R. v. LAI KWAN TIN

IN THE COURT OF APPEAL

1995, No. 256
(Criminal)

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J U D G M E N T

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Nazareth, V.-P.:

1. This is the judgment of the court.

2. On 23rd March 1995 the appellant was convicted by His Honour Judge Jackson in the District Court on a charge of indecent assault and sentenced to imprisonment for 4 years. He now seeks leave to appeal against conviction and sentence.

3. The victim is a 22-year-old Filipina who was engaged as a domestic servant by the appellant's mother on 23rd February 1994. The incident that forms the subject of the charge took place less than a month later, on 17th March 1994, while the appellant's mother was away in China. Only the two of them, i.e. the appellant and the victim were in the family flat.

4. The prosecution case was that the appellant at about 11.20 in the morning asked the victim to go to his bedroom and massage his body as she had done on his instructions on two previous occasions. She found him lying on the bed, face downwards. He pointed to the parts of his body he wished her to massage, from his neck to his thigh. He then turned over and asked her to massage his chest and abdomen. When she had done so, he removed his underwear, grabbed and pulled down her head and made her perform oral sex on him. Thereafter, he dragged off her lower garments and made a sustained attempt to have sexual intercourse with her.

5. When she finally managed to free herself, he instructed her to clean herself up and to wash the bed-sheet. He also forced HK$200 upon her. The episode, according to the victim, took about 45 minutes. She then warmed his breakfast and he left at about 12.30.

6. The victim had been in Hong Kong for only about 3 weeks and did not know even how to ring the police. Because she did not want to upset her cousin's employers, she did not telephone her cousin until about 2 p.m. after the employers had left. Her cousin in turn telephoned a friend who passed on the complaint to the police.

7. The appellant denied the offence in five statements, claiming that he had gone to see his sister in hospital at about 10.30, 10.45 or 11.15 a.m. That was disproved by a fellow resident of the housing development who saw his car in its usual parking space adjoining hers.

8. The judge believed the victim and convicted the appellant who, as he was entitled to do, did not give evidence.

9. Mr Loughran, who appears for the appellant before us but did not appear for him below, first of all pursues the 3rd ground and with it the 2nd ground in the notice of appeal. He submits with reference to 'inconsistencies' in that respect, that first reports in sexual offences of the present sort are of special importance. He submitted by reference to authorities including R v Osborne [1905]1 KB 551, that the value of first reports lies in determining whether the complainant has been consistent. He submits that the victim here was not consistent essentially in that she did not tell her cousin and the friend the whole story, in particular that she left out reference to the oral sex and attempted sexual intercourse. However, under cross-examination by senior counsel who represented the appellant at his trial, the victim admitted that she had not told her cousin and the friend everything. It is in any case not surprising that she left out the embarrassing and as the judge categorised them 'the sordid details'. In all the circumstances, the submission of inconsistency, in my view, has no substance to it.

10. Mr Loughran also attacked what he claimed to be two versions given by the cousin. This categorisation of two versions does not seem to me to be realistic having regard particularly to the fact that the cousin was recounting what she was told over the telephone by the victim, moreover doing so about a year after the event. Nevertheless, Mr Loughran said that when accepting the evidence of the cousin and the friend as he did, the judge should have made a detailed assessment particularly of the cousin's evidence. That, he says, is really the defence complaint. But it seems to me that the judge did make a sufficient assessment of the two witnesses' evidence. However that may be, what is to the point is that it is plain that the judge did not rely upon the complaints to the cousin and the friend in any way, whether as evidence of consistency or as corroborating the victim's evidence.

11. Having carefully considered all Mr Loughran's submissions on the 2nd and 3rd grounds, I find that there is no merit in them.

12. Mr Loughran turned next to the 1st ground which concerned lies that, he submits, the judge found on the part of the appellant. As I have already indicated, the appellant in his defence claimed that he had left home at about 10.30 or 11.15 and specifically he said he had left in his car and gone to see his sister in hospital. The judge, as I have said, found that it had been established that this defence of alibi was untrue.

13. Mr Loughran submits that it was not necessary for the judge to make findings of lies. Moreover, he says, that in his reasons the judge spent needless time in summarising the content of the records of interviews which highlight the lie. He, therefore, upon that basis, submits that lies may have obscured the duty the judge had to be satisfied that the Crown had proved its case. The mere fact, he submits, that the judge may disbelieve an accused does not establish the Crown case; this now would dispute.

14. But turning to the case before us, what that translates to, is that the judge should be satisfied of the Crown's case. Here, plainly he did satisfy himself of that by his express acceptance of the victim's evidence. However, Mr Loughran submits that the judge should have subjected the victim to a critical examination particularly of the improbable aspects of her evidence. These he identifies as follows:

1. That the appellant should have attempted, as it were, to have had a second attempt at sexual intercourse immediately after completing the act of oral sex.

2. That the victim had not given her cousin the same version as she had in her statements to the police.

3. That after the assault, she heated the appellant's breakfast before he left home.

4. That she had apparently massaged him on two previous occasions although she expressed surprise that he should have needed massage.

5. That while she carried out the massage, she was very nervous.

6. That she accepted money from the appellant.

It is plain from his judgment that in the circumstances the judge could not have overlooked the matters in reaching his conclusions and indeed he expressly refers to some of them in his judgment.

15. Mr Loughran also submits that the judge might have relied upon the lies that he found the appellant had told. That submission cannot be accepted upon a plain reading of the judge's reasons. Moreover, it is plain that he found the appellant guilty upon his own deliberate acceptance of the victim's evidence. In that respect, nothing that Mr Loughran has urged upon us, in our view, persuades that he was wrong to do so.

16. It is not with relevance that the appellant's only defence was his alibi which was clearly disproved. That has to be considered against the background that the appellant himself did not, as he was entitled to do, give evidence.

17. Mr Loughran did not pursue the remaining ground of a lurking doubt. Accordingly, there is clearly no merit in the appeal against conviction which is dismissed.

18. I turn then to the appeal against sentence which was presented by Mr Christopher Grounds. In dealing with sentence, the judge said this:

"The offence as described to me was as bad an offence of indecent assault as can be imagined, culminating as it did virtually in an attempted rape."

True, the offence was a serious one but in describing it as being 'as bad an offence of indecent assault as can be imagined', he somewhat overstated the case. The courts are confronted not uncommonly with cases of indecent assault in which victims are subjected to prolonged detention, to violence and to injury. Previous sentences brought to our attention by Mr Grounds (and not countered by the Crown) point to very substantially lower levels (see in particular R v Swann Mag CrApp 220 of 1987; R v Cheung Yan-chee Mag App 988 of 1989 and R v Yu Yun-hei AppRev 3 of 1995, all unreported). Moreover, there seems to be some substance in the complaint that the judge may have placed undue emphasis upon deterrence. On the other hand, the thrust of those matters is offset to some extent particularly by the degrading act of oral sex to which the victim was subjected and the sustained attempt to have sexual intercourse; and also the employment and household context.

19. Having regard to all the foregoing considerations, we think the sentence of 4 years manifestly excessive but that the appropriate sentence should nonetheless be a substantial one of 3 years. Accordingly we allow the appeal against sentence, set aside the sentence of 4 years and substitute for it a sentence of 3 years.