HKSAR v. Tam Chi Shing

CACC000443/2000

CACC443/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 443 OF 2000

(ON APPEAL FROM HCCC 40 OF 2000)

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Coram: Hon Leong CJHC, Woo & Cheung JJA in Court

Date of Hearing: 20 September 2001

Date of Judgment: 20 September 2001

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J U D G M E N T

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Hon Leong CJHC (giving the judgment of the Court) :

1.The indictment charged the applicant Tam Chi-shing with the following offences: counts 1, 2 and 3 - indecent assault committed against HWY; counts 4 and 5 - rape committed against SKK; count 6 - aiding and abetting using an instrument to procure miscarriage in respect of SKK; counts 7, 8 and 9 - unlawful sexual intercourse with a girl under the age of 16 committed against SKK; counts 10, 11 and 12 - rape committed against LHY.

2.On 14 August 2000, the applicant appeared before Deputy High Court Judge Longley and pleaded guilty to counts 7, 8 and 9. After trial before a jury and Deputy Judge Longley, the applicant was convicted of counts 1 and 2 - indecent assault; counts 4 and 5 - rape; count 6 - aiding and abetting using an instrument to procure miscarriage. In respect of counts 10, 11 and 12, he was found guilty of the alternative offence of attempted rape. The judge directed the jury to acquit him of count 3 in the middle of the trial. The applicant was sentenced to a total of 12 years' imprisonment. He now applies for leave to appeal against conviction.

3.At the trial prior to evidence being called, the applicant through his counsel applied to the judge for severance of counts 4 to 5, that is the counts where the girl SKK was the victim of rape. Counsel for the applicant also submitted that a fresh indictment should be prepared deleting the charges to which the applicant had pleaded guilty. However, both applications were refused by the judge.

4.The prosecution's case as summarised by the judge is briefly as follows. The victim of counts 1 and 2, HWY, joined a badminton club on 1 July 1996 and the applicant was her coach. On 4 July 1997, she attended a party to celebrate the applicant's birthday. At that time, she was 14 years old. After the party, the applicant drove her and other girls back home. After the other girls had been dropped off and as she was being driven back by the applicant, the applicant indecently assaulted her while she was in the car and the car was still moving. After this incident, HWY did not leave the badminton club. She continued to be a member of the club because she liked badminton. She only tried to avoid the applicant. In about Christmas time in December 1997, during a break from badminton practice, the applicant came over to her and indecently assaulted her while she was standing up. HWY said that she did not dare to say anything because she would not like other people to know about it since those were "shameful matters". At that time, there were other people practising badminton but no one noticed what happened.

5.The essence of the applicant's evidence in respect of these two counts is that these incidents of indecent assault as described by HWY never occurred. Although he had taken her out in the car on 4 July 1997, nothing had happened.

6.SKK is the victim of counts 4 and 5 of rape. She joined the badminton club in summer of 1996. By the beginning of 1997, she was coached by the applicant. Before the incident of rape, the applicant had during her visits to his place kissed and indecently assaulted her several occasions. SKK said that she dared not say anything afterwards. She just tried to avoid the applicant until at some stage, when she felt she could not stand it any longer, she started to tell her team-mates about it. But she did not leave the club because she liked badminton and being coached by the applicant.

7.The incident which is the subject of count 4 occurred shortly after the Mid-Autumn Festival in September 1997. On that occasion, the applicant told SKK to attend a meeting with other team members but when she met the applicant, the applicant was alone in his car. The applicant then took SKK to a flat in Kowloon City. SKK went along because she said she obeyed him liked everyone else. There, the applicant had sexual intercourse with her without her consent. After the incident, SKK said that she did not tell anyone about the incident because she was afraid. She continued to play badminton and see the applicant. The incident was found out by her mother from entries in her diary but no report was made to the police. Thereafter, there were occasions when the applicant took SKK to Fei Ngor Shan and during two or three of these occasions, she had sexual intercourse with the applicant. Although SKK considered these occasions of sexual intercourse unacceptable, she nevertheless agreed to them and she did not regard them as rape. She said she willingly allowed the applicant to treat her in that manner.

