HKSAR v. Kwok Wai Chau

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.502
(Criminal)

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Coram: Hon. Power, V.-P., Mayo and Stuart-Moore, JJ.A.

Date of Hearing: 6 May 1998

Date of Delivery of Judgment: 5 June 1998

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant faced one count of rape, it being alleged that he, together with Tsang Yat-ming (D1 at trial) on 9th October 1996 at Nai Chung Bus Terminus opposite Sai O Village, Sai Kung, together with another person, raped Shin Lai-ching. He was convicted after trial before Deputy Judge Whaley and a jury and sentenced to imprisonment for six years. D1 was acquitted. He now seeks leave to appeal against that conviction.

2. The evidence of the victim as set out in the summing up was that she had on occasions prior to October 1996 worked as a nightclub hostess. On the evening of 9th October 1996, D1 telephoned her and asked her to come out for drinks. At that time she had a boyfriend, Lau Kim-huat, and she discussed this with him. He said that it would be alright provided she did not stay out too late. She was picked up by D1 in his motorcar and she and D1 went to the ABC Bar in Austin Road where they were joined by the applicant and a person called Ah Kin. She said that she took soft drinks and then later alcoholic drinks and that when they left the bar at about 1 a.m. she agreed to go for a joyride. Eventually the joyride led to Ma On Shan. The applicant touched her breast on four occasions but she pushed him away. She was sick during the journey and fell asleep. When she woke, D1 was still in the driver's seat but the applicant and Ah Kin were outside the car chatting. The applicant then entered the car, pulled down her underpants, removed his pants and put his penis into her vagina. She tried to push him away but was not successful, she told him to stop but he did not listen, she continued to try to push him away, but in vain, until eventually he withdrew his penis, put on his pants, got out and talked to Ah Kin. She was putting on her pants when Ah Kin came into the car, pulled down her pants, used his hands to separate her legs, removed his pants and inserted his penis into her vagina. She pushed him away as well and told him to go away but he took no notice and continued what he was doing. The applicant and Ah Kin then suggested to D1 that they leave and he drove off. On the way back to Kowloon, she heard her mobile phone ring, answered it and found that her boyfriend was on the line. He asked where has she been. She was crying and very frightened and said that she did not know and was frightened and had been molested. Her boyfriend asked her to pass the phone to one of her friends and she twice passed it to the applicant who simply hung up. The third time she passed it to D1 who spoke to her boyfriend. He then spoke to her again telling her that D1 would take her back to Austin Road. She was dropped in Austin Road and then paged her boyfriend who came to pick her up. When her boyfriend arrived she was crying. She told him that she had been harassed by which she said she meant "raped" and that he understood that that was what she meant. When he saw her crying he told her to tell him the story in detail when they got home.

3. The boyfriend gave evidence saying that on the evening in question when the victim was not home before 2 o'clock he rang her mobile phone. At first he got no answer but then, at about 2:40, he finally got through, heard his girlfriend crying severely and then the telephone was hung up. He telephoned her again, spoke to her asking where she was. She told him she had been molested or harassed and he understood this to mean that she was saying she had been raped. She said she did not know where the place was but that it was dark, in the New Territories and very quiet. Eventually he was put on to one of her friends and asked him to drive her back to Austin Road. At 3:18 a.m. the victim paged him and asked him to pick her up. He went immediately to Austin Road where he found her crying and she told him that she had been raped. He agreed in cross-examination that in his first witness statement to the police he had said that the victim had told him that she was raped by Ah Kin at the rear seat, that Ah Ming was responsible for driving and did not rape her, and that Ah Chau did not rape her as she was menstruating but that he had assaulted her indecently. This was contrary to his evidence in chief in which he said that she had told him that she had been raped by both Ah Kin and Ah Chau. He said under cross-examination that it was impossible that he had ever been left by the victim with the impression that she had been raped by only one person.

