HKSAR v. Y.H.M.

[English Translation – 英譯本]

CACC 82/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 82 OF 2016

(ON APPEAL FROM DCCC NO. 569 OF 2013)

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REASONS FOR JUDGMENT

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Hon Yeung VP (giving the reasons for the judgment of the Court):

Introduction

1.The applicant, Y.H.M., was charged with two counts of indecent assault. He pleaded not guilty and was tried before District Judge Kwok Wai Kin (the trial judge), who on 29 February 2016 found him guilty on both counts and on 9 March 2016 sentenced him to imprisonment for a total of 33 months. Represented by Mr Shahmim K. Khattak and Mr Anthony Lai of counsel, the applicant applied for leave to appeal against conviction and/or sentence. Having heard the matter, this Court on 23 March 2017 dismissed all applications, for reasons which we now give.

Background

2.The victims in the present case were two sisters: X (“Elder Sister”) and Y (“Younger Sister”). They were born in June 1992 and November 1997 respectively. Apart from them, their parents, Mr Wong (transliteration) (“Father”) and Mrs Wong (transliteration) (“Mother”) also had a son (Tai Chai (transliteration)) who was born in July 1995.

3.At the material time, the five-member Wong family were residing in a unit in Lung Fung Garden, Sheung Shui. Mr and Mrs Wong started a private tuition centre (“tuition centre”) in 2007 after the former left the telecommunications company for which he had worked 27 years.

4.Mrs Wong had three elder sisters (including Aunt Wah Wah) (transliteration), one elder brother and two younger sisters (Aunts Kum Kum and Luk Luk) (transliterations). Mrs Wong’s father had a half younger sister (Grand Aunt) with whom he had the same father but not mother. Grand Aunt’s husband was called “Grand Uncle”.

5.Aunt Wah Wah had two daughters, Cousins Wai and Yan (transliterations). They were both younger then Elder Sister but older than Younger Sister. The applicant, being Aunt Kum Kum’s husband, was the uncle of the two victims. The couple gave birth to a son (“Ho Chai” (transliteration)) in October 1999.

6.The applicant and his family used to reside at another unit in Lung Fung Garden, Sheung Shui (the old unit) but moved out subsequently. The applicant’s family and the victims’ family, who were then living in the same building, had frequent dealings and gatherings.

7.The prosecution case was that on a date between 13 November 2002 and 13 November 2003, the applicant indecently assaulted Younger Sister who was paying a visit to the old unit and who was then 5 years old (Charge 1). It was also the prosecution case that on a date between 2002 and 2004, the applicant indecently assaulted Elder Sister who was paying a visit to the old unit and who was then 12 years old (Charge 2).

Prosecution evidence

8.The prosecution evidence against the applicant rested mainly upon the evidence of the two sisters and the confession made by the applicant.

9.According to Younger Sister, one evening when she, then an upper class kindergarten schoolchild aged 5 or so, and her family visited the old unit, on the bed inside the bedroom, the applicant reached out his right palm and put it into the front of her knickers. He put his finger into her vagina and moved it about. Younger Sister said that this went on for about one minute, after which the applicant said to her, “how come your fanny is so warm”. Younger Sister said that before the applicant indecently assaulted her, Cousins Wai and Yan had been watching TV on the bed in the bedroom and it was only after they had left the room and closed the door that the applicant indecently assaulted her.

10.Younger Sister said she did not understand what the applicant had said and done, nor did she know how to react, but she felt “very odd”, “very disgusted”, “very uncomfortable” and “frightened”.

11.Younger Sister said that after the incident she went out of the bedroom and told Mother, who was in the sitting room, that she wanted to go home to sleep. At that time, Aunt Kum Kum and Ho Chai were also present. Younger Sister said that when they were back home she did tell Mother that the applicant had reached his hand into her knickers, although she did not give a detailed account because she felt fearful and “very odd”. Younger Sister said she did not remember how Mother reacted to what she said.

12.Younger Sister further said that subsequently, at Mother’s request, Aunt Kum Kum visited their home to discuss the matter.  Younger Sister briefly recounted the incident to them, but Mother told her to keep quiet about it and not to pursue the matter, the reason being that a family scandal must not be made known to outsiders, otherwise the matter would affect the future of Younger Sister.

13.Younger Sister said that she did not mention the incident to other people but had always remembered it and felt “very frightened”. She said she and her elder sister agreed to be careful when they saw the applicant again and not to stay with him in the same room. Although Younger Sister often saw the applicant at family gatherings, she claimed that she no longer had contact or conversations with him and would even try her best to avoid him.

14.Younger Sister further testified that when she was in Primary 5 or 6 she talked about this matter with “Elaine”, a social worker. Although Elaine said she could report the matter to the police for her, Younger Sister did not take further action and instead only brought up the matter again with Mother. She said Mother was “very angry” and questioned her, “what do you want now?” and also said, “It’s lucky that you kept quiet about it at that time, or else Aunt Kum Kum’s family would have collapsed”.

15.Younger Sister also said she learned from Elder Sister that on the evening following the incident, upon Mother’s request, Aunt Kum Kum visited their home to discuss the matter, and when Aunt Kum Kum was leaving the room, Mother said to Aunt Kum Kum: “Well, Ah Kum, the kids are growing up, you ask Ah Ming (the applicant) (transliteration) to exercise restraint” and things like that.

16.Younger Sister stressed that the matter was not an accident and that she had given an accurate account of her conversation with Mother. Younger Sister even said that when she brought the matter up again with Mother when she was in Primary 5 or 6, as she felt too embarrassed to repeat orally the words “how come your fanny is so warm” that the applicant had said, she wrote these words on a piece of paper and handed it to Mother. However, she agreed that she did not write down that the applicant had put his hand into her knickers and private parts for as long as one minute, nor did she use such words as “private parts” or “vagina” but merely used the words “the part for peeing” to describe the part of her body that had been molested by the applicant.

17.In her correspondence with her parents, Younger Sister repeatedly asked Mother to confirm that she and Elder Sister had notified Mother very early that they had been sexually molested by the applicant, and also questioned the parents why they turned a blind eye to it.  Younger Sister maintained that what happened when the applicant indecently assaulted her was “etched in her memory”.

18.Elder Sister also said that she had also been indecently assaulted by the applicant shortly before Younger Sister was. She further said when Younger Sister complained to Mother after she had been indecently assaulted, she eavesdropped outside the room door and heard Younger Sister say that the applicant touched her private parts over the knickers, but then Mother told Younger Sister to mind what she said. Elder Sister said that as the same thing had happened to her, she rushed into the room and demanded that Mother deal with the matter.

19.Elder Sister said that when Aunt Kum Kum visited their home to discuss the indecent assault on Younger Sister by the applicant, Mother said to Aunt Kum Kum that the two daughters had grown up and demanded that she tell the applicant “not to hug and hold [the girls] again as if they were kids”. In reply, Aunt Kum Kum responded by saying she would ask the applicant to be “more careful”. Elder Sister agreed that Younger Sister was not present when Mother and Aunt Kum Kum had the above conversation.

20.Elder Sister also gave a detailed account of how she was indecently assaulted by the applicant. She said on a summer’s day when she was aged 11 or 12 and in Primary 5 or 6, she went to the old unit to ask to use the computer because her father had locked the computer at home. The applicant opened the door and let Elder Sister into the study to use the computer to do homework and the room door was kept open.

21.Elder Sister said when she was using the computer, the applicant entered the study from the sitting room, held her from behind and “touched” her “chest”. Elder Sister even described the acts the applicant did to indecently assault her, which included reaching his arms forward, passing her shoulders and then “holding” her and “touching” and “squeezing” her breast(s) with both hands. Elder Sister stressed that the case was not that the applicant’s hands reached her chest by going under her arms, but was that they reached from her shoulders down to her chest.

22.Elder Sister said at the time in question, she was wearing a vest undershirt and a short-sleeved T-shirt but not a bra.

23.Elder Sister stressed that she knew what the applicant did was wrong but she did not push the applicant away immediately as she did not know how to react or deal with the matter. But she later turned round, pushed the applicant’s hands away, told him that she had finished using the computer, and then left the old unit hurriedly. The applicant did not say anything at that time.

24.Elder Sister said that she did not tell her parents immediately because “face mattered a lot” to Mother and she had a bad relationship with Father. Elder Sister said there was a family gathering on the Sunday one week after the incident and the applicant would be there, so she told Mother about the matter on Saturday. Mother reacted by saying that the incident was a family scandal and disgrace, that it was not a good thing for Elder Sister, and that it would even break up Aunt Kum Kum’s family. Elder Sister said that she decided not to bring up the matter again but acted with deliberate care and stayed away from the applicant during family gatherings. Nor would she go to the unit alone again.

25.Elder Sister contended that the matter was definitely not an accident. Further, she mentioned this indecent assault on her by the applicant in two of the pages of her diary dated 1 May 2009. The diary recorded that the applicant held her from behind and touched her chest, and that Younger Sister was also a victim. During cross-examination, Elder Sister denied that she knew full well that the applicant came into contact with her chest by accident but, after discussing with Grand Aunt and Grand Uncle, described it as an “indecent assault” before informing the police. She also denied that the diary dated 1 May 2009 was made up or newly fabricated, or that, upon relapse of a delusional disorder or mental illness, she wrote a complaint on a blank page of the diary or on a new page which she then inserted into the diary.

26.Apart from the evidence of the sisters, the prosecution also relied on the confession which the applicant made under caution following his arrest. Regarding the allegation of having indecently assaulted the sisters, the applicant said that it was only when he was holding Younger Sister while watching TV that “the hand accidentally touched her private parts. I did not intend to touch her. I did not intend to indecently assault the two of them”.  In a subsequent video-recorded interview with the police, the applicant provided further explanation. He reiterated that he only “touched her private parts by accident”, “I was holding her and, well, touched the thigh, well, the inner thigh, and then touched [it]”. The applicant also said that at the time of the incident, Younger Sister was 5 years old and he was helping Mrs Wong “look after the kid(s)”, and that when he was holding Younger Sister while watching TV, he “touched her private parts by accident” over her pants.

27.The applicant said that he touched the private parts of Younger Sister for a few seconds, but as he was focusing on the TV show, he was not aware of the need to withdraw his hand. He went on to explain that it was the middle finger or the little finger of his right hand that touched Younger Sister’s “sexual organ”.

28.During the police interview, the applicant also admitted that he had held Elder Sister (who was then aged about 11) from behind and touched her chest by accident when they were playing. He said that he “liked girls, wanted to have a daughter and tried but in vain, wanted to hold her [sic] very much when seeing girls”. The applicant considered his behaviour normal as he was merely playing with them.

29.The applicant said he knew that Younger Sister had complained to Mother and senior members of the family about the aforesaid incident, and he had even been “cautioned” and “scolded” by family member(s) as a result of such complaint, and so he thought that was the end of the matter.

30.Although the charges were straightforward and the evidence against the applicant not complicated, the trial was very long as the sisters were cross-examined on some ancillary issues by both parties. And in order to address those issues, it was necessary for the trial judge to write, as he did, Reasons for Verdict which ran to over 100 pages.

31.Both sisters said that the two of them and Tai Chai had been physically abused and improperly treated by their parents when they were kids. The sisters said Father often inflicted violence on them for various reasons, thereby causing them injuries, but Mother defended Father and demanded that family scandal must not be made known outside the family. They said that Elder Sister even covered with clothes the marks of injuries caused by the physical abuse in order to ensure that the matter would not come to light.

32.They said that apart from frequently subjecting them to physical punishment and verbal abuse, Father also supervised them strictly and disrespected their privacy, including restricting and monitoring the use by them of the computer and checking their Internet browsing records. They said that not only did Mother defend Father’s improper conduct by all means but even asked them to make allowances for Father.

33.Elder Sister admitted that when she had grown up, she refused to accept Father’s violent behaviour and would even fight back when being attacked. As a result, their relationship was extremely poor.

34.Both sisters mentioned an incident that happened on 17 September 2012. Elder Sister said that it started off when she spilled a bag of rice by accident and had a row with Mother about cleaning up. She then went back to her room and shut the door. But Father kept knocking on the door and then even kicked the door open, pulled her from the bed down to the floor, and dragged her out to the sitting room. She was injured as a result. Elder Sister agreed that she would lose control and fight back when being attacked by her parents and Tai Chai.

35.The incident eventually necessitated the intervention of Grand Aunt and Grand Uncle. They discovered that Mr Wong had recorded the scenes of violence between Elder Sister and Mother. After Mr and Mrs Wong left the unit, Grand Aunt and Grand Uncle suggested that Elder Sister move into a storeroom inside the tuition centre. But as it took time to clean up the place, Elder Sister decided to reside with Grand Aunt and Grand Uncle in the meantime.

36.In the end, Elder Sister lived at the home of Grand Aunt for over half a year. Elder Sister said she neither wanted to see her parents nor had contact with them, and neither her parents nor Mother’s elder sister had contacted her, although she received from time to time soup that Mother prepared. Elder Sister said during that time she disclosed the indecent assault to Grand Aunt and Grand Uncle but did not take any action.

37.Younger Sister also recounted how the police became involved in the matter. Younger Sister said Mother did not let other people know that Elder Sister had moved in with Grand Aunt, and it was only after half a year that she told Aunt Kum Kum about it. Mother’s elder sisters then began a frantic search for Elder Sister who, however, refused to take their phone calls. On 30 March 2013, Elder Sister agreed that Aunt Kum Kum could bring her soup, but Aunt Kum Kum went to look for Elder Sister with her parents without informing her and Grand Aunt and Grand Uncle of this in advance.

38.Younger Sister came to know about this and informed Elder Sister and Grand Aunt. As a result, Elder Sister hid herself up on the podium of the building to hide from them, while Aunt Kum Kum and their parents had a heated argument with Grand Aunt and Grand Uncle. In the end, the police intervened.

39.Younger Sister said that Father was emotionally unstable after returning home, and she feared that her having tipped off Elder Sister would cause Father to take follow-up action and inflict violence on her. She therefore decided to spend the night at Aunt Kum Kum’s place. Younger Sister stressed that she slept with the room door locked as she was afraid of the applicant.

40.The following day, Aunt Kum Kum and Aunt Luk Luk went with Younger Sister to Grand Aunt’s place, and the two sisters told them the problems which had existed all along at home. They said that Father was mentally ill and physically abused them, but Mother’s elder sisters did not agree and even said that it was for the sisters’ own good that Father beat them up.

41.Younger Sister then returned to Aunt Kum Kum’s place. As she feared there might be pinhole cameras in the toilet and rooms, she searched for them as instructed by Grand Uncle, but could not find any. In the end, Younger Sister decided to go to the clubhouse of Lung Fung Garden to take a shower instead of taking it at home.

42.Younger Sister said before she went for a shower, Father called and said that he had made an appointment with a psychiatrist. Having met a social worker, she said she was unwilling to see a psychiatrist. However, Aunt Kum Kum said Younger Sister had agreed to do so and should not change her mind and “make use of” the social worker. Once again, the police were brought in to deal with the matter eventually, and the conclusion was that no one could compel Younger Sister to visit a doctor. In the end, Younger Sister left Aunt Kum Kum’s place and went to Grand Aunt’s home to stay with Elder Sister, one of the reasons being that she was at odds with Aunt Kum Kum because of some other matters and Aunt Kum Kum even called Grand Uncle a “vermin”.

43.Younger Sister said Grand Aunt learned about her having been indecently assaulted by the applicant through Elder Sister. Grand Aunt took the view that they should fend for themselves and said that the matter was through no fault of theirs and was not something that could never be disclosed. Grand Aunt told the sisters that they could report the matter to the police and she would respect their decision although it was not an easy one to make. In the end, having discussed the matter between themselves, the sisters decided to make a report to the police and recount what happened when being indecently assaulted by the applicant.

44.Grand Aunt said in her testimony that she was a registered social worker. She recounted what happened during the time when Elder Sister moved in with her in September 2012. She said that on one occasion when she took a stroll with Elder Sister, she mentioned that she had been indecently assaulted by the applicant. Grand Aunt also described what happened before the two sisters reported the matter to the police on 3 April 2013.

45.She went on to say that on the morning of 3 April 2013, she received a phone call from Younger Sister, and as she kept weeping over the phone, Grand Aunt instructed Grand Uncle to go to check on her. She later understood that Younger Sister was at Sheung Shui Integrated Family Service Centre and Mr Wong and Aunt Kum Kum were compelling her to see a psychiatrist, and the matter led to intervention by the police. That evening, Younger Sister showed up at Grand Aunt’s home and indicated that she felt frightened and unsafe. Elder Sister then told her that both sisters had been indecently assaulted by the applicant, and she said they could consider whether or not to report the matter to the police. Grand Aunt agreed that before they made a report to the police on 3 April 2013, the two sisters had not told her the details of the matter, and that she was not present when statements were being taken from them. Grand Aunt indicated that she came to learn about the facts of the indecent assault only on 11 April 2013 when she accompanied Younger Sister to an interview by a social worker. Grand Aunt denied having abetted the two sisters to describe what was accidental physical contact as indecent assault.

Defence case and evidence

46.The defence denied that the applicant had indecently assaulted the two sisters. The defence case was that the applicant might have had some physical contact with them, but that contact  was accidental, and the applicant had no indecent intent at the time in question.

47.The defence even alleged that both sisters were mentally ill, and that the allegations they made against the applicant were the result of delusional disorders and/or lies and therefore completely unreliable or incredible.

48.The defence submitted that both sisters had a normal and happy childhood but subsequently suffered from persecutory delusion which developed into “shared delusional disorder” (“SDD”). The defence further contended that, with a view to breaking up the family of the two victims, Grand Aunt and Grand Uncle exercised undue influence over them, and this caused them to suffer from mental illness, and delusions that they had been physically abused and improperly treated by their parents, which eventually led to a breakdown of their relationship with their parents and their running away from home. And their mental illness, it was submitted, had  deluded them into believing that they had been indecently assaulted by the applicant, as a result of which they made false accusations against him.

49.According to Dr Wong Chung Kwong (“Dr Wong”), expert witness for the defence, it was highly unlikely, on the basis of the theory of cognitive development, that Younger Sister could recall clearly what happened when she was 5 years old, and the allegation that she had been indecently assaulted by the applicant was a statement which stemmed from her persecutory delusion. The defence also relied on the explanation he gave in the post-recorded statement, namely that the incident was caused by accident.

50.However, the applicant did not give evidence for himself. He only called Mr Wong and Cousin Wai to give evidence in order to rebut the evidence of Elder Sister, Younger Sister and Grand Aunt. The applicant also called Dr Wong to try to convince the court that the two sisters had delusional disorders and hence their evidence was not reliable.

51.In her testimony, Cousin Wai disagreed with the allegations made by the two sisters against the applicant. Her position was that, based on her observations, the applicant could not have had any opportunity to indecently assault the two sisters, the reason being that Younger Sister had never been on the bed with the applicant inside the room with its door closed. She said that in 2007, the only place at home where there was a TV set was the sitting room. She said it was not correct to say, as Younger Sister did, that the three cousins had sat together on the bed of the applicant and that Younger Sister was in the end left behind in the room with the applicant. Further, there was no TV set or computer inside the room at the time in question. Cousin Wai said, based on her observations, the two victims and Tai Chai enjoyed a harmonious relationship with their parents and the relatives were close to each other. She stressed that she had never seen any marks from injuries on the two victims or Tai Chai, nor had she heard the two sisters complain about having been physically abused by the parents. However, she indicated that she did not know why the two victims had broken up with their family.

52.Cousin Wai further said that the applicant was of good character and got along well with kids. She said she had been in contact with the applicant ever since she was a kid and had never felt she had been indecently assaulted by him. She firmly believed that the applicant would not indecently assault the two sisters.

53.In his evidence, Mr Wong admitted that he had only used corporal punishment on Elder Sister and Tai Chai but never on Younger Sister. He considered that, as Elder Sister was the eldest of the three children, he would usually use corporal punishment on her when the children quarrelled, and the corporal punishment used on Tai Chai had mostly to do with his grades at school. Mr Wong denied having ever caused injuries to the children in using corporal punishment on them or beaten them with any objects.

54.Mr Wong also denied having unreasonably restricted the victims in their use of the computer or improperly invaded their privacy.

55.Mr Wong admitted that he had sworn in the presence of his children, but said that this was for the purpose of venting his feelings and not scolding the children. However, he admitted that he had “very occasionally” sworn at the children when they were naughty.

56.Mr Wong thought that the victims had a happy childhood. He also recounted in detail the row which arose from Elder Sister spilling rice on 17 September 2012. He said Elder Sister blamed Younger Sister for having caused the incident, and so she rushed to Younger Sister’s room to scold her with intent to attack her and also swore at Tai Chai. Later, Elder Sister even swore at Mother and had a clash with her. Mr Wong denied having inflicted violence upon Elder Sister, and said that she even lost control because he used a phone to record her improper behaviour. This in the end caused Grand Aunt and Grand Uncle to step in to conciliate between the parties and also caused Elder Sister to move in with them.

57.In order to avoid Elder Sister having to live with Grand Uncle for a long period of time, Mr Wong arranged for one of the rooms in the tuition centre to be Elder Sister’s place of residence, but he had no idea whether Elder Sister had lived there. He admitted that he arranged for someone to change the lock of that room on 2 April 2013 to take back control over that room.

58.Mr Wong said he had not heard from Elder Sister between 17 September 2012, the date she left the family, and 30 March 2013. Mr Wong also described what led to serious conflict between the two parties on 30 March 2013 when he went with his wife and Aunt Kum Kum to Grand Aunt’s place to look for Elder Sister.

59.Mr Wong pointed out that on 31 March 2013 he learned for the first time that he was said to be mentally ill, and the two sisters also believed this to be true. He said he noticed that evening that Younger Sister looked scared and this prompted him to consider it necessary to seek help from a psychiatrist. As a result, he made three appointments on 2 April 2013 with Dr Tsang Fan Kwong for himself and the two victims to be medically examined the following day. But the two victims did not turn up and, in the evening of the same day, made a report to the police complaining that they had been indecently assaulted by the applicant.

60.Mr Wong agreed that after he knew the victims had made a police report on 3 April 2013, he made enquiries with Mrs Wong and learned that Younger Sister had back then complained to Mrs Wong that the applicant had come into contact with the part of Younger Sister’s body for “peeing” and Mrs Wong had sought clarification from Aunt Kum Kum and the applicant. Mrs Wong’s understanding was that the applicant “had inadvertently had one contact” with Younger Sister when playing with her. When he enquired with Elaine Tsang, the social worker at school, she indicated that Younger Sister had not told her about that incident.

61.To support the suggestion that the victims had “delusional disorders”, the defence called Dr Wong to testify. Dr Wong had not seen either of the two sisters, less so examined them. Based on information he had obtained on the two sisters, he prepared a number of reports which pointed out that the two sisters were suffering from the rarely seen SDD.

62.Dr Wong’s first four reports, dated 27, 28, 29 January 2014 and 15 February 2014 respectively, related to Mr Wong and the two sisters. In the first report, Dr Wong confirmed that Mr Wong was not suffering from mental illness; the second report, on the other hand, stated a confirmed diagnosis that Younger Sister was suffering from persecutory delusions and also SDD. In his third report, Dr Wong made a preliminary diagnosis that Elder Sister was very likely to be suffering from a delusional disorder, in particular SDD, but added that he had to obtain and study Elder Sister’s diary before he would prepare a report of confirmed diagnosis. The fourth report showed Dr Wong’s diagnosis that Elder Sister was also suffering from persecutory delusions and also SDD.

63.Shortly before the trial commenced on 17 February 2014, the defence provided the prosecution with Dr Wong’s first four psychiatric reports in respect of Mr Wong and the two sisters. With the consent of both parties, the trial judge first heard the evidence of the two sisters and then adjourned the case to enable the prosecution to prepare its own expert evidence. The judge also gave leave to Dr Wong to stay in court to observe the two sisters when they gave evidence. Subsequently, the defence obtained the transcript of the evidence given by the two sisters, and in early June, Dr Wong compiled two supplemental reports on the sisters which quoted part of their evidence.

64.By the time the factual witnesses for both parties had finished giving evidence, the prosecution had still to engage an expert. For that reason, Dr Lai Tai Sum Tony (Dr Lai), expert witness for the prosecution, did not get to observe the sisters giving evidence.

65.Dr Lai compiled his first expert report on 13 October 2014. When the trial resumed on 14 October 2014, the defence objected to Dr Lai giving evidence by way of rebuttal and took the view that the prosecution should reopen its case for Dr Lai to testify. The defence stressed that they had already informed the prosecution two weeks prior to the trial that they were going to call Dr Wong, and had delivered the reports to the prosecution before the trial commenced. The defence submitted that, as Dr Wong’s evidence neither came unexpected nor arose ex improviso, so the prosecution was not entitled to adduce rebuttal evidence after the defence had closed its case. The defence cited cases such as R v Days [1940] All ER 402 and R v Scott (1984) 79 Cr App R 49 to support its position.

66.The trial judge did not accept the defence argument. He pointed out that in Days, the prosecution alleged that the defendant had forged the signature on the cheque, and therefore the evidence of the handwriting expert that the signature was a forgery went to one of the elements of the offence that the prosecution had to establish. The trial judge pointed out that in the present case it was not necessary for the prosecution to prove that the sisters were not mentally ill because it was not an element of the offence charged against the applicant. He stressed that before Dr Wong testified, there was no evidence whatsoever to indicate that the sisters were mentally ill, and therefore the defence must first discharge the burden of proving that they were mentally ill and hence their evidence was not credible or reliable.

67.The trial judge in the end held that Dr Wong should give evidence first, and having heard such evidence Dr Lai would be allowed to give rebuttal evidence. The trial judge also directed that Dr Wong could stay in court to listen to such evidence and/or points as Dr Lai might give. If Dr Lai mentioned any point either not contained in his reports or not put to Dr Wong via cross-examination by the prosecution, the defence could apply to call Dr Wong again to give evidence and make additional comments on such new evidence and/or point.

68.Thereafter, based on the relevant transcripts of evidence, Dr Wong produced two supplemental reports. Dr Wong not only confirmed his previous confirmed diagnosis on the two sisters, but even stated that Grand Aunt and Grand Uncle had, by exercising undue influence, caused the two sisters to suffer from delusional disorders, and this, Dr Wong stated, was serious mental ill-treatment of them.

69.In his report dated 13 October 2014, Dr Lai stated that the information quoted by Dr Wong in his reports was fragmented and incomplete, and further that Dr Wong had taken an unprofessional and improper approach in failing to take all the necessary steps for psychiatric assessment of the sisters. Dr Wong responded to the Dr Lai’s criticisms by way of a supplemental report which also set out his personal background, clinical and expert experience and the international recognitions, with a view to strengthening the credibility of his opinions. Dr Lai also compiled a supplemental report in respect of Dr Wong’s said response.

70.Dr Wong said in evidence that the special characteristic of SDD was that it was a delusion which developed in an individual by reason of his/her close relationship with another person suffering from a mental disorder with prominent delusional symptoms. The latter person was known as the “primary case” or “inducer”. The former gradually recognised/shared all or part of the latter’s delusional beliefs due to the close relationship between the two.

71.Dr Wong said that, based on the information in hand which related to the sisters including Mr Wong’s written and oral statements, family photos and videos, school reports, Elder Sister’s diary, Younger Sister’s weekly journal, and the WhatsApp messages and letters with parents, Dr Wong was able to conclude that both sisters suffered from delusional disorders as well as SDD, and their mental abnormality would have affected their state of mind, thereby casting grave doubts on the truthfulness of their evidence.

72.In essence, Dr Wong took the stance that, if the sisters had indeed been physically abused and ill-treated by their parents, then the family photos and videos would not have captured scenes in which the sisters were joyous and happy, and they would have had bad grades at school, and their writings, journal and diary would have been devoid of words and phrases expressing their concern and love for their parents. Dr Wong fully accepted Mr Wong’s statement that he had never physically abused or improperly treated the two victims. It followed that their allegations that their father had acted improperly were the result of their delusional disorders. Dr Wong based his diagnosis on the false beliefs that the sisters held even though they had neither been improperly treated by their parents nor been indecently assaulted by the applicant.

73.Dr Wong contended that before 2006 in the case of Elder Sister, and before 2011 or 2012 in the case of Younger Sister, they both led normal and happy childhoods. Their parents subjected them to appropriate discipline but did not inflict violence upon them. But later, with the imperceptible onset of their illness, they began to believe they had been physically abused. Dr Wong took the view that the sisters’ said belief was false but unfaltering.

74.Dr Wong took the view that the sisters were suffering from persecutory delusions and that it showed signs of “systematization” and “generalization”, so that they considered themselves being harmed not only by their parents but also by others including the applicant, relatives, teachers, social workers, etc. And “generalization” meant that their ability to perceive, thoughts, moods and memories were all affected by their mental illness, rendering their evidence unreliable.

75.Based on the entry dated 1 May 2009 in Elder Sister’s diary, Dr Wong opined that Elder Sister began to fall ill in May 2009. At that time, her “views” of her parents turned from positive to negative. But it was only later － in August 2010 or so －  that her delusional disorder truly manifested, and the entry dated 28 August 2010 in her diary gave some indication of the status of her illness.

76.Dr Wong also took the view that Younger Sister was mentally normal before 2011 or 2012 and that it was very difficult to pinpoint the time of the onset of illness. Dr Wong opined that by the time Younger Sister reported to the police that she had been indecently assaulted by the applicant, her delusional disorder had already manifested, and when she sent the WhatsApp messages to her parents, she was under full-blown attack of the delusional disorder.

77.Dr Wong came to the conclusion that both sisters suffered from delusional disorders and SDD and hence neither of them was a veracious and reliable witness, and the court should not act on their evidence.

78.Dr Wong further pointed out that according to Jean Piaget’s theory of cognitive development, the age of 5, which was Younger Sister’s age when she said the offence occurred, was the pre-operational stage, in which a child was yet to understand concrete logic and mentally manipulate information, and was therefore egocentric and unable to see the viewpoints of others or to use his/her linguistic ability in a sophisticated way. Accordingly, Younger Sister had no more than a vague memory of the incident, and even if she tried to recall the incident, she could only recall periods of time with even greater vagueness. Dr Wong cited the decision in R v H (JR) (Childhood Amnesia) [2006] 1 Cr App 10 to support his statements.

79.Dr Wong reached the conclusion that it was very unlikely for Younger Sister to be able to recall clearly what happened in the incident. He even took the view that the account or contrived account that she gave of the incident might have been a frame-up or a mistaken account derived from her persecutory delusion.

80.After Dr Wong finished giving evidence, the prosecution called Dr Lai to rebut Dr Wong’s evidence and diagnostic findings. Dr Lai had neither examined the sisters nor analyzed the materials that Dr Wong relied on, but he considered the materials relied on by Dr Wong fragmented, unverified and unreliable. Dr Lai took the view that Dr Wong’s diagnostic approach was unfair, unsophisticated and even failed to meet the necessary diagnostic requirements in the field of psychiatry.

Decisions of the trial judge

81.The trial judge stressed that the expert witnesses were obliged to assist the court by expressing objective and unbiased opinions and should never assume the role of counsel or advocate. He pointed out that the expert witnesses were under a duty to specify the scientific standards by which they tested their conclusions, so that the court could apply those standards to the proven facts and make independent judgments.

82.The trial judge had dealt at great length with Dr Wong’s evidence. He took the view that Dr Wong’s judgments, which were not based on comprehensive, accurate and objective information, showed that he had already taken a stance regarding the incident beforehand. He stressed that Dr Wong’s diagnosis set out in his second, third and fourth reports, namely that the two sisters were suffering from persecutory delusions and also SDD, was made without having examined or even seeing the two sisters. He considered Dr Wong’s approach slipshod and unconvincing.

83.The trial judge rejected Dr Wong’s statement that observing them giving evidence in court was tantamount to having examined their state of mind. The trial judge took the view that the further reports Dr Wong prepared after listening to the sisters’ testimony showed that he was playing the role of counsel rather than giving expert evidence, for the reason that some of the points he made were simply beyond his expertise. The trial judge stressed that as a matter of fact, Dr Wong had no evidence to prove that Grand Aunt and Grand Uncle had exercised any undue influence over the sisters.

84.The trial judge pointed out that Dr Wong’s conclusion that the sisters’ allegations against their parents were not true was based merely on one-sided statements made to him by the parents, and ruled that Mr Wong was a “loving father” and that he and Mrs Wong were “good parents”. The trial judge took the view that Dr Wong’s judgments were not objective and lopsided and that his diagnosis, rested on the factual basis as it stood, was not one which he could have made within his expertise. The trial judge considered Dr Wong in fact did not have sufficient grounds to enable him to believe Mr Wong. The trial judge explained in detail the basis on which he came to that conclusion.

85.The trial judge also examined, one by one, the bases of Dr Wong’s diagnosis. He took the view that the diagnostic methodology adopted by Dr Wong was full of loopholes and shortcomings, and that the information Dr Wong relied on did not support his conclusion. The trial judge stressed that Dr Wong started off by presuming that both sisters were influenced by mental illness instead of considering all the information before coming to a conclusion.

86.The trial judge found that Dr Wong had a predetermined position and failed to objectively analyse the relevant information including the family photos, videos, school reports, writings, diary and so on. The trial judge explained in great detail the aforesaid conclusion that he reached. He found that Dr Wong in fact did not have sufficient grounds to support his diagnosis on the sisters. He pointed out that part of the information Dr Wong relied on did not support his conclusion and that his judgment was wrong. Moreover, the content of Elder Sister’s diary was not in line with Dr Wong’s view that she had a happy childhood.

87.The trial judge found that he could not attach any weight to the evidence of Dr Wong.

88.In the end, the trial judge found that the sisters were not under any false belief of being persecuted by their parents, and that they did not suffer from any delusional disorder, not to mention SDD.

89.The trial judge also very carefully analyzed the evidence of the sisters and tested the credibility and reliability of their evidence from the perspective of the defence.

90.The trial judge set out in detail the events leading to the sisters reporting the matter to the police on the evening of 3 April 2013 and the reasons causing them to accuse the applicant of indecently assaulting them. The trial judge said it was out of fear of “score-settling” and violence from the father that Younger Sister was willing to go to the applicant’s home. Therefore, that matter shed no light on the sisters’ allegations against the applicant, and it was in order to protect Younger Sister that they reported the matters to the police. The trial judge pointed out that Grand Aunt and Grand Uncle did not stand to gain anything from the sisters’ severance of the relationship with their parents, and that the sisters had no reason to target the applicant.

91.The trial judge found that the discrepancies in the evidence between Elder Sister, Younger Sister and Grand Aunt were merely the result of different recollections they had of the details and did not mean that any of them lied.

92.The trial judge said according to Younger Sister, she did make a complaint to the mother shortly after she had been indecently assaulted by the applicant － an account which was confirmed by the applicant in his video-recorded interview. The trial judge stressed that Younger Sister complained to her mother that the applicant had “touched (her) private parts” with his hand(s), and the applicant was aware of the complaint Younger Sister made because he had been “cautioned” and “scolded” as a result of the complaint. The trial judge considered that the incident the applicant mentioned was the very incident about which Younger Sister complained to her mother and of which Younger Sister accused the applicant. The trial judge found that Younger Sister had made a “recent complaint” about the applicant’s indecent assault on her.

93.The trial judge did not spell out how he dealt with Elder Sister’s evidence that she eavesdropped on the complaint Younger Sister made to their mother. However, he pointed out that if it was accepted that Elder Sister did in fact hear Younger Sister complaining to their mother that she had been indecently assaulted by the applicant, then Elder Sister’s evidence would support the recent complaint in respect of Charge 1.

94.The trial judge said that there was no recent complaint to support Elder Sister’s allegation against the applicant, but the entry she made in her diary of 1 May 2009 could prove that she had been consistent in making her allegation against the applicant and that she had not fabricated the allegation only shortly before the report made to the police in 2013. The trial judge stressed that the relevant diary showed no sign of new page(s) having been inserted and that the content of the diary showed continuity, and these were inconsistent with the defence case that the entry in question was written on page(s) left blank in advance or on newly inserted page(s). The trial judge also rejected another allegation made by the defence, namely that Elder Sister wrote the entry in question when her mental illness relapsed. The trial judge did not accept the defence case and found that the relevant entry in the said diary was written by Elder Sister on 1 May 2009.

95.The trial judge stressed that the said diary mentioned the applicant holding Elder Sister from behind and touching her chest, and also mentioned that Younger Sister was also a victim. This showed that the evidence of Elder Sister was consistent and not in conflict with the content of the diary. The trial judge also examined the account given by the applicant during the video-recorded interview, and concluded that the applicant had done the relevant acts to Elder Sister with an indecent intent.

96.The trial judge rejected Dr Wong’s statement that Younger Sister was only 5 years old at the time in question and therefore could not possibly recall the details of what allegedly happened. He pointed out that as a result of the decisions in cases such as R v E [2009] EWCA Crim 1370 and R v Anderson [2012] EWCA Crim 1785, the case of R v H(JR)(Childhood Amnesia) [2006] 1 Cr App R 10 relied on by Dr Wong had become much less important. The trial judge stressed that the opinion expressed by Professor Conway in H(JR) did not in fact support Dr Wong’s stance because, according to the Professor, on the topic in question there were two schools of thought which yielded diametrically different results. Therefore, the trial judge took the view that Dr Wong could not conclude, on the basis of Professor Conway’s opinion, that Younger Sister could not possibly recall the details of the indecent assault upon her when she was 5 years old. The trial judge pointed out that the indecent assault was a traumatic experience for Younger Sister and was also an incident which was “etched in her memory”. And after the incident, she agreed with Elder Sister that they should not be alone with the applicant any more. The trial judge found nothing surprising in Younger Sister being able to recall the incident and tell the police and the court about it.

97.The trial judge found that, on the evidence of Younger Sister, the applicant’s acts were certainly intentional and done with an indecent intent.

98.The trial judge analyzed in detail the evidence of the two sisters. He found that they were both veracious and reliable witnesses and that the credibility and reliability of their evidence was not affected by Cousin Wai’s evidence. He also rejected Mr Wong’s evidence. He set out in detail the bases of his findings.

99.In the end, on the basis of the evidence of the sisters, the trial judge convicted the applicant of both charges of indecent assault.

Grounds of appeal

100.Mr Khattak, Counsel for the applicant, seeks to quash the convictions, raising a number of grounds of appeal.

101.In terms of the law and procedure, Mr Khattak argues that the trial judge should not have treated as a recent complaint the fact that Elder Sister heard Younger Sister complain to the mother that she had been indecently assaulted by the applicant, the reason being that Mrs Wong, the person to whom Younger Sister made the complaint, did not give evidence, and the witnesses gave different accounts of how Younger Sister had been indecently assaulted by the applicant. Mr Khattak stresses the need for sufficient consistency between the content of the recent complaint and the allegations made by the victim. He further argues that the confession made by the applicant was double hearsay evidence which should not have been accepted either. Besides, it is argued that there was no evidence of Younger Sister having made any recent complaint, and that the content of the complaint that Younger Sister had allegedly made was inconsistent with her evidence. The trial judge therefore should (it is argued) not have relied on such evidence of recent complaint.

102.Mr Khattak also submits that the trial judge should not have allowed the prosecution to wait until Dr Wong finished giving evidence and then call Dr Lai to give evidence in rebuttal.

103.Mr Khattak argues that the trial judge had excessively participated in questioning Dr Wong in the course of his testimony, which indicated that the trial judge cast doubts on and challenged Dr Wong’s evidence. The trial judge’s approach, it is argued, lacked impartiality.

104.Mr Khattak levels a number of complaints at the trial judge’s decision not to accept Dr Wong’s evidence. It is argued that the trial judge erred in dealing with the evidence on the theory of cognitive development and should not have relied on the decisions in similar types of cases in rejecting Dr Wong’s evidence that Younger Sister could not possibly recall the details of the “indecent assault” on her when she was 5 years old. It is submitted that the trial judge should not have rejected Dr Wong’s evidence, particularly when the prosecution failed to put forward sufficient evidence in rebuttal. Mr Khattak stresses that in a criminal case the defendant bears no burden of proof and the prosecution must clear all doubts in respect of the charge before the court can find the defendant guilty.

105.Mr Khattak also complains about the trial judge’s findings of fact, including the refusal to accept the evidence of Cousin Wai and the father. It is submitted that the trial judge did not adequately consider and explain the contradictions between the sisters’ evidence on the one hand and that of Grand Aunt on the other, and also overlooked the obvious weaknesses in the evidence of the sisters and its inherent improbability. Mr Khattak submits that the trial judge was unreasonably biased against the father and hence rejected his evidence. On the whole, Mr Khattak submits that the convictions are unsafe.

Discussion

Could the “recent complaint” evidence of Younger Sister be produced in court?

