HKSAR v. Cks

[English Translation – 英譯本]
CACC 472/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 472 OF 2010

(ON APPEAL FROM DCCC 480 OF 2010)

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BETWEEN

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Coram: Hon Yuen JA, Lam J and Barnes J in Court

Date of Hearing: 7 December 2011

Date of Judgment: 13 January 2012

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J U D G M E N T

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Hon Barnes J (giving the judgment of the Court):

1.The applicant was charged with two counts of common assault, contrary to common law and punishable under section 40 of the Offences against the Person Ordinance, Cap. 212 of the Laws of Hong Kong (Charges 1 and 2), and four counts of indecent assault, contrary to sections 122(1) and 153P of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong.

2.The applicant pleaded not guilty but was convicted on all the charges after trial by Deputy District Judge Gary Lam (hereinafter referred to as “the Deputy Judge”) and was sentenced to imprisonment for a total term of three years and two weeks.  The applicant now applies for leave to appeal his convictions.

Prosecution case

3.The undisputed facts were that the applicant and witness Y were husband and wife.  They married each other in Hong Kong in 1998.  They were both university graduates. Since 1992 Y had worked as a registered nurse at a public hospital and was required to work in shifts.  The applicant and Y have a daughter X, who is their only child.  X was born in October 2000.  The applicant, Y and X resided together at a unit in Kowloon City.  In October 2009, Y went away from home.

4.The prosecution case was that the applicant assaulted Y and indecently assaulted X.

5.Y’s evidence was that the applicant had been out of work since May 2000.  After their daughter X was born, the applicant stayed at home to take care of X on a full-time basis.  Y was the sole breadwinner of the family.  Starting from 2006, the applicant behaved strangely.  He would remain seated in front of the computer for a whole day and incessantly press the keys.  He would pass several days in a row without sleeping, eating, drinking or bathing.  His emotions would swing from one extreme to the other.  Y repeatedly urged him to seek medical treatment but he refused.

6.One day in March 2008, Y again urged the applicant to visit a doctor but was suddenly slapped by him.  She asked him why he did that, and he did not answer.  He just sat in front of the computer as if nothing had happened.  On that occasion, Y considered the matter trivial and did not call the police (Charge 1).

7.About 4 a.m. on 13 October 2009, the applicant woke Y up by slapping her on the face.  He wanted to make love to her.  She did not accede because she was too tired.  Later, she went to work.  She returned home around 4 p.m. the same day.  When she was in the kitchen, about to prepare dinner, the applicant kept railing at her and pushed her onto the floor. When Y tried to get up, he pushed her down again and shouted out abuse in an insensible manner (Charge 2).

8.The applicant threw Y’s handbags and shoes out of the flat.  When Y went out to pick them up,the applicant locked the metal entrance gate from the inside. Being prevented from entering the flat, Y could not but return to the hospital where she worked.  From that day onwards, she did not live in that flat any more.

9.According to Y, X had slept with the applicant on the same bed since childhood, until one to two years ago when X began to sleep on a foldaway bed.  Y said X did not like to sleep alone.  After the relationship between Y and the applicant turned sour, Y would sometimes deliberately have X sleep between her and the applicant.

10.On 14 October 2009, Y instructed solicitors to file a petition for divorce.  Because of the petition, the court had to deal with the custody of X, and one Mr. Lau, a social worker of the Social Welfare Department, was directed by the court to prepare a report on the issue.  On 17 February 2010, when X alone was being interviewed by Mr. Lau, she for the first time disclosed that the applicant had on many occasions “rubbed” and “kneaded” her chest and private parts.  Mr. Lau informed the police.  The police conducted video-recorded interviews with X on 17 and 18 February and 23 April 2010 respectively.

11.X’s evidence was that after Y left home, the applicant molested her when he slept with her.  The pattern of the molestation was that he rubbed her breasts with his hand by drawing circles like the figure 8 on her skin, and then he stroked her private parts in circular movements with his hand outside her underpants, and he also stroked her buttocks with his hand in circular movements similar to the figure 8.  At first X alleged that the applicant molested her every day; then she said he did that about six days a week; and still later she said he sometimes touched her and sometimes he did not but most of the times he did. As regards at what time of the day these incidents happened, X said they happened between 9.30 p.m. and 10 p.m. when she went to bed to sleep after washing herself.

12.X testified that there was a lapse of four months from the time when her mother Y went away from home to the time when she told Mr. Lau that the applicant had molested her.  She agreed with the estimate that she had been molested more than 90 times (line N on page 230 of the appeal bundle).  During the first video-recorded interview, she said that on every occasion she was wearing a full set of pyjamas and the applicant put his hand into her pyjama jacket and touched her breasts directly.  However, during the video-recorded interview conducted in April 2010, X for the first time said that sometimes she pulled up her pyjama jacket because she felt “hot” or “stuffy”, and that the applicant told her to pull her pyjama jacket away from her body ——  sometimes he even did that himself ——   so that her upper body was naked and then touched her breasts.

13.As X was able to give specific descriptions of the first assault (Charge 3), the last assault (Charge 6) and the assaults which occurred on two nights in a hotel when she and the applicant went to Qing Yuan together on a help-the-poor trip (Charges 4 and 5), the applicant was in the end charged with four counts of indecent assault.

14.The applicant was arrested.  Under caution, he denied all the charges.

Defence case

15.The applicant elected to give evidence.

16.He explained that as he had completed some work under a contract and Y was pregnant, he and Y jointly decided that he should stay at home to take care of their daughter X instead of going to work.  He said it was not the case that he failed to secure renewal of the contract by reason of unsatisfactory performance.

17.The applicant said that he looked after X with comprehensive care, personally taking her to school to attend classes, picking her up at school when classes were over, taking her to extra-curricular activities and picking her up when the activities had finished.  He said he loved X and would never sexually abuse her.  He denied having assaulted Y or thrown her belongings out of the flat.  He said Y simply left without saying anything and it was only some time later, when he indirectly learned that she was still going to work, that he realized she had not gone missing.  He admitted that he had changed the door lock, but he did that merely because some construction work was being carried out near his flat.  He maintained that he had never committed the offences with which he was charged.  He believed that X fabricated such serious allegations against him only because she had been misled by someone into doing so.

Findings made by the Deputy Judge

18.In his Reasons for Verdict, the Deputy Judge set out his assessment and analysis of the evidence as follows:

“Assessment and analysis of the evidence

28. The prosecution bears the burden of proving beyond reasonable doubt each and every element of each of the offences charged.  I bear in mind that the evidence given by each witness in respect of each charge must be separately considered.  I have given myself directions as to the elements of the offence of indecent assault in accordance with the principles laid down in R v Court [1989] AC 28.

29. The defendant has a clear record, and I have given myself appropriate directions as to his good character.  I understand that the evidence in this case is essentially in a state of “one against one”.  I also bear in mind that allegations concerning indecent assault are easy to make up but difficult to refute.

30. I have carefully considered the evidence given by girl X and Madam Y and have observed their demeanour during the video-recorded interviews and when they were testifying at trial.  I find that they are frank, veracious and reliable witnesses.  I am satisfied that they have told the court the facts and the truth.

31. On Charges 1 and 2, Ms. Yew, counsel for the defence, criticized Madam Y for being biased against the defendant, and submitted that in these incidents she harboured ulterior motives.  Discharging the functions of a juror, I take the view that [Madam] Y’s evidence is reasonable, logical and by no means exaggerated.  Although the husband and wife relationship between Madam Y and the defendant has clearly broken down, I do not see why Madam Y had to make up the allegations in order to strengthen her case in the proceedings for divorce and child custody.  She is a nurse by profession.  Indeed, as far as the custody of X, who is soon approaching puberty, is concerned, the fact that Madam Y is a nurse by profession, has a stable source of income, is the mainstay of the family and is a female, does prima facie give her an advantage over the defendant.  At trial, in response to my question of whether she had thought of calling the police on 13 October 2009, Madam Y said, ‘No, because it was not the first time.  I did not think that the police could help me.  I just thought that the defendant had to see a doctor.’  While Madam Y is not a psychiatric expert, she certainly possesses more medical knowledge than an ordinary housewife does (even more than I do).  I endorse her observation and the way she dealt with the incident.

