HKSAR v. Kwok Kau Kan
Read the full judgment text of CACC 627/1998 on BabelCite. This Court of Appeal judgment was delivered on 21 October 1999.
1. The applicant was convicted after trial before Her Honour Judge Toh in the District Court of five counts of indecent assault. He was sentenced to imprisonment for 3 years on each count, with 6 months of each of the sentences for the second and subsequent counts to run consecutively to the sentence for the first count and to one another, making a total of 5 years. He now applies for leave to appeal against both conviction and sentence.
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CACC000627/1998 CACC627/98 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 627 OF 1998 (ON APPEAL FROM DCCC 1004 OF 1998)
______________ Coram : Hon Chan CJHC, Wong JA and Yeung J Date of hearing : 27 August 1999 Date of delivery of judgment : 21 October 1999 _______________ J U D G M E N T _______________ Chan, CJHC (delivering the judgment of the Court) : 1. The applicant was convicted after trial before Her Honour Judge Toh in the District Court of five counts of indecent assault. He was sentenced to imprisonment for 3 years on each count, with 6 months of each of the sentences for the second and subsequent counts to run consecutively to the sentence for the first count and to one another, making a total of 5 years. He now applies for leave to appeal against both conviction and sentence. The prosecution case 2. In about 1995, the complainant (PW1) was 12 years old and was living with her grandmother in a Chai Wan estate. After school, she would wait for her grandmother to pick her up and take her home. The applicant who was in his 70s lived in the neighbourhood. He made acquaintance with the complainant and asked her to go and have tea with him in nearby fast food shops from time to time. At the end of 1996, the complainant moved back to live with her mother, but returned to Chai Wan in the evening to take lessons. She met the applicant again and told him that she had moved. (1) the 1st and 2nd counts 3. During the summer vacation in July 1997, the complainant returned to visit her grandmother in Chai Wan almost everyday. There she would stay from about 8:00 in the morning until about 9:00 in the evening. She saw the applicant again and the applicant invited her to have tea. One night, shortly after 6:00 p.m., the applicant rang her up and asked her to come out and meet him at 7:00 p.m. When they met, he led her along a hillside path leading to a nearby park. They reached a certain landing up the steps (staircase) and stayed for a while. There the applicant touched the complainant's breasts over her clothes for a few minutes. After that, the applicant gave her $50 and told her not to tell anybody. About two to three days later, the applicant rang her up again at about 6:00 p.m. and asked her to come out. When they met, he led her to the same place. There he again touched her breasts over her clothing for a few minutes. When he was leaving her, his lower part rubbed against her left buttock for a few seconds. On that occasion, the applicant also gave her $50. These were the two incidents referred to in the first two counts. 4. However, in her evidence, the complainant said that there were subsequent occasions when the applicant took her to the same place and indecently assaulted her in a similar way. (2) the 3rd and 4th counts 5. In September 1997, the complainant was then in Form 1. On three days in a week, she had to go to her grandmother's place in Chai Wan after she finished school at 3:00 p.m. and returned home at about 9:00 p.m. In November 1997, she often saw the applicant. Sometimes he called her at her grandmother's place and sometimes she called him. They went to tea and she sometimes asked him to give her money to buy comic books. On one occasion, the applicant called her and they met at the staircase landing between the 7th and the 8th floor of the building where her grandmother lived. There the applicant lifted her skirt and touched her buttocks over her pants. After that, he gave her some money. She said that the same thing happened on several occasions. Sometimes she met the applicant at the staircase but he gave her money without touching her. These were the incidents in respect of the 3rd and the 4th counts. (3) the 5th count 6. In the evening of 30 March 1998, the complainant received a call from the applicant while she was at her grandmother's place. He asked her to come out. When they met, they went to the same landing of the steps along the hillside path leading to the park. When they reached that place, she stood in front of the applicant with her back towards him. He then held her waist and touched her breasts with his hands. He also rubbed her back, lifted her skirt and touched her buttocks over her pants. During the incident, the complainant's back was touching the front part of the applicant's body. Twice, she bent forward at an angle of about 30 degrees and then stood straight again. In that position, her buttocks were touching the applicant's private parts and he moved forward and backward. The whole thing happened for a few minutes. While the applicant was doing all this to her, she was eating potato chips. A resident who was living nearby in the estate saw them behaving strangely and suspecting that something wrong was happening, he rang up the police. Having received a report, two police officers went to the scene. When the applicant saw the police officers coming up the steps, he pushed the complainant away and asked her to go up the steps first. One of the officers stopped her and asked her what she was doing there. She said that she was looking for something in the area. She later admitted that she had lied to the officers because she knew what she had done earlier was wrong and she did not want the police to know or to tell her mother. This incident was the subject matter of the 5th count. 