HKSAR v. LI KWOK KAY

DCCC 365/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 365 OF 2012

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HKSAR
v
Li Kwok-kay
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Before: District Judge Tallentire

Date: 10 January 2013 at 9.35 am

Present: Ms Lisa Go, SPP, for the Department of Justice, for HKSAR
Mr Toby Jenkyn-Jones, instructed by Kong & Chang, assigned by the Director of Legal Aid, for the defendant

Offence: (1) – (4) Indecent assault on another person (猥褻侵犯另 一人)

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Reasons for Verdict

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1. Defendant, you pleaded not guilty to four offences of indecent assault, each contrary to section 122(1) of the Crimes Ordinance, Cap.200.

2. The prosecution case was as follows.

3. X, PW1, was a 32-year-old mentally disabled female who worked as a cleaner at Kowloon City Magistrates’ Court. One of her dutieswas to clean the prisoners loading area. You were a police constable assigned as a Gate Guard at that area. You had to controlthe gate and would be the only guard on duty at any given time. The area is restricted to Correctional Service officers, policeofficers, prisoners under escort and cleaners. Only the Gate Guard remained there at all times.

4. PW1 got to know you in 2011 at work. You asked PW1 for her mobile phone number and she complied. You asked PW1 out for lunch ondates but she declined.

Charge 1

5. Around 1 pm on 22 November 2011 you called PW1 and it was arranged that you would meet at Oi Man Estate. You asked PW1 if her familywas at home, and when she said no, you requested to go there. You and she went to Room 605, Tun Man House, Oi Man Estate, Ho ManTin. There you sat by PW1 on the sofa, lifted up her shirt, unclipped her brassiere and touched her breasts with both hands. PW1did not like this and felt pain. Upon hearing the return of her parents, you desisted and fastened her brassiere. You spoke to herparents, then you and PW1 went for lunch.

Charge 2

6. On a day unknown between 23 November 2011 and 9 December 2011, whilst PW1 was working in the prisoner loading area of Kowloon CityMagistrates’ Court, you kissed her face and ears. You removed your trousers and pulled PW1’s hands to touch your penis. PW1tried to move away but her hand still touched your penis, which she recalled was hard. You tried to put your hands inside her trousersbut she pushed you away. PW1 told you not to do such acts. You put your trousers back on when you heard vehicles approach.

Charge 3

7. On an unknown day in the same time span PW1 was working in the same area and waiting for the gate to open. You, who was standingbehind her, suddenly touched both her breasts with both hands and kneaded them from behind. Your hands were beneath her clothesbut over her bra.

Charge 4

8. Again in the same time period in the same area you put your hands into her back trousers pocket and squeezed her buttocks.

Recent complaint

9. Towards the end of November or early December 2011, PW1 told her supervisor, Madam Lau Sin-ming, whom she referred to as “Ah Sir”,that you had touched her breasts. She also said that you and she had dined together before.

10. On 10 December 2011, PW1 told her brother and father that you had touched her breasts inside the prisoner loading area where shewas working. PW1 cried. The matter was reported to the police.

11. PW1 and her mother identified you at an ID parade on 13 December 2011.

Your arrest

12. You were arrested on 13 December 2011. Under caution you said, “Ah Sun had brought me to her home. I had even seen her dad andmom. Later, I had a meal with Ah Sun.”

13. In a subsequent video recorded interview under caution you said:

(a) You had known her for half a year at Kowloon City Magistrates’ Court and got her mobile number in November 2011.

(b) On 22 November 2011, you dated Ah Sun for a meal at Oi Man Estate. You then attended her home upon her invitation. A few minutesafter her parents had returned. You had not molested her on that occasion.

(c) There were occasions you had to stay inside the prisoner loading area with PW1 but you had never molested her there.

(d) You were ordinary friends.

(e) You had not noticed she was mentally retarded.

The psychological assessment of PW1

14. On 21 February 2012, PW1 was examined by Dr Ng Wai-shan, Clinical Psychologist. On the Wechsler Adult Intelligence Scale-III sheattained a verbal IQ of 40, a performance IQ of 49 and a Full Scale IQ of 51. Her general intellectual functioning fell at the ExtremelyLow range. Among 1,000 adults of her age, the level of her intellectual functioning corresponded to the lowest one. She has significantlysub-average level of intelligence.