32. As for Charges 3 to 6, Ms. Yew made extensive adverse comments about the hidden motives of girl X and Madam Y.  In brief, Ms. Yew submitted that girl X, abetted by Madam Y and in hopes of leading a more pleasant life and enjoying more ease and comfort, fabricated the stories to frame up the defendant.  The interview of girl X alone by the social worker Lau, in which she for the first time made the relevant complaint, was (Ms. Yew said) ‘a meticulously designed arrangement’. Ms. Yew was undoubtedly performing her duty as a responsible counsel, but I think her proposition is grossly exaggerating the self-interests (if any) of girl X and Madam Y and their bias (if any) against the defendant, and is in lack of factual support.  Discharging the functions of a juror, I consider that, however desirous girl X might be of living with her mother, it would suffice for her to express her wish to the social worker Lau (or even to a judge of the Family Court).  There was absolutely no need for her to weave such stories to drive her own father into this hopeless predicament.  No matter how scheming and calculating Madam Y might be, would X, who was only nine years old at the time of the offences, have the ability to coordinate her actions with her mother’s? Would she be capable of telling the same lies consistently on various occasions?  I have observed X’s behaviour and heard what she said during the video-recorded interviews and at trial.  Unless she was an extraordinarily skilful actress, her sincere attitude and her evidence were not things that she could feign.

33. I do not consider the defendant’s evidence credible.  Just by looking at the reason he gave for Madam Y’s unexplained desertion of her husband and daughter and her running away from home, one can see he was hiding something or making up a story.

34. On 24 September (Friday) of this year, before adjournment of the trial I asked the defendant whether he, up to that moment, knew why Madam Y left him and their family.  His instant reply was: ‘I’m not sure about the exact reason, but I have my views on that.’  After the weekend, on 27 September (Monday), once the trial resumed the defendant talked ceaselessly, supplying a whole lot of reasons for his suspicion that Madam Y had an extra-marital affair.  Ms. Yew criticized Madam Y for deliberately vilifying the defendant in the course of testifying.  However, in my view exactly the opposite happened. In fact Madam Y showed great restraint when she was giving evidence.  She just frankly described what happened, calling a spade a spade and using words which were direct and to the point.  On the other hand, I feel that the defendant had tried to deliberately vilify Madam Y by describing her as a vicious woman who deliberately planned to abet his daughter in framing him up.  He also made a seriously wrong move by changing the door lock of the flat.  If he was longing so much for her wife to change her mind and to return home, why did he change the door lock?  Furthermore, although he was in financially dire shape, he still paid about $2,000 so that he and his daughter could go to the Mainland to help the poor.  I find this  difficult to understand.

35. For the above reasons, I harbour doubts about the credibility of the defendant’s evidence, which I rejectaccordingly.

36. I firmly believe that girl X and Madam Y had been molested or assaulted by the defendant at the times and places specified in the six charges and in the way and manner as described by them in their respective evidence.  Discharging the functions of a juror, I find that the assaults in relation to Charges 3 to 6 are plainly indecent.  In other words, the prosecution has proved the six charges beyond reasonable doubt.  The defendant is convicted on Charges 1 to 6.”

Grounds of appeal

19.Ms. Sylvia Lee, counsel for the applicant, put forward three grounds of appeal to support the contention that the convictions are unsafe and unsatisfactory.  In essence, her complaints are that the Deputy Judge erred in assessing the evidence of X and Y and failed to sufficiently consider the applicant’s evidence, as a result of which the Deputy Judge  erroneously drew inferences adverse to the applicant and rejected his evidence.

20.Referring to X’s video-recorded interviews and her testimony, Ms. Lee pointed out that, in respect of her allegations of having been molested by the applicant, there were discrepancies as to how many occasions of such molestations there had been, when they happened and whether she was wearing a pyjama jacket, but the Deputy Judge did not address such discrepancies.

21.Ms. Lee also submitted that the Deputy Judge paid no regard to the fact that the person to whom X made her complaint for the first time was a male social worker, not her mother Y.  She said that this part of her evidence was irrational——   particularly so because X had read about and was aware of the story of “Little Butt Butt”, a victim of sexual assault.

22.Furthermore, X said in court that, as requested by the applicant, she  “put on a show” in front of the social worker Mr. Lau by pretending to look happy, when in fact she was not happy.  Ms. Lee submitted that the Deputy Judge did not sufficiently consider the possibility that X might have been influenced by Y or a third person to “put on a show” and make up the incidents of her having been molested by the applicant.

23.With reference to Y’s evidence, Ms. Lee argued that the Deputy Judge erroneously inferred that it was “not necessary” for Y to make up allegations as she had certain advantages over the applicant as far as X’s custody was concerned.  The Deputy Judge did not have all the information about the divorce between Y and the applicant, and it was not the case that the Family Court would certainly give judgment in favour of Y.   It was therefore not certain that it would not be “necessary” for Y to invent the allegations in order to strengthen her interests.

24.Ms. Lee complained that the Deputy Judge erred in accepting, on the basis that Y had medical knowledge, Y’s way of dealing with the assault by the applicant——  i.e. neither calling the police nor seeking medical treatment ——   as correct.

25.As to Y’s conduct, namely that for 10 odd days after she left homeshe did not contact the applicant or call the police and was content to leave her daughter X alone with the applicant, Ms. Lee submitted that Y’s explanation did not make sense, but that the Deputy Judge failed to consider and properly deal with Y’s testimony in that regard.

26.As for the applicant’s evidence, Ms. Lee’s complained that the Deputy Judge had been unfair to him by giving weight to the elaborations the applicant made at the post-weekend resumed hearing on the reasons for Y’s going away without saying anything.

27.Ms. Lee also submitted that the Deputy Judge improperly relied on the fact that the applicant and X had gone to Qing Yuan to help the poor as a reason for finding that the applicant’s evidence was incredible.

28.Ms. Lee also said that even if the Deputy Judge considered, from a broad perspective, that the applicant’s changing the door lock was “a seriously wrong move”, it was not a sufficient reason for finding that the applicant’s evidence was wholly incredible.

Discussion

29.With respect, the Deputy Judge’s Reasons for Verdict are in our view too brief.  Having set out the prosecution case and the defence case, he simply remarked in paragraph 30 that having carefully considered the evidence of X and Y and had observed their demeanour in giving evidence, he considered them frank, veracious and reliable witnesses.  The Reasons for Verdict were silent on X’s accounts (as given in her two recoded interviews in February and April 2010 respectively and in her testimony at trial) of how many times she had been molested, when the molestations took place and whether she was wearing a pyjama jacket.  Nowhere in the Reasons for Verdict did the Deputy Judge indicate how he dealt with the discrepancies in what X said.

30.In Zhuo Cui Hao v Ting Fung Yee[1], Chan CJHC (as he then was) had this to say about the duty of a judge to give reasons for his decision (at 632H):

“Generally speaking, a professional judge is under a duty to analyse in his judgment the material points in the evidence of the case and give reasons as to why he has reached a particular conclusion or decision. This is the only way to make people understand why their evidence is not accepted by the court and why they lose in a case. Only by this can justice be seen to be done. Furthermore, the losing party needs to be clear on whether there is any error in the reasons for the decision given by the court before he can decide whether to appeal or not, and, at a later stage, submit to the Court of Appeal his grounds of appeal in order to seek to set aside the original decision. A professional judge is under a duty to give adequate reasons for any decision which he has made. This is aprinciple of paramount importance in the common law system. This principle is quite clear. ….”

Although Zhuo Cui Hao is a civil case, the above passage is in our view also applicable to criminal cases.

31.In HKSAR v Kevin Egan[2], Litton NPJ expressed his views, with which Bokhary PJ agreed, on how a judge should approach the task of fact finding.  Litton NPJ quoted (at paragraph 303 of his judgment) the following passage from the judgment of Blair-Kerr SPJ in Kowloon Motor Bus Co. (1933) Ltd v Kong Tung[3] (a civil suit which is also applicable in a criminal case):

“I cannot leave this case without repeating what I have said on numerous occasions during the last 10 years viz. that it is of the first importance that every judge of fact should indicate clearly in his judgment not only his findings of fact - primary and inferential - but, as regards his findings of primary fact, to what extent these are based on the view which he has formed of the witnesses’ demeanour and on what he regards as the inherent probabilities and improbabilities of the conflicting stories.”

32.In short, Blair-Kerr SPJ was trying to emphasize  this salient point: The trial judge should not only clearly state the facts, whether primary or inferential, which he finds to be proven.  As regards primary facts, he should spell out to what extent his views are based on the witnesses’ demeanour and to what extent they are based on inherent probabilities and improbabilities of the conflicting stories.

33.Litton NPJ also described (at paragraph 304 of the judgment) the procedures to be followed by the judge in making findings of fact :

“304. Fact finding by a tribunal is a forward moving process. At the starter’s line are the primary facts relevant to the indictment (or to the pleadings in a civil suit). Most of these, generally speaking would be non-controversial. From these, a picture of the inherent probabilities will often emerge … the tribunal would then move on to evaluate the disputed evidence. ‘Evaluate’ means just that: To measure, to weigh. Not every piece of evidence has equal weight. … When a tribunal in giving judgment recites the testimony of a witness and says ‘I accept him as a truthful witness’, this is not evaluation: It is a conclusion which might be reached at the end, after weighing the relevant evidence.”

The gist is that fact finding is a forward moving process, which starts with the primary facts relevant to the indictment.  On the basis of these facts, views on inherent probabilities are formed.  The judge should then evaluate the disputed evidence, which means to measure and weigh the evidence.  Not every part of the evidence carries equal weight.  When the judge simply recites the evidence of a witness and says he finds the witness to be a truthful witness, he is just stating the conclusion he has reached after the evaluation.

34.At paragraph 386 of his judgment, when commenting on the adequacy of reasons given by the judge, Gleeson NPJ quoted the dictum of the then Li CJ in Oriental Daily Publisher Ltd v Commissioner for Television & Entertainment Licensing Authority[4]:

“Where there is a duty to give reasons, it must be discharged by giving adequate reasons. What would amount to adequate reasons for a decision would depend on the context in which the decision maker is operating and the circumstances of the case in question.”

The gist is that if the judge is obliged to give reasons, he must give adequate reasons.  Whether the reasons are adequate is to be determined in light of the context in which the decision is made and all the circumstances of the case in question.

35.At paragraph 387 of his judgment, Gleeson NPJ also cited the Australian case of AK v State of Western Australia[5] and said:

“387. The adequacy of reasons in the circumstances of a particular case is to be considered in the light of the purposes that are served by the obligation to give reasons. It promotes good decision-making, and the acceptability of decisions to the public.

It means that the parties are given an explanation of the outcome.  It serves the interests of the parties and the public by facilitating appropriate appellate supervision.”

The gist is that whether the reasons given are adequate is to be judged according to the purpose for which the duty to give reasons is imposed.  Adequate reasons help develop the correct decision making process, thereby enhancing the acceptability of decisions to the public.  It serves the interests of the parties, who are given an explanation of the outcome.  It also serves the interests of the public by facilitating supervision by the appellate court.

