HKSAR v. Hung Lien

HCCC000155/1998

HCCC155/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO.155 OF 1998

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Coram : Deputy Judge Muttrie in Court

Date of hearing : 4 November 1998

Date of ruling : 4 November 1998

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R U L I N G

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1. The Defendant is charged with rape, in the alternative unlawful sexual intercourse with a girl under 16, on an unknown date between 1st January and 16th February 1998; and indecent assault on 16th February 1998.

2. PW1, Cheng Yiu Shuen, was born on 10th March 1982 in Chiu Chow. She had some two to three years of education in mainland China. In 1996, she came to Hong Kong to join her father and mother who had come to Hong Kong earlier. At the beginning of January 1998, she went to work as a dish-washer at the Defendant's small restaurant in Sham Shui Po. The Defendant also comes from Chiu Chow. PW1's mother asked the Defendant to employ PW1. There was some acquaintance between her father and the Defendant's elder brother.

3. PW1 normally worked until 11:30 p.m. but often later. In the small hours on 16th February 1998 she came home late. According to the girl's mother, the second prosecution witness, she telephoned the Defendant's restaurant because the girl was late, and the girl took the phone and accused the Defendant of having indecently assaulted her, which he denied. PW1's evidence does not mention such telephone call and she was not cross-examined about it. In any event, she went home and made a recent complaint to her mother of indecent assault.

4. According to the mother, the girl said that the Defendant had squeezed her nipple and pushed her into the toilet; tried to take down her trousers; taken down his own trousers and exposed his penis; put his hand over her mouth; and kissed her. She had bitten his tongue when he kissed her.

5. The next day, PW1, her mother and father all went to the restaurant apparently in response to a telephone call asking PW1 to come to work. The mother says in evidence that she accused the Defendant of harassing PW1, squeezing her nipple and exposing his penis. She says that, after initially denying, he said that he was sorry and that it was a moment of weakness. She also said under cross-examination that, although she did not mention this in her statement to the police, the Defendant also told her not to worry and that he had used "preparations" which she understood to mean a contraceptive. The girl was then allowed to carry on working for the morning shift, because the Defendant had not got another person to wash his dishes. In the meantime, the mother decided to take the girl to a doctor. She went to collect PW1 at the end of the morning shift to take her to a doctor. It was decided to take her to a public hospital. On the way to the Caritas Medical Centre, she further questioned PW1 who said that the Defendant had raped her in the same toilet a couple of weeks before.

6. PW1 was taken to the Caritas Medical Centre and examined there. She was found to have a small laceration on her lower lip. She was examined next day by a forensic pathologist and found to have an old tear in the hymen, which could be a week old, or months or years old, but no signs of recent sexual intercourse. The Defendant was examined. He had no injury to the tongue and no signs of recent sexual intercourse or anything else to support the prosecution's case of indecent assault or rape.

7. The Defendant gave a statement to the police; he was questioned and he gave answers. His statement was admitted without objection. In it he denied both incidents and he denied making any admission to the mother.

8. PW1's evidence in chief was in the form of a videotaped interview, admitted under s.79C of the Criminal Procedure Ordinance. The rest of her evidence was taken by CCTV linkage under s.79B of the same Ordinance. She gave some further evidence in chief, identifying photographs and a sketch and saying that she had had no other sexual intercourse. She was cross-examined and re-examined.

9. In the taped interview she spoke of both the indecent assault and the rape. Her evidence of the former was pretty much consistent with what, according to her mother, she said later. Her evidence of the date of the rape, i.e. 5th February, did not tally by a few days with the evidence of the date calculated by the mother by reference to her own trip to the Mainland for the Chinese New Year; nor did it tally with her account given to the pathologist of intercourse about one week before the examination on 16th February.

10. In the course of the interview, PW1 was asked the name of the boss, who she said had raped and indecently assaulted her. She said she did not know. Then she volunteered the name "Chan Tim". The Chiu Chow interpreter explained that this was a Chiu Chow place name known to her. The interpreter was in fact later called to give evidence and she confirmed that this is a place on the way to the Chiu Chow province.

11. PW1 was cross-examined at length on this matter. She was asked, was this Chan Tim a person? She said that he was a friend. She was asked how old the friend was and she said the friend was taller than she. Asked again the same question "how old?", she said that the friend was a little bit shorter. She said that this person was her friend in China, then she said she did not know him. Then she said that her father knew him and his brother, he was not her friend. The Court's record was played back; and she denied again that Chan Tim was her friend, she said she had made a mistake. She said she had mentioned him because he was her father's friend, but further questioned, she denied having mentioned him on the videotape.

