R. v. Wong King Fung

CACC000653/1995

IN THE COURT OF APPEAL

1995, No.653
(Criminal)

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Coram: Hon. Yang, C.J., Power, V.-P. and Keith, J.

Date of Hearing: 26 April 1996

Date of Judgment: 26 April 1996

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. In this matter the applicant faced one charge of indecent assault. It was particularized that he, on 23rd October 1994, at the east gate of the dam at Tai Lam Chung Reservoir, Castle Peak, Tuen Mun, New Territories, indecently assaulted Lam Tzs-man, a girl aged 11 years and 10 months. He pleaded not guilty to that charge and was found guilty after trial before Judge Davies in the District Court and sentenced to imprisonment of two years. He now appeals against that conviction.

2. The trial judge in his Reasons for Verdict referred to the recent amendment to s.4 of the Evidence Ordinance Cap.8, which now reads as follows:

"Section 4 Evidence given by children

(1) In this Section, 'child' means a person under 14 years of age.

(2) A child's evidence in criminal proceedings shall be given 'unsworn'.

Section 4A Abolition of corroboration rule in respect of evidence given by a child

(1) Any requirement whereby at a trial by and before a judge and jury it is obligatory for the judge to give a jury a warning about convicting the accused on the uncorroborated evidence of a child is hereby abrogated in relation to cases where such a warning is required by reason only that the evidence is the evidence of a child.

(2) Any requirement that is applicable at a trial by a judge or magistrate and corresponds to the requirement in sub-Section (1) is hereby abrogated."

The judge went on:

"Therefore the current legal position in sexual cases with regard to the evidence of a female child is the same as that pertaining to a female adult. This is that corroboration is not essential in law but is always looked for in practice - R. v. Rudge 17 Crim.App.R.113."

3. The judge in the present case was satisfied that there was no corroboration and that the Crown case relied entirely upon the victim's evidence. He said in this regard:

"There being no corroboration, the Crown's case relies entirely upon the view taken of this young girl's evidence; whether it is so convincing that it can support a conviction on its own."

4. In the trial the applicant gave no evidence. In his statement to the police he had stated that the association was an innocent one. The trial judge, having considered all of the evidence, made the following finding:

"I find her (the child) a very impressive witness and her graphic description of what took place in the car left me in no doubt that she was recollecting her experience of that night and not repeating a concocted story. There is evidence which is not corroboration but evidence showing consistency in her account. This was given by her father and mother. It is true that when first confronted by her father she merely told him that she had been for a walk to the reservoir. She was clearly frightened of what his reaction would be to her being lost for an hour or so. Notwithstanding what had actually happened, she was reluctant to disclose that she had gone off willingly with this defendant. She clearly felt she was in a dilemma and a dilemma which she had hoped the defendant would help her resolve when she subsequently spoke to him by telephone from the prison grounds. He apparently did not help.

In permitting this evidence to be admitted, I was satisfied that in all the circumstances the only reasonable time for her to relate what had taken place was subsequently at home alone in the presence of her parents. I was also entirely satisfied that this situation was dealt with appropriately by both father and mother and that no undue influence was extended to elicit the 'complaint'. Her father obviously knew that his daughter had not told her the truth initially because she was afraid of the dark and would not have dared to wander off in the dark as she had claimed. When it became clear that she had gone off with someone in a car he was naturally concerned to know what may have happened. I was satisfied nothing was said or done to motivate this 11-year old girl into concocting such an outrageous account of what took place between her and the defendant just to satisfy her father's interest and to avoid a possible beating.

It was demonstrated that the girl had, in a number of instances, given evidence inconsistent with her statement to the police. I have considered them. They go essentially to matters of detail. She was entirely consistent in relation to the main act of indecency here. She never wavered. I find that her credibility is in no way shaken by these inconsistencies viewed in the context of a child unused to making a statement and having to relate in detail, a most embarrassing incident. As I have indicated, the situation here was that this young girl had experienced something that had, I believe, left her in a state of confusion. It is not a case where she wished to raise a hue and cry. What happened subsequently was not really in the nature of a complaint by her but a disclosure that someone had acted indecently towards her.

Having considered the evidence carefully, I find beyond reasonable doubt that the Crown has proved its case on the facts as I have described them earlier. I reject the statements of the defendant to the police as being worthy of no weight.

He is guilty as charged and I convict him accordingly."

