HKSAR v. Li Kin Ho

CACC409/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.409 OF 1998

(ON APPEAL FROM HCCC 1 OF 1998)

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Coram: Hon. Chan, Chief Judge H.C., Power, V.-P. & Stuart-Moore, JJ.A.

Date of Hearing: 12 February, 25 March, and 3 May 1999

Date of Delivery of Judgment: 3 May 1999

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant faced six counts of incest. In each case the victim was his daughter Li Tung-ying. In the first two counts the place of the offence was Fu Man House, Tai Wo Hau Estate, Kwai Chung, and in the last four counts it was Fu Yat House in the same estate. The offences are alleged to have taken place on dates unknown in about March 1990, in about April 1990, in about 1991, in about 1992, in about 1996 and on 27th September 1997. The applicant was acquitted on the first three counts but convicted on the other counts and sentenced to five years' imprisonment on each. Three years and six months of the sentence on count 5 was ordered to be served concurrently with the sentence on count 4 and three years and six months of the sentence on count 6 was ordered to be served concurrently with the sentence on the other two counts, making a total of eight years. The applicant now seeks leave to appeal against both conviction and sentence.

2. Mr. Ross, who appears for the applicant, has argued four grounds.

3. It was the evidence of the complainant on Count 4 that in about 1992 when she was 16, the applicant, because of, according to him, "fung shui", had her and her younger sister share a bedroom with him. This bedroom contained an upper and a lower bunk. The applicant slept in the upper bunk and the two sisters slept in the lower bunk. She said that normally the applicant came down to the lower bunk and had intercourse with her while her sister slept. Describing the occasions when intercourse took place in the lower bunk she said:

"He lied on top of me while I was lying in the bed which I shared with my younger sister. There were times when - there were times when my younger sister's body moved, and he tried to find out whether my younger sister was awaken. If not she'd -- he'd continued with it, that's to have sex with me."

4. Her evidence as to the upper bunk was as follows:

"Q. Was there ever any occasion when you went up into the top bunk up or he called you up into the top bunk with him when it was on the lower bunk.

A. Yes, he had asked me to go up to the upper bunk.

Q. And what did he do when you were in the upper bunk?

A. Well, I just did what he told me to.

Q. Well, what did he do with you when you were on the upper bunk?

A. You ask me if I went up to the upper bunk. Are you asking me if I went up to the upper bunk?

Q. Yes, you have told us that you did sometimes get called up to the upper bunk. What I am asking you is, what did he do on those occasions when he got you up to the upper bunk with him? Did he have sex with you then or what happened?

A. Again to have sex."

5. Although the victim, in her first answer, appeared to have indicated that this had happened on only one occasion, the cross-examiner seems to have taken the answer to indicate that intercourse in the upper bunk happened more frequently and the complainant, in her last answer, appears to have agreed that this was so.

6. Her evidence as it stood was, therefore, that intercourse took place on the lower bunk and sometimes on the upper bunk. The evidence of the younger sister (PW5) was that one morning at daybreak in 1992 when she was sharing a bedroom with the applicant and the victim, she noticed that her sister was in the upper bunk with the applicant and that she heard the applicant ask her if it was painful. She also said that she saw the shadow of two persons "sticking together" and that the bed shook with continuous shaking motion. She said that on another occasion, at first light in the morning she heard the applicant's voice and vaguely saw him next to her sister on the bunk. She said that she remembered her sister wriggling and that the applicant told her not to move and that he would cut her "hotel tycoon toys", and that she then heard the buckling of a belt and the bed began to shake and make creaking noises and that she could feel her sister wriggling as if she was resisting.

7. There was, therefore, evidence from the younger sister, which the judge rightly told the jury was capable of being corroboration of acts of intercourse in 1992, the year specified in the charge.

8. The evidence on Count 5 came solely from the complainant who said that in around 1996, the applicant arranged for her sister to sleep in another room. She said that, at the beginning of that year, the applicant suffered a stroke and that afterwards he and she switched beds, she going to the upper bunk, and that he started to use contraceptive tablets which were inserted into her vagina. She said that this was done so that the applicant would not have to withdraw prior to ejaculation, a practice which, she said, the applicant blamed for his stroke. She said that she did not want the applicant to ejaculate inside her and that after using contraceptive tablets for three to four months, she persuaded him to revert to his prior method of withdrawal. She indicated on photographs the drawer where the contraceptive tablets were found and it was an agreed fact that on 28th September 1997, ten such tablets were seized from inside of the upper drawer of the wardrobe in the applicant's bedroom.

