HKSAR v. Wong Chi Wan

CACC 156/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 156 OF 2005

(ON APPEAL FROM HCCC NO. 198 of 2004)

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BETWEEN

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Before:   Hon Stuart-Moore VP, Stock JA and Lunn J

Date of Hearing: 21 February 2006

Date of Judgment: 29 March 2006

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.On 22 March 2005, following a trial before Pang J and a jury, the applicant was convicted of rape.  He was sentenced on the following day to 7 years’ imprisonment.  The applicant now seeks leave to appeal against conviction.

2.The applicant’s case at trial was that the act of sexual intercourse had been initiated by the complainant and was consensual.  Consent was the sole issue of any importance at trial.  The determination of the case was, therefore, heavily dependent on the view that the jury formed about the complainant’s credibility.

The facts

3.The complainant was the applicant’s domestic helper.  She alleged that the applicant raped her in his bedroom at knifepoint during the morning of 22 April 2004 while the applicant’s wife (Madam Lau) and children were absent from the family home.  The incident lasted about fifteen minutes and afterwards, when the applicant went to the bathroom, the complainant put her clothes back on, returned to her room to collect some of her possessions and left.  She immediately went to the Ngau Tau Kok MTR station to report the rape using the 999 system.  She followed this by making a further telephone call at about 11:30 am to her employment agency.  The police arrived while she was relating her complaint to PW2 at the agency.  She was then taken to the police station where she gave a statement.

4.The applicant was arrested at 2:30 pm on 22 April 2004.  Immediately, he responded to the allegation of rape by saying, in effect, that consent had been given to the act of sexual intercourse.  Later, when he was interviewed, he claimed that he had heard the complainant crying in her room, which he believed was because his wife had scolded her earlier.  He offered words of comfort and then returned to his room to change his clothes.  While there, the complainant came into the room and hugged and kissed him.  She removed all her clothes except her brassiere and they then had sexual intercourse.

5.There are two other pieces of background evidence called by the prosecution to which, for the purposes of this application, it is also necessary to refer.  The first of these came from the applicant’s daughter (Christie), aged eleven, who gave evidence about a telephone conversation with the complainant two days after the alleged rape.  The complainant spoke to Christie at about 2:00 pm on 24 April 2004 who said that the complainant asked her:

“Daddy home?”

Christie replied that he was at the police station.  The complainant then said to her:

“If you want your daddy [to] come out, please call me, please give your mother’s number.”

She then provided her mother’s mobile telephone number.

6.The other piece of evidence related to Madam Lau, who testified to the effect that she had had a noisy argument with the complainant during the morning of 22 April which awakened the applicant who then came out of his room and intervened.  More importantly for present purposes, she went on to describe how she had found a letter written in poor English in the complainant’s luggage which set out a number of complaints about the way she had treated the complainant.  The letter also revealed that the complainant appeared to be experiencing financial difficulties.  Madam Lau made a photocopy of this.

Defence case

7.The applicant, when testifying, adopted the answers he had given to the police in his interview as well as his immediate response to the police on arrest in which he had asserted that the sexual intercourse had taken place with the complainant’s consent.  In advancing a defence of consent, Senior Counsel at trial also drew attention to several aspects of the evidence given by the complainant which were, he suggested, capable of showing that she had not told the full truth and may have invented a false allegation of rape.

Grounds of appeal

8.Six substantive grounds of appeal were raised.

(1)   Summing up the defence case

9.Mr Tolliday-Wright, who did not appear in the court below, made a number of complaints in his 1^st ground of appeal about the adequacy of the directions given by the judge on matters related to the presentation of the case for the defence, submitting that these were insufficient.

10.The first of these criticisms was that the judge had “failed fairly to summarise” the applicant’s testimony at trial and the contents of his video-recorded interview.  No application has been made on the applicant’s behalf for a transcript of the evidence he gave.  This is not said as a criticism as it is accepted that the applicant adopted the account he gave to the police.  It is not, therefore, surprising to find that when the judge summed up to the jury, he focused very largely on the contents of the interview which had been reduced into written form for the jury’s benefit (Exhibit P41A).  The judge dealt with this evidence immediately after he had summarised the testimony of the complainant saying that the applicant’s evidence was “in direct contradiction” of her account.

