HKSAR v. CHENG HAK PAN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.77
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant was convicted after trial before Gall J. and a jury on two counts of incest and sentenced to eight years on the first and five years on the second, the sentences were ordered to be concurrent. He now seeks leave to appeal against those convictions.

2. The first count alleged incest with his daughter Cheng Wing-ying on a day unknown between 8th June 1986 and 8th June 1989. The second count alleged incest on a day unknown in November or December 1995. In the second offence, it was alleged that the incest took place at Room 808, Hin Tak House, Hin Keng Estate, Shatin.

3. It was the daughter's evidence that the incest charged in the first count took place in the building in To Kwa Wan where her father worked cutting and polishing stones. She said that the offences occurred when other members of the family were absent.

4. The applicant's first complaint is that the judge allowed the prosecution to amend the indictment in the course of the trial. The particulars of both counts were amended. The date of the first count was amended from "a day unknown in 1989" to "a day unknown between the 8th day of June, 1986 and the 8th day of June, 1989". The second count was amended from "a day unknown in November 1995" to "a day unknown in November or December 1995". This brought the counts into line with the evidence that had been called. The applicant was gravely affected by the amendment to the first count as he could not have been convicted on the charge as it originally stood as there was clear evidence that the family had left the To Kwa Wan premises long before 1989. However this may be, the fact of the matter was that the indictment was amended to bring it to line with the evidence and no objection can be properly taken to it on that ground.

5. The second matter argued by the applicant is that the conviction is contrary to the medical evidence which was that the victim's hymen was intact. The judge directed the jury that full penetration by the male organ was not necessary and referred them to the evidence of Dr. Shum, a medical expert called by the prosecution, which left open the possibility that penetration to some degree had occurred even though the vagina was intact. There is nothing in this submission.

6. The applicant next complains of the discrepancies between the statement which the victim gave to the police and her testimony. He complains also in this regard that counsel did not cross-examine in relation to those discrepancies. He has listed six such discrepancies but none were of any significant weight. There is also nothing in this ground.

7. The matters dealt with above were the original grounds attached to his Notice of Appeal. He later filed a further five written grounds. He complains firstly of the following direction by the judge:

"A thing that may help you is her manner in the witness box. It is called demeanour. She gave evidence, you might think, in a straightforward way. She was not trying, you might think, to make her evidence stronger. Sometimes when people give a version of events, you can see they are trying to, all the time, make it a little stronger. She seemed, you might think, to give a straightforward account of what she could remember. When she could not, she said 'I can't remember'. When she could, she gave what detail she could remember."

8. He submits that the judge failed to tell the jury that they must pay attention to problems found in the contents of the evidence and wrongly directed them to look only to demeanour in court. This is not so. The judge was doing no more than telling the jury how they could properly evaluate the evidence by considering the demeanour of the witness. His observations were proper ones and he clearly left it to the jury to make up their own minds about credibility.

9. In his second additional ground, he complains that the judge "gave many pretexts and he was in favour of the witness' evidence". He submits that the judge led the jury to believe that the witness had not fabricated when in fact her evidence was untruthful. There is no merit in this contention. The comments of the trial judge were perfectly proper ones which left the jury, in the outcome, to make up their own minds as to whether or not the victim was truthful.

10. In his third ground, he returns to the medical evidence submitting that, as two doctors said that the victim had an intact hymen and as the evidence of the victim was that, although only two incidents had been charged, he had intercourse with her over 20 times, her evidence must be suspect as it is unbelievable that the hymen would have remained intact if it had been true. As we have already indicated, this was a matter for the jury and it was properly left to them to resolve.

11. The applicant next complains that the only evidence against him was that of the victim who had not reported the matter until nine years later and then only to a classmate and not to her mother. This is so but these matters were essentially jury issues and they were left for the jury's decision.

12. The applicant finally complained that counsel

"failed to follow my instructions when putting the defence case. For example, the poor relationship between my daughter and I, her usual disrespectful attitude towards me and the way she thinks of me all contributed to her accusations against me. But none of these was mentioned."

13. At the applicant's first appearance before the Court of Appeal, he expanded upon these matters saying that his lawyer had failed to follow his instructions as set out hereunder:

"1. I mentioned to solicitor that I had beaten her (the victim) up since she was very young and then she went to Secondary I and she came to know a boy friend in mainland China and since then the relationship between us turned bad.

2. Then when she was in Secondary II and Secondary III she had a lot of boy friends but this point was not mentioned by my counsel in the cross examination.

3. I instructed him to find out the name of the landlord of my premises in Kowloon City Road but he failed to do so.

4. I gave instructions directly to counsel representing me. I did so in Lai Chi Kok Reception Centre and in court.

5. In Lai Chi Kok I told him I moved out of the premises in Tokwawan in January or February 1987.

6. I told him about the relationship with my daughter when I was in Lai Chi Kok.

7. I had two counsel, Mr. Mackay and Mr. Wilson Chan. I spoke to both of them as they come at the same time together."

14. Mr. Mackay and Mr. Wilson Chan filed a joint affidavit and Mr. David Bryan of the Legal Aid Department also filed an affidavit. Mr. Bryan makes it clear in his affidavit that the matters raised in Item 3 were fully investigated. The matter raised in Item 5 was, given the lack of precision as to a specific year in the victim's evidence, of no real significance.

