HKSAR v. Chim Hon Man
Read the full judgment text of CACC000283A/1997 on BabelCite. This Court of Appeal judgment was delivered on 8 May 1998 before Power VP, Mayo JA, Stuart-Moore JA.
Criminal law – rape – sexual abuse of step-daughter aged 9 – leave to appeal against conviction – admissibility of evidence by live television link – three grounds of appeal – first ground: whether cross-examination of complainant via live television link was admissible when complainant had turned 17 – Criminal Procedure Ordinance s.79A definition of 'child' – held: evidence admissible under s.79A(a)(ii) as complainant was under 18 when video-recorded examination-in-chief was made, and s.79C requirements complied with – second ground: whether trial judge erred in not directing acquittal on second count due to imprecise dates – held: conduct was continuing conduct with definable commencement and discontinuance, jury properly directed – third ground (alternative): whether material irregularity arose from prosecution not electing specific incidents per count – held: no prejudice where incidents had no distinguishing features – distinguished from HKSAR v Ayivor Mark where distinguishing features existed – application dismissed – convictions not unsafe or unsatisfactory – subsequent appeal to Court of Final Appeal noted in FACC000003/1998
Legal issues: Whether leave to appeal against rape convictions should be granted
Outcome: Leave to appeal refused; convictions upheld as not unsafe or unsatisfactory.
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CACC000283A/1997 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL 1997, No. 283
----------------------- Coram: Hon. Power, V.-P., Mayo and Stuart-Moore, JJ.A. in Court Date of hearing: 8 May 1998 Date of delivery of judgment: 8 May 1998 ---------------------- J U D G M E N T ---------------------- Mayo, J.A. (giving the judgment of the Court): 1. The Applicant seeks leave to appeal against his two convictions for rape. He was convicted after a trial before P. Chan, J (as he then was) and a jury. 2. The victim of the rape was his step-daughter Man-ling who at the time of the offences was aged 9. She was born on 1.3.1980. 3. Man-ling's mother married the Applicant in July 1988. They lived in a rented room at the roof top of a building in Kwun Tong. Man-ling lived with them. Her mother was a divorcee. She had two other children an older brother and sister. Initially they were living with their father. The offences were alleged to have occurred in July and August 1989. This was shortly after the commencement of Man-ling's summer holiday from school and prior to her mother's maternity leave which she took on 15th August prior to giving birth to another daughter at the beginning of September. There was also conflicting evidence to the effect that the date in August might be later. 4. The accommodation in the home was very restricted. In the bedroom there was a bunk bed. The upper bunk was occupied by Man-ling and the lower by her mother and the Applicant. Shortly after the beginning of her school holiday she remembered one morning when she was woken up by her step-father. He told her to come down to the lower bunk. It is relevant to add that at that time her mother worked in the morning. The Applicant only went to work later on. The Applicant removed her trousers and underpants and took off his own underpants. He then took out his penis and inserted it into her private parts. He moved up and down for several five minutes. During this time she closed her eyes. She did not fully realize the significance of what was happening to her. She did however experience pain and this continued later in the day when she went to the toilet. This happened on a number of occasions. She was unable to remember exactly how many times this had occurred. She was however able to say that on the first few occasions the Applicant encountered some difficulties in penetrating her. She was able to say that there were no further incidents after her mother went into hospital and her young sister was born. 5. At the time of the offences the Applicant told her not to tell anyone what had happened. She did as she was told. 6. In 1992 Man-ling's father died and her elder brother and sister came to live with them. It was suggested that shortly after this Man-ling became somewhat unruly. This was put down to the influence of her elder sister. In any event the relationship between Man-ling, her mother and siblings on the one part and the Applicant on the other part became strained. The Applicant attempted to discipline the children and this was resented. The mother seems to have supported the children. 7. According to the Man-ling's evidence in 1994, that is five years after the events in question, she confided in a school friend and told her what had transpired. Later this information was passed on to a social worker at her school. Man-ling did not tell her mother even at this time. She only told her mother that in response to questioning as to whether the Applicant had ever interfered with her. Her mother confronted the Applicant with this, notwithstanding the fact that Man-ling has asked her not to tell him. The Applicant denied the allegation. It was only after this that the mother made a report to the police. 