THE QUEEN v. KWOK SONG YIP

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 271 OF 1988

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J U D G M E N T

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1. This is an appeal against conviction and sentence The appellant was convicted by Mr Wahab at Tsuen Wan on four counts of indecent assault. He was sentenced to a total of 26 months imprisonment.

2. It is an unusual case. The appellant is the victim's father-in-law. He is a taxi driver. He and his family came to Hong Kong from China in 1973. in late 1985, or early 1986, his wife's fellow-worker said he had a niece in China who might make an appropriate bride for the appellant's son. Consequently the family returned to China and the appellant's son was introduced to the girl, Cheung Fong-lam. They agreed to marry and in Match, 1986, formalities were completed in China. While Cheung Fong-lam's application to come to Hong Kong was being processed, she lived in Shenzhen, where she was visited from time to time by her husband.

3. On 5th March, 1986, she arrived in Hong Kong and the couple lived with the appellant and his family. Cheung Fong-lam got a job in a weaving factory, where her shift was usually 3-11:30 p.m. As the appellant's working hours were 2 p.m. - 5 a.m. and as the other members of the family were either at work or at school, the appellant and Cheung Fong-lam were alone in the flat until lunch-time on most days.

4. The victim complained in her evidence about four assaults by the appellant between 28th March and 7th April. On the first occasion, she said, he kissed her on the lips while she was sleeping. She had said nothing because she was too frightened in cross-examination, however, she was shown her statement to the police, made on 10th April, and she admitted that she had then said that the appellant had also kissed her on the forehead and tried to take her to bed. She had told the appellant not to do it or she would tell her mother-in-law. She attributed the discrepancy to faulty memory.

5. Next day she did not go to work but she was scared to go home. She sought out her husband at work and told him what had happened the previous day. However he made light of the matter and said "It's nothing. My father only kissed you".

6. On 2nd April she went to see her cousin, Cheung Mei-kuen, who she had met for the first time when she came to Hong Kong. She complained to her about the kiss on 20th March and asked her if she should tell her father This was confirmed by Miss Cheung.

7. Cheung Fong-lam told the court that, on 4th April, the appellant again kissed her lips while she slept. But she admitted in cross-examination that she had told the police she had been reading a book at the time.

8. She again told her husband, who advised her to talk to her mother-in-law, but the latter had gone to Shenzhen. Her husband who was a defence witness, denied that she had complained to him on either occasion.

9. The next incident was alleged to have occurred or 6th April when Cheung Fong-lam said the appellant dragged her onto a bed and kissed her. She resisted him and threatened to tell his wife. He asked her not to tell anyone and promised it would never happen again.

10. She saw her cousin again later the same day and reported the incident it is not clear from her evidence whether she had also complained to her on 4th April about the second kissing.

11. Cheung Mei-kuen says there were two complaints altogether. She cannot remember the dates, but on one occasion Cheung Fong-lam told her the appellant caught hold of her while she was reading a book. The other complaint was that the appellant had kissed her on the forehead and carried her to a big bed. On the second occasion Cheung Fong-lam told her she had also reported the matter to her husband, who had promised to tell his mother. She also told her cousin that the appellant had sworn not to do it again. The evidence is therefore consistent with the second complaint having been made on 6th April after the third incident.

12. On 7th April Cheung Fong-lam alleges that the final and most serious assault tool place. After the appellant had cooked her some congee, he dragged her onto the bed, kissed her, took off her underpants forced her legs apart and raped her. She was too frightened to cry out, but she struggled and tried to kick the appellant. She could not move her hands because he was lying on top of her.

13. In cross-examination she admitted that she told the police it was she who had cooked the lunch that day. She could not now recall who had cooked lunch.

14. More significantly she also said that she felt great pain in her private parts after the rape and there had been a little bleeding. On 10th April Cheung Fong-lam was examined by a pathologist, to whom she told what had happened. He found no recent external injury on her body, including her private parts. As the magistrate points out, it is a pity more details of the alleged assault were not elicited by the prosecution.

15. As soon as the appellant released her she went to the toilet. The appellant knocked on the door and told her to come out. He then told her not to cry and asked her to be his concubine. As she was leaving the houses he tool: her Entry Permit in order to ensure her return.

16. After she left home she did not go to work. She walked the streets until 3 p.m., when she telephoned her aunt, Cheung Yee-ying, who had introduced her to her husband in China, and told her about the rape. Madam Cheung asked her to come to her place to talk about it. She also mentioned that the appellant's family was rich. Cheung Fong-lam decided not to visit her, in case the appellant contacted her there. Madam Cheung who was also a defence witness, denies that this conversation took place.

17. At 9 p.m. she telephoned Cheung Mei-Kuen, but she was still at work. Her cousin's father, Cheung Chun-foo, asked her to cone to their place. When she arrived, she saw Cheung Mei-kuen and told her about the incident. However, she did pot mention the rape, because she was frightened and ashamed. She only said the appellant had kissed her and dragged her onto the bed.

18. Cheung Mei-kuen confirmed this evidence. She said Cheung Fong-lam looked as if she wanted to cry. She told her that the appellant carried her to bed and said he wanted to take off her trousers, but she struggled and managed to reach the toilet. She also mentioned that the appellant had taken her Entry Permit.

19. Cheung Fong-lam was taken that night to stay with a friend of Cheung Mei-kuen's father. This was Madam To Sai-kam, who was unknown to the appellant. She told her that she had been dragged to the bed and kissed.

20. This evidence was confirmed by To Sai-kam. She told the court that, when Cheung Fong-lam was brought to her house by Cheung Chun-foo at about 1 a.m., she appeared very upset. She told Madam To that her father-in-law had kissed her and carried her to bed and removed her trousers.

21. On 9th April Cheung Chun-foo took her to the police station to make a report. She said she was interviewed by a WPC at 1:40 a.m., but did not explain why it was so late. At first, because she was shy, she said she had only been kissed. However the WPC shouted at her that she must tell the truth and asked "Did he insert lover part in with yours?'' She agreed. The WPC did not give evidence.

22. Cheung Fong-lam was cross-examined about her relationship with a fellow-worker named Lui Koon-cheung. She admitted she had been to the cinema with him on the evening of 2nd April, but denied he was a boyfriend. He was just a friend, who had asked her to introduce him to a girl.

23. When the appellant was arrested, he made a statement under caution, which was admitted. The magistrate, however, felt that the admission in it was too vague and ambiguous to merit any weight. It is not therefore necessary to consider it further.

24. The appellant gave evidence. He said he first met Cheung Fong-lam in December 1985, when she was introduced to his son. Between then and February; when the marriage took place terms were discussed by the two families. He agreed that Cheung Fong-lam came to Hong Kong from Shenzhen in March. However, he also said that he paid her family a total of $42,000 and also gave the articles worth approximately $10,000. Cheung Fong-lam said only a TV, radio and bicyle were given.

25. The appellant said that the only time he ever touched her was on the evening of 28th march. His wife told him that Cheung Fong-lam had a fever and would not eat, so he felt her forehead. Cheung Fong-lane said in cross-examination that it was only the appellant's wife who touched her forehead. The latter did not give evidence.

26. The appellant said Cheung Fong-lam bought and cooked lunch on 7th April. During the meal her aunt Cheung Yee-ying telephoned and complained about Cheung Fong-lam's behaviour and absence from work. She herself spoke to Madam Cheung and they quarrelled about her boy friends and slow rate of work.

27. After lunch she prepared to go to work. The appellant warned her she would need to explain her absence from work to his wife that evening, or she could not continue living there.

28. At 3 p.m. Cheung Yee-ying rang again and told him Cheung Fong-lam had been in touch with her and wanted her Entry Permit and money in order to return to China.

29. At 9:30 p.m. that evening the appellant went to the supermarket where Cheung Mei-kuen worked, in order to look for his daughter-in-law. They searched for her, but without success. This evidence was confirmed by Cheung Mei -kuen.

30. Next day, when she had not returned, the appellant rang, Cheung Chun-foo and said he must report her to the police as a missing person, which he did at 3 p.m.

31. The next witness was the victim's husband, Kwok Man-biu. His evidence largely tallied with that of his father. He denied that his wife had complained about the appellant's behaviour. He did not know why his wife left home on 7th April. She left no note and did not telephone.

32. The final fitness was Madam Cheunc Yee-ying, Cheung Fong-lam's aunt, who had known her since she was young. She confirmed that her husband had introduced her to the appellant's son. She said she had twice come to her house since her arrival in Hong Kong. On 7th April at 1 P.M. she rang her about her failure to attend work and told her not to tell lies about it. This coincided with the appellant's evidence.

