R. v. Ng Wing Fai

CACC000705/1995

1995, No.705
(Criminal)

IN THE COURT OF APPEAL

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Coram : Hon Power, V.-P., Bokhary, J.A., and Sears, J. in Court

Date of hearing : 7 May 1995

Date of judgment : 7 May 1995

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J U D G M E N T

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Sears, J. (Giving the judgment of the Court) :

1. On October, 30th 1995, the applicant was convicted of one charge of indecent assault. He had been tried on three charges of indecent assault, all relating to his young daughter, aged 11.

2. The only evidence against the applicant was that of his daughter. She was called and gave evidence regarding an indecent assault in September 1993 when her father had touched her and fondled her breasts. She said she disliked it very much. She was then asked questions by the prosecutor with regard to the other two charges, one of which had occurred in May and the other in October 1994. However, when she was asked questions she was reluctant to answer and gave no details but merely general evidence with regard to her father behaving in a similar manner. The applicant did not give evidence. However, another daughter was called to support her father's account.

3. The general thrust of the cross-examination in the court below went to this young girl being a liar and mischievous on several occasions and basically making up a case against her father in order to assist the mother. There had been matrimonial problems and it was suggested that she was concocting a case against the father in order to assist the mother.

4. Deputy Judge Tallentire had the benefit of listening to and watching the witness giving evidence. In his Reasons for Verdict, the Judge carefully analysed the evidence of the daughter. He recognised that there was no corroboration, that the incident had occurred in September 1993 and had not been mentioned at all for over a year. However, he said :

"I was impressed by PW1 as a witness. Mr. So (who was then the Defence Counsel) in attacking her character put to her that she told lies and she readily agreed. ..... These concessions coupled with her demeanour marked her as perhaps a naughty girl but also as an open and honest girl prepared to accept her faults. She was unshaken as to her account of the events surrounding the first charge, despite being cross-examined. I found her to be a bright young girl, largely self possessed and intellectually sound. Further I found that in speaking of the events and the charges she was an entirely honest and accurate witness. ..... After careful consideration I believed and accepted entirely her evidence in relation to the matter. I have rarely seen a better witness of such tender years, I found her to be credible and accurate."

5. This Court, of course, does not have the benefit of listening to and watching the witness giving evidence. Nothing has been pointed out by Ms Wong who has put forward her submissions very ably, to justify us in any way in interfering with his assessment of her. No matter has been pointed out to us which would justify us in taking a different view from that of the trial Judge.

6. In the grounds of appeal, Ms Wong also submitted that the verdicts were inconsistent in that the applicant was convicted on the 1st Charge but acquitted on the other two. In our judgment, there is nothing in this complaint. The trial Judge, of course, had to consider each charge separately which he did. He examined the evidence on each charge separately. Insofar as Charges 2 and 3 were concerned, the evidence was of such a general nature as would not justify him in convicting and therefore the applicant was acquitted of those two charges. We can find nothing which in any way flaws the decision, nor do we consider it unsafe nor unsatisfactory. The application is refused.

7. There is also an application for leave to appeal against sentence which was one of 15 months imprisonment. The Judge said :

"The offence itself in terms of the level of indecency was at the lower end of the scale. I have to and do in fact sentence this as an isolated incident committed by a father of essentially good character. ..... It involved the fundamental betrayal of the sacred duty of a parent to protect and cherish his off-spring."

This was a child of very tender years and the sentence, in our judgment, reflected the criminality which the applicant bore in indecently assaulting his daughter. We do not consider it manifestly excessive, nor wrong in principle. The application is dismissed.

Representation:

Mr John Reading, SACP (Crown Prosecutor), for the Respondent

Ms Rosaline W.Y. Wong, inst'd by M/s K.C. Man & Co., for the Applicant