Li Man-lung and Another v. The Queen

CACC000199/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 199 OF 1974

-----------------

Coram: Briggs, C.J., Huggins & McMullin, JJ.

Date of Judgment: 21st October, 1974.

-----------------

JUDGMENT

-----------------

1. This is an appeal against conviction. The first appellant was convicted of the offence of rape and of forcible abduction of a female, and the second appellant was convicted of aiding and abetting the first appellant to commit the offence of rape and also of the offence of forcible abduction of a female.

2. On September 2nd, 1973, the complainant, a girl called Wong Yee-wah, was telephoned by the first appellant. She had known him only for about two days. As a result of the phone call she agreed to meet him and to give him a certain book that he wished to borrow. She went to the address of the first appellant, being accompanied by one Miss Man Lai-ming, who was one of her friends. They met the first appellant at the flat and the three of them. together with some others went for a short walk. It was agreed that they would go to a cinema later that evening. Wong Yee-wah and the first appellant went back to the first appellant's flat by themselves. When they arrived there were other persons present at the flat and more persons arrived after that.

3. The case for the prosecution was that some of these persons in the flat, including the second appellant, threatened the complainant with razor blades and used threatening language and, in effect, suggested that she must submit to sexual intercourse or be seriously injured. After some time the complainant was left alone with the first appellant in a bedroom in the flat. And it is common ground that they both undressed and had sexual intercourse. Later, the first appellant and the complainant dressed and left for a restaurant accompanied by some of the other persons. When coming away from the restaurant the complainant, who was accompanied by the first appellant met her elder brother. He immediately slapped her face and certain words were said by the complainant to him either in answer to a question put by him or in answer to something which was said by another member of the party.

4. The complainant was a virgin before the incident. She was not bruised or scratched in any way. And her clothes were not torn.

5. The sole point at issue in this case is whether or not the complainant consented to sexual intercourse.

6. Two grounds of appeal were filed which suggest that it would be unsafe to allow these convictions to stand. The first is a complaint as to the manner in which the prosecution was conducted in court. The second is a complaint of a misdirection to the jury by the trial judge when dealing with a portion of the evidence.

7. On reading the record it is obvious that counsel for the prosecution was permitted to cross-examine his own witnesses. These included the complainant and three witnesses who were friends of the appellants. In addition, the judge allowed in particular, one witness who was a dance hostess, to be treated as a hostile witness at the request of counsel for the prosecution. Counsel then put to her a statement which she had previously made to the police which included matters which, in the witness box, she said she could not remember. It is clear from the record that counsel for the prosecution took this course in order to make the contents of her previous statement to the police part of his case against the appellants.

8. We do not think that this witness should have been treated as a hostile witness. The correct procedure should have been for counsel for the prosecution to ask permission from the judge to allow the witness to refresh her memory from the statement which she had made previously to the police. In the event, this was not done and we think that the jury may have received the impression that they could rely upon the previous statement she had made to the police as being evidence against the appellants.

9. This matter was dealt with by the trial judge in his summing-up but the examination not only of this witness but also of two other witnesses called by counsel for the prosecution was so vigorous that it amounted, in our opinion to bullying.

10. In the summing-up, it was suggested that the complainant might have made a complaint to her brother when he arrived at the restaurant and slapped her face. The evidence as to this was conflicting and at best equivocal. The complainant herself gave evidence which could be read in more than one way and we do not think that the evidence as to any complaint made by the complainant was satisfactorily dealt with in the summing-up.

11. In the circumstances we consider that it would be unsafe to allow these convictions to stand.

Representation: