A A
B B
DCCC 755/2015
C C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 755 OF 2015
F F
G ------------------------ G
HKSAR
H H
v
I S. R. M. I
-------------------------
J J
K Before: HH Judge Johnny Chan K
Date: 29 February 2016 at 2.30 pm
L L
Present: Mr Michael Arthur, Counsel on fiat, for HKSAR
M Mr John D.B. Hemmings, instructed by Massie & Clement M
assigned by the Director of Legal Aid, for the defendant
N N
Offences: [1]-[3] Indecent assault on another person (猥褻侵犯另一人)
O O
P
--------------------------------------- P
REASONS FOR VERDICT
Q Q
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R R
The Charges and Pleas
S S
T 1. The defendant appeared before me facing 3 charges of T
Indecent Assault (Charge 1 to 3).
U U
V V
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A A
B B
C 2. All 3 charges concern X, a boy born on the 31 December C
2002.
D D
E 3. All 3 offences allegedly took place in a flat in Kwai Chung E
where X lived with his parents and elder sister since birth. The defendant
F F
worked as a live-in domestic helper for X’s family when the offences
G allegedly took place. G
H H
4. Charge 1 allegedly took place on a day unknown between
I 1 July 2011 and 31 August 2011. X was about 8 years and 7 months on I
1 July 2011.
J J
K 5. Charge 2 allegedly took place on a day unknown between K
1 July 2011 and 31 August 2011, on an occasion other than that as
L L
particularized in Charge1. The Prosecution says Charge 2 took place 1
M week after the defendant committed Charge 1. M
N N
6. Charge 3 allegedly took place on a day unknown between
O 1 July 2011 and 26 March 2013, on an occasion other than that as O
particularized in Charge 1 and 2. X was aged about 10 years and 2 months
P P
on 26 March 2013.
Q Q
7. The Defendant pleaded not guilty to all charges.
R R
S S
T T
U U
V V
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A A
B B
C The Prosecution Case C
D D
8. As said, it is the Prosecution case that the defendant
E indecently assaulted X in the flat that X’s family resided when she worked E
as a domestic helper for X’s family.
F F
G 9. X was 8 years and 7 months old when the first incident of G
indecent assault (Charge 1) took place, the second incident of incident
H H
assault (Charge 2) took place one week after the first incident. Charge 1
I and 2 took place during the summer vacation and X was home alone with I
the defendant. Both Charge 1 and 2 took place on the bunk bed inside the
J J
bed room of the defendant.
K K
10. The Prosecution says the defendant had indecently assaulted
L L
X on numerous occasions during the period between 1 July 2011 and 26
M March 2013. On one occasion, the defendant indecently assaulted X in the M
toilet, that incident is the subject matter of Charge 3.
N N
O 11. On all occasions, the Prosecution says the defendant would O
remove the pants of X and then her own pants. She would then molest the
P P
penis of X, position her vagina against the penis and cause a penetration.
Q Q
12. X did not make any complaint until about the indecent
R R
assaults by the defendant until 1 July 2015.
S S
T
13. The Prosecution case depends on the evidence of X. T
U U
V V
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A A
B B
C The Admitted Facts C
D D
14. Facts which are not in disputes are admitted pursuant to
E Section 65C of the Criminal Procedure Ordinance, Cap 211. It is admitted E
that:-
F F
G (i) X (“PW1”) was born on 31st December 2002; G
(ii) X lived with his mother Y (“PW2”) and father Z
H H
(“PW3”) and sister in a flat (“the flat”) in Kwai Chung
I since he was born; I
(iii) A report was made to the police by X and his parents on
J J
7 July 2015;
K (iv) A video recorded interview was conducted with X on 9 K
July 2015 between 3:26 pm and 4:46 pm. The record
L L
of interview was produced as P1 and adopted as the
M evidence in chief of X; M
(v) The defendant was interviewed by the police on 14 and
N N
15 July 2015. She participated in both interviews
O voluntarily. Mr Arthur, counsel on fiat, did not seek to O
produce them as evidence;
P P
(vi) 35 photographs of the flat were taken by the police on
Q 14 July 2015. P5 is the album of the photographs; Q
(vii) P4 is a sketch plan of the flat drawn by the police;
R R
(viii) The chain of evidence in respect of the exhibits is
S admitted; and S
(ix) The defendant has a clear record in Hong Kong.
T T
U U
V V
-5-
A A
B B
Witnesses Called by the Prosecution
C C
15. The Prosecution called 4 witnesses, they are:-
D D
(i) PW1 - Boy X (X was 13 years old at the time of the trial,
E he gave his evidence unsworn); E
(ii) PW2 - Madam Y (the mother of X);
F F
(iii) PW3 - Z (X’s father), who is a serving police officer;
G and G
(iv) PW4 - Dr Ho Tsz Wai, Dr Ho is a pediatrician and she
H H
gave evidence as an expert witness.
I I
A Case to Answer and the Defendant’s Election
J J
K 16. After Mr Arthur closed the case for the Prosecution, I ruled K
that the defendant had a case to answer on all 3 charges. She elected to
L L
give evidence but called no defence witness.
M M
Witness Statements and Reference Letter Produced by Consent
N N
O 17. In addition to the exhibits produced under the Admitted Facts, O
two statements were produced pursuant to Section 65B of the Criminal
P P
Procedure Ordinance:-
Q Q
(i) a statement made by the General Studies teacher of X
R R
in the school year 2014-2015 (P6 the original and P6a
S the certified translation); and S
T T
U U
V V
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A A
B B
(ii) a statement made by the employer of the defendant at
C the time of her arrest was produced as Exhibit D2. C
D
18. A reference letter written by Madam Y dated 30 March 2013 D
was produced as Exhibit D1.
E E
F The Defence Case F
G G
19. The defendant denied she had ever indecently assaulted X.
H She said X was lying. The defendant had no idea why X made up the story. H
I I
20. The defendant admitted that relationship between X’s family
J and the defendant had all along been good. J
K K
21. The defendant said she is a lesbian and she is not attracted to
L males. She has never been intimate with a male. She had two lengthy L
same-sex relationships in Hong Kong. She said during the period between
M M
1 July 2011 and 26 March 2013, she was not sexually active.
N N
Closing Submissions
O O
P 22. I am grateful to Mr Arthur and Mr Hemmings for their P
detailed and careful closing submissions.
Q Q
R 23. I have considered all the evidence I received and submissions R
by counsel before my verdict.
S S
T The Evidence of Uncharged Acts T
U U
V V
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A A
B B
24. It is the Prosecution case that the defendant had indecently
C assaulted X on numerous occasions and the three charges which the C
defendant faces are representative charges (Paragraph 16 of the
D D
Prosecution Closing Submissions).
E E
25. The video interview of X contains evidence of uncharged
F F
acts.
G G
26. The principles of evidence on “uncharged acts” were
H H
discussed in HKSAR v Kwok Hing Tony [2010] 3 HKLRD 769. The Court
I of Appeal held in Kwok that:- I
J J
“(1) When a defendant faced an offence on an unknown date
within a lengthy period of time at a location where the
K complainant and the defendant were often likely to meet, K
evidence of “uncharged acts” might lead to unfairness to
the defendant because if he could not distinguish acts
L L
with which he was charged with from those with which
he was not, he would not be able to present a defence to
M the charge. M
(2) The prosecution should pay particular attention when
N drafting an indictment where there was evidence of N
charged acts and uncharged acts occurring on
overlapping dates. Unless there was evidence of a
O O
special fact to validate the charged act, a defendant
would find it difficult to know the date of the act with
P which he was charged and to present a relevant defence P
to the charge.
Q (3) The principles of evidence on “uncharged acts” were as Q
follows (Gipp v R (1998) 194 CLR 106, R v Nieterink
(1999) 76 SASR 56, R v Kostaras (2002) 133 A Crim R
R R
399 applied):-
S (a) The admissibility of “uncharged acts” depended S
on the individual circumstances of each case, and
the court was not bound to refuse to admit such
T evidence by reason of its nature alone (R v M(T) T
[2000] 1 WLR 421, HKSAR v Chan Pui Mun
U U
V V
-8-
A A
B (unrep., CACC 514/2006, [2008] HKEC 2071) B
applied; R v Pettman (unrep., English Court of
C Appeal, 2 May 1985) considered); C
(b) Even though such evidence was not used in a
D particular case as identification evidence of the D
defendant, or as similar fact evidence to prove
that the defendant had committed the offence
E charged, or by the defendant to challenge the E
credibility of the complainant, the court could
F still admit evidence of “uncharged acts” if its F
refusal to do so would result in the jury having an
incomplete or incomprehensible account of
G events, in circumstances including:- G
(i) To prove the setting and context in which
H H
the offence occurred; or
I (ii) To explain the defendant’s confidence in I
repeating the offence; or
J (iii) To explain unusual acts on the part of the J
complainant (such as the lack of surprise
or fear, or the lack of complaint, or acts of
K acquiescence) or; K
(iv) To explain why the complainant was
L L
unable to recall the specific date and
details of the offence charged.
