HKSAR v. WONG, YIU WA

HCMA 762/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 762 OF 2008

(ON APPEAL FROM KTCC NO. 2095/2008)

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BETWEEN

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J U D G M E N T

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1.  The Appellant was convicted after trial on one charge of indecent assault and sentenced to three months’ imprisonment. He appealed against both conviction and sentence but has since abandoned his appeal against sentence.

Evidence for the prosecution

2.  It is not disputed that on 4 March 2008, the Defendant was leading a team of four, including himself, on an anti-smuggling operation at Wong Shek Pier. At the briefing conducted by Senior Inspector Mak (PW3), he instructed them to pose as campers and to carry out surveillance in that area. In the Appellant’s team was PW1, the complainant in this case, PW2 who is WPC 5208 and PW4, PC4527. Instructions were that they were to camp overnight in the vicinity of Wong Shek Pier and they would be picked up the following morning.

3.  Upon arrival at Wong Shek Pier, the Appellant gave instructions that they were to pose as lovers and asked which of the two WPCs present would volunteer to pose as his lover. PW2 volunteered. Two tents were set up and the evidence was that both WPCs placed their belongings in one tent and the Appellant and PW4 placed theirs in another tent. Subsequently, when PW2 and PW4 went to wash the dishes, the Appellant told PW1 to walk with him to the pier to commence their surveillance operation. On the way, the Appellant told PW1 that they were to pose as lovers. PW1 then held on to the Appellant’s arm and when they arrived at the end of the pier, the Appellant asked PW1 if she was cold. When PW1 replied in the positive, the Appellant rubbed her hands and put her hands into a sleeve of his jacket in an attempt to warm her. Then the Appellant put his arm around the waist of the PW1. According to PW1’s evidence, she moved her body slightly away, eventually both of them returned to the campsite.

4.  Upon arrival at the campsite, PW2 and PW4 were nowhere to be seen. Eventually, they found out that PW2 was sharing the tent with PW4. The Appellant then told PW1 to enter the other tent. PW1 found PW2’s things still inside the tent. The Appellant then took PW2’s things to the other tent and returned with his sleeping bag and other possessions.

5.  According to PW1, the Appellant told her to sleep first. She laid down on one side of the tent to sleep whilst the Appellant kept surveillance through a hole in the tent. From time to time, PW1 said the Appellant would lean down close to her ear and whisper to her that there was nothing happening. As PW1 was lying without a mat, the Appellant suggested to PW1 that she should move to his side to sleep on top of the mat so that she can be more comfortable. PW1 did as suggested by the Appellant, and thereafter, the Appellant had to lean over her in order to look through the peephole to keep surveillance of any outside activities.

6.  It is alleged by PW1 that it was at this time that when the Appellant leaned over her to look through the hole, the lower part of his body would come into contact with the back of her thighs and her buttocks. The Appellant would also from time to time lean down close to her ear and whisper to her about what he could see outside and on one occasion he kissed her on the cheek once and then on the lips. PW1 alleged that she was frightened and at a loss as what to do and eventually she was so tired that she felt asleep and woke up at about 5 a.m. She then met up with PW2 and they went and washed themselves. Eventually, a police launch came to pick them all up to return to the marine base.

7.  In the police launch, PW1 made no complaint but back at the base over breakfast, PW1 then told PW2 that the Appellant had rubbed her hand and that he had come so close to her face that his mouth touched her face. PW2 confirmed that PW1 never said the word ‘kiss’ when making her complaint to her.

8.  PW3 was the officer in charge. On 4 of March, he briefed the relevant officers about an anti-smuggling operation and instructed the Appellant and PW1, PW2 and PW4 to pose as campers at Wong Shek Pier. He said he instructed that the two WPCs were to share a tent, in order to minimize embarrassment. There was some confusion amongst the prosecution witnesses as to whether PW3 has in fact said so. But, at the end of the day, in my view, this was a non-issue because as the evidence showed though the 2 WPCs had placed their possessions in one tent, it subsequently transpired that PW2 had chosen to be in a tent with PW4 and her belongings had to be taken to her tent by the Appellant. So, it was not through any manipulation of the Appellant that he ended up with PW1 in the same tent.