5. Two grounds have been argued before us today by Mr. Dunn. The first is as follows:

"The Learned Judge was wrong in law to admit into evidence the testimony of the parents of LAM Tsz-man concerning what she told them about the incident, on the evening of 23rd October 1994. This evidence was not admissible as a 'recent complaint' since it was extracted from her by threats and violence, nor did it fall into any of the other recognised exceptions to the rule excluding hearsay evidence. The Learned Judge clearly relied upon this inadmissible evidence in coming to his verdict and described it as 'evidence showing consistency in her account'."

6. When urging this ground Mr. Dunn relied upon the following matters. When first questioned by the father, the girl had told him that she had gone off for a walk around the reservoir on her own. The father disbelieved her and when they returned home he commenced to hit her with a clothes hanger. She then said she had gone to the reservoir with an older man. Her father did not believe this and questioned her further until she said that she would tell her mother what had happened. She then went with her mother into another room and told her what she said had occurred.

7. This complaint by the girl was not, it must firstly said, elicited by any leading questions such as are referred to in R. v. Osborne (1905) 1 K.B. at 551. Mr. Dunn is quick to acknowledge that this is so. He relies, however, on S. v. T (1963) 1 S.A. 484 for the proposition that a complaint elicited by violence should not be admitted. When that case is examined, however, it is plain that the violence was, accompanied by questions which had a sexual connotation. This connotation was part and parcel of the intimidating questions asked of the child by the mother. There was no such connotation in the present case. The child here initially said she had gone for a walk alone around the reservoir. This was clearly not true. However it was true that she had gone to the reservoir. She then said that she had gone with an older man. This was true but not wholly true as she did not go on to indicate what had occurred. She finally told the full story to her mother.

8. Mr. Dunn referred to the Queensland case of R. v. Adams and Ross (1965) Qd.R. 255 where Mack J., as he then was, held that a statement made as a result of cross-examination following an untruthful account should not be used as a recent complaint showing consistency. Mr. Dunn submits that this is a cogent authority supporting his contention as the facts were very similar to the present case. When, however, the facts are examined it can be seen that they are very different from those in the present case. As Gibbs, J. (as he then was) said at 264:

"In the present case the first question put to the prosecutrix by her mother 'What on earth happened to you?' was not a leading or suggestive question but the answer made to it by the prosecutrix was not consistent with the story she told in the witness box; it was in fact a lie. Her father then put to her a question suggesting a story different from that which she had already told; it did not merely ask her to tell her own story, but suggested the sort of story she might tell."

There was nothing like that in the present case. As I have indicated the initial statement was that she was walking alone. She then added another person to the venture at the reservoir and then, after a beating, told the full story.

9. Particular criticism is made of the judge's statement that he

"was also entirely satisfied that this situation was dealt with appropriately by both father and mother and that no undue influence was extended to elicit the 'complaint'."

He was, I am satisfied, as doing no more, in that passage, than indicating that nothing was said that would have induced or intimated the girl into making a complaint of a sexual assault.

10. Mr. Poon, for the Crown, relied upon R. v. Norcott (1917) 1 K.B. 347 in which questions were put to the victim of a sexual assault and a reply alleging impropriety on the part of her father was forthcoming. They were quite explicit questions. The lady who asked them described what had happened as follows:

"When she said I was going to laugh at her I never expected it to be anything to do with her father. I knew it was something wrong. It is true that I got hold of her bicycle and practically by taking hold of it and by what I said I made her tell me. I did not drag the story out of her, but after she once started I really pressed her to tell me, especially when I heard about the laughing."

At p.349 of that report, Viscount Reading said:

"It is of course difficult to draw a precise line in these cases. It must depend very much upon the circumstances of each case, but, nevertheless, there is a principle laid down in Rex v. Osborne where Ridley J. says 'the mere fact that the statement is made in answer to a question is such cases is not of itself sufficient to make it inadmissible as a complaint. Questions of a suggestive or leading character will, indeed, have that effect, and will render it inadmissible; but a question such as this, put by the mother or other person, 'What is the matter?' or 'Why are you crying?' will not do so. These are natural questions which a person in charge will be likely to put; on the other hand if she were asked, 'Did So-and-so' 'assault you?' 'Did he do this and that to you?' then the result would be different, and the statement ought to be rejected. In each case the decision on the character of the question put, as well as other circumstances, such as the relationship of the questioner to the complainant, must be left to the discretion of the presiding judge.' "

