區域法院（刑事）Deputy District Judge Bernard Chung13/10/2024[2024] HKDC 1733
DCCC833/2022
A A
B B
DCCC 833/2022
[2024] HKDC 1733
C C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 833 OF 2022
F F
G ------------------------------ G
HKSAR
H H
v
I SHABBIR Asim Defendant I
------------------------------
J J
Before: Deputy District Judge Bernard Chung
K Date: 14 October 2024 K
Present: Ms. Cheng Flora Suk Yee, counsel on fiat, for HKSAR
L L
Mr. Davies Oliver Howell, instructed by by Messrs T.H.
M Wong & Co., assigned by the Director of Legal Aid, for the M
Defendant
N N
Offence: [1] Indecent conduct towards a child under the age of 16 years
O (向年齡在 16 歲以下的兒童作出猥褻行為) O
P
[2] – [3] Indecent assault on another person (猥褻侵犯另一 P
人)
Q Q
[4] Doing an act tending and intended to pervert the course of
R public justice (作出一項傾向並意圖妨礙司法公正的作為) R
-----------------------------------------
S S
REASONS FOR VERDICT
T T
-----------------------------------------
U U
V V
-2-
A A
B B
Introduction
C C
1. The defendant SHABBIR Asim (“D”) faces a total of 4
D D
Charges:
E Charge 1 E
Indecent conduct towards a child under the age of 16 years, contrary to
F F
section 146(1) of the Crimes Ordinance, Cap.200. Particulars of Offence
G alleged that D, on a day unknown in 2017, at a flat at Fuk Wing Street, G
Sham Shui Po, committed an act of gross indecency with or towards X, a
H H
girl of the age of about 7 years.
I Charge 2 I
Indecent assault on another person, contrary to section 122(1) of the same
J J
Ordinance. Particulars of Offence alleged that D, on a day unknown
K between 2018 and September 2021, at Room G, 7th Floor, No.110 Nam K
Cheong Street, Sham Shui Po, indecently assault X, a girl under the age of
L L
16 years.
M Charge 3 M
Same as Charge 2 except that the offence took place on a day unknown in
N N
September 2021, on an occasion other than that referred to in Charge 2,
O and X was of the age of 11 years. O
Charge 4 (as amended)
P P
Doing an act tending and intended to pervert the course of public justice,
Q contrary to Common Law and punishable under section 101I(1) of the Q
Criminal Procedure Ordinance, Cap.221. Particulars of Offence alleged
R R
that D, on a day unknown between 2017 and 2018, at a flat at Fuk Wing
S Street, Sham Shui Po, with intent to pervert the course of public justice, S
did an act which had a tendency to pervert the course of public justice, in
T T
U U
V V
-3-
A A
B B
that he threatened X that he would kill X’s mother if X disclosed to anyone
C that D had sexually assaulted X. C
D D
2. All Charges related to the same girl X. D denied all 4 Charges.
E E
Prosecution’s Case
F F
G 3. This case involved allegations of sexual advances by D on girl G
X and his attempt to threaten X not to disclose his criminal conducts
H H
towards X to others. Some of the background facts relating to the case are
I not in dispute and are admitted under section 65C of Cap. 221 (as P6 and I
P6A).
J J
K 4. It is not in dispute that X was born in Hong Kong on 13 K
March 2010. She was 12 years old when the case was reported to the police
L L
on 29 April 2022.
M M
5. Between 2017 and 2018, X had been living with her mother
N N
Y at a sub-divided flat at Fuk Wing Street, when D and his wife lived at a
O neighbouring room (the location mentioned in Charges 1 and 4). O
P P
th
6. In around late 2018, D and his wife moved to Room G, 7
Q Floor, No.110 Nam Cheong Street, Sham Shui Po, the location referred to Q
in Charges 2 and 3.
R R
S 7. On 29 April 2022, X disclosed to her school teacher Mr. S
CHAN Hak-yik (PW3) that she had been sexually abused by “Uncle”. The
T T
U U
V V
-4-
A A
B B
school made a report to the police. Police arrived at the school and met X
C at about 13:20 hours the same day. C
D D
8. At about 13:54 hours on the same day, when X walked pass
E Maple Street Playground together with the school social worker and the E
police party, she pointed out D, who was sitting on a bench inside the
F F
Playground, as the “Uncle”. D was arrested and cautioned by the police
G there for “Indecent Assault”. Later in the same evening, assisted by a G
Punjabi and a Police Interpreter, D voluntarily participated in a video-
H H
recorded interview with the police (P1, transcript P1A and certified
I English translation P1B). I
J J
9. There is no dispute that during this interview D said, inter alia,
K that he came to know X since she was born. Y used to be the girlfriend of K
one of D’s friend. D’s wife used to take care of X when Y went out to work.