8.The incident of rape which is the subject matter of count 5 occurred sometime in June 1998. On that occasion, the applicant told SKK that he had arranged activities for the badminton group at his parent's flat at Sau Lok House in Sau Mau Ping. The applicant then collected SKK from where she lived and they later went to his parent's place. On arrival, she found no one else was there and she became frightened. On this occasion, the applicant pulled her into his room although she resisted and she was raped by the applicant. She said she was not willing for the sexual intercourse to take place.

9.In early July 1998, SKK found out she was pregnant and she told the applicant about it. The applicant then took her to see a gynecologist. The gynecologist introduced them to another doctor. In the company of the applicant, the doctor carried out an operation on SKK which terminated her pregnancy. The fees for the operation were paid by the applicant.

10.The applicant in his evidence denied that there was such an incident as SKK had described that happened around Mid-Autumn Festival in 1997. He said he had never taken SKK to any place in Kowloon City. He said that he had on occasions indecently assaulted her but she never rejected him. There were other occasions after the incident described by SKK when he had sexual intercourse with her at his parent's home in Sau Mau Ping but on those occasions SKK was willing. The applicant denied any rape incident as alleged in count 5 and he also denied that he had taken her to a doctor for an abortion. He was aware that SKK suspected herself pregnant but he had told her that if that was the case, he would take up responsibility.

11.LHY, the victim in the three counts of rape, counts 10, 11 and 12, was a member of the badminton team in the badminton club. She joined the club in the summer of 1997 and the applicant was her coach. During the summer holiday of 1998, she went with the applicant and other members of the team to a restaurant. After the meal, the applicant asked her to help him to tidy up his home. She did not think of anything suspicious and she went to his home. On the way it was raining and she got wet. When she went to his place, she had to change her clothes. Subsequently, she was raped by the applicant. After that incident, she could not sleep. She did not know what to do although she was very frightened. She did not tell anyone about it. She said, despite what had happened, she continued to go to the badminton club two or three times a week although the applicant was there. Later in the summer of 1998, the applicant asked her to accompany him back home to repair a telephone. She did not refuse his request and he drove her to his home. On their arrival, no one was there. Subsequently, the applicant had sexual intercourse with her without her consent. Later that year, on one evening in October, the applicant telephoned her and told her that he had badminton videotapes which she rarely had a chance to see and asked her to go to his place to watch the tapes. She agreed. The applicant then met her downstairs at her home and drove her back to the applicant's home. In the course of watching videotapes, he raped her. The applicant denied that there were such incidents. His defence was that these incidents of rape were fabrications by the victim.

12.There are four grounds of appeal in the perfected grounds of appeal but counsel for the applicant has now indicated that the applicant no longer relies on ground 3. The first ground of appeal essentially is a complaint that the judge failed to accede to the application for separate trial of counts 4 and 5 from the trial of the other counts. The submission is that the defence of the applicant in counts 4 and 5 was different from that suggested in the other counts, in that the defence in respect of counts 4 and 5 was consent whereas in respect of the other counts the defence was total denial. The submission is that the deputy judge had failed to give any consideration at all to the overwhelming prejudice the defence would have to overcome since the jury may treat the applicant being accused simultaneously by several victims as an indication that he is more likely to be guilty than if he were accused by one victim only. It is also submitted that severing the material counts for separate trial would cause minimal inconvenience because there is no duplication of evidence to be adduced. Allowing the counts to which the applicant had pleaded guilty to be left on the indictment would, counsel submits, compound the prejudice against the applicant and these foreshadowed the bad character of the applicant.

13.Mr Saw SC for the Secretary for Justice submits that whether to order separate trial is a matter of discretion for the trial judge. The Court of Appeal would not readily interfere with the exercise of such discretion unless it is shown that the judge has failed to exercise his discretion upon the usual and proper principles, namely taking into account all things he should and not taking into account anything which he should not. The following authorities have been referred to.