11. At p.350 he went on to say:

"It appears to us that it never was intended that the word 'induced' should be interpreted as referring to a statement made by the prosecutrix in answer to a question, or to a question which led her to make her complaint. The Court meant to exclude evidence of a complaint made in answer to a questions of a leading or suggestive character. It is obvious why the Court took that view. Evidence of this nature is admitted as being evidence of the consistency of the conduct of the prosecutrix with the complaint made by her, and in that way is regarded as some evidence that her story in the witness-box is probably true. The Court is Reg. v. Osborne meant to guard against admission in evidence of statements which have been put into the mouth of the prosecutrix by questions of a leading or suggestive character. The Court is concerned to see that in the present case the statement made by the girl was spontaneous in the sense that it was her unassisted and unvarnished statement of what happened. That she may have been persuaded to tell her unassisted and unvarnished story is no reason why the evidence of her having made the statement should be rejected."

The authorities cited were of assistance but, at the end of the day, each case must be determined upon its own facts. Two matters are, in my view, of crucial importance in the present case. Firstly there were no questions of a leading of suggestive character put to the girl. Secondly she did not initially tell one story and later replace it with another wholly different in detail. The judge was, I am satisfied, right to admit the complaint and to hold that it was not elicited by any undue influence or impropriety.

12. I turn to the second ground of appeal.

13. In that ground it is argued that despite the fact that the prosecution case depended entirely upon the testimony of Miss Lam, the judge failed to warn himself of the dangers of convicting on her evidence after ruling that there was no corroboration of what she said. It is submitted that the trial judge gave himself no warning as to the danger of convicting upon the uncorroborated evidence of a complainant in a sex case, and that this failure is fatal to the decision to convict. Mr. Dunn referred to Chiu Nang-hong v. The Public Prosecutor (1964) W.L.R. 1279, in which the Lordships in the Privy Council said, at p.1285 of the report:

"Their Lordships would add that even had this been a case where the judge had in mind the risk of convicting without corroboration, but nevertheless decided to do so because he was convinced of the truth of the complainant's evidence, nevertheless they do not think that the conviction could have been left to stand. For in such a case a judge, sitting alone, should, in their Lordship's view, make it clear that he has the risk in question in his mind, but nevertheless is convinced by the evidence, even though uncorroborated, that the case against the accused is established beyond any reasonable doubt."

14. He then referred to two Hong Kong cases (Wu Sui-yee v. R. (1969) H.K.L.R. 226 and Chan Siu-wong v. R. (1970) H.K.L.R. 61) which accepted that the judge should give an indication that he has the danger in mind. I do not question the correctness of these reports, but am satisfied that, in the present case, the judge did have the danger in mind. That this is so is clear from the passage to which I have already referred to, dealing with the amendments to s.4 of the Evidence Ordinance:

"Therefore the current legal position in sexual cases with regard to the evidence of a female child is the same as that pertaining to a female adult. This is that corroboration is not essential in law but is always looked for in practice - R. v. Rudge 17 Crim.App.R. 113"

The statement that "corroboration is not essential in law but is always looked for in practice" is the clearest indication of an awareness upon the part of the judge of the danger of convicting upon the uncorroborating evidence of a female complainant. Corroboration is looked for because of that danger. I have no doubt that those words indicate that the judge had that danger in mind. That being so, there is nothing in the second ground of appeal.

15. I say no more as to the third ground then that I am satisfied that the conviction was both safe and satisfactory. I would uphold the application treat the hearing of the application as the hearing of the appeal and dismiss the appeal.

Yang, C.J.:

16. For reasons given by my Lord Power I, too, would dismiss the appeal.

Keith, J.:

17. I agree that leave to appeal should be granted but that the appeal should be dismissed. I wish to add a few words of my own only on the point made by Mr. Dunn that the judge should have ruled inadmissible the complainant's complaint to her mother on the footing that the complaint was preceded by previous inconsistent complaints to her father and that the ultimate complaint to her mother was therefore incapable of showing consistency between what she told her mother and her evidence in court. For my part, I do not believe that the question is one of admissibility at all. In my view, Mr. Dunn's argument goes only to the weight to be attached to the ultimate complaint in vew of the lack of consistency. The greater the inconsistencies between the various complaints which a complainant makes, the less weight should the judge attach to the ultimate version of the complaint which is said to be consistent with the complainant's evidence in court.

Representation:

Mr. Jackson Poon, S.C.C. (Crown Prosecutor) for the Respondent.

Mr. John Dunn instructed by Messrs. Kwan & Kwan for the Applicant.