The Queen v. Cheng Kay

CACC000483/1983

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 483 OF 1983

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BETWEEN

Coram: Macdougall, J.

Date: 9th May, 1983.

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JUDGMENT

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1. The appellant, a police sergeant, was convicted after a trial of having indecently assaulted a woman. It is against that conviction that he now appeals.

2. At the hearing before a magistrate the prosecution case rested on the testimony of the complainant and her boyfriend. They testified that at about 7.15 p.m. on 5th March 1982 they arrived at Lok Fu Reservoir Park where they stripped off their clothes and engaged in intimate behaviour on a park bench. Suddenly the appellant appeared and after producing a card that the boyfriend said resembled a warrant card, announced that he was a police officer. He told the couple that they were committing an offence and that he proposed to take them to a police station.

3. The couple urged him not to arrest them, but the appellant, after obtaining their respective addresses, repeated that he intended to take them to a police station. He then instructed the complainant to wait in the vicinity of a gate while he took the boyfriend to a small path where he questioned him. The boyfriend was then brought back to where the victim had been waiting and was told to squat down and place his hands on his head.

4. The appellant then took the complainant aside to a place which was out of the boyfriend's field of vision and informed her that he wanted to search her because he suspected that she was in possession of white powder. By this time the complainant had dressed herself in a pair of sports trousers and a shirt.

5. The appellant then inserted his hand underneath her clothing and stroked her breasts and private parts. She testified that he did this by standing behind her and bringing his hand around to her front. The indecent assault continued for what the complainant thought to be quite a long time although she was unable to form an estimate of the actual time taken. The boyfriend, however, said that he remained squatting for some five to ten minutes before the victim returned to him.

6. After the indecent assault the appellant asked the complainant  for her telephone number. Following on this he declared that he would not arrest her, handed back her underpants and walked away quickly. The complainant returned to where her boyfriend had been waiting and informed him that the appellant had indecently assaulted her by stroking her breasts and inserting his finger into her vagina. The boyfriend wanted to chase after the appellant but the complainant persuaded him not to do so. As the complainant was of the opinion that the police would not be able to find the appellant and since she did not want her family to know about the matter, the couple decided not to make a report to the police.

7. On the evening of 30th January 1983 they saw the appellant near a cinema exit. After enlisting the aid of four passers-by the boyfriend went up and caught hold of the appellant. It was then that they discovered that he was armed with a revolver.

8. The couple accused the appellant of having indecently assaulted the complainant, whereupon the appellant countered that they were assaulting him. The three of them then went to a police station. Sometime later the appellant was interviewed by officers of the Complaints Against Police Office and was charged with indecently assaulting the complainant.

9. An officer of the Complaints Against Police Office testified that at 8 p.m. on 7th February 1983 he and a woman police officer went to that part of Lok Fu Reservoir Park that was depicted in photographs tendered by the prosecution and which the couple had identified as depicting the scene of their encounter with the appellant. The object of the visit to the park was to assess visibility. It was a rainy evening and no stars or moon were visible. Notwithstanding these adverse conditions the officer was able to see the female officer's features clearly when she was standing five to six feet from him. He testified that although the few nearby park lamps were of not much assistance, the natural light was very good.

10. During the course of their evidence the couple related the circumstances under which they observed the appellant in the park.

11. The complainant testified that the whole encounter had lasted for about thirty minutes, that the moon was full and she could see the appellant, that a park light was situated ten feet behind the bench on which she was lying when the appellant first appeared, that apart from the occasion when he took her boyfriend aside the furthest the appellant was from her was only a few feet.

12. The boyfriend testified that the initial confrontation by the appellant at the bench occupied some three or four minutes. During the time that the boyfriend had the appellant under observation the furthest distance they were apart was four to six feet. Apparently this was when the conversation at the bench occurred. The closest observation was from a distance of one or two feet. It seems that this occurred when the appellant took the boyfriend aside.

13. Although the couple were positive in their identification of the appellant, the boyfriend offered no description of his features. He did say however that he paid attention to his protruding cheekbones. The victim said that the appellant had no particular feature by which she could identify him.

14. Having seen the appellant at the hearing of the appeal I must say that 1 formed the impression that although his features, perhaps with the exception of his rather prominent cheekbones, were not individually distinctive, his overall facial appearance was nevertheless quite striking.