9.  Unfortunately, the learned Magistrate had failed to see this point and he made the comment at paragraph 27 of his Statement of Findings that:

“… the Appellant never informed nor seek any approval from PW3 when he altered PW3’s order as to who sharing tent with whom. …”

10.  As for PW4, the learned Magistrate observed that his evidence confirmed the evidence of PW3 as to the instructions given.

11.  PW5, Sergeant 48517, said that at around 8 p.m. on 5 March, PW1 had telephoned him. PW1 was quite emotional and confused at the time. He said PW1 told him that the Appellant had kissed her face and lips but did not mention about the Appellant’s lower part touching her. PW5 made a note of the conversation in his notebook. In his notebook he said he paraphrased what he was told using the following words:

“… on two occasions, not knowing whether it is intentional or not, touched face and lips of WPC …”

12.  The learned Magistrate said at paragraph 61 of his Statement of Findings that it was PW5’s evidence that the words “not knowing whether it is intentional or not” was not the word of PW1 but, rather his own comment after hearing her allegations.

13.  Upon being led through the transcript by Mr Dunn, it is clear that PW5’s evidence was that the complainant had not been certain and had not made it clear whether she thought the kissing was intentional or not, although at first he denied that the complainant had actually used the word intentional or not. However the Sergeant did say that the complainant did not use the word kiss and only describe the fact that the Appellant’s lips had “touched her face and lips”. (see pages 240 to 243 of the Appeal Bundle).

14.  The complainant also wrote on the back of an envelope, which was produced as Exh. P7, a recollection in short form of the event. It was put to PW1 in cross-examination, that, what she had written on the envelope was “Early hours, walked the pier, with Ah Dau, touched by him. Returned to camp. Kissed by him twice”, and she answered “yes”. (see page 194T to V of the Appeal Bundle).

15.  Later in cross-examination when PW1 was asked about why she had not mentioned the Appellant’s lower part touching her’s. She said it was too embarrassing and she was too scared. Then the questions and answers were referred to as follows:

“Q. You told the Sergeant this, “due to the operation, the conversation had to be extremely whispered, and Ah Dau had to bend near my ear to convey communication.

A. Correct.

Q. Later, totalling two times, not knowing whether intentional or not intentional, he touched your face and lips.” Why did you tell the Sergeant that you didn’t know whether it was intentional, or not intentional when he touched your face and lips?

A. Because the operation was underway at that time. But on second thoughts, others would see us posing as lovers only in the outside of the tent.

Q. You are not answering the question, why did you tell Sergeant Ah Hing, that you didn’t know what Ah Dau had done in the tent, touching your face and lips was intentional, or not intentional, why did you tell him that?

A. Because at that time the operation was still underway.”

She also said that she was confused. She wasn’t sure whether it was for operational need etc. So it was clear from her evidence that she never denied that she had told PW5 she wasn’t sure if it was intentional or not intentional (see pages 195T to 197D of the Appeal Bundle).

16.  PW5 had denied in his evidence that he had ever told PW1 that the action of kissing was not so serious that a report had to be made. But PW1 said that was what PW5 told her and that she was a little bit annoyed by what PW5 had said. That is why she, on the following day, had written a letter of complaint to a more senior officer and that letter was produced as Exh. P3.

Magistrate’s Findings

17.  The learned Magistrate correctly reminded himself of the Appellant’s good character as given in evidence by the only defence witness called Superintendent Fung. The learned Magistrate found that the complainant’s complaint to PW2 during breakfast is to be regarded as a recent complaint. However the learned Magistrate found that it was reasonably for PW1 to have left out certain details because PW1 was understandably scared and embarrassed at the time. The learned Magistrate found therefore that Exh. P7, her letter to her senior officer although not a recent complaint “did throw some light as to the consistency of her complaint.” (see paragraph 52 of the Statement of Findings).

