HKSAR v. Chu Chiu Sang

HCMA 604/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 604 OF 2015

(ON APPEAL FROM KCCC 1364 OF 2015)

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J U D G M E N T

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1.Yesterday the appellant faxed a letter to the court indicating he did not want to proceed with his appeal. The appellant has appeared today and confirms that he abandons both his appeal against conviction and sentence.

2.Section 117 of the Magistrates Ordinance[1] provides that an appellant may abandon the appeal at any time provided that this is not less than 2 clear days before the hearing of the appeal.  The notice of abandonment having been received yesterday section 117 does not apply.  To comply with the provisions of the Magistrates Ordinance the court is required to dismiss the appeal.

3.The appellant was convicted after trial by Mr So Wai Tak, magistrate, of one charge of indecent assault contrary to section 122(1) of the Crimes Ordinance[2], and sentenced to 7 months’ imprisonment. 

4.In summary the evidence at trial was that because X did not want her mother to find out she was pregnant she accepted the appellant’s suggestion to stay at his home.  X stayed at the appellant’s home from 6-9 December 2014.  On 6 December the appellant told X to take off her clothes so he could have a look.  On 7 December the appellant took a shower with X to teach her how to bathe. 

5.On 8 December 2014 the appellant indecently assaulted girl X at his home in Kowloon City by using a vibrator to touch her private parts.  In a record of interview the appellant admitted using a vibrator with the consent of X.  The use of the vibrator formed the basis of the charge.

6.There were two main issues at trial.  First, whether the admission by the appellant that he used the vibrator was voluntary.  Second the credibility of X.  The appellant gave evidence as to voluntariness and called Miss Chow[3], his girlfriend as his witness.  The appellant elected not to give evidence on the general issue.  Two witnesses were called on his behalf, Miss Chow and Miss Chan[4], a colleague of the appellant.

Voir dire

7.The magistrate carefully considered all the evidence and properly directed himself that the burden was on the prosecution to prove beyond reasonable doubt that the record of interview was given voluntarily[5].  The magistrate gave detailed reasons for accepting the evidence of DPC 4120 and rejecting the defence evidence[6]. The magistrate was satisfied the record of interview was voluntary and that there were no grounds to exclude the interview from evidence.  I can find no error in the magistrate’s reasoning.

8.The magistrate specifically dealt with the submission made that answer 11 was a radical change from what the appellant had said earlier in the interview and on arrest.  The magistrate found the change in direction by the appellant from denial to admission was unsurprising[7].  I agree with the finding of the magistrate that this change was unsurprising.  I can find no error in the way the magistrate assessed the evidence.  The record of interview was properly ruled admissible. 

General issue

9.The prosecution case relied principally on the evidence of X.  Reliance was also placed on the admission by the appellant that he had used the vibrator to touch the private parts of X.   

10.The magistrate properly directed himself that it was for the prosecution to prove the charge beyond reasonable doubt.  The magistrate also correctly directed himself that no adverse inference was to be drawn from the appellant’s election not to give evidence[8].  The magistrate specifically reminded himself that the allegations were easy to make and difficult to refute and therefore had to approach X’s evidence with extreme caution[9].

11.The magistrate carefully considered all the evidence giving detailed reasons why he accepted the evidence of X and that the evidence of the defence witnesses did not cause him to doubt the evidence of X[10].

12.I am satisfied the magistrate was correct to admit in evidence the incidents of the 6 & 7 December 2014 to prove the setting and context in which the offence was alleged to have occurred on 8 December[11].

13.The magistrate specifically addressed the defence submission that the evidence of X was wholly incredible and untruthful[12].  I am satisfied that the magistrate carefully considered the evidence of X and gave cogent reasons for accepting her evidence.  I can find no error in the way the magistrate assessed the evidence of X.  I am also satisfied that the magistrate properly considered the evidence of the defence witnesses and correctly concluded that their evidence did not cause him to doubt the evidence of X[13]. 

14.The magistrate also properly considered the record of interview concluding that full weight was to be attached to the admission the appellant used the vibrator and no weight to the explanation this was with the consent of X[14]. Although consent was not the defence raised at trial the magistrate nevertheless considered whether X consented.  The magistrate accepted X’s evidence she was not consenting and rejected that the appellant held an honest but mistaken belief X was consenting[15].

15.I find nothing unreasonable, illogical or inherently improbable in the magistrate’s findings.  Like the magistrate I find no reason not to believe the evidence of X.  The conviction is not unsafe, and therefore I dismiss the appeal against conviction.

Appeal against sentence

16.Before sentencing the magistrate called for a background report and a victim impact statement.  The magistrate considered the mitigation advanced on behalf of the appellant, including that the appellant had no previous similar convictions and his last conviction was in 2002 since which time he led an industrious life with a stable working pattern[16].  The magistrate also considered mitigation letters and a series of cases submitted by counsel representing the appellant[17].

17.In passing sentence the magistrate was clearly guided by the decision in Secretary for Justice v Huang Long Wei[18] where the Court of Appeal highlighted three crucial considerations in sentencing for the offence of indecent assault on young children by adults and stated that the courts will regard the protection of children as the most important consideration.

18.In my view this was a serious indecent assault committed by the appellant, who was 34 whereas X was only 16 and pregnant and who sought refuge in the appellant’s home.  Taking into account the young age of X, that X was pregnant; X displayed features of Post-traumatic Stress Disorder; the age difference between X and the appellant; that the appellant took advantage of X who sought refuge in his home and the circumstances of the indecent assault, I find the sentence in no way excessive or severe.  

19.The appeal against sentence is dismissed. 

Mr Edward J Brook, SPP of the Department of Justice, for the respondent

The appellant appeared in person