Lok Wai Hung v. R.

CACC000040/1994

IN THE COURT OF APPEAL

1994, No. 40
(Criminal)

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Coram: Hon Yang CJ, Penlington and Bokhary JJA

Date of hearing: 1 October 1994

Date of judgment: 1 October 1994

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J U D G M E N T

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Hon Yang CJ:

1. This is an application for leave to appeal against conviction in respect of four charges of indecent assault and one charge of unlawful sexual intercourse with a girl under 13.

2. The victim was at all material times a girl of 12 years of age. She was then living with her mother and the applicant who was the mother's boyfriend. The mother and the applicant cohabited for about six months. The victim's younger sister also lived with them.

3. The victim gave evidence on affirmation that on 21 December 1991 when only she and the applicant were at home he put his penis into her anus and also fondled her breasts - charge 1.

4. She also gave evidence that on 24 December 1991 when she and her mother and sister were sleeping in the same room the applicant again inserted his penis into her anus and fondled her breasts - charge 2.

5. Next on 28 December 1991, he inserted his penis into her vagina - charge 3.

6. On 4 January 1992, the applicant made her fondle his penis and inserted it into her anus - charge 4.

7. On 24 January 1992, he fondled her breasts and kissed her - charge 5.

8. The victim made no recent complaint and her evidence was uncorroborated.

9. Only one ground of appeal has been advanced, namely that the verdicts were unsafe and unsatisfactory.

10. As a general observation, Mr Duncan Percy, acting on behalf of the applicant, urges the following factors: that the credibility of the young victim is crucial; that her evidence was not corroborated; that the medical evidence as to anal and vaginal intercourse was inclusive; that there was no early complaint made by the victim or any early sign of distress on her part; that there was disharmony between the mother and the applicant and that there was a delay in the making of a report to the police.

11. It was further argued firstly that the trial judge failed to make any primary findings of facts except the general finding that he found the victim to be an accurate and truthful witness. It is true that the learned trial judge did not condescend to state what his findings of facts were but this was a short and simple trial. It was clear that the judge accepted in full the evidence of the victim, the examining doctor and the victim's mother. Their evidence was precise and short. There is certainly no difficulty on the part of this court to find what the facts are that the learned trial judge relied on. There is, in our view, nothing in this ground of appeal.

12. Next, it is said that the judge wrongly stated in his Reasons for Verdict that the doctor who examined the victim asked her if she had any previous sexual "experience" where the doctor's evidence was that he asked her about past sexual "intercourse". In our view, this is purely a matter of semantics. There is nothing in this point.

13. Thirdly, the complaint is that the judge erred in inferring the fact of consistency in the victim's evidence from the fact that defence counsel did not cross-examine the victim on her witness statement relating to the matters of anal sex. In our view, the judge clearly accepted the evidence of the victim without having to resort to the lack of cross-examination on the part of defence counsel to support his conclusion. The remarks made here were perhaps slightly unfortunate but it does not, in any way, diminish the strength or accuracy of the judge's finding that the victim was a truthful witness.

14. Lastly, it is submitted that the judge was wrong to support his findings of the victim's consistency in her evidence from "instructions from the police to PW2 i.e. the examining doctor" which apparently contained a similar expression when there was no evidence of this. It was further argued that the so called "instruction from the police" was not even in evidence. However, for the reason already stated, the judge clearly was of the opinion that the victim was a truthful witness and again, the remark made here was perhaps unfortunate and redundant, but we do not think that there is any substance in this ground of appeal.

15. For the reasons stated above, the application for leave to appeal against conviction is refused.

Representation:

Mr Duncan Percy instructed by Messrs Wing Sum Lo & Co. for Applicant

Mr John Reading for Crown