9. Deputy Judge Jackson gave the following directions to the jury when dealing with Counts 4 and 5:

"Given the way that the prosecution puts its case (in other words, that the counts on the indictment are specimen counts, and that the defendant had sexual intercourse with his daughter several times a week over many years), what you need to be sure about in relation to each count on the indictment, considered separately, before you could convict the defendant on that count, is that during the period set out in the particulars to that count, there was at least one act of sexual intercourse."

10. Ground 1 reads:

"1. In relation to counts 4 and 5, the Learned Trial Judge erred:

(a) in failing to direct the jury that they may only convict if each of them or a proper majority were satisfied beyond reasonable doubt that the same act of sexual intercourse occurred during the period specified in each count; or

(b) in the alternative, in failing to require the Prosecution to elect upon which alleged act of sexual intercourse in the period specified in each count the trial should proceed."

11. The principal argument under this ground is that the prosecution led inadmissible evidence as the law prohibits the leading of evidence of more than one act of sexual intercourse on each count. Reliance is placed upon Chim Hon-man v HKSAR, (1999) 1 H.K.C. 428, and the judgment of Sir Anthony Mason N.P.J., with which the other members of the court agreed. This sets out the facts in that matter as follows:

"The complainant was unable to differentiate in any significant way between any of the particular acts of rape. It seems that in aggregate there were about 10 occasions in that time span (between 14th July 1989 and 15th August 1989) when the appellant sexually molested her and that on the first few occasions rape did not take place because the appellant was unable to effect penetration. According to the complainant's account, sometimes these acts took place on consecutive days and sometimes only on every other day. The complainant's recollection of these events was far from being precise, a matter to which I shall return later.

She made no complaint about these occurrences until she spoke to a school friend in 1994, some 5 years after. She then told her elder sister and a social worker and finally her mother, after being persuaded by the school friend to do so. Even then, it was the mother not the complainant who first raised the question whether the appellant had molested her. The complainant told her mother that she did not want the matter mentioned to the appellant because she was scared and did not want to break up the family. The mother reported the matter to the police.

The complainant's failure to mention the matter to anyone before speaking to her friend in 1994 was said to be due to a combination of ignorance of the significance of the appellant's conduct, her unwillingness to share her problems with other members of her family, her apprehension and her desire not to break up the family. It seems also that she wanted to forget about the events.

The Trial

The complainant's evidence was not corroborated by independent testimony. There was no medical evidence, no evidence of injury, apart from pain sustained by the complainant and no evidence of blood or other stains on the bedclothes or clothing. There was no admission by the appellant who denied the allegations and gave evidence contradicting the complainant's evidence. The appellant's case was that there was a 'frame-up' on the part of the complainant who, influenced by her elder sister, reacted against discipline imposed by the appellant.

Notwithstanding the fact that the indictment contained two counts only of rape, the prosecution presented evidence of the various acts of sexual molestation without consent, including evidence that penetration took place except on the first few occasions when penetration was not effected. The evidence was led on the footing that the jury was asked to find that in each of the two periods one act of rape occurred, without being asked to identify the particular occasion when it occurred."

12. The ground of appeal in Chim's case which is relevant to the matter before us is stated as follows:

"3. (a) Evidence of some ten acts of rape was inadmissible in proof of two counts each alleging one act of rape; and

(b) that the conviction should be quashed because each was based on evidence of multiple offences."

13. When Mason N.P.J. came to deal with that ground, he said:

"As each count in the indictment charged a single act of rape, the indictment was not bad for duplicity, as it would have been had each count charged more than one act of rape: see Archbold's Criminal Pleading Evidence and Practice 1998 edition, page 50. There was accordingly, no basis on which the indictment could be quashed.

On the other hand, the facts alleged or the evidence led may disclose what has been described as a 'latent ambiguity' in the indictment: see Johnson v Miller, (1937) 59 CLR 467 at 486, per Dixon J. Such an instance of latent ambiguity will arise when the prosecution leads evidence of the commission of more than one offence in proof of the one offence charged. In many cases the problem can be avoided by an appropriate amendment or by the giving of particulars which sufficiently identify the particular act charged in a way that will distinguish it from any other acts of which the prosecution intends to lead evidence or by election to proceed on a particular act alone. In the present case, the prosecution took none of these steps because the complainant was largely unable to distinguish any one of the incidents from the others except in terms of the appellant's inability to effect penetration on the first few occasions."

