HKSAR v. LAU KA YEE MICHAEL

CACC 78/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 78 OF 2003

(On Appeal From District Court Criminal Case No. 603 of 2002)

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REASONS FOR JUDGMENT

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Hon Cheung JA (giving the judgment of the Court) :

1. We dismissed the applicant's application for leave to appeal against conviction. These are our reasons.

The convictions

2. The applicant was convicted by HH Judge Maggie Poon in the District Court of four offences, namely two charges of indecent assault, one charge of gross indecency and one charge of attempted buggery. He was sentenced to a total sentence of four and a half years' imprisonment.

3. He applied for leave to appeal against conviction. He had originally applied for leave to appeal against sentence as well but had since abandoned that application.

The applicant

4. The applicant was 31 years of age at the time of the offence. He was formally an ordained priest of the Catholic Church in Hong Kong. He joined the Church as a seminarian in 1983. He became a deacon in July 1991 and ordained as a priest in December 1991. He was suspended from duty in June 1995 and in September 1995 was asked by the Church to resign from his post. The applicant resigned.

The complainant

5. The complainant was 15 at the time of the offence. He was born of a Catholic family and attended the St. Joseph's Anglo Chinese School in Kowloon Bay ('the School'). It was a Catholic boys school. In September 1990, he left Hong Kong for study in England in a co-educational school.

The offences

6. The evidence led by the prosecution was to the following effect.

7. The complainant was an altar boy of St. Joseph's Church in Kowloon Bay while he was in Hong Kong. He knew the applicant who was in charge of the activities of the altar boys association.

8. In the Christmas of 1990, the complainant returned to Hong Kong for holiday. On the evening of the first Friday in January 1991, the complainant was invited by the applicant to his room in the priests' quarters in the School. They talked about the complainant's family and his life in Hong Kong and England. After a while the applicant persuaded the complainant to stay the night at his room. The applicant talked to the family of the complainant on the telephone and the complainant was allowed to stay over night with the applicant.

9. The conversation then turned to the complainant's new school. The complainant said he found the girls at the new school to be attractive. The applicant then said he was worried that the complainant might get the girls pregnant and asked the complainant whether he knew anything about sexual intercourse. When the complainant said no, the applicant told him that 'I must do sexual therapy on you'.

10. The applicant then asked the complainant to take a shower in the bathroom attached to his room. While the complainant showered, the applicant took off his clothes, stood behind the complainant and used his hand to shake the penis of the complainant several times. The complainant was then told to put on his clothes and wait for the applicant in bed. While they were in bed, the applicant again used his hand to shake the complainant's penis many times. (The first charge of indecent assault) Both of them did not have their clothes on when they were in bed.

11. The complainant was sleepy and fell asleep but throughout the night the applicant touched his penis. The applicant also asked the complainant to sleep on top of him. He asked the complainant to treat him as a woman, and further indecency took place. (The charge of gross indecency)

12. Then in the morning, the complainant felt that the applicant made an attempt at buggery, did so three times. For the first two times, the complainant asked him to stop and the applicant did stop. On the third occasion, the complainant yelled 'Stop' very loudly and the applicant eventually stopped. (The charge of attempted buggery). At that stage the applicant was very emotional and angry.

13. Throughout the night the complainant was feeling very uncomfortable and was disgusted with what the applicant had done to him. But he did not say anything and did not leave because he did not know what was happening. He said that he did not know of homosexual activities. He trusted that the applicant was doing therapy for him. He also feared the applicant might hit him if he insisted to leave. He also said that it would be dangerous to go home alone at night.

14. When the complainant reached home that day, he did not tell his family what happened as his father was then ill with cancer and he was very confused and uncomfortable with what had happened.

15. On the next day which was a Saturday, the complainant decided to go back to see the applicant and ask him to swear for what he did to him the previous night. The complainant thought that since the applicant was a priest and if he should swear on what he had done, then what had taken place was not a sin and was not evil.