M M
(c) The court should refuse to admit evidence of
“uncharged acts” if it considered that the
N prejudicial effect outweighed its probative force; N
O (d) However, if the court admitted evidence of O
“uncharged acts”, when directing the jury on
such evidence, the judge should be alert to two
P points namely: (i) the standard of proof; and (ii) P
the use to which such evidence could be put;
Q Q
(e) In general, the standard of proof for evidence of
“uncharged acts” was beyond reasonable doubt;
R R
(f) The use to which such evidence of “uncharged
acts” could be put include explaining the nature
S of relationship between the defendant and the S
complainant as well as the matters set out in (b)
T above, but the judge must specifically remind the T
jury that they might not infer from such evidence
that the defendant had committed similar
U U
V V
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A A
B offences, or that he was the sort of person likely B
to commit the offence.
C C
D 27. In the present case, although Mr Hemmings argued that the D
three charges faced by the defendant are not “sample charges” (Paragraph
E E
2 of the Defence Closing Submissions), he took no issue with the
F admissibility of the evidence of uncharged acts referred to in the video F
recorded interview of X, in fact, Mr Hemmings summited that the evidence
G G
of uncharged acts is relevant to the credibility of X (Paragraph 3 of the
H Defence Closing Submissions). H
I I
28. I am satisfied that the inclusion of the evidence of uncharged
J acts in the present case would not lead to unfairness to the defendant. It is J
not in dispute that the main duty of the defendant during the time she
K K
worked for the family was to take care of X during the daytime when both
L Y and Z were out for work. The case of the defendant is that she had never L
indecently assaulted X throughout the period she worked as a domestic
M M
helper, not that she did not have the opportunity to do so.
N N
29. Charge 1 allegedly took place on a day in the summer
O O
vacation of 2001. Charge 2 concerned the second occasion that the
P defendant indecently assaulted X, Charge 2 allegedly took place one week P
after Charge 1. Charge 3 concerned the only occasion that X said the
Q Q
defendant indecently assaulted in the toilet. I am satisfied that the
R R
defendant should have no difficult to know the approximate date of the
S
alleged indecent assault with which he was charged and to present a S
relevant defence to the charge.
T T
U U
V V
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A A
B B
30. In my judgment, the evidence of the uncharged acts should be
C admitted in order to show a complete and comprehensible account of C
events.
D D
E 31. The evidence of uncharged acts which allegedly took place E
after first two incidents (the subject matters of Charge 1 and 2) is relevant
F F
to show the setting and context in which Charge 3 took place.
G G
32. The evidence of uncharged acts which allegedly took place
H H
after first two incidents (the subject matters of Charge 1 and 2) is relevant
I to explain the defendant’s confidence in repeating the offence (ie Charge I
3).
J J
K 33. The evidence of uncharged acts is also relevant to explain the K
unusual acts on the part of X, ie his lack of complain.
L L
M 34. The evidence of uncharged acts which allegedly took place M
after first two incidents (the subject matters of Charge 1 and 2) is relevant
N N
to explain the inability on the part of X to recall the specific date and
O details of Charge 3. O
P P
35. The evidence of uncharged acts which allegedly took place
Q after first two incidents (the subject matters of Charge 1 and 2) can be used Q
to explain the relationship between the defendant and X.
R R
S 36. It is for the Prosecution to prove beyond reasonable doubt that S
the uncharged acts which allegedly took place after first two incidents (the
T T
subject matters of Charge 1 and 2) had in fact taken place.
U U
V V
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A A
B B
C 37. I would not infer from the evidence of uncharged acts that the C
defendant had committed similar offences, or that she was the sort of
D D
person likely to commit the three offences under complaint.
E E
Recent Complaint
F F
G 38. I agree with paragraph 20 of Mr Arthur’s Closing G
Submissions. In determining whether the complaints made by X to his
H H
parents (Y and Z) should be accepted as recent complaint, I should not
I adopt a literal application of the word “recent”, nor should I consider the I
notion of “recent” in vacuum ie to only consider the temporal proximity
J J
between the occurrence of the offence and the making of the complaint.
K This court should take into account all relevant facts and circumstances of K
the case including the subjective situation in which X was placed and
L L
factors that were operating on the child at the material time after the events.
M M
39. In considering whether the complaints made by X to his
N N
parents on 7 July 2015 amount to recent complaint, I have borne in mind
O the youthfulness of X. X had a fear of pregnancy and he panicked after he O
was taught the subject of animal reproduction at school. X’s fear over the
P P
matter is supported by the evidence of Y, on 7 July 2015, X was
Q emotionally very unstable and upon probing by Y, he confided that he had Q
committed a crime. The boy’s understanding of the wrongfulness of the
R R
alleged assaults on him was obviously limited as he told his mother that he
S himself had committed a criminal offence as a result of what the defendant S
had done on him.
T T
U U
V V
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A A
B B
40. I also find that the ability of X to make a complaint to his
C parents was more inhibited as we can see from P6, the statement of the C
teacher who taught X General Studies, the subject of animal reproduction
D D
was only taught to X sometime in January 2015 (See P6, the statement of
E the teacher). From the evidence of the mother, it is clear that not until the E
time the parents had to prepare X for school examination they did a
F F
revision with X over the topic of animal reproduction, before the revision
G and the short discussion, the parents had not discussed the topic of animal G
reproduction with X.
H H
I 41. I agree with Mr Arthur that “the temporal proximity between I
the last of the series of incidents and the complaint to his mother was a
J J
time span of about 2 years and 3 months. However, it was not actually
K until January 2015 that he realized that he had been violated and he K
further explains his failure to complain until the conversation with his
L L
mother on h July 2015. At that time, he was still not an adult – he was still
M a young juvenile aged 12 years 7 months.” (Paragraph 24 of the M
Prosecution Closing Submissions)
N N
O 42. X was cross-examined about why it took him over 2 years to O
make a complaint to his parents. X explained that he did not tell his parents
P P
what had happened as he was afraid that the defendant would leave her
Q employment, he failed to complain also for the reason that he was scared Q
and he did not know how to tell his parents. In my judgment, X’s failure to
R R
complain should be considered in the light of his age and understanding of
S the nature of things that had happened on him. I accept the evidence of X S
as to why he did not make a complaint before 7 July 2015.
T T
U U
V V
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A A
B B
43. On 7 July 2015, X went to school with Y for the school
C placement allotment result. The two then went to a McDonald Restaurant C
for meal. Y noticed that that X was emotionally unstable, he did not want
D D
to eat and asked to go home. After they returned home, Y had a discussion
E with X and it was then X uttered “I committed a crime.” He did not want to E
talk about what crime he had committed and he explained why he did not
F F
want to do so. After some comforting words by Y, X said “Che Che (the
G defendant) did something to me.” (“姐姐搞我”) Y asked X a leading G
question “Did she have sexual act with you?” X then cried and answered
H H
“Yes.”
I I
44. It is clear from the above that the “yes” from X which
J J
confirmed the preceding question by Y came from a leading question. I
K would not take the answer as a recent complaint. K
L L
45. Mr Arthur submitted that even the leading questions are put
M aside, the court is still left with the very real compliant that “Che Che did M
something to me.”
N N
O O
46. It is the Prosecution case that the indecent assaults by the
P
defendant on X took place on numerous occasions, it is impossible to P
discern from the utterance “Che Che did something to me” whether X was
Q Q
talking about the 3 occasions which are the subject matters of Charges 1 to
R 3 or some uncharged acts. Furthermore, bearing in mind the time lapse R
between January 2015 and 7 July 2015, I am not prepared to take the
S S
utterance of “Che Che did something to me.” made by X to his Y as recent
T complaints. What X told his father took place after the conversation with T
Y and the aforementioned leading question asked of X by Y.
U U
V V
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A A
B B
C 47. The evidence that X complained to his parents on 7 July 2015 C
is admissible to explain why a report to the Police was made by X and the
D D
parents on 7 July 2015.
