HKSAR v. Chan Ching Ho Owen

CACC 549/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 549 OF 1999

(ON APPEAL FROM DCCC 581 OF 1999)

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Coram: Hon Stuart-Moore VP, Leong and Wong JJA

Date of Hearing: 7 July 2000

Date of Judgment: 7 July 2000

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J U D G M E N T

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

Introduction

1. On 13 October 1999, the Applicant, then aged 41, was convicted of four charges of indecently assaulting his six-year-old niece (the victim), following a trial before Judge Toh. Consecutive sentences of nine months' imprisonment on the first two charges and eighteen months on the third were imposed, making three years in all. On the last charge on which the Applicant was convicted, he received a two and a half year sentence of which two years was ordered to run consecutively, making a total sentence of five years' imprisonment. The Applicant now seeks leave to appeal against conviction and sentence.

2. Three of the offences allegedly occurred on different days in 1998. The last offence was alleged to have occurred on 13 March 1999. There was a further charge on which the Applicant was acquitted. All of the indecent assaults on which the Applicant was convicted took place, it was said, at the Applicant's home address. The victim had been taken there when her mother went to play mahjong with other members of the family.

Prosecution's case

3. The prosecution case, on the occasion relating to charge 1, was that the Applicant had touched the victim's vagina under her clothing. About one and a half weeks later, the Applicant again touched the victim's vagina under her clothing but for a longer time than before. On neither of these occasions did the victim say anything to other members of her family and she explained in her evidence that she had seen the Applicant acting, as she put it, "fiercely" following a quarrel with her father on some previous occasion.

4. On the third occasion the Applicant indecently assaulted the victim, again while mahjong was being played by female members of the family, the prosecution's case was that the Applicant told her to take off her trousers. He also removed his own. He then touched the victim's vagina and said, "I often massage you, you should massage me back". She then massaged the Applicant's penis. She felt nervous and frightened and afterwards went downstairs to the room where the ladies were playing mahjong. However, she said she told no one because she felt "uncomfortable" in her mind about telling anyone what had happened.

5. The final offence began by the Applicant touching her vagina. The victim was then accompanied to the roof by the Applicant. In the roof area there was a storeroom. The victim was taken inside and the lights were switched on. The victim described how the Applicant licked her vagina "like a dog".

6. A few days later, the victim confided to her mother that "Uncle Owen" had indecently assaulted her.

7. At the trial, the video recording of the victim's account to a trained interviewer was played as her evidence-in-chief.

Defence case

8. Although the victim was subjected to lengthy cross-examination containing suggestions that the allegations were false, the Applicant himself did not go into the witness box in his own defence. A total of three witnesses were called on his behalf to deal with peripheral matters.

Application relating to conviction

9. Turning to the Applicant's homemade grounds of appeal against conviction, his first ground amounts to a complaint that the judge totally ignored the numerous doubts raised by the defence. The judge, according to the Applicant, disclosed bias and did not analyse the doubts objectively.

10. It has to be said from reading the Reasons for Verdict that it appears that the judge carefully analysed the evidence of the victim in respect of the four charges on which the Applicant was convicted. There was, it is perfectly true, some vagueness about one of the charges, but this was the charge which resulted in an acquittal. The judge could not be certain that she could rely upon the evidence in relation to that charge because of a number of leading questions the victim had been asked by her mother which may or may not have influenced the answers which the victim later gave to police. The judge examined the evidence of the victim in the light of all the suggestions which had been put to her in cross-examination. There is not the slightest merit in this particular ground of appeal.

11. The second ground of appeal amounts to a complaint that the prosecution was unable to particularise the offences when they are closely considered. Again, there is nothing in this ground of appeal. The judge dealt with each of the offences separately. She considered the evidence in the video-recorded interview in relation to each of the charges individually. The judge rejected the suggestions which were put to the victim in cross-examination that she might have concocted the allegations against the Applicant because of what she might have seen in films or observed from her parents' conduct or from things she had read. The judge warned herself of "all of the dangers, and particularly the suggested possibility that (the victim's) mind may have been contaminated by her mother or by the police interviewer prior to the video-taped interview of the victim on 20 March 1999". The judge formed the view that there was no doubt the victim was speaking the truth.

