HKSAR v. Lee Lo

[English Translation - 英譯本]
CACC 241/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 241 OF 2010

(ON APPEAL FROM DCCC 146 OF 2010)

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Before: Hon Cheung JA, Yuen JA and Barnes J in Court

Date of Hearing: 21 June 2011

Date of Judgment: 21 June 2011

Date of Reasons for Judgment: 6 July 2011

REASONS FOR JUDGMENT

Barnes J (giving the reasons for judgment of the Court):

1.The Applicant was charged with a single charge of unlawful sexual intercourse with a girl under the age of 16 years, contrary to section 124(1) of the Crimes Ordinance (Cap. 200).  He pleaded not guilty to the charge and was convicted after trial by Judge Poon in the District Court.  Judge Poon sentenced the Applicant to four years’ imprisonment.  The Applicant sought leave to appeal against conviction and sentence.

2.At the conclusion of the hearing, we dismissed the application for leave to appeal.  Here are our reasons for judgment.

Prosecution Case

3.In the early evening of 17^th October 2009, Girl X, who was then 13, was accosted by a man when she was alone in a park.  Later, Girl X went with the man to his home, where the man forcibly had sex with her.  Afterwards, the man gave $300 to Girl X, who, despite her refusal to accept it, eventually took the money and left.

4.When Girl X and the man were in the park, he got Girl X’s mobile phone number by calling his own mobile phone using Girl X’s mobile phone.  He subsequently phoned Girl X.

5.Thereafter, Girl X, whilst going shopping with her friend Z, suddenly whispered to Z that she had traded her body for the money she had.   Girl X explained to Z that in a park, she met a man who, upon learning that she needed money, offered to pay her if she allowed him to stroke her body.  Girl X agreed to it.  After Girl X had followed the man to his home, he not only stroked Girl X, but also forcibly had sex with Girl X until he ejaculated.  The man gave $300 to Girl X, who left after taking the money.

6.As Girl X was afraid of getting pregnant, Z obtained a pregnancy tester for Girl X.  When they were subsequently in a washroom where Girl X was about to take the pregnancy test, their friend, Y, happened to see it.  When pressed by Y for the reason, Girl X cried and became very emotional.   Girl X said that on 17^th October, in a park, she had come to know a man who later dragged her to his flat and raped her.

7.On 22^nd October 2009, the man phone Girl X, asking to see her.  Girl X, Y and Z brought with them cleaning agent and cutters to the downstairs of where the man lived, intending to see the man and carry out a revenge plan.

8.They got scared during the wait.  Someone texted others to ask them to come for support.  In the end, the man did not show up and they parted.

9.Girl X’s school subsequently learnt of this and reported it to the police.  Girl X was sent to a hospital for examination.  She provided the police with the mobile phone number of the man in question and gave the police a description of the man’s appearance.

10.On 23^rd October 2009, Girl X was asked by the police to take them to find the flat concerned.  Girl X brought the police to Rooms 3 and 4, 1^st Floor, No. 127 Yee Kuk Street.  She hesitated briefly before pointing out Room 3 to the police.

11.On the following day, police officers went to Room 3, 1^st Floor, No. 127 Yee Kuk Street and knocked on the door.  An old couple whose appearance did not match Girl X’s description answered the door.  The police officers then went to Room 4 and knocked on the door, which was answered by the Applicant, whose appearance was consistent with the description given by Girl X.  Thus, the police made inquiries of the Applicant.  The police officer asked the Applicant, “Hey, what happened to a girl a few days ago?”  The Applicant responded at the time, “I did not rape her, Ah sir, I did not rape her.”  The police officer immediately arrested and cautioned the Applicant.  The police officer arrested the Applicant for rape and told the Applicant Girl X’s name as well as the date of offence.  Under caution, the Applicant said, “I did not rape her. I came across the girl in a park when I was on my way home.  She told me she had no money and wanted to go to my place to wait until dawn when she would go home after her father had gone to work.  I then brought her (to my) place so that she would not need to stay in the street until dawn.”

12.The facts of the case disclosed that the Applicant occupied the said Room 4, which was rented by him.  The mobile phone number provided by the Applicant to the landlord of the flat was the same as that of the man in question as supplied by Girl X to the police.

13.Girl X was unable to identify the man in question in a subsequent identification parade held by the police.  The forensic pathologist’s report stated that there were no recent injuries to Girl X’s vulva, vagina or cervix and that there were no recent injuries to her hymen.

Defence Case

14.The Applicant did not dispute voluntariness or accuracy of what he said under caution.  He elected not to give evidence or call any witnesses.

Grounds of appeal (against conviction)

15.Mr. Khattak, Counsel for the Applicant, put forward four grounds of appeal against conviction:

(1) In evidence, Girl X said that she was uncertain whether she had had sex and that she was not sure if she was still a virgin.  It was unsafe and unsatisfactory to convict the Applicant on this basis.

(2) The trial judge did not deal with the parts where the evidence of Girl X, Z and Y differed substantially.  Girl X was not an honest witness.  The court should not have relied on her evidence to convict the Applicant.

(3) Girl X clearly could not identify the Applicant in the identification parade as the man in question.  The Prosecution failed to prove beyond reasonable doubt that the Applicant was the man in question.

(4) Girl X and Y looked relaxed and smiled when giving evidence.  In particular, Girl X frequently giggled and did not take the matter seriously. The trial judge, however, failed to properly consider their demeanour.

Ground of Appeal (1)

16.Mr. Khattak, citing the transcript of the evidence, submitted that Girl X was not sure whether she was still a virgin or whether she had had sex.  The contact between the man and her took place with the lights off and senses were all that could be relied upon.  Further, the forensic pathologist’s report contained various parts favourable to the Applicant in that it showed the absence of any superficial injuries to Girl X’s body, of any mark of recent tears at her private parts and of any sign of recent sexual intercourse.

Discussion

17.According to the evidence, Girl X said that she had sat on the bed upon arrival at the man’s flat.  The man pushed her onto the bed, grabbed both of her hands with one of his hand, pressed his legs on Girl X’s legs, removed her top, shorts as well as knickers and had sex with her.  Girl X said that sexual intercourse referred to the penetration into a woman’s private parts with a man’s private parts.  She stated that she had a nasty feeling at her private parts at that time and that she had seen the man’s private parts.  According to Girl X, the sexual intercourse lasted for about 20 to 30 minutes. The man inserted his private parts into her private parts and ejaculated, but she could not see the colour of the semen due to the lack of light.

18.Mr. Khattak put it to Girl X in cross-examination that she could not possibly see what the man had done in the dark.  Girl X agreed that the lights were off then, but stated that something believed to be semen came out from her vagina afterwards.  She admitted that she had never seen semen prior to that.  Mr. Khattak put it to her that she only felt something enter her private parts, but she was not sure what that was, with which Girl X agreed.  She also agreed that the man had put his fingers into her private parts.

19.Towards the end of cross-examination, Mr. Khattak put it to Girl X that she could not be sure whether she was still a virgin and whether she had formally had sex.  Girl X initially said that she had no idea, but later agreed.

20.On whether Girl X had sex with the man, the trial judge found that:

“42. … As to whether it further developed into sex, I find that X fully understands what sexual intercourse is. She gave evidence that the defendant’s private parts had penetrated into her private parts, that she had seen the defendant’s private parts and that she had seen semen coming out from her private parts afterwards. The pregnancy test she subsequently took demonstrated her then belief that sexual intercourse had actually taken place. In spite of X’s acknowledgment at some stage under cross-examination that she was unsure whether what had entered her private parts were the defendant’s private parts, I observed that by that time, X had lost her patience with continuing cross-examination. This answer is insufficient to overturn her previous evidence, much less capable of casting doubt upon her evidence.”

21.The relevant questions and answers during the trial are as follows:

“Q: So (we) have heard so much evidence (and) read the medical report. Is it true that you are uncertain to this day whether you have formally had sex (and) cannot be sure whether you are still a virgin?

A: Pardon me. Can’t hear (you) clearly.

Q: (We) have heard so much evidence and read so many medical reports. Do (you) agree that you are uncertain to this day whether you are a virgin, a virgin who has not formally had sex?

A: No idea.

Q: Does that mean (you) are not sure?

A: Yes.”  [Emphasis added by this court.]

22.Mr. Khattak asked Girl X whether she could be sure she was a virgin who “had not formally had sex”. What did “formally having sex” mean?  The question itself was not clear.

23.Mr. Khattak cross-examined the witness for the whole afternoon.  As observed by the trial judge, who had the opportunity to hear and see the witness, Girl X had lost patience with continuing cross-examination.  We could not see any reason to interfere with Judge Poon’s findings.  This ground of appeal failed.

Ground of Appeal (2)

24.On this ground of appeal, Mr. Khattak, citing the contents of the transcript, submitted that as shown by the evidence, after the offence, Girl X, bringing along with her Y, Z and some people with triad background, returned to the flat where the offence had taken place to find the man; however, Girl X denied any revenge plan.  Y revealed that Girl X and she had gone together to carry out a planned revenge, bringing along cutters and cleaning agent.  Girl X’s evidence and the recent complaint she had made to Y both indicated that Girl X went with a male stranger to his home unwillingly or half willingly. Nonetheless, according to Z’s evidence, Girl X told Z that she willingly sold her body for money.  Girl X responded to all the allegations about her having said so to Z by saying she “could not recall”.

Discussion

25.The trial judge was fully aware of the differences in the evidence of Girl X, Y and Z.  He briefly stated such differences when setting out the facts.  In reaching his verdict, Judge Poon found Y and Z to be honest and reliable witnesses and that they remained unshaken under cross-examination.  Specifically, when asked about what happened on the day they went to seek revenge on the man, Y revealed all the details without the slightest sign of hiding anything.

26.Whilst accepting that Girl X was hiding something with respect to her evidence on whether she had consented to being touched by the man in exchange for money, Judge Poon did not find Girl X to be untruthful in aspects other than this.  Given the context, Judge Poon accepted Girl X’s evidence as credible in relation to what happened between Girl X and the man on the material day, except whether or not she consented to being touched by the man in exchange for money.

27.Judge Poon was the judge of facts.  He had the opportunity to hear and see all the witnesses.  He was perfectly entitled to accept parts of the evidence of a particular witness while rejecting other parts of his/her evidence.  We could see no reason to interfere with Judge Poon’s findings of fact.  This ground of appeal failed.

Ground of Appeal (3)

28.Mr. Khattak submitted that Girl X clearly could not identify the Applicant in the identification parade as the man in question.  Girl X said that the man in question had on his arm a conspicuous red scar and that such person was not in the line-up.  Mr. Khattak further submitted that Girl X and Y had pointed out to the police that the crime scene was at 125 Yee Kuk Street.  The police officer’s evidence was that Girl X had pointed out 1^st Floor, 127 Yee Kuk Street as the crime scene and, at one stage, pointed out Room 3.  Police officers later made inquiries at Room 3 and found a 60-odd-year-old male occupant who did not match the description Girl X gave.  They then proceeded to knock on another door to make inquiries.  The Applicant was precisely the occupant of Room 4.  Mr. Khattak complained about the police officers’ failure to make inquiries at No. 125.

29.In respect of the phone number referred to in the present case, Mr. Khattak submitted that the landlord merely said that the Applicant had provided the phone number for contact purpose, but there was no evidence as to who the user of that number was and whether the Applicant was the only occupant of the room.

30.For the reasons set out above, Mr. Khattak submitted that the Prosecution had failed to prove beyond reasonable doubt that the Applicant was the man who had allegedly violated Girl X.

Discussion

31.The evidence showed that No. 125 and No. 127 shared the same entrance.  In reaching his findings, the judge took the view that there was nothing surprising or suspicious about the two girls’ mixing up the house numbers and addresses, thus saying it was No. 125 when in fact, it was No. 127.