E E
48. The above discussion on recent complaint does not impugn
F F
on the credibility on X’s evidence. During the time the defendant was in
G the employment of the family, X did not want the defendant to leave the G
household and he fear of the defendant leaving him overwhelmed any
H H
thought of complaining to his parents. He was only a very young boy at the
I time the alleged offences took place. After he was taught the subject of I
animal reproduction in January 2015, he just felt there was “something in
J J
his heart’, he did not know how to describe it but the stress he had made
K him not to tell his mother. He was panicked as he was afraid that K
pregnancy might result from what had happened previously. In my
L L
judgment, it is not unreasonable for a boy like X that he would allow
M himself to suffer the fear and panicked for long period of time until the M
matter reached a breaking point. The matter reached a breaking point on 7
N N
July 2015 when Y spoke to him about the school placement result and
O asked him his apparent unhappiness. O
P P
The Evidence of X
Q Q
49. It is not in dispute that the relationship between X’s family
R R
and the defendant had all along been good. The defendant left her
S
employment with X’s family on good terms. In fact, after the defendant S
T
had left her employment with X’s family in March 2013, Y invited the T
defendant to have a gathering with the family in December 2014 for the
U U
V V
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A A
B B
celebration of Christmas and the birthday of the defendant, which falls on
C 30 December. There is no reason why X, a boy of 13, should make up the C
allegations against the defendant in July 2015 when the defendant had left
D D
the family for more than 2 years.
E E
50. I treat the evidence of X with extreme care. By its very nature,
F F
an allegation of sexual assault is easy to make up but difficult to rebut. I
G am also aware that X gave his evidence unsworn. G
H H
51. I have borne in mind all the criticisms that Mr Hemmings
I made of X. I
J J
52. I do not agree with Mr Hemmings that “The juxtaposition of
K PW1 and the defendant as described by the boy during the alleged sexual K
assaults is anatomically impossible.” (Paragraph 13 of the Defence
L L
Closing Submissions)
M M
53. X, when cross-examined on the issue, said when the indecent
N N
assaults on the bunk bed took place, he was lying on the lower deck of the
O bunk bed, with his body lying across the bed horizontally, his head facing O
the window and his feet facing the door. He testified that his legs were
P P
apart but he could not remember if his feet were on the floor. His buttock
Q almost reached the edge of the bed. The defendant was in between his two Q
legs, leaning over. When X’s penis inserted into the private parts of the
R R
defendant, the defendant supported her body with her hands, which were
S on both sides of X. S
T T
U U
V V
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A A
B B
54. For the incident in the bathroom, X said under
C cross-examination that he was sitting on the toilet seat with his back C
against the cistern. The defendant leaned against X with her hands on the
D D
cistern. X’s legs were apart and the defendant’s legs were in between X’s.
E E
55. With respect to Mr Hemmings, I do not think the aforesaid
F F
evidence given by X shows that the assaults in the bed room and the
G bathroom as described by X were anatomically impossible. G
H H
56. Mr Hemmings criticized X for his failure to tell which part of
I the defendant’s body came into contact with his body (Paragraph 3 of the I
Defence Closing Submissions) Mr Hemmings was then cross-examining
J J
X about the indecent assaults in the bed room. One should bear in mind
K that X testified during cross-examination that during the assaults, his eyes K
were opened, he was looking at the ceiling and he could also see the face of
L L
the defendant. In my judgment, if X was looking at the face of the
M defendant and not his private parts, it is hardly surprising that X, a young M
boy who was put in fear at the time of the assaults, was not sure which part
N N
of the defendant’s body touched his.
O O
57. There is a ring of truth in some of the details given by X, eg he
P P
woke up late as it was the summer vacation and he did not have to go to
Q school (82), the defendant closed the window curtain after she had taken Q
off X’s pants, the room was still bright as the room door was kept opened
R R
and there was light from the corridor (219 – 227).
S S
T
58. Mr Hemmings said in paragraph 3 of his closing that, to his T
understanding, the incident in the bathroom (Charge 3) was the last
U U
V V
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A A
B B
occasion among the numerous indecent assaults referred to by X. Mr
C Arthur said in paragraph 7 of the Prosecution Closing submissions that the C
incident in the toilet (Charge 3) was within the few months when the
D D
defendant was about to leave, Mr Arthur drew the Court to counter 732 of
E the video recorded interview of X. E
F F
59. The following exchange took place between PC 2026 (A) and
G X (B) in the video recorded interview:- G
H H
723. A: Huh. Well, let me think again to see if there are any
more questions to ask you. Huh. Er, the – okay, on the, the
I second occasion, I have nothing further. Well, the third I
occasion, just now, you talked about the incident inside the
toilet….
J J
724. B: Not, not sure on which occasion it was in er – er the
toilet.
K 725. A: I see. K
726. B: Anyway, there was an occasion, but as there were a
number of occasions, (I) cannot remember it, I just remember
L the first and the second occasion. L
727. A: I see. (You) just remember the first occasion and the
M second occasion. M
728. B: But there were a number of occasions.
729. A: Mm. Huh. Well, er – the last occasion, when was the
N last occasion? N
730. B: Cannot remember.
731. A: (You) cannot remember when the last occasion was?
O O
732. B: I think, probably at the time, at the time, within the few
months when she (was about) to leave.
P P
60. In the later part of the interview, X was asked again about the
Q Q
time when the incident in the bathroom took place:
R R
737. A: Huh. Well, let me think again to see if there are further
S questions for you. Huh. That occasion in toilet, er, when was it S
at that time?
T
738. B: Probably in the morning after getting out of bed. T
739. A: Mm. Er, the year, can (you) remember the year? For
instance…
U U
V V
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A A
B 740. B: Cannot remember. B
741. A: Er…
C 742. B: I, I cannot remember how many times before this C
occasion, and (I) cannot remember what class I was, which year,
and which month either.
D D
61. In my judgment, the aforesaid answers given by X show that
E E
he was not sure when the incident in the toilet took place. The incident
F F
which took place within the few months the defendant was about to leave
G
was the last occasion X was indecently assaulted, not the approximate time G
when the incident in the bathroom took place. When X spoke of the last
H H
occasion, he was not referring to the incident in the bathroom.
I I
62. Mr Hemmings said in paragraph 9 of the Defence Closing
J J
Submissions:-
K K
“PW1 was perfectly clear in his evidence as to what form the
L alleged sexual assaults took. He said that on each occasion the L
defendant caressed his penis for about five minutes and then
leaned over his body and placed her vagina over his penis. At all
M material times his penis remained soft and he had no particular M
sensation. She told him to insert his penis into her vagina and he
N
did so. After that she moved up and down for about 5 minutes N
during which time his penis remained in her vagina. He said
during each incident his penis remained soft and without any
O sensation.” O
P 63. Mr Hemmings was referring to the video recorded interview P
of X, not his evidence under cross-examination.
Q Q
R R
64. My reading of the transcript of the video recorded of
S
interview differs from Mr Hemmings. S
T T
U U
V V
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A A
B B
65. X only said his penis was soft when he was asked about the
C first occasion. The following questions and answers between X (B) and C
the PC 2026 (A) concerned the first occasion, the officer was asking X
D D
about the condition of his penis when the defendant molested it:-
E E
283. A: Huh. Er – well, at that time, how was your er – penis at
F that time? Hard, soft, or how was it? F
284. B: Still soft.
285. A: Still soft, right?
G 286. B: Yes. G
H H
66. The officer was then asking X about the condition of his penis
I when the defendant molested it. The officer asked X about the condition of I
X’s penis again in counter 321 and the following exchange took place:-
J J
K
321. A: Er, and then, you said that er- she leaned forward. Well, K
after leaning forward, she – er, what did you feel?
322. B: None.
L 323. A: Huh. Er, at that time, how was your penis(?) Soft, hard L
or what?
324. B: Still soft.
M M
N 67. On both counters 284 and 324, X was talking about the first N
occasion he was sexually assaulted by the defendant.
O O
P 68. He did not say his penis remained soft when he was asked P
about other occasions.
Q Q
R 69. In counters 543 to 656, the officer was asking X about the R
second occasion, the following exchange concerned the condition of X’s
S S
penis:-
T T
U U
V V
- 20 -
A A
B 581: A: Huh. Well, at that time, how was er- your penis? Soft, B
hard, or what?
C 582: B: Not sure, cannot remember. C
D 70. In other words, X did not say his penis remained soft when D
Charge 2 took place.
E E
F 71. When X spoke about the incident in the bathroom, he was not F
asked and he did not say his penis remained soft. The only references to
G G
the condition of his penis appear in counters 853 to 858:-
H H
853. A: Huh. Er, did (you) feel any change of temperature, for
I instance, er- did your penis feel hot – er, er, hotter… I
854. B: Not sure.
J 855. A: …cooler or how? J
856. B: Not sure.
857. A: Speak up.
K 858. B: Not sure. K
L L
72. In paragraphs 10 and 11 of the Defence Closing Submissions,
M
Mr Hemmings submitted that Dr Ho opined that it is impossible for a boy M
of eight whose penis is soft to insert his penis into an adult woman’s vagina.
