HKSAR v. RAI MOTI RAM

HCMA 351/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 351 OF 2010

(ON APPEAL FROM ESCC 5698/2009)

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J U D G M E N T

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1.  On 25 March 2010, the appellant, Rai Moti Ram, appeared before Henry Mierczak, Esquire, sitting as a magistrate at the Eastern Magistrates’ Court. The appellant pleaded not guilty to two charges of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap. 200. These offences were alleged to have occurred on 11 May 2009 (charge 1) and 18 May 2009 (charge 2) respectively.

2.  The appellant was convicted on 1 April 2010.  He was sentenced on 15 April 2010, after a background report had been obtained, to 3 months’ imprisonment on the 1^st charge and to 2 months’ imprisonment on the 2^nd charge of which one month was ordered to run consecutively, making 4 months’ imprisonment in all.  The appellant has appealed against his conviction on both charges.

3.  The main prosecution witness, who I will refer to as the complainant, was a Nepalese lady who came to Hong Kong to work as a domestic helper.  In due course, she was employed by the appellant and his wife at their flat where their 10-month old son also lived.  This was in Hennessy Road, Wanchai.

4.  The 1^st charge related to the day that the complainant went to the appellant’s flat for the first time, before the formal commencement of her contract which was a day or two later.

5.  It was common ground that the appellant collected the complainant from the MTR station at Wanchai and took her back to his flat.  Later in the day, the complainant was awaiting the return of the appellant’s wife from her place of work when the first of the indecent assaults was said to have happened.  This had been preceded by the appellant asking the complainant if she had a boyfriend to which, because she thought the appellant must have been joking, she, also joking, replied ‘yes’ although she was in fact married to an Indian and had been living in India with her husband and children before she came to Hong Kong.

6.  The complainant’s description of the assault was that the appellant pressed her on her breasts with some force and then held her by the hair.  She tried to ward him off but he pushed her down onto the mattress of the floor. At that point, the complainant described how the appellant had dropped his shorts and exposed himself to her.  She saw that he was wearing a condom.  The complainant told the appellant that she wanted to call his wife and it was only at that stage that the appellant desisted in what he was doing.  He asked to be forgiven and said he would not do this again.

7.  The complainant believed this.  She was concerned about her job as she needed the money to support her family.  Hence, no report was made of the incident at this stage.

8.  The second offence allegedly arose a week later, on 18 May 2009. At 5.30 am, the appellant asked the complainant to prepare some food for him.  While doing this, the complainant described having her breasts touched by the appellant who was standing behind her.  She resisted him.

9.  This was followed much later in the day, when the appellant’s wife returned from work with the appellant, by the complainant reporting what had happened to the appellant’s wife.  This led, according to the complainant, to her being sacked.

10.  Thereafter, on 19 May 2009, the complainant reported the two incidents, in varying degrees of detail, to a number of witnesses (PW2 to PW5) all of whom were connected to the agency or the workers’ union related to her employment. It is of some importance that amongst these was PW3 to whom the complainant explained that, if the appellant apologized in front of her, she would forgive the appellant.  However, when PW3 tried to get the appellant to go to the agency’s office to make an apology, the appellant did not attend.

11.  PW4 (the manager of the agency), who was tendered by the prosecution for cross-examination by defence counsel, Mr Ross, who had also appeared in the court below, said that the appellant’s wife was the first to get in touch with him.  This was followed by the complaint made by the complainant herself. However, the main witness in this regard was PW5 and I will come to the detail of her evidence in a moment as PW2 to PW5 all made statements several months later to the police in circumstances to which I will need to return.

12.  The defence case, in which both the appellant and his wife gave evidence, amounted not only to a complete denial of any impropriety on the appellant’s part but also heavy criticism of the complainant’s behaviour over the short time she had been with them.  She was accused of drinking alcohol taken from the flat while she was supposed to be looking after the baby and also using a type of tobacco which was referred to as “Panparag” which itself gave rise to intoxication.

13.  The appellant, apparently a security officer, who has no criminal convictions whatsoever, said that on 11 May 2009, he had done nothing to the complainant and that on 18 May 2009, he had only woken up at 8.00 am to 9.00 am and had in no way molested the complainant.  He was out of the flat during the day but when he returned with his wife later on, they found the complainant had been drinking and they saw that the baby was lying in a dangerous position in the pram.  The appellant and his wife both stated that this was the reason that the complainant was sacked.