32.This we agreed with Judge Poon.  There was evidence that Girl X brought the police to the units on the first floor of No. 127 but she was somewhat hesitant as to which room it was.  She hesitated before saying it was No. 3.  When the police officer went there for investigation on the following day, he found that the door was answered by an old couple of whom the man had an appearance that was inconsistent with the description Girl X gave.  He then proceeded to Room 4 and knocked on the door, which was answered by the Applicant.  What was important was that the Applicant’s appearance matched the description given by Girl X.

33.The police officer asked the Applicant during inquiries, “Hey, what happened to a girl a few days ago?”  The Applicant immediately replied, “I did not rape her, Ah sir, I did not rape her.”  After the police officer had arrested and cautioned the Applicant, stating Girl X’s name and the date of offence, the Applicant said, “I did not rape her.  I came across the girl in a park when I was on my way home.  She told me she had no money and wanted to go to my place to wait until dawn when she would go home after her father had gone to work.  I then brought her (to my) place so that she would not need to stay in the street until dawn.”  It was Girl X’s evidence that on the day of offence, a man brought her from the park to his home.  That being the case, the Applicant clearly was the man who took her to his home although Girl X did not directly point out the Applicant as the man who had brought her to his home.

34.A more compelling piece of evidence was that the phone number given by the Applicant to the landlord for contact purpose was precisely the man’s phone number provided by Girl X to the police.  Judge Poon made the following findings in this regard:

“40. In respect of whether the defendant was the man, I take the view that despite the absence of direct identification by X of the defendant as the man who had had sex with her, the defendant admitted under caution that he had brought X to his home. Notwithstanding the absence of any evidence to prove that the defendant knew X’s name, the detective police constable stated the date of offence when administering the caution. This proved that the defendant had admitted having brought the girl to his home on the material day. Additionally, the defendant lived in the said unit and the mobile phone number he gave to the landlord for contact purpose was consistent with the mobile phone number the man used to contact X. All such evidence established beyond reasonable doubt that the defendant was the man who took X to his home on the material day.”

35.This ground of appeal failed.

Ground of Appeal (4)

36.Mr. Khattak submitted that Girl X and Y looked relaxed and smiled when giving evidence.  In particular, Girl X did not take the matter seriously.  The trial judge, however, failed to properly consider her demeanour.

Discussion

37.We had read the relevant transcript.  Girl X did smile when giving evidence.  She also agreed that she looked relaxed.  Even so, there were also occasions when Girl X was impatient. The demeanour of a witness in giving evidence is simply something the trial judge had to note but it is not the main issue.  Whether one’s evidence is reliable and credible is not merely determined by his demeanour.

38.Mr. Khattak submitted that Girl X was supposed to give evidence in a very solemn manner in court.  We noted that Girl X actually did not give her evidence in court; rather, she testified in another room via CCTV link.  Under cross-examination, Girl X smiled, her manner relaxed.  Be that as it may, during the video recorded interviews with the police, she not only looked embarrassed when she described what had happened, but was in tears at some stage.  After all, Girl X and Y were children who had just reached 14.  When considering their demeanour in giving evidence, regard had to be given to their age and life experience.  This ground of appeal failed.

Grounds of Appeal (against sentence)

39.It was submitted by Mr. Khattak that the 4 years’ imprisonment was excessive.  The special mitigating circumstances in the present case, as he pointed out, were that Girl X was hanging around by herself in the park and she willingly sold her body for money.  The Applicant should not have been sentenced to 4 years’ imprisonment even if he was convicted of having unlawful sexual intercourse with a girl under the age of 16 years.  Mr. Khattak cited the following three cases for the court to consider:

(1) HKSAR v Chan Kwong Pui [2003] 4 HKC 208, where a 34-year-old man had sex with a girl under 16 and was sentenced to 16 months’ imprisonment following his guilty plea.

(2) HKSAR v Lai Yip Sing [2001] 2 HKLRD 601, where a 24-year-old man met a 14-year-old girl via an online phone chat line and had sex with her on two occasions.  The total sentence was one of 3 months’ imprisonment.

(3) HKSAR v Lau Chi Cheung [2008] 4 HKLRD 432, where a 22-year-old university student met on the internet a 12-year-old girl with whom he had sex.  He received a sentence of 13 months’ imprisonment.