L L
Since February 2017 D lived with his wife in a sub-divided flat in Fuk
M Wing Street when X and Y lived in the next room. D’s wife used to take M
care of X including feeding and bathing her. D used to take X to school
N N
and pick her up from school. D had helped X to dress after bath, that was
O done in the presence of his wife when X was aged 4 or 5. In 2018, after he O
and his wife moved to another flat at Nam Cheong Street, his wife did not
P P
take care of X. X had visited his residence once or twice in his absence.
Q Between 2017 and 2018, the only time D stayed alone with X was when he Q
took her to school and picked her up after school. D also admitted to the
R R
circumstances of his arrest.
S S
10. Other formal evidence, including photographs of X’s current
T T
home and that of D’s (the location referred to in Charges 2 and 3), were
U U
V V
-5-
A A
B B
admitted as P2, and Medical and Forensic Medical Reports of X in June
C 2022 were admitted as P4 and P5 respectively. C
D D
11. Prosecution called 3 PWs, X, her mother Y as PW2, and her
E teacher Mr. CHAN as PW3. Ms. Cheng for the prosecution made it clear E
at the commencement of the trial that prosecution is not relying on any
F F
evidence of recent complaint. As such, Y and PW3 were called as factual
G witnesses only. G
H H
12. The only evidence implicating D on each Charge comes from
I X only. I shall first set out in some details a summary of her evidence. I
J J
13. It is not in dispute that X was interviewed by a social worker
K on 3 May 2022 in relation to this case, which was video-recorded, and K
admitted as P3 (transcript P3A and certified English translation P3B). She
L L
was 12 years old at the time and pursuant to leave granted by the Court
M under section 79C of Cap.221, this formed the basis of her evidence-in- M
chief. At the time of this trial she was 14 years and 5 months old. Pursuant
N N
to leave granted by the Court under section 79B of Cap.221, she testified
O in Court via television link. O
P P
14. In P3 X said she first met D in 2016. In 2017 D started doing
Q things she didn’t want and continued in the few years thereafter. He did Q
this for over 200 times, the last time was in September 2021. She told Y
R R
about that in November 2021 and PW3 in April 2022.
S S
Charges 3 and 4
T T
U U
V V
-6-
A A
B B
15. X started by describing an incident, which she called “the last
C incident”, that happened in September 2021 at D’s home. X was playing C
her phone and D was to her left. He touched her thighs and breasts, put his
D D
hands underneath her clothes and grabbed her breasts. X was lying and D
E was on top of her. He pulled down her pants, he also took out his penis and E
rubbed it against her private part on the outside. He kept doing this while
F F
touching her breasts. X used her hands and legs to push and kick him. He
G knelt in between her legs and assaulted her for about 5 minutes. She even G
screamed but D said “like it or not” and continued his assault on her. X felt
H H
painful as D grabbed her breasts forcefully and screamed. X felt no one is
I going to help her. The incident stopped when D put his penis back. She I
was asked if he had ever mentioned what would happen if she told others
J J
about it. In reply, X said “D said he would kill my mother.”. She did tell
K some close online friends about the incident. K
L L
Charge 1
M M
16. X then went on to describe “the first incident”, which
N N
happened in 2017 at D’s room, but she could not recall the month and date.
O She said D bribed her with food, then put his hands into her clothes and O
touched her body and breasts. She was sitting on D’s thigh, who was behind
P P
her. He then told X to turn around and bend down in front of him. He then
Q grabbed her head and put half of “his thing”, which she later said it was his Q
penis, into her mouth, and moved her head up and down. X felt confused,
R R
disgusted and did not know what to do. She could not remember the date
S in 2017 when this happened but felt it was in autumn and happened at 2 to S
3 p.m., when they were living in the same building.
T T
U U
V V
-7-
A A
B B
Charge 2
C C
17. X then also spoke of an incident that gave her the strongest
D D
memory. She said Y had left her at D’s house to stay for 1 day because Y
E had a work to do. She spent the night in D’s bed as there was only 1 in his E
home. In the morning she was awaken. Her pants had been pulled at the
F F
back to half of her thighs and she felt D’s hard-on penis touching her
G private parts and anus from outside, moving forward and backward. This G
lasted for a few seconds, after which D put his penis back into his pants
H H
and went to sleep again. At the time she was facing the wall with D behind
I her and Auntie (D’s wife) sleeping next to D facing outside. X did not turn I
around but she was sure it was D behind her as she could smell his scent
J J
(cologne), and there could not be anyone else but D. She was also sure that
K it was his hard-on penis that touched her body. K
L L
18. She confirmed in Court under oath that what she had said in
M P3 was true. M
N N
19. In cross-examination, she said her mother was of Indonesian
O origin and father was a Pakistani but she had never seen him, nor did she O
know his whereabout. She had a “step-father” but he had been in jail in the
P P
past 2 to 3 years. She identified D to be the “Uncle” she had mentioned.
Q This was not conceded by Mr. Davies for the defence. She said that she Q
seldom went to D’s new home, maybe 3 to 4 times, but she could not
R R
remember much about those visits now. She said she told Y during an
S argument in November 2021 that D had touched her, with no other details S
given. Y told her not to tell anyone except her.
T T
U U
V V
-8-
A A
B B
20. She was questioned in some detail about each of the incidents
C mentioned in P3. She admitted that she could no longer remember much C
of what happened in the “first incident” (referred to in Charge 1). In
D D
relation to the “last incident” (referred to in Charge 3), she said after
E rubbing his penis against her private parts for 1 to 2 minutes, he jerked E
himself off and then left home. When Y and Auntie returned, she did not
F F
tell them about it, she only felt disgusted.
G G
21. She stood by her grounds when it was suggested to her, one
H H
by one, that those incidents did not happen. However, several matters of
I importance were revealed during cross-examination. I
J J
22. When she was questioned about the incident referred to in
K Charge 2 as to why she slept at D’s home, X said she came to remember K
that Y had been in jail for 4 months. She was left to the care of Auntie but
L L
the latter often left her to be taken care of by D.
M M
23. When she was questioned about “the last incident” (referred
N N
to in Charge 3), she mentioned another incident which happened at the
O staircase when D tried to touch her again. She pushed him off and ran home. O
She said this was the last, and only, time he had abused her at his new home,
P P
and she had not seen him since that incident.
Q Q
24. Finally, when she was asked about the time when D
R R
threatened to kill her mother if she told anyone about his abuses on her, she
S said she could not remember but it was before 2021. S
T T
U U
V V
-9-
A A
B B
25. In re-examination, she said the incident at the staircase was
C not the same as “the last incident” she had mentioned in P3. It occurred C
several weeks later, also in September 2021.
D D
E 26. As to the threat by D to kill her mother, she said it was not in E
September 2021, but in his “old flat” (meaning when they were neighbours
F F
in Fuk Wing Street), and there was no similar threat in his new home. She
G had heard this from D at least twice. G
H H
27. Since the original Charge 4 referred to “a day unknown in
I September, 2021” at the new flat， basing on these answers by X in re- I
examination, prosecution applied at the end of her evidence to amend
J J
Charge 4 to its present form. There was no objection by the defence. I
K considered that the Charge as amended did not infringe upon the principles K
as stated in Chim Hon Man v HKSAR 1 and HKSAR v Chu Chi Wah
L L
2
(No.2) and the application was granted accordingly. I allowed Mr. Davies
M to re-open his cross-examination on X whereupon Mr. Davies put to X that M
this did not happen. She stood by her evidence that he had threatened her
N N
as described.
O O
P
28. Y was called as the next witness. She confirmed her own P
backgrounds and her relationships with X and D’s family. She is
Q Q
Indonesian by origin, so is the wife of D. X and Y were both acquainted
R
with D and his wife. D and his wife had assisted Y to take care of X since R
X was small. She said she had been detained by the Immigration
S S
1
(1999) 2 HKCFAR 145
T T
2
[2010] 4 HKLRD 715
U U
V V
- 10 -
A A
B B
Department for 4 months, during which time X was left to the care of her
C then boyfriend, but she understood that X was left to the care of D’s wife C
during the period. She also confirmed the situation on 29 April 2022 when
D D
she attended school with X, eventually leading to the school reporting the
E matter to the police later that day. She said she had called D and his wife E
that morning and asked them to come to school to sort out the matter.
F F
G 29. She was cross-examined, mainly on her relationship with X in G
general and their communications on the allegations now put forward by
H H
X against D. Since prosecution is not relying on evidence of “recent
I complaint”, her evidence on the latter issue is of little value. I
J J
30. PW3 was the teacher of X who testified as to the
K circumstances under which the case came to be reported to the police. He K
stated that X had been his student for 3 years. He came to know that X had
L L
been absent from school for 3 days from 26 to 28 April 2022, so he called
M Y on 29 and asked her to bring X to school to explain the situation. After M
they arrived, he noticed something strange about X, with red, teary eyes.
N N
He had an opportunity to talk to X alone and she revealed to him that
O “When I was 7, I was raped by my uncle.” He realized the serious nature of O
her allegations, and having discussed with the Principal, despite reluctance
P P
from Y, the matter was reported to the police. He confirmed that Y did call
Q “Uncle” and he had talked to this “Uncle” on the phone. Q
R R
Defence Case
S S
31. At the close of the prosecution’s case, there was no half-way
T T
submission by the defence. I ruled that there is a case to answer in respect
U U
V V
- 11 -
A A
B B
of all 4 Charges. D elected not to give evidence and called no defence
C witness. C
D D
Analysis of the evidence
E E
32. I direct myself that the burden of proof is on the prosecution.
F F
It is for the prosecution to prove each element of each offence against D
G beyond reasonable doubt. D bears no burden of prove. He is not required G
to prove his innocence.
