HKSAR v. Chan Kai Lam

CACC 311/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 311 OF 2003

(ON APPEAL FROM HCCC 13/2003)

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BETWEEN

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Coram:  Hon Stuart-Moore VP, Lugar-Mawson J and Lunn JJ in Court

Date of hearing: 22 September 2004

Date of judgment: 22 September 2004

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J U D G M E N T

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Hon Lugar-Mawson J (giving the judgment of the Court)

Background

1.In June 2003, the Applicant, Chan Kai Lam, was tried in the Court of First Instance before Deputy High Court Judge McMahon (as he then was) and a jury, on one count of rape, contrary to section 118(1) of the Crimes Ordinance, Cap. 200 (the first count) and one count of non-consensual buggery, contrary to section 118A of the same Ordinance (the second count).  On 23 June 2003 the jury failed to reach a verdict on the first count, but by unanimous verdict found the Applicant guilty on the second count.  On 16 July 2003 he was sentenced to serve 4 years and 9 months imprisonment in respect of it.  On the Applicant’s appearance for retrial on the first count, the prosecution offered no evidence against him and the Judge formally entered a verdict of not guilty against him.

2.The Applicant now applies for leave to appeal against his conviction only, having earlier abandoned his application for leave to appeal against his sentence.

Prosecution’s case

3.The female victim (PW 1) was a 16-year-old girl at the time of the offence.  She said that after work on the evening of 21 September 2002, she went out with a workmate, a Miss Ho (PW3).  PW3 had arranged to meet up with a friend called ‘Ah Pit’.  They met Ah Pit who was with the Applicant.  He was 22-years old.  The four of them went to Cafeteria Beach in Tuen Mun where they met a Miss Luk (PW2) and other friends of PW1.  At about 2 a.m. on 22 September 2002, they left Cafeteria Beach and went to the Gold Coast Resort in Castle Peak Bay, Tuen Mun. There they purchased several cans of beer and went to the first floor podium where they chatted, sang and drank.  The atmosphere amongst the party was friendly.  By about 3 a.m. they had all drunk heavily.  As a result, PW3 vomited.  Ah Pit helped her and they all moved to a different and quieter location.  By about 4 a.m. PW1 felt dizzy and she too vomited.  She said she was drunk.

4.At some stage, PW3 and Ah Pit walked off and the Applicant and PW1 were left alone.  The Applicant offered her another drink, which she declined.  They chatted for a while and then she fell asleep.  She said that up to that point the Applicant had made no sexual approaches to her.  At this point, the Judge summarised her evidence as follows:

“She said she went to sleep and when she woke up or regained consciousness she felt somebody molesting her.  She noticed that the defendant was on top of her.  At that stage she was lying on the ground face up and the defendant was having sexual intercourse with her.  She said it felt a bit painful.  She said she was weak and tired at that stage so she told the defendant to go away.  She does not remember exactly what words she used, but that was the effect of what she said. 

She pushed his shoulder and she said the defendant ignored her at first, so she repeated the push and continued to tell him to go away.  She said the defendant then withdrew his penis from her vagina, but then he put it in her anus. She said that was very painful, or words to that effect, and then she managed to push the defendant off.

In respect of the defendant putting his penis in her anus, she said this in her evidence,’ “I don’t know if he was careless or what.” She also said she was not sure how it had been done…

...

She said when the defendant was getting dressed after this, he had said “I’m sorry, I did not mean it.” ...”

5.After that PW1 walked away and telephoned PW2.  She told her “I was drunk and was raped by a boy.”  PW2 and a group of her friends went to see PW1.  PW1 told them what had happened and pointed out the Applicant.  She said she had been raped.  The police were called and they attended the scene.  She told a woman police officer that the Applicant had raped her, alleging that she had neither consented to sex, nor anal intercourse and that, so far as she was aware, she had no previous injuries to her anus.

6.PW2 and PW3 gave evidence that was generally consistent with PW1’s account of the events leading up to and after the incident.  PW2 said that she received a phone call from PW1 who was crying and who complained to her that she had been ‘molested’.  When PW2 saw PW1, she was still crying and she repeated her complaint against the Applicant.  PW2 said that after PW1 had pointed the Applicant out, he denied having raped PW1 and said that she had consented. 

7.PW1 also made a complaint to PW3 when she saw her.  She told PW3 that the Applicant had molested her and that she had been drunk at the time.

8.A police officer (PW4) gave evidence that when he attended the scene, the Applicant on his own initiative told him that he had molested PW1.  Upon caution, the Applicant told the officer “I did it, I had drunk.”