14. We pause here to note that the lack of particularity is considerably more marked in the present case as the complainant's evidence as to Count 4 was that in about 1992 over a long period the applicant had had intercourse with her and she distinguished between the acts in no way other than to say that it was normally on the lower bunk and sometimes on the upper bunk. As to 1996, she distinguished the acts of intercourse in no way other than by saying that, at first, contraceptive pills had been used and that, latterly, the applicant had reverted to withdrawal. There was, of course, evidence capable of being corroboration as regards two of the acts of incest in 1992. Those acts could and, we are satisfied, should have been charged as separate counts. While acknowledging the difficulty which the prosecution faces when dealing with a complainant in a matter such as this, it does seem to us that, as to the acts in 1996, properly cautious questions at an early stage might well have enabled the complainant to identify a particular occasion, for example the first occasion when the applicant was said to have reverted to withdrawal. This would have allowed a count to be laid alleging a specific act of incest. However that may be, the prosecution proceeded, as regards the offences in 1992 and 1996, to lead evidence of multiple acts of intercourse to prove the act of incest charged.

15. We return to the judgment of Mason N.P.J. at p.440 where he dealt with that problem as follows:

"Two important and controversial questions arise. The first is whether it is a principle of the common law that, where a count in an indictment alleges one specific offence, it is not open to the prosecution to lead evidence of a number of acts which amount to the act charged and then to invite the jury to convict on any one of the acts led in evidence. The second question is whether the principle, if it exists, admits of an exception when the prosecution evidence shows that the offence was committed as part of a course of conduct and that the evidence does not enable more particularity to be given than an allegation that the conduct occurred over a specified period of time."

16. He then referred to S. v. The Queen, (1989) 168 C.L.R. 266, in which the High Court of Australia held unanimously that in the absence of any act or acts being identified as the subject of an offence charged in an indictment, the Crown cannot lead evidence that is equally capable of referring to a number of occasions, any one of which might constitute an offence as described in the charge and invite the jury to convict on any one of them. After reviewing New Zealand and Canadian authorities and adverting to the indictment rules, Mason N.P.J. said:

"The rule against duplicity contributes to a fair trial by enabling the accused to know the charge is he called upon to answer and the jury to found its conviction upon the specific offence charged. Once this is recognized, it is but a short step to the companion principle, affirmed in S. v. The Queen following Johnson & Miller, which in turn was based on Parker v Sutherland, (1917) 86 LJKB 1052; (1917) 116 LT 820, that confines the prosecution to the proof of one offence as the basis for a conviction of a single offence charged in a count in an indictment.

This principle serves the same general purposes as the rule against duplicity. Knowledge of the particular act, matter or thing which is the foundation of the charge is important in enabling the accused to ascertain and prove what, if any, defence, for example, an alibi, he may have to the offence charged and to subject a complainant's evidence to searching scrutiny by reference to the surrounding circumstances. An accused person may be subjected to unfairness and embarrassment if he is called upon to meet a charge of one offence based upon evidence of the commission of multiple offences, more particularly if the evidence is such that it does not enable each such offence to be clearly differentiated from the others. The degree of unfairness or embarrassment may vary according to the circumstances. If the prosecution case is based on evidence of many offences in an extended period of time the unfairness may be considerable.

The principle also plays a part in preserving the notion of a separate trial for a separate offence. In so doing, it enables the jury to focus on the single offence proved as the basis for a conviction of the offence charged and it encourages the jury to apply the criminal standard of proof to the evidence of that offence. In the event that the jury is invited, as it was here, to find the commission of at least one offence from evidence of multiple offences, there is either a risk of want of unanimity as to the same offence or a willingness to find guilt from the very frequency of the offences suggested by the evidence. The risk arises because the focus of the jury may be directed from the particularity of a single offence to the generality of the evidence of multiple offences."

17. Mason N.P.J. went on, after dealing with the risk of uncertainty that could arise from such conviction if the defendant sought later to avail himself of a plea of autrefois convict or autrefois acquit, to say:

"Although the purposes served by the principle do not all have equal force, the considerations relating to fairness and proper jury deliberation have very strong force and support the general principle upheld unanimously in S v. The Queen. That decision denies the suggestion that there is an exception or qualification which permits a prosecution for sexual abuse of a child to be presented on the basis of a specimen count when the complainant is unable to be precise as to the date, time and place of the particular offences of which complaint is made, is unable to distinguish between them and the offences extend over a long period of time."

18. He then observed:

"It seems that this practice of using specimen counts has been countenanced by the English courts, so long as the occasions to be proved in evidence are particularised adequately and the prosecution case is not 'overloaded' so as to subject the accused to unfairness."

19. He later added:

"The developing English practice, which amounts to an exception or qualification to the general principle, arises from an acknowledgment that an insistence on the general principle may preclude effective prosecution of those who are guilty of sex offences against children. If there is no relevant exception to the general rule the result may be that a prosecution cannot be conducted successfully when the complainant's evidence falls into the category just described."

20. Having acknowledged the possibility of "an exception or qualification to the general principle", he referred to section 9(3) of the Criminal Procedure Ordinance, Cap.221, which provides that:

"the practice and procedure in all criminal causes and matters ..... shall be, as nearly as possible, the same as the practice and procedure from time to time and for the time being in force for similar cases in England."

21. He was satisfied, however, that this did not bring the English practice into play in Hong Kong as:

"that provision of necessity is subject to the requirements of substantive principles of law. If, as I conclude, there is a general principle which precludes proof of more than one offence as the basis for the conviction of the single offence charge, s.9(3) cannot require the Hong Kong courts to depart from that substantive principle of law.

It is difficult to craft an exception to the general principle which would strike the right balance between ensuring that the principle does not provide a charter of immunity to offenders where a complainant is unable to differentiate between offences and providing adequate safeguards to an accused person."

22. It seems to us that the Court of Final Appeal in Chim's case has held that it is a principle of the common law that where a count in an indictment alleges one specific offence, it is not open to the prosecution to lead evidence of a number of acts of the same kind as the act charged and to invite the jury to convict if they accept any one or more of them to be established. The judgment has, however, acknowledged the possibility that there might be an exception to the general principle. It was argued before us that such an exception might occur in circumstances where it is clear that the jury must have accepted all of the evidence of the victim as to all of the acts of intercourse before returning its verdict on the act charged in the count. This seemed to us to be a persuasive and sensible argument which would avoid the danger to which Mason N.P.J. adverted when he referred to the possibility that the principle might "provide a charter of immunity to offenders where a complainant is unable to differentiate between the offences ..." It appears, however, to be implicit in the judgment in Chim's case that such circumstances do not constitute an exception. It seems to us that, if they had, the court would have said so as the jury clearly must have accepted the complainant's evidence, which was that she could not differentiate in any significant way between the particular acts of rape which took place over the period referred to in the charge. In prosecutions for sexual offences, which, not infrequently, involve children much younger than the complaint in the present case, the evidence of the child is, quite often, that the offender some years before the trial committed indecent acts on a number of unspecified occasions. We are very considerably concerned that, in such cases, the general principle of the common law enunciated in Chim's case will, if we understand it correctly, indeed, provide "a charter of immunity" for such offenders.

23. It was argued before us by Mr. Saw S.C., with him Miss Crebbin and Miss Lily Wong, that as regards Count 4 there was clear corroborative evidence of two acts of incest, and that the jury must have accepted that those acts occurred when convicting and, that being so, that conviction was safe and satisfactory. As we have said, we see the force of this argument, in common sense terms, but it seems to fly in the face of the decision in Chim's case which holds that a single act cannot be proved in that way. Count 4, it seems to us, could have been properly pursued had one of the two acts of incest in relation to each of which there was evidence capable of being corroboration been particularized as the act the subject of the count.

24. For the reasons set out above following the judgment in Chim, as we understand it, the convictions on Counts 4 and 5 must be quashed.

25. Ground 2 was not pursued.

26. In Ground 3 it was argued that the conviction on Count 6 was unsafe and unsatisfactory as the judge erred in directing the jury that the evidence that semen taken from inside the victim's vagina could have been from the applicant was capable of corroborating the complainant's evidence.

27. It was the evidence of the complainant that on 24th September 1997, the applicant had demanded that she have intercourse with him and that she had refused because she wanted to sleep. She said that consequently the applicant kicked the bed, part of which fell apart making a lot of noise, and that she rushed out of the bedroom into the bathroom and blurted out to a sister (PW3 ) that the applicant had tried to rape her. That sister gave evidence that she heard the noise and took part in the conversation that followed.

