HKSAR v. T.P.D.

CACC 177/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 177 OF 2016

(ON APPEAL FROM DCCC 1014/2015)

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J U D G M E N T

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1.The applicant was charged with three charges of “Indecent assault on another person”, contrary to section 122(1) of the Crimes Ordinance, Cap 200. The victim in each of the three cases was his elder daughter and all three indecent assaults took place on the evening of 22 July 2015 at their residence in the New Territories. At the time of the assaults the victim was 9 years of age.

2.The applicant pleaded not guilty to the three charges but was convicted after trial before District Judge CP Pang (“the judge”) on 30 May 2016.  On 2 June 2016 he was sentenced by the judge to 2½ years’ imprisonment in respect of each of the three offences with all of the sentences ordered to be served concurrently with each other.

3.The applicant has applied for leave to appeal against both his conviction and sentence but at the hearing of the application he indicated that he did not wish to pursue his application for leave to appeal against his sentence.

4.At the conclusion of the hearing I reserved my judgment in respect of the application for leave to appeal against conviction which I said I would hand down at a later date.  This is my judgment.

The background to the offence

5.There were only two witnesses in the prosecution case, X and her mother.  Apart from the testimony of X there was no evidence of these indecent assaults as no other person was present when they occurred, other than the younger daughter who remained asleep whilst they took place.

6.X’s evidence consisted of her pre-recorded interview with a social worker which became her examination-in-chief pursuant to the provisions of section 79C of the Criminal Procedure Ordinance, Cap 221.  This was supplemented by her oral unsworn evidence which she gave pursuant to section 79B of Cap 221.  In the video interview X described what happened in the course of the three incidents of indecent assault. 

7.X testified that whilst her mother was away for one week from Hong Kong on work, the applicant indecently assaulted her during the evening of 22 July 2015.  He did this on three separate occasions on that evening with each occasion following on from the other.  The applicant, X and her younger sister were all sleeping in the one bed.  X alleged that whilst she was asleep the applicant indecently assaulted her by molesting her body.  X woke up and to avoid this attention she moved to a mattress which was on the floor of the room.  However, the applicant followed her to the mattress and indecently assaulted her again whilst she was lying there.  X then returned to the large bed where her younger sister was sleeping and the applicant did likewise.  Whilst in the large bed he again indecently assaulted her.  After this third occasion of indecent assault, X went to the bathroom and when she returned to the large bed she asked the applicant to stop touching her and he did so.  The next morning the applicant told X not to tell anyone of the events of the previous evening. 

8.The evidence of the mother related to three discrete areas.  The first to the circumstances in which the first complaint was made by X; the second to her confrontation with the applicant over it and his response to her; and the final one to her arranging, the following day, to record a conversation with X in which she asked X to repeat her claim as to what she had said the previous day.

9.In respect of the first area the mother testified that on 24 August 2015 she noticed that X was looking at some cartoons of a sexual nature.  She decided to take the opportunity to provide X with a talk on sex education.  At the end of this talk X informed the mother of the events of the evening of 22 July 2015. 

10.The mother later confronted the applicant about the claim made by X.  In response the applicant said that he was not aware of what he was doing but when he was aware he stopped.  He also said words to the effect that he thought it was his wife, when he did that.

11.On the following day, 25 August 2015, the mother engaged X and her other daughter in a conversation whose purpose was to record the complaint that X had raised with her the previous day and to provide both children with elementary sex education.  Neither children were aware that the conversation was being recorded by the mother on her mobile phone.  As a prelude to X repeating her complaint, and in order to prompt her to do so, the mother told her and her younger daughter of an incident in her own life in which she had been indecently assaulted by an uncle.[1] 

12.The family continued to live together and no use was made by the mother of the recording or of the knowledge she had gained of X’s complaint.  Then, an angry row between the mother and the applicant on 21 September 2015 led to the police being called and the mother and the children leaving home.  X’s complaint was revealed to the Social Welfare Department the next day and the applicant was arrested on 23 September 2015.  In November 2015 the mother sought assistance from the Legal Aid Department to institute divorce proceedings in Hong Kong.  She was asked to provide evidence of the applicant’s unacceptable behaviour and so she handed over the recording she had made of X’s complaint.  This later made its way into the hands of the police and then to the applicant’s legal team as unused material.

