HKSAR v. Tang Kwok Wah Dixon

CACC000318/2000

CACC 318/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 318 OF 2000

(ON APPEAL FROM HCCC 29 OF 2000)

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Coram: Hon Stuart-Moore Ag CJHC, Woo & Stock JJA

Dates of Hearing: 8 and 9 March 2001

Date of Judgment: 27 March 2001

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

Introduction

1. On 14 July 2000, following a ten-day trial in the Court of First Instance before Burrell J, the Applicant was convicted by a jury on two counts of a six-count indictment. The convictions were in respect of indecent assault (count 3) and rape (count 6). The jury acquitted the Applicant on the remaining counts, all of which alleged indecent assault. The Applicant was sentenced to 12 months' imprisonment on count 3 and to 6 years' imprisonment on count 6. The two sentences were ordered to run consecutively, making 7 years in all. The Applicant now seeks leave to appeal against conviction.

2. The common factor in all the counts on the indictment was that they involved the same victim. She was twenty-seven years old at the material time and worked for the Applicant as a domestic helper. The counts alleged that she had been indecently assaulted on five occasions between 3 and 10 November 1999 before she was raped by the Applicant on 11 November 1999.

Prosecution's case

3. The alleged victim began her employment with the Applicant on 15 August 1999. She was given accommodation at the Applicant's house in Shouson Hill where a second domestic helper, "Linda", also lived. A third member of staff, "Allen", was employed as a driver. He lived in Wanchai.

4. The victim alleged in relation to count 1 that on 3 November 1999, after she had been asked to massage the Applicant in the morning, he touched her breast and kissed her cheek before paying her $300. As to the second count, during the evening of that day, the victim said that the Applicant had walked behind her in the kitchen and touched her on her buttocks.

5. The events relating to count 3 occurred on 6 November 1999 during the morning. The prosecution's case was that the victim was asked by the Applicant to give him a massage and that the Applicant removed his clothing. At one stage the Applicant told the victim to touch his penis and then made her kiss it.

6. The events in counts 4 and 5 occurred on 8 and 10 November 1999 respectively. In the first of these incidents, the victim said that she was in bed on her day off when the Applicant came into her room, touched her on the breast and kissed her. In the second incident covered by these counts, it was alleged that the victim's breast was touched while she was inside the downstairs bathroom with one of the Applicant's children.

7. On the following day, shortly before the rape alleged in count 6, the victim was taking a shower at about 7:15 am when she heard someone trying to come into her bathroom. She asked who was at the door and the Applicant replied: "Open the door." She did not do so. Sometime later, when the victim was near the Applicant's bedroom, she met him and could sense that he was angry. She went into his bedroom at his direction where he locked the door behind them. The Applicant then held both the victim's hands and pulled her towards the bed. The victim said that she struggled and that, as she did so, her head banged against a wooden sofa. She was then pushed onto the bed. The Applicant held her hands above her head and got on top of the victim. He pushed up her T-shirt, took down her jeans and raped her.

8. The Applicant's wife was at that time taking the children to school. Soon after these events, the Applicant left home to go to work. Not long afterwards, at 9:45 am, the police console operator received a 999 call from the victim complaining that her employer had raped her. A woman police constable (PW2) went to the Applicant's house where she found the victim "very emotional and weeping". She observed areas of redness on the victim's forehead, both breasts and her thighs. The medical evidence about injuries came from a pathologist who found a faint bruise on the victim's forehead, linear abrasions on the back of her head, small linear abrasions on her back, and bruising on the left and right forearms. He found no injury to the victim's private parts.

Defence Case

9. The Applicant gave evidence at his trial. He asserted, so far as the incidents alleged in counts 1, 2, 4 and 5 were concerned, that there had been no contact at all between himself and the victim. He did, however, concede that intimacy had occurred between himself and the victim on the other two occasions, relating to the events in counts 3 and 6. The Applicant blamed the victim for having initiated the sexual contact between them on each occasion, stating that their respective actions had been consensual. He had paid her $300 in respect of the incident in count 3, and $500 for the incident in count 6.

10. In regard to the sixth count, it was suggested on behalf of the Applicant that the injuries which the pathologist had observed on the victim may have been self-inflicted and the medical evidence confirmed that they could have been. The Applicant's case generally suggested that the accusations he faced were because the victim, who had been considerably in debt, may have been motivated to blackmail him into paying money to her. In essence, it was his case that the victim had been trying to seduce him for almost a week and that she had framed him.

11. The account given by the Applicant to the jury was in accordance with the statements he had given to police soon after his arrest. By contrast, Mr Plowman, SC, who represented the Applicant at trial, was able to place heavy emphasis on a large number of inconsistencies between the victim's five earlier witness statements when compared to her evidence at trial as well as the contradictions in her testimony and the evidence of other witnesses. We are told, and we accept, that the victim gave evidence in-chief for just over three hours and that her cross-examination extended over seven hours. The principal inconsistencies which are to be found in the victim's accounts were commented upon at length by leading counsel in the course of his final speech.

Grounds of Appeal

12. Seven substantive grounds of appeal have been advanced by Mr John Griffiths, SC, who now appears on the Applicant's behalf. In a general submission relating to the whole of his application, he stated that the grounds were inter-connected and gathered strength from each other.

13. We have to say at the outset that, while we agree that the grounds were closely linked, necessarily we have had to look at each ground individually to determine whether there was any substance to any of them. Obviously a ground without merit could lend no support to the application. This is simply another way of saying that a multiplicity of weak and unmeritorious grounds would not have the strength of a single ground of substance.

Ground 1 : Judge's directions on approach to victim's evidence

14. On the first ground of appeal, which needs to some extent to be considered with ground 2, Mr Griffiths submitted that the judge was wrong not to have directed the jury that it would be dangerous to "pick and choose" from the evidence of PW1 if she were disbelieved on material matters and that it would be dangerous also to convict on certain counts if they had acquitted on others. It was contended that these omissions on the part of the judge had to be set against the background of a case in which the victim had been uncorroborated and where her testimony had been shown to be seriously flawed by the inconsistencies and improbabilities in her story. It was these factors, it was argued, that made it incumbent on the judge to give the directions which were omitted.

15. The passage about which complaint is made was given very early in his summing up:

"You must, of course, form your own judgment about the witnesses. You must ask yourself, was that witness's evidence honest? And you must also ask yourself, was that witness's evidence accurate? And if you decide that a witness has given evidence which is both honest and accurate, then you may rely on it. It is open to you to rely on the whole of a witness's evidence or you may reject a witness's evidence entirely. It is also open to you to accept some parts of a witness's evidence but not others." (Tr. p.2)

16. This, as this court said in HKSAR v Leung Wong, CACC 338/2000 (unreported), is a standard direction. As we pointed out in that case which was concerned with accomplice evidence, the approach to the evidence of witnesses using this standard form of direction is applicable to witnesses of every kind, whether accomplices or not. In the present case, it was not the function of the judge to tell the tribunal of fact what they should or should not accept on factual issues. Such considerations were firmly in the domain of the jury. This position is applicable to a witness, whether or not there is corroboration of the evidence given, just as it will apply to a witness who has given evidence that has not always been consistent on every issue. As this court said in HKSAR v Hung Wai-tak [2000] 4 HKC 641 at 649E which, on its facts was very similar to the instant case and which revealed several factual imperfections and even lies in the rape victim's evidence:

"What resulted from those imperfections and the weight to be attached to them was, however, for the jury to consider and decide. Their considerations took them nine hours from which it is apparent that the jury had careful regard to all the issues in the case."

17. Taking up Mr Griffiths' argument that the jury should have been told they could not be selective about the victim's evidence, there is, however, one exception where the judge will have to direct the jury that if they do not accept the evidence on one count and acquit, they must also acquit on all other counts. This situation arises where the counts stand or fall together. By way of example, to take a simple illustration, if a bookkeeper is accused of committing a series of thefts arising from his keeping of the books of account on evidence which is indistinguishable as between the charges, clearly differing verdicts will be inconsistent and wholly out of the question. In these circumstances, there would be no evidence from which to "pick and choose", to adopt Mr Griffiths' phrase. In such an example, rare though it may be, this would be a situation of all or nothing, and the judge would be required to direct the jury accordingly in order to ensure consistency in the jury's approach to their verdicts. This leads us to a consideration of ground two.

Ground 2 : Inconsistent verdicts

18. The second ground is effectively an extension of the first because it alleged that the two counts upon which the Applicant was convicted were inconsistent with the acquittals on the other four counts. Mr Griffiths suggested that there were three possible ways in which the jury may have logically reached verdicts of "not guilty". These were, he said, that the jury did not believe the victim on counts 1, 2, 4 and 5 or that they believed she was consenting or that it was a combination of these two factors which divided the jury.

19. This argument ignores a number of obvious points which, on Mr Griffiths' analysis, have been understandably but nevertheless studiously avoided. It is plain that counts 3 and 6 on which the Applicant was convicted were more serious than the other counts by far. More importantly, there was no evidence of any kind which gave support to the victim's testimony for the counts which failed. However, as to count 3, the Applicant confirmed that some degree of physical contact, including intimacy, had taken place. As to count 6, he admitted having had sexual intercourse with the victim. When the victim made her complaint of rape in her 999 call and was seen very soon afterwards by an officer, there was evidence on both occasions of her distressed state.

20. Mr Saw, SC, on behalf of the Respondent, pointed to what he termed "the erroneous decision of the judge to give a full corroboration warning" after the abrogation of such a requirement by the terms of section 4B of the Evidence Ordinance, Cap 8. (See R v Makanjuola [1995] 1 WLR 1348 at 1351; R v Chu Ip-pui [1997] HKLRD 549 at 552). This, he suggested, had perhaps provided an explanation for the reluctance of the jury to convict on those counts where there was nothing to support the victim's account that any conduct had taken place of the kind she had alleged. On the other hand, whilst the evidence may not have provided corroboration of the victim's account in its fullest sense on counts 3 and 6, there was some evidence which partly confirmed what the victim had said occurred between herself and the Applicant.

21. Mr Saw pointed also to two very poignant answers given by the victim in cross-examination. They are contained in a passage in relation to count 6 where she was being asked why she had gone into the Applicant's bedroom. She gave the following answers.

"A. I just followed him because his attitude is, if he said something and we don't follow, he gets very angry. And I was afraid that I might lose my job if I do not follow him.

Q. Surely, you would have felt in danger of being indecently assaulted again?

A. I can accept that he has indecently assaulted me, but when he raped me, that I cannot accept any more."

(Tr. p.263)

22. These answers, and others in similar vein, may have been highly significant in the jury's assessment of the victim's testimony.

23. It is wholly unnecessary in this judgment to set out in any depth the law in relation to the approach taken by courts at appellate level towards inconsistent verdicts. It is well settled that it is for the convicted person to satisfy the court that the jury's verdicts are so conflicting that no reasonable jury could have reached them. In R v Durante [1972] 56 Cr App R 708 at 714, Edmund Davies LJ applied, with approval, a passage to this effect taken from the judgment of Devlin J in R v Stone, an unreported case which was tried in 1954, which read:

"When an appellant seeks to persuade this court as his ground of appeal that the jury had returned a repugnant or inconsistent verdict, the burden is plainly upon him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand. But the burden is upon the defence to establish that."

24. These observations have been repeated and applied in Hong Kong on numerous occasions since their adoption in R v Cheng Man-to [1987] 2 HKC 261. (See also, more recently, HKSAR v Ho Kin-sang CACC 449/1999 (unreported) and, for the position in England, R v McKechnie and Ors [1992] 94 Cr App R 51).

25. We have no doubt that the guilty verdicts of the jury were not such as to call for our intervention on the basis of inconsistency. On the contrary, they were entirely explicable having regard to the different strengths and characteristics of the evidence on counts 3 and 6 when compared to the others on which the Applicant was acquitted. The judge had correctly directed the jury that each count had to be separately considered by them. For what it is worth, this direction was never the subject of complaint by leading counsel who appeared for the Applicant in the court below.

26. Grounds 1 and 2 fail.

Ground 3: Lurking doubt

27. In his third ground of appeal, Mr Griffiths submitted that the evidence against the Applicant was such that there remained a "lurking doubt" as to his guilt. We were reminded of the frequently quoted judgment of Widgery LJ in R v Cooper [1969] 53 Cr App R 82 which was approved in Kwong Kin-hung v R [1996] 3 HKC 698. Mr Griffiths argued that in this case, involving the uncorroborated testimony of a single complainant, whose evidence had been punctuated by a large number of contradictions and inconsistencies, the jury may have placed too much reliance on the demeanour of the victim which, he pointed out, may often provide an unsafe guide to the truth. He suggested that looking at the "probabilities" as to what had occurred between the alleged victim and the Applicant, these favoured the Applicant's account which had remained consistent since his arrest. Much of the argument on this ground was directed at various shortcomings in the judge's directions on the law and the facts which Mr Griffiths alleged were to be found in the summing up, coupled with the contradictions in the victim's account.

28. These are matters to which we shall return after we have dealt specifically with the complaints in other grounds.

Ground 4 : Contradictions in the victim's evidence

29. It was submitted in ground 4 that the judge had "failed to remind the jury in a full and proper manner of the contradictions and differences internally in the (victim's) evidence and as compared with other important witnesses ... particularly in respect of counts 3 and 6". Mr Griffiths cited in his amended grounds of appeal, coupled with a sixty-seven page schedule, a large number of contradictions as examples of what he alleged the judge had failed properly to deal with, or had omitted to cover, or had inadvertently misrepresented during the summing up.

30. At the outset of his directions, having dealt with the approach to be taken to the out-of-court statements of the alleged victim, the judge gave a general outline to the jury as to their approach to inconsistencies in the evidence. This was in the following terms:

"So where you decide that inconsistencies do exist between the evidence in court and earlier statements, you can first of all decide if it is a material or relevant inconsistency. Because if it is, in fact, insignificant or irrelevant, then there's no need to waste any time on it. If, however, you found there to be one or more relevant and significant differences, it may lead you to conclude that the witness generally is unreliable, or maybe is unreliable in respect of just part of his or her evidence. Or alternatively, if you accept the witness's explanation in court for the differences or inconsistencies which appear, it may then have no adverse effect on your assessment of that witness's credibility and reliability." (Tr. p.5)

31. The principal inconsistencies in the victim's account, which were relied upon by the defence at trial concerning the events relevant to count 3 related to:

(1) whether the Applicant was wearing pyjamas;

(2) whether the Applicant was lying face-down or on his back;

(3) whether the victim massaged the Applicant's buttocks;

(4) whether the victim closed her eyes;

(5) whether the Applicant said "don't be shy" and the victim's inconsistent explanations for her failure to mention this until trial;

(6) whether the victim's hand or lips touched the Applicant's penis;

(7) whether the Applicant pushed the victim's head to his penis;

(8) the failures of the victim to mention in her previous statements that she had gone to the toilet, had wanted to vomit and had washed out her mouth;

(9) the reason the victim had gone into the Applicant's bedroom;

(10) whether ointment was used; and

(11) the differences, and her reasons for them, in the complaint made by the victim to Detective Senior Inspector Au when compared to the victim's testimony.

32. Although the list sounds long, all of these inconsistencies, and others, were explained by the victim in ways which it was open to the jury to accept or reject. None of her explanations were so fanciful or far-fetched as to be absurd. It is unnecessary in this judgment to deal with the details of her evidence because in almost every example where an inconsistency of any significance had arisen, the judge had, with meticulous care, given a summary of it.

33. The judge also summarised the defence case on count 3 by reminding the jury that it had been suggested to the victim that:

"... there was a massage on 6 November, that it was on that occasion that she had used Mentholatum to massage the back of his head and neck, that she had done that for about 30 to 35 minutes, that she had kissed his ear towards the end of that massage and that he had turned his head and kissed her lips. That version of events was rejected." (Tr. p.19)

34. In saying that this version was rejected, the judge should perhaps have pointed out that it was accepted by the victim at one stage of her evidence that she had used ointment but we think that for Mr Griffiths to call this a "misdirection" in the passage we have just cited, was putting this too high. The meaning was clear. The victim had rejected the suggestion that the sexual element involved in the massage was at her instigation.

35. The judge, with the same degree of care, covered every important discrepancy in the victim's evidence on the other counts of indecent assault where verdicts of "not guilty" were returned.

36. Turning to count 6, we shall again endeavour to itemise the principal areas of the victim's account where inconsistencies or contradictions were to be found in her evidence. These related in particular to:

(1) a failure by the victim to mention in her previous statements anything about her worries over the "bathroom" incident immediately prior to the rape;

(2) what the victim was doing immediately before the rape;

(3) the time when the rape took place;

(4) the precise details and sequence of events before and during the rape;

(5) whether the victim's jeans were taken down to her knees or ankles and how and where they were taken down;

(6) the victim's failure to mention to police the Applicant's threat that if she told anyone what had happened, "something bad" would happen to her;

(7) whether it was the other domestic helper's day off, and why no complaint was made either to her or to the Applicant's wife when she returned home.

37. Again, we do not need to refer in this judgment to the transcript to illustrate the scrupulously detailed and balanced analysis which the judge gave in respect of the inconsistencies. Suffice it to say, the jury were reminded of most of the important discrepancies in their proper context. This was not a summing up where the evidence in-chief of the victim was first reviewed as a whole, before the cross-examination was considered. The judge helpfully drew together the evidence in-chief and the evidence in cross-examination so that the jury could be left in no doubt as to the inconsistencies or where the issues lay in respect of them.

38. The contradictions as to count 6, as we have said in relation to count 3, were explained by the victim in ways which it would have been perfectly reasonable for the jury to have accepted. Equally, they might have rejected the explanations but this was a matter entirely within the jury's province to decide. The same comment applies to the victim's behaviour after the rape which Mr Griffiths described as "illogical and improbable". It may well be that the victim, on her account, was greatly shaken by what had occurred but whether her actions in that frame of mind can fairly have been described as illogical or even improbable is altogether another matter. In any event, the judge once again reminded the jury of this part of her evidence.

39. Not only did the jury have the benefit of a clear and concise summing up which dealt with the main issues involved, they had also been addressed by Mr Plowman on behalf of the defence for a full morning before the summing up commenced. In many ways, the main focus of the trial was centred on the inconsistencies. Even if the judge omitted to deal with some of them or from time to time made minor errors as to detail in describing them, it was nevertheless a summing up which drew together every major strand of criticism which had been levelled at the victim in an intelligible and helpful way. In this respect, Lord Hailsham's words in R v Lawrence [1982] AC 510 at 519G were heeded by the judge in full. These were that:

"A direction to a jury should be custom built to make the jury understand their task in relation to a particular case. Of course it must include references to the burden of proof and the respective roles of jury and judge. But it should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts."

40. For the judge to have attempted to delve into even greater detail, covering every single area of dispute as Mr Griffiths was suggesting he should have done, would have lost the jury in a mass of unnecessary detail about which, in any event, the jury was well aware from the evidence and speeches. The numbers of so called discrepancies, together with comments on them, were set out in the 67-page schedule prepared on behalf of the Applicant. Even a superficial glance at this was, in our view, enough to illustrate how meaningless the summing up would have become if the judge had followed every avenue of criticism explored by the defence.

