So Yiu Fung v. HKSAR

FACC000005/1999

FACC No. 5 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 5 OF 1999 (CRIMINAL)

(ON APPEAL FROM CACC NO. 546 OF 1997)

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Date of Hearing: 6 and 7 December 1999

Date of Judgment: 14 December 1999

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J U D G M E N T

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Mr Justice Litton PJ:

1. I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Ching PJ:

2. I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Bokhary PJ:

3. This appellant is a man who has just turned 22 years of age. A little over two years ago, he was tried in the High Court on two counts of rape. He was at that time a man of previous good character. The jury returned their verdicts on 2 September 1997. On the 1st count they convicted the appellant (by a majority of 5 to 2) of the alternative offence of attempted rape. On the 2nd count they convicted him (by a majority of 6 to 1) of rape as charged. Passing sentence on 23 September 1997, the trial judge (Deputy Judge Suffiad) sent the appellant to prison for a total of seven years.

4. The appellant took his case to the Court of Appeal, seeking the quashing of his convictions. That court (Power VP and Mayo and Stuart-Moore JJA) affirmed the convictions. It announced that result at the conclusion of the hearing before it on 25 February 1999, and handed down its reasons on 16 March 1999.

5. On 24 May 1999 the Appeal Committee granted the appellant leave to appeal to this Court. Such leave was granted on the basis that he had shown that it was at least reasonably arguable that substantial and grave injustice had been done.

THE "SUBSTANTIAL AND GRAVE INJUSTICE" TEST

6. Access to this Court in criminal cases is governed by s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, which provides that:

"Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the High Court, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done."

7. This Court's primary role in the administration of criminal justice is to resolve real controversy on points of law of great and general importance. For this Court does not function as a court of criminal appeal in the ordinary way. However the "substantial and grave injustice" limb of s.32(2) exists as a residual safeguard to cater for those rare and exceptional cases in which there is a real danger of something so seriously wrong that justice demands an enquiry by way of a final criminal appeal despite the absence of any real controversy on any point of law of great and general importance. To obtain leave to appeal under this limb, an appellant has to show - as this appellant had shown - that it is reasonably arguable that substantial and grave injustice has been done.

8. As to the basis on which appeals brought under the "substantial and grave injustice" limb may be allowed, Mr Plowman for the appellant has submitted as follows. Even though an appellant has obtained leave to appeal on the basis of his having shown that it is reasonably arguable that substantial and grave injustice has been done, the success of the appeal itself is not dependent on it being shown that substantial and grave injustice has indeed been done. And this Court should consider - just as the Court of Appeal considers - whether the conviction or convictions concerned are unsafe or unsatisfactory.

9. I am unable to accept this submission of Mr Plowman's. It would, if accepted, result in this Court functioning as something which it plainly is not, namely a second court of criminal appeal. It is readily to be inferred that the formula "shown that substantial and grave injustice has been done" in s.32(2) was taken from the Privy Council's decision in Re Dillet (1887) 12 App Cas 459. Mr Dillet was a legal practitioner in British Honduras who challenged his conviction for perjury and a consequential order striking him off the roll of practitioners. Delivering the Privy Council's advice, Lord Watson said (at p.467) that:

"... the rule has been repeatedly laid down, and has been invariably followed, that Her Majesty will not review or interfere with the course of criminal proceedings, unless it is shown that, by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done."

This test was expressly reiterated by the Privy Council in the relatively recent court-martial case from Malaysia of Kamarul Azman bin Jamaluddin v. Wan Abdul Majid bin Abdullah [1983] 1 WLR 579 at pp 583H-584A.

10. Mr Plowman seeks to rely on three decisions in which final appellate courts have considered whether convictions were unsafe or unsatisfactory. These decisions are that of: the House of Lords in Stafford and Luvaglio v. DPP [1974] AC 878; the Privy Council in Kwok Kin Hung v. R [1996] 3 HKC 698; and this Court in Chim Hon Man v. HKSAR (1999) 2 HKCFAR 145. None of these decisions assist the appellant. Stafford and Luvaglio v. DPP is about the correct approach for the Court of Appeal (Criminal Division) to adopt when considering an appeal against conviction referred to it by the Secretary of State under s.17(1)(a) of the Criminal Appeal Act 1968, involving the calling of fresh evidence. The arguments for the appellants there included an argument (which the House of Lords rejected) to the effect that even if the court came to the conclusion that the fresh evidence raised no reasonable doubt as to the guilt of the accused, it should nonetheless quash the conviction if it thought that a jury might reasonably take a different view. It was in that context that Viscount Dilhorne said (at p.906A) that: "At the end of the day it is for this House to say whether in the light of the further evidence the verdict was unsafe or unsatisfactory".

11. In Kwong Kin Hung v. R, an appeal from Hong Kong, it was urged upon the Privy Council that the Court of Appeal had failed to consider whether the convictions there were unsafe or unsatisfactory. Having rejected that principal submission, the Privy Council turned to another submission urged on behalf of the appellant there, namely that there were substantial grounds for thinking that there might have been a miscarriage of justice. It was only then that Lord Steyn, delivering the advice of the Privy Council, said (at p.705A) that: "It is unnecessary to consider the legal basis for this submission. Given the state of the evidence, the terms of the summing up and the verdicts of the jury, there is no reason to doubt that the convictions were safe and satisfactory."

12. In Chim Hon Man v. HKSAR Sir Anthony Mason NPJ (with whose judgment the other members of this Court agreed) identified an error of law in regard to the formulation of the counts. He then pointed out (at p.164D) that the result of that error of law was that the convictions had to be quashed unless the proviso were to be applied. And it was only for the purpose of indicating why the proviso could not be applied that he said (at p.165G) that the convictions were unsafe and unsatisfactory for reasons quite apart from the error over the formulation of the counts.

13. In common with the systems of criminal justice for which tribunals like the House of Lords and the Privy Council have ultimate judicial responsibility, our system of criminal justice aims to be careful and speedy at the same time. It is geared to that objective. Reviewing convictions to see if they are safe and satisfactory is entrusted to the intermediate appellate court. If the matter proceeds further to this Court, our task does not involve repeating that exercise. We perform a different one. In order for an appeal brought under the "substantial and grave injustice" limb of s.32(2) of the Hong Kong Court of Final Appeal Ordinance to succeed, it must be shown that there has been to the appellant's disadvantage a departure from accepted norms which departure is so serious as to constitute a substantial and grave injustice. That is the test. And I now turn to the question whether the appellant has met such test. In order to answer this question, it is necessary to note the salient circumstances of the case and the grounds of appeal advanced on the appellant's behalf.

THE CIRCUMSTANCES OF THE CASE

14. The 1st count was of raping a girl ("the first victim") inside a public lavatory on 28 November 1995 when the first victim was aged 11 and the appellant was aged 17. The 2nd count was of raping another girl ("the second victim") inside the same public lavatory on 16 September 1996 when the second victim was aged 12 and the appellant was aged 18.

15. Such were the similarities between the two offences that everyone has proceeded throughout on the basis they were committed by the same person. Those similarities may be summarised thus:

(1) Both victims, one a girl aged 11 and the other a girl aged 12, were in school uniform.

(2) Each was approached by a man who accused her of having committed a minor offence: littering in the case of the first victim; and jaywalking in the case of the second victim.

(3) On each occasion the man posed as someone in authority: as someone from the Urban Council concerned with littering when he approached the first victim; and as a voluntary worker tasked with catching jaywalkers when he approached the second victim.

(4) Each victim, under threat of being dealt with for a minor offence, was persuaded to follow the man who had approached her.

(5) Each victim was led to the same public toilet.

(6) Each victim - obviously for the purpose of making it easier to interfere with her intimately - was told the same tall tale by the man who had approached her. This was along these lines. He had a colleague who was suffering from a kidney disorder which required some sort of donation from a compatible donor. And to see if she was such a donor, a urine sample from her would be necessary.

(7) Each victim was positioned by the man so that she sat on the toilet bowl with its lid down while he had, or attempted to have, sexual intercourse with her.

(8) The man appeared to each victim to be a man of fair complexion aged between 25 and 30.

16. On 12 October 1996 - almost a year after the first offence and a little under one month after the second offence - both victims picked out the appellant at properly conducted identification parades witnessed by his solicitor. The only evidence against him was that of the two victims. The risk of wrongful identification is one which our legal system fully recognizes. Thus identification evidence has to reach a certain standard before it can even be left to a jury. And even then there are standard warnings which trial judges have to give juries. The identification evidence of each victim reached that standard. And the appropriate warnings were given by the judge to the jury.

17. Each victim was confident of the correctness of her identification. But Mr Plowman rightly made a point to the effect that confidence can be as much a badge of a wrong identification as of a correct one. What was probably more impressive to the jury than the victims' confidence was their careful attitude. Neither of them assumed that the culprit would be on parade. Thus the first victim said under cross-examination that her understanding of the purpose of the identification parade was: "To see if there was any criminal and, if it happened that the criminal was there, to see which was the criminal". And when the second victim was asked by the cross-examiner whether she was expecting to see the culprit on parade, she answered: "I was very sure that I would be able to recognise the person, but I wasn't sure if he would be there or not".

18. The appellant was arrested on 10 October 1996. Since this was almost a year after the first offence, it is not surprising that he could not say where he was at the time of that offence. He did however call alibi evidence in relation to the second offence.

THE GROUNDS OF APPEAL

19. The appellant's grounds of appeal are helpfully summarised thus in his supplemental printed case:

"(1) there were misdirections by the trial judge in Count 2 on alibi (including the failure to direct on the cogency of alibi evidence, misdirection on the onus of proof and on the correct methodology in approaching the question of timing);

(2) that the conviction in Count 2 is in any event unsafe and unsatisfactory;

(3) that the knock on effect renders Count 1 also unsafe and unsatisfactory;

(4) that there was material non-disclosure of the fingerprint reports in Count 2; and

(5) that there was misdirection relating to old charge in Count 1."

The first ground: alibi

20. Although the alibi evidence led in respect of the second offence did not go so far as to show that the appellant did not have time to commit that offence, it did render it more unlikely than would otherwise be the case that he was where it was committed when it was committed. And there is one aspect - but only one aspect - of the appellant's complaint against the alibi directions which gives me some pause.

21. The second offence involved finding a young girl on her own who had done something like litter or jaywalk and who could be intimidated or deceived into following a stranger to a lonely spot. The alibi left the appellant with very little time to find such a victim. This point was made by defence counsel in his closing speech. The judge did not repeat it in his summing-up. Does that omission amount to a substantial and grave injustice? In my judgment, it does not. It may have been better if the judge had repeated the point for the jury. But the point was an obvious one which the jury could hardly have failed to

appreciate. And the judge must have had a sufficient "feel" of the case to make a reliable assessment of whether the jury really needed to have the point repeated for them in his summing-up.

The second and third grounds: unsafe and unsatisfactory; "knock on" effect

22. I turn now to the second and third grounds of appeal. By complaining that the convictions are unsafe and unsatisfactory, these two grounds invoke the wrong test. I will consider whether the matters relied upon under these two grounds bring the appellant success under the correct test, namely the "substantial and grave injustice" test.

23. The appellant's printed case contains this helpful summary of the matters urged in support of the contention that the conviction under the 1st count is unsafe and unsatisfactory:

"In view of the cogency of the alibi evidence, the lack of any corroborative or scientific evidence linking the [a]ppellant to the offence, the discrepancies in age and appearance between [the second victim's] description of her assailant and the [a]ppellant, the previous good character of the [a]ppellant, and the inherent risk of honest but mistaken identification by a 12 year old girl of her assailant whom she had not met before, there must exist a reasonable doubt as to whether the [a]ppellant was the assailant. The prosecution cases had an air of unreality about it".

In my judgment, these matters do not point to substantial and grave injustice having been done.

24. I need say nothing more about the alibi than what I have already said about it.

25. As to the discrepancies in age and appearance between the appellant and the descriptions given to the police by the two victims when the offences were reported, the position is as follows. Both victims described the man as being aged between 25 and 30 and of fair complexion. The appellant was aged 17 at the time of the first offence and 18 at the time of the second offence. And he gave and called some evidence that he had pimples at the time of the offences.

26. Even after picking the appellant out at an identification parade as the culprit, neither victim resiled from her description of the culprit as a man aged between 25 and 30. So all that can be said is that they were not very good at estimating the age of someone several years older than themselves. It is common experience that this is so with many if not most children. This case does not turn on any estimate of age but on face-to-face identification.

27. As to complexion, the evidence of pimples on the appellant's face was vague. What is more, defence counsel did not cross-examine either victim on whether their description of a fair complexion was meant to negative the existence of facial pimples.

28. Lastly there is the question of the appellant's good character. The judge gave the jury a full "good character" direction. So the jury, which received all the evidence at first-hand, had the significance of the appellant's good character fairly and squarely pointed out to them.

29. The foregoing being the position in regard to the conviction on the 2nd count, the question of a "knock on" effect on the conviction on the 1st count falls away.

The fourth ground: fingerprints

30. I turn now to the 4th ground of appeal. After the second offence had been reported and on the day on which it had been committed, the police examined the toilet cubicle in question. From the wall tiles of that cubicle they lifted the identifiable fingerprints of some unidentified person not the appellant. The appellant's legal advisers only learned of these fingerprints after the Court of Appeal had given judgment. And it is now submitted on the appellant's behalf that the prosecution's failure to inform the defence of these fingerprints amounted to material non-disclosure.

31. As it seems to me, it would be prudent for the prosecution to make it part of their routine to disclose matters of this kind to the defence in order that the defence may make what they can of the same. But what could the defence really have made of these fingerprints? In my view, practically nothing. There is nothing extraordinary about fingerprints, whether identifiable or otherwise, being found on the wall tiles of a cubicle in a public toilet. And the absence of any fingerprint evidence against the accused was there for the defence to make what it could of the same.

The fifth ground: "old charges" direction

32. This leaves the fifth and final ground of appeal. Two related complaints, both directed to the 1st count, are made under this ground. The first complaint is against the omission from the summing-up in the present case of the sort of direction to which Sir Anthony Mason NPJ referred in Chim Hon Man v. HKSAR when he said (at p.165 D-E) that:

"In England, it is customary for a trial judge to remind a jury of the accused's difficulty in meeting old charges: see R v. Rackham [1997] 2 Cr App R 222 at p.227. The giving of the last-mentioned direction is an important element in ensuring fairness to the accused in cases involving old charges, especially when there is little particularity."

33. The second complaint is against that part of the summing-up in which the judge said to the jury that: "Very little has been said by the defendant in relation to the first count. The defendant merely said that the assaults on the two girls had nothing to do with him".

34. It is said on the appellant's behalf that the omission of the "old charges" direction deprived him of the fairness at which that form of direction is aimed. And it is further said on his behalf that such deprivation was compounded by the two sentences from the summing-up which I have just quoted: because those sentences would have given the jury the impression that the appellant was simply taking advantage of the rule that an accused person need not say anything.

35. I do not see how what the judge said could have given the jury any impression of that kind. And as far as the complaint against the omission of an "old charges" direction is concerned, the short answer to this complaint is that the 1st count was not so old as to make such a direction even important let alone obligatory: especially when, as here, there was no lack of particularity. In my view, the fifth ground is wholly without substance.

CONCLUSION

36. In my judgment, there is no proper basis for disturbing either of these two convictions. Accordingly I would dismiss this appeal.

Mr Justice Nazareth NPJ:

37. I agree with the judgment of Mr Justice Bokhary PJ.

Lord Hoffmann NPJ:

38. I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Litton PJ:

39. The Court unanimously dismisses this appeal.

Representation:

Mr G. Plowman SC (instructed by Messrs Or, Ng & Chan) for the appellant

Mr D.G. Saw SC and Mr Y.M. Liu (both of the Department of Justice) for the respondent