HKSAR v. Chan Wing Hung

CACC000430/1996

IN THE COURT OF APPEAL

1996 No.430
(Criminal)

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Coram: Hon. Power, V.-P., Mortimer and Mayo, JJ.A.

Date of hearing: 15 July 1997

Date of judgment: 15 July 1997

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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 three charges of blackmail, 15 charges of procurement by threats, one charge of theft, one charge of attempted theft and one charge of doing an act tending and intended to pervert the course of public justice. All of the charges involved the applicant and his girl friend a Miss Tong Sze-nga. Apart from the last charge they occurred between 26^th January and 4^th February 1996. Each of the 15 procurement charges alleged that the applicant had procured Miss Tong to commit an unlawful sexual act with him, namely sexual intercourse, by threatening her that unless she complied with his demands for intercourse, he would reveal the contents of two video tapes containing scenes of intercourse between him and Miss Tong to her friends and family members. The blackmail charges alleged unwarranted demands for $2,000, $4,000 and $8,000 using the same threats. The theft charge was connected to the second blackmail charge and the attempted theft charge to the third blackmail charge. The act tending and intended to pervert the course of public justice involved threats to Miss Tong's well being if she testified in the proceedings arising out of the other charges.

2. We don't intend to canvass the facts at great length. Put shortly when Miss Tong sought to end an intimate relationship with the applicant, he forced her to have intercourse and to pay money by threatening that he would reveal to her family and friends tapes of the couple having sexual relations.

3. Miss Tong gave evidence of all that she said had occurred. The applicant gave evidence admitting intercourse but saying that it was consensual.

4. The trial judge found as regards Miss Tong's evidence:

"She was the principal witness for the prosecution. It has been urged on me that she was not at all creditworthy. I am bound to say that I found her as impressive as I found the defendant unimpressive. She was, in my view, a most compelling witness. She was in the witness box for 2 1/2 days and I had very good opportunity of examining her at close quarters on the video link. I thought her recall of detail was particularly impressive."

The judge went on later in his judgment to say:

"I was satisfied beyond any shadow of doubt that she was an honest witness and, in fact, I thought that her evidence was a tour de force. I can accept that in order to avoid being shamed, she went along with the demands for sex for a period of nine days - that fear of being shamed, militated against her making a complaint to her mother."

5. After carefully analyzing the evidence of the applicant, the trial judge was satisfied that he was not a credible witness. In the outcome the trial judge made the following specific findings:

(1) that the victim and the defendant had a relationship which, for a variety of reasons, she wished to end;

(2) that the defendant is not prepared to accept this and devised a story to intimidate her into staying with him and granting him both sexual favours and money;

(3) that he initiated this by telephone on 26 January. Out of fear and shame she went along with it unwillingly because she feared him publishing the tapes of them having intercourse;

(4) on that day, he demanded a sum of $2,000;

(5) on the 27^th, he renewed his demands for intercourse and used a knife to threaten her, at his home, to have several acts of intercourse;

(6) that this was repeated on 28 January;

(7) that this was further repeated at the staircase at her home on 30 January;

(8) that he again prevailed on her, on 1^st February, to go to Ngau Tau Kok where he forced her to have intercourse and to write and sign the agreement, P2 and P3, and that he further prevailed on her to withdraw $4,000 from her account;

(9) that he renewed his demands in the light of the previous threats and not lined this by a renewed refusal to hand over the tapes, either on the 2^nd or again on 4 February;

(10) that her period made her unsuitable for his sexual demands, thereafter, but he renewed his demands for money, increasing the demands to $8,000;

(11) that he renewed this on 10 February when, in the presence of her boyfriend and after encouragement from the latter, she broke down and told him the full story, which then led to her informing the police who set out the arrest on the same day;

(12) that the statements that the defendant made to the police were voluntary and, in admitting sexual intercourse, corroborate the various acts of intercourse and indecency which took place between 27 January and 4 February.

(13) I also find and accept that on 19 March the defendant did telephone the victim and prevail on her not to give evidence in this case. That being so, it would be clear that I am satisfied beyond reasonable doubt that the Crown have proved all the elements of all the charges which remain on the indictment."

The applicant now appeals against both conviction and sentence. He is today represented by Mr. Loughran, who has argued three grounds. In the first, it is submitted that the trial judge erred in law and/or fact in convicting the applicant on the procurement charges without the necessary finding that the sexual act was unlawful. The section under which the applicant is charged is s.119 of the Crimes Ordinance which reads as follows:

"A person who procures another person, by threats or intimidation, to do an unlawful sexual act in Hong Kong or elsewhere should be guilty of an offence and should be liable on conviction on indictment to imprisonment for 14 years."