36.It is not necessary for us to detail here the discrepancies in the evidence in the present case.  However, as a matter of fact, there are differences between what X said in her video-recorded interviews in February and April 2010 and what she said in testimony at trial: Did the applicant molest her every night; or about six nights a week; or sometimes he did, sometimes he did not, but most of the times he did molest her?  Did he molest her between 9.30 p.m. and 10 p.m. or at a later time by reason of her swimming lessons or otherwise?  And significantly, why did she say during the video-recorded interview in February 2010 that every time the appellant put his hand into her pyjama jacket and touched her breasts, but allege during her second video-recorded interview that sometimes the appellant touched her when her upper body was naked?

37.At trial, counsel for the applicant had brought out all the above discrepancies when she was cross-examining X, but the Reasons for Verdict were silent on this matter.

38.There are special features which set the present case apart from other sexual assault cases.  The undisputed facts were that ever since the birth of X, the applicant had been her principal carer.  He took care of her daily life, took her to school and other activities and picked her up after school and when such activities were over; whereas Y was the sole breadwinner of the family and worked irregular hours.  X had been sleeping with the applicant on the same bed since childhood.  It is not the case that the applicant suddenly wanted X to sleep with him after Y left home.

39.Admittedly, X was only a nine year old girl.  Of course, the Deputy Judge might have thought that for X, a girl aged no more than nine who had been repeatedly assaulted by the applicant, it was not surprising for there to be some confusion in her evidence.  Still, he should have indicated in his Reasons for Verdict that he had taken the discrepancies into account and explained how he dealt with them.

40.Furthermore, the picture which X painted was that she did not see her mother X for a few days and then the applicant suddenly assaulted her, and thereafter went on to assault her many more times.  Sometimes he even touched her breasts when her upper body was naked.  This being the case, why did she say during the first video-recorded interview that “every time” the applicant put his hand into her pyjama jacket and touched her, without making any mention of her clothes being taken off?  The Deputy Judge never addressed these contradictions.

41.The evidence showed that notwithstanding Y’s departure, X and Y had met and had even stayed together for a short period of time, but X had never told Y —— Y being her mother whom she trusted and loved very much  —— that after Y left, X’s father (the applicant) unexpectedly began to repeatedly assault her.  Although X was aware of the story about Little Butt Butt (“Don’t let others touch your private areas.  If anyone does that to you, you must immediately inform someone you trust”), she did not tell her mother Y what had happened to her, but instead made her first complaint only when she was interviewed by a man, i.e. the social worker Mr. Lau.  It appears that the Deputy Judge did not sufficiently consider whether X’s evidence was credible and reliable.

42.In court, X addressed the applicant as “that bad guy”, the reason being that the applicant kept asking Y for maintenance instead of going to work (line E on page 232 of the appeal bundle).  X had some hate for the applicant (line U on page 336 of the appeal bundle).  X admitted that she felt a bit embarrassed because she was accompanied by her father in extra-curricular activities, whereas most of her schoolmates were accompanied by their mothers.  She was also somewhat sensitive to the difference between her family conditions and those of other children, in that the fathers of other children went to work and their mothers stayed at home, but in her case it was the opposite (line M on page 228 of the appeal bundle).  The applicant, being out of work, had more time to urge her to take part in extra-curricular activities, and for this reason she slightly felt that she was forced to do so (line G on page 201 of the appeal bundle).  It was against this background that she made her first complaint to the social worker Mr. Lau.  The Deputy Judge had to seriously consider whether X had made up the stories with a motive  to get what she wanted, i.e. to live with her mother Y.

43.In this regard, the Deputy Judge said:

“32. .… however desirous girl X might be of living with her mother, it would suffice for her to express her wish to the social worker Lau (or even to a judge of the Family Court). There was absolutely no need for her to weave such stories to drive her own father into this hopeless predicament. ….”

