Hksar v Chim Hon Man

Cited as:[1998] 2 HKLRD 267
Court:Court of Final Appeal (Hong Kong)
Judgement Number:FAMC8/1998
Judgment Date:09 Jul 1998
FAMC000008/1998 HKSAR v. CHIM HON MAN

FAMC000008/1998

FAMC No. 8 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 8 OF 1998 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC No. 283 OF 1997)

_____________________

Between:
CHIM HON MAN
Applicant
AND
HONG KONG SPECIAL ADMINISTRATIVE REGION
Respondent

_____________________

Appeal Committee:
Chief Justice Li, Mr Justice Litton, PJ and Mr Justice Bokhary, PJ

Date of Hearing: 9 July 1998

Date of Determination: 9 July 1998

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D E T E R M I N A T I O N

_______________________________

Mr Justice Bokhary, PJ:

1. On 1 April last year, following a trial which commenced on the 24th of the previous month, this applicant was convicted (by a majority of 5:2) on two counts of raping his stepdaughter in the family home almost eight years earlier when she was only nine years old. The victim (as we shall refer to this girl) was born on 1 March 1980. The first count charged a rape on a date unknown between 14 and 31 July 1989, while the second count charged a rape on a date unknown between 1 and 15 August 1989.

2. The sole evidence against the applicant was the uncorroborated testimony of the victim. She made no complaint of the rape to anyone until speaking to a school friend some five years later in 1994. According to the victim, her long silence was the result of the applicant having told her not to tell anyone of what he had done to her.

3. Testifying in his own defence, the applicant denied having had any sexual contact with the victim. And he suggested that her allegations against him might have been instigated by her elder sister with whom he was on bad terms.

4. Having failed to persuade the Court of Appeal to quash his convictions, the applicant now seeks our leave to appeal to the Court of Final Appeal.

5. Taking them from his notice of application, the three grounds of appeal which the applicant hopes to advance before the Court of Final Appeal are:

"1. The Court of Appeal erred in law in holding that the evidence in cross examination of [the victim] was not wrongly received in evidence by way of live television link, when at the time of cross examination [the victim] was not under 17 years of age.

2. The Court of Appeal erred in holding that the second count of rape against the Applicant should have been left to the jury for their verdict when there was no evidence on which a reasonable jury properly instructed could find to a criminal standard of proof that the Applicant had sexual intercourse with [the victim] between 1st August and 15th August 1989.

3. In the alternative, the Court of Appeal erred in holding that the incidents of sexual intercourse claimed by [the victim] were indistinguishable, so precluding

(a) the Prosecutor being required to elect upon which offence...

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