PETER MACLENNAN v. R.

IN THE COURT OF APPEAL

1996, No. 8
Magistracy Appeal

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J U D G M E N T

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Ching, J.A.,(giving the judgment of the Court):

1. The appellant originally faced two charges of indecent assault. He was acquitted of the first but was convicted of the second which was that he

"... on the 11th day of April, 1994, inside the officer's mess, 9th floor, New Territories North Regional Police Headquarters, Tai Po, New Territories, in Hong Kong ... indecently assaulted Tam Mei-sim, a woman."

He appealed against that conviction and put before the Court what was alleged to be additional and material evidence as contained in affidavits of Senior Superintendent James Hogg Bruce and Madam Tang Chi King. A re-trial was ordered and he was convicted again. It is against that conviction that he now appeals. The Magistrate imposed a fine of $5,000 and ordered him to pay costs in the sum of $5,000 and the Attorney General seeks a review of sentence. The two matters were heard by us together.

2. At the material time the appellant was and he still is a Superintendent of police. At the time he was the Superintendent in charge of the criminal intelligence unit at the North Regional Headquarters for cases occurring in the Yuen Long area. Madam Tam is a married Chinese woman, aged 44, who was a cleaner at the mess. Her evidence as to the commission of the offence may briefly be stated as follows. On 11th April, 1994, she was working in the mess where she saw the appellant some time after 2.00 p.m. There were others present. The others left, leaving her and the appellant alone. He then took her by the hand or hands. He spoke to her in the Cantonese dialect, in which he is fluent, and in English asking her to go with him. He pulled or pushed her towards the ladies' toilet which was 20 or 25 feet away notwithstanding her protests that he could not do this. In the toilet, he pushed her against the wall, fondled her breasts inside her clothing and her 'lower parts'. That is a well-known expression in the Cantonese dialect meaning the genitals or the genital area. He tried to unbutton her jeans but failed. He removed his own trousers and rubbed his penis against her. Throughout this she was trying to push him away. She was too scared to say anything to dissuade him other than 'Ah Sir.' Her evidence was that she never consented to any of these things being done. Eventually, still with his trousers off, he went into a cubicle in the toilet and she made good her escape. She came under minute and strenuous cross-examination over the course of two days. It was put to her that she had willingly gone into the toilet with the appellant, her only concern being that they should not be seen by any third party, that there had been no force involved and that she had 'agreed to it'. Just what it was to which it was suggested she agreed was never specified. In any event these suggestions were denied and she said that violence was used. Apart from the suggestion that there was no force involved and that she consented, it was never suggested that any of the events she described had not occurred.

3. After Madam Tam had managed to leave the toilet she went straight to a storeroom where she locked herself in for an hour or so until approximately 4.00 p.m. She said that she did so because she was scared and did not know what to do. It was never suggested to her that she had not done so. She agreed that there was a telephone there and that she had made no attempt to telephone her husband or anyone else. She explained this by saying 'Because I didn't know what to do - he is a Superintendent' and 'Because I didn't know what to do.' When she left the storeroom she went down to a rest room for the workers on the second floor. She admitted that she had seen other workers there but had exhibited no signs of distress and had made no complaint to them. She left work at 5.00 p.m. and went home where she saw her husband, Ng King Hai. She admits that she showed no signs of distress to him. She spoke to him and made what the prosecution alleged and the Magistrate found was a recent complaint. She did not tell him the full details. She was afraid of what action her husband might take and she was concerned not to jeopardise her employment. Thereafter when she went back to work she tried to avoid the appellant.

4. No formal complaint was lodged until 2nd May, 1994. On 28th April, 1994, the appellant telephoned her and asked why she had been avoiding him. She put him off by saying that she had work to do and hung up. Then on 30th April, 1994, when she and the cook, Chan Chung Hing, were in the mess at about 11.00 o'clock the appellant came in and asked for and was given a glass of water. He then left the mess and shortly thereafter so did the cook. She was in the kitchen cleaning the floor when the appellant returned and stood in the doorway. She was scared and took the opportunity to leave by picking up some trash and going out of the kitchen to dispose of it. After disposing of it she went back to the storeroom and telephoned down to the rest room to ask someone to come up and keep her company. After she had just hung up the appellant came into the storeroom. He stretched out his hand and asked why she was there so late. She feared that he was about to assault her again and said, 'Ah Sir, don't fool around with me again, someone is coming up'. He then left and the cook and another man arrived. They had a conversation as a result of which a report was made to the Barrack Sergeant, Ching Ka Shing, who was in charge of the workers and cleaners in the mess.

