HKSAR v. Chan Ho Fai

HCMA 632/2017

[2018] HKCFI 1316

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 632 OF 2017

(ON APPEAL FROM WKCC 268 OF 2017)

________________

________________

________________

JUDGMENT

________________

1.The Appellant, a man of previous good character in his early thirties, appeals against his convictions after trial in the Magistrates’ Courton two charges of indecent assault, contrary to section 122(1) of the Crimes Ordinance (Cap 200). On Charge 1, the prosecution’s case, which the Magistrate found proved beyond reasonable doubt, is that on an unknown day between mid and late August 2015 the Appellant indecently assaulted a girl (referred to as “X”), then aged 14, at a tutorial centre in Tuen Mun. On Charge 2, the prosecution’s case, which the Magistrate found proved beyond reasonable doubt, is that on an unknown day in early December 2015 the Appellant indecently assaulted a girl (referred to as “Y”), then aged 15, in his flat in Tuen Mun.

2.As to Charge 1, the Appellant’s conduct as described by X wasas follows.  He had given her a key to the tutorial centre and asked her to go there to receive a white board from him.  She went there with another teenaged girl (referred to as “Z”).  When the Appellant arrived, he sent Z away to buy food for him.  After Z left, the Appellant pulled her, X, to sit on his left thigh, facing sideways, with his left shoulder facing her right shoulder, his legs wide apart.  He placed one of his hands on her hand and his other hand on her back.  She was dumbfounded and felt uneasy.  She felt that what he did was unreasonable and a bit over the line, but she did not know what to say as they saw each other often. They chatted in that posture for about 5 to 10 minutes during which time he kissed her once.  The kiss was on the right side of her face and part of her lips. He then pulled her back onto her feet, and suggested that they leave to meet up with Z.  They then left the tutorial centre.

3.As to Charge 2, the Appellant’s conduct as described by Y was as follows.  She had done something which had angered the Appellant’s girlfriend (referred to as “Miss”). I pause here to mention that Miss was the coach of a basketball team of which Y was a member and with the training of which the Appellant assisted so as to be considered another coach.  Coming back to Y’s account, it continued as follows.  The Appellant sent her, Y, a WhatsApp message asking her to go to the tutorial centre.  When she arrived there, the Appellant asked her to go to his flat, wait there for Miss and then go for a meal with Miss and ask Miss to forgive her.  She went to his flat with him.  There came a time when they were sitting on the sofa in the living room.  He held her shoulder and started to kiss her.  Initially her mouth was closed, but he used his tongue to prise open her teeth, and his tongue moved up and down and in twisting motions inside her mouth.  He also touched her waist.  What he did scared her.  His phone rang.  After speaking on the phone, he asked her to go with him to meet Miss for a meal.

4.As far as X, Y and Z’s accounts are concerned, the prosecutionrelied not only on their testimony at trial but also on the transcripts of their video-recorded interviews (“VRIs”).  The prosecution also called two other witnesses who gave evidence as PW4 and PW5.  PW4 was a teacher and counsellor at the school which X, Y, Z and another teenaged girl (referred to as “MM”) attended.  PW5 was the principal of that school.  There was a statement admitted under section 65B of the Criminal Procedure Ordinance (Cap 221), being that of PW6 who was a member of the basketball team.

5.The Appellant did not give or call evidence, but he relied on the transcript of his VRI.  This matter was reported to the police after X, Y, Z and MM gave the school their accounts.  All four of them had been expelled from the basketball team before they gave the school their accounts.  The Appellant said in his VRI that X, Y, Z and MM were “framing” him because he had expelled them from the basketball team.

6.The Magistrate indicated that she had the criminal burden and standard of proof in mind.  She said that she took the Appellant’s good character and his reputation in the basketball team and in the school as a righteous man into account in his favour in respect of propensity and credibility.  She said that since X and Y’s complaints to the school were not made until July 2017 which was 11 and 7 months after the incidents the subject-matter of Charge 1 and Charge 2 respectively, she would not treat them as recent complaints but would consider whether there were discrepancies between X and Y’s accounts and what they told the school such as would cast doubt on their reliability.

