The Queen v. Chan Chun-nam

CACC000454/1984

IN THE COURT OF APPEAL

BETWEEN

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Coram: Li, V.-P. Yang & Barker, JJ.A.

Date of hearing: 1st February, 1985

Date of judgment: 1st February, 1985.

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JUDGMENT

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Barker, J.A. :

1. We dismissed the application for leave to appeal against conviction. We now state our reasons for so doing.

2. The applicant CHAN Chun-nam was arraigned on an indictment containing eight counts. The first count was blackmail, the second theft, the third a further count of blackmail, the fourth exercising control over a woman, the fifth attempted procurement of a girl under the age of twenty-one, the sixth rape, the seventh procurement of a girl under the age of twenty-one and the eighth rape.

3. The jury was discharged from giving a verdict on counts five and seven but returned verdicts of guilty on the remaining counts.

4. The evidence was that CHAN Yat-sau aged fourteen was with three other girls in the company of another girl called Kan Kan when the latter accused them of being prostitutes. Not unnaturally, the girls were angry, and they assaulted Kan Kan, though causing her no physical injury. The applicant came to know of this assault, saw CHAN Yat-sau and the other girls and demanded $5,400 for Kan Kan's medical expenses, threatening that if they did not pay they would have to act as prostitutes. This formed the substance of Count 1.

5. The girls managed to raise $4,100, which in fear they handed over to the applicant. This was the subject of Count 2.

6. The applicant demanded payment of the balance within one week, with a threat similar to Count 1. The balance was not paid. This was Count 3.

7. In consequence, the applicant took CHAN Yat-sau to a building in Yaumati where he forced her to serve a 60-year old man, who tried to have intercourse with her but failed to do so. This was Count 4. Thereafter the applicant took her to an apartment in To Kwa Wan, and demanded to have intercourse with her. She refused. Whereupon the applicant burned her arm with a cigarette and thereafter raped her.

8. Shortly afterwards the applicant took the girl to an apartment where she was forced to have intercourse with another elderly man after which the applicant raped her again.

9. The first ground of appeal is that the Judge's direction as to the standard of proof was incorrect. This is a matter which has been dealt with recently in a number of cases, which it is unnecessary to cite. In the present case the judge did say, "The Crown can't prove its case to a hundred per cent certainty" - a direction which has been held to be objectionable standing by itself. But the summing-up must be looked at as a whole, and in that light we have no doubt that the jury was fully aware of the standard of proof required of the Crown.

10. The second ground of appeal was that because of the sexual nature of the -allegations made in respect of Counts 1, 2 and 3, the Judge should have warned the jury of the danger of acting upon the uncorroborated evidence of the victim of any of the witnesses. No authority was cited for this proposition, and we reject it.

11. The third ground of appeal was that, so it was submitted, there was a real possibility of collusion between the victim and the three girls and that thereafter it was the duty of the 'Judge to direct the jury that the evidence of the three girls could not constitute corroboration of the victim's evidence.

12. In D.P.P. v. Kilbourne ⁽¹⁾ , Lord Reid said at page 750:

"We must be astute to see that the apparently corroborative statement is truely independent of the doubted statement. If there is any real chance that there has been collusion between the makers of the two statements we should not accept them as corroborative."

13. In Reg. v. Johannsen⁽²⁾, Lawton, L.J. after considering Kilbourne's case ⁽¹⁾ and Boardman v. D.P.P.⁽³⁾ said:

"There is nothing disclosed on the depositions to establish anything more than a speculative possibility that four of the boys may have put their heads together to give false evidence."

14. In the present case it is to be noted that no question was asked of the victim or of the three girls to suggest that they had colluded together to give false evidence. The Judge, it is true, did remind the jury of Counsel's submission, based on no evidence, of the possibility of a concocted story being put before it. But in our view such a possibility was, in the circumstances of this case, no more than a speculative possibility.

15. The final submission was that the Judge misdirected the jury, in that he said that the evidence of Dr. Mong that he found a scar on the arm of CHAN Yat-sau could amount to corroboration of her evidence in relation to Counts 4, 6 and 8. This undoubtedly was a misdirection. The doctor's evidence was to the effect that the scar could have been caused by a cigarette burn, but that it could have been caused in many other ways. Moreover the doctor could not and did not give evidence to the effect that it was the applicant who had caused the scar.

However the Judge did say:

"Of course you may think that that (that is the doctor's) evidence does not carry very much weight, because other things could have caused the burn apart from a cigarette ........... the scar."

We are satisfied that, even if the jury had been properly directed on this matter, it would inevitably have arrived at the same conclusion. Accordingly we are of the view that this is a proper case to apply the proviso.

(1)    (1973) A.C, 729

(2)    (1977) 65 Cr. App. R. 101

(3)    (1975) A.C. 421

Representation:

D. Keane, Esq., Q.C. & D. Mackenzie-Ross, Esq. assigned by D.L.A. for the applicant.

S. Leung, Esq. for Crown/Respondent.