41. In this regard, Mr Griffiths produced a second schedule which, somewhat critically, listed the discrepancies which were not covered in Mr Plowman's defence speech. It was submitted that Mr Plowman had omitted to deal with about eighteen points on which his cross-examination had revealed shortcomings in the victim's evidence. No doubt he had, but the same comment that we have made in respect of the judge's summing up applies also to the speech for the defence. As every experienced advocate knows, and few are as experienced and able as Mr Plowman, there is a risk of losing the jury's concentration and attention by taking every point. He made a long and powerful speech to the jury concentrating on those issues which he considered to be the most important knowing that if the major points did not persuade the jury, the minor ones were unlikely to add much weight to his address. Mr Griffiths' second schedule merely served to illustrate how many points were before the jury and how important it was to be selective in summarising them.

42. We have been unable to find sufficient justification for any of the criticisms which have been made in this ground and, accordingly, it fails.

Ground 5 : Elements of rape and indecent assault

43. In the fifth ground, Mr Griffiths criticised the judge's direction to the jury on the elements involved in rape and indecent assault.

(A): Rape directions

44. Mr Griffiths submitted in relation to count 6 that the judge had misdirected the jury on the mental element in rape. He contended also that the judge had failed to summarise all the relevant circumstances which the jury could or could not "take into account in their consideration of whether the Applicant held a genuine but mistaken belief that the complainant was consenting to sexual intercourse".

45. The judge outlined the first two elements in rape, penetration and lack of consent, before turning to the last element the prosecution had to prove, and he directed the jury as to this in these terms:

"... they must thirdly prove at the time of the sexual intercourse, either the defendant knew that (the victim) did not consent or he was reckless as to whether she consented to the sexual intercourse. Now, the defendant would be reckless as to whether she consented to sexual intercourse if you were sure that he did not know and did not care whether she was consenting or not and carried on regardless. In other words, his state of mind was that he could not have cared less.

If it is or may be the case that the defendant honestly believed that she was consenting, then he cannot be guilty of rape. It is not for the defendant to prove that he honestly believed she was consenting, rather it is for the prosecution to prove so that you are sure that he did not believe that she was consenting to sexual intercourse.

Now, what if he did hold that belief, namely that she was consenting but was mistaken about it? Well, if it is or may be the case that he held a genuine but mistaken belief that she was consenting, then you must acquit him. In deciding whether or not he truly believed or may have believed that she was consenting, you should have regard to the existence or absence of reasonable grounds for such a belief, and to all the surrounding circumstances. But the question must always be, are you sure that he, himself, did not hold such a belief? If on the other hand, he may have genuinely held such a belief, he would be not guilty in law." (Tr. pp.8-9)

46. It was submitted that the judge had fallen into error in two ways. Firstly, it was argued that by dealing with the Applicant's "honest belief" before he dealt with "a genuine but mistaken belief" the judge may have facilitated a conclusion on the part of the jury that the Applicant, who even on his version had had sex with his maid while his wife was taking the children to school, did not honestly believe the victim was consenting because his moral probity had on any view been shattered in the eyes of the jury. Mr Griffiths also submitted that the time to tell the jury the circumstances to which they should have regard when considering what is often referred to as "reckless rape" was at the time these directions were given and not later. He suggested that the circumstances should have been spelt out then and there.

47. In our opinion, the judge's directions were fuller than they needed to have been although in no sense did this cause prejudice to the Applicant. Only where "honest belief" is an issue is it necessary for a judge to go on to direct the jury about their approach in the event that they conclude a defendant genuinely held such a belief but was mistaken. As Lord Lane C.J. said in R v Taylor [1985] 80 Cr App R 327 at 330, in relation to a direction as to reckless consent:

"It should be plainly understood at the outset that there is no general requirement that such a direction should be given in all cases of rape. The nature of the evidence and of course particularly the evidence given by the complainant and the defendant will determine whether or not such a direction is advisable and whether to give such a direction would be fair. There must be room for mistake in the case before such a direction is required." (Emphasis supplied)

48. This was approved in R. v. Adkins [2000] 2 All ER 185 at 190.

49. The present case did not give room for mistake and we are driven to the conclusion that a "genuine but mistaken belief" direction was out of place. No doubt the judge gave this direction having heard leading counsel for the defence refer to it in his speech and in what he must have considered to have been the interests of fairness. Out of place though it was, it was not, however, a material irregularity as the Applicant could only have been assisted by it. For reckless rape to have had any application at all, the jury would have had to be satisfied that in fact the victim had not given her consent to sexual intercourse. If the jury were satisfied, as clearly they were, that non-consensual intercourse had been proved, it followed that the victim had given truthful evidence on this crucial issue. The consequence of such a conclusion must inevitably have been that the Applicant's detailed description of events to the police and his evidence in court were a total fabrication.

50. This case was at all times principally concerned with the credibility of the victim and the Applicant. If the victim was not believed the case failed. If she was believed, the Applicant's defence that she had consented to sex and had led him on, did not begin to get off the ground. It is plain from their verdict that the jury had rejected his account.

51. At no stage was it any part of the Applicant's case that he was labouring under a mistaken belief that the victim had consented. On the contrary, it was his case that the victim had led him into having sex with her. She had locked the door and she had signalled the Applicant to be quiet because the other helper was around. There had been no struggle and no opportunity for the victim to injure herself. She had readily agreed to have sex with him and allowed him to undress her before she removed the rest of her clothes because her jeans were tight-fitting. When he went to fetch a condom from the bathroom, the victim had declined it. During the sexual act, the Applicant described the victim as very active and when he was about to ejaculate, she pulled him towards her. Before he left the house to go to work, he kissed the victim twice.

52. The account given by the Applicant was entirely different to the victim's and the only crucial issue to be decided by the jury was whether lack of consent had been proved. The "mistaken belief" direction on which Mr Griffiths placed reliance before seeking to criticise the judge for omitting to give all the circumstances to be taken into account, should not have been given at all. This also applied to counts 1 to 5. In three of those counts, the Applicant had denied any contact with the victim at all. As to count 3, the Applicant had described the victim as having offered to massage his neck and shoulders only. He then gave her a kiss and some money when she had finished.

53. The direction as to recklessness was a windfall to the defence at trial but it does not assist the Applicant now in advancing the ground of the application. There was no evidential basis to render "genuine belief" a live issue when his account all along as to count 6 had been that there had been actual consent and, as to count 3, a massage confined to the neck and shoulders without any indecent circumstances of the kind described by the victim.

(B): Indecent assault directions

54. Mr Griffiths next submitted that the judge erred in his directions to the jury as to the elements of indecent assault in count 3.