33. Then at 3 p.m. Cheung Fong-lam telephoned her and said she was going back to China and would not return to her in-laws, but she had no money and no travel document. She made no complaint against the appellant and did not sound distressed. Madam Cheung denies saying that the latter was rich and from a good family. She then telephoned the appellant, who later rang her back. Madam Cheung suggested they should look for Cheung Fong-lam after dinner.

34. This witness was also allowed to tell the court that Cheung Mei-kuen had told her in February that Cheung Fong-lam was coming to Hong Kong to get a divorce. The purpose of this evidence apparently was to show that the former was not untainted.

35. Contrary to the normal practice, the magistrate in his Statement of Findings dealt first with the defence evidence. There are dangers in this approach and it has been criticised by Miss Leong who appears for the appellant. However the magistrate makes it clear that he was aware of the burden of proof and of the danger of convicting in the absence of corroboration. He also accepted defence counsel's submission that the case stood or fell on the evidence of the victim.

36. Having said that he disbelieved the defence witnesses, the magistrate went on to deal with the prosecution evidence. He dealt first with Madam To, whom he found to be a straightforward witness, whose evidence he accepted. He felt that Cheung Mei-kuen, although rather flustered and confused under cross-examination, was trying her best to recall what had occurred. He also accepted her evidence. The complaints prior to 7th April were therefore established. The magistrate correctly directed himself that the relevance of the complaints was to show the consistency of the victim's conduct.

37. He then considered the evidence of the latter. He found her to be simple-minded and mentally sluggish. She had been embarrassed and ashamed. She had done her best to recall what had happened. The magistrate, however, found that Cheung Fong-lam had not told the truth on one subject, namely her marriage. He did not think she was truthful when she said it was based on love and affection, that she did not know that her husband's family had paid consideration, that she did not long to live in Hong Kong and was not eager to secure a Hong Kong identity card. However, the magistrate found nothing sinister in her relationship with Lui Koon-cheung.

38. He then came to the question of the discrepancies between her evidence and her statements to the police. He found these were not unexpected in the light of his assessment of her personality and he made allowance for the lapse of time since she had made the statements.

39. The magistrate accounted for the victim's failure to cry out, and to provide details of what had happened, by his finding that she had suffered a traumatic experience and had been transfixed with shock. He was, satisfied that her failure to leave the appellant's house until 7th April was because she found what was happening incredible; the assault that day was the last straw, which left her no choice but to go.

40. He considered it reasonable that she should complain in the first place to her cousin the person closest to her in Hong Kong, rather than to the police. He also accepted her failure, until prompted, to tell the whole story to the police; on the basis that she was too shy.

41. The magistrate thus dealt extremely fully with the evidence and issues involved, except in respect of one matter. I refer to the evidence of the pathologist. If there was forceful penetration and bleeding, it is surprising that there was no evidence of bruising, or other injury to the vaginal area, three days later.

42. Miss Leong submits that, because of this and the inconsistencies adumbrated above, the verdict is unsafe.

43. In R.v. Wong Wah Chiu & others⁽¹⁾, giving the judgment of the court, Sir Denys Roberts, C.J. said of the victim at page 4: -

"After her arrest, she was questioned for several hours by immigration and police officers; during which time she made no accusations of rape against any of the defendants. It was only after a considerable amount of pressure by those who were questioning her that she finally made the allegations which form the subject of these charges .........."

44. The judgment continues at page 5:-

"With the exception of one question of law arising from a comment by the prosecutor, with which we will deal at a later stage, there is only one ground of appeal of any substance, namely, that the verdicts were unsafe and unsatisfactory and ought to be quashed, on the authority of The Queen v. Cooper. It's unnecessary for us to refer in any detail to that case, which is well known. The principle stated in it is that an appellate court should be prepared to quash a conviction if, although there has been no fault in the summing-up, it feels nevertheless what has been described as a lurking doubt as to whether or not the conviction is safe.

This court commented on Cooper in Tang Wai-tong and Another v. The Queen 1975 HKLR 479 at p.486 as follows:

'Cooper's case decides that we should interfere if there is a "lurking doubt" though that phrase has not been interpreted, so far as we know. We think that the lurking doubt formula must be applied with great caution. An appellate court, reading papers and not seeing witnesses in the way that a jury does, must be cautious in imposing its subjective feelings for the conclusions reached by men and women who have had the advantage of seeing the witnesses and assessing their credibility.

In our view, "lurking doubt" means not an insubstantial doubt but a substantial remaining doubt.'

That therefore is the approach which we feel an appellate court should adopt when it is suggested that Cooper should be applied to the facts of an appeal before it."

