HKSAR v. CHAN KWOK KEUNG

CACC 383/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 383OF 2006

(ON APPEAL FROM DCCC NO. 289 of 2006)

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REASONS  FOR  JUDGMENT

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Stuart-Moore, VP (giving the reasons for judgment of the Court):

1.  On 29 August 2006, the applicant was convicted on four charges (1, 3, 4 and 5) of indecent assault following a trial in the District Court before Judge Chua.  He was acquitted on the 2^nd charge.  The applicant was sentenced to a total term of 3 years and 3 months’ imprisonment.  He sought leave to appeal against conviction.  At the conclusion of the hearing, we dismissed the application and we now give our reasons for so doing.

2.  The complainant, an Indonesian domestic helper, alleged that she had been indecently assaulted in February, March and April 2005 and twice in May 2005, once in the early part of that month and once on 25 May.  When the judge acquitted the applicant on the 2^nd charge, relating to the offence allegedly committed in March, she stated that this was because the complainant may have confused this incident with another one because of the material difference between her account to the police and her evidence in court.  The complainant had referred at one stage of her testimony to “six incidents” which is where the confusion may have arisen, but the judge did not regard the discrepancies in the complainant’s evidence concerning the 2^nd charge as reflecting adversely on her integrity as a witness.  This is important in the present context as although three other witnesses (all of them police officers) were called by the prosecution at trial, their case ultimately rested entirely upon the complainant’s evidence.  She was about 20 years old when she began to work for the applicant in January 2005 and had previously completed a contract of service in Singapore.

3.  The complainant’s evidence, in short, was that on the first occasion the applicant made an indecent assault upon her, she was washing up in the kitchen at 6.00 am.  The applicant came up behind her, grabbed her hand and told her to follow him.  He led her, without holding her, to the bathroom and there he took her hand again and exposed his penis saying: “touch it”.  She was very scared and ran away.  The complainant had not previously mentioned in any of her (four) statements to the police or in her evidence-in-chief that the applicant had spoken to her in the course of this incident and she did not dispute that the first time she had told anyone that the applicant had said “touch it” was in the course of cross-examination.  The complainant also agreed that, at a time when she was very tired and frightened, she had at first complained to the police about only three incidents and, in that first account, she had not referred to this incident at all.

4.  All of these inconsistencies were, in one way or another, referred to by the judge in her analysis of the evidence and the law in relation to charge 1.

5.  The complainant said that she believed the incident which formed the subject of the 3^rd charge took place on the night of either 27 or 28 April when she was alone with the applicant at home.  Again on this occasion, the applicant allegedly touched the complainant from behind her, this time on her breasts.  He said that he wanted to sleep with her.  She expressed her unwillingness and the applicant threatened to fire her.  He told her to go to her room.  Soon afterwards, the applicant came to the complainant’s room and told her to lie down.  He then took off his underpants and the complainant noticed he was wearing a condom.  He then began to undress the complainant but she pressed her hand on her trousers and would not let him remove them.  After that, the applicant went into the bathroom and came back into the room without the condom.  He then lay on top of the complainant and asked her to use her mouth.  He ejaculated onto her abdomen.  She then changed her clothes before the applicant returned to apologise and to offer her $20 which she refused to take.

6.  In cross-examination, the applicant said that she had recorded in a notebook the date when this occurred but, as this was no longer in her possession and as she did not know where it was, she was unable to recall the date.  She recalled that the applicant’s wife, Mrs Chan, had gone to the Mainland that day as she had carried her suitcase in the morning.  However, as to this detail, Mrs Chan’s travel records were before the court as part of the admitted facts and these showed that while Mr Chan had gone on a one-day visit to the Mainland on 27 April 2005, returning on 28 April 2005, Mrs Chan had remained in Hong Kong.

7.  There were other weaknesses in the complainant’s evidence on the 3^rd charge relating to the differences between her accounts to the police and her testimony in court concerning where the applicant had put the condom on and whether the applicant had asked her to fondle him before he ejaculated.  In regard to one of the discrepancies, which related to her first statement, she pointed out that it was done in English and that her standard of English was not very good.  The complainant also changed her account in cross-examination that when she refused to allow the applicant to have sex with her he had threatened her.  She said this happened after she refused to perform oral sex.

8.  Again, all of these contradictions in the complainant’s evidence were referred to by the judge in her Reasons for Verdict.

