Chan Mau Lung v. The Queen

CACC000366/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 366 OF 1971

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Coram: Rigby, C.J., Huggins and Pickering, JJ.

Date of Judgment: 10 November 1971

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JUDGMENT

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Huggins, J.:

1. The Appellant was convicted upon the verdict of a jury of rape and he seeks leave to appeal against that conviction. The original ground of appeal set out in the Notice of Motion was not proceeded with by counsel before us and consequently it is not necessary to go into the facts in great detail. At about 9:30 p.m. on 12th June, 1970 the complainant left her home in a resettlement estate to go to a youth centre some short distance away. She had to pass through a playground and there she was accosted by four young men. The case for the Crown was that in the course of a conversation pressure was brought to bear upon the complainant to go with these men and that she accompanied them, though unwillingly, to a neighbouring resettlement block which was still under construction. In a room on the 7th floor of this empty building they made it clear to her that she was to be raped and asked her which of the four men she would prefer. She chose the Appellant, who appeared to her to be the leader of the gang. The other three then withdrew and closed the door. Having stripped, the Appellant ordered the complainant to do likewise and finally forced her to remove her slacks and underpants. Being in fear she lay on the floor when directed by the Appellant to do so: he forced her legs apart and had intercourse with her. He then dressed and left the room, after which each of the other three in turn came into the room and attempted to have intercourse although the complainant succeeded in preventing them. After this they left her and she went home, where she awoke her father and made a complaint. The father gave evidence that she was crying. On 9th September the complainant attended an identification parade. The Appellant was not on this parade but there was another suspect. The complainant appears to have thought that either this suspect or another man also on the parade was one of her attackers. Eventually she identified the second man as being one of her attackers, but this was a person whom the police had no reason to suspect as having been involved in the offence. On 10th November the Appellant was arrested and made a cautioned statement to the police, the voluntariness of which was disputed but which amounted to a full confession. At an identification parade on 12th November the complainant picked the Appellant out without the least hesitation.

2. The Defence put up at the trial was an alibi. The Appellant had escaped from the Lai Chi Kok Training Centre in May and went into hiding in Kowloon Bay. He said that he never left Kowloon Bay until the time of his arrest and he alleged that he made the cautioned statement under duress.

3. The appeal has centred upon the directions as to corroboration given by the learned Commissioner in his summing-up. It is said first that the learned Commissioner never defined corroboration but assumed that the jury knew what it was. Counsel relies strongly on a passage which reads:

"          I must also direct you as to the law of corroboration, the law with regard to corroboration. I think you know what corroboration means, members of the jury. In this case it is something which supports or confirms the evidence of the complainant CHEUNG Choi-ying."

It is not disputed that the law requires that a jury shall be left in no doubt what is meant by corroboration (Reg. v. Clynes⁽¹⁾) and the question here is whether it was made sufficiently clear to the jury what they had to look for. It would certainly have been better had the learned Commissioner given the sort of definition which is normally given to juries in such cases, that is to say, this being a case of rape, evidence from an independent source corroborating the evidence of the complainant to the effect that (1) someone had had intercourse with her, (2) such intercourse was without her consent and (3) the person concerned was the Accused: see James v. Reg.⁽²⁾. By saying that the corroborative evidence must be "something which supports and confirms the evidence of the complainant" rather than that it must be something which supports or confirms her evidence "in a material particular" the judge must have given the jury to understand that all the material parts of the complainant's evidence had to be corroborated. Nevertheless, in the absence of a definition of corroboration, had the learned Commissioner said no more than appears in the passage cited we would have been constrained to allow the appeal; but he did not leave the matter there: he went on to indicate to the jury what evidence before them could be regarded as "supporting or confirming the evidence of the complainant". There was no evidence other than that to which he referred which could possibly have been thought by the jury to support or confirm her evidence and accordingly, if the evidence indicated by the learned Commissioner was capable in law of being corroboration, we think there was a sufficient direction.

4. That brings us to the contention that one part of the evidence which was indicated as capable of being corroboration was not so capable. The particular passage complained of is:

"Independent evidence of the distressed condition of a complainant soon after the commission of the offence may amount to corroboration. Again it has been held that where there has been evidence from a parent of the distressed condition of the complainant, then again I must warn you that before you regard the distress as corroboration you should be sure that such distress was real and not feigned, and you should attach little weight to this evidence if it is the only evidence amounting to corroboration. I tell you this, members of the jury, because evidence has been adduced, remember, that the girl woke up her father, the father said she woke him up, she made a complaint to him and she was crying."

What is submitted is that this passage was based on Reg. v. Redpath⁽³⁾, but that the judge did not correctly reflect the reasoning in that case. Although we must, with all due respect, agree with counsel for the Respondent that some of the reasoning is not as clearly expressed as it might have been in a reserved judgment, nevertheless we see no reason to believe that the case did not decide what the learned Commissioner understood to be the law. In our view reliable evidence of the complainant's distress is always capable of being corroboration that what has happened to her has been without her consent. It matters not that the evidence comes from a parent or that it is observed at a time when the woman makes an early complaint: such considerations go only to the question whether any weight at all ought to be given to the evidence of distress. Just as a complaint may be untrue, so may distress be feigned and, even if not feigned, it may be due to factors other than a sexual assault made upon the complainant. Where the possibility that the distress is feigned or due to other factors than a sexual assault is not negatived by the circumstances in which it was observed (as in Redpath v. Reg.⁽³⁾) it is incumbent on the judge to warn the jury against regarding the evidence of distress as corroboration. That is precisely what the learned Commissioner did in this case and we think the argument fails. No question was raised whether the learned Commissioner ought to have made it clear to the jury that although the evidence might be valid corroboration of lack of consent it could not afford corroboration of the sexual intercourse or of the Appellant's connection therewith and that they must look elsewhere for corroboration of those matters. As we have heard no argument upon this or upon the possible result of such an omission we say no more about it.

5. Part of the "Further Additional Ground of Appeal" of which notice was given was abandoned, but it is argued that the learned Commissioner misdirected the jury when he told them that the cautioned statement of the Appellant which was put in evidence could be corroboration. The statement was in the following terms:

"I know now. As I have fallen into your hands, I am not afraid to tell you all the truth. I admit that sometime in June this year, I did together with 'AH FEI, FA KAU and PAT CHI, 4 persons, go to the vicinity of the Ham Tin playground. We saw a girl walking alone, so the four of us went forward together to stop her and asked her not to move. Then we four took her to an empty room at Block 15, 7th floor. (We) asked her which one of us she liked. At that time the little cunt said that she liked none of us. But I said that even if she did not like, we have to do it. So the four of us pressed her down to the floor, stripped her of her coat and trousers. Then I told AH FEI, FA KAU and PAT CHI to go out of the room first. Then I took off my clothing. I applied force to make her thighs wide apart. Then I forced my thing down her lower part. Not long after, I ejaculated. Then I told PAT CHI to come in and I went out. Not long after, PAT CHI fixed (her) up, It was then AH FEI's turn. After AH FEI fixed up, it was FA KAU's turn. After we four had fixed her up, we told that little cunt that we did not allow her to report the matter to the Police, otherwise it would not be good to her in future. We also told her not to go out from that room until all of us had left. Then the four of us left the place."

What the learned Commissioner said was:

"The other evidence, if you attach weight to it, is the statement that the Crown alleged was made to the police by the accused when he was arrested. Now with regard to that statement, members of the jury, if the Crown has satisfied you beyond reasonable doubt that the statement or certain parts of it are true, then parts of that statement would certainly amount to corroboration of the complainant's evidence, such as the parts of the statement when it was alleged that the accused stated that he and his three companions stripped the complainant of her coat and trousers, that the accused applied force to get her thighs apart and, as he put it, 'forced his thing down her lower part' and not long after he ejaculated".

It is not in dispute that if evidence which was suggested to be corroboration was in law not capable of being corroboration the conviction could not stand: Phillips v. R.⁽⁴⁾. What is argued on behalf of the Appellant is that the evidence of the complainant was not consistent with the Appellant's cautioned statement and therefore could not be corroboration of her evidence. The learned Commissioner realized there was a discrepancy between the two stories for he said:

"          There is one interesting matter in this statement though, members of the jury. In the statement the accused is alleged to have said this: 'So the four of us pressed her down to the floor, stripped her of her coat and trousers.' That does not agree with the complainant's evidence. The complainant told us, and she told the police the same thing, the complainant told us that she was not forcibly stripped as such. She was forced by beatings and threats of the accused to take off her own slacks and her own panties. There is no question of her being pushed to the floor by the four boys, and also she gave no evidence that anybody ever took off her coat. In fact, if I remember aright, she said that evening she was wearing a blouse and slacks. She did not say anything about wearing a coat. Again, what weight you put to all this, members of the jury, is entirely up to you."

It was, perhaps, not being as helpful as he could have been to say that the discrepancy was "an interesting matter" without explaining to them its significance, i.e. that it might raise doubts as to the truth of the complainant's evidence. It may be that the learned Commissioner assumed the significance was too obvious to require express mention but we think it would have been better had he put the matter beyond question. Be that as it may, it is important to appreciate the distinction between evidence which is corroborative and evidence which is consistent in all respects with the evidence of the complainant. What we have to ask ourselves is whether the statement, if true, tended to show not only that someone had sexual intercourse with the complainant and that it was without her consent, both of which matters had to be proved although they were not directly disputed, but also tended to show that the person concerned was the Appellant. Provided that it did, the fact that it might also tend to show that the circumstances of the rape were not entirely as deposed to by the complainant would not deprive it of its status as evidence capable of being corroboration. That being so we are satisfied that there was no misdirection when the judge said the statement could be corroboration.

6. For these reasons the application for leave to appeal against conviction is dismissed.

Representation:

C. Wong for Appellant

C. Ching for Respondent

(1) (1960) 44 Cr. App. R. 158

(2) (1971) 55 Cr. App. R. 299.

(3) (1962) 46 Cr. App. R. 319

(4) (1924) 18 Cr. App. R. 115.