106.A fundamental principle of the common law is that in giving evidence, a witness is not allowed to talk about any previous statement he had made which is consistent with his evidence. One of the exceptions is that, in cases involving sexual assault, if the victim did make a complaint at the earliest reasonable opportunity (“recent complaint”), then the victim’s complaint can be produced as evidence in court; so can the fact of the complaint and the content thereof as they related to the recipient of the complaint.

107.Evidence of recent complaint is merely relevant to the credibility of the victim, serving to demonstrate consistency of the complaints but not constituting evidence in support of the relevant offence (see, for example, White v The Queen [1991] 1 AC 210, Leung Chi Keung v HKSAR (2004) 7 HKCFAR 526).

108.At trial, there were a number of sources showing that shortly after the incident Younger Sister did complain to her mother and Aunt Kum Kum that she had been indecently assaulted by the applicant.

109.Apart from making it clear in her testimony that she immediately complained to the mother upon returning home on the day of the incident, Younger Sister also said that she repeated the matter to her mother and Aunt Kum Kum when they were discussing it at home.

110.In her testimony, Elder Sister stated that she heard from outside the room that Younger Sister was complaining to their mother about having been indecently assaulted by the applicant, and then she rushed into the room to demand that mother deal with the matter.

111.If the defence considered that Younger Sister’s complaint was not a recent complaint and therefore could not be produced in court, the defence should have objected to Younger Sister talking about her complaint to the mother about having been indecently assaulted by the applicant, on the ground that it was only a “previous consistent statement” which could not be produced in court as evidence (see White v R [1999] 1 AC 210).

112.At trial, the defence did not object to the production to the court of the evidence of Younger Sister which might constitute a recent complaint. Nor did the defence, upon learning that the mother would not testify to support the case that Younger Sister had complained to her, ask the trial judge to strike out Younger Sister’s evidence that she had complained to her mother. As a matter of fact, Younger Sister’s complaint that she had been indecently assaulted by the applicant was confirmed by one of the defence witnesses. When the father testified for the applicant, he stated clearly that after the report was made to the police about the incident on 3 April 2013, he made enquiries with Mrs Wong and learned that Younger Sister had complained to her mother about having been indecently assaulted by the applicant.

113.The facts agreed by the prosecution and defence also confirmed that, at the video-recorded interview, the applicant admitted that he knew Younger Sister had disclosed to her mother and senior family members the incident of the applicant touching her thigh(s) and private parts, as a result of which he had been “cautioned” and “scolded”.

114.On the above analysis, at trial the defence not only raised no objection to the production of Younger’s recent complaint to the court as evidence, but even admitted that she had indeed made a recent complaint.  With respect, Mr Khattak is wrong in saying that the position of the defence at trial was that Younger Sister had not made any recent complaint. As a matter of fact, during cross-examination, instead of putting to Younger Sister that she had not complained to her mother, the defence merely put to her that the content of her complaint was inconsistent with her allegation against the applicant. They also put to Younger Sister that when she was complaining to her mother, Elder Sister was in fact not at home. Quite clearly, the position of the defence at trial was that they accepted that Younger Sister had complained about having been indecently assaulted by the applicant.

115.Mr Khattak contends that since Mrs Wong, the person to whom Younger Sister complained, was not called to give evidence on the content of the complaint she had received, the trial judge should not have found that the Younger Sister’s evidence was supported by a recent complaint.

116.Generally speaking, the person who receives a recent complaint has to be called to give evidence on the content of the complaint, for the obvious reason that other people cannot have direct knowledge of the content of the complaint. If those other people give evidence on the victim’s recent complaint, such evidence will be “hearsay evidence upon hearsay evidence”.

117.However, when Younger Sister made the complaint to the mother and Elder Sister heard it from outside the room, could Elder Sister give evidence on Younger Sister’s recent complaint? Mr Khattak takes the stance that she could not. He refers to the case of HKSAR and Lau Chiu Tong (transliteration) (HCMA 686/2009) in support. In that case, based on the judgment of the Privy Council in Kory White v The Queen [1999] 1 AC 210, the trial judge concluded that even if the witness was also present when the victim made the complaint to someone, the court still could not rely on the witness to relate the complaint the victim made to that person.

118.The trial judge was relying on the following decision of Lord Hoffman in Kory White:

“If a complaint is made at the first reasonable opportunity after the offence, it may be proved in evidence to show the complainant’s consistency and to negative consent. But for this purpose it is necessary not only that the complainant should testify to the making of the complaint but also that its terms should be proved by the person to whom it was made. If, as in this case, the recipients of the complaints do not give evidence, the complainant’s own evidence that she made a complaint cannot assist in either proving her consistency or negating consent.”

119.Kory White only confirms that a witness cannot relate the complaint made by a complainant to another person, but does not say that the principle also applies to people who were present and could hear the complaint when the complainant made it.

120.In cases involving sexual offences, the “recent complaint” principle focuses on whether the victim had complained about the offence in question to another person at the earliest reasonable opportunity. If, when a victim made a recent complaint to another person, a third party was present and could hear the complaint clearly, then we see no logical reason for not allowing the third party to give evidence to prove that the victim had indeed made a recent complaint. We have reservations about the decision in Lau Chiu Tong.

121.There are also cases which show that if the victim of a sexual offence did make a complaint after the incident and the complaint meets the requirement of being “recent”, then even if the recipient of the complaint does not testify in court, the court can still accept such recent complaint as evidence. (See, for example, R v B [1997] Crim L.R. 220 and HKSAR and So Tsz Yeung (CACC 201/2013).)

122.In any event, at trial the defence raised no objection to the production of the relevant recent complaint as evidence, and the undisputed fact was that Younger Sister had indeed complained to the mother about the applicant’s conduct. The dispute raised by the defence at trial was confined to whether the content of the complaint made by Younger Sister to the mother and the applicant’s confession were consistent with the Younger Sister’s allegations against him. Although what the applicant said in the record of interview and Mr Wong’s statement that Mrs Wong had received a complaint from Younger Sister that the applicant had indecently assaulted her were hearsay evidence, they were put forward either by way of agreed facts or by the defence. The trial judge was absolutely entitled to accept such evidence in considering the credibility of Younger Sister’s evidence.

123.Having carefully analyzed the relevant evidence, the trial judge formed the conclusion that the applicant’s confession was consistent with Younger Sister’s allegation and complaint, and that they were all relevant to Younger Sister’s allegation that the applicant had indecently assaulted her. Although there were discrepancies between the sisters’ accounts of the detailed content of the complaint, they both mentioned clearly that Younger Sister’s complaint concerned the applicant touching her private parts. The applicant’s confession was also consistent with the complaint. We agree with the trial judge’s findings.

124.The ground of appeal raised by Mr Khattak regarding recent complaint fails.

The order in which Dr Wong and Dr Lai were called to give evidence

125.The established legal principle is, if the prosecution can reasonably foresee that a particular piece of evidence has to be adduced to prove the offence, they must produce the evidence to the court as part of their case and should not wait until the defendant has finished giving evidence (see R v Scott [1984] 79 Cr App R 49).

126.In the present case, the trial judge did consider Scott and other relevant cases. He stressed the following principle: “In considering whether the prosecution must call all witnesses before the defence case begins, an important test is whether the prosecution can reasonably foresee that they will need a particular witness in order to prove the offence with which the defendant is charged. If the answer is ‘yes’, the prosecution should not wait until the end of the defence case and then produce ‘rebuttal’ evidence”.

127.In the present case, the prosecution did not have any evidence that the sisters were suffering from any mental illness, nor was there a reasonable basis on which the prosecution could so suspect. The defence relied solely on Dr Wong’s reports in saying that the sisters had mental illnesses.

128.The prosecution had never accepted Dr Wong’s allegations. The trial judge found that Dr Wong had a predetermined stance and that his claims were based on some superficial and non-objective points of view that were fraught with mistakes and loopholes.

129.As the trial judge rightly pointed out, the sisters were no different from ordinary witnesses. The court still could convict the applicant on the basis of their evidence without the prosecution having to prove that they were not mentally ill. From the perspective of the prosecution, the claim that the sisters were mentally ill was not relevant to the charges. The prosecution was not even in a position to take the initiative of calling expert witnesses in an attempt to convince the court that the mental condition of the sisters was such that they were reliable witnesses.

