HKSAR v. CHAN HOI TAT

bjbj ppellant ____________________ Before: Chief Justice Ma, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Tang PJ and Lord Clarke of Stone-cum-Ebony NPJ Hearing and Decision: 23 January 2013 Handing Down of Reasons: 15 February 2013 ____________________ J U D G M E N T ____________________ Chief Justice Ma: At the conclusion of the hearing, we dismissed the appeal and indicated that we would give our reasons later. They are now set out in the judgment of Mr Justice Chan PJ. Mr Justice Chan PJ: The appellant was convicted after trial in the District Court (H H Judge Geiser) of 5 charges: aiding, abetting, counseling and procuring the making of child pornography (charge 1), criminal intimidation (charges 2 and 4) and indecent assault (charges 3 and 5). His appeal to the Court of Appeal (Cheung and Hartmann JJA and Barnes J) was dismissed. We are now concerned only with the 5th charge, leave to appeal having been refused in respect of the first 4 charges. The issue in this appeal The appellant relies on both the point of law (what, if any, relevance the lateness of a notice of alibi has on the weight of the alibi evidence) and the substantial and grave injustice limbs. However, in essence, the question to be determined in the present appeal is whether the trial judge had properly considered the alibi evidence given on behalf of the appellant in relation to the 5th charge. The Prosecution case Although we are only concerned with the 5th charge, it is pertinent to refer, as a matter of background, to the events leading to the other 4 charges. In the summer of 2003, the complainant (Miss X) was then only 12 and in primary 6. Through the ICQ network, she came to know the appellant who was then 24. Initially they discussed trivial matters but in their later contacts, the appellant asked her whether she had any boyfriend and whether she had any sexual experience. He then succeeded in persuading her to take two naked photographs of herself (with one showing her face) and have them sent to him (the 1st charge). Several months later, in March or April 2004, the appellant contacted Miss X and asked to meet her but was refused. He then threatened to expose her naked photographs to the media and on the internet and to send them to her father if she refused (the 2nd charge). She reluctantly agreed and they met. He took her to what he said was his home where he indecently assaulted her and forced her to masturbate him and perform oral sex on him. He also took photographs of her in the nude against her will (the 3rd charge). In July 2005, more than a year later, the appellant called Miss X at home asking her why she did not give him her new mobile phone number. He asked to see her but she said she did not want to see him again as he had made her unhappy. Upon his threat to reveal her naked photographs to the media and on the internet and send them to her father, she agreed to meet him (the 4th charge). They met on 5 August 2005. She said it was between 12 noon and 3 p.m. He took her to a nearby hourly hotel where he indecently assaulted her by asking her to undress and forcing her to masturbate him and perform oral sex on him. He further demanded to have sexual intercourse which she refused. She was then told to kneel on the bed with her back to the appellant who moved his penis in between her thighs and she was again forced to masturbate him and perform oral sex on him. He also took naked photographs of her. This constituted the 5th charge. She said she could remember that date because it was her sister s birthday. The defence case The appellant did not give evidence at the trial but it was not denied that he had contacts with Miss X through the ICQ network. His defence through questions put to her during cross examination was that he did not discuss sexual topics with her; nor did he ask her to take naked photographs or threaten her or indecently assault her. It was put to her that she fabricated her evidence against him and that if what she said had happened, it happened with someone else. It was also suggested that the relationship between the appellant and Miss X over the internet developed into an intimate relationship in December 2008 but turned sour when she found out subsequently that the appellant had become engaged and that it was out of spite or jealousy that she reported to the police and fabricated these allegations against him. These suggestions were strongly denied by Miss X. There was no evidence in support of these suggestions and the judge rejected them. The alibi evidence In respect of the 5th charge, apart from the defence that the allegations against him were fabricated, the appellant also relied on alibi. It must be noted that there was no dispute that the appellant must have known for almost 6 months the alleged date and time of the indecent assault in relation to the 5th charge: the date was mentioned in Miss X s 1st witness statement (22 March 2010) and the time was given in her 2nd witness statement (23 March 2010). Further, no specific date was given in the particulars of the first 4 charges and it was only in relation to the 5th charge that the particular date of the alleged offence was specified. However, no