7. According to another officer PW3, upon arrival at the scene, he saw the applicant holding the complainant. He also saw the applicant with one hand on one of her breasts and the other hand holding round the complainant's forearm and touching her other breast. They then separated. He went up and later stopped the applicant. When asked what he was doing there with the girl, the applicant replied that he was talking to her and that she was his godchild although he did not know her name or her parents. He also said that he thought the complainant was 16 years old. He denied having touched her. The officer admitted that the wall of the landing of the steps had blocked part of his view. The other officer (PW5) who arrived together with PW3 said he could only see the applicant's two hands resting on the complainant's shoulders for one to two seconds. He said that he was at a distance away and therefore could not see anything else. 8. The resident (PW4) who reported the matter to the police said that he saw the complainant in school uniform and holding a packet of potato chips. He also saw the applicant and the girl going to the second landing and stopped there. He then reported to the police and asked them to come so that they could see what happened. He said that he saw the applicant facing the complainant's back, that the complainant had bent forward to about 90 degrees and then stood straight again from time to time, and that she looked around as if she was afraid that she might be seen. However, he said that he did not see the applicant using his hands to wrap round the complainant or putting his hands on her breasts. This was because he had his view away from the applicant when he saw the police officers going up the steps. The applicant's case 9. The applicant gave evidence at the trial. He was living in the Chai Wan estate with one of his sons and his family. He was receiving old age allowance. He admitted he had already known the complainant for about three years although he did not know her name. He came to know her when he saw her playing outside the estate and sometimes with his granddaughter. He said that he saw the complainant crying one day and she told him that she had nothing to eat. So he gave her $20. He knew the complainant lived on the 8th floor. He denied having indecently assaulted her. However, he admitted that he had given the complainant money from time to time. On 30 March, at about 6:00 p.m., he received a phone call from the complainant. She asked him for $200 to buy books. He met her downstairs and followed her to the landing of the steps in the park. At that time, he was panting while negotiating the steps. Then, the police officers came. He told the officers to "give him face", that he had not done anything and that she was his god child. He admitted that he knew the complainant's telephone number and her family background. First ground of appeal 10. There are two main grounds of appeal. The first ground relates to the first four counts while the second ground applies to all of the five counts. Each of the first four counts charged the applicant with one act of indecent assault during a period of time. 11. In respect of the 1st ground, counsel submits that the trial judge was wrong to allow the prosecution to proceed, with a view to prove the commission of the offence in relation to each of the counts, by adducing evidence of multiple acts during the respective specified periods. Counsel argues that the complainant's evidence suggested that the same act of indecent assault took place on a number of occasions and that she was unable or unwilling to give specific evidence of the two occasions mentioned in the 1st and 2nd counts. As a result, it was quite impossible for the applicant to deal with the general allegations of a course of conduct when the first two charges referred to two specific incidents. The applicant was unable to know which part of the complainant's evidence was relied on by the prosecution to support the first count as opposed to the second count. He was also not in a position to know the basis upon which he was convicted in respect of each count. Similarly, counsel argues that in respect of the 3rd and 4th counts, the complainant was not in a position to give specific evidence of the two occasions referred to in these counts. The applicant was similarly unable to know which part of the complainant's evidence was relied on by the prosecution to support the respective counts. 12. Counsel relies heavily on the recent Court of Final Appeal decision in Chim Hon Man v. HKSAR [1999] 1 HKLRD 764. Counsel further submits that if evidence of the other acts was adduced before the court, the trial judge should have stopped the evidence on other acts and asked the prosecution to stop such line of questioning. In a jury trial, the judge should also direct the jury to ignore those other acts. The Chim Hon Man case 13. In Chim Hon Man, the appellant was convicted of 2 counts of rape each of which was alleged to have been committed during a period of time covered by the respective counts. There was evidence from the complainant that sexual intercourse took place on other occasions during those periods. The prosecution submitted and the judge directed the jury to the effect that if they were satisfied of at least one rape in each of the respective periods, they could convict the appellant of the two counts. The Court of Final Appeal, in quashing the convictions, held that there is "a principle of the common law that, where a count in an indictment alleges one specific offence, it is not open to the prosecution to lead evidence of a number of acts which amount to the act charged and then to invite the jury to convict on any one of the acts led in evidence." (See page 776.) The Court also held that although there could be exceptions to this principle, that case did not fall within the exceptions. However, the Court did not specify what can constitute an exception. 14. Sir Anthony Mason NPJ, with whose judgment the other members of the Court agreed, took the view that the principle that the prosecution should be confined to the proof of one offence as the basis for a conviction of one single count specified in an indictment serves a number of purposes. He said at page 778I to page 779F :
15. It would seem that the common law principle is designed at avoiding the following evils :
16. The principle is thus applied to provide adequate safeguards to the accused and to ensure that he has a fair trial. However, in many sexual offence cases, the complainants, because of their young age, the long lapse of time or the frequency of the offences, are unable to be precise as to the date, time and place of a particular offence or to distinguish between that particular offence and other offences committed in similar circumstances which extend over a long period of time. The difficulty the prosecution faces may be considerable and sometimes, it would seem, almost insurmountable. If the principle is strictly applied, it would amount to a charter for sexual offenders and may even encourage multiple offences. As the Court of Final Appeal said, there must be a fair balance between the rights of an accused and the interest of the community in bringing offenders to justice. Regrettably, the Court did not give any guidance as to what constitutes an exception to the general principle. How to solve the problems 17. Sir Anthony Mason NPJ suggested that the problems facing the prosecution can be avoided in a number of ways : (1) an appropriate formulation of the charge; (2) the giving of particulars which sufficiently identify the particular act charged in a way that will distinguish it from any other acts of which the prosecution intends to lead evidence; and (3) by election to proceed on a particular act alone. (See page 776A.) 18. He seemed to approve of the practice suggested in Archbold (1998 Edition, page 49) that in cases where differentiation is impossible, an indictment may be drawn to include a number of counts, each, apart from the first, alleging "on an occasion other than that alleged [in the previous counts]". Although this would not, according to him, have resulted in the giving of particulars or more specificity in the complainant's evidence, it would have focused the jury's attention on the individual acts alleged and the evidence relating to those acts, without any departure from the general principle. (See page 781B.) 19. Another method is for the prosecution to give particulars which can sufficiently identify the particular act charged in such a way as to distinguish it from other acts which the prosecution in adducing evidence may lead. By providing such particulars, an accused person would be in a position to know exactly the particular incident in which he is alleged to have committed the offence. He would not be handicapped in putting forth his defence. At the same time, the jury would also be able to focus their minds on the incident relating to the particular offence in respect of a particular charge. Further, such particularity would be sufficient for the purpose of a subsequent plea of autrefois convict or autrefois acquit. 20. These methods will no doubt be helpful in striking a proper balance between facilitating the prosecution of this type of offence on the one hand and safeguarding the rights of the accused on the other. Whether any one or more of these methods can completely remove all the difficulties facing the prosecution and at the same time eliminate any unfairness towards the accused will depend very much on the circumstances of each case. 21. We should mention that Chim Hon Man was of course a case which was tried by jury. In a trial without a jury where, for whatever reason, there is evidence of a number of other acts which also amount to the act charged, the risk of unfairness to the accused will, in our view, be greatly reduced. A professional judge is capable of handling such evidence and ignoring any prejudicial effect which it may have. He is able to focus his mind on the evidence which is relevant to the charge before him. There is also no question of a risk of lack of unanimity in a verdict in the case of a trial by a single judge. The formulation of charges in present case 22. The indictment in the present case was drawn before the decision in Chim Hon Man. However, the person who drew this particular indictment was commendably wise in foreseeing the problems facing the complainant and the prosecution. The indictment was drawn in the form which followed that suggested in Archbold. The particulars in the first count