N N
Mr Hemmings submitted that in the light of Dr Ho’s testimony, the alleged
O sexual assaults relied upon by the prosecution could not possibly have O
taken place.
P P
Q 73. One should also note the evidence of Dr Ho that the ability of Q
a young male to achieve an erection is dependent on his stage of puberty at
R R
all.
S S
74. In my judgment, the criticisms that Mr Hemmings made of X
T T
should be read in the light of what X said in the video recorded interview,
U U
V V
- 21 -
A A
B B
not as Mr Hemmings said in paragraph 9 of the Defence Closing
C Submissions. C
D D
75. X was quite adamant that his penis had inserted into the
E defendant’s vagina on the first occasion. The following exchange E
concerned whether insertion of X’s penis into the defendant’s vagina took
F F
place on the first occasion:-
G G
335. A: Mm. Well, er – did your penis touch her private parts?
H 336. B: Yes. H
337. A: Huh. Did it touch the inside of her private parts, inside
or what?
I 338. B: Inside. I
339. A: Huh. That is, you felt your er – penis er - …
J 340. B: Inserted. J
341. A: …inserted into her private parts, right?
342. B: Yes.
K K
76. Though X said his penis remained soft, his evidence was clear,
L L
his penis inserted into the private parts of the defendant on the first
M occasion. I have considered carefully the apparent incongruity of X’s M
evidence that insertion took place when the penis remained soft. I bear in
N N
mind X was only 8 years old when the first alleged sexual assault on him
O O
took place, his knowledge of life was limited and his parents had not taught
P
him anything about sex education. In my judgment, a young boy like X P
who was put in fear when he experienced a sexual assault could easily get
Q Q
confused about the condition of his penis. I accept the evidence of X that
R he inserted his penis into the vagina of the defendant when the defendant R
leaned forward and positioned her vagina against the penis of X. It follows
S S
from my findings of insertion that X’s penis must then be in a state of
T erection. In my judgment, the state of erection was achieved after the T
defendant had molested X’s penis for a few minutes.
U U
V V
- 22 -
A A
B B
C 77. As for the second occasion and the occasion in the bathroom, C
I also accept the account given by X in his video recorded interview as true
D D
and reliable. I accept that on both occasions, X’s penis had inserted into
E the vagina of the defendant in the manner described by X. It follows from E
my findings of insertion that X’s penis must then be in a state of erection
F F
when the insertion took place on these two occasions. As in the case of
G Charge 1, the state of erection was achieved after the defendant had G
molested X’s penis for a few minutes.
H H
I 78. In the end, I find X an honest and reliable witness. I attach I
full weight to what he said in his video recorded interview and his evidence
J J
in court.
K K
The Evidence of the Parents (Y and Z)
L L
M 79. I find the evidence of Y and Z both credible and reliable. For M
the reasons given, I do not accept the evidence of X’s complaints to his
N N
parents on 7 July 2015 should be taken as recent complaints. The
O complaints made by X on 7 July 2015 explain why a report to the police O
was made on that day.
P P
Q 80. From the reference letter written by Y, it is clear that her Q
performance was held in high esteem by the witness.
R R
S S
T T
U U
V V
- 23 -
A A
B B
C The Evidence of the Defendant C
D D
81. The defendant has a clear record. I have considered the
E statement of the employer of the defendant at the time of her arrest. Given E
the good character of the defendant, she is more likely to tell the truth in
F F
her evidence and less likely to commit the three charges under complaint
G and the uncharged acts. G
H H
82. Mr Arthur aptly epitomized the evidence of the defendant as a
I complete denial of all the allegations (Paragraph 10 of the Prosecution I
Closing Submissions).
J J
K 83. When the defendant was cross-examined by Mr Arthur, she K
said she had no idea why X should make up the allegations of repeated
L L
sexual assaults against her. She agreed with Mr Arthur that apart from the
M allegations of sexual assaults, the defendant never had any concern about M
X being dishonest.
N N
O 84. When the defendant was asked if she ever saw X as a boy with O
wild fights of imagination, the defendant could only think of an occasion
P P
when X held the telephone receiver for no reason when X was 5 years old.
Q I agree with Mr Arthur that the act of a 5 years old kid holding a telephone Q
receiver is no more than an imaginative play. The defendant said X was a
R R
freak sometimes but the only incident that the defendant could speak of
S was the one when X was 5 years old and he got angry for reason that she S
did not know. In my judgment, it is a travesty of the true nature of events
T T
for the defendant to take the incident of X holding a telephone receiver as
U U
V V
- 24 -
A A
B B
an example of X being a boy with wild flights of imagination and to
C describe X as a freak for the reason she gave us. C
D D
85. It is not in dispute that the defendant first came to Hong Kong
E in 2001and started to work as a domestic helper. Before the defendant’s E
employment with X’s family, she had worked for 2 households between
F F
2001 and 2007. She started to work for X’s family in 2007. In my
G judgment, given her long period of stay in Hong Kong, the defendant’s G
evidence under cross-examination that she did not have luggage and she
H H
did not have a bag which could be zipped up does not have a ring of truth.
I I have considered the defendant’s evidence about her sexual orientation. I
She said she is not attracted to males and has never been intimate with a
J J
male. Since she came to Hong Kong in 2001, she had 2 lengthy same-sex
K relationships. She said she was not sexually active during the period in K
question, ie 1 July 2011 until 26 March 2013. In my judgment, the sexual
L L
orientation of the defendant does not preclude her from committing the 3
M offences and the uncharged acts in question. M
N N
The Uncharged Acts – the Findings
O O
86. I accept as true and reliable what X said in the video recorded
P P
interview about the uncharged acts. I am satisfied beyond reasonable
Q doubt that the uncharged acts mentioned by X had taken place in the way X Q
described. The evidence of the uncharged acts is admissible only for the
R R
purposes I identified and not for any other purpose.
S S
T T
U U
V V
- 25 -
A A
B B
87. As I said, I would not infer from the evidence of uncharged
C acts that the defendant had committed similar offences, or that she was the C
sort of person likely to commit the three offences under complaint.
D D
E Findings E
F F
88. On the evidence before me, I am satisfied beyond reasonable
G doubt the following had taken place:- G
H H
In relation to Charge 1:-
I I
(i) On an occasion when X was with the defendant in the
J J
flat on an unknown date between 1 July 2011 and 31
K August 2011, the defendant threw a temper for no K
apparent reason and said she would not take care of X
L L
anymore. The defendant seemed to pack up as if she
M was leaving. X was very scared and he asked the M
defendant not to leave.
N N
(ii) The defendant took X into her room and told X to lie on
O O
the bed. X did as told.
P P
(iii) The defendant took of X’s pants and then hers.
Q Q
(iv) The defendant molested X’s penis with of one of her
R hands. R
S (v) She leaned over X, positioned her vaginal against the S
penis of X and caused a penetration of X’s penis into
T T
her vagina.
U U
V V
- 26 -
A A
B B
(vi) It is not clear from the evidence if X had ejaculated.
C C
In relation to Charge 2:-
D D
E (i) The defendant did the same to X for the second time E
one week later. There was on one else in the flat. She
F F
said to X that she would leave unless X would follow
G her into her room. X was scared as he worried that she G
would leave. He did as told.
H H
(ii) The defendant did the same thing as she did on the first
I I
occasion, molested X’s penis and then caused a
J penetration of X’s penis into her vagina. J
K (iii) It is not clear from the evidence if X had ejaculated. K
L L
In relation to Charge 3:-
M M
N (i) On one occasion when X was indecent assaulted in the N
toilet of the flat, that occasion took place after Charge 1
O O
and 2 but before the defendant left her employment on
P 26th March 2013. P
Q (ii) The defendant took off X’s pants, then her own pants Q
inside the toilet. X was made to sit on the toilet seat.
R R
(iii) The defendant molested X’s penis and then caused a
S S
penetration of X’s penis into her vagina.
