R. v. Lau Yam Chi

CACC000160/1994

IN THE COURT OF APPEAL

1994, No. 160
(Criminal)

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Coram: Hon Macdougall, V.-P., Penlington and Liu, JJ.A.

Date of hearing: 14 February 1995

Date of judgment: 14 February 1995

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J U D G M E N T   O F   T H E   C O U R T

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Macdougall, V.-P.:

1. The appellant was convicted of attempt rape after trial before Bewley J and a jury. He now applies for leave to appeal against that conviction. The principal evidence against him was that of the complainant, Madam Wong Lai, who had previously lived in the same premises as the appellant and whom the appellant had lent $20,000 to spend on shop premises in Shenzen and had given $10,000 laisee to invest in a restaurant.

2. The complainant testified that she became engaged to marry another man, a Mr So, and, on the 28 October 1991, went to reside in other premises with her adopted seven year old daughter. However, on 28 October 1991, she met the appellant by chance in the street. When she told him that she was about to be married he exhibited displeasure. She asked him to write a note stating that he would not interfere with her marriage plans. The appellant agreed to do so and wrote "I agree to Wong Lai cohabiting with another man. I will not take any action against him". This note was produced in evidence.

3. On 29 November that year, when the complainant was returning to her home after having been shopping, she was suddenly pushed from behind by the appellant as she was opening the door to her premises. He hustled her into her bedroom where he locked the door behind them. He demanded that she pay him $50,000 as compensation for her marrying somebody else. She replied that she had no money. He then became very fierce and demanded that she pay him the money immediately otherwise he would harm her. With that, he pushed her onto the bed, and a struggle ensued. The complainant shouted out to her daughter, who was watching television in another room, to telephone Mr So and ask him to come. The appellant then grasped the complainant's throat with both hands and told her that she should not dare to call out because she was an illegal immigrant. He ripped off her upper garment causing six buttons to be torn from it. Following this he attempted to remove her corset, but without success. However, he managed to remove her panty hose and inserted his penis into her sexual organ.

4. Later, under cross-examination, the complainant conceded that she did not know whether he had actually achieved penetration. When Mr So arrived at the premises in response to the complainant's daughter's telephone call the complainant told him that the appellant had raped her. Eventually, in the early hours of the 30 November, she was persuaded to make a complaint to the police. As a result of this the appellant was arrested.

5. Mr Macrae, who appears for the appellant in this court but did not do so in the court below, contended that the judge erred in telling the jury that the evidence of the seven year old daughter could corroborate that of the complainant, and in failing to warn them in accordance with section 4 of the Evidence Ordinance Cap. 8 that the appellant could not be convicted unless the evidence given by the complainant's daughter was corroborated by some other evidence which supported her evidence and implicated the appellant.

6. The relevant provisions of section 4 are as follows:

"Where, in any proceeding against any person for an offence, any child of tender years who is tendered as a witness does not in the opinion of the court understand the nature of an oath, the evidence of that child may be received, but not given upon oath, if, in the opinion of the court, the child is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and the provisions of s70 shall extend to the evidence of the child, though not given on oath, but otherwise taken and reduced into writing in accordance with the provisions of section 81 of the Magistrates Ordinance (Cap 227):

Provided that -

(a) no person shall be liable to be convicted of the offence unless the testimony admitted by virtue of this section and given on behalf of the prosecution is corroborated by some other material evidence in support thereof implicating the accused;"

The evidence of the daughter was that as her mother was about to enter the premises the appellant and another man dashed into the flat. The appellant then pushed her mother into the bedroom while the other man simply sat and watched television. The daughter heard her mother loudly call out for help, telling her to telephone Mr So and ask him to come to the flat. The daughter did as what she was asked. Later, the appellant came out of the bedroom, poured a cup of water, and returned to the bedroom. He later re-emerged and left the premises with the other man.

7. The judge directed the jury in the following terms:

"Now, although the little girl, Siu-ha, confirms that her mother was in distress in the bedroom, this is incapable of being corroboration because it is just as consistent with the defence case that there was a fight about money as it is of the rape. But she was very firm about the presence of the other man who, she says, arrived and left with the defendant. Now, if she is right about this it seems odd. If the defendant raped WONG Lai, he must have entered the flat, surely, with the intention of doing so or, at least, with that in mind. And you will ask yourselves: Would he have brought along a friend to wait outside the room while he did that? I would ask you to approach the evidence of Siu-ha with caution, she is only seven years old, too young to be Sworn or Affirmed.

I direct you not to convict, in this case, unless you are sure that WONG Lai is telling the truth about the events in the bedroom."

8. It is therefore not correct to say that the judge directed the jury that the evidence of the seven year old daughter could corroborate that of the complainant. Although the judge did not actually tell the jury that they could not convict on the uncorroborated evidence of the seven year old daughter, it was obvious that she was not the complainant and that the jury must have realised that, since she was not an eye witness to what had occurred in the bedroom but had merely heard her mother call out for help, it would not be possible to found any conviction on her evidence.

9. Moreover, Mr Macrae frankly accepted that the unsworn evidence of a child is capable of corroborating the sworn evidence of a complainant, and that the evidence of a complainant may be corroborated by that of an unsworn child. For this statement of the law we need look no further than the decision of the House of Lords in DPP v. Hester (1973) 57 Cr.App.R. 212. He further accepted that the daughter's evidence was corroborated by that of the complainant which clearly implicated the appellant. We are satisfied that there is no merit in this ground of appeal.

10. Secondly, Mr Macrae submitted that the judge should not have admitted expert evidence as to DNA testing performed on semen found on a bed-sheet from the bed on which the offence was alleged to have been committed. The basis of this submission is that such evidence was more prejudicial than probative since "it provided at most a probable link with the accused". There had been a conflict between the evidence of the expert who testified for the prosecution and that of the defence expert. The former put the probability of the DNA profile of a randomly selected individual matching that of the appellant's profile at 1 in 1825 instances. The defence expert considered a lesser degree of probability of 1 in 660 instances.

11. It was not suggested either by the prosecution or the judge that the DNA evidence conclusively proved that the semen found on the sheet had come from the appellant. The purpose and effect of such evidence was similar to that of blood grouping evidence in that it gave some indication as to the degree of likelihood that the semen had come from the appellant.

12. We think the judge correctly admitted DNA evidence. It was relevant and had significant probative value when considered in conjunction with the complainant's testimony.

13. There was a third ground of appeal that "the learned judge should not have deprived the jury of the possibility, which was reasonable and not speculative, that the DNA sample which was obtained from the bed-sheet may have originated prior to the alleged incident, particularly when the applicant and the complainant had been living together merely a month before".

14. What the judge told the jury was this:

"Defence counsel submits that even if you accept the DNA evidence, it does not help the Crown because of the condition of the sheet. She says that the defendant may have been responsible for the stain but on a totally different occasion. Well, members of the jury, there is no evidence about that, one way or the other, and I suggest it is speculation to suggest that this sheet may have been in use in the Kowloon City hut which would have been some time before 28 October - one month beforehand."

15. This was entirely correct. The appellant did not see fit to give evidence. There was no evidence whatever that the sheet had been used a month earlier, or at all, in the premises previously occupied by the appellant and the complainant. There is no substance in this ground of appeal. For these reasons the appeal is dismissed.

Representation:

Mr D.G. Saw, SACP for Crown Prosecutor

Mr Andrew Macrae assigned by DLA for applicant