HKSAR v. C.T.

Press Summary (English)

Press Summary (Chinese)

FACC No. 25 of 2018

[2019] HKCFA 26

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 25 OF 2018 (CRIMINAL)

(ON APPEAL FROM CACC NO. 221 OF 2016)

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REASONS FOR JUDGMENT

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The Court:

1.At the conclusion of the oral argument the Court ordered that the appeal be dismissed.  What follows are our reasons for supporting that order.

The Trial

2.Part XII (ss 117-159) of the Crimes Ordinance (Cap 200) is headed “Sexual and Related Offences”.  Section 118(1) states:

“A man who rapes a woman shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life.”

Section 4B of the Evidence Ordnance (Cap 8) abrogates any requirement for the judge at a trial of an offence under Part XII to give the jury a warning about convicting the accused on the uncorroborated evidence of the complainant.

3.The appellant stood trial in the High Court before Barnes J and a jury of 7 on five counts of rape of a girl (X), born in 2003.  The particulars of the offences specified rental premises in the New Territories (“Room D”) of which the appellant was the landlord.  The appellant contended that the whole case against him was fabricated, that X’s mother (Y) was his “kept woman”, that he had been supporting Y and X, and that Y had abetted X to accuse him falsely of rape with a view to extorting further money from him.    

4.For counts 1 and 2 the particulars included the phrase “on an unknown date in March 2014”, count 3 “an unknown date between the 1^st day of April 2014 and 31^st day of May 2014, both dates inclusive” and for count 4 “an unknown date in May 2014”.  Count 5 was unique in identifying a specific date, 4 June 2014.  At the trial on 22, 23 June 2016 the appellant was convicted on counts 1, 2, 3 and 4 by a majority verdict of five to two.  The appellant was sentenced to imprisonment for a total of 10 years.  He was, significantly, unanimously acquitted of count 5. 

5.Barnes J had given her directions to the jury in Chinese and references in these reasons are to the English translation.  She observed in her directions to the jury that “the evidence is most basically the oral evidence of only two witnesses…just X and the Defendant”.  With respect to count 5 the appellant had given evidence of a specific alibi.  He contended that at the time of the offence charged in count 5, around 1 pm on 4 June 2014, he could not have been in Room D.  This was because at that time he was negotiating with one Madam Lee for the renting of another room, he signed a lease with her, and, during this period, he had 11 records of phone conversations with other people.

Appeal to the Court of Appeal

6.Section 82(2)(b) of the Criminal Procedure Ordinance (Cap 221) (“the Procedure Ordinance”) provides for an appeal, with the leave of the Court of Appeal on, inter alia, any ground which appears to the Court “to be a sufficient ground of appeal”.  An application by the appellant in respect of his four convictions was dismissed by the Court of Appeal (Yeung VP, Poon JA, Chan J) in a comprehensive judgment, dated 8 December 2017 and extending to 80 paragraphs.

7.Section 83(1)(a) of the Procedure Ordinance provides for a conviction to be set aside “on the ground that under all the circumstances of the case [the conviction] is unsafe or unsatisfactory”.  The Court of Appeal refused to grant leave to appeal because it did not find anything unsafe or unsatisfactory in the convictions of the appellant.

8.In particular, the Court of Appeal rejected the appellant’s submissions that because the jury found him not guilty on count 5 this rendered his conviction on the counts 1-4 unsafe and unsatisfactory.

Appeal to this Court

9.On the application to this Court for leave particular reliance was placed upon what appeared to be a direction required by R v Markuleski[1], and upon the outcome in Jones v The Queen[2] where, the High Court of Australia held that, given the acquittal on one count of sexual intercourse with a female child, it was not open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt of guilt on the other two counts.

10.On 15 November 2018, this Court granted leave to appeal from the Court of Appeal on two questions of law:

(1) Although the standard direction to the jury is that they should consider each count in the indictment separately and may accept part of a witness’s evidence and not accept other parts of the same witness’s evidence, should that direction be qualified in cases of sexual offences where the only direct evidence of commission of the offences is that of the complainant and, if so, how?

(2) What is the proper approach of an appellate court to inconsistent verdicts in cases of sexual offences where, although not logically inconsistent, they are based on the uncorroborated evidence of the complainant?

