R. v. Hung Chi Kwan

CACC000104/1995

IN THE COURT OF APPEAL

1995, No.104

(Criminal)

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Coram: Hon Power Ag C.J., Liu and Mayo JJ.A. in Court

Date of hearing: 19 September 1995

Date of judgment: 19 September 1995

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J U D G M E N T

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Liu JA:

1. The applicant faced a number of charges. There were altogether six counts: forcible detention, two rapes, buggery with a girl under 21, assault occasional actual bodily harm, and detention of a woman against her will for unlawful sexual intercourse. He stood trial and was convicted on all counts by a jury. He seeks leave to appeal against conviction. There is no application with respect to the sentences passed upon him by the judge. The facts are uninvolved. It was alleged against the applicant that on 18 and 19 April last year, 1994, he forcibly detained one Ms Wong against her will in order to obtain some money from her before she would be released from his hold. The separation fee allegedly demanded of Ms Wong was half a million dollars. But in the course of those two days, it was the prosecution's case that he raped Ms Wong twice, committed buggery against her once, assaulted her a number of times causing her bodily harm and detained her against her will. It was further alleged against the applicant that he took Ms Wong to various apartment houses in Mongkok, so that she served as a prostitute. The applicant received a part of the fees. Apart from the various grounds of appeal, the applicant has made to-day the following additional complaints: that counsel did not obey instructions, that counsel failed in his duty in overseeing the selection of jury, and that counsel admitted certain photographs for trial without consulting him. We have gone through the transcript with care. There is no evidence that there was any problem at all in the selection of the jury in this case. Photographs were produced and they speak for themselves. They could have been produced with or without agreement of counsel for the applicant. It is also submitted that facts were admitted by counsel without consultation with the applicant. First of all, a fact admitted is that certain photographs were taken at a particular time. They show that the premises were in disarray. The applicant maintained before the jury that he had left his premises in an orderly manner. The matter was before the jury and the issue was properly addressed by the trial judge. Both versions were put to the jury for their consideration. There is no substance in this complaint regarding the admission made that photographs were taken at a particular time. It is also complained that counsel should not have admitted the fact that the applicant went up to Lung Kung Villa with a female. The applicant's case is that he went up to the Villa after the victim. However, it is conceded by the applicant that the whole statement was read out to himself and the jury in court. The applicant did not then object to these paragraphs, nor did he give instructions to those representing him that those paragraphs were incorrect. We also find no substance in this complaint which is one outside the grounds of appeal. It is argued by the applicant that his statement was wrongly admitted: he was assaulted by police officers; he was not cautioned at the time of his arrest and he was not asked to and he did not sign after each answer. It is, so the applicant claims, an infringement of his human rights, i.e. personal freedom under Article 5 of the Hong Kong Bill of Rights Ordinance. The matter before the judge was whether the statement was made voluntarily. The judge had all the evidence before him and he admitted that the statement into evidence. But he gave the usual fair warning to the jury, leaving it to the jury to decide whether the statement was made by the applicant, and if they were so satisfied what weight was to be placed on it. Nothing was withheld from the jury who were fully instructed. The summing up was fair. It is also submitted that according to Article 11 of the Hong Kong Bill of Rights Ordinance, the applicant was not lawfully arrested. Again the evidence of his arrest was before the jury. The law and the material facts relating to his arrest were wholly placed before the court and the jury. The last complaint beyond the grounds of appeal is that a police officer claimed at trial to have read only some of the statements of victim, but that in fact he had read all of them. This would affect credibility which was also a matter before the jury.

2. We pass on to the grounds of appeal. The first ground has two limbs. First, it is claimed that the applicant was innocent of the alleged rapes. It is also complained that there was no corroborative evidence. The judge was well aware of that fact. He was at pains to emphasize the lack of corroborative evidence to the jury and warn them how dangerous it was to convict without any corroboration. The judge also referred to the evidence of the applicant extensively. The applicant was found guilty on both counts of rape. He had a fair trial. The second limb in ground one concerns the buggery count. The applicant gave a statement implicating himself. There was also the evidence of the victim against him. He was found guilty by the jury. The applicant complains of the summing up to jury with reference to the underpants of the victim. We have referred to the relevant pages of the transcript. The doctor who gave evidence referred twice to semen stains on the underpants. We find no substance in the applicant's complaint against that part of summing up of the trial judge. The second ground of appeal deals with questions asked by the judge of the applicant's occupation. We have examined the relevant pages of the transcript. The judge put the questions to the victim with a view to clarifying the early pick-up hours of the victim by the applicant. There is nothing unfair about the questioning of the victim by the judge in that direction. As part of ground two, it is complained that there was no evidence to establish that the victim did at one time carry the baby of the applicant. It is true that the jury had only the words of the victim. The baby was lost before the trial. Obviously there could not have been any evidence to further support the claim of the victim. In any case, the victim's pregnancy and maternity were not in any way directly tied to any of the material facts to be decided by the jury. The last ground of appeal raises allegations against Senior Inspector Chan Kam Hoi. It was alleged at the trial by the applicant that he had tea with the Senior Inspector who warned him to leave the victim alone and that a few days later, the victim and the Senior Inspector were seen by the victim leaving a hotel. The applicant told the jury that he took a picture of the Senior Inspector and the victim and that he kept the camera with the undeveloped film in the boot of his car. The Senior Inspector denied all these allegations. It was claimed by the applicant that his camera together with the undeveloped film in the boot of the car could no longer be found after his arrest. The police officer in charge of the search did not search the boot. In any case, no photographic evidence was produced to support the allegations of the applicant. According to the prosecution, it was a case developed on its own without police intervention. The victim was throughout reluctant to draw in the police. The Senior Inspector claimed that he had no role to play before the victim finally reported the matter to the police.

3. The judge referred to the applicant's statement for the benefit of the jury, in which the applicant admitted at least that he assaulted the victim, demanded half a million dollars separation fee from her, tied her up and committed buggery on her. The mother of the victim testified. She told the jury that the victim had phoned her up requesting a report to be made to the police. The applicant threatened the victim's mother to the effect that if he was nailed to death, it would be the victim's family turn to die. The victim's mother also told the jury of the applicant's further threat that if anything should happen to him, his parents would not let the victim's family off. There was ample evidence against the applicant. All the applicant's accusations against Senior Inspector Chan were put to the Senior Inspector before the jury. Having warned the jury the dangers of convicting on the rape counts without corroboration, summed up the applicant's case and his implication of the Senior Inspector in a concerted effort with the victim to wrong the applicant or attempt to punish or get rid of him, the judge told the jury that in the end it was a question of who was telling the truth. The jury had the entire case opened to them, outlined for their benefit, and summed up to them by the judge at the conclusion of the proceedings. The applicant had a fair trial. There was no material shortfall. We have gone through the entire transcript very carefully. In the end, we must refuse the application for leave to appeal. This application is therefore denied.

Representation:

Hung Chi Kwan, Appellant in person

Mr D G Saw, SACP of Crown Prosecutor for Respondent