HKSAR v. Chand Gill

FAMC No. 17 of 2016

IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 17 OF 2016 (CRIMINAL)
(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC 219 OF 2014)

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REASONS FOR DETERMINATION

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Mr Justice Ribeiro PJ:

1.At the hearing we dismissed this leave application and now provide our reasons.

2.The applicant was tried before Line J and a jury[1] on three counts of rape and one count of non-consensual buggery.[2]  It was the prosecution’s case that he raped the complainant twice (Counts 1 and 2), then committed the buggery offence (Count 3) before raping her again (Count 4).  He elected not to give evidence.  His case, emerging mainly from a video recorded interview (VRI), was that the complainant had consented to the sexual intercourse charged as Counts 1 and 2, but that no intercourse had occurred in respect of Count 4.  As to Count 3, he admitted anal penetration but alleged that this had occurred by accident and that he had immediately desisted when the complainant objected.

3.The jury acquitted him on Counts 1 and 2 but convicted him on Counts 3 and 4.  On appeal,[3] his conviction on Count 4 was quashed on the ground of flagrant incompetence of counsel then representing him.[4]  The Court of Appeal found that despite clear instructions that the applicant had not engaged in sexual intercourse in respect of Count 4, Counsel had failed to put his client’s case to the complainant.  Instead, he had put a positive case “which was not only at odds with the applicant’s answers in his video-recorded interview but was in defiance of what seem to us to be the applicant’s clear instructions”.[5]  However, the appeal against the buggery conviction was dismissed by the Court of Appeal, which also refused to certify a point of law for leave to appeal.

4.In the present application for leave to appeal, three grounds are advanced on the substantial and grave injustice basis.  Ground 1 is that:

“The trial judge failed to direct the jury as to the proper approach to be applied to the defence evidence, namely, his video recorded interview (VRI).”

5.Mr Gerard McCoy SC, appearing for the applicant, submits that the principles deriving from Liberato v The Queen,[6] endorsed by the Court of Final Appeal,[7] apply equally where there is a conflict between the complainant’s evidence and the accused’s out-of-court version of events, so that the jury must be directed that if what is asserted in the VRI is or may be true, he must be acquitted.  He submits that the Judge erred in failing so to instruct the jury. 

6.In the Court of Appeal’s judgment refusing certification for leave to appeal,[8] Macrae JA assumed in the applicant’s favour that the Liberato principle applies with equal force to assertions in a defendant’s out-of-court statements.[9]  Holding that the important thing was that “the message must be brought home to a jury, without any danger of dilution, confusion or contradiction, that they cannot convict if the defendant raises a reasonable doubt about his guilt”, his Lordship analysed the summing-up as a whole and concluded that the jury had in substance received the relevant direction in abundantly clear terms.  We agree and do not think it reasonably arguable that there was a substantial and grave injustice on this ground.

7.Ground 2 states:

“The trial judge’s directions in relation to the Applicant choosing not to testify, and to the mixed statement (the VRI) [were] confusing, and gave the impression that the exculpatory parts of the VRI [were] something less than the evidence.”

8.This ground was not argued in the Court of Appeal.  The two directions in question were based on Specimen Directions issued by the Hong Kong Judicial Institute.[10] They address, respectively, the guidance which should be given to the jury in cases (i) involving mixed statements by the defendant; and (ii) where the defendant elects not to testify.  This was guidance which was plainly required in the present case.  Mr McCoy argues, however, that taken together, they were confusing and may have suggested to the jury that the exculpatory parts of the mixed statement were “something less than evidence of the facts”.  This argument takes those directions out of context and wrongly criticizes them for failing to deal with matters which they were not designed to address.  Looking at the summing-up as a whole, the directions relating to the out-of-court mixed statement was fair and balanced.  Use of the Specimen Directions involved no departure from the accepted norms which they reflect, so that they provide no basis for leave on the substantial and grave injustice ground.

9.Ground 3 is stated as follows:

“The Applicant’s credibility was severely undermined when his trial counsel put forward a case inconsistent with and contrary to the Applicant’s instructions (as the Court of Appeal had found) [and] what the Applicant had said in his VRI.”

10.The Court of Appeal carefully considered the consequences of quashing the applicant’s Count 4 conviction and held that it did not have any impact on the safety of his Count 3 conviction.[11]  It pointed out that while the defendant’s case on Count 4 was that intercourse had not occurred, he admitted anal penetration and objection by the complainant in relation to Count 3.  The issue for the jury on Count 3 was therefore different and narrowly-defined, namely, whether such penetration may have been accidental.  On this issue, there was no difference between what the applicant had said in the VRI and the case put by his counsel.  After having properly been instructed that they had to assess guilt on each Count separately and that they could accept or reject a witness’s evidence in part, the jury held unanimously that penetration was intentional and not accidental.  The Court of Appeal’s reasoning in upholding the conviction is compelling and we do not consider it reasonably arguable that Ground 3 provides a basis for leave to appeal.

Mr Gerard McCoy SC, instructed by B. Manek & Co., assigned by the Director of Legal Aid, for the Applicant

Ms Anna Lai SC, Ag. DDPP, and Mr Eddie Sean, SADPP, of the Department of Justice, for the Respondent