Court orders businessman’s incest trial to start by year end

Jamaica’s Constitutional Court has ordered that well-known Montego Bay businessman Patrick Chung must stand trial for allegedly having sex with his daughter over a nine-year period beginning in 1976 when she was 13 years old.

Further, the panel of three judges, in a landmark 2-1 majority decision handed down just over a week ago, ordered that Chung’s trial for six counts of incest and five counts of indecent touching must begin before year end.

Failing this, the judges ordered that the charges must be permanently stayed unless any delay in meeting this deadline is caused by the businessman.

As a result of the ruling, Chung, now 78, is scheduled to appear before the St James Circuit Court tomorrow where prosecutors and his attorneys are expected to discuss possible dates for the trial.

He was arrested and charged by the police in April 2012. This was nearly six months after his daughter, who was 49 years old at the time, first detailed to police investigators how, between January 1, 1976 and December 31, 1985, her father allegedly had sex with her at the family home in Montego Bay, St James, in a room located above the supermarket he operated in the resort town and in Canada while she was away studying.

According to court documents, she claimed that her father started by fondling her during a family night sleepover with other siblings and cousins present. She recounted looking at her father in shock before he allegedly responded by saying, “Sorry, I thought it was Bev,” referring to his then wife Beverly.

Abortion

She alleged, too, that at one time she became pregnant and had to do an abortion.

The woman admitted that she did not go to the police earlier because she felt embarrassed, but said that with encouragement from her ex-husband, and suspicion that Chung was also having sex with his daughter from a new relationship, she decided to give a statement.

However, the case stalled in the St James Parish Court for four years without a preliminary enquiry or a committal proceedings hearing. The Office of the Director of Public Prosecutions then stepped in and used a voluntary bill of indictment to move the case to the St James Circuit Court.

After appearing before the Circuit Court nine times and still no trial, Chung, through his attorneys, went to the Constitutional Court seeking to have the charges stayed on the basis that the 34-year wait to have his day in court would prejudice or is likely to prejudice his right, under the Jamaican Constitution, to a fair trial within a reasonable time.

According to court documents, he cited, as examples, an inability to call potential witnesses, an inability to access relevant documents, his failing health, and the inability to visit the room located above the supermarket where his daughter claimed the sexual intercourse took place.

Chung indicated that several persons mentioned in his daughter’s account to cops have died (his mother and grandmother) or migrated (his ex-wife Beverly).

No great disadvantage

But justices Vivienne Harris and Glen Brown disagreed.

Harris wrote, in her opinion, that Chung did not establish, on the evidence presented, that he has been placed at a significant disadvantage when compared with prosecutors.

“Additionally, in my view, the claimant [Chung] has not established, on the evidence presented, that the ‘inequality is so serious’ and that he is ‘so handicapped that it was likely to have a significant impact on the outcome of the trial’ that this would amount to a breach of his fundamental right to a fair trial,” Harris wrote.

Chung’s argument, however, found favour with Justice David Batts, who wrote the dissenting opinion. Batts lamented that the case was “clearly not handled with the level of dispatch to be expected, given the circumstances.

“His age and the antiquity of the offence, one would have thought, ought to have propelled some urgency in the prosecuting authorities and the court. In the result, there can be no doubt that there cannot now be a trial within a reasonable time,” the judge wrote.

“I recognise that the virtual complainant [Chung’s daughter] may feel hard done because of this decision. It is not part of my remit to comment on the merits of the case [against Chung] and, with restraint, I will not do so. I, however, offer to her the thought that the claimant [Chung], so long as he is alive, will have not only his physical ailment to ponder, but any wrong he may have perpetrated,” added Batts, who described the allegations as repulsive and troubling.

livern.barrett@gleanerjm.com