8. Man-ling's examination in chief was pre-recorded. She was cross-examined by live television link in a separate room. 9. The Applicant gave evidence in his trial. He also called Man-ling's mother as a witness. He denied the allegation although he accepted that there would have been an opportunity for him to have committed the offences. He claimed that Man-ling had framed him. He suggested that this might have been at the instigation of her elder sister who was on bad terms with him. Man-ling's mother supported him. She said that she had never really thought that he had been guilty of the offences. Her motive in making a report to the police had been to teach him a lesson. She had not realized how serious the matter was. It will be appreciated that the critical issue in this case was whether Man-ling was telling the truth. 10. The Judge summed up in considerable detail to the jury and they were satisfied that the charges had been proved at the appropriate level. 11. The first ground of appeal is that there was a material irregularity in the trial in that the evidence in cross-examination of Man-ling was inadmissible as it was wrongly received by way of live television link Man-ling not being under the age of seventeen at the time of cross-examination. 12. Section 79(A) of the Criminal Procedure Ordinance contains a definition of a "child". It provides:
13. Section 79(c) provides for the circumstances when video recorded evidence can be given. 14. It is not disputed that Man-ling was under the age of seventeen when the interview was conducted which constituted her examination in chief. It also appears to be accepted that she had just turned seventeen when she was cross-examined on the close circuit television. It will be noted that the girl was under eighteen and it would appear that this is covered by s 79A(a) ii. Even if this is wrong there is nothing in the legislation which suggests that after the child turns seventeen the order becomes spent. That being the case it is difficult to see how it can sensibly be maintained that the requirements of the legislation had not been complied with. It would not be a logical interpretation of the provisions to allow Man-ling to give her examination in chief by a video recording and then not permit her to give her evidence in cross-examination by close circuit television. 15. It is necessary to consider the relevant sections of the Ordinance in an overall context. What is clear is that this was just the sort of situation which the legislation was intended to provide for. This is manifest from the report of Ms TONG the Departmental Clinical Psychologist who examined Man-ling. 16. There was no irregularity in this connection and this ground fails. 17. The 2nd and 3rd grounds are framed in the alternative and accordingly it is convenient to deal with them together:
18. Ground 2 can be disposed of fairly simply. It is true that the evidence concerning the exact dates when sexual intercourse occurred was somewhat vague. This was hardly surprising in the circumstances of the case bearing in mind Man-ling's age at the time and the passage of time which has elapsed since the occurrences. What does however emerge from the evidence was that the conduct complained of was continuing conduct and that Man-ling was able to put limits to the commencement and discontinuance of it. 19. It was entirely a matter for the jury to determine whether they were satisfied at the appropriate level that the Applicant had raped Man-ling in the month of August. There was evidence before them which if believed could support this conviction albeit that some of the evidence was somewhat contradictory. 20. As to Ground 3 the prosecution was placed in a difficult position. It would have been impossible to prove the offences that had occurred on any particular day having regard to Man-ling's complaints. What is manifest however is that there were no particular circumstances attaching to any of the incidents which would differentiate them from the general run of incidents. It is difficult to see how the Applicant could have been prejudiced as a consequence of the way in which the charges was couched. 21. The situation can readily be contrasted with the position which arose in the HKSAR v Ayivor Mark unreported being Criminal Appeal 137/97. There it would have been possible with the exercise of due diligence to obtain more specific details concerning the offences. The overwhelming fact is that there were no distinguishing features relating to these different incidents. It would have been unrealistic to attempt to identify any particular incident. 22. This being the case the Applicant has suffered no prejudice as a consequence of the way which the indictment has been framed. 23. The convictions were in no way unsafe or unsatisfactory and this application is dismissed.
Representation: Mr. A.E. Schapel (D.P.P.) for Respondent Mr. Philip Ross assigned by D.L.A. for Applicant Remarks: |