HKSAR v. CHU CHI HO

[English Translation – 英譯本]

DCCC 331/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 331 OF 2015

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Reasons for Verdict

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The offence

1. The defendant was charged with one charge of misconduct in public office, contrary to Common Law and punishable under section 101I (1) of Criminal Procedure Ordinance, Cap 221.

2. The particulars of the offence allege that the defendant being the holder of a public office, namely a police sergeant of the Hong Kong Police Force, on or about the 28th day of May 2014, at Room No. 4, 1st floor, No. 141 Temple Street, Yau Ma Tei, Kowloon, in Hong Kong, in the course of or in relation to his public office, without reasonable excuse or justification, wilfully and intentionally culpably misconducted himself by:

(a)  Revealing his police identity and thereby procured sexual service from X; and

(b)  Threatening the said X to leave the territory of Hong Kong within 3 hours on the 28th day of May 2014, otherwise the said X would be subject to detention for 7 days.

3. The defendant pleaded not guilty and stood trial before this court.

Prosecution facts

Agreed facts

4. The defendant was a serving police sergeant attached to District Special Duties Squad 3 of Yau-Tsim District. He had been so attached since 18 August 2013. His everyday duties included conducting observation and carrying out anti-vice activities on the premises situated at level 2, that is the 1st floor of the Chinese tenement building at numbers 139-141 Temple Street, Yau Ma Tei. There was record of a number of operations. He also liaised with the landlords or tenants of the premises in question to warn them not to allow the premises to be used for the purpose of prostitution.

5. On 30 May 2014, the police lifted 5 fingerprints from inside room number 4, 1/F, 141 Temple Street, Yau Ma Tei. The one lifted from the wall beside the light switch by the door of the room matched that of the right thumb of the defendant. The 4 lifted from the wall outside the left hand side of the toilet did not match those of the defendant.

The early hours of 28 May 2014

6. Ms X (PW1, alias “Big Eye Girl”) was given a certificate of immunity from prosecution to testify for the prosecution. Her papers and immigration record showed that she was 25 years old, after coming to Hong Kong for two days in October 2013, she came to Hong Kong once or twice each month and stayed here for one to several days each time during the periods from May to November 2014 and from March to November 2015. She testified that she was married, other than the occasion in question, each time when she came to Hong Kong, she visited a male friend. She was not willing to disclose the information of the boyfriend, citing the reason the she had to keep client’s information confidential.

7. On 27 May 2014, X came to Hong Kong for the purpose of prostitution. She and a lady friend, alias “Siu Lai”, rented rooms 4 and 5 on 1/F, number 141 Temple Street at the daily rental of $300 each from PW2 whose alias was “Lan Je”. Lan Je gave her the keys to the main gate of the building, the main door of the premises on 1/F and room 4.

8. On 27 May, X attended to several customers. At around 1:30 in the early morning of 28 May 2014, she met the defendant in Temple Street. The defendant asked her questions to the effect of “how much”. She said $200 in reply. The pair then went immediately to room 4 inside the premises on 1/F, number 141 Temple Street.

9. After entering the room, the defendant produced his warrant card and revealed his police identity. He took away the mobile phone and papers of X and said words to the effect of “Do you want to go back immediately or be detained by me for 7 days (?)” She felt scared and provided sexual service to the defendant as he had requested. However, the defendant did not pay her $200. Instead, he instructed that she should leave Temple Street and ride on a vehicle to reach Huanggang within 3 hours to cross the checkpoint to return to the mainland. The defendant also took away her keys.

10. X packed her luggage and left room 4. She saw that Siu Lai was also leaving with her luggage trailing behind her. They went downstairs together. They walked to the junction of the road to wait for a taxi. They saw PW3 (whose alias was “Ah Chat”). X told him that she had to return to the Mainland. They/She then boarded a taxi to leave. During her testimony, she identified from the video recordings and a photograph/the photographs taken by a CCTV camera installed near the location in question what happened when she and Siu Lai were walking in the street with their luggage trailing behind them. She further identified the taller of the two men who were behind them after she and Siu Lai had walked past the camera for about 10 seconds as the man who requested her to provide sexual service in the early morning.

11. Ah Chat testified that at the time in question, he saw X and Siu Lai walking along the street with luggage trailing behind them. When he was about to ask them why they left so soon, the two men walking behind them shouted abuse at him to stop him. Ah Chat quarrelled with them. The taller man indicated that he/they were from “Yau-Tsim Anti-vice” and ordered him to produce his identity card. And the other man said words to the effect: “you resist so much all the time, keep resisting”.  Ah Chat later told three “mafoos”, Ah Pui, Fei Chai and Ah B, about the incidents. The term “den being raided” was used in the course of the conversation. During his testimony, Ah Chat identified from the same CCTV video recordings and photograph/s the person beside the taller man carrying a rucksack on his back as the police constable who said to him during the quarrel: “resist so much all the time, keep resisting”.

12. X phoned Lan Je later to tell her words to the effect: “we go home, go back to the mainland. (A) customer scared us off”. Lan Je told her not to be afraid and to come back. X therefore came back to Hong Kong again at about 11:40am. Lan Je arranged another room for her to use. At about 8pm, she met with the police in a Chinese-style café with Lan Je.

13. Lan Je was likewise given a certificate of immunity from prosecution to testify for the prosecution. She said at about 2am on 28 May 2014, she was told the news about the departure of X and Siu Lai and received a return call from X who said to her words to the effect: “Met (a) policeman. He did me without paying for it. Dined and dashed.” (The response Lan Je made in this telephone conversation is unfavourable to the defendant. It has limited relevance to the offence. It is to be excluded). Around 11:30am, X contacted Lan Je again. Lan Je arranged alternative accommodation for her. At around 6pm of the same day, Ah B telephoned Lan Je to arrange a meeting between her, X and the police at a Chinese-style café.