45. Sir Denys Roberts, C.J. concludes this part of his judgment at page 8 thus:-

"The Crown case falls or stands on the credibility of this girl. The jury saw her and heard her story dissected in minute detail for 12 days, long enough surely for anybody to form a clear, considered view of the reliability, character and truthfulness of the witness. They must have concluded that she was worthy of belief in the main essentials of her story. He are asked to say that, although there was no fault in the summing-up or the conduct of the trial, we should conclude that we are uneasy with the verdict and substitute our own, unaccompanied by any of the advantages which flow from an observation of the witness. Cooper says we may do so, Tang says that we must have a substantial remaining doubt before we do. We do not have any such substantial remaining doubt in this case."

46. Sir Alan Huggins, V.P. said in R. v. Yeung Kwok-kuen and another⁽²⁾ at page 4: -

"...the appellants, in seeping to upset the convictions on this ground, faced a very heavy burden in satisfying us, who have not seen the witnesses, that the Judge came to a wrong- conclusion."

47. As the magistrate emphasised, the decision depended on the credibility of the victim. This was put in question by:

(a) The inconsistencies between her complaints and her evidence.

            These were dealt with adequately by the magistrate.

(b) Her lies about the circumstances of her marriage.

    Her credit is reduced in consequence. She would have lost face to have made such admissions and it is understandable that she was reluctant to do so. It does not follow that, because she lied about these matters, she was also lying about the central issue.

(c) The medical evidence.

    Although it does not rule it out, the evidence tends to cast doubt on the victim's claim that she was raped in the course of a struggle. This is no doubt the reason the appellant was not charged with rape.

48. Yet, if nothing of this sort took place, it is remarkable that Cheung Fong-lam should have alleged than the appellant went so far.

49. In the light of this evidence, it is necessary to look very carefully at the facts to see if it is reasonably possible that the magistrate has got it wrong and the whole story has been contrived.

50. It is obvious that either the prosecution or defence witnesses are lying. If Cheung Mei-kuen and To Sai-kam are telling the truth, Cheung Fong-lam did indeed complain. Cheung Mei-kuen was close to her cousin and might conceivably have been persuaded to he. To Sai-kam, however, was at a greater remove and only became involved through Cheung Mei-kuen's father. That is persuasive evidence that the complaints occurred.

51. The evidence of Cheung Yee-ying was also critical. Cheung Fong-lam spoke to her on the telephone at lunchtime. She knew both her aunt and the appellant would testify to that. She also knew that Cheung Yee-ying was on food terms with the appellant and was angry with her. Why should she take the risk of making a false complaint on the telephone at 3 p.m. that day? And, having done so, it seems incredible that she should then not accept her aunt's invitation to come round and discuss the matter.

52. If she did not make these complaints, she must have known that at least To Sai--kam, Cheung Yee-ying and her husband would deny that they were made. If she is lying, why did she involve so many people who would inevitably contradict her. The testimony of her cousin alone would have sufficed.

53. Also, as counsel for the Crown points out, if the whole story is false, there was no purpose in making allegations about minor assaults on the earlier dates. One serious assault would have been enough to justify her leaving the house and returning to China; if that is what she wanted.

54. Finally, if the allegations are false, it is incredible that she did not have a prepared story to tell to all. The discrepant complaints are consistent with confusion and embarrassment, but not with lies.

55. For these reasons I am not persuaded that the judge came to the wrong conclusion. The appeal against conviction is dismissed.

56. The appellant was sentenced to a fine of 1,000 on charge A, to one month on charges B and C, and to two years on charge D, the sentences being ordered to run consecutively.

57. The magistrate treated the first three charges as having involved one kiss on each occasion but, so far as charge A was concerned, he sentenced the appellant as a first offender. On charge D he had found the appellant guilty of at least a technical rape and felt obliged therefore to impose the maximum sentence open to him.

The appellant has a clear record. There is nothing else to be said in mitigation. He was in a position of trust, which he gravely abused. The magistrate was right to take a very serious view of the matter. I do not think, however, that the maximum sentence should be imposed on a first offender I reduce the sentence on charge D to 18 months. I do not think a fine is a proper penalty in this case. I therefore also impose a sentence of 1 month imprisonment on charge A. Since all the offences were part of one course of conduct, it is more appropriate that concurrent sentences be passed and I so order. The appeal against sentence is allowed accordingly.

(1) CA 980 of 1982

(2) CA 78 of 1985