HKSAR v. Chan Chi Tao

FAMC No 54 of 2019

[2019] HKCFA 49

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 54 OF 2019 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO 608 OF 2018)

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REASONS FOR DETERMINATION

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Mr Justice Cheung PJ (for the Appeal Committee):

1.At the conclusion of the hearing, we dismissed this application for leave to appeal based on the substantial and grave injustice ground.  We now give our reasons.

2.The applicant was convicted after trial of three charges of indecent assault that took place 21 years ago when he was 14 years old, and the victim (X), his cousin, was only 7.[1] The 1^st and 2^nd charges alleged that the applicant, on an unknown date respectively in spring/summer 1996 and in summer 1997, indecently assaulted X when playing “tickle” with her inside his bedroom, whilst members of their extended families were playing mahjong in the sitting room.  According to X’s evidence at trial, the subject matters of the two charges represented respectively the first and last occasions when she was indecently assaulted by the applicant when playing tickle inside his room.   There were a total of 15 such occasions.  Under the 3^rd charge, the prosecution alleged that the applicant, on an unknown date between 1996 and 1997, indecently assaulted X at a Chinese restaurant in Lok Fu Shopping Centre when he held her up with his arms and sat her on his lap.  According to X’s evidence, this was the first occasion when he did this to her, and there were a total of about 20 such incidents that took place between 1996 and 1997. 

3.The applicant relied on four grounds in support of his application for leave to appeal. 

4.First, the applicant argued that the magistrate[2] erred in not granting a permanent stay of proceedings in light of the circumstances of the case which deprived him of the right to properly and adequately defend the case.  He complained that he found it difficult to recall events that happened over 20 years ago.  He was unable to gather potential alibi evidence.  He tried to obtain the CCTV footage of his housing estate, but due to the lapse of time, it was no longer available.  He also tried to retrieve his attendance record at the tutorial centre that he attended during weekends at the material time, but again he was told that the record was no longer available.

5.This was essentially a one-against-one case, depending heavily on the evidence of X and that of the applicant at trial.  The missing CCTV footage and attendance record may or may not have assisted the applicant.  Certainly it could not be described as “evidence which represents a significant and demonstrable chance of amounting to decisive or strongly supportive evidence emerging on a specific issue in the case”.[3]

6.Here, X could not identify the exact offence dates, and she and the applicant were alone when the offences took place (for charges 1 and 2).  No other witness could testify in any event.

7.The points urged upon us by the applicant had all been raised and carefully considered by the magistrate, and she was not satisfied that the applicant had passed the high threshold required for a permanent stay.[4] It was not suggested that she was unaware of any relevant authority or guiding principles,[5]  or that she failed to give herself adequate or sufficient directions to eliminate possible prejudices to the applicant.  On appeal,[6] the judge[7] upheld her refusal of a stay.[8]  There was no reasonably arguable departure from established norms.

8.Secondly, the applicant complained that the magistrate erred in admitting X’s evidence in relation to uncharged acts.  Alternatively, if they were admissible, she had exceeded the legally permissible scope when using it.

9.At trial, X gave evidence on the subject matters of the three charges.  Evidence was also led in relation to similar incidents that happened inside the applicant’s bedroom and in the restaurant.  The prosecution stated the position clearly in the trial that the basis of adducing such evidence was to prove the setting and context in which the offences occurred and to explain why X was unable to recall specific dates of the offences.[9] In her statement of findings, the magistrate correctly referred to the relevant principles on evidence of uncharged acts,[10] and stated that she only used such evidence to show the setting and context surrounding the commission of the offences.[11]  The applicant argued that the magistrate did not need evidence on uncharged acts to understand the simple concept that X could not remember specific dates due to the long lapse of time.  However, that argument overlooked the common sense point that the multiplicity of incidents would have contributed to X’s failure in recalling the exact dates of the offences also.

10.Thirdly, the applicant complained that the prosecution’s failure to specify which offence constituted each charge led to an unfair trial to the applicant, as the lack of sufficient particulars infringed the rule against duplicity. 

11.This was a new point not raised at the trial nor in the appeal below.  There was no exceptional circumstance that would justify this court considering such a point for a first time. 

12.In any event, as mentioned, the evidence led in relation to charges 1 and 2 showed clearly that they referred to the first and last occasions when X was indecently assaulted inside the applicant’s bedroom.  They were not impermissible specimen charges, nor were they about notional (first/last) occasions.[12] Likewise, X’s evidence on charge 3 focused on the first time when X was indecently assaulted in the restaurant.  Counsel for the applicant accepted at the hearing before us that charge 3 only charged one offence and was therefore not duplicitous.  He also accepted that there was no complaint at trial about insufficient particulars for the charge.  There was therefore nothing in this ground.

13.Finally, the applicant argued that the magistrate erred in failing to find on X’s reliability and/or to provide any or adequate reasons.

14.The magistrate was careful and detailed in her analysis of the evidence.[13] She bore firmly in mind the fact that the events took place 21 years ago, and that the applicant’s recollection of the events would have faded with time.  She was also alerted to the applicant’s argument that X’s claim in evidence that she could still remember vividly the details of the offences despite the long lapse of time was not credible.  She reminded herself of X’s young age, the risk of exaggeration or fabrication, and took extra care in assessing X’s evidence given the one-against-one situation.  She specifically found X to be an honest witness, and rejected the applicant’s evidence.  On the facts of the present case, the suggested distinction between credibility and reliability was simply unreal.  The judge was with the magistrate and upheld her findings.[14]  There was no reasonably arguable departure from established norms.

15.For these reasons, the application for leave to appeal was dismissed.

Mr Joseph Lee and Mr Lawrence Pang, instructed by Robertsons, for the applicant

Ms Vinci Lam DDPP (Ag.) and Ms Claudia Ng SPP, of the Department of Justice, for the respondent