14. During her testimony, Lan Je identified from the grooves on the 6 keys in prosecution exhibit P6(72) and (73) as those that could open the main door of the premises on the 1/F and doors of rooms 1,2,4 and 5 inside the premises. She also recognized 3 of them as those that she had handed to X. However, the 4th key that she had handed to X was not among the 9 keys in P6. Besides, of the 9 keys, 6 were not among those she handed to X; one could open the main door of the premises on 1/F.

The arrest of the defendant

15. PW11, Detective Station Sergeant Cheung Kai Keung (transliteration), arrested the defendant at Yau Ma Tei Police Station on 30 May 2014 for misconduct in public office.

16. In the presence of Detective Station Sergeant Cheung and the defendant, PW5, Detective Police Constable 1309, seized 4 bunches totalling 9 keys (that is, P6(71)-(74)) from the 3rd drawer in the locker under the right hand side of the defendant’s office desk. PW5 immediately recorded the position from which the exhibit was seized on a sketch (P23(1) to(4)), signed and dated it 30 May 2014.

First video-recorded interview of the defendant

17. Very late in the evening of 30 May 2014 with the early hours of the 31^st approaching, Detective Station Sergeant Cheung and PW5 had a video-recorded interview with the defendant. When Detective Station Sergeant Cheung cautioned the defendant, he said that the location in question was 3/F, numbers 139-141 Temple Street. The main points of what the defendant said are as follows:

1.  He had worked with Sergeant Wong Chun Wai (transliteration) in Special Duties Squad 3, Yau Ma Tei since 11 May 2014.

2.  In the evening of 27 May 2014 after going off duties, he dined with Sergeant Wong. After that, he/they went to the vicinity of Temple Street/Saigon Street to observe the trend of vice activities.

3.  When the defendant was wondering aimlessly at Temple/Saigon Street, he saw a female signalling to him with her eyes and smiled, he therefore followed her to the building at numbers 139-141. It was only when he had arrived there that he knew the female had taken him to this building.

4.  The defendant had a confidential investigation file concerning number 139, Temple Street; he therefore followed the female to 1/F. On seeing that she opened the door, he asked her question to the effect: “Hey, what on earth are you doing(?)”. The female then asked him questions to the effect: “Are you serious(?)” and “Are you or are you not(?)”. The defendant shook his head and left.

5.  In the video-recorded interview, the defendant said from the beginning to the end, he only suspected that the female was engaging in prostitution, but he had yet to gather concrete evidence.

6.  Besides, the defendant was adamant that he did not enter the premises on 1/F, number 139. He had only stayed at the location between the door frame and the staircase. The defendant left number 139, contacted Sergeant Wong and left together with him. He/They intended to go to Parkes/Nanking Street to buy late night snack but in the end decided to take a taxi to go home.

7.  He denied having told Sergeant Wong that he had gone up the building at number 139 and possessed the keys to the metal gate on the ground floor of numbers 139 to 141 or any of the premises.

8.  The defendant claimed that he had told his Inspector that when he had gone off duty, he would go to the vicinity to observe vice activities.

9.  As the defendant had not exercised any police powers, he therefore did not record in his notebook the incident where he followed the female to go up the building.

The written cautioned statement of the defendant

18. In the evening of 31 May 2014, Detective Station Sergeant Cheung and PW5 took a written record of interview from the defendant for the purpose of correcting the address of the location in question that Detective Station Sergeant Cheung gave (3/F, 139-141 Temple Street) when he arrested the defendant earlier. The correct address was in fact 1/F, 141 Temple Street. Under caution, the defendant denied that he had entered the premises at the time in question; he only admitted that he had stood in the corridor.

19. The record of interview shows that question (4) was: “I now have to clarify with you that the premises referred to in question (2) were the premises on 1/F, 141 Temple Street. Is your answer still the same as the answer to question (3)?” The defendant replied: “Yes, because at that time, I did not know into which number or floor she would take me, so I followed her for the time being, I only stopped when she opened the 1st floor of number 141. Besides, at that time, I had yet to find out what offence the female had committed.”

20. The defendant denied that he had ever shown his warrant card to the female in question and revealed his police identity, but he admitted that he knew “go or no go” usually referred to “going or not going ahead with sexual transaction. It was a code.”

21. When being asked about informing Sergeant Wong with a whatsapp message at 1:10am on 28 May 2014 that he was at 1/F 139 Temple Street, the defendant’s reply was: “Do not remember. It might actually be true. I might have informed him at that time.”

22. In the interview, Detective Station Sergeant Cheung showed the defendant P6 (71)-(74), the 9 keys. Question (17) was as follows: “I now show you the items the police seized from the 3rd drawer of the 4-compartment-locker under the right hand side of your desk in the office at room 140, DSD3YT, 1/F, Yau Ma Tei Police Station, and you were present to witness it. The first item is a key, police exhibit number “CCH-0-17-01, that is attachment 2. What is this key for?” The defendant only said: “don’t know”. The number assigned to the key, “CCH-0-17”, could be seen in the sketch PW5 drew on 30 May 2014(the item at the bottom-most of P23(3)).

