R. v. Kung Hon-chiu

CACC000213/1996

IN THE COURT OF APPEAL

1996, No. 213

(Criminal)

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Coram: Hon Nazareth V.-P., Mortimer and Mayo JJ.A.

Date of hearing: 10 December 1996

Date of judgment: 10 December 1996

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J U D G M E N T

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Nazareth V-P (giving the judgment of the Court) :

1. The applicant, Kung Hon-chiu, was charged with 7 offences of indecent assault before Her Honour Judge Chu and found not guilty on the 2nd to the 7th charges, but was convicted on the first charge and was sentenced to probation for 2 years.

2. The 1st charge was indecent assault contrary to s.122(1) of the Crimes Ordinance, Cap. 200. The particulars were that on an unknown date between March to April 1994 at Flat 1309 Chu Fung House, Fung Tak Estate, Kowloon, he indecently assaulted one Wan Sau-hing, a male person aged 6 years. That was the age of the victim at the time of the offence. The applicant was 16 years old at the time. His mother, Mrs Kung, was the victim's child minder and looked after the victim at the time as the victim's father was in prison. The victim's father used to live with a Madam Woon who was not able to look after him as she had to go to Macao for employment. In consequence the victim lived with Mrs Kung except on certain weekends and holidays when he went to stay with Madam Woon in Macao. The victim stayed with Mrs Kung on most Saturdays. Here, I turn to the prosecution's case which the judge accepted.

3. On one Saturday, when the applicant's mother, Mrs Kung, was out, the applicant took the victim into his parents' bedroom and indecently assaulted him, making him take part in oral sex and later inserting his finger into the victim's anus. The victim did not complain to anyone about the several incidents, that he says, took place about ten times. They only came to light about a year after they ceased when he was taken to China by his father and Madam Woon. He complained about the pain in his buttocks. This led to the revelation of the matter.

4. The applicant was charged and cautioned. He denied the charge.

5. At the trial, three witnesses gave evidence for the prosecution, the victim, his natural father and Madam Woon. Six witnesses, including the applicant, gave evidence for the defence. Two police officers who had interviewed him were among those witnesses. We are not really concerned with them because no point has been taken in relation to their evidence by Mr Ronald Mayne, who with Mr C.S. Fu, appears for the applicant before us. The other four witnesses were a former schoolmate of the applicant; Miss Kung, his elder sister; Mrs Kung, his mother and Madam Lam who was the mother of a little boy Mrs Kung also looked after.

6. The applicant's defence was that he was never at home on any Saturday during the period in question but was at school engaged in extra-curricular activities. His former schoolmate gave evidence that the applicant accompanied him every Saturday at their school extra-curricular activities. The applicant's mother and his sister gave evidence that the applicant was not at home on Saturdays during the period. His mother added that she did not leave the victim at home alone with the applicant. The sister also said she was at home every Saturday during the relevant period. Madam Lam's evidence, which related to making phone calls to Mrs Kung on Saturdays is not material to the case.

7. The judge accepted the crucial part of the victim's evidence, i.e. the evidence relating to the indecent assault when oral sex took place. He gave evidence that impressed the judge and which we must say, rightly, given its relatively detailed and graphic nature. It was the acceptance of that evidence that lies at the very centre of the judge's conclusions and judgment.

8. Six grounds are included in the perfected grounds of appeal but Mr Mayne has very helpfully pursued them on two levels. First, he submits that the judge rejected the evidence of the defence witnesses, including the applicant (apart from the two police witnesses with whom we are not concerned) each upon an unsatisfactory basis. We do not find it necessary to recount these bases in detail. But he complains that the judge was wrong in finding it incredible that the applicant was not at home or said he was not at home on even one single Saturday. He submits that schools could be open on Saturdays, that teachers might attend on Saturdays, that extra-curricular activities could be regular recurring events, and so forth. Also, he refers to the judge relying upon a statement of the applicant that he was not interested in study to discount the probability that he might have gone to the school regularly on Saturdays for purposes of study, pointing out that one does not stand first in a class of 32, as the applicant did, without being interested in study.

9. He also complains that the judge took a view on the sexual orientation of the applicant on a speculative basis. There had been no evidence to support speculation that the applicant might have had an interest in pornographic publications that might have circulated in the classroom.

10. It is not necessary to deal with Madam Lam's evidence.

11. As to the schoolmate, Mr Mayne complains that his evidence should not have been simply discounted because he very well could have been with the applicant every Saturday for the reasons he advanced in relation to the applicant.

12. As to the sister's evidence, the judge mentioned that having completed her examination, it was surprising that she did not go out on Saturdays and, as she said, stayed in to study merely in connection with an oral examination which was only in the nature of a short dialogue. The burden of Mr Mayne's submission here was simply that for such an examination, one might have to put in a lot of study.

13. Finally, in relation to Mrs Kung's evidence, Mr Mayne pointed out that the judge seemed to have dismissed her evidence on the basis that she said she went out on Saturdays taking both young children she looked after with her shopping, and because of the difficulty of both of them being with her, having to make two trips. It would have been much simpler, the judge implied, if she got her daughter to look after one of these.

14. Mr Mayne submitted that it might have been entirely reasonable for Mrs Kung to take both children with her. He submitted that these witnesses were not shaken in cross-examination and that their evidence should not have been dismissed on the basis the judge adopted.

15. There is obviously something in what Mr Mayne says. But equally, there are points that may be made the other way. It seems to us that these submissions are best dealt with in the context of the second ground which is that a lurking doubt exists about the conviction upon the basis in the R v Cooper [1969] 1 QB at 267. Mr Mayne puts his submission of a lurking doubt not merely upon the rejection of the evidence of the witnesses we have just addressed, but also upon the following specific matters, taking the foregoing evidence point as the first. Second, the fact that the victim did not make any complaint until one year had past. Mr Mayne stressed that there was every opportunity for him to complain to Madam Woon who was effectively his mother. Third, he says, that if the victim complained of pain in July 1995, a year later, the medical examination should have revealed something abnormal or an injury. It did not. We pause to say that there was no medical evidence that in fact there should have been such abnormality or injury, but we take the point made into consideration. Fourth, Mr Mayne submits that the victim's father said, he asked the victim what had happened and the victim told him. Yet the victim himself said that he had never told his father anything. That discrepancy, Mr Mayne complains, has never been resolved. He submits it must raise a real doubt as to the victim's credibility and liability. Fifth, the complaint is that the evidence of time and the number of occasions these incidents took place was imprecise and placed the defence in considerable difficulty in refuting them. If there had indeed been more than 10 times when such incidents took place, then there might not have been a sufficient number of Saturdays upon which, bearing in mind that the applicant went to Macao on occasions, they could have happened so many times. Also, it is said that the victim never gave an answer to the question of how much time had elapsed between the occasion the last incident took place and the first complaint made in the middle of 1995. He stresses that the applicant should have at least been able to answer how many summers elapsed in that period.

16. Finally, he submitted that the unwillingness or failure of the victim to answer what he submits were simple question about time, raised questions about his credibility or reliability. On that note, we have to say that some of these submissions appear to overlook the age of the victim who was only 6 years old at the time of the incidents, and also, do not fully take into account the period of time that has since elapsed.

17. Mr Mayne also referred us to passages in the transcript. None of those could have escaped the judge's attention, and which she was in a far better position to assess together with the witnesses themselves, in particular the victim and the applicant. But at the end of the day, the fact remains as we have indicated, that central to the judge's view was the evidence of the particular incident of which she convicted the applicant. The victim described this in relatively vivid detail. Understandably, the judge, having accepted that evidence, took it as the pivotal evidence in the case. She says that a young witness of that age could not possibly have made up that evidence. We cannot fault those views. The various considerations that Mr Mayne has adumbrated before us in no way undermine the judge's conclusions in those respects. Upon the acceptance of those findings, which she was entitled to make, there is little room in the particular circumstances for a lurking doubt. We do not have any lurking doubt. We repeat the judge was entitled to accept the victim's evidence. Indeed, in the way it came out, it is not surprising that she did. None of the matters that Mr Mayne has eloquently raised before us affects that conclusion.

18. In those circumstances we do not find anything in the grounds. We refuse leave to appeal.

Representation:

Mr Ronald E. Mayne and Mr C.S. Fu (M/s Chung & Kwan) for Applicant

Mr I.G. Cross QC, Mr Patrick Cheung and Miss Agnes Chan (Crown Prosecutor) for Crown/Respondent