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 755 OF 2015)

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Before: Hon McWalters JA in Court

Date of Hearing: 14 March 2017

Date of Judgment: 14 March 2017

Date of Reasons for Judgment: 30 March 2017

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REASONS FOR JUDGMENT

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1.On 29 February 2016 the applicant was convicted after trial in the District Court by District Judge Johnny Chan of three charges of indecent assault. On 21 April 2016 the applicant was sentenced to a total period of imprisonment of 4½ years.

2.The applicantapplied for leave to appeal against both conviction and sentence but subsequently abandoned the application for leave to appeal against her sentence. 

3.At the hearing of the application I granted the applicant leave to appeal against her conviction.  I said I would later hand down my reasons for granting leave and this I now do.

The background to the offence

4.The applicant was employed in the household of the victim’s parents as a domestic helper.  The victim is a male child of the applicant’s employer. He alleged that between 1 July 2011 and 26 March 2013 the applicant sexually molested him so as to achieve his penetration of her with his penis.  It was the victim’s evidence that these incidents of sexual molestation occurred regularly during in the charge period and that the three occasions that are the subject of the indecent assault charges are the occasions which he can particularly recall.

5.The first offence occurred when the victim was approximately 8½ years of age and the third offence when he was just over 10 years of age.  The first two offences occurred in a bedroom occupied by the applicant and a daughter of the victim’s parents with the victim lying cross‑ways on the lower bed of a bunk bed.  The third incident took place in a toilet of the flat with the victim sitting on the toilet seat.  

6.The applicant left her employment with the victim’s family in March 2013.  Sometime in January 2015 the victim received instruction at school in the subject of animal reproduction from which he came to understand what had happened to him with the applicant.  On 7 July 2015 the victim revealed to his mother that the applicant had done something to him and upon further enquiry by the mother confirmed that it was a sexual act.  On the same day the parents made a report to the police and on 9 July 2015 the applicant was interviewed under caution. 

7.The prosecution called the victim, his parents and a pediatrician to give live evidence.  The victim was referred to as X.  His evidence consisted of examination-in-chief from a previously recorded video interview and live unsworn evidence given in a vulnerable witness room outside of the courtroom and viewed on screens inside the courtroom.  The prosecution also read a statement by the teacher of the victim under section 65(b) of the Criminal Procedure Ordinance, Cap 221.  The applicant’s police video record of interview was not put into evidence by the prosecution.

8.The applicant gave evidence in the defence case.  She did not call any other witness but she did tender in evidence a statement as to her character by her employer at the time of her arrest. 

9.The defence case was run on the basis that there were a number of matters that made it unlikely that the applicant would have committed the offences.  The first is that the victim’s father was a police officer and the residence in which the applicant lived and worked was a police married quarters.  It was unlikely, so the defence argued, that the applicant would engage in criminal activities in the household of a police officer.  The second was the applicant is a person of good character who had worked for a number of years for the victim’s family and with whom she had a good relationship.  The third was that the applicant was a lesbian and had no sexual attraction to the male sex. 

10.The defence also argued that there were implausibilities in the victim’s account.  One was that the victim maintained that his penis remained soft during each incident of sexual molestation and in this regard the defence relied upon the evidence of the fourth prosecution witness that in such a condition the victim would not have been able to penetrate the vagina of the applicant.  Another area of implausibility, it was said, was the manner in which the victim alleged that sexual penetration took place on both the bed and on the toilet.  It was said that given the relative positions of the victim and the applicant, penetration would have been impossible in the manner described by the victim, namely by the applicant leaning over him and bending from the waist.  Finally, reliance was placed upon the considerable delay by the victim in reporting the crimes, both in terms of the delay from when they first occurred and from the time the victim obtained some knowledge of the biology of the reproductive process.  

The judge’s Reasons for Verdict

11.In the course of his Reasons for Verdict the judge addressed the issue of uncharged acts and of recent complaint.  Nothing he said in respect of the law in these two areas of his Reasons for Verdict is the subject of the grounds of appeal. 

12.The judge went on to discuss the evidence of the victim and came to the conclusion that the victim was a credible and reliable witness and accepted his evidence.  In the course of his discussion of the victim’s evidence he said:

“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.”[1]

He then went on to direct himself:

“I treat the evidence of X with extreme care. By its very nature, an allegation of sexual assault is easy to make up but difficult to rebut. I am also aware that X gave his evidence unsworn.

I have borne in mind all the criticisms that Mr Hemmings made of X”[2]

13.The judge addressed the submission of Mr Hemmings that on the description by the victim of the position of his and the applicant’s bodies, and of what the applicant did, penetration would have been “anatomically impossible”.  After referring to the victim’s evidence the judge concluded at paragraph 55 of his Reasons for Verdict:

“With respect to Mr Hemmings, I do not think the aforesaid evidence given by X shows that the assaults in the bed room and the bathroom as described by X were anatomically impossible.”

14.In respect of the evidence of X that his penis was soft the judge said that he noted from the evidence of the pediatrician, Dr Ho, that the ability of a young male to achieve an erection is dependent on his stage of puberty.  The judge then said at paragraph 76 of his Reasons for Verdict:

“ 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.”

15.The judge did not discuss the evidence of the applicant in any great detail other than in three brief paragraphs early in his Reasons for Verdict and five paragraphs at the end of his Reasons for Verdict.  At paragraphs 19-21 he said:

“The Defence Case

19. The defendant denied she had ever indecently assaulted X. She said X was lying.  The defendant had no idea why X made up the story.

20. The defendant admitted that relationship between X’s family and the defendant had all along been good.

21. The defendant said she is a lesbian and she is not attracted to males. She has never been intimate with a male. She had two lengthy same-sex relationships in Hong Kong. She said during the period between 1 July 2011 and 26 March 2013, she was not sexually active.”

16.At paragraph 81 of his Reasons for Verdict he reminded himself that she was a person of good character.  He said:

“  The defendant has a clear record. I have considered the statement of the employer of the defendant at the time of her arrest. Given the good character of the defendant, she is more likely to tell the truth in her evidence and less likely to commit the three charges under complaint and the uncharged acts.”

17.The judge then referred to the evidence of the applicant and particularly to the cross-examination by her of Mr M Arthur, prosecuting on fiat, on whether she was able to explain why the victim might make up an allegation of this nature against her.  The judge said:

“83. 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.

84. When the defendant was asked if she ever saw X as a boy with wild fights of imagination, the defendant could only think of an occasion when X held the telephone receiver for no reason when X was 5 years old.  I agree with Mr Arthur that the act of a 5 years old kid holding a telephone receiver is no more than an imaginative play.  The defendant said X was a freak sometimes but the only incident that the defendant could speak of was the one when X was 5 years old and he got angry for reason that she did not know.  In my judgment, it is a travesty of the true nature of events for the defendant to take the incident of X holding a telephone receiver as an example of X being a boy with wild flights of imagination and to describe X as a freak for the reason she gave us.”

18.Immediately following these two passages the judge referred to certain aspects of the evidence of the applicantwhich appeared to influence his view of her credibility.  He said:

“85. It is not in dispute that the defendant first came to Hong Kong in 2001and started to work as a domestic helper. Before the defendant’s employment with X’s family, she had worked for 2 households between 2001 and 2007. She started to work for X’s family in 2007. In my judgment, given her long period of stay in Hong Kong, the defendant’s evidence under cross-examination that she did not have luggage and she did not have a bag which could be zipped up does not have a ring of truth. I have considered the defendant’s evidence about her sexual orientation. She said she is not attracted to males and has never been intimate with a male. Since she came to Hong Kong in 2001, she had 2 lengthy same-sex relationships. She said she was not sexually active during the period in question, ie 1 July 2011 until 26 March 2013. In my judgment, the sexual orientation of the defendant does not preclude her from committing the 3 offences and the uncharged acts in question.”

This brought to an end the judge’s discussion of the applicant’s evidence. 

19.The judge never actually said that he did not believe the applicant and that he rejected her evidence but this is implicit in what he did say and from the fact that he accepted and relied upon the evidence of victim. 

The Perfected Grounds of Appeal

20.The applicant relies upon five grounds of appeal.  The first is that the judge erred in making findings of fact that were not supported by the evidence and were contrary to the testimony of the complainant.  This ground of appeal focuses upon the evidence of the victim and what are said to be implausibilities in relation to that evidence, particularly with that part of his evidence that his penis was soft and of the judge’s finding that, notwithstanding that evidence, at the time the molestations took place his penis “must then be in a state of erection”.  Mr J Hemmings, who appeared for the applicant both at trial and on this application, submitted that the judge was not entitled to make a finding of fact that was directly contrary to the evidence of the victim. 

21.The second ground of appeal complains that the evidence of the victim in relation to the relative positions of himself and the applicant at the time that sexual penetration took place was impossible as, in that position, penetration would have been impossible if the victim’s account of what the applicant did was true.

22.The third ground of appeal is that the judge failed to evaluate the evidence properly and in particular failed to consider the inherent implausabilities in the evidence of the victim.  This ground of appeal focuses upon the delay in the victim making the complaint and refers to the evidence that during the period between the applicant leaving the victim’s parents’ employment and the making of the complaint, there were occasions of a social nature when they would have seen each other and that during these meetings the victim did not display any untoward signs. 

23.The fourth ground of appeal is that the judge failed to properly take into account the evidence of the applicant in considering the inherent improbability of the victim’s evidence.

24.The fifth ground of appeal complains that the judge wrongly stated that no evidence was presented by the applicant other than her own testimony as there was evidence from the applicant’s former employer was adduced under section 65 of the Criminal Procedure Ordinance.  

The respondent’s submission

25.In respect of the first ground of appeal Mr Sean for the respondent submits that the firmness of a penis is a matter of degree and the judge was required to reconcile the victim’s evidence that his penis was soft with his evidence that penetration took place.  He did this, and was entitled to do so, by finding that the victim’s penis must have been sufficiently erect to enable penetration to take place.

26.In respect of the second ground of appeal Mr Sean submits that Mr Hemming’s approach to the evidence is over-technical, especially in respect of what is meant by the word “leaning”, and does not allow for the fact that the victim was a young boy who was trying to describe matters with which he was not familiar.

27.In respect of the third and fourth grounds of appeal Mr Sean submits that the judge’s analysis of the evidence of the victim and the applicant is sound and adequate.

28.In respect of the fifth ground of appeal Mr Sean refers to the judge reminding himself of the fact that the applicant did adduce evidence from her employer at the time of her arrest. 

Discussion

29.It seems to me that the complaints of the applicant resolve themselves into two issues.  The first is the correctness and adequacy of the judge’s analysis of the evidence of the victim and the second issue is the correctness and adequacy of the judge’s analysis of the evidence of the applicant.     

30.The first issue encompasses grounds 1-3 and the second issue encompasses ground 4.  I am of the view that grounds 1, 3 and 4 are reasonably arguable.  I do not think that ground 2, as a stand-alone ground, is reasonably arguable and I refuse leave on that ground.  But, I am of the view that this ground can be argued as an element of ground 3.  I do not think that ground 5 is reasonably arguable and refuse leave to argue that ground but it may be advanced as part of the argument of ground 4.

31.The issue that concerned me most was the judge’s treatment of the applicant’s evidence and so I ordered that a transcript of her evidence be incorporated into the appeal bundle.  I was particularly concerned with whether the judge had allowed his view of the applicant’s evidence to be excessively influenced by what he may have perceived was an inability on her part to explain why the victim would fabricate these allegations against her. I was also concerned with his treatment of the applicant’s sexual orientation.  He appeared to regard it as relevant to whether she could commit the offence, whereas it was relevant, like the evidence of her good character, to whether she would commit the offence. 

Conclusion

32.For these reasons I grant the applicant leave to appeal in respect of grounds 1, 3 and 4 but make it clear that ground 2 can be argued as part of ground 3 and ground 5 can be advanced as part of the argument in support of ground 4.

33.At the hearing of the application Mr Hemmings indicated he might wish to amend his grounds of appeal in light of the matters ventilated in the course of the hearing.  I granted him leave to do so.

34.I also directed that Exhibits P4, 5, 6, 6A, D1 and D2 be included in the Appeal Bundle.

Mr Eddie Sean SADPP, of the Department of Justice, for the respondent

The Hemmings John D.B., instructed by Massie & Clement, assigned by DLA, for the applicant