HKSAR v. Li Kam Shing

CACC153/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.153 OF 2004

(ON APPEAL FROM HCCC149 OF 2003)

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Coram: Hon Woo VP, Yuen JA and Lunn J in Court

Date of Hearing: 26 August 2004

Date of Judgment: 8 September 2004

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J U D G M E N T

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Woo VP (handing down the judgment of the Court):

Background

1.This is an application for leave to appeal against conviction.

2.The applicant was tried before Nguyen J and a jury in the Court of First Instance on two counts of indecent assault and a count of rape. The 1st count (indecent assault) was alleged to have happened at the home of the victim, a girl aged about 131/2 years, between May and June 2002. The 2nd count was that the applicant indecently assaulted the victim at her home on a day unknown in July 2002. The 3rd count was that the applicant raped her on 24 October 2002, also at her home.

3.The jury found the applicant guilty of the 1st and 2nd counts and not guilty of rape but guilty of indecent assault under the 3rd count. The judge sentenced the applicant to a total of four years' imprisonment.

4.The applicant now seeks leave to appeal against conviction.

The facts

5.The facts, as borne out by the evidence adduced by the prosecution, can be summarised as follows.

6.The victim was born on 26 October 1988. Her parents having had a divorce, she was at the material times living with her mother and younger sister at their home. The applicant was the boyfriend of the mother. Sometimes the applicant stayed overnight at their home. On occasions, the mother went out to play mahjong taking the younger daughter with her, thus leaving the applicant and the victim alone in the flat.

7.In about June 2002, the applicant went to the victim's home for dinner with the family. After dinner, the mother went off to play mahjong taking along with her the younger daughter. The victim and the applicant remained at home. The victim was watching television in the sofa while the applicant sat next to her. The applicant pulled open her pants and underpants and put his hand inside her underpants and touched her private parts. He inserted his fingers into her vagina and touched her for two to three minutes. He told her not to tell her mother. That was the 1st count.

8.The 2nd count happened in about July 2002. The mother and the younger sister were again not at home. The victim was washing dishes in the kitchen when the applicant grabbed her from behind and carried her onto the bed and took off her pants. He took off his trousers and used his penis to rub on her private parts for four to five minutes. He threatened her that if she told anyone about the incident, she would definitely be beaten to death. After stroking her private parts, the applicant kissed her on the mouth for two minutes. That was the 2nd count.

9.The facts of the 3rd count were that again the applicant and the victim were alone in the flat. While she was washing dishes, the applicant reached her from behind and carried her to the bed. He took off her pyjama pants and underpants. He pulled down his own trousers and briefs and used his penis to penetrate her vagina, but apparently the jury was not sure of this because they only found the applicant guilty of indecent assault. According to the victim, she struggled and screamed. The applicant slapped her once on the face. He wiped his private parts and then fondled her breasts. He also licked her nipples and private parts, which lasted altogether for about four to five minutes.

Grounds of appeal

10.Three grounds of appeal are raised, namely:

(1) The judge's directions to the jury on the manner of drawing inferences were such that the applicant was deprived of a fair trial.

(2) The judge's directions on what could amount to and the manner of dealing with the evidence of recent complaint was defective, rendering the trial unfair.

(3) The judge failed to give any warning to the jury of the need to seek supporting evidence of the victim's evidence or the need to take special caution in assessing her evidence.

11.Mr Geoffrey Chang, for the applicant, starts his arguments by referring us to the evidence adduced by the prosecution in some detail.