The defendant went to the scene to test the keys

23. According to the record PW5 made (see P21) and the evidence, from 11:15am to 11:35am on 1 June 2014, Detective Station Sergeant Cheung and PW5 brought the defendant to 141 Temple Street where they tried to open the doors in question with the 9 keys of P6 (71)-(74). PW5 found: 1. The keys of P6 (71)-(74) could not open the main door of number 141 and the doors of the 5 rooms on 1/F. 2. The key with the brand name “Diamond” in P6(72) could open the door of room 5 in the second attempt made, and the key with the two characters “劉珍” stuck on it could open the lower lock of room 1 and room 4, and in the second attempt made, it could open room 5. 3. The key with the brand name “Diamond” in P6(73) could open the lower lock of room 1 and the lower lock of room 4, and in the second attempt made, it could open room 5 but not the main door. But one of the keys with the brand name “Goo lik” (transliteration) could only open the main door. The other key with the brand name Goo Lik not only could open the main door, but also room 5 in the second attempt made. Finally, a triangular-shaped key could not open any of the door locks in question.

The second video-recorded interview of the defendant

24. In the afternoon of 1 June 2014, Detective Station Sergeant Cheung and PW5 carried out the second video-recorded interview with the defendant. Under caution, he claimed that the 9 keys of P6 were not found upon search from the locker under the right hand side of his office desk but from the tea table behind his seat. However, he admitted that the low cabinet under his desk was for his personal use. He said that he already knew that there was a quantity of keys in the tea table when he assumed office but had never dealt with them. In this video-recorded interview, the defendant emphasized that all team members and inspectors had the key to gain entry into the office.

Defence case

25. The defendant has a clear criminal record. His work performance was outstanding. He elected to remain silent and called one defence witness, Wong Yuk Bun (transliteration), a former police constable.

26. Mr Wong joined the Police Force in January 2010 and was posted to Special Duties Squad 3 Yau-Tsim District in February 2013. The officer-in-charge was a woman inspector, Madam Yiu (transliteration). Yiu was succeeded by PW12, Madam Kwok (transliteration), another woman inspector, since August 2013, and the witness left the Police Force in December 2013 to become a fireman. He testified that PW4, Police Sergeant Lee Lok Yan (transliteration) who had already left the Force before the case happened, knew that there was a quantity of keys in the 3rd drawer of the tea table behind the defendant’s seat. Besides, on one occasion when the witness performed duties, Woman Inspector Kwok asked him to take the keys to open the doors of certain premises. The witness believed that the police did not have the power to do so and therefore declined the request of Woman Inspector Kwok. Under cross-examination, he said he could not recall that police officers of the rank of sergeant or above could go into private premises for investigation without a search warrant.

27. From the scope of the questions the defence asked the prosecution witnesses in cross-examination, it can be seen that the defence case is roughly as follows:

1.  When X took the defendant to number 141 Temple Street, she received a phone call; she knew or suspected that the defendant was a policeman. After going into the premises, she locked the defendant out. Therefore, the defendant had not entered the premises on 1/F of number 141 at all.

2.  It was only when PW5 learned that the defendant disputed the position from where the 9 keys were seized in the video-recorded interview held in the afternoon of 1 June 2014 that PW5 drew the sketch and made other records to show that the keys were seized from the 3rd drawer under the office desk of the defendant.

3.  The whole investigating team was clear that a quantity of keys was kept in the 3rd drawer of the tea table behind the defendant’s seat.

4.  It was possible that the fingerprint lifted from room 4 inside the premises on 1/F of number 141was left by the defendant before the occurrence of this case when he conducted investigation in that room.

5.  The premises in question had a CCTV camera installed.

6.  The premises in question had been investigated by the police on a number of occasions. Therefore, the person-in-charge of the establishment or people concerned (such as Ah B) might have put up or used X to frame the defendant.

Case analysis

Pre-requisite

28. The burden of proof is on the prosecution to prove beyond reasonable doubt that the defendant had committed the offence in question; otherwise the court must find the defendant not guilty of the charge. The defendant bears no burden of proof at all.

29. That the defendant has a clear criminal record and was outstanding in his work performance show that he had no propensity to commit a crime. These also lend support to the credibility of his cautioned statements. It was his right to remain silent. The court cannot make any unfavourable consideration, speculation or inference against him because of his election to remain silent.

30. The offence in this case involves an allegation of sexual molestation. The court bears in mind: 1. It is extremely easy to make such an allegation while quite difficult to produce evidence to rebut it. 2. A recent complaint is not a piece of factual evidence. At best it can only show that after the incident, the complainant had as soon as practicable made a complaint that was consistent with or matched her evidence.

31. The court takes the view that PW1(X), PW2 (Lan Je) and PW3 (Ah Chat) were all people not of good character. Therefore, it is necessary to exercise greater caution in considering their credibility and the reliability of their evidence. X and Lan Je testified under certificates of immunity from prosecution granted by the prosecution. The court must consider with care and caution the purpose of their giving the evidence to see whether or not it was for the sake of getting the immunity from being prosecuted etc.  Ah Chat had a number of previous criminal convictions; they included the offence of trafficking in dangerous drugs. The court must exercise special caution to consider whether or not it was in order to achieve certain unspeakable purposes that the three of them testified in court, such as whether or not it was for the purpose of taking revenge for the numerous raids the premises in question had been subject to that the three framed the defendant etc. Besides, the court notes that evidence given by none of the three was corroborated by independent evidence.

32. The three cautioned statements of the defendant were on the whole mixed statements. He admitted that at the time in question, he followed a female to go to the 1st floor of the building at numbers 139 to 141 which had two units on each floor. This statement is unfavourable to him. However, he also made statement to explain why he went to the location in question, and maintained that he had not gone into the premises in question. This part of his statement is exculpatory.

