HKSAR v. Chandra Aries Makmur

DCCC 196/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 196 OF 2013

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Reasons for Verdict

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1.The defendant faced two charges of indecent assault and a charge of common assault.

2.The prosecution case was that a 6-year-old girl was indecently assaulted twice and on another occasion also being assaulted, all by the boyfriend of the girl’s mother. The girl disclosed the incident when she was 12 and later positively identified the defendant at an ID parade. 

3.The defendant did not dispute much about the girl’s ordeal, but essentially says that the identification was mistaken, particularly when the mother also had other boyfriends at the material time.

4.By Section 65C of the Criminal Procedure Ordinance (CPO), it was admitted the following, PW1 (“X”) was born on 14 February 2000. On 4 May 2012, X had positively identified the defendant at a properly conducted ID parade.  The defendant knew X’s mother (PW2), Tjin Jin-djun, and between July 2005 and July 2006 the defendant did visit the flat at which PW2, X and her stepsister were residing at a flat in Kingland Apartments, Mong Kok.

5.The defendant was arrested on 19 April 2012.  Under caution he said he did not assault anyone indecently.  The defendant was video interviewed on the same day and the defendant admitted it was voluntary (video recording, transcript and translation of which be P5, P5A and P5B).

6.X is now aged 13.  By section 74C of CPO, her video-recorded interviews were admitted into evidence and she confirmed in court that she had told the truth in the interviews.

7.The incidents were first disclosed when X wrote down in her school journal on 29 February 2012 (P1) that she was sorrowful:

“I had great suffering before. I got no one who could listen to my suffering. How come every time when I am happy I will think of having been sexually assaulted by someone in the past? I am very scared that he will come to find me. I am very scared that he will come to beat me. These made me afraid of recalling this incident. I really want to tell others about it. However, I am very afraid that others would know it and this made me afraid of saying it by myself.”

8.By her first interview on 3 April 2012 (P2 to P2B), she said when she was in kindergarten living with her mother and stepsister in Mong Kok, the boyfriend of her mother also asked her to call him “Daddy”. 

9.She further recalled the incident that he had forced her to take off trousers (counters 150 to 160), splay her legs and lick her private parts about 10-odd minutes (counters 204 to 244).  Then, he put his lower part into her mouth and told her not to bite but to move her head up or down, also for 10-odd minutes (counters 262 to 296).

10.The second incident was that when she was washing dishes.  The mother’s boyfriend asked her not to wash, but he then took off her clothes and touched her all over (counter 366). He said teaching her sex education.  X was sitting on his lap and he also touched her private parts (counters 385 to 446). 

11.She did not tell anyone about these matters until she wrote in her school diary and the class teacher then knew about it.  These 2 incidents were the deepest in her memory (counter 492). She only lived there for a year and then she lived with her birth father. She remembered his face was terrible (counter 532) and it seemed she saw him again in her second grade (counter 552).

12.Her second interview on 4 May 2012 concerned what happened in the ID parade on that day, where she had positively identified her mother’s boyfriend who had indecently assaulted her.

13.On her third video recorded interview on 13 December 2012, she recalled another incident when her mother’s boyfriend dragged her to the toilet, pushed her with great force that her head bumped against the toilet bowl and he also hit her head with the showerhead (counters 83, 103, 154 to 166).

14.In court, when cross-examined as to whether is it possible that she had mistaken the defendant, she said, “No such possibility,” and she remembered it very clearly. When asked whether there were other male visitors, she was not sure if there had been any.

15.X was also asked whether the perpetrator’s surname was Chung, as said in her first interview (counters 331 and 332), her answer was that in fact it seemed to be Chung, but now X did not quite remember and was not certain.

16.PW2, X’s mother, gave evidence that she was born and educated in Indonesia and came to Hong Kong in 1997, got married and gave birth to X in 2000 and then also a son in 2003.  However, she then got divorced and the children were living with the birth father.  

17.In 2003 she first met the defendant and started dating until about 2004 when she got pregnant with another male.  However, the defendant came back to her in 2005. The child was born and even used the defendant’s surname.

18.In 2005 she rented a flat in Kingland Apartments in Mong Kok.  X happened to live with her between mid of 2005 to mid-2006 and then back to her birth father. In and after 2007 she also gave birth to two sons with the defendant.  Currently she is still living with the defendant. 

19.She also said that at the time when X was still living with her, there was another male friend called “Ah Hung”, who happened to visit her 3 or 4 times per month and took her out for meals.

20.When cross-examined, she further disclosed that at the material time there were, in fact, seven other males unknown to the defendant, whom all had occasions left alone sometimes with X in the apartment.  In terms of frequency of visits, Lee Chi-fai came most often, about 3 to 4 times per week, and then Ah Hung second most.  Lee and Hung were known to her for about 3 to 6 months in 2006. PW2 also said the other 5 male friends had also visited her perhaps about 5 times each month at that period of time. 

