Cheng Ting-wai v. The Queen

CACC000344/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 344 OF 1973

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Coram: Trainor J. in court

Date of Judgment: 25 May 1973

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JUDGMENT

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1. On the 27th of March, 1973 CHENG Ting - wai was convicted in the Magistrate's Court of indecently assaulting a girl, his daughter on the night of the 15th February, 1973, and was sentenced to two years' imprisonment.

2. He filed a notice of appeal against sentence only, but when the appeal came on for hearing it was clear from the appellant's opening remarks (he was unrepresented at the trial and on appeal) that he considered the appeal to be one against conviction. When his attention was drawn to the position he sought leave to appeal against conviction also.

3. The complainant in the court below said that on the night of the 15th of February, 1973 she was awakened some time after 10.00 p.m. and felt a hand stretch into her pyjamas and touch her private parts. She said the hand was withdrawn and that was the end of the incident. She said the person who did this was, her father, the appellant. She said she went to work the next day but did not return home. She said she did not return home because that sort of thing frequently happened. She said her father often caressed her breasts and on three occasions had touched her private parts withhis.

4. The complainant said that after leaving home she spent the nights on staircase entrances, and admitted in cross-examination that she did not go to stay with her grandmother, with whom she had stayed before, nor did she make any complaint to her at any time. In fact, the complainant said, she never told anyone of the incident on the 15th February except her girl friend and a woman police constable in circumstances referred to later.

5. When the complainant left home the appellant reported her to the police as a missing person.

6. On the 19th February the complainant met a girl friend and as a result of the girl friend asking how she was getting on she told of the incident with her father. At that moment she saw her father and ran away followed by her friend. She said a policeman grabbed her, at which time her father overtook her and they all went to Wanchai Police Station. A_t the police station the complainant said she met a woman police officer and

"[the] woman police constable made enquiries into the matter and asked why I did not return home. I identify W.P.C. 8161 as the W.P.C. who took a statement from me."

7. The appellant in his evidence denied that he had interfered with his daughter, and added that at the time of the alleged assault he was in a restaurant with a friend.

8. It is quite obvious from the record of this case that nothing would ever have been heard of it had it not been for the fact that the complainant was brought back to the police station. She told no one except her girl friend, who did not gave evidence, and the woman police constable who "made enquiries" and took a statement.

9. The only witnesses called for the prosecution were : the police officer who took the complainant and the appellant to the police station; the woman police officer; and the complainant. Practically the entire evidence of the woman police constable consisted of a recital of details of what the ccmplainant said took place over a period between her and the appellant. The path followed in the examination of this witness in the court below is, perhaps, best demonstrated by the following excerpt:

"1800, 19th February on duty in uniform. I took a statement from (complaimant) ... I asked (her) the reason why she left home. She then said to me because her father had often indecently assaulted her. Most of the time he caressed her breasts and her private parts. Very often he used his sexual organ to nab her private parts.

The witness did say that the complainant was "downhearted. She cried".

10. The first question that arises is: was the evidence of that witness admissible at all? It is long established and requires no embellishment from me that where a female who has been the victim of a sexual offence makes a complaint in the absence of the accused to a person to whom she might be expected to complain, or the police, at the earliest opportunity evidence may be given of that complaint. Not as evidence of the truth of what she alleges but of the consistency of her conduct. It is one of the exceptional cases where hearsay evidence is admissible. But to be admissible it must be a complaint; and moreover it must be made at the earliest reasonable possible moment. The complaint is to indicate that what happened is something anathema to her and by complaining at the earliest moment she indicates this. Moreover, the details of her early complaint are admissible to show consistency between her story in court and what she reported. For this reason it is highly desirable that the complainant's evidence be heard before the evidence of the complaint. If a witness is called to give evidence of a complaint and in fact, merely gives evidence of a conversation with the complainant about the details of an alleged offence of indecency that evidence is inadmissible because of its irrelevancy.

11. In the instant case had the appellant been professionally represented it is almost certain that objection would have been taken to the evidence of the woman police constable. It is almost equally certain that the learned magistrate would have upheld the objection on the grounds that no complaint was ever made. and certainly not within anything like the earliest possible reasonable opportunity. I say this even though the learned magistrate did at the trial tell the appellant that the evidence of the W.P.C. was merely evidence of a complaint.

