R. v. Cheung Siu Kwong

CACC000265/1996

IN THE COURT OF APPEAL

1996, No. 265

(Criminal)

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Coram: Hon Power Ag. C.J., Mayo J.A. and Gall J. in Court

Date of hearing: 12 December 1996

Date of judgment: 12 December 1996

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J U D G M E N T

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Mayo JA giving the judgment of the Court:

1. The Applicant seeks leave to appeal against his conviction for rape. He also seeks leave to appeal against the sentence of 7½ years' imprisonment imposed upon him for this offence.

2. The circumstances of the case were rather unusual. The trial was a retrial. The victim was a prostitute. The applicant met the victim who was referred to in the trial as Noelle at the China City Night Club in the early hours of the morning of 24 May 1995. The applicant engaged the services of Noelle and it was agreed that they should proceed to the Baccarat Hotel where a room could be booked for their purposes.

3. One of the main features of this case is that the applicant has a predilection for a particular type of sexual activity. He accepts that he is sexually aroused if his partner is bound up and dressed in panty hose.

4. The prosecution case was that after Noelle and the applicant arrived at their hotel room at the Baccarat Hotel he produced a knife and threatened Noelle with it. He then insisted on tying her up and making her wear panty hose. He then had sexual intercourse with her and left without effecting any payment for the sexual services he obtained.

5. Noelle gave evidence that in the circumstances she had not consented to having sexual intercourse with the applicant.

6. There was also evidence that when the applicant went with Noelle to the hotel he had with him a brown paper bag from which he took string, adhesive tape, panty hose, straps, baby oil, a knife, nail clippers and some pills. Noelle gave evidence that the applicant forced her to consume two of the pills.

7. Before the applicant left the hotel he wiped away all finger prints.

8. Noelle succeeded in freeing herself and telephoned her colleagues at the China City Night Club. Two of them came to assist her and take her to the Queen Elizabeth Hospital where she received treatment. She did not make a report to the police as she did not think that there was any chance of apprehending the rapist.

9. In the early hours of 14 August 1995 the applicant was at the Sing-a-long Karaoke Bar and Noelle was one of the ladies who was introduced to him. She immediately asked one of her friends to telephone the police so that she could report the earlier incident to them.

10. When the police attended the applicant had with him a brown paper bag. He had while waiting at the karaoke bar, attempted to secret the contents of the bag which consisted of some of the same items as had been described by Noelle.

11. His version of the events in May differed substantially from Noelle's. He claimed when giving evidence that he had specifically agreed with her that his sexual predilection should be catered to and an inflated price was agreed to reflect this. He said that shortly after the commencement of sexual intercourse he noticed that Noelle appeared to be having her menstrual period. This made him very angry. After a hostile verbal exchange he left and did not pay for any of the favours he had received. He assumed that Noelle had made the complaint against him in revenge for this.

12. The applicant made several cautioned statements to the police. The first statement consisted of a complete denial of the offence.

13. Subsequently he admitted having told lies and said that the reason for telling lies had been that he had attempted to avoid having to make embarrassing admissions.

14. This very shortly sets out the main issues arising in the trial.

15. The main ground of appeal is as follows:

"The learned trial judge, in what was otherwise an impeccable Summing Up, failed fairly or adequately to direct the jury as to their task in assessing the credibility of the witnesses in the case. In particular he did not address sufficiently the significance of the inconsistencies in the various accounts of the events given by the alleged victim, Lam Sau Man (PW1) nor that her evidence was in certain respects at variance with that of other witnesses called by the Crown."

16. Mr Harris in his written submissions refers to various inconsistencies in Noelle's evidence and the evidence of some of the other witnesses.

17. In this connection it will be appreciated as the trial was a re-trial there was much greater scope for inconsistencies to arise. If this is borne in mind it could be said that perhaps it was surprising that there should have been as few inconsistencies as in fact occurred.

18. The judge gave directions to the jury on how they should consider inconsistencies at p5 of the summing-up.

"This, as you know, and you have been told on a number of occasions, is a re-trial. Why are you told this, you may ask? You are told because the witnesses have given evidence on a previous occasion and some of them will have been, and have been, questioned about what they said on the previous occasion. In order for you to assess whether or not you can believe them, it is right that you should know that they have given evidence at a previous trial, and it is right that you should have that opportunity to test their truthfulness and their consistency, by matters being directed towards your attention as to whether they said something different on a previous occasion, something different on this occasion.

At that last trial, on that previous occasion, as you have been told, the jury did not agree in respect of the allegation of rape. And as far as the allegation of robbery was concerned, they acquitted, that is, they found not guilty. But, you must not speculate about why that jury were divided, as it were, unable to agree on the rape charge, nor must you speculate as to why they found the robbery count not proved, that he was acquitted, they found him not guilty."

19. It will be noted that the summing-up ran to 51 pages of typed script. By far the greater part of the summing-up was devoted to a recitation of the evidence and a commentary upon it. It is fair to say that Seagroatt J did condescend to a great deal of detail and it was a matter of judgment as to what should or should not be included in the summing-up.

20. It would have been impracticable to attempt to include all of the inconsistencies arising out of the evidence and we are satisfied that the summing-up did include sufficient detailed commentary upon the evidence to give adequate guidance to the jury. We are satisfied that the judge did very helpfully draw out from all of the evidence the crucial issue which had to be determined by the jury namely whether Noelle had consented to sexual intercourse being undertaken by the applicant.

21. Before us Mr Harris submitted that this was a case where there was a lurking doubt. One of the matters he placed reliance upon was that in the previous trial the applicant had been charged with both rape and robbery. He was acquitted of the robbery charge and there was a hung jury on the rape count. He submitted that this may have been indicative of the jury not being prepared to place reliance upon the evidence of Noelle. We do not consider that this would necessarily have been the case. This is not a conclusion which can be drawn from the previous trial.

22. There was a strong case made out by the prosecution if the prosecution witness evidence was believed. This conviction was in no way unsafe or unsatisfactory and the application for leave to appeal against conviction is dismissed.

Sentences

23. So far as the application for leave to appeal against sentence is concerned the facts of the case have already been outlined. It was a bad case and it involved a considerable measure of violence.

24. The judge did however give some credit for the applicant's previous good character. A sentence of 7½ years' imprisonment was in no way manifestly excessive or wrong in principle. This application is also dismissed.

Representation:

Mr J.W. Dick for Crown Prosecutor

Mr Graham Harris (M/S K.Y. Woo & Co.) for Applicant