16. The applicant, however, did not swear. He said that 'Ancient people who swore and told lies under oath were punished by God'. The applicant then asked him to leave.

17. The complainant returned to school in England on the following day and the applicant went to the airport to see him off. After he returned to England there was correspondence between him and the applicant. They also talked on the telephone. He kept to himself as to what had happened to him.

18. In May 1991, the complainant had to return to Hong Kong for a short period because his father had died of cancer. The applicant met him at the airport and made arrangements for the funeral. He stayed in Hong Kong for a few days only. During this time he did not tell anybody as to what had happened. He said he was a kid at that time. He did not know what the applicant did was right or wrong. He did not wish to make false accusation against the applicant who was a priest. He did, however, warn his elder sister and younger brother to avoid the applicant.

19. The complainant had a nervous breakdown in the summer of 1991. He felt great pressure because he said the applicant had hurt him and he also lost his father. However, he did not have medical treatment immediately and was only able to receive proper psychiatric treatment later on when he returned to school in the autumn of 1991. He was diagnosed to be suffering from paranoid schizophrenia.

20. In June 1992, the complainant returned to Hong Kong. He was met by the applicant at the airport. The applicant was then the head of the School and was still in charge of the altar boys association. The evidence was that on one occasion during the summer, the complainant went to the applicant's bedroom again. At that time he was taking his medicine and he could not remember why he went there. In the bedroom the applicant asked the complainant to take off his trousers and underpants. He then used his hand to touch the complainant's penis several times. (The second charge of indecent assault)

The subsequent events

21. After the summer the complainant continued with the education at the School in Hong Kong but only for a short period until 12 October 1992. Around this time, he told his family he was molested by the applicant. For that school year he stayed in Hong Kong and received psychiatric treatment. He also took public examinations and returned to England the following autumn in 1993 and completed his Form 6 education there.

22. While he was in England he told his guardian what had happened to him and he realised then that he had been sexually abused by the applicant.

23. On 30 June 1994, he returned to Hong Kong and a few days later on 2 July 1994 he went to the Wong Tai Sin Police Station to make a complaint but no action was taken by the police.

24. In January 1995, the complainant took up employment in Hong Kong. He had known a Catholic priest Father Chiu Bit-shing ('Father Chiu') for a long time. In 1995, he went to see Father Chiu. He had two meetings with Father Chiu and told him about the events in 1991 and 1992. The conversation was tape recorded and Father Chiu told him the contents of the tape was brought to the attention of the late Cardinal Wu Cheng-chung ('Cardinal Wu').

25. Not long afterwards the complainant was accompanied by Father Chiu to meet the head of the Holy Spirit Seminary.

26. At about this time the complainant had also spoken to reporters of the Apple Daily newspaper about how he was sexually abused by the applicant and that the church did not take action on his complaints. The complainant told Father Chiu that he had spoken to the newspaper reporter. He said that Father Chiu told him this would affect the reputation of the Church and he would handle the matter.

The meeting

27. The applicant's testimony was that Father Chiu then organised a meeting. The meeting was held in a meeting room of a church. Present at the meeting was Father Chiu, the applicant, the complainant and a friend of the complainant who was there to support him. The applicant said that Father Chiu wanted him to see the applicant face to face and tried to persuade him not to put the case to the newspaper.

28. At this meeting the complainant related what he had told the reporter. The applicant begged him not to put the story to the newspaper. He claimed that he himself was sexually abused by somebody while he was very young. He admitted that he had hurt the complainant sexually. The applicant further said that he had hurt another altar boy.

29. Father Chiu also asked the complainant to allow him to tell the Church members what had happened to him instead of putting the case to the newspaper.

30. The applicant was crying and asked to be forgiven for hurting the complainant.

The newspaper report

31. After the meeting the complainant still wished to put the case to the newspaper as he considered the applicant to be dangerous to stay in the Church as a priest and causing danger to other children.

32. A newspaper report on the sexual abuse of an altar boy by a priest appeared on 25 June 1995.

33. After that report, the complainant remained in Hong Kong, studied for his A level examinations and thereafter took up employments in Hong Kong.

The 1999 report

34. In May 1999 he again made a report to the police but again no action was taken by the police.

The 2002 event

35. In May 2002, the complainant watched a television programme about complaints of sexual abuse made against members of the Church. It was stated in the programme that no complaints had been received by the police.

36. The complainant was not happy with this. Two days later, he went to the police again and gave a witness statement. The charges were later laid against the applicant.

The applicant did not give evidence

37. The applicant did not give evidence at the trial but called a psychiatrist to give evidence on the mental state of the complainant. It is apparent from the cross examination of the prosecution witnesses that the applicant denied that he had sexually abused the complainant in 1991 and 1992. He further denied that he had said that he had sexually abused another altar boy.

The exceptional features

38. This case has some exceptional features. First it involves complaints of sexual misconduct. This is well recognised to be an allegation which is easy to make but extremely difficult for a person to refute.

39. Further the complainant said that he was first sexually abused by the applicant in January 1991 and then later in the summer of 1992 but only told his family about this matter in October 1992 (although he did warn his sister and brother to avoid the applicant in 1991). He only made a report to the police in July 1994 and then only later on 4 May 1999 and 2 May 2002. There was a long period of delay.

40. Added to this was the fact that the complainant also suffered from the mental illness of schizophrenia. He experienced his first breakdown in the summer of 1991. He was under treatment by psychiatrists in England and in Hong Kong since June 1992. He was hospitalised in the Castle Peak Hospital twice in 1994 when he was experiencing hallucination. The first happened from 4 to 25 July 1994 and then from 3 August to 26 September 1994. Even when he saw the psychiatrist in England in 1992 and the psychiatrists in Hong Kong also in the same year, he did not tell them that he was sexually abused by the applicant. This complaint was only recorded in the medical records of Castle Peak Hospital where it was stated that he had complained to the Police in 1994 that he had been raped by a priest.

41. A real question arose as to whether his complaint of being sexually abused by the applicant arose out of a deluded mind. In fact this formed the subject matter of the appeal when it was argued that the judge had failed to properly assess the evidence of the applicant and the medical evidence called by the prosecution and the defence. It was said that the judge was wrong to attach weight to the demeanour of the complainant.

The admission

42. Had this case simply rest on the evidence of the complainant and considering the matters we had highlighted earlier, one is indeed left with a sense of unease of whether the allegations of sexual abuse were mere fabrications of someone who was suffering from mental illness.

43. However, the case does not simply rest like this. A very important matter is the meeting organised by Father Chiu in which the applicant had asked for forgiveness in hurting the complainant. The judge had taken this matter into account. She treated this as an admission by the applicant of the complaints.

44. The applicant obviously recognized the significance of this event and challenged the admissibility of the evidence in the court below and in his appeal. He further argued that the judge should have exercised her discretion and excluded it as evidence in this case. After conducting a trial within a trial of this issue, the judge admitted it as evidence. This is a topic we will now examine.

Father Chiu

45. The prosecution had also called Father Chiu as a witness whose evidence was accepted by the judge. Father Chiu had known the applicant since 1985 when they were students in the seminary. They were friends. He had known the complainant since March 1990 when he was assigned to work at the Church. In 1995 the complainant telephoned him and he had two meetings with the complainant. Father Chiu had informed Cardinal Wu of his conversations with the complainant. Cardinal Wu then appointed another priest, Father Lawrence Yu ('Father Yu') to handle the matter. Father Yu was to interview the complainant and the applicant and he asked Father Chiu to arrange a meeting with the complainant. Later on Cardinal Wu appointed the Vicar General, another priest and Father Chiu to deal with the matter concerning the publication of the newspaper article.

46. Father Chiu arranged the meeting in June 1995 with the complainant and the applicant because the applicant had telephoned him that the Apple Daily wished to interview him (i.e. the applicant) and he, the applicant, wished to have a meeting with the complainant in order to persuade the complainant not to publish the interview he (i.e. the complainant) had with the Apple Daily.

47. At this meeting Father Chiu asked the complainant and the applicant to tell their stories. The applicant pleaded to the complainant and asked him to forgive him. He admitted he was wrong. He also mentioned that when he himself was young, he had also been sexually abused by somebody. He also asked the complainant to stop the article from being published. The applicant admitted that he had hurt the complainant.

48. The complainant was emotionally upset and verbally abused the applicant with foul language. The applicant continued with his dialogue with an attitude of begging for forgiveness. Father Chiu acted as a middleman. At the end the applicant was also emotionally upset and was crying badly. Father Chiu had to calm down both of them. He said that the applicant did not mention that he had abused another altar boy.

49. At the end of the meeting, the complainant indicated that he would consider stopping the publication but did not promise definitely he would stop the publication.

50. On 23 June 1995, the complainant told Father Chiu that he had told the newspaper not to publish the article. Father Chiu then called the reporters not to release the article. On 24 June 1995, the reporter said the draft would be finalised and printed at 12 noon so that they would forward it as soon as possible. From then on until midnight Father Chiu was not able to reach the reporters.

51. It is clear from this evidence that the applicant was well aware of the allegation that had been made against him by the complainant. It was an allegation of sexual misconduct. The applicant had asked for the meeting to be organised so as to persuade the complainant from publishing his allegations to the press. The applicant had made no attempts to protest his innocence and instead at the meeting admitted he had hurt the complainant and asked for forgiveness. This is an admission of the clearest kind that he had indeed sexually abused the complainant. This is the strongest refutation that the complainant had made up a story of sexual abuse out of fragments of his imagination because of his mental illness.

52. From the point of view of the complainant, no doubt it was a meeting arranged by Father Chiu and considering the matters that had been raised at the meeting, to him the purpose was to protect the Church's reputation and to give a chance to the applicant.

53. The complainant's evidence does not cast doubts on Father Chiu's evidence who had indeed organised the meeting but at the request of the applicant. Father Chiu's position was that he was indeed concerned with the reputation of the Church but he also said this :

‘ I respect the view of the complainant because the interview was with him and not with Cardinal Wu. So if he wanted the article to be published let it be published. If he did not want it to be published then let it not be published. I had never received any message that you just mentioned expressly or impliedly from the Church.'

54. The message Father Chiu referred to was the suggestion made by defence counsel at the trial that if possible, an amicable settlement is better than a publication in the Apple Daily for a priest of the Church.

55. It was suggested to the complainant and agreed by him in cross examination that Father Chiu had said that irrespective of whether the allegations were true or false the ideal solution would be for an apology to him. This suggestion was not put to Father Chiu and considering his response to the suggestion we had earlier mentioned this could not possibly be the purpose for which the meeting was organised.

56. In our view it is a totally unbelievable proposition and so inherently incredible that Father Chiu would arrange a meeting so that a priest should be asked and in fact agreed by him to make an apology for an alleged sexual abuse of an altar boy regardless of the truthfulness of the allegation.

57. One of the grounds of challenge to the admissibility of the admission by the applicant was that he was induced to make the admission to a person in authority, namely Father Chiu. In our view once the factual basis of the meeting had been identified, then this challenge really falls apart. It was the applicant himself who wished to persuade the complainant not to publish the newspaper article. There was no inducement on anyone's part except his own hope that the article would not be published.

The discretion to exclude

58. The Court indeed has the discretion not to admit an otherwise admissible statement in order to ensure a fair trial for the defendant : Secretary for Justice v. Lam Tat Ming & Another [2000]3 HKCFAR 168. The principle to apply is whether the prejudicial effect of this evidence is out of proportion to its probative value.

