Chan Ping-kwong Alias Chan Ping-kuen Alias Kuen Chai and Another v. The Queen

CACC000390/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 390 OF 1974

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Coram: Full Court (Huggins, McMullin & Pickering, JJ.)

Date of Judgment: 3 January 1975

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JUDGMENT

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McMullin, J.:

1. The first appellant, CHAN Ping-kwong, was convicted upon a single count of rape and the second appellant was convicted of aiding and abetting in the commission of that offence. It was common ground that the first appellant had been on friendly terms with the complainant, LAM Wai-man, a girl of eighteen years of age, for some months prior to the 26th of July 1973, the date laid in the charge. She had met him at a swimming party in March 1973 and thereafter she went out with him to films and tea houses on seven or eight occasions. She told the court that on the 24th of July she received a phone call from the second appellant and a rather general kind of conversation ensued. In the course of this the second appellant professed to be a brother of the first appellant. On the 26th of July she received a further phone call from the second appellant and as a result she joined him at a restaurant for tea in the evening at about 9 o'clock. The first appellant arrived a little later and the three of them had some food. She was then prevailed upon to drink a quantity of gin which was something she was not accustomed to do. She said that she became dizzy and her sight was blurred. The two young men then took her out of the restaurant and after walking around the streets a little bit she got into a taxi with them under the impression that they were taking her home. The next thing she remembered was waking in a bed in an apartment house and finding hers of fully clothed lying next to the second appellant who was wearing only under-pants. She screamed and he put a pillow over her mouth to make her desist. The first appellant was nearby and the second appellant then told her that she must choose between them. She did not understand what this meant but thought that if she did choose one of them she would be released. She indicated that she chose Cheung, the first appellant whom she knew best. He then told her to take off her clothes and when she refused the second appellant hit her on the face. The first appellant then removed his clothes and told her to do the same. When she refused they struggled together. He removed some of her clothes and pushed her upon the bed and forced her legs apart and had intercourse with her against her will. While he was doing this the second appellant, according to her, was sitting on the floor near the bed. The first appellant then left her and went into the toilet and the second appellant asked her to have intercourse with him. She refused and he said that it would not matter as she must now work for them. He went on to say that he had many brothers, and that she should not tell the police or other people what had happened. After that she and the two appellants slept upon the same bed and the following morning they all had breakfast together in a nearby tea house. She was then permitted to go home but before she left the second appellant told her that they would find work for her and warned her once more against informing the police.

2. When she arrived home she was weeping and her mother also greeted her with tears. She said that on her way home she had resolved not to tell anybody about what had happened to her but on her arrival at home she lay upon her bed and wrote upon a piece of paper a note which was to the general effect that she had lost her virginity and that things were hopeless for her. While she was doing this three of her work-mates from the factory where she worked come in and seeing her agitated and noting her writing something on the paper asked what was wrong. When she refused to say anything one of them snatched the paper from her and read it. She then briefly told them what had happened to her. The evidence of the three girls on this matter was not entirely consistent but it may be said that the total effect of that evidence was that she did complain to them of having been subjected to sexual intercourse against her will. There was evidence that her mother was within earshot when she said this to her friends.

3. Shortly after that her parents took her to Wong Tai Sin Police Station and there in the presence of a woman police officer she made a statement. This was recorded by P.C. 679. She was then taken together with her mother to Mongkok Police Station, where P.C. 679 handed over the statement he had recorded and left her in the care of the Mongkok police. The written record of this statement was, unfortunately, subsequently lost but the police constable was asked questions at the trial as to his memory of its contents. From his evidence it would appear that that statement was nothing like so detailed as her evidence in court and that it amounted in effect to no more than the allegation that one of the boys had had sexual intercourse with her after the other boy had already left the room. He said that the girl gave him no details as to the manner of the intercourse and that it was only in answer to a question put directly by him that she said it had been without her consent.

4. At Mongkok Police Station a further statement was taken from her by Detective Sergeant 6294. In this statement amongst other things she was recorded as saying that she had been an intimate friend of the first appellant for some time prior to the events laid in the charge. She had permitted minor intimacy by way of fondling her body and she professed to be very much in love with him. Her account of the events of the night of the 26th to 27th of July was wholly different from her evidence in court and from what she had said already to P.C. 679. What it amounted to was that after she and the two appellants had had something to eat at a restaurant, where they drank only tea, they went to Argyle Street at about 2.00 a.m. and went into an apartment house there. She slept on a bed with the first appellant and the second appellant slept upon the floor all of them being fully clad. The only intimacy she alleged in this statement was that the first appellant had caressed her body indecently.

5. The prosecution took the proper and sensible course of introducing this statement into evidence and asking the girl to explain it. Her explanation was to the effect that the Detective Sergeant had hectored and bullied her and by suggesting answers to the questions that he put had gradually distorted her statement out of all correspondence with the true facts. She said that she could not clearly remember whether it had been read back to her and that she only signed it because she was afraid of him. One of the points made upon the appeal by Miss Leong, who appeared for both appellants, was that the Crown had failed in its duty in not calling the Sergeant in order to clear this matter up and that the learned Commissioner, in dealing with this matter, had done so in such a way as to infer that it was the duty of the defence to do so. We can find no substance in either of those contentions. The Crown was under no obligation to accept this statement at its face value and might very well have done no more than bring the attention of the defence to it, leaving it to defence counsel to make what capital she might out of it. The course actually adopted was wiser and more just. It was in the highest degree unlikely that, had the Crown called the Sergeant, he would have admitted to bullying the girl in the way she described. The Crown was under no duty to seek to demolish its own case and if the Sergeant had been called in that way it might have seemed to the jury that that was what the Crown was trying to do. The defence already had, through the act of the prosecution in introducing this statement, the advantage of its contents. The nature of these contents, and the circumstances surrounding the taking of that statement, made the girl's explanation an inherently unlikely one and, whether called by the prosecution or by the defence, the Sergeant's inevitable denial of impropriety would scarcely have furthered the matter. But if called by the Crown that evidence might well have induced the jury to conclude that the Crown was relying on the girl's statement to the Sergeant as part of its case against the appellants. As to the judge's comment the learned Commissioner was careful not to say that the onus was upon the defence to call the Sergeant but merely that the defence could have called him if they had wished to hear his version of this story.

If the evidence given by the complainant had been above suspicion it might be said that there was a strong case against both the appellants upon the charge as laid. But from the circumstances already related it is clear that there were matters which should havd occasioned the liveliest doubts in the minds of the jury as to the truth of her story. It may be said, as Mr. Sharwood for the Crown did say, that the memory of the police constable who took her first statement at Wong Tai Sin Police Station may have been in error and that the girl never told him that the second appellant was not present when the assault upon her took place. But it seems unlikely that he would be mistaken in recalling that the girl only volunteered the information that she had had sexual intercourse with the first appellant and said nothing about having been forced to do it until he put that question to her. No such doubt in any event attaches to the record of what she said to the Sergeant at Mongkok. While this statement falls short of a positive assertion that she was not raped it is difficult to read it as other than a total retracting of the alleged earlier complaints. It was the Crown's case that there was a complaint by the girl upon her return home on the morning of the 27th but that complaint, if it be a complaint in the ordinary sense at all, would never have been made if her friends had not seen the notes she had committed to paper and questioned her about them. It had been her professed intention not to tell anybody what had happened and the note which she made of the affair upon returning home, although the written record of it was not produced in evidence, appears to have amounted to nothing more than she had lost her virginity. It might be said that that bears more the mark of a tormented conscience than anything in the nature of an accusation. It was only upon being questioned about it that she professed herself to have been forcibly debauched. The evidence given by the girl's mother seems to show that what she had gathered from the conversation of the complainant with her companions was that her daughter had spent the night with a man or men and that it was only after further conversation with the girl's companions that she came to the conclusion that the matter should be reported to the police. She denied that she had scolded her daughter but on the other hand one of the daughter's companions said that her mother did scold her saying she was no longer her mother and all of them apparently tried to prevail upon her mother not to scold the girl. She denied that she was angry with her daughter but it was at that point in the evidence that a statement made by the mother at Wong Tai Sin Police Station at the time she and her daughter reported there was introduced in order to confront her with some of its contents. In that statement she not only admitted that she had scolded her daughter but said that she was very angry with her when she returned home and that her daughter had stated to her that she had been to a boarding house with her boy friend. This statement concluded with the remark that it was after the discussion between herself and her husband that they brought the complainant to the police station and she gives the reason in these terms:

"I was afraid she might turn the bad way and fallen (sic). After a discussion between my husband and myself I brought her to the police station to make a report lest she might not feel sorry and continue with this and we hoped she would take note of the lesson."

It is noteworthy also that in the controversial statement allegedly made by the complainant at Mongkok Police Station the final question and answer are in these terms:

6. All of this should make it clear that the Crown was on a shaky ground at the conclusion of the prosecution case. There was indeed a submission of no case to answer which was rejected by the learned Commissioner and the principal point made upon the present appeal was that he was in error in doing so in that the evidence was not safe to leave to the jury. We do not think however that that ground has been substantiated. All the factors bearing upon the weakness of the prosecution case were plainly in evidence before the jury. They had been warned that there was no corroboration in the clearest terms and while the evidence concerning the girl's revelations to her family upon her return home was referred to in some detail, it was not suggested that that was satisfactory evidence of an early complaint. It may be that another judge would have taken a different view of the matter and would have refused to let the case go further but we cannot say that the learned Commissioner was wrong in leaving the several issues to be determined by the jury.

7. Finally it was said that the judge gave an insufficient direction as to what constituted aiding and abetting in relation to the part allegedly played by the second appellant in the affair. At two points in the summing-up the learned Commissioner told the jury that before they could convict the second appellant they must be satisfied that he had "intentionally encouraged" the rape. Mr. Sharwood concedes that this direction ought to have been amplified and explained but he does not agree that it was inadequate. We think nevertheless that there was some substance in this complaint since the jury might have been disposed, in view of what has already been related, to view the girl's evidence with considerable caution. In view of the fact that they might have come to the conclusion that there was some reasonable doubt as to whether the second appellant had participated in the affair to the degree described by the complainant it might have been better if the learned Commissioner had stressed the fact that mere presence as friend or spectator unaccompanied by any manifestation of overt approval would not be enough. Having said so much however we do not think that more can be made of the point. It would not be enough upon its own to warrant interference.

8. In the last analysis however this court has come to the conclusion that this case is one of those cases in which, although the point has not been specifically advanced as a ground of appeal, there remains a lurking doubt concerning the guilt of the accused which is not dispelled by the dismissal of the individual points of objection. The facts are exceptional here. The complainant professed to be deeply attached to the charged principal; there was no corroboration of her story of forcible intercourse; her complaint was tardy and reluctant and was not fully specific until her first statement to the police; her second statement was so greatly different and so diluted as virtually to amount to a retraction of the first and the reasons assigned for the alteration of it are neither clear nor compelling. In all the circumstances we are satisfied that it would be unsafe to let the verdict stand. The appeals of both appellants are allowed and their convictions are set aside.

Representation: