HKSAR v. Amir Aftab

Case No.CACC 12/2022[2022] HKCA 1495

Court

Court of Appeal

Date05 Oct 2022

Judge—

Case Document

100%Judiciary

CACC 12/2022

[2022] HKCA 1495

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 12 OF 2022

(ON APPEAL FROM HCCC NO 50 OF 2021)

_______________

	HKSAR	Respondent
	v
	Amir Aftab	Applicant

_______________

Before: Hon Zervos JA in Court

Date of Hearing: 5 October 2022

Date of Judgment: 5 October 2022

________________

J U D G M E N T

________________

1.This is a case of sexual assault on a young child. The applicant seeks leave to appeal against his conviction on 6 January 2022 of attempted rape, contrary to sections 118(1) and 159G of the Crimes Ordinance, Cap 200, following a trial before Deputy High Court Judge Bruce (the judge) and a jury.

2.The applicant originally faced a single count of rape but was instead found guilty of the alternative offence of attempted rape by a majority verdict of the jury of 6 to 1. He was sentenced to 10 years’ imprisonment.

3.The applicant appears in person at the leave hearing, having had legal aid refused. He applied for legal assistance with the Hong Kong Bar Association Bar Free Legal Service Scheme but such assistance has not been forthcoming after a letter dated 22 June 2022 was issued requesting a copy of the relevant documents.

The brief facts

4.The victim of the attempted rape was a 9-year-old girl who has been referred to as “X” throughout the trial proceedings. The medical evidence was that X was significantly mentally incapacitated and had the mental age of a 3-year-old. The offence took place on 8 October 2019 in a room at a guesthouse in Chungking Mansions that was rented and occupied by the applicant.

5.The applicant knew X’s mother, referred to as “A”, through A’s boyfriend, who was the applicant’s friend. On 7 October, A had a dispute with her boyfriend and went to the applicant’s residence with her twin children, X and a boy referred to as “B”, to stay the night. The children knew the applicant as “Uncle Jo Jo”.

6.In March 2016, A, a Mongolian national, had made a torture claim after she had arrived in Hong Kong. She later arranged for her children to be brought to Hong Kong on 12 July 2018.

7.In the early hours of 8 October when A was still doing washing and cleaning outside the applicant’s room in the corridor, the children were alone with the applicant in his room. There was a bed in the room with a mattress on the floor underneath it. B was lying on the mattress on the floor, playing with his mobile telephone, while the applicant was lying on the bed. There came a time when X got onto the bed occupied by the applicant. It was alleged that the applicant took off the underwear of X as well as his own, sexually assaulted and raped her. X said that the applicant tried to put his finger into her vagina, and punched her belly which was painful. She said he kept pushing, trying to penetrate her vagina. He also sucked her cheek with his mouth.[1]

8.At this time, B heard his sister cry out. He got up to see what the matter was, and saw, slightly concealed by a blanket, the applicant and X both naked below the waist.[2] X then made a complaint to B that the applicant was touching the part between her legs and he had sucked her cheek and shut her mouth.[3] About 5 minutes later A came into the room, and B told her that X was naked. A pulled back the blanket and also saw both of them naked below the waist. She then put the underpants of her daughter back on, and took some photographs of her, which showed X’s private parts were substantially reddened.

9.A and the children then left the guesthouse, and went back to their home residence.

10.The matter was reported to the police and both X and B were taken by the police to the Queen Elizabeth Hospital where they were examined by a forensic pathologist. The hymen of X was intact, but there was a 0.2 cm tear at the posterior fourchette on her labia minora, which was slightly bleeding. The opinion of the forensic pathologist was that the injury could have been the result of penetration by an erect penis or by a finger fondling the private parts of X.

11.In a video recorded interview, the applicant agreed that he was in the same room with X and B at the material time, but denied any sexual misconduct, and contended that A and her children fabricated the incident against him. He said that at the time A was sitting on the bed, B was under the bed and X was lying on the bed with him. He said X pulled his shorts downwards and he told A to take care of her.[4] Then A scolded X and B got up to remonstrate with X.

12.Both X and B participated in a video recorded interview which was adduced into evidence pursuant to section 79C of the Criminal Procedure Ordinance, Cap 221, and were cross-examined on CCTV pursuant to section 79B.[5] A also testified to the events that took place when she returned to the room.[6] A forensic pathologist, Dr Mok Ka Kin (PW8), testified that in his view sexual intercourse was not conclusive as the hymen was intact, but there was laceration at the posterior fourchette, which could have been caused by a finger or an erect penis.[7] A forensic scientist, Dr Yeung Sze Ming (PW9), testified that X’s DNA was found on a bloodstain on the inside crotch of a pair of panties she was wearing at the time. A police officer, WDPC 10296 (PW12), who escorted the children to the hospital for medical examination noticed a bruise on X’s face.

13.The applicant did not give evidence or call evidence on his behalf. It was submitted on behalf of the applicant that there had been no sexual assault and if there was touching it was accidental.[8] The defence challenged the admissibility of the video recorded interview of X on the grounds that she could not differentiate between truth and lies, that she was unreliable because of her intellectual age and that she had adopted answers from leading questions put by the Mongolian interpreter.[9] The defence also alleged that A’s boyfriend, Sajed Mahmood Minhas (PW13) (referred to as “Tiger”), had framed the applicant and embellished the complaint against him over a debt. Tiger, who had a bad criminal record, was called and tendered for cross-examination.[10]

The grounds of appeal

14.On 4 July 2022, the applicant filed brief written submissions setting out the basis of his appeal against conviction.

