Cheung Ting-wai v. The Queen
Read the full judgment text of CACC 160/1979 on BabelCite. This Court of Appeal judgment was delivered on 1 October 1979.
1. The appellant, CHEUNG Ting-wai, was charged before the High Court upon an indictment containing a single charge of rape.
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CACC000160/1979
----------------- Coram: Roberts, C.J., McMullin, J.A. & Leonard, J. Date of Judgment: 1 October 1979 ----------------- JUDGMENT ----------------- McMullin, J.A. : 1. The appellant, CHEUNG Ting-wai, was charged before the High Court upon an indictment containing a single charge of rape. 2. On the 16th of January 1979 by the unanimous verdict of the jury he was convicted of attempted rape of the complainant, Lioe Allen Djunaidi, a young Indonesian Chinese woman. 3. The appellant is a married man who came to Hong Kong from China in 1975 with his wife and two young children. At the time of the alleged offence he was about 40 years of age. He has no previous criminal record. 4. The appellant did not give evidence at the trial but it was not disputed that, at the date of the occurrence with which we are concerned, he had been in practice for some time as an unlicensed medical practitioner having had some form of medical training in Mainland China. 5. The complainant runs a beautician establishment in Indonesia. She trained for this occupation for some 2½ years in Hong Kong commencing in 1971. Thereafter she trained for another 2 years in London. In 1976 she visited Hong Kong with her parents for a holiday. She and her parents returned to Hong Kong for a holiday in May 1978. She was then suffering from a troublesome haemorrhoid and her aunt, POON Lai-chun (who lives in Hong Kong), recommended the appellant as a person qualified to deal with such an ailment. The complainant was taken by another relative to see the appellant at his premises in Tsuen Wan on the 17th of May. The appellant examined her alone in a room fitted out as a surgery or consulting room. The examination, which involved inspecting the anus, was carried out with perfect propriety. He told her that he could treat the condition and asked her when she would like the operation carried out. An appointment was made for the following day. 6. On that day - the 18th of May - her aunt POON Lai-chun went with her and waited in the waiting room while the appellant took the complainant into his consulting room and closed the door. 7. The complainant's account of what happened thereafter is as follows : she was given some tablets which she consumed and which made her feel somewhat dizzy. At the appellant's request she removed her underpants and lay down on her back upon a medical bench or table which was in the consulting room. A cloth screen was stretched across the lower part of her body and secured to some uprights on the table, thus shutting off her view of the lower part of her body and of the appellant. Her legs were secured by straps to the stirrups which appear in one of the photographs exhibited at the trial. After a few minutes she was given an injection in the right buttock, following upon which she felt an increasing faintness. 8. Although the girl does not mention this, her aunt gave evidence to the effect that she had gone into the consulting room with the idea of making a telephone call after the girl had entered it with the appellant. She saw her niece consume the tablets, after which she, the aunt, withdrew and the door was once more closed. She did not enter the room again during the whole period of time - some 45 minutes - while her niece was within that room. 9. The complainant described how, after receiving the injection in the buttock, she heard the sound of various preparations being made by the doctor and shortly thereafter was given a further injection, this time in the vulva. Immediately after this she says she become totally unconscious. 10. When she came to, she felt a sensation which she described as being "like hot liquid coming from my vagina to my head". It was this sensation which roused her. She became aware of the doctor's hands upon her hips and felt something moving in and out of her vagina. Later in cross-examination she said that this was like a male penis. She cried out "What are you doing?" and tried to pull away the screen but was prevented from doing so by the appellant. 11. She managed to free her legs, tore the screen away and she saw the appellant standing at the end of the table beyond the screen. That end had been lowered at the outset of the appellant's preparations, ostensibly to facilitate the haemorrhoid operation. The appellant was clad only in a singlet, the lower part of his body being naked. He at once covered his crotch with his hands when she looked at him. 12. She shouted the Indonesian word for rape and ran to the door and tried to open it. The appellant, still unclad, struggled to prevent her. At this point her aunt, alarmed at the sounds within the consulting room, forced her way in and saw the appellant standing behind the door in the same posture described by her niece although, according to the aunt, he had by this time acquired some article of underclothing with which she was concealing his private parts. She dragged her niece away, leaving the girl's shoes and underpants behind. They went to a nearby store, where they tried to contact a relative on the telephone. They were unsuccessful. They returned to the appellant's block of flats and made a complaint to the caretaker whom they found there. 