HKSAR v. Chan Wing Ling

HCMA354/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 354 OF 2006

(ON APPEAL FROM ESCC 2907 OF 2005)

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BETWEEN

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Before : Deputy High Court Judge Longley in Court

Date of Hearing : 10 August 2006

Date of Judgment : 16 August 2006

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J U D G M E N T

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1.This is an appeal by the appellant against his conviction by Mr Allan Wyeth on 11 November 2005 at Eastern Magistracy of the offence of loitering with intent, contrary to section 160(3) of the Crimes Ordinance, Cap. 200.

2.The prosecution case was that on the evening in question, the appellant, a uniformed police officer with 29 years’ service was on duty in the report room of North Point Police Station and that at around 9:16 p.m., he had left the report room and gone to the female washroom on the 3^rd floor of the police station.  It was alleged that after entering he had peeped over the door of a shower cubicle at Madam Cheung Cheuk Wai (“PW1”), a cashier of the canteen of the police station, who was at that time taking a shower.  

3.The principal evidence from the prosecution came from PW1 who gave evidence as to what had occurred.  Her evidence was that although the appellant had shown a romantic interest in her, and she had somewhat reluctantly allowed him to enter her home on three occasions, she had not reciprocated his interest in her and indeed had informed him that she already had a boyfriend. 

4.In addition to PW1, the prosecution called six other witnesses.  They included Madam Choi Sau Ming (“PW2”), a colleague of PW1, who worked in the canteen, who gave evidence of PW1 appearing wet and in distress at the canteen.  Station Sergeant Chan Chun Keung (“PW3”) who gave evidence of having received a phone call from PW1 at about 9:20 p.m. during which she was weeping.  She had complained in the course of the call and later when he had seen her of the appellant having peeped at her when she was in the shower, and Madam Sheung Yu Fan (“PW4”), the supervisor of the canteen, who gave evidence of having received a call from PW1 at about 9:35 p.m. that night, in which PW1 had complained that the appellant having peeped at her whilst she was taking a shower.  PW1 had repeated the complaint to her at about 10:30 p.m. at North Point Police Station and had appeared to be in distress.  

5.The appellant himself did not give evidence.  He had however been interviewed by the police at 2:00 a.m. and at 7:20 p.m. on the day following the incident, and the records of those interviews, P3 and P4, were adduced by the prosecution in evidence.  His account in both interviews amounted to an allegation that PW1 had fabricated the story of him having peeped at her whilst she was in the shower.

6.Although there were some differences in what he said in the two interviews, the account which was put to PW1 by defence counsel was that contained in the second record of interview.  He alleged that there had been a sexual relationship between him and PW1.  He admitted that he had verbally promised her that he would leave his wife, but that he had not done so.  On the day in question, she had asked him to meet her on the staircase after she finished work.  After she met him there, she had asked him to enter the ladies’ washroom so that they could talk.  They had had an argument about his failure to leave his wife during the course of which she had demanded that he lend her $10,000.  When he turned round to leave, she had started to scream.

7.In his Statement of Findings, the magistrate stated that after carefully considering and assessing the evidence of PW1, he was left in no doubt that she was an honest and reliable witness. 

8.He rightly pointed out that her evidence was uncorroborated and warned himself of the dangers of relying on her evidence alone in order to found a conviction.  Insofar as the evidence of PW2, PW3 and PW4 are concerned, he reminded himself that the evidence was not independent of the evidence of PW1.  He went on to say : “… The evidence of PWs2, 3 and 4 was in the nature of ‘Recent complaint’.  I was well aware of the limited use to which such evidence can be put i.e. it goes only to consistency of conduct on the victim’s part.”

9.It is this aspect to the magistrate’s findings that forms the principal ground of appeal advanced by Mr Chung which is that : “In assessing the evidence adduced by the prosecution against the appellant, the learned Magistrate erred in law in admitting and relying on the evidence of PWs2, 3 and 4 as evidence of ‘recent complaint’. 

10.This ground of appeal relies upon a technicality in the current state of the law.  Under the present law, evidence of recent complaint is only admissible to support the credibility of the evidence of a complainant in the case of a sexual offence but in no others.  The Law Reform Commission Consultation Paper on Hearsay in Criminal Proceedings, November 2005 has recommended that this restriction be removed.  

11.Evidence of the distress of an alleged victim is however admissible evidence in all cases and its use is not confined to credibility.

12.Insofar as this case is concerned, it is common ground that while PW2, PW3 and PW4 gave evidence of the distress of PW1, PW3 and PW4 also gave evidence of recent complaint made by her to them.  In particular, PW3 gave evidence that at about 9:20 p.m., which would have been less than a minute after the appellant had returned to the report room, he received the call from PW1 complaining that the appellant had peeped at her whilst she was in the shower. 

13.Mr Lee for the respondent conceded that evidence of recent complaint is not admissible in this case.  He accepted the judgment of Beeson J in HKSAR v. Wai Siu Kwong, HCMA1224/2000 (which was not disapproved of on the application in the same case for leave to appeal to the Court of Final Appeal, FAMC9/2001) as authority for the proposition that evidence of recent complaint is only admissible to support the credibility of a complaint where the charge is of a sexual offence.  He accepted that, notwithstanding the facts relied upon by the prosecution, the offence of loitering with intent, contrary to section 160(3) of the Crimes Ordinance, Cap. 200 is not a sexual offence.

14.In this case, the case for the prosecution was dependent on the evidence of PW1 and the magistrate’s assessment of that evidence.  In admitting the evidence of what was said to PW3 and PW4 by PW1 immediately after the incident and describing it as evidence of “recent complaint” and going on to state that it was relevant to her consistency, the magistrate was implying that it was evidence that he could take into account in assessing her credibility. 

15.In stating his findings that she was an honest and reliable witness and that he believed her he did not specify what it was that had led him to that conclusion.  More particularly, unlike the situation in Wai Siu Kwong (supra), he did not make it clear that he had not relied at least partially upon the evidence of recent complaint in reaching his findings. 

16.I have considered whether the magistrate would have been bound to come to the same conclusion as to the credibility of PW1 even if the evidence of recent complaint had not been admitted.

17.The evidence of PC21372 (PW7) as to the test he had done to assess how long it would take to walk from the report room to the ladies’ washroom on the 3^rd floor and back to the report room would make it highly unlikely that the account given by the appellant in his second record of interview could be true.  There would not have been sufficient time for all he alleged to have occurred to occur, but it does not necessarily follow from the fact that the appellant’s own account cannot be true or completely true that PW1’s account necessarily must be.

18.The admissible evidence of the distress of PW1 also given by PW3 and PW4 as well as by PW2 does not necessarily have the same significance as that of the recent complaint of peeping by the appellant.  Her distress may equally have been the result of the attitude of the appellant following an exchange of words in the ladies’ washroom. 

19.Bearing in mind the admission of inadmissible evidence of recent complaint and the fact that the magistrate did not state that he had not relied upon such evidence in assessing the credibility of PW1, I cannot exclude the possibility, however remote, that he may have done so.  In such circumstances, I allow the appellant’s appeal against conviction. 

Mr Kelvin Lee Ka Yun, GC of Department of Justice, for the Plaintiff

Mr Bernard Chung, instructed by Messrs Johnnie Yam, Jacky Lee & Co., for the Appellant