15. After an unsuccessful submission of no case to answer on the basis that the identification of the appellant was of insufficient quality to allow the trial to proceed, the appellant gave evidence.

16. He denied that he had ever been to Lok Fu Reservoir Park. As to the evening of 30th January 1983 however, he testified that he had been on special duty behind the cinema when five to six Chinese men rushed at him and that one grasped his neck and another his arm. He felt someone touch the revolver that he was wearing at his rear and shouted out that it was being snatched. He managed to struggle free and caught hold of the boyfriend and arrested him. At this moment the complainant rushed up and alleged that the appellant had indecently assaulted her. Surprised at this allegation he suggested to the couple that no further discussion should take place at the scene and announced that he intended to take the boyfriend to a police station and that the complainant should follow.

17. The appellant then took them both to Wong Tai Sin Police Station. The following day the appellant was interviewed by an officer of the Complaints Against the Police Office and was asked where he had been on 7th March 1982 between 6 and 9 p.m. He told the officer that he, his wife and his aunt had been to a marriage celebration in Mongkok. Two days later he was interviewed again and asked to account for his whereabouts on 5th March between 6 and 9 p.m. He said that he had been on leave that day and was unable to say where he had been.

18. The appellant had been represented at the trial by counsel who quite properly probed into the circumstances of the encounter in the park with a view to demonstrating that because of the prevailing circumstances and conditions the couple had mistakenly identified the appellant as the culprit. The sole ground on which the defence case was fought was that the couple had honestly but mistakenly identified the appellant.

19. Mr. Eddis, who did not represent the appellant in the court below, now complains at the hearing of the appeal that defence counsel should also have put forward an additional defence, namely, mala fides, as Mr. Eddis puts it, on the part of the couple.

20. Mr. Eddis argues that such a defence arose inherently from the evidence as to the seizure of the appellant by the boyfriend and the four passers-by on the evening of 30th January 1983. He argues that the five men, and perhaps the complainant, had attacked the appellant with the object of snatching his revolver and that after the appellant had thwarted their scheme and the tables had been turned, the complainant attempted to extricate them from their difficulty by making a false allegation that the appellant had previously indecently assaulted her.

21. It seems to me that such a defence would have been speculative in the extreme. Furthermore, apart from the inherent improbability of the appellant being able to break free from five men who had attacked him without warning, I imagine that a query would have immediately arisen in the magistrate's mind as to why the appellant, if he had genuinely thought that the five men had attacked him with a view to snatching his revolver, did not draw it after he had broken free and arrest all five of them.

22. It requires little thought to realise why counsel of the trial did not attempt to place such a wildly improbable construction on the events that had occurred. The defence that was raised was one of mistaken identity. On the evidence it was the only defence that was viable. It was not incumbent on the magistrate to consider fanciful possibilities. In my view there is no substance in this ground of appeal.

23. I now turn to a consideration of the grounds of appeal that arise from the evidence. It is contended that the complainant's allegation at the trial that the appellant had used his hand to stroke her breasts and private parts is totally inconsistent with her complaint to her boyfriend at the park that the appellant had stroked her breasts and had inserted his finger in her vagina. Mr. Eddis submits that this strongly suggests that the complainant fabricated her allegation.

24. I find myself totally unable to accept this contention. Although it is true that at the trial the complainant did not specifically mention the insertion of the finger into her vagina, I do not see that the two assertions contain mutually exclusive allegations. Apparently, the reason why she told her boyfriend that a finger had been inserted into her vagina was that she complained of soreness in that region. It is not surprising that at a public trial a young girl should merely give a general description of the sexual   assault which she had suffered without going into the intimate details of her humiliating experience.

25. Another point that is made is that the magistrate should have considered whether or not the complainant had been wearing sports trousers at the time of the assault. I am not sure why he should have been obliged to consider that matter. Although the complainant had testified that she was naked when the appellant first appeared, it is apparent that she managed to clothe herself before the assault occurred. I find nothing strange in this. Equally I do not find it strange that the appellant was able to insert his hand under her clothing in order to fondle her breasts and private parts. Moreover there was no cross-examination of the complainant with a view to showing that it would have been impossible or impractical to fondle her in the manner alleged due to constricted clothing or otherwise. This point does not commend itself to me.

