Fong Lun Wan and Another v. The Queen

CACC000303/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 303 OF 1974

-----------------

-----------------

Coram: Huggins, McMullin & Pickering, JJ.

Date of Judgment: 6th November 1974.

-----------------

JUDGMENT

-----------------

Huggins, J.:

1. The two Appellants appeared before the Supreme Court on an indictment which, as amended, charged them jointly with aiding and abetting rape and with two counts of wounding with intent. There was an additional count of blackmail against the first Appellant. They were convicted on all the counts and were sentenced to fifteen years' imprisonment for aiding and abetting the rape and to ten years' imprisonment for aiding and abetting the rape and to ten years' imprisonment for each of the other offences, the sentences to run concurrently. Both Appellants appeal against conviction and sentence.

2. Originally the Appellants were unrepresented before us, but after hearing the first Appellant we adjourned the case to enable the second Appellant to obtain professional assistance. We have now had the benefit of argument by counsel.

3. The victim of the blackmail, of the rape and of one of the woundings was CHAN Yuen-yee. She had met the first Appellant when they were working in what has been described as a "Health Centre" and they started living together. Miss Chan tired of this relationship and had in mind to leave the first Appellant, but he thereupon demanded $60,000 as a "separation fee". That demand was the basis of the blackmail count and we see nothing whatever to justify our interfering with the conviction on that count. It must, however, be mentioned that the demand was made in the presence of one LAM Kam-tong, who also works in the Health Centre and who was the victim named in the fourth count. He eventually persuaded the first Appellant to reduce his demand to $3,500. That sum was to be paid on the following day. On the following day Miss Chan and Mr. Lam went to the first Appellant's flat, where Miss Chan had left some clothes. While they were there a gang of men, including both Appellants, came in and Mr. Lam was questioned about Miss Chan's relationship with the first Appellant. His answers did not satisfy the questioners and he was then assaulted. The assailants used four bottles, one of which was broken in the course of the attack, and they also punched him. After that he was forced to drink a glass of gin containing cigarette stubs and cigarette ash. Next, allegedly at the instigation of the first Appellant, the gang turned its attentions to Miss Chan and she was punched in the chest. There was evidence that the second Appellant suggested she orally masturbate each of the gang but that they did not agree. Thereupon he is said to have insisted that someone should have sexual intercourse with her and he forced her to strip and lie down by pointing a broken bottle at her neck. While one member of the gang raped her, the second Appellant and another man held her legs. The girl said that the second Appellant subsequently proposed to insert an aerated water bottle into her vagina and that he himself inserted one twice. It was this which caused the injury referred to in the third count.

4. It is contended that the witnesses were so unreliable as to make the convictions unsafe and unsatisfactory. Perhaps most significantly, while Miss Chan said that the second Appellant held her legs during the rape Mr. Lam said that the second Appellant was at that time attending to injuries on his (Mr. Lam's) head. Again Mr. Lam said it was the rapist and not the second Appellant who inserted the aerated water bottle into Miss Chan's vagina. Mr. Lam did not even corroborate Miss Chan's evidence that he had been assaulted by the second Appellant. It is urged that this Appellant has a hitherto unblemished record while Miss Chan was of doubtful character and also that his evidence was consistent with that of Mr. Lam. Counsel criticises the learned judge's suggestion to the jury that Mr. Lam's inability to identify the part played by each of the Appellants may have been due to the severity of the treatment he himself had received. Furthermore it is argued that as there was no application to treat Mr. Lam as a hostile witness it must be assumed that he had made no previous statement inconsistent with his evidence. This last argument we cannot accept: a witness is not "hostile" simply because he gives evidence which differs from his proof. As to the rest this was essentially a case where the jury had to make up their minds whether Miss Chan was telling the truth. It is certainly very strange that the victim himself should be unable to identify one of the Appellants as an assailant but the jury must have had this in mind. Unless, therefore, some specific misdirection can be established we see no reason to interfere.

5. The most substantial of the grounds of appeal relates to the direction concerning corroboration. The learned judge correctly warned the jury that it would be dangerous to convict on the second count upon the evidence of Miss Chan unless they found corroboration, and he correctly defined corroboration. He then went on:

In our view that was at best likely to confuse the jury. The implication of it was that there was evidence which could amount to the corroboration the judge had said was desirable. However, the corroboration which the jury should have been looking for was not corroboration "concerning the rape" or "as to the presence of the two accused": it was corroboration that the Accused aided and abetted the rape. As the judge said, that was the real issue which the jury had to decide. That was the issue upon which corroboration was desirable. There was no evidence capable of being such corroboration and the jury should not have been left in any doubt that if they convicted it must be upon the uncorroborated evidence of Miss Chan. It may well be that they did appreciate the danger or that they would have convicted if they had appreciated it. Counsel for the Crown invites us to say that the fact that the jury convicted on other counts which, being for non-sexual offences, did not call for corroboration shows that they would have convicted in any event and he submits that we should apply the proviso to s.81 of the Criminal Procedure Ordinance. Unfortunately we cannot be certain that the jury did not first reach a verdict upon the second count (which was clearly the most serious) in the belief that Miss Chan's evidence was corroborated and then consider the other counts in the light of that verdict. We are driven to the conclusion that the verdict against the second Appellant on Count 2 cannot stand. What has been said on behalf of the second Appellant and we think his conviction thereon must also be set aside.

6. We have already mentioned that a warning as to corroboration was strictly required only in respect of the second count. Nevertheless as regards the second Appellant we think it would be unrealistic to set aside the verdicts on that count and to leave the verdicts on Counts 3 and 4. Not only was the assault on Miss Chan sexual in nature but the evidence on these three counts was so similar that it is hard to imagine a jury's convicting the second Appellant on one and acquitting on the others. In that sense we think the verdicts on Counts 3 and 4 were unsafe and unsatisfactory.

7. Again the position of the first Appellant on Count 3 is similar but his position on Count 4 is somewhat different because, while there was no evidence that the second Appellant attacked Mr. Lam, there was evidence in the form of the first Appellant's own confession that the first Appellant punched him, although the first Appellant denied having used any weapon. There was abundant evidence that the attack on Mr. Lam included the use of bottles that he bled profusely and that he was beaten to the floor. Anyone who joined in the attack must have been aware of the severity of the attack and must, as the learned judge suggested to the jury, have intended really serious hurt. The verdict against the first Appellant on Count 4 can, therefore, be supported, but that on Count 3 cannot.

8. The result is that we quash the verdicts on all the counts against the second Appellant and the verdicts on Counts 2 and 3 against the first Appellant. With the utmost reluctance we have come to the conclusion that there must be a re-trial of these charges and we so order.

9. There remains the appeal of the first Appellant against the sentences on Counts 1 and 4. Serious as the blackmail was we cannot believe that the learned judge would have passed the sentences he did if the jury had not convicted also on Counts 2 and 3. We are no longer required to express any view as to the sentences passed on those counts but they were undoubtedly heavy. In all the circumstances we think the right course is to substitute terms of five years' imprisonment concurrent on Counts 1 and 4.

6th November 1974.

Representation: