HKSAR v. Chan Ching Fat

CACC000529/1996

IN THE COURT OF APPEAL

1996, No.529
(Criminal)

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Date of hearing: 11 September 1997

Date of delivery of judgment: 26 September 1997

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J U D G M E N T

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Power, Ag. Chief Judge, H.C. (giving the judgment of the Court):

1. In this matter the applicant faced three charges of indecent assault. It was alleged that he, on 4th December 1995, on or about 5th December 1995 and on or about 4th January 1996 indecently assaulted a school girl named Hui Gi-yin on board a school bus in Shatin, New Territories. He pleaded not guilty to each charge but was found guilty of each after trial before Deputy Judge Jenkins in the District Court.

2. It was the prosecution case that Miss Hui, who was born on 24th May 1988, was at the relevant times a student in Primary 2 of St. Rose of Lima's School and that she took a school bus to and from school everyday. The applicant was employed by Madam Yeung Sek-mui as a school bus driver and was responsible for driving Miss Hui and her school mates home each day after school. The students were driven by another driver from the school to the exit of the Lion Rock Tunnel where they were picked up by the applicant and driven to their homes in the Shatin area. It was the prosecution case that, having dropped off the other students, the applicant, on each occasion, drove Miss Hui to a dog latrine near Pak Tak Yuen in Shatin and there indecently assaulted her.

3. Pursuant to s.79C and 79B of the Criminal Procedure Ordinance, Miss Hui gave evidence by way of a live television link. At the outset a video tape interview which had been conducted in the police video recording room in Sam Wai Tsuen, Tai Po on 7th January 1996 was played. This was Exh.P1, a transcript of it was Exh.P2 and a certified translation was Exh.P2(a).

4. We turn immediately to the following exchange which deals with the first offence:

"Q. Well, let me repeat the question again, you said you were the last person to alight from the vehicle, well does Uncle Fat usually drive you home directly?

A. He does not.

Q. He does not, where do you go?

A. Pak Tak Yuen.

Q. Pak Tak Yuen, where is Pak Tak Yuen.

A. The dog latrine in the upper floor of Pak Tak Yuen.

Q. The dog latrine, Mm... what happened next?

A. He molested me there.

Q. He molested you there .... Then.

A. Before that, he told me to walk to the front of the vehicle. I asked him why, but he didn't answer.

Q. Mm, .... Where did you sit?

A. Sat in the seat at the farthest end.

Q. The seat in the farthest end, was it a single seat on one side or was it in a row?

A. It ... it was in a row.

Q. It was a row of seats and you sat.

A. Sat ... sat on the left.

Q. So you sat on the left of the row.

A. Sat there.

Q. Ngoh, you sat on the left, Mm, when you were at the dog latrine in Pak Tak Yuen, did many people walk past by?

A. Mm, sometimes no.

Q. Sometimes there were no one, are there any car moving past?

A. Yes.

Q. You mean usually there are cars nearby, could you see the cars from where you were?

A. Yes.

Q. You mean yes.

A. One can see things from the inside but not from outside.

Q. Ngoh, one can see things from the inside but not from outside, how come one cannot see from the outside?

A. I mean one cannot see the things inside from the outside.

Q. Ngoh, one cannot see the things inside from the outside, well, you said Uncle Fat molested you, do you remember when did this happen?

A. From 4th December until ... January, till Tuesday.

Q. Until Tuesday, which month was it?

A. No, it should be Thursday.

Q. Thursday, which month was it, do you remember.

A. Which month, December 4.

Q. Until which day, come again.

A. Until Thursday.

Q. Until Thursday, which Thursday?

A. Last week.

Q. Which, which year was it, do you remember? Which month? What day was it.

A. 96, December, 96, no, it was in January.

Q. Mm.

A. The 4th day.

Q. Ngoh, until, that was from 4th December, 95 to 4th January, 96, is that correct? Well, just now, you said ... Uncle Fat, ... and drove you to Pak Tak Yuen, he then, what did he say then, can you tell me again?