11.Whilst it is true, as Mr Tolliday-Wright illustrated in some detail, that the judge did not take the jury through every part of the account given by the applicant it was a summary which, in our view, sufficiently covered the material contained in the interview, added to which the jury not only had their own copies of the interview but were also told by the judge during the summing up (page 14) that they would be provided with the equipment to view the video-recording of the interview again if they so desired.

12.Mr Tolliday-Wright next suggested that the fact that the fruit knife, which was allegedly held by the applicant at the time of the rape, was not produced at trial should have been the subject of comment by the judge, in favourable terms to the defence.  However, we observe that Mr Kwok SC, who represented the applicant in the court below, made no adverse comment about the absence of the knife in his final speech and it is difficult to see how this could have been a point of any substance in favour of the defence.

13.More significantly, the next criticism under this ground was that the judge had failed to remind the jury about the evidence which, on the defence case, supported the allegation that the applicant had been ‘framed up’.  It was submitted that this was supported firstly by the uncontradicted evidence of the applicant’s daughter, Christie, in relation to the telephone conversation she had with the complainant on 24 April 2004 when the complainant rang her to ask for her mother’s mobile telephone number if she wanted her father to “come out” (see: paragraph 5 above).  The transcript of the summing up confirms that the judge merely reminded the jury about this conversation without any elaboration.  The defence had relied on this conversation as evidence which was inconsistent with an allegation of rape, thus supporting the contention that the complainant had made up a story to get the applicant into trouble.  The judge did, however, remind the jury that the complainant testified that she had rung Madam Lau’s number several times without succeeding to speak to her and that she had accepted that on 28 April 2004 she sent a text message to Madam Lau which read:

“See you in the morning in front of the Hongkong Bank in Central at 10 o’clock if you want to talk to me.”

The complainant stated that this was done with a view to discussing the collection of her belongings from the family home at Sau Mau Ping.  The judge did not go on to remind the jury that the defence case had been that a proposed meeting near the Hongkong Bank in Central was because the complainant hoped to extort money from Madam Lau.

14.The second, and perhaps more significant, complaint under this aspect of the 1^st ground, related to the way in which the judge dealt with the evidence of Madam Lau, the applicant’s wife, about the finding by her of a letter (Exhibit D1) in the complainant’s luggage.  This revealed, Mr Tolliday-Wright argued, a motive on the complainant’s part to have made up a false accusation against the applicant.  As to this, again the judge’s directions had been brief.  He merely reminded the jury that:

“… When asked about her feelings towards Madam Lau, she said, although she treated her badly sometimes – sometimes she would shout at her, scolded her very often – she did not hold it against her.  Throughout, she was trying to improve herself.

Mr Kwok in the cross-examination brought out this letter that was written in rather poor English.  She was asked whether she wrote this letter.  She denied that she wrote such a letter and she also told us she never instructed anybody to write this letter.” (Appeal bundle p. 12)

15.The complainant had been cross-examined about the letter in which it seemed she had recorded her complaints about Madam Lau.  She denied having written it or that she had instructed anyone else to do so although she accepted that some of the details recorded in the letter were accurate and could only have been known to her.  This denial was described by leading counsel for the defence as an “insult to [the jury’s] intelligence” and the plainest implication behind this comment was that the complainant was someone who was not to be believed.

16.Perhaps equally to the point, the letter also provided some evidence, on which the defence had relied, that the complainant might have a motive, stemming from her dire financial straits, to try to gain financially from the applicant’s family.  Madam Lau, the letter recorded, had given her a warning letter indicating that she may have to go home.  In poor English, the effect of the letter went on to state that before she went home she had “so many loan and credit” to repay.  The letter referred to the largest of the loans amounting with interest to $44,000.

17.Mr Reading SC, for the respondent, submitted that the omission by the judge to summarise some of the salient points made by the defence had to be looked at in the context of a trial which had only lasted about six days where the summing up followed immediately after the final speech for the defence when all these matters had been canvassed by leading counsel.  It was submitted that it was sufficient for the judge in such circumstances to refer to the speeches of counsel at the commencement of the summing up by directing the jury that:

“What [counsel] said is not evidence and is not binding on you.  They are merely the views of counsel on the evidence.  You will reject the points they made if you do not agree with them.  Or you may find them useful in assisting you to come to your conclusion.” (Appeal bundle p. 1)

18.Conceding that the complainant’s credibility was central to the case, Mr Reading pointed out that at the outset of the summing up, the jury had been given the standard direction on the approach they were to take in this regard.  He contended that it was of little consequence that the judge had omitted to direct the jury, in relation to the letter (Exhibit D1), that the complainant might have been motivated to make up an allegation against the applicant out of vindictiveness because the jury had ample material already before them from which to conclude that the complainant was unhappy with Madam Lau.  As the judge reminded the jury (page 8), Madam Lau had spoken in critical terms about the complainant to the agency who had sent her to work for the applicant’s family.  In addition, the complainant described Madam Lau as “always angry” and scolding her “all the time” even for minor mistakes and “sometimes for no reason at all” although she described her relationship with the applicant to whom she hardly ever spoke as being “okay”.

19.We have indicated already that the judge’s review of the defence case was, in effect, no more than a summary of the applicant’s account given to the police.  Nowhere in the summing up was the main thrust of the defence explained to the jury.  We would, with respect, at least have expected the jury to have been told that the defence case was that a false allegation of rape had been made by the complainant and that there were various pieces of evidence which the defence suggested might support the view that the allegation was a false one.  In this regard, the defence had placed great emphasis on Madam Lau’s treatment of the complainant which had led the complainant to believe she might lose her job coupled with the fact that she was heavily in debt.

20.As to the complainant’s credibility and the applicant’s consistency in his account, we would have expected the judge to say something along these lines:

‘The defence point to the fact that immediately the allegation of rape was made known to the defendant by the police, he admitted that there had been sexual intercourse but asserted that it was consensual.  They say that he has not changed his story from beginning to end.  The defence also say that there are several reliable indicators that the complainant is not a truthful person and, furthermore, that she may well have had a motive to cause distress and damage to her employers.  Those indicators, they say, include her denial that she wrote the letter which the accused’s wife has produced.  You may think, that this letter must have been written by this complainant.  If that is your conclusion, you will need to ask yourselves why the complainant has denied doing so.  Does it mean that her account of the events of 22 April 2004 cannot be relied upon or does it mean that she is seeking to play down her poor relationship with Madam Lau?  If the latter, are you satisfied that nonetheless her allegation of rape is true?  The defence also point to the content of the telephone call to the applicant’s daughter which was followed by the text message to Madam Lau inviting her to meet the complainant at the Hongkong Bank.  Why meet at the bank if the intention was merely to discuss the return of her luggage?’

21.Nothing of this kind was said.  All the jury was left with was a summary of the answers given by the applicant to the police which, although crucially important to his case, failed to provide an overview of the case as it had been presented to the jury in the light of all the testimony given by the prosecution and defence witnesses.

22.Plainly, there is some substance in this ground.  It is made stronger by ground 2A to which we shall shortly turn.

(2)   Approach to evidence of ‘recent complaint’

23.In the 2^nd ground of appeal, Mr Tolliday-Wright submitted that the judge gave erroneous directions to the jury about the approach to be taken to the evidence given by PW2 whose testimony covered the complainant’s allegation immediately after she had reported the alleged rape to the police.  The judge’s directions, which closely followed the Specimen Direction issued by the Judicial Studies Board both in Hong Kong and in England on ‘recent complaint’ for cases involving a sexual offence, were as follows:

“… You must treat the evidence of [PW2] along these lines.  The gist of [PW2’s] evidence was that, shortly after the alleged incident of rape, [the complainant] made a complaint to [PW2].  This is not evidence as [to] what actually happened between [the complainant] and the defendant because of the simple fact that [PW2] was not there at the time of the alleged rape.  She did not see what happened between the defendant and [the complainant].  However, it is evidence which you are entitled to consider because it may help you to decide whether or not [the complainant] had told you the truth.

The prosecution says that [the complainant’s] complaint to [PW2] is consistent with her account and it is therefore she is more likely to be truthful.  On the other hand, the defence says this is a well-orchestrated series of performances by [the complainant], that is all part of the act of accusing the defendant of raping her.

Members of the jury, it is for you to decide whether the evidence of this complaint helps you to reach a decision, but it is important that you should understand that the complaint is not independen[t] of what happened between [the complainant] and the defendant and it therefore cannot, of itself, prove that the complaint is true.  You must bear that in mind.” (Appeal bundle pp. 16-17)

24.The error which it was alleged the judge had made was to tell the jury that PW2’s evidence “may help you decide whether or not [the complainant] had told you the truth” when the jury may have taken this to mean that PW2’s evidence provided a measure of corroboration for the complainant’s testimony.  All that we need to say is that if this phrase had stood alone, there might have been some force in the argument.  However, in the context in which those words were spoken, the judge had made it clear to the jury that the evidence of complaint was solely related to the consistency, and thereby to the truthfulness, of the complainant’s account.  The jury was plainly told that the complaint “was not evidence as [to] what actually happened” between the complainant and the applicant because PW2 had not been present when the alleged rape took place.

(2A) Approach to ‘mixed’ statement made by the applicant on arrest

25.There was, however, a more important aspect included by Mr Tolliday-Wright in the previous ground about which it was very properly conceded by Mr Reading that a material error had been made by the judge.  As this had no bearing on the evidence relating to recent complaint, and should have been made the subject of a separate ground altogether, we propose to treat this as an independent ground of appeal.

26.On arrest, it was an admitted fact which was before the jury in writing that the applicant had said to a police officer:

“I did not rape her.  She did it with me of her own free will …”

27.When reminding the jury about this evidence, the judge went on to say:

“… In law, what the defendant said is just the reaction of the defendant at the time when he was accused by the police officer of the offence of rape.  It is not the truth of what is stated therein.  There is just the defendant’s reaction.” (Appeal bundle p. 14)

28.Mr Reading accepted that the applicant’s statement, albeit a denial of rape, implicitly amounted to an admission on the part of the applicant to an essential ingredient of the offence by his concession to having had sexual intercourse with the complainant.  As such, this was a ‘mixed’ statement, being partly exculpatory and partly inculpatory.

29.The direction given by the judge as to how the jury were to approach the applicant’s reply appears to have been taken from the Privy Council’s decision in R v Leung Kam-kwok [1985] 81 Cr App R 83 which has long since been disapproved (see also: R v Duncan [1981] 73 Cr App R 359; R v Sharp [1988] 1 WLR 7; HKSAR v Poon Hoi-wing [2001] 1 HKC 363; Archbold Hong Kong [2005] paragraphs 15-107 to 15-109).  Plainly, the exculpatory element contained in the applicant’s reply was evidence of the truth of what was said, although it might not carry the same weight as the inculpatory part.  In telling the jury that it was not evidence of the truth, the judge was in error.  The assertion that there had been consent was evidence which the jury was entitled to take into account and to give such weight as they considered fit in the context of the admission contained in the answer and the evidence as a whole.  At the very least, it showed consistency in the applicant’s account and could be as much regarded in this light as the account given by the complainant to PW2 whose evidence the prosecution had put before the jury to show, as the judge rightly told the jury, that it was:

“… consistent with her account and it is therefore … more likely to be truthful.” (Appeal bundle p. 17)

30.It is not easy to say what the jury would have made of the judge’s direction in relation to the applicant’s assertion to the police officer that:

“It is not the truth of what is stated therein.  There is just the defendant’s reaction.” (Appeal bundle p. 14)

Although someone trained in the law might understand what the judge was trying to say, we venture to suggest, with respect, that this would have been a practically meaningless direction to a lay jury.  On any view, however, this was a material misdirection.  The applicant’s reply was evidence which the jury could consider as evidence of its truth and they were entitled to take this into account when deciding whether there had been consent.  However, the jury was given the opposite impression.  Furthermore, we observe that the judge gave no direction to the jury as to the consistency of the account he had given to the police when compared to his evidence at trial which had involved the adoption of all he had said to the police after his arrest.

The proviso

31.Accordingly, we invited Mr Reading to address the question as to whether we could, in such circumstances, apply the proviso contained in section 83 of the Criminal Procedure Ordinance, Cap. 221.  Our particular concerns were that whereas the prosecution had been given the benefit of directions regarding the consistency of the complainant, no equivalent direction had been given on behalf of the applicant and that what was said by the applicant at the time of his arrest was evidence not only of consistency but of the truth of what was stated by him whereas the jury were effectively told to ignore it.

32.Bearing in mind, as we have said, that the crucial issue at trial was concerned with whether the prosecution could establish a lack of consent on the part of the complainant to the act of sexual intercourse, we have taken time to look carefully at the way the evidence given by the applicant was summarised by the judge in order to gauge the balance of the summing up.

33.At the commencement of the summing up, the judge (at pages 3-4), having dealt with the burden and standard of proof, went on to describe the evidence on which the case alone had to be decided.  Amongst the exhibits, which the judge suggested the jury should “take time in going through”, was the record of the applicant’s interview.  The judge then invited the jury to consider “whether, and if so, how the various pieces of evidence fit together to build a picture”.  A short while afterwards, the judge said:

“You may also like to test the evidence of one witness against the evidence of another, or other, witnesses.  You may like to test the evidence against the documents or the exhibits produced and see whether the particular piece of evidence is consistent or inconsistent with the others.  That is the sort of exercise you may like to do when you consider the evidence of this case.” (Appeal bundle p. 4)

From this, it would have been apparent to the jury that evidence showing consistency was to be regarded by them as important, whether called by the prosecution or the defence.  However, this cannot be said to have cured the misdirection covered by ground 2A as the jury had, as we have said, effectively been told to ignore the applicant’s immediate reaction on his arrest because they were told this was not evidence of the truth of what had been stated by him.

34.After the judge had dealt with the complainant’s evidence, he turned immediately to the applicant’s account which he described as being “in direct contradiction” and he reminded the jury (page 13) that while the applicant did not deny having had sexual intercourse with the complainant, “the defendant does not have to prove there was consent”.  The jury was also told (page 14) that the applicant had “adopted the contents of the video interview as his evidence”.  When the judge turned to the contents of the interview, he referred to a selection of the most important answers given by the applicant by reference to the counter numbers appearing at the side of the page and a synopsis of the replies given.  These answers formed the nub of the defence case.  A little later the judge gave the following directions:

“… You have to look at his evidence carefully.  After going through his evidence, you may come to the conclusion that he was telling you the truth, or that he may be telling you the truth.  If that is the case, then he must be acquitted of the rape charge because the prosecution have failed to satisfy you beyond reasonable doubt on the element of lack of consent.” (Appeal bundle pp. 19-20)

35.Neither before nor after these directions, as we have earlier indicated, did the judge attempt to draw together the main thrust of the defence so far as it had been said by the defence to undermine the complainant’s credibility on the one hand and to demonstrate the applicant’s consistency on the other.  In one sense, the applicant’s consistency might be regarded as obvious.  However, great emphasis had been placed on the complainant’s consistent conduct yet, when it came to the defence case, nothing was said to balance this.

36.We do not suggest that the summing up, when read as a whole, in any deliberate sense favoured the prosecution.  Indeed, when directing the jury on the standard of proof, the judge had gone beyond the usual formula to be found in the Specimen Directions issued by the Judicial Studies Board by adding that if the jury thought the applicant was “probably guilty, this is not guilt” (page 2).  No such formula is to be found in the Specimen Directions and, in order not to create confusion in the mind of the jury as such a comment is likely to do, it is better that judges adhere to the suggested form of words rather than adding phraseology of their own.

37.In all the circumstances, we have concluded that it would not be appropriate to apply the proviso as we cannot be sure that a jury, properly directed, must inevitably have reached the same verdict.

38.In these circumstances, we do not need to consider three other grounds of appeal which, it suffices to say, were in our opinion without merit.

Conclusion

39.We shall give leave to appeal having regard to the arguments raised under grounds 1 and 2A.  Treating the hearing as the appeal, we allow the appeal and quash the conviction and sentence for rape.  The applicant is granted his costs, to be taxed if not agreed, for the trial.  In addition, his down payment of $1,000, on being granted legal aid for the purposes of his appeal, is ordered to be repaid to him.

40.Having heard the submissions of counsel, we order a retrial on a fresh indictment for rape and bail is granted on the terms set out in the bail form.

Mr John Reading, SC, DDPP, and Ms Lily Wong, SGC, of the Department of Justice, for the Respondent.

Mr David Tolliday-Wright, instructed by Messrs Chan & Tsu, assigned by Director of Legal Aid, for the Applicant.