HKSAR v. LI SHUI KEUNG

HCMA150/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.150 OF 2002

(ON APPEAL FROM WSCC 13049 OF 2000)

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J U D G M E N T

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1. This is an appeal against both conviction and sentence. The appellant was convicted of four offences of indecent assault at Western Magistracy on 28 July 2001.

2. In respect of those offences, he was sentenced to a totality of six months' imprisonment.

3. The facts of the offences as found by the magistrate were, in broad terms, that the appellant was employed as a bank officer in Hong Kong. The victim of the offences was a clerk within the bank and had on occasion worked for the appellant. On various occasions including the four occasions in respect of which the appellant was convicted the appellant had touched the breast of the victim. Those touchings had taken place outside her clothing. On each of these four occasions the appellant and the victim were alone. There were no independent witnesses to the indecent assaults. For that reason the credibility of both the victim and the appellant loomed large in the issues to be determined by the magistrate.

4. The victim had complained of these events to her workmates and eventually to her and the appellant's superior, and when the appellant continued to assault her, to the personnel officers of the bank and finally to the police. The appellant was eventually arrested and charged with the offences of which he was subsequently convicted. Mr Cheng Huan, SC makes a number of complaints concerning the convictions of the appellant. Those complaints can be fairly summarised in five effective grounds of appeal :

(1) That in arriving at her decision in respect of each offence, the magistrate took into account irrelevant and prejudicial matter.

(2) That the magistrate failed to properly assess discrepancies in the victim's evidence.

(3) That the magistrate wrongly supported the victim's credibility by speculation.

(4) That the magistrate wrongly rejected the appellant's evidence.

(5) The magistrate failed to properly take into account the appellant's cautioned statement.

I will deal with each of those matters in turn.

The magistrate taking into account irrelevant and prejudicial matters

5. What is complained of here by the appellant is that in the course of her Statement of Findings, the magistrate apparently took into account evidence from the victim as to other uncharged incidents involving the appellant which may have amounted to indecent assaults upon her. Mr Cheng argues that these other incidents were irrelevant to the offences which were actually charged and could only have been properly taken into account in support of the prosecutions case if shown to be relevant to the charged offences, for example as properly grounded evidence of similar facts. It was not argued either by Miss Ko for the respondent before me or by the prosecution before the learned magistrate, that evidence of other uncharged incidents which may have amounted to indecent assaults on the victim by the appellant, were admissible as evidence against the appellant in relation to the charged offences.

6. Particularly, there was no application by the prosecution at the trial of the appellant that these other incidents were admissible as part of a pattern of conduct or as similar facts. Indeed, during the course of the prosecution case as elucidated during the evidence-in-chief of the victim there was no reference to any other such incident. What happened to bring these other incidents out in evidence was quite simply that during the cross-examination of the victim, she was questioned about her feelings concerning her being transferred out of her post as the appellant's secretary. This cross-examination had been directed at challenging her reliability as a witness particularly concerning her recollection of the chronology of events concerning the 1st charged offence. The cross-examination had been directed at the inconsistency between her "feeling of relief" at leaving the post of the appellant's secretary in June 1999 and her evidence in cross-examination that the 1st charged offence must have occurred after that date, that is in July 1999. The simple issue was as to why she would feel relief at her transfer in June 1999 if the 1st charged offence had not yet occurred. Her answer was to the effect the appellant had indecently assaulted her, or at least accidentally touched her breast, on a number of occasions before she had been transferred from her post as his secretary.

7. Following on from that the appellant's counsel at trial asked both the victim and other prosecution witnesses about the victim's complaints as to these earlier incidents. In doing so he was seeking to establish inconsistencies between the victim's evidence about these incidents and what she had told other people about them.