11.This Court also granted leave “on the basis that it is reasonably arguable that the different verdicts of the jury on the indictment against the [appellant] resulted in substantial and grave injustice being done to him”.

12.On his appeal, the appellant sought an order quashing his conviction on counts 1-4, having regard to what he submitted was the correct approach to the impact of acquittal on count 5.

Question 1 - Markuleski Direction

13.With respect to Question 1, in his Written Case the appellant relied in particular on what was said by Spigelman CJ in R v Markuleski[3].  The passages in question read:

“184. … I express considerable reluctance to add to the number of directions and warnings which trial judges are already required to give. McHugh J noted in KRM v The Queen [(2001) 206 CLR 221 at 37]: ‘The more directions and warnings juries are given the more likely it is that they will forget or misinterpret some directions or warnings.’

185. Nevertheless, the case law on inconsistent verdicts, particularly in the context of sexual assault cases but not limited to that context, indicates that there is a recurring difficulty in this respect. It may appear to be obvious that a reasonable doubt about one aspect of a complainant's evidence ought to be taken into account when assessing that witness's evidence on other matters. However, there have been a significant number of cases in which courts of criminal appeal have acted on the basis that the jury may have failed to do so.

186. In the light of the number of cases it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count.

…

187-190

…

191. The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case. The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant's evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to other counts.” (italics added)

14.In his judgment in KRM McHugh J (with the other members of the Court) rejected the submissions that on the trial of multiple counts of sexual offences against the same complainant the judge was obliged to direct the jury that if they found the accused guilty on one or more counts they could not use that finding to reason that the accused had a propensity making him likely to commit the offences charged in the other counts.  While Markuleski is not immediately directed to a propensity warning, McHugh J’s following observations are in point.  He said[4]:

“It has become the standard practice in cases where there are multiple counts, however, for the judge to direct the jury that they must consider each count separately and to consider it only by reference to the evidence that applies to it (a ‘separate consideration warning’). The universal giving of a separate consideration warning and the omission of a universal propensity warning indicates that the giving of a separate consideration warning is ordinarily sufficient to avoid miscarriages of justice in cases such as the present. This indication is confirmed by the many cases where juries acquit accused persons of some charges and convict them of others where the presentment contains multiple counts involving the same or similar offences.”

15.The nature and effect of the “separate consideration warning” will be considered below when dealing with Question 2.

16.The italicised passage from Markuleski set out above at para 13 above may suggest that the supplementary direction is mandatory.  That is not how the matter has been considered in subsequent appellate decisions in Queensland, New South Wales, Victoria and Western Australia which were collected and discussed by Keane JA (as he then was) in R v Ford[5]. Rather, as his Honour pointed out, it is not the position that “the Markuleski direction is always necessary, or even desirable, as a counterweight to the ‘separate offences’ direction”; it must first be clear that the risk of unfairness to the accused “has truly arisen”.  The New South Wales Court of Criminal Appeal in DF v The Queen[6]  recently referred with approval to the judgment of Keane JA.

17.It may be noted that in Ford[7] Keane JA had approved a statement by Buchanan JA in R v PMT[8] (with citations omitted):

“I think it unlikely that a jury given a separate consideration direction will be entirely uninfluenced by the impressions they derive from the evidence of a witness taken as a whole; I doubt that such a natural tendency needs judicial encouragement in the form of a Markuleski direction. Further, I am of the opinion that the proposed direction is likely to promote propensity reasoning and produce confusion rather than assist a jury to properly evaluate the evidence. In my view, in this case it was well within the ability of the jury to assess the evidence of the complainant in the light of their own experience and with the benefit of the addresses of counsel, without the necessity of the warning advocated by counsel for the applicant.”

18.Further, in England the Court of Appeal in R v Fanning[9], with reference to MacKenzie v The Queen[10], reaffirmed that the constitutional position of the jury includes an ameliorative aspect which allows for a “merciful” view of the facts on one or more of a plurality of counts.

19.We are of the view that Ford and Fanning put Markuleski properly in context.