alleged that the applicant had committed an indecent assault on an unknown date between 1 July and 31 August 1997 at the staircase landing of the park. The particulars of the 2nd count alleged the applicant of having committed another indecent assault at the same place on an unknown date during the same period of time but on "an occasion other than the one set out in the first charge." The 3rd and 4th counts were "twin charges" which were similar to the 1st and 2nd charges. The 3rd charge alleged an incident of indecent assault on a day unknown between November 1997 and January 1998. In the 4th count, the indecent assault was alleged to have taken place on a day unknown during the same period, "being an occasion other than the one set out in the third charge". Evidence of multiple acts 23. The applicant complains that there was evidence of multiple acts apart from the occasions alleged in the charges. It is submitted that this should have been excluded by the trial judge. 24. In cases in which multiple acts were alleged by the complainant to have taken place, it is very often not easy to stop her in time, particularly if she is of tender age, before she refers to other incidents which were not covered by the charges before the court. It is quite frequent that during the course of a trial, a witness may refer to acts which happened to her on other occasions but which do not form part of the charges before the court. Sometimes this is allowed in an attempt to make sense of the evidence of the complainant. It is obviously impracticable to abort a trial every time such evidence comes out, either inadvertently or deliberately. In the case of a trial without a jury, a professional judge would be able to put such evidence aside when considering the guilt or innocence of the accused. In the case of a jury trial, the judge may, depending on the circumstances of the case, have to direct the jury in his summing up to ignore evidence of acts other than those particularized in the charges. With sufficient directions from the judge, even if evidence relating to other acts is also adduced, the prejudicial effect of such evidence on the jury would be eliminated or kept to a minimum. 25. In the present case, it can be noted from the transcript of the complainant's evidence that she did refer to other incidents. During the course of the trial, prosecuting counsel was alert to the difficulty facing the complainant in differentiating between the offences during the relevant periods of time and had taken great care in putting her questions to the witness. She was at pains to focus the complainant's mind on the first occasion when indecent assault was alleged to have taken place. Similarly, prosecuting counsel was very careful when examining the complainant to focus her mind on the second occasion which took place only a few days after the first occasion. From time to time, prosecuting counsel had deliberately prefaced her questions by drawing the complainant's attention to the first and the second occasions of indecent assault. These were the occasions alleged in the 1st and 2nd charges. As a matter of fact, it is also clear from the transcript that the trial judge had reminded the prosecution not to adduce evidence relating to other acts during the period referred to in the first two counts and prosecuting counsel did stop asking questions relating to these other incidents. 26. From the way questions were put to her, it is quite clear that when the complainant was giving evidence, she could not have confused the first two occasions with the other acts. Nor was the trial judge confused. This is evident from the Reasons for Verdict (at page 24Q of the Appeal Bundle). The judge clearly referred to an occasion during the summer vacation in 1997 between July and August which was referred to as the first occasion and another occasion which took place one or two days after that which was referred to as the second occasion. These two occasions were clearly identifiable. 27. One of the main objections in Chim Hon Man was that in respect of each charge of rape, although there was evidence of multiple acts of rape during the same period of time, the jury was asked to convict if they were satisfied that the accused had committed at least one offence during that period. This did not happen in the present case. There was no doubt that when the judge was dealing with the first two counts, she was considering the evidence in relation to the first two occasions. 28. Hence, not only were the first two counts drafted in the form as suggested in Archbold, prosecuting counsel had also drawn the complainant's attention to the two particular incidents (i.e. the first and the second occasions) referred to in these counts. The complainant as well as the trial judge could not have and had not mistaken these two incidents with other subsequent incidents. The applicant knew what the allegations were in relation to the first two counts and had not been prejudiced in or prevented from putting up his defence. He would know the basis of the conviction on these two counts and there would be no difficulty with a subsequent plea of autrefois convict. The evils which the common law principle is aimed at avoiding did not arise in the present case in relation to the 1st and 2nd charges. The convictions on the 3rd and 4th counts 29. However, in respect of the 3rd and 4th counts, although they were drafted in a similar way as that in the 1st and 2nd counts, the evidence led from the complainant