44.In the present case, there was no evidence that X knew or believed that it would suffice for her to express her wish to the social worker.  Given the special circumstances of the case, the Deputy Judge should have considered whether it was possible for X to make up stories in order to fulfill her hope of living with her mother, and not whether there was “no need” for X to fabricate such stories.  It must be noted that there was no evidence to corroborate X’s allegations.  We are of course aware that the prosecution was not required to adduce corroborative evidence.  However, it would have been easy for X to make the allegations in question; in particular, according to her, the circumstances of each incident of assault were essentially the same, the only difference being that sometimes her upper body was naked.  In these circumstances, the Deputy Judge must be even more careful in considering whether X’s evidence was reliable and credible.

45.Moreover, as X admitted that she had “lied” and that she had “put up a show” in front of the social worker Mr. Lau by pretending to look happy, the Deputy Judge should have indicated in his judgment that he had considered whether X might have made false statements in the present case.

46.In relation to Y’s testimony that the applicant had twice assaulted her, we think that the Deputy Judge wrongly took into account the factor that Y had a greater prospect of success than the applicant did (paragraph 31 of the Reasons for Verdict). There was no evidence that Y knew or believed she was in a more advantageous position than the applicant was.  In fact, Y gave evidence that her solicitor had advised her that she “must have a stable and secure home, and a well thought-out proposal for the care of your child” before the court would consider “granting [custody of] the child” to Y (lines O to Q on page 247 of the appeal bundle).

47.X had been in the care of the applicant since birth.  Y said in the witness box that the legal advice she obtained was that she had to prepare her case properly in order to have a chance to be granted custody of X. The factual basis relied on by the Deputy Judge in ruling out the possibility of Y having made up allegations against the applicant, namely that Y enjoyed certain advantages over him, was unsound.

48.In the present case, the applicant elected to give evidence.  His case was in essence a categorical denial of the allegations of X and Y.  He did not have any solid evidence that X and Y falsely accused him.  He only surmised that X and Y had fabricated the allegations by reason of the issue of X’s custody.

49.The burden of proof was on the prosecution.  If what the applicant said was true or might be true, then the prosecution had not successfully discharged that burden.

50.In rejecting the applicant’s evidence, the Deputy Judge did specifically mention the fact that the applicant had taken X to Qing Yuan to help the poor.  He considered such behaviour of the applicant “difficult to understand” (paragraph 34 of the Reasons for Verdict).

51.The applicant and X’s trip to Qing Yuan was an admitted fact.  Even before Y went away, the applicant had already been performing voluntary work.  The fact that he had taken X to Qing Yuan had nothing to do with whether he had assaulted X.  Had the facts shown that the assaults were committed only in places outside Hong Kong and that the applicant had taken X out of Hong Kong on a pretext in order to create an opportunity to molest her, the situation might well have been different.  However, on the facts, X slept with the applicant most of the time, and according to X, most of the assaults took place at her home in Hong Kong. Whether the applicant had taken X to do help-the-poor work notwithstanding his financial difficulty was not a factor that the Deputy Judge should take into consideration.  As the Deputy Judge wrongly considered whether the Qing Yuan trip was “understandable” in terms of its financial impact, we cast doubt as to the propriety of his rejection of the applicant’s evidence.

52.In our judgment, the Deputy Judge had not properly considered the evidence in the present case. It was on unsound bases that he accepted the evidence of X and Y and rejected the applicant’s evidence.  It follows that the convictions are unsafe and unsatisfactory.

53.For the above reasons, we grant leave to appeal and, treating the application as the appeal proper, we allow the appeal, quash all the convictions and set aside all the sentences.

Ms. Virginia Lau, Senior Public Prosecutor of the Department of Justice, for the HKSAR.

Ms. Sylvia Lee, instructed by Messrs. Lee Wong & Co., for the Applicant.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor.