R. v. Dey Chi Kong

CACC000267/1996

IN THE COURT OF APPEAL

1996, No. 267

(Criminal)

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Coram: Hon Bokhary J.A., Mortimer and Mayo, JJ.A. in Court

Date of hearing: 12 March 1997

Date of judgment: 12 March 1997

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J U D G M E N T

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Mayo J A giving the judgment of the Court:

1. The applicant seeks leave to appeal against his conviction for rape.

2. The issue in this case turned entirely upon whether the victim an 18 year old lady had consented to the applicant having sexual intercourse with her.

3. At the time of the alleged offence the applicant had a job as a security guard. The victim who was an insurance saleslady was visiting a client. It was the prosecution case that when she was being vetted at the premises she was visiting by the applicant he said that he was himself interested in purchasing an insurance policy. The victim left her name card with him.

4. Later he telephoned her and made an appointment to meet her so that the possibility of his purchasing a policy could be pursued. They met at a fast food outlet. The applicant then suggested that they should go to his flat which was nearby.

5. This was agreed to. They went to the flat. After a short while he sat on her lap and produced a knife. He threatened her with it and demanded money. She said he could have the money she had on her but that it wasn't very much.

6. He then said that he wanted her to "make him happy". He ordered her to remove her clothes and go into the bedroom. He fondled her and then started to have sexual intercourse. While doing so he withdrew from her and put on a condom. He then completed the sexual intercourse.

7. After its conclusion he apologised for what he had done. He said that he wanted to be friends with her. They left the flat and went by taxi to Tsimshatsui. The applicant dropped her off there.

8. She told one of her friends - a male - that she had been raped and arrangements were then made for a report to be made to the police.

9. The applicant was arrested later the same day. On arrest he denied having raped the victim but he admitted that he had sexual intercourse with her. He gave evidence in his defence and stated that the victim had consented to have sex with him.

10. The trial judge Woo J pointed out all of the aspects of the case which were in the applicant's favour including the fact that the police after searching the applicant and his flat never found the knife which had been referred to by the victim. He also pointed out that the applicant had given the victim sufficient personal details to enable her to have him arrested on the same day. Indeed the flat where the incident occurred was the flat he normally occupied.

11. At the end of the day it has to be said that all of these matters were before the jury and they were properly directed on the evidence.

12. Indeed one of the complaints made by the applicant in his grounds of appeal was that the jury reached the verdict it did notwithstanding the fact that the judge outlined in detail all of the issues favourable to the defence. The other point raised by the applicant was that the jury might have been influenced by the press and other publicity surrounding the case. The judge specifically directed the jury that they must confine themselves to the evidence which was before them.

13. In addition to this before us he claimed that no solid effort had been made by his counsel to prepare a submission of no case to answer. There is no merit in this contention. This is not a case where such a submission could convincingly be made. He also claimed that insufficient direction had been given concerning the burden of proof. This is simply not the case. He also appears to have been under the impression that the judge should have resolved all the doubts in his favour and informed the jury of that. This would clearly be a usurpation of the function of the jury.

14. There is no reason to believe that this conviction was in any way unsafe or unsatisfactory and this application is dismissed.

Representation:

Mr D.G. Saw, SACP for Crown Prosecutor

Dey Chi Kong - Applicant in person/present