15. On the Scale of Independent Behaviour-Revised, X obtained an overall standard score of 38. A standard score of 70 or below denotessignificantly sub-average performance. She achieved an adaptive age equivalent of 9 years and 5 months. Among 1,000 adults of herage, the level of her adaptive behaviour corresponded to the lowest one. There were significant deficiencies in her adaptive functioningamong which her personal self-care, dressing and money value were classified as very limited to negligible. Her scores for socialinteraction and communication skills, personal living skills and community living skills were 51, 49 and 35 respectively.

16. The index on SIB-R, Support Score, indicates that the complainant was unable to lead an independent life.

17. She fitted into the definition of a mentally handicapped person stipulated in section 79A of the Criminal Procedure Ordinance, Cap.221. She was diagnosed to have mental retardation.

18. The prosecution comprised two sets of admitted facts and eight live prosecution witnesses.

19. PW1’s evidence-in-chief was by of video-recorded interview without opposition from the defence.

20. The first set of admitted facts, P16, entered into evidence in accordance with the provisions of section 65C of the Criminal Procedure Ordinance, Cap.221, provided as follows:

(1) 12 photographs were admitted as P9.

(2) A videotape from court, P13.

(3) 18 photographs from CCTV, P10.

(4) At the material time you used a mobile phone 90390321 and X 92539673.

(5) Phone records of your phone between 15 and 29 November 2011 was produced as Exhibit P8.

(6) A sketch of the premises with certified translation was produced as P2 and P2A for the translation.

(7) At 1100 hours on 13 December 2011 Detective Police Sergeant 49965 arrested you outside the court. Arrested and cautioned for indecentassault you said, “Ah Sun had brought me to her home. I had even seen her mom and dad. Later I had a meal with Ah Sun.”

(8) Between 1110 and 1130 hours DPS4965 post-recorded a caution statement of you. It was voluntary and is produced as P1 and the translationas P1A.

Your video-recorded interview

(9) Between 1309 and 1451 hours on 13 December 2011 you were interviewed under caution. It was voluntary. The DVD is produced as P7,the transcript P7A, and the translation as P7B.

(10) During the interview you drew a sketch, produced as P19A.

(11) At an ID parade on 13 December 2011 both X and her mother identified you.

(12) You are a serving police officer and a person of clear record.

21. The second admitted facts are P21 admitted in accordance with section 65C of the Criminal Procedure Ordinance, Cap.221.

22. A sketch of the prisoners loading area of Kowloon City Magistrates’ Court is admitted as P15, with the translation P15A.

23. A sketch of the location of CCTVs in the prisoner loading area of Kowloon City Magistrates’ Court is produced as P3.

24. X’s video-recorded interviews are produced as P4, P4A, P4B, P5, P5A, P5B and P6, P6A and P6B.

25. P11 is produced in the admitted facts. This is the Clinical Psychologist’s report, which I understand is not challenged.

26. Miss X gave evidence. Her evidence-in-chief was by video; in fact, three video-recorded interviews. This method was not challengedby defence, who accepted she was a vulnerable witness, a lady with severe mental disabilities as per the admitted facts, thereforethe prosecution opening is based on PW1’s three video-recorded interviews and I do not intend to repeat their contents.

27. Mr Chan, with leave of the court and without objection from the defence, asked some supplemental questions using P9, the photo album. Referring to Photos 10 and 11 she indicated where she said the three incidents relating to Charges 2, 3 and 4 had occurred. Photo4 shows a sofa on which you and she sat where she alleged Charge 1 occurred. She also produced P12 and P12A, the translation, whichwas her work attendance book.

28. Miss X was then cross-examined at length by Mr Jenkyn-Jones. She accepted she had said in one of her interviews that she was differentfrom other people as she had a poor memory. She agreed she did not tell people of her disabilities, did not want people to know. She agreed that even before she met you someone had told her that you read pornography and that she thought that you were evil,a bad person.

29. She agreed her family were very protective and gave her advice. She was close to her younger brother, who advised her, for example,to be careful around men and what to wear and that some men treated women badly. Her mother taught her similar things. She agreedher mother worried about the people she may meet. She showed her the route to new places and to ring on arrival, especially at KowloonCity Magistrates’ Court, and when about to leave. She said she could read and write Chinese.

30. She agreed that in her first interview, at tab 474, she was asked when the last time things like this took place and she replied,“Long ago. At that time I was studying.” She agreed it was about two years ago that she was studying. She agreed that sheonly met you that time, and again she said she did not understand or did not remember. She agreed that before she had a friend thefamily had to meet him or her and approve. To get to work on time she agreed she checked the clock at home and her mobile phone.

31. She spoke of her duties and agreed her first job was to sweep the main staircase at the entrance, then the prisoner loading areaand then the magistrates’ and staff car park. These are done in that order and have to be finished by about 9 am, then beginsthe next phase of jobs. After the second phase she is free until she knocks off at noon. She finally agreed she slipped in withthe prisoners vehicles. Her job is to clear up the cigarette butts from the smoking corner. Photo 44 of the defence bundle showsit left of the large window. Photo 45 of that same bundle a view of the smoking corner. Normally an iron can there has to be emptiedof cigarette butts. She agreed she had worked at Kowloon City Magistrates’ Court for about five years as a cleaner. Ming Tse,PW3, had trained her until she could operate by herself.

32. She agreed she met court staff whilst working and had simple conversations, casual chatting and joking. She seemed to accept itwas around the summer of 2011 she first met you. After a while you and her exchanged greetings and a little more, but was not entirelyclear. She recalled telling you of where she lived and with whom. She agreed she told you she sometimes lunched with her motherand sometimes her mother left her food at home. Also, after lunch, she told you of her interests. She insisted that you and shenever spoke of a big fish kept at her home. She agreed that you had told her that you were not a smoker. She could not rememberwhen she gave you her telephone number. You asked for it and she gave it to you.

33. She did confirm you had only went once to her home. She did not remember if you had agreed to have lunch together that day. Yourang her but she did not answer. She denied that you rang at 11.25 am and suggested lunch in the Hospital Authority Canteen nextdoor. She could not recall if you then phoned again at 12.32 pm, but then agreed that you did but she did not speak to you. Shefinally agreed her mum did not want her to go to lunch with you so she went home. She said she agreed to you coming to Oi Man Estatefor lunch. She never gave you her home address and cut the line when you rang back. Before this you had said you would go thereby taxi. She then cut your next call and could not recall when the next one was. You went to a different place in Oi Man Estatefrom that which she expected. She did accept her mother had told you to fob you off.

34. There followed again many simple questions that PW1 said she did not understand. Finally, she agreed to meet you. She finallyagreed that you had to eat and you looked in at Fairwood but there were no seats. Again, there were denials and a lack of understandingof how it was that you came about to go to her home. She did agree that you did go there. She could not say how you came to herhome. She disagreed that you looked at the big fish or any photographs. Again, she misunderstood what was being asked of her. She agreed that you sat on the sofa and that you had hardly sat down when they heard the sound of the door opening. It was her parentsreturning. They came in. She agreed that she introduced you to her parents. She told her mother your surname was Li when she asked. You said you had come to have lunch with her and asked her parents if they had eaten. The mother replied they had. You then saidthat you and X would go to eat.

35. She disagreed that you wanted to eat at Fairwood but agreed they went to Oi Man Restaurant as there were no seats at Fairwood. Sheagreed they had some conversation while eating lunch but not much. After lunch, she agreed she suggested having a walk around OiMan Estate. You both went to the shopping mall. In Vanguard Supermarket you bought her some sweets. You accompanied her home. She denied you went but later accepted you had and her father had asked you about work. Also, her mother told her to open the doorfor you. She agreed her brother had rung in her absence to invite the family for tea and that she had left her phone behind.