14.In R v Cannan (1991) 92 Cr. App. R. 16, the Court of Appeal held that it was legitimate for a trial judge in his discretion to permit counts to be tried together, even though there was no similarity sufficient to justify the evidence on one count being used to support the evidence on another. Lord Lane CJ said this at page 23:

"It may well be that often the judge in sexual cases will order severance, as is clear from the various cases which we have already the liberty of citing. It may well be that members of this Court faced with the problem which Drake J was faced might have come to a different conclusion as to the way in which our discretion should be exercised. I am not saying one way or the other whether that is so. But the fact remains that the Indictments Act 1915 gives the judge a discretion, and it is a well known fact, and a well known principle, as Salmon LJ in his usual clear language sets out in the case of Flack (supra), that that is not a matter with which this Court will interfere, unless it is shown that the judge has failed to exercise his discretion upon the usual and proper principles, namely, taking into account all things he should, and not taking into account anything which he should not ..."

15.In R v Christou [1997] AC 117, the question certified by the Court of Appeal for the decision of the House of Lords is this:

"Where an accused is charged with sexual offences against more than one person and the evidence of one complainant is not so related to that of the other complainants as to render it admissible on the charges concerning those other complainants in accordance with the principles laid down in Director of Public Prosecutions v P [1991] 2 AC 447 has the trial judge a discretion to order that all charges should be tried together, having regard to the provisions of section 4 of the Indictments Act 1915 (as amended) and Rule 9 of the Indictment Rules?"

16.The House of Lords answered this question in the affirmative. In his judgment, Lord Taylor quoted the above passage of Lord Lane CJ in R v Cannan as the proper approach to the question of severance and in relation to sexual abuse of children, he said at page 129:

"... A defendant may, for example, be indicted for discrete incidents of sexual abuse of different children in different places at different times, so that the allegations in respect of each count are in 'watertight compartments.' By contrast, when, as here, the allegation is of a continuous course of conduct within one household involving two or more children over the same period and in similar circumstances, joint trial of all the counts may well be appropriate. Indeed, in such cases the principles laid down in DPP v P will often render the evidence of one child admissible to support the evidence of the other."

17.In DPP v P, Lord Mackay in the House of Lords, after reviewing the authorities, particularly quoting extensively from the judgment in R v Boardman [1975] AC 421 where the question of evidence of similar facts was fully discussed, concluded as follows:

" When a question of the kind raised in this case arises I consider that the judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim, about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it notwithstanding the prejudicial effect of admitting the evidence. This relationship, from which support is derived, may take many forms and while these forms may include 'striking similarity' in the manner in which the crime is committed, consisting of unusual characteristics in its execution the necessary relation is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connection."

18.It would appear from these authorities, that the evidence to show that the applicant had committed similar offences may be admitted to show that the applicant had committed the offence in question, if it can be derived from the circumstances of the similar offences, which may include striking similarities, a sufficient connection between the two and its probative force is so great as to outweigh its prejudicial effect.

19.In any case, the case against the applicant in all the counts fall within a similar pattern: the victims were of similarly young age, between 13 and 14; they were all members of the badminton club and belonged to the same badminton team and they were all coached by the applicant. These offences were committed by the applicant in similar circumstances i.e. after attending badminton practice or other related activities, the victim would be taken by the applicant to a place chosen by the applicant where she would be alone with the applicant. The victim went along because she felt she had to obey him. The offences are a series of acts by the applicant taking advantage of the victims' young age and his position as the victims' favourite badminton coach to whom they felt bound to submit. Although committed by the applicant separately at different times and places, the offences were carried out with the same objectives. The conduct of the applicant in these offences formed a pattern of abusive behaviour that when taking all the circumstances of the case together, the evidence on counts 4 and 5 has such strong probative value sufficient to justify its admission to provide support for the evidence of the other counts, notwithstanding its prejudicial effect.

20.In our opinion, the deputy judge in the present case has a discretion to decide whether to order separate trial of counts 4 and 5 and nothing has been shown that in exercising this discretion to refuse to make the order for separate trial, the deputy judge had failed to act upon the usual and proper principles and we see no reason to interfere with the deputy judge's decision.

21.Complaint is made that the deputy judge did not give a binding ruling whether the evidence on the counts are cross admissible on each other and the judge should not have reserved his view until the conclusion of the evidence.

22.It should be noted that the applicant applied before the deputy judge for a separate trial pursuant to section 23(3) of the Criminal Procedure Ordinance on the ground that a joint trial would be prejudicial or embarrassing to the applicant. The judge, after he heard arguments from both sides, said this:

"Even if I did not uphold this submission, Mr Raffell argues that there is no need for separate trials in this case. The essential criterion is the achievement of a fair resolution of the issues in this case. Although I express no final concluding view of the matter, in the absence of disclosure of the defence case in this trial, I'm of the view that the evidence of the alleged victims is probably admissible as tending to negate the possibility that other alleged victims are lying.

Even if the evidence is not admissible in this way, I'm satisfied, having given the matter some considerable thought, that there is no special feature of this case which would make a joint trial of the several counts prejudicial or embarrassing to the accused. I do not consider that separate trials are required in the interests of justice. I'm satisfied that a jury would be perfectly capable of faithfully following a direction that they should ignore the evidence of the other alleged victims in considering the allegation in relation to a particular alleged victim."

23.From what has been said as quoted above, the judge did make a ruling on the application for separate trial as well as the admissibility issue. In any case, counsel for the applicant at the trial accepted that this ruling would be sufficient for the trial to proceed. We do not see any merit in this complaint.

24.A further complaint is that the judge had allowed the counts to which the applicant had pleaded guilty to be left on the indictment put before the jury. It is submitted that the judge in these circumstances should have directed the jury in terms that the fact that the applicant had pleaded guilty to these counts did not follow that he was guilty of the other counts. The complaint goes on that the judge should not have invited the jury to accept the incidents underlying the guilty pleas as part and parcel of SKK's revenge package. To allow the counts relating to the guilty pleas to be put before the jury would compound the prejudice against the applicant.

25.Mr Saw SC submits that the applicant had acknowledged an on going sexual relationship with SKK and given the deputy judge had ruled that there should be a joint trial, it would be inappropriate to deprive the jury of the evidence in relation to counts 7, 8 and 9. There was count 6 which relates to procuring miscarriage and even if a new indictment is prepared, evidence of the applicant's previous sexual intercourse with SKK had still to be adduced to establish this count. That being the case, there can be no possible prejudice to the applicant because counts 7, 8 and 9 had been left on the indictment.

26.The judge at the beginning of his summing up at page 3 directed the jury in these terms:

"In this case, in particular, you have heard the evidence from the defendant, that he started to have sexual intercourse with [SKK] at a time she was only 13, and you may very well have strong feelings about that sort of conduct, but you must not let those feelings cloud your judgment. It does not follow that because he had sexual intercourse with [SKK] when she was 13 that he is necessarily guilty of raping her, or of raping [LHY], or of indecently assaulting [HWY]. You must examine the evidence on each count completely dispassionately, unclouded by any emotional reaction you may have to the defendant's behaviour."

27.Later at page 9, the judge added:

"... as you have been told, the defendant has pleaded guilty to three of those counts, 7, 8 and 9, which are the three counts of having unlawful sexual intercourse with [SKK] in 1999 when she was under 16. ...

You must consider the case for and against the defendant on each count separately. In respect of each count, this will involve you in assessing the reliability of the evidence of the alleged victim of that count. In respect of each count, as I have told you, the prosecution case is ultimately dependent on the evidence of the alleged victim of that count."

28.In our opinion, this is a clear direction by the judge to the effect that the admissions of the applicant to counts 7, 8 and 9 should not be regarded as facts from which inference may be drawn that the applicant was also guilty of the other counts. As to the prejudicial effect of having those counts on the indictment, the evidence of the applicant's previous sexual relationship with SKK which would have to be adduced in relation to count 6 is evidence which the jury should not be deprived of and is evidence which has probative value that outweighs its prejudicial effect. We agree with Mr Saw SC that there can be no prejudice to the applicant. This complaint must fail.

29.Ground two of the perfected ground of appeal complains that the judge had misled the jury on the standard of proof by unduly emphasizing the use of words such as "more likely" and "more probable" in assessing whether the applicant's conduct fell within a pattern of abuse. This ground also complains that the judge was wrong in directing the jury that the applicant had endeared himself with a view to abuse his protégé whereas the very essence of SKK's evidence was that the applicant was not nice to her all the time.

30.The part of the summing up the applicant has complained of regarding the burden of proof is at page 9 to page 11 of the bundle. Looking at page 9 as a whole, it is clear that the judge had directed the jury that they should consider the case for and against the applicant on each count separately and if they were not sure as to the reliability of the victim in a particular charge, then the applicant should not be convicted of that charge. Regarding to the pattern of abuse, the judge said at page 10:

"In considering the evidence against the defendant on a particular count, you are entitled to consider whether the prosecution has satisfied you that the defendant was using his position as a badminton coach to endear himself to those under his charge with a view to sexually assaulting the young female players if the opportunity arose. In other words, members of the jury, does the evidence reveal a pattern of abuse of this small group of young players. If the prosecution has satisfied you of this, that there was a pattern of abuse, then you should not automatically jump to the conclusion that the accused is guilty of the count you are considering. But that evidence may assist you to assess the evidence of the alleged victim of that count."

31.In the latter part of page 10, the judge added:

"If you feel that the evidence of the witness you are considering, of the defendant's conduct on this count falls within a pattern of abuse consistent with your findings on the other evidence in the case, and have excluded the dangers to which I have referred, then you may find that her evidence on this count is more likely to be true. You may think that the more similarities there are between her account and any pattern in the defendant's behaviour, the more likely her evidence is to be true.

Of course, members of the jury, this evidence can only lead you to the conclusion that the witness's evidence on the count in question is more probable because it is consistent with the other evidence in the case. Just because the evidence of the witness, on the count you are considering, is consistent with the pattern of abuse by the defendant does not necessarily mean it is true. You must ultimately decide whether you are satisfied beyond reasonable doubt on the evidence on this particular count of the witness in question."

32.In our view, the judge have indeed in this part of his summing up, used words "more probable" and "more likely" on more than one occasion. However, they were used in a different context. Taking this part of the summing up as a whole, in particular the concluding part, the jury could not have been left in any doubt that the evidence on the pattern of abuse only assisted them to consider the evidence of the victim but ultimately the burden of proof is that they must be satisfied beyond reasonable doubt on the evidence in respect of a particular count before they could convict the applicant of that count.

33.The second complaint in this ground relates, as counsel for the applicant submits, to a paragraph at page 87 of the summing up and page 94 of the bundle which is a record of an exchange between Mr Cheung and the deputy judge after the jury had retired. The paragraph in this regard at page 87 is this:

"She described the defendant's treatment of her during this period as very good, 'like he is endearing you'; those were her words. That, of course, is consistent with the evidence of [SKK] who got the impression that the defendant was treating [LHY] in the same way that he had treated her. Members of the jury, once again you will have to consider the three elements,; whether there was sexual intercourse - and again, of course, there is the evidence of Dr Yu. Members of the jury, in relation to both the second and the third incident, you do have the evidence that the defendant gave her what he said was morning-after pills or morning-after medicine, and you will have to consider whether that is relevant to the question of whether there was penetration. Of course, the other issue is whether she consented or not, or whether she merely submitted without consent, and the defendant's state of mind; whether he knew that she was not consenting or was reckless as to whether she consented or not."

34.Looking at this paragraph, we do not think that it conveys any effect which the applicant is now complaining and we do not think that the refusal of the judge to expand his direction on that part of the summing up on page 87 would have added anything to the complaint.

35.Mr Cheung for the applicant refers to several isolated parts in the judge's summing up and complains that the summing up is unbalanced and unfair. We do not think so. In each of the places in the summing up complained of, we note that the judge had put to the jury both sides of the coin and we see nothing to show that it was only one sided.

36.In our opinion, the summing up is a detailed and comprehensive one, well balanced and fair to which no complaint can be made.

37.For the reasons we have mentioned above, we dismiss the application for leave to appeal.

Representation:

Mr D G Saw SC, Deputy Director of Public Prosecutions, and Ms Catherine Ko, Senior Government Counsel, for HKSAR/Respondent

Mr Jeremy Cheung, assigned by DLA for Applicant