HKSAR v. CHEUNG KAI SHUEN

HCMA 238/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 238 OF 2001

(ON APPEAL FROM WSCC 9358 OF 2000)

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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.

2. The Appellant, an anaesthetist, was convicted by a magistrate after trial at Western Magistracy on the 17 November 2001 of two offences of indecent assault committed on the 20 May 1995 and 21 May 1995 respectively. Both offences were committed against the same victim, a Japanese national then living in Hong Kong, who was a patient of the Appellant. The offences were committed whilst the victim was recovering from childbirth in the maternity ward of the Adventist Hospital.

3. The facts found to be proven by the magistrate were that the Appellant had acted as the victim's anaesthetist during the course of the birth of her child by Caesarean section on the 19 May 1995.

4. Subsequently on the two charged dates he examined her in the maternity ward of the hospital and during the course of those examinations had indecently assaulted the victim by, on the 20 May 1995 unnecessarily touch her thigh and vagina and on the 21 May 1995 unnecessarily touching her breasts.

5. The grounds of Appeal against conviction can be summarised as follows:

Grounds 1 & 2:

That the magistrate erred in law in finding that there had been evidence of recent complaint by the victim and in applying that finding to support the credibility of the victim.

Ground 3:

That the magistrate was wrong to have refused to stay the proceedings on the ground of delay.

Ground 4:

That having allowed the trial to continue the magistrate failed to properly warn herself of the consequence of the delay in bringing the case to trial.

Ground 5:

That the magistrate failed to properly consider aspects of the evidence in the trial which tended to reduce the victim's credibility.

Ground 6:

That the magistrate was wrong in law in accepting PW1's evidence of identification of the Appellant as the person who had indecently assaulted her.

Ground 7:

That the magistrate's findings that the indecent assaults on the victim were not medically necessary were made without proper regard to the evidence.

6. As to grounds 1 & 2 the Appellant complains that in the magistrate's statement of findings, at page 88 of that document, the magistrate said this:

"It was argued by the Defence that (the victim) delayed in reporting and there was no evidence of recent complaint by (the victim). As far as this issue went, the court found it a fact that (the victim) did, on the day of the incident, tell the husband of the incident and later told her friends and that about one month later, in June 1995, she became doubtful of the propriety of the examinations. No doubt there was a delay and (the victim) explained the reason why she failed to report earlier was because she was afraid. It was challenged by the Defence as to whether, in fact, it was the reason why she failed to report earlier, having reference to her response to the question asked about her education standard in court."

Mr Cheng Huan, SC criticises that statement by the magistrate on the basis that the victim's claims that she related the details of the charged assaults to her husband and friends could not have amounted in law to admissible evidence of recent complaint for the simple reason that none of her husband or friends gave evidence. Mr Cheng relies upon the statement of principle annunciated in White v. R [1999] 1 Cr. App. R, 153 to the effect evidence of recent complaint cannot come from the victim alone. It must be proven also by the recipient of the complaint. In that case, in that regard, the court said:-

".....As a formulation of this rule, their Lordships adopt the following statement in Cross and Tapper on Evidence (8th ed., 1995) at page 294:-

'The general rule at common law is that a witness may not be asked in-chief whether he has formerly made a statement consistent with his present testimony. He cannot narrate such statement if it was oral or refer to it if it was in writing (save for the purpose of refreshing his memory), and other witnesses may not be called to prove it."

There are two well-known common law exceptions to this rule. The first permits proof of complaints in sexual cases. If a complaint is made at the first reasonable opportunity after the offence, it may be proved in evidence to show the complainant's consistency and to negative consent. But for this purpose it is necessary not only that the complainant should testify to the making of the complaint but also that its terms should be proved by the person to whom it was made. If, as in this case, the recipients of the complaints do not give evidence, the complainant's own evidence that she made a complaint cannot assist in either proving her consistency or negative consent."

With respect, in my judgment, as a statement of the law that must be right.

7. But in the present case the realities were quite different. The complained of evidence had been given by the victim not during the course of her evidence in chief but during the course of cross-examination. At that time the victim was questioned about the contents, or lack of contents, of her statement to the police.

