HKSAR v. Amir Aftab

CACC 12/2022

[2024] HKCA 32

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)

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REASONS FOR JUDGMENT

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.On 6 January 2022, the applicant was convicted of one count of attempted rape, contrary to sections 118(1) and 159G of the Crimes Ordinance, Cap 200, following a trial before Deputy Judge Bruce (“the judge”) and a jury at the Court of First Instance. He was sentenced to 10 years’ imprisonment.

2.On 17 January 2022, the applicant, acting in person, filed a notice of application for leave to appeal against conviction (Form XI), which was subsequently refused by the Single Judge on 5 October 2022. Full reasons for his decision were given by the Single Judge at the time[1].

3.On 13 October 2022, the applicant filed a notice seeking to renew his application for leave to appeal against conviction (Form XIII) and, on 21 December 2023, appeared in person at the hearing of his renewed application. Having heard arguments from the applicant and the respondent, we refused the application, saying that we would hand down the reasons for our decision in due course. This we now do.

The prosecution case

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

5.In March 2016, “A”, a Mongolian national, had made a torture claim after arriving in Hong Kong. She later arranged for her twin children, X and a boy referred to at trial as “B”, to come to Hong Kong on 12 July 2018 to live with her. The applicant had come to know A through her boyfriend from Bangladesh, who also happened to be a friend of the applicant.

6.On 7 October 2019, A had a dispute with her boyfriend and, accordingly, went to the applicant’s residence with X and B to spend the night. The children would refer to the applicant as “Uncle Jo Jo”.

7.In the early hours of 8 October 2019, A went to do her washing in the corridor outside the applicant’s room, leaving the children alone with the applicant in his room. There was a bed in the room, with a mattress on the floor beneath 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. The prosecution alleged that the applicant removed X’s underwear, as well as his own, before sexually assaulting and raping X. She 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[2].

8.At this time, B heard his sister cry out. He got up to see what was happening and saw, albeit somewhat obscured by a blanket, the applicant and X both naked below the waist[3]. X then made a complaint to B that the applicant was touching the part between her legs and he had shut her mouth and sucked her cheek[4]. About 5 minutes later, A returned to the room, whereupon B told her that X was naked. A pulled back the blanket and saw both the applicant and X naked below the waist. Having replaced X’s underpants, she then took some photographs, showing a substantial area of redness on X’s private parts. A then left the guesthouse with the children and returned to their own residence.

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

10.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, contending that A and her children had fabricated the complaint 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. The applicant claimed that X had pulled on his pyjama pants, as a result of which A had scolded her[5]. Essentially, his account was that if anything had happened between them, it was initiated by X and he had stopped her[6].

11.Both X and B participated in video-recorded interviews, which were adduced into evidence pursuant to section 79C of the Criminal Procedure Ordinance, Cap 221, and both were cross-examined via CCTV pursuant to section 79B[7]. A also gave oral testimony concerning the events which took place when she entered the room[8]. 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 a laceration to the posterior fourchette, which could have been caused by a finger or an erect penis[9]. 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 pants 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 to X’s face.

The defence case

12.The applicant did not give evidence, nor did he call any evidence. It was submitted on his behalf that there had been no sexual assault and if there had been any touching, it was accidental[10].

13.The defence challenged the admissibility of X’s video-recorded interview on the grounds that she could not differentiate between truth and lies, that she was unreliable because of her immaturity and intellectual age and that she had simply adopted answers from leading questions put to her by the Mongolian interpreter[11].

14.The defence also alleged that A’s boyfriend, Sajed Mahmood Minhas (PW13) (referred to at trial as “Tiger”), had set out to frame the applicant and embellished the complaint against him because of a debt owed to him by the applicant. Tiger, who had a bad criminal record, was called and tendered for cross-examination by the prosecution[12].

The grounds of appeal

15.In his renewal application, five grounds (Grounds 1 to 5), were advanced by the applicant’s letter, dated 4 December 2022, which were supplemented by a subsequent letter to the Department of Justice, dated 19 January 2023. In the latter, the applicant seemed to be putting forward an additional ground (Ground 6).

16.It is readily apparent that none of these grounds were argued before the Single Judge at the leave application. Although there was no explanation given for the delay and no application for an extension of time in which to file the new grounds[13], we nevertheless heard and considered them rather than remitted the case to the Single Judge, since the offence had taken place more than four years ago.

17.In essence, the six grounds may be summarised as follows:

(1)  The trial judge failed to explain or define “inconsistency” for the jury. During the leave application, the applicant’s complaint was directed at the inconsistencies in A’s and Tiger’s statements[14]. Strictly speaking, however, the present ground is a new ground;

(2)  The judge was biased towards the victim, and failed to draw to the jury’s attention the important features of the applicant’s case; namely, the fact that he approached the police of his own volition after being assaulted and detained by Tiger, and the inherent improbability of the applicant committing the present offence in view of his family background;

(3)  The trial judge failed to direct the jury on “drawing inferences”[15] and “speculation” sufficiently, or at all. Since the jury were not legally trained, they should have been given a more elaborate explanation of these matters;

(4)  The trial judge failed to explain to the jury how to approach the “hearsay evidence” in the case, for example, the testimony of A and Tiger, since they were not present at the scene of the alleged rape and, therefore, what they claimed to know could only have come from X and B;

(5)  There was no eyewitness to the alleged offence; and

(6)  The applicant’s conviction for attempted rape was inconsistent with the pathologist’s finding of the existence of penetration, which was also made the subject of an admitted fact.

The respondent’s submission in reply

18.Ms Betty Fu, together with Ms Catherine Xiao, on behalf of the respondent, opposed the renewal application. It was submitted that the present grounds had only been raised after the Single Judge had given his judgment and were, in any event, devoid of merit.