12.He points out that the only evidence of the three counts came from the victim herself. The rest of the prosecution's evidence, being evidence from two schoolmates of the victim, her school social worker, her teacher, her mother and the forensic pathologist, was not corroboration of her evidence. That is correct. Moreover, Mr Chang directs our attention to the discrepancies in the prosecution's evidence as well as other evidence pointing to the victim's character and her poor relationship with the applicant as the background in support of the grounds of appeal. These pieces of evidence relied on by Mr Chang are as follows:

Poor relationship between the applicant and the victim

(A) The victim admitted that her relationship with the applicant was poor. She did not like seeing the applicant going out with her mother. She considered that the applicant always seemed to cheat her mother of money, such as not paying for the wine her mother had bought for him. When her mother scolded her in the presence of the applicant, the applicant would chip in to scold her as well. The victim had said to the applicant, "You are not my father. Why do you scold me?" On two separate occasions, she had an argument with the applicant over her use of the Internet and over watching television. The Internet was at one stage terminated and she became angry with the applicant. She also had an argument with the applicant when the applicant used her pen on 3 November 2002; the applicant was angry with her and scolded her with foul language.

Victim's character and not a reliable witness

(B) On 24 October 2002, the victim cheated at her Chinese dictation, resulting in a record being kept which a parent had to sign. There was an occasion about a piece of paper in the victim's shoebox with boys' names and telephone numbers. When the mother questioned her, she said that they were her classmates' numbers. On 26 October 2002, although the victim's mother rejected her request for bringing boys to the flat for her birthday party, she still invited two boys to come to her flat. She had gone with two boys to a park, but she told her mother that she had been to the library. When the mother learned of the lie from the younger sister, she slapped the victim. One day after her birthday, the mother again slapped her because she had told the mother a lie about having stayed in school and left late but the mother found out that she had actually left school early.

The victim's incredible or unreliable evidence

(C) The victim told the court that she mentioned about being harassed by Uncle (ie the applicant) when she was with her friends at her birthday party, but Miss Lai (the victim's best friend and classmate) said the victim did not mention anything about Uncle during the party. Miss Lai also said that the victim appeared to enjoy herself at the party (despite her being allegedly raped by the applicant just two days ago). The victim herself arranged the party on 25 October, the day after being allegedly raped. While the victim testified that the applicant had "oral sex" with her in respect of the subject matter of the 2nd count, she described that as being kissed by the applicant in the mouth for two minutes. That had to be looked at in the light of Miss Lai's evidence that the meaning of oral sex was taught in sex education class in school.

(D) According to the forensic pathologist's evidence, the incomplete tear on the victim's hymen could be several years old, and the narrowness of her vagina indicated that full penetration by an erect penis was unlikely.

(E) In cross-examination, the victim always replied "I can't remember" to questions involving details.

Inconsistencies

(F) The victim did not make any complaint to her mother or to any of her friends at school including her best friend Miss Lai in June or July 2002. The earliest possible complaint to Miss Lai was over the phone in August 2002 when the victim complained to Miss Lai of having lost her virginity to Uncle which was not what happened in the subject matter of the 2nd count and was inconsistent with her allegation of rape occurring on 24 October 2002. The victim had also given a different timing for the indecent assaults under the 1st and 2nd counts in her testimony, which timing was just the reverse of the version she gave to a woman police officer during a video-tape interview before the trial. When she described to the woman police officer in the interview about the first alleged indecent assault, she only mentioned the applicant using his fingers. However, in cross-examination, the victim for the first time mentioned that on this occasion, the applicant had used his penis to stroke her private parts.

(G) The victim's complaint about being harassed by Uncle to Miss Mui (another schoolmate) made on 4 November 2002 was that the applicant had "interfered" with her for three years and that she had told Miss Lai all about that in Form 1. This was inconsistent with the victim's own testimony and with Miss Lai's evidence. The victim's evidence of having complained about the subject matter of the 3rd count to Miss Lai and Miss Mui on 25 October or 29 October 2002 was not supported by the evidence of the two girls. The victim's evidence of having told Miss Lai and other girls about all the three incidents was not supported by either Miss Lai or Miss Mui. On 4 November 2002, the victim complained to the school social worker that she had been raped sometime ago, and that was different from what the victim had told Miss Mui that she had been raped the day before, ie 3 November 2002.