20.Several points are to be made respecting what on this appeal was the appellant’s approach to Markuleski.  First, correctly, the appellant did not contend that the extended direction is necessarily required in word against word cases.  Rather, it was submitted in the Written Case (para 20) that:

“[The] approach suggested in Markuleski allows the trial judge to tailor the direction to suit the individual circumstances of each particular case, and if necessary, to give strong direction to the jury that if they acquit on one count, it is very difficult for them to convict on other counts. This allows the judge to give suitably strong direction to the jury to acquit without usurping the function of the jury, while avoiding the danger of asking the jury to use the guilt in one count to add to the propensity of the defendant in committing the offences in the other counts.” (italics added)

21.Secondly, at the trial the jury sought assistance with several questions and counsel for the appellant saw this as indicating that the jury was not sure as to on how many of the charges they were inclined to return a guilty verdict.  Counsel sought from the trial judge a direction that:

“If they have a reasonable doubt about the girl’s evidence on any of the rape charges, they must take that reasonable doubt into consideration when [they] consider the other charges.”

Her Ladyship responded with a proposed direction and counsel reacted:

“Right, [they] have to consider whether the evidence that makes them cast doubt on the girl would affect her evidence in respect of the other charges.”

Her Ladyship then gave a direction with particular reference to count 5: 

“Whether the situation of the fifth count is slightly different from those of the first, second, third and fourth, you people will have to consider whether it will affect the evidence in the case; [whether] it might not necessarily affect the first, second, third and fourth. This is for you to decide. But what is the most important thing: Most importantly, what [you] have to bear in mind is that there is no other evidence to support [the version of] this witness.”

22.Thirdly, in the appellant’s Written Case counsel contends that the direction did not go far enough.  Paragraphs 27 and 28 state:

“27. It is respectfully submitted that the learned judge should have directed the jury that: -

(i) They may think that there is nothing to distinguish the evidence of [X] on the 5th count and the other counts.

(ii) They may think that the Appellant’s alibi evidence is so credible that it is difficult to convict on the 5th count.

(iii) Because [X] did not give specific dates of the offences in counts 1-4, it is impossible for the Appellant to call alibi evidence on counts 1-4, which is a serious disadvantage to the defence.

(iv) If they find a reasonable doubt in [X’s] evidence in relation to count 5 they must take that into consideration of X’s credibility in relation to counts 1-4, and they may believe that it is difficult to see how [X’s] evidence could be accepted in relation to counts 1-4.

(v) If they find the Appellant not guilty on the 5th count, they may consider it very difficult to find him guilty on any of the other counts.

28.     In the circumstances, because of the inadequate direction to the jury as indicated above, the Appellant has not been given a fair trial and therefore the conviction should be quashed.”

23.At the trial counsel had not sought to invite the trial judge to expand the direction she did give by a further detailed direction as set out above.

24.Given these circumstances is there substance in the above submission that the appellant was denied a fair trial?  The answer must be in the negative.

25.Question 1 asks whether the “separate offences” direction should be qualified in cases of sexual offences where the only direct evidence of commission of the offences is that of the complainant, and, if so, how?  The qualification, if necessitated by the state of the evidence, would be a Markuleski direction, usually in terms to the effect of the directions sought and given in the present case.

26.The necessity for such a direction may be urged by counsel, or, the issue may be raised by the trial judge for consideration and submissions by counsel.  The direction is not lightly to be given and the use of the term “necessary” indicates the overarching criterion of the conduct of a fair trial.  Whether the state of the evidence raises that necessity is determinable only on the specific circumstances.  The approach of the trial judge in this case provides a positive example of the necessity.  The judge gave the direction to the jury that was requested of her.

27.The terms in which the direction is given will be indicated by the state of evidence in the case.  Whether in this case, if then sought, it would have been appropriate for the trial judge to give a direction in the detailed terms now sought by the appellant’s counsel is a question upon which, at this distance from the trial, this Court should not enter.  It was not obvious that such a direction should have been given.

Question 2 – Inconsistent Verdicts

28.We turn now to Question 2 and inconsistent verdicts in sexual cases.

29.In MacKenzie v The Queen[11] the High Court of Australia observed:

“A distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency. The former will generally be easier to resolve. On the face of the court's record there will be two verdicts which, in law, cannot stand together. Examples include the case where the accused was convicted both of an attempt to commit an offence and the completed offence[12] or of being, in respect of the same property and occasion, both the thief and the receiver[13] . There are other like cases[14]. Where technical or legal inconsistency is established, it must be inferred that the jury misunderstood the judge's directions on the law; compromised disputes amongst themselves; or otherwise fell into an unidentifiable error. The impugned verdict or verdicts must be set aside and appropriate consequential orders made.”

30.The issue on this appeal concerns “factual inconsistency” which is said to arise between different verdicts against the same accused.

31.In R v Fanning[15] the English Court of Appeal reaffirmed, with respect to an argument on an appeal that the jury had returned inconsistent verdicts, the requirement associated with remarks of Devlin J (as he then was) in R v Stone[16] and their adoption by the Court of Appeal in R v Durante[17].  The criterion is that no reasonable jury which had applied their minds properly to the facts of the case could have returned the verdict called into question.  In Fanning the Court of Appeal rejected those English decisions given after Stone which indicated that verdicts could be treated as inconsistent because the jury was satisfied about some parts of the evidence given by a witness but unable to be sure to the requisite standard as to other parts of that evidence.[18]

32.In Hong Kong Durante was adopted in R v Cheng Man To[19], as explained by the Court of Appeal in HKSAR v Wu Wing Hong[20].  It follows from the disposition of the present appeal that this remains the position in Hong Kong and Question 2 is to be answered accordingly.

33.In Cheng Man To[21] the appellant was convicted on two counts of incest with his daughter and acquitted on six counts in the one indictment.  It appeared to the Court of Appeal that “being very careful” the jury had not been prepared to convict on charges not relating to specific dates and had convicted only where the complainant alleged specific dates.  However, cases will arise where different verdicts on counts in sexual offences cases are held to be irreconcilable and “an affront to logic and common sense”.[22]

34.In Australia, the decision in Jones v The Queen[23] was read by the New South Wales Court of Criminal Appeal in R v RAT[24] as adding to the “separate offences” direction referred to above at para 14 in cases of multiple counts of sexual assault where the only direct evidence was that of the complainant.  In RAT the Court held that in such cases, if the jury is not satisfied to the criminal standard upon one or more counts, and there is no independent evidence respecting the other counts, they must acquit on all counts.  However, subsequently in MFA v The Queen[25] the High Court held that it was erroneous to treat Jones as authority for the proposition that not guilty verdicts on some counts necessarily support a conclusion that the complainant was untruthful and unreliable and so was of damaged creditability.  Jones was to be treated as deciding that on its facts the necessary justification in logic and reasonableness was missing.

35.In MFA[26]  Gleeson CJ, Hayne and Callinan JJ emphasised of a verdict of not guilty in a case of sexual offences:

“It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.”

36.On the hearing of the present appeal it became clear that counsel for the appellant accepted Stone and Durante, and founded the appellant’s case on the submission that, given the acquittal on count 5, no reasonable jury could have returned a guilty verdict on counts 1-4.

37.The appellant pointed to several matters which together were said to provide a sufficient basis for that conclusion, but the respondent cogently countered these submissions.  First, the absence of corroboration of the evidence of the complainant was a feature of many sexual offence cases and while a relevant factor could not of itself be decisive. Secondly, there had been no undue delay, the alleged offences being committed in 2014, the indictment preferred on 22 October 2015 and the evidence of X at the trial being given in June 2016.  Thirdly, there had been an apparent difference in the quality of X’s evidence; counts 1-4 were included in the letter written by X to herself, referring to events of April-May, but count 5, placed in June was not mentioned; count 5 was pleaded with reference to a specific date, which had been contradicted by the appellant’s asserted alibi; the alibi and the omission from the letter were considered in the summing up and should be taken to have been considered by the jury.

38.The acquittal on count 5 may reflect the cautious approach described in the passage from MFA quoted above in para 35. Viewed overall the differing verdicts in the present case were not inconsistent such as to necessitate intervention on appeal.

Substantial And Grave Injustice Not Established

39.There being no departure from any norm of substantive or procedural law, it follows that the appellant failed to establish that his conviction resulted in substantial and grave injustice being done to him.

Mr Wong Man Kit SC and Mr Joe Chan, instructed by Foo & Li, for the Appellant

Mr Martin Hui SC, Consultant Counsel and Mr Ivan Cheung, SPP, of the Department of Justice, for the Respondent