HKSAR v. S.H.S.

CACC 184/2023

[2024] HKCA 627

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 184 OF 2023

(ON APPEAL FROM HCCC NO 84 OF 2023)

________________________

________________________

________________________

J U D G M E N T

________________________

1.On 23 August 2023, following a trial before Deputy High Court Judge Woodcock (the Judge)  and a jury, the applicant was convicted of two counts of rape, contrary to section 118(1)  of the Crimes Ordinance, Cap 200 (CO)  (Counts 1 and 2), and three counts of indecent assault, contrary to section 122(1)  of the CO (Counts 3, 4 and 5). On 14 September 2023, he was sentenced to a total term of 13 years’ imprisonment.

2.On 12 October 2023, the applicant filed a notice of application for leave to appeal against conviction.  His only complaint in the notice is that the conviction was “unfair”.  He appears in person in support of his leave application, having had legal aid refused.  At the leave hearing, he requested to withdraw his application, but he was informed that the matter would proceed with formal judgment to be handed down regarding his leave application against conviction.

The prosecution case

3.It was alleged against the applicant that he raped and sexually assaulted his step-granddaughter, when she was between the ages of 6 and 10 years.  The applicant was between the ages of 58 and 62 years.  The offences were alleged to have been committed on different occasions between 1 May 2012 and 31 August 2016 in a flat in Kwun Tong, Kowloon.[1]

4.The particulars of the prosecution case were as follows.[2] The complainant, X, moved to a public flat in Kwun Tong, Kowloon, (the flat)  with her mother, Y, and her future stepfather, Z, in May 2012.  The flat was in the name of the applicant, Z’s father.  The applicant was living in the flat at the material time.  X had her own room, which was next to the applicant’s room.  In June 2013, Y married Z, and the applicant became X’s step-grandfather.  Y later had two daughters with Z.  They were born in 2013 and 2014, respectively.  The offences occurred between 1 May 2012 and 31 August 2016, which was the period X lived in the flat with the applicant.  X was 6 to 10 years of age during the period of the offences.

Count 1

5.The first incident of rape happened when X was about 7 years old.  She was alone in the flat with the applicant.  The applicant asked X to go into his bedroom.  He began to touch her and later took off his pants and exposed his penis.  She did not know what it was and what he was doing.  He fondled his penis and told X to lie down.  He took off her clothes and penetrated her vagina with his penis.  X said he penetrated her with great force, and she complained about the pain.  He told her to bear with the pain.  She was overwhelmed by the pain as it felt like her private parts were being ripped apart.  She told him to stop and tried to resist him, but he carried on ignoring her.  The applicant eventually withdrew his penis and fondled himself. She recalled that he wiped his penis with a tissue and also gave her a tissue, telling her to wipe herself clean.[3]

Count 2

6.The second incident of rape happened sometime after the first rape before X received sex education in Primary 3 at school.[4]  It was similar to the first incident of rape.  She was in his bedroom when the applicant penetrated her vagina with his penis.  The applicant laid on top of her, pressing and penetrating her.  She recalled that she had to grab onto things around her, like the first time, because of the pain.[5]

Count 3

7.The first incident of sexual assault occurred after X had showered and only had a towel around her body.  The applicant picked her up, took her to a sofa or bed, took off her towel and touched her body all over.  He also licked and kissed her body, including her chest and her mouth. He also tried to put his tongue in her mouth but was unsuccessful.[6] 

Count 4

8.The second incident of sexual assault occurred one morning when X was asleep in bed.  She woke up to see the applicant sitting by her bedside with his hand inside her pyjama bottoms, touching her vagina.  When he saw that she was awoken, he withdrew his hand.[7] 

Count 5

9.The third incident of sexual assault involved the applicant asking X to go into his bedroom.  He told her to kneel on his bed with her back facing him.  The applicant inserted his finger into her anus.  He asked if it felt comfortable.  She could hear sounds behind her and it seemed the applicant was masturbating himself.  He later withdrew his finger, and she saw him wiping his index finger.[8]

10.The applicant warned X several times not to tell her mother or anyone about what had happened.[9]  She eventually told someone in 2021, and a police report was made.  X attended two video recorded interviews with a social worker on 6 October 2021.  The applicant was arrested on 7 October 2021.[10]

11.Y also gave evidence for the prosecution.[11]  She said that one day in the summer of 2013, she returned from work, and X told her she felt discomfort in her private parts.  Y checked and saw X’s private parts were reddened and swollen.  At the time, X just started taking a shower on her own, and Y thought it was because X did not shower properly.  Y applied cream on X’s private parts. After that incident, there were one or two similar incidents, but Y always thought it was because X had not cleaned herself thoroughly.[12] 

Defence case

12.The applicant and his daughter gave evidence.  The defence case was that the applicant never raped, indecently assaulted or behaved inappropriately towards X during the whole time they lived together in the flat.[13]  It was alleged that X became jealous of her two younger sisters who were treated better by the applicant and his wife, and their side of the family.  X’s two younger sisters were the biological grandchildren of the applicant and were spoilt by their grandparents, whilst X was not.  It was pointed out that the two younger sisters were taken on local outings and overseas trips, whilst X was not included.  It was suggested that this may be a reason or motive for X to fabricate the sexual offences against the applicant.[14] 

13.The defence also challenged X’s credibility by suggesting that X had opportunities before 2021 to tell her teacher or parents about the incidents, but she did not tell anyone until September 2021.  One such opportunity arose when she was given a sex education class in Primary 3, and another when there was an argument within the household between Z and his mother, which lasted for months.[15]

Discussion

14.As helpfully provided by the respondent, the Judge in her summing-up identified the key issue in the case was whether or not the jury found X to be a credible, believable and reliable witness.[16]  The prosecution and defence cases were set out.  When summarizing the evidence, the Judge went through the testimonies of all the witnesses, the Admitted Facts, a sketch of the flat, and photographs provided by the defence.  Directions were also given on the functions of a judge and jury,[17] the burden and standard of proof,[18] the separate treatment of each charge,[19] the giving evidence via live television link,[20] uncharged acts,[21] the applicant’s evidence,[22] the good character of the applicant,[23] the applicant’s right to silence,[24] the elements of “rape”[25] and “indecent assault”[26], preconceived assumptions, including the delay in making a complaint[27], historical sex abuse complaint[28], and guarding against prejudice in cases involving sexual offences against children[29].  The Judge followed religiously the instructions set out in Chapter 111 on Sexual Offences in the Specimen Directions in Jury Trials, Volume 2, 2020 Revision[30].  She also addressed the issue of inconsistencies within a witness's evidence.[31]

15.It is unclear on what basis the applicant is complaining that his trial was unfair.  From the summary of topics that the Judge addressed in her summing-up, it is clear that she was very focused and comprehensive in the directions she gave the jury in this case.  The key issue in the trial turned on the jury’s assessment of the credibility and reliability of X and the weight to be attached to her evidence.  X had been subject to lengthy cross-exanimation, and the jury had ample opportunity to assess her credibility and reliability as a witness.

16.The Judge gave a comprehensive summary of the evidence in the case.  Her directions on the law were clear and precise, addressing in detail the elements of the offences of rape and indecent assault. She properly directed the jury on how to evaluate the evidence, and moreover, repeatedly explained the burden of proof:

“There are two principles which are very important, fundamental, and must be kept at the forefront of your mind at all times, and that is the burden of proving the defendant is guilty is always on the prosecution. This means the prosecution must prove the defendant is guilty. The defendant does not need to prove he is innocent. The prosecution has the burden of proving to you the defendant’s guilt.”[32]

“I will repeat he does not have to prove his innocence. He does not have to prove anything. He does not have to prove X had a motive to frame him... It is for you to decide whether you believe the evidence of the defendant or whether that is evidence may be true. If the account given by the defendant is or may be true, as I said earlier, the defendant must be acquitted. Even if you entirely reject the defendant’s evidence or reject the account given by him, that does not relieve the prosecution of its burden of making you sure by evidence of the defendant’s guilt. So if you entirely reject the defendant’s evidence, put it aside and then ask yourselves whether the prosecution has proved his guilt on the basis of prosecution evidence which you accept.”[33]

“In the end it is for you to arrive at your conclusion as to whether the prosecution has proved so that you are sure the defendant raped X on two separate occasions, and indecently assaulted X on three separate occasions as charged.”[34]

17.Furthermore, the Judge gave what is referred to as a Liberato direction[35] to the jury, emphasising that if they found the applicant’s evidence to be true or may be true, then they should acquit him, and if they rejected the applicant’s evidence that the prosecution still had to prove to the requisite standard the applicant’s guilt.  She said:[36]

“It is for you to decide whether you believe the evidence of the defendant or whether what is evidence may be true. If the account given by the defendant is or may be true, as I said earlier, the defendant must be acquitted. Even if you entirely reject the defendant’s evidence or reject the account given by him, that does not relieve the prosecution of its burden of making you sure by evidence of the defendant’s guilt. So if you entirely reject the defendant’s evidence, put it aside and then ask yourselves whether the prosecution has proved his guilt on the basis of prosecution evidence which you accept.

If on the other hand you find in relation to an issue in the case that the defendant’s evidence is or even may be true, then you are not entitled to find against the defendant on that issue and you must take his evidence into account.  It also follows that if you reject part of the defendant’s evidence, but you find that some of it is true or may be true, you must put aside and ignore the part that you reject and you concentrate on the defence evidence which you find is true or may be true, as well as the prosecution evidence which you are sure is true.”

18.The applicant has not been able to identify any material error or mistake that would constitute a ground of appeal against his conviction, nor is one apparent from an overview of the nature and issues of the case and the Judge’s summing-up.  It cannot be said that the convictions are unsafe or unsatisfactory.

Conclusion

19.It follows from what I have said, the application for leave to appeal against conviction is refused.

20.The applicant is reminded of his right to renew his application for leave to appeal against conviction to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

Ms Human Lam, SPP, of Department of Justice for the respondent

The applicant appeared in person