Akhlaghfar Shahriyar and Another v. The Queen

CACC000491/1980

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Coram: Huggins, McMullin and Li, JJ.A.

Date of Judgment: 20th August 1980.

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JUDGMENT

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Huggins, J.A.:

1. This appeal against convictions came before the Court of Appeal upon a reference by Liu, J. The Appellants were convicted on identical charges of unlawful sexual intercourse with a girl under the age of sixteen years.

2. A question first arose as to the jurisdiction of the court to hear the appeals by reason of the fact that the recognizances, required under s.114(c) of the Magistrates Ordinance, to prosecute the appeal with diligence, to abide by and duly perform the order of the judge or of this court and to pay such costs as might be awarded against the Appellants were not entered into within ten days after the notice of appeal was given. They were in fact eight days late. There has been a series of decisions to the effect that the requirement of s.114(c) is mandatory and that unless it has been complied with the appellate court has no jurisdiction to hear the appeal. Mr. Bleach was prepared to contend that those cases were wrongly decided and that the requirement was directory only, but both counsel were anxious that the Appellants should not be frustrated by a technicality of this kind and they invited the court to allow the appeal to be withdrawn and to entertain a new appeal out of time upon an undertaking to comply with the provisions of s.114 within the times prescribed. We were hesitant about adopting a course which might be regarded as a precedent for evading a statutory requirement, but decided that the circumstances of this case justified it.

3. The grounds of appeal were set out in three parts, Parts II and III involving complaints about the keeping of the record and about alleged discrepancies between the oral reasons given by the magistrate at the time the verdicts were returned and the written reasons filed pursuant to s.114(b) of the Magistrates Ordinance. In the event we heard argument upon only those grounds contained in Part I.

4. This was, no doubt, a difficult case for the magistrate to decide. These sexual cases frequently are and it is because of the risk that a girl may fabricate a case against an innocent man that the law insists on a warning of the danger of convicting in the absence of corroboration. In this case there was no corroboration of the kind which the law looks for and no confirmation, even, of the girl's own evidence that sexual intercourse had taken place. Nevertheless, if it were apparent that the magistrate had throughout directed himself correctly his verdicts might have been unassailable. In the event there were errors which led us to allow the appeals.

5. The evidence was that an English girl aged fourteen years and four months travelled unaccompanied from London to Hong Kong by air. Her parents had separated, her mother being in England and her father in Hong Kong. She was conducted to Heathrow Airport by a friend of the mother. It is relevant to the case that the girl had in her possession on arrival in Hong Kong a pornographic book. Her evidence was that it had been bought for her by this friend, but we have only her word as to that. She had to change flights in Paris and this no doubt involved a wait at the Charles de Gaulle Airport, but we do not know the length of that wait. She said that she "spoke to lots of people" while she was there. Although this does not appear from the notes of evidence the magistrate found that the Appellants boarded the same flight in Teheran. There was a stop at Delhi and the Appellants spoke to the girl after leaving there. The 2nd Appellant played cards with her. The father was waiting for her at Kai Tak but somehow the girl left the airport without meeting him. She left with the Appellants and accompanied them to a hotel. It is said on both sides that the Appellants had said they would help her to enquire for her father and the magistrate accepted that on arrival at the hotel they did make some not very intensive enquiries which were unsuccessful. The Appellants went to a business meeting and left the girl in their room. Later all three went for a walk round the shops. The girl became footsore and was taken back to the hotel. According to the Appellants the two of them went out again to do more shopping and returned to find the girl asleep. Her evidence was that they did not go out again that day and that they both had sexual intercourse with her before they all went to sleep for the night. Next morning they all went to breakfast together, went for a walk and she then returned to the hotel room. There she heard on the radio that she had been reported missing and she made her way to a police station, which in fact was only about forty yards away from the hotel. She made a report to the effect that she had spent the night with two Iranian friends. Her father saw her there and the two of them went with a policewoman by car to Argyle Street Police Station in Kowloon. On the way the father started asking questions but the policewoman requested him to leave matters to her. At the Argyle Street Police Station she made a report to the effect that she had spent the night with two Iranian friends. The father read this report and he asked the girl whether they had touched her. When she replied "No" he said that he did not believe her. After that she said that the men "had forced relations with her". Later the girl made a statement in which she said that the 1st Appellant had had sexual intercourse with her, but she made no allegation against the 2nd Appellant. The father read that statement and told her that he did not believe that either. Subsequently she made a second statement in which she implicated the 2nd Appellant also. On the following day she was examined by her doctor, who found a tear in her hymen which he estimated to have occurred forty-eight to seventy-two hours earlier. There were some bloodstains when he took a vaginal swab, but no sperm. He was unable to say whether the blood was menstrual blood.

6. If the girl's final story was true, it was ample evidence upon which to found the convictions. Obviously her credibility was open to attack on several grounds, but it was for the magistrate to decide whether he could safely rely upon her evidence. In deciding that her evidence was "consistent and entirely credible", it is submitted that he made several errors. On at least one point, namely whether they had made enquiries immediately on arrival at the hotel with a view to tracing the girl's home, the magistrate expressly preferred the evidence of the Appellants to that of the girl, but perhaps the most serious error was his finding that the doctor "confirmed that the complainant had sexual intercourse at or about the time alleged by her". In the first place the doctor did not confirm that the girl had had sexual intercourse at all : at best his evidence was that the tear in her hymen could have been caused by sexual intercourse. Secondly, his evidence was that the tear had been caused forty-eight to seventy-two hours before the examination whereas the girl's evidence was that the Appellants had had intercourse with her about thirty-six hours before. In truth the doctor's evidence showed no more than that the girl's allegation of sexual intercourse could be true if one were able to discount the time element on the basis that the doctor's estimate of time was necessarily approximate.

7. The father's understandable but unfortunate attitude towards the girl's statement made it particularly important for the magistrate to show that he had considered the full extent of the danger that her final story was a result of her anxiety to please him. Rightly or wrongly the father suspected that the Appellants had defiled his daughter and the thought greatly angered him. She cannot have been unaware of his displeasure. What the magistrate found was

"that the complainant had not been influenced by her father before making her second statement to the police. I accepted his evidence that when he had attempted to question his daughter between statements that [sic] he desisted when asked by a policewoman to leave it to her".

The proximity of these two sentences in the same paragraph is significant, because it suggests a continuity of thought. In truth the father's own evidence was that his attempt to ask questions and the intervention of the policewoman was not "between statements" but on the way to Argyle Street Police Station and before the first statement was made.

8. It was quite impossible on the evidence to find that the girl had not been influenced by her father before making her second statement and there was a strong probability that she had been influenced by him on two separate occasions, the first when he said he did not believe her first report at the Argyle Street Police Station and the second when he said he did not believe the first statement. The important question was not whether she had been influenced but whether the influence resulted in her telling the truth rather than falsehood. It is certainly not clear that the magistrate appreciated this. He then emphasized the consistency between the second statement and her evidence in court. That there was consistency cannot be gainsaid, but with respect to him it was of much greater importance to emphasize and to explain both the inconsistency between the second statement and the first statement and also the very different tenor of the original report. We do not suggest that they were not explicable, but it was essential that the magistrate demonstrate that he had seen their relevance and had given them as much consideration as he had apparently given to the consistency between the second statement and the girl's evidence.

9. Taking all these matters into consideration we thought the verdicts were unsafe and unsatisfactory.

20th August 1980.

Representation: