HKSAR v. Fok Ka Ching
Read the full judgment text of CACC 188/2013 on BabelCite. This Court of Appeal judgment was delivered on 21 May 2014.
1. The applicant (Fok Ka‑ching) appeared in the High Court before Line J sitting with a jury on an indictment consisting of six counts of sexual offences said to have been committed at a residential flat at Bay View Garden in Wong Tai Sin (the flat) in July and August 2011 against an Indonesian domestic helper (X), who was employed by the applicant’s sister-in-law (Ruby Chan) to work at the flat.
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CACC 188/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 188 OF 2013 (ON APPEAL FROM HCCC NO 330 OF 2012) _______________________ BETWEEN
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________________________ Hon Yeung VP (giving the Reasons for Judgment of the Court): Introduction 1.The applicant (Fok Ka‑ching) appeared in the High Court before Line J sitting with a jury on an indictment consisting of six counts of sexual offences said to have been committed at a residential flat at Bay View Garden in Wong Tai Sin (the flat) in July and August 2011 against an Indonesian domestic helper (X), who was employed by the applicant’s sister-in-law (Ruby Chan) to work at the flat. 2.Charges 1, 2, 4 and 5 alleged that the applicant had, on 11 July 2011, 15 July 2011, 16 August 2011 and 29 August 2011 respectively, indecently assaulted X. Charge 3 alleged that the applicant had attempted to rape X on 7 August 2011 and charge 6 alleged that he raped her on 31 August 2011. 3.The applicant pleaded not guilty to the charges. The jury was unable to reach a verdict on charge 1 and it was dismissed. The jury convicted the applicant of charges 2 to 6 and the judge sentenced him to the respective terms of 3 years, 4½ years, 3 years, 3 years and 6½ years’ imprisonment. Sentences on charges 2 to 5 were ordered to be served concurrently with one year of the concurrent sentence to be served consecutively to the 6½‑years’ sentence on charge 6. The total sentence imposed on the applicant was 7½ years’ imprisonment. 4.Represented by Mr Warren Louis Tang, the applicant sought leave to appeal against conviction. The applicant, acting in person, also sought leave to appeal against sentence. On the 15 May 2014, the applicant filed a notice of abandonment in connection with his application for leave to appeal against sentence and that application was forthwith dismissed. We were only concerned with his application for leave to appeal against conviction. 5.In support of the application, Mr Tang asked this court to admit, as additional documents, of what he said to be a more completed version of the transcript of Ruby Chan’s evidence. The suggestion was that the interpreter at trial had not completely interpreted her evidence from Cantonese to English. With the consent of Mr Simon Tam, counsel for the respondent, we admitted those additional documents on a de bene esse basis. 6.At the end of the hearing, we dismissed the applications without calling upon Mr Tam. We indicated that we would hand down our reasons in due course and this we now do. The Prosecution Case and Evidence 7.X, a 34-year old mother of three children, came to Hong Kong on 21 June 2011 and started working at the flat two days later to serve the family consisting of the applicant, his two elder brothers, Ruby Chan and her baby. X was also required to work occasionally at the home of the applicant’s parents at Fung Tak Estate in Wong Tai Sin. 8.According to X, the applicant molested her on seven occasions and the first one took place about three weeks after she had started working. On that occasion when X was asleep on the upper bunk in the middle room, the applicant used his hand to touch her genitals. When X woke up and asked the applicant “What’s up”, the applicant did not respond, but just grinned and left. (Charge 1) 9.Four to five days later when X was cleaning the kitchen table shortly after 8 am, the applicant entered the kitchen and leaned over her before rotating his hips against her buttocks from behind. The applicant then left, but came back and dropped his underpants to show her his penis before pulling her hand to masturbate him despite her refusal until he ejaculated. (Charge 2) 10.On the morning of 7 August 2011 when X was in the bathroom, the applicant came in and closed the door. He prevented X from opening it before taking off his clothes and hugging X. He also pulled up X’s clothes and sucked her nipples. X pushed his face away, but he continued to kiss her face, lips and neck. He then pulled her trousers to her knees to touch her vagina and also tried to penetrate her vagina with his penis forcibly, but he failed. The applicant then pulled her hand and forced her to masturbate him until he ejaculated. X said his penis had touched her private parts and it made her feel painful. (Charge 3) 11.Between 9 and 12 August 2011, X stayed away from the flat at a boarding house owned by her employment agency because she had a skin allergy. According to X, she told her agent, Terry, in the afternoon on 11 August 2011 that she wanted to change her employer. When asked for the reason, X related to Terry what the applicant did to her. Terry told X that she needed evidence and then gave her a bottle, telling her that when it happened again, she should use the bottle to collect evidence. 12.X was adamant that it was on 12 August 2011 after she made the complaint against the applicant that Terry told her of the termination of her employment by Ruby Chan. 13.On 16 August 2011 when X was in the bathroom, washing and changing, the applicant entered and pulled down his underpants. He ordered X to lick his penis and pushed her head towards his penis until her mouth touched it. X stood up and the applicant then used his own hand to masturbate himself until he ejaculated. He then spread his sperm onto her mouth. (Charge 4) 14.On 29 August 2011, X was working at the home of the applicant’s parents. When X was in the kitchen, feeling tired and waiting to go to bed, the applicant came in and leaned against her. She pushed him away and went into the room. The applicant also entered the room and X returned to the kitchen. The applicant again followed X into the kitchen. The applicant then unzipped himself, took out his penis and pushed it onto her face. X moved and the applicant’s penis touched her face. (Charge 5) 15.On 31 August 2011 when X entered the bathroom and before she was able to close the door, the applicant also came in. X went out to avoid him. Later, when X was in the bathroom brushing her hair, the applicant came up behind her and placed his hand over her mouth, before turning her around by her shoulders to face him. The applicant hugged X and kissed her lips, face, cheeks and neck. The applicant then pulled up her top garment and sucked her left nipple and grabbed her right breast. He furhter pulled down his trousers and hers before penetrating her vagina with his penis. X managed to pull the applicant’s penis out and quickly masturbating him until he ejaculated. 16.Instead of washing her hands as the applicant had told her, X put his semen into the bottle that Terry had given her. The applicant left home and X went to the agent’s office, and with Terry’s assistance, made a report to the police later on the same day. She submitted to the police the bottle containing the applicant’s semen. There was no dispute that traces of the applicant’s semen were also found on X’s shirt and hand. (Charge 6) 17.It appeared that X had omitted to mention one other incident of indecent assault that happened in July 2011. X, in her statement to the police, described an incident on 28 July 2011 when the applicant touched her under her bra, but having failed to remove her jeans, he just pulled down his underpants and masturbated himself to ejaculation on the back of her jeans. It later transpired that the applicant was in fact not in Hong Kong on that day. 18.X said that on the instruction of Terry, she made a list of the dates of the incidents in her notebook after she left her employment on 31 August 2011. She said she could not recall the exact dates, but nevertheless tried to compile a list of the dates of the incidents. 19.X admitted that she might have recalled the dates incorrectly, but denied the suggestion that she had lied against the applicant. When asked why she did not leave the flat if what she said against the applicant was true, X said she was very, very scared; that she did not know the law in Hong Kong; that she did not know anyone here; and that she had no one to talk to except her agent. She also said she did not know that the applicant’s elder brother was a police officer. It appeared that X had signed a contract with a new employer on 24 August 2011 before making a report to the police with the bottle containing the applicant’s semen on 31 August 2011. 20.There was no dispute that X had suffered no injury and X also agreed that her clothing was not torn when she struggled with the applicant. 21.Terry, X’s agent, confirmed that X complained to her on 11 August 2011 of being indecently assaulted on about five occasions by the applicant and that she also complained to her on 31 August 2011 in connection with what the applicant did to her in the morning of that day. 22.Terry said X told her at about 2.30 pm on 11 August 2011 that she wanted to change her employer as the applicant always interfered with her. X then detailed to her what the applicant did to her and when asked why she did not report the matter to the police, X said she was scared and as she was new to Hong Kong, she did not know how to express it or how to speak. Terry confirmed that she gave X a sample bottle and advised her that if it happened again, she should collect his saliva or semen as evidence. 23.Terry also confirmed that on 31 August 2011, X again complained to her that the applicant had, in the morning when she was in the toilet, pulled up her clothes and kissed her breasts, her lips and had held her lips with his mouth to stop her from screaming, before trying to penetrate her with his penis. When he failed, the applicant forced her to touch his penis until he ejaculated. 24.Terry denied the suggestion that X only made the complaint to her against the applicant on 11 August 2011 after she was told that she had been fired. Terry was adamant, having referred to her statement, that she was told by Ruby Chan that X would be fired at 11 am on 12 August 2011 and she therefore prepared a written notice of termination to notify X. 25.Terry accepted that there might have been talk with Ruby Chan about X’s termination in the late afternoon on 11 August 2011 over the mobile phone. She insisted that when that happened, X had already left her office and that the decision to dismiss X was made on the basis that if X did not improve. Terry denied the suggestion that she lied when she said X’s complaints about the assault took place before she was told that her contract would be terminated. 26.The pathologist did not find any injuries on X’s body. However, DNA evidence suggested that the matter in the bottle submitted to the police by X, the swabs from her hand and the stain on her polo shirt contained the applicant’s semen. The swabs taken from X’s neck and left breast also picked up DNA from the applicant. 27.The applicant was arrested on 1 September 2011 and the police subsequently conducted two video-recorded interviews (VRIs) with him on 2 September 2011. 28.In the 1st VRI, the applicant denied any attempted rape of X and emphasized that if anyone screamed, people in the flat would hear it. The applicant said that X had masturbated him about two weeks before at about 8 am in the washroom. He said when he went into the washroom on that day, X bent down to open the door of the washing machine and used her buttocks to touch him deliberately before grabbing his private parts. The suggestion was that X had intentionally touched him to seduce him. 29.In the 2nd VRI, the applicant continued to say that X bent her body and used her buttocks to touch his lower body. She then got up and rested her body on him before grabbing his private parts to masturbate him. When the applicant had physical reaction, the applicant’s trousers were removed and X continued to masturbate him until he ejaculated. The applicant then cleaned himself and left the toilet to get change before going to work. The applicant said the first incident lasted 10 odd minutes. 30.When asked for further particulars, the applicant said X stroked him outside his pants at first before reaching her hand inside. He then took off his pants and she masturbated him until he ejaculated. He did not say there were any kissing, fondling or other intimate actions between the two of them. He said neither of them do anything else other than what he had described and that the incident lasted 10 minutes. The applicant also said that X had made no request for money or for anything afterward. 31.There were then the following questions and answers in the 2nd VRI:
32.At the suggestion of the applicant’s lawyer who was present during the interviews, the applicant was asked if X shouted or made any noise. The applicant said X did not make any noise and further emphasized that if X had put up any resistance or struggled, his elder brother would have heard it as the flat was small. 33.The applicant further mentioned a second incident when X again seduced him. He said he was in the toilet when X came in and leant on him. He said he did not resist, but tried to go out. However, X grabbed hold of his genitals with her hands and moved them up and down. The applicant said he had thought of asking X to go to his room for fear that someone might wake up, but X kept stroking him. He wanted to tell her to stop, but she became more vigorous in masturbating him until he ejaculated. 34.The applicant said he took off his belt and X unzipped his pants to masturbate him and the incident lasted 10‑odd minutes. The applicant also said X had made no request for anything. He again emphasized that if X had shouted or resisted, other people in the flat would have known about it. Again the applicant did not say that he had done anything towards X. The Defence Case 35.The applicant did not give evidence, but his case was that it was X who had tried to seduce him and had twice took the initiative to masturbate him. It was the defence’s case that X lied against the applicant after she was dismissed by Ruby Chan as an act of revenge, and in order to support her false claim of sexual abuse against the applicant, X masturbated the applicant to obtain the applicant’s semen as evidence. 36.The applicant did call Ruby Chan to say that she did not hear anything unusual in the flat at the time when the offences occurred. She also told the court when and where she notified Terry of her decision to terminate X’s services in order cast doubt on the veracity of X’s evidence and to support the applicant’s case that what X did was an act of revenge. 37.The defence emphasized that the applicant was not in Hong Kong between 23 and 31 July 2011 and that X was mistaken about certain dates in which she alleged that the applicant had assaulted her. 38.The defence adduced no evidence which could have explained the presence of the applicant’s DNA on X’s neck and breast. The Judge’s Summing Up 39.The judge identified the issues and gave detailed directions to the jury on the relevant law and facts on those issues. The judge repeated the evidence to the jury and said:
40.In connection with the DNA evidence, the judge told the jury:
Grounds of Appeal 41.Mr Tang put forward many grounds of appeal. He initially made a serious allegation that the judge had manufactured evidence in his summing up to the jury although he subsequently modified his allegation by suggesting that the judge had misinterpreted and/or misquoted the contents of the VRIs when the judge told the jury that the applicant had said that there was no more contact with X other than X masturbating him and that there was no kissing or fondling. 42.Mr Tang suggested that the misinterpretation or misquoting of the contents of the VRIs had the effect of undermining the defence case in view of the prosecution evidence of the presence of the applicant’s DNA on X’s neck and left nipple which supported X’s evidence. 43.Mr Tang complained that the judge had descended into the arena by intervening in and/or stopping his cross-examination of X, in relation to a document which recorded X’s rest day falling on 23 August 2011, but X said it should be 24 August 2011. 44.Mr Tang suggested that the judge had interrupted unfairly in his cross examination of a woman police officer (Lee Fung-chu) who took the statements from X as well as the examination-in-chief of Ruby Chan. Mr Tang suggested that if officer Lee was allowed to be further cross-examined, her evidence would have casted doubt on the prosecution case, when she said, contrary to prosecution counsel’s suggestion, that it was against the rule for her to remind X that she had made mistakes about dates. 45.Mr Tang listed a number of examples to demonstrate what he said to be excessive intervention by the judge. 46.Mr Tang suggested that the judge was biased against the applicant, saying that the judge spent excessive amount of time setting out the prosecution case and trivializing the doubts raised by defence counsel. Mr Tang listed, as examples, what he considered to be unbalanced directions by the judge, including the following passages in the summing up:
47.Mr Tang said the aforesaid did not represent the prosecution case, but only the case wrongly advanced by the judge. Mr Tang took objection to the following passages in the summing up and suggested that those directions, even if correct, had placed excessive emphasis on the DNA evidence as opposed to other crucial evidence:
48.Mr Tang emphasized that it was relevant for the jury to consider if the statement taking officer was cheating by “tipping” X with regard to the dates of the alleged incidents, but the judge had not given any or any sufficient directions to the jury on the matter. 49.In his written submission, Mr Tang referred to the judge’s reference to X’s evidence that she had signed a new contract before making her report to the police and that Terry knew about it before telling the jury, “On this issue you can consider that there was no direct challenge to (X) – she was not accused of lying over that on this topic – but this is not of too great a significance”. 50.Mr Tang pointed out that the judge had only spent 4 pages out of a total of 33 pages in his summing up on the evidence of the defence witness and his suggestion was that the judge had failed to provide the jury with a balanced overview of the case and had attempted to persuade the jury to convict the applicant. Discussion 51.In the two VRIs, the applicant was asked to describe his relationship with X and he mentioned the two incidents in which he alleged that X had tried to seduce him by taking the initiative to masturbate him. The applicant did not suggest that he had done anything towards X, but in fact indicated that he had tried to avoid her. 52.The applicant was clearly suggesting that he had adopted a passive role in the two incidents and that it was X who had taken the initiative to seduce him and to masturbate him. The applicant described in details what according to him X did to him. He suggested that on the first occasion when he tried to enter the toilet at about 8 am, X had deliberately used her buttocks to touch him. He further suggested that X stood up and leant against him before touching his private parts to masturbate him. 53.The applicant never said that he had done anything positive towards X. The applicant was repeatedly asked other than what he had described, if either of them did anything to one another and his answer was negative. The applicant did not say he had touched X with any part of his body. He said “No” when he was asked “if there was any other action, which you did to her, or she did to you?” 54.The applicant was expressly asked if there was any kissing or fondling between he and X, he did not give a positive answer. In fact as Mr Tam correctly pointed out, when his counsel put his case to X, it was not suggested to her that the applicant had done anything more than just allowing himself to be masturbated by X. 55.On the facts of the case and on a fair reading of what the applicant had said during the VRIs, the judge was entitled to come to the conclusion that the applicant had said that there was no more contact between him and X other than X masturbating him and that there was no kissing or fondling. The judge’s approach was a fair and reasonable one. 56.We rejected Mr Tang’s suggestion that the judge had misinterpreted and/or misquoted the contents of the VRIs or that the judge’s interpretation of what the applicant said during the VRIs was unfair or improper. 57.Further, the jury had the full records of the VRIs in front of them and it was for them to interpret and to decide what the applicant had said during the interviews. The judge had reminded the jury that they were the sole judges of fact and it was for them to decide what evidence they accepted and what evidence they rejected. The judge told the jury:
58.Mr Tang’s first ground of appeal had no merits whatsoever. 59.The case primarily depended on the credibility of X. However, it is important to note, as the judge reminded the jury, that on the applicant’s account as recorded in the two VRIs, he could not have left any DNA evidence on X’s left breast and neck. The judge was right to inform the jury that such DNA evidence, being independent evidence, supported X’s account of the event and was at odds with the applicant’s explanation. 60.Mr Tang’s suggestion that it was not the prosecution case that the DNA evidence did have such an effect was a blatant disregard of the obvious. Quite the contrary, the only purpose of adducing the DNA evidence was to support X’s account of the events and to refute that of the applicant given in the VRIs. Why else would the prosecution adduce such evidence? Mr Tang’s complaint about the judge’s reference to such evidence was completely unmeritorious. 