Tang Wai-tong and Another v. The Queen

CACC000144/1979

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Coram: Roberts, C.J., Huggins and McMullin, JJ .A.

Date of Judgment: 6 September 1979

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JUDGMENT

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Roberts, C.J.:

Introduction

1. The two appellants were convicted of rape after a trial lasting eight days before Baber, J. and a jury.

2. The first appellant, Tang, is aged 23 and has a clear record. The second appellant, Chiu, is aged 21 and has been convicted previously of two minor offences for which he was put on probation for two years.

3. Both were convicted of the rape of a girl called LI Lai-fong, who was aged 17½ at the time of the offence, which took place on the 7th June, 1978, in the Hoi Yuet Apartment House at Nathan Road in Kowloon.

4. Each appellant was sentenced to six years' imprisonment and seeks leave to appeal against conviction but not against sentence.

Crown Case

5. The Crown's case was that the young girl, Li (to whom we will refer hereafter as "the complainant"), met a girlfriend and the latter's husband at the International Restaurant in Kowloon. After they had spent some time in that restaurant together, in the early hours of the morning of the 7th June the three of them went to the Shing Ping Restaurant, which is in Nathan Road.

6. When the three of them arrived there, they found the restaurant crowded and were unable to get a table. However, the complainant noticed a group of young men sitting at a table, whom she knew from the time when she worked as a dance hostess for about a month at the Man Wah Ballroom, leaving it in the month before this offence took place.

7. One of the members of the group, a man called Ah Chuen, asked her to join the table. The restaurant being full, she and her friends did so. There seem to have been about five young men in the group at that time. Ah Chuen appears to have emerged as the most powerful voice in the group and the main organizer of the events which followed later that morning.

8. Ah Chuen paid the bill for the group and they left the restaurant about an hour later. On their way out, Ah Chuen suggested to the complainant that she should go for a joyride with him. She said that she did not wish to do so. Her two friends were still there at the time and it is said that they tried to make it clear to Ah Chuen that the complainant did not want to go with them. However, Ah Chuen told them that it was none of their business, and hailed a taxi for them, in which they went off, leaving the complainant with the group of young men who had been with them in the restaurant.

9. Ah Chuen then took the complainant by the arm and started to walk along Nathan Road, suggesting that they might play billiards. As they approached the entrance to the building next door to that in which the Shing Ping Restaurant was located, the complainant's attention was distracted by Ah Chuen, who purported to point out to her a party of police nearby. When she looked round, she was pushed inside the building and into a lift on the ground floor. The lift went to the eighth floor.

10. Inside the lift with her were Ah Chuen, a man called Ah Shing and three others, including the first appellant.

11. The complainant's story is that, inside the lift with this group of five men, she was told to sit down and not make any noise. She said that she lay on the floor of the lift and did not move but that when the lift got to the eighth floor, which was as far as the lift would go, she was bundled out of it. She was then struck on her chest and back two or three times by Ah Chuen and carried upstairs to the Hoi Yuet Apartment House, on the ninth floor.

12. When they got to the Apartment House they were met by a room boy. The complainant says that at that stage she was crying but that Ah Chuen explained to the room boy that she had drunk too much.

13. She said that she was taken into one of the rooms in the apartment house, where she was immediately joined by Ah Chuen, who raped her.

14. After he had finished, a second man, Ah Shing, came in and raped her also. Having done so, he took a bath in the bathroom which led off the room in which she was.

15. The Complainant dressed herself as Ah Shing was taking his bath, as she had done when Ah Chuen had left the room.

16. After Ah Shing left, she closed and "bolted" the door inserting the chain. Shortly afterwards she heard someone kicking at the door until it opened. There was evidence from a police officer, who examined the premises subsequently, to the effect that the chain on the door had been pulled away from its support on the wall side.

17. After the door was forced open, a third person came into the room. According to the complainant she knelt down and asked him not to interfere with her, which, according to her, softened him so that he did not do anything to her.

18. She identified him as one of the group who had been with Ah Chuen in the restaurant and also in the lift with her on the way to the apartment house.

19. After the third man left, another person entered whom she identified as the first appellant.

20. When he entered the room he asked her to strip saying that he would be the last one. At that time the light was on in the bedroom. The first appellant then raped her, after which he got up and left the room. Shortly afterwards, the third man, who had entered the room earlier but not raped her, came in again, took her to another room in the apartment house and left her there.

21. Soon afterwards, a fifth man entered that room, switching off the light as he came in. The complainant switched on the light in the bathroom in order to see his face. In her evidence she described him as follows -

"Immediately he covered his own face with his hand but I still had a glimpse of his look and I had the impression that he was probably an employee of that place."

After raping her he left the room. Soon afterwards Ah Shing entered, asked her not to report to the police and went away. A few minutes later, she herself left the apartment house, unaccompanied.

22. In elaboration of her original answer as to the identification of the second appellant as the fifth man who entered her room, she said that she was able to identify him because she had met him in the Man Wah Ballroom on two or three occasions and because she recognized him as the employee who opened the door for the group and showed her to the bedroom in the apartment house.

23. The complainant describes how, throughout the series of rapes, she pushed and struggled, periodically made noises of protest and was crying from time to time. These do not seem to have been very long or very loud noises or cries; nor do her struggles appear to have been violent or sustained.

24. After leaving the apartment house, early on the morning of the 7th June, she rang a friend of hers, a Miss Poon, and told her that she had been raped by four of her previous customers from the Man Wah Ballroom. The complainant asked Miss Poon to join her, but Miss Poon said she was tired and that they should meet later that day.

25. The complainant went home to bed and slept. In the evening she rang Miss Poon again and the latter came to her house and accompanied her to the police station to make a report. After being interviewed by police officers at the Mongkok Police Station, she was taken by them to the apartment house.

26. When the party arrived at the apartment house, she went with them to a room in which there was a television set and several people. There was some dispute as to the number who were there.

27. However, there is no dispute that in that room was the second defendant who was immediately identified by the complainant as the last of those who had raped her.

28. The defences put forward at the trial by the two defendants were totally different.

29. In essence, that of the first defendant was that he had sexual intercourse with the complainant but that he had paid Ah Chuen $100 for this purpose and that the girl had consented.

30. The first appellant, Tang, has told this story consistently since he first made a cautioned statement to the police on the 8th June, 1978. In that statement he admits that he had sexual intercourse with the complainant, but says that she did not resist.

31. The sole issue therefore, in relation to the first appellant, is whether or not the sexual intercourse which he admits having had with the complainant was with her consent or not. So far as this appellant is concerned, therefore, there can be no question of a mistake. Either the complainant or the first appellant was lying.

32. The defence of the second appellant is different. This is a complete denial that the second appellant had intercourse with the girl or, indeed, had anything whatever to do with her on the night in question.

33. Again, this is a story which he had told consistently since first interviewed by the police on the 8th June last year.

34. In a statement taken by Detective Constable Chan in the Mongkok Police Station at 3.10 a.m. on the morning of the 8th June the second defendant said

"I did not rape her. During the occurrence of the incident on that night I was sleeping until I got up the next day. HO Wai-sang told me that he had copulated with a female in turn last night in the Hoi Yuet Apartment."

35. Indeed, the second appellant's defence was not only that he had nothing to do with it but that this other man, Ho, about whom more will be said later, was the last man to have intercourse with the girl.

36. So far as the first appellant is concerned, as we have said, there was really no room for mistake. The conviction of the first appellant depended wholly upon the view taken by the jury as to the credibility of the complainant and that of the first appellant.

37. With regard to the second appellant, however, there was room for honest mistake by the complainant as to the identity of the last man who raped her.

Argument for the first appellant

38. Counsel for the first appellant raised four main grounds of appeal -

39. So far as the first ground of appeal was concerned, we are of the opinion that the direction given by the judge to the jury was adequate.

40. On page 218 of the record the judge says as follows to the jury:

"I think you know clearly what rape is: unlawful sexual intercourse - only the smallest amount of penetration is needed but that issue doesn't arise in this case; ejaculation is not necessary. Unlawful sexual intercourse with a girl, woman, knowing that she wasn't consenting to it freely and voluntarily and in full possession of her faculties or being reckless about whether she was consenting or not, not caring whether in fact she was consenting or not."

41. Immediately thereafter, the judge goes on to warn the jury in unambiguous terms that false allegations of rape are made from time to time and that this is a matter that they must clearly bear in mind when they are deciding this particular case.

42. At another passage in his summing-up at page 216 of the record the judge says:

"It is a defence to a charge of rape that the man concerned believed that the girl was consenting to it. The charge is expressed in the form that they either knew that she didn't consent to it or that they were reckless whether she consented or not. They just didn't care. It is a defence that the accused thought the girl consented even if in fact she didn't. You are entitled, as the Ordinance says, to take into account all the facts including whether that misapprehension was on reasonable grounds."

43. In our view, though these references are short, they are accurate and adequate.

44. The second main ground of appeal on behalf of the first appellant was that the judge's direction on the subject of corroboration was inadequate. He deals with this on page 219 of the record. I quote

"Because of the danger of false allegations and false convictions of rape, it is my duty to tell you that there are dangers in convicting a person of rape on the uncorroborated testimony of the complaining girl. And matters about which corroboration is desirable are whether there was consent or not - that's not any easy thing to provide corroboration of - and whether the person accused is in fact the person that had intercourse with the girl. The fact that the girl makes a complaint, even an early complaint, of being raped, is not corroboration of her story because it comes from her own mouth. Corroboration is independent evidence implicating in some measure the accused person. So you mustn't think the fact that she complained is corroboration, though it is, you may think some evidence of her consistency in her story. I don't think there is any corroboration of this girl's story as the term is understood in the law. But what I have given you is a warning, it's not a prohibition. Maybe that you were so satisfied with the truthfulness of this girl that you feel, notwithstanding lack of corroboration, it is quite safe to convict, and if you take that view, then you are quite entitled to convict. I simply warn you of the dangers."

45. We see nothing wrong in this direction of the judge, though it could be said to be too favourable to the defence. He makes it clear that corroboration is required and he directs them that there is none. In other words, the jury's decision must depend solely upon the view which they take of the credibility of the evidence given by the complainant.

46. The third main ground was that the judge inadequately directed the jury about the evidence of HO Wai-sang.

47. HO Wai-sang was a room boy in the apartment house where this offence took place. He gave oral evidence before the magistrate at the committal proceedings and his evidence was recorded and included in the depositions submitted to the High Court.

48. Unfortunately, when the time came for the trial, it was not possible to trace Ho and therefore his deposition was read in evidence.

49. It should be noted that the deposition was included in evidence at the instance of the defence, not of the Crown, the defendants not being separately represented at the trial.

50. In his deposition, Ho says that he was the room boy on duty at the Hoi Yuet Apartment House on the night of the 6-7th of June 1978 and that while he was on duty a group of young men arrived with a girl.

51. According to him, there was nothing unusual about the girl's demeanour when they arrived. Later on, however, he said he heard the sound of knocking on the door of the room into which the girl had gone and he heard the sound of crying and protests from the girl.

52. To that extent therefore, it could be said that his evidence gave some support to the girl's evidence that she had been struggling and crying out from time to time, while she was in the apartment house.

53. Ho adds that the second defendant was sleeping that morning and was not on duty at all. Therefore, if Ho's evidence is to be believed, the last man who raped the complainant could not have been the second defendant.

54. The deposition of HO Wai-sang having been properly taken before the magistrate, there is no doubt that it was properly admissible in evidence at the trial. The judge dealt with it at some length at pages 222-224 of the record.

55. It was submitted to us, however, that the judge should have warned the jury that, because of the absence of cross-examination of Ho when he gave his evidence, it should be approached with great caution and given a lesser weight than evidence obtained by oral testimony before the jury.

56. We do not consider that any such obligation lies upon the judge, though it would have been better, no doubt, if he had drawn their attention again to the absence of questioning of Ho, and had, in addition to referring to it as a mixed story, explicitly said that if they disbelieved Ho's evidence in relation to the second defendant, this would cast doubt upon that part of the remainder of his evidence which relates to the first defendant.

57. So far as the jury were concerned, this was part of the evidence put in front of them, and, as they were reminded more than once by the judge, they were the judges of fact and it was for them to give such weight to the evidence as they thought fit.

58. It is clear that, at least insofar as the second appellant is concerned, they rejected the evidence of Ho. Had they accepted it, they must have found that the second appellant was not one of those who raped the complainant.

59. It is possible, therefore, to draw an inference that it is most unlikely that they would have given substantial weight to it in relation to the first appellant either.

60. They had already been told that there was no corroboration of the girl's complaint. Thus they could not have regarded the passage in Ho's deposition to the effect that the girl was heard crying and protesting as corroboration in law.

61. Nevertheless, that evidence being before them, they may have taken it into account in assessing the credibility of the girl.

62. However, Ho's evidence only covers a late stage in the proceedings and the jury must have accepted in essence the girl's story of how she was bundled from the street into the lift, out of the lift, up the stairs and into a room, in view of their conviction of the first appellant.

63. Had they not been, in general terms, satisfied with her veracity, on matters which are not in any sense corroborated by the evidence of Ho, they could not have convicted the first appellant.

64. In the result, therefore, we do not feel that the absence of any warning about the effect of Ho's evidence could have had a significant effect on the jury's mind.

The fourth ground was that the verdict was unsafe and unsatisfactory by reason of a number of factors, all of which were matters which were put clearly before the jury.

65. It is said that the complainant was a ballroom hostess and had some sexual experience; that the circumstances were consistent with sexual adventure; that her story of being pushed into the lift was improbable; that her story of the assault in the lift was unlikely in the absence of injuries; that her story of having had her clothes forcibly removed was inconsistent with their undamaged state; that she had no injuries, save for a small bruise, and that she should have had if she had been subjected to a series of forcible acts of sexual intercourse.

66. All these factors, it was urged, should have led the jury to feel that it was unsafe to convict the first appellant, since the circumstances were equally consistent with the girl having indicated to the group initially that she was willing to have sexual intercourse but withdrawing her consent at some time during the morning, perhaps after the first two men had had intercourse with her.

67. It is said that, on the authority of The Queen v. Cooper⁽¹⁾ these various unsatisfactory features added together should leave in our minds a lurking doubt that the conviction was wrong.

68. Since the amendment to the Criminal Procedure Ordinance, which included the ground of unsafe and unsatisfactory as a reason for interference by an appellate court with a conviction, it has been open to us, in effect, to substitute our verdict for that of the jury where we are uneasy about the conviction and feel that an injustice may have occurred.

69. Cooper's case decides that we should interfere if there is a "lurking doubt" though that phrase has not been interpreted, so far as we know.

70. We think that the lurking doubt formula must be applied with great caution. An appellate court, reading papers and not seeing witnesses in the way that a jury does, must be cautious in imposing its subjective feelings for the conclusions reached by men and women who have had the advantage of seeing the witnesses and assessing their credibility.

71. In our view, "lurking doubt" means not an insubstantial doubt but a substantial remaining doubt.

72. We are not satisfied that, in regard to the first appellant, there is such a doubt in our minds as would justify us in interfering with the verdict of the jury.

73. The application of the first appellant for leave to appeal against conviction is refused.

Grounds advanced on behalf of the second appellant

74. We propose to deal only with two of the grounds advanced on behalf of the second appellant. Firstly, that the judge was wrong in law and in fact in allowing the identification evidence relating to the second appellant to go to the jury when it was dangerous to do so. Secondly, that in all the circumstances it was unsafe and unsatisfactory to allow the conviction to stand.

75. The case against the second appellant rests wholly upon the identification of him by the complainant as the last of the group who raped her.

76. In evidence-in-chief, when describing how she identified him, she said that the last man came into the room when the light was off, but that out of curiousity she went into the bath-room and swtiched on the light. "Immediately he covered his own face with his hand but I still had a glimpse of his look and I had the impression that was probably an employee of that place."

77. This is a rather odd phrase to use and shortly afterwards counsel for the Crown very properly asked her what she meant by this, and she said: "I was talking in terms of his build and his appearance, his complexion. I had a glimpse when the light was on for a short period. I was able to recognize him because he was the one who I had met in the Man Wah Ballroom."

78. She went on: "he was the employee who opened the door for us and after that led those people to the rooms." Later in her evidence she said that she had met him on two or three occasions in the ballroom.

79. When she returned to the lodging house with the police on the evening after the incident, she identified the second appellant as the last of the group who had raped her.

80. She picked him out, in the company with police officers, in one of the rooms in the apartment house. She and one of the police witnesses asserted that there were about four persons in the room when she identified the second appellant, though another police officer gave evidence that there were only one or two people in the room at the time.

81. The trial judge was clearly well aware of the dangers of identification evidence. He referred in detail to Turnbull ⁽²⁾ in his summing-up and it would be wrong not to assume that he was equally aware of it when ruling that the question of identification should not be withdrawn from the jury. Indeed, counsel had drawn his attention to it shortly before.

82. In effect there are three grounds for the recognition by the complainant of the second defendant. Firstly, that she had seen him as a customer in the ballroom on two occasions some time before. Secondly, that he was the person who let them into the apartment house. Thirdly, that she swtiched on the bathroom light and caught a glimpse of his face.

83. In relation to these three grounds, it was said that the first one was of little value since it would not be easy for a ballroom hostess to recall the appearance of one of her many dance partners. As to the second, it was said that it was unlikely, if her story was correct that she was about to be raped by a group of young men and was already struggling against it, that her observation of the boy who opened the door and led them to the room would have been accurate. As to the third, it was argued that she was in a state of extreme distress when the light was switched on and that, at best, she only had a momentary glimpse of the face of her assailant.

84. It was also submitted that her recognition of him the following evening was not of great value, since there were very few people in the room in the apartment house when she identified him; and that, although at an identification parade she failed to identify Ho, she was never asked to see Ho and the second appellant together and make a choice between them.

85. The identification by the complainant has unsatisfactory features. However, can it be said that the quality of the identifying evidence was so low that the matter should have been withdrawn from the jury? To reach this conclusion, we would have to form the view that no reasonable jury could have convicted the second appellant, at that stage, on the basis of the complainant's identification of him.

86. We do not feel that it could reasonably be said that the quality of the identification evidence was so low that the judge ought to have withdrawn the matter from the jury at that stage. On the papers we cannot say that we would have been surprised had he done so. But he saw and heard the complainant and we cannot say that his failure to withdraw the case was an improper exercise of the discretion in the matter which rests with a trial judge.

87. This is, however, not an end of the matter because if, as we find, the second appellant fails on the first main ground of his appeal, we still have to consider the second i.e. is there a lurking doubt in our minds as to correctness of the verdict.

88. The trial judge was well aware of the dangers of identification. In the course of his summing-up, he referred to Reg. v. Turnbull ⁽²⁾. At page 231 of the record the judge says:

"Mr. Bernacchi read to you pieces from a leading judgment about identification evidence in the case of Turnbull",

The judge quotes a passage of Turnbull which refers to the jury having to be warned of a special need for caution before convicting in reliance upon the correctness of identification. He directs them that they must consider a number of matters when assessing the reliability of the identification of the second defendant by the complainant.

89. Indeed, he puts to the jury the substance of the questions which Turnbull suggests ought to be brought to their minds, where identification is in issue.

90. Not only does he draw their attention to these various factors. He reminds them of the defence of the second appellant that the room boy who received them in the apartment house may well have been HO Wai-sang and not the second appellant at all. And finally, he tells them that there is a difficult problem of identification so far as the second accused is concerned saying "and you will have to resolve it as best you can."

91. We therefore cannot see that the direction given by the trial judge on the question of identification was in any way inadequate.

92. The remaining question is whether, notwithstanding that the question of identification was properly put to the jury, the conviction of the second appellant, based only on identification by the complainant was so unsafe that we should interfere with it.

93. To decide this, we must look at the additional evidence which was put before the jury after the close of the Crown's case.

94. This consists firstly of the evidence of the second appellant himself; secondly of the evidence of Ho to which we have already referred; thirdly of the evidence of the first appellant.

95. The second appellant, when he gave evidence, maintained the story which he had told to the police at the time when a statement was first taken from him on 8th June. In effect, he said he was not on duty that night, that he slept all the way through the incident, and that he knew nothing whatever about it at all.

96. He admitted that he had met the complainant on two or three occasions in the Man Wah Ballroom sometime in May. This the jury might well have thought was very much in his favour, since it would indeed have been easy for him to deny ever having seen her before at all. He also said that HO Wai-sang had spoken to him and had admitted that he, Ho, had had sexual intercourse with a prostitute in the apartment house the evening before.

97. We have already referred to the evidence of Ho. His deposition contains evidence which, if believed, would entitle the second appellant to an acquittal. Ho says that it was he that was on duty as room boy on the night in question and that the second appellant was sleeping in Room 903 throughout that night.

98. The first appellant also gave evidence to the effect that the second appellant was fast asleep at the time when the intercourse was going on. Indeed, he said that he went to a room in the apartment house, switched on the light, and saw the second appellant fast asleep there. He added that the room boy who received the party into the apartment house was another person and not the second appellant.

99. Thus the defence adduced substantial evidence that the second appellant was not on duty at the apartment house on the night in question. and therefore was not the last of the assailants. We have already indicated our view that the quality of the identifying evidence was sufficient to allow the matter to go to the jury. However, we cannot say that the identifying evidence, though sufficient to establish a prima facie case, was strong enough to have stood up against the substantial evidence to the contrary which was given for the defence.

100. We cannot but feel that there is a real danger that injustice may have been done to the second appellant. We cannot go so far as to say that no reasonable jury could have convicted the second appellant after weighing up all the evidence put before them. Indeed, we do not have to say that the jury was wrong in its verdict.

101. We do not think the direction was inadequate or unsatisfactory. We do not think that the matter of identification should have been withdrawn from the jury. There was evidence which, at least in the absence of contradictory evidence for the defence, might have justified a conviction. But when the defence evidence is added to that of the Crown, we feel ourselves left in doubt as to whether or not injustice might have been caused to the second appellant.

102. In these circumstances, we give leave to the second appellant to appeal and quash the conviction against him.

Representation:

Corrigan (Hampton, Winter & Glynn) for 1st appellant

Bernacchi, Q.C. & Whitehead (D.L.A.) for 2nd appellant

Daw for the Crown/Respondent

(1) 53 Cr. App. R. 82.

(2) 63 Cr. App. R. 132.