HKSAR v. CHU CHI HO

CACC 28/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 28 OF 2016

(ON APPEAL FROM DCCC 331 OF 2015)

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J U D G M E N T

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Hon Pang JA (giving the Judgment of the Court) :

1.  In the District Court, before Deputy Judge Joseph To, the appellant was convicted after trial of one charge of ‘misconduct in public office’, and was sentenced to 20 months’ imprisonment.  Having been refused legal aid on the merits, but with the assistance of the Bar Free Legal Service, the appellant now seeks to appeal against his conviction.  On the basis that it involves “a question of law alone”, this matter is, pursuant to section 82(2)(a) of the Criminal Procedure Ordinance, Cap 221, listed directly before the Court of Appeal for determination.[1]

THE CHARGE

2.  The charge that was laid against the appellant reads :

“ [The appellant], being the holder of a public office, namely a police sergeant of the Hong Kong Police Force, on or about the 28^th day of May 2014, at Room No. 4, 1^st Floor, No. 141 Temple Street, Yau Ma Tei, Kowloon, in Hong Kong, in the course of or in relation to his public office, without reasonable excuse or justification, wilfully and intentionally culpably misconducted himself by -

(a) revealing his police identity and thereby procured sexual service from X; and

(b) threatening the said X to leave the territory of Hong Kong within 3 hours on the 28^th day of May 2014, otherwise the said X would be subject to detention for 7 days.”

PROSECUTION CASE

3.  Insofar as this appeal is premised upon its narrow ambit, as to which see later, the prosecution case and evidence can be succinctly summarised as follows :

(a)   X[2] is a Mainland woman who, on 27 May 2014, entered Hong Kong to work as a prostitute.  From Lan Je (蘭姐),[3]  she rented Room 4, the room mentioned in the charge, to stay and to receive customers.  Between noon and the midnight of May 27, X was successful in soliciting a number of clients.

(b)   At about 1:30 am on 28 May 2014, in Temple Street, X was approached by the appellant who asked “how much” and who then followed X up to Room 4 (X had said “$200”).

(c)   Inside Room 4, the appellant declared himself to be a police officer, took possession of X’s phone and travel documents and asked X if she wanted to “go back immediately or be detained for seven days”.  Feeling scared, X had sexual intercourse with the appellant at the appellant’s request.

(d)   The appellant did not pay X for her service.  Once more, he made reference to a seven-day detention and told X to leave Temple Street and to return to the Mainland via Huanggang in no more than three hours.  The appellant also took away X’s keys – three numbers in total.  They were keys that could gain access to Room 4 and the flat and building in which Room 4 was located.[4]

(e)   After a quick packing, X saw her friend Siu Lai (小麗) outside Room 4.  Siu Lai, who had come to Hong Kong with X and who occupied the room next door (Room 5), was also leaving.  The two of them then went down to Temple Street to make their way to the border.  Following them from behind were the appellant and another male person.[5]

(f)   Before flagging down a taxi, X saw Ah Chat (阿七)[6] on the street and told him that she and Siu Lai were going back to the Mainland.  When Ah Chat asked “why”, the appellant and the other man mentioned in (e) intervened and the three broke into an argument.  During the argument, the second man, who demanded to see Ah Chat’s Identity Card, stated that he was he was “from Yau-Tsim Anti-Vice”.  For his part, the appellant had said words to the effect that “you resist so much all the time; always resist”.

(g)   From a CCTV footage of a shop nearby, both X and Ah Chat identified two images which they said were the appellant and his associate.[7]

(h)   Once back on the Mainland, X called Lan Je by phone.  She said: “We have gone home to the Mainland; a client has scared us off”.  (我們回家去, 回大陸去, 客人把我們嚇走) That was X’s evidence.  Lan Je, on the other hand, remembered X as saying: “Met a policeman.  He did me without paying for it.  Dined and dashed.” (遇上了警察, 跟我幹了又沒有給錢, 吃霸王餐)  Either way, Lan Je told X there was no need to be scared and that she should “come back”.

(i)   Acting on Lan Je’s advice, X returned to Hong Kong on the morning of 28 May 2014, at 11:40 am.[8] On the same night, she reported the matter to the police.  On 30 May 2014, the appellant was arrested.

(j)   In the ensuing investigation, a fingerprint which matched the right thumb print of the appellant was lifted from the wall beside the light switch of Room 4.

(k)   In addition, nine keys in four bunches (Exhibits P6(71) – (74)) were found inside the appellant’s desk drawer in his office.  Five of those keys could be used to unlock the 1^st floor flat and some of the rooms inside it, Room 4 included.  The rest were unrelated to the premises.[9]

(l)   Of the bunch of four keys that constituted Exhibit P6(73), Lan Je identified three of those keys as the keys that she had given to X upon X taking up occupancy.  A fourth key, which Lan Je said she had also given X, was missing.[10]

DEFENCE POSITION

4.  As can be gathered from his out of court statements, and defence counsel’s cross-examination of the prosecution witnesses,[11] the gist of the appellant’s case at trial was that the appellant was a member of the Yau Ma Tei Special Duties Squad.  On the night in question, although they had finished their shifts, he and another sergeant (Sergeant Wong) had gone to Temple Street to “observe the trend of vice activities”[12].  When he saw X make eye contact, who also smiled at him, he suspected X to be a prostitute and followed her – albeit that he had no idea where she was heading.  Right up to door of the 1^st floor flat at No. 141 Temple Street, however, X failed to make any explicit offer of sexual services.  That being the case, there was insufficient evidence to arrest X and the appellant had no option but to leave the premises.  The appellant then contacted Sergeant Wong and the two left the area together.  They were not the same persons that X and Ah Chat had identified in the CCTV footage.  Because the police had been making raids at the premises in question, the people in charge of those establishments might have put X up to frame him.

5.  Regarding the other evidence, it was the defence case that (a) the appellant must have left his thumb print on site during a previous raid and (b) the four bunches of keys (Exhibits P6(71) – (74)) were not in fact discovered at where the police said they were located.  Instead, those keys were, and had always been, inside the bottom drawer of the tea table behind the appellant’s desk.  That was a fact known to everyone in the Squad, not least ex-Police Constable Wong Yuk Bun, now a fireman.[13] In any event, Lan Je had failed to establish that the keys constituting Exhibit 6(73) were the keys that she had given to X; they could just be duplicates.

GROUND OF APPEAL

6.  Mr Boyton, who did not appear in the court below, has advanced only one ground.  As said, this ground is of a narrow ambit, and has nothing to do with the multiplicity of factual issues that formed the core contention at trial.  It reads (the “Main Issue”) :

“ Whether it was wrong in law for the trial judge to use ‘early complaint’ [viz Lan Je’s evidence] to support or enhance [X’s] credibility when [the appellant] was prosecuted for a non-sexual offence [ie ‘misconduct in public office’] ?”

7.  Supplemental to that question is, given their apparent lack of consistency in content (see paragraph 3(h) above), whether Lan Je’s account of what X said can in law amount to evidence of recent complaint (the “Supplemental Issue”)?[14]

HOW THE PROBLEM CAME ABOUT

8.  The Main Issue as identified above first surfaced during X’s examination-in-chief. Counsel on fiat had asked X what she had told Lan Je on the phone when he was stopped by the judge who, after hearing counsel said it amounted to recent complaint, observed that the charge was not for a sexual offence.[15]  That did not, however, put an end to the matter.  On the contrary, expressing an interest in what the parties had to submit, and himself hypothesizing as to when evidence of recent complaint may be admitted in like situations, the judge allowed the question and it was not until X’s account failed to reveal an immediate sexual content that he asked the prosecution for further assistance.  This assistance materialized on three subsequent occasions[16] but because Lan Je had also given evidence, and the discrepancy between her and X’s account was seen as heightening the problem, the Supplemental Issue became overriding and the Main Issue was never revisited.[17]

9.  In the end, the judge was persuaded that the prosecution was correct on both issues.  The following is what he said in relation to the Main Issue (paragraphs 47 to 49, Reasons for Verdict)[18] :

“ 47. After careful consideration, I accept the evidence of Lan Je in this regard as evidence of a recent complaint. Firstly, although this is a case concerning misconduct in public office, the misconduct alleged by the prosecution included threatening X into providing sexual service. In these circumstances, the issue that the court has to deal with is no different from that in an ordinary sexual assault or sexual assault related case. In this case, the prosecution must prove beyond reasonable doubt that the alleged sexual assault did take place and the situation that X had to face as a complainant of a sexual assault offence is exactly the same as that faced by the victims of other sexual assault offences ….

48. In this regard, it was mentioned in The Queen v Lillyman [1896] 2 QB 167 that as early as Rex v Brazier (a 1779 case), when dealing with a case of rape or assault with intent to rape, the court could consider the evidence of a recent complaint. Besides, Reg v Walker (a 1839 case) was also a case that only involved the offence of assaulting a female with intent to rape her, the court could similarly consider accepting the evidence of the recent complaint made.

49. In my view, this series of cases clearly show that the name of the offence is not important.  On the contrary, the indicator is whether or not the offence involves any act of sexual assault.  Take the offence of burglary as an example, if in the premises in question, the offence the defendant committed is of the nature of the sexual assault type, the court fails to see why it should reject the production of the evidence of a recent complaint to the court.”

10.  After citing a passage from R v S [2004] 1 WLR 2940, the judge also said this as regards the Supplemental Issue (paragraphs 51 to 53, Reasons for Verdict) :

“ 51. Though X had twice read her witness statement to refresh her memory of the telephone conversation that she had with Lan Je in the course of giving her evidence, she failed even in the end to mention that she had complained to Lan Je that she had been forced into providing sexual service. The court notes that during her testimony, X kept saying that she was being threatened, scared out of her wits and scared off. Therefore, I take the view that what she was most concerned with in the whole incident was that she had to go back to the mainland immediately. During the hearing, although X had twice read the witness statement, I noticed that she could not, under cross-examination, write down the name of a company that she had participated in the operation of. She had to check the record in her mobile phone before she could write it out. And she explained that she had only studied for a very short time in junior secondary school. Her ability to write and read was limited.

52. I bear in mind that Lan Je was also a witness who had been granted immunity from prosecution, and that her character leaves much to be desired. But after considering the overall evidence, I accept the evidence Lan Je gave on the recent complaint. The evidence shows that before X came to Hong Kong, she already asked Lan Je to arrange a room for her. It is understandable that X owed Lan Je an explanation for her sudden departure. I take the view that there was no reason at all for Lan Je to make up evidence to frame the defendant. After all, her ultimate purpose was only to let out the room. The court also accepts her evidence that there was in fact no CCTV camera installed at the premises in question.

53. Considering the evidence as a whole, the court finds that the content of the evidence X gave under oath and the evidence Lan Je gave regarding the recent complaint are consistent and match each other …..”

APPELLANT’S SUBMISSIONS

11.  Mr Boyton’s point on the Main Issue is a short one, and is as follows.

12.  At common law, there are three exceptions to the rule against proving a witness’s previous consistent statement to show consistency.[19]  They are where the statement forms part of the res gestae, or where it is admitted to rebut the allegation of recent fabrication, or where the statement amounts to evidence of recent complaint in sexual cases.  See R v Beattie (1989) 89 Cr App R 302; R v Jarvis and Jarvis [1991] Crim LR 374; and HKSAR v Sau Ming & Another CACC 145/2003 (unreported, 20 January 2005).[20]

13.  The present case does not come under any of the above exceptions, not least recent complaint, because (a) this is a non-sexual case, the charge being ‘misconduct in public office’ and (b) although the particulars of the charge do refer to a matter of a sexual nature, there is no allegation of a sexual offence. “Procuring sexual service” is not, in itself, an offence under Hong Kong Law.