A. Molested me.

Q. How did he molest you?

A. (She demonstrated)." (Emphasis supplied.)

Miss Hui went on to say that on the first occasion the applicant had removed his trousers but on the other times he did not. She said that he molested her "in that way, he pushed legs apart" and kept moving up and down; that this occurred on the drivers seat; that he did not remove his clothing completely but had briefs on and told her to remove her underpants but she refused and that he then removed her trousers. She added that on an occasion if she was wearing a skirt "he tossed my skirt". She repeated that only on 4th December had he removed his own trousers. She said that in fact her trousers were tracksuit bottoms. She said that "Uncle Fat" had mounted on her lap and had moved up and down and that this occupied about half an hour; that she felt great pain and had shouted for help; that she intended to run away but he got hold of her hands; that he then said "Let's go" and said that she was not to tell anybody.

5. She went on to say that after 4th December the same thing happened again but that he did not remove her trousers. It was suggested to her by the examiner that the next incident was on 5th December. She did not agree to this but said that she was driven to the same place on the next occasion and molested. This exchange then occurred:

"Q. Ngoh, the 5th Day of December, is that right?

A. Yes."

It was later discovered that 5th December was a school holiday and that nothing could have occurred on that day. It must be said, however, that Miss Hui never, of her own volition, nominated that as the day on which an incident occurred. She said that on the next occasion she was wearing a skirt and that he lifted her skirt and moved his right hand around her "part for passing water"; that this went on for about half an hour; that she shouted for help but that he had muffled her mouth to stop her from shouting.

6. She said that on Mondays and Wednesdays she wore tracksuit and on Tuesdays, Thursdays and Fridays she wore a school dress. She said that there was then a holiday from 22nd December up to 2nd January; that on the last occasion he again drove to Pak Tak Yuen and molested her. She agreed with the questioner that this had been on 4th January. She said that on this occasion she was in her school dress and that he had again stroked her. She later appeared to be saying that the last incident was on 5th January.

7. It was put to her in cross-examination that on 4th January 1996 the applicant had taken her to a store to buy candy at her request and then had driven her to the playground near Pak Tak Yuen to play on the swings and that he had let her off the bus for a few minutes to do so. She denied all of this. The following exchange then occurred:

"Q. Well do you then say that on this day 4th January 1996 you did get off the bus first before other students?

A. Yes."

We will return later to this question and answer.

8. Miss Emerita Mission (PW4) was a maid working for the parents of Miss Hui. She said that from Monday to Friday she collected Miss Hui at 1:30 p.m. in the afternoon when she returned from the morning session of school but that, starting on December 4th, it was 2:30 p.m. She said that on that day she waited from 1:30 to 2:30 and that when Miss Hui arrived back she was feeling weak and refused to eat. She identified the applicant as the driver on that day. She said that when Miss Hui arrived she looked scared, frightened, was feeling weak and looked tired. She said that only on one other occasion prior to 4th December had Miss Hui arrived time later than 1:30 p.m. and that was when she went to visit her friend in the same building. She said that from 4th December 1995 until 5th January 1996 most of the times she would come home late. She said under cross-examination that since 4th December Miss Hui came home late many times and the latest time was 2:30 p.m.

9. Miss Yeung Shek-mui (PW6) said that she was the owner of the Mei Shing Transport Company which provided a bus service for, among others, the students of St. Rose of Lima's School. She said that she was the employer of the applicant, that Miss Hui was one of the students conveyed in her company's vehicle and that in December 1995 she was taken back home "on the small bus driven by Mr. Chan". When asked what kind of vehicle it was she said, "It should be EN 8885".

10. It was of considerable importance to establish whether the applicant was driving DH 830 at the relevant time and not EN 8885 as only EN 8885 had tinted windows. The effect of the tinted window was to prevent anyone outside the vehicle from being able to see inside the vehicle. In consequence the following cross-examination referring to EN 8885 took place:

"Q. What kind of vehicle is this car?

