HKSAR v. Hui Kwai Long

CACC000340/1997

IN THE COURT OF APPEAL

1997, No. 340
(Criminal)

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Coram: Hon. Power, V-P, Mayo, J.A. and Stuart-Moore, J.A. in Court

Date of hearing: 3 December 1997

Date of delivery of judgment: 3 December 1997

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant was convicted of rape after a trial before Deputy Judge Hartmann and a jury. He now seeks leave to appeal against this conviction.

2. The facts of the case were relatively simple. The victim Miss Lee Lai Kuen who was aged 15 at the time of the offence lived at a hostel known as Our Lady's Hostel. She was allowed out for weekends. On Sunday 12th May 1996, she had stayed out later than the time she was required to return to the hostel.

3. According to the prosecution case when she was on her way back to stay the night at her father and step-mother's residence on Tsing Yi Island, she met the Applicant. He suggested that they should visit some bars in Tsim Sha Tsui. She agreed. They went to Tsim Sha Tsui and she consumed a quantity of beer and became unwell. The Applicant had then suggested that they should visit a friend's flat so that she could rest there. She agreed to this. They went to the address referred to in the charges and a friend of the Applicant, Mr. Chan, let them in. They were shown into a spare room which had a minimum of furniture. The Applicant had then overborne her physically and mentally and had sexual intercourse with her against her wishes.

4. After this, the victim had gone to her father's residence. She had not told him or her step-mother what had transpired. She gave evidence that she was not on good terms with her step-mother and had not felt it possible to confide in her.

5. However when she returned to the hostel, she had reported to a Madam Yeung that she was afraid that she might have become pregnant. She said that she had met a man who she had known for some time and that he had forced himself upon her. Ms Yeung had pressed her with further questions and eventually a decision was made that a report should be made to the police.

6. The Applicant was arrested on 21st May that is some ten days later. According to the police officer concerned after the Applicant was cautioned, he had said "I did not rape her, it was of her own free will."

7. The Applicant gave evidence and called one witness, Mr. Chan, who was the friend who had permitted him to stay in his flat with the victim.

8. The Applicant denied that he had ever had sexual intercourse with Miss Lee. He agreed that he and his friends had met her on the evening in question and that she had had some beer with them. He did not think that she was noticeably under the influence of alcohol. He had noticed that she had become tired and he had then suggested that she might like to rest at his friend's flat. She had done so and she had then returned home. At no time had he had sexual intercourse with her.

9. The explanation he gave for the statement he had made at the time of his arrest was that he had thought that the police had been referring to his girlfriend visiting the flat. He had a girlfriend and she had voluntarily had sex with him at the flat.

10. Mr. Chan's evidence did not add anything very much to the Applicant's evidence.

11. The ground 1(a) of appeal is:

"At the close of the Prosecution's case, the learned Deputy Judge should have withdrawn the charge of rape and the alternative charge of unlawful sexual intercourse with a girl under the age of 16 from the jury and/or uphold a submission of no case to answer on both charges given the monstrous discrepancies between PW1 Lee Lai-Kuen's description of the rapist to PW3 Yeung Wun-Chuk in her first complaint. The evidence adduced by the prosecution at the close of the Prosecution's case is of such a tenuous character that taken at its highest, a jury properly directed could not properly convict upon it."

12. The main focus of the attack which is made on the prosecution case is the obvious disparity between the evidence which was given by the victim at trial and the complaint which she made to Ms Yeung. As indicated earlier, Miss Lee had told Ms Yeung that the rapist had been known to her for a long time whereas on her evidence in court she had only met the Applicant for the first time on the night in question.

13. The Judge dealt with all the evidence in his summing-up. It is not possible to explain this away on the basis that Miss Lee may have been attempting to hide from Ms Yeung the fact that she had been alone with a man who was a total stranger only a matter of hours after meeting him. This was because she continued to deny that she had given a different version of events to Ms Yeung.

14. Be that as it may this disparity fell far short of a situation which would call for the Judge removing the case from the jury or of holding that there was no case to answer. There is nothing in this first ground.

15. Ground 1(b) is as follows:-

"Alternatively, at the close of the Prosecution's case, the learned Deputy Judge should have withdrawn the charge of rape from the jury leaving only the alternative charge of unlawful sexual intercourse with a girl under the age of 16 to the jury in that taken at its highest, the totality of evidence is inconsistent with the allegations of non-consensual sex having taken place."

16. The Applicant had also been charged with an alternative count of having sexual intercourse with a girl under the age of 16.

17. Having regard to the defence which was run by the Applicant that he had never had sexual intercourse with Miss Lee, it was hardly likely that the jury would acquit him of the rape charge and find him guilty on the second charge. There is no merit in this ground.

18. The second ground is:

"Further, the whole tenor of the Prosecution's case that the Appellant had lied because he was guilty of the offence of rape, if the jury formed the impression that the Appellant had lied about not having any sexual intercourse or act of intimacy with PW1 Lee Lai Kuen, the jury would or could have found the Appellant guilty of the rape not because the jury believed PW1's allegation of lack of consent but because the jury did not believe the Appellant's version of having no sexual intercourse and/or act of intimacy with PW1. All the learned Deputy Judge had directed was at pp.19Q-20G of Appeal Bundle that even if the jury rejected the Appellant's evidence that there was no sexual intercourse they would still have to be sure that PW1 did not consent to the sexual intercourse. The learned Deputy Judge failed to direct the jury adequately or at all that lies only go to credibility."

19. The simple issue was whether the prosecution had succeeded in proving at the appropriate level that the Applicant had had sexual intercourse without the consent of Miss Lee. What the case involved was a simple issue as to whether Miss Lee had been telling the truth.

20. It must be said that it would have been preferable if the simple unabbreviated direction on lies had been given. It must however have been the case that the jury would have based their verdict on the evidence which was before them and not have attempted to draw any inferences on the basis that they may have thought that the Applicant may have told lies.

21. In this connection the Judge did give the following directions:

"You may - and I stress that it is absolutely a matter for you - on the totality of the evidence be satisfied that the prosecution has proved that there was sexual intercourse in the early hours of the morning. If you make that finding, it will mean of course that you have rejected the accused's evidence in that regard. But you must be aware that, even if you do reject the accused's evidence in that regard, it does not automatically follow that the accused is guilty of rape. You will still have to be sure that LEE Lai Kuen did not consent to the sexual intercourse and that the accused either knew she was not consenting or could not have cared less whether she was consenting or not and pressed on regardless."

22. The jury could have been under no misapprehension as to how they should approach the evidence.

23. This ground also fails. The conviction was neither unsafe nor unsatisfactory and this application is dismissed.

Representation:

Mr. A.E. Schapel (D.P.P.) for Respondent

Mr. H.Y. Wong (D.L.A.) for Applicant