Mok Pak-wo v. The Queen
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CACC000746/1979
----------------- Coram: Roberts, C.J. , Pickering, J.A. and Leonard, J.A. Date of Judgment: 3 April 1980 ----------------- JUDGMENT ----------------- Roberts, C. J. : Introduction 1. The defendant, MOK Pak-wo, was charged with ten counts, five of robbery and five of indecent assault. 2. All the offences took place on the 25th February, 1979, in the early hours of the morning, at a flat at No. 181, Cheung Sha Wan Road, Kowloon. 3. The defendant was convicted of all ten counts, and sentenced to seven years' imprisonment on counts 1 to 5, the sentences to run concurrently, and to a further twelve months' imprisonment on counts 6 to 10, the latter terms to be concurrent with one another, but consecutive to the sentences passed on counts 1 to 5. 4. The defendant sought leave to appeal against conviction only. The Director of Legal Aid, in our view entirely properly, granted a legal aid certificate to the defendant limited to the indecent assault counts (6 to 10). We were addressed by counsel, appointed by the Director, on the 12th March on these counts. 5. On that occasion, the defendant sought an adjournment in order to retain counsel to argue his application for leave to appeal against conviction on the robbery counts. Not without some misgivings, since there was a period of three months between the defendant being refused legal aid in relation to his conviction on counts 1 to 5 and the first hearing before us, we adjourned the application until today, to enable counsel to address us in relation to these counts. We were informed, however, by the defendant, that he had been unable to retain counsel and that he wished to withdraw his application for leave to appeal against his conviction on the robbery counts. He was permitted to do so. It is therefore necessary for us to deal only with the indecent assault counts. Facts 6. In the early hours of the morning of the 25th February, 1979, the defendant and another man, whose identity is still unknown, broke into residential premises on the second floor of 181 Cheung Sha Wan Road, Kowloon. 7. The principal tenant of the flat, Mr. TSANG Kam-ho, lived there with his wife, CHEUNG Yeuk-han, and their children. In the same flat were four bedroom cubicles, occupied by Mr. CHEUNG Wai-chuen and his wife LI Man-fong, by Miss YEUNG Sau-lin, by Mr. HO Chau and by Mr. LEUNG Fong-chiu. 8. At about 5 a.m., Mr. TSANG Kam-ho was awakened by the sound of someone trying to enter the premises. Presuming that one of the tenants was having difficulty in getting into the flat, he went to the front door; he found that this had been opened but that the security chain was still in place. When he removed the chain, two men armed with knives, one of whom was the defendant, entered the flat. They told him that they had come for his money and forced him into his bedroom, where he and his wife were tied up and left on the bed. The room was ransacked and the items listed in the first count were stolen. 9. Mrs. TSANG was ordered by the intruders to help them awake the other tenants. She led them to the cubicle of Mr. CHEUNG Wai-chuen and his wife, LI Man-fong, and woke them up, as instructed. Mr. CHEUNG and his wife were tied up in their turn and their room was ransacked (count 2). The three other tenants, who are referred to in counts 3, 4 and 5, were awakened, tied up and robbed in a similar manner. 10. After these robberies had been carried out, one of the men told Mrs. TSANG to go into her bedroom and take off her clothes. She complied, against her will and because she was frightened. When she had removed all her clothes, one of the men produced a camera and took photographs of her (count 6). This camera was produced by him from a plastic bag. The camera was not identified by any of the occupants of the flat and the only reasonable inference is that one of the intruders had brought it with him. 11. Soon afterwards, LI Man-fong was told to go into the same bedroom and take off her clothes. She did so against her will and was photographed by the other man (count 7). 12. The defendant went to the room of Miss YEUNG, and ordered her to strip, which she did. She was photographed in the nude by the defendant (count 8). 13. Mr. HO and Mr. LEUNG had been tied up in their respective rooms. One of the two robbers went into each of the rooms, pulled down the trousers of Mr. HO and Mr. LEUNG and took photographs of their nude buttocks (counts 9 and 10). Identification 14. The defendant, who gave evidence at his trial, asserted that he was at home and sleeping at the time when the offences were supposed to have taken place and that he knew nothing about them. 15. The evidence against him is based substantially upon identification of him, by no less than four of those who were robbed, as one of the two men responsible. 16. The offences took place in the early morning of the 25th February, 1979. A little over three weeks' later, on the 18th March, 1979, an identification parade was carried out by the police at Shamshuipo Police Station. At this parade, the defendant was identified, firstly by Mr. TSANG Kam-ho; secondly, by Mrs. CHEUNG Yeuk-han, his wife; thirdly, by LI Man-fong, and fourthly, by Miss YEUNG Sau-lin. 17. No criticism has been made of the way in which the identification parade was conducted. 18. In his summing-up, the judge carefully directed the jury on the question of identification in relation to each of the four identifying witnesses, drawing the jury's attention to the circumstances in which each witness had an opportunity of observing the defendant's face during the raid. 19. Early in his summing-up (page 107) the judge warned the jury that they should approach the evidence as to identification with great care. He told them that, apart from a watch, found in the possession of the defendant, which was identified by Miss YEUNG as her property, there was no other evidence linking the defendant with the offence, save that of identification. 20. Towards the end of his summing-up, he reminded them that cases involving identification require great care and summarized against the opportunities which each of the four identifying witnesses had of observing the defendant and said -