13. The caretaker accompanied them up to the appellant's flat. When the appellant answered the door there were some angry exchanges and the girl either attempted to strike him in the face or actually succeeded in doing so. The evidence on the point was not entirely clear. The complainant went home with her aunt and the police were informed on the phone of what had happened. Madam Poon's evidence supported the girl's story substantially in such of these particulars as fell within her personal observation. 14. Some 3½ hours later on the same day, but before she had washed or gone to the toilet, the girl was examined by a police doctor, who took a swab of her private parts. This, on later examination, showed the presence of a few male spermatozoa. There was an old tear in her hymen at the six o' clock position. 15. Doctor Yu, the police forensic pathologist, who gave evidence for the prosecution, thought that these indications showed the likelihood of sexual intercourse within the previous one or two days, but agreed that there were other possibilities, seven of which were put to him by counsel for the defence, which could account for these seminal traces without there having been penetration by a penis. One of the more obvious of these was the possibility that some form of erotic play had taken place involving masturbation by the male and digital transfer of semen within the body of the female. 16. Doctor Wong, a gynaecologist called by the defence, was of the opinion that the physical findings of Dr. Yu indicated that the girl was accustomed to sexual intercourse. He favoured the idea that the seminal traces, even if attributable to the appellant, could have been deposited in some manner not involving penetration by the male organ. Neither of the doctors however excluded that possibility. 17. Questioned about these findings, the complainant denied previous experience of intercourse but admitted that she had permitted intimacies, including digital penetration of her private parts, by a boy friend. 18. Both the complainant and her aunt alleged that the caretaker was told that the girl had been raped. The caretaker's evidence was that the aunt said only that the doctor had wanted to rape the girl and that the latter had actually denied that the doctor had "insulted or touched her". At this point in his evidence permission was sought to treat him as hostile and after argument counsel for the Crown was permitted to do so. The watchman was confronted with a previous statement made by him to the police, in which it was recorded that he had said that the report by the aunt to him was to the effect that the doctor had raped the girl. In his statement he had said "I asked the girl if this was true and she said it was". When this part of the statement was put to him in cross-examination he answered "What she meant was when I asked her whether it was true or false and she replied he only wanted to rape her." When asked to explain these direct contradictions between his evidence and what he had formerly said he replied that everything in the statement was true except for what had been recorded as the girl's reply to his query to her. Instead of recording that the girl had said that the doctor had not touched or insulted her the police officer had written the sentence set out above. He agreed however that the girl appeared very frightened. 19. Madam Poon, the aunt, had also been confronted in cross-examination with her police statement in which she had said that she had heard her niece call out from inside the consulting room "Aunt, please come in. The doctor wanted to rape me." 20. In view of the compounded uncertainties of this testimony and of the medical evidence it is, perhaps, not surprising that the judge directed the jury that there was no corroboration of the complainant's story that she had been penetrated, notwithstanding that some of the possibilities referred to by both of the medical witnesses would have been consistent with penetration. The jury were told that proof of penetration was essential to constitute the offence charged and were also instructed that, short of that, it was open to them to consider the alternatives of attempted rape and indecent assault. From their verdict it seems evident that they were left in doubt as to the proof of penetration and therefore must not have been satisfied as to that part of the complainant's evidence which indicated that there had been penetration. 21. Although the appellant did not give evidence, a statement made by him to the police was introduced by the prosecution, without challenge from the defence. In it the appellant wholly denied that any impropriety whatsoever had occurred. At the trial, however, the defence case, as put by counsel to the complainant, was that she had asked the appellant to reduce his fee and that he had offered to waive it altogether if she permitted him to "play" with her; that she had consented and seemed sexually aroused so that he had the impression that she would permit him to make love to her; that he removed his trousers and that she then tore down the screening cloth and said if he wanted to play that way it would cost him $1,000; that he said that this was not worth it and that she then demanded $1,200 for such "play" as had occurred already. When he rejected this claim she had yelled for her aunt and made the accusation of rape. All of this was emphatically denied by the complainant; and, since the appellant did not give evidence, was entirely unsubstantiated. 22. The trial judge warned the jury of the danger of convicting without corroboration of the complainant's story in its major particulars. He carefully explained the nature of corroboration and why the complaints by the girl or her aunt could not amount to corroboration in law. 23. In his first ground of appeal Mr. Faulkner, counsel for the appellant, takes issue with a passage in the summing-up in which the learned judge directs the jury that they might regard the distressed condition of the complainant upon discovery by her aunt, and later upon consulting with the caretaker, as matter which could corroborate her story. 24. What the judge said was this :
It is more or less conceded by the Crown that the evidence of the pathologist could not amount to anything in the nature of corroboration since, as the judge himself immediately afterwards points out, the girl's conditionwwhen the pathologist examined her was quite calm and all that was specially noted by him was that she appeared somewhat dra drowsy. It is therefore with the evidence of the watchman and of the aunt in this respect that we are concerned. 25. Mr. Faulkner does not deny that there is authority for the learned judge's direction on this matter. He referred us to the case of R. v. Zielinski(1) and to R. v. Redpath(2). He pointed out, however, that in neither case did the Court of Appeal consider or even refer to the decision in R. v. Baskerville(3) which established the principle, adhered to ever since, that in cases of sexual assault evidence of early complaint can never afford corroboration of the complainant's story. Counsel argues that, as a matter of logic, no distinction should be made between what a complainant says immediately after an alleged assault and her appearance and demeanour when she says it since these are all manifestations emanating from her own person. 26. We must say at once that even were it not for authority we would not be prepared to take so uncompromising a course. It is obvious that there will occur circumstances when a distressed demeanour and dishevelled appearance will afford as safe an indication of the truth of the complaint as would signs of physical injury upon the body of the complainant. Mr. Faulkner was on firmer ground when he pointed out that, in many cases since Redpath and Zielinski, courts in England have emphasized the fact that this form of evidence suffers from the inherent weakness that conduct of that kind may readily be simulated by a complainant with some indirect motive to serve. Indeed in the case of Redpath itself although the Lord Chief Justice says : (page 321)
on the following page he says :
In R. v. Okove(4) aneand R. v. Luisi(5) convictions, in the one case of assault with intent to ravish and in the other of attempted rape, were quashed because the trial judge had over-emphasized the evidence of distress at the time of early complaint as possible corroboration. The decision in The Queen v. Knight(6) may likewise be regarded as a further cautionary gloss upon the principles stated in Redpath(2) and Zielinski(1): 27. In Luisi the court observed that in normal cases the weight to be given to distress varies infinitely and juries should be warned that, although it may amount to corroboration, they must be fully satisfied that there is no question of it having been feigned. This would seem to be the most sensible way of putting the matter, rather than obliging the judge to direct the jury that although the appearance of distress may afford corroboration they should attach little weight to it since the possibility that the complainant may be putting on a show is obviously the principal danger which such testimony presents. 28. That danger was absent in Zielinski where an elderly woman of 73 years was observed by her son a very short time after the alleged assault in what was described as "a shocking state" and seeming both frightened and ashamed. In Redpath the complainant was a little girl of seven years who was brought home from a moor where she said she had been assaulted by the defendant and made a complaint to her mother. On the way she had, though not to her knowledge, been observed by a bystander who had seen the defendant walking towards her and later driving off in a motor. Immediately thereafter, the same observer saw the girl come from the moor in a very distressed condition. 29. In view of these several authorities, it may be said that the direction was deficient in that there was a failure to point out to the jury that, before they could resort to such evidence as corroboration, they would have to be satisfied that in all the circumstances there was no ground for suspecting the girl of an imposture. 30. We think however that quite apart from the appearance of the complainant, there was good evidence, though it was not referred to by the judge in directing the jury, which could amount to corroboration of the complainant's story that she had not consented to whatever happened within the consulting room. There was the fact of a commotion attracting the aunt's attention; the doctor's attempt to prevent the entry of the aunt by holding the door; the doctor's nakedness when discovered immediately thereafter; and, most importantly, the evidence of an injection of local anaesthetic into the vulva, an act which had nothing to do with the ostensible purpose of the operation and for which there could have been no possible purpose had the girl been a consenting party to some form of sexual intimacy. 31. That evidence would have been equally capable of affording corroboration in respect of the alternatives of indecent assault and attempted rape as of the offence charged. Applying the test in R. v. Phillips(7), we are satisfied that this weakness in the direction would not upon its own afford any good reason for interfering with the jury's verdict and, subject to what must be said in relation to the other grounds of appeal we have no hesitation in applying proviso to section 83(1) of the Criminal Procedure Ordinance. 32. The third ground of appeal concerns the direction to the jury when the judge was dealing with the discrepancy between what was said by the watchman in recounting the complaint made to him and what was said by the girl and her aunt about the same matter. The passage of which complaint is made is as follows :