18.  The learned Magistrate also chose not to believe PW1’s evidence that PW5 had mentioned to her that kissing was not serious enough to form a case on the ground that he thought PW1 was still confused and emotional at the time and that PW5 should be believed that he never told PW1 that it was not so serious.

19.  The learned Magistrate also found that PW1 was wrong in her recollection that she may have said the words “not knowing whether it is intentional or not” as recorded in PW5’s notebook, as PW5 had said it was merely his conclusion after hearing PW1’s allegation.

20.  The learned Magistrate considered that it was proper in this case to consider all of the Appellant’s conduct together, that is, the rubbing of PW1’s hand, holding of her waist, kissing of her face and lips and pressing his lower part against PW1 as behaviour amounting to indecent assault and therefore convicted the Appellant.

Appeal

21.  Mr Dunn on behalf of the Appellant submitted two grounds of appeal:

(1) The learned Magistrate failed properly to evaluate the evidence of PW1 in light of the contradictory and inconsistent statements made by her after the incident;

(2) The learned Magistrate failed to consider whether the bodily contact alleged to have occurred between the Appellant and PW1 could have been accidental rather than deliberate.

22.  The first complaint of Mr. Dunn is that the learned Magistrate failed to properly evaluate the evidence. First of all, in relation to the briefing of PW3, though PW3 said that he gave instructions that the two female officers should share one tent. PW1, in her evidence, said that during the briefing a male PC suggested that female officers should sleep separately and PW3 agreed to this. PW2 said that PW3 did not mention the sleeping arrangements. PW4 had mentioned that PW3 had said to the two WPCs to go into one tent, he agreed in cross-examination that there were no clear instructions as to who should sleep in which tent.

23.  It is also true that subsequently on cross-examination when asked whether PW4 felt it was odd that the Appellant gave instructions when they had arrived on the island, they were to pose as lovers and share the tents. His answered was “no”. He did not think that the Appellant’s instructions was contrary to anything that PW3 had said.

24.  In fact, according to the evidence, PW2 had volunteered to pose as the Appellant’s lover, but, whilst the Appellant and PW1 were at the pier, PW2 had apparently changed her mind and gone into the same tent as PW4.

25.  It is difficult therefore on the evidence to say that the Appellant when giving instructions that they were to pose as lovers and share a tent was deliberately or intentionally creating a situation where he could share a tent with the complainant.

26.  In my view, the evidence is of such a nature that it would be unsafe to include that the Appellant was laying the foundation for his subsequent indecent assault based on such evidence. I have to agree with Mr Dunn that this mistake on the part of the learned Magistrate could have coloured his view that the Appellant had a motive right from the start.

27.  This view is supported by the fact that the learned Magistrate found that the Appellant’s conduct initially of rubbing of PW1’s hand and the holding of her waist was part of an indecent assault. The acts are innocuous and would not be considered to be indecent assault by right‑minded persons of the community, unless the Appellant had a motive from the very beginning, which the learned Magistrate had found was the case when he gave instructions that they were to pose as lovers.

28.  As I have observed above, this flies in the face of the evidence of the other officers present, PW2 and PW4 who found that there was nothing strange in the instructions given by the Appellant. It can be considered as an operational necessity at the time because they were posing as four happy campers on a deserted beach and would make their surveillance operation more credible were they to be lovers.

29.  Indecent assault is by its very nature hard to prove and also difficult to defend. It relies on the reliability and credibility of the complaining witness and other surrounding circumstances. The task is even more difficult when one takes into account the emotional aspect of this type of allegation. And so the Court must in every case be very cautious of the fact that an honest witness may be a mistaken one.

