The Queen v. To Hak Kim

CACC000341/1986

IN THE COURT OF APPEAL

BETWEEN

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Coram: Cons, V.-P., Silke & Kempster, JJ.A.

Date of Hearing: 30th December 1986

Date of Judgment: 30th December 1986

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JUDGMENT

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Silke, J.A.:

1. The Applicant was convicted before His Honour Judge Cameron of 3 counts of indecent assault on males and was sentenced to a period of three years on each count, concurrent, making a total of 3 years' imprisonment. He now seeks leave to appeal against both his conviction and his sentence.

2. There was an adjournment granted at an earlier stage, at the Applicant's request so that he could, if possible, prepare himself for this appeal and obtain legal representation. He has appeared on his own behalf today and has drawn to our attention many matters in the evidence which he says shows the main witnesses against him to be persons not worthy of credit.

3. The Applicant lived alone in his flat on the third floor of Pak Shing Lau, 168 Tung Lo Wan Road. Under a scheme operated by the Po Leung Kuk Childrens Home, he became a sponsor of a 9 year-old boy who was a resident there. He gave some financial support and he was entitled to take the boy out upon visits. The first two counts relate to that particular boy.

4. From the middle of September of 1985 the Applicant worked as a voluntary part-time tutor at the Salvation Boys Home in Shau Ki Wan. He gave tuition to a 14 year-old boy and this tuition was given in his own premises. The third count relates to that boy.

5. As a result of watching the boy on about the 21st February 1986 members of the staff of the Boys Home made a report to the police on the 25th February. There was an envelope intercepted on the 26th February containing a hundred dollar note. This was sent by the Applicant to the boy. On the 26th the Applicant's flat was searched and four phonographic video tapes were seized.

6. On the 3rd March the Po Leung Kuk staff interviewed the 9 year-old boy and as a result of that another report was made to the police. A further search of the Applicant's premises took place on the 9th March and a length of plastic hose was seized from the bathroom.

7. The main evidence at trial was that of the two boys, and of another boy who was present during the offence the subject of the third count. The 9 year-old spoke to incidents on the l0th November and 8th December 1985. Sufficient to say that, if his evidence were believed, acts of indecency took place on both of those occasions and there was a watching of phonographic video tapes.

8. The 14 year-old boy spoke to an incident on the 15th February 1986. Again sufficient to say that, if his evidence were to be believed, he described an act of indecency, the watching of phonographic video tapes and also a very heavy drinking bout which caused the boy to become violently ill in the course of the visit.

9. The boys were at trial subjected to a long, careful and searching cross-examination. They were not, and quite properly so, harassed. The issue was that of credibility.

10. The Applicant gave evidence. He strongly denied the acts of indecency and he traversed many of the details of the stories told by the boys. But he did accept the showing of the video tapes and that the drinking bout took place.

11. He has placed before us grounds of appeal which we have read and addressed us in considerably detail today. It is his main complaint that the trial judge ignored that which he describes as the lies, the inventions, the confusion in sequence of the events, in the evidence in particular that of the 9 year-old boy, when he came to evaluate the witnesses in the case. That he also ignored the possibility of a grudge being held by the 9 year-old against the Applicant and that, had these matters been properly evaluated, the innocence of the Applicant could have shown beyond, as he put it, reasonable doubt.

12. As to the 14 year-old, he makes the same complaints that the judge did not properly evaluate the matters which led, as the Applicant said, to the invention by the boy of the incidents which described in his evidence. Two facts in particular he has referred us to. One is an ankle injury he suffered which he says would have prevented him from doing one of the indecent acts in relation to the 9 year-old boy. He suggests that the boy's denial of any knowledge of that shows his untruthfulness. It is quite clear from the transcript that the boy did make reference to the Applicant's putting medicine upon his ankle at the time of the visit and at the time the indecency took place. He was aware of that particular injury. The Applicant further suggests that the various witnesses gave different versions both in court and to the police and indeed different versions in different parts of their evidence in court.

13. The trial judge, in a lengthy and with respect to him prolix, Reasons for Verdict gave very full consideration to all the aspects of the evidence. He considered all the issues which were raised before him by competent defence counsel. The points that the Applicant has sought to place before us today were also referred to the trial judge by counsel in the course of the trial.

14. The trial judge was aware that there was no corroboration and that a warning to himself was needed both as to the uncorroborated sexual allegations and as to the age of the witnesses who gave the evidence concerning those matters.

15. After full consideration of all the various issues which arose and of the evidence he said:

''On the 1st Count I was satisfied that the truth of the matter was as deposed to by P.W.1 who impressed me generally as a witness of truth and not as deposed to by the Defendant who did not so impress me."

He made the same finding in relation to the 2nd count. He found himself satisfied beyond reasonable doubt that the Applicant was guilty on both counts.

16. As to the 3rd count concerning the 14 year-old boy he was satisfied that the truth was as deposed to by that boy, who generally impressed him as a witness of the truth, and not as deposed to by the Applicant, who did not so impress him.

17. The evidence before the trial judge was sufficient to ground the conclusions to which he came and we are hot prepared to interfere with them. They were fully justified on the facts presented.

18. In these circumstances the application for leave to appeal against the convictions is refused.

Sentence

19. The sentence was one of a totality of 3 years' imprisonment. It is suggested by the Applicant that this is excessive.

20. In passing that sentence the judge took an overall view and made the sentences concurrent. He would have been entitled, had he so wished, to make the first two sentences possibly concurrent and the third sentence consecutive. He preferred to take of course of imposing three years as a totality.

21. He described the Applicant's conduct and behaviour to the boys as "disgraceful and disgusting" and we are not disposed to disagree with that particular statement nor with the sentences. They are proper in the circumstances of the youth of the victims and the status of the Applicant. The application for leave to appeal against sentence is also refused.

Representation:

Applicant in person.

P.K.M. Longley, Esq. for Crown.