9.A woman police officer (PW6) also attended the scene and spoke to PW1.  PW1 said to her that she had become drunk, fallen asleep, and had woken up to find the Applicant on top of her having sexual intercourse, and that she pushed him away.  PW1 made no mention to PW2 or to PW3, PW4 and PW6 that the Applicant had sodomised her.

10.A forensic pathologist (PW5) examined PW1 at 12:20 p.m. on 22 September 2002.  Because of the lapse of time, there was no trace of alcohol in her blood sample.  The only physical injury he found on her body was a linear tear on the anal verge, measuring about 1 centimetre in length.  He told the jury that this was consistent with a blunt object, such as a penis, recently penetrating her anal canal.

Defence case

11.The Applicant gave evidence.  He said that while PW1 and he were chatting, he fell asleep.  The Judge described his evidence at this point as follows:

“Eventually, he woke up and found that PW1 had her head on his thigh.  PW3 and Ah Pit had gone and PW1 said that they had walked off.  Then PW1 sat on his lap, they started kissing and fondling.  He said at that stage he touched her private parts and eventually she leaned back against a wall and sat on a scarf and appeared to open up her legs.  He said he then unzipped his jeans, pushed his own underpants and PW1’s underpants aside and then had sexual intercourse with her.

He said PW1 at that stage was conscious and looking at him and that in fact she had started their sexual relations.  He said he had made about 10 or so thrusts with his penis into her vagina when PW1 said it was painful.  So, after another thrust or so, he pulled out.  They then cleaned themselves up ....”

12.The Applicant then said that he felt unwell and vomited.  PW1 got water for him and then he fell asleep.  He said that after the sexual intercourse, PW1 was still friendly and helpful towards him before he went to sleep.  It was only after he had woken up that he found she was making allegations that he had raped her.

13.He said that he believed PW1 had consented to having sexual intercourse with him, because she started kissing him and it was she who had initiated the sexual contact between the two of them.  He agreed that PW1 had not expressly said that she consented to having sexual intercourse with him, but by her conduct he believed that she was consenting. 

14.The Applicant denied sodomising PW1.

The grounds of appeal

15.Mr. Wong Po Wing for the Applicant advances five grounds of appeal.  Mr. Wong was not the Applicant’s counsel at trial.  First, it is said that the jury’s guilty verdict on the second count is inconsistent with their failure to reach a verdict on the first count.  Alternatively, it is said that no reasonable jury could have returned the verdict that they did.  Secondly, it is said that the Judge erred in failing to direct the jury sufficiently on the issue of consent on the second count, in that the Applicant was entitled to an acquittal if PW1 consented to an act of anal intercourse or if he was honestly mistaken that she had consented.  Thirdly, it is said that the Judge erred in finding there was a case to answer on the second count and in leaving that count to the jury for their consideration.  Fourthly, it is said that the Judge failed specifically and/or sufficiently to direct the jury on the issue of lack of recent complaint in relation to the second count.  And, fifthly, it is said that there is a ‘lurking doubt’ about the correctness of the conviction on the second count and that it is unsafe and unsatisfactory.

First ground of appeal

16.The Judge gave the jury a correct direction on the need to consider the two counts separately.  He again reminded the jury of that need at the end of his summing up.  He also gave the jury the standard direction on the prosecution’s burden of proof.  The jury therefore could have been in no doubt of the need to consider the two counts separately and the requirement in respect of each charge that the prosecution had to prove the Applicant’s guilt beyond reasonable doubt before they could convict him on that charge.  The Judge also left them in no doubt that the Applicant had to prove nothing and certainly did not have proven his innocence.

17.It is well established that an applicant who seeks to have his conviction quashed on the ground that the verdict against him was inconsistent with his acquittal on another count bears the burden of showing not merely that the verdicts on the two counts were inconsistent, but that they were so inconsistent as to call for interference by an appellate court.  The appellate court will interfere only if it is satisfied that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion they did.

18.This Court in HKSAR v Li King Sing, Ivan [2001] 2 HKC 539 at p.546F-H, in dismissing an appeal based on alleged inconsistency in verdicts, after reviewing the authorities, adopted the two-stage test, taken from R v. Durante, 56 Cr.App.R. 708, propounded by Hutchison L J in R v. Clarke & Fletcher (CA, Cases 96/5638/X2 & 96/5797/X2 July 30, 1996) where he said:

“To succeed the appellant must show, firstly, that the verdicts are logically inconsistent, secondly, that they are so inconsistent as to demand interference by an appellate court - i.e. that there is no way in which the logically inconsistent verdicts can be sensibly explained.”

19.The position was summed-up concisely by Stuart-Moore VP, where he said at page 547 B-C of Li King Sing:

“All of these directions and those to which we have earlier referred, serve to illustrate yet again the importance of according respect to the verdict given by a jury.  Having said that, obviously if the verdict amounts to what can effectively be described as nonsense, then it cannot be allowed to stand.”     

20.In this case, as the jury failed to return any verdict on the first count, we are not dealing with a situation of two inconsistent verdicts as such.  We are told that the division was 4 to 3, with three of the jurors being unsure of the Applicant’s guilt on that count.  All seven jurors were satisfied of his guilt on the second count.  What we can ascertain from that is that an insufficient majority of the jurors were sure that PW1 had not consented to engaging in sexual intercourse with the Applicant, but all seven of the jurors were sure that she had not consented to him sodomising her.  There is nothing inconsistent with these two decisions.  Taking the facts at their highest and from the Applicant’s point of view, the facts of woman had consented to engaging in sexual intercourse with the Applicant would not by any means imply that she had consented to him sodomising her as an ancillary part of that act.  The jury’s verdict on the second count was not in our view inconsistent with their failure to reach a verdict on the first count.

Second ground of appeal

21.At trial, the Applicant’s defence to the second count was that he did not sodomise PW1 and the Judge was at pains to make it clear to the jury that they should acquit the Applicant of the second count if they were unsure that the act of sodomy had taken place, or, if it had taken place, it was as a result of the Applicant accidentally penetrating PW1’s anus in the course of attempting vaginal penetration. 

22.The Applicant’s defence to the second count was not the same as his defence to the first count, where he did not dispute that he had sexual intercourse with PW1and claimed that either she had consented to it, or that he honestly believed she had.  The Judge directed the jury on the second count in these terms:

“Let us now go to the 2nd count, the count of non-consensual buggery.  I will now tell you what the prosecution have to prove to establish the defendant's guilt in respect of that count.  The prosecution must prove the following things:

Firstly, that anal intercourse took place between the defendant and PW1 and that the defendant intended there to be anal intercourse.  Anal intercourse means penetration into the woman's anus by the man's penis.  Once again, it is not necessary for there to be ejaculation by the man and again, the penetration need only be for a slight distance, but there must be some degree of penetration.

It is in issue in this trial whether there was anal intercourse.  You will remember that the defendant says there was not and (PW1) says there was.  Bear in mind even at this early stage that even if you find that there was anal intercourse, it is in issue whether the defendant intended to have anal intercourse.  If you find that there might not have been anal intercourse, then you simply acquit the defendant of the 2nd count.  Even if you are sure that there was anal intercourse but you are not sure whether the defendant intended to have anal intercourse with PW1, that perhaps he penetrated her anus inadvertently or accidentally, then you acquit him of this 2nd count.

The second thing that the prosecution must prove is that the anal intercourse took place without PW1's consent.  Now, it has never been suggested in this case that PW1 consented to anal intercourse, so you may not have much difficulty with this, but it is still a matter for you.  Please note again, that it is simply the absence of consent that the prosecution have to prove.  The prosecution do not have to prove that PW1 refused to have anal intercourse with the defendant, they simply have to prove that she did not give her consent.

The third thing the prosecution have to prove in respect of this 2nd count is that the defendant either knew that he was having anal intercourse without the consent of PW1 or that he was reckless as to whether or not she was consenting.  Remember what I have told you "reckless" means.  The defendant was reckless as to whether PW1 consented to anal intercourse if you are sure that he did not know and did not care whether she was consenting or not, but went ahead and had anal intercourse with her anyway.  In other words, as I have said, that he could not careless whether she was consenting or not.  They are the matters that the prosecution have to prove in establishing the 2nd count offence of non-consensual buggery.

Now, let us look at a couple of other matters concerning the defendant's state of mind about PW1 consenting to sexual intercourse or anal intercourse.  What if you conclude that the defendant might have believed that PW1 was consenting to having sexual intercourse so far as the 1st count is concerned, or anal intercourse so far as the 2nd count is concerned, but that he was mistaken about that.  In other words, he thought she was consenting to either sexual intercourse for the 1st count, or anal intercourse for the 2nd count, but he was mistaken because she really had not consented.  So that you conclude that the defendant had or might have had a genuine or mistaken belief that PW1 was consenting to the two matters the subject of the 1st and 2nd count.

A person is not guilty of a criminal offence if he makes an honest mistake.  So, in that case, you must acquit the defendant of the particular charged offence if you think he was genuinely mistaken about PW1 having consented to that act, the subject of the charged offence.”

23.There can be no justifiable cause for complaint about the judge’s directions on this issue.  They are both comprehensive and accurate.  It was made abundantly clear to the jury that if they found, on the evidence, that PW1 had consented to the act, or that the Applicant was honestly mistaken that she had consented to it, then they must acquit him on the second count.

Third ground of appeal

24.Counsel for the Applicant at trial made no submission of no case to answer at the close of the prosecution’s case.  Even in the unlikely event that such a submission had been made, the Judge would inevitably have rejected.  The prosecution evidence clearly established a prima facie case on the second count.  PW1’s evidence that the Applicant had sodomised her was supported by medical evidence that showed she had sustained an injury to the verge of her anus which was consistent with penetration by a penis.

25.In examination-in-chief PW1 had said this:

“I don’t know whether it was because he was careless or not, but he put it (his penis) into my anus.”

26.This was taken up by the Judge who put the possibility that the Applicant had sodomised PW1 inadvertently to the jury.  He told them, quite correctly, that if they thought it was done by accident, or might have been, then they should acquit the Applicant.  This was very much a jury issue and certainly not one the Judge should have attempted to resolve had he been invited to do so.

Fourth ground of appeal

27.It is incorrect to say that the Judge failed specifically and/or sufficiently to direct the jury on the issue of the lack of a recent complaint by PW1 that the Applicant had sodomised her.  The Judge addressed this issue in some detail on two occasions in his summing up, saying firstly:

“In considering this matter finally, you should bear in mind the terms of the complaints she made to her friends and to the police at the scene.  She made no mention of buggery, Mr. Lam has pointed out, but simply said that she had been raped.  It is a matter for you whether you think that is significant.  Miss Crebbin has told you that you can understand a young girl in those circumstances not going into the details of the buggery offence and simply making her complaint as to the fact that she was raped, that is a matter for you.

Also, it is a matter for you to consider whether the evidence that PW1 complained of “molestation” sometimes and of “rape”, on other occasions, to PW1, 2, 3, 4 and 6, is significant.  Is there any significance in the difference in terminology that you might think you may come to accept she used when she made their complaints?”

Later, he said:

“Well, there are two things there that you might think that Mr. Lam has pointed out within this complaint to the WPC; as within all the complaints to the others - PW2, PW3 and PW4 - there was no mention by PW1 of buggery.  Here is a WPC talking to her at the scene, a female police officer, and Mr. Lam says she still made no complaint at that stage of buggery.  Also, she told the WPC that she had pushed the defendant away at once. 

Mr. Lam says that is inconsistent with her evidence in this case, that she had not been able to push him away at once and it is inconsistent with her evidence in this case because she made no mention of buggery.  They are entirely matters for you to take into account.  As I have told you, this evidence of complaint by PW1 to these various witnesses goes to the issue of PW1’s credibility.”

28.Of the effect in terms of credibility of a witness’s prior inconsistent out-of-court statement the Judge had earlier directed the jury in these terms:

“If you consider that the previous statement is effectively inconsistent with the witness's evidence before you, you can consider whether it reduces their credibility as a witness.  It is for you to decide whether what a witness has said or not said on a previous occasion, is inconsistent with the witness's evidence before you.  If you do not think it is inconsistent or if you think the inconsistency is trivial, then you can ignore it.  But if you think it is inconsistent in a material way, then it is a matter for you to assess to what extent, or at all, it reduces the witness's credibility, either generally or on that particular issue that the evidence relates to.”

29.The jury can have been left in no doubt that PW1 had made no complaint of the offence charge in the second count either to her friends or the woman police officer who attended her soon after the incident.  They could have also been left in no doubt that they could use this lack of complaint to test her credibility.

Fifth ground of appeal

30.No separate argument has been advanced to us in respect of the fifth ground of appeal that there is a ‘lurking doubt’ and that the conviction on the second count is unsafe and unsatisfactory.  In advancing it Mr. Wong relies on the complaints that form the basis of the other four grounds of appeal.  We are satisfied that the verdict on this count was neither unsafe nor unsatisfactory.

Decision

31.The Judge gave meticulously fair and comprehensive directions on every aspect of the evidence and the law, and it is clear, from their failure to reach a verdict on the first count and their unanimous verdict of guilty on the second count, that the jury considered the evidence in relation to each count separately and with care.  We can find no basis on which interfere with the jury’s verdict of guilty on the second count.  Accordingly the application is dismissed.

Mr Kevin P Zervos, SC, DDPP (Ag), for the Respondent

Mr Wong Po Wing, instructed by DLA, for the Applicant