HKSAR v. Law Wing Hong

CACC000169/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.169
(Criminal)

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Coram: Hon. Power, V.-P., Mayo & Stuart-Moore, JJ.A.

Date of Hearing: 17 September and 11 November 1998

Date of Judgment: 11 November 1998

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant faced one count of attempted rape. It was particularized that he, on 14th June 1997, at the Second Chance Book Shop, ground floor, No.28 Pak She Street, Cheung Chau, attempted to rape Pauline Deary. He pleaded not guilty to that count and was, after trial before Deputy Judge de Souza and a jury, found guilty and sentenced to imprisonment for 6 years. He now seeks leave to appeal against both conviction and sentence.

2. It was the prosecution case that the victim Pauline Deary was the Chairman of the Prisoners' Friends Association and that she became acquainted with the applicant while he was serving a prison sentence. Both she and her friend Miss Jane Crawley visited him over a period of 6 to 7 years and when he was released from prison tried to assist him to rehabilitate himself by obtaining part-time work for him at the Second Chance Bookshop on Cheung Chau. Thereafter he lived and at times worked at the bookshop. The victim continued to counsel him and, on 14th June 1997, when Miss Crawley was giving a birthday party for her, he was one of the invited guests. The party broke up at about 10:30 p.m. and the applicant and the victim then walked back to the bookshop. The victim was on her way to her own home but intended to stop at the bookshop to pick up some articles which she left there. On the way back, the applicant asked her for a kiss but she refused. After the victim entered the bookshop to collect the articles, the applicant shut the sliding door and started to hug her and again asked her for a kiss. She said she was not willing and then, as detailed by the judge in his summing-up, the following incident occurred:

"She tried to break free but his grip tightened. She said she became more agitated and a bit angry. She tried to leave but he began to drag her backwards forcibly towards the kitchen. She grabbed on to a bookshelf to thwart him but to no avail. She began to flay about.

Realizing that the situation was fast getting out of control, she began to scream for help. He ordered her to stop and tried to stifle her screaming by placing a hand over her mouth. All the while, the accused was grabbing her from behind.

At that juncture, she stopped struggling, knowing that she had to keep calm. He stopped dragging her. She then attempted to dash out of the bookshop. He grabbed her and threw her against a shelf forcefully. She said she felt she was hurt. He moved up to her, put his arms around her, pushing her towards the kitchen. They ended up in the kitchen.

The accused, she said, then ordered her to lie down. She refused and recalled him saying, 'I want to do it once.' He grabbed a knife from the bench in the kitchen. You will recall that Miss Crawley later found a knife on the same counter. That knife was seized and has been exhibited.

By this time, the complainant was fearing for her safety. This was hardly surprising as she said the knife was pointed at her throat. He ordered her to lie down which she did and he followed suit, his legs straddling hers, pinning her to the floor.

He ordered her to remove her clothes and brandishing the knife moving it down towards her private parts. She said she was beside herself with fear and could not move. At that juncture, he lifted her upper clothing and brassiere above her breasts and at the same time pulled down her bike shorts and knickers. He fondled her breasts roughly with one hand whilst still brandishing the knife with the other. She was ordered to spread her legs, an impossible task given the elasticity of the bike shorts and the fact that his legs were straddling her lower limbs. He used his hands to force apart her legs, causing the bruises, she said, to her inner thighs. The bruising on her forearms were caused, she said, when he was grabbing and pulling her backwards.

Her legs remained together. Then he came down on to her. Lowering his trousers, he tried to enter her vagina. His penis was touching her vagina as he was moving atop her as if making love.

She said she was able to see his penis. It was limp. He was unable to effect any penetration and began to fondle himself to get an erection, to no avail.

Short thereafter, he stood up and suggested they showered. She asked, 'Why?' He said it would be easier if they did so. He began to push her towards the toilet. At that juncture the complainant said she requested to be freed; as she was not hurt she would say nothing about the incident to anyone. He repeated his request that they showered saying that it would be easier if that happened. She said she advised him that she was unhurt and that their friendship had not suffered in any way. The accused then broke down and cried whereupon she made good her escape. She ran home."

