HKSAR v. CHAK KONG FAI

CACC 353/2019

[2021] HKCA 499

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 353 OF 2019

(ON APPEAL FROM HCCC NO 109 OF 2019)

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J U D G M E N T

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Hon Macrae VP and Zervos JA:

1.  We agree with the judgment of McWalters JA but wish to add some comments of our own on the common law exception of recent complaint in sexual cases. This exception operates to allow evidence of a complaint made by a complainant in a sexual case as long as it was made “at the first opportunity after the offence which reasonably offers itself”. See R v Osborne^[1]. As explained by McWalters JA, the evidence of recent complaint is permitted for the limited purpose of showing the consistency of the complaint with the complainant’s evidence in assessing the complainant’s credibility, and cannot be used as evidence of the truth of the facts stated in the complaint.

2.  In his comprehensive analysis of the development of the principles in respect of this subject, McWalters JA emphasised that a myriad of factors may be taken into account in determining whether the complaint has been made at the first reasonable opportunity.  It is this aspect of the law on recent complaint that we wish to comment upon.

3.  In our view, the law has developed to place more appropriate emphasis on the complainant’s “reasonable opportunity” in making the complaint.  Whilst the temporal proximity of the complaint to the alleged offence is treated as a key consideration, there may be other factors of significance in deciding whether the complaint was made in reasonable time.  A delay in making a complaint may stem from a variety of factors, such as the age and level of maturity of the complainant, the threat of harm and intimidation, a state of confusion or psychological trauma, feelings of personal blame or shame, the complainant’s relationship with the offender, the position or status of the offender, fear of not being believed or of affecting existing relationships, or even a lack of appreciation of the criminality of the offending conduct. 

4.  In HKSAR v Hung Wai Tak^[2], this Court cited the remarks of Roch LJ in R v Valentine^[3], holding that they reflected the modern and proper approach to evidence of recent complaint.  Roch LJ, having traced the development of the law on this subject, concluded that:

“The authorities establish that a complaint can be recent and admissible, although it may not have been made at the first opportunity which presented itself. What is the first reasonable opportunity will depend on the circumstances including the character of the complainant and the relationship between the complainant and the person to whom she complained and the persons to whom she might have complained but did not do so. It is enough if it is the first reasonable opportunity. Further, a complaint will not be inadmissible merely because there has been an earlier complaint, provided that the complaint can fairly be said to have been made as speedily as could reasonably be expected. … The complaint has to be made within a reasonable time of the alleged offence and on the first occasion that reasonably offers itself for the complainant concerned to make the complaint that was made in the terms in which it was made.

We now have greater understanding that those who are the victims of sexual offences, be they male or female, often need time before they can bring themselves to tell what has been done to them; that some victims will find it impossible to complain to anyone other than a parent or member of their family whereas others may feel it quite impossible to tell their parents or members of their family.”

5.  The Court in Hung Wai Tak^[4], held that while the complaint was not as recent as it might have been, the mere fact that there were earlier opportunities for the complainant to have complained could not amount to sufficient reason in itself to render the evidence inadmissible. In deciding whether to admit the evidence, the judge was bound to look at all the circumstances of the case, including the complainant’s background and her relationship with the defendant before deciding whether the complaint was made on the first opportunity which reasonably presented itself after the alleged offence.

6.  It is important to bear in mind that in sexual assault cases involving young persons, there may be factors operating on the complainant that brought about a delayed response to the offending conduct.  In our view, it would be a mistake to equate too readily a young person’s reaction or response to inappropriate or improper behaviour by another with that of a mature adult.  As pertinently observed by Stock JA in HKSAR v Kong Yun Chiu^[5], in sexual cases involving breaches of trust, children are much more likely than adults to suffer the trauma in silence rather than report the behaviour of someone in a position of authority or responsibility. 

7.  The decision in a particular case as to whether the complaint has been made at the first reasonable opportunity is an evaluative judgment and will often involve questions of fact and degree. Accordingly, in deciding whether a complaint was made at the first reasonable opportunity, all the relevant facts and circumstances of the case must be taken into account, and the question must be judged by reference to the sensitivities of the complainant and the circumstances in which the complainant was placed at the relevant time or times. 

8.  Relevantly, this area of law has been extensively reformed in the United Kingdom by the enactment of section 120 of the Criminal Justice Act, 2003, including provision for the admissibility of a previous complaint without the requirement that the complaint should have been made shortly after the alleged offence.

Hon McWalters JA:

A.   Introduction

9.  The applicant pleaded not guilty to 19 counts of sexual abuse involving different offences all contrary to various provisions of the Crimes Ordinance, Cap 200, and stood trial before Deputy High Court Judge Stuart-Moore (“the judge”) and a jury.  There were 11 counts of indecent assault, contrary to section 122(1) of that Ordinance (counts 1, 2, 3, 10, 11, 12 and 15-19); two counts of attempted rape, contrary to section 118(1) (counts 4 and 13); one count of attempted non-consensual buggery, contrary to section 118A and 159G (count 6); and one count of rape, contrary to section 118(1) (count 8).  Some of the counts had offences laid in the alternative. The alternative counts were attempted unlawful sexual intercourse with a mentally incapacitated person (“MIP”), contrary to sections 125(1) and 159G, (count 5, alternative to count 4); attempted buggery with a MIP, contrary to sections 118E(1) and 159G, (count 7, alternative to count 6); unlawful sexual intercourse with a MIP, (count 9, alternative to count 8); attempted unlawful sexual intercourse with a MIP, (count 14, alternative to count 13).

10.  The reasons for the alternative counts were because the victim in this case (“X”), was 15 at the time of the first offence but was 16 when the other offences occurred and because she suffers from autism and mild mental retardation which, it was asserted, made her a MIP. 

11.  The applicant was convicted of counts 2, 4, 8, 10, 11 and 14-19.  Of the counts of which he was convicted, only count 14 was an alternative MIP count.  He was acquitted of counts 1, 3, 6, 7, 12 and 13.  He was sentenced to 15 years’ imprisonment and now seeks leave to appeal against his conviction.

12.  At the hearing of his appeal we reserved our judgment.  This is my judgment.

B.   The trial

13.  X had attended a special school since primary 1.  The applicant was 56 years old at the time of trial, was a trained social worker and had been working at this special school since 1994.

14.  The key prosecution witness was X, and her credibility was the major issue for the jury to resolve.  The police conducted four video recorded interviews with X in the presence of a clinical psychologist and a female detective police constable (PW5).  These video recorded interviews were all played to the jury and stood as X’s examination‑in‑chief.

15.  The defence case, as presented through cross-examination and submissions at trial, was that the applicant was a man of good character and that none of what X said had happened.  Furthermore, X’s account was undermined by her failure to make timely complaint, despite having had ample opportunity to do so.

16.  In order to prove those counts involving a MIP, the prosecution called two expert witnesses both of whom expressed the opinion that X was a MIP for the purposes of section 117 of the Crimes Ordinance.  In turn, the defence relied on its own expert witnesses to counter the prosecution’s case that X was a MIP.

B.1.  The prosecution case

17.  In order to appreciate the prosecution case in its entirety and to address the grounds of appeal, it is necessary to also refer to the factual allegations behind the counts of which the applicant was acquitted.

B.2.  Count 1 (acquitted)

18.  The history of the applicant’s abuse of X commenced with the incident that is the subject of the first count.  It alleged that on or about 29 July 2017 the applicant indecently assaulted X on a bus on the way back from a golf lesson.  X said she was the only girl in the golf class and it was at the behest of the applicant that she had undertaken these lessons.  In the 3^rd interview, X described how every Saturday throughout that summer X played golf at Wu Kai Sha and the applicant would sit next to her on the bus and during the journey would touch her on her arms, hands and thighs.  X remembered she was wearing a green t-shirt and black trousers and was able to describe where they would sit on the bus.

19.  The applicant was represented both at trial and on appeal by Mr Andrew Bruce SC[6]. The defence case, as put to X was that there had never been any improper touching.  X disagreed and claimed she had said “no” and “don’t” to the applicant but others on the bus “would not have heard or been able to see what was going on”^[7].

B.3.  Count 2 (convicted)

20.  The 2^nd count alleged that on 17 December 2017, after a school Christmas party, the applicant indecently assaulted X on the rooftop of the school. It was the prosecution case that the applicant took X to the roof of the school, where he took off her top and touched her breasts and her buttocks.  When X took the police officers back to the scene, she showed the police officers the location of this assault.  X said she remembered the date because she had kept a record of it on the calendar of her mobile phone.

21.  In cross-examination, Mr Bruce again put to X that none of this abuse on 7 December had in fact happened.  She was asked why she had not told anyone and she explained that she was afraid, but she agreed that the right thing to do would have been to tell someone.

B.4.  Count 3 (acquitted)

22.  The third count was that on 4 March 2018 the applicant indecently assaulted X in the social worker’s room of the school.  It was the first of several assaults in this room.

23.  In cross-examination, Mr Bruce put to X that this assault did not occur and the defence produced records in order to show that the applicant was on casual leave on the afternoon of that day.

B.5.  Counts 4, 5, 6, 7, 8 and 9 (convicted of counts 4 and 8 only)

24.  Counts 4 – 9 all occurred on the same day, 4 April 2018, and at the same location, a flat on the rooftop of the Cheong Hung Building, Nos 91-95 Wing Fong Road, Kwai Chung, New Territories.  Count 4 was the offence of attempted rape, count 6 the offence of attempted non‑consensual buggery and count 8 the offence of rape.  Counts 5, 7 and 9 were the equivalent MIP offences to these counts and were pleaded in the alternative.

25.  On this day, the applicant met up with X and took her for lunch, after which he took her to a flat in the Cheong Hung Building.  The flat was occupied by a social worker at X’s school who was responsible for X’s welfare.  The applicant had an electronic key to get into the flat because he had helped the occupant to move into it sometime earlier.  When the applicant took X to the flat the occupant was out of Hong Kong on holiday and was not due to return for another three days.  She had not given anyone permission to use her flat and had no idea that someone had done so.

26.  X said the applicant pushed her into a room of the flat and she was scared he would kill her by squeezing her neck.  In X’s 3^rd interview, she recounted how the applicant attempted to unsuccessfully penetrate her anus with his penis, during which he did not use a condom or lubricant.  It was after this that he put on a condom and used lubricant to penetrate her vagina.  X said she had tried to keep her legs closed but the applicant had prized them open.  X said she was in pain and spoke of her hymen being torn as there was bleeding.

27.  It was an admitted fact that on 25 July 2018 X was examined by a Forensic Pathologist, Dr Cheung Hiu Ni and his report was produced as exhibit P6. In his evidence, he said that the hymen of X was torn but that the tear could have been several weeks or even months old.  Dr Cheung expressed the opinion there were signs of previous penetrative injuries.

28.  X said she expressed to the applicant at the time her pain but he was not bothered.  She was asked if she made a movement such as pushing the applicant away to which she said: “Yes, yes”^[8].  She likened her situation to that of a sex doll.

29.  X said she then had a shower and used a cloth towel with a printed giraffe on it to dry herself, which the applicant had bought in advance and took out for X to use.  After she had finished using it, the applicant put it in a bag and disposed of it in a rubbish bin on the floor below. 

30.  X said they were in the flat for an hour and that the pain lasted into the next day. She said when she had tried to escape, the applicant would not let her leave, and blocked her way using his body.

31.  When the abuse had finished, X said they had a coffee in Metroplaza, where she told the applicant of her pain and he recommended that she have a bath and sent her home in a taxi.

32.  On 25 July 2018, X was able to lead the police officers to the flat.  She described the layout of the furniture in the flat at the time of the assault and how it was then different.  In particular, X described the bed and the wardrobe in the bedroom as being different from that which she saw on 4 April.  This was something that was later confirmed by Miss Ng (PW3) who was the occupant of the flat and who testified that the furniture, specifically the bed, had been moved.  The prosecution also produced the school duty sign-in book (Exhibit P12) which indicated the applicant had taken leave on the afternoon of 4 April.

33.  The next day, that is April 5, X went to Guangzhou with her family, other than her mother, to take part in the Ching Ming Festival.  On the way back, whilst on the train, she started running a high fever and complained to her father and sisters that throughout the day she had been in great pain.  This will be described in more detail later when considering the mother’s evidence, but it is mentioned now in order to put events in their proper chronological order.

34.  In cross-examination, X was asked, and agreed, that by this stage she believed that the applicant “was not a nice man, but a very bad man”^[9] and yet, so it was put, she chose to go with him.  She answered if she did not do so then she would have been beaten.  X said she did not want to go to the flat and that she was forced to do so.  She said that she didn’t want to leave Metroplaza and that he used his hands to drag her along.

35.  Count 8, the rape offence, was the offence for which the applicant was arrested.  When the applicant was arrested, he was provided with considerable details of what was being alleged against him.  The police officer said:

“Now (homophone) I arrest you for the offence of ‘rape’ because you were suspected that at around 12:30 noon on 4 April 2018, you met up with a mildly mentally retarded girl X (transliteration), who was 16 years old at that time, at Kwai Fong, Mass Transit Railway Station. Then together with her, the two (of you) went to eat something, after having some food, you forced X to go up to the inside of the rooftop house at Flat E on the rooftop of Cheong Hung Mansion, (deletion) No. 22 Mei Fong Street, Kwai fong with you. Then you pushed X into a room of the house where there was/were (a) bed(s). At the door of the room, you took off all the clothes that X wore including the T-shirt, the trousers and the underwear. Then you also took off all the clothes you wore. You requested X to lie on the bed. Then you embraced her and kissed her, touched her breast(s) and (her) lower parts, and also sucked her lower parts with (your) mouth. This lasted for about 15 minutes. Then you knelt between the two legs of X and under the circumstances that X did not consent, you thrust your penis into the vagina of X. During the course, you did use condom and lubricant. Up to your ejaculation in the condom, this lasted for about 30 minutes.”

36.  The police officer then cautioned the applicant and his response was recorded as follows:

“After (I) finished stating the caution, CHAK Kong-fai said to me in punti dialect, ‘I did not rape her. I only kissed her and touched her breast(s) inside the rooftop house. (I) also kissed her lower parts and thrust (my) finger(s) into her lower parts. But she consented to my doing so, and it was her who requested me to do so. My penis, after being put on a condom, did rub against her lower parts. However, I did not thrust (my) penis into her vagina.”

37.  It was the defence case, as put in cross-examination of the police officer, that the applicant exercised his right of silence and that the officer had fabricated this reply and written down what he had wanted the applicant to say^[10].

38.  Although the alleged statement by the applicant contained a denial of rape, it did contain a number of admissions, all of which were contrary to the defence case at trial.

39.  Finally, there was the evidence of the occupant of the flat where the offences occurred.  Her evidence, which is summarised at [81]‑[82] of this judgment, established that she was out of Hong Kong on the day that the offences occurred, that she had given to the applicant a key to her flat before she left and that the applicant did not return this key to her until 18 July 2018.

B.6.  Count 10 (convicted)

40.  Count 10 alleged that the applicant indecently assaulted X on 6 April 2018 at a car park at Hong Kong Gold Coast, Tuen Mun.  X said she was taking part in a school activity selling flags at the Tai Koo primary school, and that she was still sore as this was only just two days after the previous bout of abuse on 4 April.  Whilst selling the flags, X said the applicant had rung her and asked if she was alright.  X said after selling the flags she was driven by the applicant to a car park at the Gold Coast.