26. Mr. Eddis further complains that the magistrate failed to consider sufficiently or at all whether the assault took place on the 7th March, as the complainant had originally told the police on the night when the appellant was apprehended or on 5th March, as she had testified in court. The significance of this from the appellant's viewpoint was that. he had been able to provide an alibi for the night of 7th March and that what must have happened was that investigating officer then reinterviewed the complainant and told her of this whereupon she altered the date of the occurrence to 5th March.

27. Bearing in mind that the complainant would not reasonably have expected to meet up with the culprit again after the incident in the park it does not seem surprising to me that having suddenly and unexpectedly encountered him more than ten months later, she would make an error in recollection of the date of the assault when giving particulars of it to the police very shortly after the second encounter had occurred. In her evidence she said that she recalled the correct date later the same evening. The magistrate clearly believed the complainant and specifically found that  the assault had taken place on the 5th March. Since the defence was one of mistaken identity, and since it is not unnatural for a person to be unable to pinpoint at short notice the date of an event which occurred over ten months earlier, I am unable to say that the magistrate was wrong in believing her evidence.

28. Another point that is made on behalf of the appellant is that the complainant's failure to make a prompt complaint to the police after the events of the night of 5th March had not been adequately or satisfactorily explained by her. It is also contended that the boyfriend had given a contradictory account as to why no prompt complaint had been made to the police.

29. The explanation that was given by the complainant was that she did not want her family to find out about the matter. She also said that she did not think that the police would be able to find the culprit. I am at a complete loss to understand why this is not a satisfactory explanation. It seems to me to be perfectly understandable that a girl would not want to endure the embarrassment of making a complaint of this nature to the police and run the risk of her parents coming to know of the matter when it was plain that there was only the remotest prospect that the police would be able to track down the culprit. His identity was unknown and he had disappeared without a trace. Even though he had claimed to be a police officer and had produced a card that resembled a warrant card there was no certainty that he was a police officer. If he had been a police officer, where would the police start looking among their ranks? Would they be expected to place each of the twenty thousand Chinese police officers in Hong Kong on an identity parade to solve this comparatively minor crime. The answers to these two questions would be obvious even to a layman.

30. The boyfriend likewise said that they did not report the matter to the police because the complainant feared that her family might come to hear about it. He did not say that they also concluded that the police would not be able to find the culprit. I do not find that there is anything contradictory in this. It is a matter of commonsense that people are most disinclined to report embarrassing matters to the police unless they are of the opinion that there is a good prospect that the culprit will be brought to justice. There is no substance in this point.

31. It is also alleged that the magistrate made findings of fact that were wholly unsupported by the evidence and unsubstantiated by any reasonable inference from it.

32. In particular, complaint is made that the magistrate used a diary entry made by the boyfriend three days after the events in the park had occurred, as a factor supporting the allegation that there had been an indecent assault. The short answer to this is that nowhere in the record does it appear that the magistrate relied upon the diary entry in coming to his conclusion that he believed the complainant.

33. The diary entry stated that an unhappy event had occurred between 8 and 8.30 p.m. on 5th March and that the boyfriend wanted to exact revenge. Evidence as to this diary entry arose in connexion with that part of his testimony in which he offered a reason as to why no complaint had been made to the police. Strictly speaking such evidence could only have been admitted to rebut an allegation that he had recently invented his evidence and its function would have been restricted to a determination of that issue.

34. The grounds of appeal do not contain any complaint as to the admission of this evidence, nor did counsel in the court below object to its admission. Although I am of the view that because no allegation of recent invention had been made the entry should not have been admitted, I do not think that it had any effect on the outcome of the case. I would therefore not quash the conviction on that account.

35. The only finding that the magistrate made concerning the diary entry was that it related to the alleged assault. This is also the subject of complaint. Mr. Eddis contends that the entry has little or no relation to the assault and might easily have referred to something else. This seems to me to be highly unlikely as it refers to the very time span during which it was alleged by both the complainant and her boyfriend that the assault occurred and it can hardly be inaccurate to describe an indecent assault as an unhappy event. Although such was never alleged I am alive to the possibility that a diary entry might easily be concocted to add weight to a false allegation. That being said, I have come to the conclusion that the cryptic nature of the entry and the fact that it purports to have been made three days after the event point away from a possible suggestion of concoction. From long experience in the criminal courts of Hong Kong I would have expected that if fabrication had occurred the entry would purport to have been made on the actual date of the event and would have been far more explicit as to what had occurred.