12. The only admissible evidence of the indecent assault was that given by the complainant. Had the trial been before a jury the trial judge must have warned the jury of the dangers of convicting the appellant unless the evidence of the complainant was corroborated on some point material to the indecency. They would have been told what corroboration meant and it would have been for them to find if corroboration existed. They would also have been told that they could convict without it but because of the notorious reasons for the necessity of corroboration it would be highly dangerous to do so without it.

13. When a case is tried without a jury the presiding judge fulfils the function of judge and jury and he must direct himself as he would a jury. The question arises did the learned magistrate so direct himself.

14. The only thing pertinent to this is the observation of the learned magistrate in his statement of findings :

"I was aware that in a case of this sort it was important to consider the evidence extremely carefully. I was satisfied that the victim was a truthful witness. I did not accept the denial of the appellant."

15. What is said there might well be the criterion for a conviction in any criminal trial. The evidence must always be considered extremely carefully before an accused can be convicted. So carefully must it be considered that a judge trying a case without a jury, or a jury, must be satisfied before convicting that there is no logical conclusion other than the guilt of the accused. Moreover it is not necessary for the judge (or jury) to accept the denial of the accused. If the judge feels that there might be substance in the denial of an accused even if he does not himself believe it he must acquit.

16. An examination of the evidence in this case discloses no corroboration. And the matter rested entirely on the complainant's evidence.

17. I referred earlier to the evidence of the woman police constable. Even if it were admissible it certainly had no probative value so far as either an assault or indecency was concerned. Despite this the learned magistrate in his statement of findings summarised it at length. In the beginning of the summary he says :

"When she asked the (complainant) the reason for her leaving home [she] stated her father had indecently assaulted her"

and a recital of a number of incidents of indecency which occurred on occasions other than the 15th February follows.

18. It is true that the summary of this witness's evidence finishes up :

"W.P.C. 8161 stated that when (the complainant) made the complaint against her father she was downhearted and cried".

but as what transpired at the police station some days after the incident was a statement evoked from her as a result of enquiries made by the W.P.C. it could not be considered a complaint in the sense accepted in trials of such as the instant case. The question arises did the learned magistrate consider it as being in any way probative of the facts alleged. I do not wish it to be understood from what I have just said that an answer evoked as a result of a question could never be a complaint. What I mean to convey is: in the circumstances of this case the answer of the complainant could not be considered a complaint. In the leading case of R. v. Lillyman ⁽¹⁾ which considered what is so often referred to as "first complaint" Hawkins J. at 170 said :

"It is necessary, in the first place, to have a clear understanding as to the principles upon which evidence of such a complaint, not on oath, nor made in the presence of the prisoner nor forming part of the ...(illegible) gestae, can be admitted. It clearly is not admissible as evidence of the facts complained of: those facts must therefore be established, if at all, upon oath by the prosecutrix or other credible witness, and, strictly speaking evidence of them ought to be given before evidence of the complaint is admitted. The complaint can only be used as evidence of the consistency of the conduct of the prosecutrix with the story told by her in witness-box, and as being inconsistent with her consent to that of which she complains."

The learned judge then went on to cite Hawkins' Pleas of the Crown Book I,C. 41:

"It is a strong, but not conclusive presumption against a woman that she made no complaint in a reasonable time after the fact";

and Blackston's Commentaries Vol. IV, C. 15, P. 211(1):

"But in order to prevent malicious accusation it was then the law that the woman should immediately after, dum recens fuerit maleficium, go to the next town and there make discovery to some credible persons of the injury she had suffered."

The learned judge dealing with the case before him then said:

"It is too late, therefore, now to make serious objection to the admissibility of evidence of the fact that a complaint was made, provided it was made as speedily after the acts complained of as could reasonably be expecied."

19. In my opinion the evidence of the woman police constable was inadmissible but it would appear from the statement of the findings that the learned magistrate may have taken it into consideration in reaching his conclusion that the accused was guilty.

20. It may well be that when the learned magistrate said that he was aware of the importance of considering the evidence extremely carefully he had in mind the great desirability (one might almost say the near necessity) of corroboration but that one might convict without it. But this is far from clear.

21. Having regard to the doubt as to whether the learned magistrate did properly direct himself on the matter of corroboration, and the fact that he may well have considered the evidence of the woman police officer to have had some probative value. I permitted the appellant to appeal out of time against his conviction. I allowed the appeal and discharged the appellant.

22. I now give my reasons.

Representation:

Appellant in person

Mr. Macdougall, Ag. Asst, P.C.C. for Respondent

(1) (1896) 2 Q.B. 167.