T (iv) It is not clear from the evidence if X had ejaculated. T
U U
V V
- 27 -
A A
B B
Verdict
C C
89. On the evidence before me, I am satisfied beyond reasonable
D D
doubt that all the elements of the offence in relation to Charges 1 to 3 are
E proved against the defendant. E
F F
90. For the reasons given, I find the defendant guilty of Charges 1
G to 3. G
H H
I I
J J
( Johnny Chan )
District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 755/2015
C C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 755 OF 2015
F F
G ------------------------ G
HKSAR
H H
v
I S. R. M. I
-------------------------
J J
K Before: HH Judge Johnny Chan K
Date: 29 February 2016 at 2.30 pm
L L
Present: Mr Michael Arthur, Counsel on fiat, for HKSAR
M Mr John D.B. Hemmings, instructed by Massie & Clement M
assigned by the Director of Legal Aid, for the defendant
N N
Offences: [1]-[3] Indecent assault on another person (猥褻侵犯另一人)
O O
P
--------------------------------------- P
REASONS FOR VERDICT
Q Q
---------------------------------------
R R
The Charges and Pleas
S S
T 1. The defendant appeared before me facing 3 charges of T
Indecent Assault (Charge 1 to 3).
U U
V V
-2-
A A
B B
C 2. All 3 charges concern X, a boy born on the 31 December C
2002.
D D
E 3. All 3 offences allegedly took place in a flat in Kwai Chung E
where X lived with his parents and elder sister since birth. The defendant
F F
worked as a live-in domestic helper for X’s family when the offences
G allegedly took place. G
H H
4. Charge 1 allegedly took place on a day unknown between
I 1 July 2011 and 31 August 2011. X was about 8 years and 7 months on I
1 July 2011.
J J
K 5. Charge 2 allegedly took place on a day unknown between K
1 July 2011 and 31 August 2011, on an occasion other than that as
L L
particularized in Charge1. The Prosecution says Charge 2 took place 1
M week after the defendant committed Charge 1. M
N N
6. Charge 3 allegedly took place on a day unknown between
O 1 July 2011 and 26 March 2013, on an occasion other than that as O
particularized in Charge 1 and 2. X was aged about 10 years and 2 months
P P
on 26 March 2013.
Q Q
7. The Defendant pleaded not guilty to all charges.
R R
S S
T T
U U
V V
-3-
A A
B B
C The Prosecution Case C
D D
8. As said, it is the Prosecution case that the defendant
E indecently assaulted X in the flat that X’s family resided when she worked E
as a domestic helper for X’s family.
F F
G 9. X was 8 years and 7 months old when the first incident of G
indecent assault (Charge 1) took place, the second incident of incident
H H
assault (Charge 2) took place one week after the first incident. Charge 1
I and 2 took place during the summer vacation and X was home alone with I
the defendant. Both Charge 1 and 2 took place on the bunk bed inside the
J J
bed room of the defendant.
K K
10. The Prosecution says the defendant had indecently assaulted
L L
X on numerous occasions during the period between 1 July 2011 and 26
M March 2013. On one occasion, the defendant indecently assaulted X in the M
toilet, that incident is the subject matter of Charge 3.
N N
O 11. On all occasions, the Prosecution says the defendant would O
remove the pants of X and then her own pants. She would then molest the
P P
penis of X, position her vagina against the penis and cause a penetration.
Q Q
12. X did not make any complaint until about the indecent
R R
assaults by the defendant until 1 July 2015.
S S
T
13. The Prosecution case depends on the evidence of X. T
U U
V V
-4-
A A
B B
C The Admitted Facts C
D D
14. Facts which are not in disputes are admitted pursuant to
E Section 65C of the Criminal Procedure Ordinance, Cap 211. It is admitted E
that:-
F F
G (i) X (“PW1”) was born on 31st December 2002; G
(ii) X lived with his mother Y (“PW2”) and father Z
H H
(“PW3”) and sister in a flat (“the flat”) in Kwai Chung
I since he was born; I
(iii) A report was made to the police by X and his parents on
J J
7 July 2015;
K (iv) A video recorded interview was conducted with X on 9 K
July 2015 between 3:26 pm and 4:46 pm. The record
L L
of interview was produced as P1 and adopted as the
M evidence in chief of X; M
(v) The defendant was interviewed by the police on 14 and
N N
15 July 2015. She participated in both interviews
O voluntarily. Mr Arthur, counsel on fiat, did not seek to O
produce them as evidence;
P P
(vi) 35 photographs of the flat were taken by the police on
Q 14 July 2015. P5 is the album of the photographs; Q
(vii) P4 is a sketch plan of the flat drawn by the police;
R R
(viii) The chain of evidence in respect of the exhibits is
S admitted; and S
(ix) The defendant has a clear record in Hong Kong.
T T
U U
V V
-5-
A A
B B
Witnesses Called by the Prosecution
C C
15. The Prosecution called 4 witnesses, they are:-
D D
(i) PW1 - Boy X (X was 13 years old at the time of the trial,
E he gave his evidence unsworn); E
(ii) PW2 - Madam Y (the mother of X);
F F
(iii) PW3 - Z (X’s father), who is a serving police officer;
G and G
(iv) PW4 - Dr Ho Tsz Wai, Dr Ho is a pediatrician and she
H H
gave evidence as an expert witness.
I I
A Case to Answer and the Defendant’s Election
J J
K 16. After Mr Arthur closed the case for the Prosecution, I ruled K
that the defendant had a case to answer on all 3 charges. She elected to
L L
give evidence but called no defence witness.
M M
Witness Statements and Reference Letter Produced by Consent
N N
O 17. In addition to the exhibits produced under the Admitted Facts, O
two statements were produced pursuant to Section 65B of the Criminal
P P
Procedure Ordinance:-
Q Q
(i) a statement made by the General Studies teacher of X
R R
in the school year 2014-2015 (P6 the original and P6a
S the certified translation); and S
T T
U U
V V
-6-
A A
B B
(ii) a statement made by the employer of the defendant at
C the time of her arrest was produced as Exhibit D2. C
D
18. A reference letter written by Madam Y dated 30 March 2013 D
was produced as Exhibit D1.
E E
F The Defence Case F
G G
19. The defendant denied she had ever indecently assaulted X.
H She said X was lying. The defendant had no idea why X made up the story. H
I I
20. The defendant admitted that relationship between X’s family
J and the defendant had all along been good. J
K K
21. The defendant said she is a lesbian and she is not attracted to
L males. She has never been intimate with a male. She had two lengthy L
same-sex relationships in Hong Kong. She said during the period between
M M
1 July 2011 and 26 March 2013, she was not sexually active.
N N
Closing Submissions
O O
P 22. I am grateful to Mr Arthur and Mr Hemmings for their P
detailed and careful closing submissions.
Q Q
R 23. I have considered all the evidence I received and submissions R
by counsel before my verdict.
S S
T The Evidence of Uncharged Acts T
U U
V V
-7-
A A
B B
24. It is the Prosecution case that the defendant had indecently
C assaulted X on numerous occasions and the three charges which the C
defendant faces are representative charges (Paragraph 16 of the
D D
Prosecution Closing Submissions).
E E
25. The video interview of X contains evidence of uncharged
F F
acts.
G G
26. The principles of evidence on “uncharged acts” were
H H
discussed in HKSAR v Kwok Hing Tony [2010] 3 HKLRD 769. The Court
I of Appeal held in Kwok that:- I
J J
“(1) When a defendant faced an offence on an unknown date
within a lengthy period of time at a location where the
K complainant and the defendant were often likely to meet, K
evidence of “uncharged acts” might lead to unfairness to
the defendant because if he could not distinguish acts
L L
with which he was charged with from those with which
he was not, he would not be able to present a defence to
M the charge. M
(2) The prosecution should pay particular attention when
N drafting an indictment where there was evidence of N
charged acts and uncharged acts occurring on
overlapping dates. Unless there was evidence of a
O O
special fact to validate the charged act, a defendant
would find it difficult to know the date of the act with
P which he was charged and to present a relevant defence P
to the charge.
Q (3) The principles of evidence on “uncharged acts” were as Q
follows (Gipp v R (1998) 194 CLR 106, R v Nieterink
(1999) 76 SASR 56, R v Kostaras (2002) 133 A Crim R
R R
399 applied):-
S (a) The admissibility of “uncharged acts” depended S
on the individual circumstances of each case, and
the court was not bound to refuse to admit such
T evidence by reason of its nature alone (R v M(T) T
[2000] 1 WLR 421, HKSAR v Chan Pui Mun
U U
V V
-8-
A A
B (unrep., CACC 514/2006, [2008] HKEC 2071) B
applied; R v Pettman (unrep., English Court of
C Appeal, 2 May 1985) considered); C
(b) Even though such evidence was not used in a
D particular case as identification evidence of the D
defendant, or as similar fact evidence to prove
that the defendant had committed the offence
E charged, or by the defendant to challenge the E
credibility of the complainant, the court could
F still admit evidence of “uncharged acts” if its F
refusal to do so would result in the jury having an
incomplete or incomprehensible account of
G events, in circumstances including:- G
(i) To prove the setting and context in which
H H
the offence occurred; or
I (ii) To explain the defendant’s confidence in I
repeating the offence; or
J (iii) To explain unusual acts on the part of the J
complainant (such as the lack of surprise
or fear, or the lack of complaint, or acts of
K acquiescence) or; K
(iv) To explain why the complainant was
L L
unable to recall the specific date and
details of the offence charged.