21. Thus the judge warned the jury, in the clearest possible terms, of the dangers of identification evidence, early in his summing-up and again at the end. This is not a case in which the identifying witnesses had no more than a fleeting glimpse of the defendant, who was in the flat for a long period. All the witnesses had substantial opportunities to observe him and to note his appearance. 22. Nor is this a case on which identification depends upon the evidence of one witness. There were four. The jury were properly directed on this issue and it is hardly surprising that they reached the conclusion which they did. Indecent assault 23. The counts of indecent assault were based on the taking photographs of women in the nude against their will. 24. Counsel for the appellant criticised the relevant portion of the judge's summing-up -
25. She submitted that the judge was wrong to direct the jury that the motive of those taking the nude photographs was irrelevant. 26. Evidence was given that Mrs. TSANG, the victim in count 6, received about the 17th March, through the post, a print of the nude photograph taken of herself. Indeed, it was the receipt of this photograph which caused the victims to lay a complaint with the police, which they had not done previously. Counsel argued that, if the motive of the robbers was to blackmail the victims, or to intimidate them and so stop them from reporting the matter to the police, this would have been a defence to the charge of indecent assault, since the defendant would not have had the necessary indecent intent to convert a common assault into an indecent assault. 27. We do not agree. The use to which the photographs might later be put does not prevent the taking of them from amounting to an assault of an indecent nature, if the victim was subject to coercion and the necessary element of indecency was present. What matters, as the judge said, was the circumstances in which the photographs were taken. 28. Counsel for the defendant further submitted that the jury should have been asked to consider whether the intruders derived, or intended to derive, any sexual gratification from the taking of these nude photographs. We do not agree. In our opinion, it is not necessary for the prosecution, on a charge of indecent assault, to satisfy the jury that the defendant derived, or intended to derive, any sexual pleasure from his conduct. 29. The correct approach is to direct the jury that they must be satisfied of two things; firstly, that there was an assault; secondly, that this assault took place in, or was accompanied by, circumstances of indecency. 30. It is neither necessary nor desirable for the judge to attempt to direct the jury in detail as to what amounts to circumstances of indecency. This is essentially a matter of fact which they should be left to decide. 31. It would, of course, be right for the judge to withdraw a count of indecent assault from the jury if, as a matter of law, he were of the opinion that the circumstances could not reasonably be said to involve any degree of indecency. It seems to us, however, to be beyond doubt that, if a woman is made to remove her clothes by force or threats, this would, per se, be sufficient evidence on which a jury could properly find the persons responsible guilty of indecent assault; even more so if this is followed by the taking of photographs of her in the nude against her will. 32. Counsel sought to draw a distinction based on the old case of R. v. Rosinski(1) between the removal of the victim's clothes by her assailant and the removal of her clothes by herself under threat. 33. The headnote to Rosinski, which seems to imply that there may be such a distinction, reads -
34. Neither the report, nor the reference to it, which is to be found in Archbold, suggests the reverse, i.e. that it would not be an indecent assault if the woman herself removed her clothes. We are not prepared to make such a distinction, which appears to us to be divorced from common sense. 35. If it is an assault for a man to remove the clothing of a woman against her will (and it undoubtedly is) it is equally an assault if she takes off her own clothes, against her will under fear induced by her attacker. 36. The direction given by the judge was correct. It drew the jury's attention to the central question which they had to answer. Was there an assault and was it accompanied by circumstances of indecency? 37. To establish the offence of indecent assault, the Crown must prove that an assault was committed intentionally by the accused and that he meant it to occur in circumstances of indecency. 38. There can, in this case, be no doubt whatever that the assault took place. These were armed men, who had shown their victims that knives were in their possession, before requiring them to strip. And, as indicated above, we believe that it was correctly left to the jury to decide whether the removal of her clothing and the taking of a photograph of a woman naked, against her will, amounted to indecent circumstances. Indecent assault on the two men 39. The evidence was that after each victim had been tied up, his trousers were pulled down by one of the robbers, who then took photographs of his naked buttocks. 40. The same considerations apply as are discussed above, save that there was direct physical contact between the assailant and the victims. 41. Again, the direction was correct, and it is difficult to imagine that any jury would have reached a different conclusion. 42. Application for leave to appeal against conviction on the indecent assault counts is refused. Representation: Appellant in person in respect of Counts 1 - 5. Miss Corinne D'A Remedios (D.L.A.) for appellant in respect of Counts 6 - 10. Cross for the Crown/Respondent. (1) 1 MOOD 19. |
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