HKSAR v. Wong Shing Yam

FAMC No 57 of 2017

[2018] HKCFA 38

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 57 OF 2017 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO 221 OF 2016)

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Appeal Committee: Mr Justice Ribeiro PJ, Mr Justice Tang PJ and Mr Justice Fok PJ

Date of Hearing and Determination: 9 August 2018

Date of Reasons for Determination: 17 August 2018

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R E A S O N S   F O R   D E T E R M I N A T I O N

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Mr Justice Tang PJ:

1.The applicant was a teacher and he was charged with the indecent assault of a seven-year old girl (“PW1”) in his class on two occasions between 1 February 2015 and 18 May 2015.  He was convicted of one and acquitted of the other and sentenced to imprisonment for 12 months.  His appeal was dismissed by Deputy High Court Judge CP Pang on 1 February 2017.

2.The applicant applied, more than eight months out of time, for leave to appeal to this court on the substantial and grave injustice ground.  Initially, one of the grounds relied on was that there had been material non-disclosure by the prosecution.  This ground was rightly withdrawn by the applicant when the respondent demonstrated in its submissions that the complaint could not be sustained.  We mention this because but for this abandoned ground, we might have disposed of the application under Rule 7.

3.At the hearing, essentially, the applicant relied on two points.  First, that the evidence of PW1 that it was the applicant who had indecently assaulted her was unreliable.  Secondly, the allegation that he had indecently assaulted her in a classroom with an open door and in the presence of other pupils was inherently improbable.   

 The evidence

4.PW1 was seven at the time of the alleged offences and eight at trial.  The applicant, as he was entitled to do, did not give evidence.

5.PW1’s evidence[1] was that the assaults took place on two occasions during classes presided over by the applicant.  She was in primary one and there were seven or eight pupils in her small remedial class.  There were four tables in the classroom but only two were occupied.  She shared a table with two boys and sat in the middle.  She said, in respect of the first charge, that the applicant approached her from the right and standing to her right, put his left hand on the table and used his right hand, which went under his left arm, to lift up her dress and touch her very softly,[2] in her words “on my peeing part”.[3]  When asked how she felt, she said “I felt nothing, I just felt that he was -- felt very mad -- I felt very mad at him.”[4]  She also said when the applicant touched her she didn’t look at the person touching her.  She said “I didn’t want to look at him, just -- I intentionally did not want to look, just didn’t want to look.”[5]

6.In respect of the second charge, which PW1 said took place on a later date, she said the applicant was standing behind her and she could feel that that he touched her with his genitals.  She felt that the thing which he used to touch her, was like a gemstone and oval in shape.[6]  The applicant was acquitted of this charge.  Although the Magistrate accepted PW1’s evidence, he said he could not be sure whether the applicant touched her with his fingers or accidentally because of the “space of the passage behind the girl.”  He was of the view the charge had not been proved beyond reasonable doubt.

7.Before us, the applicant submitted that it was possible that PW1 was not touched by the applicant, but was touched by one of her classmates with whom she shared a table.  The applicant relied on what PW1 said under cross-examination:

“Q: I would like to ask you, actually, is there any possibility that the person who touched you was indeed the classmate sitting beside you?

A: No.

Q: Since you told me that you did not see the person who touched you, that is why I have to ask you. As Chu Pak Hei[7] was sitting so close to you, was there any possibility that the person who touched you was a classmate of yours?

A: It was possible.”

8.Understandably, much was made of this evidence both at trial, and before the Deputy Judge.  It was said that the Magistrate and the Deputy Judge ignored the possibility that PW1 had been touched by someone other than the applicant.  We do not agree.  In respect of PW1 as a witness, the Magistrate said “25. I firmly believe that the girl is an honest and reliable witness.”  The Magistrate had the great advantage of observing PW1 as a witness, during cross-examination and re-examination at trial and watching her video recorded interview (“VRI”) which served as her evidence in chief.  He said:

“27. … the course of the incident happened exactly the way the girl told us, and the only reasonable and irresistible inference is that it was the appellant who touched the girl …”

9.On appeal, the Deputy Judge said:

“24. X’s evidence was clear. She saw the appellant approaching from behind, who pressed one of his hands on the table, and then X felt that there was a hand touching her private parts. She did not want to see the hand which was touching her private parts, but she believed that it was the appellant’s [an]other hand which touched her, that is why she said it was the appellant who touched her. Her account is totally understandable. Under thorough cross-examination, she immediately and truthfully told the court that she did not look at for herself the hand which was touching her. Given her age, it is reasonable that she dared not or did not want to look. Her expression was also not strange at all. I do not consider her evidence contradictory.”

10.We have read the transcripts of her evidence.  With respect, the Deputy Judge has correctly summarized PW1’s evidence. 

11.We were referred to what Widgery LJ said in R v Cooper [1969] 1 QB 267 at 271:

“That means that in cases of this kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it.”

12.It is quite clear that the Deputy Judge felt no lurking doubt.  This court does not function as a second Court of Appeal and leave to appeal is only given on the substantial and grave injustice ground if there is a real danger that there has been to the appellant’s disadvantage a departure from accepted norms which is so serious that justice demands an enquiry by the court.

13.It was also argued on behalf of the applicant that the allegation that he had indecently assaulted PW1 in an open classroom and in the presence of other pupils is inherently improbable.  Indecent assault by a teacher on a young person in his/her charge is extremely rare.  But unfortunately, it is not unknown. A teacher is seldom alone with a pupil and a stealthy assault when it is least expected is not so improbable that it can be dismissed out of hand.  The court must decide according to the evidence in the particular case and the trial court is best placed to determine the question. Here, the Magistrate’s decision has been endorsed by the Deputy Judge on appeal.  We can see no basis to interfere. 

14.For these reasons, we refused leave to appeal. 

Mr Robert Pang SC[8] and Mr Lawrence Hui, instructed by ONC Lawyers, assigned by Director of Legal Aid, for the applicant

Mr Derek Lai, SADPP(Ag) and Ms Elisa Cheng (PP) of the Department of Justice, for the respondent