alibi notice was served in accordance with s.65D of the Criminal Procedure Ordinance, Cap221 before the commencement of the trial. In the afternoon on the 2nd day of the trial, during the cross examination of Miss X, counsel for the appellant applied to the trial judge for leave to serve an alibi notice and informed the judge that he (counsel) had been told in that morning that the defendant actually has an alibi for that day (5 August 2005) which I (counsel) was unaware of until today. The application was supported by an affirmation made by the appellant s wife. As the prosecution did not resist the application, the judge granted him leave to lead alibi evidence. Since the appellant did not testify, there was no evidence from him as to where he was on 5 August 2005, especially in the afternoon. His wife s elder brother (DW1) was called pursuant to the alibi notice. DW1 said that in 2005, he came to know the appellant who was then his sister s boyfriend. On 5 August 2005, he was told by his mother to go to the Buddhist Hospital to visit his maternal grandfather who was dying. When he arrived at the hospital, he saw his sister and the appellant there. They stayed from 12.30 p.m. until 2 p.m. and left to have lunch. Shortly after that, DW1 also left. He returned to the hospital later that evening after he was informed that his grandfather had passed away. The suggestion was that the appellant was not with Miss X from 12 noon to 3 p.m. on 5 August 2005 as alleged by her. If this alibi was or might be true, this would cast doubt on Miss X s evidence. The complainant s credibility As the judge noted, the crucial issue in the case was the credibility of Miss X. With regard to her evidence, the judge, having considered all the evidence, found her to be an impressive witness and was quite satisfied that she was entirely truthful. He gave his reasons for doing so in the Reasons for Verdict: 16. For myself, I say that I found her to be a most impressive witness who gave compelling evidence of these distressing events which form the subject matter of these five charges. Despite the lapse of time since the incidents occurred, she was able to give a detailed description as to what by any account must have been extremely unpleasant and embarrassing for her. I found her to be entirely truthful and reject out of hand the suggestion that she has fabricated the events she testified to and deliberately lied to this court. Of course, it is right to say that there are some inconsistencies in her evidence and the statements that she made to the police but I find that those that do exist to be perfectly understandable given the nature of the case and the lapse of time since the offences occurred and I further find that they in no way undermine her general credibility. The way the judge dealt with the alibi evidence The judge did not accept the alibi evidence of DW1. He set out his conclusion as follows: 17. As to the evidence of DW1, Mr Ma Kai-yin, the brother-in-law of the defendant, I attach little or no weight to it. The application to produce alibi evidence of this nature was made after Miss X had given evidence under cross-examination that the assault which is the subject matter of charge 5 took place on 5 August 2005 between 12 noon and 3 pm. No proper explanation has been put forward as to the reasons for the lateness of this application. In any event, I have already accepted the evidence of Miss X that in relation to charge 5 she was the subject of a gross indecent assault at the hands of the defendant between 12 noon and 3 pm and to the extent that DW1 testified that between 12.30 pm and 2 pm the defendant was at the Buddhist Hospital in Wong Tai Sin, I reject it. As to precisely what time the defendant may have been at the hospital that day, if he ever was, I cannot speculate. What the judge exactly meant in this paragraph and whether his approach to the alibi evidence was erroneous is very much the bone of contention in this case. The appellant made a number of criticisms on this paragraph as one of the grounds in his appeal to the Court of Appeal (which is now the main ground in the present appeal). The Court of Appeal rejected all his criticisms. They were satisfied that what the judge meant to convey in that paragraph was that he found Miss X s evidence credible and that the alibi evidence did not throw doubt on her evidence. The Court of Appeal also said that the fact the prosecution did not resist the late application and did not put to DW1 that he was either lying or mistaken did not mean that the judge was bound to accept the alibi evidence. Criticisms against the judge s decision In submitting that the conviction on the 5th charge cannot stand, Mr McGowan on behalf of the appellant makes in effect two main submissions which can be summarized as follows: The judge was wrong to attach little or no weight to the alibi evidence solely on the ground that the alibi notice was filed late. Having granted leave to the appellant to serve an alibi notice, the judge should not have rejected such evidence on this basis. If he had taken the view that it was necessary, whenever there was a late alibi notice, for the defence to provide an explanation