Ground (1)

13.Mr Chang submits that the aforesaid primary facts, especially those relating to the victim's animosity towards the applicant, would be capable of supporting a reasonable inference that she had some motive to lie and frame him up. His complaint is that the judge had said to the jury:

"Now asking you not to speculate is not the same as asking you to draw an inference. To speculate is to try and arrive at a conclusion without there being any foundation based on evidence, in other words just do guess work. Drawing an inference is quite different. In law, members of the jury, you are entitled to draw an inference from facts which you find have been proved beyond a reasonable doubt. In other words, if you find that certain facts have been proved on the evidence, you are permitted to say to yourselves, 'On the basis of those facts which I find to be proved, there are other facts about which I can be sure'." (Transcript p 6M-S)

"You may only draw an inference if it is the only reasonable inference that you can draw." (Transcript p 7L)

14.He contends that the above directions of the judge, coupled with his direction to the jury that they must comply with the law as declared by him, without drawing a distinction between the drawing of inferences when the jury were dealing with the prosecution case as opposed to the defence case, had robbed the defence of the opportunity of presenting the applicant's case by way of inference to be drawn from the above-mentioned primary facts in order to create a reasonable doubt. This had deprived the applicant of the opportunity of achieving an acquittal, which had resulted in an unfair trial.

15.Mr Chang argues that since the applicant's defence was that the alleged sexual assaults by the applicant never happened and that the victim's testimony about such assaults was fabricated because she had the motive to do so, namely, her animosity towards him, the judge's directions on inference, ie merely allowing an inference to be drawn from the primary evidence only if it is the only reasonable inference, had deprived the applicant of the opportunity of having such motive established by a reasonable inference (albeit not the only reasonable inference) to assist his defence. Mr Chang contends that the judge should have told the jury that they could draw an inference in favour of the applicant even if it was not the only reasonable inference. In other words, the jury should have been directed that they could make findings of fact when approaching the defence case, even if they were not sure. Not surprisingly, Mr Chang is unable to refer us to any authority in support of his arguments.

16.In our judgment, ground (1) must fail for two reasons. First, the judge's recitation of the standard direction in respect of inferences (one of long standing and approved by the Judicial Studies Board) was correct. Secondly, those directions cannot be said to have deprived the applicant of the opportunity of having his defence accepted by the jury as a reasonable doubt in the prosecution's case.

17.Right at the initial parts of the judge's summing-up to the jury, the judge told the jury "a very fundamental principle of law" that "you must keep to the very forefront of your minds and throughout the time that you are deliberating on your verdict" (Transcript p 3P-T), which was:

"... a defendant in a criminal case is deemed to be innocent unless and until the prosecution proves him to be guilty. It is the prosecution that has brought these charges against this defendant and therefore it is for the prosecution to prove that he is guilty.

There is absolutely no burden whatsoever on the defendant to prove that he is innocent. ...

A defendant, members of the jury, has no obligation to give evidence but if, as happened in this case, he offers a defence to a charge by giving evidence, then you must consider his evidence but it is not for him to prove the defence. It is not the defendant to prove that he is innocent. It is always for the prosecution to prove that he is guilty. The burden on the prosecution does not shift. The burden is on them at the start of the trial and remains with them right until the very end of the trial. At no stage does the burden shift from the prosecution to the defence." (Transcript p 4A-M)

18.In the same way, close to the conclusion of the summing-up, the judge again reminded the jury:

"When you retire, please bear in mind what I have said to you about the burden being on the prosecution to prove the defendant is guilty. Please bear in mind that the defendant has no duty whatsoever to prove that he is innocent. ..." (Transcript p 42M-N)

19.The proper approach is that: if on a consideration of all the evidence the jury were not sure of the applicant's guilt, or there was a reasonable doubt of his guilt, they must acquit the applicant. Applying the proper approach to the evidence of this case, if the jury considered that the victim's animosity towards the applicant was the motive or might have been the motive for her to make up her allegations against the applicant, there would have been a doubt in the prosecution's case or in the applicant's guilt entitling him to an acquittal.