41.  X said the applicant started kissing her on the mouth and that they were seen by people in another car.  X remembered: “We looked like boy and girl friend”^[11]. X described how in the carpark the applicant was kissing her and touching her private parts and when this finished, X said the applicant took her to an Italian restaurant.

42.  Mr Bruce suggested this never happened and asked X why she went with the applicant after “what you say were your previous experiences with him?”  X answered that she was forced to^[12].

B.7.  Counts 11 and 12 (convicted of count 11 only)

43.  Count 11 alleged that on 9 May 2018 the applicant indecently assaulted X at Tsuen Wan Park, and count 12 alleged that on the same day he indecently assaulted X at Tsuen Wan West MTR Station. 

44.  After school finished on 9 May a parent, (not X’s), took X to Lai King MTR station where X said the applicant had arranged to meet her. From there they went to Cheung Sha Wan Plaza for afternoon tea.  This was about 6 o’clock in the evening. However, whilst they were having tea, X received a call from her mother asking her to come to Nina Wang Tower (in Tsuen Wan West) to help her with a job.  X said the applicant overheard her conversation with her mother, which prompted him to squeeze her neck from behind.  She said she tried to leave but that he followed her to the MTR and onto the train itself.

45.  When she got off the train at Tsuen Wan West, she said the applicant followed her to Nina Wang Tower, but that he did not come inside, rather he waited for her on the street. X went into the tower and when she came back down the applicant was waiting for her.  From there, X said the applicant took her for wonton noodles at Citywalk, where they ate for 45 minutes.  Once they had eaten, X said they took a 5 minute walk to a bench in Tsuen Wan park, and this is where the “hugging and kissing started again”^[13]. X described feeling scared and wanting to leave, but she said the applicant blocked her path when she tried to do so.  X said he stroked her private parts over her clothes and she protested, saying “no” three times, but the applicant continued^[14]. X said he then grabbed her right hand and used it to fondle his genitals, causing him to get an erection.

46.  After they left Tsuen Wan Park they went to West Rail MTR station where, X said, there were hugs and kisses on the platform.  X then returned home by herself.

47.  Mr Bruce, in cross-examination, made a point of the fact this would have all been very public and that she was in a school uniform, to which X agreed. Mr Bruce asked “anyone walking by would have seen you then with a much older Mr Chak?”^[15]. X claimed that anyone would have been able to see the fact she was not happy with what was going on.

B.8.  Counts 13, 14 and 15 (acquitted of count 13, convicted of counts 14 and 15)

48.  Count 13 alleged that on 20 May 2018, a Sunday, the applicant attempted to rape X at the school.  As an alternative to count 13, count 14 alleged attempted unlawful sexual intercourse with a MIP and count 15 alleged a further incident of indecent assault that was claimed to have taken place on the same day and in the same place as counts 13 and 14.

49.  The day began with the applicant inviting her to breakfast by phone.  After they had breakfast, they went by minibus to the school and, as this was early in the day, the school was empty.  There was a Lions College Prize Presentation due to be heard at noon and this involved the students first assembling at the school at 9 am and then heading to another venue for the prize presentation.

50.  When X arrived at the school she was told by the applicant to go to the social worker’s room.  X said this was at 8:15 in the morning. Once there, X said the applicant started hugging and kissing her and then undressed her.  X said the applicant tried to penetrate her but could not. This incident lasted until 9 am.  The prosecution produced the school activities record book which showed activities at the school did not start that day until 10:30 am, thus allowing the applicant time to sexually assault X before others started arriving at the school.

51.  X said that when she left the room she was seen by a Mr Wan Ting-yip who was a class master. She described what transpired in this encounter as follows:

“Mr Wan … saw me, I greeted him and he found me very scared. Then at the lunch hour on the following day, May 21, he purposely asked me, ‘What had you two done?’ ‘Only chatted and helping’. Then he-I-he said ‘I don’t believe what you said’. Then he began to suspect me to have been sexually abused by him, that’s it.”^[16]

52.  X described how later that same day, at about 1 pm, also in the social worker’s room, the applicant again sexually abused her.  This time, X said he inserted two fingers into her vagina, touched her breasts and “rubbed my bum”^[17]. She described his penis touching her belly and the applicant forcing her to pull her pants half-way down.

53.  Mr Bruce, in cross-examination, asked X why she had gone into the social worker’s room in spite of all that had happened.  X answered: “He forced me to”^[18].

B.9.  Charges 16-19 (convicted of all counts)

54.  Count 16 alleged that on 9 June 2018 the applicant indecently assaulted X at the school.  On this occasion the applicant cuddled and kissed X in the social worker’s room at the school.

55.  Count 17, was another indecent assault that was alleged to have taken place later the same day, but at the car park at Sam Shing Estate, No 6 Sam Shing Street, Tuen Mun.  X had participated in an activity with her school at Lai King and when this was finished she went with the applicant in his car to Tuen Mun where they had lunch at about 1 pm or 1:10 pm at Wah Fu estate.  X said the car was parked in a car park and whilst they were in the car, and before they went to lunch, the second indecent assault took place, with the applicant touching X’s vagina, breasts and buttocks.  X said her underpants and pants were removed half way down and the applicant put his fingers into her vagina.  X said she protested and said “no” but the applicant carried on.  This was count 17.

56.  Count 18, alleged that another indecent assault occurred at the same car park when they returned to the car after having finished their lunch.  It took place on the backseat of the applicant’s car when the applicant touched X’s private parts.  X said two security guards walked past and must have seen something going on as they told the applicant and X to leave, which they did.

57.  They then drove to Tai Lam Country Park where the applicant parked his car.  The applicant then began touching X’s private parts, her buttocks and breasts.  X said this abruptly stopped when some government vehicles drove by and X said she actually heard one of the men in the vehicles say “wow” as they drove past^[19]. This was count 19.

B.10.  X’s diary

58.  X said she had kept a diary for 2017/18 but it had been lost when her house was being renovated on 7 June 2018.  According to X she “tried to search for it with my family, but I photographed pages from the original diary.  I selected the pages.  It was my decision which pages to photograph”^[20]. Mr Bruce asked in cross-examination when it was that her family had found out about her losing the diary and she said it was August 2018.  X explained: “After I made allegations of misconduct about Mr Chak to my parents I did not add anything to my original diary”^[21]. This was in response to a suggestion by the defence that she perhaps added to it after the event.  X further said “I photographed the diary for a record.  I also wrote a diary after the other one was lost.  I wrote that myself but I copied it from what someone else had written”^[22]. It was the defence case that what was recorded in this diary was dictated by someone else for X to write down, and that it was a recollection of events that had taken place sometime before.

B.11.  Cross-examination of X on her failure to complain

59.  There is nothing in X’s pre-trial video interviews, which stood as her examination-in-chief, which could be taken as evidence of recent complaint.  There is a reference to her being unwell on the train journey back from Guangzhou which hints at a conversation between X and her younger sister, in which her younger sister appears to have suspected that X had been sexually abused^[23].

60.  After the videos had been played, the prosecutor only asked X a very small number of questions and none of them touched on complaints made by X.  Thus at the end of X’s examination-in-chief no evidence of recent complaint had been adduced by the prosecution from X.

61.  It is necessary, therefore, to see what was elicited from X under cross-examination and how it was elicited.  The relevant transcript of Mr Bruce’s cross-examination is as follows:

“Q. … Do you know how your family found out?

A. I know.

Q. How did they find out?

A. I was told to speak out.

Q. Who was it that told you?

A. Younger sister.

Q. Yes. And either when did that occur, or roughly when did that occur?

A. In July 2018.

Q. I see. And could you tell me, was this a conversation that you’d had with her?

A. Yes.

Q. And she started asking you questions. Is that correct?

A. Yes.

Q. What were the nature of the questions? Can you recall now?

A. At the beginning, she asked me questions about the events about Mr Chak.

…

Q. So you told things to your younger sister. Is that correct?

A. Yes.

Q. And she asked you a whole lot of questions about it. Is that correct?

A. Yes.

Q. And is it right that -- was it your original intention to keep all of this to yourself?

A. I would tell my family.

Q. When were you planning -- I know that you had conversations with your family about this, but prior to your younger sister asking you about this topic, was your intention to keep this to yourself?

A. That’s my original intention.

Q. Yes. Now, I remember in the video, and I’m sure you remember too, that you said that on about the -- in April, after the events on the rooftop where you say Mr Chak raped you, that there was first of all, some discomfort in your private parts. Is that correct?

A. Yes.

Q. And I think you were in Guangzhou at the time. Is that correct?

A. Yes.

Q. Yes. For family reasons.

A. Yes.

Q. Now, did you tell somebody about the discomfort you felt, or was that something that one of your family asked you?

A. My family asked me.

Q. Yes. And I think in the video-recorded interview, you talk about your sister asking you about that. Is that correct?

A. Yes.

Q. I think it was your younger sister. Is that correct?

A. Yes.

Q. And she mentioned the possibility of you being molested. Is that correct?

A. Yes.

Q. And I think you remarked in the video-recorded interviews that we’ve seen, that she guessed. According to you, she guessed right but you didn’t tell her any more. Is that right?

A. Yes.

Q. And you kept it a secret at that stage, did you?

A. Yes.

Q. Even though you trusted your sister?

A. Right.

Q. All right. So let’s go back to when your family found out about this. I think you said in June 2018.

A. Yes.

Q. Now, so the first person to find out was your younger sister. Is that right?

A. Yes.

Q. Do you know what happened from there?

A. She told me to speak it out.

Q. Did she say, ‘You’ve got to tell mum or elder sister’, or something like that?

A. She did.

Q. Who did you speak to first? Do you recall?

A. My elder sister and younger sister.

Q. Yes. And did your elder sister also question you about the matter?

A. Yes.

Q. Was this -- did you give them information in response to their questions?

A. I did.

Q. You weren’t -- you didn’t get them together and say, ‘Look, there is this series of events which occurred’? You let them ask questions about it. Is that right?

A. Right.

Q. Okay. And did your mother eventually find out?

A. Yes.

Q. And did you have a discussion with her about what you say happened?

A. Yes.

Q. Right. And did there come a time when she recorded a conversation about this topic from, I think, a mobile phone? Is that right?

A. Yes.

Q. Again, she asked the questions and you answered her questions.

A. Yes.

Q. And did there then come a time when you went through the same process with your elder sister?

A. Yes.

Q. And she recorded that on either a cell phone or a tablet. Is that correct?

A. Yes.

Q. What sort of -- was it a mobile phone or a tablet?

A. IPad.

Q. IPad, right. And before she recorded it, is it right that there was a rehearsal?

A. Yes.

Q. And the two of you went over the questions that were going to be asked, and the answers that were going to be given. Is that right?

A. Right.

Q. So by the time you came to talk to the police and give the two video recordings, those two video recordings, you had already been over this with sister, younger sister, elder sister and mother.

A. Right.’

Q. Those first two video recordings were in late July 2018. Is that correct?

A. Yes.

Q. Now, by reference to that date, how long before were the two video recordings? First of all, with mum and then with elder sister?

A. A week.

Q. A week before.

A. Yes.

Q. And you were anxious to keep telling the same story to the police as you’d given to your mum and also to your elder sister. Is that right?

A. Yes.”^[24] (Emphasis added)

62.  Mr Bruce then took X to the different incidents that were the subject of the charges.  In respect of the first count, the incident on 29 July 2017, X said she knew that what the applicant did was wrong and that she should report it.

63.  In respect of the second count, the incident on 17 December 2017, Mr Bruce cross-examined X on her failure to complain as follows:

“Q. You could talk to your sisters, you could talk to your mum, couldn't you?

A. Yes.

Q. Because according to you, something seriously bad had happened to you.

A. Yes.

Q. You went back to school, as normal.

A. Yes.

Q. There were teachers at the school that you liked and trusted, weren’t there?

A. Yes.

Q. And you could have told them about this serious and wrong event.

A. Yes.

Q. And you chose not to.

A. Yes.

Q. You chose to keep it to yourself.

A. No, I don’t think so.

Q. No? Who did you tell?

A. My family.

Q. When?

A. At the end of July.

Q. Yes. But not before.

A. You are right.

Q. You chose not to tell anybody about this, January through to June. Correct?

A. Right.

Q. And the first time, you say, that Mr Chak threatened you in any way was in April.

A. Yes.

Q. So even if he did threaten you, you in January, February, March, you were not afraid of him?

A. It’s not that.

Q. So you were afraid of him?

A. I was.

Q. What did he do to you to make you afraid?

A. He did not allow me to tell anybody.

Q. How was that done?

A. He said so.

Q. He said so. But you knew this was wrong.

A. Yes.

Q. You knew that the right thing to do was to tell somebody about this wrong thing.

A. I knew.”^[25] (Emphasis added)

64.  In respect of the fourth count, the indecent assault in the social welfare room on 4 March 2018, Mr Bruce’s questioning was as follows:

“Q. And although this conduct was not nearly as bad as that which happened in December, it was still improper conduct, wasn’t it?

A. Improper conduct, yes.

Q. Yes. And you knew it was wrong.

A. You are right.

Q. And you chose to not report it. Is that right?

A. It’s not right.

Q. Well, you didn’t report it until the end of July, as you say.

A. You are right.

Q. But you could have done so beforehand.

A. I could have done so.

Q. You chose not to.

A. You are right.”^[26] (Emphasis added)

65.  For the major abuses that took place on 4 April 2018, Mr Bruce queried X why she did not tell her parents that the applicant was forcing her to go with him when she believed that if she did accompany him something bad would happen to her.  This led to the following exchanges:

“Q. And so my question to you is, why didn’t you tell a family member or somebody else that you trusted?

A. Chak Kong‑fai did not allow me to tell anybody whom I trust.

Q. You have a mum and a dad and two sisters who look after you.

A. Yes.

Q. And they could protect you from a bad man who was threatening to beat you up.

A. It’s not that.

Q. And I mean, it’s a statement of the obvious, but Mr Chak is simply a social worker at your school. He’s not a parent or anything like that, is he?

A. Right, he’s a social worker only.

Q. Yes. And the people you listen to are your mum and your dad, isn’t that right?

A. Yes.

Q. And their job is to protect you.

A. Yes.

Q. And if need be, you can report it to the police.

A. Right.

Q. And even at that stage, on 4 April, you knew that what this man had done to you, according to you, was not just wrong but it was against the law.

A. You are right.

Q. And you knew, if what you say is right, that you were going to go and have a date with a man who is likely to do more things which were against the law.

A. Right.”^[27]

66.  After dealing with the events and allegations of X that underlay this incident, Mr Bruce again tackled X on her failure to complain:

“Q. Right. And so after the coffee session was over, what did you do?

A. He sent me home by taxi.

Q. I see. And did you tell anyone about this?

A. No.

Q. So when you got home you were in pain.

A. Yes.

Q. Were you still bleeding?

A. Yes.

Q. And you didn’t tell anyone about your pain or bleeding, is that right?

A. On the following day, I did.

…

Q. All right. Now, I promised to talk to you about the next day. What do you say happened?

A. On the following day, I mean 5 April, I went with my family to pay tribute to our ancestors. And that same evening, the night, at night, I had a high fever.

Q. Yes.

A. And then down there it was bleeding.

Q. Yes.

A. I was in pain.

Q. So did you discuss this with anyone?

A. I was unable to speak or voice out.

Q. What do you mean by that? Are you saying that you didn’t feel you could say something, or are you saying, ‘I physically couldn’t speak’?

A. I couldn’t voice out. I couldn’t make a sound.

Q. You physically couldn’t speak?

A. Originally I was going to tell, however I felt so much pain that I couldn’t do so.

Q. I want to know whether you’re saying you physically couldn’t do that, or you just didn’t feel it was right to do so?

A. I mean physically, I couldn’t speak.

Q. Your mother noticed that you had redness on your body. Is that right?

A. Yes.

Q. And I guess she probably asked you what’s wrong.

A. Right, yes.

Q. And you couldn’t actually say any words to give her an answer. Is that what you say?

A. Right, physically unable to do so.

Q. So you gave her no response.

A. Right.

Q. She must have been pretty worried that you couldn’t actually speak to her.

A. Yes, she was worried.

Q. So because it’s pretty unusual for somebody not to be actually able to speak. Agree?

A. Right, agree.

Q. Did she keep asking you what was going on?

A. Yes.

Q. Did she suggest that you be taken to a doctor to see what was wrong with you?

A. Yes.

Q. You were still in Guangzhou at the time, were you?

A. Yes.

Q. Did you go to a doctor?

A. No.

Q. And you also had a conversation with your younger sister. Is that right?

A. Yes.

Q. And you say in the video-recorded interview that she told you to go and see a gynaecologist because she thought you’d been sexually abused.

A. Yes.

Q. Did you give her any words in response?

A. I was unable to speak.

Q. I see. So she’s talking to you, you’re not talking back.

A. Right.

Q. So you come back to Hong Kong.

A. Yes.

Q. Did you come back on the same day, or was it the next day?

A. On the same day.

Q. All right. When was the next time you were able to speak?

A. Up to the morning when I woke up.

Q. So that makes it 6 April, is that right?

A. Yes.

Q. Did your family -- did any member of your family ask you how you were on the 6th?

A. Yes.

Q. Who was that?

A. Mum and dad.

Q. And what was your response.

A. I said I was better.

Q. But your mum knew there was redness all over your body. Is that right?

INTERPRETER: I beg your pardon?

Q. Your mum knew that there was redness all over your body. Is that right?

A. Yes.

Q. Did she know that that redness extended to the vaginal area?

A. She knew.

Q. All right. Did she ask any questions about that?

A. She did not.

Q. Really?

A. Right.

Q. Your younger sister knew about this as well, didn’t she?

A. Yes, she knew it.

Q. Did you speak to your younger sister on the next morning, that is the 6th?

A. I did.

Q. And did she ask how you were going?

A. Sometimes I suffer stomach ache.

Q. Yes. My question was, did your sister, younger sister ask you how you were doing on the 6th?

A. She did.

Q. And she’d seen the redness in your vaginal area, hadn’t she?

A. Yes.

Q. And she’d suggested that you see a gynaecologist.

A. Yes.

Q. That means, doesn’t it, that she must have been pretty concerned about you.

A. Right.

Q. So on the 6th, did she ask about these things again?

A. She did.

Q. And what answer did you give her?

A. She told me to see a doctor on my own.

Q. And what was your response?

A. I told her that I still felt uncomfortable.”^[28]

67.  In re-examination, Ms See asked X why she did not tell anyone:

“Q. He told you not to tell everyone. Is that right?

A. Right.

Q. And did you tell anyone, about what?

A. About the matter.

Q. Can I say that you mean the sexual abuse or sexual assault on you?

A. Yes.

Q. But did you tell anyone about this, before the...

A. No.

Q. Why didn’t?

A. Because he would threaten me.

Q. Were you scared of him?

A. Yes, I was.”^[29]

B.12.  Evidence from X’s mother and sister

68.  The prosecution also relied on the evidence of X’s mother (PW4) and X’s sister (PW5) as part of their case.  A major part of their testimony, which is the basis of a ground of appeal, is their evidence of “complaint” by X to them.

69.  The mother testified that after Chinese New Year 2018, she told X’s school social worker that X would not join in any activities that involved the defendant.  However, she was not asked why she told the school this.

70.  In chronological order, the next incident in which the mother was involved was her examination of X after her family’s trip to Guangzhou on 5 April to take part in the Ching Ming festival.  The mother clarified she was not actually on this trip, but that when the girls and their father arrived home from the trip at about midnight “the other two daughters cried aloud to me asking me to have a look at [X] because [X] had been complaining about the serious pain down there in her lower body”^[30]. The mother said she immediately asked X to come into her room where she asked X to remove her trousers so that she could examine her.  The mother’s testimony then proceeded as follows:

“I then had a chance to have a detailed look at her lower part of the body and found serious redness in her vagina. I asked her why she dare not tell me. She was too frightened to tell me. And then I asked her whether the redness was caused by that – was by that hygiene problem. She did not say anything even though I asked. She covered her eyes with her hands without saying anything. She dare not tell me anything. She did not speak a word. No words at all. And therefore I applied some ointment on her top to soothe the pain. I at the time had no idea at all what had happened to X. I did not know that he had done such a thing to her. At that point of time she dare not tell me that. It’s really a pity why she would be treated like that.”^[31] (Emphasis added)

71.  The mother said that she had noticed that around the period of 4 April, X was acting strangely.  She testified:

“I didn’t know the real reason behind that, but I could see from that something must have happen to her. She wanted to tell me, she wanted to say it out, however, she didn’t at that time.”

72.  The next relevant period of time was June 2018. The mother said that from about June 2018, X started showing signs of emotional instability.  The mother said that on 13 June 2018 X was seriously emotional and that she knew in her heart something must have happened to her.  The mother said she tried to look in X’s phone but X would not let her, claiming privacy of the contents.  At this time, she did not make any complaint to her mother about the defendant.

73.  Then, on 13 June 2018, through the arrangement of a social worker, X was taken to Tsuen Wan Hostel, where she stayed until 16 June.  Whilst X was at the hostel, the mother said she found X’s phone and read the contents of messages between X and the applicant and she copied them to her phone.  The mother described feeling terribly shocked and called the social worker Ms Ng.  She explained over the phone that she found X behaving very strangely, since Chinese New Year 2018, and that she had changed into another person.  She also told Ms Ng about the WhatsApp messages.  The mother told her X would not be doing any activities at the school involving the applicant.  The mother said, however, that X still wanted to attend activities and would lose her temper if she did not sign the permission slip for her to do so.  Again, at this time, X made no complaint to her mother but, instead, insisted on attending the school’s extracurricular activities.

74.  On 18 July 2018, whilst driving X home from school, X said something had happened at school that she wanted to tell her mother about.  X then described to her mother the abuse in count 1.  She went on to tell her mother of the incident that is the subject of count 2.

75.  The mother said X told her that she was touched in a store room and that the applicant inserted his finger or fingers into her vagina, and that this tended to happen on numerous occasions after she had attended after-school activities.  The mother said X mentioned other occasions but she kept becoming emotional. 

76.  The mother said X then went on to describe the abuse which happened on 4 April (that is, the abuse constituting counts 4-9).  The mother said that when she subsequently viewed the WhatsApp messages between X and the applicant, she saw there were frequent communications between them and in the messages the applicant threatened if X “told other people about the matter, then she would be beaten up”^[32].

77.  All the complaint evidence of the mother was adduced by the prosecutor and none of it was the subject of objection or cross-examination by Mr Bruce.  However, it is noteworthy that Mr Bruce cross-examined X on her performance at school and from his questioning it came out that X did poorly in the area of ability of expression. In other subjects she attained As or Bs, but could only achieve a C in ability of expression.

78.  X’s oldest sister (PW 5) said she first learned from her mother about these events on 18 July 2018.  She explained what then happened:

“At the very beginning when I learned the matter from my mother, since my mother had not expressed very clearly, I thought it would be better for us to further clarify the matter with my sister, [X], when my parents would be returning home late at night. So we decided that it would be done one day after that. So on the 19^th we had a talk with [X]”.

By “we” she meant herself and her younger sister.

79.  She said that “after learning what she told me, I knew it would be a serious matter so used my iPad to video record what she was telling me”^[33]. The prosecutor did not seek to elicit from the sister any evidence of the terms of the “complaint”.   

80.  Of the diary, she said she supported X having one.  When asked in cross-examination if she assisted X in the writing of the diary she replied: “Definitely not.  Even when I looked back to what was written I couldn’t understand what she was trying to express”^[34].

B.13.  The evidence of the school staff

81.  X was under the care of a Ms Ng (PW3), a care worker at the school.  PW3 said on 12 June 2018 X’s mother called her to ask about the applicant and to request that X stop going out on further activities. After this phone call Ms Ng said she spoke to the applicant and asked whether he was going out for meals with X.  He answered that X had overheard him talking to a male student about going to a movie and that she had wanted to come as well, however, in the event, the male student did not end up coming.  It was just the applicant and X who ended up going to the movie.  The applicant told X the parents knew about the arrangement and they only ended up having a meal.  Ms Ng warned him it was inappropriate for a male social worker to take a female student out.

82.  Ms Ng was the occupier of the flat where the offences in count’s 4-9 occurred.  She said when she took up her occupancy of this flat she needed some help to move in and as the applicant was helping her she gave him a copy of the key.  She said the applicant only returned the key and put it on her desk in July 2018, that is, after he had ceased to be on the staff at the school.  She said she had been on holiday to Australia at the end of March and returned on 7 April in time for the new term on 9 April.  She was unaware of anyone staying in the flat whilst she was away. 

83.  Mr Chau (PW 7) was the Vice-Principal at the school and had spoken to the applicant on 13 June 2018 after receiving some information about the applicant communicating with X.  The applicant’s response was that X had been having trouble getting along with her own family and he wanted to show care for her.  PW7 reminded the applicant it was not appropriate for him to have contact with X alone, to which the applicant replied that he understood.  About 12 days later, on 25 June, Mr Chau met again with the applicant.  At the meeting, the applicant said there had been no further communication with X, to which Mr Chau replied: “Think that over”^[35]. Eventually the applicant admitted they had been in touch but that X had initiated it.  Mr Chau warned this was still inappropriate and the applicant said that he understood.

84.  The next day, 26 June, there was a meeting between the principal, Mr Chau and the applicant.  Mr Chau asked if the applicant had fulfilled his promise and the applicant replied there had been no further contact.  Mr Chau said the parents thought there had been contact, and the applicant admitted there had been, via WhatsApp.  Mr Chau therefore ordered the applicant to take compulsory leave starting the following day, 27 June. 

85.  On 27 June, the applicant was called back in for another meeting, again with the principal and Mr Chau.  Ms Ng had forwarded to Mr Chau a WhatsApp message sent to her by the parents of X.  Mr Chau showed this to the applicant.  He said he did so as he wanted to see the applicant’s reaction and find out why he failed to stick to his promise not to contact X.  Later that day the applicant tendered his resignation.  About three or four weeks later the matter was reported to the police. 

B.14.  The expert evidence

86.  Mr Leung Siu On (PW2), an educational psychologist, diagnosed that X had mild grade intellectual disabilities, and that this would very much depend on the mental state of X on a particular day, it varying from one day to another.

87.  Dr Hung (PW 11), a specialist in psychiatry provided a medical report dated 12 December 2018, in which he expressed the opinion that X was a mentally disordered and mentally incapacitated person for the purposes of the Mental Health Ordinance, and that this disorder was to the degree that X was incapable of living an independent life^[36]. 

88.  Dr Hung examined X in the presence of her mother. He observed her verbal expression was significantly weak and she spoke at most with 4 syllables^[37] and “verbal ability scored within mild to moderate grade mental retardation.  Nonverbal reasoning and visual perpetual appreciation of block pattern are behind age-mates.  Great strength shown in puzzle assembling”^[38].

89.  Dr Hung found the Stanford-Binet Intelligence scale showed mild to moderate grade mental retardation: “She can name simple pictures.  She can reproduce up to 4 syllables and can point to main body part of figure.  She fails to identify absurd parts of pictures and answer simple reasoning questions”^[39].

90.  He explained X was autistic and this affected her ability to engage with others socially as she has limited verbal ability for normal daily interactions.  He clarified that autism was a lifelong condition with her condition unlikely to significantly improve in the coming years^[40]. Dr Hung also said X answered his questions inappropriately, for example if he asked “what would happen when your mother gets angry?” and X could not answer it.  Therefore, Dr Hung would rephrase the question and ask “what do you see when your mother gets angry?” to this he said an answer could be expected from a three or four-year-old, but in fact X ‘s answer was “when I do something wrong”.  The purposes of these questions was to find out how good she was at expressing herself.  He concluded X “is also suffering from Autism Spectrum Disorder”^[41].

91.  Dr Hung said that when he asked X to tell a simple story she could not tell any story at all.^[42] Dr Hung, in commenting on the IQ evidence given by Mr Leung, said this was consistent with mental retardation.  Dr Hung explained that by age 16, X was still unable to communicate as a normal person would verbally. 

92.  Of the link between mild mental retardation and autism, Dr Hung described how the two can frequently occur together.  He explained how when the two occur together, social communication and interaction are significantly lower than expected for someone with only mild mental retardation and “intellectual ability to learn skills and information is lower than expected for someone with only autism”^[43].

93.  The defence, whilst not taking issue with the fact X did suffer from autism, only the degree^[44], criticized the use of both the testing procedures done by Mr Leung and Dr Hung and submitted they were out of date^[45].

C.   The defence case

94.  The defendant elected not to give evidence but did call two witnesses, a psychiatrist, Dr Wong (DW1) and a psychologist, Mr Fung (DW2).  Dr Wong based his report, dated 31 October 2019, on the VRI interviews of X.  His evidence was that over the past 20 years there have been developments in the understanding of Autism Spectrum Disorder and intellectual disability.  He assessed X based on Diagnostic and Statistical Method (DSM) 5.  He explained that just because somebody has autism does not mean they can be classified automatically as mentally incapacitated.  Dr Wong’s opinion was that X was not a MIP or, in any event, was no longer a MIP, as she now had “borderline intelligence based upon 73 IQ”^[46]. He thought X only had mild leftover symptoms of Autism Spectrum Disorder and so he did not consider that X was a MIP and would be capable of a fully independent life^[47].

95.  Mr Fung (DW2) is a clinical psychologist.  He conducted a Wechsler adult intelligence test which showed an IQ of 73, meaning that out of 100 people X would rank in the bottom four for her age; in his view she did not fall within the definition of a MIP, but nonetheless she would require a lot of support from caretakers^[48].

D.   The Perfected Grounds of Appeal

D.1.  Ground 1

96.  Ground 1 asserts that the verdicts are inconsistent.  This ground of appeal arises from the jury’s verdicts in respect of counts 13-15 which involved non-consensual sexual assaults upon X that were alleged to have taken place on 20 May 2018.  Count 13 was attempted rape and count 14 was attempted unlawful sexual intercourse with a MIP relating to the same incident as count 13 and pleaded as an alternative to that count.  The conduct on this count took place at around 8:15 am on 20 May in the Social Worker’s room at the school.  Count 15 took place on the same day in the same room at around 1 pm.  The evidence in respect of these counts is described in [48] to [53] of this judgment.