14.  Admittedly, in R v Kovacs (2008) 192 A Crim R 345, the Court of Appeal of the Supreme Court of Queensland did lend intellectual support to the notion of admitting evidence of recent complaint in a case of ‘possessing and using a slave’; but that was not a point which required decision for the case to be properly resolved,[21] and the particulars of the charges concerned did accuse the male defendant of, amongst other things, “repeatedly using [the victim] for sexual gratification against her wishes”,[22] hence rape, so it is immediately distinguishable.

15.  From the policy angle, and drawing support from a passage in Cross on Evidence, 7^th Edition (1990), at page 284, Mr Boyton argues that, not only should it be limited to sexual assaults as conventionally understood, the exception of recent complaint was, in the past, a kind of evidential counterbalance to “the rule of practice requiring corroboration warning in sexual cases”.[23] Now that this requirement is abrogated,[24] he submits that the courts should be wary to extend it to just any case that has a sexual element.

16.  Mr Boyton makes the further point that because the charge in this case is founded on two particulars, to be disjunctively read in his submissions, the admission of evidence of recent complaint in relation to (a), the particular containing the sexual element, would unjustifiably enhance the credibility of X in relation to (b), the particular that does not.[25]

17.  In connection with the Supplemental Issue, Mr Boyton’s argument is that X’s account had no sexual content, and was completely at odds with that of Lan Je, so neither of these accounts should be admissible as recent complaint according to the authorities.  See R v Guttridges (1840) 9 C&P 471; R v Wallwork (1958) 42 Cr App R 153.

RESPONDENT’S REPLY

18.  Mr Kuan, who appears on behalf of the respondent in this Court but not below, concedes that, so far as he is aware, there is no direct authority on point. He concedes that “sexual offence” and “sexual case”, the two most commonly used expressions to denote the type of situation that would permit the reception of evidence of recent complaint,[26] are not defined in the cases.

19.  It remains Mr Kuan’s submissions, however, that the name of the charge is irrelevant – what counts is the gravamen of the offence; and if the proof of the offence is dependent on whether some incident of sexual interference is established, then it is a “sexual case” in which the exception of recent complaint should have a place.  He relies on R v Kovacs (ibid).

20.  For the underlying rationale, Mr Kuan draws support from the same passage that Mr Boyton refers to in Cross on Evidence, 7^th Edition (ibid), his somewhat different focus being on the clandestine nature of most sexual assaults and the resulting limit on the amount of “other evidence” likely to be available (not that Mr Kuan feels bound to interpret “sexual offences” in the first sentence narrowly as excluding non-sexual charges by name) :

“ It is submitted, however, that the rule does not, in England, extend beyond sexual offences, whatever the sex of the victim. The best justification for singling out such offences is that more hinges on questions of the credibility of the participants than in most other areas, just because sexual activity tends to take place in private and is usually kept secret, thus restricting the amount of other evidence which is likely to be available. It is upon that basis that the rule of practice requiring corroboration warnings, again in relation to both sexes, is still maintained, and it might seem right to admit any other evidence which can perhaps help the jury to resolve the customary conflict of testimony.”

21.  Of the rest of that work on the subject, Mr Kuan has highlighted to us a number of other passages, not least the learned editor’s remark at page 283, which captures the full principle that was first expounded in R v Osborne [1905] 1 KB 551 (again, Mr Kuan does not feel bound to give “cases of this kind” a restrictive meaning) :

“ In [Osborne], the court took a step further [than Lillyman][27]by holding that consent need be in issue, neither in form nor in fact, in order to admit evidence of the terms of a complaint. The ambit of the rule was, however, restricted to ‘cases of this kind’.”