28. The complainant said that on 26th September at a meeting of the sisters, she told them what the applicant had been doing to her since she was about 14, and that it was decided to report the matter to the police if the applicant tried to have intercourse with her again. Before going to bed on that day, the applicant said that he was going to have intercourse with her on the following morning but she ignored him. At about 6:30 a.m. on 27th September, she said that the applicant told her to come down to his bunk or he would stab her to death. She said that she did so and that the applicant removed her pants and had intercourse with her. She said that she had put a sanitary napkin inside her pants in order to retain her father's sperm, and that she then told PW3 that she had had intercourse with the applicant and that she and PW3 then went to the police station to report the matter.

29. The Government Laboratory analyzed a sanitary pad supplied by her, her underpants, vaginal swabs and a bed sheet from the applicant's bedroom. These articles were found to have seminal stains, the source of which it was an admitted fact "could have been the defendant Li Kin-ho". It is necessary to set out the relevant admitted facts in full:

"3. On 27th September 1997 at about 11:10 a.m. DSPC 1947 Li Siu-on took female Li Tung-ying to Taipo Headquarters where she was examined by the forensic pathologist Dr. Ng Chung-kei. The following exhibits seized from Li Tung-ying were handed to DSPC 1947:-

Exh. 1 Six vaginal swabs

Exh.2 blood sample (in bottle)

Exh.3 blood sample (in bottle)

Exh. 4 saliva sample (in bottle)

Exh.5 hair sample

Exh.6 pubic hair sample

Exh.7 nail samples from Li's right hand

Exh.8 nail samples from Li's left hand

Exh.9 a sanitary pad

Exh.10 a pair of underpants.

All these items were subsequently passed by DSPC 1947 to DPC 47828 Chan Chor-hung at about 1.45 p.m. on 27th September 1997 for custody.

4. All the exhibits referred to in 3) above together with body samples taken from the defendant Li Kin-ho and items of bedlinen, towels, clothing and tissues seized from the defendant's bedroom by DPC 47828 were all sent to the Government Laboratory for analysis. Dr. Lai Kam-ming a forensic scientist carried out this analysis on 30th September 1997. The result was that human seminal stains were found on the vaginal swabs (Exh.1), the sanitary pad (Exh. 9), Li Tung-ying's underpants (Exh.10) and the bedsheet (Exh.16). These stains were then subjected to DNA testing which revealed that the source of all these seminal stains could have been the Defendant Li Kin-ho."

30. Dr. Ng Chung-ki, the forensic pathologist who examined the complainant, gave evidence that he found fluid which appeared to be semen on the vulva and also high up in the vagina of the complainant. He said that this indicated that she had had recent sexual intercourse with ejaculation inside the vagina. He was asked: "Is there any other realistic way that the semen could have got into that position in the vagina if there hadn't been sexual intercourse with the ejaculation inside the body?" To this he replied: "No." When asked what he meant by recent sexual intercourse he said "Probably within the last one or two days." He went to say that 48 hours was the upper limit but that it was "more likely to be within the lower limits. That means several hours ago."

31. Under cross-examination, he said that the semen could have been injected into the vagina but in re-examination he described this as "very uncommon" and said that anyone who did it would, he thought, have had to have "read some journal or medical books".

32. The judge told the jury that "the evidence of the forensic pathologist coupled with the admitted evidence of the results of the DNA testing" was capable of corroborating the evidence of the complaint of the intercourse.

33. The applicant in his cautioned statement had told the police that he had never had intercourse with the complainant. He said that on 27th September at about 6:30 a.m. she had climbed down to the lower bunk while he was asleep, had threatened him, had removed his underpants, had fondled his penis for about 5 minutes and had caused him to ejaculate into her hand. He said that she had threatened him while so doing that if he did not allow her to interfere with his penis she would shout out to her family "to let them know it". He added that she had nursed a ferocious hatred against him for a long time.

34. Mr. Ross submits that the judge's direction as to corroboration was erroneous because evidence capable of being corroboration must tend to identify the applicant as the person who committed incest. He submits that the evidence of DNA testing did not do this as it gives no indication as to the probability that the semen tested belonged to the applicant. He submits that such DNA testing could be used as corroborative evidence only if there was evidence of the "random occurrence ratio", i.e. the estimated frequency in the population of those with matching DNA characteristics. (R. v. Doheny and Adams, (1977) 1 Crim.App.R. 369).

35. He refers us to the classic statement in R. v. Baskerville, (1916) 2 K.B. 658 at 667:

"We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it. The test applicable to determine the nature and extent of the corroboration is thus the same whether the case falls within the rule of practice at common law or within that class of offences for which corroboration is required by statute. The language of the statute, 'implicates the accused,' compendiously incorporates the test applicable at common law in the rule of practice. The nature of the corroboration will necessarily vary according to the particular circumstances of the offence charged. It would be in high degree dangerous to attempt to formulate the kind of evidence which would be regarded as corroboration, except to say that corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused."

36. It is necessary to look with care at the judge's direction to the jury. He said there they could be corroboration in "the evidence of the forensic pathologist coupled with the admitted evidence of the results of the DNA testing ...." The admitted evidence as to the DNA testing was that it "revealed that the source of all the seminal stains could have been the defendant Li Kin-ho". There was no suggestion that that evidence standing alone would have proved anything. Indeed, the terms in which the admitted fact is stated make this plain. When considering this submission it is important not to lose sight of the description of corroborative evidence used in Baskerville which is that it is "evidence which shows or tends to show that the story of the" complainant is true and that the offence "was committed by the accused". Her story was that that her father had had full intercourse with her. The defence, as put, was that this had never taken place, that she had obtained her father's semen by masturbating him under threat and that she had then, in some unexplained way, manoeuvred that semen into her vagina. Was evidence of the finding of semen in her vagina shortly thereafter, which may have come from her father, capable of corroborating her evidence? To put it another way, was it evidence which showed or tended to show that her evidence that her father had had intercourse with her was true? Subject to the further submission with which we deal below we are satisfied that it plainly was. The DNA evidence, as the agreed fact plainly stated, did no more than indicate that it may have come from the applicant. The important evidence with which it was properly coupled was that of the doctor as to finding of the semen in her vagina indicating that intercourse had taken place.

37. There is a further submission which suggests that there was a fatal gap in the prosecution case as there was no evidence to show that within the previous 48 hours she had not had intercourse with someone else.

38. At trial, issue was squarely joined as to what had occurred on the morning of the 27th September. There was no issue as to the donor of the semen. The applicant in a quite elaborate story contended that the complainant had, with the intention of framing him, obtained the semen against his will and had somehow inserted it into her vagina. It was her evidence that it was deposited there during intercourse. Mr. Ross argues that there was no evidence to show that the semen, which was not proved to be the applicant's, had not been introduced into the vagina by intercourse with some person other than her father. He points to the fact that she admitted in evidence that she so resented her father's actions that "whenever I met a guy I would offer myself to him so as to make my father dispossess me so to speak." He submits that although she gave evidence about some of the matters that occurred in the preceding 48 hours, she was never asked whether or not she had had intercourse with anyone else during that time. He contends that, as the DNA evidence does not positively identify the father as the donor of the semen, there is a gap in the evidence which constitutes a fatal flaw in the prosecution case. We do not agree. As we have indicated above, issue was clearly joined on the conflicting versions as to what occurred on the morning of 27th September. It was no part of the defence that the semen had come from someone other than the father. The issue left by the judge for the determination of the jury was whether they accepted the complainant's evidence or, given the allegation of a frame-up, which was particularized in a most specific way, they were left in doubt as to whether or not it was true. The applicant, in what is clearly an afterthought, now seeks to suggest that there was a gap in the prosecution case of which he is entitled to take advantage. We reject that submission. The real issue was properly left by the judge for the jury's determination.

39. Finally under Ground 4 Mr. Ross submits that the judge erred when directing the jury as to the admitted facts. He refers particularly to the following passage in admitted fact (4):

"Dr. Lai Kam-ming, a forensic scientist, carried out this analysis on 30th September 1997. The result was that human seminal stains were found on the vaginal swabs (Exh.1), the sanitary pad (Exh.9), Li Tung-ying's underpants (Exh.10) and the bedsheet (Exh.16). These stains were subjected to DNA testing which revealed that the source of these seminal stains could have been the defendant Li Kin-ho."

40. He submits that the admissions therein are no more than admissions as to opinions and that there was no evidence for the jury to assess whether those opinions were soundly based or otherwise accurate. We found some difficulty understanding this argument. As we apprehend it what is called into question is the statement that Dr. Lai carried out an analysis and found human seminal stains on various articles. The facts admit in terms that Dr. Lai is a forensic scientist and that he carried out an analysis and that the result of the analysis was the finding of human seminal stains. The finding of seminal stains is admitted and the factual basis to support that finding is an admission that there was an analysis by a forensic scientist. The same observations apply insofar as the ground has application to the admitted result of the DNA test.