H H
I 33. D elected not to give evidence and called no defence witness. I
It is his right and no adverse inference would be drawn against him.
J J
However, this means that there is no evidence to undermine, contradict or
K explain the evidence presented by the prosecution.3 K
L L
34. I also direct myself that I have to consider the case against D
M on each Charge separately. M
N N
35. The only evidence implicating D on each Charge comes from
O X, therefore, her credibility and reliability are of crucial importance. In O
analysing the evidence in this case, in particular the testimonies of X, I bear
P P
in mind that allegations of this nature are easy to make but extremely
Q difficult to refute. Q
R R
36. I have paid careful attention to the evidence of X and the
S S
3
Li Defan v HKSAR (2002) 5 HKCFAR 320.
T T
U U
V V
- 12 -
A A
B B
manner in which she testified. She was 12 years and 1 month old when
C interviewed by the social worker in P3 and 14 years and 5 months when C
testified in Court.
D D
E 37. It is obvious from the evidence that she did not have a healthy E
upbringing. It is not difficult to imagine the life she had gone through so
F F
far. Despite that, she appeared to me to be an intelligent girl with good
G mannerism. She could understand the questions put to her and answered G
them directly without hesitation or evasiveness. There might well be some
H H
exaggeration when she said D had sexually assaulted her over 200 times
I but otherwise her evidence was fair and plain. For example, she readily I
agreed in cross-examination that in relation to “the first incident” (Charge
J J
1), she could no longer remember much of what happened during that
K incident. After all this incident occurred in 2017, she was only 7 at the time. K
In relation to the incident that gave her the strongest memory (Charge 2),
L L
she agreed that she did not turn around when she felt D behind her, she did
M not see if it was D, nor did she see it was his hard-on penis that rubbed M
against her private parts.
N N
O 38. The evidence of X also conformed with other objective O
evidence available, for example, her assertion that there was only 1 bed in
P P
D’s new home was confirmed by P2 (20 to 25), photographs of the room.
Q Q
39. It is true that there had been some discrepancies between her
R R
evidence in P3 and in Court, for example in relation to when it was that D
S had threatened her and whether the “last incident” referred to in P3 was S
indeed the last, or the one at the staircase which she agreed she mentioned
T T
for the first time in Court. Also, she only mentioned that she was left to
U U
V V
- 13 -
A A
B B
spend the night at D’s home as Y was in jail when being cross-examined
C in Court. The way in which this particular answer came about struck me C
that she had indeed no memory of this sad experience until it was triggered
D D
by the question put in Court. Given the nature of the case and the age and
E backgrounds of X, these discrepancies are understandable, and had not E
affected my assessment of her credibility as a witness.
F F
G 40. Mr. Davies suggested that X might have made up these G
accusations against D as an excuse to explain to PW3, the school discipline
H H
master, why she had been absent from school for 3 days. I have no
I difficulty in rejecting this suggestion. I
J J
41. Having considered all relevant evidence carefully, I find that
K X is an honest and reliable witness. She had tried her best to recall the K
incidents relevant to the 4 Charges honestly and truthfully.
L L
M 42. Although Mr. Davies did not concede on the issue of identity, M
having considered all the evidence, I am sure that the “Uncle” referred to
N N
by X throughout her evidence was D.
O O
43. In the course of her evidence, X mentioned some incidents the
P P
nature of which were similar to those as particularized in the Charges, for
Q example, over 200 similar assaults and the incident at the staircase a few Q
weeks after the incident in Charge 3. These incidents are not subject of any
R R
Charge D is facing, and can be described as “uncharged conducts”. There
S was no issue taken by the defence. I am aware of the situation and took S
them into consideration only in accordance with the relevant legal
T T
U U
V V
- 14 -
A A
B B
principles as stated by the Court of Appeal in HKSAR v Kwok Hing Tony4
C and HKSAR v Ngie Hon Miu (No.2)5. C
D D
44. Having considered all evidence in the case, I am satisfied that
E the sexual assaults on X by D referred to in Charges 1 to 3 and the threat E
by D to X referred to in the amended Charge 4 did occur as described by
F F
X. All the elements of each offence as particularized in each Charge have
G been proved to the necessary standard by the prosecution. G
H H
Verdict
I I
45. For the reasons set out above, D is convicted of all 4 Charges
J J
he is facing.
K K
L L
M M
N N
( Bernard Chung )
Deputy District Judge
O O
P P
Q Q
R R
S S
4
[2010] 3 HKLRD 769
T T
5
[2016] 1 HKLRD 991
U U
V V
A A
B B
DCCC 833/2022
[2024] HKDC 1733
C C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 833 OF 2022
F F
G ------------------------------ G
HKSAR
H H
v
I SHABBIR Asim Defendant I
------------------------------
J J
Before: Deputy District Judge Bernard Chung
K Date: 14 October 2024 K
Present: Ms. Cheng Flora Suk Yee, counsel on fiat, for HKSAR
L L
Mr. Davies Oliver Howell, instructed by by Messrs T.H.
M Wong & Co., assigned by the Director of Legal Aid, for the M
Defendant
N N
Offence: [1] Indecent conduct towards a child under the age of 16 years
O (向年齡在 16 歲以下的兒童作出猥褻行為) O
P
[2] – [3] Indecent assault on another person (猥褻侵犯另一 P
人)
Q Q
[4] Doing an act tending and intended to pervert the course of
R public justice (作出一項傾向並意圖妨礙司法公正的作為) R
-----------------------------------------
S S
REASONS FOR VERDICT
T T
-----------------------------------------
U U
V V
-2-
A A
B B
Introduction
C C
1. The defendant SHABBIR Asim (“D”) faces a total of 4
D D
Charges:
E Charge 1 E
Indecent conduct towards a child under the age of 16 years, contrary to
F F
section 146(1) of the Crimes Ordinance, Cap.200. Particulars of Offence
G alleged that D, on a day unknown in 2017, at a flat at Fuk Wing Street, G
Sham Shui Po, committed an act of gross indecency with or towards X, a
H H
girl of the age of about 7 years.
I Charge 2 I
Indecent assault on another person, contrary to section 122(1) of the same
J J
Ordinance. Particulars of Offence alleged that D, on a day unknown
K between 2018 and September 2021, at Room G, 7th Floor, No.110 Nam K
Cheong Street, Sham Shui Po, indecently assault X, a girl under the age of
L L
16 years.
M Charge 3 M
Same as Charge 2 except that the offence took place on a day unknown in
N N
September 2021, on an occasion other than that referred to in Charge 2,
O and X was of the age of 11 years. O
Charge 4 (as amended)
P P
Doing an act tending and intended to pervert the course of public justice,
Q contrary to Common Law and punishable under section 101I(1) of the Q
Criminal Procedure Ordinance, Cap.221. Particulars of Offence alleged
R R
that D, on a day unknown between 2017 and 2018, at a flat at Fuk Wing
S Street, Sham Shui Po, with intent to pervert the course of public justice, S
did an act which had a tendency to pervert the course of public justice, in
T T
U U
V V
-3-
A A
B B
that he threatened X that he would kill X’s mother if X disclosed to anyone
C that D had sexually assaulted X. C
D D
2. All Charges related to the same girl X. D denied all 4 Charges.
E E
Prosecution’s Case
F F
G 3. This case involved allegations of sexual advances by D on girl G
X and his attempt to threaten X not to disclose his criminal conducts
H H
towards X to others. Some of the background facts relating to the case are
I not in dispute and are admitted under section 65C of Cap. 221 (as P6 and I
P6A).
J J
K 4. It is not in dispute that X was born in Hong Kong on 13 K
March 2010. She was 12 years old when the case was reported to the police
L L
on 29 April 2022.
M M
5. Between 2017 and 2018, X had been living with her mother
N N
Y at a sub-divided flat at Fuk Wing Street, when D and his wife lived at a
O neighbouring room (the location mentioned in Charges 1 and 4). O
P P
th
6. In around late 2018, D and his wife moved to Room G, 7
Q Floor, No.110 Nam Cheong Street, Sham Shui Po, the location referred to Q
in Charges 2 and 3.
R R
S 7. On 29 April 2022, X disclosed to her school teacher Mr. S
CHAN Hak-yik (PW3) that she had been sexually abused by “Uncle”. The
T T
U U
V V
-4-
A A
B B
school made a report to the police. Police arrived at the school and met X
C at about 13:20 hours the same day. C
D D
8. At about 13:54 hours on the same day, when X walked pass
E Maple Street Playground together with the school social worker and the E
police party, she pointed out D, who was sitting on a bench inside the
F F
Playground, as the “Uncle”. D was arrested and cautioned by the police
G there for “Indecent Assault”. Later in the same evening, assisted by a G
Punjabi and a Police Interpreter, D voluntarily participated in a video-
H H
recorded interview with the police (P1, transcript P1A and certified
I English translation P1B). I
J J
9. There is no dispute that during this interview D said, inter alia,
K that he came to know X since she was born. Y used to be the girlfriend of K
one of D’s friend. D’s wife used to take care of X when Y went out to work.
L L
Since February 2017 D lived with his wife in a sub-divided flat in Fuk
M Wing Street when X and Y lived in the next room. D’s wife used to take M
care of X including feeding and bathing her. D used to take X to school
N N
and pick her up from school. D had helped X to dress after bath, that was
O done in the presence of his wife when X was aged 4 or 5. In 2018, after he O
and his wife moved to another flat at Nam Cheong Street, his wife did not
P P
take care of X. X had visited his residence once or twice in his absence.
Q Between 2017 and 2018, the only time D stayed alone with X was when he Q
took her to school and picked her up after school. D also admitted to the
R R
circumstances of his arrest.
S S
10. Other formal evidence, including photographs of X’s current
T T
home and that of D’s (the location referred to in Charges 2 and 3), were
U U
V V
-5-
A A
B B
admitted as P2, and Medical and Forensic Medical Reports of X in June
C 2022 were admitted as P4 and P5 respectively. C
D D
11. Prosecution called 3 PWs, X, her mother Y as PW2, and her
E teacher Mr. CHAN as PW3. Ms. Cheng for the prosecution made it clear E
at the commencement of the trial that prosecution is not relying on any
F F
evidence of recent complaint. As such, Y and PW3 were called as factual
G witnesses only. G
H H
12. The only evidence implicating D on each Charge comes from
I X only. I shall first set out in some details a summary of her evidence. I
J J
13. It is not in dispute that X was interviewed by a social worker
K on 3 May 2022 in relation to this case, which was video-recorded, and K
admitted as P3 (transcript P3A and certified English translation P3B). She
L L
was 12 years old at the time and pursuant to leave granted by the Court
M under section 79C of Cap.221, this formed the basis of her evidence-in- M
chief. At the time of this trial she was 14 years and 5 months old. Pursuant
N N
to leave granted by the Court under section 79B of Cap.221, she testified
O in Court via television link. O
P P
14. In P3 X said she first met D in 2016. In 2017 D started doing
Q things she didn’t want and continued in the few years thereafter. He did Q
this for over 200 times, the last time was in September 2021. She told Y
R R
about that in November 2021 and PW3 in April 2022.
S S
Charges 3 and 4
T T
U U
V V
-6-
A A
B B
15. X started by describing an incident, which she called “the last
C incident”, that happened in September 2021 at D’s home. X was playing C
her phone and D was to her left. He touched her thighs and breasts, put his
D D
hands underneath her clothes and grabbed her breasts. X was lying and D
E was on top of her. He pulled down her pants, he also took out his penis and E
rubbed it against her private part on the outside. He kept doing this while
F F
touching her breasts. X used her hands and legs to push and kick him. He
G knelt in between her legs and assaulted her for about 5 minutes. She even G
screamed but D said “like it or not” and continued his assault on her. X felt
H H
painful as D grabbed her breasts forcefully and screamed. X felt no one is
I going to help her. The incident stopped when D put his penis back. She I
was asked if he had ever mentioned what would happen if she told others
J J
about it. In reply, X said “D said he would kill my mother.”. She did tell
K some close online friends about the incident. K
L L
Charge 1
M M
16. X then went on to describe “the first incident”, which
N N
happened in 2017 at D’s room, but she could not recall the month and date.
O She said D bribed her with food, then put his hands into her clothes and O
touched her body and breasts. She was sitting on D’s thigh, who was behind
P P
her. He then told X to turn around and bend down in front of him. He then
Q grabbed her head and put half of “his thing”, which she later said it was his Q
penis, into her mouth, and moved her head up and down. X felt confused,
R R
disgusted and did not know what to do. She could not remember the date
S in 2017 when this happened but felt it was in autumn and happened at 2 to S
3 p.m., when they were living in the same building.
T T
U U
V V
-7-
A A
B B
Charge 2
C C
17. X then also spoke of an incident that gave her the strongest
D D
memory. She said Y had left her at D’s house to stay for 1 day because Y
E had a work to do. She spent the night in D’s bed as there was only 1 in his E
home. In the morning she was awaken. Her pants had been pulled at the
F F
back to half of her thighs and she felt D’s hard-on penis touching her
G private parts and anus from outside, moving forward and backward. This G
lasted for a few seconds, after which D put his penis back into his pants
H H
and went to sleep again. At the time she was facing the wall with D behind
I her and Auntie (D’s wife) sleeping next to D facing outside. X did not turn I
around but she was sure it was D behind her as she could smell his scent
J J
(cologne), and there could not be anyone else but D. She was also sure that
K it was his hard-on penis that touched her body. K
L L
18. She confirmed in Court under oath that what she had said in
M P3 was true. M
N N
19. In cross-examination, she said her mother was of Indonesian
O origin and father was a Pakistani but she had never seen him, nor did she O
know his whereabout. She had a “step-father” but he had been in jail in the
P P
past 2 to 3 years. She identified D to be the “Uncle” she had mentioned.