5. If the evidence of Madam Tam as to the events on 11th April, 1994, were accepted then clearly the appellant was guilty of the offence with which he was charged. The defence was that the appellant had her consent or believed she had or would have consented. The Magistrate's note of the final address of counsel for the appellant reads, in part,

"Thought opportunity sexual dalliance - what he did was foolish - should not be frolicking - defendant did that - in other place - were not trying him for morality - Not trying him for immoral behaviour - Unlawful and indecent assault - could not exclude honest and reasonable belief - and she held out - guilty of wrong judgment - Familiar close and on Madam Tang's evidence - intimate relationship - Applying the probability test - far more likely they would have told the truth - it could explain - could not justify - explain why sexual dalliance - He thought something on offer - Explain it."

Indeed it was suggested to Madam Tam in the Court below that she had laid a complaint only because, having consented to what had occurred, she felt guilty towards her husband about it. Before us counsel said that there was little doubt that the appellant had become infatuated with someone of lower rank and status and had behaved foolishly and out of character. The appellant having not given evidence it was then necessary to look to the evidence of the other witnesses to show a probability as to consent or his belief that she had consented or would consent. Nothing in that respect was obtained from the witnesses for the prosecution.

6. Clearly there was a friendly relationship between Madam Tam and the appellant. On her part she regarded him as a Superintendent. Madam Tang Chi King, another civilian worker in the building and one of the deponents on whose affidavit a retrial was ordered, was disbelieved. Six police defence witnesses gave evidence of the relaxed and informal way in which the appellant treated others. There was some dispute as to whether Madam Tam had been in the habit of asking the appellant for racing tips. Superintendent Brian Harris (DW3) for instance, says that she was but he also said that the appellant had been no more familiar with Madam Tam than he had been with other staff. He did not find this relationship at all out of the normal. Inspector Adam Creed (DW4) gave evidence that there was a tea party in the mess on 29th March, 1994, at which he had seen the appellant and Madam Tam standing close together and talking for about 10 minutes. Again, however, he said that he did not find anything surprising about this between a superintendent and a labourer. Chief Inspector Poon Suet Man (DW7) gave evidence of having seen and heard the appellant and Madam Tam having conversations about horse racing. He also said that the appellant was nice to everyone, even to a cleaner. The defence witness on whose evidence most reliance was placed was Senior Superintendent Bruce (DW1). He gave evidence that on one occasion he had gone to the mess to look for the appellant. There he saw the appellant sitting on a bar stool with Madam Tam standing very close to him. They were talking and laughing. When Madam Tam saw the Senior Superintendent she broke off the conversation and moved away. Before us and in the Court below counsel chose to say that this incident showed an 'intimate' relationship between the two. The use of that word was both unfortunate and unjustified. Senior Superintendent Bruce himself said that what he witnessed caused him no particular suspicion, that the appellant was showing no familiarity towards Madam Tam and that he did not think of the incident as showing more than that she was being friendly with the appellant.

7. The Magistrate dealt with this evidence by saying,

"The instances that the police defence witnesses (namely DW1, DW3, DW4 and DW6) had described merely showed that PW1 had a friendly relaxed relationship with the defendant nothing of more consequence than that."

The Magistrate was amply justified in coming to this conclusion. It is absurd to think that any of the defence evidence could have led the appellant into the belief that he had or would have Madam Tam's consent to what he did. The Magistrate found as follows,

"Having considered the evidence of PW1 very carefully I do accept her testimony as to the defendant's conduct towards her on 11th April 1994. I am satisfied that she did not consent to the defendant's conduct at the time and made the position quite clear to him. There was no question of him believing that she was or might be consenting."

Before us, notwithstanding that the argument on consent was described as being the main argument (ground 4) counsel desisted when the absurdity was pointed out to him.

8. The next argument (grounds 1, 2 and 3) related to recent complaint. Ground 1 alleges that the Magistrate erred in treating what Madam Tam said to her husband when she went home on 11th April, 1994, as capable of amounting to a recent complaint. First, it is said that she exhibited no signs of distress either to the persons she saw in the rest room or to her husband. It is true that she did not. She had, however, locked herself into the storeroom for an hour or so because she was scared and did not know what to do. That is sufficient evidence of distress and it is to be remembered that signs of distress are not a requirement of law. Secondly, it is said that any complaint was not recent in that she failed to complain at the first opportunity, for instance, to the people in the rest room. The Magistrate considered this and found that there were reasons for her not having done so. Clearly there were such reasons. She was in a lowly position and was concerned to protect her job. She gave evidence that she did not know what to do. She said in her evidence in chief that she did not tell the people in the rest room because even if she had they would not have trusted her. The complaint to them, of course, would have been one against a popular officer of high rank. Thirdly, attention is drawn to the discrepancies in her own evidence as to what she told her husband and discrepancies between what she says she told him and what he says she told him. It is sufficient to say that the Magistrate took all of these matters into account. He accepted that Madam Tam had not given the full details to her husband. He appears to be a man of quick temper and the Magistrate found that she had complained to him in general terms. The complaint, of course, was as to a sexual assault committed by the appellant. On the evidence available it is not for this Court to say that the Magistrate was wrong.