Reasons for sentence

40.In sentencing, the trial judge had considered the following:

“13. Unlawful sexual intercourse with a girl under the age of 16 years is a serious offence that carries a maximum penalty of 5 years’ imprisonment. As the Court of Appeal clearly stated in Chan Kwong Pui [1], the court had no sentencing guideline for cases of this type and the creation of this offence was to protect underage girls; therefore the age of the girl was an important consideration in sentencing. The age gap between a defendant and a victim was also an important consideration[2].

14. At the time of the incident, X was only 13 years and 7 months old whilst the defendant was 49. X is within the lower end of the age category for this offence. Had she been under the age of 13, the defendant would have faced a graver offence carrying a maximum sentence of life imprisonment. The age gap of 35 years in the present case is relatively large among similar cases. This is very serious.

15. As previously stated, X did cry and tell the defendant to stop during the sexual intercourse, but was still ignored by the defendant. This was close to rape. Had the defendant used violence, it would have been an aggravating feature. The absence of violence, on the other hand, would not mitigate the severity of the case. In Chung Yi Hung[3], the Court of Appeal, upon considering the facts of that case, took the view that the victim was extremely unwilling at the time of the offence and adopted a starting point of 5 years’ imprisonment. Although the offences in that case concerned the more serious unlawful sexual intercourse with a girl under the age of 13 years, the Court of Appeal had clearly established that this was an important consideration.

16. I observed X’s appearance and demeanour during the trial and I do not think she looked older than 16. She spoke in a childish manner. It was impossible not to notice that she was far younger than 16 after a conversation with her. I do not agree with Mr. Khattak’s comments on X’s appearance; nor do I accept the defendant’s version that he thought X was 17 or 18.

17. The fact that money was involved, in my view, not only failed to lessen the defendant’s culpability, but made the case more serious[4]. I do not believe that X was to blame in any way for this matter. She was only a pliable 13-year-old girl. It is highly irresponsible for the 50-year-old defendant, a father himself, to say that the girl was to blame.

18. This incident has caused psychological trauma to X, affecting her future development. The defendant’s failure to use any condom caused her to worry that she might become pregnant and the anxiety arising therefrom is conceivable. The fact that the defendant showed no remorse after the incident and even asked to see X was nothing less than shameful. The defendant, with a view to smearing X and without having any regard for her feelings, gave instructions to his counsel with respect to the cross-examination of X during the trial. This can be said to be rubbing salt into her wounds.

19. For the factors given above, I find that this is an extremely serious case. Only a substantial period of incarceration can reflect its seriousness and exert a deterrent effect on the defendant and members of the public.

20. The appropriate starting point, in my view, is one of 4 years’ imprisonment.  I do not see any mitigating factors.  The defendant is sentenced to 4 years’ imprisonment.”

Discussion

41.As pointed out by the trial judge, the Court of Appeal stated in Chan Kwong Pui that there was no sentencing guideline for cases of this type and that this offence was created to protect underage girls; therefore, the age of the girl was an important sentencing factor.  The age gap between the Applicant and Girl X in the present case was also an important consideration.  There was a huge gap in age in that at the time of the incident, Girl X was only 13 years and 7 months old whereas the Applicant was 49.

42.While Mr. Khattak cited the facts and the sentences of the three cases above, we were of the view that the facts of Chung Yui Hung were more similar to those of the present case.  In Chung Yui Hung, a teacher met a 12-year-old student through the internet.  On the day of the offence, the teacher visited the girl’s home and had sex with her, the circumstances of which were extremely close to rape.  The Court of Appeal considered that a starting point of 5 years’ imprisonment was appropriate.

43.In the light of the facts of the present case, 4 years’ imprisonment was by no means manifestly excessive.

44.We would like to mention in passing that the Applicant initially sought a reduction in sentence by reason of his health condition.  This ground of appeal was withdrawn by the Applicant in the course of this application.

45.For the reasons set out above, we dismissed the application for leave to appeal.

Agnes Chan, Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent.

S. K. Khattak, instructed by May Cheng & Co., assigned by Legal Aid Department, for the Applicant.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.