R v Ki-Keon Jeong

LORD JUSTICE HOLGATE: The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where an allegation has been made that a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

In order to reduce the risk of jigsaw identification, we refer in our judgment to the male complainant in this case as C1, to the female complainant (his sister) as C2 and to their mother as M.

Between 12 and 23 January 2015 the applicant stood trial at Kingston Crown Court on a 19 count indictment alleging sexual and physical abuse of his two step children, C1 and C2. In summary, the indictment was divided up as follows:

Count 1 alleged an indecent assault between June 1999 and 16 February 2004 under section 15 of the Sexual Offences Act 1956. Count 2 alleged buggery during the same period under section 12 of that Act.

Counts 3 to 5 related to the period 4 June 2004 to 3 June 2005. Count 3 alleged cruelty to a person under 16 under section 1 of the Children and Young Persons Act 1933. Count 4 alleged oral rape of a child under 13. Count 5 alleged anal rape of a child under 13. Counts 4 and 5 were allegations under section 5 of the Sexual Offences Act 2003.

Counts 6 to 8 related to the period 4 June 2005 to 3 June 2006. Count 6 alleged cruelty to a person under 16, count 7 alleged oral rape of a child under 13 and count 8 alleged anal rape of a child under 13.

Counts 9 to 11 related to the period 4 June 2006 to 13 November 2006. Count 9 alleged cruelty to a person under 16, count 10 alleged oral rape of a child under 13, count 11 alleged anal rape of a child under 13.

Count 12 alleged wounding contrary to section 20 of the Offences Against the Person Act 1861 between September 2006 and July 2007. Count 13 alleged sexual activity with a child in the form of touching between December 2006 and June 2008 under section 9 of the 2003 Act. Count 14 alleged a sexual assault of a child, again involving touching, between the period 4 June 2008 to 3 June 2009 under section 3 of the 2003 Act.

Count 15 alleged an indecent assault of a girl aged 11 to 13 between February 1999 and February 2002 under section 14 of the 1956 Act. Count 16 was an allegation of assault by digital penetration between May 2004 to February 2005 under section 2 of the 2003 Act. Count 17 was an allegation of oral rape between May 2004 and February 2005 under section 1 of the 2003 Act. Count 18 was an allegation of assault by digital penetration between February 2005 and February 2006 under section 2 of the 2003 Act. Lastly, count 19 was an allegation of oral rape between February 2005 and February 2006 under section 1 of the 2003 Act.

On 23 January the applicant was convicted on counts 1, 3 to 11 and 15 to 19. He was therefore convicted in relation to all the allegations of offences against C2. He was acquitted under counts 12 to 14 of the allegations of offences against C1 during the period September 2006 to December 2009. The jury was unable to reach a verdict on count 2, the allegation of buggery of C1 between June 1999 and 16 February 2004.

On 10 July 2015 the applicant, then aged 47, was sentenced to imprisonment for a total term of 22 years comprising a term of 14 years on count 4 and a consecutive term of eight years on count 19 but the sentences passed on the other counts to run concurrently. He renews his application for an extension of time of 3,493 days for leave to appeal against conviction following refusal by the single judge. The applicant also seeks leave pursuant to section 23 of the Criminal Appeal Act 1968 to rely on fresh evidence relating to M and others which is said to undermine the evidence she gave at trial and go to the credibility of C1 and C2.

In the autumn of 1999 the applicant married M in South Korea. M had two children from a previous relationship, C1 aged about 7, and C2, aged about 11. The applicant therefore became their step father. At first the family lived together in South Korea. There was a brief separation around 2003, however the applicant and M soon got back together again. On 17 February 2004 the family moved from South Korea to the United Kingdom.

The prosecution case was that the applicant had physically and sexually abused both his step children, with offences occurring both in South Korea and the United Kingdom.

To prove its case the prosecution relied upon, first, C1's evidence. On 27 October 2013, C1 gave an ABE interview to the police. He was then aged 21. He described how he had suffered both physical and sexual abuse from his step-father. He said the abuse would happen regularly and because of his young age he was not able to resist. He thought the abuse started in South Korea when he was aged around seven. He said the applicant would beat him with a stick after school and that he would orally and anally rape him. C1 said the abuse continued after the family moved to the United Kingdom, but no rape occurred after 2006 as by that time he was bigger and more able to resist. However he did continue to be beaten and sexually assaulted by the applicant. C1 said that the abuse ended around 2009 when he was 16.