Q This was not conceded by Mr. Davies for the defence. She said that she Q
seldom went to D’s new home, maybe 3 to 4 times, but she could not
R R
remember much about those visits now. She said she told Y during an
S argument in November 2021 that D had touched her, with no other details S
given. Y told her not to tell anyone except her.
T T
U U
V V
-8-
A A
B B
20. She was questioned in some detail about each of the incidents
C mentioned in P3. She admitted that she could no longer remember much C
of what happened in the “first incident” (referred to in Charge 1). In
D D
relation to the “last incident” (referred to in Charge 3), she said after
E rubbing his penis against her private parts for 1 to 2 minutes, he jerked E
himself off and then left home. When Y and Auntie returned, she did not
F F
tell them about it, she only felt disgusted.
G G
21. She stood by her grounds when it was suggested to her, one
H H
by one, that those incidents did not happen. However, several matters of
I importance were revealed during cross-examination. I
J J
22. When she was questioned about the incident referred to in
K Charge 2 as to why she slept at D’s home, X said she came to remember K
that Y had been in jail for 4 months. She was left to the care of Auntie but
L L
the latter often left her to be taken care of by D.
M M
23. When she was questioned about “the last incident” (referred
N N
to in Charge 3), she mentioned another incident which happened at the
O staircase when D tried to touch her again. She pushed him off and ran home. O
She said this was the last, and only, time he had abused her at his new home,
P P
and she had not seen him since that incident.
Q Q
24. Finally, when she was asked about the time when D
R R
threatened to kill her mother if she told anyone about his abuses on her, she
S said she could not remember but it was before 2021. S
T T
U U
V V
-9-
A A
B B
25. In re-examination, she said the incident at the staircase was
C not the same as “the last incident” she had mentioned in P3. It occurred C
several weeks later, also in September 2021.
D D
E 26. As to the threat by D to kill her mother, she said it was not in E
September 2021, but in his “old flat” (meaning when they were neighbours
F F
in Fuk Wing Street), and there was no similar threat in his new home. She
G had heard this from D at least twice. G
H H
27. Since the original Charge 4 referred to “a day unknown in
I September, 2021” at the new flat， basing on these answers by X in re- I
examination, prosecution applied at the end of her evidence to amend
J J
Charge 4 to its present form. There was no objection by the defence. I
K considered that the Charge as amended did not infringe upon the principles K
as stated in Chim Hon Man v HKSAR 1 and HKSAR v Chu Chi Wah
L L
2
(No.2) and the application was granted accordingly. I allowed Mr. Davies
M to re-open his cross-examination on X whereupon Mr. Davies put to X that M
this did not happen. She stood by her evidence that he had threatened her
N N
as described.
O O
P
28. Y was called as the next witness. She confirmed her own P
backgrounds and her relationships with X and D’s family. She is
Q Q
Indonesian by origin, so is the wife of D. X and Y were both acquainted
R
with D and his wife. D and his wife had assisted Y to take care of X since R
X was small. She said she had been detained by the Immigration
S S
1
(1999) 2 HKCFAR 145
T T
2
[2010] 4 HKLRD 715
U U
V V
- 10 -
A A
B B
Department for 4 months, during which time X was left to the care of her
C then boyfriend, but she understood that X was left to the care of D’s wife C
during the period. She also confirmed the situation on 29 April 2022 when
D D
she attended school with X, eventually leading to the school reporting the
E matter to the police later that day. She said she had called D and his wife E
that morning and asked them to come to school to sort out the matter.
F F
G 29. She was cross-examined, mainly on her relationship with X in G
general and their communications on the allegations now put forward by
H H
X against D. Since prosecution is not relying on evidence of “recent
I complaint”, her evidence on the latter issue is of little value. I
J J
30. PW3 was the teacher of X who testified as to the
K circumstances under which the case came to be reported to the police. He K
stated that X had been his student for 3 years. He came to know that X had
L L
been absent from school for 3 days from 26 to 28 April 2022, so he called
M Y on 29 and asked her to bring X to school to explain the situation. After M
they arrived, he noticed something strange about X, with red, teary eyes.
N N
He had an opportunity to talk to X alone and she revealed to him that
O “When I was 7, I was raped by my uncle.” He realized the serious nature of O
her allegations, and having discussed with the Principal, despite reluctance
P P
from Y, the matter was reported to the police. He confirmed that Y did call
Q “Uncle” and he had talked to this “Uncle” on the phone. Q
R R
Defence Case
S S
31. At the close of the prosecution’s case, there was no half-way
T T
submission by the defence. I ruled that there is a case to answer in respect
U U
V V
- 11 -
A A
B B
of all 4 Charges. D elected not to give evidence and called no defence
C witness. C
D D
Analysis of the evidence
E E
32. I direct myself that the burden of proof is on the prosecution.
F F
It is for the prosecution to prove each element of each offence against D
G beyond reasonable doubt. D bears no burden of prove. He is not required G
to prove his innocence.
H H
I 33. D elected not to give evidence and called no defence witness. I
It is his right and no adverse inference would be drawn against him.
J J
However, this means that there is no evidence to undermine, contradict or
K explain the evidence presented by the prosecution.3 K
L L
34. I also direct myself that I have to consider the case against D
M on each Charge separately. M
N N
35. The only evidence implicating D on each Charge comes from
O X, therefore, her credibility and reliability are of crucial importance. In O
analysing the evidence in this case, in particular the testimonies of X, I bear
P P
in mind that allegations of this nature are easy to make but extremely
Q difficult to refute. Q
R R
36. I have paid careful attention to the evidence of X and the
S S
3
Li Defan v HKSAR (2002) 5 HKCFAR 320.
T T
U U
V V
- 12 -
A A
B B
manner in which she testified. She was 12 years and 1 month old when
C interviewed by the social worker in P3 and 14 years and 5 months when C
testified in Court.
D D
E 37. It is obvious from the evidence that she did not have a healthy E
upbringing. It is not difficult to imagine the life she had gone through so
F F
far. Despite that, she appeared to me to be an intelligent girl with good
G mannerism. She could understand the questions put to her and answered G
them directly without hesitation or evasiveness. There might well be some
H H
exaggeration when she said D had sexually assaulted her over 200 times
I but otherwise her evidence was fair and plain. For example, she readily I
agreed in cross-examination that in relation to “the first incident” (Charge
J J
1), she could no longer remember much of what happened during that
K incident. After all this incident occurred in 2017, she was only 7 at the time. K
In relation to the incident that gave her the strongest memory (Charge 2),
L L
she agreed that she did not turn around when she felt D behind her, she did
M not see if it was D, nor did she see it was his hard-on penis that rubbed M
against her private parts.
N N
O 38. The evidence of X also conformed with other objective O
evidence available, for example, her assertion that there was only 1 bed in
P P
D’s new home was confirmed by P2 (20 to 25), photographs of the room.
Q Q
39. It is true that there had been some discrepancies between her
R R
evidence in P3 and in Court, for example in relation to when it was that D
S had threatened her and whether the “last incident” referred to in P3 was S
indeed the last, or the one at the staircase which she agreed she mentioned
T T
for the first time in Court. Also, she only mentioned that she was left to
U U
V V
- 13 -
A A
B B
spend the night at D’s home as Y was in jail when being cross-examined
C in Court. The way in which this particular answer came about struck me C
that she had indeed no memory of this sad experience until it was triggered
D D
by the question put in Court. Given the nature of the case and the age and
E backgrounds of X, these discrepancies are understandable, and had not E
affected my assessment of her credibility as a witness.
F F
G 40. Mr. Davies suggested that X might have made up these G
accusations against D as an excuse to explain to PW3, the school discipline
H H
master, why she had been absent from school for 3 days. I have no
I difficulty in rejecting this suggestion. I
J J
41. Having considered all relevant evidence carefully, I find that
K X is an honest and reliable witness. She had tried her best to recall the K
incidents relevant to the 4 Charges honestly and truthfully.
L L
M 42. Although Mr. Davies did not concede on the issue of identity, M
having considered all the evidence, I am sure that the “Uncle” referred to
N N
by X throughout her evidence was D.
O O
43. In the course of her evidence, X mentioned some incidents the
P P
nature of which were similar to those as particularized in the Charges, for
Q example, over 200 similar assaults and the incident at the staircase a few Q
weeks after the incident in Charge 3. These incidents are not subject of any
R R
Charge D is facing, and can be described as “uncharged conducts”. There
S was no issue taken by the defence. I am aware of the situation and took S
them into consideration only in accordance with the relevant legal
T T
U U
V V
- 14 -
A A
B B
principles as stated by the Court of Appeal in HKSAR v Kwok Hing Tony4
C and HKSAR v Ngie Hon Miu (No.2)5. C
D D
44. Having considered all evidence in the case, I am satisfied that
E the sexual assaults on X by D referred to in Charges 1 to 3 and the threat E
by D to X referred to in the amended Charge 4 did occur as described by
F F
X. All the elements of each offence as particularized in each Charge have
G been proved to the necessary standard by the prosecution. G
H H
Verdict
I I
45. For the reasons set out above, D is convicted of all 4 Charges
J J
he is facing.
K K
L L
M M
N N
( Bernard Chung )
Deputy District Judge
O O
P P
Q Q
R R
S S
4
[2010] 3 HKLRD 769
T T
5
[2016] 1 HKLRD 991
U U
V V