M M
(c) The court should refuse to admit evidence of
“uncharged acts” if it considered that the
N prejudicial effect outweighed its probative force; N
O (d) However, if the court admitted evidence of O
“uncharged acts”, when directing the jury on
such evidence, the judge should be alert to two
P points namely: (i) the standard of proof; and (ii) P
the use to which such evidence could be put;
Q Q
(e) In general, the standard of proof for evidence of
“uncharged acts” was beyond reasonable doubt;
R R
(f) The use to which such evidence of “uncharged
acts” could be put include explaining the nature
S of relationship between the defendant and the S
complainant as well as the matters set out in (b)
T above, but the judge must specifically remind the T
jury that they might not infer from such evidence
that the defendant had committed similar
U U
V V
-9-
A A
B offences, or that he was the sort of person likely B
to commit the offence.
C C
D 27. In the present case, although Mr Hemmings argued that the D
three charges faced by the defendant are not “sample charges” (Paragraph
E E
2 of the Defence Closing Submissions), he took no issue with the
F admissibility of the evidence of uncharged acts referred to in the video F
recorded interview of X, in fact, Mr Hemmings summited that the evidence
G G
of uncharged acts is relevant to the credibility of X (Paragraph 3 of the
H Defence Closing Submissions). H
I I
28. I am satisfied that the inclusion of the evidence of uncharged
J acts in the present case would not lead to unfairness to the defendant. It is J
not in dispute that the main duty of the defendant during the time she
K K
worked for the family was to take care of X during the daytime when both
L Y and Z were out for work. The case of the defendant is that she had never L
indecently assaulted X throughout the period she worked as a domestic
M M
helper, not that she did not have the opportunity to do so.
N N
29. Charge 1 allegedly took place on a day in the summer
O O
vacation of 2001. Charge 2 concerned the second occasion that the
P defendant indecently assaulted X, Charge 2 allegedly took place one week P
after Charge 1. Charge 3 concerned the only occasion that X said the
Q Q
defendant indecently assaulted in the toilet. I am satisfied that the
R R
defendant should have no difficult to know the approximate date of the
S
alleged indecent assault with which he was charged and to present a S
relevant defence to the charge.
T T
U U
V V
- 10 -
A A
B B
30. In my judgment, the evidence of the uncharged acts should be
C admitted in order to show a complete and comprehensible account of C
events.
D D
E 31. The evidence of uncharged acts which allegedly took place E
after first two incidents (the subject matters of Charge 1 and 2) is relevant
F F
to show the setting and context in which Charge 3 took place.
G G
32. The evidence of uncharged acts which allegedly took place
H H
after first two incidents (the subject matters of Charge 1 and 2) is relevant
I to explain the defendant’s confidence in repeating the offence (ie Charge I
3).
J J
K 33. The evidence of uncharged acts is also relevant to explain the K
unusual acts on the part of X, ie his lack of complain.
L L
M 34. The evidence of uncharged acts which allegedly took place M
after first two incidents (the subject matters of Charge 1 and 2) is relevant
N N
to explain the inability on the part of X to recall the specific date and
O details of Charge 3. O
P P
35. The evidence of uncharged acts which allegedly took place
Q after first two incidents (the subject matters of Charge 1 and 2) can be used Q
to explain the relationship between the defendant and X.
R R
S 36. It is for the Prosecution to prove beyond reasonable doubt that S
the uncharged acts which allegedly took place after first two incidents (the
T T
subject matters of Charge 1 and 2) had in fact taken place.
U U
V V
- 11 -
A A
B B
C 37. I would not infer from the evidence of uncharged acts that the C
defendant had committed similar offences, or that she was the sort of
D D
person likely to commit the three offences under complaint.
E E
Recent Complaint
F F
G 38. I agree with paragraph 20 of Mr Arthur’s Closing G
Submissions. In determining whether the complaints made by X to his
H H
parents (Y and Z) should be accepted as recent complaint, I should not
I adopt a literal application of the word “recent”, nor should I consider the I
notion of “recent” in vacuum ie to only consider the temporal proximity
J J
between the occurrence of the offence and the making of the complaint.
K This court should take into account all relevant facts and circumstances of K
the case including the subjective situation in which X was placed and
L L
factors that were operating on the child at the material time after the events.
M M
39. In considering whether the complaints made by X to his
N N
parents on 7 July 2015 amount to recent complaint, I have borne in mind
O the youthfulness of X. X had a fear of pregnancy and he panicked after he O
was taught the subject of animal reproduction at school. X’s fear over the
P P
matter is supported by the evidence of Y, on 7 July 2015, X was
Q emotionally very unstable and upon probing by Y, he confided that he had Q
committed a crime. The boy’s understanding of the wrongfulness of the
R R
alleged assaults on him was obviously limited as he told his mother that he
S himself had committed a criminal offence as a result of what the defendant S
had done on him.
T T
U U
V V
- 12 -
A A
B B
40. I also find that the ability of X to make a complaint to his
C parents was more inhibited as we can see from P6, the statement of the C
teacher who taught X General Studies, the subject of animal reproduction
D D
was only taught to X sometime in January 2015 (See P6, the statement of
E the teacher). From the evidence of the mother, it is clear that not until the E
time the parents had to prepare X for school examination they did a
F F
revision with X over the topic of animal reproduction, before the revision
G and the short discussion, the parents had not discussed the topic of animal G
reproduction with X.
H H
I 41. I agree with Mr Arthur that “the temporal proximity between I
the last of the series of incidents and the complaint to his mother was a
J J
time span of about 2 years and 3 months. However, it was not actually
K until January 2015 that he realized that he had been violated and he K
further explains his failure to complain until the conversation with his
L L
mother on h July 2015. At that time, he was still not an adult – he was still
M a young juvenile aged 12 years 7 months.” (Paragraph 24 of the M
Prosecution Closing Submissions)
N N
O 42. X was cross-examined about why it took him over 2 years to O
make a complaint to his parents. X explained that he did not tell his parents
P P
what had happened as he was afraid that the defendant would leave her
Q employment, he failed to complain also for the reason that he was scared Q
and he did not know how to tell his parents. In my judgment, X’s failure to
R R
complain should be considered in the light of his age and understanding of
S the nature of things that had happened on him. I accept the evidence of X S
as to why he did not make a complaint before 7 July 2015.
T T
U U
V V
- 13 -
A A
B B
43. On 7 July 2015, X went to school with Y for the school
C placement allotment result. The two then went to a McDonald Restaurant C
for meal. Y noticed that that X was emotionally unstable, he did not want
D D
to eat and asked to go home. After they returned home, Y had a discussion
E with X and it was then X uttered “I committed a crime.” He did not want to E
talk about what crime he had committed and he explained why he did not
F F
want to do so. After some comforting words by Y, X said “Che Che (the
G defendant) did something to me.” (“姐姐搞我”) Y asked X a leading G
question “Did she have sexual act with you?” X then cried and answered
H H
“Yes.”
I I
44. It is clear from the above that the “yes” from X which
J J
confirmed the preceding question by Y came from a leading question. I
K would not take the answer as a recent complaint. K
L L
45. Mr Arthur submitted that even the leading questions are put
M aside, the court is still left with the very real compliant that “Che Che did M
something to me.”
N N
O O
46. It is the Prosecution case that the indecent assaults by the
P
defendant on X took place on numerous occasions, it is impossible to P
discern from the utterance “Che Che did something to me” whether X was
Q Q
talking about the 3 occasions which are the subject matters of Charges 1 to
R 3 or some uncharged acts. Furthermore, bearing in mind the time lapse R
between January 2015 and 7 July 2015, I am not prepared to take the
S S
utterance of “Che Che did something to me.” made by X to his Y as recent
T complaints. What X told his father took place after the conversation with T
Y and the aforementioned leading question asked of X by Y.
U U
V V
- 14 -
A A
B B
C 47. The evidence that X complained to his parents on 7 July 2015 C
is admissible to explain why a report to the Police was made by X and the
D D
parents on 7 July 2015.
E E
48. The above discussion on recent complaint does not impugn
F F
on the credibility on X’s evidence. During the time the defendant was in
G the employment of the family, X did not want the defendant to leave the G
household and he fear of the defendant leaving him overwhelmed any
H H
thought of complaining to his parents. He was only a very young boy at the
I time the alleged offences took place. After he was taught the subject of I
animal reproduction in January 2015, he just felt there was “something in
J J
his heart’, he did not know how to describe it but the stress he had made
K him not to tell his mother. He was panicked as he was afraid that K
pregnancy might result from what had happened previously. In my
L L
judgment, it is not unreasonable for a boy like X that he would allow
M himself to suffer the fear and panicked for long period of time until the M
matter reached a breaking point. The matter reached a breaking point on 7
N N
July 2015 when Y spoke to him about the school placement result and
O asked him his apparent unhappiness. O
P P
The Evidence of X
Q Q
49. It is not in dispute that the relationship between X’s family
R R
and the defendant had all along been good. The defendant left her
S
employment with X’s family on good terms. In fact, after the defendant S
T
had left her employment with X’s family in March 2013, Y invited the T
defendant to have a gathering with the family in December 2014 for the
U U
V V
- 15 -
A A
B B
celebration of Christmas and the birthday of the defendant, which falls on
C 30 December. There is no reason why X, a boy of 13, should make up the C
allegations against the defendant in July 2015 when the defendant had left
D D
the family for more than 2 years.
E E
50. I treat the evidence of X with extreme care. By its very nature,
F F
an allegation of sexual assault is easy to make up but difficult to rebut. I
G am also aware that X gave his evidence unsworn. G
H H
51. I have borne in mind all the criticisms that Mr Hemmings
I made of X. I
J J
52. I do not agree with Mr Hemmings that “The juxtaposition of
K PW1 and the defendant as described by the boy during the alleged sexual K
assaults is anatomically impossible.” (Paragraph 13 of the Defence
L L
Closing Submissions)
M M
53. X, when cross-examined on the issue, said when the indecent
N N
assaults on the bunk bed took place, he was lying on the lower deck of the
O bunk bed, with his body lying across the bed horizontally, his head facing O
the window and his feet facing the door. He testified that his legs were
P P
apart but he could not remember if his feet were on the floor. His buttock
Q almost reached the edge of the bed. The defendant was in between his two Q
legs, leaning over. When X’s penis inserted into the private parts of the
R R
defendant, the defendant supported her body with her hands, which were
S on both sides of X. S
T T
U U
V V
- 16 -
A A
B B
54. For the incident in the bathroom, X said under
C cross-examination that he was sitting on the toilet seat with his back C
against the cistern. The defendant leaned against X with her hands on the
D D
cistern. X’s legs were apart and the defendant’s legs were in between X’s.
E E
55. With respect to Mr Hemmings, I do not think the aforesaid
F F
evidence given by X shows that the assaults in the bed room and the
G bathroom as described by X were anatomically impossible. G
H H
56. Mr Hemmings criticized X for his failure to tell which part of
I the defendant’s body came into contact with his body (Paragraph 3 of the I
Defence Closing Submissions) Mr Hemmings was then cross-examining
J J
X about the indecent assaults in the bed room. One should bear in mind
K that X testified during cross-examination that during the assaults, his eyes K
were opened, he was looking at the ceiling and he could also see the face of
L L
the defendant. In my judgment, if X was looking at the face of the
M defendant and not his private parts, it is hardly surprising that X, a young M
boy who was put in fear at the time of the assaults, was not sure which part
N N
of the defendant’s body touched his.
O O
57. There is a ring of truth in some of the details given by X, eg he
P P
woke up late as it was the summer vacation and he did not have to go to
Q school (82), the defendant closed the window curtain after she had taken Q
off X’s pants, the room was still bright as the room door was kept opened
R R
and there was light from the corridor (219 – 227).
S S
T
58. Mr Hemmings said in paragraph 3 of his closing that, to his T
understanding, the incident in the bathroom (Charge 3) was the last
U U
V V
- 17 -
A A
B B
occasion among the numerous indecent assaults referred to by X. Mr
C Arthur said in paragraph 7 of the Prosecution Closing submissions that the C
incident in the toilet (Charge 3) was within the few months when the
D D
defendant was about to leave, Mr Arthur drew the Court to counter 732 of
E the video recorded interview of X. E
F F
59. The following exchange took place between PC 2026 (A) and
G X (B) in the video recorded interview:- G
H H
723. A: Huh. Well, let me think again to see if there are any
more questions to ask you. Huh. Er, the – okay, on the, the
I second occasion, I have nothing further. Well, the third I
occasion, just now, you talked about the incident inside the
toilet….
J J
724. B: Not, not sure on which occasion it was in er – er the
toilet.
K 725. A: I see. K
726. B: Anyway, there was an occasion, but as there were a
number of occasions, (I) cannot remember it, I just remember
L the first and the second occasion. L
727. A: I see. (You) just remember the first occasion and the
M second occasion. M
728. B: But there were a number of occasions.
729. A: Mm. Huh. Well, er – the last occasion, when was the
N last occasion? N
730. B: Cannot remember.
731. A: (You) cannot remember when the last occasion was?
O O
732. B: I think, probably at the time, at the time, within the few
months when she (was about) to leave.
P P
60. In the later part of the interview, X was asked again about the
Q Q
time when the incident in the bathroom took place:
R R
737. A: Huh. Well, let me think again to see if there are further
S questions for you. Huh. That occasion in toilet, er, when was it S
at that time?
T
738. B: Probably in the morning after getting out of bed. T
739. A: Mm. Er, the year, can (you) remember the year? For
instance…
U U
V V
- 18 -
A A
B 740. B: Cannot remember. B
741. A: Er…
C 742. B: I, I cannot remember how many times before this C
occasion, and (I) cannot remember what class I was, which year,
and which month either.
D D
61. In my judgment, the aforesaid answers given by X show that
E E
he was not sure when the incident in the toilet took place. The incident
F F
which took place within the few months the defendant was about to leave
G
was the last occasion X was indecently assaulted, not the approximate time G
when the incident in the bathroom took place. When X spoke of the last
H H
occasion, he was not referring to the incident in the bathroom.
I I
62. Mr Hemmings said in paragraph 9 of the Defence Closing
J J
Submissions:-
K K
“PW1 was perfectly clear in his evidence as to what form the
L alleged sexual assaults took. He said that on each occasion the L
defendant caressed his penis for about five minutes and then
leaned over his body and placed her vagina over his penis. At all
M material times his penis remained soft and he had no particular M
sensation. She told him to insert his penis into her vagina and he
N
did so. After that she moved up and down for about 5 minutes N
during which time his penis remained in her vagina. He said
during each incident his penis remained soft and without any
O sensation.” O
P 63. Mr Hemmings was referring to the video recorded interview P
of X, not his evidence under cross-examination.
Q Q
R R
64. My reading of the transcript of the video recorded of
S
interview differs from Mr Hemmings. S
T T
U U
V V
- 19 -
A A
B B
65. X only said his penis was soft when he was asked about the
C first occasion. The following questions and answers between X (B) and C
the PC 2026 (A) concerned the first occasion, the officer was asking X
D D
about the condition of his penis when the defendant molested it:-
E E
283. A: Huh. Er – well, at that time, how was your er – penis at
F that time? Hard, soft, or how was it? F
284. B: Still soft.
285. A: Still soft, right?
G 286. B: Yes. G
H H
66. The officer was then asking X about the condition of his penis
I when the defendant molested it. The officer asked X about the condition of I
X’s penis again in counter 321 and the following exchange took place:-
J J
K
321. A: Er, and then, you said that er- she leaned forward. Well, K
after leaning forward, she – er, what did you feel?
322. B: None.
L 323. A: Huh. Er, at that time, how was your penis(?) Soft, hard L
or what?
324. B: Still soft.
M M
N 67. On both counters 284 and 324, X was talking about the first N
occasion he was sexually assaulted by the defendant.
O O
P 68. He did not say his penis remained soft when he was asked P
about other occasions.
Q Q
R 69. In counters 543 to 656, the officer was asking X about the R
second occasion, the following exchange concerned the condition of X’s
S S
penis:-
T T
U U
V V
- 20 -
A A
B 581: A: Huh. Well, at that time, how was er- your penis? Soft, B
hard, or what?
C 582: B: Not sure, cannot remember. C
D 70. In other words, X did not say his penis remained soft when D
Charge 2 took place.
E E
F 71. When X spoke about the incident in the bathroom, he was not F
asked and he did not say his penis remained soft. The only references to
G G
the condition of his penis appear in counters 853 to 858:-
H H
853. A: Huh. Er, did (you) feel any change of temperature, for
I instance, er- did your penis feel hot – er, er, hotter… I
854. B: Not sure.
J 855. A: …cooler or how? J
856. B: Not sure.
857. A: Speak up.
K 858. B: Not sure. K
L L
72. In paragraphs 10 and 11 of the Defence Closing Submissions,
M
Mr Hemmings submitted that Dr Ho opined that it is impossible for a boy M
of eight whose penis is soft to insert his penis into an adult woman’s vagina.