4. The applicant gave evidence saying that he had had intercourse with the victim in the car and that she had been a completely willing party. During intercourse and thereafter, her demeanour was normal and at no time did he hear the mobile telephone ring while they were having intercourse. Ah Kin had never at any time had sexual intercourse with the complainant. On the return journey her mobile telephone rang, she answered it, he heard her say that she was in the New Territories and did not know where. She had never passed it to him but she did pass it to the first accused. When she was dropped in Austin Road she did not in any way appear to be crying or upset.

5. The judge warned the jury in clear terms that the complaints were not evidence that rape had occurred. He told them correctly that that evidence was put before them "simply to support her credibility, to support the credibility of her testimony to you that she had been raped just recently before that, and it is said that it supports her credibility because it is behaviour on her part in the immediate aftermath of what she says took place that is consistent with her allegation that she had been raped".

6. He directed the jury generally as to corroboration saying:

"So, corroboration is simply independent evidence, namely, evidence which does not come from the mouth of Miss Shin, which confirms in some important respect her evidence that the crime has been committed and that it was committed by the accused before you. I say that it should confirm 'in some important respect', because it is not necessary that the independent evidence should be evidence of everything that Miss Shin has told you, simply in some important respect. And, in the present case, the issue, of course, as will be clear to you, members of the jury, is whether when sexual intercourse took place between the second defendant and Miss Shin, whether that took place without Miss Shin's consent and whether the second defendant knew that it was without her consent or was reckless as to whether it was without her consent. So the corroboration in the present case would have to be corroboration confirming or which tends to confirm that matter, that the sexual intercourse took place without the consent of Miss Shin."

7. The judge gave the following direction regarding the evidence capable of being corroboration:

In relation to the 2nd accused, you will recall what I told you about corroboration, that it is dangerous for you to convict on the evidence of the complainant alone unless her evidence is corroborated, namely, confirmed in a material respect by some independent evidence, that is, evidence other than from the mouth of Miss SHIN herself. It is for me to point out to you which evidence, as a matter of law, is capable of being corroboration, that is, capable of independently confirming her evidence.

Now, there is one piece of evidence, members of the jury, which may, depending on what your factual findings are in relation to it, it may constitute corroboration of her evidence, and that is the evidence of the complainant's distressed condition at the time her boyfriend picked her up. That evidence is capable, in law, of constituting corroboration of her evidence provided - and this is an important proviso - provided that you are sure that the distress on her part was genuine.

So you should consider very carefully all the evidence in relation to that distress. You will remember there is the evidence of Miss Shin, who said that she was crying in the car, right from that point in time, soon after she was raped, and she was still crying when she answered her mobile phone, and she was still crying when they dropped her off, and she was crying when her boyfriend picked her up; the evidence of her boyfriend that she was indeed crying when she answered the mobile phone and when he picked her up in Tsim Sha Tsui; the evidence of both the 1st accused and the 2nd accused that she appeared quite normal at all times in the car, she at no time showed any signs of being upset or distressed, including at the time when they dropped her off at Tsim Sha Tsui. So you should consider all that evidence very carefully.

If you find yourselves unsure or having any doubts whether she was indeed crying and distressed at the time her boyfriend saw her, then there is no evidence which is capable of being corroboration, obviously. If you were to make that finding of fact that she was not crying at all then, as a matter of law, there is no evidence which is capable of corroborating her evidence.

However, if you are sure, after your consideration of the evidence, that she was crying and distressed when she was picked up by her boyfriend, then you must consider whether there is any reason to believe on all the evidence that you've heard that she was feigning it - "feigning" just means "faking it" - so was there any reason to believe that she was feigning or faking or putting on this show of distress.

Only if you are sure that her crying and distress were genuine and that there was no reason for you to believe on all the evidence that she was putting it on, then in those circumstances only is it capable in law of constituting corroboration of her allegation that she had been raped. It will still be for you to decide. I have said that that is capable of constituting corroboration, members of the jury. I can only tell you as a matter of law it is capable of constituting it. The question of fact, whether it did in fact constitute corroboration, is for you to decide. You must decide for yourselves after considering all the evidence whether you are sure that it did provide independent confirmation of her allegations that she had been raped.

And I must also make it clear to you that even if you do find that it did constitute corroboration of her evidence, you should not give this much weight, ladies and gentlemen. It would have carried far more weight if, of course, I am sure you will appreciate, if she was observed to have been crying in circumstances where she had no reason to think that anybody was looking at her. You may think it would carry very considerable weight in those circumstances, but in these circumstances where she clearly knew that her boyfriend was going to pick her up, it carries much less weight.

So these matters get a little confusing, I understand, members of the jury, but the position, if I may summarize it, is that that evidence of her distress is capable in law of constituting corroboration of her evidence that she'd been raped, if you find, and only if you find, that there is no reason to believe that she was feigning or faking or putting on that distress, if you are sure that it was genuine distress on her part. And even if you do find that it did corroborate, that her distress was genuine and did corroborate her evidence, don't give it much weight. Weigh it in the balance, but don't give it too much weight, for the reasons that I have told you."

Ms. Draycott, who appears for the applicant, has argued two grounds:

"1. The learned judge erred in directing the jury that the victim's distress was capable of amounting to corroboration of her allegation of rape against the applicant.

2. In the alternative the learned judge failed to direct the jury that they would have to find as a fact that the victim's distress was solely referable to rape by the Appellant before they could use it to corroborate her evidence."

8. The law is, we are satisfied, correctly stated by Lord Parker C.J. in Alan Redpath, (1962) 46 Cr.App.R. 319 at 321:

"Mr. Harper has argued that the distressed condition of the complainant is no more corroborative than the complaint, if any, that the complainant makes, and that while the latter merely shows that the story is consistent and is not corroborative, so the distressed condition is not corroborative. This court is quite unable to accept that argument. It seems to this court that the distressed condition of a complainant is quite clearly capable of amounting to corroboration. Of course, the circumstances will vary enormously, and in some circumstances clearly no weight, or little weight, could be attached to such evidence as corroboration."

9. In James Henry Knight (1966) 50 Cr.App.R. 122, after referring to his own judgment in Redpath, Lord Parker, at p.125, said:

"Despite what was said in that judgement, there has been a tendency since then for judges to leave to the jury almost every case where a complainant is seen to be in a distressed condition, and in several cases since Redpath, and in particular two cases to which we have been referred, Okoye (1964) Crim.L.R. 416 and the case of Luisi (1964) Crim.L.R.605, I endeavoured to stress that the distress shown by a complainant must not be overemphasized in the sense that juries should be warned that except in special circumstances little weight ought to be given to that evidence."

10. The judge clearly had this warning in mind when directing the jury. He told them that they must be satisfied that the distress was genuine and reminded them that the complainant's distressed condition had occurred in circumstances where she knew it would be observed by her boyfriend. He finally told them in the clearest terms not to give too much weight to the distress exhibited. We have no doubt, subject to the matters raised in ground 2, that distress in circumstances such as obtained here is capable of amounting to corroboration of evidence of rape and that the jury was properly warned as to the weight which could be accorded thereto. The summing up was, in our view, impeccable in this regard.

11. Ms. Draycott, in Ground 2, submits that the distress, even if accepted by the jury as genuine, could have been occasioned by one rape and that it could not, therefore, be regarded as evidence which corroborated the commission of two rapes. This submission involves a misconception as to the true nature of corroborative evidence. The nature of such evidence is set out by Lord Reading C.J. in R. v. Baskerville [1916] 2 K.B. 658 at 667, where he states:

"We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it. The test applicable to determine the nature and extent of the corroboration is thus the same whether the case falls within the rule of practice at common law or within that class of offences for which corroboration is required by statute. The language of the statute, 'implicates the accused,' compendiously incorporates the test applicable at common law in the rule of practice. The nature of the corroboration will necessarily vary accordingly to the particular circumstances of the offence charged. It would be in high degree dangerous to attempt to formulate the kind of evidence which would be regarded as corroboration, except to say that corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused." (Emphasis supplied.)

Lord Reid in D.P.P. v. Kilbourne 57 Cr.App.R. 381 further clarifies the nature of corroboration when he says, at p.409:

"There is nothing technical in the idea of corroboration when in the ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating to the particular matter. The better it fits in the more one is inclined to believe it. A doubted statement is corroborated to a greater or lesser extent by other statements or circumstances with which it fits in." (Emphasis supplied.)

12. Distress is not direct evidence proving that the rape occurred but evidence, as Lord Morris said in D.P.P. v. Hester (1972) 3 All E.R. 1056 at 1065, "to confirm and support" the evidence of the complainant that it did. In the present case the complainant gave evidence that she had been subjected to the indignity of two rapes on that evening and that she was acutely distressed by what had occurred. The boyfriend gave evidence that he had both heard, on the mobile phone, and seen, at Austin Road, that distress. The applicant gave evidence that he had had consensual intercourse with her, that there had been only one act of intercourse on that night and that she was never distressed in any way at all. No question of identity was involved. As was emphasized by Lord Parker in Redpath (supra) every case will depend upon its own circumstances. Does the evidence of distress both on the journey back in the car and at the time when the boyfriend met the complainant give confirmation and support to her evidence that she was raped by the applicant? When answering this question we are mindful that corroborative evidence as defined in Baskerville must do more than give general support to the evidence of a complainant. It must support both her evidence that a crime was committed and that it was committed by the accused.

13. Given that corroborative evidence must confirm and support not only that the offence was committed but also that the accused was the person who committed it, we see considerable force in the contention that distress, while it may corroborate evidence that the offence was committed, cannot, without more, corroborate evidence as to the identity of the offender. Clearly distress can indicate that something very unpleasant has just happened to a complainant but, standing alone, it is certainly arguable that it cannot support evidence of identity.

14. Redpath, decided in 1962, is the authority upon which the modern approach to distress as corroboration is based; no question of identity arose therein - the accused was seen with the child immediately before she was observed to be "in a very distressed condition". In James Henry Knight, decided four years later, Lord Parker, when dealing with evidence of distress standing alone and not linked to any evidence of identity, said:

"Though it may be - I say no more - that this court might have said that there was insufficient corroboration in this case if it (the evidence of distress) had stood alone, it certainly did not stand alone."

15. He then went on to deal with a lie told by the defendant which the court was satisfied was "very cogent evidence capable of amounting to corroboration". It is to be noted that in Okoye and Luisi, both of which were decided in 1964, identity was not an issue as the defence in each case was consent. However, in both cases, the Court of Appeal was satisfied that the evidence of distress was over-emphasized and in each the appeal was allowed.

16. The correct view may well be that distress is a very special category of corroborative evidence which should only be left to the jury as being capable of being corroboration where identity is not in issue. Further that the jury should be told that they must be sure that the distress is not feigned i.e. that it resulted from the incident which constitutes the offence. In the present case, identity was not an issue and the judge directed the jury that the evidence of distress was capable of corroborating the complainant's evidence that intercourse without consent took place and that they must be sure that the distress was not feigned.

17. Miss Draycott, however, argues that, even if the direction correctly reflects the law, it has no application to the present circumstances as the incident complained of involved two rapes. It is her submission that the distress could have been occasioned by either one and that it is, therefore, incapable of corroborating one or the other. This submission loses sight of the fact that it is the complainant's evidence that is being corroborated. The evidence was that the distress exhibited arose out of an incident involving two rapes, one of which perpetrated by the applicant. Was the independent evidence of distress capable of giving confirmation and support to her evidence of that incident? We are satisfied that it was. The judge was, therefore, right to leave, as he did, that evidence to the jury as being capable of corroborating her evidence that the applicant had raped her. The second ground also fails.

18. The application is refused.

19. We wish to add before leaving this matter that we are unable to understand why the requirement for corroboration of the evidence of a complainant in a sexual offence has not been done away with in Hong Kong. It was abrogated in 1994 in the United Kingdom. That this has not been done in Hong Kong is, in our view, inexplicable.

Representation:

Mr. Schapel (D.P.P.) for the Respondent.

Ms. Charlotte Draycott assigned by D.L.A. for the Applicant.