22.  Mr Kuan also prays in aid Timm v The Queen (1981) 59 CCC (2d) 396.  In that case, the Supreme Court of Canada explained, at page 402, that “the exception to admit evidence of recent complaint was necessary to negate the adverse effect the alleged victim’s silence might have on her credibility …. [t]hat possible adverse effect [being] predicated upon the assumption that the true victim of a sexual offence will, under normal circumstances, complain at the first reasonable opportunity.”  Mr Kuan’s concern is on the undesirable effect that may be generated by a denial of the exception to a wider definition of sexual cases.

23.  In relation to the Supplemental Issue, Mr Kuan submits that consistency is a matter of degree and the accounts of X and Lan Je being obviously correspondent, they should both be admitted as evidence of recent complaint. As did the judge, he relies on R v S [2004] 1 WLR 2940.

24.  Mr Kuan sought to but, on a closer examination of the transcripts at our invitation, abandons his argument that (a) defence counsel had conceded to the proper admission of X and Lan Je’s accounts as evidence of recent complaint[28] and (b) that concession is binding on the appellant.[29]

CONSIDERATION OF THE MERITS

Main Issue

25.  As the transcripts show, the discussion between judge and counsel on the topic was minimal, almost touch-and-go, and the route through which the judge had persuaded himself to admit X and, later, Lan Je’s accounts was the hypothetical case of burglary which eventually found its way to his Reasons for Verdict.[30] The crux of that exchange went as follows :

“ COURT : In my opinion, this is most similar to a situation involving a charge of burglary where it’s alleged that the victim had been indecently assaulted, indecently assaulted after the accused entered – entered the house, well, he would then be prosecuted for the offence of burglary only. If the victim was said to have made a complaint right away, is it correct that such a recent complaint can be adduced as – I mean, is it admissible then?

MR HO :[31] It can be seen that sexual intercourse was alleged in the present charge, that was stated in the charge itself.

COURT : Mr IU.

MR IU[32] : Yes, your Honour.

COURT : Like what I said just now, if it’s a charge of burglary alleging that the Accused went inside and indecently assaulted the victim, well, he would be prosecuted for the offence of burglary only, certainly, that’s the general practice, right?

MR IU : Yes, yes, yes.

COURT : So, what about if the victim said that ‘immediately I phoned’, saying she had told her boyfriend about it, then …

MR IU : It has nothing to do with the burglary.

COURT : … if, in principle, indeed, it’s true that there is no reason why she’s not allowed to do so.

MR IU : However, it has nothing to do with the burglary, they are two separate matters.

…………….”

26.  The problem with the above example is that, assuming there were two distinct offences, one committed after the other, it is difficult to see how the offender would be charged with ‘burglary’ and not ‘indecent assault’.  Our collective experience is that he would be prosecuted for both.  For the judge to have fallen into this error, however, he might have misapplied his mind to sections 11(1)(a) and 11(2) of the Theft Ordinance, Cap 210 which make it an offence to trespass any building with intent to rape.  But even under that potential form of burglary, once the intended offence is transformed into action, there must necessarily be a charge of ‘rape’ or ‘attempted rape’ that supersedes the housebreaking offence – unless there is evidence of a coincidental intention to steal or to cause grievous bodily harm or to cause criminal damage, which may justify a separate charge of ‘burglary’.  So, either way, the hypothetical case is flawed.  Evidence of recent complaint would have been admissible in both situations on a charged sexual offence.

27.  In our view, of the material before us, the best and only example for advancing the case of admitting evidence of recent complaint in ostensibly non-sexual offences remains that of R v Kovacs (ibid). There is, we find, much force in what the Queensland Court of Appeal had to say on the topic (page 362, paragraph 65 of the Court’s judgment) :

“ There is thus a substantial body of authority in support of the view that the recent complaint exception to the exclusionary rule applies only in sexual offence cases. But no case was brought to the attention of the Court in which consideration was given the application of the exception to a case like the present where, although the offences on the indictment are not sexual offences, part of the prosecution case involved proof of acts which would establish the commission of such offences. The rationale for the exception, explained in cases such as R v Osborne, R v Jarvis, Kilby v The Queen, R v King and Britton v Commissioner for Road Transport, is equally applicable to a case in which the doing of acts constituting a sexual offence is a particular of a charged non-sexual offence as it is to a case in which a sexual offence is charged. That is particularly so where, as is the case here, the role of the alleged sexual conduct is to assist in establishing the true nature of the accused’s behavior in relation to the complainant.”

28.  That said, we notice what must be an important caveat, if not pre-condition, in the above obiter dicta.[33]  Repeatedly, the Australian court had stated that, for the exception to be triggered, the act underlying the non-sexual charge must, in itself, be a sexual offence.  It follows that, even if we were to subscribe to that jurisprudence, two questions immediately present themselves to be answered, the first one being – does the alleged act of the appellant constitute a sexual offence under Hong Kong law?

29.  That question, we regret to say, had obviously escaped the attention of everyone at trial.  There is, for example, no sign of the judge engaging his thoughts as to why the charge was one of ‘misconduct in public office’ and not ‘rape’.  Likewise, fiat counsel, who initiated the argument on recent complaint, was seemingly unaware of its implication when leaving the question of consent ambiguous and undetermined in X’s evidence :[34]

“ Q : Alright, one more point, regarding you having sex with that person, were you willing at that time?

A : He asked me to.

Q : Even though he asked for it, you could have declined; so why did you have sexual intercourse with him?

A : At that time, I was terribly frightened by him.”

By mere reference to the evidence that X was frightened into providing sexual services to the appellant[35], the judge had asserted that this case involved “sexual assault”.  There was no analysis, nor was there any clue as to which particular sexual offence the appellant is said to have committed.

30.  However, notwithstanding his original position, which was based on how the charge is formulated, and which maintained that there is no offence involved,[36] Mr Boyton concedes upon being pressed that, regardless of when exactly the reference to a seven-day detention was made,[37] the mere revelation of the appellant’s police identity must, in all the circumstances of the case, be regarded as a threat to X.  He goes on to concede that the looked-for offence would then be ‘procuring an unlawful sexual act by threat’ under section 119 of the Crimes Ordinance, Cap 200[38] in respect of which consent is a non-issue.

31.  These concessions dispose of the first question, and cause for our consideration the second one, namely, is the offence under section 119 an offence that is within the contemplation of the case law?  For example, when the Queensland Court of Appeal mentioned “sexual offence”, did they have in mind a definition that could be inclusive of an offence such as section 119?  After all, there can be no dispute that section 119 is an offence of sexual misconduct.

32.  In our effort to answer this second question, it has not gone unnoticed by us that the inclusionary position is a creditable one.  For instance, in the larger context, it has long been pointed out that the restrictive approach is both “unhistorical” and “illogical” – “unhistorical” because “the original requirement of ‘hue and cry’ applied to all appeals of felony and …. as late as 1834 the rule was being applied to non-sexual cases”; “illogical” because “if consent is not in issue the only recognized purpose is to demonstrate credibility by reference to consistency of complaint and testimony, and the credibility of witnesses is relevant whatever the issue to which they testify”.  See Cross on Evidence, 7^th Edition (ibid), footnotes 1 and 2 at the bottom of page 283.

33.  For more recent developments, it has also come to our attention that, in the United Kingdom, “[t]he Criminal Justice Act 2003, accepting the view that sexual cases should be tried so far as possible in the same ways as others, has …. broadened the reception of complaints to embrace the whole range of offences.”  See Cross & Tapper on Evidence, 12^th Edition (2010), at page 301.