8. Accordingly these particular matters arose in cross-examination of the victim and continued throughout the cross-examination of prosecution witnesses as an issue relating solely to the victim's credibility. That is how the magistrate dealt with the matter in her findings. She obviously did not regard the evidence of the uncharged incidents as substantive evidence of the appellant's guilt so far as the charged offences were concerned. Indeed, in so far as the incident which figured largest in the evidence relating to the uncharged assaults, the magistrate specifically stated that that evidence was not taken into account by her as evidence against the appellant. In short, the magistrate in dealing with the uncharged incidents did not taken them into account in any way other than as part of the issues relating to the victim's credibility. That is how they were raised by the defence. They were part of the defence attack on the reliability and credibility of the victim and were no doubt relevant to that issue. That is the sole reason why the magistrate dealt with this area of evidence in her Statement of Findings. She was entitled to and needed to do so to address an area of evidence the defence had raised and which was subsequently put forward as a reason the victim should not be believed. There is no merit in this ground of appeal.

The magistrate failed to properly assess discrepancies in the victim's evidence

9. So far as the appellant's complaints in this regard are concerned, Mr Cheng advances a number of areas in the victim's evidence where her evidence was either uncertain, contradictory with other witnesses' evidence or inconsistent with her own prior statements. It is true there were inconsistencies and uncertainties in the victim's evidence. Many of these inconsistencies and uncertainties related to matters the magistrate quite plainly and in my view quite rightly regarded as the sort of inconsistency one would expect from even an honest witness trying to remember events in considerable detail over the course of a four-day cross-examination. The same applies to inconsistencies between her evidence and that of witnesses called to give evidence of her recent complaints about the assaults. In this regard, the magistrate said :

" PW1 [The victim] gave evidence. She was in the witness-box for about five days. This Court has clearly and carefully watched her demeanour in the witness-box. She had been cross-examined back and forth and in great details as to the four alleged subject incidents, the background of these cases including, of course, the so-called unreported assaults. These were the so-called deliberate and non-deliberate acts, the equipment room incident and all issues surrounding those incidents.

Some of these incidents related to some two years back prior to the trial. It was understandable that human memory, as they were, did make mistakes. ..."

And later the magistrate said :

" ... This Court noted that the evidence of PW1 [the victim] regarding her complaints to various persons, the time of her complaints, the incidents complained of, the description of the incidents to these persons did bear inconsistencies, as pointed out by the Defence. These incidents, including the unreported incidents, according to PW1 [the victim], were numerous and this Court found it impossible not reasonable to expect PW1 [the victim] or PW3, a bystander, who alleged that she had received numerous complaints, to be precise and accurate in details."

10. Further, much of that challenged in the victim's evidence as inconsistencies were, in fact, quite trivial in nature. For example, it was complained of by the appellant that in the victim's evidence she had initially asserted that she was always touched outside her garment or clothing by the appellant, but that in cross-examination she had said that on one occasion at least the appellant had touched her outside her upper garment but inside her jacket. Further, the victim's evidence was that the appellant used one hand to touch her. The defence elicited from their cross-examination of a workmate of the victim's, PW5, that the victim had once told PW5 of an incident where she complained that the appellant had touched her with both his hands. In my view these inconsistencies, if that is what they even be, were perfectly well able to be regarded by the magistrate as having no negative impact on the victim's credibility.

11. Other inconsistencies between the victim's evidence and evidence from other prosecution witnesses as to what the victim had said when she complained to them about the appellant's assaults fall within the same category. These other such inconsistencies related, for example, to which shelf a file had been on when the victim was touched by the appellant as she was trying to retrieve it and which incidents in particular she had told her husband about. Perhaps the major inconsistency between the victim's evidence and that of witnesses to whom she had complained of these assaults concerned the contradiction between the victim's assertion in evidence that the assaults on her had only commenced once her companies office had moved from the United Centre to a new Central Tower address and the evidence of PW3, a workmate, who said the victim had started to complain of the assaults whilst still at the old address before the company had moved.

12. In my judgement, as with the other uncertainties and contradictions in the victim's evidence and between the victim and other witnesses, the magistrate was entitled to regard this as not such as to undermine the victim's credibility. Indeed, what is striking about the evidence of the victim and the other prosecution witnesses who were cross-examined on these matters is the general consistency between them as to the evidence of the victim at trial and the complaints she made at the time. In my judgment, there is no merit to the appellant's complaint that the magistrate wrongly approached the evidence of the victim in this regard.