41. We can see no merit in this ground.

42. The hearing of the application in relation to Counts 4 and 5 will be treated as the hearing of the appeal. The appeal is allowed and the convictions are quashed.

43. The application in relation to Count 6 is dismissed.

44. We have given anxious consideration to the order proper to be made consequential to the quashing of the conviction on count 4. It seems to us that we should hear counsel as to the making of an order, under s.83E of the Criminal Procedure Ordinance, for a new trial of the offence charged in the indictment. At such trial it would, of course, be for the prosecution to particularize the offence as appropriate.

45. We are, further, gravely concerned that we may have misunderstood and misapplied the decision in Chim Hon-man and, therefore, think it also proper to invite counsel for the respondent to ask us to certify under s.32 of the Court of Final Appeal Ordinance that a point of law of great and general importance is involved in our decision. We will hear counsel.

Chan, C.J.H.C.

46. The following are points of law of great and general importance arising out of the judgment of the Court of Appeal allowing the applicant's appeal and quashing his convictions on Counts 4 and 5:

(i) Whether our decision, applying the judgment of the Court of Final Appeal in Chim Hon-man v. HKSAR, to allow the applicant's appeal and quash his convictions was correct in law.

(ii) In proceedings where it is alleged in an indictment that an accused has committed an act of incest within a specified period and there is evidence led of a number of such acts over this period, it is, applying the Chim's case, not open to the jury to convict the accused of the offence in the indictment.

Sentence

Power, V.-P.

47. On Count 6, the applicant was sentenced to imprisonment for five years. The facts surrounding that count are as follows, and I take them from our judgment when dealing with conviction.

48. It was the evidence of the complainant, then aged twenty-one, that on 24th September 1997 the applicant had demanded that she have intercourse with him and that she had refused because she wanted to sleep. She said that consequently the applicant kicked the bed which fell apart making a lot of noise, and that she rushed out of the bedroom into the bathroom and blurted out to a sister (PW3) that the applicant had tried to rape her. That sister gave evidence that she heard the noise and took part in the conversation that followed.

49. The complainant said that on 26th September at a meeting of the sisters, she told them what the applicant had been doing to her since she was about 14, and that it was decided to report the matter to the police if the applicant tried to have intercourse with her again. Before going to bed on that day, the applicant said that he was going to have intercourse with her on the following morning but she ignored him. At about 6:30 a.m. on 27th September, she said that the applicant told her to come down to his bunk or he would stab her to death. She said that she did so and that the applicant removed her pants and had intercourse with her.

50. The judge when sentencing said:

"In my view, the appropriate starting point for sentence in respect of each of the counts of which the jury found the defendant guilty, taking into account his age and his state of health, is one of five years' imprisonment. In considering whether such sentences should be served concurrently or consecutively, I have considered the principle of totality and I have, in addition, borne in mind that, given that the defendant is a former police officer and a sex offender, his time in prison is likely to be harder than might otherwise be the case."

We do not need to read further from the judgment.

51. Mr. Ross has endeavoured to persuade us that we should apply the guidelines enunciated by Lord Lane in The Attorney General's Reference No.1 of 1989. We say without hesitation that we do not consider that these guidelines have any real application to the situation in Hong Kong. It is argued by Mr. Ross that they would throw up a starting point of three years. We are, indeed, not even sure that that is correct because there were here very grave aggravating circumstances which made the offence equivalent to rape. We are satisfied that the statement in the Second Edition of Sentencing in Hong Kong correctly sets out the position when it says:

"Such offences (incest) strike at the very fabric of family life. Sentences are required to both punish and deter. Depending upon the age of the victim, sentence has regularly run from imprisonment of between six and ten years. The offence will be aggravated if the intercourse occurred over a long period, if force is used, if pregnancy results of the victim is very young."

52. This offence was the equivalent of rape as we have already said. The applicant has exhibited not one shred of remorse, the sentence of five years was, in our view, clearly a proper one. The application for leave to appeal against it is refused.

Representation:

Mr. D.G. Saw, S.C. leading Miss D.M. Crebbin, S.G.C. & Miss Lily Wong, G.C. (D.P.P.) for the Respondent

Mr. Phillip Ross assigned by D.L.A. for the Applicant.