The Queen v. Lee Hong Keung

CACC000365/1986

Evidence - corroboration - sexual offence - distressed condition of complainant - direction to jury

Unless there are special circumstances (such as those in R. v. Redpath, 46 Cr. App. R. 319 - and if these are present the judge will point them out to the jury) the trial judge must stress that the evidence, if accepted, should be given little weight as affording corroboration.

[R. v. Knight 50 Cr. App. R. 122 and R. v. Wilson 58 Cr. App. R. 304 applied.]

BETWEEN

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Coram: Fuad, Kempster & Clough, JJ.A.

Date of Hearing: 7 November 1986

Date of Judgment: 7 November 1986

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JUDGMENT

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Fuad, J. A.:

1. This is the judgment of the court.

2. The Applicant was convicted on 9 July this year (Addison J. and a jury) of claiming to be a member of a triad society (count 1) and of rape (Count 2), He pleaded guilty to the offence charged in Court 4 of the indictment: unlawful sexual intercourse with a girl under the age of  16.

3. The jury were unanimous on the triad charge, and convicted the Applicant on the rape charge by a majority of 5 to 2.

4. He was sentenced to 12 months' imprisonment on count 1 and to 5 years' imprisonment on Count 2. The judge also imposed a sentence of 12 months' imprisonment on count 4. The sentences on counts 2 and 4 were ordered to run concurrently, but consecutive to the sentence imposed on Count 1.

5. The Applicant now seeks leave to appeal against his conviction on Count 2 (the rape charge). His application for leave to appeal against conviction or. Count 1 has been abandoned before us today and will stand dismissed.

6. The alleged offence took place on 31 January this year. The complainant was then just over 14 years of age. She told the jury that she first met the Applicant sometime in 1984 when she was introduced to him by a girl classmate. He asked for $36.60 as the initiation fee for joining the 14K Triad Society, telling her that if she paid the money he would protect her from being bullied. She did not have the money. He telephoned her on a number of occasions at home where she lived with her Godfather, her parents having separated when she was very young. Whenever she met the Applicant in the street, which happened quite frequently, he asked her for the same sum of money, but she never paid.

7. The complainant went on to say that at the end of January, a school boy in her class told her that the Applicant was looking for her. On 31 January the same boy told her that the Applicant was waiting for her at a particular amusement centre., and that she should go there. When school finished that day, she went to the amusement centre with the boy. The Applicant was not there but she was introduced to another young man as a friend of the Applicant.

8. I interpose here to say that this young man was the 2nd Defendant at the trial. He is not before us today. He was acquitted on a directed verdict on Count 2 in which he had been jointly indicted with the Applicant, but convicted on a separate Count of rape by a 5:2 majority. He also pleaded guilty to having unlawful sexual intercourse with a girl under the age of 16.

9. To continue the complainant's story, she said that when the Applicant did not turn up she went home for a while and returned to the amusement centre at about 2:00 p.m.. He still was not there, but the 2nd Defendant was. The reason she gave for seeking out the Applicant was that she was anxious to find out why he wanted to see her.

10. Since the Applicant had still not appeared, an hour or so later she went to a restaurant and waited there until he did arrive. She asked him why he wanted to see her. He replied that it was not convenient to talk there so they left the restaurant. The Applicant suggested they should go to her home. She pretended her Godfather was at home whereas, in truth, he was away on a visit to China. And so it was decided they should go to a flat in an estate. She had been to that flat before but never alone. On the two or three occasions she had been there she had been accompanied by the girl who had introduced her to the Applicant.

11. The complainant then related how first the Applicant, and later the 2nd Defendant, had raped her. During the sexual assaults upon her, she said that she had cried out and resisted as much as she could, and that whenever she tried to leave the flat she was prevented' from doing so.

12. Sometime later, at about 6:30 p.m. another man entered the flat using his own key. She thought he was the owner of the flat. Then a hairdresser came to the flat and dressed the hair of the apparent owner of the flat. She explained that she had not complained to either of these men because she found it embarrassing and felt that no purpose would be served if she told them what had taken place.