7.In her Statement of Findings, which consists of 92 paragraphs, the Magistrate had regard to the evidence and arguments in the case.  She discussed at length, among other things, the issues: as to the credibility of X, Y, Z, PW4 and PW5; as to the credibility of the Appellant’s VRI; as to whether the kiss under Charge 1 was accidental; and as to whether the kisses under Charge 1 and Charge 2 were indecent.  She resolved all thoseissues in favour of the prosecution and against the defence.  She found that the prosecution had proved beyond reasonable doubt: that the Appellant had intentionally assaulted X and Y; that his acts were capable of being considered by right-thinking persons as indecent; and that he had intended to commit assaults of that character.  She found that the prosecution had proved each and every element of each Charge beyond reasonable doubt.

8.Three amended perfected grounds of appeal against conviction were filed on the Appellant’s behalf.  The second and third grounds were abandoned.  Only the first ground was pursued.  It reads as follows (with “AB” standing for “Appeal Bundle”):

“

Ground 1

In relation to the convictions on both charges the learned trial magistrate had erred on the law and/or on the facts, by applying the wrong burden of proof as regards the appellant’s defence, of being ‘framed’.

Particulars

1. The learned trial magistrate’s finding is at paragraph 85 at AB page 56 and orally at AB pages 527 R–U.

2. The learned trial magistrate found that she did ‘not accept as the truth that the Defendant had been framed up.’

3. See his defence identified as, ‘he had kicked out X, Y, Z and MM on Sunday and the made up stories to frame him up’: paragraph 38 at AB page 44.

4. This was the defence case and the proper application of the law, is that, the learned magistrate could have accepted the defence that he was ‘framed up’ if it were true or it maybe true: see R v Liberato (1985) 159 CLR at page 515.

5. The learned trial magistrate effectively placed a burden on the appellant to prove this was a fabrication. This matter complained of goes against the finding at paragraph 39, AB page 45 that, ‘the Defendant has no burden to prove his innocence’.

6. In all the circumstances the said two convictions are unsafe and unsatisfactory.”

9.The Magistrate dealt with the credibility of X, Y and Z in paragraphs 76 to 82 of her Statement of Findings, paragraph 82 of which reads:

“ 82. Based on the analysis above on X, Y and Z’s evidence individually and the analysis on their evidence generally, I am satisfied that they are honest and reliable witnesses, and shall accord material parts of their evidence full weight unless otherwise stated in my analysis above.”

10.Then, at paragraph 85 of her Statement of Findings, the Magistrate said this:

“ Credibility of the Defendant’s account in his VRI

85.   The Defendant stated in his VRI that it was a frame up by X, Y, Z and MM, whom he had expelled from the team recently.  The analysis above on X, Y and Z’s evidence negating the possibility of a frame up applies here with the same force, and is therefore not repeated.  I therefore do not accept as the truth that the Defendant had been framed up.”

11.The Magistrate having stated in paragraph 39 of her Statement of Findings that “[t]he Defendant has no burden to prove his innocence”, it is difficult to think that she had gone back on that statement so as consciously to reverse the burden of proof.  But to say (as the Magistrate said in paragraph 85 of her Statement of Findings) that she “[did] not accept as the truth that the Defendant had been framed up” is cause for real concern that she might have lost sight of the question which the burden and standard of proof operated to pose in regard to whether the Appellant had been framed.  That question was not merely whether the Magistrate accepted that the Appellant had been framed.  It extended to whether she thought that he might have been framed.  I do not think that the Magistrate’s statement that she “[did] not accept as the truth that the Defendant had been framed up” can be safely dismissed as a linguistic slip.  All things considered, I do not regard these convictions as safe.

12.The appeal is therefore allowed so as to quash these convictions.  Before deciding whether to order that the Appellant be acquitted or to order a retrial, I will hear the prosecution on whether they seek a retrial, and if they do, then I will hear both sides on the question of acquittal or retrial.

[Hearing counsel on retrial]

13.The Respondent has declined to seek a retrial, so no retrial is ordered.

Mr Prakash L Daryanani, SPP of the Department of Justice, for the Respondent

Mr David Boyton and Mr Raymond K H Chui, instructed by Littlewoods, for the Appellant