Chan Sau-man v. HKSAR

FAMC000008/2004

FAMC No. 8 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 8 OF 2004 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 403 OF 2000)

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Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 26 March 2004

Date of Determination: 26 March 2004

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DETERMINATION

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Mr Justice Bokhary PJ:

1.This applicant faced one count of rape. In September 2000 the jury convicted him, and the judge sentenced him to seven years' imprisonment. He went to the Court of Appeal, complaining about his conviction and sentence. In October 2001 that court affirmed both. By an application launched in January this year, the applicant now seeks leave to appeal, out of time, to the Court of Final Appeal on conviction and sentence. It is argued on his behalf that he has suffered substantial and grave injustice on both.

2.As to conviction, the first complaint put forward on the applicant's behalf, taking it from the applicant's skeleton submission, is that

"the trial Judge failed to give the jury the traditional common sense based warning usually given in all rape cases and especially where there is no other evidence supporting the complainant and there are crossmotives as between complainant and defendant."

The second such complaint is that

"the trial Judge failed to clearly summarise a significant probable untruth (revealed by her subsequent inconsistent conduct) given in evidence by the complainant."

And the third such complaint is that:

"There was a general failure by the trial Judge to set the 'duff' in the complainant's evidence alongside the 'plums'."

Each of these complaints is particularised in the applicant's skeleton submission. We have considered, but need not rehearse, these particulars.

3.As to sentence, it is contended on the applicant's behalf that the sentence was "manifestly excessive" in the circumstances.

4.Each of the complaints in regard to conviction involve what are essentially matters for the discretion of the trial judge who would have the "feel" of the case by virtue of receiving the evidence at first-hand. As to the first complaint, we see no reasonable basis for arguing that it was a departure from accepted norms not to have gone further than to urge caution by directing the jury to approach the complainant's unsupported evidence with care. And as to the second and third complaints, we see no reasonable basis for arguing that any such departure was involved in the judge not having laboured the points which the defence made in its attack on the complainant's evidence. A summing-up is not meant to be a second closing speech for either the prosecution or the defence.

5.Turning to sentence, it has to be borne in mind that the threats which the applicant used against the complainant included a reference to his ability to get persons to "gang rape" her. And the violence which he used against her, it has to be borne in mind, included his carrying her to a 12th storey window and acting as if he would throw her out of it. These were the circumstances of this rape. There is no reasonable basis for arguing that this sentence strayed beyond the bounds of accepted norms.

6.In the result, leave to appeal is refused both in respect of conviction and in respect of sentence.

Representation:

Mr John Haynes (instructed by Messrs Haldanes and assigned by the Legal Aid Department) for the applicant

Mr P.S. Chapman and Mr Simon Tam (of the Department of Justice) for the respondent