R. v. Ng Pong Lung

CACC000468/1993

IN THE COURT OF APPEAL

1993, No 468
(Criminal)

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Coram: Hon Power, V.-P., Macdougall, V.-P. and Keith, J.

Date of hearing: 26 January 1995

Date of judgment: 26 January 1995

Date of handing down of reasons: 8 February 1995

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J U D G M E N T   O F   T H E   C O U R T

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Macdougall, V.-P.:

1. The appellant was convicted of rape after trial before His Honour Judge W. Wong sitting as a deputy judge of the High Court and a jury. He now appeals against that conviction.

2. The principal witness for the Crown was the complainant, a Miss Chan, who was employed as a hostess in a nightclub. She testified that, in the early morning of 7 August 1992, she had left the nightclub and was waiting at a taxi stand for a taxi to take her home. She was feeling a little tipsy as a result of the alcohol she had consumed in the course of finger guessing games with her customers.

3. The appellant suddenly appeared from behind her, pushed her into a taxi and directed the driver to take them to Tsimshatsui. Miss Chan was reluctant to accompany the appellant and tried to alight, but he refused to allow her to do so.

4. When the taxi reached Tsimshatsui the appellant and Miss Chan alighted. The appellant attempted to drag her into a karaoke bar and, when she resisted, snatched her handbag. Miss Chan, concluding that she had no option, accompanied the appellant to the bar where they had drinks and played a finger guessing game. Eventually they left the bar in the company of a man, one Lam Siu-wah, who subsequently became a prosecution witness and testified under immunity from prosecution. The appellant still retained possession of Miss Chan's handbag and with it her identity card.

5. Lam then summoned a taxi. On its arrival Miss Chan was pushed into the rear compartment and seated between the appellant and Lam. She tried to open the door to escape and asked the driver to take them to a police station. However, either the appellant or Lam told the driver that she was drunk and that he should ignore her. She struggled but was held in check by Lam and the appellant.

6. After the taxi had come to a halt at its destination and all three of them had alighted, the complainant rushed to the middle of the road and attempted to hail another taxi, but she was caught and pushed to the ground. As a result of the fall she suffered injuries to both knees and an elbow. The two men then hustled her across the road and pulled her up the staircase of an apartment house where she was pushed into a room. She protested that she wanted to leave but Lam refused to allow her to do so and told her that the appellant was crazy and that if she attempted to leave it would be at her peril.

7. After Lam had left the room Miss Chan began protesting loudly. This caused an elderly man who was in attendance at the apartment house to come to the door of the room. The appellant refused to allow him to enter, telling him that Miss Chan was drunk.

8. The appellant then left the room to talk to Lam, who was waiting outside. During his absence Miss Chan made a telephone call to one Ngai Koon-ming whom she regarded as her sworn brother. When the appellant returned to the room he interrupted the call and hung up the receiver. He told Miss Chan not to be cheeky, that he was a No. 14 and that his name was "Ah Dick". He gave her details of his triad background and told her, "I have to fuck you tonight. I want to fuck anyone I like." With that, he pushed her into a bed, handed her the telephone and invited her to ring the police. She was frightened and declined his invitation. He then forced her into a lying position on the bed. When she tried to push him away he grabbed her hands and kissed her on the face and mouth. Eventually, after a struggle, he managed to overpower her and had intercourse with her. After he had finished he took a shower. Miss Chan then seized the opportunity to telephone Mr Ngai once again and arranged to meet him outside the Regal Hotel.

9. After leaving the room in the company of the appellant Miss Chan boarded a taxi and, on meeting met Mr Ngai as arranged, told him that she had been raped. When she returned to work two days later she also complained to her manager that she had been raped. He then reported the matter to the police.

10. Lam testified that after he, Miss Chan and the appellant had had drinks and played finger guessing games, Miss Chan wanted to leave but the appellant grabbed hold of her hand, pushed her into a taxi and told the driver to take them to Kam Moon Apartment. Once inside the taxi, the complainant "kicked the interior of the taxi repeatedly". Lam then slapped her on the face and the appellant seized hold of her in order to prevent her from kicking.

11. On arrival at the apartment house, the appellant forcibly ejected Miss Chan from the taxi by kicking her. After she had fallen to the ground Lam noticed that her knees were bleeding and that she was crying. The appellant told her not to irritate him or he would lose his temper. He then grasped hold of her and took her to the apartment house where an elderly man admitted them and showed them to a room. At the appellant's request Lam remained outside the room. As soon as the appellant and Miss Chan entered the room Lam could hear them quarrelling loudly. He heard Miss Chan protesting that she wanted to leave so that she could send her daughter to school later that morning. This continued for some 15 minutes before Lam decided that it was time for him to leave.

12. Mr Ngai testified that on that night he had received a telephone call from Miss Chan and that she had told him that she had been caught by two men and taken an apartment, and that she was frightened. During the course of that call the telephone line suddenly went dead.

13. Later Miss Chan telephoned Mr Ngai again and asked him to come and help her. On being told that the two men were still present he asked to speak to one of them. A man who called himself Ah Dick then spoke to him. When Mr Ngai asked him why he had taken his "younger sister" to the apartment house the man merely said that he was Ah Dick.

14. Shortly afterwards when Mr Ngai met Miss Chan he noticed that she was crying and agitated and that there were reddish patches on her neck. Initially, when he asked her what had happened, she did not answer. Soon afterwards, however, she told him that she had been caught by two men, taken to an apartment house and raped.

15. Upon arrest and after having been cautioned concerning the alleged rape, the appellant replied "Ah Sir I was drunk that night. Give me a chance". In response to questions he stated that he had seen Miss Chan standing outside the nightclub. Deciding to "draw commission" from her, the appellant "dragged her" to a bar in Tsimshatsui. Later that evening he, Miss Chan and Lam went to the Kam Moon Apartment where, after telling Lam to leave, the appellant had intercourse with Miss Chan. He admitted that he had been very "turned on" after drinking and that, on leaving the bar, had decided that he was definitely going to "fuck" Miss Chan that night.

16. The appellant elected to give evidence. The version of the incident that he then gave was that he had gone to the karaoke bar where he met up with Lam. Both men then went to the nightclub at which Miss Chan was employed. The appellant's intention was to patronise one Ka Wai. However, on arrival there, he discovered that Ka Wai was leaving. He then saw Miss Chan, whom he had previously patronised at the nightclub. She was waiting at a taxi stand outside the entrance to the nightclub. He approached her and asked her to accompany him for a drink. After some initial hesitation she agreed to do so.

17. The appellant, Lam and Miss Chan then went to two bars where they played finger guessing games and had drinks. Upon leaving the second bar the appellant told Miss Chan that he wanted to have sex with her and that he would pay her. After some hesitation she agreed to his proposal.

18. After boarding a taxi to go to an apartment house, Miss Chan became boisterous. When she refused to quieten down Lam slapped her face. On arrival at the apartment house both Lam and Miss Chan assisted the appellant, who was feeling the worse for drink, out of the taxi and into the premises.

19. There an elderly men escorted the appellant and Miss Chan to a room. The appellant then left the room and told Lam to go home. Following this he returned to the room and gave Miss Chan a $500 note "as agreed before". She placed the money in her handbag and then removed all her clothes. The appellant put on a condom and had intercourse with her during the course of which she asked him to give her a love bite on the neck. He acceded to this request and she indicated that she enjoyed it. This accounted for the mark that was later seen on her neck.

20. After having had intercourse and taken a shower, the appellant in the adjoining bathroom returned to the room and found Miss Chan speaking to someone over the telephone. He overheard her making an arrangement to have tea.

21. While they were descending the staircase after having left the room, Miss Chan suddenly demanded that the appellant pay her an extra $3000 and threatened him that if he failed to do so he would "know the consequences". The appellant refused to do so. On reaching the street he hailed a taxi for her, after which they went their separate ways.

22. The appellant denied using any violence on Miss Chan or manhandling her at any time. She had fully agreed to have intercourse with him. It was a business transaction for which he paid her $500.

23. Mr Percy, who appeared for the appellant in this court but not in the court below, advanced what was in effect one ground of appeal, namely that the deputy judge in summing-up to the jury on the issue of consent failed to direct them adequately on the issue of the appellant's state of mind, in that he omitted to explain to them the meaning of the word "reckless" and to tell them that an honestly held but mistaken belief by the appellant that Miss Chan was consenting would afford him a defence.

24. At an early stage of his summing-up the deputy judge, having correctly defined rape, went on to say:

"In this case, the accused admits having sexual intercourse with the complainant. So the only issue here is whether the accused knew the complainant did not consent or being (sic) reckless whether she consents or not".

25. At the conclusion of the summing-up Crown Counsel suggested to the deputy judge that "a direction in regards to recklessness - that is the deliberate running of an unjustified risk - might be of assistance to the jury in this case".

26. No doubt taken by surprise at this suggestion, the deputy judge, in addition to directing the jury on other matters that defence counsel had dawn to his attention, gave them the following direction:

"The issue in this case first of all you have to decide is whether the complainant consented to it before you should go on to decide whether the defendant knew that she did not consent or being reckless whether she consented or not. So the first point you have to decide first is on the evidence whether she consented to it before you go on to decide whether the defendant knew that she did consent or being reckless."

27. Mr Saw, who appeared for the Crown in this court but not in the court below, frankly conceded that, having accepted Crown Counsel's suggestion, the deputy judge failed to complete the direction by explaining to the jury that, in rape, a defendant is reckless if he does not believe that the woman is consenting and could not care less whether she is consenting or not, but presses on regardless. Mr Saw submitted, however, that there was no evidential basis on which a finding of reckless rape was open to the jury, and that therefore a direction as to reckless rape was unnecessary and inappropriate.

28. We entirely agree. It is plain from the above extensive summary of the evidence that there was no evidential basis on which a jury could properly have found that the appellant had been reckless within the meaning of that word when applicable to the law relating to rape.

29. On the evidence before them the issues which the jury had to resolve were whether they were sure that the appellant had had sexual intercourse with Miss Chan without her consent and whether, at the time of having that intercourse, he knew that she did not consent to it. In determining those issues they had to consider the evidence of the appellant that Miss Chan had agreed to have intercourse with him in return for the $500 which he said he had given her. If they thought that there was a reasonable possibility that the appellant's version might be true it was their duty to find him not guilty.

30. There was no evidence which could possibly have justified a conclusion that the appellant had intercourse with Miss Chan willy-nilly, not caring whether she consented or not. Either Miss Chan consented to intercourse with the appellant or she did not consent and he knew that she did not consent.

31. Since the jury could only have found the appellant guilty on the basis that, at the time he had intercourse with Miss Chan he knew that she was not consenting, the defective, incomplete direction which the deputy judge gave to the jury regarding reckless rape cannot have had any bearing on the outcome of the trial. The appeal is therefore dismissed.

32. We wish to add that this is not the first time that we have found that, at the conclusion of the summing-up, a Crown Counsel has invited a trial judge to amend or supplement the directions which he has given to the jury, but has then - bearing in mind that the judge has been taken somewhat by surprise - failed to ensure that a correct direction is given. We express the hope that this does not re-occur.

Representation:

Mr D.G. Saw for Crown Prosecutor

Mr Duncan Percy assigned by DLA for applicant