have been done delicately and in a simple way to assist X’s comprehension and avoid unnecessary embarrassment.  After all, by the time X gave evidence at trial, he was 13 years of age and capable of understanding the difference between an erect and non‑erect penis.  Yet none of these questions were asked by prosecuting counsel.

37.  In the result, the judge was left with the problem of deciding how the complainant could have achieved penetration of an adult woman’s vagina when his penis was, and apparently remained, “soft” throughout, when her legs were together and when Dr Ho, an expert prosecution witness, expressed the view that penetration in such circumstances was impossible.

38.  Had prosecuting counsel adopted the course that even if the court did not entirely accept X’s description of the insertion of his flaccid penis inside the appellant’s vagina, when she was in a standing position with her legs together, it did not mean that there had been no indecent assault on X by the appellant, this Court would have entirely understood his position.  After all, the charges were ones of indecent assault: it was not necessary that penetration be proved to sustain the charges, any more than the court was required to accept everything said by the witness.  Judges are perfectly entitled to accept some, but not all, of what a prosecution witness says, and juries are routinely given a direction to that effect.  Yet, prosecuting counsel advanced the submission in his closing address that X was “not shaken at all during cross-examination” and had emerged as “a completely credible witness”[30]. With respect, that was an optimistic submission on the evidence and failed to address the obvious implausibilities of his account as it stood.

39.  Mr Hemmings concedes that had the judge, in the circumstances, said he could not be sure of X’s claim of penetration of the appellant’s vagina when his penis was “soft”, and when she was in a standing position with her legs together, but nonetheless found that she had removed his pants, manipulated his penis and positioned herself against him in such a way as to give herself pleasure, he would still have been entitled to convict the appellant of an indecent assault.  After all, X may well not have understood the full import of what was meant by “inserting” his penis “inside” the appellant’s private parts.  However, what the judge was not entitled to do was find that X’s penis was not “soft” when he clearly said it was, or that he must have penetrated “inside” her when, on the account he gave, it would have been very difficult, or in Dr Ho’s opinion impossible, to have done so.

40.  It is clear in the paragraphs quoted from the judge’s Reasons for Verdict above[31], that the judge did accept that X had inserted his penis into the private parts of the appellant.  In making such a finding, he held that X was confused about the condition of his penis and that it was in fact not “soft” but erect.  In respect of all three incidents, the judge found that “the state of erection was achieved after the defendant had molested X’s penis for a few minutes”.  The problem with these findings is that they contradicted X’s actual evidence in his video recorded interview.  First, he said his penis was “soft” when it entered inside the appellant’s vagina.  Secondly, his evidence was that it remained “soft”, even after the appellant’s manual manipulation.

41.  It is one thing to reject part of a witness’s evidence as exaggerated or improbable or untrue: it is another to find that the witness meant the complete opposite of what he in fact said.  X had been asked specifically by the police officer conducting the video record of interview[32]:

“A: Huh. And then, five minutes, she – she molested it for about five minutes, afterwards, what happened?

B: Then she told me to insert my private parts into her private parts.

A: Mm. Well, well, after she had molested (you), when she er – molested your penis, well, did you feel anything, what did you feel?

B: None.

A: Huh. Well, er – did you have any physical reaction that sort?

B: No.

A: Huh.

B: None at that time.

A: Huh. Er – well, at that time, how was your er – penis at that time? Hard, soft, or how was it?

B: Still soft.

A: Still soft, right?

B: Yes.”

Yet, the judge found, as we have seen in respect of each incident, “It follows from my findings that X’s penis must then be in a state of erection.  In my judgment, the state of erection was achieved after the defendant had molested X’s penis for a few minutes”.  With respect, such findings were in defiance of X’s own evidence.

42.  In our judgment, Ground 1 is made out.  Mr Sean has encouraged us to find that, even if the judge was not entitled to treat the evidence as he did, we should nevertheless consider the application of the proviso to section 83(1) of the Criminal Procedure Ordinance, Cap 221, since it is clear that even without the findings as to the state of X’s arousal and his penetration of the appellant’s vagina, there was an indecent assault committed during each incident.  It is an attractive argument, which we have carefully considered, but the difficulty with it is that, the judge having made clear findings that X was erect when he inserted himself into the appellant, there was the further problem of the physical or anatomical impossibility of what X described, which forms the basis of Ground 2.  Since the judge was so convinced by X’s account and accepted that he had penetrated her with his erect penis, he did not in fact ask himself how that was possible, given their respective positions and with the appellant’s legs remaining together.  Accordingly, one of the main planks of the defence was simply not dealt with.

43.  Although Mr Sean maintains, in answer to Ground 2, that the suggestion that the physical or anatomical impossibility of what X was describing was not specifically put to the witness, he does recognise that Mr Hemmings did attempt to explore this aspect of X’s evidence by asking him to draw a sketch of the relative positions of the parties.  However, Mr Hemmings was stopped by the judge, no doubt with the best intentions of sparing X any unnecessary embarrassment.

44.  With respect, we cannot see why counsel should not have been permitted to ask a 13‑year‑old witness to draw the respective positions of the parties.  Properly and sensitively handled, it was an obvious matter to be explored.  Since prosecuting counsel did not see fit to clarify this matter in evidence, and since defence counsel was effectively stopped from examining the issue by recourse to a diagram, the whole issue was left unexplored until submissions.

45.  In the result, the judge resolved the issue by saying that he believed that X had penetrated the appellant because he was adamant that he did so.  However, the correct approach for the judge was to examine the improbabilities of what X claimed in order to determine whether this aspect of his account could be accepted and then, if it was not accepted, to determine whether that evaluation had any material effect on the rest of X’s evidence.

46.  In our judgment, this problem would not have arisen if the judge had not made the positive findings he did about the penetration of the appellant by X’s erect penis, but instead had decided, as he could reasonably have done, that the charges were nevertheless made out for other reasons.  That, however, was not his reasoning, nor was it the prosecution’s approach to the evidence.  Indeed, the judge sentenced the appellant on the basis that the indecent assaults involved the appellant having full penetrative sexual intercourse with X[33]. We have, therefore, reluctantly come to the conclusion that the appeal must be allowed on Ground 1, in conjunction with Ground 2.

47.  In those circumstances, it is not necessary for us to express a conclusive view on Grounds 3 and 4.  Nevertheless, we desire to say that judges should be careful how they regard, or are seen to regard, the failure of a defendant to ascribe a reason for a complainant making up an allegation against him or her.  Whilst the failure to do so may, in limited circumstances, be relevant to an assessment of a complainant’s credibility in determining whether or not there is any reason why he or she should have made up the allegation, judges must not give the impression that the absence of any such reason provides a justification for disbelieving a defendant’s evidence.

Conclusion

48.  For the reasons we have given in respect of Grounds 1 and 2, we allow the appeal, quash the appellant’s convictions and set aside her sentence.  Mr Sean has informed us that the respondent, in the event that we should allow the appeal, does not seek a retrial.  Accordingly, we make no order as to retrial.