HKSAR v. Lau Kit Fai

CACC000500/1998

CACC 500/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 500 OF 1998

(ON APPEAL FROM DCCC 551/1998)

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Coram: Hon. Power, V.-P., Mayo and Stuart-Moore, JJ.A. in Court

Date of hearing: 24 March 1999

Date of delivery of judgment: 24 March 1999

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J U D G M E N T

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Mayo J.A. (giving the judgment of the Court):

1. The applicant was originally charged with 13 counts of indecent assault, contrary to s.122(1) of the Crimes Ordinance, Cap. 200. After a trial in the District Court before H.H. Judge Poon he was convicted on 12 of the counts.

2. The applicant was a senior cadet officer in the Tsing Yi unit of the Civil Aid Services. The victims were cadets in their teens who were members of the voluntary agency. The offences took place between January 1992 and November 1997.

3. There were altogether six victims:

PW1 in relation to charges 1, 2 and 3.

PW2 in relation to charge 5.

PW3 in relation to charges 6 and 7.

PW4 in relation to charges 8 and 9.

PW5 in relation to charges 10 and 11.

PW6 in relation to charges 12 and 13.

4. The prosecution offered no evidence in relation to charge 4 thus leading to the applicant's acquittal on that count.

5. As will be appreciated from these details one of the main aspects of this case was the lengthy period of time from the time of the earliest offence to the time of the last one. Particularly in so far as the earlier offences were concerned some of the youths had obvious difficulties in satisfactorily recollecting with any degree of the exactitude when these offences had taken place.

6. It was a feature of the offences that the cadets had not immediately come forward and made complaints. This led to a situation where inevitably there will be inconsistencies in the evidence given. The Judge was obviously mindful of this and very little purpose is achieved in going over the facts again and attempting to in effect have a retrial of the case.

7. Mr. Cheng Huan, S.C. also agreed that he had not, in final address, made a detailed submission on many of the facts referred to in Annexure A (which was attached to the Amended Perfected Grounds of Appeal). He did not, other than when submitting no case, make submissions on these matters to the Judge at the trial below. How appropriate was it to advance them before us?

8. The first three charges all allegedly occurred in June 1997. The incident referred to in the 1st charge occurred when the applicant drove PW1 back home in his car. According to PW1 the applicant grabbed his hand and placed it on his trousers over his penis. He did this five and six times before placing his own hand on his own thigh and stroking it.

9. The 2nd charge related to an incident which occurred before PW1 attended at the Wong Shek Water Activity Centre. Arrangements had been made for PW1 and the applicant to stay the night before going to the centre at the cadet unit at Tsing Yi. Another youth who was DW3 at the trial below also stayed the night at the unit.

10. According to PW1 he and the applicant slept in the same room. After he undressed the applicant handled his penis and he thereafter ejaculated. Following this the applicant took hold of PW1's hand and got him to masturbate him.

11. The subject matter of the 3rd charge occurred at the Wong Shek Centre. When PW1 was showering himself with a hose the applicant grabbed his hands and poured liquid soap on them for the purpose of massaging his private parts.

12. PW1 said that he told his friends Wong Chun Pak and Chiang Fu Keung about the incident in the 2nd charge and Chiang about the incident in the 3rd charge. Wong gave evidence as PW7 that he had at about this time received a telephone call from PW1 in which he had told him what had happened.

13. PW2 gave evidence concerning the 5th charge. He attended on 14th November 1997 at the applicant's home to receive tuition in English. Arrangements had been made for him to stay overnight at the applicant's home. After watching television together the applicant had taken hold of PW2's hand and placed it over his (the applicant's) penis. He felt that it was erect. The applicant had then handled PW2's penis. Following this PW2 had told his friend Chan Chi Yung.

14. PW3 gave evidence concerning the 6th and 7th charges.

15. PW3 said that the applicant had driven him to premises at Ma On Shan where they planned to stay the night. PW3 and the applicant slept in the same bedroom. Before he went to sleep the applicant approached him and held his penis for about two minutes. This was the subject matter of the 6th charge.

16. The incident relating to the 7th charge occurred at Tsing Yi. PW3 and three other cadets went there for tuition in English and to stay the night. PW3 and the applicant stayed in the same room. The applicant caught hold of his hand and touched his penis. PW3 told one of the other cadets Lui Fuk Keung what had happened the next morning. PW3 was particularly vague as to when these incidents had occurred.