130.Although Dr Wong compiled a number of medical reports before he gave evidence, it was open to him to make additions to or deletions from those reports when he gave evidence. And the prosecution could not possibly know in advance what possible changes there might be to Dr Wong’s evidence under cross-examination. It was in fact impossible for Dr Lai to produce full rebuttal evidence until after Dr Wong had finished giving his evidence.

131.If a witness indeed suffers from mental illness, the reliability of his/her evidence may of course be affected, and the opposite party is entitled to adduce evidence that the mental condition of that witness would have affected the reliability of his/her evidence. This has been established in Toohey v Metropolitan Police Commissioner [1965] AC 595, in which Lord Pearce concluded as follows (at 609):

“Medical evidence is admissible to show that a witness suffers from some disease or defect or abnormality of mind that affects the reliability of his evidence. Such evidence is not confined to a general opinion of the unreliability of the witness but may give all the matters necessary to show, not only the foundation of and reasons for the diagnosis, but also the extent to which the credibility of the witness is affected”

132.Having said that, it was necessary for the prosecution to have a complete grasp of such information as why Dr Wong concluded that the sisters suffered from delusional disorders, the basis of and reasons for his diagnosis, and how and to what extent any delusional disorders they were suffering from had rendered their evidence unreliable and incredible, before the prosecution could properly adduce evidence to rebut what Dr Wong said. It was absolutely reasonable and fair for the prosecution to request that Dr Lai be called only after Dr Wong had finished giving evidence.

133.In R v Robinson [1994] 3 All ER 346 at 532C-D, Lord Taylor CJ had the following comment to make on the relevant issue:

“… If the defence propose to call an expert witness to say that a witness of fact for the Crown should be regarded as unreliable due to some mental abnormality outwith the jury’s experience, then, depending on the precise issue, it may be open to the Crown to call an expert in rebuttal …”

134.The trial judge held that Dr Wong was to give evidence first, and when he was giving evidence, the expert witness for the prosecution was allowed to listen to his evidence and provide the prosecutor with assistance as necessary. If the prosecution deemed it necessary at the close of the defence case, the prosecution could, if it considered necessary, call expert evidence in rebuttal; when the expert witness for the prosecution was giving evidence, the defence expert witness could be present in the court to listen to the evidence and provide assistance as necessary to the defence counsel; and if the expert witness for the prosecution put forward evidence and/or points which were not contained in his expert reports or not put to the expert witness for the defence in the course of cross-examination by the prosecutor, then the defence could apply to the court to call that expert witness to testify again on such new evidence or points. The approach taken by the trial judge was undoubtedly reasonable and took into account the rights and interests of both prosecution and defence.

135.Furthermore, as far as the order of testimony of the respective expert witnesses was concerned, the issue is whether or not the approach taken by the trial judge would have been unjust to the defendant and rendered the trial unfair.

136.The question at that time pertained to the reliability of the expert witnesses. It involved the witnesses’ professional knowledge and experience and whether the tests they suggested were reliable and credible. It was not the case that the prosecution called the expert witness only after the defence had closed its case in order to fill in gaps in the factual evidence already adduced by the prosecution. The order in which the expert witnesses appeared in court would, by itself, hardly affect the reliability of their evidence, still less the court’s assessment of the reliability and credibility of their evidence.

137.We take the view that the decision of the trial judge on the order in which the respective expert witnesses testified in the court was comprehensive and reasonable, indicating a correct exercise of his discretion. As far as the aforesaid issue is concerned, the decision of the trial judge was in no way prejudicial to the applicant at all, still less did it render the trial unfair. There is no basis to support Mr Khattak’s argument that the approach taken by the trial judge might have rendered the trial unfair.

Unfair trial

138.Another complaint mounted by Mr Khattak is that the trial judge had excessively participated in questioning Dr Wong when he was giving evidence, and this might have given a reasonable bystander the impression that the trial judge had descended into the arena, thereby depriving the applicant of a fair trial. Mr Khattak cites a number of examples in support of his argument.

139.We have carefully read the relevant transcript. The trial judge was then mainly trying to ascertain the basis of Dr Wong’s opinions and requesting him to provide further opinion or explanation and also testing the reliability and accuracy of the views he had expressed.

140.We should start by pointing out that Dr Wong was not an ordinary witness who gave factual evidence to the court. He was an expert witness in psychiatry who was explaining recondite medical problems to the court. The trial judge was required, and indeed duty-bound, to ensure he understood Dr Wong’s evidence and its implications. The questioning of Dr Wong by the trial judge was done for the sole purpose of testing the basis of and reasons for Dr Wong’s diagnosis and ascertaining his views on the reasons for and extent of the effect on the sisters’ reliability as witnesses. The trial judge had to decide whether Dr Wong’s evidence was objective and independent and whether his conclusions were justified. In respect of tenuous propositions, it was plainly normal for the trial judge to raise questions to ensure that he properly understood Dr Wong’s evidence. The law does not require the trial judge to silently hear weak or flawed arguments without raising any queries before he rules on the relevant question. To do so would not only be remiss of the trial judge but might even be unfair to Dr Wong, the reason being that queries raised by the trial judge would very likely prompt Dr Wong to provide clearer and more convincing explanations of his position.

141.As the trial judge rightly pointed out, “when dealing with the evidence of an expert, [he] must examine the evidence critically instead of accepting it in its entirety without questioning it just because it comes from an expert”.

142.In R v Yeung Mau Lam [1991] 2 HKLR 468, a case Mr Khattak has referred to, the Court held as follows on the issue of the propriety of the questioning of a witness by the judge (at 473):

(1)   Questions by their number alone are not decisive;

(2)   The quantity and quality of the questions must be looked at as factors which react upon each other;

(3)   Actual bias on the part of the judge need not be established, it being enough if by his conduct he would be thought by the informed bystander to be taking over the conduct of the case from the prosecution;

(4)   Where a judge sits without a jury, the appeal court must ask itself whether a person listening to the case would justifiably have had the impression that the judge had by his questions entered the arena instead of remaining objective; and

(5)   The ultimate question for the consideration of an appellate court is whether the judge’s conduct was such that it would have caused the informed bystander listening to the case to say that the defendant had not had a fair trial.

143.We do not agree that the trial judge had contravened the principles laid down in Yeung Mau Lam. We also need to emphasize that, when considering the propriety of questioning by the trial judge, it is important to bear in mind it was the duty of the trial judge throughout the trial to ensure that it was conducted in a proper and coherent manner.

144.We have considered in detail the overall circumstances of the questioning of Dr Wong by the trial judge. In our view, the trial judge did no more than ask Dr Wong further questions on areas about which the trial judge harboured doubts, with a view to understanding the basis of Dr Wong’s opinion and seeking further explanation by Dr Wong on his opinions.

145.The trial judge also asked Dr Wong to elaborate on some of the areas about which the trial judge had doubts, with a view to understanding the basis of and reasons for the diagnosis made by Dr Wong, so as to ensure that all relevant and material details were fully considered before a proper decision was made on the relevant issues.

146.The other purpose of questioning Dr Wong was obviously to test whether the understanding Dr Wong relied on before making the diagnosis was sufficient and convincing or whether it was self-contradictory or illogical.

147.The wording of the trial judge’s questions was neutral, not sarcastic, and in no way hostile. Those questions were clearly asked with a purpose — to ensure that the trial judge understood clearly the basis and logic of Dr Wong’s opinions so as to assist the trial judge in deciding whether the conclusion Dr Wong reached was credible and justified.

148.We agree with the approach adopted by the trial judge. Indeed, the ground of appeal that the trial judge had descended into the arena and deprived the applicant of a fair trial should, in our view, not have been advanced at all.

Criticisms levelled at Dr Wong’s evidence

149.In his Reasons for Verdict, the trial judge went to great lengths to analyze Dr Wong’s evidence and explain why he considered Dr Wong’s opinions incredible and whether any weight should be attached to them. The trial judge found that Dr Wong had made factual judgments and diagnoses without first obtaining comprehensive, accurate and objective information, and this showed that he had a preconceived position. The trial judge set out dozens of reasons and factors in support of his conclusion.

150.Mr Khattak submits that some of the reasons given by the trial judge were not valid, that some of his analysis went against the evidence, and that his conclusions were made without considering all the relevant evidence. Mr Khattak further stresses that the prosecution had not adduced any evidence to rebut Dr Wong’s evidence.