15. The matter of significance raised in these fresh complaints was a suggestion that the applicant had given instructions that he had beaten up the victim since she was very young and this had created a bad relationship between them and that counsel had never cross-examined in that regard. Counsel agreed that they received oral instructions from the applicant but denied that they were ever instructed by the applicant that he had beaten up the victim since she was very young, and that she had had a lot of boyfriends when in Secondary II and Secondary III. Counsel in their affidavit said that they were instructed of a specific incident which occurred when the victim was 10 or 11 years old when the victim had been beaten after having appended false signatures to her school report. Mr. Bryan said that the applicant did not give instructions that he had beaten up the victim since she was very young, but that his instructions were that the relationship between himself and his daughter was good before she attained Form II but that when she was studying in Form III the relationship deteriorated and he then beat her from time to time. Mr. Bryan produced the final written instructions from the applicant which were signed by him. They state:

"I can say that the relationship between my daughter and I was good before she attained Form 2. When she was studying Form 3, our relationship was bad. I beaten her from time to time when she did wrong things. I supervised her strictly because I did not allow her to return home at 7:00 p.m. after school. I asked her to return home at 5:00 p.m."

16. The applicant and the deponents gave evidence before the Court of Appeal. His evidence as to beating his daughter was as follows:

"I told him that when she was in Primary 4 or 5 I often beat her and there was an occasion when she was in Primary 6 I beat her very severely. I hammered on the door to beat her . When she began to attend secondary school I rarely beat her up but I scolded her very often. Since I beat her up when she was in Primary 6 she was very frightened of me. It was better when she was in Form I on the face of it we had a very good relationship. We could share a joke but in reality she was afraid of me. She did not want me to know what she was doing."

17. He was cross-examined as follows:

"Q. You never told any lawyer about the severe beating you have described today?

A. I don't want to argue.

Q. You did not tell lawyers you had beaten daughter since very young.

A. I disagree.

Q. You did say your relationship with your daughter was not very good and that you beat her from time to time.

A. I said that too.

Q. Did you say you beat her on one occasion because she falsified school reports?

A. Yes.

Vice-President:

Q. When was that?

A. When in Primary 6.

Q. And that is the instruction you gave to your lawyers?

A. Yes.

Q. When did you say the relationship was not good and you beat her up from time to time?

A. Starting from Primary 3 or 4.

Q. You told your lawyers of this?

A. Yes.

Q. On which occasion?

A. Can't remember.

Mr. Reading:

Q. Was Mr. Mackay or Mr. Chan present?

A. Neither was present. I said to the staff but when lawyers were present I also mentioned this.

Q. A third occasion.

A. A lot of people present I mentioned that too. I told about this when he or she brought me along the statement. I could not give all instructions at one go - some to one, some to another.

Q. What was beating in Primary 6 for?

A. She falsified signature.

Q. More than once?

A. More than once. The worst beating was when she was in Primary 6 about to go to Form I. I hammered up the door frame to beat her. She falsified on a number of occasions but on that occasion I was ferocious.

Q. You have beaten her for that more than once?

A. Yes.

Q. Did you tell your lawyers?

A. Yes.

Q. Where did that happen?

A. Sin Keng Estate, Kowloon.

Q. You often beat her?

A. I only beat her when she falsified signatures and told lies and normal times I don't beat her up. I love my children.

Q. Beat her up for anything other than falsifying report?

A. On many occasions I scolded her but I rarely beat her up.

(Question repeated.)

A. No."

18. A statement which the applicant gave to Legal Aid in his final instructions seems to be in broad accord with what he says his instructions were except that it does not mention the severe beating which he said he gave after she had forged signatures. His complaint now seems to be that the beatings and the bad relationship that arose out of them were not mentioned in cross-examination.

19. In cross-examination, the following passages occurred:

"Q. Did he ever at any time in your life physically beat you?

A. You mean now or what.

Q. I'll refer to specifically. When you were about 10 or 11 years old, were you beaten by your father, you and your brother beaten by your father as a punishment?

A. Talking about me or my brother?

Q Let's talk about you, were you ever beaten by him?

A. No.

Q. For telling lies about your school reports.

A. I cannot recall it, might happen.

Q. It might have happened. I see. Now, in 1993, April 1993, did your mother and you and your sister and brother go to China for a few days?

A. When you say China you mean go back to the native village or just Shenzhen?

Q. Over the border, out of Hong Kong, yes, to the native village.

A. Yes, I have but I cannot recall what year it was.

Q. Could it have been in 1993?

A.. I cannot recall.

Q. Do you remember - well, it could have been around then, is that the position, it could have been around then?

A. About that time, it is possible."

20. Later in the cross-examination the following passages occurred:

"Q. You said earlier that you might have been, you might have been beaten by your father. Think back, when was the last time you think that might have happened?

A. You mean severe beating or just reprimanding?

Q. Beating, physical beating.

A. I cannot recall clearly but it could be in primary 1 or 2."

21. Clearly the matters were raised in cross-examination. The victim seemed at first to be suggesting that no beatings had ever occurred but then agreed that they might have. We are satisfied there was no failure by counsel properly to put the defence.

22. There is nothing in any of the matters raised by the applicant. The application for leave is dismissed.