61.When the judge reminded the jury that X’s mistake about the dates was a matter of recollection and not a matter of honesty, he was in effect repeating what X said in her evidence. 62.The case concern basically what had happened on the dates in question. X gave detailed evidence and was lengthily cross-examined. The applicant did not give evidence. It was just naturally that the judge had to spend more time in his summing up to the jury about the prosecution case in addition to the general directions to the jury. We failed to see how such a matter could be relied on to show that the judge was biased against the applicant. 63.The matter relating to X’s rest day was a trivial matter and X said the record was wrong when it recorded that her rest day was on 23 August 2011 as it should be on 24 August 2011. She said the document was not dated when she signed it. We failed to see the significance of the matter at all. The judge was entitled to stop Mr Tang to further cross-examined X on such irrelevant matter on the pretext that those questions were relevant to her general credibility. 64.Ruby Chan’s evidence, in so far as it might be helpful to the applicant’s case, was confined to the issue of whether her decision to determinate X’s employment pre-dated X’s complaints against the applicant and perhaps her suggestion that the flat was small and if X or the applicant made any noise, others would have heard it. Yet Mr Tang led her to give extensive evidence on mostly irrelevant and tedious matters despite repeated demand by the judge that he should properly control his witness. 65.Mr Tang said he wanted to demonstrate X was dismissed by Ruby Chan because both X and the baby had rashes all over their bodies and Ruby Chan suspected that the baby had been infected by X. The issue was not whether or why X was dismissed by Ruby Chan. The issue was when X became aware of the decision that she had been dismissed. X was adamant that she only learned of the dismissal after her complaint to Terry about the applicant and the defence’s case that she made the complaint as an act of revenge after learning she had been dismissed. Those issues were fairly and squarely placed before the jury. The judge was right to demand Mr Tang to confine his witness to the relevant issues. 66.On the question of whether officer Lee had reminded X that she had made a mistake about dates, the judge directed the jury that it was safer to act on the basis that it did happen as the defence argued for. Such direction could not support any valid complaint by the defence. It was in our view right for the judge to remind the jury to focus on the issue of whether X was a truthful witness and not on the question of whether officer Lee’s denial was true. 67.We do not find it necessary to deal with each and every complaint against the judge that he had been biased against the applicant. Suffice it for us to say that such complaints were completely unfounded. 68.When conducting a jury case, the judge had the duty to ensure that the trial would proceed smoothly and that the court’s time would not be wasted. It is the duty of the judge throughout the trial to ensure that a trial is properly and coherently conducted. 69.As this Court (different constituted) had observed in HKSAR v Sin Wing Yi [2008] 3 HKLRD 352 at p 371:
70.The judge intervened when he felt that the way in which Mr Tang cross-examined prosecution witnesses and the way he led evidence from his witness needed to be fine-tuned and the judge explicitly told Mr Tang why he thought so. If Mr Tang disagreed with the judge’s view, he should have there and then stated his position. Counsel should not be shy about arguing with the judge. However if counsel had accepted the judge’s suggestion, it would be rare that the Court of Appeal will accept any suggestion, as a ground of appeal, that the judge had wrongfully intervened the way in which counsel had conducted the case. 71.In any event, we had considered the various examples that Mr Tang had cited in support of his complaints. We were satisfied that the judge’s interventions were properly made and that such interventions had not prevented the defence from presenting its case fully to the jury. 72.We were not persuaded that an informed bystander listening to the case would say that the applicant had not had a fair trial. (See R v Yeung Mau Lam [1991] 2 HKLR 468, citing R v Matthews (1984) 78 Cr App R 23). There was no valid basis upon which we could interfere with the jury’s findings. 73.The issue before the jury was a simple one. The jury, on the evidence, was entitled to accept the evidence of X and reject the defence case. 74.We did not find the convictions against the applicant in any way unsafe or unsatisfactory. The application for leave to appeal against conviction was therefore dismissed. 75.The additional documents containing what Mr Tang said was a more completed version of Ruby Chan’s evidence, in our view, were completely irrelevant to the issues that we had to decide and that being the case, the application to include those additional evidence was also dismissed. 76.We would also add if an interpreter had failed to completely interpret the evidence of a witness, counsel should have raised the issue with the judge so that the matter could be rectified there and then. Counsel should not wait and only raise the matter when the case went before the Court of Appeal.
Mr Simon Tam, SC, SADPP of the Department of Justice, for the respondent Mr Warren Louis Tang, instructed by Or & Lau, assigned by the Direction of Legal Aid, for the applicant (re: conviction) |
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