HKSAR v. Fung Hoi Yeung

CACC 62/2019

[2021] HKCA 1589

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 62 OF 2019

(ON APPEAL FROM HCCC NO 156 OF 2018

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BETWEEN

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Before:  Hon M Poon JA in Court

Date of Hearing:  12 October 2021

Date of Judgment:  12 October 2021

Date of Reasons for Judgment:  15 November 2021

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REASONS FOR JUDGMENT

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Introduction

1.The applicant, who faced one count of rape, contrary to section 118(1)  of the Crimes Ordinance, Cap 200, was convicted by 6:1 majority verdict after a trial before Campbell-Moffat J and a jury on 18 January 2019 and sentenced to 10 years’ imprisonment.

2.By a Form XI filed on 25 February 2019, the applicant applied for leave to appeal against conviction and sentence.  At the hearing he was represented by Mr HY Wong for his application for leave to appeal against sentence.  He acted in person against conviction.  At the end of the hearing, I refused leave to appeal against conviction and sentence and I now give my reasons.

Prosecution Case

3.It was alleged that the applicant raped a domestic helper, X, employed by his mother but was assigned for work for both his and his mother’s flat.  X was 25 years of age at that time and came to Hong Kong from Indonesia for the first time.  She had just worked for the family for 5 days.  At the time of the alleged incident, the applicant’s mother had gone out.  It was the evidence of X that at around 3 am in the morning of 21 October 2017, the applicant knocked on her door, said something to her which she did not understand, grabbed her arms when she was on her way back to the room from the toilet, pushed her onto her bed.  He fingered her and entered her forcefully causing her to bleed profusely.  She was not sure if he had ejaculated inside her but she noticed that semen was left on her thigh.  After the applicant was gone, X cleaned up with her underwear and texted her friend Minarsih after 20 to 30 minutes complaining that she was raped and that she was bleeding.  After Minarsih phoned another Indonesian woman Widiyanto that morning at around 11 am, Widiyanto made a report to the police.

Defence Case

4.The defence case denied any sexual intercourse and alleged X to have made up a story against him to get out of the employment contract and to extract from him severance pay.  He gave an explanation as to how possibly would his semen been left on X’s clothes.  He claimed to have had a wet dream, left his underpants in a blue basket in the morning on 20 October 2017 and asked X to wash it.  It was suggested that X had taken advantage of that and had rubbed the semen from his underpants onto her clothes.  The other possibility suggested was that the semen could have found its way onto the pajamas and bedsheet by way of transfer over the lax procedure adopted by the police during the investigation.  Applicant’s mother gave evidence that she noticed X menstruating on 18 October 2017 so the blood could have come from herself.

Ground of Appeal against Conviction

5.The following grounds could be discerned from the Form XI and the submissions contained in the various further letters filed by the applicant.  As the applicant was refused legal aid, he wrote to the Faculty of Law of the University of Hong Kong for assistance.  Mr Eric Cheung, Principal Lecturer and Director of Clinical Legal Education wrote in to this Court with his observations in relation to the applicant’s first ground of appeal, which were adopted at the leave hearing:

(1)  The prosecution unfairly failed to disclose the photograph which depicted the boxer shorts of the applicant placed on a computer keyboard found in X’s phone.  The judge erred refusing defence to produce this photograph on the basis that it was hearsay, thus depriving the jury a chance to take into account this piece of evidence which could cast doubt on X’s credibility, given her denial that she had moved the exhibits at the scene.  It was also submitted that this being a piece of real exhibit admissible per se, and the issue should be its quality and reliability.  The judge erred in finding that it was necessary to call evidence to ‘prove’ the photograph, and treating it as hearsay evidence which could only be admissible under s.22 or 22A of the Evidence Ordinance;

(2)  The judge erred in not allowing the applicant to cross-examine X against her previous inconsistent statement, in particular, about whether he fingered her and the discrepancy in her evidence as to the arrival time of the police;

(3)  the summing-up emphasized on evidence favourable to the prosecution and focused on attacking the credibility of the defence was biased.  In particular, the judge wrongly directing the jury that the arrival time of the police officers was immaterial[1] and made a prejudicial remark that the jury might not want to view the exhibit again because of their “disgusting” nature.  The judge failed to sufficiently direct the jury to consider the pathologist’s evidence against that of X, that no signs of injuries or semen could be found inside her vagina.  Dr Kwok agreed that the injuries were consistent also with penetration by blunt objects other than the penis thereby casting doubt on whether there was penile penetration;[2]

(4)  In answering the question posed by the jury, the judge erred in failing to direct them sufficient as to the issue of consent. Instead, the judge misdirected the jury by telling them that consent was not an issue in dispute and that they need not  consider the consent issue and could convict as long as they believe that sexual intercourse had taken place[3];

(5)  It was further complained that, after answering question from the jury, when the prosecution asked if the case should be adjourned for verdict, the judge pressed the jury to deliberate overnight for a verdict, as a result the jury was not allowed sufficient time to consider the case.

Ground of Appeal against Sentence

6.The grounds of appeal against sentence were that:

(1)  in light of the critical comments made by the judge, she was “effectively” punishing the applicant for the manner in which his defence was conducted;

(2)  secondly, the judge erred in enhancing the sentence for the applicant’s lack of remorse;

(3)  the total sentence of 10 years’ imprisonment was manifestly excessive and wrong in principle.

Consideration

Appeal against Conviction

7.Concerning Ground 1, I agree with the submission of Ms Audrey Parwani, SPP, that the issue had been canvassed at length at trial[4]. This photograph apparently showed a pair of boxer shorts placed on the keyboard[5].  It was the defence wish to tender that photograph to show that it existed in her mobile telephone by 11:01 hours on 21 October 2017, and to discredit her evidence that she had not touched the boxers.

8.As noted by the judge in the absence of the jury, MFI-11A showed someone’s fingers holding a mobile telephone with the photograph of how the boxer shorts were placed[6], and that someone else was taking a picture of the person holding the mobile telephone with the image on[7]. During the leave hearing, the respondent clarified for the Court that MFI-11A and MFI-11B could have been taken by the legal team of the defence at the police station, having accessed and opened PW1’s phone.  This accorded with what defence counsel had told that Court that on pressing the third of the three dots on the top right hand corner of the image shown in MFI-11A,  the date and other specification such as size, measurement and resolution came out as appeared in MFI-11B[8]. The respondent confirmed that this photograph was never sent by way of whatsapp to anyone and it just “came from nowhere”.

9.X was shown MFI-11A.  She denied taking it.  She did not know who took it.[9] It was submitted that the photograph was adduced not as evidence of the truth of any facts stated therein and so the judge erred in ruling that s.22A of the Evidence Ordinance was engaged: HKSAR v Lau Shing Chung Simon[10]; and ruling that proper and expert interrogation was required before it could be admitted[11].

10.In my view, there are hurdles to surmount in order that the photograph be admitted.  The defence relied on MFI-11A & B to show the time, which in essence, was that the image was taken by her at 11:01 hours, to discredit her evidence that she had not moved the pair of boxer shorts, and in support of the defence case that the applicant left his boxer shorts at the rim of the bin morning of 20 October 2021. The real purpose was to prove the facts therein and that to be able to admit such, it has to be relevant and authentic (provenance).  Even if it is relevant, there was simply no evidence to show when and by whom this photograph was taken.  It is not for the defence team to give evidence to the effect that the alleged specifications including time that the photograph could be obtained by pressing one of the three dots on the screen.  Without being able to attach a time to the image, basis for relying on that to show that she was lying was lacking.  Expert interrogation is a prerequisite.  Prosecuting counsel’s remarks as to “how many similar boxer shorts the defendant had in his room”[12] and the concern about not able to refute such were indeed valid.  Given the doubtful provenance and lacking evidence of how the photograph came to be inside her phone, the judge was correct to disallow it. The prejudicial effect outweighed the probative value: Kissel v　HKSAR[13].

11.Ground 2 is a misplaced ground. The applicant had misunderstood the transcripts and also misplaced reference to transcript[14]. The judge did not disallow defence counsel to cross examine X as to her understanding of how many people she was to serve.  The judge did not want counsel to read out from her witness statement in doing so[15].  He was suggested to show her the witness statement instead.  It was further pointed out to counsel, in the absence of the jury, that as  the statement was not in X’s writing, it was “interpretation upon interpretation and a summary” made by police officers[16]; thus it was not directly relevant but goes to X’s credibility.

12.In relation to the evidence that the applicant had put his finger into X’s vagina[17], X confirmed that she had told Dr Kwok about this[18] and she disagreed with defence counsel putting to her that this never happened.  Defence counsel was not prevented from cross-examining X on her statement but the judge had made it clear the way to go about it if counsel so wished[19].  As to the time of arrival of the police, the judge merely pointed out to prosecuting counsel the error in time related by X was insignificant[20] since there was an admitted fact to that effect[21].  The judge also related to that in her summing up in telling the jury that “all human beings have frailties.  They may misremember something”[22].

13.Ground 3 is misconceived. The judge had repeatedly reminded the jury that if they find what the applicant said was true or may be true, he is entitled to be acquitted[23]; and she specifically reminded the jury that even if they rejected the applicant’s evidence, they would still have to look at the prosecution case[24]; she also reminded the jury the applicant’s good character.  Concerning the issue of independent evidence of penile penetration, the judge had reminded the jury that if they do not believe X that there was penetration, then they should assess and analyse all other evidence, including the evidence of injury and consider the expert evidence that it could be caused by rubbing of vagina or by a finger; which was a balanced and correct direction. The judge also reminded the jury about various matters and evidence in relation to the consideration of X’s credibility.  The remarks of the “disgusting” nature of the exhibits was made not as a comment by the judge but rather when the judge was repeating the words used by X[25].

14.As for Grounds 4 and 5 can be dealt with together. The proposed answer to the jury question was discussed between the judge and counsel at length[26]. As the real issue in this case was whether there was sexual intercourse, the judge was correct to explain to the jury that whether X had consented was never an issue in this case, in order to tell them not to move from evaluation of the evidence into speculation.  Nonetheless, the judge also further explained to the jury the legal definition of consent.  Upon that answer, the jury were sent out again at 5:47 pm.  They were brought back into Court again at 5:51 pm and the judge told them the way forward and what she proposed to do, stressing that there was absolutely no pressure on them whatsoever.  The jury came back with a verdict at 7:57 pm.  The complaint that the jury was pressurized to reach a verdict is groundless.

15.None of the grounds were reasonably arguable and I refuse to grant leave to appeal against conviction.

Appeal against Sentence

16.The judge did use strong words as to the manner the defence was conducted and expressed disapproval of the defence trying to introduce evidence which she disallowed:

“…but the manner in which you defended this case, shows absolutely no remorse. … Your attitude indicated the utter disdain that you had not only for the victim of this rape but also for the criminal justice system”[27].

“This is not a game, Mr Fung. Those who appear on your behalf are supposed to challenge the evidence of the prosecution, but at times they came dangerously close to being less than proper in the manner in which they did so. There appeared to be an expectation by the defence that this court would turn a blind eye to the rules of evidence and that there was no requirement to ensure that evidence adduced on your behalf was properly disclosed for what it was. You will not be penalised for that.”[28] (emphasis added)

17.I agree with Ms Parwani that the comment of the judge, taken in context, was directed at the defence team and the manner in which attempts had been made to introduce evidence via the backdoor[29]. Not only that the judge had not sentenced the applicant for the way he conducted his defence; she made it plain that the applicant would not be so penalized.  Neither did the judge enhance the sentence for applicant’s lack of remorse.