36. She accepted her parents had questioned her about you but claimed not to understand when it was put to her that her parents saidit was wrong to bring strangers home, but then appeared to change her mind and agreed. She accepted that they were upset and worried. She agreed her parents had repeatedly warned her about strangers. When it was put to her that what she had told the police aboutbeing touched in the home did not happen, she disagreed, insisting that it had. She denied confusing what her parents had told hercould happen with what actually happened. Likewise, about what she said at Kowloon City Magistrates’ Court. She also insistedyou had said you read pornography. Again, she seemed not to understand simple questions on this point. She agreed she only toldher brother about one incident and not numerous as she told the police. By the time it came to the police it had grown to five tosix incidents. Again, she did not understand the points put to her.

37. There was some re-examination. She repeated accusations of indecent assault in the flat by lifting her top. Now, she said youtried to remove her bra. She accepted that she told her brother one incident at work when you molested her but later told the policeof more.

38. After this evidence we had a site visit to Kowloon City Magistrates’ Court with all parties present.

39. DPC1542, PW2, gave evidence, producing a sketch of the prisoners loading area as P15 and P15A. He was cross-examined but littleof substance emerged from that.

40. Madam Lau Sin-ming, PW3, gave evidence. She was X’s supervisor at Kowloon City Magistrates’ Court. She spoke of X’s workthere. She said X was a little different from others. Sometimes she was not very clear after someone spoke to her. She was awareof her mental problems. She said she had sometimes to explain things to her over again. In the latter part of last year she saidshe had a conversation with X. She said “several days ago someone arranged to have food and drink in the café and lifted herbreasts two times.” She had demonstrated to PW3 how her breasts were lifted. She said it was in the café. She said it was AhSir but PW3 never asked who Ah Sir was. PW3 told her not to tell others casually and made no report of the conversation. PW3 gavea witness statement to the police on 13 December 2011 and this conversation occurred two to three weeks prior. She told her “itwas days ago.” She was cross-examined briefly.

41. X’s mother then gave evidence as PW4. On 22 November 2011 she said she herself was off work and X was working at Kowloon CityMagistrates’ Court. On that day she spoke to her around 12.25 pm. She said she was going to knock off and PW4 told her to gohome and wait for her to have lunch together. At that time PW4 was in Mongkok with her husband, that is the father of X. They returnedhome around 1 pm. She used keys to open the wooden door but the gate was not locked, it just had to be pulled open. When they openedthe door X was there in front of her. They went in and saw someone sitting on the sofa in the living room. X said, “This is AhSir.” The man in question said he was a colleague. He said his surname was Li. The man asked if she had had lunch and she saidshe had. He said he was going to take X downstairs for lunch, and they left.

42. Around 1.15 pm, her son called to invite them for tea at Tsim Sha Tsui. PW4 then went down to Fairwood to look for you both butdid not find you. Then she went to Oi Man Restaurant. Again, she did not find you. They returned at about 1.30 pm. You sat onthe sofa while X went to change. They conversed about your working hours. You left and two to three minutes later X, PW4 and herhusband left too. They saw you in the underpass looking up. She identified you when she picked you out in the ID parade.

43. PW4 was then cross-examined. She agreed because of X’s handicap the family were very protective of her. They impressed on herto be careful with her friends, told her not to bring people home she did not know. She agreed she was stunned to find a strangerin her house. She agreed later they did ask X who you were and impressed upon her that she had to be careful. She agreed they dorepeat things because of her condition. She accepted that they gave her examples of bad people. In re-examination she confirmedthey told X not to bring strange men up to the flat. She said she did not shout at her but used a harsher tone.

44. Her brother gave evidence as PW5. On 10 December 2011 he said they were having dinner at home. X then at about 9 pm suddenly pulledup into the kitchen and told him that Ah Sir had touched her breasts and that it was that Ah Sir who was at her home. The latterwas said in reply to PW5 asking if it was the person she had brought to her home. She said the Ah Sir worked at court and wouldopen the gates. She cried. She then returned to the living room and her father asked her about it. She said it had occurred theday before at about 9 am. They did not scold her angrily.

45. PW5 was then cross-examined. He admitted that occasionally he got angry with X if she broke his stuff. He agreed she only toldhim of one occasion at Kowloon City Magistrates’ Court. When they went for tea on a certain day he agreed they did ask her whyshe brought strangers there. He agreed her judgment may be faulty. He said she was possibly told of dangers of women being takenadvantage of.

46. Her father then gave evidence as PW6. He added little, save to confirm that it was PW5 who spoke for X on 10 December, saying shehad been molested. Cross-examination added little to this.

47. Sergeant 17775, PW7, gave evidence of the area beneath the cells and courtroom. He too added little to what was seen on the sitevisit.

48. PW8, DPC56614, was the last prosecution witness and he was involved in X’s interviews, that is one and two, and added nothing.

49. The prosecution case was closed and submissions of no case to answer were made by Mr Jenkyn-Jones in respect of each of the charges. Mr Chan replied on behalf of the prosecution. For reasons given in court I ruled that you did have a case to answer on each ofthe four charges.

50. Mr Jenkyn-Jones informed me that he had explained to you your rights and you fully understood those rights. Your election was notto give evidence and not to call any defence witnesses. The defence case was thereby closed.

51. In accordance with convention, Mr Chan very properly did not make any final submissions as you had not given evidence. Mr Jenkyn-Jonesdid. He adopted what he had said in his submission of no case to answer and made a few additional supplemental points which I havetaken into account.

52. I turn now to the verdict.

53. Both cases being closed, it fell to me to review the evidence and consider if the prosecution had proved all or any of the allegationsagainst you beyond all reasonable doubt. This is of course a much higher test of the evidence than that applied at the close ofthe prosecution where it is only at a level of whether a reasonable tribunal properly directed could convict on the evidence it hasevidence heard so far putting the prosecution case at its highest whilst allowing for and having due regard to the decision in R v Colin Shippey. You are of course a man of hitherto clear record, therefore I gave myself the standard warning and direction as to your propensityto commit the acts or any of the acts alleged against you.

54. The only actual witness of fact is X, a young lady suffering from relatively severe mental handicap. Here I pause and I pay tributeto her resilience and tenacity. Over the period of several days she gave evidence, albeit in the protective environment of the vulnerablewitness room via CCTV. She endured very gentle and proper but searching interrogation. Although she clearly found it difficulton occasions to assimilate and to reply to very basic questions, I have no doubt whatsoever that she spoke what she perceived tobe the truth to the very best of her ability. That she was able to endure and come through the ordeal with a degree of equanimityand openness speaks volumes as to her character and disposition. She as we know is the only witness what is alleged to have occurred.

55. No one else gives direct evidence, no one else claims to have seen the alleged acts with their own eyes, nor is the prosecutionassisted by any admissions on the part of yourself, either on arrest and caution, nor in the course of formal interview. Indeed,I note that you denied all the allegations put to you.

56. We have two witnesses of what the prosecution held out to be recent complaint who were meant to show consistency. Miss Lau Sin-mingor Ming Tse, PW3, the supervisor of X, is the first. The incident that she says X told her about is clearly not relating to anyof the four charges. These allegedly occurred, one at her home and three at Kowloon City Magistrates’ Court. In her evidence PW3is clear and unambiguous that X spoke of an incident in a café or a restaurant when Ah Sir allegedly lifted her breasts. Whilstit may be neither here nor there as to what PW3 believed, she was clearly sceptical and did not report this to anyone and indeedadvised X not to speak of it casually to others, or words to that effect. Also, that X told her it was Ah Sir but she never wenton to inquire as to who Ah Sir might be. In my opinion, it is inherently unlikely that such an incident would have occurred in arestaurant and impacts on X’s reliability adversely.

57. I have to tell you, defendant, that what I view as highly suspicious are the events of 22 November 2011. They are not in my opinionadequately nor convincingly explained in your video-recorded interview to any acceptable level. Why would a man, a police officer,of at least full mental capacity, not only obtain X’s phone number, invite her to lunch, and when this appears thwarted, pursueher to her residential estate, there placing yourself in a compromising situation by going to her flat whilst her family are absent?

58. What inference can or should one draw? Clearly one logical inference is that you had designs on her in a predatory sexual way. At best, it shows a lack of common sense and discretion; at worst, something darker. But can one be satisfied beyond all reasonabledoubt that this is the first phase of a plan to take advantage of a younger lady with disabilities?

59. Mr Jenkyn-Jones has shown to my satisfaction that the allegation of having her breasts molested for half an hour and feeling paincannot be correct. The timescale does not allow for this and I note in cross-examination she accepted you had barely sat down onthe sofa when there were the sounds of her parents returning. Further, if the allegation was true, it is odd that she was neitherphysically nor emotionally distressed when her parents entered, that she made no complaint to her parents there and then, that shewas at the door as they entered and seemed to go off to lunch with you without any perceived reluctance. If this had happened, Ialso find it strange that you would invite the parents to lunch. This is not the actions of a man conscious of his guilt unlessyou are utterly shameless.

60. Also of some concern is her complaint to her brother on 10 December 2011. This was to the effect that Ah Sir touched her breaststhe day before. She made no mention of other incidents. It is especially of concern that when PW5 asked her if it was the Ah Sirwho came to the flat she did not go on to complain of any such incident in the flat. This is inconsistent and inexplicable.

61. It is perhaps sadly reflective of the state of the evidence that Charges 2, 3 and 4 are not pinned down as to time save to the extentof being on an unknown date between 23 November 2011 and 9 December 2011. Whilst the law does not require it, it does show the difficultiesin moving towards proof.

62. Of further concern is the location of Charges 2, 3 and 4 in the prisoners loading area. The evidence shows that X commenced workat 8 am cleaning the staircase at the entrance before moving to that prisoner loading area. Her function there was to clear up thecigarette butts left by police officers. Entry seems usually to have been gained primarily by slipping in with the arriving prisonersvehicles. Court commences at 9.30 am, so at that time X would have been in the prisoners loading area. It was around a time whenthere was a high potential of activity in that area. Could or would you have risked such acts as removing your trousers, kneadingher breasts and groping her buttocks? If so, it would seem to be recklessness taken to the very limit. Again, the seeds of doubtare sown.

63. Much of what X alleged is irreconcilable with the overall facts. An example of this is in her first video-recorded interview whenat counter 476 she is asked when the last time she was groped and replied that this while she was studying. This is long beforeshe met you and long before she worked at Kowloon City Magistrates’ Court. It cannot be explained away, save to the extent ittends to undermine the confidence one can have in the faithful recall of the events surrounding the allegations.

64. A point I made in the ruling on the submission of no case to answer is as to the relevance or otherwise of pinpointing the time,date, place and duration of any act of indecent assault. In my finding and opinion, it is sufficient if I can be sure beyond allreasonable doubt that within the timeframe alleged that an act actually connected or strikingly similar to the allegations did occurwithin the geographical jurisdiction of the court. I have indicated some of the difficulties that I find.

65. As I have said, X gave evidence by way of cross-examination over a number of days. To a large degree, the time spent in givingevidence was due to the fact she did not understand what on the face of it appeared to be simple questions couched in basic termsby counsel. Her replies, when I look at the record, are often, “I don’t understand”, or she gave an answer divorced from thequestion itself that was posed, or, “I don’t remember.” This was not X being evasive nor being deceitful. She simply didnot understand, was not able to grasp what she was called upon to answer, or could not remember.

66. Again I make the point, while being sympathetic and making full allowance for her handicap and disabilities, the prosecution stillis not relieved of the normal burden of proving the case beyond all reasonable doubt. To this end, the task has become enormouslydifficult for the reasons I have indicated and given, and the lack of anything to corroborate X’s account in a supportive, materialor meaningful way. Additionally, we also had X’s own admissions of bad memory or at least difficulties in remembering things. This was clear from the number of times in her evidence she said she could not remember.

67. In conclusion, while I find PW1, X, to be an honest witness, who has certainly not told deliberate lies either to this court norto the police, there are many dangers of her simply being mistaken as to what occurred. I am highly suspicious of you, defendant. However, I cannot convict on suspicions without established good, persuasive evidence. In this case there are massive doubts raisedand on that basis I dismiss each and every one of the four charges and acquit you on the doubts raised.

68. I would like to record my thanks to Mr Jenkyn-Jones and Mr Chan for the help that I have received during the course of the trial.

Tallentire
District Judge