HKSAR v. Qasir Jahanger

CACC 307/2018

[2019] HKCA 1448

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 307 OF 2018

(ON APPEAL FROM HCCC 427 OF 2017)

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BETWEEN

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REASONS FOR JUDGMENT

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1.This is an application for leave to appeal against conviction and sentence. On 31 August 2018, the applicant was convicted of attempted rape, contrary to sections 118(1) and 159G of the Crimes Ordinance, Cap 200, following a trial in the High Court before D’Almada Remedios J and a jury. On 28 September 2018, the applicant was sentenced to 9 years’ imprisonment.

2.On 5 September 2019 when the application first came on for hearing, I directed further transcripts of the lower court proceedings be obtained and adjourned the matter to 17 December 2019.  

3.At the hearing of the application on 17 December 2019 I granted the applicant leave to appeal against his conviction but refused him leave to appeal against his sentence. I said I would hand down my reasons for doing so at a later date.  These are my reasons.

The trial

4.At the end of the examination-in-chief of the complainant, “X”, the applicant discharged his legal team and thereafter represented himself.  As a consequence the judge had the difficult task of ensuring the applicant received a fair trial but at the same time managing the trial in a time efficient manner. 

5.After the applicant was convicted he accepted representation from Mr James Sherry for the purpose of his sentencing hearing and Mr Sherry represented him on the present applications.

The prosecution case

6.The attempted rape took place on 10 May 2017 inside a subdivided room, “Room A”, of a unit in a residential building in Sham Shui Po, Kowloon.  Room A was one of four sub-divided rooms in this unit.  The complainant, X, was a 58-year-old Vietnamese woman, living in Room A with her common law husband.  The applicant is a Pakistani national and is a Form 8 holder who was living with two other Form 8 holders who were the tenants of Room B.

7.The prosecution case alleged that the applicant knocked on the door of Room A and X opened the door, believing it was her husband.  When she saw it was the applicant she tried to close the door, but he forced it open.  The applicant then went into the room, closed the door and removed his jeans and underpants.  X saw that the applicant’s penis was erect and retreated to the bed.  The applicant then grabbed X’s legs and dragged her off the bed and held her down.  He took off her underpants.  He pressed her down onto the bed and tried to insert his penis into her vagina. 

8.X tried to escape from the applicant.  She struggled and cried out loud, moving her body, so as to prohibit the applicant’s penis penetrating her vagina.  The applicant then held his penis and ejaculated.  His semen sprayed towards X onto her dress, body and bed.  After that, the defendant left her room shirtless but with his underpants and jeans on. 

9.X immediately made a phone call to her husband.  She washed herself, her dress and her underpants. She got dressed and went out of the room to look for her husband who she encountered on the street as she was leaving the building.  She told him what had just happened and a report was then made to the police.

10.Proof that the sexual encounter between the complainant and the applicant was non-consensual came entirely from X’s testimony and so the prosecution case was wholly dependent on her credibility.  The evidence of her recent complaint to her husband was not relied on by the prosecution because the husband was unavailable to testify.  Her husband did, however, provide a statement to the police and this statement was taken by “PW5”.

11.In order to demonstrate that there was inconsistency between X’s evidence and the husband’s version in his witness statement, the applicant cross-examined PW5 on the contents of the husband’s witness statement. In an attempt to assist the applicant in asking questions more effectively, the judge directed PW5 to read out the relevant part of the witness statement so that follow-up questions could be asked by the applicant.  The passage that was read out was as follows:

“‘At 9.58 pm, on 10 May 2017, I received a phone call from my wife. My wife was very emotional and crying very severely. She told me to save her life. She told me that just now the WP who lived in the next-door, that is, room B, tried to enter our home by force and wanted to rape my wife. So I immediately returned home to look for my wife.’”[1]

The defence case

12.The applicant elected to give evidence but called no witness.  The applicant did not dispute entering Room A and engaging in a sexual encounter with the complainant in the course of which he ejaculated onto her bed.  What was at issue were the circumstances as to how he came to enter Room A and what took place in that room.

13.The applicant testified that prior to 10 May 2017, he had had sex with X on two prior occasions and on each occasion had paid her HK$200.  He said the dealings between them had always been consensual and he did not understand why X falsely accused him of the present offence.

The judge’s summing-up

14.In her summing-up, the judge reminded the jury of the alleged inconsistencies between X’s evidence and the husband’s statement as revealed in the course of PW5’s evidence:

“You have heard the defendant in his closing speech to you simply say that X is not a truthful witness, and he relies on inconsistent statements between herself and what her husband told PC Lee. You have heard that Officer Lee took a statement from her husband shortly after a police report was made, and Officer Lee told you what the husband had told him. Clearly, you know the husband was not in court to give evidence.

The defendant says these inconsistent accounts between X and what her husband told the officer shows she is not a truthful witness. You have heard that the husband said at about 9.58 pm on 10 May, he received a phone call from X, and she was very emotional and crying when she told him what had just happened, so he immediately returned home. And you will recall that in the statement he said he saw her at home. On the other hand, you have X giving evidence in court telling you that she was unable to reach her husband on the phone, but she sent him a message. She therefore went downstairs to look for her husband and found him nearby the building on the street. So because of these inconsistent statements the defendant asks you to find X not to be a credible witness.”[2] (Emphasis added)

The judge’s Reasons for Sentence

15.The judge referred to the case of Secretary for Justice v Leung Yuet Hung[3] and decided that her initial starting point should be 5 years’ imprisonment.

16.The judge then identified aggravating features that she concluded were present in this case.  These were that protection was not used, the attempted rape took place in the sanctuary of X’s home, force was used to gain entry to X’s home, X was of a senior age being 58 years old, and the applicant was a torture claimant with a criminal record.  Although the judge accepted that the applicant had desisted from raping X, she said that his conduct in ejaculating over X, was “grossly intrusive on X” [4].

17.The judge also considered the impact of the offence on X. The victim impact report on X stated that she suffered from post-traumatic stress disorder and a major depressive disorder.  The victim was severely disturbed by the offence and the effect on her was a long-term one.

18.A psychological report on the applicant was obtained and it revealed that the applicant was lacking remorse and insight into his problems, and the risk of his sexual reoffending was assessed to be at the high end of the moderate range.

19.The judge enhanced her starting point by 4 years to allow for all the aggravating factors and by this route arrived at a final sentence of 9 years’ imprisonment.

The Perfected Grounds of Appeal Against Conviction

20.Mr Sherry advanced the following four grounds of appeal against conviction.  In his first ground of appeal Mr Sherry complained that the judge erred by wrongly admitting into the evidence the testimony of PW5 as to what X’s husband had told him about X’s complaint as this evidence was hearsay and highly prejudicial.  In support of this ground of appeal Mr Sherry submitted that the judge did not properly and sufficiently direct the jury that the complaint made by X to her husband was hearsay evidence and was not evidence that a recent complaint had been made by X to her husband.  Mr Sherry argued that it was not enough for the judge to only remind the jury that the husband did not testify in court.

21.Mr Sherry submitted that there was nothing said by the judge to the jury that would have prevented the jury from relying on the contents of the husband’s statement as being evidence of the truth of Madam X’s claim that the applicant had attempted to rape her.

22.Mr Sherry further submitted, even though the judge in her summing-up had expressly reminded the jury of the inconsistencies between Madam X and her husband as to how they contacted each other and met up that evening would go to the credibility of Madam X, she failed to make it sufficiently clear to the jury that they could only use the husband’s statement for this limited purpose.  In this particular case, a carefully crafted hearsay direction was therefore necessary to avoid the risk of misuse by the jury.

23.In his second ground of appeal Mr Sherry asserted that the judge, having wrongly admitted, through PW5’s testimony, hearsay evidence of X’s husband’s claim that X had made a recent complaint to him, misdirected the jury:

(i)  on how to resolve the conflict between the hearsay version of the husband and the version given by X herself;

(ii)  by telling them that they were entitled to accept part of what a witness said thereby introducing a wholly unnecessary risk of the jury preferring the hearsay version of events given by PW5 in respect of the contents of the husband’s statement.

24.In his third ground of appeal Mr Sherry argued that by directing the jury:

“ In this case, you have the evidence of Officer Lee telling you that X told him what happened. The relevance of what X said happened to Officer Lee, if you accept that X told him that, is that it may show her conduct after the attempted rape was consistent with her evidence about it. That complaint may possibly help you on the question whether you can be sure she has told you the truth, so it may help you decide if what X said is the truth. The prosecution would have said that the complaint is entirely consistent with somebody who has attempted to rape her, that she should make the complaint a short time afterwards. So it is likely that X was telling you the truth about what happened that night because she went on to complain to PC Lee almost immediately after the incident”.[5]

the judge erred because the jury would be bound to infer that the judge believed X was telling the truth.

25.The applicant was unrepresented and so the prosecutor did not make, and is not permitted to make, a closing speech.  The complaint in this ground of appeal is that the judge, by making the comments she did in the italicised part of the paragraph, went further than was necessary to explain the prosecution case and effectively made the speech that the law does not allow the prosecutor to make.  This it was said resulted in an unbalanced summing-up.  

26.In his fourth ground of appeal Mr Sherry pointed out that the judge misdirected the jury on the law of “attempt” by telling them to adopt the ordinary meaning of the word and that attempting “means that he tried to penetrate X’s vagina with his penis”.  This direction, Mr Sherry submitted was a wholly insufficient and imprecise direction in law and, at a minimum, the judge should have directed the jury that they could only convict the applicant of the offence of attempted rape if they were satisfied beyond reasonable doubt that his actions towards X were more than merely preparatory to the commission of the full offence of rape.

The Perfected Grounds of Appeal against sentence

27.In respect of sentence, the only ground of appeal is that as the applicant had been convicted of only attempted rape the sentence is manifestly excessive.  Mr Sherry submitted that the judge was wrong in comparing the culpability of the applicant to that of the defendant in Leung Yuet Hung and following that case to impose on the applicant a sentence of 9 years’ imprisonment.  Mr Sherry asserted that the judge was wrong in adopting a starting point of 5 years and was wrong to find that the aggravating factors warranted an enhancement of this starting point by 4 years.    

The respondent’s submissions on conviction

28.Mr Nicholas Wong, Senior Public Prosecutor, for the respondent, opposed the application.  In respect of the first and second grounds of appeal, Mr Wong agreed that PW5’s evidence as to what the husband said in his witness statement about X’s complaint to him was hearsay evidence which was inadmissible.

29.Mr Wong submitted that the judge did not direct the jury that the contents of the husband’s statement constituted a recent complaint made by X or that it could be accepted as being the truth of what was said in it.  To the contrary, the judge specifically reminded the jury that neither PW5 nor the husband was present at the scene so their evidence could not be accepted as being the truth.

30.The judge’s directions to the jury in respect of the husband’s statement were to the effect that what the husband said in his statement as to the circumstances of X’s complaint to him could be contrasted with what X had said took place for the purpose of assessing X’s credibility.

31.In respect of the applicant’s third ground of appeal, Mr Wong submitted that a fair reading of the summing-up would reveal that in respect of the passage of which complaint was made, the judge was only making a summary of the prosecution’s position.

32.In respect of the fourth ground of appeal, Mr Wong fairly conceded that the judge’s direction on “attempt” was not in conformity with the requirements of the Judicial Institute’s Specimen Directions in Jury Trials.  However, he submitted that if what X said in evidence was accepted as true, then the applicant was doing something which was clearly more than merely preparatory to committing the offence of rape.  Consequently, the failure for the judge to direct the jury in conformity with the Specimen Directions was not material and did not lead to any miscarriage of justice in the present case.

The respondent’s submissions on sentence

33.Mr Wong referred to the number and seriousness of the aggravating features that were present in this case and to the impact of the offence upon the victim.  He submitted that there were more aggravating factors present in the applicant’s case than were found in Leung Yuet Hung.

34.Furthermore, the report of the Clinical Psychologist showed that the applicant lacked remorse and his chance of re-offending was assessed to be at the high-end of the moderate range.

35.Given all these matters, Mr Wong submitted that 9 years’ imprisonment cannot be said to be manifestly excessive.

Discussion: Conviction

36.The first and second grounds of appeal can be dealt with together.  What X’s husband stated in his witness statement was only admissible as evidence of recent complaint if the husband testified in court.  He did not.  However, that was not the reason reference was made to his statement. The prosecutor did not seek to adduce evidence of it in the examination-in-chief of PW5.  However, the applicant wanted to bring out the fact that what the husband had said in his statement was different to what X had said in her testimony.  His purpose was not to prove what X had told her husband.  All he wanted to establish was that there was an inconsistency between X and her husband and to argue that the inconsistency showed that X was an unreliable witness who should not be believed.

37.The judge tried to dissuade the applicant from pursuing this line of cross-examination as she did not see that, ultimately, it would be helpful to the defence case.  All it would achieve would be to emphasise that some form of recent complaint had been made by a distressed X and would likely, therefore, to be positively disadvantageous to the applicant.  However, the applicant was adamant and insisted on pursuing it.  As the applicant was unrepresented the judge allowed him to do so.  As it turned out, this was the only point the applicant relied on when he made his closing address to the jury.

38.The transcript of what was said in exchanges between the judge, the prosecutor and the applicant in the absence of the jury reveals that the evidence of the husband was not being admitted to prove that X had made a recent complaint to him and the details of that complaint.  The evidence of the husband was being admitted solely for the purpose of proving that this is what he said and that what he said was different from X’s testimony.  It was not, therefore, being admitted for a hearsay purpose.  

39.In these circumstances, it seems to me that in her summing-up, the judge had to ensure that the jury understood:

(i)  the statement of the husband could not be relied upon as evidence in the case and could not, therefore, be used by the jury to prove any fact and, especially, was not evidence of recent complaint to him;

(ii)  it could be used by the jury to determine whether there was an inconsistency between what the husband said in his statement had occurred in relation to the circumstances surrounding his contact with X and what X herself said in her testimony in respect of those circumstances;

(iii)  if the jury determined that there was an inconsistency between what the husband and X said then they could use the inconsistency in the course of assessing the credibility and reliability of X; and

(iv)  there was evidence of recent complaint by X to PW5 and this evidence could be used by the jury when assessing the credibility of X.  

40.Thus, the question is not so much whether inadmissible evidence was placed before the jury but rather whether in respect of evidence placed before the jury that was admissible for a limited purpose only, the jury were properly directed in respect of the limited purpose for which they could make use of it.

41.Having recited in brief terms the complaint by X as received by PW5 at the police station, the judge went on and said:

“So that is a complaint that X has made to PC Lee, that someone living next door to her attempted to rape her. Now, this complaint itself is not evidence of what actually happened between X and the defendant. The evidence that X told her husband and/or PC Lee what happened to her shortly after the attempted rape cannot, therefore, as a matter of law, be treated as evidence of the attempted rape. That is, as to how it happened or who committed it. That evidence is not independent of X herself. You will know that neither her husband nor PC Lee were present when the alleged rape, attempted rape, happened. They were not there that evening so they cannot give evidence on that. They can only give evidence as to the complaint she, X, made to them.”[6] (Emphasis added)

42.This direction to the jury is correct in so far as the evidence of PW5 on X’s complaint to him is concerned.  But the judge has also referred, in the same passage, to the evidence of the husband and appears to elevate his “evidence” to the same status as PW5’s testimony as though the husband’s “evidence” could be used as evidence of recent complaint to which the jury could have regard when assessing the credibility of X.

43.The question for me is whether it is reasonably arguable that the judge failed to tell the jury that the alleged complaint made by X to the husband could not be used as evidence of anything described in it and that it would not constitute evidence of the fact that a recent complaint had been made by X to her husband.  Furthermore, that the jury could make use of the husband’s statement only for the limited purpose of determining whether there was any inconsistency between what he said in it and what X said in her testimony in the course of them making their assessment of the credibility and reliability of X.

44.It was my view that these grounds are reasonably arguable and I granted leave to appeal in respect of them.

45.In respect of the third ground of appeal the applicant accepted that the judge was entitled to say what she said in that part of the passage that I have quoted at paragraph 24 of this judgment that is not in italics.  I agree that it was unnecessary for the judge to say what is quoted in italics and it would have been better if she had refrained from doing so.  But, I was of the view that it was not reasonably arguable that by these comments the judge’s summing-up was rendered unfair and unbalanced.

46.In respect of the fourth ground of appeal, I agreed with Mr Sherry that the judge did not correctly direct the jury on the law of attempt when she directed them to adopt the ordinary meaning of the word:

“In this case, members of the jury, the defendant is charged with attempting to have sexual intercourse with Madam X.  To use the ordinary meaning of the word “attempting” means that he tried to penetrate X’s vagina with his penis. 

So let us just look at the elements of this offence.  The first issue for you to decide, members of the jury, is, one, did the defendant attempt to have sexual intercourse with X?  So are you sure that the defendant used his penis attempting or trying to penetrate X’s vagina? If, after considering all the evidence, you are not sure, then it is your duty to find the defendant not guilty and you need not go any further.”[7] (Emphasis added)

47.The meaning of “attempt” is defined in section 159G(1) of the Crimes Ordinance, Cap 200 as follows:

“A person who, intending to commit an offence to which this section applies, does an act that is more than merely preparatory to the commission of the offence is guilty of attempting to commit the offence.”

48.The standard direction employs the language of the definition, namely whether an act is “more than merely preparatory” and there is no doubt that the safer course for a judge is to have recourse to the language of the section.  Had the applicant been legally represented I had no doubt that this element of the offence would not have been in issue.  I say this because, in the present case, the series of acts as alleged by X, if accepted in full by the jury, would undoubtedly pass the threshold of being an act that was more than merely preparatory to the commission of the offence of rape.  It seems to me that the judge was probably trying to avoid over-complicating a simple issue and, quite understandably, explaining a legal concept by reference to the facts of the case.

49.I was of the view that even if it is reasonably arguable that the directions of the judge on the law of attempt were incorrect and even if it is reasonably arguable that the erroneous direction amounted to an irregularity, in the rather unusual circumstances of this case, it is not reasonably arguable that this irregularity is material.  I refused leave to appeal on this ground. 

Discussion: Sentence

50.The starting point of 5 years’ imprisonment is in line with the authorities and in my view it is not reasonably arguable that it is manifestly excessive.

51.The 4 years’ enhancement of this starting point by the judge, I also consider to be not reasonably arguable as manifestly excessive.

52.The fact that the applicant was convicted of only attempted rape does not mean that the sentence must be less than the range of sentences normally imposed for commission of the full offence.  On this issue there is a helpful discussion of the case law in Sentencing in Hong Kong, 8^th edition by Cross and Cheung at [30-188] to [30-195], especially at [30-190].  I am not satisfied that it is reasonably arguable that the applicant’s sentence is manifestly excessive and I refuse the applicant leave to appeal his sentence.

Disposition

53.For these reasons I granted the applicant leave to appeal against his conviction, in respect of his first and second grounds of appeal only, but refused the application for leave to appeal against conviction in respect of his third and fourth grounds of appeal and his application for leave to appeal against sentence.  I reminded the applicant of his right to renew his application for leave to appeal against his sentence before the Court of Appeal and also reminded him that should he do so, and should the Court of Appeal find no merit in his renewed application, the Court of Appeal had the power under section 83W(1) of the Criminal Procedure Ordinance, Cap 221 to direct that part of the time he has spent in custody pending the determination of his appeal should not be reckoned as part of the term of his sentence.

Mr Nicholas Wong SPP, of the Department of Justice, for the respondent

Mr James Sherry, instructed by Mohnani & Associates, assigned by DLA, for the applicant