The Queen v. Cheng Chi-keung

CACC001067/1983

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Cons & Fuad, JJ. A.

Date: 9th November 1983

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JUDGMENT

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Fuad, J.A. :

1. This is an application for leave to appeal against a conviction for indecent assault. There is also an application for leave to appeal against sentence. The applicant was indicted for rape. The jury acquitted him of rape but convicted him of indecent assault (by a majority of 6 to 1) whereupon he was sentenced to 3 years' imprisonment.

2. In relation to his conviction, the applicant complains in the following terms :-

"...the Judge cannot change my offence from rape to indecent assault on a woman since I was found not guilty of rape. Actually I had sexual intercourse with a girl with her permission. The girl is under 18 years of age. Therefore I should be charged with the offence of sexual intercourse with a girl under 16.''

3. Since the evidence showed that the prosecutrix was aged 13½ at the relevant time, it was open to the jury, as a matter of law to reach this verdict (s.149 of the Crimes ordinance - Cap. 200 - read with item 1 of the Schedule; and subsection (2) of s.122 of the Ordinance).

4. This is what the Deputy Judge said to the jury on the subject -

"The burden is on the Crown, the prosecution, to prove the charge against the accused beyond reasonable doubt. If you have any doubt on any one of the three ingredients of the offence, you must come back with a verdict of not guilty. If you are satisfied beyond reasonable doubt the accused did have sexual intercourse with the complainant, but at the same time, you believe that she consented or have any reasonable doubt whether she consented or not, it is open to you to return an alternative verdict of guilty of indecent assault.

Now, you have the evidence that at that time, the girl was 13½ years old and the law provides that it is not a defence to a charge of indecent assault committed on a girl under the age of 16. Now consent is not a defence to a charge of indecent assault committed on a girl under the age of 16. So even if she consented, if you believe that or have any reasonable doubt that she consented, it is still open to you to find the accused guilty of indecent assault as the alternative verdict."

We consider that this was a perfectly proper direction on the law.

5. The matter raised by the applicant is directly covered by authority. In R. v. Hodgson on [1973] Q.B. 565, at p.572, Roskill L. J. (as he then was) had this to say -

"It was also said that as a matter of practice it is unjust, where the real charge is rape, to leave to the jury an alternative charge of indecent assault on the ground that the girl concerned was incapable of consent because she was under sixteen. In the view of this Court, it is impossible to generalise. No two cases are precisely alike. In some cases one can imagine circumstances where it might be said to be unfair that if a jury were to acquit on a rape charge on the ground of consent, the accused should be put in peril on an indecent assault charge. But there are undoubtedly other cases, and, in the view of this Court, the present is without question such a case, in which the overall interests of justice require that a charge of indecent assault should be left to the jury as what is sometimes called a "built in" alternative to the rape charge."

6. On the facts which I will presently relate in connection with the other application before us, we find it impossible to say that the overall interests of justice did not justify the alternative and lesser charge being left to  the jury and that the Deputy Judge wrongly exercised his discretion. The application for leave to appeal against conviction is dismissed.

7. In pronouncing sentence, the Deputy Judge told the applicant that the court was bound to impose a sentence which was consistent with the jury's verdict and went on to say that the evidence clearly disclosed conduct which amounted, in addition, to the following offences: impersonation of a police officer, a number of assaults, criminal intimidation and false imprisonment. The Judge added that the offence was carefully planned to lure and force a young girl into prostitution and that he was therefore bound to impose a sentence which would reflect the seriousness of the applicant's conduct and also the strong disapproval of society.

8. The Judge took into account the fact that the applicant (who was just 21 at the time of his conviction) had been previously convicted, in September 1980, of impersonating a police officer and theft, for which offences he was bound over for one year; and that in August 1981 he had been sent to a Detention Centre for robbery.

9. The girl's story was to the following effect: that on the afternoon of the day in question she had gone window-shopping in Tsim Sha Tsui with two school friends. The applicant and a woman had approached them and the applicant had produced something that looked like a warrant card, alleging he was a detective from the Anti-Crime Bureau. She had obeyed the applicant's instructions and gone with him and his woman companion to a staircase outside the building where she was threatened and assaulted by the applicant. The woman had also taken part in the assault. The other two girls were then sent away.

10. According to her account, the prosecutrix was then again assaulted and told that she would be arrested, sexually molested by other detectives while she was in custody and then sent to a girl's home where she would remain until she was 18. She told the jury that all this made her agree to become a "fish-ball girl". After a visit to a "fish-ball stall", where she was told she could not work that night because licences were being checked, she was given a bowl of soup and then taken to an apartment house where she was eventually raped by the applicant. She said that all this time she believed him to be a policeman. She testified that after sleeping in a room with the applicant's woman companion, on the following day the applicant had fondled her breasts. She was then told to telephone home and pretend that she had been out camping. When the applicant realised that a report had already been made to the police, he had sent her home "to cancel" the police report - but to return to work as a "fish ball girl" that night.

11. The girl went home and on the way to report the matter to the police, according to her elder sister, she complained that she had been "caught" by someone the previous night and beaten up and was in great pain. She did hot specifically mention rape. Her sister told the jury that the girl looked haggard and frightened and that her clothes were dirty.

12. Later that day a Forensic Pathologist found that she had bruises and a swelling over one of her eyes, abrasions on her lips and a bruise on her breast-bone. These were consistent with the assaults she had described Another doctor who later examined her said that she could have had sexual intercourse recently.

13. The applicant did hot give evidence or call witnesses at his trial but he had made statements under caution to the police which confirmed part of the girl's version of what took place. These were admitted in evidence after being challenged in a trial within a trial.

14. The matter of sentence has caused us some anxiety and Mr. McNamara for the Crown very fairly conceded that the sentence was one that could hot be supported oh the basis upon which it had been imposed. All that can safely be said about the jury's verdict is that they were hot satisfied that the prosecution had proved that the girl had hot consented. The Deputy Judge could hot have known how much of her story regarding the personation, threats and assaults the jury believed. Nor could he have known what weight, if any, they had given to the applicant's inculpatory statements under caution.

15. As the Judge recognised, a sentence must, of course, be consistent with the jury's verdict. However, where the factual implication of the jury's verdict is ambiguous, the judge is not bound to assume that the jury convicted on the basis of a view of the facts most favourable to the accused. He is not obliged to attempt the process of assessing what the jury's verdict involved in relation to the facts and can reach his own independent determination of the relevant facts. The cases of R. v. Whittle [1974] Crim. L. R. 487 and R. v. Nuttall [1968] Crim. L. R. 173 are examples of the application of this principle.

16. In the present case we do not think that the Judge was justified in sentencing the applicant on the basis that he had indeed impersonated a police officer, falsely imprisoned the prosecutrix and attempted to lure and force her into prostitution. It is true the jury's verdict was ambiguous to a degree, but in the light of the implications implicit in the verdict the ease assumed a very different complexion from that presented by the prosecution and we think that the sentence based on the matters the Judge took into account should not be maintained. However, on any view of the facts, this was a bad case and we think that a sentence of 18 months' imprisonment is appropriate. We therefore give leave to appeal against sentence, treat the application as the hearing, and allow the appeal to the extent of reducing the sentence of 3 years' imprisonment to one of 18 months.

Representation:

Appellant in person

J. McNamara for Crown.