17. PW4 gave evidence concerning the 8th and 9th charges both of which occurred in 1992. On the first occasion PW4 and the applicant had been canoeing together. They returned to the Ma On Shan premises for the night. The applicant undid PW4's jeans and masturbated him. The second incident occurred after a meeting at Tsing Yi. The applicant drove PW4 to a cooked food stall and gave him a quantity of wine to consume. After going back to the Ma On Shan premises the applicant again attempted to handle his private parts. On this occasion he was able to push the applicant away.

18. PW5 gave evidence concerning the 10th and 11th charges. The incidents of these charges occurred in 1997.

19. The first occurred when the applicant drove PW5 and two other cadets home after a swimming session. One of the other cadets was DW3 who we have earlier referred to and the other gave evidence as DW1 at the trial below. Both these youths were in the back seat of the car and PW5 was in the front passenger seat. He gave evidence that the applicant stoked his thigh for two or three minutes. Subsequent to this PW5 told Chiang Fu Yiu and PW6 what had happened.

20. The second incident was of a similar nature. After the two other youths who had been given a lift had been dropped off the applicant stopped the car and fondled his thigh for about fifteen minutes. PW5 told his friends PW1, Chiang and PW7 about this.

21. PW6 gave evidence concerning the 12th and 13th charges. These events occurred in October and November 1997. Clearly there were difficulties concerning the dates of these occurrences. If they had occurred on a Tuesday in early November there would have been an overlap with PW2's evidence as he alleged that he had been indecently assaulted at the same time and at the same venue. Both cadets said they were alone with the applicant. Either one or both of them were clearly mistaken on the dates.

22. Regrettably it has to be said that the cross-examination of this witness left much to be desired. It was put to the witness him by Senior Counsel that he had been lying concerning the dates of the events in question when it was all too apparent that the witness was simply having difficulty in recollecting exactly when the events transpired. Also when he attempted to provide an explanation for his difficulties he was cut short by counsel. Having regard to the fact that this was a very young man giving evidence it could not have been an edifying performance.

23. The first event occurred when the applicant drove him home in his car. The applicant attempted to massage PW6's thigh. The second event occurred when PW6 attended at the applicant's flat at Chung Mei Estate for a lesson on how to operate a computer. Again the applicant attempted to place his hands on PW6's thighs. PW6 reported these incidents to two counsellors.

24. PW7 gave evidence concerning conversations he had had with PW1 and Chiang Fu-yiu on the subject of the applicant's behaviour. PW1 had said that he hated the applicant and wanted to play tricks on him. PW7 had declined to have anything to do with this. It is perhaps surprising that this evidence was admitted as it was clearly hearsay.

25. The applicant did not himself go into the witness box. He called the defence witnesses who have previously been referred to. They gave evidence to the effect that while they had been present on the occasions referred to nothing untoward had happened. The other defence witness called was DW2 who was a friend of the applicant's wife. She said that she remembered being present at the applicant's home on 14th November 1997 and that no cadets were present that evening.

26. The case which was run by the defence was that these cadets had had a grudge against the applicant and had conspired together to frame him up.

27. The Judge dealt with this evidence in some detail in her Reasons for Verdict. For the reasons she gave she did not accept PW7 as a reliable or truthful witness. So far as the frame up was concerned the Judge rejected this in this way at p.29 of the transcript:

"The defence placed reliance on the evidence of PW7 and DW1 to say that the present allegations by the PWs against the defendant were the result of a plot by them to frame-up the defendant.

I note that it is not until cross-examination that PW7 volunteered to tell this court about three alleged incidents where he said he heard PW1 expressed his hatred for the defendant. On the first occasion he was with PW1, PW3, PW5 and CHIANG chatting when PW1, CHIANG and PW5 expressed their hatred for the defendant. On the second occasion, which was a conference telephone conversation, he said that CHIANG had asked if he had been disturbed by the defendant before PW1 talked. It was after he answered in the negative that PW1 said that they had both been disturbed by the defendant and PW1 allegedly proposed to play tricks on the defendant. Both of them said that they would find more people to frame the defendant. PW7 said that he refused to take part right away. On the third occasion, PW7 said that they again asked him to frame the defendant but he said that he felt annoyed and refused.

I note that in cross-examination PW7 was prepared to tell the court details of matters which happened over a year ago and indeed, did so without hesitation. He could remember clearly that on the occasion after the drilling rehearsal in Tsuen Wan whether it was he or PW1 who got off the defendant's car first.

I also note that although he had related to this court in great clarity about the incidents wherein he heard PW1's proposal to frame-up the defendant, he admitted that he had never told the police about such in his statement. Even, according to his evidence, he said that the proposal to frame-up the defendant was only mentioned after PW1 told him that he had been disturbed and nowhere in his evidence did he say that PW1's allegation of being disturbed was part of the plot. In fact, PW7 said that he did not at any time ascertain with the other prosecution witnesses the details of the plot. I find his apathy and disinterest in ascertaining details of the plot whilst refusing straight away unreasonable.