34.  However, based on what limited material we have, which nevertheless includes a handful of selected authorities over a long period,  we cannot help noticing that, at common law, recent complaint has always gone hand in hand with the situation where a lack of consent on the part of the victim is essential to proving an offence (eg rape), or where the victim’s consent is no defence because the law does not recognize his or her consent as effective consent (eg unlawful sexual activity with the under-aged or mentally incapacitated).[39]

35.  Moreover, whether or not the above is a full and accurate characterization of all the situations which have hitherto given way to the exception of recent complaint, the parties have certainly not been able to provide us with any precedent that is like the present case.  In no material before us do we see the exception being applicable to where the victim was capable of giving effective consent, who did give consent, but whose consent was incapable of negativing the offender’s liability.

36.  Not to put too strong a word on it, the development of this area of law is known to be as much affected by historical anomalies as logical reasoning, so we will not attempt to explain the line that may or may not have been consciously drawn by the courts in the past.  All we will say is that, even if we were to apply R v Kovacs (ibid), given the particular nature of the alleged sexual misconduct in this case, we are unprepared to hold the phone conversation between X and Lan Je admissible as evidence of recent complaint.  The judge could have admitted it – or at least a version of it – as evidence of state of mind to explain the return of X to Hong Kong just hours after her departure, but he was wrong to admit it under the head of recent complaint.  We are not prepared to open any door without full knowledge of what lurks behind it.

Supplemental Issue

37.  Given the conclusion that we have reached on the Main Issue, the Supplemental Issue ceases to be a live issue.  In passing, however, we would mention that by calling the appellant a “client”, X was arguably implying that a sexual encounter had taken place between them.  At the very least, it would imply that the appellant was acting outside his police capacity.  It is a factor which the judge could have taken into account in the exercise that was incidental to the Supplemental Issue.

OVERALL SUFFICIENCY OF EVIDENCE

38.  Before the hearing, in anticipation of a possible outcome that is not unlike the present one, we asked counsel to be ready to address us on the general sufficiency of the prosecution evidence against the appellant.  To that end, Mr Boyton has assisted us with a speaking note which is in part devoted to highlighting the various weaknesses in X’s testimony.  He submits that, without the bolstering of the wrongly admitted recent complaint, the evidence of X would have been insufficiently credible to ground a conviction.  Conversely, as is clear from his original written submissions, Mr Kuan has consistently argued that, should this Court find against the respondent on the question of recent complaint, then this is an appropriate case for applying the proviso.

39.  We will begin to address this issue by listing out what was of no or limited help to the prosecution.  The first is the discovery of the appellant’s right thumb print.[40] The prosecution could not rule out that the appellant had made previous raids on the premises so there is no telling when the print was left inside Room 4.  The judge himself had stated so.[41]

40.  Second on the list is the retrieval of the keys.[42] We have read Lan Je’s evidence.  Quite apart from the discrepancy in numbers,[43] her identification was based solely on the keys’ “grooves” (坑) and make; it was not an identification based on distinctive features and she admitted to leaving keys that were left behind by departed tenants in unsecured units.[44]  There is also evidence of Sergeant Wong having control of what must be duplicates.[45]  It follows that, improper though it may be to be in possession of such keys,[46] it could not be proved that the seized keys were in fact X’s keys, albeit that the judge had made a finding that they were recovered from the appellant’s desk and not the tea table.  It should not come as a surprise, therefore, that the judge did not find the seizure of Exhibit P6(73) directly corroborative of X’s evidence.[47]

41.  The third item on the list is the CCTV recording.[48] As was pointed out by the judge, the quality of this recording, and the still shots that were derived from it, is “only average”.  He said it was “rather difficult” for the tribunal of fact to make its own identification based on those images.[49]  So, again, by itself this recording is not conclusive.

42.  With the above three matters out of the way, we are in a position to move on and identify where, and what apart from X, is the true substance of the evidence against the appellant.