151.We do not consider it necessary to dwell too much on the issue. An expert witness may give evidence in his/her area of ​​expertise but is not entitled to rule on issues. Based on Dr Wong’s evidence, the defence argued that the sisters were both suffering from delusional disorders, rendering their allegations against the applicant unreliable. The defence also argued that Younger Sister could not possibly recall in detail what happened when she was being indecently assaulted at the age of 5. The prosecution challenged Dr Wong’s statements, arguing that his conclusion rested upon an insufficient basis, in particular, he drew his conclusion without having diagnosed their mental conditions and without even having met them first. All these issues had to be decided by the trial judge on the basis of all the evidence.

152.Dr Wong’s statement that, in the absence of an opportunity to examine the patients, a correct diagnosis could still be made via assessments and diagnosis made solely on the basis of the information, is neither reasonable nor credible. And it is against common sense and unconvincing to say, as Dr Wong did, that based solely on his observations of the sisters when they gave evidence in court, he was in a position to confirm that they were suffering from mental illnesses. The trial judge was perfectly entitled to reject such bold statements of Dr Wong.

153.Mr Khattak stresses that Dr Wong’s testimony had not been challenged by Dr Lai’s evidence or other evidence adduced by the prosecution. We agree that when an issue can only be answered on the basis of the expertise of an expert witness, the court should not ignore the evidence of that witness. We also accept that the court should not, for no reason, reject the professional opinion of an expert witness which has not been challenged. (See, for example, Anderson v R [1972] AC 100, Taylor v R (1978) 22 ALR 599)

154.However, it is also an established principle that if the testimony of an expert witness is challenged and the facts and circumstantial evidence of the case throw doubt on the testimony of the expert witness, the Court is also entitled to reject his evidence even in the absence of any evidence of rebuttal from the opposite party.

155.The issue in Walton v R [1978] AC 788 was how the defence of “diminished responsibility” was to be applied in a murder case.

156.Lord Keith of Kinkel discussed at length the question of how a court should deal with the evidence of an expert witness on the issue, as follows (at 793):

“These cases make clear that upon an issue of diminished responsibility the jury are entitled and indeed bound to consider not only the medical evidence but the evidence upon the whole facts and circumstances of the case. These include the nature of the killing, the conduct of the defendant before, at the time of and after it and any history of mental abnormality. It being recognised that the jury on occasion may properly refuse to accept medical evidence, it follows that they must be entitled to consider the quality and weight of that evidence.”

157.Dr Lai expressly stated that Dr Wong’s diagnostic approach was unprofessional and improper, and that the information he cited was fragmented and incomplete. At trial, the prosecution strongly opposed Dr Wong’s opinion that the sisters had delusional disorder and that Younger Sister could not remember in detail the indecent assault committed on her when she was 5 years old. The prosecution also set out in detail the mistakes and loopholes in the arguments on which Dr Wong formed his opinions, and the trial judge gave a detailed account of those mistakes and loopholes.

158.There is no need for us to set out those defects again; it suffices that they are both clear and obvious. It should be pointed out that in Re LLC (Statutory Will) [2010] 3 HKLRD 16, in which Dr Wong also gave evidence as an expert witness, he was criticized by the court for assuming the role of an advocate and providing his own opinion on the factual disputes between the parties. He made the same mistake in the present case – he not only assumed the role of an advocate but even made unfounded allegations against Grand Aunt and Grand Uncle, saying that they had exercised undue influence over the sisters.

159.The trial judge’s rejection of Dr Wong’s diagnosis was amply justified. We agree with the trial judge’s ruling that Dr Wong’s conclusions were based on biased, fragmented, unverified and unreliable information and that those conclusions were also unreliable. We would go further by expressing the view that Dr Wong was not a reliable expert witness at all.

160.The trial judge was entitled to reject Dr Wong’s evidence in its entirety and to find that neither of the sisters was suffering from any delusional disorder. We concur with those findings, which are justified and correct.

161.We also have to point out that Dr Wong’s performance in the present case completely failed to demonstrate the professionalism that the court requires of expert witnesses. As a result of his unprofessional and unreliable opinions, the sisters were, in giving evidence, made to face the unwarranted accusation that they had delusional disorders. We express our deep regret about this.

Credibility of the sisters

162.Having resolved the issues raised by the defence that the sisters were suffering from delusional disorders and Younger Sister was unable to recall the details of the indecent assault upon her when she was 5, the main issue in the present case was whether the sisters were veracious and reliable witnesses.

163.It was not the defence case that the sisters had any motive to falsely accuse their uncle (the applicant).

164.The sisters described in detail what happened when the applicant indecently assaulted them. On the undisputed evidence, on the evening of the day of the offence Younger Sister complained to her mother about the applicant’s conduct, and shortly after the incident Younger Sister also related what had happened to her mother and Aunt Kum Kum.

165.The confession made by the applicant during the video-recorded interview was also consistent with the prosecution allegation against him. The entries in Elder Sister’s diary also matched her allegations against the applicant, indicating that her allegations against the applicant were not recent fabrications. The trial judge found that Elder Sister’s diary could be used to prove the consistency of her allegations against the applicant and also to answer the defence allegation that the accusations were recent fabrications made by Elder Sister when she made the report to the police on 3 April 2013. The trial judge’s approach was correct.

166.Apart from the sisters, the applicant was the only person who had direct knowledge of the incidents. As he had exercised his right to remain silent, there was no evidence to directly refute the sisters’ allegations against him.

167.This being the case, the trial judge was fully justified in finding that both sisters were veracious and reliable witnesses. In the context of the present case, the contradictions pointed out by Mr Khattak, whether between the evidence of the sisters or between their evidence and Grand Aunt’s evidence, have no significance whatsoever and do not render the convictions unsafe.

168.Cousin Wai was obviously a witness who had taken sides. Her evidence was not objective, and the conclusion drawn therefrom was based on some uncertain factors. In the context of the present case, Mr Wong’s testimony deserved the criticisms it received from the trial judge. The trial judge was entitled to find that neither Cousin Wai’s evidence nor Mr Wong’s evidence served to raise any doubt about the sisters’ evidence.

169.On the evidence of the sisters as accepted by the trial judge, the applicant had indecently assaulted them in the manner they described, and he had an indecent intent when he did those acts of indecent assault. It was reasonable and correct for the trial judge to convict the applicant on the two counts of indecent assault. We agree with those verdicts.

Conclusion

170.We find nothing unsafe in the convictions against the applicant in respect of the two counts of indecent assault. We have therefore dismissed his application for leave to appeal against convictions and affirmed the convictions.

Sentence

171.This is an extremely serious case of “indecent assault. As an elder member of the family, the applicant took the opportunity of family gatherings to indecently assault two nieces aged 5 and 11 respectively. We do not intend to go into the applicant’s acts of indecent assault again. It suffices for us to point out the applicant’s conduct, especially that towards Younger Sister, was at a very high level of indecency. The applicant’s misconduct left an indelible mark in the minds of the sisters.

172.Nor can we ignore the fact that the applicant’s improper conduct will distress the sisters for a long time to come. Although there are no expert reports, such distress is obvious, and it is also the type of post-traumatic stress that any girl who has been sexually molested will certainly suffer from.

173.The trial judge pointed out that the court was under a duty to protect children who were vulnerable to sexual assault and to impose deterrent sentences on offenders in order to reflect the disgust that members of the public feel towards this kind of offence and also redress for the victims and their families. The trial judge took the view that when the offender was the victim’s elder, an even more severe sentence would be passed because the elder’s misconduct was a breach of trust and distorted normal familial relationships. We could not agree more with the trial judge’s comment.

174.The cases cited by Mr Khattak do not support his claim that the total sentence imposed on the applicant was excessive. The delay he pointed out was the result of the defence allegation that Younger Sister/Elder Sister was mentally ill, but as mentioned above, the basis of the allegation was simply inadequate. And that also accounted for the repeated adjournment of the case and the greater length of trial as a result. The delay in the present case does not constitute a mitigating factor.

175.In any event, given the background and the modus operandi of the offences, the sentences, whether taken individually or as a whole, are in no way manifestly excessive, and we have no reason to vary them.

176.Therefore, we have also dismissed the applicant’s application for leave to appeal sentence and affirmed the sentence.

Mr Nicholas Wong, SPP of the Department of Justice, for the Respondent

Mr Shahmim K Khattak and Mr Anthony Lai, instructed by Poon & Cheung, for the Applicant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor.