Lam Wai-hung and Others v. The Queen

CACC000472/1971

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 472 OF 1971

-----------------

-----------------

Coram: Rigby, C.J., Huggins and Leonard, JJ.

Date of Judgment: 25th May, 1972.

-----------------

JUDGMENT

-----------------

1. The four appellants, young men between the ages of 18 and 23 years, were convicted on charges of rape and forcible detention of a young girl with intent to cause her to be carnally known. Upon conviction they were sentenced to long terms of imprisonment combined with an order for corporal punishment. They applied for leave to appeal against their convictions and sentences. In accordance with the usual practice we have treated their applications for leave to appeal as the hearing of the appeal itself.

2. The case is one which has caused all the members of this court the greatest possible anxiety. The story unfolded in the trial court was a quite remarkable one and in many ways an almost incredible one.

3. One Saturday morning two young girls, aged 16 and 17 respectively, students of a well-known and highly respected girls' school, decided that they would go and see the boy friend of one of them at the resettlement estate where he lived. It will be convenient to refer hereafter to the two girls as Miss X and Miss Y. It was the boy friend of Miss Y whom they went to visit. They failed to find him at home on the 5th floor of the resettlement block where he lived so they started on their way downstairs to go home. On the way down they were accosted by the four appellants on the first floor landing. A conversation took place as a result of which Miss Y was conducted upstairs again by the first and third appellants. Miss X meanwhile remained on the first floor with the second and fourth appellants. Some time later the first appellant came downstairs and shortly afterwards Miss X was taken along to a flat on the first floor by the first, second and fourth appellants. The flat belonged to persons the elder son of whom was a friend of the first appellant. At the time the only occupants of the flat were two 13-year-old youths one of whom was the younger brother of the first appellant's friend. The two youths left, or were asked to leave, the flat and went out on to the balcony. According to the evidence of Miss X, she was taken into the flat by the first, second and fourth appellants, pushed into the inner bedroom, threatened by the first appellant with a chopper, forced to undress by all of them and then allegedly raped in turn by the second, first and fourth appellants in that order. In the meantime, Miss Y, after some conversation with the third appellant on either the second or third floor of the building, was eventually permitted to leave and she went home. It is relevant to observe that Miss Y made no statement of any kind to her parents on returning to her home and it was not until the following day, after repeated inquiries from Miss X's parents, that she made a statement to her own parents and later to the police. After Miss Y had left the third appellant went down to join the other three appellants in the first floor flat. After some time all four appellants left the flat and proceeded on foot, together with Miss X, to premises euphemistically described as an "apartment house" managed by a Madam Wong in the Walled City. There Miss X spent the night with the first and second appellants. According to her evidence, the first appellant again had sexual intercourse with her that night against her will. The following day she was taken by the first, second and third appellants to various places mahjong schools, opium divans, cafes and restaurants, in some of which they partook of refreshments. It was her evidence that she was taken to these places against her will. There can be no doubt whatsoever that Miss X had the fullest opportunity, if she had been minded so to do, to protest and call out for assistance either when she was being taken on foot to these places or when she was actually inside them. Her evidence was that she was too frightened to do so. During the course of the day she was introduced to two men, For Chai-ming and So Kwai. On their admissions, both of these men had at one time been concerned (even if they were not still concerned) in the management of a brothel or "call-girl" establishment at premises known as Wah Fung Wansions. If the evidence of these two men was to be accepted the purpose of such introduction was to try and get Miss X placed as a call-girl or prostitute with a resultant financial benefit to the three appellants. The evidence of For Chai-ming and So Kwai was certainly open to the inference and conclusion that they sought to put their share in what took place in as favourable a light as possible to themselves and, to that end, were fully prepared to portray the part taken by each of the appellants in the worst possible light. The learned trial judge in his summing-up to the jury very properly directed them that Madam Wong, For Chai-ming and So Kwai should be regarded as accomplices and that it was dangerous to act upon their evidence unless it was corroborated in some material particular.

4. The second night, the 14th March, Miss X, according to her testimony, was compelled to spend that night with the third appellant at an apartment house in Wah Fung Mansions and she was further compelled, under his threats, to have sexual intercourse with him against her will. A room boy of that apartment house gave evidence that he saw the third appellant and Miss X at that apartment house that night, that it was the third appellant who engaged a room for both of them there and that he saw them in that room the following morning. According to Miss X she spent the greater part of that day in the company of the third appellant going with him to a cafe in the Walled City where they met For Chai-ming and later going with the third appellant to a different apartment house. That evening he took her to a cinema and after the cinema he took her to yet another apartment house where he spent the night with her. The third appellant requested sexual intercourse but desisted when she complained she did not feel well. Having stayed together in the room till about mid-day, the third appellant then let her go, putting her in a taxi and telling her not to tell her parents what had happened but to tell them that she had been kidnapped by other persons, blindfolded and subsequently released. She went home and told her parents what had happened.

5. In their defence all four appellants admitted a great deal of the evidence of Miss X to be true. They admitted meeting the two girls on the first floor landing at the resettlement estate. They maintained, however, that it was an entirely friendly and amicable conversation that took place between them. The first, second and fourth appellants admitted that Miss X accompanied them to the first floor flat and said that they there watched television in the flat. The first appellant admitted that during the time he was there he did have sexual intercourse with Miss X but he maintained that it was entirely with her consent. There was no question of all three of them raping her. All four appellants admitted that subsequently they went off together to the Walled City. The first appellant admitted that through the good offices of the fourth appellant he engaged a room at the apartment house of Madam Wong and that he did in fact spend the night with Miss X at that apartment house, having sexual intercourse with her with her full consent. He said, in effect, that the girl had expressed her affection for him and that she said that she did not wish to leave him. He said that the following day, the 14th March, he went to various places with the girl and that it was the third appellant who introduced him and the girl to For Chai-ming and that they were later introduced by For Chai-ming to So Kwai. He said, however, that during that day he noticed that Miss X was paying a good deal more attention to the second appellant who had joined them and that he was jealous of this fact. During the course of the evening of the 14th March, when they were all at the Wah Fung Mansion premises, his suspicions as to the apparent preference Miss X had for the second appellant were confirmed. As a result he was both jealous and angry. He got up and left and he did not see Miss X again.

6. The second appellant told a somewhat similar story as to the circumstances in which he and his friends met the two girls and later went with them along to the first floor flat with Miss X and there watched television. He entirely denied raping the girl at the flat. He admitted that subsequently all of them went along to the apartment house in the Walled City and that he that evening, and indeed, the following day, spent a good deal of time in the company of Miss X. He confirmed the statement of the first appellant that during the 14th March Miss X did seem to show a decided preference for him rather than for the first appellant. Pausing here for a moment, it was the case for the prosecution based on the evidence of Miss X and the evidence of identification by the room boy, that it was the third appellant who spent the night of the 14th March with Miss X and that he raped her that night. That averment was the subject matter of the fourth count of the indictment, the charge of rape against the third appellant. It is one of the many remarkable facets of this case that the second appellant maintained that it was he and not the third appellant who spent that night with Miss X at the apartment house and that he did in fact have sexual intercourse with her that night but with her full consent. He said that he spent part of the following day, the 15th March with her but later left her in the company of For Chai-ming at a cafe in the Walled City while he himself went off to look unsuccessfully for the first appellant. He did not return to the cafe and he did not see Miss X again.

7. The third appellant gave evidence along the same lines as the first and second appellants, admitting meeting the two girls and later accompanying the three appellants and Miss X to the apartment house in the Walled City. He said that he and the fourth appellant stayed with the first and second appellants and Miss X at the apartment house for some time but that he and the fourth appellant later left. He admitted that all of them, with the exception of the fourth appellant, met the following day and that in the evening they all went - again with the exception of the fourth appellant - together with Miss X to the Wah Fung Mansions. He denied the allegation of spending the night of the 14th March with Miss X and raping her and he said that it was the second appellant and not himself who spent the night with her. He confirmed that he did in fact meet Miss X and the man For Chai-ming at a cafe in the Walled City on the morning of the 15th March and that they did later take Miss X back to an apartment house where, by earlier agreement, they were supposed to meet the second appellant in the event of him not having returned to the cafe. They waited for some considerable time at the apartment house for the second appellant but he did not reappear. That evening, he took Miss X to the cinema, as she herself stated, and he then spent the night with her at an apartment house. No charge was made against him in respect of rape or indecent assault on that night. Indeed, it was, of course, the testimony of Miss X that although he asked her for sexual intercourse that night she declined and he did not press the matter. About mid-day the following day, he said that Miss X wanted to go home. He put her in a taxi, paid for her fare and she left. In that respect he confirmed the girl's evidence.