Secondly, the prosecution relied on the evidence of C2. On 12 January 2014 she was interviewed by the police. She was then aged 25. C2 also reported physical and sexual abuse from her step-father. She said it started in South Korea when she was aged around 13 but at that stage it was a single incident. She said the abuse continued after the family moved to the United Kingdom. She was beaten, sexually abused and orally raped. The abuse lasted until she left home and went to university.

Thirdly the prosecution relied upon M's evidence. She said that she had not been aware of what was taking place in the family home. She said that when they came to the United Kingdom she studied English for 2 years. After that she began to work as a carer, sometimes working long hours. M said in 2009 C1 disclosed that he had been physically abused by the applicant. She said she confronted the applicant about this and he admitted physical assaults, but at the time nothing was said about sexual assaults. By 2009 she said her relationship with the applicant was over and they agreed to divorce in 2011. She gave evidence about the separation leading to a financial dispute.

The applicant was arrested on 17 February 2014. When he was interviewed under caution he gave an account that the allegations made by C1 and C2 were untrue. He went on to suggest that they had been put up to say these things by their mother because he and M were in the process of a divorce and there was an argument about who got what property.

The defence case was that none of the allegations were true and they had been fabricated by C1 and C2. The motivation for the fabrication was said to be the divorce and the financial dispute.

The applicant gave evidence. He denied that he had ever physically or sexually assaulted C1 or C2. He described marrying M in South Korea and living together as a family. He said he was never alone with C1 or C2 and so the accounts they had given could not be possible. He said they came to the United Kingdom in 2004 for C1 and C2's education. When they arrived in this country, he studied English and also worked as a mini cab driver. He returned to South Korea in 2009. At that stage he thought his marriage to M was over and he did not intend to come back. However, he came back to the United Kingdom in 2010 after M had asked him to, but shortly after his return they began divorce proceedings. He confirmed that there was a dispute about property and finances.

Two additional witnesses were called by the defence, including a friend called Miss L.

The issue for the jury was whether they were sure that the applicant had physically and sexually abused C1 and C2 as set out in the counts on the indictment.

The judge gave careful written and oral directions to the jury. She gave a direction on cross-admissibility, explaining the circumstances in which the jury could rely upon a finding that the applicant had abused one sibling as evidence in relation to an allegation relating to the other. She warned the jury that they had to be sure that there had been no collusion between C1, C2 and M, or fabrication, or the influence of one witness upon another, whether conscious or subconscious. She gave a clear direction on the inconsistencies in the accounts given by C1, C2 and M and the jury was provided with a written list of inconsistencies relied upon by the defence in the addition to those which the defence raised in its speech to the jury and which the judge herself repeated. She told the jury that they had to consider these points with care. These were matters which the judge stressed during her summing-up.

When the judge came to summarise M's evidence, she reminded the jury that the defence case was that M had been the driving force behind the children making false allegations against the applicant. Then at pages 42E to 43E of the transcript, the judge said:

The applicant seeks permission to appeal against his conviction based on fresh evidence in the form of:

The applicant submits that the fresh evidence undermines the credibility of the complainants' evidence overall, thus rendering the convictions unsafe.

The central issue for the court at this stage is whether it is arguable that all or any of the convictions are unsafe. If the answer to that question is "no" then it follows that the long extension of time required for making this application for leave cannot be justified.

The applicant makes no criticism of any part of the summing-up or of the way in which the trial was handled, or the conduct of his defence by counsel. The upshot is that the jury were satisfied to the criminal standard of the applicant's guilt on some counts but not on others. It is not suggested that any conviction is unsafe because of an inconsistency between the jury's verdicts. In other words, this application for leave to appeal rests entirely on the application to rely upon fresh evidence.

Section 23(2) of the 1968 Act requires the court in considering whether to receive any evidence to have regard in particular to four factors:

We are grateful to Miss Saba Naqshbandi KC for her helpful and clear submissions, both written and oral. She referred us to the relevant principles for determining whether a conviction is unsafe by reference to fresh evidence: see R v Pendleton [2001] UKHL 66, [2002] 1 WLR 72 at [19] to [21] and [35]; Stafford and Luvaglio v DPP [1974] A.C. 878, pages 906 to 907; R v Ahmed [2002] EWCA Crim 2781 at [36] and R v Patel and others [2010] EWCA Crim 1858 at [36] to [44].

One piece of fresh evidence, a witness statement of Mr Ha dated 9 August 2024 is only relevant to the application for an extension of time. He simply says that M left the property of which she was the sub-tenant in 2015 to 2016 without paying arrears of rent. This is said to be relevant to difficulties in locating M to give fresh evidence in person.