36. Another finding that the appellant claims to be unsubstantiated is that the boyfriend with the help of passers-by arrested the appellant on 30th January 1983. Mr. Eddis contends that it was the appellant who arrested the boyfriend. This is nothing more than a play on words. It completely overlooks the fact that an arrest by a citizen is none the less an arrest. It may be that they appellant formally arrested the boyfriend after he himself had been seized but the magistrate quite properly designated the apprehension of the appellant by the boyfriend and the passers-by as an arrest.

37. The final finding that the appellant claims to be unsubstantiated is that when the appellant was arrested by the complainants they did not know he was a police officer. It is alleged that this finding was "perverse and only substainable if the complainants or either of them had added words to the effect that they thought they were apprehending an armed criminal".

38. With respect, this point is utterly misconceived and entirely misses the point. The magistrate was clearly referring to the reliability or otherwise of the identification on 30th January 1983 of the appellant as the man who indecently assaulted the complainant on 5th March 1982. The point which he sought to make was that the fact that the man who committed the assault had alleged in the park that he was a police officer and had produced what appeared to be a warrant card, coupled with the fact that it was not until after the two complainants had identified the appellant as the culprit and had seized hold of him that they discovered that he had a revolver and thus was most decidedly a police officer, tended to support the identification by the couple of the appellant as the culprit.

39. Finally Mr. Eddis contends that not only did the magistrate fail to consider what effect the lapse of over ten months would be likely to have had on the reliability of the identification of the appellant by the couple but that he failed to give sufficient consideration to all relevant guidelines on the matter of identification "and to recent examples of positive yet mistaken identifications given in circumstances of the complainants' alleged identification of the appellant".

40. What recent examples counsel felt that the magistrate should have had in mind I do not know. I imagine that all judicial officers are aware of recorded instances in which convictions founded on unreliable identifications have been declared to be unsafe and unsatisfactory. Be that as it may, it seems to me that a magistrate is better served by turning his attention to the guidelines that were enunciated in Turnbull [1976] Cr. App. R. 132 where the Court of Appeal in England applied itself to an overall consideration of the problems associated with evidence of identification. In doing so the Court was prompted not only by the problems which arose in that particular case  but also by those that had brought about miscarriages of justice in recent years.

41. The magistrate clearly addressed his mind to the problem of identification. The brief note on his ruling on the submission of no case to answer in which he not only expressed the view that the identification was of sufficient quality to allow the trial to proceed, but stated that he had reminded himself of "Turnbull", demonstrates that this was so.

42. Finally, in his Statement of Findings he positively asserted that he had considered all of the guidelines laid down in Turnbull. Short of copying them all down into his record I do not know what else he could reasonably have done to indicate that he had had those principles firmly in mind when he arrived at his decision.

43. It is true that he did not specifically advert to the fact that the identification of the appellant outside the cinema had occurred more than ten months after the alleged indecent assault in the park, nor did he say that he was aware that during such a lengthy period recollection of a person's features would be likely to fade. It must be remembered however that the case was fought on the very issue of identification. I cannot believe that the magistrate did not have that consideration  very much to the forefront of his mind or that defence counsel did not place forcible emphasis on this aspect of the case.

44. The magistrate found that the incident had occurred over a period of about a half an hour and that the couple had ample opportunity to study the culprit's features in the prevailing circumstances. He also considered, and in my view rightly so, that his finding that at the moment the appellant was seized the couple did not know that he was a police officer, tended to reinforce their identification. This is an aspect of the case which I have already dealt with at some length. I do not propose to repeat what I have said in that regard.

45. The magistrate also found that the couple were reliable and credible witnesses whose recollection of the events of the evening of  5th March was extremely clear.

46. Mr. Eddis concedes that the mere fact that an identification was made more than ten months after the event complained of does not of itself render any conviction founded on such identification unsafe or unsatisfactory. This surely must be correct.

47. I am unable to say that the magistrate proceeded on an erroneous basis on that he came to a wrong conclusion on the evidence.

48. For these reasons therefore the appeal is dismissed.

Representation:

Mr. F. Eddis instructed by David K.W. Tsang & Co. for Appellant.

Mr. de Speville, Senior Asst. Crown Prosecutor for Crown/Respondent.