13. The hairdresser left at about 11:00 p.m. and sometime before midnight she was eventually allowed to leave. After she got home she wrote a note intended for her boyfriend saying "Lung, sorry I have done you an injustice ..... I will feel shameful to meet other people." She said she felt she had let her boyfriend down. This note, she said, was in fact "discarded".

14. The first occasion upon which she told. anyone what had happened to her was on the following day, between 11:00 a.m. and noon. Her boyfriend had come to see her and wanted to know where she had been the night before. About her complaint, after reviewing the evidence, the judge told the jury "you may think that he practically had to force out of her what had happened." She, then went to the Police Station with her boyfriend and made a report.

15. The Applicant did not give evidence himself at the trial. He had admitted having sexual intercourse with the girl in a statement he made to the police, but said that it was with her consent.

16. The learned judge gave a classic direction to the jury on the meaning and the need for corroboration. He told them what evidence was, and what evidence was not, capable of being corroboration. Indeed, it must be said at once that the judge's summing up as a whole was admirably clear and well formulated. It is on the evidence which he left to the jury as being capable of amounting to corroboration that this application for leave to appeal turns: the distressed condition of the complainant and the conduct of the Applicant in keeping away from his usual place or abode after the incident.

17. On the first matter, Miss Toh's submission, in essence, is that the judge should have directed the jury that only minimal weight should be given to the evidence of distress on the facts of the case and that distress could amount to corroboration only in special circumstances.

18. This is what the judge said to the jury on the subject:

"              Evidence has been given as to her, being in a state of distress when her boy friend saw her on the following day, the 1st of February, at about 11 a.m. Distress displayed by a rape victim can, in certain. circumstances, amount to corroboration where you are satisfied that it has not been feigned and is genuinely and exclusively attributable to her having been raped."

A little later on the judge said:

"              Her boy friend or ex boy friend as he seems now to be gave evidence as to the state she was in when he saw her on the 1st of February at about 11 a.m. He said that she seemed to be distressed. Remember him saying that her eyes were swollen and it seemed to him that she had been crying. He saw the note on the table.

You must weigh this evidence as to distress very carefully. If you find that she was in a state of distress, was it because she had been raped the previous night or might in have. been due to her afterwards regretting having willingly had sexual intercourse with the two defendants the previous day? Might that distress have been feigned? Was she sorry at the prospect of letting her boy friend down and the chance of losing him? These are matters for you to consider.

You decide whether she was in a genuine state of distress due to her being raped and whether or not that affords corroboration of her evidence."

The learned judge mentioned this again very briefly before he turned to discuss the evidence of the girl herself when he said:

"So apart from the possibilities of distress - and I emphasize the word 'possibilities' - of distress, of keeping away from their usual haunts and the 2nd defendant discarding his clothing, there is no other evidence capable of affording corroboration of Miss WONG's testimony."

19. The law as to the circumstances in which the distressed condition of a complainant in a sexual offence can afford a measure of corroboration is to be found in a number of cases which were cited to us by Miss Toh. The starting point must be R. v. Redpath (1962) 46 Cr. App. R. 319. There a 7 year old girl was indecently assaulted by the appellant on a moor where she had been playing with two friends. A witness who happened to be at the edge of the moor, saw a car parked there. He saw the appellant walk towards the girl and later return to the car and drive off. Immediately afterwards he saw the girl in a very distressed state. About this evidence Lord Parker, C. J. said at pp. 321 and 322:

"It seems to this court that the distressed condition of a complainant is quite clearly capable of amounting to corroboration. Of course the circumstances will vary enormously, and in some circumstances quite clearly no weight, or little weight, could be attached to such evidence as corroboration. Thus, if a girl goes in a distressed condition to her mother and makes a complaint, while the mother's evidence as to the girl s condition may in law be capable of amounting to corroboration, quite clearly the jury should be told that they should attach little, if any, weight to that evidence, because it is all part and parcel of the complaint. The girl making the complaint might well put on an act and simulate distress. But in the present case the circumstances are entirely different. Here is this little girl emerging from the moor in a matter of seconds after the appellant has left, not about to make a complaint at that particular moment and with no idea that she is being observed or that anybody thinks that anything improper has happened. Quite clearly in those circumstances the observation of Mr Hall, an independent bystander, was very strong evidence, if accepted by the jury, of the little girl's story."

20. In R. v. Knight (1966) 50 Cr. App. R. 122, the facts were that the appellant took a little girl into a public lavatory and indecently assaulted her. Later her father saw her with the appellant who walked away. The father had testified that his daughter was frightened, was shaking and held her hand over her private parts. Lord Parker, J. referred to Redpath and said at p.125 of the judgment:

"              Despite what was said in that judgment, there has been a tendency since then for judges to leave to the jury almost every case where a complainant is seen to be in a distressed condition, and in several cases since REDPATH (supra), and in particular two cases to which we have been referred, OKOYE [1964] Crim.L.R. 416 and the case of LUIST [1964] Crim. L. R. 605, I endeavoured to stress that the distress shown by a complainant must not be over emphasised in the sense that juries should be warned that except in special circumstances little weight ought to be given to that evidence."

21. Lord Parker then went on to say that although the assistant recorder had not warned the jury that they must be satisfied that the girl was hot putting on an act, he had gone further by pointing out that she had said that until she saw her father she was not at all distressed. Lord Parker indicated that although the Court might, and he would put it no higher, have held that there was insufficient corroboration in the case if that evidence had stood alone, there was other cogent evidence capable of amounting to corroboration.

22. Then there is R. v. Wilson (1973) 58 Cr. App. R. 304, where soon after a telephone call during which the appellant had attempted to procure his daughter to commit incest, the girl herself telephoned a welfare worker and during the call she evidenced signs of emotional distress. An hour later she showed further signs of distress and unhappiness when she was talking to the welfare worker in her office. After referring to Lord Parker C. J. 's observations in Redpath and Knight, Edmund Davies, L. J. said at p. 311:

"Reference to OKOYE (supra) and LUISI (supra) bears out that in each case the Lord Chief Justice took the opportunity of stressing the need for the utmost care in warning the jury that they must guard against attaching undue weight to the appearance of distress, for it might rise from a multiplicity of causes and, of course (and this is vitally important in the present case), might not spring, despite the girl's assertion, from anything the accused man did or said, but from other and dissociated causes. That is a roundabout way of saying that, unless there are very special circumstances (such as those in REDPATH (supra) where the child had no reason to think that she was being observed), the distressed condition of a complainant may simply fail to implicate the accused in the offence charged."

Edmund Davies, L. J. later in the judgment said:

"We regard it as of considerable importance that the type of warning adverted to by Lord Parker C. J. in KNIGHT (supra) is constantly borne in mind when such cases as the present are before the Courts and that a trial judge cannot be too zealous in heeding that warning."

23. The Criminal Law Review Reports of the two cases  mentioned first by Lord Parker, C. J., and later by Edmund Davies, L. J., are very brief. indeed. In R. v. Okoye (1964) Crim. L. R. 416, the relevant part of the holding is as follows:

"2.     The judge did not emphasise sufficiently that a distressed condition at the time of making a complaint can only amount at the most to the very slightest evidence of corroboration: considering R. v. Redpath [1962] Crim. L. R. 491; 46 Cr. App. R. 319."

and in R. v. Luisi (1964) Crim. L. R. it reads:

"2.     The significance of the girl's distress was over-emphasised. There may be cases (e.g. R. v. Redpath (1962) 46 Cr. App. R. 319) where there can be no suggestion that the distress was feigned. In normal cases, however, the weight to be given to distress varies infinitely, and juries should be warned that, although it may amount to corroboration they must be fully satisfied that there is no question of it having been feigned."

24. We mention here an Australian case which was cited to us. In R. v. Flannery [1969] V. R. 586, Winneke, C. J. giving the judgment of the Full Court of the Supreme Court of Victoria made certain observations which we would respectfully adopt, although they do not take the matter much further. It is to be noted that in that case, the Full Court followed all the English authorities on the question of distress affording corroboration which had been decided up to that date; that is, I think, up to Knight but not including Wilson. He said at p. 591:

"          In our opinion, evidence of the distressed condition of a prosecutrix may or may not be capable of amounting to corroboration according to the particular facts of each case. In determining whether it is so capable, regard must be had to such factors as the age of the prosecutrix, the time interval between the alleged assault and when she was observed in distress, her conduct and appearance in the interim, and the circumstances existing when she is observed in the distressed condition. Without attempting to enumerate exhaustively the circumstances in which such evidence may amount to corroboration, we are of opinion that if, regard being had to factors of the kind we have mentioned, the reasonable inference from the evidence is that there was a causal connexion between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration. If such inference is not open, the evidence is not, in our opinion capable of amounting to corroboration. We should add that except in special circumstances such as existed in Redpath's Case, supra evidence of distressed condition will carry little weight and juries should be so warned by the trial judge in the course of his charge."

25. Mr. Harris urged upon us strongly that the authorities, properly read and understood, did not support Miss Toh's submissions. He contended that the two matters that required to be emphasized to the jury where distress was relied upon as corroboration, were, firstly, that the distress was not feigned and, secondly, that the distress was attributable exclusively to the offence. Once the kind of careful warning on both these matters the learned judge had given in this case was evident, then the question of weight was entirely a matter for the jury and there was no need to go on further and direct the jury as to whether the evidence was compelling or was evidence that could amount only to the slightest corroboration. Mr. Harris pointed out how fairly the judge had dealt with all the weaknesses, contradictions and inconsistencies in the girl's testimony so that the jury must have been fully alive to the task before them.

26. We cannot agree. We think that the cases plainly show that unless there are special circumstances (and if these are present the judge will point them out to the jury) apart from the matters so carefully dealt with by the judge in this case, the trial judge must go on to stress that the evidence, if accepted, should be given little weight as affording corroboration. With due respect to the arguments addressed to us on behalf of the Crown, we think this statement of the law is fully supported by the remarks of Lord Parker, C. J. in Redpath and Knight and by the observations of Edmund Davies L. J. in Wilson, in the passages from the judgments which have just been read. The same point was made in the Victorian case of Flannery.

27. There were, we are satisfied, no special circumstances in the facts of this case which would have justified the omission of this additional warning, and there is the added difficulty, mentioned by my Lord Kempster, J. A. during the hearing, that two rapes by different men were sought to be established by the prosecution, and evidence of distress could have been attributable to the conduct of one of the defendants and not the other. We draw attention to the careful direction of the trial judge on this point set out in the judgment of the Full Court in the Victorian case of Flannery (where there were two defendants and the issue was one of consent). The judge's direction on this point is quoted as follows at p. 589:

"..... the sort of corroboration you would be looking for is some evidence, from a source other than Miss Daniels which confirms her story in some material particular and which implicates the particular accused whose case you are considering."

28. On the second matter which the judge said was capable of amounting to corroboration of the girl's evidence that the sexual intercourse was without her consent, Miss Toh contends that the judge should have directed the jury that mere suspicion that the Applicant might have "played possum" was insufficient for this purpose. They should have been told, it is submitted, that they had to be sure that he had acted from a consciousness of guilt, and that the burden was on the Crown to prove that he did flee from his usual abode.

29. In his summing up, the learned judge told the jury that the prosecution was inviting them to infer that the Applicant (and the 2nd Defendant), shortly after the alleged offences, resided at a new address, the suggestion being that they had done so to avoid being found by the police. The judge reviewed the evidence on the point, which was that the Applicant and the 2nd Defendant were arrested on 27 February 1986 at the premises of a hairdresser in Castle Peak Road. The Applicant had worked for him for a few weeks in October 1985 and had then left. At first the hairdresser had said that he could not remember when the Applicant had asked for his job back. Then he said that it was sometime in the middle of January. Later he said that he had re-engaged the Applicant on 30 January because the Chinese New Year was approaching. The hairdresser also told the jury that the Applicant slept in his premises from that date, with his permission, and had brought the 2nd Defendant there on 4 February, but that the latter did not sleep there every night.

30. The learned judge went on to direct the jury as follows:

"           You may think, being fair to the 1st defendant, that he - having been re-engaged by LAM before the alleged rape and promised that he could stay on the premises and sleep there - did not go there for the purpose of fleeing from the police.

But you will ask yourselves: did he stay there in order to avoid being traced? Did he really have trouble with his elder brother? We have heard no evidence from him as to why he stayed there.

Even if you think his attendance was innocent enough - and I'm not hinting id any way to the contrary, members of the jury - you are entitled to ask yourself why did he introduce the 2nd defendant to stay there? Why did the 2nd defendant jump bail? Why should the 2nd defendant have chosen the 1st defendant of all people to go and reside with? Were any of them avoiding their usual haunts because they knew they would be sought for, having raped Miss WONG?

LAM said that the 1st defendant told him that he did not want to return home and wanted the 2nd defendant to keep him company.

Now, I'm not going into all the details, members of the jury. If you are satisfied that the 1st defendant was playing possum, then this would be evidence capable of corroboration the evidence of Miss WONG.

Likewise, if you found that the 2nd defendant went into hiding assisted by the 1st defendant, that too would be evidence capable of corroborating the complainant's evidence.

Of course, you are not obliged to take that view of the evidence. It's entirely a matter for you.

As I said, it is fair and right to point out that, according to Mr. LAM, the 1st defendant did approach him to be re-engaged before Miss WONG was allegedly raped and he agreed beforehand that he could sleep there."

31. It is clear that consciousness of guilt as indicated by flight or hiding may supply corroboration in appropriate, cases but the evidence given by the hairdresser (who was a prosecution witness) in its final version could hardly have advanced the prosecution case. If the Applicant really had started to sleep at the hairdresser's shop before the night in question (and there was no evidence to the contrary) then the foundation for the prosecution's reliance on this evidence as corroboration must have been very severely shaken if it did not fall away altogether.

32. The passage just read from the summing up reveals that the judge did not deal with the evidence against each of the defendants separately on this issue with the same meticulous care that he displayed in the rest of his directions to the jury.

33. If anything was to be made, in support of the prosecution case, of the fact that the Applicant had told the hairdresser that he did not want to return home and wished the 2nd Defendant to keep him company, in our judgment the jury should have been directed on the ambiguity of the evidence and on its weakness as an indictation of guilt, and thus as corroboration. And we would add that the learned judge fell into error when he asked the jury to consider whether the defendants were avoiding their usual haunts. Apart from the mention he made of this in the passage just read, the judge made another reference to "keeping away from their usual haunts". No evidence was led that this was so, as Mr. Harris concedes.

34. However that may be, we are of the opinion that this inconclusive evidence should not have been left to the jury as being` capable of affording corroboration of the girls story.

35. This view means that if the learned judge had decided not to leave the evidence of "playing possum", as he put it, to the jury, it would have been even more important that the jury should have been told to attach but little weight to the evidence of distress, which would then have been the only evidence capable of amounting to corroboration.

36. For these reasons, the conviction for rape cannot stand. We do not think that this is an appropriate case for the application of the proviso.

37. The application for leave to appeal against the conviction for rape is allowed; treating the hearing as the hearing of the appeal, the appeal on Count 2 is allowed. The conviction on that Count is quashed and the sentence imposed is set aside. [No re-trial ordered] The Applicant will thus serve the consecutive terms of 12 months' imprisonment respectively on Counts 1 and 4.

Representation:

Miss Esther Toh (D. L. A.) for Defendant/Appellant

Mr. C. Harris (D. P. P.) for the Crown