55. The judge gave directions on the three ingredients of indecent assault before embarking on a specific reference to each one of the five counts of indecent assault. The jury were directed in these terms:

"I now direct you on the offence of indecent assault. Again, there are three ingredients. On each of the alleged incidents, firstly the prosecution must make you sure that there was an intentional and deliberate assault on (the victim) by the defendant. For the purposes of this offence, any use of force on another person, however slight, constitutes an assault. Merely touching another person is sufficient, provided also that the second ingredient is also proved.

The second ingredient is that the assault or touching was done in indecent circumstances. Thus, a normal touch on the arm for example, would not be indecent, but a touch on a woman's breast or her lower private parts, whether clothed or not, could be regarded as indecent. It is for you to decide, members of the jury, whether or not it was indecent. An act is regarded as being indecent if right-minded people would consider it to be indecent.

The man cannot be convicted of inflicting an indecent assault on a woman unless the third ingredient has also been proved, namely that the woman did not consent to the act. If you think the woman did or even may have consented, then again you must acquit. The law in relation to the issue of consent in cases of indecent assault is no different from the law of consent in cases of rape about which I have just directed you a moment ago. You must apply the same directions concerning consent in Counts 1 to 5 as in Count 6.

In our case, Mr Tang has told you that none of the indecent assaults as described by (the victim) took place, and such touching or kissing that occurred was always consensual. It is for the prosecution to prove that each incident did occur as (the victim) described. The incident they rely on in each count is as follows and I will go through them briefly.

The 1st Count is an allegation of touching on the breast after a massage in the morning on 3 November. Count No. 2 is an allegation of a touching on her bottom in the kitchen in the evening of the same day. Count 3 is a request to touch and kiss his penis which they say she did after a massage on 6 November. Members of the jury, if you were sure such an act was not with her consent, the mere request or instructions to touch or hold his penis would constitute the offence in this count provided you were satisfied that it was in indecent circumstances. The 4th Count alleges that on 8 November he kissed and touched her breast when she was in her own bedroom. And the 5th Count is an allegation that on 10 November, he touched her breast in the morning in the kitchen.

So taking each one of those incidents separately, if you are sure firstly that the alleged incident was a deliberate act by Mr Tang and happened as described by (the victim); secondly that the circumstances in which it had happened were indecent; and thirdly that (the victim) did not consent and Mr Tang knew she did not consent or did not care whether she consented or not, that charge is proved. If you are not sure of any one of those ingredients, you must return a not guilty verdict on the particular incident that you are considering." (Tr. pp.9-10) (Emphasis supplied)

56. The part of the direction about which complaint was made was that the "mere request or instructions to touch" was sufficient to constitute the 'assault' element in the indecent assault in count 3. The earlier directions, it was submitted, about what constituted 'assault', were of general application which may have been perceived by the jury to apply only to the other indecent assault counts.

57. If the jury were being told that the Applicant's mere request or instruction that the victim should touch his penis was sufficient to constitute an 'assault' then, as Mr Saw conceded, it would have been a misdirection. In Fairclough v Whipp 35 Cr App R 138, the prosecution had appealed the decision of the magistrates to acquit in circumstances where a child aged nine, who was near the respondent when he exposed himself to her in a public place, had been invited to touch the respondent's penis. The Lord Chief Justice, in delivering the judgment said:

"It is unnecessary to go into any old learning on what constitutes an assault. An assault can be committed without there being battery, for instance, by a threatening gesture or a threat to use violence made against a person, but I do not know of any authority that says that, where one person invites another person to touch him, that can amount to an assault. The question of consent or non-consent arises only if there is something which, without consent, would be an assault on the latter. If that which was done to the child would have been an assault if done against her will, it would also be an assault if it was done with her consent and is of an indecent nature, because she cannot consent to an indecent assault. But before we come to the question whether there was an indecent assault we must consider whether there was an assault, and I cannot hold that an invitation to somebody to touch the invitor can amount to assault on the invitee ... It is obvious, therefore, that the offence must be one which can amount to an assault in law."

58. The circumstances of the present case were considerably different. Taking the Applicant's version, the events in count 3 were confined to an innocent massage of his neck and shoulders which the victim had offered to give him. In no circumstances could this have been described as an indecent assault. If, on this version of events, the Applicant had invited the victim to touch or kiss his penis, this could not have amounted to assault.

59. However, Mr Saw's submission was that the victim was plainly acting under compulsion from her employer and that the Applicant's directive to his domestic helper was not a "mere request or instruction" to touch and then kiss the Applicant's penis. Mr Saw invited us to consider the circumstances in which the victim had, he submitted, effectively been forced to do the Applicant's bidding.

60. The victim had begun by saying (at page 212 of the transcript) that she had been called into the Applicant's bedroom where she was told by the Applicant that he wanted her to massage him. She said she was scared and the look in the Applicant's eyes told her that he was very angry. She wanted to refuse but was too afraid to do so. When she was massaging his chest, she was hardly able to move her hands because the Applicant's eyes were "really furious". The Applicant said: "Please do it properly, what I'm asking you to do". He then asked the victim to massage his back and he pulled down his pyjamas. The victim described this as "so gross". She said she nevertheless did what she had been told to do because of her fear that she might lose her job if she did not. The victim then went on to say:

"A. Because I could not rub or massage his bottom properly, he told me to do it properly. I followed him. After that, he moved back to his original position - that is lying down on his back. When he turned his - - when he moved and when he lay down on his back, I closed my eyes because he pulled down his pyjamas when I was rubbing his bottom, and then he smiled and asked me, 'Why did you close your eyes?' I just did this, just swaying my head. He said, 'Do not be shy. Why? Is this the first time that you have seen this?' But I did not say anything. Then he said, 'Hold it.' And then after he told me to hold it, he asked me to kiss it. The more I became afraid, I did not know what to do. When I looked at him, I thought to myself, 'What kind of employer is this?' When I looked at him, I noticed that his eyes became bigger, looking at me, and he made a hand gesture indicating that I must follow him. Then when I touched his penis, I was shaking. Then he said, 'Kiss it.' Then when I made a gesture of going to kiss it, I felt nauseous, I wanted to vomit, so I ran to the toilet. I turned on the water tap of the sink. I washed my mouth with water and I heard something near the toilet. He said, 'Get out now but, remember, do not say to anybody what I have asked you to do, so that nothing bad will happen to you.' Then I continued working.

Q. All right. Now, you've referred to your employer telling you to hold it and to kiss it. What did you understand him to mean? What did you understand by the use of the word 'it'? What was 'it'?