8. The fourth appellant similarly admitted meeting the two girls and later going with Miss X and the first and second appellants to the first floor flat where they watched television for some time. He denied any act of rape committed by him there. He admitted that he accompanied the other three appellants and Miss X to the apartment house in the Walled City and, indeed, that it was he who suggested that particular apartment house because he had been there before. However, he denied the truth of the uncorroborated testimony of Madam Wong that he had asked her if she wanted a girl as a prostitute and that, if so, he wanted an advance of $2,000 against her future earnings. He said that after staying a short while at the apartment house in the Walled City to which they had all resorted together with Miss X, he and the third appellant left and he said that he did not see the girl again. He denied that he was present at the Wah Fung Mansions on the evening of the 14th March.

9. We do not think it necessary to deal at length with the cautioned statements made by the appellants after their arrests nor their statements in answer to the formal charges preferred against them, although some reference will be made to them hereafter.

10. Those were, in brief outline, the somewhat complicated facts of this remarkable case as put before the jury.

11. On these facts and having regard to those defences it was incumbent on the learned trial judge to distinguish with particular clarity the case against each of the appellants and to direct the jury with great care on the question of corroboration bearing in mind that what was corroboration in the case of the second third and fourth appellants was not corroboration in the case of the first appellant.

12. He commenced his directions on the question of corroboration by correctly defining it as meaning "some independent evidence supporting or tallying the account of the complainant or the person whose evidence requires corroboration in a material particular implicating the accused". He immediately gave an example, which was unfortunate

"Suppose the girl said 'I put up a fierce struggle, he hit me on my face'; now, subsequently, if you find medical evidence that she has a swollen face, now that is capable of corroboration (sic)".

In fact, such medical evidence would not be evidence "implicating the accused". Having suggested that seminal stains on torn clothing could become corroborative evidence he went on to say

"But here if you are looking for corroboration you may also look at the accused's own admissions in their statements and in their evidence. Take, for instance, [Miss X] said that the 1st accused was in Room 103 in Tung Tau Village Resettlement Estate, first floor. He admitted he was there in his statement. I shall refer to it. Now what better corroboration is that? (sic) But, of course, when we come to a matter of corroboration the defence in this case is consent. How can you corroborate the lack of consent? Well you may find it in extensive injury, torn clothing; this is only one way of corroboration but there are other ways and besides I say it is only a material particular implicating the accused".

Pausing for a moment to remember that the defence in the case of the first accused, only was consent and that the defences to the counts of rape of the others was a denial of intercourse at the time and place stated in the charge, it seems to us that these examples are doubly unfortunate in that in none of them do the two essentials, materiality of particular and implication of the accused, co-exist.

13. This error we find on a number of occasions throughout the summing-up. Although the learned judge several times warned the jury that it would be dangerous to convict on the uncorroborated evidence of Miss X, of accomplices or of the boys who gave unsworn evidence and he gave them a correct definition of corroboration almost invariably the indications he gave as to what evidence was capable of being corroboration were incorrect or likely to confuse rather than to assist a jury.

14. The first source of corroboration suggested by the learned judge related to the evidence of the boy who identified all four appellants as having been at the scene of the offence alleged in the fourth count: he pointed out that a Superintendent of Police had given evidence of identification parades at which the same boy had previously identified the appellants. Evidence of identification by the very witness whose evidence requires corroboration cannot be corroboration since it comes from the source that requires corroboration. However, the learned judge went on to say that "the accused himself" admitted he was there and he then asked what better corroboration there was than that. If the 4th appellant had ever denied being at the scene the admission would certainly have been good corroboration, but, as the learned judge himself said, the 4th appellant admitted being there. How, then, does it implicate the 4th appellant in the crime of rape or forcible abduction?

15. Next the learned judge said of Chai-ming [alias For Chai-ming] and CHAN Hong-ming [alias So Kwai]:

"These, to your mind, must be accomplices and, there again, it would be dangerous to accept their evidence without any corroboration. However, as far as the 1st, 2nd and 3rd accused are concerned, and you have their own admission that they were at the Windsor Cafe, they were chatting to him though in a different shade of conversation. But what better corroboration is that? For Chai-ming said that he was at this place and he said 'Yes, at that time I was there'. The 4th accused denied at any time that he was anywhere near the Wah Fung Building."

We say no more than that this passage is not very easy to understand and may have confused the jury.

16. Then the learned judge said

"You have also the evidence of So Kwai. Again, this witness's evidence requires corroboration. But what better corroboration do you have when the accused persons said that they were there?"

Again this was likely to confuse the jury. The correct answer to the question was "None", for if an admission of sexual intercourse is not sufficient corroboration of evidence of rape (see R. v. Salman⁽¹⁾) then mere admission of presence cannot be. We cannot help thinking, however, that the jury would not have understood what was the correct answer to this rhetorical question but would have thought the judge was telling them that the admissions by the appellants that they were there could amount to corroboration. A similar suggestion appears later in the summing-up when the learned judge, with reference to Miss X, said

"The girl's evidence that the 3rd accused was with her at this place and at that place had been corroborated by the 3rd accused."

The use of the word "corroborated" in a non-technical sense as meaning no more than "confirm" was likely to mislead the jury.

17. The learned judge was not unaware that there might be a vital difference between corroboration of intercourse and corroboration of lack of consent towards the end of his charge he summed up the evidence against the 1st appellant on the 1st count in these terms:

"I just give a very brief summary of the evidence of each charge and each accused. In the first charge the 1st accused is charged with rape. There you have the evidence of [Miss X] that she was raped on the 13th March in that room in the resettlement Room 103, first by the 2nd accused, and the 1st accused was the second person who followed closely behind the 2nd accused and raped her. Now, where is the corroboration? The corroboration is to be found in the 1st accused who said that he was in that room and he had intercourse with her with her full consent. That is part of the corroboration in a material particular of intercourse but not of lack of consent. Either you accept [Miss X's] evidence or you don't. If you do not accept [Miss X's] evidence, you must acquit the 1st accused, but if you find there is sufficient corroboration in a material particular you may - if you are sure that the 1st accused is guilty - convict him of the first charge. If you are in doubt you must acquit the 1st accused, and even if you find that it is equally consistent with guilt and innocence you must acquit the 1st accused of this charge. Of course there is this further corroboration in a statement - again not corroborating the lack of consent but corroborating sexual intercourse - the 1st accused said, in Exhibit P17, first he said -

'You write for me. When I made love with the other side, I had asked her opinion. At that time she consented to what I was doing. I then made love with her.' Then he wanted to say something more -

Then he wanted to say something more -

I want to say some more. Please write for me. Before I made love with her, CHAN Ka-wo asked her, 'Among the four of us, whom do you like best?' She said she liked me. Therefore CHAN Ka-wo told me to enter the room to talk to her. I asked her whether she was willing to marry me. She said she was willing to marry me. I then said to her that I had already had a wife and children. If she really wanted to marry me, I would take her back to my home to live with my wife and children, then to go with her for marriage registration. She said good. I then made love with her.'

Now, this is the 1st accused's statement regarding the first charge. In a way, as men and women of the world, would you say that a girl of 16, having met a person for hardly more than an hour or two, knowing full well that he had a wife and children, would offer her virginity to this man? Members of the Jury, you may probably like to find your answer. But if you have any doubt, of course, you take into consideration his statement, you must acquit the 1st accused; but if you have no doubt, if you accept [Miss X's] evidence in toto, you convict him."

These are very cogent and perfectly proper questions put to the jury by the learned trial judge. But neither here nor anywhere else did the learned judge indicate to the jury what evidence there was (if any) capable of amounting to corroboration of lack of consent. Indeed, this passage might be taken as warning them that there was no corroboration of lack of consent. His references to the only witness whose evidence might be so regarded - Miss Y - are brief. He states at one place that her evidence "is capable of corroborating in part the complainant's evidence" but does not indicate in what particular it does so, nor which accused it might implicate. In his other reference to Miss Y's evidence he describes her as "corroborating her" (Miss X) but does not discuss the form this "corroborating" takes, except to say "That is corroborated story as to fear - as to threats." Here again, he appears to be using the word in its non-technical sense. The difficulty is that the repeated references to corroboration of acts of intercourse were likely to be misleading. One of the appellants admitted intercourse, one denied it at the time and place in respect of which he was charged but admitted it on another occasion, and the other two denied it. As against the three who denied it evidence corroborating the intercourse would have been good corroboration of rape, though as against the one who admitted intercourse it could not be. Even as against the two who denied intercourse evidence confirming their presence at the scene could not be corroboration of intercourse (and therefore of rape) because they both admitted presence. In fact as regards second and fourth appellants there was evidence which could be corroboration: in their answers to the charges they both admitted intercourse at the time and place alleged in the relevant counts although the defences they put up at the trial involved a denial of intercourse. Even assuming that the jury understood that they were being asked by the Prosecution to convict in a case where there was no corroboration at all of lack of consent, as regards all the appellants, they were told there was evidence which could be "corroboration" of a matter which required no corroboration. Several times words such as "If you find there is sufficient corroboration in a material particular you may convict" were used. The jury may well have thought that it was less dangerous to convict in this case than if they had been told fairly and squarely that there was no corroboration of any kind as regards first and third appellants and precisely what corroboration there could be against second and fourth appellants.

18. In so far as the charge of forcible abduction is concerned, we consider that this is a sexual offence and that the requirement as to corroboration is as important in such a charge as it is in a charge of rape. The learned judge at the outset of his summing-up warned the jury of the danger of convicting "in a charge of this nature - all these counts" on the uncorroborated evidence of Miss X, but did not discuss the nature of the corroboration for which they should look to support this charge. The only material particular in dispute as to this charge was whether Miss X went with the appellants voluntarily or was detained by them; it was, therefore, (following R. v. Salman⁽¹⁾) that material particular in respect of which corroboration should have been sought. There was none: nor did the learned judge suggest any. However, the same difficulties arise as arise on the charges of rape.

19. The summing-up was such that it may well have caused the jury to be confused and to assume that Miss X's presence in the company of the appellants at the apartment house Lung Chun Road in the Walled City and at the other addresses to which they went was corroboration of abduction and detention against her will.

20. We have considered most anxiously the question whether the proviso should be applied in this case. We ourselves have grave doubts whether this young girl would voluntarily have sacrificed her virginity to these appellants or whether she would willingly have accompanied them to the apartment house at Lung Chun Road. On the other hand, bearing in mind the conduct of the girl herself, the apparent lack of any sign of outward or visible distress shown by her at any time to the many persons with whom she came in contact during this period of three days and her apparent failure to make any attempt to call for assistance or break away from the company of any of the appellants during the many occasions she was with one or more of them in public places (including the cinema), we do not consider that we can positively and affirmatively say that if the question of corroboration had been adequately dealt with the jury must inevitably have convicted. That is the criterion we must apply. No course is open to us other than to allow this appeal: we do so most reluctantly and the appellants may well be regarded as extremely fortunate particularly as the ground upon which we are allowing the appeals was not one which was raised by the appellants but one which was raised by the Court and for the argument of which we asked the Director of Legal Aid to extend his certificate, originally limited to the appeal against sentence.

25th May 1972.

Representation:

Samuel Leung assigned for all Appellants.

Eddie Soh, C.C. for Crown/*Respondent.

(1) (1924) 18 Cr. App. R. 50