HKSAR v. Basharat Ahmed
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DCCC 572/2012 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 572 OF 2012 ____________
____________ VERDICT ____________ 1.The defendant pleads not guilty to three charges of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Chapter 200 (charges 1, 3 & 4) and one charge of indecent conduct towards a child under the age of 16 years, contrary to section 146(1) of the Crimes Ordinance (charge 2). Introduction 2.The charges relate to two brothers aged 10 and 12, referred to in the trial as “Y” and “X”. I will refer to the brothers in my verdict as the younger brother and the elder brother. 3.The defendant went to the home of the brothers to teach the Koran to them and one of their sisters. This commenced sometime in the second half of 2011, no one being sure exactly when. 4.The prosecution case in summary is that in November 2011, during one such lesson, the defendant indecently assaulted the elder brother and in May 2012, on three consecutive days, acted either indecently towards the younger brother or indecently assaulted him. 5.The defence case in summary is that at no time did the defendant indecently assault or act indecently towards either of the brothers, although the defendant accepts that on the day of the alleged third indecent act towards the younger brother, he did scold and slap the elder brother. The defence contend that because of this the brothers have fabricated the indecent acts against him so that they did not have to receive any more Koran lessons. Evidence 6.By reason of the age of the boys video interviews were tendered as their evidence-in-chief (exhibits P1-P3). Both boys were cross-examined by Mr Sadhwani. The prosecution also called both parents. The defendant elected to give evidence. 7.Evidence has also been admitted pursuant to section 65C of the Criminal Procedure Ordinance, Chapter 221 (exhibit P4), including the arrest of the defendant and that the defendant is a person with a clear record. Verdict 8.I have carefully considered all the evidence and the submissions made. In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout. 9.I direct myself, both as to credibility and propensity, in accordance with the decision in HKSAR v TANG Siu-man [1997-98] 1 HKCFAR 107. 10.The prosecution case essentially relies on the evidence of the two brothers. Whilst corroboration is no longer required as a matter of law, I have nevertheless approached the evidence of the two brothers with caution. Defence evidence 11.I have no hesitation in rejecting the defendant’s evidence. I do not find his evidence credible. In the course of his evidence the defendant implied that because he did not apologise for slapping the elder brother the family have fabricated the evidence against him. In his written submission Mr Sadhwani states this is the reason why these allegations exist and further submits that the boys have made false accusations against the defendant to stop being taught the Koran and prayers (see paragraph 52 of the written submission). 12.I find inherently improbable that the parents on being told the elder brother had been slapped, would invent a story whereby both boys would have to make up a series of wholly untrue allegations of indecent conduct on four different days, including the younger brother making up that he complained to his mother before the third alleged incident only for the mother to have doubts about what he said. To suggest the parents would involve their young sons in this way is simply unbelievable. 13.The defendant however has nothing to prove. The prosecution must prove the charges beyond reasonable doubt. I direct myself that I must be sure of the guilt of the defendant before I can convict, each charge to be considered separately. I therefore turn to consideration of the evidence of the two brothers. Discrepancies 14.In his written submission Mr Sadwhani refers to a number of discrepancies, in particular as between the evidence given on video and with that under cross-examination. I do not propose to go through each and every one, save to say I have considered them and that taken individually and collectively they do not in themselves cause me to doubt the evidence of the two brothers. 15.Most, if not all, are more apparent than real and not material, for example what date the elder brother was indecently assaulted; which hand was used and whether, according to the younger brother, the elder brother was slapped on the 4th or the 5th of May. In my view it is not at all surprising adults, let alone young children, can mix up dates just as they can wrongly estimate for how long a certain event took place. 16.One aspect of the evidence that is perhaps somewhat difficult to understand is that the mother on hearing the younger son complain of indecent conduct by the defendant, would still allow her sons and daughter to continue with the lessons. This is most surprising for at the very least one would expect the mother to inform the father, who was at home at the time. 17.The fact the mother had her doubts about what her younger son was telling her is however not determinative of whether in fact he was telling the truth or not. The mother explained she thought her younger son, being a child, may be mistaken or that what the defendant did was a mistake. However, if the acts as described by the younger brother occurred, then this could not possibly be a mistake. Complaint 18.At paragraph 30 of his written submission Mr Sadhwani submits doubt is cast on the evidence of the younger brother by reason of the fact a complaint was not made immediately after the incidents on either the 3rd or 4th May. Experience tells the court this is rarely done and in many cases a complaint may only be made years later. In my view what the court must do is closely examine why a complaint was not made at the first available opportunity and consider whether the reason given for the delay impacts upon the reliability of the complaint. 19.There may be many reasons why a complaint is not made by a young child immediately or at the first available opportunity, for example the child may be embarrassed to relate what had happened; the child may be frightened to speak out; or the child may think he will not be believed. Depending on the individual circumstances of each case such reasons may properly explain the delay in making a complaint, even in cases where the complaint is many years later. 20.None of these reasons are however given by either brother. The younger brother says he did not tell his parents after each of the first two occasions because he forgot (see video interview, exhibit P1 at counters 558-569 and 989-997). Although the next day before the defendant came to teach another lesson the younger brother did tell his mother, there seems no reason why he could not tell his parents straight away, in particular considering he sleeps in the same bedroom as his parents. The acts described by the younger brother are hardly something one would forget and even if one could accept he forgot to tell his parents after the first occasion surely he would not forget again on the second night after the defendant also indecently touched him. 21.In the video interview the elder brother says that he did not tell his mother at the time because the defendant did not do it again the next day and that he only mentioned about what happened after seeing the defendant do the same to his brother (see video interview, exhibit P2 at counters 142-143 and 525-538). In answer to the court why he wanted to wait and see if the defendant did the same again the elder brother answered that he thought the defendant had made a mistake. 22.Mr Sadhwani submits by mistake the elder brother is saying what the defendant did was an accident. I have no hesitation in rejecting this submission. Mr Sadhwani never asked the elder brother whether by mistake he meant the defendant had accidentally touched him. Again, if what the elder brother described did occur this could not possibly be an accident. Further, in answer to the court the elder brother explained that by this he meant that sometimes a human can make an error. In my view what the elder brother was saying is that it was a mistake for the defendant to do what he did and if he did the same again he would then tell his parents. 23.The difficulty, however, with this explanation is that the elder brother on hearing his younger brother tell their mother he had been touched by the defendant, did not then and there tell his mother he had also been touched in a similar way. In answer to the court the elder brother explained he did not tell his mother because he thought his younger brother might be lying. 24.Considering the mother expressed some doubt about what the younger brother said and asked the children to continue with their lesson it is somewhat surprising the elder brother did not say anything at that time. I do not accept this was because the elder brother believed his younger brother may be lying, in particular taking into account the elder brother alleged the defendant had committed similar conduct towards him in November. There appears no reason why the elder brother did not at that time tell his mother the same had also happened to him. In this regard I also note the mother told the police that on the night of the 5th May the elder son told her he had not been indecently assaulted, although I note the elder son was never asked in court whether he had said this to his mother. 25.Having carefully considered all the evidence, in particular the reasons given by the brothers for not telling their parents at the first available opportunity, I find I am left with a doubt as to the truthfulness of their allegations. I find I am not satisfied the prosecution have proved the charges beyond reasonable doubt. The benefit of the doubt is given to the defendant and he is acquitted of all charges.
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