The defence case

13.The applicant gave evidence and denied that any indecent assaults had taken place.  It is not necessary to describe his evidence in any detail as he was disbelieved by the judge and his evidence rejected.  It was an admitted fact that the applicant was of clear record and documents as to his good character were tendered.  In addition one character witness was called.

14.The defence case, as put to the mother and X, was that the mother had manipulated X into making a false allegation and she had done so in order to advance the mother’s interests in future divorce proceedings, particularly in gaining custody of the daughters in these prospective proceedings.  The means by which the mother was able to achieve this was by telling X of the unlawful assault made upon her as a child by an uncle and using this story to encourage or coax X into making up a similar story in respect of the applicant.

15.There was no doubt that the retelling of this incident from the mother’s childhood preceded X’s repetition of her complaint in the recorded conversation on 25 August and it was clearly used by the mother on that occasion to prompt X to repeat her allegation.  It was the mother’s evidence that she related this incident from her past only in the 25 August conversation with her daughters.

16.The defence accepted that there were two conversations between X and her mother in which X related the complaint about the applicant and accepted that they occurred on 24 and 25 August and that on the latter occasion the mother recorded the conversation.  However, the defence case was that the mother had also told X of her own incident on 24 August and this is how X was encouraged to make up a similar complaint about the applicant.

17.The mother denied the suggestion that she was manipulating X to make a false allegation against the applicant so as to advance her interests in future divorce proceedings and denied mentioning this childhood incident to X on 24 August.  So there was no evidence from her to support these defence suggestions.  However, Mr Haynes submitted that there was evidence from X to support it.  This was because, in her evidence, X seemed unable to distinguish between the two incidents in which she told her mother of the applicant’s conduct. 

The judge’s Reasons for Verdict

18.The judge, in a nutshell, rejected the evidence of the applicant and accepted the evidence of X and her mother.  The judge identified the issues before him as follows:

“ The central issue in this case is whether the defendant touched X in the way she described. This issue turns on the credibility of X and N. Other relevant issues are:

(1) Effect of X not being asked to watch and confirm the videoed interview;

(2) Whether the complaint by X to N can be regarded as a ‘recent complaint’;

(3) Whether the responses of the defendant upon confrontation and accusation can amount to a confession;

(4) Whether X was mistaken;

(5) Whether the defendant, if he indeed touched X as she described, was aware of what he was doing;

(6)  Whether the touching was indecent.”

19.The first issue arose from Mr Haynes’s querying whether X should be allowed to watch her video interview without first being asked whether she needed to refresh her memory.  When asked, X said she did not need to refresh her memory and so she did not watch it when it was being played in court.  When Mr Haynes cross-examined X he was able to show that, on occasion, she was contradicting herself and from this he submitted that X did not in fact have a clear recollection of what she said in her interview and that as she had not confirmed what she had said in her video interview no weight should be attached by the judge to its contents.  This submission was rejected by the judge.

20.The judge held that X’s complaint to her mother was a recent complaint.  In respect of the applicant’s alleged confession he found the meaning of it too unclear to treat it as a confession.  On the other issues he found adversely to the applicant.

The grounds of appeal against conviction

21.The Perfected Grounds of Appeal against conviction contained four grounds of appeal drafted by Mr John Haynes who appeared for the applicant both at trial and on this application for leave to appeal against conviction.

22.The first ground of appeal is that the judge failed to properly analyse and address the numerous and significant defects in the mother’s and daughter’s evidence which he claimed were significantly forgetful, unclear, illogical, inconsistent, contradictory and untruthful.  In support of this ground of appeal Mr Haynes submitted that, given the applicant’s good character, and other matters, there was an inherent unlikelihood in X’s complaint.  Moreover, there was aspects to X’s video and oral testimony which called into question the reliability of her recollection and the credibility of her evidence. 

23.He also submitted that the mother had an ulterior motive of advancing her interest in obtaining custody of the children in prospective divorce proceedings and this affected her credibility.

24.The second ground of appeal is that the trial judge misdirected himself as to the potential factual significance of the complainant’s refusal to accept the opportunity to confirm and / or qualify her own video recorded interview which became her examination-in-chief. 

25.The third ground of appeal is that the trial judge wrongly allowed the prosecution to re-examine on matters crucial to the prosecution but which had not been raised in cross-examination.

26.The fourth ground of appeal is that the trial judge wrongly rejected the defence submission of no case and failed to give an appropriate Reasons for Judgment for that decision.

27.At the hearing of the application Mr Haynes applied for leave to amend his grounds of appeal to include a fifth ground of appeal to the effect that by reason of the first to fourth grounds of appeal the conviction was unsafe and unsatisfactory.  As the application was unopposed I granted him leave to do so. 

The respondent’s submission

28.Mr Derek Wong, Senior Public Prosecutor, appeared on behalf of the respondent.  In respect of the first ground of appeal Mr Wong submitted that the applicant’s various complaints in respect of the defects he asserted existed in the evidence of X and her mother had all been dealt with by the judge in his Reasons for Verdict. 

29.As to the second ground of appeal Mr Wong submitted that it was evident from the transcript of the exchange between X and the judge and Mr Murray, who appeared as counsel for the prosecution, that the only reason X did not wish to view her video recording was because she felt she had a clear memory of what she had said in it.  He submitted that there was no basis for Mr Haynes to suggest that there is any other reason for her declining to view the video. 

30.As to the third ground of appeal Mr Wong submitted that the re-examination was legitimate as it did, in fact, arise from cross-examination. In his cross-examination Mr Haynes had asked X whether she could remember how the applicant touched her and she had said she could not and so the prosecution was entitled to clarify that matter with her. 

31.In respect of the fourth ground of appeal Mr Wong simply submitted that as this ground was based on the various complaints raised in respect of the first ground of appeal that there was no merit in it. 

Discussion

32.The judge was acutely conscious of the need to carefully scrutinise the evidence of X before accepting it and was fully aware of the issues raised by the applicant in respect of the mother and her motive to lie. 

33.A key matter on which Mr Haynes relied was the apparent conflict between X’s evidence and that of her mother on the issue of whether X’s relating of what the applicant did to her was preceded on both occasions by the mother revealing her own incident with her uncle. 

34.In order to understand how this conflict arose it is necessary to have regard to Mr Haynes’s cross-examination of X.  In his cross‑examination of X Mr Haynes elicited from her that her mother was trying to leave the applicant and keep custody of X and her sister.  He further elicited from X that the mother was worried she might not be given custody of the children and that custody might be given to the father. 

35.When reading the transcript of the cross-examination it must always be remembered that the defence did not dispute that there were in fact two conversations between the mother and her daughters and common to both conversations was some sex education.  When Mr Haynes cross-examined X he referred to the first occasion that X told her mother of the indecent assaults. The evidence was as follows:   

“Q. Yes. Now, you can’t remember the exact day, the exact time, when you first told your mother about this, can you? Is that right?

A. Yes.

Q. For example, perhaps this might help you. Can you remember where you were when you first told your Mum?

A. At home.

Q. Yes. And can you remember whether anyone apart from your Mum was present?

A. My sister.

Q. So your little sister was there.

A. Yes.

Q. And how did you start to tell your mother?

A. Well, first she told me about -- she told me about -- I can’t actually remember.

Q. Well, I’m going to try and jog your memory, okay, and you tell me if I’ve got it wrong. Did she start to tell you that when she herself was only about 13, her uncle had touched her improperly?

A. Yes.

Q. Yes. So you were then almost at your 10th birthday, all right? Yes?

A. Yes.

Q. And your mother tells you about improper sexual touching by her uncle when she herself was only about 13, right?

A. Yes, she told me about that and then I tell her my incident.

Q. Yes. So the topic of sexual incident was introduced by your mother.

A. Yes.

Q. Yes. Was there ever any talk about how, if your father had touched you wrongly, your mother would have a much better chance of getting custody when the divorce happened?

