HKSAR v. Cheng Hak Pan
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CACC000077/1997 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL 1997, No.77
------------------------------- Coram: Hon. Chan, C.J., High Court, Power, V.-P. & Stuart-Moore, J.A. Date of Hearing: 3 April 1998 Date of Delivery of Judgment: 2 June 1998 ---------------------- J U D G M E N T ---------------------- Power, V.-P. (giving the judgment of the Court): 1. The applicant was convicted after trial before Gall J. and a jury on two counts of incest and sentenced to eight years on the first and five years on the second, the sentences were ordered to be concurrent. He now seeks leave to appeal against those convictions. 2. The first count alleged incest with his daughter Cheng Wing-ying on a day unknown between 8th June 1986 and 8th June 1989. The second count alleged incest on a day unknown in November or December 1995. In the second offence, it was alleged that the incest took place at Room 808, Hin Tak House, Hin Keng Estate, Shatin. 3. It was the daughter's evidence that the incest charged in the first count took place in the building in To Kwa Wan where her father worked cutting and polishing stones. She said that the offences occurred when other members of the family were absent. 4. The applicant's first complaint is that the judge allowed the prosecution to amend the indictment in the course of the trial. The particulars of both counts were amended. The date of the first count was amended from "a day unknown in 1989" to "a day unknown between the 8th day of June, 1986 and the 8th day of June, 1989". The second count was amended from "a day unknown in November 1995" to "a day unknown in November or December 1995". This brought the counts into line with the evidence that had been called. The applicant was gravely affected by the amendment to the first count as he could not have been convicted on the charge as it originally stood as there was clear evidence that the family had left the To Kwa Wan premises long before 1989. However this may be, the fact of the matter was that the indictment was amended to bring it to line with the evidence and no objection can be properly taken to it on that ground. 5. The second matter argued by the applicant is that the conviction is contrary to the medical evidence which was that the victim's hymen was intact. The judge directed the jury that full penetration by the male organ was not necessary and referred them to the evidence of Dr. Shum, a medical expert called by the prosecution, which left open the possibility that penetration to some degree had occurred even though the vagina was intact. There is nothing in this submission. 6. The applicant next complains of the discrepancies between the statement which the victim gave to the police and her testimony. He complains also in this regard that counsel did not cross-examine in relation to those discrepancies. He has listed six such discrepancies but none were of any significant weight. There is also nothing in this ground. 7. The matters dealt with above were the original grounds attached to his Notice of Appeal. He later filed a further five written grounds. He complains firstly of the following direction by the judge:
8. He submits that the judge failed to tell the jury that they must pay attention to problems found in the contents of the evidence and wrongly directed them to look only to demeanour in court. This is not so. The judge was doing no more than telling the jury how they could properly evaluate the evidence by considering the demeanour of the witness. His observations were proper ones and he clearly left it to the jury to make up their own minds about credibility. 9. In his second additional ground, he complains that the judge "gave many pretexts and he was in favour of the witness' evidence". He submits that the judge led the jury to believe that the witness had not fabricated when in fact her evidence was untruthful. There is no merit in this contention. The comments of the trial judge were perfectly proper ones which left the jury, in the outcome, to make up their own minds as to whether or not the victim was truthful. 10. In his third ground, he returns to the medical evidence submitting that, as two doctors said that the victim had an intact hymen and as the evidence of the victim was that, although only two incidents had been charged, he had intercourse with her over 20 times, her evidence must be suspect as it is unbelievable that the hymen would have remained intact if it had been true. As we have already indicated, this was a matter for the jury and it was properly left to them to resolve. 11. The applicant next complains that the only evidence against him was that of the victim who had not reported the matter until nine years later and then only to a classmate and not to her mother. This is so but these matters were essentially jury issues and they were left for the jury's decision. 12. The applicant finally complained that counsel
13. At the applicant's first appearance before the Court of Appeal, he expanded upon these matters saying that his lawyer had failed to follow his instructions as set out hereunder:
14. Mr. Mackay and Mr. Wilson Chan filed a joint affidavit and Mr. David Bryan of the Legal Aid Department also filed an affidavit. Mr. Bryan makes it clear in his affidavit that the matters raised in Item 3 were fully investigated. The matter raised in Item 5 was, given the lack of precision as to a specific year in the victim's evidence, of no real significance. 15. The matter of significance raised in these fresh complaints was a suggestion that the applicant had given instructions that he had beaten up the victim since she was very young and this had created a bad relationship between them and that counsel had never cross-examined in that regard. Counsel agreed that they received oral instructions from the applicant but denied that they were ever instructed by the applicant that he had beaten up the victim since she was very young, and that she had had a lot of boyfriends when in Secondary II and Secondary III. Counsel in their affidavit said that they were instructed of a specific incident which occurred when the victim was 10 or 11 years old when the victim had been beaten after having appended false signatures to her school report. Mr. Bryan said that the applicant did not give instructions that he had beaten up the victim since she was very young, but that his instructions were that the relationship between himself and his daughter was good before she attained Form II but that when she was studying in Form III the relationship deteriorated and he then beat her from time to time. Mr. Bryan produced the final written instructions from the applicant which were signed by him. They state:
16. The applicant and the deponents gave evidence before the Court of Appeal. His evidence as to beating his daughter was as follows:
17. He was cross-examined as follows:
Vice-President:
Mr. Reading:
18. A statement which the applicant gave to Legal Aid in his final instructions seems to be in broad accord with what he says his instructions were except that it does not mention the severe beating which he said he gave after she had forged signatures. His complaint now seems to be that the beatings and the bad relationship that arose out of them were not mentioned in cross-examination. 19. In cross-examination, the following passages occurred:
20. Later in the cross-examination the following passages occurred:
21. Clearly the matters were raised in cross-examination. The victim seemed at first to be suggesting that no beatings had ever occurred but then agreed that they might have. We are satisfied there was no failure by counsel properly to put the defence. 22. There is nothing in any of the matters raised by the applicant. The application for leave is dismissed.
Representation: Mr. John Reading (D.P.P.) for the Respondent. Applicant in person. |