The principal objection here is that this might have induced the jury to believe that, if the complaint had been made in that form, the watchman's evidence as to complaint might have afforded corroboration of the complainant's story of a sexual assault. Had there been no proper general warning on the subject of corroboration that might have been an objection of substance. Such a warning was given, however, immediately after the very passage complained of. The relevant part of the summing-up was this :
33. Counsel for the appellant also argued that the judge failed to emphasize the inconsistency between the evidence of the watchman and that of the girl, so that the jury may not have considered the possibility that the inconsistency was such that they ought not to place any reliance upon the girl's testimony whatsoever. There is nothing in this point. The jury had received a careful warning as to how they should deal with the testimony of any witness and the possible significance of discrepancies in the evidence of witnesses generally. Moreover, it is very unlikely that, in considering this evidence of complaint, the jury would have been more inclined to accept the watchman's evidence than that of the girl, in view of the fact that she had throughout maintained that she had made such a complaint and her aunt had given evidence to the same effect although the terms of the complaint in the case of the aunt differed between her statement to the police and her evidence in the court. 34. The watchman, on the other hand, was confronted with a statement totally contradictory to his evidence in court and moreover his evidence itself was dubious, in that he first said that the girl denied that she had been touched or insulted by the doctor and later on, when asked about the girl's reply to a question put by him in response to the aunt's complaint he said "What she meant was when I asked her whether it was true or false and she replied he only wanted to rape her." (sic) Again it is to be noted that he never denied that the aunt had complained, although he maintained that her complaint was that the doctor had wanted to rape the girl. The jury were fully apprised of the nature of all this evidence, its weaknessaand its strength, and it is extremely unlikely that they can have overlooked any adverse inference which might have been drawn from it in favour of the appellant. 35. The fifth ground of appeal is to the effect that the judge, in leaving the alternative verdicts of indecent assault and attempt to rape to the jury, did not sufficiently instruct them in the different elements of these two offences. Undoubtedly, an act may amount to an indecent assault and yet fall short of an attempt to rape. It seems clear that the jury, though doubtful as to proof of penetration, must have been satisfied that all the indications in the evidence favoured at least an attempt to penetrate rather than anything else. 36. No doubt they might have speculated that this appellant was a man of curious tastes who by his elaborate preparations - the unnecessary injection, the setting of a screen between himself and his patient, the shedding of his clothes - intended nothing more than to gratify himself by indulging in some unusual form of sexual behaviour which did not involve penetration. It can only be said that commonsense alone would seem to have impelled them away from any such speculation. These several unexplained acts are all factors which tend strongly to support the verdict returned by the jury. 37. Finally it is said that the judge failed to draw specifically to the jury's attention the fact that the girl's evidence that she was not accustomed to sexual intercouse was contradicted by the medical evidence. It is said that this contradiction is relevant to the fact that Doctor Wong, when asked to account for the various ways in which the few spermatozoa could have been deposited in the girl's body, mentioned, as one possibility amongst several others, the possibility that she had had intercourse prior to the day of the alleged assault and that these were the residual traces of that intercourse. 38. The girl's denial of previous experience was also said to affect her general credibility, a factor which, again, was not specifically mentioned to the jury. Notwithstanding the absence of such specific directions, it seems most unlikely that the jury can have been unaware of this contradiction or of its implications. We have found nothing in this point, nor in any of the other points taken separately or in sum, including the ground of appeal which will be dealt with by my Lord the Chief Justice, which would persuade us that the verdict was unsafe or unsatisfactory. The application for leave to appeal against conviction is refused. 39. Mr. Faulkner could find little to say in favour of the application for leave to appeal against sentence. We have noted the family circumstances and clear record of the appellant. These factors were evident to the trial judge who rightly stressed that the complaint had been put to the ordeal of a trial and that, although not qualified to practise medicine in Hong Kong, the appellant had held himself out as such and was so accepted by his patients. The grossness of his act is rendered considerably worse by such an abuse of confidence. The application for leave to appeal against sentence is likewise refused. Representation: Faulkner (Philip K.H. & Co.) for appellant. Cahill for Crown/respondent. (1) 34 Crim. App. R. 196. (2) 46 Crim. App. R. 319. (3) (1916) 2 K.B. 658. (4) (1964) Crim. L. R. 416. (5) (1964) Crim. L. R. 605. (6) (1966) 1 W.L.R. 230. (7) (1925) 18 Crim. App. R. 115.
Coram: Roberts, C.J., McMullin, JA., & Leonard, J. Date of Judgment: 1 October 1979 ----------------- JUDGMENT -----------------
Roberts, C.J.: 40. I would also refuse leave to appeal against conviction and sentence. However, I propose to deal more fully with one of the grounds of appeal advanced by counsel for the appellant, namely that the judge erred in permitting one of the Crown witnesses to be treated as hostile. 41. TUNG See-din, who was the caretaker at the building in which the offence took place, was called as the third witness for the prosecution. In the course of his evidence in chief he was asked what the complainant had said to him, after she had escaped from the appellant's surgery. 42. Tung replied that he asked the girl whether the doctor had insulted her or touched her and that she replied "Well, no". Further questions were put to him as follows:
43. Counsel for the Crown applied to be allowed to cross-examine Tung, on the basis that he was a hostile witness, asserting that Tung's oral evidence had been in direct contradiction of his statement to the police in one material aspect and in other less important aspects as well. 44. Counsel for the Crown drew the attention of the judge, in the absence of the jury, to a passage in Tung's deposition, in which Tung stated that he asked the complainant whether it was true that the doctor on the upper floor had raped her and that she answered "Yes, it was." 45. This contradiction was of some significance, since it bore upon the credibility of the complainant. If the complainant had denied to Tung, within a few minutes of the incident, that she had been raped, this would clearly have been a factor of weight when the jury were assessing the credibility of her complaint of sexual assault. There were other discrepancies between Tung's deposition and his evidence, though these were of lesser importance. 46. Counsel for the defendant at the trial agreed that it was a matter in the discretion of the judge as to whether or not the witness should be treated as hostile. However, before the judge decided the question, counsel suggested that the deposition might not represent a true verbatim version of Tung's statement, because the statement was recorded by a European officer through an interpreter. It is to be noted that the deposition was tendered in writing under section 81A of the Magistrates Ordinance and was not a record of verbal evidence given by Tung in the committal proceedings. 47. Counsel for the appellant argued before us that the judge exercised his discretion wrongly in permitting Crown counsel to treat Tung as a hostile witness, on the sole ground of inconsistency between his deposition and his evidence. He also objected that the judge did not, before permitting Tung to be declared as hostile, consider whether Tung had made the statement in the terms attributed to him in the deposition. 48. Counsel relied upon the decision of this Court in WU Man-choi v. R.(1). He referred us to the following passage:
The court later said, in Wu's case:
49. This passage, therefore, suggests that there should be a form of voir dire, in the absence of the jury, before a witness should be declared as hostile, though no authouity is quoted for this proposition. 50. Later in the judgment the court says:
51. As we interpret Fraser, when read with earlier authorities, the main factor which will influence the judge in deciding whether or not to declare a witness hostile is the inconsistency between his earlier statement and his evidence. 52. But we agree with the passage in Wu which states that it is not the only factor. The judge should, for instance, consider the degree of inconsistency as well as the fact of it, its importance to the trial, and the demeanour and attitude of the witness. But, having done so, he is entitled to declare a witness hostile on the ground of inconsistency alone. 53. In this case, the judge gave no reason for his ruling, and we do not consider that he was under any obligation to do so. There is nothing to suggest that he did not exercise his discretion properly, that he did not consider the matters which he should have considered, or accept that he believed, as the judge in Wu's case did, that he had to declare the witness hostile if he found inconsistencies. 54. In addition, the passages from the deposition quoted by counsel for the Crown, during his cross-examination of Tung, show that there were material discrepancies between the earlier statement and Tung's subsequent evidence, of such a nature as would, by themselves, have been sufficient to justify the judge in exercising his discretion to declare Tung hostile. 55. In one aspect we feel that Wu goes too far, in suggesting that a voir dire ought to be conducted, in the absence of the jury, before a witness is declared hostile, in some circumstances as when the statement is alleged to have been obtained under coercion or to have been inaccurately recorded. 56. We would prefer it to be left to the discretion of the judge as to whether he enquires as to the voluntary nature and accuracy of the statement in the presence or absence of the jury; and as to whether he conducts such enquiry as he may feel necessary on these questions before or after he has declared the witness to be hostile. 57. In this case, the trial judge conducted such an enquiry in the absence of the jury, but after the witness had been declared hostile. We regard this as an exercise of discretion with which we cannot properly interfere. Representation: Faulkner (Philip K.H. Wong & Co.) for appellant. Cahill for the Crown/Respondent. (1) Cr. App. 371/78 |