33. The court bears in mind that the above two parts of statement are both factual evidence that have to be considered together.  In the present case, the defendant has a clear criminal record and is a serving law enforcement officer. His work performance was outstanding. All these lend support to the credibility of the exculpatory parts of his statement. The court notes that the PWs testified that they had always known that, among other things in the bottom-most drawer of the tea table behind the seat of the defendant, there was a quantity of keys, and that the defendant would observe the trend of the vice business at the vicinity of Temple Street/Saigon Street after work. In these two respects, the cautioned statements of the defendant are supported by the prosecution. However, the key issue and finding of the present case (that is whether or not PW1, PW2, PW3 and PW5 were honest and reliable) do not turn on these. Moreover, this part of the defendant’s cautioned statement has not been tested by cross-examination; therefore the court does not necessarily have to attach full or indeed any weight to his statement in this regard.

34. In my view, the prosecution could not entirely rule out that the defendant had been to room 4, 1/F of number 141 to conduct investigation before the occurrence of the case. Therefore, the fact that there was the defendant’s fingerprint in the room could not support the credibility and reliability of the evidence of X. The court does not attach any weight to the fingerprint evidence.

The role and duty of the court

35. In my view, the legal representation that the prosecution enjoyed in several of the key areas during the hearing of the present case obviously fell short of the generally effective and reasonable level. The court bears in mind that in criminal proceedings, public interest could only be manifested by the fact that the defendant got a fair and just trial. If there is any doubt in the case, the court must find the defendant not guilty of the charge. Under this pre-requisite, the court bears in mind that its judicial duty far exceeds the duty that the prosecution and the defence owes to their clients.

Whether or not the key prosecution witnesses were honest and reliable

Ms X

36. When the defence cross-examined X, they focused on her background information to challenge her credibility and reliability. For example, whether or not the work she did in the past could enable her to come in and out of Hong Kong frequently since 2011, and the true purpose of her staying in Hong Kong for one to several days in the many visits she made. On these questions, the evidence indicated that she had been to Hong Kong many times, judging by the evidence in its entirety, it really makes one wonder whether or not she came for the purpose prostitution. But the court takes the view that the important consideration is her purpose and conduct in the visit in question that she made. X admitted frankly in the witness box that the purpose of her coming to Hong Kong on the occasion in question was for prostitution. Therefore, whether or not the purpose of her earlier or later visits to Hong Kong was for prostitution has little bearing on the question that the court has to decide. Even if X had not told the full story and the truth in her evidence in this regard, this does not necessarily mean that she must have told lies in her evidence on matters that concern the case. The court reiterates that in dealing with the evidence of X, caution must be exercised, in particular on the questions of whether there were inherent contradictions, areas that did not make sense or her evidence was inconsistent with other evidence, etc.

37. The defence submitted that X said that the sexual service she provided to the defendant lasted only for 5 minutes. In her evidence, X did not mention that the defendant had used a condom or describe the physical characteristics of the defendant. Nor did she give details of the sexual service that she provided. In my view, although these are issues relevant to the case but they are only peripheral in nature that do not touch upon the core question of whether or not X was intimidated by the defendant into providing sexual service to him, and threatened by him that she must leave Hong Kong within 3 hours or else she would be locked up.

38. Under cross-examination, X denied the suggestion that the defendant had never discussed with her about the $200 service charge. The defence submitted that there were inconsistencies between what she said in court and what she told the police in her witness statement, especially on the issue of the place at which the defendant had the discussion regarding the service charge with her.

39. In my view, according to what happened at the time in question, it is inconceivable that before reaching 1/F of number 141, X had never told the defendant clearly that he had to pay for the service. She came to Hong Kong for the purpose of prostitution. She said that the purpose of her standing in the street was also for “soliciting for customers”. I do not accept that she did not tell the defendant clearly in these circumstances how much the service charge was before taking him to the building in question.

40. X maintained in her evidence that she mentioned that the service charge was $200 both in the street and in the room. X testified that when she said that the service charge was $200 in the room, the defendant immediately produced his warrant card to reveal his police identity and then threatened her. In my view, it was only after the defendant had confirmed that X was engaging in prostitution that he revealed his police identity and made use of the fact that she was engaging in prostitution to threaten her. Therefore, I find that what X said was entirely reasonable and made perfect sense.

41. Separately, X did not say in her witness statement that she had told the defendant twice that the service charge was $200. She explained that she tried to recall what happened on the day in question afresh while giving evidence in the witness box, and that was why she recalled that. I had the chance to observe X when she was being cross-examined; I find that her explanation was clear and straightforward. There was nothing at all to suggest that she was making it up. I accept her explanation.

42. The defence argued that on the question of at what stage the defendant threatened her, there was again inconsistency between what X said in court and in her witness statement. In her witness statement, X said that the defendant only threatened her after she had provided sexual service to him. He said words to the effect that he would lock her up. But she said in court that the defendant had already said words to the effect that she would be locked up for 7 days before she provided sexual service to him. Under cross-examination, she said the defendant threatened both before and after she had provided sexual service to him that she would be locked up for 7 days. Besides, the defendant ordered that she had to leave Hong Kong within 3 hours after X had provided sexual service to him.

43. In my view, it is not surprising that X could not recall clearly if the defendant had threatened her before or after or both before and after he had obtained sexual service as she was being threatened at the time in question. The key issue is whether or not the defendant had revealed his police identity to threaten her and ordered her to leave Hong Kong within 3 hours in the incident.

44. On this question, I find that if the defendant had never told X that he was a policeman and ordered her to go back to the mainland, it is not possible to explain why X hurried back to the mainland having come to Hong Kong specifically for the purpose of prostitution and successfully received several customers in only one day. In any event, X identified the defendant from the line-up in the identification parade held after the incident. And under caution, the defendant admitted that he had followed a female to go to the building at numbers 139 to 141 Temple Street at the time in question. In my view, although these two pieces of evidence are not corroborative evidence, they strongly support the evidence of X. I find the evidence of X in this regard honest and reliable.

45. X came to Hong Kong again without any difficulty in less than 8 hours after the incident and was put up in another set of premises. In my view, if the defendant had not compelled her to provide free sexual service but only said words to threaten her and to drive her back to the mainland, this was definitely not reason enough for her to frame the defendant although certain level of inconvenience had been caused to her. After all, X had all along been a frequent traveller to and from Hong Kong. The defence case was someone used X to frame the defendant as the premises in question had been raided by the police on numerous occasions. In my view, it was obviously to be expected that the premises would be raided again because the premises on 1/F had repeatedly been raided by the police. This was not possible to be reason enough to frame the defendant either. This court does not accept the suggestion of the defence.

The evidence of Lan Je and the recent complaint

46. In the early morning of 28 May 2014, when X was speaking over the phone with Lan Je, she made no mention that she had been asked to provide free sex. However, Lan Je said in court that X did mention that she had provided sexual service but was unable to get paid. The defence argued that there was serious discrepancy between the evidence of the two witnesses and so the court should not attach any weight to the evidence of Lan Je.

47. After careful consideration, I accept the evidence of Lan Je in this regard as evidence of a recent complaint. Firstly, although this is a case concerning misconduct in public office, the misconduct alleged by the prosecution included threatening X into providing sexual service. In these circumstances, the issue that the court has to deal with is no different from that in an ordinary sexual assault or sexual assault related case. In this case, the prosecution must prove beyond reasonable doubt that the alleged sexual assault did take place and the situation that X had to face as a complainant of a sexual assault offence is exactly the same as that faced by the victims of other sexual assault offences. Besides, the court likewise has to warn itself against treating a recent complaint as factual evidence but only as a piece of evidence that goes to show that the victim had made a complaint within a reasonable time after the occurrence of the incident the content of which was consistent with or matched that of what she made under oath.

48. In this regard, it was mentioned in The Queen v Lillyman[1896] 2 QB 167 that as early as Rex v Brazier (a 1779 case), when dealing with a case of rape or assault with intent to rape, the court could consider the evidence of a recent complaint. Besides, Reg v Walker (a 1839 case), was also a case that only involved the offence of assaulting a female with the intent to rape her, the court could similarly consider accepting the evidence of the recent complaint made.

49. In my view, this series of cases clearly show that the name of the offence is not important. On the contrary, the indicator is whether or not the offence involves any act of sexual assault. Take the offence of burglary as an example, if in the premises in question, the offence the defendant committed is of the nature of the sexual assault type, the court fails to see why it should reject the production of the evidence of a recent complaint to the court.

50. In Reg v S [2004] 1 WLR 2940, the English Court of Appeal said the following:

After referring to the passage in R v Lillyman [1896] 2 QB 167 to which we have referred at paragraph 15, Lucas J continued [1966] Qd R 295, 298-300:

“The minds of their Lordships were not, of course, directed to the question now under discussion, but it seems to me that the passage is useful in this context, for in it their Lordships seem to assume that it is the jury who will have the task of considering any inconsistency between the terms of the complaint and the evidence of the prosecutrix. Indeed, in the summing up in this case, the judge read the whole of this passage to the jury, and this was made the subject of a somewhat faint complaint by counsel for the appellant. But it seems to me that the passage would have been helpful to the jury as emphasising that it was for them to consider the inconsistencies between the terms of the complaint and the girl’s evidence to which inconsistencies the judge directed their attention. In any event, from a practical point of view, it would, as seems to me, be unreal to expect unanimity of expression in the recounting of incidents by two women who were evidently agitated when the events of which they were speaking took place….. If the girl’s complaint was so different from her evidence that the two could not be identified as relating to the same occasion, evidence of it would be inadmissible because irrelevant, but that does not seem to me to be the situation here. Clearly enough, what she said here by way of complaint could be related only to the experience which she had just undergone and of which she gave evidence and in these circumstances it seems to me that the inconsistencies were a matter for a jury to consider ……. The object of admitting evidence of fresh complaint is not to demonstrate that what the prosecutrix says she said by way of complaint is consistent with the evidence of the terms of the complaint given by the person to whom it was made; it is to test the consistency of the story told by the prosecutrix in the witness box; all that is required, therefore, is for the prosecutrix to go into the witness box and tell her story. If she does, evidence of a complaint made by her can be given although she cannot herself remember what she said; provided, of course, as I have already said, that the terms of her complaint are not so completely inconsistent with the story she tells in the witness box as to be incapable of reference to the same series of the events.”

26.  We find the approach and reasoning of the Queensland court very helpful. …

51. Though X had twice read her witness statement to refresh her memory of the telephone conversation that she had with Lan Je in the course of giving her evidence, she failed even in the end to mention that she had complained to Lan Je that she had been forced into providing sexual service. The court notes that during her testimony, X kept saying that she was being threatened, scared out of her wits and scared off. Therefore, I take the view that what she was most concerned with in the whole incident was that she had to go back to the mainland immediately. During the hearing, although X had twice read the witness statement, I noticed that she could not, under cross-examination, write down the name of a company that she had participated in the operation of. She had to check the record in her mobile phone before she could write it out. And she explained that she had only studied for a very short time in junior secondary school. Her ability to write and read was limited.

52. I bear in mind that Lan Je was also a witness who had been granted immunity from prosecution, and that her character leaves much to be desired. But after considering the overall evidence, I accept the evidence Lan Je gave on the recent complaint. The evidence shows that before X came to Hong Kong, she already asked Lan Je to arrange a room for her. It is understandable that X owed Lan Je an explanation for her sudden departure. I take the view that there was no reason at all for Lan Je to make up evidence to frame the defendant. After all, her ultimate purpose was only to let out the room. The court also accepts her evidence that there was in fact no CCTV camera installed at the premises in question.

53. Considering the evidence as a whole, the court finds that the content of the evidence X gave under oath and the evidence Lan Je gave regarding the recent complaint are consistent and match each other. I reiterate that recent complaint is not factual evidence. Regarding the question of the credibility and reliability of the evidence X gave, the court has to focus the consideration on her personal background, whether or not there is any inherent contradiction or areas that do not make sense etc in her evidence.

Ah Chat

54. The purpose of Ah Chat’s evidence was to tell the court that he saw X and Siu Lai leaving with their luggage trailing behind them and that he quarrelled with two men, one of whom indicated that he was a police officer from “Anti-vice, Yau Tsim”. The video recordings taken by the CCTV camera installed at the vicinity of the scene lend strong support to his evidence. The court notices that the video recordings of the CCTV camera clearly show that about 10 seconds after X and Siu Lai had walked past the camera with their luggage trailing behind them, two men, one tall and one short, followed them to walk towards the same direction. Ah Chat recognized the shorter man carrying a rucksack on his back as the man who said: “You resist so much all the time. Keep resisting”. In my view, where the key issues are concerned, Ah Chat had given honest and reliable evidence.

PW5

55. The defence challenged the evidence of PW5 only on one key issue, that is, the correct position from which the witness searched and found the 9 keys. On this issue, the consideration of the court is as follows: PW5 seized quite a number of things from the workplace of the defendant when he checked it. It can be seen from P23(3) that he had dealt with no fewer than 17 items of exhibits which were seized from different positions. It is common sense that the most direct and simple way was to draw a sketch there and then at the scene to record the exhibits and the positions they were seized from. This is a much clearer and direct way than to record in words in a notebook or a witness statement. It can be seen from P23(3) that the sketch was drawn on 30 May 2014. In his testimony, the witness clearly pointed out that when the exhibits were being seized, not only was the defendant present, so was Detective Station Sergeant Cheung. The defence also did not dispute this. The court does not believe that PW5 would change the position from which an important exhibit was found from the tea table behind the seat of the defendant to a drawer in the locker under the right hand side of the defendant’s office desk with Detective Station Sergeant Cheung being present at the scene.

56. Besides, after the first video-recorded interview, Detective Station Sergeant Cheung and PW5 took a written cautioned statement from the defendant. During that time, Detective Station Sergeant Cheung indicated clearly to the defendant that the 9 keys were found upon search from the 3^rd drawer in the locker under his office desk(see question (17)). The defendant himself wrote down the answer “don’t know” but had never disputed the position from which the keys were seized. On the contrary, he only said the 9 keys were not found upon search from the locker under his office desk for the first time in the second video-recorded interview which took place after he had been taken by Detective Station Sergeant Cheung and PW5 to the premises on 1/F, 141 Temple Street to try out the keys and confirmed that among the 9 keys, there were keys that could open the main door and the rooms of the premises.

57. After considering the overall evidence, the court takes the view that had the 9 keys not been found upon search from the locker under the defendant’s desk, it would have been only reasonable that he should have brought it up there and then when he himself was writing the answers in the cautioned statement. In view of the above considerations, I accept the evidence of PW5. As regards PW5’s omission to mention some of the steps taken in the notebook or his witness statement, the court accepts his explanation that the steps in question were just matters of routine that did not require special record to be made. I find that PW5 had only misremembered the date on which he handed the sketch to the police constable in overall charge of the exhibits.

PW4 Sergeant Lee (transliteration), PW12 Woman Police Inspector Kwok and the defence witness

58. Both PW4 Sergeant Lee and PW12 Woman Inspector Kwok testified that they did not know that there was a quantity of keys in the tea table of the defendant’s office. In my view, even if there had always been a quantity of keys inside the tea table, this does not mean that there could not have been these 9 keys in the locker under the right hand side of the defendant’s office desk, or that PW5 must have lied or must have reason to lie.

59. I take the view that there is in fact no need to make a final finding on the evidence of Sergeant Lee and Woman Inspector Kwok in this regard. Whether they knew about the existence of that quantity of keys and whether Woman Inspector Kwok was clear that the defendant would also observe the trend of the vice business after work are questions irrelevant to the key issue that the court has to make a finding on. Besides, neither witness had dealt with the exhibits in the case or contacted the most important prosecution witnesses (that is PW1, PW2, PW3 and PW5).The prosecution has the duty to disprove the defence case. In my view, the prosecution has not been able to disprove beyond reasonable doubt the evidence of the defence witness. However, in view of the above considerations, I consider that no weight should be attached to the evidence of the defence witness as it does not touch upon the key issue either.

PW11 Detective Station Sergeant Cheung

60. As regards PW11 Detective Station Sergeant Cheung, he testified that when he first learned about the location in question, it was 3/F of 139 to 141 Temple Street. Therefore, when he cautioned the defendant, he mistakenly used this address. I note that in the first video-recorded interview, although the defendant mentioned that he had been to the 1/F of the building in question and stayed outside the door of the premises and the place between the staircases, Detective Station Sergeant Cheung still dwelled on the matter and asked the defendant repeatedly if he had ever been to 3/F of number 139. This exactly shows that at that time, Detective Station Sergeant Cheung had indeed been told that the location in question was 3/F of number 139.

61. After the first video-recorded interview, Detective Station Sergeant Cheung took a written cautioned statement from the defendant. He first recorded the wrong address that was used when the defendant was first cautioned, then he asked him questions with the correct address (that is 1/F, number 141).This piece of evidence shows that it was only then that Detective Station Sergeant Cheung got hold of the correct address and therefore changed the direction of the investigation to let the defendant answer afresh with the corrected address. In my view, what Detective Station Sergeant Cheung did was entirely correct. It was a fact that when the defendant was first cautioned, the address mentioned was indeed 3/F, numbers 139 to 141 and not 1/F, number 141.

