HKSAR v. Shabbir Asim

DCCC 833/2022

[2024] HKDC 1733

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 833 OF 2022

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REASONS FOR VERDICT

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Introduction

1.The defendant SHABBIR Asim (“D”)  faces a total of 4 Charges:

Charge 1

Indecent conduct towards a child under the age of 16 years, contrary to section 146(1)  of the Crimes Ordinance, Cap.200. Particulars of Offence alleged that D, on a day unknown in 2017, at a flat at Fuk Wing Street, Sham Shui Po, committed an act of gross indecency with or towards X, a girl of the age of about 7 years.

Charge 2

Indecent assault on another person, contrary to section 122(1)  of the same Ordinance. Particulars of Offence alleged that D, on a day unknown between 2018 and September 2021, at Room G, 7^th Floor, No.110 Nam Cheong Street, Sham Shui Po, indecently assault X, a girl under the age of 16 years.

Charge 3

Same as Charge 2 except that the offence took place on a day unknown in September 2021, on an occasion other than that referred to in Charge 2, and X was of the age of 11 years.

Charge 4 (as amended)

Doing an act tending and intended to pervert the course of public justice, contrary to Common Law and punishable under section 101I(1)  of the Criminal Procedure Ordinance, Cap.221. Particulars of Offence alleged that D, on a day unknown between 2017 and 2018, at a flat at Fuk Wing Street, Sham Shui Po, with intent to pervert the course of public justice, did an act which had a tendency to pervert the course of public justice, in that he threatened X that he would kill X’s mother if X disclosed to anyone that D had sexually assaulted X.

2.All Charges related to the same girl X. D denied all 4 Charges.

Prosecution’s Case

3.This case involved allegations of sexual advances by D on girl X and his attempt to threaten X not to disclose his criminal conducts towards X to others. Some of the background facts relating to the case are not in dispute and are admitted under section 65C of Cap. 221 (as P6 and P6A).

4.It is not in dispute that X was born in Hong Kong on 13 March 2010. She was 12 years old when the case was reported to the police on 29 April 2022.

5.Between 2017 and 2018, X had been living with her mother Y at a sub-divided flat at Fuk Wing Street, when D and his wife lived at a neighbouring room (the location mentioned in Charges 1 and 4).

6.In around late 2018, D and his wife moved to Room G, 7^th Floor, No.110 Nam Cheong Street, Sham Shui Po, the location referred to in Charges 2 and 3.

7.On 29 April 2022, X disclosed to her school teacher Mr. CHAN Hak-yik (PW3)  that she had been sexually abused by “Uncle”. The school made a report to the police. Police arrived at the school and met X at about 13:20 hours the same day.

8.At about 13:54 hours on the same day, when X walked pass Maple Street Playground together with the school social worker and the police party, she pointed out D, who was sitting on a bench inside the Playground, as the “Uncle”. D was arrested and cautioned by the police there for “Indecent Assault”. Later in the same evening, assisted by a Punjabi and a Police Interpreter, D voluntarily participated in a video-recorded interview with the police (P1,transcript P1A and certified English translation P1B).

9.There is no dispute that during this interview D said, inter alia, that he came to know X since she was born. Y used to be the girlfriend of one of D’s friend. D’s wife used to take care of X when Y went out to work. Since February 2017 D lived with his wife in a sub-divided flat in Fuk Wing Street when X and Y lived in the next room. D’s wife used to take care of X including feeding and bathing her. D used to take X to school and pick her up from school. D had helped X to dress after bath, that was done in the presence of his wife when X was aged 4 or 5. In 2018, after he and his wife moved to another flat at Nam Cheong Street, his wife did not take care of X. X had visited his residence once or twice in his absence. Between 2017 and 2018, the only time D stayed alone with X was when he took her to school and picked her up after school. D also admitted to the circumstances of his arrest.

10.Other formal evidence, including photographs of X’s current home and that of D’s (the location referred to in Charges 2 and 3), were admitted as P2, and Medical and Forensic Medical Reports of X in June 2022 were admitted as P4 and P5 respectively.

11.Prosecution called 3 PWs, X, her mother Y as PW2, and her teacher Mr. CHAN as PW3. Ms. Cheng for the prosecution made it clear at the commencement of the trial that prosecution is not relying on any evidence of recent complaint. As such, Y and PW3 were called as factual witnesses only.

12.The only evidence implicating D on each Charge comes from X only. I shall first set out in some details a summary of her evidence.

13.It is not in dispute that X was interviewed by a social worker on 3 May 2022 in relation to this case, which was video-recorded, and admitted as P3 (transcript P3A and certified English translation P3B). She was 12 years old at the time and pursuant to leave granted by the Court under section 79C of Cap.221, this formed the basis of her evidence-in-chief. At the time of this trial she was 14 years and 5 months old. Pursuant to leave granted by the Court under section 79B of Cap.221, she testified in Court via television link.

14.In P3 X said she first met D in 2016. In 2017 D started doing things she didn’t want and continued in the few years thereafter. He did this for over 200 times, the last time was in September 2021. She told Y about that in November 2021 and PW3 in April 2022.

Charges 3 and 4

15.X started by describing an incident, which she called “the last incident”, that happened in September 2021 at D’s home. X was playing her phone and D was to her left. He touched her thighs and breasts, put his hands underneath her clothes and grabbed her breasts. X was lying and D was on top of her. He pulled down her pants, he also took out his penis and rubbed it against her private part on the outside. He kept doing this while touching her breasts. X used her hands and legs to push and kick him. He knelt in between her legs and assaulted her for about 5 minutes. She even screamed but D said “like it or not” and continued his assault on her. X felt painful as D grabbed her breasts forcefully and screamed. X felt no one is going to help her. The incident stopped when D put his penis back. She was asked if he had ever mentioned what would happen if she told others about it. In reply, X said “D said he would kill my mother.”. She did tell some close online friends about the incident.

Charge 1

16.X then went on to describe “the first incident”, which happened in 2017 at D’s room, but she could not recall the month and date. She said D bribed her with food, then put his hands into her clothes and touched her body and breasts. She was sitting on D’s thigh, who was behind her. He then told X to turn around and bend down in front of him. He then grabbed her head and put half of “his thing”, which she later said it was his penis, into her mouth, and moved her head up and down. X felt confused, disgusted and did not know what to do. She could not remember the date in 2017 when this happened but felt it was in autumn and happened at 2 to 3 p.m., when they were living in the same building.

Charge 2

17.X then also spoke of an incident that gave her the strongest memory. She said Y had left her at D’s house to stay for 1 day because Y had a work to do. She spent the night in D’s bed as there was only 1 in his home. In the morning she was awaken. Her pants had been pulled at the back to half of her thighs and she felt D’s hard-on penis touching her private parts and anus from outside, moving forward and backward. This lasted for a few seconds, after which D put his penis back into his pants and went to sleep again. At the time she was facing the wall with D behind her and Auntie (D’s wife)  sleeping next to D facing outside. X did not turn around but she was sure it was D behind her as she could smell his scent (cologne), and there could not be anyone else but D. She was also sure that it was his hard-on penis that touched her body.

18.She confirmed in Court under oath that what she had said in P3 was true.

19.In cross-examination, she said her mother was of Indonesian origin and father was a Pakistani but she had never seen him, nor did she know his whereabout. She had a “step-father” but he had been in jail in the past 2 to 3 years. She identified D to be the “Uncle” she had mentioned. This was not conceded by Mr. Davies for the defence. She said that she seldom went to D’s new home, maybe 3 to 4 times, but she could not remember much about those visits now. She said she told Y during an argument in November 2021 that D had touched her, with no other details given. Y told her not to tell anyone except her.

20.She was questioned in some detail about each of the incidents mentioned in P3. She admitted that she could no longer remember much of what happened in the “first incident” (referred to in Charge 1). In relation to the “last incident” (referred to in Charge 3), she said after rubbing his penis against her private parts for 1 to 2 minutes, he jerked himself off and then left home. When Y and Auntie returned, she did not tell them about it, she only felt disgusted.

21.She stood by her grounds when it was suggested to her, one by one, that those incidents did not happen. However, several matters of importance were revealed during cross-examination.

22.When she was questioned about the incident referred to in Charge 2 as to why she slept at D’s home, X said she came to remember that Y had been in jail for 4 months. She was left to the care of Auntie but the latter often left her to be taken care of by D.

23.When she was questioned about “the last incident” (referred to in Charge 3), she mentioned another incident which happened at the staircase when D tried to touch her again. She pushed him off and ran home. She said this was the last, and only, time he had abused her at his new home, and she had not seen him since that incident.

24.Finally, when she was asked about the time when D threatened to kill her mother if she told anyone about his abuses on her, she said she could not remember but it was before 2021.

25.In re-examination, she said the incident at the staircase was not the same as “the last incident” she had mentioned in P3. It occurred several weeks later, also in September 2021.

26.As to the threat by D to kill her mother, she said it was not in September 2021, but in his “old flat” (meaning when they were neighbours in Fuk Wing Street), and there was no similar threat in his new home. She had heard this from D at least twice.

27.Since the original Charge 4 referred to “a day unknown in September, 2021” at the new flat， basing on these answers by X in re-examination, prosecution applied at the end of her evidence to amend Charge 4 to its present form. There was no objection by the defence. I considered that the Charge as amended did not infringe upon the principles as stated in Chim Hon Man v HKSAR[1] and HKSAR v Chu Chi Wah (No.2)[2] and the application was granted accordingly. I allowed Mr. Davies to re-open his cross-examination on X whereupon Mr. Davies put to X that this did not happen. She stood by her evidence that he had threatened her as described.

28.Y was called as the next witness. She confirmed her own backgrounds and her relationships with X and D’s family. She is  Indonesian by origin, so is the wife of D. X and Y were both acquainted with D and his wife. D and his wife had assisted Y to take care of X since X was small. She said she had been detained by the Immigration Department for 4 months, during which time X was left to the care of her then boyfriend, but she understood that X was left to the care of D’s wife during the period. She also confirmed the situation on 29 April 2022 when she attended school with X, eventually leading to the school reporting the matter to the police later that day. She said she had called D and his wife that morning and asked them to come to school to sort out the matter.

29.She was cross-examined, mainly on her relationship with X in general and their communications on the allegations now put forward by X against D. Since prosecution is not relying on evidence of “recent complaint”, her evidence on the latter issue is of little value.

30.PW3 was the teacher of X who testified as to the circumstances under which the case came to be reported to the police. He stated that X had been his student for 3 years. He came to know that X had been absent from school for 3 days from 26 to 28 April 2022, so he called Y on 29 and asked her to bring X to school to explain the situation. After they arrived, he noticed something strange about X, with red, teary eyes. He had an opportunity to talk to X alone and she revealed to him that “When I was 7, I was raped by my uncle.” He realized the serious nature of her allegations, and having discussed with the Principal, despite reluctance from Y, the matter was reported to the police. He confirmed that Y did call “Uncle” and he had talked to this “Uncle” on the phone.

Defence Case

31.At the close of the prosecution’s case, there was no half-way submission by the defence. I ruled that there is a case to answer in respect of all 4 Charges. D elected not to give evidence and called no defence witness.

Analysis of the evidence

32.I direct myself that the burden of proof is on the prosecution. It is for the prosecution to prove each element of each offence against D beyond reasonable doubt. D bears no burden of prove. He is not required to prove his innocence.

33.D elected not to give evidence and called no defence witness. It is his right and no adverse inference would be drawn against him. However, this means that there is no evidence to undermine, contradict or explain the evidence presented by the prosecution.[3]

34.I also direct myself that I have to consider the case against D on each Charge separately.

35.The only evidence implicating D on each Charge comes from X, therefore, her credibility and reliability are of crucial importance. In analysing the evidence in this case, in particular the testimonies of X, I bear in mind that allegations of this nature are easy to make but extremely difficult to refute.

36.I have paid careful attention to the evidence of X and the manner in which she testified. She was 12 years and 1 month old when interviewed by the social worker in P3 and 14 years and 5 months when testified in Court.

37.It is obvious from the evidence that she did not have a healthy upbringing. It is not difficult to imagine the life she had gone through so far. Despite that, she appeared to me to be an intelligent girl with good mannerism. She could understand the questions put to her and answered them directly without hesitation or evasiveness. There might well be some exaggeration when she said D had sexually assaulted her over 200 times but otherwise her evidence was fair and plain. For example, she readily agreed in cross-examination that in relation to “the first incident” (Charge 1), she could no longer remember much of what happened during that incident. After all this incident occurred in 2017, she was only 7 at the time. In relation to the incident that gave her the strongest memory (Charge 2), she agreed that she did not turn around when she felt D behind her, she did not see if it was D, nor did she see it was his hard-on penis that rubbed against her private parts.

38.The evidence of X also conformed with other objective evidence available, for example, her assertion that there was only 1 bed in D’s new home was confirmed by P2 (20 to 25), photographs of the room.

39.It is true that there had been some discrepancies between her evidence in P3 and in Court, for example in relation to when it was that D had threatened her and whether the “last incident” referred to in P3 was indeed the last, or the one at the staircase which she agreed she mentioned for the first time in Court. Also, she only mentioned that she was left to spend the night at D’s home as Y was in jail when being cross-examined in Court. The way in which this particular answer came about struck me that she had indeed no memory of this sad experience until it was triggered by the question put in Court.  Given the nature of the case and the age and backgrounds of X, these discrepancies are understandable, and had not affected my assessment of her credibility as a witness.

40.Mr. Davies suggested that X might have made up these accusations against D as an excuse to explain to PW3, the school discipline master, why she had been absent from school for 3 days. I have no difficulty in rejecting this suggestion.

41.Having considered all relevant evidence carefully, I find that X is an honest and reliable witness. She had tried her best to recall the incidents relevant to the 4 Charges honestly and truthfully.

42.Although Mr. Davies did not concede on the issue of identity, having considered all the evidence, I am sure that the “Uncle” referred to by X throughout her evidence was D.

43.In the course of her evidence, X mentioned some incidents the nature of which were similar to those as particularized in the Charges, for example, over 200 similar assaults and the incident at the staircase a few weeks after the incident in Charge 3. These incidents are not subject of any Charge D is facing, and can be described as “uncharged conducts”. There was no issue taken by the defence. I am aware of the situation and took them into consideration only in accordance with the relevant legal principles as stated by the Court of Appeal in HKSAR v Kwok Hing Tony[4] and HKSAR v Ngie Hon Miu (No.2)[5].

44.Having considered all evidence in the case, I am satisfied that the sexual assaults on X by D referred to in Charges 1 to 3 and the threat by D to X referred to in the amended Charge 4 did occur as described by X.  All the elements of each offence as particularized in each Charge have been proved to the necessary standard by the prosecution.

Verdict

45.For the reasons set out above, D is convicted of all 4 Charges he is facing.