HKSAR v. TAM CHI KIN

CACC 153/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 153 OF 2006

(ON APPEAL FROM DCCC NO. 1055 OF 2005)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1. The applicant was convicted on 9 March 2006 after trial by Deputy District Judge Woodcock upon two charges of indecent assault.  He now seeks leave to appeal against conviction.

2. Save as to the issue of consent, the factual findings of the learned judge are not challenged.  Given the findings of fact that are not challenged, to the details of which we shall shortly come, the suggestion that is made in this application, that the judge erred in finding lack of consent and in failing to consider that the applicant might have held a genuine and honest belief that the complaint did consent, is surprising.

3. The complainant is a married lady living alone with her seven-year-old son.  Her husband left the matrimonial home in 2004 because he was being pursued by loan sharks.

4. Her testimony was that on 18 March 2005, she received a telephone call from the applicant, a person entirely unknown to her until that date, saying that he was telephoning on behalf of a Macau debt collector about a debt owed by her husband.  The call was made to the office at which she has for long worked.  He wanted her to repay the money for her husband, but she said that she had no money and had already been declared bankrupt and was unable to locate her husband.  He pretended to sympathise with her and said that he would talk to his “Big Brother” and would contact her later.  He telephoned her again at her office three days later and said that the “Big Brother” insisted upon payment of the debt.  He arranged to meet her saying he would help her with a story to put to the debt collector, but that they had to meet where no one else could see them.  Contrary to her wishes, he insisted on meeting on a back staircase at her place of work.  There he feigned concern that she might be hiding a tape recorder to record their conversation, and he made her pull up her upper garment as well as her skirt, and pull down her underpants, all on the pretence that he was looking for a recording device.  He touched her indecently near her breasts and upon her private parts.  Her evidence was that she felt very bad and very frightened because he was a debt collector and “I was afraid that if I made him angry he will cause trouble to me and cause me to lose my job.”  In the course of cross-examination, she said that she did not want to be touched by him and that she was very frightened “plus at that time he said he came to help me and so I was afraid he would refuse to help me further and eventually I would lose my job.”  This fact formed the subject of the first charge of indecent assault.  It was put to her in cross-examination that this entire account was a fabrication and that all that had happened was that there was a meeting at the staircase, a location of her choice.

5. Later the same day, he telephoned her again saying that “the other party” did not believe her and that they were going to come to her house to see whether her husband was there, but he suggested that they make a tape recording of a conversation which they could pretend had taken place at her home.  To this end, he said that they would have to rent a room at a hotel.  She protested, but he said he was just trying to help her and he then scolded her and scared her and asked if she wanted to lose her job.  At that time she said “because he said I had no choice” she finally promised and they went to a hotel room in Mongkok.  She said she was very frightened and that “I was afraid that when I arrived some other people would be present and I was afraid that I would be taken some photos or he would do the acts that he had done on the rear staircase earlier on to me again and … I told him that I was very frightened.  He then continued to scold me. … he emphasized that he was only trying to help me and he asked me how he could report to his ‘Big Brother’.  He also asked me if I want his ‘Big Brother’ to find someone to go to my workplace on the next day and cause me to lose my job.  I told him that I was very frightened and after I put those questions to him, he guaranteed to me that those things would not happen.  He promised me that those things would not happen.”  By “those things” she included indecent assaults.  But at the hotel, “those things” did indeed occur again.  He made her take off her clothes, saying yet again that he had to check for recording devices.  He made her pull up her skirt and take off her pants and asked her to lay on the bed and he touched her private parts and asked her to turn over and he touched her anus.  He made her to go into the toilet and urinate for him to watch.  She said she felt “very very bad”.  These facts formed the subject of the second charge of indecent assault.

6. A week or so later he required her again to go to a hotel room, but this time she notified the police, and the applicant was arrested.

7. The applicant did not give evidence at trial.  He simply asserted through counsel that although there was a meeting at the rear staircase by her office, nothing untoward happened, and that there was no meeting at the hotel.  It was put to her on more than one occasion that she was lying and making up the story altogether.

8. In her Reasons for Verdict, the judge noted that although the applicant denied that any sexual contact took place, there was a submission that if she found that the acts did occur, she should nonetheless find that the complainant had consented to those acts.  The judge found that the testimony of the complainant was compelling and that the acts she described had taken place and that the suggestion of consent was untenable.

9. Mr Lee, who appeared also in the court below, appears before us and asserts – and we quote from his written submissions – that “on the evidence there existed the real possibility that [the complainant] was consenting to such behaviour.  Further, and in any event, there was also the real possibility that the applicant held the honest belief that [the complainant] was consenting.” (the emphasis appears in the original).

10. This extraordinary suggestion is founded by extracting from that part of the complainant’s testimony her comment that one of the reasons she consented was because “he said he came to help me and so I was afraid he would refuse to help me further”.  It ignores entirely the context in which that statement came to be made.  It ignores entirely the fact that she asserted that at all times that she was very frightened of him, and that she did what she did – that is to say, meet him at the places she met him, and removed her clothing as he insisted – because of his scolding and because of the threats he made that if she did not do as he said, people would come to her house and pursue her for the debt and that she risked losing her job.  That is the “help” to which she was referring.  The notion, which is implicit in this appeal, that this lady was saying that she consented to the obscene acts to which she was subjected, is itself distasteful.

11. Mr Lee further relies on case law to the effect that consent includes a wide range of states of mind, from actual desire on the one hand to reluctant acquiescence on the other; presumably suggesting that this was a case of reluctant acquiescence.  The phrase “reluctant acquiescence” is merely used in the cases in contradistinction to positive desire.  It is not used in the sense of submission to threats, which is not consent at all.

12. Mr Lee then suggests that the judge failed to consider whether the applicant genuinely, albeit mistakenly, believed that the complainant was consenting.  The defence in this case was that these acts did not take place.  It was not only not incumbent upon the judge in the circumstances presented to her to address this issue, but the suggestion itself, that this applicant might have held any such belief, is facile.  Mr Lee has added to his submissions orally today, submissions that included the contention that there was no deception either as to the applicant’s role or as to his purpose, in other words, his sexual purpose.  He contended that the applicant was an opportunist.  He might have thought that the complainant was consenting; in other words, that his client might have thought that this lady, a married lady with a son, might have sullied herself willingly with a complete stranger on the back stairs of her office.  The less we say at this stage about his submissions the better.

13. The application for leave to appeal against conviction is dismissed.  We shall now hear counsel on the question why an order under section 83W of the Criminal Procedure Ordinance, Cap. 221, that time during which the applicant has been in custody pending the determination of this appeal shall not be reckoned as part of the term for which he has been sentenced.

[Submissions received]

14. We have heard counsel in relation to whether this Court should exercise its powers under section 83W of the Criminal Procedure Ordinance to order loss of time served and we have also studied various reports on the applicant and we see, as the judge below commented, that they disclose no underlying problem.  The grounds advanced in this case were as bereft of merit as one could conceive, and we accordingly order that three months of the time during which the applicant has been in custody pending the determination of this appeal shall not be reckoned as part of the term of the sentence to which he is for the time being subject. 

15. We cannot leave this case without expressing our surprise that the sentence imposed in this case was not made the subject of an application by the respondent for a review.  The judge imposed a sentence of eight months’ imprisonment on the first charge and fifteen months on the second and, by ordering them to run partly concurrently, made a total of twenty months’ imprisonment.  The facts of these offences rendered these assaults particularly ugly, planned, and frightening for the victim.  Furthermore, this applicant has a record of sexual offences, including convictions in 1986 for multiple offences of rape, for which he was sentenced to fifteen years’ imprisonment.  He is obviously a danger to the public.  We have seen the Reasons for Sentence and they disclose nothing that warranted a lenient course.  Individually and in totality, these offences merited sentences of imprisonment substantially greater than those in fact imposed.