Lai Chiu Hon v. The Queen
Read the full judgment text of CACC 26/1974 on BabelCite. This Court of Appeal judgment.
1. The Appellant was one of three men indicted on a total of four counts. There were two counts of rape, one against this Appellant and one against another Accused, and there were two counts of robbery against all three Accused. There were pleas of Guilty to the two robbery counts. The learned judge directed the jury to return a verdict of Not Guilty on the second count of rape on the ground that the assailant was not identified, but the Appellant was convicted on the first count of rape and it
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CACC000026/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 26 OF 1974 -----------------
----------------- Coram: Huggins & McMullin, JJ. Date of Judgment: 2nd April 1974. ----------------- JUDGMENT ----------------- Huggins, J.: 1. The Appellant was one of three men indicted on a total of four counts. There were two counts of rape, one against this Appellant and one against another Accused, and there were two counts of robbery against all three Accused. There were pleas of Guilty to the two robbery counts. The learned judge directed the jury to return a verdict of Not Guilty on the second count of rape on the ground that the assailant was not identified, but the Appellant was convicted on the first count of rape and it is against that conviction that he now appeals. 2. A party of young persons went for a late night barbecue on the night of 10th June 1973. They were sitting round in a ring with three lamps burning. They were suddenly attacked by a gang of some half dozen young men. They were taken aside one by one and systematically robbed. One of the girls was then dragged out of the ring into the bushes and her evidence was that she was there raped first by this Appellant and then by another man. 3. The case really turned upon the identification of the assailant. The victim alleged that this Appellant was the man who in the first instance robbed her and she clearly identified him as the one who subsequently dragged her away and committed the rape. The Appellant, of course, admitted his part in the robbery but he denied the rape. 4. It was, according to the evidence, a moonlit night. The three pressure-lamps were burning when the attack started but they were broken in the course of the attack. There was corroborative evidence by another witness as to the identity of the assailant and there was also a confessional statement in which this Appellant clearly admitted raping a girl. However, he attacked this as being an involuntary statement. The learned judge heard evidence on that issue and the statement was admitted in evidence. 5. On this evidence it was clearly open to the jury to return the verdict which they did. One small point has been raised by the Court upon the direction given to the jury. At the beginning of his summing-up the learned judge said:
and then he went on to explain what was meant by a majority verdict. We think it right to point out that s.24 of the Jury Ordinance does not leave it open to a jury to return a majority verdict in every case even where the offence is not a capital offence. Sub-section (1) begins:
In Shaw Brothers (H.K.) Ltd. v. Golden Harvest (H.K.) Ltd. (No. 2) 1972 H.K.L.R. 147 Blair-Kerr, J. referred to a Practice Direction in England (1967 3 All H.R. 137). He said at p.170:
That Practice Direction was, of course, based upon the United Kingdom legislation, which requires consultation for a set time before a majority verdict is received. With respect to Blair-Kerr, J. we think that perhaps he went a little too far. It may well be desirable that a direction on the lines of the Practice Direction should be given but in our view it is not essential. On the other hand we do not think that the matter should be left, as in the present case, simply as an open choice to the jury to return a unanimous or a majority verdict and it should be made very clear to them that a unanimous verdict should be reached if it be possible. 6. We have considered whether the direction in this case is sufficient to vaise any doubt upon the sufficiency of the verdict based upon identification. The identification issue was very clearly put to the jury. There was only this one issue for them to decide and they retired for over 40 minutes. In our view there is no justification for our interfering with the verdict which they reached. In all other respects we think the summing-up was impeccable. 7. This application is therefore dismissed. 2nd April 1974. Representation: |