A. His penis.

Q. Did your employer touch you at any time in the bedroom?

A. No."

(Tr. p.213)

61. It was only later in cross-examination that the victim expanded on this account. She was reminded (at page 250 of the transcript) that in an earlier statement she had said: "He forced my head to his penis and asked me to kiss his penis". She confirmed that this had happened and that because her mouth, with closed lips, had touched his penis she had felt like vomiting and had gone to the bathroom where she vomited into the sink and washed her mouth out with water. The victim was then taken through her account on the previous day when, in answer to prosecuting counsel, she had replied that the Applicant had not touched her. She agreed that she had not mentioned it but she confirmed that this is what the Applicant had done to her.

62. Remembering the relationship between the Applicant as the employer and the victim as his domestic helper, it is plain from the account which she had given that if she was not acting as a willing masseuse as the defence had suggested, then in reality she may well have been acting under threat or compulsion from her employer. As an illustration of this, at one stage she had been told what to do and that she was expected to do it "properly".

63. The question we have had to ask ourselves in the light of these circumstances is whether the directions given by the judge were sufficient, assuming the jury came to the conclusion that the victim's account in-chief, which omitted any reference to a physical assault on the victim by the Applicant, was all that they could accept. This would leave the position of the Applicant having told his helper to "kiss" his penis after she had been left "shaking" from the direction to touch his penis a few moments before.

64. Why the judge ever decided to leave the matter on this narrow and most unlikely basis we have found very difficult to understand when the real allegation at the end of the evidence was that the victim's head had been firmly pushed down onto the Applicant's penis when she showed reluctance. Nevertheless, even on this reduced version of the facts, it might have been open to the jury to conclude that the directions of the Applicant to the victim amounted to putting her under compulsion to act in a certain way. However, if so, this element in the judge's directions was missing. He did not direct the jury, in terms, that for the Applicant's conduct to have amounted to 'assault' it had to include an explicit or implied threat sufficient to have put the victim under compulsion to do as she was told.

65. We shall give leave on ground 5(B) as the judge's omission to direct the jury fully on the alternative basis for finding that an 'assault' had been proved amounted to a material misdirection. The conviction on count 3 was thereby rendered unsafe and unsatisfactory.

(C): Directions on consent

66. In his last criticism of the judge's directions on the law relating to the offences of rape and indecent assault, Mr Griffiths submitted that the judge had:

"failed to direct the jury that if they concluded that (the victim) had consented to an earlier act or behaviour which would otherwise be an indecent assault it would correspondingly become harder and more difficult for the prosecution to prove an absence of consent in respect of each subsequent charge including the rape charge, particularly so, as the acquittals mounted up."

67. We need only to repeat, in this regard, what has already been said about ground 2. The Applicant had denied, in four out of the five indecent assaults, that any physical contact of any kind had occurred between himself and the victim. It may well have been that the jury acquitted on those counts because of the absence of any form of support for them. It may equally have been that the jury had heard the victim say, in effect, that she was prepared to put up with his indecent conduct for fear of losing her job but she drew the line at rape. These were all matters for the jury to consider. In any event, the judge could hardly, in the light of the Applicant's defence, without the risk of causing some prejudice to his case, have directed the jury along the lines suggested by this argument which appears to assume that the jury acquitted the Applicant on four of the counts of indecent assault on the basis the victim consented to his acts. Her failure to complain about them was an altogether different thing to consenting to them. Consent to the earlier acts of indecency had never been suggested and did not arise because the victim had said she had not consented and the Applicant had said that nothing had happened at all.

68. Grounds 5(A) and (C) fail.

Ground 6: Inferences

69. In the sixth ground, the judge's directions on the approach the jury should take to inferences were criticised. The direction was in these terms:

"You must decide this case only on the evidence which has been placed before you. There will be no more evidence. If you think that there is a gap in the evidence, or there is a lack of evidence, you must accept that and make your decisions in its absence. You are entitled to draw inferences from the evidence. That is, come to some common sense conclusion based on the evidence which you accept but you may not speculate about what evidence there might have been or in any way allow yourself to be drawn into speculation." (Tr. p.2)

70. We accept that this direction contains no words to the effect that an inference can only be drawn if it is irresistible, or one that no reasonable man could fail to draw, from primary or direct facts which had been proved in evidence to the jury's satisfaction. However, this was a case where inferences effectively had no part to play. The summing up could safely have been made without any references to inferences. The prosecution's case was wholly dependent upon the victim's evidence, and it was her credibility which was the crucial issue to be decided. Equally, with the Applicant's case, he was the sole witness as to the facts, and his credibility was the issue for the jury's consideration. The two sides were diametrically opposed. It was the direct evidence of the witnesses on which the jury had to decide the case, not upon inferences which arose from the primary facts.

71. We did, however, consider at one stage that the medical evidence and the evidence about the victim's distress might have benefited from a direction on the approach to inferences. However, as Mr Saw reminded us, the medical evidence could have gone either way in the sense that there was evidence that the victim's injuries were consistent with her account and also with the suggestion that she could have inflicted them on herself. We agree with his proposition that if this evidence was used as a yardstick to determine the victim's credibility it would, in effect, have been putting the cart before horse. Similarly, as to distress, Mr Plowman had suggested the victim was a consummate actress and was capable of acting out her "distress" so that, again, the jury was left to determine her credibility as their first and real priority.

72. Ground 6 fails.

Ground 7: Direction that jury "must" convict

73. The seventh ground criticised the judge for having directed the jury that they must convict the Applicant on any particular count if they were sure of his guilt, rather than directing them that they were entitled to convict if they were sure of guilt.

74. This ground is misconceived. It stems from Mr Griffiths' reading of a part of Lord Bridge's speech in DPP v Stonehouse [1977] 65 Cr App R 192 at 232 where it was said that the principle to be adhered to was that:

"in every case where a jury may be entitled to convict, the application of the law to the facts is a matter for the jury and not for the judge."

75. However, the passage has to be read in the full context in which it was set. The judge in that well known case had failed to leave to the jury an important part of the facts by taking it upon himself to decide that those facts amounted to an attempt in law.

76. In the present case, the jury had been left to decide all the issues in the case. If they were unsure about the Applicant's guilt they had to acquit but, as they were rightly told by the judge:

"If, after hearing and considering all the evidence, you are sure that the defendant is guilty, you must return a verdict of guilty." (Tr. p.3)

77. All that this direction required the jury to do, in the event that guilt had been proved, was to be true to the declaration each of them had made at the outset of the trial to return a true verdict on the evidence.

78. Ground 7 fails.

Ground 3: Lurking doubt in the light of the other grounds

79. We can now, in the light of the other grounds return to ground 3.

80. As we have stated earlier in this judgment, Mr Griffiths invited us to consider where the "probabilities" lay in determining whether these convictions could safely be allowed to stand, aside from our considerations of the inconsistencies in the victim's evidence and how they were summed up by the judge which we have dealt with under ground 4.

81. In particular we have in mind the suggestion made by Mr Griffiths that the victim's actions before and after the offences and the incomplete version of events given by the victim to Detective Senior Inspector Au (DSI Au) on 11 November 1999, made the victim's account improbable.

82. This second factor can be dealt with shortly and it is convenient to deal with it straightaway. DSI Au was an experienced officer of twenty years' standing. On 11 November 1999, he saw the victim twice. The first occasion was for about ten minutes at the Applicant's house in Shouson Hill at 6.18pm. He next saw her when he went into the room in the police station at 10.15pm where the victim was making a statement to a female officer. This was for a period of about fifteen minutes.

83. On both occasions, the victim was spoken to by DSI Au in English. However, whilst the victim spoke some English, she had very properly been provided with an interpreter whose services unfortunately were dispensed with for the purposes of the two short interviews between DSI Au and the victim. This should not have occurred. However, even more importantly, whilst no doubt DSI Au was anxious to find out as much as he could, and as quickly as he could, to question the Applicant on the night of his arrest, this did not justify the departure from what we are told is the normal practice that only female officers are permitted to question the victims of rape.

84. The result of these two serious departures from the proper procedure caused DSI Au to be given, in a language with which the victim was not fully conversant, a much reduced account of what had happened to her, partly because of the short time DSI Au had spent with her and partly also as the result of her embarrassment at telling a male police officer the details of her ordeal. We hope that such a practice will not be repeated. We can accept that the officer's motivation was entirely proper but there are sensible and good reasons for adherence to established procedures in a situation where sensitive handling of the victim, above all else, is a prime requirement.

85. This being said, the defence at trial were not unnaturally able to build on a number of discrepancies between the victim's witness statements and her account in court compared with the version she had given to DSI AU. Considerable capital was again made of this aspect before us. However, for the reasons we have given, we do not think that much attaches to those discrepancies. The jury were in any event aware of them amongst the many other considerations they had to bear in mind about the victim's credibility.

86. We turn next to a number of features of the victim's behaviour which were termed "inherently improbable" by Mr Griffiths, who suggested that these gave a clue to where the real truth was to be found.

87. The first of these was what was said to have been an unannounced and unsolicited kiss the victim had given the Applicant when she took his tea up to his room on 7 November 1999, the day after the "massage" incident in count 3. On the face of it, this might have added ammunition to the defence case at trial, save that the victim was the first to agree it had happened and told the court in-chief:

"A. Before going inside the bedroom, I knocked at the door. When he said, 'come in' I opened the door. When I went inside the bedroom, my employer was there lying on the bed. The reason why I went up is because he asked me to go up to bring his tea.

Q. Yes, carry on.

A. When he saw me bringing the tray with a glass of tea on it, he told me to put down the tray on a small table. While he was saying that to me, he was still lying down on the bed. When I saw him, that he wanted to get up from the bed, I wanted to leave the room. I immediately moved and I heard (sic) his shoulders ...

INTERPRETER: As demonstrated.

A. ... this way, and I kissed his cheek. I want to add more. I held his shoulders very firmly. My intention was for him not to be able to get up, because I could see from his face that he was thinking of doing another indecent act.

Q. All right, did you then leave the bedroom?

A. Yes, I very quickly left and went down."

(Tr. p.218)

88. If that evidence was true, it was not the affectionate kiss the defence tried to make it out to be but rather a situation where the victim was using her instinctive powers of self-preservation to avoid another act of indecency which she feared might take place.

89. The next matter was also of general importance. It was suggested that the victim's inability to recall with consistency the details of the various incidents on the indictment may have been because she had invented a story as part of a plan to blackmail the Applicant. However, it has to be said that the origins of the blackmail theory advanced at trial by the defence were somewhat elusive and based to an extent on inadmissible hearsay. On the strength of information received by the Applicant that there may have been a plot to blackmail him, the police naturally investigated and the results of those investigations enabled Mr Plowman to put questions to the victim suggesting blackmail.

90. The victim was questioned about conversations she had had with her co-helper, Linda, who had been made aware by the victim of earlier allegations of indecent assault prior to the commission of the rape. The victim agreed that Linda had discussed using a camera to take a photograph of the Applicant during an act of indecency. However, she strongly denied any suggestion that compromising pictures were to be taken of the Applicant in order to blackmail him.

91. The victim also accepted that she had talked with Linda in a joking way about asking the Applicant for 500,000 pesos if he ever wanted her to do more than a massage, and that she had said "maybe I would say yes" if he offered it.

92. It would not have been difficult for the jury to have considered that the whole context of these conversations effectively boiled down to them being rather silly conversations between the two helpers about their employer's molestations, with Linda's contribution being a suggestion as to what they might do about it.

93. When looking at the probabilities, as we were invited to by Mr Griffiths, we were far more persuaded by Mr Saw's simple argument that if there had been anything at all in the theory, why then was it never put into practice. There was no suggestion in the trial, or elsewhere, of any demand ever being made to the Applicant for money. On the contrary, when the rape occurred she took her complaint not to the Applicant or his wife, as a blackmailer might have done, but almost immediately to the police, having firstly telephoned a friend's employer on the number it seems she carried in her jeans, for advice as to what she should do. Indeed, when the victim made her call to police she was so overcome by tears that she had had to hand the telephone to Linda who had heard the call being made and who then completed the call. The victim was still crying and "very emotional" when police arrived at the house.

94. It was next suggested that the time-gap between the alleged rape and the report to the police was itself a suspicious circumstance, but the way the victim described her actions appeared to us to have none of the "improbability" ascribed to it by Mr Griffiths. The transcript of her actions reads:

"A. I went back to the rooftop because I thought that if I say anything to Linda and my lady employer, my male employer might also do something bad to her.

Q. Yes, carry on.

A. I sat there thinking what to do next. I wanted to cry because of what my male employer did to me, but then if I did that, I was afraid that he might do something bad to me, because at that time he was still there.

Q. Did there come a time when your male employer left the house?

A. Not right away, about after 15 minutes. That was when I heard the door of the ground floor. Then I thought that he already left because there was no-one else who would leave at that time.

Q. So what did you do?

A. I went down to the second floor. Then I thought of calling my friend's employer. When I called up my friend's employer, because she realised that I could not talk, so this employer told me, 'Calm down, calm down, just call the police.' But at that time I know what is the meaning of '999'. Because 999 is the number I see in our kitchen with a sticker saying that for emergency cases, please call 999. Even in Singapore it is the same number. We only talked on the phone for a short while and then I hung up. Immediately I dialled 999. When I was talking to the police on the phone, she asked me what happened. I could only tell the police, 'I was raped by my employer.' After I said that, I could not held (sic) up my tears. When the other party was saying something on the phone, I felt that Ate Linda was beside me. Then Ate Linda heard when I said again, 'I was raped by my employer.' I then gave the telephone to her because I could not talk any more. Then they talked to each other. After Linda hung up the phone, she told me, 'Do not worry because the police officers are coming soon.' After saying that, she also told me that she was going to call her friend because she was already getting afraid."

(Tr. p.191)

95. Mr Griffiths suggested that logically the victim would have told Allen, the driver, or Linda or even the Applicant's wife when she returned. He suggested also that the victim was in a frame of mind which was suspiciously calm. The victim, he pointed out, was able to recall the length of time the two separate acts of intercourse had lasted during the rape; after the act of rape, she had collected the semen in a piece of plastic when told by the Applicant to wash herself; she had only pretended to wash; and she was able to cover up in front of the Applicant by saying: "Never mind, I'm not that wet anyway." Other details which were comparatively trivial were also explored. We do not need to rehearse these. All these matters were described in Mr Griffiths' schedule as "strange, illogical features" of the victim's behaviour bearing no resemblance to the conduct of a genuine victim of rape.

96. Whether he was right or not these were, quintessentially, matters for the jury to consider. They were fully aware of these points which had been made both by Mr Plowman in his eloquent address and by the judge in a most lucid summary.

97. We were invited to look at the handwritten entries on the victim's calendar which she kept in her room recording time entries of these offences. Against the first, she had written "first time" and we were asked to infer from this that the victim, before they happened, had obviously expected more occasions to arise in future. This, of course, may well have been so, but whether it supports a conspiracy theory is quite another matter. Perhaps more compelling, having examined the calendar, was the fact the words "first time" were written above a scribbling out of other words. The jury heard in evidence that Linda had suggested the deletion of words which recorded the victim having given the Applicant a massage, in case they were noticed by someone. It would not have been beyond the wit of the jury to have concluded that the words "first time" were a neutral code to replace the words she had crossed out heavily, which could only have meant anything to someone with a knowledge of what she had written under the crossings out.

98. Coming to other "improbabilities" raised by Mr Griffiths, which we found to be very much on the periphery to what was relevant, he suggested on the footing of submissions occupying two pages of his schedule that the three telephone calls involving Allen's mobile telephone, just after the rape had been reported to police, might have had a sinister connection with what was happening. We consider the theory advanced was confined to speculation. Suffice it to say, Allen's mobile was used twice to telephone the Applicant's home number at times when the victim was in the company of police. The third call was made to Allen's telephone from the Applicant's home address which could have had nothing to do with the victim.

99. It was submitted by Mr Griffiths that when the police accompanied the victim to Wanchai to enable her to stay with Allen and his friend "Debbie", they spoke to a female called "Davey" (which may have been a misheard version of "Debbie") who provided an address and telephone number where the victim would be staying. It was suggested by Mr Plowman in his final speech that these details amounted to lies and that the victim had been party to them. However, this had never been suggested in cross-examination to the victim and the evidence clearly was that it was Davey who had given the information. Why it mattered has never been explained to us. The victim never tried to disappear or so far as anyone knows never had any intention of doing so. So far as we are aware, it seems the police had no difficulty in keeping in touch with her.

100. Mr Griffiths also suggested that if the victim had given a true account of rape, she would surely have activated the alarm switch in Applicant's bedroom. However, the evidence was that she did not see an alarm button. When we showed the photographs of the bedroom to Mr Grounds, who appeared with Mr Plowman in the court below, we asked him if he could identify the alarm switch. He was unable to recall with precision which it was. There the matter rested.

101. It was said that the failure to tell Linda about the rape immediately afterwards, having told her about the earlier incidents, was another illustration of extremely improbable conduct on the victim's part. However, in the passage cited earlier from the victim's evidence we have set out what she said her actions had been. Whether those actions can truly be described as improbable or were the actions of a traumatised rape victim trying to decide what to do, in the seclusion which the flat roof gave her, were matters for the determination of a jury.

102. With all of these matters in mind, and others that were raised which are perhaps best regarded as even less important, we were throughout the hearing of the application being invited by Mr Griffiths effectively to substitute our views for those of the jury. There was, we are bound to say, nothing so startling about the inconsistencies or the general conduct of the victim which caused us to consider that a miscarriage of justice may have occurred. Furthermore, and of vital importance when considering a ground of this nature, we did not have the advantage, as the jury did, of seeing and hearing the witnesses give evidence. The importance of this is not to be underestimated.

103. We have approached this ground as we did in HKSAR v Hung Wai-tak [2000] 4 HKC 641 where at 649 we said:

"Although the court was invited to say that a 'lurking doubt' existed as to the integrity of this conviction, we have felt it right to have regard to the provisions of section 83 of the Criminal Procedure Ordinance, Cap. 221, in order to determine whether, in the circumstances of the case, the conviction should be set aside on the ground that it is unsafe or unsatisfactory. This follows what was stated in Kwong Kin-hung v The Queen (1997) HKLRD 15 at 19F where Lord Steyn, in giving the judgment of the Privy Council, said that ultimately the 'words of the statute must govern the position'. Having said this, and without wishing to enter into semantics, if the court had felt a 'lurking doubt' existed in relation to this, or any other conviction for that matter, it would be virtually inconceivable that the conviction could be regarded as safe or satisfactory."

104. Ground 7 fails.

Conclusion

105. Having regard to our reasons for giving leave in relation to ground 5(B) where we dealt with the misdirection of the trial judge relating to the indecent assault in count 3, we propose to treat the hearing as the appeal and to quash the conviction and sentence in respect of that count. Leave is refused on all the other grounds.

Representation:

Mr D.G. Saw, SC, DDPP and Ms Anna Lai, SADPP(Ag), of the Department of Justice, for the Respondent.

Mr John Griffiths, SC, Mr Christopher Grounds and Mr David Boyton instructed by Messrs K F Wong & Co., for the Applicant.

Remarks:
Appeal by the Applicant to the Court of Final Appeal. Appeal dismissed. Please refer to the Appeal Judgment FACC000004/2001.