The witness statement dated 21 August 2024 of Miss Jung, a barrister who has been advising the applicant on appealing against conviction since 14 August 1997, seeks to explain the steps which have been taken since that date as part of the applicant's justification for an extension of time.

In paragraph 25 to 27 of her witness statement, Miss Jung exhibits a copy of the immigration records supplied by the South Korean Embassy to the applicant in 2016 showing periods when he was out of the United Kingdom and in South Korea from 2004 to 2014. The applicant submits that none of the offending he is alleged to have committed in the United Kingdom against C1 or C2 between 2004 and 2006 (the relevant period for the counts on which the applicant was convicted) could have occurred when he was in South Korea. This contradicts evidence of C1 and C2 as to the frequency of the offending and in particular any assertion that the offending took place "continuously" during the indictment periods.

According to the immigration records, the periods during 2004 to 2006 when the applicant was in South Korea, not the United Kingdom, were: 12 to 26 June 2004, 1 to 30 August 2005 and 4 April 2006 to 15 July 2006. This represents a total period of about 20 to 21 weeks over those three years. There were also relatively short visits to South Korea during the periods covered by counts 12 to 14 in 2007 to 2009.

It is necessary to put this point into context. Each of the counts on the indictment on which the jury returned guilty verdicts were specimen counts. The judge directed the jury that they need only be sure that the conduct alleged in any such count happened on at least one occasion during the period in question. The applicant makes no criticism of that direction.

Miss Naqshbandi submits that although the applicant gave evidence at his trial as to where he had been during the different periods, the police had retained his passport at the time of the trial. There has been no explanation as to why this evidence could not have been produced at the trial. The same dates could have been extracted from the applicant's passport by agreement with the prosecution or, in the alternative, that information could have been obtained from the embassy before the trial in the way in which it is obtained for example in 2016. There is no explanation to the contrary. Accordingly, this part of the application fails by reference to section 23(2)(d) in any event.

Furthermore, the applicant accepts that he made points of this nature during the trial and so the jury were able to assess the merits of these points for themselves. This is not truly a fresh matter.

The application for leave to appeal against conviction therefore depends on the witness statement of L dated 14 August 2024. She states that she first met the applicant in 2005 when she was selling antiques. The applicant used to work as her assistant twice a month at a fair for a period of six months. It was during this time that she also met M for the first time.

Miss L is a friend of the applicant. It appears that whilst he has been in prison she has gone to considerable lengths to assist him by dealing with his solicitors in relation to financial issues and by raising funds to pay for lawyers' fees in connection with the present application. For example she has borrowed money from her family in Korea while awaiting the sale of her own house.

Miss L's statement appeared to be relied upon in order to support a contention that M had retracted part of her evidence at the trial or has made statements which show that she knows that C1 and/or C2 were untruthful in material parts of their evidence.

Parts of the evidence produced by Miss L are inadmissible. Paragraph 10 contains hearsay evidence from a Miss Dong that M is alleged to have said to her in December 2017 that she thought God was punishing her for having sent her former husband, the applicant, to prison by lying to the court. Unfortunately, no witness statement was taken from Miss Dong before she died in 2020.

In paragraph 18 of her witness statement, Miss L says that in February 2019 she took a copy of her recording of a conversation she says she had with M on 6 November 2015 (discussed below) to the police and asked them to investigate M for perjury in relation to her evidence at the applicant's trial. The police decided not to investigate the matter. On 11 May 2020, Miss L made a complaint to the police. They responded in a letter dated 4 August 2020 from which it appears that the allegation of perjury also involved M's children, C1 and C2. The short point is that it is plain that none of this material is relevant to the safety of the applicant's conviction. It appears that this material may have been deployed as part of the explanation for the delay, simply to show that the applicant and Miss L were seeking assistance from the police to locate M and obtain a statement from her.

Ultimately, therefore, the application depends upon two pieces of evidence: first, the recording of the conversation with M on 6 November, and second, a handwritten note signed by M on 13 November 2025 which Miss L produces.

Paragraphs 6 and 7 of Miss L's witness statement gives her views as to what M accepted during the conversation:

The first part of the recording was to do with financial arrangements between the applicant and M. Thereafter, Miss L sought at various points to obtain a statement from M which it was said she had previously agreed to give. However, the circumstances and content of any earlier communications on that subject are completely unknown to the court.

In our judgment, on a fair reading of the transcript this conversation involved Miss L putting a considerable amount of pressure on M and at points proceeding almost as if it were a cross-examination. There are sequences of highly leading questions. On occasions more than one question was posed to M by L before giving M an opportunity to answer in circumstances where it cannot be inferred that M agreed to everything that L was putting to her. She may have been dealing with only the last question in the sequence. In addition, L put to M some propositions which were not consistent with the applicant's evidence at trial and which are unsupported. Taken overall, this was not a proper process for obtaining reliable information from a witness such as M.

At page 613 of the appeal bundle, Miss L said that M had previously admitted that her children had lied in their "statements" repeatedly, whereas the transcript of the recording does not reveal any such admission.

At page 614, Miss L says that M had said C1 could not have been raped when he was eight. Given the immediate context in our judgment, this discussion was about the alleged buggery the subject of count 2 on which the jury were unable to reach a verdict. M's answer did not amount to an acceptance of the point being put to her. M's answer was to say the least equivocal. She simply said that she did not know about what had happened when C1 was older.

There then follows a passage in which Miss L put to M that when she and the applicant were together in Korea, that is before they moved to the United Kingdom in February 2004, the applicant was living in a separate home, did not go inside M's house and could not have abused C1. But C1 had stated that the abuse continued up until the day the family left to go to the United Kingdom. M then said she did not "think" the abuse could have happened in Korea without specifying the abuse to which she was referring. It is likely that read in the immediately preceding context she was still referring to the buggery alleged under count 2. M again said she did not know what had happened after the family moved to the United Kingdom.

Then Miss L suggested that when the applicant and M went to the United Kingdom they were together almost 24 hours a day during the time they were studying at an English language school. She then put two more propositions in quick succession: "(2) ... it couldn't have happened then either, right?" And (3): "But, you don't know what happened after that, right?" The answer to those questions was simply: "That's right, I don't know what happened after that." Read fairly, in our judgment that was an answer to question (3). Miss L understood the answer in that way because she returned immediately to the language school period suggesting that that lasted from 2004 to 2006. It is also evident that at that stage M felt as if she was being subjected to a form of cross-examination.

A little later on Miss L ran two more questions together: "(1) ... nothing could have happened before 2006. (2) What you don't know is whether anything happened after May 2006, right?" M answered: "Right, I don't". On a fair reading, the words "I don't" indicate that M was responding to question (2).

At page 618 Miss L said that the applicant could not have committed sexual assaults between 1999 and 2005 and at page 619 she asserted that, as their mother, she knew that C1 and C2 had made up their allegations at least up to that point in time, although she did not know what had happened after then. M agreed to that proposition. The questions and answers at this point ignore two points. First, in relation to the period before 2004 the questioning focused on the buggery alleged under count 2. Second, in our judgment there had been no unequivocal acceptance by M earlier on of L's proposition in relation to the language school period. At page 621 it is apparent to us that M had been placed under a great deal of pressure. Our overall conclusion on this part of the transcript is that viewed in context M's response was equivocal as the applicant contrary to the applicant's suggestion.

In paragraph 8 of her statement Miss L said:

The translation of that statement has recently been corrected by the translator. As anonymised it now reads:

It is self-evident that that statement does not go so far as the admissions which L says M made during the telephone conversation. For example, the statement does not deal with 2005 or 2006, nor did M accept that she was retracting any part of her evidence in the trial, or that either C1 or C2 had lied in relation to any allegation. Whereas in the telephone conversation L had asserted, ostensibly based on records she had obtained from the school, that the applicant and M had been together for virtually 24 hours a day during the period they had attended the English language course, that is from 2004 to 2006. In the statement the language school is only mentioned in relation to 2004.

Very properly, leading counsel for the applicant accepted that greater weight should be placed upon the statement which, on the applicant's case, M was prepared to sign, rather than interpreting the questions and answers in the transcript of the telephone conversation a week earlier.

The reference in paragraph (1) of M's statement to her washing C1 in Korea was relevant to the allegation of anal rape. That is how the matter was treated at the trial. The jury were unable to reach a verdict on count 2. There is no suggestion that paragraph (1) could have been relevant to any allegation of oral rape under count 1. It is not suggested that that conduct would have resulted in anything such as signs of injury that the mother would have noticed if that offending had taken place. In our judgment it is not arguable that this material undermines the safety of the convictions on count 1 or on any other count.

We also add that the statement in paragraph (1) contains M's opinion that C1 was wrong because M had washed C1 herself in Korea. That is a matter of inference. It was a matter for the jury to determine. M's opinion on the matter is inadmissible. We note that during the trial C1 was asked about whether he bled following the alleged anal rape and he said that he did. Put very simply, this is a matter which could easily have been raised during the trial itself. It is not genuinely a new matter.

As to paragraph (2) of M's statement, we have not been shown any passage in C1's evidence to the Crown Court in which he said that the abuse in Korea happened until the day the family left for the United Kingdom as L suggested in her conversation over the telephone with M a few days beforehand. In fact leading counsel very fairly accepted that there is no such evidence. On analysis this paragraph does not provide any proper foundation for arguing that any of the convictions are unsafe.

It is now said that the applicant and M did not live together in South Korea for a period of five months. At the trial M gave evidence that the period of separation was about two months: see appeal bundle page 410. It does not appear that she was challenged about that. It has not been explained how a difference in the length of the separation period between two months and five months is material to the safety of any of the guilty verdicts. The indictment period for count one (another specimen count) ran from June 1999 to February 2004. In cross-examination it was put to the applicant that between September 2000 and the divorce in October 2003 there must have been times when he was alone with C1 and C2 in the family home. The applicant's answer was that that had never happened. Given their finding on count 1, the jury must have rejected that evidence. On that basis a lack of opportunity to commit an offence based on the separation of the applicant and M after October 2003 until they decided to move together to the United Kingdom in 2004, did not carry any weight with the jury. Whether this period was two months or five months could not make a material difference. In any event it is plain that the applicant knew about the period of separation and had every opportunity to raise this matter in his evidence or through cross-examination. What is now being put forward indirectly through the evidence of L, including M's statement, is not something which could not reasonably have been raised at trial. In that sense it is not fresh evidence in any event.

Paragraph (3) of her statement does not explain why M agrees that the mere fact that both she and the applicant attended language school in 2004 meant that the applicant had no opportunity to commit any of the alleged offences during that period. Here, M does not accept the implausible assertion made by L during the telephone conversation of 6 November 2025 that M and her husband were together for virtually 24 hours a day for a year. During his evidence in chief in the trial, the applicant said that the language course lasted one year. He and M had the same hours at the school. In addition, he (the applicant) was working as a minicab driver: see appeal bundle pages 458-459. M gave evidence that the language school hours were from 10.00 am to noon: see appeal bundle page 362. That does not appear to have been challenged. Again, in cross-examination the applicant accepted that his case essentially was that from September 2000 to December 2009 he was hardly ever left alone with C1 and C2, apart, he said on this occasion, for half hours: see appeal bundle-page 459. Plainly the applicant knew about the hours spent in the language school and any implications it might have had for refuting the suggestion of opportunity to commit the alleged offences. He had the opportunity at trial to raise this matter in his evidence or through cross-examination. What is being put forward through the evidence of L, including M's statement, is not something which could not reasonably have been raised at trial. Again it is not genuinely fresh evidence.

For these reasons we do not accept that the transcript of the conversation between L and M on 6 November 2025 or M's statement is admissible as fresh evidence or that, even if it were to be admitted, it is arguable that any of the convictions are unsafe.

For completeness we should refer to the submission made to us orally this morning on behalf of the applicant that M did give supporting evidence, which was described as central. Helpfully we were taken to a number of transcript references by leading counsel. They dealt with physical abuse, a sexual assault of C2 and evidence of a sexual assault on C1. We say two things about this. First, none of the fresh evidence purports to retract any of that evidence given at trial and leading counsel does not suggest otherwise. Second, and in any event, we do not regard that evidence as central. The central evidence in this case, as the judge made plain in her very fair summing-up, was that of C1 and C2 in which context she repeatedly urged the jury to be cautious in their appraisal of that material.

In addition, and for completeness, we return to the well-known passage of Lord Bingham in R v Pendleton at paragraph 19, in particular what was said by the Lord Bingham towards the end of that paragraph.

We do not regard the question of admissibility of fresh evidence in this particular application as being a matter of any difficulty but, for the avoidance of doubt, we have reached the firm conclusion that if the evidence had been given at the trial we do not consider that it might reasonably have affected the decision of a jury to convict on the counts on which they returned guilty verdicts.

For these reasons we consider that the single judge was correct to decide that none of the material upon which the applicant seeks to rely provides an arguable basis for contending that any of the convictions are unsafe. Accordingly, there is no ground for the court to grant the extension of time sought.

We would add that if we had found it necessary to consider the justification advanced for the long period of delay in this case, we are not satisfied that an adequate justification has been provided throughout the entirety of that period and in relation to significant periods of time.

For these reasons, we refuse the renewed application for an extension of time within which to apply for leave to appeal against conviction but we repeat our gratitude to leading counsel for having put fairly and properly every point that could have been put on behalf of this applicant.