HKSAR v. Shahid Mohammad Suleman

CACC 30 /2022

[2023] HKCA 1351

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 30 OF 2022

(ON APPEAL FROM HCCC NO 330 OF 2020)

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J U D G M E N T

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1.The applicant pleaded not guilty in the High Court before Johnny Chan J (“the judge”) and a jury to an indictment alleging a single count of rape, contrary to section 118(1) of the Crimes Ordinance, Cap 200. On 20 December 2021, the applicant was found guilty of the offence. He was subsequently sentenced to 5½ years’ imprisonment.

2.The particulars of the allegation were that, on 19 January 2020, inside Room A201, 2^nd Floor, Kam Tin Hotel at Kam Tin in the New Territories (“the room”), the applicant raped Madam X (“X”).

3.On 16 February 2022, the applicant filed a formal Notice of Application for leave to appeal against conviction only (“Form XI’).

4.Before me today, the applicant made an application to have this hearing adjourned so that he and his family could arrange funding to hire a lawyer outside the legal aid system, having been refused legal aid on 19 September 2022.  He said that it had taken him nearly 15 months to make this application because he did not understand the appeal system.  Accordingly, I explained that irrespective of my decision today, he could still arrange the services of a lawyer, since this hearing was only to determine if he had reasonably arguable grounds of appeal: it was not the appeal itself.  However, I was not prepared to grant an adjournment.  The offence was almost 4 years old and there are a number of parties who are concerned with the interests of justice: the prosecution, the applicant, the victim and the court.  The longer the period since the offence, the more difficult are recollections and the marshalling of evidence.  For this reason, the public have an interest in seeing that serious criminal offences are heard and determined within a reasonable time.

The issue at trial

5.The applicant did not dispute that sexual intercourse with X had taken place inside the room on the day in question.  The real issue at trial was whether that intercourse took place without X’s consent.

The prosecution case

6.X was an Indonesian domestic helper working in Hong Kong.  She was 25 years old at the time of the offence.  She had come to know the applicant through a dating application, called “Skout”, since December 2019 and they later began chatting on WhatsApp.  At the time, X was not happy with her current employer and was rather desperate to find a new employer, both of which matters she had told the applicant.  The applicant said he could introduce a new employer to her.  In their communications, the applicant also asked to have an intimate relationship with X, which X declined.  The two met for the first time on 19 January 2020.  On that day, the applicant told X that he could arrange a job interview for her.  The two finally met at the Kam Sheung Road MTR Station and took a taxi to the Kam Tin Hotel.  The applicant told X that the job interviewer was having a meal and they would wait for him/her in the hotel. 

7.After the applicant had checked in at the hotel lobby, X was taken into a room by the applicant and forcibly prevented from leaving.  After the two had chatted for a while, the applicant, against X’s wishes, kissed and bit X’s nipple, put his fingers inside her vagina and, having restrained and subdued her, inserted his penis into her vagina without using a condom.  X tried to resist but said that the applicant was too strong for her.

8.When the applicant had finished, X went into the bathroom to clean herself, after which the applicant offered her HK$100 for her taxi fare, which she refused.  She was angry that the applicant had lied to her.  The two left the hotel separately.  Almost immediately, X made a complaint to a Mr Chan Ka-wei (PW2), whom she had come to know online, and reported the case to the police on the following day.

9.Upon forensic examination conducted by Dr Wai Wing-kwong (PW6), the applicant’s semen was found inside X’s underwear.  X was also medically examined by Dr Kwok Ka-ki (PW5) and was found to have 0.5cm linear abrasions to her nipples, a linear abrasion of 1cm on her right wrist and abrasions of 1cm x 0.5cm in her genital area.

The defence case

10.The applicant, who was of clear record, elected not to testify and called no witnesses.  Relying on the statements in his video-recorded interview, admitted into evidence under section 65C of the Criminal Procedure Ordinance, Cap 221, his case was that X had consented to have sexual intercourse in return for HK$500.  However, following consensual sexual intercourse, X asked for more money, which the applicant refused.  An argument ensued, and X threatened to make a report of rape.  It was further the applicant’s case that X’s injuries were not caused by him.  Lastly, although the applicant only agreed to introduce X to a new employer if he found one, a potential employer had not yet been found.

The summing-up

11.In his summing-up delivered on Friday 17 and Monday 20 December 2021, the judge began by identifying what he described as “the key issue” in the case, which was “whether X consented to have sexual intercourse with the applicant at the time of the offence”, and the three questions the jury had to resolve^[1]. The prosecution and defence cases were then briefly set out^[2].  The judge gave the jury directions on the burden and standard of proof^[3], the elements of rape and the meaning of ‘recklessness’ and ‘honest but mistaken belief’^[4], and explained the significance of the applicant’s good character and propensity^[5]. In summarising the evidence, the judge went through the testimony of all witnesses, the WhatsApp messages retrieved from X’s mobile telephone^[6] and the relevant entries in the applicant’s video-recorded interview^[7].

The grounds of appeal

12.In his statement attached to his Form XI Notice, the applicant advanced four grounds of appeal.  Ground 1 complains of the judge’s comment during the cross-examination (sic) of PW6 that it was of no consequence that only X’s DNA was found in her fingernail scrapings; thereby ignoring the fact that the applicant’s DNA was not found.  Ground 2 contends that the judge inadvertently rushed the jury to reach their verdict by repeatedly telling them that it was the Winter solstice on 21 December 2021. Ground 3 complains that the summing-up was unbalanced.  Ground 4 avers that the judge did not follow the ‘route to verdict’ in the Specimen Directions. Accordingly, the jury may not have given adequate consideration to the elements of the offence.

The respondent’s submissions

13.Mr David Chan, for the respondent, submitted that when being questioned by the judge during evidence-in-chief, PW6 had commented that it would be very normal to find one’s own DNA in one’s fingernail scrapings. Since it was not disputed that the applicant had sexual intercourse with X at the material time, the absence of the applicant’s DNA on the fingernail scrapings, or the presence of semen in her underpants, did not assist the jury on the issue of consent.  The absence of the applicant’s DNA from X’s fingernail scraping was neither here nor there.

14.In respect of Ground 2, it is pointed out that towards the end of the first day of the summing-up, at about 3 pm on Friday 17 December 2021, the judge estimated that he would conclude his summing-up at about 10 am on the next hearing day (namely, Monday 20 December 2021), which would give the jury ample time to consider their verdict without running into the Winter solstice on 21 December 2021.  The main purpose of the remark was to explain why he could not send the jury out on that particular day and at that time, which was a Friday at 3 pm.  Moreover, shortly before the jury were sent out to consider their verdict at 9:58 am on 20 December 2021, the judge specifically told them, “Now, do not feel rushed.  Take your time.  There is no time restraint.”^[8] Mr Chan submitted that the judge did not “repeatedly” tell the jury that it was Winter solstice on 21 December 2021 as alleged.  In any event, the jury delivered their verdict just after lunch on 20 December 2021.

15.It was submitted in relation to Ground 3 that the judge covered the evidence of each witness in great detail.  The judge also went through the WhatsApp messages between X and the applicant, which were relied upon by the applicant in his defence case.  Further, the summary of X’s evidence was comprehensive.  It not only covered all salient points relevant to the key issue in the trial, but also the defence attack on the inconsistencies in X’s account.  The summing-up was said to be fair and balanced.

16.As to Ground 4, it was argued that the Specimen Directions were intended as guides for judges and not rigid templates^[9]. The judge’s directions on the issues of consent and recklessness were correct and adequate.  The failure to follow the ‘route to verdict’ would not have caused any misunderstanding as to the elements of the offence. 

Consideration

17.In relation to Ground 1, the judge’s impugned remark came during the examination-in-chief, not cross-examination, of PW6, immediately after PW6 had commented that it was “very normal” to have one’s own DNA under one’s fingernails[10]. The remark, or the matter generally, was not taken up in cross-examination by defence counsel at all.  However, counsel did make the point in her closing address to the jury that it was significant that the applicant’s DNA was not present under X’s fingernails.  The judge did not take specific issue with the point in his summing-up and expressly said he was not going to comment on counsel’s arguments so as “to avoid giving you the impression that I as the judge want you to make your findings one way or the other”[11].  This point, such as it was, was before the jury.  It is not a reasonably arguable ground of appeal.

18.As for Ground 2, the jury were sent out on 20 December at 9:58 am.  They returned their verdict shortly after lunch at 2:36 pm, which suggests, in accordance with normal practice and the judge’s direction that he would not take a verdict until 2:30 pm because of the difficulty of “get(ting) everyone back to court at a time when people may be having lunch somewhere else”[12], that the jury must have reached their verdict either before or, at the latest, during the luncheon adjournment.  The Winter solstice did not fall until the following day and was, in any event, a working day.  It is not reasonably arguable to suggest that the jury were somehow pressured, even inadvertently, by the judge’s remark the previous Friday into giving a verdict prematurely. Nor did the judge make reference to the matter repeatedly.

19.There are no particulars given in respect of Ground 3, which seems now to have become something of a routine, catch-all ground of appeal among unrepresented applicants.  In any event, there is no evidence at all of an unfair or unbalanced summing-up.  Quite the contrary, the summing-up, albeit lengthy, was scrupulously fair and balanced.  There is nothing in this ground whatsoever.

20.As for Ground 4, the summing-up was entirely clear on the elements of the offence and I do not think it is reasonably arguable that the judge should have slavishly followed a ‘route to verdict’, in circumstances where the fact of sexual intercourse was not disputed.  The live issues of consent and recklessness were both fully and correctly explained for the jury.  I can see no reasonably arguable ground of appeal in this regard.

21.I should add that, in his oral submissions, the applicant complained that not all of the WhatsApp communications between X and the applicant had been produced in court.  He asserted that X had deleted some of the messages, which would still have been on his telephone.  However, as Mr Chan pointed out, it was the applicant’s own case that he had resisted X’s entreaties for more money, ignored her and left the room.  He said he had “also blocked the number of X and deleted all the text messages that he had with X after the incident”[13]. When this was pointed out to the applicant, his argument in reply shifted to a complaint against his counsel for not somehow obtaining the deleted evidence. In my view, this did not amount to a credible complaint or a reasonably arguable ground of appeal.

22.The application for leave to appeal is, accordingly, refused.  The applicant is informed that he has the right to renew his application for leave to appeal against conviction to the full Court of Appeal, but he is also warned that the Court has the power to order the loss of any time which he has served pending the hearing of his appeal, if the Court were to come to the view that there was no justification for the renewal of the application.

[1]     Appeal Bundle (“AB”), p 14J-S.

[2]     AB, pp 14S-15F.

[3]     AB, pp 18E-P.

[4]     AB, pp 24B-25I.

[5]     AB, pp 27P-28H.

[6]     AB, pp 34C-47U.

[7]     AB, pp 56J-57E.

[8]     AB, p 61G.

[9]     Annexure (1): the Preface of the Specimen Directions (2020 Revision).

[10]   AB, p 83F.

[11]   AB, p 54K-M.

[12]   AB, p 61J-K.

[13]   AB, p 17B-C.