for the delay, this was wrong, being inconsistent with the requirement that it is for the prosecution to disprove an alibi. If the judge had regarded the absence of explanation for the delay in serving an alibi notice as a relevant consideration, then he should have raised this with the parties. By not doing so, he had deprived the defence of an opportunity to adduce evidence (such as to re-examine DW1 or call the wife) and offer an explanation on this matter. ( The lateness argument .) The judge was wrong to have rejected DW1 s evidence. First, it was never put to DW1 in his cross-examination that his alibi evidence was being challenged. This was a breach of the rule in Browne v Dunn (1894) 6 R 67. Secondly, the judge had failed to properly consider DW1 s evidence and the reason given by him seemed to indicate that he had already accepted Miss X s evidence even before considering the alibi evidence. This was an entirely wrong approach. ( The improper rejection argument .) It is submitted that the judge, in making these errors, had departed from accepted norms as a result of which the appellant has suffered substantial and grave injustice. Counsel further submits that if the conviction on the 5th charge is quashed on the ground that the alibi evidence is true or may be true, this would affect Miss X s overall credibility and since the whole case depends on her credibility, the convictions on the other 4 charges must also be set aside, notwithstanding that no leave has been granted in respect of these charges. The lateness argument This argument must be rejected. In the third and fourth sentences of paragraph 17 of the Reasons for Verdict, the judge referred to the fact that the alibi notice was filed late and there was no explanation for the lateness of the application. However, when these sentences are read in context, especially with the use of the phrase in any event in the sentence which immediately followed, it is quite clear that the lateness of the alibi notice and the absence of explanation was, contrary to counsel s contention, not the main, let alone the sole, reason for the judge s rejection of the alibi evidence adduced on behalf of the appellant. It is a fact that the appellant, unlike his wife and DW1, had known of the alleged date and time of the offence under the 5th charge for nearly 6 months. There might be an acceptable reason for the appellant not being able to recall the importance of this date and time. But the fact remains that he did not give evidence and his wife and DW1 were obviously not in a position to speak on his behalf. This is a matter which, as accepted by counsel, the judge was entitled to take into account. But whether there might or might not be a reason for the lateness of the application, it is quite obvious that this was not a decisive factor for the judge s rejection of the alibi evidence. Secondly, whether an alibi notice should be allowed to be served late is a matter of discretion for the judge in deciding whether the alibi evidence should be admitted. This is quite separate from the question whether the alibi evidence if allowed to be adduced should be given any weight which is a matter for the tribunal of fact. But the fact that an alibi notice is served late and there is no satisfactory explanation for the delay is a relevant factor in deciding the second question, i.e. what weight, if any, can be attached to the alibi evidence. The answer to this question clearly depends on the facts and circumstances of each case. However, what is of greater importance must ultimately be the cogency of the prosecution evidence and the quality of the alibi evidence. There is no question of shifting the burden to the accused to prove his alibi or relieving the prosecution of its burden of disproving it. The improper rejection argument In respect of this argument, it is first said that there was a breach of the rule in Browne v Dunn in that neither the prosecution nor the judge had put to DW1 that his evidence was being impeached. There is nothing in this point. The Browne v Dunn rule is to ensure fairness to a witness whose evidence or any of the points to which he has testified is being questioned: he should be told that he is not to be believed on his evidence or on the point in question so that he can have an opportunity to offer an explanation unless it is obvious to him that his evidence is being challenged. (See Lord Herschell LC at p.71 and Lord Halsbury, p.76.) In the present case, it cannot be said that DW1 could have been under any misapprehension that his evidence was not being challenged. It must have been quite plain to him from the way questions were asked when he was cross-examined that his evidence was being tested and that the prosecution was impeaching his reliability if not also his credibility. There is nothing unfair to him by not putting directly to him that his evidence was not to be accepted. The main basis of counsel s complaint arises from paragraph 17 of the Reasons for Verdict. With respect to the trial judge, it can be argued that this paragraph is not clearly expressed and may understandably be open to criticism. But this paragraph must not be read in isolation. When it is read in the light of the rest of the judgment, particularly the paragraphs preceding it, what the judge meant is, in our view, sufficiently clear. It can readily be seen from the Reasons for Verdict that the judge had carefully considered all the evidence adduced before him and fairly assessed Miss X s credibility, bearing in mind the alibi evidence. He had described her evidence in detail (paragraphs 3 to 8) and considered what was put to her in cross-examination and the inconsistencies which had been drawn to his attention (paragraphs 9 to 11). He then referred to the alibi evidence given by DW1 in paragraph 14. It was only after he had done that that he came to the conclusion in paragraph 16 that Miss X was impressive and compelling and that her evidence was entirely truthful. Thus it cannot be said that the judge had adopted a wrong approach to the evidence and had come to accept Miss X s evidence without having regard to the defence case and DW1 s evidence. The judge must have been satisfied that the alibi evidence did not cast any doubt on Miss X s evidence before he accepted her testimony. When he said in paragraph 17 that he had already accepted the evidence of Miss X , it would seem that he was merely trying to make reference to his earlier conclusion with regard to Miss X s evidence in the immediately preceding paragraph. The judge had given good reasons for believing that Miss X was telling the truth notwithstanding her cross-examination and the alibi evidence. With regard to DW1 s evidence, as Ms Agnes Chan for the prosecution has pointed out in paragraph 45 of her written case, which is not really disputed, the quality of such evidence was far from satisfactory: apart from the singularly material fact which was in dispute (i.e. he saw the appellant in the hospital from 12.30 p.m. to 2 p.m. on 5 August 2005), he could not recall any other detail such as what the appellant had done in the hospital during that period and whether he saw the appellant again in the later part of that day when he went to the hospital after he had been informed of the death of his grandfather. It is not surprising that the judge rejected his evidence. As noted by the Court of Appeal, the judge was justified on the evidence in accepting Miss X s evidence and rejecting DW1 s alibi evidence. The judge had heard Miss X (who had given evidence for 3 days) and DW1 and had carefully evaluated her evidence having regard to the latter s alibi evidence. Unless it can be shown that he had adopted an erroneous approach to the evidence, his assessment of the credibility and reliability of the witnesses should not be disturbed. We are not persuaded that the judge had taken a wrong approach towards the alibi evidence. There was no departure from accepted norms to the prejudice of the appellant. The conviction on the 5th charge must stand. Conclusion For the reasons given above, there is no merit in this appeal which must be dismissed. (Geoffrey Ma) Chief Justice (Patrick Chan) Permanent Judge (R A V Ribeiro) Permanent Judge (Robert Tang) Permanent Judge (Lord Clarke of Stone-cum-Ebony) Non-Permanent Judge Mr James H M McGowan, instructed by Jimmie K S Wong & Partners, for the appellant Miss Agnes Chan, ADPP of the Department of Justice, for the respondent HYPERLINK "http://legalref.judiciary.gov.hk/doc/judg/html/vetted/other/en/2012/FACC000008_2012_files/FACC000008_2012ES.doc" Press Summary (English) HYPERLINK "http://legalref.judiciary.gov.hk/doc/judg/html/vetted/other/en/2012/FACC000008_2012_files/FACC000008_2012CS.doc" Press Summary (Chinese) - PAGE - PAGE h"QG h"QG hPEh hPEh hPEh gdPEh ]RGR h/E\ gd?x yt?x oeaZ hH)o hPEh ytk- gdGX ytk- ytk- h6{O gdQ' gdQ' gd6{O he%N gde%N gde%N wlh^X &`#$ gde%N yt?x ytk- ytk- ytk- [Content_Types].xml Iw}, $yi} _rels/.rels theme/theme/themeManager.xml K Y, sQ}# theme/theme/theme1.xml w toc'v )I`n 3Vq%'#q x}r :\TZaG I u3 L+M2 e\O* $*c? )6-r IqbJ#x ,AGm T[XF64 E)`# R>QD =(K& =al- 4vfa 0%M0 theme/theme/_rels/themeManager.xml.rels 5 6?$Q K(M&$R(.1 [Content_Types].xmlPK _rels/.relsPK theme/theme/themeManager.xmlPK theme/theme/theme1.xmlPK theme/theme/_rels/themeManager.xml.relsPK <?xml version="1.0" encoding="UTF-8" standalone="yes"?> <a:clrMap xmlns:a="http://schemas.openxmlformats.org/drawingml/2006/main" bg1="lt1" tx1="dk1" bg2="lt2" tx2="dk2" accent1="accent1" accent2="accent2" accent3="accent3" accent4="accent4" accent5="accent5" accent6="accent6" hlink="hlink" folHlink="folHlink"/> m s x/1E 0;]c (DDh 0;]c x/1E m s eb f eb(DDh mffo ella wy wong FACC No.dot setup Microsoft Office Word Judiciary Hong Kong SAR Title _PID_HLINKS <b:Sources SelectedStyle="\APA.XSL" StyleName="APA" xmlns:b="http://schemas.openxmlformats.org/officeDocument/2006/bibliography" xmlns="http://schemas.openxmlformats.org/officeDocument/2006/bibliography"></b:Sources> <?xml version="1.0" encoding="UTF-8" standalone="no"?> <ds:datastoreItem ds:itemID="{D0B47A8B-E5AA-4D3D-90C8-9E722C4AC4ED}" xmlns:ds="http://schemas.openxmlformats.org/officeDocument/2006/customXml"><ds:schemaRefs><ds:schemaRef ds:uri="http://schemas.openxmlformats.org/officeDocument/2006/bibliography"/></ds:schemaRefs></ds:datastoreItem> Microsoft Office Word 97-2003 Document MSWordDoc Word.Document.8