I find that his evidence is untruthful and reject his evidence in total."

28. More importantly perhaps though the Judge did accept the evidence of PW1 to PW6 and was satisfied that they were all truthful and reliable witnesses.

29. She basically rejected the defence witnesses evidence as it did not seriously undermine the evidence of any of the witnesses for the prosecution.

30. Grounds 1 and 2 of the amended perfected grounds of appeal can conveniently be dealt with together.

"Ground 1

There were many difficulties and/or contradictions and/or inconsistencies in the prosecution's case which render each of the convictions unsafe and/or unsatisfactory. The relevant details in relation to each charge and in respect of each of the witnesses are summarised and marked 'Annexure A' in this document.

Ground 2

The learned trial judge's assessment of the evidence in her 'Reasons for Verdict' is, with respect, fundamentally flawed for the following reasons, inter alia :-

(a) the learned judge failed adequately to assess the prosecution's case in respect of each charge and in respect of each witness separately. Between pages 22 and 27 of the 'transcript' the learned judge merely recited in an outline manner the evidence of each of the witnesses as adduced in examination-in-chief only;

(b) the learned judge failed adequately to explain, or dispose or reconcile, if at all possible, the many difficulties discrepancies and contradictions in the evidence of each of the witnesses and also when compared with each other. Such matters are stated in Ground 1 aforesaid;

(c) the learned judge's reasons for accepting the evidence of the prosecution witnesses are not cogent and/or unsafe and/or unsatisfactory;

(d) the learned judge completely failed to consider the evidence of DW3 of a plot to frame the Applicant (29C)"

31. Annexure A referred to in Ground 1 is a document consisting of fourteen pages of detailed comparative analysis of various parts of the witnesses evidence in examination and cross-examination.

32. As one would expect there are a number of discrepancies and inconsistencies which are apparent from this comparison.

33. It is not however particularly helpful to attempt to analyse evidence in this way. What is much more important is the overall impression which the trial Judge obtains of a particular witness's testimony and reliability.

34. The same can be said concerning the complaints made in Ground 2.

35. In particular the complaint made in Ground 2(d) cannot be sustained. The Judge gave detailed reasons for rejecting the idea that the cadets had conspired together to frame the applicant. When dealing with DW3's evidence at p.31 the Judge says:

"DW3 told this court that on 21 June 1997 he slept with PW1 in a conference room whilst the defendant slept alone in the administration room. He admitted in cross-examination that he had never mentioned this to the police when they were making enquiries with him. He firstly tried to explain that he did not mention such because the police did not ask him and then retracted by saying that at that time of the police investigation he was not clear about the nature of the case against the defendant. He further changed his explanation to say that as he considered indecent assault and being gay are two separate matters, he did not think this conversation relevant and so he did not inform the police.

I find that he is not a credible witness and I also reject his evidence in total."

36. We have already referred to the earlier passage on the subject at p.29 of the transcript.

37. However to revert to the main complaint made in these grounds it is necessary to consider how the Judge arrived at the findings of fact she made in relation to the evidence of the prosecution witnesses.

"One must assess the PWs evidence in the light of their ages and experience in life. They are all teenagers and the incidents must have caused them considerable distress and their testimony must have been a traumatic experience for them. Such distress and embarrassment is indeed manifested by PW2's outburst of emotion during re-examination causing the court to have to adjourn for him to compose himself.

The incidents happened for some a year ago and for some other PWs even longer. Police enquiries did not take place until much later. Therefore, it is not surprising that PW5 in his statement to the police had stated wrongly his whereabouts prior to the indecent assault in respect of charge 11 and had to give another statement to correct his earlier mistakes.

This memory lapse due to time is also demonstrated by PW6's confusion in-chief about whether the incident in respect of charge 13 happened in October or November 1997. Therefore, although he mentioned to the police that it was a Tuesday that the events relating to charge 13 happened, I place very little weight on that piece of evidence.

I find that such time discrepancies do not affect their credibility and I do not find the evidence of PW6 in relation to the day of the indecent assault in respect of charge 13 casts any doubt upon PW2's evidence in relation to the 5th charge.

It is clear that all the prosecution witnesses 1 to 6 are trying their best to relate the incidents to the court from their own memory instead of from their statements and I find that confusion of the month or day of week or even sequence of the indecent acts do not in any way affect their credibility.

