HKSAR v. Li King Sing Ivan

CACC000288/2000

CACC 288/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 288 OF 2000

(ON APPEAL FROM HCCC 402 OF 1999)

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Coram: Hon Stuart-Moore VP, Mayo VP and Wong JA

Date of Hearing: 4 May 2001

Date of Judgment: 4 May 2001

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 28 June 2000, following a trial in the Court of First Instance before Lugar-Mawson J and a jury, the Applicant was convicted of indecent assault (count 1). The jury acquitted the Applicant on two further counts (counts 2 and 4) which respectively alleged indecent assault and rape. On the third count of attempted rape, the judge had directed an acquittal at the close of the prosecution's case on the ground that there was no case for the Applicant to answer. The Applicant now seeks leave to appeal against conviction on the first count.

Prosecution's case

2. The alleged victim was employed by the Applicant as a domestic helper. She came from the Philippines and was then aged 20. The Applicant was a serving police officer, aged 41. He was married and had a daughter who was 2 years and 9 months old at the time of the alleged offences.

3. The prosecution's case was that between 9 September and 21 September 1999, the Applicant had sexually assaulted the victim on three occasions before eventually raping her. The sexual assaults were said to have been increasingly serious in their nature.

4. The first count related to what effectively amounted to an allegation of groping the victim on a bed in the Applicant's flat on 9 September 1999 while his daughter lay asleep on the bed. The second count made an allegation of a similar kind but the indecent assault was said to have been rather more sustained. It began in the sitting room and continued into the bathroom and was allegedly brought to an end because the Applicant's daughter could be heard crying outside the bathroom door. These events were said to have occurred during the morning, on 17 September 1999. The allegation in count 3 was that during the afternoon of the same day, the Applicant attacked the victim again, but in circumstances which justified a charge of attempted rape. The fourth count of rape allegedly occurred on 21 September 1999 during the afternoon. The victim stated that she was raped on the floor beside the bed where the Applicant's daughter was asleep.

5. On all the occasions when these events supposedly took place, the Applicant's wife was away from home, at work. There was no corroboration in law of any of the complaints the victim had made. There was, however, some evidence of recent complaint about the allegations in counts 1 and 4 although there were, as the judge stated, marked inconsistencies between the victim's account of these offences when compared to the accounts given by the witnesses to whom she had complained.

Defence case

6. The Applicant denied that any of these incidents had taken place. There was evidence from the Applicant, which was confirmed by the victim herself, that the victim was unhappy in Hong Kong and was homesick. The judge dealt with this aspect of the defence, when summing up to the jury, in these terms:

"You are entitled to consider .... whether or not she has imagined these events in an attempt to get out of Hong Kong and to return home."

7. The Applicant's own way of expressing how the allegations he faced may have come about is encapsulated in an answer he gave to the police:

"I don't know why (the victim) said that I indecently assaulted her, attempted to rape her, and even raped her. I believe that maybe on September 24, 1999 morning, my wife found a gold finger ring which I gave her as present. She was very angry and fired her. Therefore, this might trigger the occurrence of this incident." (Appeal bundle p. 57)

8. It was an accepted feature of the defence case that the Applicant had, without the knowledge of his wife, given his domestic helper a gold ring which in her presence he had bought for her at a well known jewellery outlet.

Grounds of appeal

9. The three grounds of appeal effectively complain that the verdict of guilty on count 1 was inconsistent with the jury's verdicts on counts 2 and 4. All of the verdicts were returned after the jury had deliberated for about thirteen hours, spread over two days.

Submissions for the Applicant

10. In advancing the contention that the verdict on count 1 was inconsistent with the verdicts on the remaining counts, Mr Haynes, who also appeared on the Applicant's behalf in the court below, submitted that there was nothing which enabled the jury to convict on the first count which could sensibly be distinguished from the evidence on the remainder of the indictment when, throughout the trial, it was the victim's credibility and her reliability on which the prosecution wholly depended. Mr Haynes particularly pointed to the similarities between the evidence on the first two counts. He also suggested that the evidence on count 1 had been somewhat disturbing as it was only given after "some ill-defined overnight 'encouragement' (which) had been administered to the witness by members of the police investigating team whilst looking after the complainant during an overnight adjournment in the middle of her evidence". In fact, as we can accept from Mr Haynes, and it is unfortunate that this was the case, although it was intended that a police team independent of the inquiry should look after the victim overnight, in fact as it turned out some members of the investigating team were also responsible for her custody.

11. That being said, a study of the passages in the transcript to which Mr Haynes has referred during the course of argument today, reveals that after the court had adjourned on 14 June 2000 and the victim had been taken back for overnight custody with the police, she had been told no more than to be "strong in mind and to tell the truth". The victim said (at page 136 of the bundle) that she had not been coached as to what she should say and she had not been shown any documentation to refresh her memory.

12. Mr Haynes also complained that the evidence of 'recent complaint' relating to the first count introduced what he described as "fantastic elements" never mentioned by the complainant in her evidence. The judge summed up the victim's evidence about this as follows:

"This is what she said about the complaints that she made in relation to the alleged indecent assault on 9 September, this is her evidence-in-chief: 'My aunt, Lilibeth, phoned me. I can't recall if I phoned her or if she phoned me. She asked, how was your employer treating me? I said, "He is not good." She advised me to avoid him and to pray. I said we'd talk on my day off, on the Sunday. My day off was Sunday 12 September. I met my Aunt Lilibeth at Wong Tai Sin MTR and we went to a church in Tsim Sha Tsui. We spoke about the incident in the church. I told her, 'My employer is not good. He's touched me, 'tsan sing', that means he touched the parts, my breasts. I said no more to her. She told me to pray." (Tr. p. 27)

13. The judge then gave a summary of Lilibeth Batoon's account of the victim's complaint which was in these terms:

"Lilibeth Batoon, about this, said this: 'On 11 September I was at our house. I can't recall the time, but I remember that she called on 11 September in the afternoon. She said she was kissed on the lips, "Aunty, he kissed me on my lips." I understood "he" to be her employer. I asked her, "How are you?" She answered she was kissed by this employer. No more was said. This was in a phone conversation. I remember it was (the victim) who called me. I got the impression that she was feeling bad. Her voice was (sad). It was a short phone conversation because I was working and I was very busy. I arranged to meet her on 12 September at Wong Tai Sin MTR. We went to a church in Tsim Sha Tsui. She complained again inside the MTR. She complained the employer was sometimes touching her breasts, I don't know how many times. I said if he repeats it, report it to his wife.'

Lilibeth Batoon accepted in cross-examination by Mr Haynes that in her first statement to the police, one that she had made on 25 September 1999, she said nothing to the police about (the victim) saying to her that the defendant had touched her breasts." (Tr. pp. 27-28)

14. In relation to the second count, the judge reminded the jury that although the victim had made the allegation against the Applicant and had said she had complained about what he had done to Lilibeth Batoon:

"Aunty Lilibeth said nothing at all about the 17 September alleged incident." (Tr. p. 28)

15. There was, in relation to the first count, further evidence of complaint which came from Cecilia Ocampo. In summarising her evidence, the judge said:

".... she's not a relative of (the victim's) - she said that she met (the victim) on a Sunday in the playground of the block at which both of them worked. Cecilia Ocampo believed that that was on 12 September. There is no doubt about it, members of the jury, 12 September was a Sunday. According to Cecilia Ocampo, she was 'sad' and she was 'speechless'. Cecilia Ocampo said that (the victim) told her that her employer was touching her. She said the words she used is, 'Older sister, he's touching my body. She said, I have a problem ....' - this is (the victim) speaking - 'I have a problem. I am scared, very scared. What will I do?' Cecilia Ocampo said to her, 'Dial 999.' She said that (the victim) did not know what that was and when it was explained to her she said to Cecilia Ocampo that she did not want to do that. Cecilia Ocampo said, 'Well, tell your female employer about it.' Cecilia Ocampo said the conversation with (the victim) lasted for about 30 minutes.

She also said that (the victim) had told her in that conversation that the defendant had touched her - that is (the victim) - while she was changing the child's diaper. There is nothing in (the victim's) evidence, members of the jury, about that." (Tr. pp. 31-32)

16. The judge also dealt with the evidence of 'recent complaint' about the alleged rape in count 4 and reminded the jury in relation to all the evidence in this category that the defence had alleged that the reasons for the inconsistencies between the victim's account of events in counts 1 and 4 was that the victim had been lying.

17. Mr Haynes made no criticism of the judge's summing up, including the inevitable and necessary direction that each count should be considered separately. He did say that with hindsight he might have reconsidered how he had approached this aspect of the case at trial. His present stance was that the verdicts on counts 1 and 2 should have been the same and that, as they stand, the verdict on count 1 was perverse because it defied logical analysis. In Mr Haynes' submission, once the victim had been disbelieved on the second count, and remembering that so far as counts 3 and 4 were concerned, there had been no substance to them either, the verdict on count 1 should inevitably have followed the same course.

Respondent's reply

18. Mr Chapman, on behalf of the Respondent, in his reply to these submissions, contended that the summing up was a model of accuracy, both in evidential and legal terms. He reminded us of the well established position in law, taken from R v Durante [1972] 56 Cr App R at 708 and adopted in R v Cheng Man-to [1987] 2 HKC 261, that the burden of persuasion was on an appellant to establish an inconsistency between verdicts. In the present context, the Applicant, he submitted, had to show that the guilty verdict on count 1 was inconsistent with the acquittal on count 2. He rightly submitted that the intervention of this court would only be called for if the verdicts on those two counts could not stand together because no reasonable jury, having applied their minds to the facts of the case, could have come to the verdicts which they returned.

19. Mr Chapman realistically accepted that the verdicts returned by juries do not always reflect what lawyers might consider to be a "perfectly logical" approach. This was recognised in R v Kirkman [1987] 44 SASR 591 where King CJ observed at 593:

"Juries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of the law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting them of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts should therefore not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty."

20. This passage was adopted and followed by the High Court of Australia in R v MacKenzie [1996] A Crim R 468 at 483. The essence of Mr Chapman's submission, in the light of MacKenzie, was that the jury may simply have been doing its job according to the oath each of its members had taken. They were effectively saying, he contended, that they were sure of count 1 but were not sure about counts 2 and 4. Whilst, superficially, the distinction drawn by the jury between counts 1 and 2 might at first appear to be illogical, this did not, he suggested, reach a standard of irrationality such as to require the intervention of this court.

21. Mr Chapman laid emphasis on the fact that the evidence on count 1 was essentially self-contained. It related to events on 9 September 1999 which were complained about a few days later to the victim's aunt (Lilibeth Batoon) and a friend (Cecilia Ocampo) before the events which were the subject of the later counts on the indictment. By contrast, there was no evidence which supported the victim's contention that she had made a complaint to her aunt after the indecent assault alleged in count 2.

22. Mr Chapman also made the very obvious but nevertheless important point that the jury was entitled to take the view that count 4 had not been made out as alleged, given the nature of the evidence called to support it. This, in other words, could be rationalised quite independently from the verdicts on counts 1 and 2. Furthermore, albeit he accepted that it was a matter of much less significance, Mr Chapman submitted that the acquittal on count 3 on the judge's direction may have had some bearing on the jury's approach because it related to an allegation on the same day as the offence alleged in count 2.

Conclusion

23. We take the view that the argument as to inconsistency should be considered in the light of the verdicts on counts 1 and 2. Count 4 lends very little strength to the argument as there were separate and discreet reasons why the acquittal on that count might well have been returned which have little or no bearing on the other verdicts.

24. In our approach to the submissions of counsel on both sides in this application, we think it right to adopt the two-stage test, taken from Durante (above), which was propounded by Hutchison LJ in R v Clarke & Fletcher CA, July 30 1997, Cases 96/5638/X2 and 96/5797/X2 (unreported), at page 5 in the report provided to us by Mr Chapman, where he said:

"To succeed the appellant must show, first, that the verdicts are logically inconsistent and, secondly, that they are so inconsistent as to demand interference by an appellate court - i.e. that there is no way in which the logically inconsistent verdicts can be sensibly explained."

25. In the same year as that decision, the English Court of Appeal held in R v Van Der Molen [1997] Crim L R 604 at 605 that:

".... it did not follow that because the jury must have disbelieved a witness or rejected his or her evidence with the result that it acquitted on one count, it was necessarily acting irrationally to rely on the evidence of the same witness to convict on another count. The Court had to be very careful not to usurp the role of the jury who had heard the witnesses and considered the matter long and hard."

26. In the following year, in R v G [1998] Crim L R 483, the English Court of Appeal held that:

"A person's credibility is not a seamless robe, any more than is their reliability. The jury had to consider (as they were rightly directed) each count separately, and might take a different view of the reliability of the evidence on different counts. It was too simplistic to draw a stark distinction between reliability and credibility (as had been put in the argument). It was for the jury to decide on the basis of all the material before it whether it was sure of the particular allegation in each count."

27. All of these decisions, and those to which we earlier referred, serve to illustrate yet again the importance of according respect to the verdict given by a jury. Having said that, obviously, if the verdict amounts to what can effectively be described as 'nonsense', then it cannot be allowed to stand.

28. In the present case, the Applicant might well have regarded himself as having been unfortunate to find himself convicted on count 1, bearing in mind the verdict on count 2. However, the judge had given meticulously fair directions on every aspect of the evidence and the law. The jury had been left under no illusions as to the inconsistencies demonstrated in the evidence of 'recent complaint' on count 1 and as to the lack of any evidence to support a complaint on count 2. We can well understand that the jury may have been troubled by the fact that the victim stated that she had made a complaint about the allegation contained in count 2, which (in relation to the arrest and investigation) Mr Haynes called a much "fresher" allegation, and yet when the witness to whom she was supposed to have complained was asked about this, she failed to confirm any such complaint. This important difference in the nature of the evidence so far as it concerned each of these counts provides in itself one reasonable explanation as to why the jury might have felt unable to be sure about count 2 although they were able to feel sure about the victim's allegation in count 1.

29. We are satisfied that the guilty verdict on count 1 can be safely allowed to stand. Accordingly, this application is dismissed.

Representation:

Mr P.S. Chapman, SADPP and Mr Jonathan Man, GC, of the Department of Justice, for the Respondent.

Mr John Haynes, instructed by Messrs Burney Wu Scharsig, for the Applicant.