R. v. NG KAM MAN

IN THE COURT OF APPEAL

1994, No. 83
(Criminal)

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JUDGMENT OF THE COURT

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Macdougall, V.P.:

1. The applicant stood trial before Leong J and a jury on six counts of incest with his daughter. After the judge had ruled that there was no case to answer on the 2nd, 3rd and 4th counts, the jury duly returned directed verdicts of not guilty on those counts. At the conclusion of the trial they found the appellant not guilty on the 1st and 5th counts, but guilty on the 6th count. The appellant appeals against that conviction.

2. The complainant's evidence relating to the 6th count was that on a day near the end of October 1992 the appellant arrived home at about 2pm instead of his usual time of around 7 or 8pm. Her mother was not at home at the time. The appellant forcibly carried her into his bedroom where he removed her pants and had intercourse with her. He told her that this was not the last occasion on which he would have sex with her and gave her $150.

3. The complainant made no complaint of this or any of the alleged prior incidents of incest to her mother, her sister, her relatives or her friends. She testified however that she had wanted to complain to her teacher about it and had decided to do this by writing something in her weekly school report book.

4. There was no evidence as to what she actually wrote in the report. She merely testified that "I had written in the weekly report to inform the teacher of such", and that she had done so about one week before the police became involved. The applicant was arrested on 23 November that year.

5. However, the report did not reach the teacher because, according to the complainant, her mother saw what she had written and showed it to the appellant who told the complainant that "he can't let others know it, otherwise he will be prosecuted". Her mother then tore up the entry.

6. As a result of this the complainant was very angry. She decided to make a complaint regarding the appellant's sexual conduct with her to another teacher at her school, a Miss Lau. She testified that she spoke to Miss Lau at a school picnic and that she later spoke to a Miss Ho. As a result of what she said to Miss Ho "the police were brought into this matter". There was no evidence from the complainant as to what she said either to Miss Lau or to Miss Ho.

7. Miss Lau testified that at the school picnic, which occurred on a date in November that she could not remember, she "had a personal conversation" with the complainant as a result of which she "reported matters to the counselling master of the college". Miss Lau was not asked by counsel for the Crown nor did she say what it was that formed the subject of the personal conversation. The counselling master, whose name was not disclosed, was not called to give evidence. Whether the Miss Ho to whom the complainant referred was the counselling master was never made clear.

8. When dealing with the evidence in his summing-up to the jury, the judge referred to "the complainant". He said:

"Finally she complained to the teacher during the picnic because she said she was unhappy and could no longer keep the incident to herself" and later,

"You may think, members of the jury, that it was not because of her being unable to hand in the report in time that she complained to her teacher about what happened to her. Rather, it was to do with the incidents of sexual intercourse. The matter is entirely for you."

9. Moreover, on numerous occasions in the course of his summing-up the judge referred to the complainant as "the victim".

10. Mr McCoy, who appeared for the appellant in this court but not in the court below, frankly conceded that had these references to the complainant as the victim been the only error on the part of the judge it would not have been sufficient to justify the quashing of the conviction. His major submission was that in the light of the judge's treatment of the alleged complaint the conviction could not stand.

11. We entirely agree. There was no evidence of a complaint. Miss Lau had merely testified that she had had a personal conversation with the complainant as a result of which she "reported matters" to the counselling master of the college. It cannot be contended therefore that what was said to Miss Lau, and supposedly constituted a complaint, was consistent with the complainant's testimony as to the alleged incest. Moreover, even assuming that what the complainant had told Miss Lau was that her father had had intercourse with her as the complainant said he had, and had thus constituted a complaint, it could not possibly be described as a recent complaint.

12. For a complaint to be admissible, it must be made on the first opportunity which reasonably presents itself after the commission of the alleged offence or, as was said in R. v. Lillyman [1896]2 QB 167 at 171, "as speedily after the acts complained of as could reasonably be expected". Where a considerable time elapses between the alleged offence and the complaint, it is inadmissible.

13. On the complainant's own evidence she had written the entry into her school weekly report book about one week before the police became involved. The conversation with Miss Lau occurred subsequently. Since the alleged incest to which the 6th count related occurred in late October and the appellant was arrested on 23 November, the supposed complaint to Miss Lau must have occurred at least two weeks after that alleged incest. By no stretch of the imagination could this be said to constitute a recent complaint in the circumstances of this case.

14. Although the judge directed the jury that there was no evidence that was capable of amounting to corroboration, he failed to tell them how they should deal with evidence of complaint.

15. There was no evidence of a recent complaint. The judge should have ruled that the evidence was inadmissible. As matters stood, however, the jury were left with the impression that the complainant's testimony was somehow bolstered and rendered more credible because of this inadmissible evidence. The judge's constant reference to the complainant as "the victim" could only have reinforced this impression.

16. It is not necessary to refer to the other grounds of appeal. The appeal is allowed, the conviction quashed and the sentence set aside.