12. The videotape was played back. This time she said that Chan Tim was a place name, but she agreed that this came from the interpreter and not from her. She was asked further, and said that it was not clear and she could not remember having volunteered the name. She was then asked whether she was disputing what she heard on the tape, and she said that what was contained was false. Asked if a false name was provided, or the record forged, she said "I made it up". Asked if she had made up about this character Chan Tim, she said she had. Asked why she had made it up she denied that she had mentioned the name.

13. She was then asked if she knew what "deny" meant. She said that she denied his name. She was asked again if she knew what "deny" meant, and she said that she did not agree. Further questioned, she maintained her denial that she had said the name and then she agreed that she had made up the name. Asked why, she said, for no purpose, then she said she did not know.

14. She was then asked if she had made up the case against the Defendant. She said she had not. Asked if Chan Tim was a real person she said that he was. Asked if she had made up his involvement rather than the fact of his existence, she said "All was made up". Then she agreed that it was all made up against Chan Tim, and then, when asked if it was all made up about the Defendant she said "Yes, it was".

15. Re-examined, the girl said that she had mentioned Chan Tim first because the madam boss was from Chan Tim. She had not known the name of the boss but she had mentioned this Chan Tim which was a society or a clansman's association, or a village. Asked who else, apart from the boss's wife, came from there, she said "his father and mother", asked whose father and mother, she said "Chan Tim". Returning to the question of who he was, she said "his younger sister", asked whose, she said "the younger brother's younger sister". Then, asked who was the person she was talking about she said she had no idea. Asked what she meant when she said she had made up about Chan Tim, she said it had no meaning.

16. She was then asked if the incidents in the toilet had happened, she confirmed that they were, and that her boss had raped her; and she had not allowed him to do it.

17. The Defence submits that there is no case to answer on the following grounds :

1. PW1's admission that she made it up about the Defendant means that there is no evidence against the Defendant.

2. In the alternative her evidence is such that no reasonable jury properly directed could convict on it.

3. In the further alternative, if her evidence is such that its strength or weakness depends on the view to be taken of her reliability it is still so self-contradictory and out of reason and all common sense that following the case of R. v. Shippey, the prosecution cannot "pick out the plums and leave the duff" and so the case should not be left to the jury.

18. It is also argued that the mother's evidence of the admission by the Defendant of indecent assault is inherently unlikely. Further, her evidence of the admission of "preparations", i.e. a contraceptive, came at a time when no complaint of sexual intercourse had been made to the mother by the daughter. It is not in the mother's statement. It only came out at trial, so it is probably a fabrication by the mother and it is incredible.

19. In fact the mother, to explain all this, said that at that stage she did not know if sexual intercourse had taken place. She did not know if her daughter was telling the whole story about indecent assault or holding something back from her. It should be said that the mother was a rather truculent and noisy witness but this can be explained by her lack of education and peasant background.

20. The prosecution argues that at any rate on the indecent assault there is sufficient evidence from the mother, relating to the recent complaint, to the state of the girl herself when she made the complaint, and so forth, to show that the girl is consistent. The whole business of "Chan Tim" came about because PW1 got confused under cross-examination. What she really meant was, as she said in re-examination, that she had volunteered Chan Tim because that is where the boss's wife came from. Her evidence had to be looked at as a whole. There is sufficient evidence in the video to support rape or in the alternative unlawful sexual intercourse, and on a separate occasion, indecent assault. Overall it is a question of her credibility which is a matter to be left to the jury. There is evidence from the mother of admissions both to the indecent assault and the rape by the Defendant, the latter being in the form of a reference to "preparations" must be an admission to sexual intercourse. The prosecution says that the case should go to the jury on all counts.

21. I have considered this at some length, and I have come to the conclusion that the girl herself was so shaken by cross-examination on this matter of "Chan Tim" that even if the admission that she made things up about the Defendant cannot be taken as negating the whole of her evidence, nevertheless it is self-contradictory and out of all reason and common sense.

22. I have paraphrased to the best of my ability my note of the girl's evidence, and it seems to me that it shows that she became so confused and self-contradictory at this point as to be unreliable. It is true that while there is nothing in the evidence to support the allegation of rape apart from the evidence of the girl herself, there is, at any rate, a recent complaint and evidence of the conduct and state of the girl which would tend to support her consistency on the indecent assault. Nevertheless, if the girl's evidence is self-contradictory and inherently weak on the rape, it must be taken as self-contradictory and inherently weak on the indecent assault.

23. Overall I have come to the conclusion that this is not a case which should go to the jury, and accordingly I have to find that there is no case for the Defendant to answer.

Representation:

Mr Arthur Luk, PGC, leading Miss Agnes Chan, SGC, inst'd by DPP, for HKSAR

Mr Paul Wu, inst'd by M/s Mui, Kwan, Kun & Associates, for the Accused