9.  The events concerning the 4^th charge allegedly began when the complainant was awoken from her sleep at 5.30 am in her room.  The applicant was wearing a T-shirt and unbuttoned shorts from which his penis was protruding.  The applicant said that he did not want her to tell his wife (who was sleeping) and that he would fire her if she did.  The applicant then sat on the bed and the complainant was told to sit on the floor after he had told her he wanted her to do “that” with her mouth.  This episode lasted a short time.  The applicant then pulled up his shorts and took the complainant into the bathroom where he told her to rub his penis.  When she did this, the applicant ejaculated into the lavatory.  The applicant washed before returning to his bedroom.  Prior to leaving for work, the applicant offered the complainant $20 which she again refused to take.

10.  Again, in cross-examination the complainant’s account as to the 4^th charge altered a little on detail.  She said at this stage that when oral sex was performed, the applicant wore a condom and that he only removed it in the bathroom.  However, in her 4^th statement to the police, it was pointed out to her that she had said there was no condom used.  She had also said in a statement to the police that the applicant had asked her to “make love to [him]” whereas in her testimony she thought that he had not done so although she could not recall whether or not he had said this.

11.  The judge related all the discrepancies in the complainant’s evidence in her assessment of the evidence on this charge.

12.  The 5^th charge was alleged to have occurred on 25 May 2005 at 1.00 am.  The applicant came into the complainant’s room and she was awakened as she felt his hand being inserted into her clothes.  She asked him what he was doing.  He told her not to make a noise and that he wanted to sleep with her.  She refused and he repeated his request, threatening to fire her if she refused.  Again he began to undress the complainant and he then asked for oral sex.  On this occasion, he lay on top of the complainant and ejaculated onto her stomach.  He then washed and returned with a $20 note which the complainant again refused to take from him.

13.  Minor differences in the sequence and the nature of the events involved in the allegation covered by the 5^th charge emerged in cross-examination when the complainant’s earlier witness statements were put to her which the judge set out in the Reasons for Verdict.  There is no need for us to repeat the judge’s synopsis in this regard.

14.  When the applicant, aged 42, was arrested, he replied: “I deny”.

15.  The applicant did not give evidence at his trial.  His wife, Mrs Chan, on the other hand did testify.  The judge disbelieved various peripheral aspects of the evidence she gave which were no doubt intended by Mrs Chan to cast the complainant, and her credibility in particular, in a poor light.  Perhaps the most important of these points was Mrs Chan’s suggestion that her son slept in the complainant’s room on the upper bunk.  Mrs Chan added that because her son was asthmatic she would sleep with her bedroom door open and her head at the foot of the bed in order to be easily alerted.  The judge believed the complainant’s account that in fact Mrs Chan’s son, aged four, slept in his parents’ bed almost all the time and that they kept their door shut.

16.  Mr Grossman SC raised two substantive grounds of appeal on behalf of the applicant.  These alleged, first, that the judge had erred when finding that the complainant was a credible and reliable witness in that the judge had failed to take into account:

“	(a)	PW1 only complained of three incidents of indecent assault when she was interviewed by two different woman police constables in the early hours of 29th May 2005 and she had no communication problem with the woman police constables.
	(b)	No satisfactory / convincing explanation was offered by PW1 as to why she later increased the number of incidents to five on 2nd June 2005.
	(c)	PW1’s allegation that the Applicant’s wife was not in Hong Kong when the third incident (i.e. the third count) took place was disproved by the travel record of the Applicant’s wife.
	(d)	PW1’s testimony in count [sic] was much materially inconsistent [sic] with states [sic] her various witness statements [sic] given to the police.”

17.  As we have already indicated, the judge had well in mind all the matters covered by this ground as well as a number of other smaller points of discrepancy.  The judge set out the evidence concerning the taking of the complainant’s witness statements over which so much time had been occupied in cross-examination.  The judge’s summary was as follows:

“	1.	Between 1.40 and 4.30 am on 29 May 2005, after the preliminary interview, PW4, WDPC55653, took the first written statement from [the complainant]. She said despite her distressed state, step-by-step, in very simple English, [the complainant] provided more details of the three incidents when she was required to perform oral sex on the defendant.
	2.	On 2 June 2005, [the complainant’s] second statement, given with the use of a translator, mentions for the first time the two preceding incidents before she was made to perform oral sex.
	3.	On 11 December 2005, [the complainant] was asked questions regarding the first and fifth incidents and what happened on 28 May before she left the Chans’ home.
	4.	On 28 December 2005, [the complainant] was questioned about the second incident. She gave the same version she had given to the police in her second statement but this is different from what she said in court.” (Appeal bundle p. 17)

It is abundantly plain that the judge had well in mind the evidential difficulties arising from the witness statements made by the complainant and the reasons why the complainant had contradicted herself a number of times.