8. That cross-examination proceeded in this way:-

Q. And the first time you told us you told anyone about what happened, what conversation you had, was in January 2000 in the first statement to the police.

A. Is that except my husband and my intimate friends?

Q. You mean, you told your intimate friend friends, your husband the precise conversation you had with this man?

A. Yes, I did.

Q. Did you really, madam?

A. Yes.

Q. You told your husband and your friends that this man came in and left.

A. Yes, I did.

It is apparent from that that this area of evidence was not led in chief, and nor was it led on the basis that it was evidence of recent complaint.

9. Effectively it was evidence that came into being as answers to a line of cross-examination which was designed to cast doubt on the credibility of the witness on the basis that nearly 5 years had elapsed between the incident and her telling anyone of it.

10. The magistrates complained of comments in her Statement of Findings go no further than to set out the defence case that the victim had made no complaint about this matter for 5 years and that that weakened her credibility. The only finding by the magistrate was that she accepted the victim's explanation that she had earlier told her husband and friends, but that she had failed to make a report to the authorities as she was afraid.

11. In my view it is plain the magistrate was not using this evidence as evidence of recent complaint. She was going no further than accepting the explanation given by the victim when pressed in cross-examination as to why she had not complained about these matters until her police statement in January 2000.

12. That that is so is made quite clear by an earlier comment made by the magistrate in her Statement of Findings in dealing with her ruling on the stay application made by the Appellant.

13. At page 18 of that document she had said in this regard:

"There was no evidence of recent complaint in this case as the husbands of (the victim) and PW5 who apparently, according to the brief facts, did relate the incident to their husbands was not called as prosecution witnesses nor was any staff of Japanese Consulate called in this case and in any event, in relation to charges 1,2,3 and 4, they could hardly be said as 'recent'."

From that it is quite plain she had properly in mind the evidential requirements of the doctrine and appreciated it did not apply to the case before her. Accordingly there is no merit in grounds 1 and 2.

14. Grounds 3 and 4 can also conveniently be dealt with together. The Appellant firstly complains that the magistrate's refusal to order a stay of proceedings was wrong. He argues that in dealing with the question of whether the proceedings should have been stayed the magistrate wrongly took a "global" approach to the different offences.

15. The Appellant had originally faced 7 similar charges based on the evidence of 4 complainants all of whom had been his patients. The periods of delay in reporting their complaints to the police by the 4 complainants had differed.

16. The longest period was the 5 years which elapsed between the offences and their being reported in the present case. The remaining periods were 21/2 years, 2 years and 6 months for the respective complainants.

17. The magistrates ruling in respect of the stay application was in these terms:

"Having considered the circumstances of the case, the authorities cited and submissions by counsels and interests of public to see that that there was an open and fair trial, the defendant had failed to satisfy the court, on a balance of probabilities, that the delay by the complainant here in any of these 6 cases had resulted in serious prejudice suffered by him to the extent that no fair trial could be held and that the continuance of the prosecution amounted to a misuse of process."

Whilst that ruling may have been made in terms that applied to all 6 cases (or charges) it is far from suggestive that the magistrate had not considered the merits of the Appellants application separately in respect of each charged offence.

18. Earlier in her Statement of Findings, so far as it dealt with the application for a stay of proceedings, the magistrate had specified the period of delay relating to each of the charged offences. She had also found there was delay. She said:-

"No doubt there was delay, for period mentioned earlier, in respect of complaints made regarding the 6 charges now faced by the defendant ranging from over 5 years to 6 months."

In my judgment the magistrate had plainly in mind the different time scales relating to the separate complaints. Her ruling cannot be said to have wrongly rolled up the different charges so as not to differentiate between them. Specifically so far as the present offences are concerned the magistrate was aware that the period of delay she was dealing with was nearly 5 years. She had no doubt taken that time period into account in determining that the Appellant had failed to establish that no fair trial could be held in respect of the present offences.

19. Mr Cheng argues that even if the magistrate was right to allow the trial to continue she should have warned herself of the special circumstances of the delay in this case so far as its impact on the defence case was concerned.

20. He relies upon the statement of principle in Archbold 2001 ed. paragraphs 4-71a which is as follows:-

"Before a conviction could appear safe, the court would have to be satisfied that the judge had confronted the jury with the fact of delay, and its potential impact on the formulation and conduct of the defence and the prosecutions' discharge of the burden of proof; ..... nor is it appropriate for the judge simply to recite the submission of counsel (on both sides) on delay."

It is true that during the course of her Statement of Findings in dealing with the general issue the magistrate made no further specific mention of the impact that that delay had had on the defence case. No doubt it would have been better for her to have done so.

21. But in the present case the magistrate had presided over an application that the proceedings be stayed due to delay and the resulting fact that that delay had caused the Appellant to lose his memory of the incidents. The Appellant gave evidence during the course of this special issue and subsequently his evidence in that regard was adopted as his evidence in the general issue. That evidence was summarised by the magistrate as follows:-

"......He said further he had over 1000 patients a year and about 3-4 patients a day. He said he had 300-400 patients a year in relation to painless or caesarean births patients since 1995. ............(The) Defendant said there was nothing in the medical records of (the victim) that recorded the conversation between the defendant and (the victim) nor the details of examination done by the defendant on (the victim).

(The) Defendant further said he had no recollection of the incident between he and (the victim) in 1995. He said since 1995, he had seen 1000's of patients and the first time he was asked to remember the incident with (the victim) was when he was asked to give cautioned statement to the police."

During the course of that application detailed submissions were made to the magistrate as to the difficulties caused to the defence case by the period of delay.

22. There is no doubt that the magistrate obviously had firmly in her mind the potential difficulties the defence case suffered as a result of the delay in this case.

23. She, as a professional jurist, no doubt took the difficulties the defence case may have been occasioned into account in arriving at her decision. For the purposes of their submissions on the general issue the Appellant's counsel had adopted his earlier submissions including that made in respect of the special issue which dealt in detail with the difficulties faced by the defence case as a result of the delay and further reminded the magistrate of the Appellant's evidence of his inability to remember these incidents and the conversations associated with them. At the end of the day there can be no doubt the magistrate had firmly in mind the effects of delay on the defence case. She was not a juror, but a professional jurist sitting alone. The purpose of the direction is to bring to the attention of the recipient of the direction the principle contained within the direction. In the present case, I am sure the magistrate had that principle firmly in mind. There is no substance in grounds 3 and 4.

24. The 5th Ground makes complaint of various aspects of the evidence which the magistrate failed to take properly into account in assessing the credibility of the victim. There is no doubt the credibility of the victim was of crucial importance to proof of these offences. She was the only witness to the indecent assaults upon her on both occasions.

25. The Appellant's complaints as to the victim's credibility can be summarised fairly in their important aspects to the effect that the victim's evidence as to not remembering the visit of the Appellant, and making complaints as to nausea and reluctance to breast feed to him on that occasion, on the 19 May were contradicted by the hospital records. And further her evidence as to what she said at the confrontation identification of the Appellant was contradicted by the police identification note book and the evidence of the police officer involved.

26. Other inconsistencies in the victim's evidence were also complained of by the Appellant as not being taken into account properly by the magistrate in assessing the Appellant's general reliability as a witness.

27. In my judgment the magistrate did take these matters into account. She specifically addressed or referred to the majority of them in her Statement of Findings. These matters are essentially contradictions in the evidence between the victim and other records and witnesses.

28. The magistrate, as the tribunal of fact, was entitled to, as she did, conclude that PW1, the victim, was a truthful and generally credible witness even in the face of these inconsistencies in the evidence. She was in the best position to assess the credibility of the victim.

29. Further many of the inconsistencies complained of can be seen to be non-existent when closely examined. For example, it is complained that the victim's failure to remember the visit by the Appellant on the 19 May was wrongly accepted by the magistrate as being a result of the victim being tired following her recovery from childbirth. The Appellant complains that that finding flew in the face of the evidence of the two medical experts who gave evidence to the effect that in their opinion a recovering mother would have been conscious and alert by them. But that submission overlooks that one of the admitted facts between the prosecution and defence at trial was to the effect that when the Appellant visited her at that time the victim was tired.

30. In short the magistrate cannot be said to have erred in law in her finding that the victim was a generally reliable witness. The question, as always, was whether the inconsistencies in the evidence were the sort one would expect in the evidence of an honest witness, given the detail she was questioned on and the lapse of time involved between the incident and her evidence, or whether they pointed to a fundamental unreliability. The magistrate was entitled, as the trier of fact, to conclude, as she did, that the victim was generally a credible witness.

31. The sixth ground of appeal comes about in this way. Following the victim's complaint to the Hong Kong authorities some 5 years after these events she attended a confrontational identification of the Appellant.

32. According to the evidence of the police officer who was in charge of that procedure the victim, after seeing the Appellant, said words to the effect "I believe that's him". That statement was recorded in the officer's identification record book. The victim in her evidence says she told that officer "It is him" when she saw the Appellant. She was subsequently in evidence adamant that her identification of the Appellant at that time was certain and that she had used those words.

33. The magistrate accepted that the victim was mistaken in her recollection of what she had said upon seeing the Appellant at the confrontation. She accepted the evidence of the police witness that the victim had in fact said the words "I believe its him".

34. The only evidence of the Appellant as the person who had indecently assaulted the victim came from the victim's identification of him. The magistrate accepted in her Statement of Findings that the victim's words to the effect "I believe its him" at the confrontation, fell short of certainty. She said in that regard:-

"......This court found as a fact that, as PW7 (the police officer) said, during confrontation identification, the victim said 'I believe it is him', and not 'It is him', as she earlier testified in court. While this Court must admit that that there was no exhaustive list lists of words of certainty in making identification, the words 'I believe it's him', taking into consideration that it came through the interpretation of Japanese into Cantonese and then into English (falls) short in terms of certainty as compared to the words of 'I am sure it is him' or 'It is him.' Nevertheless, this Court accepted the words as words of positive identification of the defendant."

Accordingly the Magistrate had finally concluded that the evidence of the victim in court, to the effect that the person she saw at the confrontation was in fact the Appellant, was reliable.

35. In that regard, in her Statement of Findings, she said this:-

"On the evidence before the Court, the confrontation identification, coupled with the defendant's evidence that he was treating anaesthetist of (the victim), he did visit (the victim) after caesarean operation on the date, that he admitted making the two entries in her medical records, and the evidence of (the victim), I found it as a fact that the man who visited (the victim) on 20 May 1995 and 21 May 1995 was the defendant in this case and that he indeed did the examinations on (the victim) as alleged by (the victim)."

36. In coming to that conclusion the magistrate had taken into account that the nature of the original identification was through confrontation and that it had taken place after some 5 years had elapsed since the incident. She had warned herself that the victim had seen the Appellant on the 19 May at the time of delivery of her child and also that afternoon when she was visited by the Appellant.

37. She took into account the risk that the victim had mistakenly substituted the face of the Appellant who she had seen on the 19 May for the person who visited her on the 20 May and 21 May. She apparently reminded herself of the Turnbull guidelines and arrived at her finding of fact that the victim's identification of the Appellant as the person who visited her on the 20 and 21 May was correct.

38. But, in my view, the fatal flaw in the magistrate's reasoning is quite simply that upon first seeing the Appellant, and bearing in mind that it was a confrontation at which he had been shown to her some 5 years after the event with the question "Is this the man?" the victim's identification, in the magistrate's own finding of fact, fell short of certainty.

39. Mr Cheng for the Appellant relies particularly on the case of R v Hui Kai Fai, MA1289 of 1994 in which the facts were broadly similar to the present case in that the victim of that case was confronted with the Appellant immediately after his apprehension and said of that identification that she was only 90% certain that it was the person who had indecently assaulted her, although at a later identification at an identification parade, and during her evidence, she had said she was sure that the Appellant was the person who had assaulted her.

40. Leong J (as he then was) found that Appellant's conviction on that evidence of identification to be unsafe. In the course of that finding he relied upon comments in R v YIP Moon Tung and another (1984) HKLR 443 where the Court of Appeal said:-

"a witness is either sure or he is not. One cannot be 60 -70% sure".

and in R v YEUNG Kuen-chi and Another (1984) HKLR 447 concerning the meaning of certainty in relation to the standard of proof:-

"80% certainty is not certainty at all, nor is 99% certainty. And similarly with the use of the word sure. A witness is either sure or he is not. There is no half-way house."

In my judgment that is so in this case. The magistrate appreciated the victim's initial identification of the Appellant fell short of certainty.

41. She attempted to resolve that failure by taking into account the certainties expressed in the victim's subsequent evidence and the fact that the Appellant had in fact been the treating anaesthetist on the 19 May.

42. But neither of those matters either by itself, or in conjunction, resolve the underlying uncertainty in the 1st identification of the Appellant by the victim.

43. Miss Vinci LAM in her thorough and well presented arguments in this case pointed out that the victim had said the person who visited her on the 20 and 21 May was the same anaesthetist who had treated her on the 19 May. But, as the magistrate accepted in her Statement of Findings, the victim's opportunity to see the Appellant on the 19 May was very limited and the magistrate further found that this aspect of the victim's identification was also unreliable.

44. Accordingly, both of the matters used by the magistrate in her brief reasons for accepting the evidence of identification of the Appellant by the victim themselves come from evidence of the victim which the magistrate had either criticised or found to be unreliable.

45. In her evidence the victim did not attempt to explain the words she used at the confrontation. Instead she simply denied using them. In this the magistrate disbelieved her and found her to be mistaken.

46. In her Statement of Findings the magistrate said that, regardless of the lack of certainty in the victim's initial identification of the Appellant at the confrontation, she accepted it as a positive identification of the Appellant. She gave no real reasons for this particular finding.

47. In my judgment she should have, and in the absence of good reason for relying on the victim's identification of the Appellant some 5 years after the event, in those uncertain terms, it seems to me the conviction is unsafe.

48. There is, on that basis strictly no need for me to go on to the Appellant's final substantive ground of appeal to the effect that the magistrate's findings that the complained of examinations of the victim were medically unnecessary was unsupported by the evidence.

49. Given the degree of argument presented to me on that matter however I think it appropriate I deal with that ground of appeal as well.

50. Three doctors gave evidence at the Appellant's trail PW8, a Dr. WAN who worked with the Appellant, PW10, Dr Irwin, and DW1, Dr Tsui. The latter two gave evidence as expert anaesthetists and PW8 apparently was also accepted as an expert, as he also gave opinion evidence but in the field of obstetrics and gynaecology only.

51. It is fair to say that the primary battle in this evidence was between Dr Irwin for the prosecution who said in general the complained of examinations of the Appellant on the 20 and 21 May were not medically necessary and Dr Tsui who said, in general, that in the circumstances they may have been necessary.

52. In accepting the evidence of Dr Irwin and rejecting that of Dr Tsui the magistrate said this of Dr Tsui's evidence:-

"(Dr Tsui) in his evidence in court, adopted his expert witness report, .... and dealt with the complaint of (the victim), which was now proved. Whilst this court was persuaded by him regarding examination particularised in paragraph 3(a), (b) and (c) i.e. as being medically necessary, this Court must say he did not in the said report really support the touching of the vagina and the opening of the vagina with fingers as being medically necessary. He just said generally that these examinations, including the questionable touching and opening of vagina, which he had just put in as the heading, as necessary. He said however that the examination was merely to ascertain if the patient was suffering from post-partum haemorrhage.

He then followed on and said that examination involved the inspection of vaginal pads for any excessive blood loss and the inspection of the genital area for any bleeding. Surely the examination necessary in these circumstances, in order to check the blood loss, was merely visual examination. This Court was not persuaded that examination to check if there was excess blood loss would involve or require one to touch or open the vagina. PW10 in effect supported the view that the checking could be done merely by looking at the vaginal pad."

But in the report which was adopted as part of Dr Tsui's evidence in chief, as regards that examination of the victim's genital area which had taken place on the 20 May, Dr Tsui had said this:-

"This examination would be necessary if Dr Cheung was looking for any sign of post-partum haemorrhage ("PPH"). This is a serious complication after delivery which necessitates immediate treatment. the examination involves the inspection of the vaginal pad for any excessive blood loss, and also the inspection of the genital area for any bleeding. Such an examination would be indicated if there was any sign that the patient was suffering from haemorrhage. In (the victim's) case, it was recorded in her post-natal observation chart that her blood pressure was abnormally low at 98/47 in the morning of 20 May 1995. This could have alerted Dr Cheung to the possibility that she might have been suffering from PPH, which required immediate intervention.

In other words, Dr Tsui, in the terms of his report which was adopted as his evidence in chief, was quite plainly suggesting that the examination which formed the basis of the indecent assault complaint of the 20 May may well have been medically necessary.

53. The words used by Dr Tsui were to the effect that the examination would have been medically necessary in the circumstances if the Appellant had been alerted by the low blood pressure reading of the victim on the morning of the 20 May.

54. The magistrate was quite entitled to reject the evidence of Dr Tsui regarding the examination of 20 May if she had reason to do so. But it seems to me that instead of rejecting his evidence she has re-interpreted as so to give it a meaning it plainly did not have.

55. So far as the incident of 21 May is concerned Dr Tsui had said this:-

"(a) An examination of the patient's nipples and breast by palpation would be necessary if, for example, the patient complained of any discomfort in her breast or nipples. This is a usual and common complaint in the early post-delivery period. It could, for example, be due to breast engorgement or abscess formation. It would be necessary for a clinician in Dr Cheung's position to examine the patient's breast and to give advice on treatment, or to refer her to an appropriate specialist as indicated. It is important to note that all anaesthetists in Hong Kong are fully qualified medical doctors who should have the requisite basic training to respond to a patient's condition by carrying out the appropriate clinical examination.

The magistrate rejected this evidence of Dr Tsui as going to the necessity of the examination of 21 May in this way:-

She said

"According to (Dr Tsui), it might be necessary for the defendant to examine the breasts to check engorgement or abscess formation. This would be done by palpation. Neither the (Dr Tsui) nor PW10 (Dr Irwin) said that the defendant need to rub, pinch or pull the nipple and that these acts were medically necessary in the circumstances."

It seems to me that if the learned magistrate was to decide that the evidence of Dr Tsui could be rejected in this regard as assisting the Appellant's case because Dr Tsui referred to palpation rather than rubbing or pinching she was dangerously close to deciding the issue on a semantic basis.

56. I bear in mind that the magistrate had rejected the evidence of Dr Wan in this area because he was an obstetrician and gynaecologist but not an anaesthetist. But Dr Wan had said that where there was difficulty with breast feeding, and on the 20 May the victim had refused to breast feed, an examination such as that carried out by the Appellant on the 21 May may have been necessary.

57. It is unclear why the magistrate felt such an examination could only have light shed upon it by an expert anaesthetist. It was after all an area Dr Wan felt competent to comment on. And his evidence most certainly supported the Appellant in this regard.

58. For these reasons, had I not upheld the 6th ground of appeal I would have had a serious doubt about the safety of the magistrate's finding, on all of the expert evidence available to her, that the prosecution had proven beyond reasonable doubt that these medical examinations were unnecessary.

59. For these reasons the appeal is allowed and the convictions on both charges are quashed and the sentences set aside.

60. One final matter is this; the learned magistrate's Statement of Findings extended over 110 pages. They recited all of the evidence given before her and the contents of all of the submissions. They incorporated her findings. But a very small proportion of the contents was given over to the reasons for her findings. Repeating counsels submissions and the evidence in thorough detail, only to follow that with a sometimes brief finding with even briefer reasons being given for those findings, is not greatly helpful. A Statement of Findings should be as brief as possible and should be as much concerned with the magistrate's reasons for the findings arrived at as with the detailed repetition of the evidence and submissions.