The magistrate wrongly supported the victim's credibility by speculating

13. This complaint arises out of the defence at trial attacking as implausible the victim's evidence to the effect that after the incident relating to the 1st charged offence she had retired to the washroom and cried for 10 minutes. The defence case was that this was implausible because so far as the victim's evidence was concerned she had been, by this time, subjected to a number of such assaults and any such behaviour, if it was to occur, would have occurred at an earlier stage. The magistrate said in dealing with this particular defence submission.

" As for the Defence's saying that PW1 [the victim] should not cry if there were already previous assaults on her by the Defendant, this was not well founded as stress of these assaults on PW1 [the victim] could and should be cumulative."

It is that statement by the magistrate which is complained of as being speculation.

14. In my judgment, the magistrate was perfectly entitled to apply her common sense to this particular aspect of the evidence. She was not purporting to give expert evidence nor was she speculating. She was simply saying that there was nothing, in her judgment, implausible about the victim on the occasion of the 1st charged offence finally breaking down and crying, for the simple reason that stress or pressure can have a cumulative effect. That is common sense. It is not speculation or guessing. The magistrate was simply saying, in effect, that she placed no weight on the prosecution's submissions in this regard for the simple reason that, as a matter of common sense, she did not find the victim's behaviour to be implausible as asserted by the defence. There is no merit in this ground of appeal.

That the magistrate wrongly rejected the appellant's evidence in that she did so for no good reason and did so in a way which meant she had applied a double standard in assessing the victim's and the appellant's credibility

15. The complaint is that the magistrate allowed the appellant less latitude so far as credibility is concerned than she had allowed the victim when considering inconsistencies and implausibilities in his evidence.

16. It is true that the issue of credibility was foremost of the issues before the magistrate. In her Statement of Findings it is fair to say that a very great deal of the reasoning of the magistrate was devoted to the question of both the victim's and the appellant's credibility. In analysing the issue of the appellant's credibility, the magistrate concentrated on a number of aspects of his evidence. Some of those aspects, apparently thought by her to be the more important failures in the appellant's evidential credibility, were his claimed reason for his failure to take issue with the victim's assertion in the work place that he had bear-hugged her and slapped her and that he later had apologised for assaulting her. That claimed reason was that as the victim was three to four months pregnant he thought she had made up the assault story and had imagined or misunderstood him to have apologised when he had not and he thought it best to perhaps deal with it after she had given birth, which would have been some four or five months in the future.

17. The magistrate was entitled to regard the appellant's reasons for not taking issue with the victim's assertions against him, given the serious nature of those assertions, as unconvincing and implausible. Perhaps regarded more importantly by the magistrate was her finding that the appellant had given different versions of what had transpired at the time of the 1st charged offence. She accepted that the appellant, when confronted by his superior with the victim's allegation concerning this offence had said that he had reached out to the victim to prevent her falling or preventing files from falling as the victim was reaching up to get a file. She found that he subsequently told another superior at work that his body may have contacted the victim's body accidentally. In court, the appellant denied any bodily contact between himself and the victim at all.

18. Further, so far as the 2nd charged offence was concerned, which took place about one year after the first offence and after the appellant had been told it was best if he stayed away from the victim and to be cautious in his dealings with her, the appellant admitted he had asked the victim to stay back alone with him after a conference. It was at this time the 2nd charged offence then occurred. The magistrate found that in the circumstances of the history of the 1st charged offence, and the warning the appellant had been given, his reasons for asking the victim to stay back alone with him in the room after the conference was over were unconvincing and implausible. Those reasons were that he thought the victim's behaviour was now normal, as a year had elapsed, and he did not think about the situation. He wanted to chide the victim about her long lunch hours and failure to take phone messages. The magistrate was right to regard this explanation as implausible especially considering the fact that the victim's immediate superior was the person the appellant had asked to leave the conference room so that he and the victim were alone. There were other reasons given by the appellant for his dealings with the victim on the occasions of the third and 4th charged offences. The magistrate found those reasons to be implausible as well.

19. In short the magistrate's reasons for placing no weight upon and rejecting the appellant's evidence was in large part based upon innate implausibilities in his evidence as well as somewhat different versions given by him as to the circumstances of the 1st charged offence. The magistrate was entitled to find, as she did, that the implausibilities and contradictions in the appellant's evidence were of a greater effect and significance so far as his credibility was concerned than were the relatively more trivial inconsistencies in the victim's evidence on her credibility.

20. A magistrate or trial judge is in the best place to assess the credibility of witnesses. They have the advantage of seeing and listening to the witnesses give evidence. They can assess that witnesses evidence in the context and within the perspective of all of the evidence given before them in the trail. So far as this ground of appeal is concerned, the magistrate gave reasons for rejecting the appellant as a witness of any credit. Those reasons were in large part based on implausibilities in his evidence and in what the magistrate found to be significant differences between the versions of the events of the 1st charged offence he gave to the court and previously to other witnesses. The magistrate's reasons for rejecting the appellant's evidence were different in kind and significance from the matters advanced in challenge to the victim's evidence at trial. The magistrate, at the end of the day, was entitled to reject the appellant's evidence and accept that of the victim. In doing so, she did not apply two different standards. This ground of appeal cannot succeed.

That the magistrate wholly failed to deal with the contents of the appellant's cautioned statement

21. It is true that while referring to the statement in her Statement of Findings, the learned magistrate did not in any way evaluate or apparently take into account the contents of the appellant's cautioned statement. That statement was admitted into evidence, apparently by consent with the appropriate agreement as to its voluntariness. When admitted during the course of the prosecution case, it could properly be described as a "mixed statement" inasmuch as while it was a complete denial of any wrongdoing by the appellant, it did amount to an "admission", if that is what it can be called, by the appellant that he was present alone with the victim at least on the occasions of the 1st and 2nd charged offences. So when produced during the prosecution case it was a "mixed statement" in the sense of that phrase used in R.v. Sharp (1988) 1 WLR and, without more would have been required to be dealt with by the tribunal of fact as such : R.v. Leung Tung Wing [1995] 2 HKLR 271; and R.v. Leung Kam Kwok [1986] HKLR 188.

22. But the appellant, after the close of the prosecution case elected to give evidence. The evidence he gave was in the same terms as the contents of his cautioned statement. There was no significant difference. That then meant that the cautioned statement had become immaterial so far as any real issue in the case was concerned and the substantive issue before the magistrate was whether any weight could be given to the appellant's evidence. It should be borne in mind so far as the present ground of appeal is concerned that the comments in Sharp's case relate only to the situation where either the defendant does not give evidence or his evidence differs in its terms from the contents of his admissions under caution which are in evidence against him. In R.v. Vu Traung Ming 1994 1 HKC 161, the Court of Appeal said, in dealing with circumstances similar to the present case, where the defendant gave evidence in substantially the same terms as a "mixed statement" the prosecution had adduced in evidence against him :

"[If the defendant gives evidence as he did in the present case], it seems to us that the case is not within the Sharp line of cases and the self-serving part of the statement, which was not made on oath or tested by cross-examination, cannot be treated as evidence of its contents. At the most, it can be taken into account by the jury when considering D3's evidence, as the judge directed, as evidence of the reaction of D3 to police interrogation within hours of her arrest and to evidence of her consistency of denial..."

23. Indeed, in that case the defendant's evidence had differed from the contents of his cautioned statement to some small extent. The court held that that difference was, however, immaterial. In the present case there was no difference between the appellant's evidence and the contents of his statement under caution. In my judgment, the position is this; in the event a mixed statement is produced by the prosecution against a defendant and that defendant does not give evidence then the tribunal of fact must consider the contents of that cautioned statement as to weight in terms of the principles set out in Sharp. The same must be done even if the defendant does give evidence but his evidence differs in a material aspect to the contents of the confessional parts of that statement. If his evidence differs only from some exculpatory part of the statement then that does not require any application of the principles of Sharp. That in my view would and could only go to the credibility of the defendant. If a defendant gives evidence, as in the present case, in the same terms as his statement under caution then the real issue before the tribunal of fact is what weight to attach to the appellant's evidence. There is no need to give any Sharp direction for the simple reason that any part of that cautioned statement which may have amounted to an admission has now became a non-issue. Indeed, in giving a Sharp direction to a jury (or to oneself, in the case of a magistrate or judge sitting alone) one may distract the jury, or be seen to be distracting oneself, from that real issue as to what weight to give to the defendant's evidence.

24. Accordingly in the present case, the magistrate cannot be criticised for not giving a Sharp direction to herself or for not embarking upon an analysis as to what weight to place upon those parts of the appellant's cautioned statement initially regarded as admissions made by him.

25. That leaves one final aspect of the appellant' cautioned statement and the magistrate's approach to it. Mr Cheng criticises the magistrate for not taking into account the exculpatory parts of the appellant's cautioned statement. It is true that the magistrate did not refer to those parts of the appellant's cautioned statement in her Statement of Findings. Those exculpatory parts, effectively being the appellant's denial of the offences, could only have been taken into account in two ways. Firstly, if the prosecution had attacked, in some way, the appellant as having recently fabricated his evidence, then the exculpatory parts or consistent parts of the appellant's statements under caution could then have been relied upon to rebut such an allegation of recent fabrication by establishing the consistency of his evidence with his prior statements. No such allegation was made by the prosecution and the magistrate, accordingly, did not have to address this aspect of the appellant's cautioned statement.

26. The second way in which the exculpatory parts of the appellant statement could have been taken into account was in terms of his immediate reaction when first questioned about these matters by the police. The magistrate made no reference to any such aspect of the appellant's statements and apparently therefore did not take them into account as evidence of his immediate reaction supporting his defence. In my view, it would perhaps have been better if she had given some brief indications in her lengthy Statement of Findings as to this. But, in any event, in my judgment she was right not to take the appellant's cautioned statement contents into account, as evidence in this regard. The cautioned statement was made more than a year after the defendant had first been confronted with an allegation of indecent assault by the victim in respect to the 1st charged offence and had denied it to his superiors at his work place. Shortly before his arrest by police, he had again been confronted with the victim's allegations of subsequent indecent assault in respect of other charged offences and had again denied them in the presence of his work superiors. In other words there can have been little weight attached to his denials to the police. They were far from spontaneous. They would have been of little assistance in indicating the true state of his mind. There is no merit in this final ground of appeal.

27. Accordingly the appellant's appeal against his conviction is dismissed.

28. I turn now to the appellant's appeal against sentence.

29. In respect of the first and second offences, the appellant was sentenced to four months' imprisonment on each. For the third and fourth offences he was sentenced to three months' imprisonment on each. Three months of the sentence imposed in respect of the 2nd charged offence was ordered to run concurrently with the sentence imposed in respect of the 1st charged offence. The sentence imposed in respect of the 3rd charged offence was to run concurrently with the sentence imposed in respect of the 2nd charged offence. One month only of the sentence imposed in respect of the 4th charged offence was ordered to run consecutively to the sentence imposed in respect of all other offences. That resulted in a totality of six months' imprisonment. The appellant complains that the sentence was wrong in principle in that the magistrate wrongly regarded a community service order as being inappropriate and that generally the sentence was manifestly excessive.

30. The magistrate in arriving at her sentence considered that a community service order was inappropriate. She was right to do so. Although there was some previous confusion in the authorities in Hong Kong as to whether all or only some or one of the conditions in R.v. Brown (1981) 3 Cr App R(S)294 were required to be satisfied before a community service order became appropriate, it now appears from HKSAR v. Wong Yiu Kuen CACC463/2000 the issue is settled. All the factors must be satisfied. One of those factors or conditions is a demonstration of remorse. In the present case, the appellant was convicted after trial and he continued to assert his innocence during the sentencing procedure. There was nothing before the magistrate suggesting remorse. She was right to reject a community service order as being inappropriate.

31. Secondly, the appellant claims that his totality of six months' imprisonment is manifestly excessive. I think he is right. Indecent assault is an offence with a potentially huge range. It can encompass quite trivial offences and extend to an offence just short of rape. In the present case Mr Cheng points out that the nature of the four assaults was not at the more serious end of the range. The appellant, on each occasion, touched the victim's breast outside her clothing. I agree that the form of assault was towards the lower end of the range.

32. There are some complicating matters in the sentencing of the appellant for these offences however. Firstly, it is true that in respect of the 1st charged offence the victim was pregnant. That offence occurred about five months before the victim gave birth. Mr Cheng criticises the magistrate for regarding this as an aggravating factor.

33. In my view, the magistrate was right to consider that an aggravating factor. She was right also to consider as an aggravating factor the fact that the appellant was effectively one of the victim's superiors at work and that the offences in this case took place over a relatively extended time frame, and continued after the victim had complained to the appellant's superiors at her workplace. I do not think that the working relationship between superior and staff can really fairly be said to create an equivalent relationship of trust as exists for example between doctor and patient or teacher and child for sentencing purposes. But it is nevertheless an aggravating factor. Employees should be protected from assaults upon them by their employers. They are in a vulnerable position. The victim in the workplace must return to the scene of the assaults every day and no doubt, on occasion, must continue to deal with the person who had assaulted them.

34. But it seems to me that, even given these aggravating factors, the proper perspective as to how serious these offences were would have concluded that they were at the lower end of the potentially wide range of indecent assaults. Some years ago when indecent assaults on female passengers on the MTR were perceived to be on the increase, sentences thought to be of considerable deterrence were found to be needed. In Attorney General v. Wai Yau Shun AR17/1990, the Court of Appeal decided that for such assaults, rather than the fines which had previously been imposed, sentences of between 14-28 days would normally be imposed upon first offenders and sentences of from two to six months for subsequent offenders.

35. Obviously what is thought to be an appropriate sentence for an indecent assault on an MTR train can be of only the most general assistance in determining the appropriate sentence in other cases. Each case must be dealt with on its own facts. But it is of some assistance as to the approach taken by the courts to "touching" offences committed by first offenders in circumstances where deterrence is a factor, as it is in cases such as at present which occur in the workplace.

36. Where does that leave us? Firstly, in my judgment the magistrate should have regarded the appellant in this case as a first offender. He had a clear record before his convictions in this case. In those circumstances an appropriate starting point of sentence for each of these offences would have been towards the upper end of the scale thought appropriate for a first offender in Wai Yau Shun, but in my judgment certainly not sentences in the range of three to four months' imprisonment imposed by the magistrate. As said in Wai Yau Shun the appropriate principle to be applied to first offenders with unblemished and perhaps otherwise commendable backgrounds in their working and family lives in cases of this sort is that of the "clang of the prison gates". In my judgment each offence, prior to any aggravating factor being applied, warranted a starting point of one month's imprisonment.

37. Given the working relationship which was abused by the appellant each of those sentences should be enhanced by two weeks and the 1st charged offence, given the state of pregnancy of the victim at that time, should be enhanced by a further two weeks. That would result in sentences of two months' imprisonment for the 1st charged offence and six weeks' imprisonment for the 2nd, 3rd and 4th charged offences.

38. Taking into account the overall criminality of the offences it seems to me that the approach to totality by the magistrate was essentially correct. Accordingly I order that the magistrate's sentences be substituted by sentences as follows :

For the 1st charged offence, two months' imprisonment

For each of the 2nd, 3rd and 4th charged offences, six weeks' imprisonment. All sentences are to be served concurrently except that four weeks of the sentence imposed in respect of the 2nd charged offence is to be served consecutively to the sentence imposed in respect of the 1st charged offence, that is a totality of three months' imprisonment.