14.  The learned magistrate gave a full and careful assessment to the evidence which had been given on both sides.  The prosecution’s case rested entirely upon the credibility of the complainant’s evidence.  If what she had said was not credible, the prosecution failed because it stood alone.  The magistrate concluded that the complainant’s word was to be trusted and was consistent, at least in its overall effect, with her complaint to PW5.

15.  Mr Ross has advanced a single ground of appeal in these proceedings. The ground reads as follows:

“The learned Magistrate erred by accepting that the complainant, PW1, was a credible witness when:

(a) PW5 gave an account of a complaint by PW1 of an alleged incident of indecent assault

(b) PW1 denied making such a complaint

(c) the learned Magistrate accepted in terms that the complaint had been made by PW1 to PW5

(d) the learned Magistrate misconstrued the terms of the account by PW5 so that it was consistent with the evidence by PW5 of the alleged incident, when it was not.”

16.  The ground, as drafted, is practically meaningless, as it has never been suggested by anyone that the complainant failed to lodge a complaint with PW5 of indecent assault.  All that is being alleged in this appeal is that the details of the complainant’s complaint to PW5 were different to the complaint she made against the appellant in court.  As such, far from supporting her credibility, the magistrate ought, it was argued, to have found that PW5’s evidence detracted from the complainant’s credibility because the indecent assault was described to PW5 differently to the way the complainant described it in court.

17.  There are a number of transcript references in the ground of appeal to illustrate where the alleged fault on the part of the magistrate lay.  The first transcript reference reads:

“I found PW1 [the complainant] to be an honest and believable witness, and I accept what she says. She related what had occurred both on 11 and 18 May, and I believe her. She says she had told PW5 about the incident, and this is corroborated by PW5, whose evidence I also accept.” (Tr. p. 39)

18.  The next passage relied on reads:

“COURT: But the question was, so he was lying on top of you, is that right or not? You admitted you told the police that he pressed his body on top of yours, and the counsel is asking you does that mean that he was lying on top of you?

……

[PW1]. I have never mentioned anything about him lying on top of me … I did say that when he pulled me by the hair and pushed me down...He moved forward ... And he did request me to ‘give me one time, give me one time’, and I denied. …” (Tr. pp. 74-75)

19.  This passage is to be contrasted with the testimony of PW5 given in the following context:

“[Mr Ross]. Didn’t you give a statement to the police saying that that ‘Pushpa [PW1] had told us’, i.e., you and Dil, among other things that when she went into sitting room of her employer, she was ‘caught by her employer who dragged her down to the floor and pressed his body on top of hers?’

[PW1]. Yes, Pushpa had stated that to me so I stated the same in the statement.

COURT: Yes.

Q. So, you did hear things that Pushpa said to you?

A. Yes.

Q. All right. And did she also tell you that that she struggled with the employer, pushed him away with her hands?

A. Yes, she did say that.

Q. And after this, the employer stopped and got up?

A. Yes.” (Tr. p. 97)

These three passages from the transcript are the foundation for this appeal.

20.  On the face of this criticism, it might appear that the magistrate had overlooked, as Mr Ross submitted that he probably did in his initial reasons for verdict, a discrepancy of some importance between the evidence given by the complainant and by PW5 when finding that there was consistency between their accounts.  However, this provides a somewhat superficial reading of the evidence on this topic and I shall attempt to put this matter into context.

21.  There was a rather unusual history to the complainant’s accusations against the appellant which led to a lengthy gap between her complaint and the charges being laid against him.  The complainant had not mentioned the first incident to her employment agency or to the workers’ union until after a week had elapsed because, according to her, she hoped to get the job with the appellant because she had a family to support.  She had also thought that she could forgive the appellant as he had asked for forgiveness from her after the incident when she had warned him that she would tell his wife about it.  The appellant for his part had said to her that he would never do this again and that, if his wife came to know about it, she would leave him.  It was in these circumstances that she had said that she “tended to forgive him for once … in the hope maybe he will not do it again”.  For that reason, also, she decided not to mention what had happened to anyone.  There was one other matter uppermost in her mind which was that her visa was about to run out and she badly needed a work visa.

22.  On this basis, the complainant spoke to the appellant’s wife later in the day, not about the incident between her husband (the appellant) and herself, but about her salary.  The complainant agreed to accept a salary of $2,300.  She went on to describe how she had spent most of the next day, 12 May 2009, crying at a friend’s home.  She did not return to work and still told no one despite the fact that she had gone into the agency that day in order to sign her contract.

23.  The complainant began work on 13 May 2009.  It was the following Sunday, 17 May 2009, when the complainant, who was with friends, received a call to return to work.  In the event, she was not called upon to do any work as the appellant’s wife had done all the preparation needed for guests who came over. However, it was at 2.00 am when the complainant eventually went to bed.  At about 5.00 am, she received a call from the appellant who was telephoning from somewhere outside the flat to find out if she had ironed his security guard uniform. 

24.  Later, the appellant came home and, according to the complainant, he began arguing with, and swearing at, his wife as well as banging doors.  It was impossible for the complainant to sleep through all the noise.  There then came a bang on her own door. 

25.  The appellant was waiting outside, wanting the complainant to prepare something to eat.  She got up and, as she did not do that kind of work without washing first, she washed and then she prepared something from what had been left over from the meal the night before.  It was then, she said, that the appellant came up behind her and pressed her in the way that she demonstrated in court, illustrating, using her hands, what he had done to her.  He pressed her on both breasts using one hand on each with great force.

26.  Afterwards, the complainant was unable to speak to the appellant’s wife because the complainant had gone back to her room and was crying there when the appellant’s wife left the flat to go to work.

27.  A little later, the complainant spoke to an Indian lady at the agency whose name apparently was ‘Gollet’, giving her the gist of what had happened in the latest incident, complaining that the appellant was touching her and had a “very bad intention”.

28.  During that day, the complainant looked after the appellant’s child until the appellant and his wife came back in the evening.  She then decided to confront the appellant directly (about the first incident a week earlier) and said that he had pushed her onto the mattress.  She asked him, in front of his wife, what he was trying to do to her.  The appellant immediately said that she was lying.  The complainant said to the appellant’s wife that she wanted to leave immediately but the appellant continued to say that she was “talking all lies” and he added that he would never let the complainant get established in Hong Kong.  The complainant told the appellant’s wife to be careful to keep any girls employed by the appellant safe from him and then she insisted again that she wanted to leave.  The appellant’s wife, however, said that she should “stay overnight and then she could go”.

29.  It was not, therefore, until 19 May 2009 that the complainant became completely free again.  She was given $400 by the appellant’s wife to take away with her and the agent who was there, Ricky Lai, gave $500 to her.  This represented all the money that she had.  It appears, also, that the contract was duly terminated at the Immigration Department that same day. 

30.  It was then that the complainant telephoned ‘Sabina’ (PW5), the Vice-Chairman of the Nepalese Overseas Workers’ Union, and made a complaint about the appellant to her.  She later met up with Sabina in a park in Wanchai together with the Chairman of the Union.  She decided not to report the matter to the police as she had only two days to run on her visa.  The complainant said this:

“The best way out I suggested was that the defendant [the appellant] come to apologise to me … in front of all the domestic helpers … and then the matter would end.” (Tr. p. 71)

31.  However, this never happened.  The chairman did try to arrange it but the appellant failed to turn up and the complainant then left for India.  She did not return until 14 August 2009 when she was due to start work for a new employer.  Even so, she was not prepared to drop the matter between herself and the appellant.  When she found out that the appellant had failed to make any apology, she decided to report the matter to the police on 16 August 2009.

32.  During her evidence, when describing the first incident of alleged indecency, the complainant had demonstrated in court how the appellant pressed her breasts with his hands before going on to say:

“And then he held on to my hair and pushed me down to the mattress …

[Then, she demonstrated]

I was lying like this and he was lying like that …

Q. You say lying with your face down to the mattress or with your back to the mattress then? ...

A. I was nervous and I was crying and I was facing up towards the ceiling. ... And then he dropped his shorts down.” (Tr. pp. 53-54)

33.  This evidence led to the passage in cross-examination to which I have already referred where the complainant denied ever saying that the appellant actually lay on top of her and to the reason also for Mr Ross wishing to cross-examine PW5 in order to drive home the point that the complainant, according to PW5, had told her that the appellant had “pressed his body on top of hers”.

34.  The magistrate was well aware of this discrepancy because, in his “short reasons” for verdict, he had gone on to say, in a passage to which I have not yet referred:

“And PW5 said that she had been told … the defendant had dragged PW1 to the ground and body-pressed on top of her, she struggled, the defendant stopped and got up, in respect of the first incident. PW1’s evidence was that she was forced down, and the defendant stood in front of her and had said the following, after, of course, he had pressed her breasts hard, ‘Give me one time, give me one time’, or words to that effect.

I did not find at all that the terms of complaint to PW5 are so inconsistent to PW1’s testimony at all. It was not, as has been suggested, in stark contrast at all. PW1 had not sought to embellish her complaint or her evidence at all. In fact, quite the reverse.” (Tr. p. 39)

35.  The magistrate had continued shortly afterwards to say this:

“And I appreciate that she [the complainant] took more time to make her complaint, i.e., some hours after the second incident. A complaint need not be on the very earliest opportunity. And as I said, I gave myself all the necessary warnings in that regard. It is a question of what is reasonable, in fact and degree, bearing in mind the circumstances. And anyway, recent complaint is not and has never been corroboration anyway. And I am satisfied that even though her [the complainant’s] evidence of complaint may be at some variance to hers [PW5’s] and others’ testimony, it is not wholly inconsistent at all, and is capable of supporting her credibility and I find it does.

As well, of course, there are discrepancies between her evidence in the witness box and what she had furnished to the police [in] the statement made by her. But to my mind, they are not such that will cause me to disbelieve her in any way, shape or form.” (Tr. p. 40)

36.  I am bound to say that I am in agreement with the magistrate that such discrepancies as may exist in the accounts given by the complainant to the police, to the court and to PW5 were not of such magnitude as to render the complainant’s evidence unbelievable.  On the contrary, when all of the complainant’s evidence is put into context, even without the advantage which the magistrate had of seeing and hearing the complainant give her evidence, it is apparent that her account, entirely without a motive to frame the appellant and with every reason not to do so because she needed that job so badly, showed consistency.

37.  The difference between the complaint made by the complainant and the complaint which PW5 understood the complainant to be making is to be seen in the evidence given by each of them as I have already set out.  Put shortly, the complainant said:

“… the defendant picked … the mattress up … after that the defendant pressed onto my breast … with a lot of force … [indicating one hand on each breast] … he stood behind me while he did that … and then he held onto my hair and pushed me down to the mattress … I was lying like this and he was lying like that … [Later, she explained that she did not mean by that the appellant was lying down]. I was facing up to the ceiling … and then he dropped his shorts down …” (Tr. p. 52-54)

In cross-examination, she added:

“He was saying ‘give me one time, give me one time.’ ” (Tr. p. 75)

38.  By contrast, PW5 accepted in cross-examination that she had written in her witness statement that the complainant had told her that she “was caught by her employer who dragged her down to the floor and pressed his body on top of hers”.

39.  The complainant had always been adamant that the “pressing” related not to the time when she was forced down onto the mattress but to the time when the appellant held her breasts from behind.

40.  There is, of course, a difference in the way that PW5 recalled what she had heard but it has to be remembered that there had been a long lapse in time between the complaint made to her by the complainant (on or about 19 May 2009) and the report made to the police (on or about 16 August 2009) following the complainant’s return from India, a gap of about 3 months.  In PW5’s case, the gap was almost certainly longer as she testified that she had been out of Hong Kong for the whole of August, so that she could not have made her statement before September.

41.  In my opinion, the magistrate was entitled to have found that there had been general consistency between the complaint to PW5 and the account given by the complainant despite the two accounts not matching exactly.

42.  For the reasons also provided in the magistrate’s findings, it is apparent that the appellant’s account, which was closely supported by his wife on some, though not all, aspects, was untruthful.

43.  The magistrate was sure that these allegations had been made out.  I have thoroughly reviewed every detail of the evidence in the transcript, with the advantage also of having seen Mr Ross’s final speech to the magistrate.  In this, the point, which is the subject of this appeal, was made very clearly by Mr Ross to the magistrate.  I am satisfied that the convictions were properly reached on powerful evidence given by the complainant of the appellant’s guilt on each charge.

44.  Accordingly, this appeal is dismissed.