THE QUEEN v. CHEUNG YAT FUNG

IN THE COURT OF APPEAL

Criminal Appeal

No. 602 of 1987

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J U D G M E N T

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Barker, J.A. :

1. The applicant, a Senior Detective Inspector of Police, was convicted on three charges of unlawful sexual intercourse with a girl under the age of 16, namely of the age of 15 years. We granted his application, treated the hearing as the hearing of the appeal allowed the appeal and quashed his convictions. We now give our reasons for so doing.

2. The girl was far from inexperienced sexually. She had, prior to the incidents with which the Court was concerned, had an abortion, conception having occurred as a result of intercourse with an adolescent.

3. The girl made two so-called complaints, each to a 21 year-old friend of hers, Henry Chung. We were not concerned with the; second of these, because in any event it was not recent.

4. The evidence was that on many occasions she had been scolded by her mother for staying out late, that her mother had threatened to lock her out of her home, and from time to time had actually carried out her threat. The first "complaint" was made by telephone from a room in the Airport Hotel in the morning of the 26th April 1987. The Applicant admitted in evidence that he had booked a room in that hotel for the two of them, and that they were alone therein for a time, the duration of which was disputed.

5. The words spoken by the girl are important, and we quote them:

"Question: You say it (sc. sexual intercourse) happened and you told Henry about it?

Answer: Yes.

Question: chat was the purpose of telling Henry?

Answer : Well I didn't go home and my mother telephoned Henry. So I told Henry about it and where I was so he would not worry about me."

6. Henry Chung's evidence was as follows:

"She told me first she was at an hotel. I said why are you so naughty going to a place like that......  She said she went to bed without wearing any clothing and when asked if she had done anything she said it went without, saying. When asked why she had done it again, she said she just could not bear it because she had a desire; because she was sexually excited by somebody."

7. From the foregoing it is clear that what she said to Chung on the telephone did not amount to a complaint within the normal meaning of the word. Mr. Bruce for the Crown conceded this, but submitted that any relevant statement to a third party with regard to a sexual offence is admissible as an exception to the hearsay rule. He conceded that if his submission be correct words spoken in a spirit of euphoria would come within his proposition and that nowadays the word complaint is wholly inapposite to describe the exception.

8. He could cite no Hong Kong decision in support of his argument, but he relied on the English decision of R. v. Osborne⁽¹⁾. Ridley J. in delivering the judgment of the Court said at 556:

"It appears to us that the mere fact that the statement is made in answer to a question in such cases is not of itself sufficient to make it inadmissible as a complaint."

9. From this and similar passages where reference is made to a 'statement' Mr. Bruce argued that a mere narrative of events is sufficient to take the evidence outside the hearsay rule and he drew a distinction between 'complaint' and statement. We do not accept that there is such a distinction. A complaint can be, and usually is, in the form of a statement. Moreover the words we have just quoted must be taken in their context. In Osborne's case there had been a complaint, in the ordinary sense of the word about Osborne's sexual behaviour, and it was against that background that the remainder of the judgment was given.

10. Mr. Bruce also sought to rely on a decision of the Supreme Court of Canada in Timm v. The 0ueen⁽²⁾, but in our judgment that case does not advance his cause at all. That was a case of rape, there had admittedly been a complaint of an attack by the accused, but there had been no complaint of a sexual attack. It was held that the complaint was admissible in evidence. That case is not relevant to the matters we have to decide.

11. Mr. Bruce further argued that once it is held, as it has been held, that the 'complaint exception's applies to cases where consent is immaterial, it must follow that one must give a wider definition to the word 'complaint'. We disagree. Mr. Bruce was unable to cite to us any case, consent being immaterial, in which there had been no complaint in the hitherto accepted meaning of the word.

12. In our judgment the words used by the girl were not capable of and did not amount to a complaint. We are fortified in this view by the origins of this exception to the hearsay rule.

13. In Oshorpe's case Ridley J. said at 559:

"It is in accordance with this view that in early times it was incumbent on a woman to prove that while the offence was recent she raised 'hue and cry' in the neighbouring towns, and showed her injuries and clothing to men, and that, the appellee might raise as a defence the denial that she had raised the hue and cry .... The hue and cry was the phase used generally for the pursuit of a felon; but we have not found any other case  than rape in which it was for the prosecution to show that they had raised it, or in which it was a defendant to show that it had not been raised."

14. In our judgment the evidence given by the girl and Chung with regard to the so-called complaint was inadmissible. In these circumstances Mr. Bruce conceded that the conviction could not stand. This was a proper concession, since the Judge relied on this evidence, as showing the girl's consistency.

15. We therefore quashed the convictions.

(1) (1905) 1 K.B. 551

(2) (1981) 59 C.C.C. (2d) 396