Recent complaint – question of whether recent complaint admissible where offence charged not sexual offence but act underlying it was – however, evidence in present case not of recent complaint as opposed to evidence of state of mind – admitting evidence as recent complaint was error but did not cause any miscarriage of justice – proviso applied
D was convicted after trial on a charge of misconduct in public office, the particulars of which were that he, being the holder of a public office, namely a police sergeant, on or about 28 May 2014, in a room in Temple St, Yau Ma Tei, “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 services from X; and (b) threatening the said X to leave the territory of Hong Kong within 3 hours on [28 May 2014], otherwise [she] would be subject to detention for seven days.” X, a mainland Chinese woman who came to Hong Kong to work as a prostitute, returned to mainland China. Evidence was adduced of X having, once back on the Mainland, given “L”, from whom her room in Hong Kong was rented, an account consistent with her allegation against D, and of L telling X that she need not be scared and should come back. What X had told L, it was argued on D’s behalf in his appeal against conviction, did not amount in law to a recent complaint and was inadmissible.
Held, dismissing the appeal, that:
- The respondent relied on the case of R v Kovacs decided by the Queensland Court of Appeal for the proposition that the recent complaint rule extended to cases in which the offence charged was not a sexual offence but the act underlying it was a sexual offence. In the present case, the underlying act would be that of procuring an unlawful sexual act by threat, contrary to s. 119 of the Crimes Ordinance (Cap. 200) in respect of which consent was a non-issue. The offence contrary to s.119 was a sexual offence. However, on the limited material which the Court had, a recent complaint had always gone hand in hand with situations where a lack of consent on the part of the victim was essential to proof of the offence (eg, rape) or where the victim’s consent was no defence, because the law did not recognise his or her consent as effective consent (eg, unlawful sexual activity with the underaged or mentally incapacitated). In none of the material before the Court had this exception to the exclusionary rule been applied where the victim was capable of giving effective consent, who did give consent, but whose consent was incapable of negating the offender’s liability.
- Even if the Court were to apply R v Kovacs, given the particular nature of the alleged sexual misconduct in the present case, the Court was not prepared to hold that the telephone conversation between X and L was admissible as evidence of a recent complaint. The Deputy Judge could have admitted it – or at least a version of it – as evidence of state of mind to explain X’s return to Hong Kong just hours after her departure, but he was wrong to admit it under the head of recent complaint.
- The circumstantial evidence being all one way and the Deputy Judge, fully attuned to the evidence, being satisfied that all the prosecution witnesses were credible, his error regarding recent complaint did not result in any miscarriage of justice, and the appeal should be dismissed by applying the proviso.