6. We were concerned when this matter first came before the court by the use of the term "unlawful sexual act" in that section and in particular the use of the word "unlawful". We considered that it would be helpful to hear further argument as to the meaning that could properly be given to that word. The word is clearly a survival from earlier times when intercourse outside marriage was illicit and therefore unlawful. We do not think that prolonged discussion of the history of this and similar sections and of the niceties of antique usage will serve any real purpose. We incline to the view that it would be proper to follow the course adopted in Reg. v. R. [1991] 3 W.L.R. 767, in which Lord Keith said that the word should be:

"treated as being mere surplusage in this enactment."

Lord Keith was conscious that it might be suggested that the court was usurping the power of the Legislature when so holding as, indeed, are we. It is not, however, in the present case necessary to go further than to hold following the judgment of Donavan J. (as he then was) in R. v. Chapman [1959] 42 Cr.App.R. 257 that unlawful in the context means illicit, that is outside the bounds of matrimony. It is common ground that the applicant and Miss Tong were not married, and that their intercourse was clearly illicit and was, therefore, for the purpose of the section "unlawful". That disposes of the first ground.

7. The second ground is that the judge erred in concluding in relation to the procurement charges that the applicant's admissions of sexual intercourse were capable of being corroboration.

8. The trial judge in this regard held:

"In this case, the defendant made statements after caution - which I shall deal with shortly - which contained admissions of sexual intercourse on the appropriate occasions with the victim. He also gave oral testimony, under oath, and again admitted that he had had sexual intercourse with Miss Tong. Those admissions, if they were true, in my view amounted to corroboration if it were necessary."

Corroboration is, of course, defined by s.119(2) which states:

"A person shall not be convicted of an offence under this section on the evidence of one witness only, unless the witness is corroborated in some material particular by evidence implicating the accused."

In the present case intercourse without consent was the issue. The admission that intercourse took place could not, we are satisfied, amount corroboration of Miss Tong's evidence that it was without consent. The trial judge, however, went on in his judgment to say:

"There were a number of other pieces of evidence. The 'agreement' which was produced, P2 and P3, the automatic teller slips, P4 and P5, the VHS tape and the video hand-held camera tape which were found in the bag, and the knife which was recovered from the defendant's premises. These, in my view, were pieces of evidence which might, in some shape or form, have supported evidence that was given but did not amount to corroboration."

We find ourselves not able to agree with the view which he took of this evidence.

9. It was Miss Tong's evidence that the applicant had threatened to expose the tapes to her family if she refused to have intercourse with him. He was, at the time of his arrest, found to be carrying tapes, albeit blank. His arrest came after several days of threats.

The applicant, under caution, made the following statements. The first to which we refer was made when he was being cautioned for one of the blackmail offences. He said:

"I like Tong Sze-nga very much. She said she was going to part with me. So, in my so doing this time, I said two tapings had been made (I) lied to her that the tapes were about the sexual intercourse I had with her. I did so in order to make her not to leave me. I asked her for $8,000. I knew she did not have so much money. I did so because, firstly, I could see her while she was being duped and secondly, if she had no money, she would be with me. I know I regretted it very much. I used the wrong method to make her stay with me. But my aim was to be with her like we had been, to be happy like we had been." (Emphasis supplied.)

He went on, in a later statement, to make a further admission in this regard. This came in a statement of 12^th February 1996. The passage reads as follows:

"Question 24:	For meeting Tong Sze-nga on the abovesaid 5 occasions you took the initiative to ask Tong Sze-nga to come out. What did you say to Tong Sze-nga when asking her to come out?
Answer:	I remember that on January 26, this year, on the phone, I mentioned I had two cassettes of tape about the sexual intercourse I had with Tong Sze-nga. I asked Tong Sze-nga to come to see me. I said to Tong Sze-nga if she did not come to see me, I would give the two cassettes of tape to her mother and younger brother. But when we met each time I no longer mentioned the two cassettes. I just wanted to see her." (Emphasis supplied.)

10. Mr. Loughran submits that the admissions, while they might corroborate evidence of threats, do not corroborate evidence of threats to obtain sexual intercourse. We do not agree. The applicant was clearly admitting that he was using threats to get Miss Tong to continue their intimate relationship. We refer in particular to the words "I did so in order to make her not leave me" and to the words "I used the wrong method to make her stay with me". We are satisfied that, when these admissions are put together with the other evidence, and in particular with the fact that tapes were found on him upon his arrest, they provide cogent confirmation of her evidence that threats were being made to her in order to force her into sexual intercourse. We are satisfied, therefore, that there is nothing in this ground.

11. Grounds 3 and 4 fall away given the findings which we have already made. There was, as we have indicated, a misdirection by the trial judge. It was in circumstances, however, where there was in our view clear corroborative evidence, we have no hesitation in applying the proviso.

12. The applicant succeeds insofar as he has established that there was a misdirection but we are satisfied that there was no miscarriage of justice and the appeal therefore stands dismissed.

13. The application for leave to appeal against sentence was not pursued and stands dismissed.

Representation:

Mr. Zervos, S.G.C. (D.P.P.) for the Respondent.

Mr. Paul Loughran assigned by D.L.A. for the Applicant.