30.  At the end of the day, the case rests on the accuracy and reliability of the evidence of PW1. Had the learned Magistrate properly evaluated the evidence in relation to Mr Mak’s briefing and the evidence of PW2 and PW4, he would not have found that the Appellant had defied the instructions of Mr Mak and thus had the intention from the very beginning to act indecently towards PW1. He would then have concentrated on the evidence and would have found that the initial act of rubbing the hands of PW1 and putting of hand around the waist of PW1 could not be considered to be indecent and, thus, cannot be considered to be indecent assault. He would then have to concentrate on the evidence of PW1 in relation to the kissing and the lower body part touching.

31.  On the matter of kissing, it was clear from the evidence of PW1 that there was nothing wrong with the Appellant having to lean close to her to whisper, it can be considered as an operational necessity at the time. And that must have been what was on her mind when she made her recent complaint to PW2 at breakfast because the words she told was not that the Appellant had kissed her but that the Appellant had leaned in so close that his mouth touched her face. This appears to be confirmed by PW5’s notebook entry, which said that PW1 had told him that the Appellant had on two occasions touched her face and lips. Though in Court, the Sergeant had insisted that PW1 had said the Appellant had kissed her on her face and lips.

32.  The question then that had to be asked is were the kissing of the lips and face intentional or not. Here the evidence is again inconclusive because PW1 herself when making her recent complaint appeared not to be sure it was a kiss because she said the Appellant touched her face with his mouth. This then was mentioned by the Sergeant in his notebook entry with by the words “not knowing whether it is intentional or not, touched face and lips of WPC …”. The Sergeant explained it by saying that it was his conclusion based on what PW1 had told him, though PW1 did not say the actual words she didn’t know whether it was intentional or not. If this was the Sergeant’s conclusion, then it must have been due to the fact that PW1 had in some way expressed herself to lead the Sergeant to that conclusion. However PW1 in cross-examination appeared to have agreed that she did mention intentional or not intentional, because she said she was scared and that it was in the middle of an operation and she was confused.

33.  The learned Magistrate resolved all these by saying that PW1 wasn’t sure and was confused about what she had told the Sergeant. Therefore he preferred the evidence of the Sergeant when he said that PW1 never said those words. As Mr Dunn pointed out it is clear that PW1 did not say in evidence that she was unsure whether she had said this or not. In fact, she gave a long explanation as to why she had said that to the Sergeant. The Magistrate’s conclusion was that PW1 could not remember was never borne out by her evidence.

34.  Next, we have the evidence in relation to the allegation of the Appellant’s lower body touching PW1’s lower body whilst she was lying in the tent. The first time that this allegation was made, was in Exh. P7, which is PW1’s letter to the senior officer. As the learned Magistrate had properly concluded cannot be a recent complaint.

35.  Reading through the transcript it was clear that defence counsel had asked that Exh. P7 be produced for one reason only and that is to show PW1’s emotional condition at the time of writing the letter as it was the defence case that PW1 had felt some degree of closeness to the Appellant and was acting emotionally because the Appellant had ignored her after the stay at Wong Shek Pier.

36.  Therefore, though her initial complaint was a mild one, she, as a result of her unrequited feeling exaggerated and embellished her accusation to the extent of what was said in her letter in Exh. P7. The learned Magistrate in considering Exh. P7, should have ignored the complaint made in Exh. P7, because it was not a recent complaint, and, therefore it was only a previous consistent record made by PW1 and cannot be used as evidence to support her evidence in Court. However, the learned Magistrate erred in using the content of Exh. P7 to “throw some light as to the consistency of her complaint”.

37.  I fail to understand the learned Magistrate’s reasoning because he had already accepted that Exh. P7 cannot be regarded as a recent complaint, but he was ready to use the content of Exh. P7 to “throw light” on PW1’s consistency. This is clearly wrong.

38.  In view of the above, I find that the conviction is therefore unsafe and unsatisfactory. The conviction and sentence are set aside and the appeal is allowed.