Wong Leung v. The Queen

CACC000247/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 247 OF 1973

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

Date of Judgment: 12th November, 1973.

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JUDGMENT

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1. This is an application for leave to appeal against conviction. The appellant was convicted of incest. The particulars of the offence were that he had carnal knowledge of his daughter on the 21st of August, 1972. The case for the prosecution was that the appellant had had sexual intercourse with his daughter over a period lasting for some 3 ½ years, the last occasion being on the 21st August, 1972. The complainant was about 17 ½ at the time of the trial and so, if her story is true, she was about 14 when intercourse first took place.

2. The background of the case is this. Sometime late in the year 1968 the appellant's wife left him for another man. In law they were not married but they signed a separation agreement in January 1969, when it was agreed that they would cease to live together and that the appellant would look after and bring up the children of this association. The complainant is the eldest of the six children, all of whom lived with the appellant. For part of the period the appellant's mother also lived with them.

3. At the trial, the complainant was treated as an accomplice. And her evidence was entirely without corroboration. she was examined and cross-examined at great length during the trial. During her cross-examination, parts of certain statements made by her in the magistrate's court and, earlier, to the police were put to her. In the event, there were discrepancies and contradictions in her evidence, though this does not apply to her evidence as to the single act of intercourse on August 21st, the subject matter of the charge.

4. The defence was a denial and it was suggested that the course of conduct alleged by the complainant could not have taken place in what were very crowded quarters without it being known by the other occupants in the premises, including the appellant's mother who testified on his behalf that she saw nothing of a suspicious nature between her son and his daughter. It was also alleged that the complainant had sinister reasons for accusing her father of indulging in misconduct.

5. No fault can be found with the summing-up. The Commissioner who tried the case drew the attention of the jury to the fact that there was no corroboration of the evidence of the complainant and they were warned more than once of the dangers of convicting on her uncorroborated evidence. The Commissioner specifically dealt with the discrepancies and contradictions in her evidence and, indeed, he emphasized them. However, the jury unanimously convicted the appellant.

6. The sole ground of appeal is that which is contained in section 83N(1)(a) "that the finding of the court of trial should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory".

7. Mr. Tang, counsel for the appellant, drew out attention to the cases of R. v. Cooper⁽¹⁾ and R. v. Dovaston⁽²⁾ and we have also read the judgment of the House of Lords in R. v. Stafford and Luvaglio⁽³⁾ as it appears in The Times newspaper dated the 19th October, 1973. Another case is Krausz⁽⁴⁾.

8. In the case of Cooper⁽¹⁾, Widgery, L.J. said that the court is:

"..... charged to allow an appeal against conviction if we think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. That means that in cases of this kind the court must in the end ask itself a subjective question whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which make us wonder whether an injustice has been done. This is a reaction which can be produced by the general feel of the case as the court experiences it."

This passage was quoted with approval by Lord Dilhorne in the Stafford and Luvaglio case⁽³⁾ and it is the test which we must adopt when applying our section.

9. We do not think that it is right to state the facts of the cases which have been referred to by counsel to balance those facts against the facts of the present case in order to reach a decision. Each case depends on its own particular facts and we do not think that a comparison of the facts in the present case with the facts in other cases where the court reached the conclusion that the verdict of the jury was unsafe or unsatisfactory; nor do we think that it would be proper - even if it were possible - to state all the circumstances in which the Full Court will allow an appeal under this section. We accept the test propounded by Widgery, L.J. in Cooper's case⁽¹⁾ and we think, in the words of Lord Dilhorne in the Stafford and Luvaglio case⁽³⁾ "The clear and unambiguous words of the section must be applied."

10. Mr. Tang took us through the evidence of the complainant and the other witnesses and pointed out the inconsistencies and contradictions in the story of the complainant. The jury had the inestimable value of seeing and hearing the complainant in the witness box and they convicted the appellant unanimously after having received an impeccable summing-up in which the Commissioner specifically dealt with the inconsistencies and the contradictions in the complainant's evidence.

11. We have given earnest thought and consideration to this case and we have asked courselves to the subjective question posed by Lord Widgery in Cooper's Case.⁽¹⁾ We have reached the conclusion that this is not a case where we should set aside the verdict of the jury. We do not consider that their finding is unsafe or unsatisfactory. Therefore, the appeal is dismissed.

Representation:

R. Tang & J. Chau (D.L.A.) assigned for Appellant.

Lucas, D.D.P.P. for Crown/Respondent.

(1) (1969) 1 Q.B. 267.

(2) (1969) Crim. L.R. 24.

(3) The Times dated 19.10.73.

(4) (1973) Crim. L.R. 581.