HKSAR v. FONG SAI KI

DCCC 320/2018

[2019] HKDC 1186

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 320 OF 2018

------------------------------------

------------------------------------

---------------------------------------

REASONS FOR VERDICT

---------------------------------------

1.  The defendant is charged with two counts of committing an act of gross indecency with a child under the age of 16, contrary to section 146(1) of the Crimes Ordinance, Cap. 200 (Charges 1 and 2) and a count of indecent assault, contrary to section 122(1) of the same Ordinance (Charge 3).

2.  Very briefly, the allegations are that, on two separate occasions, the defendant sexually abused an underage girl X.  The first incident took place on an unknown day between 1 November 2013 and 26 June 2015 where the defendant allegedly grabbed X’s hand and placed it on top of his trousers over his penis during a bus journey (Charge 1).  The second incident took place on 10 February 2018 at the defendant’s home.  The defendant allegedly grabbed X’s hand to use it to masturbate himself until ejaculation (Charge 2) and, at a later stage embraced X and kissed her forehead (Charge 3).

Prosecution case

3.  Part of the prosecution case is not in dispute and in total three sets of Admitted Facts (Exhibits P10, P12 and P13) were produced under section 65C of the Criminal Procedure Ordinance, Cap. 221.  In brief, it is admitted that X was born on 8 March 2003 whereas the defendant was born on 16 December 1981.  Two video-recorded interviews of X, namely Exhibits P1 and P11 and their respective transcripts and English translations, Exhibits P2 and P2(a) as well as P11(a) and P11(b), were produced and tendered as the evidence-in-chief of X.  It was also pursuant to an order under section 79C of the Criminal Procedure Ordinance, Cap. 221.

4.  The identity of the defendant was not in dispute, nor the course of his arrest.  Under the Admitted Facts, the defendant’s two mobile phones including Exhibit P5, his computer, and the data extracted therefrom including certain WhatsApp messages as contained in Exhibit P7, its transcript and English translation as Exhibits P7(a) and P7(b) respectively as well as six photographs of the defendant’s computer and phones, Exhibit P7(c), were produced.  Finally, it is confirmed that no pornographic materials of any kind were found from the defendant’s computer and his mobile phones and that he has a clear record.

5.  The prosecution case rests on the evidence of X who described what happened during the two incidents which took place on board a bus and at the defendant’s home respectively.  Regarding the first incident involving Charge 1, X said when she was in primary school and took the bus 80M in Sha Tin to Kowloon Tong, she got to know the defendant who also travelled on the same bus.  The defendant first asked and then they started to sit together in the back row on the upper deck.  They travelled together and sat in that way in many subsequent bus journeys in the period between November 2013 and June 2015 until X left her primary school and then ceased having contacts with the defendant.

6.  X alleged that the first time she sat upstairs with the defendant she was sexually abused by the defendant, namely placing her hand on his trousers over his penis.  She felt uncomfortable, thought it was a bit strange.  She knew it was wrong but not so serious.  She said she treated the defendant as her friend.

7.  Then came the second incident involving Charges 2 and 3 years later, on 10 February 2018.  According to X, she and the defendant did not contact each other after she left primary school in June 2015.  It was not until 12 September 2017 that the defendant suddenly contacted her by phone messages.  The defendant knew she was only 14 years old at that time (see message 25 on 12 September 2017) but still continuously asking her out.  There were altogether 286 WhatsApp messages between 12 September 2017 and 11 February 2018 (see Exhibits P7(a) and P7(b), the transcripts and the English translations).  There contained clear messages of the defendant repeatedly asking X to meet or for meals, for example, on 13, 15, 16 and 17 September 2017, to which X all declined.  Such requests for meeting or for meals from the defendant started again the next year, on 25, 26 and 27 January 2018.  Eventually, on 5, 6 and 7 February 2018, the defendant asked X to go to his home.  It is worth noting that on 8 February 2018, when X said she was 14, the defendant texted “If only you were two years older”.  Similar requests to meet X at the defendant’s home continued on 9 and 10 February 2018 and X finally went to the defendant’s home at about 6 pm on 10 February 2018.

8.  X described, after playing video games and having pizza at the defendant’s home, the defendant started to take off her socks and massaged her feet.  Then, under a blanket, the defendant unzipped his trousers and placed X’s hand onto his penis to masturbate himself until ejaculation.  X then went to the toilet to wash off the semen on her hand and wanted to leave.  When they were at the doorway, the defendant tried to hug her and wanted to kiss her.  X said no and the defendant still kissed her forehead.

9.  The prosecution called another witness, PW2, Miss Sit Sau Sum, who was X’s secondary school teacher.  On the night of 13 February 2018, that is three days after the second incident, in a training camp X told PW2 about how an “uncle” had placed her hand on his private parts on the upper deck of a bus when she was a primary school student.  X said that happened many times.  X further told PW2 about the second incident, i.e. about that “uncle” had held her hand to touch his private parts and as a result her hand got wet before she went to the bathroom to clean up and then left.  PW2 informed the school social worker who in response informed X’s father and at the end reported the matter to the police.

10.  After the close of the prosecution case, no half-time submission was made by the defence and I ruled that the defendant had a case to answer for all Charges 1 to 3.

Defence case

11.  The defendant exercised his right and elected not to testify but called a defence witness, Miss Cheng Sze Mei, Niki, his former girlfriend in 2005 to 2010.  The essence of her evidence is to the effect that the defendant had no sexual interest in children though she had basically no contact with the defendant after 2010.

12.  From the defence cross-examination, in particular the case put to X and the closing submission made by the defence, the defence case in essence is that though the parties knew each other, they had bus journeys together and that they had a meeting at the defendant’s home on 10 February 2018, there were no sexual abuse or sexual act as described by X ever happened on the bus or at the defendant’s home.  It was suggested that X created this fictional story of sexual abuses by the defendant because she was not loved by others and she made all that up to crave the attention of others.  It was particularly likely, as submitted, for X to do that as she was a school athlete and there was wide publication of the movement “MeToo” around that time.

13.  The defence also took issue with the recency of the complaint made by X to PW2 about Charge 1 as well as the possibility of X’s evidence having been tainted by the leading questions by the interviewing officer in her video-recorded interviews and the undue influence by the support person in court (it was reported on the first day of the trial before X started her evidence that the support person, Miss Wong, forewarned X about being cross-examined by the defence and that Miss Wong was replaced by another support person on the same day).

Issue

14.  Obviously the key or the only issue in this case is the credibility of X and the reliability of her evidence which is essentially the only evidence against the defendant.

Relevant law

15.  I reminded myself of the relevant law in this case:

(a) This is a criminal trial just like any other criminal cases, the prosecution bears the burden to prove the defendant’s guilt and the defendant is not required to prove his innocence or anything at all. To succeed in proving the defendant’s guilt, the prosecution must make me sure of his guilt, which is the same as proving the case beyond all reasonable doubt.

(b) The defendant is charged with three counts and I must consider the case against and for the defendant on each count separately. The evidence concerning each count is different and therefore my verdicts need not be the same.

(c) The defendant did not give evidence. This is his right and no adverse inference would be drawn against him.

(d) The defendant is a person with a clear record. I have given myself the relevant good character direction, that is he is less likely than otherwise might be the case to commit a crime.

(e) X made the complaint to PW2, her school teacher, about the incidents. It is not evidence as to what actually happened between X and the defendant. I can consider it only for helping me to decide whether or not X has told me the truth and that it is not independent evidence of what happened between X and the defendant and that it cannot be of itself prove that the complaint is true.

(f) I have also reminded myself of the law on the uncharged acts under Charge 1. In accordance with the principles as set out in HKSAR v Kwok Hing Tony CACC 26/2008, an authority relied upon by both parties, I have reminded myself in particular that I must not infer from the evidence that the defendant had committed similar offences or that he is the sort of person with a propensity to commit the offence.

My analysis

16.  I first consider Charge 1 which is about an allegation of sexual abuse on a bus on a particular occasion during a period of nearly 20 months.  It is X’s unequivocal evidence that such alleged indecent act, namely placing X’s hand on the defendant’s trousers over his penis, took place many times, at least over five times (see entries 384 to 387, 407 and 417 of Exhibit P2(a)) or even once or twice a week or four to six times a month (see entries 1259 to 1307 of Exhibit P2(a)).  X even said that there were occasions where the defendant would unzip his trousers and put her hand onto his underpants (see entries 1306 to 1321 of Exhibit P2(a)).  This is to a certain extent consistent with what X told PW2 at the training camp, that the defendant had done similar things to her on a bus many times though she could not recall the number of times.

17.  The defence has no objection to my consideration of those uncharged acts and even invited me to take all those into account with a view to demonstrating X’s unreasonable reaction for continuing to travel together with the defendant and failing to report over the years.  It is stressed that if what X said was true, namely the defendant had repeatedly abused her during a long period of time, it would be most unbelievable for X not to resist or report but to resume contact with the defendant two years later and even voluntarily went to the defendant’s home by herself.

18.  The defendant’s submissions as aforesaid do cause me concern.  I certainly bear in mind the fact that X was only 10 to 12 years old at that stage.  It may be understandable that a girl of such tender age may not know how to react at that time or shortly afterwards though X already knew at that time it was wrong and she felt strange and uncomfortable. It is however difficult for me to understand and believe why she would agree to resume contact with the defendant two years later when she was 14 and even went to the defendant’s home by herself knowing full well that was the “uncle”, as she described, who had repeatedly abused her on various previous bus journeys. What one would have expected a normal and reasonable person in X’s position would have simply ignored the defendant or even cut off any further contacts with the defendant when he tried to resume contacts two years later.

19.  It caused me further concern after having seen how X gave her evidence and her general demeanour in court.  As correctly pointed out by the defence, she is clearly intelligent and very strong-willed. She was never afraid to speak up, to ask questions, to clarify or even to argue in court.  In particular, she got agitated and became very persistent to seek an explanation when defence counsel in the cross-examination unintentionally touched upon the death of her mother.  This is reinforced by PW2, X’s teacher, who agreed that X is the type of student who would keep asking question and was not afraid to speak up in front of others.  As such, it is difficult for one to understand and believe, X being a person of such strong character would have failed to reject the defendant’s continued untoward behaviour, let alone report on him over a period of close to 20 months when Charge 1 and other similar uncharged acts took place.

20.  Even if I take into account X’s explanation for her inaction over the years, namely, she had been bullied by others and permitted herself to be hurt and let others be happy, that still does not explain away why she was willing to resume contacts with the defendant in 2017 and eventually agreed to go to the defendant’s home knowing full well that there would be just the two of them.

21.  The fact that the defendant, being a male adult of over 30 years old, chose to befriend and sit with X being a young girl of 10 or 12 years old on several bus journeys, is no doubt suspicious. Nevertheless, the overall evidence of X does not make me sure of what she described about the alleged sexual act of the defendant under Charge 1 did take place.  Accordingly, I acquit the defendant of Charge 1.

22.  I proceed to consider Charges 2 and 3, both arising from the second incident on 10 February 2018 at the defendant’s home.

23.  To start with, as said, if what X said about what happened on those bus journeys were true, it is difficult for me to understand and believe that X would have willingly gone to the defendant’s home knowing full well that she and the alleged assailant would be alone in a flat. There is apparently no pressing reason for X to agree to go to the defendant’s home bearing in mind, that according to the WhatsApp messages in Exhibit P7(b) that X had repeatedly declined the defendant’s invitation to meet and nothing happened as a result.

24.  Even at the later stage when X was inside the defendant’s home, there were plenty of opportunities for her to resist the defendant’s untoward acts and to seek to leave.  It is worth noting that according to X, the defendant did not assault her all of a sudden but the defendant’s act came gradually, one after another.  X said, at the outset, when the defendant took off her socks, she said to herself “lai-yeh (𡃤嘢)”.  It means “screw up” or she knew there would be trouble.  She did not resist or do anything at all, not even voice out her objection or unwillingness.  The defendant then, according to X, went on to massage her feet.  She again did nothing, though she said she became increasingly worried.  Strange enough, she said she continued playing video games.  Then she said that the defendant went on to unzip his trousers, grab X’s right hand to masturbate himself until ejaculation.  All the above would have taken some time to finish.  X said she was afraid and wanted to speak foul language.  She nevertheless did not do anything at all to resist or even to indicate her unwillingness but carried on with it until eventually she saw semen on her right sleeve.  She then went to the toilet to wash her hand.  It is clear that she was free to leave as she wanted.  If X found the defendant’s acts, if they took place as described, so unpleasant at the outset, one would have expected her to at least do something to resist or refuse before the defendant could have gone all the way to use her hand to masturbate himself until ejaculation.

25.  Last but not least, what causes me further concern is that when X was approaching the end of her evidence she agreed to the defence’s suggestion that she might have gone to the defendant’s home before the second incident.  The relevant cross-examination in that particular area of previous visit took some time in court.  X then became evasive and inconsistent, and finally she said she “remembered that the defendant had helped me to go to his bedroom to sleep there like holding a princess”.  If that was true, that would certainly be a separate occasion at the defendant’s home as nothing of this sort took place in the second incident on 10 February 2018.  This is to a certain extent supported by one of the WhatsApp messages, number 177, where the defendant text, “a few years ago you were eager to go to my place to have fun” and in X’s video-recorded interview, Exhibit P11(b), at entry 159, X said, “I went to his home again after so many years.”  X also mentioned there being another visit apart from the one on 10 February 2018 to her teacher, PW2.  That previous visit to the defendant’s home was never clearly brought out by X until the very late stage of her evidence during cross-examination.  X’s evidence in this aspect is so unclear and inconsistent as she kept retracting and confirming that previous visit at the defendant’s home.  It causes me further doubt as to the truthfulness of what she described about the second incident on 10 February 2018.

26.  No doubt there is clear evidence, in particular in the WhatsApp messages, that shortly before the second incident on 10 February 2018, the defendant who was then over 36 years old, kept dating X as a 14-year-old young girl and eventually persuaded her to go to his home when his wife and daughter were away.  The circumstances are very suspicious but I cannot be satisfied up to the criminal standard of X’s evidence about the allegations under Charges 2 and 3.  I accordingly acquit the defendant of both Charges 2 and 3.