HKSAR v. AAMIR, HUSSAIN

HCMA1066/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1066 OF 2002

(On appeal from ESCC 2259 of 2002)

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J U D G M E N T

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1. The appellant in this case denied two charges :

(1) inciting a child under 16 to commit an act of gross indecency, contrary to section 146(1) of the Crimes Ordinance, Cap.200; and

(2) common assault, contrary to section 40 of the Offences Against the Person Ordinance, Cap.212.

He was convicted after trial and sentenced to a total of 12 months' imprisonment. He was unrepresented at trial but is represented before me today by counsel appointed by the Legal Aid Department. He is 16 years old.

2. He appeals against conviction but not against sentence.

3. The victim in this case was 8 years old at the time of the alleged offences and, understandably, could not be exact about the dates when the alleged incidents took place. Both charges are broadly framed for this reason, alleging that incidents occurred on an unknown day between November 1999 and 21 March 2002. November 1999 was the date when the victim and her mother moved into the block of flats where the incidents are said to have taken place and 21 March 2002 was the date of the last incident which led to a report to the police.

4. The facts leading to the 1st charge are straightforward. The girl lives with her mother, Madam Wat Sau Ling and younger brother. Her evidence was that the appellant had, on a date she could not remember, dragged her to one of the staircases of the building where she lives. The appellant said he wanted to chat with her and they went to an area between two floors. There, the appellant took his trousers off and his underpants and she saw his private parts. She said he asked her to touch his private parts but, feeling something was wrong, she left.

5. The ground of appeal in relation to this charge relates, if I understand it correctly, to the child's imprecision about when the incident happened. She could not be more precise than that it was between November 1999 and March 2002. The appellant sought to demonstrate by producing his passport that he was out of Hong Kong until June 2000, and counsel contends that the magistrate erred in these circumstances in rejecting the appellant's evidence that he was not in Hong Kong at the time.

6. I do not entirely follow the logic behind this ground. The fact that the appellant may have been out of Hong Kong for part of the period when the offence could have occurred is one factor to bear in mind, but it does not exclude the possibility of the offence being committed after June 2000.

7. It is no more than one other factor for the magistrate to consider when evaluating the evidence. That she did so is readily apparent from her Statement of Findings.

8. The magistrate found the three prosecution witnesses, that is, the girl, her mother and a police officer to be honest and credible witnesses, and she accepted their evidence. Such discrepancies as there were were identified and dealt with. She found the appellant to be "incredible and self contradictory", and pointed to a number of areas where his evidence was found wanting. He was, she thought, "dishonest and incredible" and she rejected his evidence.

9. The magistrate properly identified and directed herself on the relevant areas of the law.

10. So far as the 1st charge was concerned, this was above all a case where the credibility of witnesses was of overwhelming importance. The magistrate had the advantage of seeing the witnesses give their evidence and nothing has been said today to persuade me that an error was made, or injustice caused. The appeal against his conviction on the 1st charge fails.

11. Two grounds of appeal are advanced in relation to the 2nd charge :

"2. As to charge (2) there was a 'latent ambiguity' in the charge in that the facts alleged and/or the evidence adduced consisted of more than one offence in proving the one offence charged.

3. Further or alternatively as to charge (2) the learned magistrate erred in accepting the evidence of three acts of common assault which was inadmissible in proof of one single charge alleging one act of common assault."

The two grounds refer to the fact that in relation to the 2nd charge, the child gave evidence of three separate incidents. This is apart from the first incident which led to the charge of incitment to gross indecency.

12. The first incident was when, according to the victim, the appellant asked her to have a chat with him, and when they were at the entrance to a staircase the appellant kissed her on the cheek.

13. On the second occasion, the child was doing her homework at home when, suddenly, a paper aeroplane landed on the table. She opened her door and the appellant dragged her from the flat. She could not remember what, if anything, happened thereafter.

14. The circumstances of the last incident were that she had left her flat and upon her return, saw the appellant inside. He had entered through the open front door. When she asked him what he was doing there, the appellant did not answer, but she said, instead, grabbed her forcefully and tried to drag her from the flat. She kicked him hard and managed to close the door. She then wanted to close the window but was prevented from doing so by the appellant until she repelled him by poking at him with a pair of chopsticks. She managed to shut the window and screamed until she thought he had left. He had not, and when she opened the window to check he ran up to her again and started to bang on the window. When the child's mother returned, she found her daughter crying inside their locked flat. She told her mother what had happened, and the police were called. He was arrested nearby and denied the offences.

15. I do not think there is anything in the 3rd ground of appeal. In the particular circumstances of this trial, it was proper for the prosecution to lead evidence relating to the four incidents in relation to the two charges. It went to show the basis of the girl's identification of the appellant and the reason why the complaint was made to the police when it was. The general rule is that evidence showing that the accused : (a) has been guilty of misconduct other than that charged; or (b) has a disposition to commit the kind of offence charged or crimes in general, is inadmissible for the purpose of showing that he committed the offence charged. See Makin v. Attorney General for NSW [1894] AC 57. This rule is however subject to the exception that such evidence may be admitted where it is relevant to an issue in the case and, as a result, has a degree of probative force which outweighs its prejudicial effect. See Boardman v. DPP [1975] AC 421.

16. In this case, such evidence was clearly relevant and probative. I am confident that a professional magistrate would know this and would not allow evidence of the other incidents to influence her decision about the incident charged. I am, however, more concerned about the 2nd ground of appeal.

17. The 2nd charge reads that on an unknown day between November 1999 and 21 March 2002, other than the date mentioned in the 1st charge, at 9th floor near the rear staircase, 59 Wan Hon Street, Kowloon in Hong Kong, the appellant had assaulted the victim. Counsel for the respondent today tells me that he has checked the prosecution file and believes that the charge related to the incident when the girl was kissed on the cheek by the appellant. Unfortunately, that does not seem to have been made clear to the court, as the learned magistrate, so far as can be ascertained, appears to have convicted on the last incident.

18. I am bound to wonder in such circumstances if the defendant, unrepresented, knew precisely what charge he was defending.

19. In Chim Hon Man v. HKSAR [1999] 1 HKLRD 764, the Court of Final Appeal held, inter alia :

"There was a general principle that in the absence of any act or acts being identified as the subject of an offence charged in an indictment, the prosecution could not lead evidence that was equally capable of referring to a number of occasions, anyone of which might constitute an offence described in the charge, and invite the jury to convict on any one of them ...."

20. The conviction on the 2nd charge is unsafe and unsatisfactory, and will be set aside.