15.First, he complains that the witnesses were unreliable. Secondly, he alleges the judge incorrectly misled the jury when he stated that “it is my opinion that Mr Amir Aftab would have attempted to rape had the brother and mother not been there.” Thirdly, he questions why A did not take a photograph of him naked when she came into the room and pulled back the blanket, noting A had photographed X’s private parts. Fourthly, he alleges that the jury was biased, consisting of six women and one man and that all six women voted him guilty while the one man did not. Fifthly, he avers that X would not give a statement about him.

16.At the leave hearing, the applicant handed up a new set of grounds of appeal replacing the previous ones, some of which have been repeated. The grounds of appeal are as follows. First, the jury was biased against him because it consisted of six women and one man. The six jurors who found him guilty were the women. This ground can be promptly disposed of. Whilst it is true that the jury consisted of six women and one man, they went through the usual process of selection, which included challenges by the applicant. Furthermore, the applicant’s allegation is pure conjecture and, given that a jury’s deliberations are confidential, there is no basis on which one can know the vote of an individual juror.

17.Secondly, the judge misled the jury by telling them “if the mother and brother were not there, I would have raped her”. At the hearing, the applicant corrected the reference to “I” to say it should have been his name. This was a serious allegation to make against the judge. It was pointed out that what he claimed was said by the judge was different to the quoted remarks he included in his previous ground of appeal. He said this was said by the judge in the presence of the jury during the cross-examination of B. A transcript of the cross-examination of B reveals that no such remarks were made by the judge. The record did not support the applicant’s claim, and when this was pointed out to him, he said it was around about this time. In light of the meticulous care and thoroughness that the judge displayed in his summing-up and throughout the trial in his dealings with the parties, I have no hesitation in rejecting this allegation.

18.Following the verdict of the jury, the judge made findings of fact for the purpose of sentencing, which were entirely appropriate. He said in his lengthy reasons for sentence:[11]

“On the verdict of the jury, it is clear that they had at least some reasonable doubt as to penetration – even slight penetration. It follows as a matter of logic and anatomy that the injury to the posterior fourchette of the victim must have been because the accused applied his finger to the vaginal area of the victim. I am sure that it was this injury which caused her to cry out. I am also sure that the description of the event taken together with the fact that the accused and X were seen naked below the waist within a short while of her crying out that the accused had attempted to rape her, and it was her cry followed by the conduct of B which interrupted this process. But for that, I am sure that the accused would have gone on to penetrate the girl if he possibly could have.”

19.The third and fourth grounds can be dealt with together. It is a general complaint against the applicant’s legal representatives at trial. He claims that he was never given the option to give evidence. However, he does acknowledge he discussed the matter with his legal representatives and he had specifically asked them about giving evidence. He further complains that his legal representatives made no attempt to defend him. The applicant was represented at trial by Mr Trevor Beel and Ms Priscilla Y K Lau. It is recorded in the judge’s clerk’s log that at 2:36 pm on 31 December 2021 Mr Beel informed the judge that upon instructions there would be no defence case and at 10:16 am on 4 January 2022 Mr Beel informed the jury that having explained to the applicant, he elected not to give evidence and no other defence witness would be called and formally closed the defence case. Upon enquiry, the applicant confirmed that he signed a number of documents submitted to him by his legal representatives, which could have included confirmation of his instructions not to give evidence.

20.As part of this complaint, the applicant contends that victim’s mother, A, was only asked a couple of questions in cross-examination and this proved that he had bad legal representation. That is simply not the case as amply reflected by the points and issues advanced on behalf of the applicant in his defence, which are reflected in the judge’s summing-up. A’s credibility and evidence were strenuously challenged by his counsel.[12] It is clearly apparent from the record of the proceedings that Mr Beel, a highly experienced criminal law advocate, very ably defended the applicant and I find no substance in this allegation.

21.Fifthly, it is complained that X was not of limited mental capacity and this was used to keep her from taking the stand because she was lying. He claims that X did not pick him in the identification parade because she knew it was a lie. There was medical evidence, which was not contested, as to the significant mental incapacity of X.

22.Sixthly, it is said that an associate of A’s boyfriend, a person by the name of Walid, was seen on the CCTV leaving the applicant’s apartment and he could have been the culprit but he was not questioned. It was an admitted fact that a male called Walid accompanied X and B to the police station to make a report and that he informed the police that he was not willing to be a witness in the case.[13]

23.Seventhly, it is complained that the witness statements were inconsistent and that some of the witnesses, namely Tiger and A were unreliable witnesses and well-known to the authorities. The judge addressed the issue of inconsistencies within a witness’s evidence and between witnesses. These matters were all before the jury to consider and resolve.[14]

Conclusion

24.I have carefully considered the judge’s summing-up. He carried out a very comprehensive review of the evidence in which he provided a full explanation of the procedure relating to the children’s evidence, noting where appropriate issues that had been raised during the trial. He also gave very comprehensive directions on the law and provided an overview of the offence of rape and its elements, which was followed by additional directions on the alternative offences of attempted rape and indecent assault. I do not find the grounds of appeal reasonably arguable, nor have I been able to discern any material error or irregularity on the papers. Accordingly, the application for leave to appeal against conviction is refused.

25.The applicant is advised that he has the right to renew his application for leave to appeal to the Court of Appeal, but he is also warned that the Court has the power to order the loss of any time he has spent in custody pending his appeal, if it were to conclude that there was no justification for renewing the application.