A. No.

Q. But did your mother tell you why -- you see, she spoke about being abused by her uncle before you said anything about your father doing anything wrong, right?

A. Because I think I was ready to learn about that just in case if anyone do that to me.

Q. Well, yes, but so she starts to talk about men touching a young girl, right?

A. Yes.

Q. What, was this suddenly introduced after breakfast, or what?

A. Suddenly -- I think after lunch ordered.

Q. But that was in the days when she and your father were constantly fighting, and she was talking about leaving him and divorce, right?

A. She did not talk to him about that, but she talked of that to me and my little sister.

Q. Yes. And so having introduced the topic of bad touching by older man on a young girl, that caused you to tell her that your father had touched you when she was away in Beijing.

A. Yes.

Q. And did she tell you during the conversation about her uncle -- did she tell you that she was recording the conversation on her telephone?

A. No, I -- no, I just found out a few weeks ago - one week ago or maybe two.”

36.The judge was aware of this potential conflict between the testimony of X and her mother and sought to clarify it in his own questioning of X at the end of her evidence.  This led to the following exchange:

“BY COURT

Q. Hello.

A. Yes.

Q. I have some questions for you, right? You mentioned about the conversation with your mum when you told her that your father touched you, is that right?

A. Yes.

Q. I am talking about this conversation, and this conversation was recorded by your mum, is that right?

A. Yes.

Q. Now, before this conversation, did you tell your mum about the incidents when your father touched you?

A. No. My mother tell me that first and then I tell her about my incident with my father.

Q. Well, you talk about the sex education, right - the conversation.

A. Yes.

Q. Did your mum tell you about the sex education before you told her the incident when you were touched?

A. Yes.

Q. Did she tell you the sex education and you told her what happened on that night on the same day, or on different days?

A. On the same day.

Q. And at that time you didn’t know that she was recording the conversation.

A.   No.”

37.Not having got anywhere with his own questioning, the judge was aware of the need to address this issue in his Reasons for Verdict where he said of this apparent conflict:

“77. Mr Haynes submits that according to the evidence of X, it was after N telling her own experience of being sexually abused that X talked about the alleged incident. With respect, I cannot agree with this understanding of the evidence. I do not think that X was referring to the first day she mentioned about the alleged incident. It is apparent from the conversation recorded in the audio recording that there was a previous conversation about the alleged incident the day before.

78. Considered in the context of her evidence, when X said her mother told her story first, she was referring to the conversation recorded by N.  It happened on the second day.  I do not think there is inconsistency between X and N in this regard.”

38.In his cross-examination of X Mr Haynes made no attempt to distinguish between the two conversations.  He started by referring to the first time X told her mother of the applicant’s actions and finished by referring to the fact that the conversation was recorded.  Yet, it was common ground that the only conversation that was recorded was the second one.  From the way Mr Haynes conducted the cross-examination of X, seamlessly moving from the first to the second conversation without seeking to distinguish between them, it is hardly surprising that X gave the answers she did.  In the circumstances those answers could not be treated as affirming the defence case.  In my view it is not reasonably arguable that the judge erred in the way he resolved the apparent conflict between X and her mother on this issue.

39.Much of the judge’s discussion of the evidence of X is concerned with addressing matters raised by Mr Haynes.  His Reasons for Verdict read as a thorough and careful analysis of Mr Haynes’s complaints.  The assessment of the reliability and credibility of the applicant’s evidence was very much a matter for the trial judge and I can detect no reasonably arguable error in that assessment.  

40.As I have said, the defence case was that X had been manipulated by her mother into making up a false story about the applicant by the mother relating her own incident from her childhood.  X’s evidence from her cross-examination by Mr Haynes was as follows:

“Q. When your mother introduced this topic to you some time after she had come back from Beijing, did you ask her why she was suddenly telling you about that?

A. I don’t think so.

Q. No. Did you understand that your mother, by that conversation, was suggesting to you that maybe you had been the victim of some sort of wrong touching by an older man?

A. Excuse me? May you repeat that again?

Q. Before she introduced this topic -- sorry. It was her introducing this topic that caused you to tell her these things about your Dad, right?

A.   Yes.” 

(Emphasis added.)

41.Later in his cross-examination he put his case to X saying:

“Q. And then I have to suggest to you that the idea of saying that your father had done something wrong with you - speaking it out - only came to you when your mother started this sex education talk.

A. Yes.”

and later still:

“Q. So what I suggest is that you … these accusations against your father were told by you to your mother when she talked about sex abuse, and you weren’t very happy about making accusations against your father just to help your mother. Is that what was happening.

A. No -- were any (?) that I remember.

Q. Well, is it right, would you say, that your mum can be quite fierce if she doesn’t get her way, and get quite angry?

A. A little bit, but not that fierce.”

42.After being cross-examined along the lines that it was all a bad dream, that she was half–asleep and could not remember clearly and that her claims as to what happened were a response to being pressured by others to remember, she emphatically said:

“The touching did happen.”

43.Finally Mr Haynes asked:

“Q. Yes, And if it hadn’t been for your mother talking to you about sex education and about being abused herself, you would have put this whole thing behind you and not done anything about it; forgiven your father.

A. Well, I think the thing that he did is … I can forgive him, but I will not leave in the past yet.

Q. No. But you weren’t going to do anything about it until your mother brought up this.

A. Yes.”

44.The suggestion by Mr Haynes that X was manipulated by her mother into making a false accusation against the applicant was explicitly rejected by the mother and, in my view, no support for it is found in the cross-examination of X.  X’s answers do no more than agree that the mother’s story prompted her to repeat what she had revealed to her the previous day.  The defence theory remains nothing more than that – a speculative theory unsupported by evidence.  The fact that the marriage had broken down does not, on its own, allow of an inference that X was fabricating a complaint to assist her mother.  I can see nothing in the judge’s Reasons for Verdict to suggest he has erred in rejecting this submission. 

45.I do not find the first ground of appeal to be reasonably arguable.

46.There is nothing in the second ground of appeal.  The video recording is regulated by the statutory provisions in section 79C of the Criminal Procedure Ordinance, Cap 221.  There is nothing in those provisions which requires the witness to confirm the correctness of the witness’s video testimony.  This ground of appeal is not reasonably arguable.

47.The third ground of appeal arose out of questions asked by the prosecutor in his re-examination of X.  Mr Haynes objected to the questioning but the judge allowed it to continue.  However, in his Reasons for Verdict the judge said he would not rely on this part of X’s evidence.  There is no reason to doubt the judge’s word that he had no regard to this impugned area of re-examination when he came to consider his verdict.  I do not find this ground of appeal reasonably arguable.

48.There is nothing in the fourth ground of appeal which is based upon the second limb of Galbraith[2], namely that where there is some evidence but it is of so tenuous a character that it would be unsafe to convict on it.  However, the decision of Galbraith makes it clear that where the strength or weakness of the prosecution evidence depends on the view to be taken of a witness’s reliability then the judge should find a case to answer.  This is exactly such a case.  As to the failure by the judge to provide reasons for finding a case to answer, this is satisfied by his Reasons for Verdict in which he set out in some detail why he found X to be both reliable and credible.  This ground of appeal is not reasonably arguable.

49.Having found none of grounds 1-4 to be reasonably arguable I do not find it reasonably arguable that the convictions are unsafe or unsatisfactory.  

Conclusion

50.For these reasons I refuse the application for leave to appeal against conviction.

Mr Derek Wong SPP, of the Department of Justice, for the respondent

Mr Haynes John Charles, instructed by Tanner De Witt, assigned by DLA for the applicant (On conviction)

The applicant appeared in person (On sentence) 

[1] This recording of their conversation was adduced as a defence exhibit on the basis that it was a prior inconsistent statement of X.

[2] R v Galbraith (1981) 73 Cr App R 124