59. The admission here is clearly relevant. The probative value is clear. It confirms the complaints by the complainant that he had been sexually abused by the applicant. This admission is clearly prejudicial to the applicant in the sense that it destroys his defence of innocence. But it is not prejudicial in the sense that it affects his fair trial. It is true that there was no contemporaneous records of the meeting which had taken place eight years before the trial. But while details may be blurred by the passage of time, clearly it was the main topics raised at this meeting that counts. It was a meeting made between an accuser who said he had suffered in the hands of the accused. In our view the topics raised must have a lasting impression on the participants of the event, in particular the complainant and the applicant. We do not consider that the passage of time and lack of record of this meeting are matters so prejudicial to the applicant that the judge should have excluded this highly probative evidence.

Reliability of the complainant's evidence

60. Mr. Duncan, counsel for the applicant had addressed us in detail about the inconsistencies of the complainant's evidence in the grounds of appeal. There were no doubt discrepancies between the complainant's evidence in court and his statement to the police. This is understandable and one would not expect a witness to repeat word for word the contents of his statement. What is clear in this case is that despite the lengthy cross-examination, the complainant had been consistent with the evidence of the various acts of sexual misconduct by the applicant. His reticence to come forward immediately after the abuse does not cast doubt on his evidence. While he was clearly troubled by what had happened to him, he was then only 15 years of age and it was only after he had discussed the matter with his guardian a few years later then he realised he had been sexually abused and reported the matter to the police on his return to Hong Kong in 1994. As a matter of fact in 1991 he had told his elder sister and younger brother to avoid the applicant. This evidence was confirmed by his elder sister.

61. It was mentioned in the report of Dr. Wong Man Kwong, the psychiatrist, that the complainant claimed that the first sexual offence took place when he was invited by the applicant to discuss his grief over his father's death from cancer. The admitted facts showed that the complainant's father died in May 1991. This was after the first offences had taken place. The complainant was not questioned about this at the trial and was not given a chance to clarify this.

62. The complainant's complaint against the applicant was done out of a sense of public duty. He considered that the applicant was a danger to the Church and to the other children. This sense of public duty was confirmed by the two psychiatrists who gave evidence at the trial. In fact both of them agreed that victims of sexual offences, may, out of a sense of shame, choose to keep the secret for a long time without revealing it.

63. In our view this explained why the applicant did not reveal the abuse immediately.

Assessment of medical reports

64. Further in our view the judge was correct to prefer the evidence of Dr. Wong to that of Dr. Chung. Dr. Wong was of the view that the complaints of sexual abuses were not delusions while Dr. Chung said that they were. Dr. Wong had been treating the complainant since October 1995 while Dr. Chung only prepared an assessment of the complainant based on the written medical reports and his observation of the complainant giving evidence in court. He had not interviewed the complainant at all.

65. Although Dr. Wong said that it was possible that the complainant's recollection of past sexual abuse was delusional, he maintained that it was not likely that the complainant still had the delusion because first, the complainant was observed to be with full function during relapses; this is different from other patients with predominately delusional symptoms who have persistent delusional ideas and second, the quality of his recollection of the details did not suggest a residual delusion. The applicant was aware that he had suffered a psychiatric breakdown and had hallucinations in the past but realised that he had to get on with his life. He was driven by a sense of public duty rather than anger or frustration.

66. In our view the judge had not misunderstood the medical evidence. Clearly a doctor who had been monitoring the progress of a patient over a long period of time was in a better position to assess his overall function and the nature of his allegations.

Disadvantage of the defence

67. Mr. Duncan also submitted that the defence was hampered because there was no documentation available from the police pertaining to the alleged report by the complainant in July 1994; recordings of the two meetings between Father Chiu and the complainant had been erased; and the six-page statement of the complaint made to the police in 1999 was destroyed. According to Father Chiu the tapes were erased deliberately because first the matter was over a long time ago : the applicant had resigned from the Church and the complainant had forgiven him; second the tapes were no longer useful as prosecution was not intended.

68. The judge in her assessment of the evidence had clearly taken into account the disadvantage of the applicant in this case. Having considered this, she was nonetheless entitled to accept the complainant's evidence.

Conclusion

69. Considering the totality of the evidence we were of the view that the conviction was properly entered against the applicant. Accordingly the application for leave to appeal against conviction was refused.