HKSAR v. Ho Ka Po, Tony

DCCC 1169/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1169 OF 2012

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REASONS FOR VERDICT

1.The defendant pleaded not guilty to a charge of procuring unlawful sexual intercourse with a Mme X by false pretences on 26 July 2012 and a charge of procuring unlawful sexual intercourse with the same lady by threats or intimidation four days later.

2.It was not disputed that the defendant had sexual intercourse with the Mme X on the two occasions referred to in the charges. The defence case was that the sexual intercourse was consensual; Mme X did not take part in sexual intercourse with the defendant as a result of any deception, threat or intimidation.

3.At the time of the alleged offences, Madame X, PW1, was a domestic helper employed by Mme Wong Sin Yee, PW2, at her home in Lam Tin Kwun Tong.

4.PW1 was born and brought up in Java, Indonesia. She was 27 years of age at the date of the alleged offences and had been working as a domestic helper since June 2011. PW1 said that she can speak a little Cantonese and can read and speak a little English. She was educated to secondary school level and left school when she was 18.

5.PW1 said that her employment in Hong Kong was arranged by Win Dragon Employment Agency in Fo Tan, Shatin . PW1 said that she and her employer dealt with a Mme Choi at Win Dragon.

6.PW1 said that in May 2012 she was experiencing stabbing pains in her back. PW1 said that her employer, PW2, took her twice to see her family doctor but her condition did not improve much. PW1 said that on 20 July 2012 she experienced severe back pain and fainted. PW1 said that PW2 brought her round by applying some oil to her nose. PW1 said that PW2 then rang Mme Choi and told her that PW1 was ill.

7.PW1 said that on 24 July Mme Choi telephoned PW1 and PW2 and said that she had made arrangements for PW1 to see a friend of hers for treatment. PW1 said that Mme Choi told her that she may be suffering from some form of spell and had been cast as “Tame Head”. PW1 said that Mme Choi told her that previously there had been a domestic helper who had been cast as a “Tame Head” in Indonesia and that there were some metal nails inside her stomach. PW1 said that Mme Choi told her to ring her mother to ask if PW1 had been cast as a “Tame Head” by others. PW1 said that her mother told her that she did not know but that her mother said she would pray for her. PW1 said that she and her mother are both muslims. PW1 said that Mme Choi is Indonesian Chinese and speaks Indonesian but not very fluently.

8.PW1 said that she was taken to see the defendant by Mme Choi at his office in Mong Kok. PW1 said that the on the door of the premises there was a sign which indicated the premises were an employment agency and she saw on a table inside some domestic helper contracts. PW1 said she took along some apples to give to the defendant as instructed by Mme Choi who told her that they were to be used to worship a god.

9.PW1 said that the defendant could not speak Indonesian and Mme Choi acted as interpreter. PW1 said that Mme Choi told the defendant that PW1 had back pain and was perhaps cast as “Tame Head” by others. PW1 said that the defendant said he would cure her. PW1 said she could understand what the defendant said. PW1 said that the defendant told her that she was very lucky and perhaps she would be very successful or make a lot of money. PW1 said that the defendant said that he would massage her back but required her to remove her bra. PW1 said that the defendant told Mme Choi to go out for a while whilst he treated PW1. PW1 said that Mme Choi told her that PW1 need not be afraid, she only had to take off her bra and the defendant would cure her.

10.PW1 said that after Mme Choi left the defendant switched off the lights and told PW1 to lie face down on a carpet which he laid on the floor. PW1 said that the defendant massaged her back after lifting up the back of her T-shirt. PW1 said that the defendant then covered her back with plastic film and hit on her back with a hair dryer. She said that the defendant told her that she had to obey his instructions or she would not be cured.

11.PW1 said that the defendant then told her to turn over and take off her T-shirt. PW1 said that the defendant then took off her pants and underwear. PW1 said that the defendant told her that she should obey his instructions otherwise she would not recover. PW1 said that she was then instructed to sit on a wooden stool with the defendant sitting behind her. She said that he pulled her two hands back and told her to hold his penis which she did. PW1 said that the defendant’s trousers and underwear were round his thighs at this point.

12.PW1 said that the defendant told her not to tell Mme Choi about what occurred or she would have trouble living in Hong Kong and her daughter in Indonesia would have a traffic accident. PW1 said that the defendant embraced her and kissed her and inserted a finger into her vagina. PW1 said that the defendant then told her to pray to a gold Buddhist figure which was on a nearby shelf. PW1 said that the defendant said that this figure was his master and he should grab the defendant’s penis and by doing so she would get well very quickly.

13.PW1 said that the defendant later told her to lie on the carpet and he kissed her lips and vagina and inserted his penis into her vagina. She said that it lasted for about a minute. She said the defendant did not wear a condom and did not ejaculate. PW1 said that the defendant then asked her to stand up, suck his penis and swallow his semen. PW1 said she did so for a while and then told him she could not do it any longer. PW1 said that the defendant said that she had to continue but she refused. PW1 said at that point the office telephone rang. PW1 said the defendant answered and then told her to put on her clothes as Mme Choi was waiting downstairs. PW1 said that the defendant later let Mme Choi into the office and the three of them then left. PW1 said that Mme Choi caught a bus nearby and the defendant took her to the MTR station at Prince Edward and told her not to tell anyone what had happened.

14.PW1 said that it was arranged on that occasion that she should return to see the defendant on 30 July. PW1 said the defendant gave her his office number and he noted her mobile number.

15.PW1 said that she did not tell PW2 about what happened as she dared not do so.

16.PW1 said that later that night she received calls on her mobile for Mme Choi and the defendant but she did not answer their calls. She said she recognized their numbers from the caller display.

17.PW1 said that over the following days she got further calls from the defendant but ignored them.

18.PW1 said that on 30 July in the morning she got a call from Mme Choi asking about her back pain . PW1 said that she told her it had improved a bit and PW1 said that Mme Choi told her she should go and see the defendant at once. PW1 said she left home at 11.00am and went to see the defendant. PW1 said she bought 4 apples to take to the defendant for him to pray as instructed by Mme Choi.

19.PW1 said that after enquiring about her condition the defendant switched off the lights, laid down the carpet and told her to take off her bra. PW1 said that the defendant told her she should not be afraid as he was there to help her and she should trust him. PW1 said she was scared and confused. PW1 said that he also told her that she should do as he told her otherwise she would have trouble. PW1 said that on this occasion she was again fondled by and had sexual intercourse with the defendant . PW1 said that when she left the defendant again told her not to tell anyone or she would have trouble.

20.PW1 said she received further calls from Mme Choi asking her to go back to see the defendant but she told her it was not necessary as her condition had improved.

21.PW1 said that later PW2 told her that she had received a phone call from Mme Choi asking for PW1 to go back to see the defendant but PW1 told PW2 that she did not want to go again. PW1 said she got further calls from Mme Choi pestering her to go back to see the defendant but she refused and hung up the phone. PW1 said the defendant called her but she did not answer.

22.PW1 said that on 8 August she got a call from Mme Choi scolding her for not going back to see the defendant and they had a dispute over the phone. PW1 said she told Mme Choi that the defendant had indecently assaulted her. PW1 said that Mme Choi told her not to tell her employer or the police and that even if she did they would not believe her.

23.PW1 said that at about 6.00pm that evening PW2 came home from work and told her that her son had told her that PW1 had been crying and quarreling on the phone with Mme Choi. PW1 said that she then told PW2 about what had happened at the defendant’s office on the 26 and 30 July. PW1 said that later she and PW2 went to make a report to the police.

24.PW1 admitted in cross-examination that at the time of these events she was anxious to return to Indonesia because her daughter who had been living with her mother in Java had been removed from there by her abusive husband and taken to live in Jakarta. PW1 said that later the daughter did return to live with her mother but she was anxious to get back to see her. She said that she was waiting for Mme Choi to find a replacement helper for PW2.

25.PW1 denied that she had consensual sex with the defendant. She denied that on the first occasion she had kissed him when he was massaging her and that when he asked her if she wanted to have sex she agreed. PW1 denied that she made allegations against the defendant for her own purposes.

26.PW1 agreed that certain matters were not recorded in her statements. She had said in her evidence that she had shown the defendant her ID card; she said that the defendant had shown her certain photographs: she said that the defendant threatened her at the MTR station on 26 July about divulging to anyone what happened at his premises; she said that the arrangements for her visit to the defendant on 30 July were made on 26 July. PW1 agreed that none of these matters were recorded in her witness statements.

PW2

27.PW2 is a married lady with a 9 year old son. They live in Lam Tin. She employed PW1 from 1 June 2011. She said that by May 2012 PW1 was able to communicate well in Cantonese.

28.PW2 said that in May 2012 PW1 complained of back pain and she arranged for her to see her family doctor on two occasions. PW2 said that the problem recurred in July and she recalled PW1 mentioning to her that she had asked her mother if she had been casted “Tame Head” and told her that her mother had told her that she had been so cast by others. PW2 said that she called Mme Choi and told her the problem and she said that Mme Choi told PW2 that she had a friend who could assist in removing the “Tame Head”.PW2 said that arrangements were made for PW1 to visit this friend of Madame Choi who worked in Mong Kok when it was convenient for PW1 to be released from her domestic duties.

29.PW2 said that arrangements were made for PW1 to see Mme Choi’s friend on 26 July. PW2 said that after that visit, PW1 said nothing to her about what had happened.

30.PW2 said that a few days later Mme Choi contacted her about noon and said that PW1 had to go again to do something to worship god. PW2 said that she told Mme Choi it was not convenient as her son was on holiday from school. PW2 said that Mme Choi told her that PW1 should go one more time and that she would not need to go again and that after she had done some rituals to thank god that would be OK. PW2 said that PW1 told her she was reluctant to go but eventually she agreed. PW2 said that on 30 July PW1 left her home at just after 1.00pm and brought her son to her office before going on to Prince Edward. PW2 said PW1 did not talk about the visit afterwards.

31.PW2 said that on 8 August , her son telephoned her at her office and told her that PW1 had spoken with Mme Choi on the phone and that PW1 was crying very heavily. PW2 said that her son told her he was scared. PW2 said she returned home after work and found PW1 was in the kitchen still crying. PW2 said that PW1 told her that Mme Choi required her to return to see the defendant a third time and she was unwilling to do so. PW2 said whilst saying this PW1 continued to cry. PW2 said she asked PW1 what had happened and PW1 told her she had been raped by the man who said he would remove the Tame Head for her. PW2 said that she told PW1 she would report the matter to the police and asked PW1 if she agreed. PW2 said that PW1 agreed to report the matter to the police and they both went to the police station to make a report.

32.I noted that there were discrapancies about what PW1 told PW2 about her discussion with her mother concerning “Tame Head” and what PW1 told the court about those discussions.

33.The defendant elected not to give evidence and called no witnesses.

Directions

34.I reminded myself that the prosecution are required to prove the guilt of the defendant on each charge beyond reasonable doubt and that the defendant has nothing to prove. I reminded myself that no inference could be drawn against the defendant for electing to remain silent when questioned by the police and for electing not to give evidence in court.

35.I reminded myself that the evidence of PW1 was uncorroborated in relation to her assertion that she did not consent to sexual intercourse with the defendant. The evidence of PW1 of recent complaint to Mme Choi and to PW2 was admissible as evidence of consistency but not as corroboration of her allegations. I found that notwithstanding the time lag between the second incident on 30 July and her complaint to PW2 on 8 August 2012, when considering all the circumstances, this evidence was admissible as a recent complaint.

36.I reminded myself the evidence received by the court as to what was allegedly said by persons other than the defendant and not in his presence was not admissible as evidence as to the truth of what was allegedly said and was not adduced for that purpose.

Evaluation of the Evidence

37.It was not disputed that on the dates mentioned in the charges and at the venue set out therein the defendant had sexual intercourse with PW1.

38.I have set out in some detail above the evidence of PW1. I reminded myself that her evidence was uncorroborated in relation to the issue of consent. Before I could convict the defendant on charge 1had to be sure beyond reasonable doubt that the defendant deliberately and intentionally deceived PW1 into believing that by engaging in sexual intercourse with him, he was performing some form of ritual to cure her “Tame Head” problem. In respect of the second charge I had to be satisfied beyond reasonable doubt that the defendant deliberately and intentionally threatened or intimidated PW1 with a view to her having to sexual intercourse with him because she was so threatened or intimidated.

39.In cross-examination a number of discrepancies were brought to light between what PW1 said in court and what she said in her statements to the police shortly after the events. There were also some discrepancies between the evidence of PW1 and PW2. I have referred to some of these above.

40.I also considered the evidence adduced that PW1was having matrimonial problems in Indondesia about the time of the material events and was anxious to return there as soon as possible. PW1 had been told that she would not be able to leave until a replacement domestic helper was in a position to take over her duties. It was suggested that this might in some way have provided an incentive for her to fabricate her evidence about what really happened. PW1 was adamant she had not fabricated her evidence.

41.I found PW1 to be a somewhat naïve, trusting and confused person. She comes from Java in Indonesia, a very different kind of community from Hong Kong. She has no family here. The culture, customs and language in Hong Kong are very different from thoses where she was brought up. She was having problems with her back which conventional medicine had not cured.

42.I bore in mind that I had to be careful in dealing with the evidence of what was allegedly said by and to Mme Choi not in the presence of the defendant. She was not called as a witness. The evidence relating to such conversations was not admissible as evidence of its truth.

43.There was however, no doubt that it was Mme Choi who took PW1 to see the defendant. PW1 had never met him before and PW2 never met the defendant. PW1 gave unchallenged evidence that when they arrived at the premises of the defendant Mme Choi told the defendant that PW1 had back pain and that perhaps she had been casted “Tame Head” by others and that the defendant told Mme Choi that he would cure PW1’s disease. It was not challenged that on each visit PW1 had brought apples to give to the defendant. PW1 said that she was told to do this by Mme Choi and that this was in order to worship the god.

44.I noted that in her evidence PW1 said she was brought up a muslim and did not believe in superstition. However, the visit to the defendant was on the suggestion of Mme Choi, a person of some authority as regards PW1. She was the person from the employment agency who had arranged her contract with PW2 and the person with whom PW2 dealt with at the agency. Even PW2 apparently took no exception to PW1 being taken by Mme Choi to see her friend to remove the “Tame Head” from PW1. PW1 said that she was frightened and confused. In all the circumstances, I found that unsurprising.

45.It was not disputed that on the first occasion PW1 went to the premises of the defendant, in the presence of Mme Choi, told PW1 to remove her bra and she was reassured by Mme Choi that this was in order. The office of the defendant was set up as an office. There were many files and filing cabinets. PW1 noticed some of the files related to the employment of domestic helpers. There was no massage table. She was asked to lie down on the floor on a carpet laid down by the defendant. The defendant asked her to pray to a golden Buddha statue which was on a shelf in the office. She was instructed to take apples to pray to the god. This was no doubt a most confusing and disorientating experience.

46.I very carefully considered all the evidence adduced in this case. This case relied on the credibility of PW1 and there was no corroboration on the issue of consent. I found PW1 to be a reliable and credible witness. She gave her evidence of what occurred in great detail and was taken through her examination in chief in a very thorough manner. At appropriate times she was shown photographs taken at the defendant’s premises and objects seised from the scene. I found it unsurprising that she was able in those circumstances to recall details not recorded in her witness statements. I considered the discrepancies brought to light in cross-examination and the differences in some of the details recalled by PW1 and PW2. The evidence about the arrangements for the second visit to he defendant’s premises, the timing and her movements before was somewhat confusing. There was however no doubt that she did see the defendant on 30 July and that sexual intercourse took place. Having considered the totality of the evidence I had no doubt that sexual intercourse between PW1 and the defendant on the dates of the charges occurred in the circumstances PW1 described to the court. I was sure that on the 26 July she was deceived into believing that what the defendant was performing some form of religious ritual intended to remove problems caused by her having been cast as a “ Tame Head”. I was sure that on the second occasion she returned and again had sexual intercourse because she had been intimidated or threatened by the defendant.

47.I was sure that each and every ingredient of each offence had been proved beyond reasonable doubt and convict the defendant on each charge.