3. The victim said that she then rang Miss Crawley and left a voice message and that later she saw Miss Crawley and told her what had happened.

4. The judge went on:

"She testified the accused had appeared like another person during the assault on her and confirmed receiving the letters from him after the incident. She could recognize his handwriting. She agreed that she did not go to the police immediately and only did so four days later. She was principally concerned that he would be arrested and sent away again, something she did not want to see happen.

From her knowledge of him, she realized that he had acted out of character and needed professional help. To this end, she contacted his Probation and Parole Officer suggesting that he talk to the accused. She did not want to lodge a formal complaint. When she realized that the accused would not voluntarily seek help, and fearing that something similar might happen to another person with possibly graver circumstances, she went to the police on 18 June 1997."

5. The judge then went on to refer to the evidence of the victim, in which she admitted to being at a loss as to why she did not mention the knife to the police in her first statement. The judge then detailed the defence evidence which, to use the judge's words, was an allegation of "a total frame-up following rejection of (the victim's) amorous advances". The judge had, when dealing with corroboration, at page 11 of the transcript, set out certain passages from the letters which the victim confirmed the applicant had written to her. When referring to them, he said that the applicant had "said he wrote them offering his apologies to Miss Deary".

6. Also, when dealing with corroboration, the judge had set out the evidence of Dr. Chan Chin-pang as follows:

"What then, you may well ask, about the admitted evidence of Dr. Chan Chin-pang who found bruises on the forearms and inner thighs of Miss Deary on the day after the alleged offence? You will undoubtedly recall it being agreed in the admitted facts read to you that Dr. Chan opined that they were recent in origin, having been caused within the 48 years prior to his medical examination. That you may say, is independent evidence and is it not capable, if we accepted it, of confirming Miss Deary's evidence that the accused attempted to rape her? The simple answer is no. The medical findings standing on their own and viewed independently are capable of any number of interpretations that do not have to include an attempted rape by the accused of the complainant having taken place as alleged. The bruising could have been caused in circumstances other than those described by the complainant."

7. We turn now as to the grounds that have been urged by the applicant. These he set out for the most part in writing. On the first day of the hearing before this court, we adjourned the matter to obtain the transcript because a number of the grounds dealt with matters that had occurred when evidence was being given at the trial. The applicant filed two sets of grounds of appeal. The second set repeated almost all of those contained in the first set but at greater length. The only one from the first set of grounds which we need to deal with is the submission that "the trial judge did not remind the jury to consider why the victim did not report to the police until 4 days later". There is no ground for complaint in this regard. The trial judge referred to the delay and set out the victim's explanation for it. It was for the jury to decide what weight they gave to the fact of delay and to the evidence explaining it.

8. We turn to the second set of grounds.

(1) The applicant firstly complains as to discrepancies between the statements of the victim and her evidence. The statements of the victim were not, except as to parts of her first statement which were read to her during cross-examination, evidence at trial, nor are they before us. That being so, the applicant cannot now rely upon them. This court can only consider the evidence that was placed before the jury.

(2) The applicant complains of a number of misdirections. The first of these suggested misdirections is the statement of the trial judge when detailing the evidence of the applicant when he said:

"He ordered her to remove her clothes and brandishing the knife moving it down towards her private parts."

The applicant contends that the victim in her evidence had never accused him of ordering her to remove her clothes. This is not so. The evidence on this matter is clear. At p.76 of the record, the following passage appears:

"Q. And, at the same time, the knife is pointed towards you still?

A. Yes, only now he's moved the knife down towards, you know - he is telling me, you know, to take my clothes off and to take - and he moves the knife down towards my private parts.

Q. Right. Now, he told you to take your clothes off, you said?

A. Yes.

Q. Did you do anything about that?

A. I'm in shock at this time - I mean, I just can't move. I just can't move."

Q. All right. Did anything happen to your clothes?

A. Yes, then I was wearing a T-shirt and underclothes and he lifts them above my breasts."

9. Quite clearly the victims was stating in her evidence that the accused had ordered her to remove her clothes.

10. The second matter of complaint occurs out of a statement made by the trial judge when explaining the use that could be made of recent complaint. He said:

"You will recall that minutes after the alleged incident Miss Deary was on the phone to her friend Miss Crawley, relating to her in a distraught fashion what she said the accused had done to her at the Second Chance Bookshop earlier. The evidence of the contents of her outpourings were given just two days ago and I am sure that it is still fresh on your minds. I, therefore do not propose to recount with particularity what was conveyed to Miss Crawley.

Suffice it, however, to remind you that broadly, Miss Deary informed her that a short while before the accused had grabbed her from behind and forced her into the kitchen area of the bookshop and, having pinned her onto the ground and brandishing a knife to her throat and her vagina, tried to violate her sexually. This complaint was repeated in very similar terms soon after midnight when Miss Crawley came round to her house after visiting the shop and remonstrating with the accused."

11. The applicant complains that Miss Crawley in her evidence had never said that the victim said that the applicant pointed the knife at her vagina and brandished it. He is correct, when he makes this complaint. This was a slip on the part of the trial judge. Miss Crawley, as the transcript reveals, had never said that she was told by the victim that the knife was pointed at her vagina. It was an unfortunate slip but was, we are satisfied, not a matter which could have resulted in any injustice to the applicant.

12. The third complaint arises out of the following statement by the judge:

"The bruising on her (the victim) forearms were caused, she said, when he was grabbing and pulling her backwards."

13. The applicant contends that the victim had never given any evidence to this effect, and that she made no mention as to why there were minor bruises on her in her forearms. An examination of the evidence, however, indicates that there is no substance in this complaint. The transcript, at p.81, reads as follows:

"Q. Did the doctor find some bruises on your right forearm?

A. Yes.

Q. A bruise on your right forearm, a bruise on your right thigh, a bruise on your left forearm and a bruise on the inner part of your left thigh.

A. Yes.

Q. Do you know when you sustained those bruises?

A. With Mark. The incident with Mark that night.

Q. Yes. just let me ask you about the bruises to your left and right forearms. How would they have been caused, do you know?

A. Yes, because, when he was pulling me back, he was sort of, you know, grabbing me and pulling me back.

Q. When you say 'grabbing', were those bruises caused by a grip?"

A. By a grip.

Q. By the defendant's grip on your arms?

A. Yes."

14. We turn then to the fourth matter of complaint of a misdirection. This concerns a statement by the judge when dealing with a letter written by the applicant to the victim. The judge said:

"As to the letters that have been put into evidence, he said he wrote them offering his apologies to Miss Deary."

15. The applicant says that he never admitted writing to the victim to apologize. He says that the real fact of the matter was that he had written the letters because he wanted to save himself from the predicament of being falsely accused of rape. The evidence in this matter is as follows.

"Q. And then you wrote Miss Deary several letters?

A. Not just several, many. I wrote her many letters.

Q. No, I know, but exhibited in court is a letter on the 30th of August, the 26th of September, the 3rd of October, the 15th of October and also one to Father Karsen.

Q. You remember those letters?

A. Yes.

Q. Now, you apologised to her and you - Listen to my question - you said very sorry for what happened. Basically that is what you wrote in the letter. You said you betrayed her. You were bad, yes?

A. Yes.

Q. Why do you apologise to her?

A. The incident has reached such a stage, I mainly feel sorry or uncomfortable that the incident has reached such a stage and because of this I have to go to prison.

Q. But apologise for what?

A. For this incident having reached such a stage.

Q. You thought you have done something wrong to her?

A. She said that I was on top of her and she allege that I raped her. Upon hearing the word rape, I was scared.

Q. If you have not raped her why do you have to apologise?

A. Because of her allegation I have to go to gaol."

16. The applicant clearly did, in answer to two of the questions, agree that he had apologised, but it must be said that he then went on to explain why he had done so. All of this evidence was before the jury and it was for their determination. We are satisfied what the judge said in the passage complained of could not possibly have misled the jury.

(3) We turn to the third complaint which is that the evidence of bruises was of no real weight. It is difficult to see how the applicant can make any complaint along these lines as the judge told the jury

"The medical findings standing on their own and viewed independently are capable of any number of interpretations that do not have to include an attempted rape by the accused of the complainant having taken place as alleged. The bruising could have been caused in circumstances other than those described by the complainant."

17. There is nothing in this ground.

(4) In the fourth ground, the applicant complains that there was no evidence of fingerprints on the knife. It is true that there was not, but lack of fingerprint evidence is a neutral factor. Of course if fingerprint evidence is given and either implicates an accused or exonerates him by establishing that the fingerprints are those of some other person, then it can be evidence of very substantial importance. Where, however, there is no fingerprint evidence at all, it proves nothing either way.

(5) In his fifth ground, the applicant suggests that the timing of events as sworn to by the victim could not possibly by true. We find nothing of any merit in this suggestion. Clearly there was sufficient time for the events in either the victim's or the applicant's version to have occurred.

(6) In Ground 6, the applicant suggests that it is unbelievable given the version of the victim that sexual intercourse did not occur. This was very much a matter for the common sense of the jury to decide and it was left to them. We cannot help but comment that, on a reading of the transcript, the evidence of the victim has a distinct ring of truth about it, but her credibility is is not a matter for our decision nor was it for the trial judge. It was for the jury to decide whether or not the victim was telling the truth and this decision was left for them.

(7) In his 7th Ground, the applicant suggests that if the incident happened as the victim suggested it did, one would have expected to have found more bruising on her body. This, again, is a matter of fact which was for the jury.

(8) In his eighth Ground, the applicant suggests that Miss Crawley never accused him of attempted rape but only of indecent assault. This is not so. In her evidence she accused him of attempted rape and, indeed, she did so from the very outset. Miss Crawley gave evidence (at p.107):

"Q. Did she (the victim) say anything else about what he had actually done?

A. Well, he had pinned her to the ground.

Q. Yes?

A. And I said, 'Well, you know, did he actually rape you?' and she said she didn't think that it got that far."

18. The victim, moreover, in her first written statement, that was read to her by defence counsel:

"When Mark actually tried to rape me he could not penetrate because he could not get an erection. He touched himself - his penis, to try to get an erection, but he could not get an erection."

19. There is nothing in this ground.

(9) In his 9th Ground, the applicant complains that the quotations from the letters read to the jury by the trial judge were selective and were adverse to him. The judge did read parts of the letters, but he clearly left it to the jury to make their own assessment of them saying:

"In the letters which you will no doubt have read most carefully and will peruse again when you retire to deliberate your verdict...."

20. Further having read passages, he very fairly told the jury:

"There are simply no evidence in the letters as to what he meant by the quoted remarks. They are not, therefore, standing on their own a clear confession to attempted rape and in the absence of anything further, those words are capable of having different, equally plausible meanings."

21. So much for the applicant's written grounds, today he has referred to what he suggests were contradictions in the evidence of the victim. The matters to which he has made reference were, in our view, no more than one would expect to find in the evidence of any victim of an attack such as occurred in the present case. There was nothing in the final submissions of the defendant.

22. The application for leave is of no merit and it must be dismissed.

Sentence

23. The applicant has also sought leave to appeal against sentence. In his grounds said no more than that the sentence was obviously too heavy and was unfair and unreasonable.

24. The judge when sentencing said that the accused had been convicted of a most serious offence of attempted rape. He went on, rightly, to note that the incident must have been a terrifying experience for the victim. His evidence was that she clearly believed that she was to be done serious harm and indeed that she thought that she might be killed. He took into account that it was what he characterized as "a sad and tragic case of a man has lost much of his youth in prison and now stands to return there for a period of time". He said that he recognized that he was a filial son and that he had acted out of character and that, to use his words, "the whole sordid affair was unpremeditated".

25. He went on, however, to say:

"In my considered view, the appropriate starting point for sentence in the instant case is one of six years. This is not the worst case of its kind. Having considered all matters both favourable and unfavourable to the accused, I consider that a sentence of six years' imprisonment is entirely just and appropriate in the circumstances. That is the sentence that I pass on him."

26. We are satisfied that the judge was correct when he passed that sentence. This was a vicious and determined attempt to rape the victim. In our view, six years was an entirely appropriate sentence.

27. The application for leave to appeal against sentence is also, therefore, dismissed.

Representation:

Mr. D.G. Saw, S.C. leading Miss Denise Chan (D.P.P.) for the Respondent.

Applicant in person.