Other witnesses

62. The evidence of the other witnesses does not concern the key issue. It does not affect the important question that the court has to make a finding on, that is, whether PW1, PW2, PW3 and PW5 were honest and reliable.

The cautioned statement of the defendant

63. Having carefully considered the cautioned statement of the defendant, I find that the exculpatory parts of it could not possibly be the truth of the matter. The defendant was an experienced police sergeant; it was not possible that he had not made any discussion with X regarding the question of charge before following her to go to the premises in question. After all, the evidence shows that it was common knowledge that the location in question was a vice black spot. The court does not accept at all what the defendant said under caution that at the time in question, he indicated that he would not accept X and left immediately. If what he said can possibly be true, there cannot be any explanation to the question of why X and Siu Lai left Temple Street hurriedly with their luggage. Less so can there be any explanation to the question of why the CCTV camera captured the image of the defendant following X and Siu Lai. The court attaches no weight to the exculpatory parts of what the defendant said under caution. In making this finding, the court bears in mind that the defendant has a clear criminal record and there is proof to show that his work performance was outstanding.

Finding on the credibility and reliability of the key prosecution witnesses

64. In view of the above considerations, the court finds that on the key issues, PWs 1 to 3 and PW5 were all honest and reliable.

Defence submissions

65. The court bears in mind that even if it refuses to accept that what the defendant said under caution might be the truth; this does not necessarily mean that he is guilty of the charge.

66. The defence submitted that the prosecution had not been able to satisfy the court from where exactly the 9 keys were seized. As the court has already found that PW5 was a credible and reliable witness, it does not accept the defence submission. However, even if the keys were indeed found upon search from the locker under the office desk of the defendant, this does not necessarily mean that the defendant must have got them from X. In this regard, I note that there was no precaution against theft taken at all in the way Lan Je dealt with the keys. And Lan Je did clearly indicate in her evidence that although 1 of the 9 keys could open the door of the premises, she was not the person who handed it X.

67. Be that as it may, it does not mean X must have lied when she testified that the keys were taken away by the defendant. X testified that the defendant drove her away and the image captured by the CCTV camera installed in the vicinity lends strong support to her evidence in this regard. Strong support can likewise be found in the evidence given by prosecution witness Ah Chat. In my view, the only purpose for the defendant to follow X was to ensure that she boarded a taxi and left. But he could not be sure that they would not head back. In my view, by taking away the keys, the defendant could obstruct X and Siu Lai from heading back to 1/F, number 141 to continue to use the rooms inside the premises. In this regard, I note that Lan Je testified that when she returned to 1/F, number 141 at 11:30am on 28 May 2014 to clean the place, she found that the main door and doors of rooms 4 and 5 were open. In my view, as long as X and Siu Lai did not have the keys for the main door and the rooms, they would not be able to use rooms 4 and 5 safely for the purpose of prostitution. Even if they closed the doors, people who had the keys could still open the doors to go in from outside with the keys, just as PW5 could open the relevant doors with the keys on 1 June when he tried them. I accept the evidence of X. The defendant took away the keys. It is not necessary for the court to make a finding on where in the end the keys had gone to.

68. The defence submitted that the police knew that the address in question was 1/F, number 141, but they deliberately misled the defendant, and the defendant knew that 3/F, number 139 was occupied by a decent family. Under caution, the defendant frankly admitted that he had been to the corridor outside the door frame and the staircase of 1/F, number 139. The defence argued that this showed that the defendant did not hide anything. In my view, it was all because Detective Station Sergeant Cheung had been given the wrong address of the scene. I cannot see how it would benefit the police or the prosecution to mislead the defendant.

69. The defence further submitted that the defendant did not have sufficient evidence to prove that X was engaging in prosecution, therefore, he left the scene without making any arrest. I reject this submission. I do not accept at all that it was possible for the defendant to follow X to the premises in question without having discussed the charge with her first. In this regard, all the defendant had to do was to ask X a simple question: “How much(?)” and X would no doubt tell him. Then the defendant could be sure whether or not X was engaging in prostitution and then could proceed to make investigation of her, and depending on the situation, to even arrest her.

70. When taking the written record of interview, the defendant was at the Recovery Room, 2/F, North Block, Kwong Wah Hospital, Kowloon. The defence said at that time, he was not at his fittest; therefore, he raised no query regarding the location from where the keys were found. I do not accept this. The defendant wrote down in his own hand his answers in the record of interview. If he was physically unfit for investigation, as an experienced police officer, he would naturally have brought this up with the police officers conducting the investigation. Besides, in the morning of 1 June 2014, the defendant took part in the process to try out the keys to see if they could open the doors of the premises in question. He had the second video-recorded interview immediately afterwards. He never complained that he was physically not well in the course of it. In my view, the defendant only disputed the location from where the 9 keys were found when he knew that PW5 had already confirmed that among the 9 keys, there were keys that could open the main door of the premises and the rooms inside them.

71. The prosecution produced in court the whatsapp messages exchanged between the defendant and Sergeant Wong. The content of the messages was that at 1:09, Sergeant Wong asked the defendant “entered which floor(?)”. At 1:10, the defendant replied: “139 Temple Street 1/F”. At 1:11, Sergeant Wong replied: “arrived”.

72. The defence argued that these messages indicated that at around 1:10, the defendant was at 1/F of number 139. But X testified that she left at around 1:25 with the intention of going back to the mainland. And Ah Chat also said he saw X at about 1:25 to 1:30. However, the video recordings of the CCTV camera showed that X and Siu Lai only walked in the street with their luggage trailing behind them at 1:57. Regarding the question of time, the court considers that as neither X nor Ah Chat checked the time immediately when the incident took place, the times they gave must be the result of deduction. On this question, what is most significant is that both X and Ah Chat said in their evidence that X and Siu Lai were at that time walking with their luggage trailing behind them, and the CCTV recordings also showed that they were leaving with their luggage trailing behind them. Therefore, whatever precisely was the correct time, they must be talking about the same incident.

73. The defence submitted that the men X and Ah Chat identified in the CCTV recordings and the photograph/s were not necessarily the defendant and Sergeant Wong. I do not accept this argument. I take the view that the CCTV camera accurately captured what happened when X and Siu Lai were leaving with their luggage trailing behind them. And in the course of giving his evidence, Ah Chat clearly pointed out that the two men were coming from behind X and Siu Lai. I notice that the quality of the CCTV recordings and the photograph/s was only average, it was rather difficult for the person making the findings of facts to identify the witness or the defendant from the video recordings or photograph/s, but the two witnesses experienced the events first hand, it is entirely possible and with sufficient basis that they could identify themselves and the people involved in the case from their build, clothing, movement, their distance from the witness and their respective positions in the video recordings and the photograph/s. In my view, X and Ah Chat did correctly identify the defendant and the man he was with, and they were the people in question they mentioned in their evidence.

74. The defence submitted that although Sergeant Wong was arrested, he was later not prosecuted and the prosecution elected not to call him to give evidence in court. In my view, this does not concern the issue that the court has to deal with, and the court should not speculate what his evidence would be had he been called by the prosecution or the defence.

75. The defence argued that there was no evidence or information to show which police officer X or Lan Je had contact with at 8pm on 28 May 2014. Nor was there evidence that X had disclosed the facts of the case in this interview. It was only at 10:40pm on 29 May 2014 that the one and only one witness statement of X was recorded at the police station. The defence complained that at the time of the case, not only did X not reject the defendant, she did not resist either. She did not report the matter to the police immediately afterwards. She only gave a witness statement to the police 26 hours after the incident. In my view, X came from the mainland and was not a highly educated person. At the time in question she was threatened and dared not resist. And shortly after the case had occurred, someone already told Lan Je that something had happened. Under these circumstances, there was neither excessive delay nor was it unreasonable that X only gave the police her witness statement 26 hours after the case had occurred.

76. The defence also submitted that Ah B had never shown up to tell the story. In my view, at the time in question, he was not present. The extent to which he could give evidence admissible in court is limited. The court cannot make any speculation on the evidence that he might give.

77. The other issues that the defence raised were all outside the core of the case. In the end, the defence asked the court to give special consideration to see if it could rule out the possibility that this was a case of frame-up by false accusation or a “prank”. Judging by the overall evidence, I reject this suggestion entirely.

Elements of crime

78. Paragraphs 35-63 of Archbold say as follows:

In Sin Kam Wah v HKSAR (2005) 8 HKCFAR 192, [2005] 2 HKLRD 375, Sir Anthony Mason NPJ reformulated the offence principally to take into account comments on the mental element made in Re V-G’s Reference (No 3 of 2003) [2005] QB 73.  The reformulation runs as follows:

“The offence is committed where: (1) a public official; (2) in the course of or in relation to his public office; (3) wilfully misconducts himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty; (4) without reasonable excuse or justification; and (5) where such misconduct is serious, not trivial, having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities. The misconduct must be deliberate rather than accidental in the sense that the official either knew that his conduct was unlawful or wilfully disregarded the risk that his conduct was unlawful. Wilful misconduct which is without reasonable excuse or justification is culpable.” (paragraphs 45-46 of judgment)

Verdict

79. Judging by the overall evidence, the court finds beyond reasonable doubt: 1. The defendant did have a conversation with X at Temple Street regarding the charge of sexual service. He knew full well that the price was $200 and that X was engaging in prostitution. 2. The defendant followed X into room 4, 1/F of number 141 where he ascertained from X again that the charge for sexual service was $200. 3. The defendant showed his warrant card and revealed police identity to X, he ordered X to produce her papers and learned that X came to Hong Kong from the mainland. 4. The defendant asked X to provide sexual service to him. X did so under duress. 5. In the incident, the defendant had told X that she would be locked up for 7 days, and he did not pay for the sexual service that he had obtained. Not only that, he also ordered X to leave Hong Kong within 3 hours or else she would be locked up for 7 days. 6. X therefore packed up and left the premises. In order to prevent X from returning to the premises in question to resume prostituting, the defendant took away X’s keys. 7. The defendant followed X to join another man. He/They followed X and Siu Lai to make sure that they boarded a taxi to leave.

80. In my view, there is no doubt that the defendant was acting in the capacity of a public servant, dealing with matters to do with his public duties which included taking action against prostitution. Without any reasonable excuse, he wilfully and intentionally culpably misconducted himself, that is, when knowing full well that X had breached her conditions of stay, not only did the defendant not make enquiries of X; he revealed his police identity to her to procure sexual service from her without paying for it afterwards. Not only that, he threatened X that she must leave Hong Kong within 3 hours or else she would be locked up for 7 days. Such misconduct was serious, not trivial, and the defendant knew clearly that it was a criminal offence. In making this finding, the court considered the fact that the defendant was acting in the capacity of a police officer, and as a police officer, he was duty-bound to enforce the law. The court rejects the defence of the defendant in its entirety and therefore finds that he had no reasonable excuse.

Conclusion

81. I find that the prosecution has proved all the elements of the offence that the defendant is facing beyond all reasonable doubt. I find him guilty of the charge.