12. In addition to the original grounds of appeal settled by the Applicant, he has recently supplied the court with a 35-page document written in Chinese characters which sets out a large number of further grounds. The document was translated into English and the text occupies 79 typewritten pages, much of it, it has to be said, irrelevant and repetitive. These grounds of appeal, relating to issues that clearly we have had to look at with a view to deciding whether the verdicts should stand, refer principally to what the Applicant alleges were failures on the part of the judge:

(1) to take into account inconsistencies in the victim's account;

(2) to take into account the defence expert's evidence; and

(3) to take into account the victim's inability to recall what she had said in her statements to the police as to the chronology of events.

He also complained that the judge:

(4) was biased against him;

(5) had interrupted unnecessarily, taking away his chance of a fair trial;

(6) had purposely found the victim's evidence to be honest in order to support her findings;

(7) had distorted evidence given by the victim and other witnesses in order to support her "despotic ruling on this doubt-filled and totally uncorroborated case"; and

(8) had been illogical in recording an acquittal on one of the five charges.

13. Dealing with the last point, the acquittal on one of the charges was for a specific reason. The judge fairly and concisely set this out when stating that she was not prepared to accept that allegation as it had been elicited as the result of leading questions asked by the victim's mother. There was, as the judge found, a danger that words had, in effect, been put into the victim's mouth. This is why she acquitted on that charge as opposed to the others.

14. As to the remaining grounds, there is no substance to any of them and there is no need to deal with them in detail. The judge gave careful and detailed consideration to all the matters raised in the complaints made by the Applicant. In particular, Dr Ng Man-lung, who had been called by the defence as an expert in psychiatry, gave evidence which highlighted the fact that children sometimes lie. The judge was well aware of this and warned herself about the dangers of relying on the uncorroborated evidence of a child victim. Dr Ng's evidence did, however, reveal how a child-molester will often approach his target, and the judge was fully entitled to take that evidence into account, set into the context of the allegations in this case. The Applicant's conduct fitted the pattern described by Dr Ng as typical of a child abuser. The Applicant's suggestion that the judge took this out of context is unfounded.

15. There is no substance to the Applicant's allegation that the judge showed bias or that she interrupted the proceedings unnecessarily. On the contrary, the trial was conducted by the judge in an even-handed way, with fairness and common sense being applied perfectly properly to the factual circumstances of the case, and we have been provided with a transcript of approximately 500 pages in order to follow how those proceedings were conducted.

16. The Applicant has also complained of having been "persecuted" and, under the umbrella of this sentiment, he has sought to put before the court a lengthy account of his side of the story. It occupies a great many of the 79 pages of typewritten pages. The Applicant, as we have said already, did not give evidence at his trial which was the opportunity he should have taken if he wished to give his side of the story. He chose not to do so for reasons which are best known to himself and it is too late now to seek to advance evidence which was not put before the court below.

17. The Applicant's wife (DW1), a superintendent of police, was called on behalf of the defence, but her evidence was criticised on a number of grounds which are set out in the Reasons for Verdict. In effect, her evidence took the Applicant's case no further at all.

18. Now, in the Applicant's written submission, he has suggested that his maid could have given helpful evidence to his defence. He had the opportunity to call her, if that was really so, at his trial but he did not do so.

19. All the grounds of appeal advanced by the Applicant have been without substance and the application relating to conviction is dismissed.

Application relating to sentence

20. Turning to the application against sentence, the Applicant is represented by Mr Wilson Chan. It was submitted that the sentence of five years' imprisonment was manifestly excessive because the judge erred in failing to give sufficient regard to the totality principle, having determined appropriate sentences for the individual offences.

21. In passing sentence, the judge had this to say:

"The victim in this case was 6 years old at the time of the offences. The defendant is the uncle of the victim and took advantage of his close relationship with the victim by committing these detestable offences.

Such crimes against little children must be punished with a sentence severe enough to deter others from acting like the defendant, and also to show the abhorrence of members of the public to crimes of this nature, and also to redress the grievance suffered by the victim, her friends and relatives.

The victim in this case withstood a lengthy cross-examination with aspersions cast on her character and the morals of her parents. It would have been a traumatic experience for an adult, let alone a 7 year old girl.

There are certainly no mitigating factors that I can see. The lack of violence and pain was because the defendant was looking out for his own self interest as he wanted to continue with his sexual assaults of this little girl, and to cause her pain or to inflict violence on her would have stopped this behaviour. In this case, nobody knows what the long-term effect would be on the victim. Hopefully not much because she is a brave little girl as she has displayed time and time again in giving her evidence, and no doubt with the help of her loving parents, hopefully will put this way behind her as she steps into adulthood. Her mother has demonstrated a deep love and understanding of her child and she should not blame herself for what has happened.