20.Indeed, the direction that the inference to be drawn against the applicant must be the only reasonable inference was given by the judge in the context of the prosecution asking the jury to draw the inference that the victim did not consent to the incidents of indecent assault or sexual intercourse. The judge did not direct the jury in accordance with section 122(2) the Crimes Ordinance, Cap 200 in respect of indecent assault, namely, that in light of her age, ie below 16 years, the complainant could not give any consent which would prevent an act being an assault for the purposes of the section. The judge said:

"... members of the jury, you may only draw an inference if it is the only reasonable inference that you can draw. In other words, if you have a situation where the facts allow you to draw another inference, and if one inference is for the defendant whereas the other inference is against the defendant, then in those circumstances you must not draw the inference which is against the defendant. The inference that you draw against the defendant must be the only reasonable inference that you can draw.

In the present case, members of the jury, the prosecution does ask you to draw an inference. They ask you to accept the evidence of [the victim] that what happened on those three occasions is in accordance with what she told you happened. If you accept her evidence beyond a reasonable doubt and if you are satisfied that what happened on those three occasions was what she said happened, then the prosecution asks you to draw the inference that in those circumstances, she was not consenting to the indecent assault and she was not consenting to sexual intercourse.

And they also ask you to draw the inference that in those circumstances, the defendant must have known that [the victim] was not consenting to the indecent assault and not consenting to the sexual intercourse or he was reckless as to whether or not she was consenting." (Transcript pp 7L-8D)

21.The judge also dealt with the evidence given by the applicant very fairly. He said:

"Concentrate on the evidence that you find to be true and see where that leads you. Concentrate on the evidence which the prosecution has satisfied you is true and on that part of the defence evidence which you find to be true or which you find may be true. ...

...

If he chooses to give evidence before you, which the defendant in this case did, then of course you have to consider his evidence. If after you have considered his evidence you find that there is a reasonable doubt whether he is guilty or not, then of course you must acquit him. ..." (Transcript 10B-M)

22.Ground (1) fails.

Ground (2)

23.Ground (2) alleges that the judge had wrongly admitted the evidence of "recent complaint". Further, the judge was wrong in his directions as to recent complaint.

24.Mr Chang's submissions run as follows. There was no evidence that the victim was too upset after the alleged rape incident on 24 October 2002 to talk about it for some time. On the contrary, there was evidence that she arranged her birthday party on 25 October, the day following the alleged rape, so that her best friend Miss Lai attended the party according to the arrangement. The arrangement shows that there was ample opportunity for the victim to make a complaint to her best friend Miss Lai before 4 November 2002. But according to Miss Lai, the victim did not do so. She did not even mention anything about Uncle during the party on 26 October. In the premises, the judge was wrong in admitting the evidence of the complaint on 4 November 2002, because the prosecution had not established its contemporaneity. Even assuming that the 4 November complaint was capable of amounting to a recent complaint and admissible, Mr Chang argues that the judge failed to give any directions to the jury that the purpose of its admissibility could only go to consistency of the victim's account of the alleged rape on 24 October, and not of her account of the two alleged indecent assaults that had taken place in June and July 2002.

25.Mr Chang refers us to Cross and Tapper on Evidence, 9th Ed, at p 276 where it is stated:

"The general principle underlying this exception is that the nature of the offence is such that some complaint might be expected. It might well be expected to be made soon after the event, but not necessarily to the first person to be encountered. It seems quite reasonable for the victim to choose to wait until she can complain to a congenial person. On the other hand if a person is obviously appropriate, and a complaint is eventually made to her, a court will be less prepared to excuse the spurning of an earlier opportunity. In general the condition will be interpreted generously in view of the subjective condition of the victim who might easily be too upset to talk about the offence at all for some time."

26.This statement of the law is consistent with that as applied by this Court in HKSAR v Hung Wai Tak [2000] 4 HKC 641, where it was held that the mere fact that there were earlier opportunities for the victim to have complained could not amount to sufficient reason in itself to render the evidence inadmissible, and that in deciding whether to admit the evidence, the judge was bound to look at all the circumstances of the case, including the complainant's background and her relationship with the applicant before deciding whether the complaint was made on the first opportunity which reasonably presented itself after the alleged rape. The Court agreed with the judgment of Roch LJ in R v Valentine [1996] 2 Cr App R 213 (cited at 651C-D) as follows:

"We now have greater understanding that those who are the victims of sexual offences, be they male or female, often need time before they can bring themselves to tell what has been done to them; that some victims will find it impossible to complain to anyone other than a parent or member of their family whereas others may feel it quite impossible to tell their parents or members of their family."

