The Queen v. Lau Yui on

CACC000206/1985

BETWEEN

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Coram: Hon. McMullin, V.-P., Yang & Silke, JJ.A.

Date of hearing: 10 October 1985

Date of judgment: 29 October 1985

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JUDGMENT

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McMullin, V.-P. :

1. This is a strange and unhappy case. The applicant, LAU Yui-on, a man of sixty years of age, lived with his wife, HUI Siu-mui, in Room 755 on the 6th floor of Fai Wah House, Lok Wah Estate, Kowloon. Madam Hui's mother, NG Kam-wan, had been living with them in these confined circumstances since 1976. At the time of the events to which the charges relate she was an old lady of 82 years.

2. It is clear that harmonious relationships did not prevail within this small household. The old lady, it appears, was over-garrulous and somewhat clumsy in her movements. There were frequent quarrels between herself and her son-in-law and occasionally between herself and her daughter.

3. The case for the Crown was that on the 2nd of October 1984 and again on the 4th of October 1984 the applicant had raped his mother-in-law and on two other occasions - the 5th and 6th of October - he had indecently assaulted her. Each of these incidents is said to have occurred in the absence of the younger woman who was out at work at the time.

4. Originally the indictment included another count of indecent assault said to have taken place also on the 6th of October. It was conceded by the Crown at the close of the evidence that the old lady's testimony was insufficient to support more than one such incident on that day and the jury were subsequently directed by the judge to return a verdict of not guilty on the fifth count which they duly did.

5. The case for the Crown on these charges rested upon the testimony of the mother and the daughter together with certain admissions made by the applicant in the course of interrogation by the police officer after a complaint had been made on the evening of the 6th.

6. Mr. Loughran, who appeared for the applicant on the appeal, in a careful and economical address urged a number of objections both as to the quality of this evidence itself and as to the directions given thereon by the trial judge:

7. It certainly cannot be said that these objections are without substance. Their general purport was to the effect that the judge represented the evidence of the old lady as being both more coherent and more consistent than it was and also that he did not sufficiently stress certain palpable discrepancies between her testimony and that of her daughter, and between their testimony generally and that of certain medical and police witnesses.

8. There was substance also in the complaint that, somewhat inadvertently, and almost certainly as a result of the old lady's patent difficulty in answering questions directly and relevantly, evidence of former mistreatment at the hands of her son-in-law was admitted which may have had the effect of prejudicing his character in the eyes of the jury. The complaint here was that the judge had failed to accede to an application to discharge the jury after the admission of this evidence.

9. Nevertheless we would not have thought it necessary to interfere on the basis of these points alone, well marshalled and cogently expressed though they were.

10. In the course of the hearing, and upon a doubt expressed by the court, counsel was permitted to adduce a further ground of appeal. It is this ground we think which must prove decisive of the outcome. To that we will return after a brief examination of the evidence.

11. Notwithstanding the quality of Madam Ng's testimony which, fully allowing for the judge's advantage in seeing and hearing the witness, we find it difficult, on the record before us, to rate as highly as he appears to have done, it is certainly the case that she was alleging - frequently in robust vernacular - four distinct sexual assaults, two of them amounting fully to the offence of rape. These assaults according to her occurred on the 2nd, 4th and 6th of October 1984. On each occasion they happened after 3 o'clock in the afternoon when the applicant had returned from work and his wife was absent. On each occasion there was, by the complainant's account, nothing in the way of parley, preamble or provocation.

12. On the 2nd and the 4th he removed his own clothing, stripped her off her lower clothing, and had connection with her, pressing her on the bed and holding his hand over her mouth and so that she was unable to cry out or resist.

13. On the 5th he stripped himself and his victim in the same way but on this occasion did not have intercourse but merely assaulted her indecently. On the 6th he repeated this performance but without removing the clothes of either of them.

14. The question whether the old lady complained to her daughter, and if so, and in what terms; and further whether the daughter complained to the doctor to whom she took her mother on the 6th, or to the police whom she contacted also on that day, and what was the nature of the complaints so made, were matters in controversy at the trial. That testimony, and in particular the way the judge dealt with it, were the subject of strong comment before us.

15. Although the applicant did not give evidence, the case presented on his behalf was that the mother and the daughter, exasperated by his previous behaviour, and also by his behaviour on the evening of the 6th, had conspired to make a false report about him for the express purpose of having him removed from a household in which he was no longer welcome.

16. In view of the fact that the earliest reports made by either of the woman, whether to the examining doctor or to the investigating police, would seem indeed to have been reports of simple assault, and, further, that the medical examination of the mother and daughter on the 6th, and the similar examination by another doctor of the applicant on the 8th, disclosed minor injuries of a kind which would have resulted from a scuffle of some sort, the judge's manner of dealing with this line of defence may indeed seem unduly dismissive.

17. These various complaints had they stood alone might well, however, have been met by the application of the proviso. But there is one passage in the summing-up where the judge appears to have gone seriously wrong and it relates to the vitally important matter of corroboration.

18. By the time the applicant was interviewed by detective sergeant LI Yick-ming on the morning of the 7th of October the complaints against him had undoubtedly hardened down into explicit allegations of rape and indecent assault. Between 6:00 and 9:00 a.m. he was confronted, under caution, with the particulars of four distinct offences: rape on the 2nd of October; rape on the 4th of October; indecent assault on the 5th of October and indecent assault on the 6th of October.

19. The upshot of this interview was that he admitted to having had sexual intercourse with Madam Ng on the 2nd and the 4th and admitted to having touched her indecently on the 5th.

20. When he was confronted with the complaint relating to the 6th of October he replied,

"As my wife HUI Siu-mui scolded me, I therefore indecently assaulted her mother. "

The episode being then put to him - and this is of crucial importance in relation to what must later be said - was alleged to have taken place at 10 o'clock on the forenoon of the 6th of October. It seems that the police were at that stage in possession of information which suggested that there had been two such assaults on the 6th of October, one in the morning and one in the afternoon. It was because the old lady did not come up to proof in respect of any episode relating to the morning of that day that the jury were directed to acquit upon the 5th charge in which such an assault had been alleged.

21. After this final admission the interrogating officer put a strange and a seemingly pointless question to the applicant. That question and the answer to it are as follows:

Mr. Duguid, for the Crown, conceded that it had never been the Crown's case that the first three of these statements could be relied upon as admissions to non-consensual assaults. As to the fourth, although in that statement the applicant had expressly admitted that he had indecently assaulted his mother-in-law, Mr. Duguid conceded that that related to an allegation which, unsupported by evidence at the trial, had resulted in an acquittal on the fifth count. Although the fourth and the fifth counts, both dealt with the 6th of October, the conviction on the fourth count had been on the basis of the old lady's testimony that she was assaulted in the afternoon of that day. Counsel found himself in great difficulty therefore in seeking to contend that any of the complainant's evidence was supported by independent corroboration of non-consensual assault.

22. The judge had correctly warned the jury that they must look for corroboration of the testimony of the complainant once they had satisfied themselves that she was a credible witness. In order to make clear the difficulty with which we are confronted it is necessary to quote his directions on corroboration in some detail. The earlier part of these directions is unimpeachable and goes as follows:

"As to the other evidence from independent sources there is evidence in the statements of the accused that he had sexual intercourse and that he touched the breasts and private parts of the complainant. Now, if you are satisfied that those statements are true, the first three statements do go that far but they go no further.

Those statements, as the Crown acknowledges, are silent on whether the complainant consented to the sexual intercourse or consented to her body being touched. Those statements do not, therefore, provide independent support of the allegations, for if consent, upon which they are silent, existed, the sexual intercourse would not have been rape and the touching of a person would not have constituted an indecent assault. "

So far so good. It is thereafter, however, that the difficulty arises. The passage immediately following upon what has been quoted already runs as follows:

"The 4th statement is indifferent terms, and I'll have to pause for a moment to refer you to portions of that statement.

Now, unlike the earlier statements the 4th statement does not describe the physical details of what the accused stated had happened, but instead refers to technical terms and offences, and the admissions are: first, 'As my wife HUI Siu-mui scolded me, I therefore indecently assaulted her mother', and secondly, when asked why he admitted that the two rape cases and two indecent assault cases were done by him he replied, and I quote: 'I admit what I have done'.

Now the admissions ont he 4th statement of two indecent assaults - you may  well feel, this is a matter entirely for you - are clear enough in the context of the preceding statements. You may feel that the remaining statement in relation to the rape count is not such an unambiguous admission, for the accused did not earlier go so far to admit having sexual intercourse without consent but only to having sexual intercourse.

His reply on the 4th count is not expressly an admission of rape, for he only states, and I quote: 'I admit what I have done'. It is for you to apply your collective common sense to those answers in the light of the questions to which they relate and in the context of the preceding statements, for while you have four statements before you they were all taken at the same time and while taken on separate documents are really one continuous narrative.

After considering any possible ambiguities it is open to you to accept the admissions in the 4th statement as admissions of two acts of rape and two acts of indecent assault. If you do accept the statement as containing those admissions then my direction is that those admissions are capable of providing independent support for the complainant's allegations in relation to indecent assault. In that event, you will have to decide whether they are true admissions.

While I direct you that the statement in those circumstances is capable of providing independent support for the allegation of indecent assault and subject to your interpretation of the admission in relation to rape, of providing independent support for those two allegations, it is entirely a matter for you to decide whether it does confirm or strengthen the complainant's own evidence, and it is also entirely a matter for you as judges of fact to decide what weight you will give to the contents of the statements and, in particular, on the question of independent confirmation, the contents of the 4th statement. "

23. It must be said, with respect, that these are in any event confusing and somewhat contradictory directions. What seems to emerge is a suggestion that the final phrase "I admit what I have done" after the 4th statement is an acknowledgement of the fact of rape and the fact of indecent assault on the first three occasions, those being the specific offences which had been put to him. But that answer in truth puts the matter no further at all. For one thing he was not asked why he admitted to two rape cases and two indecent assault cases, he was asked only why he was admitting that these four cases were done by him. His answer does no more than recapitulate what he had said in answer to those three earlier challenges. But those statements, as the judge himself points out, did not amount to admissions to non-consensual intercourse or contact.

24. The answer to the fourth allegation is expressly an admission to indecent assault and would undoubtedly afford corroboration of the complainant's testimony if what the applicant was then being asked to address his mind was the very episode described by the complainant when giving evidence at the trial.

25. It may be that in making his admission the applicant was not attentive to the actual time being alleged but we cannot simply assume that that is so. His admission to an indecent assault upon an occasion which was patently not that being dealt with by the complainant when she came to testify against him cannot afford corroboration of her testimony in relation to the episode which she purported to describe.

26. The jury were evidently in doubt about some parts of the complainant's evidence since, although her testimony in respect of both episodes of rape was very similar in character and coherence, they nevertheless refused to convict upon the second count. What they made of these directions as to corroboration is difficult to say but it may very well be that they proved decisive upon the remaining counts.

27. For these reasons we cannot regard the convictions as safe or satisfactory. We grant the application and treating the hearing as the hearing of the appeal, we quash the convictions and set aside the sentences.

Representation:

Mr. P. Loughran (D.L.A.) for the Appellant.

Mr. I. Duguid for Respondent/D.P.P.