Furthermore, I find that evidence of PW2 seeing the defendant going up to the VCD player turning the VCD to side B and PW6's evidence in his statement relating to the thin-sheeted house nothing more than an a honest mistake made by them and thus do not in any way affect their credibility.

Although it is alleged in the particulars of charges 6 and 7 that the two indecent assault incidents happened in 1995, PW3 could not remember the year when the two incidents occurred. He said that the first incident happened about one year after he had joined the cadets and he joined the cadets in 1992. As to the defendant, in cross-examination he thought that it should be in the second or third year after he had joined might be in 1994 but he was not sure. I find that the date as specified in the charge is not a material particular as it is not an essential part of the alleged offence.

I note that PW3 alleged in his statement to the police that the first indecent assault happened in Kam Ying Court on a Saturday and in his evidence he told the court that such happened about one year after 1992.

PW8 said that since his purchase of that flat in 1991 he had stayed during Saturday nights with his fiancée until they got married in 1995. I do not find PW8's evidence to be inconsistent with that of PW3 since, when PW8 was asked whether he stayed there overnight every Saturday, his answer is 'often'. The indecent assault could have happened on those occasions that he and his fiancée did not stay there for the weekend.

In relation to PW4, it is noted in cross-examination he admitted when he was first approached by the police in January 1998 and asked if he had been indecently assaulted whilst in the Tsing Yi Cadets he denied. I accept his explanation in re-examination that he considered it was not convenient to tell the police at that time because he was approached by the police whilst in the CAS Kowloon training centre but subsequently his religious conscience caused him to tell the police everything.

I am aware that there is no evidence which is capable of independently confirming the evidence of the various complainants. I have borne well in mind the danger of convicting without it. Nevertheless, despite the absence of the independent confirmation I am sure that PW1 to PW6 are all telling the truth and am placing reliance on their evidence.

I reject the evidence of PW7 and the DWs as to any plot on the part of the prosecution witnesses to fabricate a case against the defendant. I find that PW1 to PW6 are all honest and credible witnesses and accept their evidence in its entirety. I find that PW2's outburst no more than a genuine display of his emotions.

Although the defendant had given an exculpatory statement under caution, such only goes to show his initial reaction when first taxed with the allegations of the present offences.

I find that all the incidents had taken place in the way the prosecution witnesses 1 to 6 had described and I have no doubt that the acts were done by the defendant deliberately and were assaults on them, the nature of which were capable of being considered by right-minded persons as indecent.

I am satisfied that the prosecution has proved beyond reasonable doubt charges 1 to 3 and 5 to 13 against the defendant and convict him accordingly."

38. The Judge has given more than sufficient reasons why she has found the prosecution case to have been proved beyond a reasonable doubt and why she has rejected the defence case. Grounds 1 and 2 cannot be sustained.

39. Ground 3 advances reasons why the Judge should not have rejected the evidence of PW7, DW1, DW2 and DW3. The Judge's reasons for rejecting this testimony have already been outlined.

40. What appears to be contemplated here is that we should now attempt to retry this case. No satisfactory reason has been given why we should in any way interfere with the Judge's findings of fact. This ground also cannot be sustained.

41. Ground 4 complains that the Judge's findings that PW8 'often' stayed at Kam Yin Court - i.e. the Ma On Shan premises on Saturdays was wrong and contrary to the evidence adduced.

42. What is however clear in the evidence is that the applicant had the keys of the premises over a protracted period and the premises were unoccupied for significant periods. There would have been ample opportunity for these offences to have been committed. There is nothing in this ground.

43. Grounds 5 and 7 can conveniently be dealt with together.

44. In both these grounds a complaint is made that the Judge failed to consider whether PW3 and PW4 respectively may have consented to the indecent assaults.

45. Having regard to the tenor of the evidence it would appear to be most unlikely that this could have been the case. Further this was not put to the witnesses and, of course, such a finding would have been contrary to the case being run by the defence that no such incidents ever occurred. These grounds are devoid of any merit.

46. Regrettably it is necessary to make reference to counsel's duty to only advance grounds which are reasonable and arguable. These grounds cannot in any manner be so described.

47. For the reasons we have given these convictions were in no way unsafe or unsatisfactory and this application is accordingly dismissed. We order that 3 months of the time the applicant has spent in custody will not count towards his sentence.

Representation:

Mr. D.G. Saw, S.C., D.D.P.P. (Ag.) & Mr. Sharman Lam, G.C. (D.P.P.) for Respondent

Mr. Cheng Huan, S.C. & Mr. C.S. Fu instructed by M/S Ng and Lam for Applicant