27.In R v Birks [2003] 2 Cr App R 122, the Court of Appeal in England refused to extend the recent complaint rule to admit evidence of complaints made two months, or possibly six or 12 months after the conduct complained of. Rix LJ, delivering the judgment of the Court, said at p 131:

"23 ... we feel that in the current state of the law we are unable to extend the test of a complaint being made in a reasonable time as far as Mr Quirke [counsel for the prosecution] urges us to do. The fact remains that the language that has been used (and which to some extent goes back to that citation from Hawkins' Pleas of the Crown to be found in Lillyman) regarding whether a complaint has been made in a reasonable time, have all been made against the background of times of delay which have been very short indeed, measuring only a matter of days and extending, so far as research goes, only to a week at the outside. Moreover, it is well known that the doctrine with which we are concerned is referred to as the doctrine of recent complaint. It is itself an exception to what might be called the even more significant doctrine that evidence of previous consistent statements, whether of witnesses for the prosecution or, importantly, of witnesses for the defence and the defendant himself, are not permitted. As Archbold remarks at 8-102:

'The law on the matter is well settled. The rule is sometimes expressed as being that a party is not permitted to make evidence for himself.'

24 So the doctrine of recent complaint is not only referred to in those terms but is itself an exception to a broader and important and general principle. In these circumstances, we do not think that we are permitted, as a matter of authority, to understand that the test that the complaint has to be made 'within a reasonable time of the alleged offence' (see Valentine at 224B) can be understood to mean 'has to be made within a reasonable time of the alleged offence whether the complaint is recent or not.'"

28.It is to be noted that in R v Z.A. [1999] EWCA Crim 636, a case of attempted rape and indecent assaults of a 12 year old daughter of the appellant's partner, Judge LJ delivering the judgment of the Court of Appeal said:

"As to the first complaint, it is true that the complaint was not made until nine or ten days after the appellant had left the home, but there was evidence that he had threatened the complainant if she complained - at any rate in the sense that she would bring harm to the family. The judge was entitled to take the view that, as a matter of degree, in the circumstances this complaint should be admitted. There is therefore nothing in that ground."

29.In the present case, even according to Mr Chang, there was clear evidence that the latest when the complaint relating to the incident on 24 October 2002 under the 3rd count was made was on 4 November 2002. The 11-day interval did not and should not by itself have rendered the complaint inadmissible. All the surrounding circumstances would have to be considered.

30.There is nothing in the record that shows that any objection had been made by the defence to the admission of the complaint evidence. On the contrary, the defence not raising any objection to the school social worker giving evidence (which was only on the complaint she received from the victim) demonstrates that the defence did not raise any objection to evidence relating to complaint. Indeed, Mr Chang now relies heavily on the inconsistencies in the victim's evidence on the dates of her complaints and the contents of her complaints to build up a case of her evidence being unreliable. Defence counsel at the trial had placed similar reliance. The defence seems to blow hot and cold at different stages of the criminal proceedings: relying on the inconsistencies in attacking the prosecution's case at the trial and now arguing that the evidence of complaints (without which the inconsistencies would not have been available) should not have been admitted.

31.Regarding the relevant circumstances in which the admission of the complaint evidence should be viewed, there was evidence of the victim's age and her relationship with her mother and with the applicant as her mother's boyfriend, the attitude of her mother and the applicant towards her, the relationship between her and her schoolmates and the circumstances under which she made the complaints. There was also evidence that the applicant had threatened and slapped her during or after the sexual assault under the 2nd count and that under the 3rd count. Her character should also be a very material consideration. The judge told the jury the following:

"Members of the jury, you will have to decide what you think of [the victim] as a person and as a witness. Was she a witness who was telling you the truth? As a person, do you think that she is very smart, very clever, or do you think that she is a rather - I will not say stupid - but a rather dull girl, not very bright, not very intelligent, who gets confused easily and who does not have a very good memory of a lot of things? So when she referred to the kissing as oral sex, you have to decide whether this is because she was making up the incident or whether she was truly confused what oral sex means." (Transcript pp 22T-23E)

"She was cross-examined, and you will remember that there were a lot of things which were put to her or asked of her and her reply was always, 'I can't remember'. So, that is a feature of her evidence and you will have to decide, members of the jury, whether she is really a girl who is not very bright and does not have good memory, or whether she was just pretending that she can't remember all these things to avoid answering the questions. So, again, this is a matter that you will have to decide, members of the jury." (Transcript p 28B-G)

"Then the teacher, Mr Lee ... was called and he said he was the Chinese language teacher of [the victim] who was a student in Form 3, and she was in the counselling class which was for students whose performance was below average. He confirmed that on 24 October 2002, there was Chinese dictation and [the victim] was one of the students who had to attend. During the dictation, Mr Lee found there was something unusual on the part of [the victim] because she took out some note or paper from the drawer and read the note or paper. Mr Lee then announced to the class that during dictation, they could not cheat and had to be fair and he was walking to and fro in the aisles and he found [the victim] was still cheating, namely, looking at that piece of paper. So he approached her and took out the paper from her drawer. He told her to see him at his desk during recess. [The victim] did see him. A record was kept which a parent had to sign. Mr Lee said he found [the victim's] behaviour at school was somewhat introverted. She had committed some minor contraventions, for example, being late in submitting her assignment and not being attentive during class, and he saw that she did not have many good friends." (Transcript pp 34Q-35G)

32.Save as to timing of the complaints, Mr Chang is unable to tell us on what basis that the judge is alleged to have erred in this regard. In our view, there was ample ground for the judge to admit the evidence of the complaints as recent complaints.

33.The judge described to the jury in detail, covering nearly four full pages of the transcript, about the discrepancies in the victim's own evidence, and those between her evidence and that of other prosecution witnesses about the dates of her complaints to them. He had also taken great care in directing the jury that the contents of the complaints made by the victim to the other witnesses were not evidence of what actually happened. He stated:

"... It is not evidence which supports [the victim], because it is also coming from her herself, and it is not evidence which would make [the victim's] evidence any stronger." (Transcript p 15O-P)

34.The judge also said:

"... you may well ask yourselves the question, if she was indecently assaulted by the defendant and if she was raped by the defendant, why did she not tell anyone until she told the police officer, because she could have told her mother, she could have told her classmates.

But that is not the case here. She did tell somebody before she told the police officer. So that evidence was allowed to be led just to show that she has been consistent and it is evidence which may help you to decide whether or not [the victim] told you the truth when she said these three incidents happened. So about the recent complaint evidence, members of the jury, it is very important that you should remember that it is not evidence of what actually happened and it is not evidence which supports [the victim's] evidence." (Transcript p 17B-I)

35.The judge was also very fair to point out to the jury how the defence viewed the evidence of the complaints. He said:

"The prosecution say that her complaint is consistent with her account and therefore she is more likely to be truthful. On the other hand, the defence say that if these incidents happened, you would have expected [the victim] either to tell her mother on the said night of the incident or to have told her classmates the following day or very soon after the incidents happened and, because nothing was mentioned until 4 November, if you find that what she said to Lai ... was also about that time, then you may think there is a lapse of some days between the incidents.

...

... if in fact the first time she told anyone was 4 November, then that is a matter of quite a few days. So the defence say because of this gap it shows that [the victim] is not very reliable and therefore you should not accept her evidence that these three incidents happened." (Transcript p 16C-N)

36.It is true that the judge did not mention specifically to the jury as to which complaint related to which count of offence. However, it is obvious that the judge was focussing on the 3rd count of rape in regard to the complaints, and it is apparent from the date of each of the complaints that it must have been related to an incident that had taken place before it. We do not agree with Mr Chang that the judge had erred in this regard. Moreover, the judge had directed the jury to deliberate upon each of the counts separately. He said:

"Members of the jury, there are of course three charges in this case. What you have to do when you deliberate is to consider the evidence as it relates to each charge and consider on that particular charge what your verdict is. So you should consider all the evidence as it relates to a particular charge, the prosecution's evidence and the defendant's evidence, and decide what your verdict should be on the 1st count before moving on to the 2nd count, arriving at a verdict on the 2nd count and then moving on to the last count.

... The evidence on each count has to be considered separately and a verdict has to be arrived at separately." (Transcript pp 17U-18I)

37.The judge had given all the details of the discrepancies in connection with the complaints made by the victim to her schoolmates and school social worker. His fairness to the applicant in pointing out all these discrepancies attracts no criticism from Mr Chang. Indeed, what is mentioned in paragraph 12 (F) and (G) above is a summary of the discrepancies derived from various passages in the summing-up itself.

38.Ground (2) fails.

Ground (3)

39.This ground generally complains about the judge's failure to giving a warning of special caution in assessing the victim's evidence.

40.The requirement for a judge to give a warning to a jury about convicting the accused on the uncorroborated evidence of a complainant in sexual case was abrogated by section 4B of the Evidence Ordinance, Cap 8. Thus, whether a trial judge gives a direction on corroboration or special caution is entirely a matter of discretion for him.

41.Mr Chang refers us to The Queen v. Chu Ip Pui [1997] HKLRD 549, at 552C, per Mortimer JA and R. v. Makanjuola [1995] 3 All ER 730, per Lord Taylor CJ, on the effect of the abrogation of the common law rules of the obligatory requirement on a judge to direct the jury that it is dangerous to convict on the uncorroborated evidence of a complainant in a sexual case or of an accomplice. The effect of the two authorities is that after the abrogation, the matter is entirely left to the discretion of the judge. Where a witness is shown to be unreliable, in exercising his discretion the judge may consider it necessary to urge caution. In the more extreme case, if the witness is shown to have lied, to have made previous false complaints, or to bear the defendant some grudge, a stronger warning may be thought appropriate and the judge may suggest it would be wise to look for some supporting material before acting on the impugned witness's evidence. However, the courts were only making suggestions because the circumstances and evidence in criminal cases are infinitely variable and it is impossible to categorise how a judge should deal with them.

42.Mr Chang urges us to hold that since the judge has not warned the jury to take special caution in assessing the victim's evidence, the summing-up, without such warning to take special caution, has rendered the conviction unsafe and unsatisfactory.

43.It is important to note the following passages in Lord Taylor's judgment in Makanjuola at pp 732j-733g:

"We also stress that judges are not required to conform to any formula and this court would be slow to interfere with the exercise of discretion by a trial judge who has the advantage of assessing the manner of a witness's evidence as well as its content.

To summarise:

(1) Section 32(1) abrogates the requirement to give a corroboration direction in respect of an alleged accomplice or a complainant of a sexual offence simply because a witness falls into one of those categories.

(2) It is a matter for the judge's discretion what, if any, warning he considers appropriate in respect of such a witness, as indeed in respect of any other witness in whatever type of case. Whether he chooses to give a warning and in what terms will depend on the circumstances of the case, the issues raised, the content and quality of the witness's evidence.

(3) In some cases, it may be appropriate for the judge to warn the jury to exercise caution before acting upon the unsupported evidence of a witness. This will not be so simply because the witness is a complainant of a sexual offence nor will it necessarily be so because a witness is alleged to be an accomplice. There will need to be an evidential basis for suggesting that the evidence of the witness may be unreliable. An evidential basis does not include mere suggestions by cross-examining counsel.

(4) If any question arises as to whether the judge should give a special warning in respect of a witness, it is desirable that the question be resolved by discussion with counsel in the absence of the jury before final speeches.

(5) ...

(6) ...

(7) ...

(8) Finally, this court will be disinclined to interfere with a trial judge's exercises of his discretion save in a case where that exercise is unreasonable in the Wednesbury sense (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223)."

44.Briefly, unreasonableness in the Wednesbury sense means that the judge's decision is one such that no judge properly directing himself on the relevant law and acting reasonably could have reached.

45.Mr Chang submits that with the objective evidence of the inconsistencies in the victim's evidence, the discrepancies between her evidence and that of her schoolmates over the dates and contents of her complaints, her young age, and her admitted dislike of the applicant, it was incumbent on the judge to give a warning of special caution to the jury in their assessment of her evidence.

46.Mr Leung, for the respondent, has drawn our attention to nine parts of the summing-up that the judge had fairly left the evaluation of the victim's evidence to the jury. Despite all those references, Mr Leung accepts that the judge did not specifically tell the jury to exercise caution or special caution in assessing the evidence of the victim.

47.There is no material before us that shows that the judge had failed to consider the well-known principles enunciated in Makanjuola. Obviously, the matter was not raised by counsel since we do not see any reference to it by counsel at the close of the summing-up while a factual mistake was drawn to the attention of the judge. Nor was it raised earlier in the middle of the summing-up, when counsel for the applicant had asked for and the judge had given two directions in law, one in respect of the transcript of the video tape of the complainant's evidence in chief and the other in respect of separate consideration of separate counts. We consider, however, it would have been a much better practice, at least for the benefit of this court if the matter does come here, for trial judges to discuss the necessity or otherwise of such a warning of caution with counsel so that the transcript of the proceedings will bear out how the discretion was exercised. See point (4) in the summary of Lord Taylor in Makanjuola, cited above.

48.In the present case, the judge clearly told the jury that the prosecution's case rested mainly on the evidence of the victim and she is the one and only witness (transcript p 18I-K). While the defence submitted that the victim's evidence was unreliable, the judge did not express a view, but simply left the matter to be decided by the jury.

49.The judge described to the jury all the discrepancies mentioned above and all the relevant instances of the victim's behaviour in school and at home and her relationship with her mother and the applicant. He had also asked the jury to look at their evidence dispassionately and rationally (transcript p 8E) and not to allow their views about men taking advantage of young girls to influence their view on the evidence or against the applicant, nor should they allow any sympathy that they might have for a young girl like the victim to influence them in their verdict.

50.While Mr Chang's submission referred to in para 45 above is a forceful one, and we agree that most judges would have in the circumstances considered it proper to give such a warning, we consider that the summing-up as a whole was a fair and balanced one.

51.Moreover, we are impressed with the fact that, despite the absence of a direction in the summing-up that an alternative verdict of indecent assault was open to the jury on the 3rd count, the jury did subsequently raise a question with the judge, namely, if they were not satisfied that there was rape as charged in the 3rd count whether they could convict the applicant of indecent assault. The victim had testified in detail how the penetration of her vagina by the applicant's penis took place and what happened after the penetration, which vividly supported the alleged penetration. The pathologist's evidence from a medical examination of her was neutral as to whether there was partial penetration whereas full penetration was unlikely. In view of this state of the evidence, the jury's question of the judge and their verdict of not guilty of rape but guilty of indecent assault demonstrates that, even without the warning of special caution from the judge, they did examine the evidence of the victim with great caution.

52.In all the circumstances, we consider that this is not a proper case for us to interfere, for the absence of the suggested warning of special caution, in our judgment, does not amount to being Wednesbury unreasonable. We do not feel that there was anything that made the trial unfair or unjust to the applicant.

Conclusion

53.For the reasons given above, none of the grounds of appeal has shown that the conviction is either unsafe or unsatisfactory. However, as there is basis, on the strength of ground (3), for the application to be made, we grant leave to appeal, but we dismiss the appeal.

Representation:

Mr David Leung, SGC of Department of Justice, for the Respondent

Mr Geoffrey P Chang, instructed by Messrs Christopher Li & Co, for the Applicant