HKSAR v. Au Yang Bo

CACC000048/2001

CACC 48/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 48 OF 2001

(ON APPEAL FROM HCCC NO. 133 OF 2000)

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Coram: Hon Stuart-Moore VP, Stock JA and Lugar-Mawson J in Court

Date of Hearing: 22 March 2002

Date of Judgment: 22 March 2002

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1This is an application for an extension of time in which to seek leave to appeal against conviction and, if successful, an application for leave to appeal against conviction.

2The applicant faced six counts on an indictment; each count charging rape. He was convicted on 18 January 2001, after a trial before Deputy Judge Whaley and a jury, of five of the six counts. He was sentenced to a term of 13 years' imprisonment in respect of each count, to run concurrently; a total, in other words, of 13 years.

3The 1st Count reads as follows:

AU Yang-bo, on the 22nd day of December, 1988 at an abandoned hut in Tze Ku Wan Squatter Area, Kwai Fuk Road, Kwai Chung, New Territories, Hong Kong, together with NG Koon-tai and YUNG Mo-ping, raped CHONG Man-mei.

4Each of the subsequent counts is set in the same terms but to allege a rape on a different occasion, albeit on the same day.

5The facts, very broadly, were that the complainant was a girlfriend, it seems, or so she thought, of one of the named men, Yung; and he lured her to this hut into which burst the two other men, including the applicant, and there then took place a series of rapes, by which each man took his turn in forcing himself upon the complainant, to perform indecent acts and to have sexual intercourse. Only this applicant was on trial, the others having pleaded guilty on another occasion. The complainant's account placed the applicant as the leader of the activity by which he had directed the others, and also spoke to her telling her that she would have to work as a prostitute, and threatened to burn her home and to cause trouble to her family if she did not agree. The events themselves spanned some six hours or so. They took place in a hut in Kwai Chung. It was accepted that there was no lighting switched on in the hut, but there was light coming from outside sources, into the details of which it is not necessary to delve. The complainant gave evidence about the events, and about the opportunity which she had to observe the applicant.

6After she was released, she reported the matter to members of her family and on the following day the complainant's brother found two of the men, not the applicant, and took them to the police. The applicant left Hong Kong in January 1989, and he did not return to Hong Kong until 26 October 1999. He was then arrested, at which stage he told the police that he was known as "Por Chai" a name or nickname which happened to coincide with the name of the man whom the complainant said had raped her with the other two. There was an identification parade on 11 February 2000 at which the complainant identified this applicant in an identification parade of nine men.

7The applicant did not give evidence at trial and the issue - the judge called it the burning issue - was identification. The question of identification was dealt with very fully, and with all the appropriate warnings, by the trial judge.

8The applicant says that he failed to file his application in time because he was unfamiliar with legal procedure. This is not a good reason and no reason is shown why we should entertain this application out of time. We have had regard to the substantive points he raises on appeal, but they are without merit.

9First, he says that the trial judge misled the jury. We have read the summing up and there is nothing in the summing up which would warrant disturbing this conviction. Then the applicant says that the DNA evidence showed that he, the applicant, was not the person with whom the complainant had contact. There was DNA evidence, but it did not show what the applicant now contends. There was stains made by body fluids on the complainant's jacket, and they showed that the donor of the stains could have been the applicant, or the complainant, or any one in six of the local population. The DNA analysis did not exclude the applicant as a possible source of contact.

10He then points out, quite correctly, that it was 11 years between the offence and the identification parade, and he asserts that the complainant might have made an error. Coupled with this is an attack on the fairness of the parade, and a suggestion that the inspector in charge deliberately placed himself in front of the applicant, so as to hint to the complainant who the culprit was. This is not a point that was suggested by counsel at trial. Moreover, we note that the applicant had the benefit of a lawyer present at the parade itself. We have watched a video tape of the relevant part of the identification parade. There is nothing in the point.

11In the circumstances this application for leave to appeal out of time is dismissed.

Representation:

Applicant in person

Ms Lynda M A Shine, SGC of the Department of Justice for the Respondent