Li Kin Ho v. HKSAR

FAMC No. 18 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 18 OF 1999 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 409 OF 1998)

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FAMC No. 19 of 1999

MISCELLANEOUS PROCEEDINGS NO. 19 OF 1999 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 409 OF 1998)

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Date of Hearing: 7 July 1999

Date of Determination: 7 July 1999

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1. Both the prosecution and the defendant seek leave to appeal to the Court of Final Appeal.

2. The defendant faced six counts of incest. They all arose out of allegations that he had sexual intercourse with his daughter. We will refer to her as "the victim". On 14 July last year the jury acquitted the defendant on the first three counts, but convicted him on the last three counts.

3. He then took the matter to the Court of Appeal. On 3 May this year that court (Chan CJHC, Power VP and Stuart-Moore JA) quashed the convictions on the 4th and 5th counts, but refused to quash the conviction on the 6th count.

4. We heard these two applications one immediately after the other. In the first application, FAMC No. 18 of 1999, the prosecution seeks leave to appeal against the quashing of the convictions on the 4th and 5th counts. In the second application, FAMC No. 19 of 1999, the defendant seeks leave to appeal against the refusal to quash the conviction on the 6th count.

5. In quashing the convictions on the 4th and 5th counts, the Court of Appeal proceeded on its understanding of the Court of Final Appeal's decision in Chim Hon-man v. HKSAR [1999] 1 HKLRD 764. But in the course of giving judgment the Court of Appeal said that they were gravely concerned that they may have misunderstood and misapplied the decision in Chim's case. And they invited counsel for the prosecution to ask them to certify under s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, that a point of law of great and general importance was involved in their decision.

6. Then the Court of Appeal heard both sides on the question of such certification. Having done so, they certified that their decision quashing the convictions on the 4th and 5th counts involved the points of law of great and general importance which they identified thus:

"(i) Whether our decision, applying the judgment of the Court of Final Appeal in Chim Hon-man v. HKSAR, to allow the Appellant's appeal and quash his convictions was correct in law.

(ii) In proceedings where it is alleged in an indictment that an accused has committed an act of incest within a specified period and there is evidence led of a number of such acts over this period, it is, applying the Chim's case, not open to the jury to convict the accused of the offence in the indictment."

7. The prosecution now asks this Committee to grant it leave, under s.32(1) of the aforementioned Ordinance, to appeal to the Court of Final Appeal against the quashing of the convictions on the 4th and 5th counts. It seeks such leave on the basis that it is at least reasonably arguable that the points certified by the Court of Appeal ought to be resolved in its favour.

8. Under the 4th count, the act of incest charged is particularised as having occurred "on a day unknown in about 1992, at Room 2613, Fu Yat House, Tai Wo Hau Estate, Kwai Chung, New Territories, in Hong Kong". Under the 5th count, the act of incest charged is particularised as having occurred "on a day unknown in about 1996" at that address.

9. The prosecution, having charged one act of incest in 1992 under the 4th count and one act of incest in 1996 under the 5th count, lead evidence of multiple acts of incest in each of those two years. And when the trial judge directed the jury on the 4th and 5th counts, he told them:

"Given the way that the prosecution puts its case (in other words, that the counts on the indictment are specimen counts, and that the defendant had sexual intercourse with his daughter several times a week over many years), what you need to be sure about in relation to each count on the indictment, considered separately, before you could convict the defendant on that count, is that during the period set out in the particulars to that count, there was at least one act of sexual intercourse."

10. In quashing the convictions under the 4th and 5th counts, the Court of Appeal said that there were, or might well have been, other ways in which the prosecution could have proceeded. What the Court of Appeal, in their judgment delivered by Power VP, said in this regard may be summarised thus:

(1) As far as the victim's testimony of incest in 1992 is concerned, there was evidence capable of corroborating such testimony to the extent of two acts of incest. And each could have been charged as a separate offence.

(2) As far as 1996 is concerned, properly cautious questioning at an early stage might well have enabled the victim to identify a particular occasion in 1996 which would have

allowed a count to be laid charging a specific act of incest in that year.

11. It is clear beyond reasonable argument to the contrary that the Court of Appeal correctly understood and applied Chim's case and, what is more, gave the prosecution helpful guidance on how to proceed in future cases such as this one.

12. We dismiss the prosecution's application for leave to appeal to the Court of Final Appeal, and turn to the defendant's application for such leave.

13. The defendant asks us to certify the following as a point of law of great and general importance involved in the Court of Appeal's decision, and to grant him leave to argue it before the Court of Final Appeal:

"Where (a)	evidence if accepted could implicate an accused in an offence
But (b)	neither the Judge nor jury can assess how probable or not it is that the evidence does so implicate the accused

Whether the evidence is capable of amounting to corroboration."

The defendant also seeks to rely on the "substantial and grave injustice" limb: doing so on the basis that if his point of law is a valid one, then his conviction on the 6th count amounts to a substantial and grave injustice.

14. What the point has to do with is as follows. In regard to the 6th count, it was common ground between the prosecution and the defence at the trial that there was a sexual encounter between the defendant and the victim. According to her, it consisted of sexual intercourse. By way of corroboration of her evidence as to that, the prosecution led evidence that semen was found in her vagina, and that that its presence there indicated that sexual intercourse had taken place. The DNA evidence went no further than that the semen may have come from the defendant.

15. But that did not matter, because the fact of the semen being the defendant's was not in issue at the trial. His account of the sexual encounter was that the victim had masturbated him, doing so against his will and by means of threats that she would accuse him of impropriety towards her if he resisted. It was the defence's contention that the victim, having obtained the defendant's semen in that way, then inserted the same into her vagina to bolster her false allegation of sexual intercourse having taken place between them.

16. So the issue for the jury was simply this: were they sure that the victim's evidence was true or were they left in some reasonable doubt as to whether she had fabricated a case against the defendant? That issue was properly left to the jury. The fact that the DNA evidence was equivocal - which is the foundation of the argument which the defendant wishes to advance under the point which he asks us to certify - is immaterial, since it goes to a fact which was not in issue at the trial.

17. We refuse the defendant leave to appeal to the Court of Final Appeal.

18. In the result, therefore, both the prosecution and the defendant's leave applications are dismissed.

Representation:

Mr D.G. Saw SC and Miss Lily Wong (of the Department of Justice) for the prosecution (the applicant in FAMC No. 18 of 1999 and the respondent in FAMC No. 19 of 1999)

Mr Phillip Ross (instructed by the Director of Legal Aid) for the defendant (the respondent in FAMC No. 18 of 1999 and the applicant in FAMC No. 19 of 1999)