An aggravating factor in this case is that the defendant repeated his odious actions a total of three more times after the first occasion, with each occasion increasing in its severity. He was also in a position of trust as an uncle of this little girl; a position of dominance over her."

22. Mr Grenville Cross, SC, who appears on behalf of the Respondent, adopted his written submission that, having regard to the judge's conclusion that the Applicant had "taken advantage of his close relationship with the victim and that no one knows what the long-term effects would be on the victim", an exemplary sentence was called for, following what this court said in HKSAR v Wong Ying-ho (1999) 4 HKC at p. 825. In that case, a doctor of medicine indecently assaulted an eight-year-old child in his surgery indulging in a number of indecent acts over a period of about 10 minutes while the child's mother was waiting in the waiting room. In giving the judgment of the court in that case, I cited two of the conclusions of the sentencing judge as being that the offence involved a gross breach of trust and that there was no telling what long term effects there might be. The judgment concluded in these terms:

"On this basis, (the sentencing judge) took a starting point of four years. The applicant had indulged in a number of indecent acts occupying about 10 minutes with the victim. In our view, his depravity was of such seriousness as to have justified a sentence in this range and we consider that it might well have been a higher starting point."

23. Mr Cross also submitted that the judge in the present case had properly recognised that repeated indecent assaults of a kind such as these required enhanced and consecutive sentences. (See: Attorney General and Ho Yu-ping (1996) 1 HKC 555). It was also pointed out that the judge's approach reflected the sentiments contained in the judgment given in HKSAR v See Tak-man Cr App 707/1997 involving the sexual abuse of a child where the court said:

"Whilst it is not possible to say that there has been psychological damage to the victim, as permission was refused for such an examination to take place, that cannot be overlooked as a factor to be borne in mind. We can also take into account that there is an important punitive element in sentencing offenders of this kind when fully adult men take advantage of children. Not only must they be punished but others must be deterred from following a similar example ...."

24. In short, we consider the judge had recognised three important sentencing consideration in cases of this kind, namely the need to deter others, the need to mark the public abhorrence of such crimes and the need to redress the grievance suffered by the victim, her relatives and friends.

25. Here, the offences were entirely separate and distinct. There was no requirement on the part of the judge, subject to the principles of totality, to have made any of the sentences to run concurrently unless it had been alleged, which it was not, that two of the offences had been committed in the course of what is often referred to as a "single transaction". (See: Attorney General and Cheung Pit-yiu (1989) 2 HKC 12). It does not help the Applicant that he chose more or less the same method to approach his victim in the commission of each offence. These remained separate and distinct offences, each deserving of separate punishment and, on this aspect, we reject Mr Chan's argument to the contrary.

26. We have, therefore, concentrated upon the overall effect of the sentences the judge imposed. No complaint is made that any of the individual sentences passed by the judge was in itself manifestly excessive or wrong in principle. This court is usually concerned with the overall sentence imposed in any event because if this cannot be criticised, we would be most unlikely to interfere with the individual sentences from which it stems.

Conclusion

27. Bearing in mind the age of the victim, and the concern of the courts to protect children from sexual abuse, coupled with the Applicant's persistent conduct spread over many weeks and his trusted family relationship with the child, we have concluded that the sentence cannot be criticised. Furthermore, what cannot be overlooked is that the Applicant was deserving of no credit in any respect whatever. He had five previous convictions, though it is true that none of those were for sexual offences. The convictions related to some 11 occasions when he had assaulted or wounded others, coupled in some cases with causing criminal damage. Evidence was put before the court not only by the victim in the present case but also by the Applicant's own wife that the Applicant is a man who has a bad temper. In his written submissions, the Applicant tried to give the impression that he was a respectable journalist working in the financial section of a well-known newspaper, but this provided no mitigation on these charges at all. In particular, he had expressed no remorse of any kind for what he had done and, in the result, the Applicant caused the victim to re-live the trauma of these events. The conduct of his defence cannot add to his sentence but, at the same time, there are no grounds for extending the Applicant any leniency whatsoever.

28. Accordingly, the sentences must stand and the application is dismissed.

Representation:

Mr Grenville Cross, SC, DPP and Ms Denise Chan, SGC, of the Department of Justice, for the Respondent.

Applicant in person (re: Conviction).

Mr Wilson Chan, instructed by Legal Aid Department, for the Applicant (re: Sentence).