HKSAR v. Keita Ali
Read the full judgment text of CACC 419/2015 on BabelCite. This Court of Appeal judgment was delivered on 14 February 2017.
1. With the leave of Macrae JA, granted on 18 May 2016, the appellant appeals against his conviction, after trial by Tong J and a jury on 18 November 2015 of one count of attempted rape of Madam X on 9 January 2015, contrary to sections 118(1) and 159G of the Crimes Ordinance, Cap. 200. Having been refused the grant of legal aid to pursue his applications for leave to appeal against conviction and sentence on 14 March 2016, the appellant was unrepresented in his applications before Macrae JA, wh
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CACC 419/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 419OF 2015 (ON APPEAL FROM HCCC NO. 327 of 2015) ____________ BETWEEN
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__________________ J U D G M E N T __________________ Hon Lunn VP (giving the Judgment of the Court) : 1.With the leave of Macrae JA, granted on 18 May 2016, the appellant appeals against his conviction, after trial by Tong J and a jury on 18 November 2015 of one count of attempted rape of Madam X on 9 January 2015, contrary to sections 118(1) and 159G of the Crimes Ordinance, Cap. 200. Having been refused the grant of legal aid to pursue his applications for leave to appeal against conviction and sentence on 14 March 2016, the appellant was unrepresented in his applications before Macrae JA, who refused the application for leave to appeal against sentence. The trial The prosecution case 2.It was the prosecution case that at around 9 p.m. on 9 January 2015 the appellant, a 26 year-old Guinean man, attacked and attempted to rape the complainant, Madam X, a 63-year-old married woman in the rear lane which connected Mok Cheong Street and Sung Wong Toi Road, Kowloon City. The rear entrance to a ‘Park n Shop’ supermarket abutted the middle of the rear lane. 3.Madam X was in the rear lane collecting cardboard boxes when she encountered the appellant. Thinking that he was about to urinate in the rear lane, Madam X told him in Cantonese to go elsewhere. As Madam X was about to leave the lane, the appellant grabbed her neck with his right hand, causing her to fall onto her back facing up. Then, he used his left hand to press her throat. Madam X resisted and screamed for the help of ‘On Gor’, an employee of the nearby Park n Shop store. In the course of their struggle, the appellant stuffed a plastic bag in her mouth and pulled another plastic bag over her head. Then, the appellant pulled off all her lower garments, namely her underpants, pyjamas and blue trousers. Next, he attempted to penetrate her with his penis, thrusting and sweeping it passed the entrance to her vagina three times. Although she did not see that, she felt that is what happened. Finally, having failed to penetrate her vagina, the appellant slapped her private parts three or four times with his right hand. 4.Mr Cheung Wah On, a member of staff of the Park n Shop store testified that at about 9 p.m. he responded to Madam X’s cries for help. On opening the rear door he saw her sitting on the ground, no more than 1 metre away from his position. She appeared to be very frightened. He recognised her to be a lady who collected cardboard boxes from the rear lane. She complained to him that she had been raped by the black man, who was nearby. It was too dark for him to see the state of her clothing. Immediately, he telephoned the police. Then, he returned to the shop premises. 5.Subsequently, Mr Cheung returned to the rear lane with a colleague. The black man approached and spoke to him, following him into the Park n Shop premises. All that he was able to understand was the word “bag”. For his part, Mr Cheung mentioned the word “police” to the appellant and gestured that he should leave the premises. The appellant did so. 6.Subsequently, ambulancemen and police officers attended the scene where they found Madam X and the appellant still in the rear lane. Eventually, the appellant was arrested for raping Madam X. 7.It was an admitted fact that Madam X suffered injuries on her face and neck and had tenderness and swelling over her perineum. Dr Foo Ka Chung, a forensic pathologist, said that those injuries were consistent with Madam X’s account of a sexual attack, but also agreed that they could have been caused by punches and kicks. 8.An enhanced version of a CCTV film, which depicted part of the rear lane between 20:30 and 22:15 hours on 9 January 2015, was adduced into evidence as an admitted fact. 9.A video recorded interview of the appellant conducted under caution of the appellant on the evening of 10 January 2015, together with a transcript, was adduced into evidence. The appellant denied having pushed Madam X onto the ground, removing her lower garments and having tried to insert his penis into her vagina. There was a dispute between the two of them because Madam X would not return to him his bag that he believed she had. However, there was no bodily contact between them.[1] The defence case 10.The appellant did not avail himself of his right to give or call evidence at his trial. Rather, the defence case was advanced in cross‑examination and by the submissions of counsel. Mr Egan invited the jury to reject the video recorded interview, describing the appellant’s answers to questions in his closing speech as “garbled nonsense.”[2] Although he acknowledged that it was of very poor quality, nevertheless he invited the jury to accept that the CCTV film contradicted Madam X’s evidence that the appellant had not kicked and stomped on her. He suggested, notwithstanding the appellant’s denials in his video recorded interview that he had any bodily contact with Madam X, that was what the appellant had done. The CCTV film depicted the appellant doing just that. It depicted a violent, not a sexual, attack. There was no sexual motivation in the attack. Grounds of appeal against conviction 11.By Ground 1 of the grounds of appeal against conviction, Mr Egan submitted that the judge had erred in law in failing to direct the jury that verdicts alternative to that of attempted rape were verdicts open to them, pursuant to section 51(2) and (3) of the Criminal Procedure Ordinance, Cap. 221, namely indecent assault or common assault. 12.In addition, Mr Egan submitted that, as a matter of law, the judge erred in failing to direct the jury that they should approach the CCTV evidence with the utmost care, given its exceptionally poor quality. That ground was one of law only and no leave was required of this Court. Alternatively, he submitted that, if leave was required, it ought to be granted. The respondent’s submissions 13.For the respondent, Ms Ko submitted that the duty to leave an alternative verdict to the jury only arose “…if there is evidence upon which a reasonable jury might return a verdict on the alternative.” [3] Of the requisite supporting evidence, she said that it “…must not be so incredible or tenuous or uncertain that no reasonable jury could have accepted it; in other words, an alternative verdict should not be put to the jury if there is no evidential basis on which a reasonable jury could have come to that alternative verdict.” [4] More particularly, she submitted that it was not an error for a judge not to leave an alternative verdict to a jury “…if that verdict could properly be described in its legal and factual context as trivial, or insubstantial, or where any possible compromise verdict would not reflect the real issues in the case.” [5] 14.In that context, Ms Ko submitted that there was no sufficient evidential basis to support the alternative verdict of assault occasioning actual bodily harm or common assault. She said that, at the least, the evidence was tenuous, uncertain and incredible. Madam X did not testify of any assault by punching or kicking by the appellant. Indeed, she denied that such an attack had taken place. Similarly, the appellant did not describe such an attack in his out‑of-court statements. Whilst the CCTV apparently showed the appellant punching and kicking something, the target of that attack was not clear. Accordingly, it would have been wholly inappropriate to have left those alternative verdicts to the jury. Similarly, given the serious circumstances of the commission of the offence of attempted rape, in particular the injuries to the complainant, not only to her face and neck but also to her perineum, the alternative verdict of indecent assault was for a trivial and insubstantial offence. 15.Of the suggested requirement that the judge give the jury a direction as to their approach to the CCTV evidence, namely that, given its poor quality, they do so with the utmost care, Ms Ko invited the Court to note that the identity of the appellant as a person depicted in the CCTV in the rear lane at the material time was not in issue. There was no dispute as to the poor quality of the CCTV film. It was submitted that the prosecution did not rely on the CCTV film. Rather, the prosecution relied on the complainant’s evidence, together with the medical evidence as to her injuries. In those circumstances, it was unnecessary for the judge to give the jury any direction as to their approach to the CCTV evidence. A consideration of the submissions Alternative verdicts 16.Thealternativeverdictswhichmaybereturnedonacount of rape,providedforbySchedule1oftheCrimesOrdinance,Cap.200,are not relevant to the circumstances of the appellant’s case.[6] However, section 51(2) of the Criminal Procedure Ordinance, Cap. 221 provides that:
By Section 51(3), that provision applies to attempts. 17.In the judgment of the Court of Appeal of England and Wales in R v Hodgson & Others, Roskill LJ said:[7]
18.In the judgment of Chan PJ in the Court of Final Appeal in Ho Hoi Shing v HKSAR, with which the other judges agreed, the ambit of the duty of a trial judge to leave available alternative verdicts to a jury was addressed:[8]
19.Of the requisite evidential threshold, Chan PJ said:[9]
20.Of the danger or risks that might flow from a failure to leave an appropriate alternative verdict to a jury, in the judgment of the Court of Appeal of England and Wales in R v Foster & other appeals, Sir Igor Judge P. said:[10]
21.Nevertheless, having noted that the administration of criminal justice depended on the “conscientious and impartial determination of the issues by the jury, following and applying the directions of law which they receive from the judge”, Sir Igor Judge P. said:[11]
22.Of the relevance of the defence case to the issue, Sir Igor Judge P. said:[12]
23.Of the factors relevant to the determination of whether or not it was appropriate that an alternative verdict be left to the jury, Sir Igor Judge P. said:[13]
24.Of the approach to be taken by an appellate court, in circumstances where the judge had declined to leave an alternative verdict to the jury, Sir Igor Judge P. said:[14]
Punching and kicking 25.In cross-examination, the complainant denied that the appellant had punched or kicked her.[15] In the context of the CCTV film, it was suggested that the appellant had punched and kicked her. However, Madam X denied those suggestions.[16] Sexual assaults 26.In her evidence-in-chief, Madam X testified that immediately after the appellant had sought unsuccessfully to penetrate his penis into her vaginal opening, he slapped her private parts with his right hand three or four times.[17] Then, she heard the sound of a door opening and the appellant released his grip of her. Then, he stood up. She saw Mr Cheung standing there.[18] In cross-examination, she denied the omnibus suggestion that the injuries to her face, neck and her private parts were the results of an assault only, not a sexual assault.[19] Similarly, she denied the suggestion that the appellant had never assaulted her sexually. Alternative verdicts: the defence application 27.There is no dispute that prior to closing speeches and the summing up Mr Egan invited the judge to direct the jury that open to them, in the alternative to the count of attempted rape, was a verdict of guilty to indecent assault. It is to be noted that, although the transcript of the submissions is over 11 pages in length, at no stage was reference made to any authorities or even to a textbook, such as Archbold Hong Kong, relevant to the issue of alternative verdicts. 28.In his submissions to the judge, Mr Egan said:[20]
29.Subsequently, Mr Egan developed his submission:[21]
30.Mr Egan went on to submit that there was a “third factual scenario”, namely that “…the attack on the victim in this case had nothing whatsoever to do with sexual gratification, that it was a violent assault by the defendant on the victim, which arose from a combination of the fact that the appellant had consumed alcohol and was obsessed with his ‘lost bag’.” Of those circumstances, Mr Egan said:[22]
31.Following an exchange with the judge, Mr Egan reiterated his submission in respect of the alternative verdict of indecent assault:[23]
32.Of his submission that one view of the facts open to the jury was that the “motivation for the appellant’s attack on her had nothing to do with a sexual motivation”, so that the appellant was not attempting to rape or indecently assault Madam X, Mr Egan said “he’s only guilty of either AOABH or common assault.” Then, the following exchange ensued with the judge:[24]
33.Subsequently, the judge returned to what he had described as the “simplest approach”:[25]
34.The judge did not object to the statement made by Mr Egan as to how he proposed addressing the jury in his closing speech. 35.Surprisingly, it was only at that juncture that the judge invited a submission from the prosecution. For the prosecution, Mr Arthur said that the prosecution had not and did not seek a verdict alternative to attempted rape.[26] Closing speeches 36.In his closing speech, Mr Egan make good his statement to the judge that he intended addressing the jury on the basis of the submissions that he had made as to the alternative verdicts available to the count of attempted rape. 37.First, in respect of indecent assault, he said:[27]
38.Secondly, Mr Egan contended, having regard to the fact that the prosecution had not laid an alternative count of causing grievous bodily harm, which itself permitted the alternative verdicts of assault occasioning actual bodily harm and common assault, that:[28]
39.Then, Mr Egan acknowledged that “…there is no question, and I’m not even going to insult your intelligence by suggesting that there wasn’t violence shown by the defendant to this old woman. There clearly was.” [29] However, he submitted that, even if in anger the appellant had punched the complainant in her private parts, such an attack was not sexually motivated and did not constitute indecent assault.[30] 40.It is clear that, although he made no specific ruling in respect of Mr Egan’s submissions, the judge made it clear to the parties that the only verdict that he was going to leave to the jury was in respect of the count of attempted rape. It is most regrettable that, albeit apparently with the tacit consent of the judge, Mr Egan was permitted to address the jury in his closing speech on the basis that an alternative verdict of indecent assault was available to them, albeit not made out on the facts. On the judge’s determination, it was not available to the jury. That could only have served to confuse the jury, leaving them perplexed. Summing up 41.In consequence of having permitted Mr Egan to address the jury in the way in which he did in his closing speech, it became necessary for the judge to give the jury specific directions as to the offence and verdict with which the jury was concerned:[31]
42.Subsequently, the judge directed the jury:[32]
The judge’s determination not to leave alternative verdicts to the jury 43.We are satisfied that the judge fell into error in not acquiescing to Mr Egan’s submission that the alternative verdict of indecent assault be left to the jury. With respect to the judge, he appears to have given undue weight to the manner in which the prosecution put its case, namely attempted rape or nothing.[33] As noted earlier, in directing the jury that they were to consider the count of attempted rape only, the judge said that “you are not asked by the prosecution to consider an offence of indecent assault.” Rather, in determining whether or not to leave an alternative verdict, the judge was required to have regard to “…all the evidence, disputed and undisputed, and the issues of law and fact to which it has given rise.” 44.In that respect, there were two aspects of the evidence of the complainant which were relevant. First, the context in which Madam X’s testimony that the appellant had swept and thrust his penis past her vaginal entrance on three occasions was highly relevant to the reliability of this part of her testimony. Her evidence was that she had never seen the appellant’s penis or seen him semi-naked. She kept her eyes shut tight, for fear that he would poke or scratch out her eyes. Secondly, it was her evidence that the appellant inflicted a separate sexual attack on her, namely striking her private parts with the palm of his right hand three or four times. She said that she heard and felt those slaps.[34] In the context of whether or not she knew the difference between a palm and a fist, the complainant said “Hand, slapping with a hand. I knew that.” [35] She denied that the appellant punched her.[36] 45.The evidence of Dr Foo, the pathologist was relevant to that evidence of the complainant. In his report dated 30 June 2015, he described his examination of the complainant as revealing that “reddish bruising was present almost circumferentially around the hymen.” It was his opinion that the injury could have been caused by rubbing by an erect penis during a sexual act. In his report dated 27 August 2015, Dr Foo said that “…blunt force trauma in the form of hitting the private parts by the suspect’s palm can produce the injuries concerned.” As the judge reminded the jury, in cross-examination Dr Foo “…agreed that an assault by the defendant by way of punches and kicks could also cause such kind of injuries.” [37] 46.Clearly, if the jury were not satisfied so that they were sure that the appellant had attempted sexual intercourse with the complainant, there was a realistic evidential basis on which they should have been invited to consider the alternative verdict of indecent assault on the basis of the complainant’s evidence that the appellant had slapped her private parts. 47.Realistically, Mr Egan had conceded in the defence case that the appellant had assaulted the complainant. That conduct was deplorable, the more so given the evidence that she was 63 years of age and of slight stature, namely 38.8 kg in weight and 131 cm in height. In those circumstances, having regard to the evidence adduced at trial and the defence case, the jury was presented with what Sir Igor Judge P. described as “the stark choice between convicting a defendant whose behaviour was on any view utterly deplorable, and acquitting him altogether.” That gave rise to a wholly unnecessary risk that the jury might have been persuaded to convict the appellant rather than acquit him altogether. That risk would have been obviated if the judge had directed the jury, as he should have done, that the alternative verdict of indecent assault was available to them. 48.As noted earlier, there was no dispute in this Court that the allegation of rape necessarily involves an allegation of assault and indecency, which are the essential ingredients of the offence of indecent assault. It is not a necessary ingredient that the assault involves occasioning actual bodily harm. Common assault suffices. So, the offence of assault occasioning actual bodily harm is not an alternative verdict available in a count of rape, whereas, in theory, a verdict in respect of the offence of common assault is available. However, as noted earlier “…not every alternative verdict must be left to the jury.” We are satisfied that, in the context of the matters in issue in this case, having regard to the “proportionality consideration”, the offence of common assault is to be regarded as “trivial or insubstantial”. With respect, the judge did not err in failing to leave that alternative verdict to the jury. CCTV 49.Finally, for completeness, we are satisfied that the judge was not required to give the jury any specific direction in relation to the approach to be taken to the CCTV film. It was common ground between the parties that the CCTV film was of “poor quality” or “very poor quality”.[38] Relevant to the approach to that evidence were the directions that the judge had given the jury in respect of speculation and the drawing of inferences. The judge gave the jury the standard directions that they “must not speculate about matters upon which there is no evidence” [39] and that they might only draw an inference adverse to the appellant if they were satisfied that it was the only reasonable inference to draw.[40] Mr Egan readily acknowledged that neither before the summing up nor at its conclusion did he invite the judge to give the direction, which he now submits was required of the judge. 50.We are satisfied that the ground of appeal advanced in respect of the necessity for the judge to give the jury a direction as to their approach to the CCTV film is a matter of mixed law and fact, for which the leave of this Court is required. For the short reasons we have given, we are satisfied that there is no merit in that ground. Accordingly, we refuse to grant leave to appeal on that ground. Conclusion 51.In the result, for the reasons that we have given, we allow the appeal and quash the appellant’s conviction for the offence of attempted rape. We are satisfied that, on the jury’s findings, the jury must have been satisfiedofthefactsthatconstitutetheoffenceofindecentassault against Madam X, contrary to section 122(1) of the Crimes Ordinance, Cap. 200. Accordingly, pursuant to section 83 A of the Criminal Procedure Ordinance, Cap. 221, we substitute a verdict of guilty of that offence. 52.We adjourn the hearing to 2:30 p.m. on 14 March 2017 to receive the submissions of the parties in respect of the sentence to be imposed on the appellant for the offence of indecent assault.
Ms Catherine Ko, SADPP, of Department of Justice, for the respondent Mr Kevin B. Egan, instructed by Haldanes, assigned by the Director of Legal Aid, for the appellant [1] Appeal Bundle; pages 532-3, counter #s 1232-7; and page 544, counter #s 1580-3. [2] Appeal Bundle, page 159 H. [3] Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 61, at paragraph 14. [4] Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 61, at paragraph 15. [5] R v Foster & other appeals [2008] 2 All ER 597, at paragraph 61. [6] Item 1, Schedule 1, Crimes Ordinance: “Procurement of another person by threats (section 119). Procurement of another person by false pretences (section 120). Administering drugs to obtain or facilitate unlawful sexual act (section 121).” [7] R v Hodgson & Others [1973] 57 Cr App R 502, at page 509. [8] Ho Hoi Shing v HKSAR, paragraph 12. [9] Ho Hoi Shing v HKSAR, paragraphs 14-5. [10] R v Foster & other appeals [2008] 2 All ER 597, at paragraph 60. [11] R v Foster & other appeals, paragraph 61. [12] R v Foster & other appeals, paragraph 61. [13] R v Foster & other appeals, paragraph 61. [14] R v Foster & other appeals, paragraph 61. [15] Appeal Bundle, pages 83 T - 84 C. [16] Appeal Bundle, pages 88 M-N; 94 Q-T and 97 C-J. [17] Appeal Bundle, page 67 M. [18] Appeal Bundle, pages 67 S - 68 G. [19] Appeal Bundle, page 89 C-F. [20] Appeal Bundle, page 132 A-M. [21] Appeal Bundle, page 133 F-I. [22] Appeal Bundle, page 134 B-E. [23] Appeal Bundle, page 139 M-P. [24] Appeal Bundle, page 140 F-L. [25] Appeal Bundle, page 142 J-O. [26] Appeal Bundle, pages 142 Q - 143 F. [27] Appeal Bundle, page 155 B-D. [28] Appeal Bundle, page 155 G-H. [29] Appeal Bundle, page 155 P-Q. [30] Appeal Bundle, page 172 R-U. [31] Appeal Bundle, page 6 M-O. [32] Appeal Bundle, page 24 E-I. [33] Appeal Bundle, page 140 G-Q. [34] Appeal Bundle, page 67 O-P. [35] Appeal Bundle, page 82 U. [36] Appeal Bundle, page 83 T-U. [37] Appeal Bundle, page 18 P-Q. [38] Appeal Bundle: closing speeches; page 145 H (prosecution) and page 159 T (defence). [39] Appeal Bundle; pages 3 Q-R and 4 S-T. [40] Appeal Bundle, page 5 R-T. |
Cases cited in this judgment
Further hearings and rulings under CACC 419/2015