A. It's a 20-seater bus.

Q. Right. Now can you recall from what time or which day did he start to drive this car? On which date?

A. I don't recall, it's too long ago.

Q. Or which month?

A. Which month. It should have -- be January. January or December , I don't remember, it's too long ago.

Q. All right. Well, when did your company start to buy this vehicle?

A. Should have been November."

She went on to say that the applicant also drove DH 830 and that at times he used both vehicles on the same day.

11. The following further exchanges occurred:

"Q. Now, you had -- you have been shown photographs of the other bus, EN-8885. Now, is this correct: the defendant switched to using that bus from 6 December '95?

A. Now, as you talk about it like that, it should be the case."

And then later:

"Q. Now, you also said that it should be the case that the defendant start using EN-8885 on 6 December last year.

A. Should be.

Q. Now, what do you mean? You mean that on that day onwards he just used this vehicle or on that day he was using this vehicle together with other vehicles?

A. If I remembered it right, ever since he started using this vehicle on the 6th, he did not use other vehicles."

It was suggested that this evidence positively established that he did not use EN 8885 until 6th December and that he could not therefore have committed an offence in it on 4th December. We find this evidence, when looked at in the light of the evidence as a whole, particularly the applicant's cautioned statement, to be far from conclusive as to the time when the applicant commenced to use EN 8885.

12. The applicant was apprehended and a cautioned statement was taken from him at 8:20 a.m. on 6th January 1996. A post recording was first written down as follows:

" 'Now I take from you a record of interview of the post-recorded cautioned statement regarding that you, Chan Ching-fat, were stopped on board a public light bus EN 8885 outside Wing Fuk Garden, Luen Wo Market, Fanling for I have reasons to believe that you are connected with a case of 'Indecent Assault' which occurred on board a public light bus EN 8885 in the vicinity of Pak Tak Yuen, Shatin on 4/12/1995, and the victim was called Hui Gi-yin. Therefore, I declare arrest on you, Chan Ching-fat, for the offence of "Indecent Assault". And I also administer a verbal caution to you. Chan Ching-fat, you are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing or may be given in evidence.' After being cautioned, you, Chan Ching-fat, said to me, 'Ah Sir, I only had fun with her.'

13. At 4:05 p.m. on 7th January the applicant was again questioned. The preamble to that questioning reads as follows:

"I am Detective Police Constable 2645 Hung Kai-chiu, currently attached to the New Territories South Regional Child Abuse Investigation Unit. Chan Ching-fat, I now make inquiry of you about a case of indecent assault which began on the 4th day of December, 1995. At that time you were working as a nanny vehicle driver, responsible for taking students home. A 7-year-old female student Hui Gi-yin was one of the students you picked up. Commencing from the 4th day of December, 1995, before taking Hui Gi-yin back to her home, you drove her in your nanny vehicle to the park at Pak Tak Yuen near the dog latrine, in Fo Tan, Shatin. You stopped your vehicle and then indecently assaulted her inside the vehicle. About half an hour later, you took her to the ground floor of her house, that is Jubilee Garden. In this case, you began to indecently assault Hui Gi-yin from the above-mentioned date. Every time before you took her to her home, you would do the same to her. The last time you indecently assaulted her was on the 4th day of January, 1996."

The applicant was then cautioned and after caution he asked the interviewing officer to write down what he said which was as follows:

"At first I did not intend to molest Hui Gi-yin. Later I became familiar with her. Moreover, she was the last one to be taken back home and there were only two of us in the vehicle. Thus I took her to the vicinity of the park at Pak Tak Yuen by vehicle. I stopped the vehicle and then touched and kissed Hui Gi-yin. I took off her trousers and only touched her 'Sai Mui'. I had never thought of raping Hui Gi-yin. I only touched, kissed and hugged her. At the most I stripped her off her sport slacks. I had never taken her underpants off.

Only on the first occasion did I take off my trousers and rubbed against Hui Gi-yin in my underpants. Thereafter I was still wearing my trousers when I rubbed against Hui Gi-yin. I did not make love with her. Sir, I only admit that I did indecently assault Hui Gi-yin. I definitely did not rape her. Please believe me."

The applicant was then asked:

"Q. What kind of vehicle did you use to take Hui Gi-yin to the park at Pak Tak Yuen.

A. It is registration number EN 8885.

Q. Was the same vehicle used every time you drove Hui Gi-yin to Pak Tak Yuen to indecently assault her?

A. Yes."

He later said:

"I sat on the thighs of Hui Gi-yin and rubbed my 'Sai Lo' against Hui Gi-yin's 'Sai Mui', but I was still wearing my trousers. Hui Gi-yin was wearing her underpants, but her sport slacks were pulled down to her knees."

He was asked if he had indecently assaulted Miss Hui in this way every time and said:

"That's right when she was wearing sport slacks. If she was wearing her school skirt, I only touched her 'Sai Mui' with my hand and did not rub my 'Sai Lo' against her 'Sai Mui'."

When asked when the assaults had stopped, he said:

"It was stopped on the 5th day of January, this year. She said that she was in a hurry to attend a tutorial, so I drove her straight home. On the 4th day of January, I still drove her to Pak Tak Yuen to molest her."

When asked how long each assault took, he said:

"About 10 odd minutes."

14. There was objection to the cautioned statements on the ground that they were not voluntary. They were, however, admitted by the judge after voir dire proceedings in which the applicant gave evidence. The evidence in these statements was of the most damaging kind particularly as they strikingly confirm the evidence of Miss Hui.

15. When assessing the evidence of the complainant, the judge said that he bore in mind that she was a child and that she might well have difficulty calling to mind exactly what had occurred. He stated, however, that he was quite satisfied that she was doing her best to give an honest and truthful account of what had happened. As to her estimate that the incidents had lasted half an hour he said:

"That, I think, is unlikely and an overestimate of the time."

It will be remembered that the evidence of the applicant was that each incident lasted "about 10 odd minutes".

16. The judge said:

"Mr. Hoosen, for the defendant, points out that there are a number of days when the offences could not possibly have happened. As I have already said, on 5 December we know that the complainant did not go to school and so did not travel in the school bus. On 7 December the complainant left school early at 10 0'clock because she was unwell. We know, from the records of the autopass company, that on 4 January the bus in question was logged travelling through the Lion Rock Tunnel from Sha Tin to Kowloon at 4 o'clock precisely. On either 4 or 5 January, Mr. Wong the garage owner is unsure which, the defendant drove the bus to his garage in Ma On Shan at about 2 o'clock and had lunch subsequently. The defence contend that it must have been 4 January because on 5 January this bus is shown to have travelled through the Lion Rock Tunnel to Kowloon at 2:35 in the afternoon. However, this does not mean that the offence could not have been committed on 4 January. There was opportunity, I find, for the defendant to have committed it before driving to Mr. Wong's garage at Ma On Shan, where he arrived shortly before 2 o'clock. In connection with this, as I have already indicated, I do not believe that the indecent assaults lasted for as long as the half an hour suggested by the complainant.

Mr. Hoosen points out that before it was amended, the 2nd charge specifically averred the date of the offence was 5 December when, as we have seen, the girl did not go to school. The date of the alleged offences is not, in this case, a material averment. I can convict if I am satisfied that the offences occurred on or about the dates mentioned in the charges. Understandably, the defence would prefer the charges to specify particular dates, but I do not feel that they are prejudiced by the failure to do so in the 2nd and 3rd charges.

The defendant did not give evidence and of course is under no obligation to do so. He does not have any previous convictions and I bear in mind the relevance of this. He did call two witnesses, who I have already referred to, who testified that he has never had a moustache. In that, I believe that these two witnesses are mistaken.

I come to the conclusion that I can safely rely on the complainant's evidence, not only as to the indecent assaults themselves, but also as to the identity of her assailant. I am satisfied that she was indecently assaulted in the ways that she describes on three occasions inside the school bus by the defendant. In addition to her evidence there is, as I have indicated, the defendant's admissions made during the interview at the Tai Po Police Headquarters on 7 January. I am satisfied that, not only were these admissions made voluntarily, but they are also true. These admissions are consistent with the evidence of the complainant, and in particular, in the interview he stated that the date of the last offence was 4 January. For these reasons, and I apologise for their length, I find the defendant guilty on each of the three charges of indecent assault." (Emphasis supplied.)

17. The first two grounds of appeal deal with Charge 1, the indecent assault on 4th December:

"1. The learned Deputy Judge erred in holding that in the circumstances of the present case the date of the alleged offence in respect of this charge (as opposed to the other 2 charges) was not a material averment, and that he could convict if satisfied that the offence occurred on or about the date mentioned in this charge."

2. On the evidence it was impossible for the Applicant to have committed the offence on 4th December 1995 in that:-

(a) the Victim (PW1) had said that the bus in question was not DH 830 when she was shown its photographs.

(b) the Victim had said that the offence took place in a bus with dark windows - 'One could see from the inside, but not from the outside.

(c) the school bus DH 830 had clear glass.

(d) the Applicant was driving DH 830 which had clear glass on 4th December 1995, and only started to drive the other bus EN 8885 since 6th December 1995."

It is true that the judge said in the passage set out above that "the date of the alleged offence in respect of this charge was not a material averment". He said this however with particular reference to the date of the second charge the 5th of December. We reject the suggestion that he was applying those words to the first charge which was alleged to have occurred on 4th December. For that charge there was specific evidence both from Miss Hui and in the admission of the applicant that it had occurred on 4th December and the judge clearly acted upon the basis of that evidence. We reject the suggestion that there was conclusive evidence that the applicant had only started to drive EN 8885 on 6th December. The evidence of Madam Yeung upon which this suggestion is, it seems, based was by no means conclusive in that regard. The judge was entitled to rely upon this specific admission by the applicant that he had committed an offence on 4th December and that he had been driving the vehicle EN 8885 on that day.

18. The third ground is concerned with the offence on or about 5th December 1995.

"3. The learned Deputy Judge erred in holding that in respect of this charge he could be satisfied that the offence took place 'on or about the date mentioned in the charge' in that there was no evidence at all as to when that incident occurred or that it occurred within some period which had reasonable approximation to 5th December 1995."

There was no express admission by the applicant that he had assaulted Miss Hui on the 5th of December but the applicant admitted that he had assaulted Miss Hui on occasions after 4th December. There was evidence from Miss Hui that she had been assaulted on the day after the first assault which was on 4th December. This was wrong as she did not attend school on 5th December. The judge was satisfied, as he was entitled to be, "that whatever problems she had over the dates she was describing three separate incidents, arguably more but certainly three, when she was indecently assaulted in the school bus". It was clearly her memory that the second assault occurred shortly after the first assault. Given that to be so we are satisfied that the judge was entitled to find that an assault had occurred on a date which was reasonably proximate to 5th December, i.e. on a date which was "on or about 5th December".

19. We now turn to the ground of appeal on Charge 3 the indecent assault on 4th January 1996:

"4. The case for the Applicant was not properly put in that:-

(a) Defence counsel adopted a 'new' defence to Charge 3 which was inconsistent with the Applicant's instructions and incompatible with the Notice of Alibi;

(b) Defence counsel took this course without consultation with the Applicant;

(c) Specific and prior consultation with the Applicant was necessary because this course, once adopted, would make it very difficult for Defence counsel to advise the Applicant to give evidence;

(d) It should have been obvious to Defence counsel that it was wrong to 'adopt' any defence which was contrary to his instructions, inconsistent with the Alibi Notice, and compromise the Applicant's election as to giving evidence in his own defence;

(e) In any event, paragraph 3 of the Notice of Alibi should have been withdrawn;

(f) The Applicant should have been advised to give evidence in his own defence."

20. Mr. Haynes, who appeared with Mr. Tse for the applicant, informed the court that the only impropriety which would be relied upon on the part of defence counsel was a failure to advise the applicant that the evidence was such that he must give evidence. The situation was, it was argued, the same as that which occurred in R. v. Su Hui-fong C.A. No. 327 of 1994. In the Notice of Alibi the applicant stated, in paragraphs 1 and 2, that on 4th and 5th December he was driving DH 830. This was an alibi in relation to those two charges insofar as it indicated that he was not driving EN 8885 on those days the vehicle with the one way windows. We have already dealt with those two charges.

21. Paragraph 3 of the Notice states:

"On 4th January 1996 at all material times he was conveying students and prior to the last stop at Jubilee Garden at about 1:40 p.m. he stopped briefly at a store near the roundabout of Sui Wo Road, the playground near Pak Tak Yuen and a rubbish bin in Lok Lam Road, and thereafter he went to a garage of Mr. Wong Ming Kwong at Ma On Shan, arriving there before 2.05 p.m., where he had lunch with Mr. Wong's staff."

This notice indicated, inter alia, that he intended to call Mr. Wong Ming-kwong, and was entirely in accord with the applicant's instructions which were that he had taken Miss Hui to Pak Tak Yuen where she had played for a few minutes and had then dropped her at home and proceeded to Mr. Wong's garage. This was put in terms to Miss Hui and was denied. Paragraph 3 of the alibi was entirely consistent with the suggested stopping for a few minutes as it was intended, by showing that the applicant had been at Mr. Wong's garage at 2:05 p.m., to cast doubt upon the evidence that he had at about 1:30 p.m. assaulted Miss Hui for half an hour. The defence was that an innocent diversion of a few minutes did occur but that the applicant could not have been assaulting Miss Hui for half an hour as he was at the garage by 2:05 p.m. This approach was consistently relied upon by counsel throughout.

22. It is, however, suggested that counsel "abandoned" the alibi defence and wrongly adopted a "new" defence. Although the suggestion of impropriety on the part of counsel was abandoned we think it proper to make the following observations about this ground.

23. The following exchange occurred in the cross-examination of Miss Hui:

"Q. Well do you then say that on this day, 4th January 1996, you did get off the bus first before the other students?

A. Yes."

This was an answer which could not possibly have been anticipated by counsel. He naturally sought to make what use he could of it. Any suggestion that counsel abandoned the alibi defence and, without instructions, took an entirely different course is quite unwarranted. An examination of the record shows that he continued to run the alibi defence while at the same time doing his best to take advantage of the fortuitous answer given by Miss Hui. He behaved both properly and reasonably in the circumstances and there is nothing in the suggestion that he should have taken further instructions before so doing. It is suggested in Ground 4(c) that counsel by acting as he did compromised his ability to give proper advice as to whether the applicant should have given evidence and further, in Ground 4(f), that it was a case in which the only proper advice was that the applicant must go into the witness box. We reject both of these suggestions without hesitation. We are unable to understand how it can be suggested that he compromised his ability to give proper advice. The most cogent reason for this is that it was certainly not a case which called for advice to the applicant that he must go into the witness box. The advice given by counsel, which is set out in his statement, prudently advising both of the danger of giving evidence and of not doing so, was perfectly proper.

24. Ground 5 suggests that the judge erred in findings which he made when holding that the cautioned statement had been given voluntarily. There is no merit in that ground. They were matters of fact which were essentially for his decision.

25. Ground 6 attacked the conclusion of the judge that the applicant had faked "supposed injuries" when being examined by a doctor. That was a matter which was very much for the decision of the trial judge and provides no proper ground for appeal in this court.

26. The convictions were in no way either unsafe or unsatisfactory and the application is refused.

Representation:

Mr. John Reading S.A.D.P.P. & Ms. Anna Lai (D.P.P.) for the Respondent.

Mr. Joseph W.Y. Tse & Mr. John Haynes instructed by Messrs. Weir & Associates for the Applicant.