21.She also asked her daughter to call Ah Hung “Daddy” and she said Ah Hung was also very aggressive and was the only male friend who often hit X and her including an occasion in the bathroom when X was slow in changing. Ah Hung was angry and used showerhead to make X wet. PW2 argued with Ah Hung and Ah Hung then left. While PW2 said the defendant was all along kind and caring to X.  She also did not notice anything unusual between the defendant and X.

22.PW3, Mak Pui-yuen, the Chief Inspector in charge of the said ID parade, was also called upon to tell the court that it took about 24 seconds for X to identify the defendant.

23.The defendant gave evidence. 

24.He is aged 39, born in Indonesia and came to Hong Kong in 1980.  He received education up to Form 5 and had been a waiter working in catering sectors. 

25.He said he only knew it in court that at the material time PW2 also had other male friends. However, he did take good care of her children even the daughter was not his.  He did not indecently assault nor beat X as alleged. He also adopted the content of his video recorded interview.

26.When cross-examined, he said he only knew it in court that PW2 also had other male friends.  The defendant also said he did not hit X at all, apart from just gentle hits on her hands or legs to impose discipline and he was the first one in the family to hit her. 

27.He even further accepted that someone had actually mistreated X as what she said, and it would be something that X would not forget.  However, the defendant said it was not done by him and he was also so surprised that X would accuse him.

Evaluation of evidence and findings

28.Though X is only 13, she appeared calm, with clear thought, in court and as appeared in the video interviews.  The 2 incidents of indecent assault and on another occasion being assaulted were clearly and vividly depicted with details and, in fact, there was not much dispute by the defendant. 

29.The only issue is on identity.

30.Mr Yeung for the defendant submits that although the ID parade was properly held, it was not the same as a list of all her mother’s boyfriends, where there could be also seven other males having visited her or even been left alone with X at the material time.

31.Certainly, even that the defendant was positively identified and that it was also not in dispute that at the material time the defendant did appear in the apartment in Mong Kok, one must be very cautious and careful to examine the quality of the ID evidence, particularly bearing in mind that even an honest witness may be mistaken. 

32.No doubt X was recalling incidents happened about 6 to 7 years ago and by then she was only about 6. 

33.However, both from her school journal and her video interviews, these incidents did deeply impress and left on her mind for such a long time that she could hardly forget the torment she suffered.

34.These incidents had not just taken split seconds and that they must have left sufficient time for the little girl to memorise and recognise the terrible face as she described, where she replied affirmatively that she did remember it very clearly and there is no such possibility of mistaken identification.

35.Further, there was also no grudge nor dispute between X and the defendant, and that X also mentioned that she had met this man again in Grade 2 with PW2, whereby at that time the defendant also happened to be with PW2 in such period of time. 

36.No doubt I found X’s evidence truthful and reliable.

37.As to PW2, not only was it so dismayed to find that she had suddenly disclosed so many of her male friends at the material time in court, but also it appeared that she tended to put more blame to Ah Hung rather than the defendant. While she said Ah Hung was the only male friend who had been violent to X and her, it could hardly reconcile with the defendant’s version that the defendant also exercised discipline on X.

38.Further, Mr Yeung also seeks to refer to PW2’s evidence that it was Ah Hung who had used the showerhead to hit X.  However, upon closer scrutiny of evidence, PW2 described it as X had slipped herself instead of any hard push with great force as said by X. 

39.Moreover, as Mr Mitchell submits, it is significant that even the defendant said PW2 had never told him about Ah Hung’s violence against X when PW2 knew that the defendant was being accused of the very same act. 

40.All in all, I find PW2 clearly has her own agenda to serve and refused to tell the whole truth to this court. This may not be surprising, knowing that PW2 is still living with the defendant and have 4 children for them to raise.

41.In the circumstances, I do not find PW2’s evidence reliable.

42.For the defendant, he has no burden to prove anything.  The entire burden rests upon the prosecution to prove the case beyond all reasonable doubt. The defendant maintained his denial in the witness-box and the same was said in his video cautioned interview.

43.When asked about the accusation in his interview, the defendant did mention that he did scold X sometimes when she was naughty and did hit her hand or arms or legs, but that were not bruised and he hit in the ordinary way.  The defendant knew that her family never scolded her and he thought perhaps because of that now X is older and she is aggrieved. Because if that is the case, he was the first one who hit her and scold her so much, that may be the situation (counter 66). 

44.Now in court, the defendant said he was surprised and could not find any reason why X would accuse him.  No doubt if it only involved gentle or mild parental discipline, it would be hard to imagine or believe how and why a 13-year-old girl would accuse the defendant of such serious and disgraceful acts, particularly at the outset, X only disclosed her suffering in her school diary anonymously.

45.I assess that the defendant was not telling the truth.  His denial or explanation in his interview and in court is to be rejected.

46.I find that X was telling the truth, that she had been indecently assaulted twice by the defendant as described in details aforesaid and also had another occasion being assaulted by the defendant, pushing X with great force, causing her head hitting the toilet bowl and also by hitting her head with the showerhead.

47.In the circumstances, I find the prosecution had proved all the charges beyond all reasonable doubt and the defendant is convicted on all these three charges accordingly.