18.The Court was drawn to the attention of the cases of HKSAR v Lo Cheung On[30] and HKSAR v Chan Tung Hing, Band[31] which, Mr Wong submitted, draw similarity to the present case on the basis that they all concern the rape of a domestic helper, who was new to Hong Kong and had only arrived for a short period of time.  The accused in Lo’s case denied sexual intercourse and the accused in Chan’s case did not dispute intercourse but alleged the victim to have blackmailed him for money.  Both received 8 years’ imprisonment after trial with appeal against sentence dismissed.  The Court of Appeal remarked in those cases that what made the rape a traumatic one was that the helper was far away from home and having only recently arrived in Hong Kong:

“11. …in a relationship of employer and domestic helper, it is often the case that the helper is in a particularly vulnerable position. Not only is the helper financially dependent on the employer. The helper will be far away from her home country and her immediate family. We view the preying on such persons particularly seriously.”[32]

19.Mr Wong submitted that the 8 years’ imprisonment in those two cases already took into account the aggravating feature of a breach of trust and its traumatic nature, and the fact that no condom was used.  By enhancing 2 years for the aggravating features already taken into account in the 8 years starting point, the judge erred in double-counting.

20.It must be stressed that both cases did not set out any tariffs or guideline for this type of offence but rather an “indication of what is seen to be an acceptable sentence when certain circumstances exist”, per Ma, CJHC (as he then was), Chan Tung Hing, Band, at paragraph 9.

21.Mr Wong further referred this Court to the case of HKSAR v Tsang Wai Sun[33]. The Appellant was convicted after trial of 2 counts of indecent assaults and 2 counts of rape and the Court of Appeal reduced a total sentence of 11 years to 9 years and 6 months.

22.I noted that no guidelines or tariffs were laid down by these cases.  They have partial similarity to the facts of the present case bearing one or two common features.  The 8 years starting point taken into account the breach of employer/employee relationship of trust and that the rape happened within 5 days of arrival of X could not be faulted.  As each case is facts specific, it is not useful to compare this case against the total sentence in Tsang Wai Sun’s case.  Whilst the Court in Tsang’s case remarked that a total sentence of 11 years was extremely harsh and uncommon for cases of this kind, it was also stressed that the nature of the offence, the modus operandi of the defendant, the aggravating and mitigating factors of culpability that arise in the case, as well as the impact of the incident on the victim must be taken into account in sentencing[34].  The judge identified the following further aggravating features.  The applicant had been verbally abusive to X to the extent of belittling, demeaning and undermining her even before the rape.  It was a planned attack when the mother of the applicant was out.  The degree of violence used in the rape was clearly over what was necessary to overcome her as evident in the profuse bleeding caused by the penetration, that X was clearly distraught when she sought help via text and audio messages.  The judge also noted that the applicant had shown a complete lack of remorse[35].

23.Further,  X had to manage on the most basic means financially whilst awaiting to give evidence in this trial, and she was terrified of her Muslim husband finding out what happened.  The failure to use a condom risking pregnancy given X’s religious background and potential repercussion her Muslim family in Indonesia was an extremely serious feature. With all these aggravating features, the enhancement of 2 years resulting a 10 years’ imprisonment on the facts of this case is within bound of acceptable sentence.  Appeal against sentence is not reasonably arguable.

24.The applicant was reminded of his right to renew his application for leave to the Court of Appeal but such may attract a consequence of a direction for loss of time spent in custody pending his appeal, should the Court come to the view that there is no justification for the renewal of his application.

Ms Audrey Parwani, SPP of the Department of Justice, for the Respondent

Mr Wong Hay Yiu, instructed by Ong & Chung, assigned by Director of Legal Aid, for the Applicant, for the application for Leave to Appeal against Sentence

The Applicant appeared in person, for the application for Leave to Appeal against Conviction