Court quashes teacher's child-sex conviction
Joyce Man and Clifford Lo
A court has thrown out a teacher's conviction for having sex frequently with a pupil over three years from the age of 12 - after finding the trial judge failed to instruct the jury on allegations for which no charges were laid.
The case highlights the difficulties prosecuting child sexual abuse that occur over a long period and where often the victim does not come forward until years later and can't remember specifics of each incident.
The Court of Appeal quashed the conviction and sentence of Chu Chi-wah, a teacher at Yau Ma Tei Catholic Primary School, who was jailed for 10 years on 11 counts of sex with a child.
According to the evidence of the girl, now 18, they had sex at least 280 times while he was her tutor. The Department of Justice has asked for a court listing so it can apply for a retrial.
The prosecution's allegations against Chu, who is in his late thirties, covered acts for which he was charged and others for which he was not.
Mr Justice Wally Yeung Chun-kuen said: 'Because the charges and the many other uncharged acts occurred in the same place, during the same period of time and in the same situation, the charged acts and the many uncharged acts cannot be differentiated or distinguished.'
The judge said he hoped the Department of Justice, when drafting future indictments, would consider the court's concerns to prevent the same problem recurring.
The approach, the judge said, could raise difficulties for the accused in defending himself and for the judge in giving directions to the jury. He also said the trial judge, Madam Justice Maggie Poon Man-kay, did not give proper directions to the jury regarding the uncharged acts, leading to an unsafe conviction and an unfair trial.
'Cases involving child sexual abuse pose special problems both to the investigator and the prosecutor and this is especially so when the allegation is that the sexual abuse consisted of many acts continuing over a prolonged period,' a Department of Justice spokesman said. 'In that situation a victim may not be able to specify individual dates on which each act of abuse occurred.'
If a victim can recall particular incidents as having occurred between particular dates, the charges will be drafted according to the victim's evidence and indicate that the incident referred to in each charge is separate from those in other charges. In such cases, a victim is allowed to describe instances of sexual abuse beyond those in the charges, but only to prove the relationship between the victim and the abuser and context. The law requires a judge to properly direct a jury on how to use this evidence.
The spokesman said Chu's appeal was allowed because the trial judge had failed to direct the jury about how evidence on the uncharged acts should be used.
A police spokesman said Chu was still in custody.