N N
Mr Hemmings submitted that in the light of Dr Ho’s testimony, the alleged
O sexual assaults relied upon by the prosecution could not possibly have O
taken place.
P P
Q 73. One should also note the evidence of Dr Ho that the ability of Q
a young male to achieve an erection is dependent on his stage of puberty at
R R
all.
S S
74. In my judgment, the criticisms that Mr Hemmings made of X
T T
should be read in the light of what X said in the video recorded interview,
U U
V V
- 21 -
A A
B B
not as Mr Hemmings said in paragraph 9 of the Defence Closing
C Submissions. C
D D
75. X was quite adamant that his penis had inserted into the
E defendant’s vagina on the first occasion. The following exchange E
concerned whether insertion of X’s penis into the defendant’s vagina took
F F
place on the first occasion:-
G G
335. A: Mm. Well, er – did your penis touch her private parts?
H 336. B: Yes. H
337. A: Huh. Did it touch the inside of her private parts, inside
or what?
I 338. B: Inside. I
339. A: Huh. That is, you felt your er – penis er - …
J 340. B: Inserted. J
341. A: …inserted into her private parts, right?
342. B: Yes.
K K
76. Though X said his penis remained soft, his evidence was clear,
L L
his penis inserted into the private parts of the defendant on the first
M occasion. I have considered carefully the apparent incongruity of X’s M
evidence that insertion took place when the penis remained soft. I bear in
N N
mind X was only 8 years old when the first alleged sexual assault on him
O O
took place, his knowledge of life was limited and his parents had not taught
P
him anything about sex education. In my judgment, a young boy like X P
who was put in fear when he experienced a sexual assault could easily get
Q Q
confused about the condition of his penis. I accept the evidence of X that
R he inserted his penis into the vagina of the defendant when the defendant R
leaned forward and positioned her vagina against the penis of X. It follows
S S
from my findings of insertion that X’s penis must then be in a state of
T erection. In my judgment, the state of erection was achieved after the T
defendant had molested X’s penis for a few minutes.
U U
V V
- 22 -
A A
B B
C 77. As for the second occasion and the occasion in the bathroom, C
I also accept the account given by X in his video recorded interview as true
D D
and reliable. I accept that on both occasions, X’s penis had inserted into
E the vagina of the defendant in the manner described by X. It follows from E
my findings of insertion that X’s penis must then be in a state of erection
F F
when the insertion took place on these two occasions. As in the case of
G Charge 1, the state of erection was achieved after the defendant had G
molested X’s penis for a few minutes.
H H
I 78. In the end, I find X an honest and reliable witness. I attach I
full weight to what he said in his video recorded interview and his evidence
J J
in court.
K K
The Evidence of the Parents (Y and Z)
L L
M 79. I find the evidence of Y and Z both credible and reliable. For M
the reasons given, I do not accept the evidence of X’s complaints to his
N N
parents on 7 July 2015 should be taken as recent complaints. The
O complaints made by X on 7 July 2015 explain why a report to the police O
was made on that day.
P P
Q 80. From the reference letter written by Y, it is clear that her Q
performance was held in high esteem by the witness.
R R
S S
T T
U U
V V
- 23 -
A A
B B
C The Evidence of the Defendant C
D D
81. The defendant has a clear record. I have considered the
E statement of the employer of the defendant at the time of her arrest. Given E
the good character of the defendant, she is more likely to tell the truth in
F F
her evidence and less likely to commit the three charges under complaint
G and the uncharged acts. G
H H
82. Mr Arthur aptly epitomized the evidence of the defendant as a
I complete denial of all the allegations (Paragraph 10 of the Prosecution I
Closing Submissions).
J J
K 83. When the defendant was cross-examined by Mr Arthur, she K
said she had no idea why X should make up the allegations of repeated
L L
sexual assaults against her. She agreed with Mr Arthur that apart from the
M allegations of sexual assaults, the defendant never had any concern about M
X being dishonest.
N N
O 84. When the defendant was asked if she ever saw X as a boy with O
wild fights of imagination, the defendant could only think of an occasion
P P
when X held the telephone receiver for no reason when X was 5 years old.
Q I agree with Mr Arthur that the act of a 5 years old kid holding a telephone Q
receiver is no more than an imaginative play. The defendant said X was a
R R
freak sometimes but the only incident that the defendant could speak of
S was the one when X was 5 years old and he got angry for reason that she S
did not know. In my judgment, it is a travesty of the true nature of events
T T
for the defendant to take the incident of X holding a telephone receiver as
U U
V V
- 24 -
A A
B B
an example of X being a boy with wild flights of imagination and to
C describe X as a freak for the reason she gave us. C
D D
85. It is not in dispute that the defendant first came to Hong Kong
E in 2001and started to work as a domestic helper. Before the defendant’s E
employment with X’s family, she had worked for 2 households between
F F
2001 and 2007. She started to work for X’s family in 2007. In my
G judgment, given her long period of stay in Hong Kong, the defendant’s G
evidence under cross-examination that she did not have luggage and she
H H
did not have a bag which could be zipped up does not have a ring of truth.
I I have considered the defendant’s evidence about her sexual orientation. I
She said she is not attracted to males and has never been intimate with a
J J
male. Since she came to Hong Kong in 2001, she had 2 lengthy same-sex
K relationships. She said she was not sexually active during the period in K
question, ie 1 July 2011 until 26 March 2013. In my judgment, the sexual
L L
orientation of the defendant does not preclude her from committing the 3
M offences and the uncharged acts in question. M
N N
The Uncharged Acts – the Findings
O O
86. I accept as true and reliable what X said in the video recorded
P P
interview about the uncharged acts. I am satisfied beyond reasonable
Q doubt that the uncharged acts mentioned by X had taken place in the way X Q
described. The evidence of the uncharged acts is admissible only for the
R R
purposes I identified and not for any other purpose.
S S
T T
U U
V V
- 25 -
A A
B B
87. As I said, I would not infer from the evidence of uncharged
C acts that the defendant had committed similar offences, or that she was the C
sort of person likely to commit the three offences under complaint.
D D
E Findings E
F F
88. On the evidence before me, I am satisfied beyond reasonable
G doubt the following had taken place:- G
H H
In relation to Charge 1:-
I I
(i) On an occasion when X was with the defendant in the
J J
flat on an unknown date between 1 July 2011 and 31
K August 2011, the defendant threw a temper for no K
apparent reason and said she would not take care of X
L L
anymore. The defendant seemed to pack up as if she
M was leaving. X was very scared and he asked the M
defendant not to leave.
N N
(ii) The defendant took X into her room and told X to lie on
O O
the bed. X did as told.
P P
(iii) The defendant took of X’s pants and then hers.
Q Q
(iv) The defendant molested X’s penis with of one of her
R hands. R
S (v) She leaned over X, positioned her vaginal against the S
penis of X and caused a penetration of X’s penis into
T T
her vagina.
U U
V V
- 26 -
A A
B B
(vi) It is not clear from the evidence if X had ejaculated.
C C
In relation to Charge 2:-
D D
E (i) The defendant did the same to X for the second time E
one week later. There was on one else in the flat. She
F F
said to X that she would leave unless X would follow
G her into her room. X was scared as he worried that she G
would leave. He did as told.
H H
(ii) The defendant did the same thing as she did on the first
I I
occasion, molested X’s penis and then caused a
J penetration of X’s penis into her vagina. J
K (iii) It is not clear from the evidence if X had ejaculated. K
L L
In relation to Charge 3:-
M M
N (i) On one occasion when X was indecent assaulted in the N
toilet of the flat, that occasion took place after Charge 1
O O
and 2 but before the defendant left her employment on
P 26th March 2013. P
Q (ii) The defendant took off X’s pants, then her own pants Q
inside the toilet. X was made to sit on the toilet seat.
R R
(iii) The defendant molested X’s penis and then caused a
S S
penetration of X’s penis into her vagina.
T (iv) It is not clear from the evidence if X had ejaculated. T
U U
V V
- 27 -
A A
B B
Verdict
C C
89. On the evidence before me, I am satisfied beyond reasonable
D D
doubt that all the elements of the offence in relation to Charges 1 to 3 are
E proved against the defendant. E
F F
90. For the reasons given, I find the defendant guilty of Charges 1
G to 3. G
H H
I I
J J
( Johnny Chan )
District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V