9. The second ground of appeal complains that the prosecution had twice urged upon the Magistrate that the recent complaint had evidential value in that it went to negative consent when, it is said, that is the precise opposite of the legal basis for admitting evidence of recent complaint. We do not understand how something urged by the prosecution can cause this Court to conclude that the Magistrate was wrong. Counsel never informed us what he alleged the legal basis of admitting evidence of recent consent might be. The skeleton argument refers to R. v. Pointon (1985)1 N.Z.L.R. 387 as being authority for the proposition that evidence of a recent complaint is not evidence of the truth of the complaint and in particular is not evidence of absence of consent. The decision in R. v. Lillyman (1896) 2 Q.B. 167 at 170 contains the following words by the Court of Crown Cases Reserved,

"It is necessary, in the first place, to have a clear understanding as to the principles upon which evidence of such a complaint, not on oath, nor made in the presence of the prisoner, nor forming part of the res gestae, can be admitted. It clearly is not admissible as evidence of the facts complained of; those facts must therefore be established, if at all, upon oath by the prosecutrix or other credible witness, and, strictly speaking, evidence of them ought to be given before evidence of the complaint is admitted. The complaint can only be used as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness-box, and as being inconsistent with her consent to that of which she complains.".

Ground 3 then complains that the Magistrate found that evidence of the recent complaint was in fact evidence of non-consent. Quite simply, the Magistrate found no such thing. He was entitled to take that evidence into account on the question of consistency.

10. Ground 5 alleges that the Magistrate failed properly or at all to take into account the previous good character of the appellant. The Magistrate expressly stated that he did take it into account in assessing the appellant's guilt and counsel was unable to bring himself to say that the Magistrate was being untruthful. Nor can we see how that evidence could have detracted from the evidence of Madam Tam which the Magistrate accepted after a careful examination of all of the relevant factors.

11. Ground 6 was one that was pursued only faintly. As already stated, Madam Tang Chi King was a witness for the defence who was disbelieved by the Magistrate. Another of the defence witnesses was Detective Woman Inspector Chan Yu Ping, Kitty (DW5) who had interviewed Madam Tang. It appears that Madam Tang had told Inspector Chan something which was raised in cross-examination of the latter. The complaint is that the prosecution, knowing that both of these ladies were to be called as defence witnesses, had not supplied a copy of the statement to the defence. The statement appears to have been that of Inspector Chan herself and it is conceded that it was not supplied before the trial. The transcript of the evidence does not show that any objection was taken at the time. The statement was not demanded and no adjournment was sought. It is said that the defence was prejudiced by this, the prejudice being the calling of a witness without knowing she had made a statement. There is nothing in this ground of appeal.

12. Ground 7 was that the conviction was against the evidence and the weight of the evidence and is unsafe and unsatisfactory. It is argued that there is a lurking doubt having regard to the inconsistencies in the evidence, the lack of corroboration, the nature of the offence alleged and the unlikelihood that a Superintendent of police with 20 years of service, an impeccable record and everything to lose would ever commit so blatant an offence in the way and at the place that he is alleged to have done. It suffices to say that a reading of the Reasons for Verdict shows that the Magistrate who was the Judge of fact gave all of the relevant circumstances careful consideration when coming to his decision.

13. It has not been shown to us that the Magistrate was wrong in any way and that there is any merit whatsoever in any of the grounds of appeal. The appeal against conviction is dismissed.

14. We turn to the Attorney General's application for a review of the sentence. This was an indecent assault accompanied by violence. It was perpetrated upon a married Chinese woman whose educational standard was that of Form 3, working as a cleaner. It was committed by an expatriate police Superintendent of far higher education and status. It was found that he did not have her consent and could not have believed that he did. In all of the circumstances it was a cowardly and sordid way to behave. It should have attracted an immediate custodial sentence. The sentence which was imposed induces a sense of shock and is clearly inadequate. Upon a trial we would have expected a sentence of no less than nine months' imprisonment.

15. The appellant does not have the advantage of a plea of guilty which would have saved the time, effort and expenditure of two trials and Madam Tam having to undergo the ordeal of giving her evidence twice. Nor for the more than two years since the offence, has he exhibited any remorse. It is said on his behalf that he may lose his employment and his pension. He may well do so. He has been interdicted with partial or full loss of pay since 27th October, 1994, and he has run up legal costs in the order of $700,000. He brought these matters upon himself.

16. We take into account his good character, his long service in the police force which appears to have been ably carried out and the further personal consequences which may still follow. We bear in mind also that he has been at liberty since the offence and that this is an application for a review of sentence. We are therefore prepared to take as our starting point a sentence of imprisonment of nine months as being the least that should have been imposed upon him after trial but in the circumstances we reduce the term to one of six months. The application for review therefore succeeds to the extent that the sentence imposed upon the appellant will be six months' imprisonment instead of the fine of $5,000. The order that he should pay costs in the sum of $5,000 is to remain.