HKSAR v. Kong Ying Man

CACC 210/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 210 OF 2005

(ON APPEAL FROM HCCC NO. 257 of 2004)

____________________

BETWEEN

____________________

Before:   Hon Stuart-Moore VP, Yuen JA and McMahon J

Date of Hearing: 30 December 2005

Date of Judgment: 30 December 2005

______________________

J U D G M E N T

______________________

Stuart-Moore, VP (giving the judgment of the Court):

1.On 21 April 2005, the applicant was convicted of rape and indecent assault (counts 1 and 3 respectively) following a trial in the Court of First Instance before Deputy Judge Line and a jury.  The sentence imposed amounted in total to 12 years’ imprisonment.  The jury was discharged from returning any verdict on the 2^nd count of incest, an alternative to count 1, having regard to the applicant’s conviction for rape.

2.The applicant now seeks leave to appeal against conviction on both the counts on which he was convicted.

3.The person alleged to have been the victim in all the counts on the indictment was the applicant’s 12-year-old daughter (the complainant).  The offences in counts 1 and 3 were said to have occurred between 1 December 2003 and 9 January 2004 and between 9 January 2004 and 17 February 2004 respectively, each allegedly committed inside the complainant’s bedroom in an apartment on the Pok Hong Estate in Shatin.

4.The prosecution’s case was that the complainant was raped after the applicant had forced her to take some “medicine”.  The medicine had left her feeling vague and without any strength.  The applicant then dragged the complainant to her bed where he undressed himself and also took off the complainant’s clothes.  The complainant made an attempt at resistance as he began to rape her but this was met by a slap in the face followed by several more blows.  The rape lasted for about half an hour during which time the complainant was made to lie in different positions on the bed.  At the end of her ordeal, she was told not to speak to anyone about what had happened or the applicant would “slaughter” her.

5.The complainant’s account of the indecent assault in count 3 was that during an evening in January 2004, whilst she was again alone in her flat with the applicant, “her whole body was thoroughly touched” after the applicant came into her bedroom.  The applicant’s indecent conduct included inserting two fingers into the complainant’s vagina.

6.Following his arrest, the applicant told the police that he had engaged in sexual intercourse with his daughter, the complainant, with her consent and after encouragement from her.  At trial, the applicant said that he had made this confession out of fear that he would be beaten up by the police if he did not do so.  He stated that he made up the story as a way of protecting himself and that in truth he had neither had intercourse with the complainant nor indecently assaulted her.

7.The applicant, in homemade grounds of appeal on which he has enlarged in these proceedings, complained that he had been “framed” by the untruthful account of events described by the complainant.  He asserted that his “former wife” had “exerted control” over the complainant to make a false report to the police and that the judge and the prosecutor had contributed to his wrongful conviction by conducting proceedings unfairly.  In particular, the applicant maintained that the trial judge told the jury that the complainant had failed to remember many of the details of her ordeal, using this as an excuse to cover up her failings and also the fact that a false case had been reported when the real blame for the sexual assaults lay with her cousins living in the Mainland.

8.There is no substance to any of the applicant’s complaints.  The judge had brought to the attention of the jury the fact that the credibility of the complainant and the applicant was a fundamental consideration in resolving the issues in the case.  In particular, the judge’s summing up dealt with all aspects of the evidence, detailing the inconsistencies in the complainant’s own account and also the applicant’s version where it differed from the evidence given by prosecution witnesses, and his directions in law contained no errors.  When the judge turned to the applicant’s evidence in the summing up, he said:

“Now, the defendant chose to give evidence. He was not obliged to do so. He did not have to prove his innocence. He does not have to prove anything. You should treat his evidence in the same fair way that you treat the evidence of any other witness. If you think that the defendant might or may be telling the truth, that means that you necessarily have a doubt about the truth of the prosecution’s case. In those circumstances, your verdicts should be not guilty.

It is for you to decide how much weight, if any, to give to the defendant’s evidence. You must always remember that even if you were to decide that you did not believe what he told you, the prosecution must still make you sure by their evidence that the defendant is guilty of the charges that he faces if you are to convict. So, now, let me turn to reminding you of what the defendant said.” (Appeal bundle p. 27)

It is plain that the defence was accorded the same even-handed treatment which was shown to the prosecution when the judge summarised the evidence of its witnesses.

9.The applicant was convicted on strong evidence against him and there is nothing in the case which indicates that the conviction either for rape or for indecent assault was unsafe or unsatisfactory.

10.The application is dismissed.

Mr Vincent Wong, SGC, of the Department of Justice, for the Respondent.

The applicant, in person