R. v. Mok Wai Wo

HCMA000578/1995

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.578 OF 1995

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Coram: Hon. Duffy, J. in Court

Date of hearing: 4 October 1995

Date of delivery of judgment: 19 October 1995

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J U D G M E N T

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1. The appellant in this case is a serving police officer. He is appealing against his convictions for soliciting an advantage, contrary to s.4(2)(a) of the Prevention of Bribery Ordinance, Cap.201, and two counts of indecent assault. He is also appealing against total sentence of 28 months, being 14 months imprisonment imposed for the charge of soliciting an advantage, which is ordered to run consecutively to two sentences of 10 months and 14 months for the offences of indecent assault, which themselves were ordered to run concurrently.

2. The allegations were that the appellant together with his colleague PC53469, were, around 1 am on 16th February 1994, patrolling in Tong Mei Road, when they came across two females, the one being the victim in this case, the 23 year old Miss Ng Wai-ying, and her 16 year old companion, Miss Yip Siu-bik. The officers asked for and received the two identity cards of the two women. Miss Ng's handbag was inspected by the appellant and found to contain three tablets of dangerous drugs. She had admitted to the appellant that she was a drug user. After the drugs were found, and for reasons that never became apparent, the appellant and PC53469 took the two women to a rear lane near Yuen Fat Building, where Miss Ng had her flat. The appellant told PC53469 and Miss Yip to wait at the entrance to the lane, while he took Miss Ng further into it.

3. While walking to the lane, the appellant had asked Miss Ng how they were going to deal with the finding of the dangerous drugs. She asked him to give her chance. Once again, in the lane, she repeated her request that he give her chance, and he asked what advantage she would offer to him. Then he told her to lift up her upper garment as he was going to search her. He then indecently assaulted her by touching her breast under her brassiere, and by touching her private parts above her jeans. Miss Ng was distressed and cried. They then left the lane and the appellant told Miss Yip to leave. Together with PC53469, he then took Miss Ng to a rear staircase of the building in which she lived. PC53469 was told to wait downstairs, and he took Miss Ng further up the staircase. There he ordered her to remove her jeans and underpants and shone his torch on her lower body. Miss Ng was, not unnaturally, distressed by this. Then they rejoined the other PC and the appellant asked her how much money she had and if she had any gold ornaments. She told him she had $100 and a gold pendant but it was eventually decided that they would not take anything from her, and he told her to go.

4. Miss Ng told the court that the following day she made a complaint to Miss Yip about the indecent assaults, and later made a similar complaint to her boyfriend Mr Chan Kwok-kit.

5. One of Mr Grounds' points on appeal is that the magistrate allowed into evidence these complaints made by Miss Ng to Miss Yip, and to Mr Chan, when he ought not to have admitted them. He submitted that there was no evidence as to the circumstances under which Miss Ng came to tell Miss Yip about her experiences. In other words he submitted that as there was no evidence as to whether the complaint was solicited as an result of questions and answers, or whether it was an unsolicited relation of events to Miss Yip by Miss Ng, and as there was no evidence of a complaint made by Miss Ng to her family, although she had an earlier opportunity to do so, that complaint should not have been admitted into evidence as an early complaint.

6. So far as the complaint she made to her boyfriend Chan Kwok-Kit is concerned, Mr Grounds submitted that this could not be described as an early complaint, as it was made one month later, and therefore should not have been in evidence.

7. About the question of early complaints there is nothing in the record of the proceedings, or the learned magistrate's findings, but silence. The learned magistrate does warn himself of the dangers of relying on the uncorroborated evidence of Miss Ng, and acknowledges that it was uncorroborated, but the effect of the early complaints on her reliability as a witness is not mentioned.

8. Mr Grounds developed his argument in relation to the complaint made to Chan Kwok-kit. He pointed out that before being reminded of it in cross-examination, Chan had made no mention of any complaint of indecent assault. Indeed in his statement to the ICAC he never mentioned that Miss Ng had complained to him that she had been indecently assaulted. It is my view that this constitutes a serious discrepancy, and one that cannot be dealt with, as the learned magistrate dealt with it, by describing Chan as "forgetful". The fact of early complaints in sexual cases, and their effect on the credibility and reliability of the victim, are matters of real importance. Here evidence was led of the victim's complaints, but there was nothing said by the learned magistrate as to the admissibility of that evidence, or its role in assessing Miss Ng's evidence. It was important that he do so, particularly when there is evidence to suggest the complaints show inconsistency in her account, rather than consistency. His failure to do so not just in relation to the indecent assault charges, but also in relation to the soliciting charge, as her credibility in relation to that charge cannot be dealt with as a separate issue, makes these convictions unsafe and unsatisfactory, I allow the appeal against the convictions on these grounds.

9. I am satisfied however that these charges against the appellant constitute matters of real public importance, and I am also satisfied that the available evidence against the appellant is sufficiently cogent to warrant the order of a retrial. I so order, before another magistrate.

Representation:

Mr Wayne Walsh, S.C.C., for Crown

Mr Christopher Grounds (Kwan & Kwan) for Appellant