43.  In our mind, the first peculiar feature of the appellant’s conduct must be for him to have followed X to the 1^st floor flat.  On this, Mr Boyton has made much of the discrepancy between X’s witness statement and testimony which, he submits, cast doubt on her assertion that she had twice mentioned about money – once in the street and once in Room 4.[50] He says, to avoid committing any offence, an experienced sex worker would know not to solicit in a public place, so there is reason for X to remain ambiguous upon meeting a potential client, and it is not unreasonable for the appellant to have followed X in the hope of gathering sufficient evidence.

44.  This submission, however, begs the question as to why the appellant had not taken first move to ask X about her charges.  As the judge rightly observed :[51] “In this regard, all the defendant had to do was to ask X a simple question – how much?”  Depending on her response,[52] the appellant would then be able to tell, or at least have a feel of whether X was involved in prostitution, and then decide on his next action.  It was a very natural step to take and we can think of no reason why he should fail to take it.  After all, the appellant was looking for evidence; even if they were some distance apart,[53] he could have stopped and beckoned X to come within speaking range.  This is a small point but it speaks volumes about the appellant’s version of events.  It lends credence to the prosecution’s case that the appellant was engaging X for a purpose other than in accordance with his police duty.

45.  Our next point is short but nevertheless crucial.  It relates to the indisputable fact that X had made a hasty exit only to return to Hong Kong in the next morning.  The following is what the judge said in relation to that fact.  We subscribe to his reasoning and would add that X made a complaint to the police within hours of returning to Hong Kong :[54]

“ …. if the defendant had never told X that he was a policeman and ordered her to go back to the mainland, it is not possible to explain why X hurried back to the mainland having come to Hong Kong specifically for the purpose of prostitution and successfully received several customers in only one day.” (underscore added for emphasis)

46.  We also agree with the judge on the improbability of a frame-up, which was but a bare proposition.  Despite the limited scope of this defence proposition, however, the judge was careful enough to have directed his analysis against two possibilities – X acting alone, and X acting in concert with others.  His conclusion to both was – ‘I can’t see why anyone should bother’ :[55]

“ X came to Hong Kong against without any difficulty in less than 8 hours after the incident and was put up in another set of premises. In my view, if the defendant had not compelled her to provide free sexual service but only said words to threaten her and to drive her back to the mainland, this was definitely not reason enough for her to frame the defendant although certain level of inconvenience had been caused to her. After all, X had all along been a frequent traveller to and from Hong Kong. The defence case was someone used X to frame the defendant as the premises in question had been raided by the police on numerous occasions. In my view, it was obviously to be expected that the premises would be raided again because the premises on 1/F had repeatedly been raided by the police. This was not possible to be reason enough to frame the defendant either. This court does not accept the suggestion of the defence.”

47.  If anything else needs to be said, we would point out that, according to his video recoded interview,[56] there was “no fixed pattern” as to when the appellant would go and “observe the trend of vice activities”; he was unable to put a date to his last visit in the same month of the alleged offence.  It seems to us rather unrealistic, therefore, that X and some possible others[57] should have caught the appellant out and set him up on that random night in question, when X herself had arrived in Hong Kong just 14 hours previously.[58]  It defies one as to how X and her collaborators were sufficiently prescient to know that the appellant would be lured by a smile and a wink.

48.  In our judgment, all the circumstantial evidence in this case goes in one direction, and bears its entire weight on the appellant.  The judge was, on one hand, fully attuned to this evidence and, on the other, satisfied that all the prosecution witnesses were credible witnesses having seen and heard them give evidence.[59] In the circumstances, regardless of the judge’s error on the question of recent complaint, we do not see that there was any miscarriage of justice and would uphold the conviction in this case: section 83(1) of the Criminal Procedure Ordinance, Cap 221.

DISPOSAL

49.  The appellant’s appeal against conviction is dismissed.