referred to more than two incidents during the period between December 1997 and January 1998. From the complainant's evidence, it is not easy to differentiate between any one of these incidents and unlike the case in respect of the 1st and 2nd counts, there is nothing in the evidence to differentiate between the 3rd incident and the 4th incident and between these two incidents and the other incidents. The judge, being a professional judge, would be able to focus on two particular incidents and there is no risk of any lack of unanimity in the verdict. However, it would be unfair to the applicant as he would not be in a position to know which two incidents the complainant was referring to in relation to the 3rd and 4th counts. This is particularly so since the complainant had testified to the effect that there were occasions when she met the applicant at the staircase landing between the 7th and 8th floor and was indecently assaulted by the applicant but there were other occasions when the applicant had simply given her money without indecently assaulting her. Without sufficient particularity, the applicant would not be able to focus his mind on any two particular occasions. It would be difficult for him to put up any defence in relation to the 3rd and 4th counts. 30. Since the applicant might have been unfairly embarrassed or prejudiced in respect of these two counts, we are not satisfied that the convictions in respect of these two counts are not unsafe and unsatisfactory. Second ground of appeal 31. The second ground of appeal alleges that since the offences are of a sexual nature and the complainant's evidence was not corroborated, the jury should be directed on the danger of convicting an accused upon the uncorroborated evidence of the complainant. Counsel argues that nowhere in the Reasons for Verdict did the trial judge make any mention of such danger or the need for caution. Counsel submits that the complainant was of tender age and in view of her background, the danger was indeed real. Counsel relies on the case of HKSAR v. Lee Kam Wing, Criminal Appeal No.353 of 1998, unreported. 32. Before we deal with counsel's submissions, we would point out that in respect of the 5th count, if the evidence of the officer PW3 is believed, there is corroboration of the complainant's evidence. 33. The main reason for the need to exercise great caution before convicting an accused of a sexual offence upon the uncorroborated evidence of the complainant is that allegations of such nature are usually easy to make but difficult to refute. Hence, in the case of a jury trial, the judge should direct the jury on the danger of convicting without corroborative evidence but that the jury can, having warned themselves of such danger, still convict the accused if they are satisfied beyond reasonable doubt that the complainant is telling the truth. This direction will normally appear in the judge's summing up. In the case of a trial without a jury, this would normally appear in his Reasons for Verdict. 34. In Lee Kam Wing, this Court took the view that whether in the Reasons for Verdict the judge had stated that he had given himself the warning is one thing, but whether he had actually given himself that warning is quite another. The absence in the Reasons for Verdict of any reference to the usual warning is not necessarily fatal. A professional judge is expected to have applied the correct law and procedure, unless it is clearly shown that he had not. Even if a trial judge did not mention that he had given himself the warning, this does not mean that he had not in fact done so. The important thing is whether he had indeed exercised caution in approaching the uncorroborative evidence of the complainant. However, in a trial without a jury, the risk of convicting a person of a sexual offence without corroborative evidence should be in the forefront of the judge's mind. This is an issue which should be in his mind during the course of the trial, particularly at the time of deliberating on the evidence and before coming to his conclusion. If so, it is reasonable to expect that he would mention it when he comes to putting his reasons for the verdict into writing. And if he has not referred to such warning, one would begin to wonder whether he had indeed exercised caution and warned himself of this danger. It may then be necessary to examine the entire Reasons for Verdict to see whether he had done so or not. 35. In the present case, it is accepted that the trial judge did not expressly mention that she had warned herself of the danger of convicting the applicant without corroborative evidence. However, in her Reasons for Verdict, the trial judge dealt with all of the evidence in meticulous details. She said at page 24L that she had to consider the very important questions of whether the complainant had framed up the applicant, whether she had told the truth, the whole truth, or part of the truth or nothing true at all. The judge also said that she had kept all these questions in mind during the evidence of the complainant. She had borne firmly in mind that the complainant was only 13 years old and that it would be impracticable to require her to give a detailed description of what happened on any particular day. She had alerted herself to the strength and weaknesses in the evidence of the complainant. 36. We take the view that even though the trial judge had not expressly mentioned that she had given herself the usual warning, she did exercise great care when considering the complainant's evidence. The fact that she had asked herself these questions and borne these questions in mind during the course of the evidence demonstrates that she had indeed exercised extra caution before reaching her verdict. It is our view that what she had done had served the purpose. We do not think the second ground of appeal can succeed. Conclusion on appeal against conviction 37. For the reasons given above, we are of the opinion that the convictions in respect of the 1st, 2nd and 5th counts are well supported by the evidence. There was no confusion on the mind of the complainant or that of the judge. There was also no unfairness, embarrassment or prejudice to the applicant. The trial judge had exercised extra care in dealing with the evidence of the complainant. We can see no merit in the two grounds of appeal in relation to these charges. The convictions on these counts are upheld. 38. However, in respect of the 3rd and 4th counts, we take the view that because there was a breach of the common law principle prohibiting the prosecution from adducing evidence of multiple acts in relation to a charge of a single offence and the applicant might have been unfairly embarrassed or prejudiced in his defence, we do not think the convictions in relation to these two counts are safe or satisfactory. In these circumstances, we grant leave to appeal against conviction, treating the hearing of the application as the hearing of the appeal, allow the appeal in part to the extent that the convictions on the 3rd and 4th counts are quashed. The sentences on these two counts are also set aside. Appeal against sentence 39. Counsel for the applicant submits that the trial judge had paid no or no sufficient regard to the mitigating factors in this case, namely, that the applicant is 77 years old, that all of the offences involved the touching of the complainant over her clothing, that there was no violence involved, that the complainant was a willing participant, that on some occasions she took the initiative to call the applicant, that she had not made any complaint to the police and that there was no physical or mental harm done to her as a result of the offences. 40. In this type of offence, we do not think the consent of the complainant can be a mitigating factor. Nor is the applicant's old age. On the contrary, at least as far as the first two offences are concerned, there is the aggravating factor that the applicant had corrupted the mind of a girl of tender age by paying her after the event. The fact that the complainant had on subsequent occasions approached the applicant for money illustrates that the applicant had indeed corrupted her. The applicant's age, his fatherly figure and his initial friendly gestures towards the complainant would have inspired some confidence in the complainant. He had obviously abused that confidence. We take the view that these are very serious offences. 41. In respect of the 5th count, the evidence shows that it was a very bad case of indecent assault. The acts complained of were particularly revolting on a girl of 12. Although the acts were committed over her clothing, they were acts of a very nasty nature. 42. The applicant had three previous convictions of indecent assault. In 1991, he was given an absolute discharge. In the same year, upon a second conviction, he was sentenced to 1 month imprisonment and ordered to pay $500 costs. In 1998, he committed the offence a third time and was sentenced to 14 days imprisonment. He is of course not to be punished for his record. However, it is clear that having been sentenced to imprisonment on previous occasions for the same type of offence, he had obviously not learned any lesson and had not been deterred. 43. There is no usual tariff for indecent assault. This is because the circumstances of each offence can vary considerably. Bearing in mind the serious nature of the acts in the present case coupled with the corruption of a young mind, we think that a deterrent sentence has to be imposed. Of the three offences of which the applicant was convicted, the third one (i.e. the offence under the 5th count) is clearly more serious. There should be a difference in the sentences for the first two offences and that for the third. The overall culpability of what the applicant had done in the present case would in our view have called for a total sentence of 3 years. We think that in respect of the 1st and 2nd counts, a sentence of 11/2 years imprisonment each and in respect of the 5th count, a sentence of 21/2 years imprisonment would be more appropriate. The first two counts were committed one shortly after the other and the sentences can be made concurrent. The 5th count however was committed at a much later time. Taking into consideration the totality principle and the separation of the three offences in time, we think that the following sentences would be appropriate: 11/2 years each for the 1st and 2nd counts, both sentences to run concurrently and 21/2 years for the 5th count, one year of such sentence to run concurrently with the sentences on the first two counts. The total sentence would be 3 years. 44. For these reasons, we grant leave to appeal against sentence, we treat the hearing of the application as the appeal and we allow the appeal to the extent as indicated and impose those sentences.
Representation: Mr Wong Po Wing assigned by DLA for the Applicant Mr Patrick Cheung, SADPP & Ms Vivian Chan, GC for DPP |
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