19.In respect of Ground 1, the respondent submitted that the judge properly reminded the jury of the existence of inconsistencies in the various testimony before the jury, in particular in the evidence of the twins and A[16]. They were specifically directed to look at the whole of the evidence when analysing the truthfulness and reliability of the witnesses; to look for evidence which could support the testimony of another; and to decide only those matters which went to prove the indicted offence. Further, the jury were also told to consider whether something did in fact amount to an inconsistency and, if so, whether it was relevant and material to the issues in the case.

20.As for Ground 2, the respondent disagreed that the judge was biased towards the victim. The judge appropriately and thoroughly summarised X’s testimony both in court and by way of video-recorded interview, and pointed out the discrepancies between it and B’s testimony. He also reminded the jury to look for support of X’s testimony and to evaluate it as a whole. Further, the jury’s attention was drawn to the young age of the children; their intelligence and maturity; the fact that their evidence was unsworn; the significance of their testimony; and their susceptibility to conscious or unconscious pressure or influence from others[17].

21.In respect of Ground 3, the respondent submitted that the judge’s directions on inferences and speculation were adequate. The jury were provided with detailed directions, in particular, to the effect that if an inference against the accused was to be drawn, it must be the only reasonable inference from the proved facts; and that no adverse inference could be drawn against the accused where there was a reasonable inference against him as well as one in his favour. In respect of speculation, the judge had, at the outset of his summing-up, reminded the jury that they must decide the case only on the evidence before them, and they should not speculate about what evidence there might have been. These were standard directions.

22.In relation to Ground 4, it was submitted that the judge had explained that what B heard was not evidence as to what actually happened on the bed since he did not see it, and was only relevant as evidence consistent with X’s account.

23.In reply to Ground 5, the respondent argued that, notwithstanding there was no eyewitness to the actual offence, X’s evidence was supported by overwhelming circumstantial evidence, including: A and B’s evidence that they saw X and the applicant naked below the waist and lying on the bed; the photograph taken by A showing X’s reddened private parts; the finding of an injury to X’s private parts; the presence of X’s DNA in the bloodstain in her underpants; and X’s early complaint to B. It was submitted that the cumulative effect of these matters would have allowed the jury to convict the applicant of attempted rape beyond reasonable doubt.

24.As to Ground 6, it was pointed out that the ground was misconceived. The pathologist’s finding was that the presence of an injury to X’s posterior fourchette was consistent with her allegation, but he did not go so far as to conclude that there was penetration by a erect penis, which was an issue for the jury[18]. In any event, section 159G of the Crimes Ordinance made clear that: “(3) Where a person is charged with an offence, he may be convicted of having attempted to commit that offence even though he was not charged with the attempt.” Accordingly, even if the jury acquitted the applicant of rape, they were still entitled to consider the alternative of attempted rape[19].

Discussion

25.We can deal with the applicant’s Grounds 1, 3 and 4 together, since they all complain that the judge gave inadequate legal directions on specific evidential matters, namely, inconsistencies, inferences, speculation and hearsay.

26.We have examined the judge’s directions, in what we observe was a lengthy summing-up lasting over a day. Not surprisingly, the judge drew various inconsistencies to the attention of the jury, particularly as between X, B and A, saying of such inconsistencies that it was the jury’s function “to analyse their testimony”[20]. In this respect, he was correct and there was no requirement that he should define what an inconsistency was: whether evidence was inconsistent within itself or with other evidence, and whether such inconsistency was ultimately important, were matters of ordinary experience and common sense for a jury.

27.As for the directions on inferences and speculation, these were standard directions, which the jury would have well understood.

28.In respect of hearsay evidence in Ground 4, there was direct evidence from X of what happened to her, and direct evidence from B and A of what they each saw and heard. Of course, A and Tiger were not present at the exact time of the alleged offence, but we see no danger of any hearsay evidence colouring the evidence in this case.

29.As for the allegation in Ground 2 that the judge was biased, we see no justification whatsoever for such a serious accusation. On the contrary, the judge summed up X’s evidence in great detail and explained the applicant’s defence, notwithstanding that he did not in fact give evidence, but instead relied on his video records of interview. The judge reminded the jury of the dangers implicit in a child’s evidence, particularly one of limited intelligence, and invited the jury to look for supporting evidence, of which there was a significant body of such evidence.

30.This perhaps leads us to the complaint in Ground 5 that there was no eyewitness to the crucial events. In fact, X’s evidence – and she was experiencing events at first hand - was supported by cogent pieces of circumstantial evidence: the observation by B and A that X and the applicant were found lying next to each other on the bed naked below the waist; the contemporary photograph by A of X’s reddened private parts; the injury to X’s fourchette; and the blood on the crotch of her pants. And, of course, there was X’s recent complaint to B, which, whilst not probative of the offence, did go to support her credibility.

31.Together with the judge’s careful instructions about circumstantial evidence and the jury’s duty not to draw inferences unless they were the only reasonable inferences to draw, we are quite satisfied that there was ample evidence to support the conviction.

32.In relation to the final complaint under Ground 6 that the conviction for attempted rape was inconsistent with the injury to X’s fourchette, this ground is misconceived. The evidence was of a small tear to X’s posterior fourchette: however, the hymen was intact. It was perfectly possible, whatever the extent of penetration and by whatever means, for the jury to conclude that the applicant had attempted to rape X.

33.For these reasons, we refused leave to appeal against conviction on new grounds which were effectively out of time and dismissed the appeal.

Ms Betty Fu ADPP (Ag) and Ms Catherine Xiao PP, of the Department of Justice, for the Respondent

The Applicant appeared in person