97.  The thrust of the applicant’s complaint, which Mr Bruce refined and narrowed at the hearing of the appeal, is that the verdicts are inconsistent because the jury in acquitting the defendant of count 13 and convicting him of count 14, the alternative MIP count, must have been unsure of X’s claim that she did not consent to the sexual assault on which these counts are based.  From this foundation, that the verdict in count 14, can only be explained by the jury not being sure that the applicant did not consent to the attempted rape, Mr Bruce argues that all the other guilty verdicts are irrational.  Mr Bruce submits that given the firm and unequivocal character of X’s evidence on the issue of consent, the jury could not logically conclude that the applicant did not consent to those other sexual assaults on which they convicted the applicant, but not be sure that she did not consent to the count 13 attempted rape.   

98.  Mr Bruce’s argument is succinctly set out in the following exchange with Macrae VP that took place at the hearing of the appeal:

“MACRAE VP: Yes. So Mr Bruce, 2, 4, 8, 10, 11, 15, 16, 17, 18 and 19, had they been the only convictions you couldn’t have had this argument...

MR BRUCE: No.

MACRAE VP: ...because they would all have relied on a lack of consent.

MR BRUCE: Yes.

MACRAE VP: In relation to 14, because consent wasn’t necessary and because the judge had directed them only if they find -- if they are unsure about the lack of consent would they consider it, they must have been unsure about the issue of consent on 13.

MR BRUCE: Yes.

MACRAE VP: Is it 13, and...

MR BRUCE: And they must -- the only...

MACRAE VP: ...if they were unsure about that issue on 13, then they must as a matter of logic have been unsure about consent on all the others.

MR BRUCE: That is my submission, plain and simple.

MACRAE VP: Well, I think...

MR BRUCE: And frankly, that’s as far as it goes.”

99.  Mr Bruce’s submission was that the jury’s decision on count 14 called into question what their approach must have been to the issue of consent on all the other counts.  The reason it did so was because X’s testimony on this issue was clear throughout her evidence, notwithstanding that there may have been imperfections in her testimony on other matters.  Consequently, it would have been irrational for the jury to choose to believe X on the issue of consent in relation to some counts but not others.  On this issue the conclusion of the jury had to be same for all counts.

D.2.  Ground 2A

100.  There are two limbs to his ground of appeal.  The first is that the judge erred in using evidence from X’s mother and elder sister as evidence of recent complaint as the prosecution had never relied on this evidence for this purpose.  Mr Bruce further submits that this evidence would not have met the criteria for admissibility as evidence of recent complaint as the complaints were not made at the first available opportunity.  Mr Bruce does not complain about the legal content of the judge’s direction.  The content was legally correct but it was legally wrong to give the direction as the complaint could not regarded as recent.

101.  The second limb of this ground of appeal is that the judge failed to raise the issue of recent complaint with counsel prior to his summing-up, which in turn was a failure of “natural justice” as Mr Bruce was not permitted to be heard on whether the complaint fell to be regarded as recent and therefore admissible for the purpose of assessing the credibility of X.

102.  Mr Bruce contends that evidence of the complaint was admissible but only for the limited purpose of explaining the conduct of the mother and sister, particularly the conduct of the mother in her dealings with the school and with the making of the report to the police.  But, it was not admissible as a recent complaint and could not, therefore, be used by the jury, when assessing the credibility of X, to find that it made X credible.  Quite the contrary, Mr Bruce cross-examined X on the lateness of the complaint, her failure to complain earlier and her failure to take advantage of opportunities to complain when they presented themselves.  Mr Bruce wanted the evidence of complaint before the jury in order to attack the credibility of X and to suggest that there was coaching of her by her sister and mother.

103.  Mr Bruce argues that in a case which depended entirely on the credibility of X, the judge elevated the importance of the complaint evidence by suggesting that it was capable of reinforcing X’s credibility and permitted the jury to make a use of it for a purpose outside of that for which it was adduced.  He said the prosecutor never relied on the complaint as being a recent complaint and never sought a recent complaint direction from the judge. 

D.3    Ground 2B

104.  The applicant submits the judge failed to properly direct the jury as to the use which they could make of an observation by Dr Hung that X, as a child with autism, had difficulty in “making up stories or engaging in what we call make believe play”^[49].  The particular remarks the applicant takes issue with are those spoken by the prosecutor in his closing speech that^[50]:

“Dr Hung said [X] is a girl that could not make up a story because of her mental state. That is why we said [X] was actually sexually abused by the defendant in the way she described to us. These events do happen – did happen”

105.  The applicant submits this was a mischaracterization of Dr Hung’s evidence as he was not commenting that X was unable to make up stories in the context of considering the truth or credibility of X’s allegations.  It is highly relevant, argues the applicant, that Dr Hung, when he assessed X, was not concerned with the charges at all as these were not part of his instructions nor had he been given specific details of the allegations.  Furthermore, the judge then went on to reinforce this point in his directions to the jury. 

E.   The respondent’s submissions

E.1.  Ground 1

106.  As the court did not call upon the respondent in respect of the first ground of appeal and as Mr Bruce narrowed the scope of this ground when advancing it in his oral submission we shall not set out the arguments contained in the respondent’s written submissions in respect of it. 

E.2.  Ground 2A

107.  Mr Derek Lai, leading Mr Kelvin Tang, submits the judge correctly and properly treated the mother’s testimony as evidence of recent complaint and that the judge was not mandated to hear submissions before he could give the jury a direction on it.  Mr Lai points out that the defence at trial had not at any stage taken objection to the judge directing the jury on recent complaint.  Mr Lai submits that from the way the trial prosecutor elicited the evidence of complaint from X it was clear that she was treating that evidence as evidence of recent complaint.  Mr Lai further submitted that Mr Bruce, when he was counsel for the defence at trial, did not object to the evidence of the mother and sister 

E.3.  Ground 2B

108.  Mr Lai submits the judge was merely repeating the evidence of Dr Hung about X’s inability to make up stories.  Mr Lai argues that, given the circumstances of this case, that is, the defence were running a case of total invention by X, there was no reason why the prosecution was prohibited from reminding the jury of Dr Hung’s opinion.  Mr Lai observes the defence did not make any submission about this in their closing submissions or in discussions with the judge. 

F.   Discussion

F.1.  The pathway to verdict

109.  The maximum penalty for rape as stipulated by section 118(1) of the Crimes Ordinance is life imprisonment.  The maximum penalty for the offence of unlawful sexual intercourse with a MIP is, by section 125(1) of the Crimes Ordinance, only 10 years’ imprisonment.  Thus, as long as they arise from the same facts and circumstances, the latter is the lesser of the two and would be an alternative to the former.  In the normal course, the jury would first consider whether the elements of rape had been established to the requisite standard of proof and one of those elements is that the victim did not consent to the sexual intercourse.  If the jury are satisfied that sexual intercourse took place, but are not satisfied that it was non-consensual, they go on to consider whether it was nevertheless unlawful because the victim was a MIP.  This would require the jury to be satisfied beyond reasonable doubt either that the defendant knew the victim was a MIP or that if he did not know of that, he had no reason to suspect her to be a MIP.  This was the pathway by which the judge directed the jury to reach their verdicts in respect of those sexual assaults which had MIP counts pleaded in the alternative.  He was correct in the directions he gave and no complaint is made in respect of them.  Against this backdrop it is necessary to address what was the real issue in this trial.

F.2.  The real issue in the trial

110.  This case well illustrates the danger of considering legal grounds of appeal in a factual vacuum.  The reality facing the jury was that they were deliberating over a trial where the prosecution put forward a complainant who was a MIP with difficulties in self-expression and limited capacity for invention and role play, and the applicant who, whilst not testifying in support of his case, was alleging X was fabricating all of her allegations, which were large in number and which spanned a period of 11 months and involved multiple locations and multiple and different forms of abuse.  In that situation the issue was quite a simple one, namely whether X was believable, and in resolving it the jury would inevitably have looked to evidence that might support the allegations being made by her.

111.  This is where the evidence adduced in proof of counts 4-9 is so important.  Evidence independent of the applicant showed: (i) that X had knowledge of the flat where the offences took place, but had no previous experience of these premises; (ii) the applicant had a key to the premises and knowledge that, on the day of the offences, the flat would be unoccupied; and (iii) the applicant admitted engaging in sexual activity with X at these premises on the day in question but asserted it was consensual.

112.  In reality, the defence of fabrication in respect of counts 4‑9 never had any chance of success unless the applicant testified credibly and persuasively in support of his case.  But he elected not to testify.  With this evidence from the prosecution, and lack of evidence from the defence, the only issue that, realistically, would be of concern to the jury was not the issue of fabrication but the issue of consent.  We say that because the directions on consent encompassed the possibility that the complainant may not in fact have been consenting but that because of her mental disability she may not have sufficiently communicated that to the applicant so that he honestly believed she was consenting.  Moreover, as will be shortly seen, it is apparent from the jury’s verdicts that is precisely how they viewed the matter.

G.   Ground 1: inconsistent verdicts

G.1.  The applicant’s argument

113.  Mr Bruce’s argument, in a nutshell, is that all these offences were alleged by X, in unequivocal terms, to be non-consensual and there was nothing to distinguish them from each other in respect of the evidence that X gave on the issue of consent.  That being so, the jury had to reach the same conclusion on this issue in respect of all offences.  As the only explanation for the conviction on count 14 is that, though sure of the actus reus of the offence for count 13, the jury was not sure of the issue of lack of consent, it must therefore follow that the convictions for the non-MIP offences must be due to a flawed approach by the jury in determining the issue of consent.

114.  The other acquittals, those for counts 1, 3, 6, 7 and 12, Mr Bruce argues, can be explained as due to matters other than the issue of lack of consent.

115.  Underlying this ground of appeal, and fundamental to its success, is the contention that in the light of X’s testimony it was not open to the jury to reach different conclusions on all the charges in respect of the issue of consent.  I do not accept this contention.

116.  Mr Bruce accepts that a jury is perfectly entitled to choose whether to believe all, or part only, of a witnesses’ evidence and that it is a standard direction of judges to remind juries of this right.  This right is just as applicable to a witness who is a complainant or victim testifying to different incidents and in such a situation it is not at all unusual that the jury might reach different conclusions in respect of each of the different incidents.

117.  Another standard direction which it is incumbent on a judge to give in a trial involving multiple offences is that the jury must consider each offence separately.  This direction requires them to assess the evidence for each offence separately and to reach separate verdicts in respect of each count.  They are directed that the fact that they reach a particular verdict in respect of one offence does not mean that they have to reach the same verdict in respect of the other offences.  All these directions were given by the judge and no complaint was made at trial by Mr Bruce in respect of the judge doing so.

118.  Thus, the jury were correctly directed in the pathway to their verdicts and they were correctly directed on two key matters relating to their verdicts.

G.2.  Explaining the jury’s verdicts

119.  That the jury applied these directions of the judge is apparent from the verdicts they returned.  They did not approach the offences on the basis that they had to believe X, or treat her evidence as reliable, in respect of all offences simply because they reached that conclusion in respect of one offence.  The acquittals also evidence just how conscientiously the jury applied the judge’s directions to their separate assessment of the evidence for each offence.

120.  For example, in respect of count 1, the touching on the bus, the jury could have been unsure that what took place was an assault or that, if it was, it was indecent.  In respect of count 3, an indecent assault in the social worker’s room, there were issues in respect of the reliability of X’s evidence.  She had not mentioned this incident in her first interview and there were records to show that the applicant was on casual leave that afternoon.

121.  Count 6, together with counts 4 and 8 and their respective alternative MIP counts, was part of one incident.  In the course of this one incident there was an attempted rape (count 4), an attempted buggery (count 6) and a rape (count 8).  The reason why the jury did not convict of the attempted buggery count could have been from not being sure that this happened, or it could have been a merciful verdict where the jury simply thought to themselves that the two convictions were enough for this incident.

122.  Counts 11 and 12 occurred on the same day, albeit at different times and different locations, and the jury convicted of count 11 but acquitted the applicant of count 12.  But count 11, which occurred first in time, was by far the more serious of the two counts as it involved, in addition to hugging and kissing, stroking, over her clothes, of her private parts.  Count 12 only involved hugging and kissing and so the acquittal on this count could be due to the jury not being sure of the issue of consent, as X remained in the company of the applicant after the indecent assaults of count 11.  Alternatively, the jury may have thought that, after convicting the applicant of count 11 the conduct in count 12 was insufficiently serious to warrant another conviction.

123.  For counts 13 and 14 there was an opportunity for X to complain when, after leaving the social worker’s room where the attempted rape took place, she encountered a class master, Mr Wan.  X said that Mr Wan found her “very scared” and he pointedly asked her what she and the defendant had been doing.  Instead of revealing to him what had happened, X actually concealed it by lying to Mr Wan.

124.  These verdicts are explicable on the basis that the jury may have found that X’s evidence as to her lack of consent was not as strong on these counts as on the other counts.  She only said in cross-examination “well I didn’t want to but he forced me”.  When regard is also had to the fact the applicant invited X to the school by calling her, and that she came, and did not then appear to resist the hugging and kissing that took place, the jury may well have thought that X’s conduct caused the applicant to believe that she was consenting.  This is in contrast to the strong and clear evidence of lack of consent that underlay the convictions on counts 4^[51] and 8. 

G.3.  The judge’s directions on consent

125.  The judge’s directions on the issue of consent also help to explain the verdicts.  The judge provided the jury with a handout containing a typed version of many of his directions.  On the issue of consent for the offence of rape he directed the jury:

“Definition of Rape – (Count 8)

A man commits rape if:

(a) he has unlawful sexual intercourse with a woman who, at the time of the intercourse, does not consent to it; and

(b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it.

For the defendant to be found Guilty on this charge, the Prosecution must prove the following:

1. The defendant had sexual intercourse with Miss ‘X’;

2. Miss ‘X’ did not consent to having intercourse with the defendant; and

3. that the defendant knew that Miss ‘X’ did not consent to the intercourse or he was reckless as to whether she consented to it.

The law also provides the following:

If at trial for a rape offence the jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, together with any other relevant matters, in considering whether he believed she was consenting.

…

Lack of Consent, in this context, does not necessarily have to be given in words. It may be by body language.

Recklessness in rape:

You will only need to consider recklessness if you are not sure whether the defendant actually knew that Miss ‘X’ was not consenting. If she was consenting or may have been, then it cannot be rape. If he may genuinely have believed that Miss ‘X’ consented to sexual intercourse, even though he was mistaken in that belief, he must be found Not Guilty. But remember that when you are considering whether he genuinely believed that Miss ‘X’ was consenting, you should have regard to the presence or absence of reasonable grounds for such belief.

For recklessness to apply, the prosecution would have to prove that the defendant actually appreciated a risk that Miss ‘X’ was not consenting to sexual intercourse and unreasonably carried on regardless.

You could only find the defendant. Guilty on the basis that he was reckless as to whether Miss ‘X’ consented to sexual intercourse if you are sure that he realised there was a risk that she was not consenting and carried on anyway when, in the circumstances known to him, it was unreasonable to do so.

However, as I said earlier, if the defendant genuinely did not appreciate or foresee the risk that Miss ‘X’ was not consenting to sexual intercourse, he would not have been reckless and must be found Not Guilty.”^[52]

126.  In respect of the counts of indecent assault the judge directed the jury as follows:

“Indecent Assault – (Count 1, 2, 3, 10, 11, 12, 15, 16, 17, 18, 19)

A. There are a total of eleven counts of indecent assault to consider.

B. For the defendant to be found Guilty on any count of indecent assault, the prosecution will have to prove so that you are sure-

1. that the defendant intentionally assaulted Miss ‘X’;

2. that the assault and the circumstances accompanying it, are capable of being considered by right-minded persons as indecent; and

3. that the defendant intended to commit an assault of the kind in 2 (above).

C. An assault in these offences is any touching of Miss ‘X’ done by the defendant without the consent of Miss ‘X’ and when it is accompanied by circumstances of indecency, whether over her clothing or under her clothing. It will be for you, the jury, to decide as right-minded persons, whether an indecent assault was committed.

D. Subject to two exceptions in paragraph E below, there can be no offence committed of indecent assault if the defendant may have believed that Miss ‘X’ was consenting to his conduct whether or not his belief was based on reasonable grounds.

If Miss ‘X’ was consenting to the touching or may have been, or if the defendant believed or may have believed she was consenting, then he must be found Not Guilty.”^[53]

127.  In the course of his summing-up the judge supplemented these directions by saying to the jury:

“Basically, rape is an offence involving consent. If there is any consent, it cannot be rape provided you apply the tests that I have put down on this piece of paper. If the defendant genuinely did not think that this was against her consent, well then of course he is not guilty of rape. Rape is against the consent, so you have got all the possibilities there. It may be that you accept what the girl said entirely, in which case it is sexual intercourse without consent.

It may be that you look further and look at the other aspects and it may be that you say to yourself, ‘No, I can’t be sure on any of this’, so it is all up to you, all up to you as to whether you think the evidence has established rape and if it has not properly established rape, then not guilty is the verdict.

Now, if it was not guilty to rape and only if it is not guilty, you then go onto the other alternative possibility which is with a mentally incapacitated person sexual intercourse, so we can turn the page. I think both counsel have explained why it is that you have this alternative, but let me just spell it out in the first paragraph and then we will read on. The reason that the law has provided a special offence in relation to mentally incapacitated persons is that they are sometimes unable to communicate a consent to sexual intercourse in the same way that a normal person with no mental disorder might be able to show their lack of consent.

So if you consider that Miss X was not consenting to sexual intercourse and the defendant either genuinely did not realise that she was not consenting to sexual intercourse or the defendant was not reckless as to whether she consented or not, then you go on to consider this alternative charge having found the defendant not guilty of rape. So if it is not guilty of rape only then do you look at this and that is the only time that the medical evidence counts. You may never have to look at it if you decide it is rape and the other offences. But if you decide it is not rape then you look at the medical evidence to decide the issue that Mr Bruce dealt with in detail this morning, which was whether she is in fact a mentally incapacitated person at all because it is denied that she was.”^[54] (Emphasis added)

128.  The judge also adverted to the issue of consent when explaining the reason why the prosecution had laid the MIP counts.  On this issue and on the issue of assessing X’s evidence, the judge said:

“The reason why the prosecution has chosen to put on some charges in relation to a mentally incapacitated person is not as Mr Bruce says because they cannot decide what is right. It is because it is not for the prosecution to decide. It is for you to decide. The reason that you have those charges is because rape and attempted rape, attempted buggery, are all offences which are not offences if there was consent given by the girl or if she failed to communicate the fact that she was not consenting in which case it is still an offence if it is with a mentally incapacitated person, provided the defendant knew that or suspected it.

All right, well, we will come to the law in much more detail in a moment, but that is the essential difference between the two sides. Where is the truth, is the question to begin with, and you are concerned with not just the truth but the accuracy of the evidence and the reliability of the evidence. Has she not only remembered what happened but remembered it correctly? All of that is for you to decide.”^[55] (Emphasis added)

129.  With these directions before them, the jury would have been very conscious of the issue of consent and that this issue had two components to it; firstly, that X was not in fact consenting and secondly, that the applicant knew that she was not consenting or was reckless to that risk.  Any acquittal that can only be sensibly explained as being due to the jury not being sure of consent, could be the consequence of the jury not being sure of either of these components.  It does not mean that the jury found that X did in fact consent or that the jury were unsure of whether she consented; the jury could have based their verdict on not being sure that the applicant realised she was not consenting because her words or conduct may not have sufficiently communicated that message.

G.4.  The test for inconsistent verdicts

130.  The test for deciding whether or not a verdict is inconsistent was set out in HKSAR v CT^[56] where the Court of Final Appeal said that the law in Hong Kong is that contained in R v Durante^[57]; namely that no reasonable jury applying their minds properly to the facts of the case could have returned the verdict that is being called into question.

131.  How this test should be applied is set out in the judgment of the Court of Appeal in HKSAR v Chan Kam Loi^[58] where it was said:

“48.      The legal principles relevant to this ground of appeal are well settled.  In HKSAR v Chau Shu Ho [2008] 5 HKLRD 796 Stock JA (as he then was) summarised the law at pages 801-802, paragraph 18:

‘It is well established that when such a complaint is raised, the burden is upon the applicant to show, first, that the verdicts are inconsistent and, if so, that they are so inconsistent as to call for interference by the appellate tribunal, in other words that ‘there is no way in which the logically inconsistent verdicts can sensibly be explained’: R v Clarke & Fletcher (unrep., English Court of Appeal, 30 July 1996).  See also R v Durante [1972] 1 WLR 1612, and HKSAR v Chan Kai Lam (unrep., CACC 311/2003, [2004] HKEC 1246).’

The ultimate question is whether the verdicts are unsafe and unsatisfactory and that is why inconsistency alone may not be enough to lead to the setting aside of the jury’s verdict and why the appellate court looks to whether there is a sensible explanation for the jury’s verdicts.  It is only in the absence of such an explanation that the verdicts become verdicts which no reasonable jury applying their minds properly to the facts of the case could have reached.

49.  In determining whether the jury’s verdicts can sensibly be explained, sight should not be lost of the reality that juries not only form their own views on the credibility of the witnesses they have heard but also on the justice of the case.

50.  On the former issue, the Court of Appeal in HKSAR v Li King Sing Ivan [2001] 2 HKC 539 at page 546 H referred with approval to the following comments by the English Court of Appeal:

‘… the English Court of Appeal held in R v Van der Molen [1997] Crim LR 604 at 605 that:

‘… it did not follow that because the jury must have disbelieved a witness or rejected his or her evidence with the result that it acquitted on one count, it was necessarily acting irrationally to rely on the evidence of the same witness to convict on another count. The Court had to be very careful not to usurp the role of the jury who had heard the witnesses and considered the matter long and hard.’

In the following year, in R v G [1998] Crim LR 482, the English Court of Appeal held that:

‘A person’s credibility is not a seamless robe, any more than is their reliability. The jury had to consider (as they were rightly directed) each count separately, and might take a different view of the reliability of the evidence on different counts. It was too simplistic to draw a stark distinction between reliability and credibility (as had been put in the argument). It was for the jury to decide on the basis of all the material before it whether it was sure of the particular allegation in each count.’’

51.  On the latter issue of forming a view on the justice of the case, the Court of Appeal referred to comments by King CJ of the South Australian Supreme Court in R v Kirkman (1987) 44 SASR 591, which it noted had been adopted and followed by the High Court of Australia in R v Mackenzie (1996) 90 A Crim R 468 at 483.  At page 593 King CJ said:

‘Juries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of the law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting them of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts should therefore not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.’

These words serve to remind us that juries sometimes act in accordance with their own sense of justice rather than one dictated by inexorably following a purely logical course.

52.  Consequently, the full depth of the wisdom of the jury may not always be fathomable but that does not mean that the jury have acted irrationally or illogically.  Appropriate respect must be accorded the verdict of the jury and appellate courts should not readily assume that no sensible explanation exists for what, at a superficial level, may appear to be inconsistent verdicts.”

132.  In their judgment in CT the Court of Final Appeal quoted with approval the following observations in the joint judgment of Gleeson CJ, Hayne and Callinan JJ in the High Court of Australia in MFA v The Queen:

“It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.”^[59]

133.  These comments seem to me to be particularly apposite to the facts of this case. 

134.  I am not persuaded that the applicant has discharged the burden of demonstrating that there is any inconsistency in the jury’s verdicts.  There are, as I have shown, logical and rational explanations for why the jury reached the verdicts they did.

H.   Ground 2B

135.  I shall deal with this ground next as I can deal with it quite shortly.

136.  This ground complains of the judge’s direction at the beginning of his summing-up.  In contrasting for the jury the competing cases of the prosecution and the defence the judge said:

“On the prosecution’s side what is said is that these were offences committed on X by the defendant during the course of nearly a year on seven different occasions. There are seven dates and what they say is that here was a girl with a mental disorder, called autism, and as you heard Ms See say in her speech, when she was asked by the psychiatrist to produce a simple story she could not do it. So what they say is this is not a made up story. It is actually the truth.

The defence, on the other hand, say that it is made up because none of it is true, entirely untrue. None of these things ever happened. The girl never went to a rooftop with the defendant on the day that she says she was raped or to the rooftop of the school on the day she says she was indecently assaulted or to any of the other places either. It never happened. So there you are. You have a huge difference between the two sides and it is only if you accept so that you are sure that the girl was speaking to you the truth about what happened that you could ever consider convicting the defendant.”^[60] (Emphasis added)

137.  There is no merit in this complaint.  The judge was doing no more than reminding the jury of Dr Hung’s evidence.  I agree with Mr Lai that his evidence was relevant in the context of a defence case which alleged a wholesale invention of a pattern of sexual abuse lasting some 10 months involving multiple occasions of different types of sexual assaults taking place in different locations.  That Dr Hung’s observation was not a comment on X’s ability to fabricate the specific allegations underlying the charges is not to the point.  X’s capacity for invention and role play was relevant evidence for the jury to consider when assessing whether the evidence of X might all be fabrication.  I also note that it came out from Mr Bruce’s cross-examination of X’s mother that X performed badly at school in the area of ability of expression.

I.   Ground 2A

I.1.  The common law exception of recent complaint in sexual cases

138.  The law in relation to recent complaint evidence in sexual cases was summarised by Li CJ in giving a judgment in the Court of Final Appeal, with which other members of the court agreed, in the case of Leung Chi Keung v HKSAR.  He explained how, within the law of evidence, it was an exception to the prohibition against a witness testifying as to previous consistent statements that the witness had made.  He said:

“20. The general rule at common law was that a witness could not be asked in-chief whether he had formerly made a statement consistent with his present testimony. He could not 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 could not be called to prove it.

See Cross & Tapper on Evidence (10th ed., 2004) p.318.

21. A well known common law exception to this rule is evidence of recent complaint in a sexual case. If a complaint was made at the first reasonable opportunity after the offence, the evidence of the person to whom it was made of the fact that it was made and as to its terms are admissible. But such evidence of recent complaint is admissible not as evidence of the facts complained of but only as evidence of the consistency of the complainant’s conduct with his or her testimony. In short, such evidence is only relevant to the credibility of the complainant and would serve to buttress it. See White v The Queen [1999] 1 AC 21 0at p.215F-H, Archbold Hong Kong: Criminal Law, Pleading, Evidence and Practice 2004, p.690 para.8-102, Archbold: Criminal Pleading, Evidence and Practice 2004, p.1155 para.8-103.”^[61]

139.  Thus, evidence from the victim of a crime of having made a post-offence complaint is prohibited by the rule against prior self-serving statements, and evidence of that complaint by the persons to whom it was made is prohibited by the same rule, and also, of course, by the rule against hearsay.

140.  However, the common law developed an exception in respect of sexual cases.  The exception allowed evidence of complaint to be made as long as it was recently made and as long as evidence of the complaint came from the person to whom it was made.  When these conditions were met then evidence of the complaint was admissible, but it could only be used for the limited purpose of showing the consistency of the complaint with the complainant’s evidence as a tool that could be used to assess the complainant’s credibility. 

141.  This limitation on the use that can be made of recent complaint evidence is very important.  Because the jury are entitled to make use of it only for the limited purpose of assessing the credibility of the complainant’s in-court testimony, but may not make use of it as proof of the truth of the allegations contained in that testimony, the evidence does not breach the rule against hearsay.

142.  A helpful discussion of the historical basis of the exception can be found in the judgment of the Queensland Court of Appeal in Warner, where it was said:

“… Generally a person cannot give evidence of a previous statement by him or her consistent with the evidence being given; nor can another witness be called to prove such a statement. The rationale for the general rule is presumably ‘… that all trials, civil and criminal, must be conducted with an effort to concentrate evidence on what is capable of being cogent … ‘ (Fox v General Medical Council [1960] 1 WLR 1017 at 1024-1025; 3 All ER 225 at 230-231 per Lord Radcliffe) and evidence of this kind generally lacks cogency.

The historical basis for this exception appears to be ‘… the ancient requirement that a woman should make hue and cry as a preliminary to an appeal of rape …’ (Commonwealth v Cleary (1898) 172 Mass 175 at 176; Osborne at 559-560). The raising of hue and cry was not, however, limited to cases of rape or similar offences; it applied to all cases of felony. And although the requirement that the victim make prompt complaint may have persisted longer in respect of rape than it did in respect of other offences (Blackstone, The Commentaries on the Laws of England, (4th ed, 1876) Vol 4 at 213) there were offences other than rape or like offences in which it was held that evidence of complaint was admissible: Wink (1834) 6 Car & P 397; 172 ER 1293(robbery); Ridsdale Ros Cr Ev (13th ed) 24, Roscoe, Criminal Evidence (13th ed, 1908) at 24 (shooting); and Folley (1896) 60 JP 569 (wounding). In the last of these cases it was said that complaint was admissible in all criminal cases.

…

The rationale of the exception is that, unlike evidence generally of previous consistent statements, such a complaint may be cogent proof of consistency with the victim's evidence of commission of the offence thereby making that evidence more reliable. Hence the requirements, leaving aside for the moment their precise formulation, that the complaint must be prompt and spontaneous; and the qualification that it is relevant only to the reliability of the complainant's evidence not as evidence of the truth of the facts stated in the complaint. This rationale also allows evidence to be given of a failure to complain where one would ordinarily have been expected: Kilby at 465, 472; Davies (1985) 3 NSWLR 276 at 278;17 A Crim R 297 at 305. And it explains why previous consistent statements are admissible to rebut an allegation of recent invention.”^[62] (Emphasis added)

143.  It is important to note that the exception operates to allow evidence to be given of both the fact and the terms of the complaint but that evidence must be given by the person or persons to whom the complaint is made.  Without the evidence of the persons receiving the complaint, any evidence from the complainant about the complaint is inadmissible.  Thus, the prosecutor cannot elicit evidence of recent complaint when conducting the examination-in-chief of the complainant if he is not intending to call the person or persons to whom the complaint was made and to adduce from them the fact and terms of the complaint.

144.  This point was the focus of the Privy Council’s judgment in White v The Queen.^[63] In giving the judgment of the Board, Lord Hoffman quoted the passage from Cross & Tapper on Evidence which the Court of Final Appeal quoted in its judgment in Leung Chi Keung and then said:

“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 negating consent. As Casey J. said in giving the judgment of the New Zealand Court of Appeal in Reg. v. Kincaid [1991] 2 N.Z.L.R. 1, 9:

‘The immediate question is – ‘How is one to know she is a truthful girl telling of her complaint?’ The answer - that her own assertion that she did complain will help the jury to assess her truthfulness - needs only to be stated to be recognised for its logical absurdity. Without independent confirmation of what she said, the girl’s own evidence-in-chief that she complained takes the jury nowhere in deciding whether she is worthy of belief. The doctrine of ‘recent complaint’ in sexual cases allowing the prosecutor to adduce evidence of a prior complaint is not to be confused with the rule allowing recourse to such a statement in order to rebut a specific charge of recent [invention].’ ”^[64]

145.  Thus, the position the prosecutor will find himself in with respect to any post-offence complaint is that he cannot adduce such evidence unless it falls within either of the two exceptions of being a recent complaint of a sexual offence or of being evidence that combats an allegation of recent invention.  The latter exception only arises if the complainant is cross-examined to the effect that her evidence is a fabrication and cannot, therefore, entitle a prosecutor to elicit evidence of post-offence complaint in his examination-in-chief.  This latter exception is a form of rebuttal evidence and could, therefore, only be given in re-examination. 

146.  Before summarising the legal principles in this area, it is important to recognise that we are dealing with common law principles relating to a common law exception to the rule against self-serving statements.  I note that in the United Kingdom this area of the law is now regulated by statute^[65].

147.  To come within the common law recent complaint exception there must be:

(i)  conduct by a victim of a sexual offence to a third party which qualifies as a complaint;

(ii)  to qualify as a complaint there must be an element of spontaneity to the victim’s conduct; the more the making of the allegation is the result of the prompting conduct of others, the less likely it will qualify as a complaint;

(iii)  the complaint must be made to a third party who is called by the prosecutor and whose testimony confirms receiving the complaint;

(iv)  the complaint must be recent in the sense that it is made at the first reasonable opportunity after the commission of the offence; and

(v)  through its consistency with the complainant’s in-court testimony, the complaint must be capable of enhancing the credibility of the complainant.

148.  Of course, if it is inconsistent with the complainant’s in-court testimony then the defence will no doubt cross-examine the complainant on it as a previous inconsistent statement^[66].

I.2.  The pre-condition of the complaint being recent

149.  This brings me to what is meant by “recent” as a qualifying adjective to complaint.  A useful starting point is the judgment in Warner where the Court of Appeal of Queensland said of the element of “recent”:

“It is the proper formulation of the first of the above requirements, that it be promptly made, and its application to the facts of this case which are in issue here. The most common formulation of this requirement is that it be made ‘as speedily after the acts complained of as could reasonably be expected’ (Lillyman [1896] 2 QB 167 at 171), ‘at the first opportunity after the offence which reasonably offers itself’ (Osborne at 561) or ‘at the earliest reasonable opportunity’ (Kilby at 465, 473). Having regard to the rationale for the rule, that formulation of the requirement (I do not see any material difference between the passages quoted) may state it too narrowly. A complaint may be capable of supporting a complainant’s account even if not made at the earliest reasonable opportunity, particularly if ‘reasonable’ in that formulation denotes an objective test unrelated to circumstances peculiar to the particular complainant. A more satisfactory formulation, in our view, would be whether, having regard to the circumstances surrounding the complaint, including the time which had elapsed since the alleged commission of the offence, the complaint is capable of supporting the credibility of the complainant as a witness. Its function is ‘to negative any effect the ‘alleged victim’s silence might have on her credibility’: M (1994) 69 ALJR 83 per Gaudron J at 96. The circumstances would also include any which were peculiar to the complainant such as her age, any reason for her not having made the complaint before she did (Sailor (unreported, Court of Appeal, No 301 of 1992, 26 February 1993) per McPherson JA at 4-5) and whether it was made spontaneously or only after direct inquiry or prompting or even threats or an inducement (Adams [1965] Qd R 255). Whether or not, having regard to those circumstances, the evidence is capable of supporting the complainant’s credibility is a question for the judge. If it does not have that capacity the judge should exclude it or, if it has been admitted, direct the jury that they should disregard it. If it has that capacity it is a matter for the jury as to whether it in fact supports the complainant’s credibility. Cf Ives [1973] Qd R 128 at 133; Peake (1974) 9 SASR 458 at 461-462.”^[67](Emphasis added)

150.  The issues in respect of recent complaint that arise in the present case were addressed by the Court of Appeal in HKSAR v Hung Wai Tak^[68].  In its judgment, the Court of Appeal discussed the modern law on when a complaint could be regarded as recent.  In this case the delay in making the complaint was only 4 days from the date of the offence to the date of the complaint being made.  On the issue of the complaint being recent, the Court of Appeal said:

“It suffices at this stage to say that on all the relevant evidence placed before the jury, they were entitled to conclude that PW1 had bottled up her anxieties until she could contain herself no longer. It is common knowledge, and well within a sensible jury’s reasonable contemplation, that feelings of confusion mixed with shame and even possibly fear, may well influence a woman in the position in which PW1 found herself to keep such a traumatic event to herself for a time.”^[69]

151.  Later in its judgment the Court of Appeal addressed the relevant legal principles, saying:

“On any view, the complaint to PW2 was not as ‘recent’ as it might have been but the mere fact that there were earlier opportunities for her to have complained cannot amount to sufficient reason in itself to render the evidence inadmissible.

This aspect of the law, as Mr Bruce reminded the court, was dealt with in R v Valentine [1996] 2 Cr App R 213. In that case, the victim had been raped after she had been threatened with a knife shortly after 12:30 am. She arrived home at 2:30am where other members of her family were asleep. In the morning, the victim told her brother she had been attacked with a knife but that she did not want to tell her parents about it. She made no mention at that time of a sexual assault upon her. The victim went to work in the afternoon where she told no one of her ordeal. She waited until the evening before telling a friend. The court, having traced the development of the law in relation to evidence of recent complaint, concluded that:

The authorities establish that a complaint can be recent and admissible, although it may not have been made at the first opportunity which presented itself. What is the first reasonable opportunity will depend on the circumstances including the character of the complainant and the relationship between the complainant and the person to whom she complained and the persons to whom she might have complained but did not do so. It is enough if it is the first reasonable opportunity. Further, a complaint will not be inadmissible merely because there has been an earlier complaint, provided that the complaint can fairly be said to have been made as speedily as could reasonably be expected … The complaint has to be made within a reasonable time of the alleged offence and on the first occasion that reasonably offers itself for the complainant concerned to make the complaint that was made in the terms in which it was made.

We now have greater understanding that those who are the victims of sexual offences, be they male or female, often need time before they can bring themselves to tell what has been done to them; that some victims will find it impossible to complain to anyone other than a parent or member of their family whereas others may feel it quite impossible to tell their parents or members of their family.

We respectfully agree that what was said by Roch LJ when he gave the judgment in Valentine reflects the modern and proper approach to evidence of recent complaint.”^[70] (Emphasis added)

152.  This judgment, and the judgment of the Court of Final Appeal in Leung Chi Keung, represent the law for Hong Kong on the meaning to be given to “recent”.

153.  The requirement that the complaint be contemporaneous with or in reasonable proximity to, the event in question, not only harks back to its hue and cry origins, but is also a factor relevant to the jury’s assessment of the credibility of the complainant.  This is because the recent element reflects the perception that a genuinely aggrieved victim would want to raise the alarm at what had been done to him or her and to do so soon after the occurrence of the crime.  Clearly temporal proximity of the complaint to the crime is a factor relevant to the complainant’s credibility and where there is delay in making a complaint, then much is made of that fact by the defence.  That, of course, is precisely what happened in the present case. 

154.  But much has changed since the days of hue and cry in terms of our knowledge of the range of psychological stressors to which victims of sexual assaults are subject and our appreciation of how a variety of matters, either singly or in combination, may operate upon a victim causing him or her to delay in reporting what has happened.

155.  Thus, the effect of the modern law on the requirement of a complaint being recent is to adjudge whether a complaint is recent not just by a temporal assessment, that is, by how many days elapsed after the sexual assault before a complaint was made, but by a broader contextual and subjective assessment, having regard to the nature and circumstances of the assault, the role the assailant may have in the complainant’s working or private life, and any special characteristics of the complainant, whether they be medical, psychological or social.  The court must factor in anything at all which could impact upon the way the complainant might react after the assault, which she is alleging, occurred. 

156.  This is not to downplay the importance of temporal proximity of the complaint to the events the subject of it.  As I have said, there is an obvious link between the value that complaint evidence will have as a tool for assessing the credibility of the complainant, and the contemporaneity of the complaint.  The closer the complaint is to the events of the charge, and assuming there is consistency, then the more the complaint evidence will be capable of enhancing the credibility of the complainant and the more likely the jury will view it in this light.

157.  However, where temporal proximity does not exist, the modern developments in the common law come into play to ensure that the complaint evidence is not, by virtue of that reason alone, automatically rendered inadmissible.

158.  Apart from the fact that a complaint is made within temporal proximity to the offence, the other aspect of complaint evidence that enables it to be of assistance to the jury in assessing the credibility of the complainant is the consistency of the terms of the complaint with the trial testimony of the complainant.  Thus, the aspect of the terms of the complaint is relevant to show consistency between what the complainant reported to the person to whom she complained and what the complainant said in her sworn testimony in court. 

159.  Notwithstanding that there have been liberal developments in the law in respect of the recent element of the exception, in Hong Kong it remains one of the prerequisite conditions to the admissibility of the complaint and, until that legal position changes, a jury will be deprived of hearing evidence of a complaint which a trial judge determines to be not recent.  This raises the question of whether the common law should be allowed to develop in the way suggested in Warner, in the italicized passages in the judgment of that case that is quoted at [149] of this judgment, so that the only issue for the judge in determining the admissibility of the complaint is whether it is capable of enhancing the credibility of the complainant.  Of course, in making his ruling the judge takes into account any delay in the making of the complaint.  But such delay, if it exists, is only a matter that is factored into his consideration.  Absence of unreasonable delay ceases to be a pre-condition to admissibility.  If the judge rules the complaint is capable of enhancing the credibility of the complainant and, therefore, is admissible, it is left to the jury, with appropriate directions, to assess the significance of any delay in the making of the complaint. 

160.  Such an approach gives effect to the purpose that this admissibility exception serves and the rationale by which it operates to serve this purpose without being constrained by the way the common law developed this exception from its hue and cry origins.  However, the requirement that the complaint be recent as a pre-condition to admissibility is now settled law in Hong Kong.  Whether that should remain the position must be left to the Court of Final Appeal to decide.

I.3.  The proximity of X’s complaint to the abuse

161.  Here, the abuse, only in the form of less serious indecent assaults, commenced around 29 July 2017 and lasted until 9 June 2018 with the first complaint that X made to her mother not taking place until 18 July 2018 after far more serious offences of rape and attempted buggery had taken place in April 2018.

162.  The next episode of abuse, another incident of indecent assault, occurred on 17 December 2017, over four months after the first episode, and again, no complaint was made by X.  However, there was a noticeable change to her personality and emotional stability around Chinese New Year 2018, and in this period of time she was so obviously emotionally unsettled that her mother became quite troubled.

163.  The next occasion that abuses took place was on 4 March 2018 (indecent assault) and then 4 April 2018 (attempted rape, rape and attempted buggery), followed by 6 April (indecent assault), 9 May (indecent assaults), 20 May (attempted rape and indecent assault) and 9 June (indecent assaults).  Throughout this period X was showing signs of emotional instability and so concerned was the mother at the changes in X that she placed her in a hostel for a few days from 13-16 June.  Whilst X was in the hostel the mother read the text messages between X and the applicant and the content of these messages prompted the mother to contact X’s school and this resulted in X no longer having any contact with the applicant. 

164.  X evinced obvious distress on 5 April 2018 after the assaults on her the previous day (counts 4-9).  On 5 April X’s mother spoke to her because X’s sisters had informed their mother that X was in great pain in the area of her genitals.  This was an opportunity for X to complain about what had happened on 4 April but she failed to take it.  However, it is obvious from the evidence of both X and her mother that at this time X was too traumatised by her experience to be able to relate it to others.  But, this factor does not dispense with the requirement that the complaint be recent, in the sense of being made at the first reasonable opportunity after the commission of the offence.  All the modern law does is to enable a court to more liberally determine when that is, by having regard to contextual and subjective matters.

165.  This raises the question of how the judge is to determine when was the first reasonable opportunity for the complainant to make her complaint.  Clearly, the starting point must be the evidence of the complainant, as supplemented by any evidence of family, friends, workplace colleagues, psychologists and social workers.  Although it is an evidence based assessment, the judge’s conclusions about the complainant will also be influenced by the way she gives evidence and the insight he gains from the evidence about her personality and character and her mental state in the period between the occurrence of the alleged offence and the date she made her complaint. 

166.  In the present case, the evidence is that X continued to attend her school and every night would return to a home that provided her with a loving and caring environment.  Furthermore, X was on good terms with both her mother and her sisters.  Consequently, there were multiple opportunities for X to complain if she so wished but, on her own evidence, she chose not to.  On this chronology the complaint by X on 18 July was almost 6 weeks after the last incident of abuse and approximately 1 month after the school ensured the applicant would not have any contact with X. In respect of the abuses that took place earlier than 9 June the delay in complaining was even greater.  Thus, it was over 3 months from the 4 April offences and the conversation with her mother on 5 April.

167.  The failure by X to complain after the first incident of abuse around the end of July 2017 impacted significantly upon the recent character of her complaint.  I am not at all surprised that X chose to do nothing at the time of the first abuse as, after all, it was a relatively trivial form of physical contact.  But that does not explain why she chose not to raise the matter after the occurrence of the 17 December 2017 indecent assault which, in its nature, was a significant escalation in seriousness from the indecent assault on 29 July 2017.  Nevertheless, as serious as this indecent assault was, it was not nearly as serious as the offences which took place on 4 April 2018.

168.  The opportunity on the days following 5 and 6 April to complain to her mother and her sisters can arguably be said to be the first reasonable opportunity for X to complain in respect of the events of 4 April. The mother, and perhaps even more so, the sisters, were obvious persons to whom she could complain in that they were persons with whom she might feel comfortable in relating matters of a sexual nature.  Relevant to her state of mind at this time is the fact that although there was an offence on 6 April (count 10), there were no further offences until 9 May (counts 11 and 12).

169.  The reason why the complaint to the mother was not made earlier is clear from the evidence of X on how she came to reveal to her family what had happened to her, and this evidence is set out at [61]-[67] of this judgment.  It shows that X had made a deliberate decision to conceal what the applicant was doing to her.

170.  However, in understanding why X made such a decision regard must be had to X’s age, stage of development in life, her disability and the fact that the applicant was in a special position in her life.  It cannot be ignored that a MIP who is complaining about a person in whom she has come to trust and who she understands is responsible for her well-being is in a conflicted situation. Furthermore, X clearly enjoyed attending this school and all the activities in which she could participate because of her attendance there and no doubt would not have wished to put that at risk. 

171.  The issue of first reasonable opportunity is further complicated by the fact that, on X’s evidence, the abuses continued throughout the month of May and yet X still chose to conceal what was happening to her.  X was being affected by the abuse as she became increasingly emotionally unstable, to the extent that the mother placed her for a short period of time in a hostel.

172.  They key contextual matters in this case can be summarized as follows:

1)  X’s young age;

2)  X’s MIP status^[71];

3)  The position of the applicant vis-à-vis X, namely as:

(i)  a person in authority;

(ii)  a person responsible for X’s welfare and in whom she was expected to trust; and

(iii)  a much older person who was able to manipulate and intimidate X.

These matters should not be considered singly, in isolation from the others, for each has an aggravating effect on the other.  In this respect the comments of Gaudron J of the High Court of Australia in M v The Queen^[72] bear repeating.  She said:

“Because complaint continues to have significance in relation to sexual offences, it is important for the assumption which justifies that significance to be formulated in terms which indicate that it is neither sex-specific nor of general application, …

There is one class of case which cannot be approached on the basis of an assumption of the kind discussed in Hawkins’ Pleas of the Crown, namely, cases of sexual assault on a child by a person who has the child’s trust and confidence.  In cases of that kind, the victim may be reluctant to resist the offender or to protest and, on that account, reluctant also to complain.  As well, a child in that situation may be reluctant to complain from fear that he or she will not be believed, from fear of punishment or, even, fear of rejection by the offender.”

173.  Although all cases are necessarily different, I believe that it can be fairly said that this case fell into the range of the more complicated type of case.  Determining the issue of first reasonable opportunity would have required a very careful and sensitive analysis of the evidence by the judge, drawing upon such views that he may have reached about the impact of X’s MIP disability on her and the effect it may have had upon her ability to make decisions about the situation in which she found herself.

174.  I am of the view that, even allowing for all the matters to which I have referred, I cannot say that had the judge heard argument on this issue, he would have inevitably concluded that the complaint on 18 July was made at the first reasonable opportunity after the commission of the alleged offences, particularly of the more serious ones on 4 April 2018. 

175.  In the circumstances of this case, there was clearly a substantial argument open to the applicant that the revelation by X to her mother on 18 July cannot qualify as a recent complaint.  I do not feel able to reach a definitive view on this matter as I have not viewed the video tape of X’s evidence in chief and, perhaps more importantly, am not able to observe her evidence under cross-examination.  This prevents me from being able to gain a complete appreciation of X’s MIP status and of the impact that her disability had on her.  Yet, it is this contextual matter which is vital to a determination of whether X’s complaint was made at the first reasonable opportunity after the commission of the offence. 

176.  I agree that a material irregularity occurred in the trial procedure when the judge treated the complaint to the mother as a recent complaint without hearing argument on this question and making a reasoned ruling on it.  Had the judge ruled that the pre-condition of the complaint being recent was not met, it remained a prior self-serving statement and could not be relied upon by the prosecution to enhance the credibility of X and could not be used by the jury for this purpose.  Only the fact of complaint had relevance and that was as background to explain how the matter progressed to the arrest of the defendant.

I.4.  The admissibility of the fact a complaint is made

177.  In White v The Queen Lord Hoffmann addressed how the prosecutor should deal with complaint evidence that was not admissible under this exception but was relevant background evidence.  He also discussed how it may be necessary for the judge to direct the jury on the limited use they could make of it.  He said:

“Their Lordships accept that when the complainant herself is giving evidence, it may be difficult for her to give a fair and coherent account of her behaviour after the incident without allowing her to mention that she spoke to other people who may not be available to give evidence (within the sexual complaints exception) of what she actually said. Their Lordships would not suggest that the mere mention that the witness spoke to someone after the incident was inadmissible. In most cases it will be very difficult to draw any rational distinction between consistent conduct, which is plainly admissible (e.g. that the witness wept) and the fact that she spoke to someone such as a parent. On the other hand, it is important to avoid infringement of the spirit of the rule against previous self-consistent statements by conveying indirectly to the jury that she had given a previous account of the incident in similar terms with a view to inviting the jury to infer, not merely that her subsequent conduct was not inconsistent with her complaint but that her credibility was actually supported by the fact that she had told the same story soon after the incident.

In the present case their Lordships think that the prosecution probably went further than could be justified by the need to allow the complainant to give a fair account of her conduct after the incident. In the absence of a ruling by the judge that the questions could be asked because of an imputation of recent invention, she should not have been allowed to say that she had told five people ‘what had happened.’ The inference which the jury were bound to draw was that she had made statements in terms substantially the same as her evidence to the court. In the context of the hearsay rule, courts have discouraged its evasion by devices such as that described by Hawkins J. in Reg. v. Lillyman [1896] 2 Q.B. 167 , 178-179:

‘the very object of confining the evidence of the complaint to the few stereotyped questions we have referred to is often defeated by a device, not to be encouraged, by which the name of the accused, though carefully concealed as an inadmissible particular of the complaint, is studiously revealed to the jury by some such question and answer as the following: ‘Q. In consequence of that complaint did you do anything? A. Yes, I went to the house of the prisoner's mother, where he lives, and accused him.' This seems to us to be an objectionable mode of introducing evidence indirectly, which if tendered directly would be inadmissible.’

…

While therefore their Lordships do not go so far as to say that the evidence of the fact that statements were made was inadmissible, they consider that the admission of that evidence made it necessary for the judge to give the jury a careful direction about the limited value which could be attached to it.”^[73] (Emphasis added)

178.  The difficulties in the present case arose because neither party, nor the judge, properly analysed the evidence.  There was only one complaint and that came from the evidence of the mother.  As with any complaint, there is, firstly, the fact of the complaint being made which, in any case, may or may not have consequences for the criminal investigation and prosecution of the defendant.  Here it did, for, as it commonly does, it explained how the defendant came to be on trial.  Secondly, there are the terms of the complaint.  The basis for the admissibility of each of these pieces of evidence is quite different.  The fact of the complaint, together with the terms of complaint, may be admissible as part of a recent complaint but when the terms of the complaint are not admissible under this exception, then the fact of complaint may still be admissible as background evidence.  But, when only the fact of complaint is admissible, and is only admissible as background evidence, then care must be taken to ensure, by appropriate direction, that the jury does not infer that the complainant’s credibility is supported by the fact that she complained.  This was the concern expressed by Lord Hoffmann in White v The Queen in the italicised passage that is quoted from the judgment at [177] of this judgment. 

179.  However, in this situation, the terms of complaint may become admissible as evidence rebutting fabrication and, if this happens, then the two may still come together in the prosecution case, but with the terms of the complaint only being adduced by the prosecutor, in re-examination, as rebuttal evidence.

180.  It is because each may have a different basis for admissibility that it is so important that the parties carefully examine their respective approaches to the evidence and communicate their approaches to each other and to the judge.

I.5.  The duty of counsel

181.  As the party adducing the evidence, the prosecutor must clearly inform the court of the purpose for which it is being adduced.  This should be done at a case management hearing before trial so that the position of the defendant can be ascertained and any issue as to its admissibility for this purpose can be resolved.  The prosecutor should decide well in advance of trial whether he will be adducing complaint evidence as recent complaint or whether he will be reserving this evidence as prospective rebuttal evidence should the complainant be cross-examined to the effect that she has fabricated the allegations.

182.  If the defendant objects to its admissibility then he has a right to be heard and the decision of whether it is admissible for the purpose for which the prosecution seek to adduce it is a legal issue for the judge alone to decide.

183.  If the judge decides it is admissible then the parties will know where they stand in terms of how they deal with the evidence in the course of the trial and in their closing speeches to the jury.

184.  Furthermore, counsel and the judge should discuss the terms of the direction the judge proposes to give so that they know, in advance of their own speeches, what he intends to say in respect of this evidence.

I.6.  The position adopted by counsel at trial

185.  Mr Bruce informs us that he had an understanding with the prosecutor that the evidence was not being led as evidence of recent complaint.  If it was not being so led then it is difficult to know on what basis evidence of the terms of complaint was admissible by the prosecutor. It is clear from what Mr Bruce said that he wanted the terms of the complaint before the jury in order to advance the defence case.  That of course does not make it admissible by the prosecutor but it does, perhaps, explain why the judge subsequently gave a recent complaint direction and did so without consulting the parties, although neither party objected to the judge having done so. 

186.  It is something of an understatement to say that it would have been helpful if Mr Bruce and the prosecutor had informed the judge of their understanding and if Mr Bruce had clearly expressed to the judge that he wanted this evidence before the jury and the limited purpose for which he was consenting to its admission. 

187.  At the hearing of the appeal Mr Bruce explained the position he adopted at trial and the following exchange took place:

“McWALTERS JA: Well, let’s get -- you say it was admissible anyway.

MR BRUCE: It was admissible for other purposes.

McWALTERS JA: Why? Why was it admissible and for what purpose?

MR BRUCE: Because it explained, amongst other things, the conduct of mother and sister and it explained particularly conduct of mother qua the school, you’ll remember...

McWALTERS JA: Yes, but why was it necessary for the details of the complaint to be given for that purpose? Why couldn’t you simply say, ‘As a result of the conversation you had with X you then went to the police or went to the school’, or whatever? Why is the details of the complaint admissible?

MR BRUCE: Because what happened particularly in the exchanges at the school, in order to understand those and the less than attractive communications which went on in defiance of instructions by the school, you needed to understand what was going on that this wasn’t just -- and he didn’t know what it was that was being related. I do not seek to hide from the fact my decision...

McWALTERS JA: No, I know, but the next question becomes then how should the judge have directed in relation to their use the jury could make of it.

MR BRUCE: He was entitled to direct the jury that you can make use of it for the purposes I have just identified.

McWALTERS JA: Well, I want to be very precise of that bit.

MR BRUCE: Yes, I understand.

McWALTERS JA: Because usually, as you know, when there is the risk of hearsay evidence being given the prosecution will simply say, ‘Well, as a result of a conversation with such and such did you then do this?’ To explain why a certain action was taken.

MR BRUCE: Yes.

McWALTERS JA: And usually when it’s in relation to a complaint it’s because the complainant is then encouraged by a friend or a relative to go to the police.

MR BRUCE: Yes.

McWALTERS JA: So here you’re saying it was actually details of the actual complaint were admissible in their own right...

MR BRUCE: For the...

McWALTERS JA: ... for the limited purpose of...

MR BRUCE: The report to the police by the family, the conduct which occurred after that in relation to the second so-called diary -- I hate using the word ‘so-called’, but it wasn’t a diary.

McWALTERS JA: So for the purpose of explaining the report to the police by the family.

MR BRUCE: Yes.

McWALTERS JA: And so?

MR BRUCE: And explaining the conduct of the family with respect to their own inquiries later which culminated in the report also to the school, and the prosecution were entirely within their rights to adduce evidence from the principal or I think the deputy-principal, from memory, of conversations as a result of those allegations. And, as I say, that was not one of the more attractive...

ZERVOS JA: Was that relevant in relation to any then inquiries made of the applicant as a result?

MR BRUCE: Yes.

ZERVOS JA: And its relevance was on that basis...

MR BRUCE: Yes, so...

ZERVOS JA: ... how he responded or what was said by him.

MR BRUCE: Yes, and so my specific focused approach, I’m not trying to pat myself on the back here but if it comes out so be it, was you can do all that but what you can’t do is take the good part of a direction on recent complaint, which is to, in my submission, add to the credibility.  Now, I perfectly accept that the standard direction and the direction that the learned judge gave in this case gives the other edge of the sword.”

188.  I pause here to observe that it seems to me that obtaining evidence of the lateness of the complaint did not require that the mother reveal details of the terms of the complaint.  Nor was this evidence necessary to the prosecution case in order to reveal how it was that the applicant came to be arrested.  As I have already indicated, there was no evidence from the elder sister as to the terms of the complaint and the defence case suffered no prejudice as a consequence.  The mother’s evidence could have been dealt with in the same way.  But, Mr Bruce exercised his professional judgment and decided that, for the defendant’s forensic advantage, he would like the terms of X’s complaint to the mother to be before the jury.

189.  The party adducing the evidence, and here it was the prosecutor, has the primary responsibility to explain to the judge the basis for the admissibility of the evidence.  Although, it must be said, in the unusual circumstances of this case the defendant had an equally strong interest in the judge correctly understanding the purpose for which the prosecution was adducing the evidence and that is why it is difficult to understand why Mr Bruce did not alert the judge to the agreement he had reached with Ms See on the limited purpose for which this evidence was being admitted and could be used. 

190.  Clearly, once the terms of the complaint evidence had been adduced in the prosecution case without opposition from the defence, the judge assumed that the parties accepted it was before the jury as recent complaint evidence.  However, in the circumstances of the present case, where there was a pattern of sexual abuse on-going over a significant period of time, the judge should have anticipated that there might be an issue in respect of the recent element of the complaint; for if the complaint cannot be characterised as recent then one of the pre-conditions to its admissibility, as complaint evidence, is not met and it cannot then be adduced by the prosecutor for the purpose of inviting the jury to assess favourably the credibility of the complainant’s testimony.

191.  Whilst it is understandable that the judge made this assumption he should have clarified this with the parties and should have alerted them that he proposed to give a recent complaint direction.  The judge was assuming the evidence was being admitted, without objection, as recent complaint; but Mr Bruce was in fact admitting it to show when and how the allegations against the defendant came to light, as part of the defence case that those allegations were fabricated, as evidenced by X’s failure to make a complaint about them soon after their occurrence.  He and the judge, without knowing it, were at cross-purposes.

I.7.  Depriving defence counsel of his right to be heard

192.  By the judge and the parties not engaging on this issue, the defendant’s counsel was deprived of an opportunity to address the judge on it before he gave the direction.  The applicant’s counsel was denied the opportunity to be heard on what the judge should say in his summing-up and, once aware of what the judge would say, to tailor his closing speech accordingly.  However, that failure could have been cured by Mr Bruce raising it with him after the direction had been given and that is a course that he should have adopted.  I shall say more on this later in this judgment.

193.  Because I cannot come to a conclusive view on whether the complaint was recent, I must assess the consequence that this failure of the parties and the judge had on the fairness of the trial.  The consequence is that evidence which may not have qualified as a recent complaint came to be admitted as such.

194.  Thus, in my view, the real question is whether the admission of the evidence, as evidence of recent complaint, renders the verdict of the jury unsafe, with the consequence that there has been a miscarriage of justice.  In order to determine this issue, it is necessary to examine how the judge treated this evidence.

I.8.  The judge’s directions

195.  The judge directed the jury on how they were to make use of the complaint evidence, as follows:

“The evidence of hearsay in a case is not generally permitted but there is one exception. In sexual cases, if somebody makes a complaint to another person you are allowed to hear it, either to be, as it were, reinforced in believing what the girl says because it is consistent, or you could see it the other way, if it is not consistent not believing what the girl says. So if somebody says something completely different to the allegation they have made to the police, for example, it is something very important indeed. Just as if it is consistent, it may help you to decide where the truth is.

So it is that the evidence given by the mother and also by the elder sister of what [X] said to them has been permitted by law in a case of this kind and is permitted, I should say. It is important to remember that the account given by [X] to her mother and to her sister is not evidence of what actually happened between [X] and the defendant, because neither the mother nor the sister were present and could not see it. They are simply hearing what [X] says happened, so it is not independent evidence.

But as I say, the evidence those two witnesses gave is evidence you are entitled to consider because it may help you to decide whether or not [X] told you the truth about what happened to her on these various events. That is the reason you hear it so it is for you to decide whether the evidence of the mother and the sister are what [X] told them about the sexual misconduct allegedly by the defendant helps you to decide if she has been telling you the truth all along.

The prosecution suggests that her complaints were consistent with the account she gave you and therefore her account is more likely to be true. The defence say that these are simply invented stories not only that she gave to the psychologist when she was being interviewed but to you in court as well and so she simply repeated invented stories to her family. So it is for you to decide what the right decision about that is; was she telling you the truth. Only if you are sure, of course, you could convict in this case because if it may be that it is not true, that is the end of it, not guilty.

So remember that her evidence, the mother’s evidence and the sister’s evidence, is not independent of the girl. It is a repeat of what they heard the girl telling them and so, by itself, it certainly cannot prove the truth of the complaints. That applies as much to the mother as to the elder sister.”^[74] (Emphasis added)

196.  I should note that the judge gave these directions on 19 November 2019 and continued with his summing-up the next day before he sent out the jury to consider their verdict.  Mr Bruce, therefore, had overnight to think about these directions and raise them with the judge the next day.  The opportunity existed for the judge’s error to be corrected, but Mr Bruce deliberately chose not to avail himself of it.

197.  A number of matters stand out from these directions.  The first is that the judge clearly directed the jury that they could not use the complaint evidence as evidence of the truth of the allegations contained within the complaint.  This is the most important element of the direction.  Without it, I would have had grave concerns about the safety of the conviction.

198.  The second matter that stands out clearly is that the judge directed the jury to make use of the complaint evidence for only the limited purpose of assessing the credibility of X by assessing the consistency of the terms of the complaint with X’s trial testimony.  If the making of the complaint was admissible only for the limited purpose of explaining how the police became involved then such a direction is wrong.  It is this aspect of the direction that is the core of Mr Bruce’s complaint.  He argues that in a case which depended so heavily on the credibility of X, the direction of the judge had the effect of elevating the importance of this evidence by permitting the jury to use it for the purpose of assessing favourably the credibility of X. 

199.  The third matter which stands out is the total absence of any reference to the recent element of the complaint, the effect of which is to blur the distinction between the giving of a recent complaint direction and the giving of a fabrication direction.

200.  However, the failure of the judge to refer to the delay in making the complaint is not a matter that concerns me as it could not have escaped the attention of the jury.  I say that because that delay was so heavily relied upon by Mr Bruce throughout the trial in support of his contention that the failure by X to complain shortly after each offence impacted seriously upon her credibility and itself provided support to the defence case that X’s evidence was a fabrication.

I.9.  The defence case at trial

201.  The defence case was that the allegations of X were all false and that their falsity could be seen in the flaws and contradictions inherent in her account of them and from the fact that she had not, at any reasonable time after their occurrence, complained about them.  Mr Bruce was asserting fabrication dating from the complaint to the mother on 18 July followed by the interview the sisters had with X on the following day.  No details of what X told her sisters was adduced through the evidence of the elder sister.  All that was adduced was that the two sisters interviewed X because they had already become aware of what X had told the mother the day before and, appreciating the significance of the allegations X was making, decided they should make a proper record of her account.  This they did with an iPad. 

202.  There was cross-examination of one of the sisters on whether she helped X to reconstruct the content of the missing pages of her diary but the sister denied helping X on how she might express herself in describing events in the diary.  Mr Bruce probed the possibility that the sister may have, inadvertently, coached X in what to say but, in the face of the sister’s denials, took the issue no further with her.  However, as can be seen from the transcript quoted at [61] of this judgment, Mr Bruce elicited from the complainant an admission that there was a rehearsal of the iPad interview. 

203.  In his closing address Mr Bruce was careful to avoid any criticism of the mother and sister and certainly did not accuse them of any impropriety in coaching X to make false allegations or assisting her in any way to fabricate them.

I.10.  The error of admitting the evidence in examination-in-chief

204.  If the complaint to the mother was not admissible as a recent complaint, then, for the prosecution, only the fact that a conversation with the mother took place was admissible and then only for the limited purpose of explaining how this conversation led to contact with the school and ultimately reporting the defendant to the police.  The content of the conversation was not admissible, at the behest of the prosecution, unless it could be adduced to rebut an allegation of fabrication. 

205.  I am of the view that a very strong case can be made for admitting the terms of the complaint on this basis.  If I am right in so concluding, then the consequence is that evidence which was adduced in examination-in-chief was inadmissible, at that time, but that after the cross-examination of X asserted fabrication by her of the allegations she was making, the same evidence became admissible in re-examination. 

206.  That the evidence was adduced in examination-in-chief, instead of re-examination, is not, on its own, sufficient for me to regard the convictions as unsafe, particularly as that appears to have been done with the approval of, or at least no objection from, Mr Bruce.

207.  What I must now consider is whether the directions the jury received on recent complaint might have caused them to pursue a pathway of reasoning which was erroneous. 

208.  Once the content of X’s conversation with her mother became known to the jury, the jury would require directions on the permissible use that could be made of that content.  Such directions would have to be that they could make use of the evidence as part of their consideration of the allegation that X had fabricated her testimony but that they could not use it as proof of its truth.

I.11.  Admitting the evidence to rebut an allegation of fabrication

209.  The content of the conversation with the mother, if not ruled to be a recent complaint, as I have already said, was not admissible, in the prosecution case, as recent complaint evidence.  However, it was admissible in re-examination, to rebut the allegation of fabrication.  In using it for this purpose, the jury would be directed in the same way as they would if the evidence qualified as a recent complaint.  That is, they would be entitled to use it to assess the credibility of the complainant by assessing its consistency with her in-court testimony.

210.  The jury were given a recent complaint direction when they should have been given a fabrication direction.  But the only real difference between the two directions is the element that the complaint be recent.  For a recent complaint direction the judge emphasises the importance of the complainant having complained at the earliest reasonable opportunity after the offence was committed.  Here, as I have indicated earlier in this judgment, this was not done.  In a fabrication direction, it is likely that delay in making the complaint is important but, as I point out at [200] of this judgment, such a delay could not have escaped the attention of the jury.  Given that the judge made no reference to the complaint being recent, I am of the view that, in terms of how the jury should have been directed, the difference between the two directions is not a meaningful one and I do not see that it would have caused the jury to make an assessment of the credibility of the complainant through a pathway of erroneous reasoning.

211.  Furthermore, the assessment of what impact the erroneous directions might have had upon the jury’s verdict must be done through the prism of what, realistically, were the issues in the trial and how those issues were resolved by the jury.  This I have addressed at [110]-[112] of this judgment.  There was overwhelming evidence in respect of the most serious of the offences, counts 4 to 9, which provided a compelling explanation for why the jury accepted X as a credible witness.  As is evident from their verdicts, the real issue in the minds of the jury, notwithstanding that it was not relied on by the applicant, was whether the applicant, in respect of every incident of sexual abuse, honestly believed X was consenting or whether he was neckless to whether she was consenting.

212.  I have carefully examined the mother’s evidence.  In respect of the terms of the complaint there is little evidence of the bulk of the offences other than of counts 4-9 and as I have said the evidence of those counts was overwhelming.

213.  In the unusual circumstances of this case I am satisfied that the erroneous direction on recent complaint would have had a minimal and inconsequential impact on the jury’s assessment of the credibility of X.

214.  I am, therefore, of the view that, notwithstanding the failure of the judge to provide the applicant’s counsel with an opportunity to be heard on whether the complaint was recent, and then to make a carefully reasoned ruling on its admissibility, I am satisfied that the omission has not resulted in a miscarriage of justice and does not, therefore, render the verdicts unsafe.

215.  However, I cannot ignore that there was a material irregularity in the procedure adopted by the judge in his failure to engage with counsel on this issue and to make a reasoned ruling on it. 

216.  Consequently, I would grant the applicant leave to appeal.  But, as I have earlier indicated, notwithstanding these flaws in the conduct of the trial, I am satisfied that no miscarriage of justice has actually occurred.  I would allow the application for leave to appeal but, applying the proviso to section 83(1) of the Criminal Procedure Ordinance, I would dismiss the appeal. 

J.   Counsels duty on hearing a misdirection in a judge’s summing-up

217.  Before leaving this ground I must comment on the stance that Mr Bruce took at trial upon hearing the judge’s direction.  Recognising the significance of what the judge had done, and believing that it was not curable, he chose not to raise it with the judge but to leave it as a ground of appeal.  He explained his decision in the following exchange with this court:

“McWALTERS JA: You are saying the judge shouldn’t have given it and, secondly, you would apply for the right to be heard in respect of it.

MR BRUCE: That’s right. And maybe I’m getting ahead of myself here, and I would have adjusted my case.

McWALTERS JA: Yes, but they are two quite separate issues.

MR BRUCE: All right, I...

McWALTERS JA: Because (1) if you had been given an opportunity to be heard on it that’s fair trial.

MR BRUCE: Yes.

McWALTERS JA: Here it’s simply a misdirection. In the circumstances of this case this was a misdirection by the judge.

MR BRUCE: Yes, and it was a misdirection -- the reason I connect the two is it in a sense came out of the blue and...

ZERVOS JA: Well, did you complain about it at the time?

MR BRUCE: No, I didn’t and I will tell you why. The reason I didn’t complain about it was I took the view, (1) that there was no way you could put Genie back in the bottle, and (2) that any further direction ran the risk of making things worse and I say that...

ZERVOS JA: Then why didn’t you raise it with the judge?

MR BRUCE: I’m sorry?

ZERVOS JA: Why didn’t you say something about it with the judge if that was your concern at the time?

MR BRUCE: It was my concern at the time and my decision was deliberate.”

218.  The current Code of Conduct of the Bar of the HKSAR, which was effective from 15 November 2018 provides:

“10.39 In all cases, a practising barrister must bring any procedural irregularity of which he is or has become aware to the attention of the Court during the hearing and not reserve such matter to be raised on appeal.”

219.  This reflected what the Court of Appeal had said in R v Leung Chi Yuen & Ors^[75], referred to in HKSAR v Tse Hin Yeung^[76], that the failure by counsel to raise the misdirection to the judge amounted to a material irregularity. 

220.  In Leung Chi Yuen the Court of Appeal referred to the old version of the Bar Code which provided:

“Section 154. If some procedural irregularity comes to the knowledge of defence counsel before the verdict is returned, he should inform the court as soon as practicable. He should not wait with a view to raising the matter later on appeal. Defence counsel is not under any duty to draw matters of fact or law to the attention of the court at the conclusion of the summing-up but may do so if he believes it would be to the advantage of his client.”

221.  The court clearly disapproved of this statement of counsel’s duty and unequivocally and emphatically corrected this approach by saying that the advocates’ duty to the court takes precedence over the duty that they owe to their clients.

Also, at paragraph 36, the court said:

“36. It follows from this that what is wrong, and we do not suggest it happened here, is for Counsel to refrain from making a submission because he considers it will be a good point to argue on appeal if his client is convicted. That must be against his client's interest to secure his acquittal at the trial and also, the point not being taken below, it may well fail on appeal.”

222.  Clearly the Bar Code cannot, and does not, prevail over statements by the Court of Appeal.  It is disappointing that it took so long for the Bar Association to update its Code but that can be no excuse for counsel not being aware of pronouncements of the Court of Appeal.

223.  Given the strict duty imposed on counsel by the Court of Appeal and now reflected in the new Bar Code, it is clearly no longer proper for counsel to consciously sit on an error by the judge so as to make it a ground of appeal.  Not only will counsel be in breach of their duty to the court, it will almost inevitably be contrary to the interests of their clients. 

K.   Disposition

224.  For the reasons set out in this judgment I would grant the applicant leave to appeal but dismiss the appeal.

Hon Macrae VP:

225.  The Court is therefore agreed that the applicant should be granted leave to appeal against conviction, but the appeal is nevertheless dismissed.

[1]  R v Osborne [1905] 1 KB 551, 561.

[2]  HKSAR v Hung Wai Tak [2000] 4 HKC 641, 651A-E.

[3]  R v Valentine [1996] 2 Cr App Rep 213.

[4]  Hung Wai Tak, 650G-651F.

[5]  HKSAR v Kong Yun Chiu [2007] 4 HKC 391, at [11].

[6]  Together with Ms Denise Souza.

[7]  Appeal Bundle (“AB”), p 44O-P.

[8]  AB, p 50T.

[9]  AB, p 265L.

[10]  AB, p 74O-S.

[11]  AB, p 54O-P.

[12]  AB, p 55A-C.

[13]  AB, p 489 counter 3407.

[14]  AB, p 504 counter 3671.

[15]  AB, p 56C.

[16]  AB, p 514 counter 3858.

[17]  AB, p 541 counter 280.

[18]  AB, p 281D.

[19]  AB, p 559 counter 480.

[20]  AB, p 59R-T.

[21]  AB, p 60D-E.

[22]  AB, p 60E-G.

[23]  AB, p 462 counters 2923-2931.

[24]  AB, pp 243L-R and 245C-247E.

[25]  AB, pp 259H-260D.

[26]  AB, p 262L-Q.

[27]  AB, pp 266O-267E.

[28]  AB, pp 273H-L, 273O-275O.

[29]  AB, pp 288T-289E.

[30]  AB, p 313Q-S.

[31]  AB, pp 313S-314F.

[32]  AB, p 309 A-D

[33]  AB, p 68 J-K.

[34]  AB, p 69 D.

[35]  AB, p 72 C.

[36]  AB, p 134.

[37]  AB, p 125 at [11.1 (b)].

[38]  AB, p 125 at [11.1 (C)].

[39]  AB, p 125 at [11.1 (D)].

[40]  AB, p 134 at [15.5].

[41]  AB, p 125 at [11.1 (g)].

[42]  AB, p 130 at at [13.7].

[43]  AB, p 133 at [14.15].

[44]  AB, p 82I-J.

[45]  AB, p 80A-C.

[46]  AB, p 87N-O.

[47]  AB, p 87R-T.

[48]  AB, p 84E-I.

[49]  AB, p 154C.

[50]  AB, p 197 B-D.

[51]  X’s evidence was clear that she was not consenting. She testified as to how her legs were prized open while she was trying keep them shut. She said she would have been beaten if she did not go with him. See AB, p 266C-N and pp 482-484 (counters 3282-3314).

[52]  AB, p 820.

[53]  AB, p 823.

[54]  AB, pp 34F-35H.

[55]  AB, p 27D-N.

[56]  [2019] 22 HKCFAR 225, at [32]..

[57]  [1972] 1 WLR 1612, 1617.

[58]  CACC 410/2012, unreported, 30 January 2014.

[59]  (2002) 213 CLR 606, [34].

[60]  AB, pp 26O-27D.

[61]  (2004) 7 HKCFAR 526, 527E-J, at [20]-[21].

[62]  78 A Crim R 383, 384-385.

[63]  Applied by the Court of Appeal in HKSAR v YHM [2019] 2 HKLRD 814.

[64]  [1999] 1 AC 210, 215G-216C.

[65]  See section 120 of the Criminal Justice Act 2003.

[66]  See section 14 of the Evidence Ordinance, Cap 8.

[67]  Warner 78 A Crim R 383, 385-386.

[68]  [2000] 4 HKC 641

[69]  Ibid, at 648A-B.

[70]  [2000] 4 HKC 641, pp 650G-651E.

[71]  The jury, by their verdicts, clearly accepted that X was a MIP.  In so finding the jury must have accepted that she was autistic with mild to moderate grade mental retardation and was incapable of living an independent life.

[72]  (1994) 69 ALJR83 at 97.

[73]  White v The Queen [1999] 1 AC 201, 217E-218E.

[74]  AB, pp 63I-64J.

[75]  CACC 576/1987, 29 June 1989, per Penlington JA.

[76]  [2016] 4 HKLRD 136