18.  The judge also observed that she could place no reliance upon what the police officer had recalled was said between the complainant and herself “in the absence of an interpreter when [the complainant] was in a distraught state”.  In addition, the judge referred to the evidence about the complainant’s eventual departure from the Chans’ home, when she had taken with her only a wallet and her diary saying that Mrs Chan had earlier been angry with the complainant for not preparing dinner.  She had yelled at the complainant and asked for the return of her Octopus Card and house keys and had insisted that the complainant wrote a letter of resignation.  The letter itself (Exhibit P4) was written on both sides of a piece of paper.  On the reverse side, the complainant had written that she would “go to the sea to die”.  Mrs Chan, who called the police to report the complainant’s absence, said that she had only read this message after the police arrived.  In her letter, the complainant said: “I have sleep three times with your husband” which, as the judge was right to point out, was not evidence of the truth but rather provided an indication of the standard of the complainant’s English.  It was accepted at trial that there was no suggestion whatsoever of the applicant having had sexual intercourse with the complainant.

19.  It is plain, from a detailed reading of the transcript of the complainant’s evidence which had enabled the judge to assess first-hand the complainant’s truthfulness over the two days she had spent in the witness box, that the longer the cross-examination went on, the more clearly the complainant was shown to have been speaking the truth.  The judge was well aware that the complainant’s credibility was the crucial issue to be decided and, as she said in her Reasons for Verdict: “Only two people know what, if anything, had taken place between the defendant and [the complainant].  Only one has spoken”.

20.  Later, in words which Mr Grossman criticised as giving the appearance of reversing the burden of proof onto the applicant, the judge went on to say:

“	38.	At issue is whether the defence position is correct, that [the complainant] soon found herself so unhappy working for the Chans and the son who would not listen to her and sometimes hit her, that she fabricated these allegations in order to escape from her two-year contract of service. Did the inconsistencies in her various accounts stem from an inability to remember all her lies? Was she making things up as she went along, causing differences in her evidence.
	39.	Or, was it the case that when she was threatened into performing repugnant sexual acts, she was stupefied by these traumatic events, she failed to note details such as whether the defendant employed a condom or not; and the accurate progression of one act to another; and in attempting to recall details of more than one incident, made honest mistakes in her recollection; Had her recollection of the different incidents become jumbled due to fear, shame, confusion and the effluxion of time.
	40.	[The complainant’s] evidence was undoubtedly full of discrepancies. It needs to be carefully scrutinised. There was no corroboration of her evidence.  Apropos to [the complainant’s] evidence, Stock J, as he then was, in R v Kwong Wing On and Chung Wai Man MA57[4] of 1996, suggests the correct approach to discrepancies:
		‘	A microscopic dissection of a transcript will always uncover a discrepancy, a failure to answer a question, some inherent improbability or other, a piece of evidence not included in statements to the police, and a myriad of bits and pieces upon which to build pages of grounds of appeal. In the real world, and even with truthful witnesses, these discrepancies, improbabilities and omissions will occur. Indeed if they do not, then the evidence is attacked as being artificial or collusive ... A realistic attitude must be encouraged, and the approach to such attacks is to ask whether there has been material and significant discrepancies, improbabilities or omissions, such as would lead or should lead a tribunal to doubt credibility on central facts.’
	41.	At the end of the day I was convinced [the complainant] was doing her best to answer all questions honestly. Sometimes, in genuinely trying to recall a particular aspect of the incident, she simply was unable to provide answers.
	42.	While a recent complaint is not evidence of the truth, on the other hand, the lack of complaint in this case did not cause me to doubt her veracity and lack of consent.
	43.	The defendant had threatened if she told his wife she would be fired. She had to know if she complained to Mrs Chan of the defendant’s inappropriate behaviour, Mrs Chan would have dismissed her forthwith. If she complained to the agency and they reported this to Mrs Chan, she would be branded a liar and dismissed. She rarely had days off. What real contact could she have made with someone she could confide in, who could give her sensible advice.
	44.	However, it is not enough that I believe [the complainant] was at·all times attempting to recall truthfully what had happened. I must consider whether her evidence, despite the discrepancies, is sufficiently reliable as to amount to proof beyond reasonable doubt.
	45.	I am satisfied the circumstances of this case is not one where all the charges must stand or fall together.” (Appeal bundle pp. 29-30)

21.  The judge then convicted the applicant on four out of the five counts.  We are satisfied that the judge’s approach to what had to be proved was correct. In no sense had the judge been under the impression that the applicant had the burden of proving his innocence.

22.  The 1^st ground of appeal was, in our opinion, without merit.  The judge had carried out a proper appraisal of the evidence and the suggestion that she had not done so was unwarranted.  Ms Leung, for the respondent, put the matter succinctly when she submitted that if this had been a summing up to the jury, all the major discrepancies had been covered by the judge and all that remained was a decision as to whether the complainant could be relied upon to establish guilt to the required standard.

23.  In his oral submissions, Mr Grossman pressed the suggestion that the judge had not explained why she believed the testimony of the complainant. He argued that it was not good enough in the circumstances of this case for the judge merely to say that she believed the witness. She ought to have explained why, in the light of the discrepancies, she believed her.

24.  The question of the adequacy of reasons by a judge is always contextual.  This is a case in which the judge heard and saw the complainant over a period of two days. That in itself is not necessarily an answer to a complaint of inadequate reasons.  However, in this case, the complainant gave evidence in response to highly detailed questioning.  We have read all that evidence and we feel bound to say that, although we have not had the advantage of seeing the complainant, the nature of her evidence and the extraordinary detail of it, her reactions to suggested inconsistencies or omissions, her concessions as to what she could not recall and the reasons for this, is such that the longer it progressed the more compelling it became.  In any event, a realistic reading of the Reasons for Verdict shows that the judge made quite clear not only that she believed the complainant but also why she did so.

25.  The judge explained why she accepted explanations of suggested omissions in the first interview.  This was an interview which was conducted when the complainant was not only distraught (a fact that can hardly be gainsaid) but also very tired (it was at 1.45 am); there was documentary evidence that supported her story about the paucity of leave given to her and what days off she had taken; and the complainant did not have a streetwise personality.  Furthermore, there were sound reasons to be attributed to her inability to recall detail and for the making of honest mistakes, such as shame, fear and the lapse of time. These points having been made, we fail to see what more the judge could sensibly have said other than that, on the central issues, she believed the complainant.

26.  The 2^nd ground amounted to a complaint that the judge, in accepting the complainant’s evidence, had failed to make an adequate assessment of the evidence of Mrs Chan “who sought to give evidence to discredit [the complainant]”.

27.  As we have already indicated, the judge was mindful of the points made by  Mrs Chan and the potential importance of the evidence she gave.  The judge provided sound reasons for disbelieving Mrs Chan on a number of issues which we do not propose to repeat.

28.  There was no merit in this ground.

29.  We were satisfied that the convictions on charges 1, 3, 4 and 5 were neither unsafe nor unsatisfactory.

30.  Accordingly, for the reasons we have given, the application was dismissed.

31.  We would add, lastly, that there is an aspect of this case to which we feel compelled to draw attention.  It was common ground that a salary of $3,250 was payable to the complainant under the contract of employment.  However, for the first seven months of her engagement, $3,000 out of this had to be remitted to the Indonesian agency that had secured her employment.  This left the complainant, for seven months, with a monthly salary of only $250.  It might be thought by many that this is unconscionable although anecdotal evidence is that it is common.  It is not, of course, any part of our function to draw attention to other aspects of the complainant’s working conditions as a domestic helper that might be said to be a cause for concern in this or other cases, as this is a criminal matter and it is not for us to promote particular causes of any kind.  However, in one direct sense, this is a factor which has validity in relation to the offences committed by the applicant.

32.  Those who are engaged from abroad as domestic helpers are in a vulnerable position most especially where they are in truth, by reason of contractual terms and in some cases by reason of the existence of letters of resignation they are forced to sign, not free agents. They are vulnerable to abuse of many kinds including, sometimes, sexual abuse by those who are tempted to offend in that way and who may offend more readily because it is known that the likelihood of complaint is lessened materially by the consequences to the employee.  So it was in this case.  The complainant faced the prospect of having to pay a large sum of money to an agency but, if her employment was lost, she would be left in the position that she would be unable to pay her debt.  The temptation to offend by those so inclined is greater in such circumstances, and the chance of a complaint is less.  None of this is to say that all such complaints must necessarily be true but oppressive conditions of service, such as those in this case, tend to be a regular feature of cases where the complaint proves to be true. It is a matter to which policy-makers might wish to have regard.