HKSAR v. So Yiu Fung

CACC000546/1997

CACC 546/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 546 OF 1997

(ON APPEAL FROM HCCC 39/1997)

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

Date of hearing: 25 February 1999

Date of judgment: 25 February 1999

Date of handing down reasons for judgment: 16 March 1999

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J U D G M E N T

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Mayo J.A. (giving the judgment of the Court):

1. The Applicant was convicted of one count of rape and one count of attempted rape after a trial before Deputy Judge Suffiad (as he then was) and a jury. He now seeks leave to appeal against these convictions.

2. Particulars of the charges read as follows:

"First Count
Particulars of Offence

So Yiu-fung, on the 28th day of November, 1995 inside the public lavatory at level II, Tai Po Plaza, Tai Po, New Territories, in Hong Kong, raped CHENG Pui-kwan.

On this count, the jury convicted of an attempt only.

Second Count
Particulars of Offence

So Yiu-fung, on the 16th day of September, 1996 inside the public lavatory at level II, Tai Po Plaza, Tai Po, New Territories, in Hong Kong, raped TO Clara."

3. The victim of the 1st count Miss Cheng gave evidence of what transpired on the day in question. She left school shortly after 5:45 p.m. She normally walked home. On this evening she went to the Tai Po Centre to purchase a notebook. She was only in the shop about five minutes. After leaving the shop she discarded some tissue she was holding and aimed at a litter bin. She missed. She did not bother to pick it up and put it in the bin. She was then approached by a young man who identified himself as being an employee of the Urban Council. He alleged that she was guilty of causing litter and that she had to be arrested or booked. He asked her to go and sit down with him on a stone seat at Modern Terrace. He then said that he was reluctant to book her on account of her tender age. He went on to tell her that a colleague of his was suffering from a kidney ailment and needed a kidney donation from someone. He suggested that she might wish to be a donor. In this event it would be necessary for him to obtain a sample of her urine. They then proceeded to the male public toilet at the complex. After checking that no one was in the toilet the man took Miss Cheng into the toilet and entered one of the booths and shut the door.

4. Miss Cheng then gave a fairly detailed description of what the man did to her. After removing her clothing she alleged that he had inserted his penis into her vagina on several occasions. She had not been able to see how this had occurred as her face was pressed against the man's chest. It seems that the jury, because of uncertainty as to precisely what had happened, convicted of the lesser alternative. The man then left.

5. Miss Cheng returned home in a state of distress and told her mother what had happened. Later in the evening her parents took her to see a Dr. Lau who is in private practice. When the doctor realised that a complaint of a sexual nature was being made he immediately referred the girl to the Prince of Wales Hospital and a report was made to the police.

6. Miss Cheng was examined by Dr. Wong and the next day by Dr. Tso who was a Senior Forensic Pathologist.

7. Miss Cheng's mother also gave evidence. This was similar to her daughter's testimony save for some minor details.

8. The doctors who had examined Miss Cheng gave evidence which was somewhat equivocal. There was no sign of any injuries having been sustained by the girl but they definitely did not rule out the possibility that she had been victim of a sexual assault.

9. Finally Miss Cheng gave evidence of attending an identification parade on 12th October 1996 when she had identified the Applicant as the man who had raped her.

10. Miss To, the victim of the second count gave evidence concerning what had happened to her. During the afternoon of 16th September 1996 she had gone from her home where she lived with her maternal grandmother, to a bookshop nearby to purchase a gift for one of her classmates. She left the bookshop at 4:10 p.m. to return home. After crossing the road she was approached by a man who claimed to be a volunteer traffic warden. He accused her of crossing the road outside the metal studs. He said that this amounted to jay walking. He told her to follow him so that they could discuss the matter. They went to the podium of the Tai Po Plaza. The man then started asking her embarrassing questions on the subject of sex. He went on to claim that he was studying medicine and one of his colleagues suffered from kidney problems. He said that the only way this condition could be ameliorated was to obtain urine from a suitable donor. The way for this to be done would be for him to insert his penis into her vagina to obtain a sample. He said that if she did not agree to assist he would have no alternative but to take her to the police station in connection with her jay walking.

11. She then agreed to accompany him to the male toilet at the Tai Po Plaza. When they got there he checked that no one was in the toilet. She then went in with him to one of the cubicles. She described what he did to her in some detail. This included the man inserting his penis into her vagina. At the conclusion he left and returned home. She was crying copiously and was unable to tell her grandmother what had happened to her. The grandmother asked her other daughter, not the child's mother, who lived nearby to come and assist. She did so and Miss To was able to tell her in outline what had happened. Miss To had also been able to tell her mother over the telephone details of the matter. Her mother informed the police and took a taxi to visit her daughter. There appeared to be a consensus from the evidence of the prosecution witnesses who gave evidence that Miss To returned home somewhere around 5:15 p.m. and that the report which had been made to the police had been made at 5:30 p.m. Miss To was taken to the Prince of Wales Hospital where she was examined by a doctor and later by a forensic pathologist. These doctors gave evidence which was consistent with her being a victim of some form of sexual assault.

12. It needs to be added that after attending at the hospital Miss To took police officers to the toilet in question. One of the officers gave evidence that walking at a normal pace from her home to the toilet took eight minutes. Another police officer gave evidence that it took him about 6 minutes to walk from the toilet to the library at the Hong Kong Evangelical Church.

13. The evidence concerning timing is of importance in this case.

14. Miss To gave evidence that it was 4:10 p.m. when she first saw the man who approached her. Her conversation with him lasted ten to fifteen minutes. According to her watch it was 4:30 p.m. when she was taken to the Tai Po Plaza. She arrived there at 4:35 p.m. and went into the toilet with the man at 4:45 p.m. The incident in the toilet lasted approximately twenty minutes and it took her a few minutes to return home. On this evidence she would have arrived back home at approximately 5:10 p.m. The time of her arrival back home fitted in with the evidence given by her maternal aunt and her mother.

15. Miss To also attended an identification parade on 12th October at which she identified the Applicant as her assailant.

16. The police officers who had assumed duties in connection with the identification parade all gave evidence. Their evidence was to the effect that the integrity of the system had been maintained and that neither of the girls had had an opportunity of seeing the Applicant prior to their picking him out at the parade. None of the officers was subjected to any cross-examination. Also a solicitor representing the Applicant's interests was present.

17. The Applicant gave evidence. He said that to the best of his knowledge he had never seen either of the girls before. He denied any involvement in the offences. Due to the passage of time he was unable to remember where he had been at the time of the first count. He had however with the assistance of members of his family and his friend Wong Chun-yu been able to remember where he had been when the offence the subject of the second count had been committed. He had been at the Hong Kong Evangelical Church Library studying for an examination he was taking. It was necessary for him to sign in at the library on arrival there. He had done so at 3:45 p.m. on the afternoon in question. He had remained in the library until 4:00 p.m. when he may have gone downstairs to the bakery to obtain some refreshment. He was not sure about this. It was not necessary to check out at the desk. If he had gone out he would have been out of the library for approximately ten minutes.

18. He would then have returned to his studies. At about 5:15 p.m. he had seen his friend Wong Chun-yu enter the library. It had been a chance meeting. They had both decided to leave together at 7:00 p.m.

19. The Applicant complained that the identification parade had not been conducted fairly. He did not though give any convincing reason why he had not instructed his counsel to cross-examine the police officers in this connection.

20. Wong Chun-yu also gave evidence. He claimed to be able to remember the 16th September 1996. He had seen the attendance register and noted that his signature indicated that he had entered the library at 5:13 p.m. When he had entered the Applicant was there and it appeared that he had been studying there.

21. Miss Lui Fan-mei a clerk at the library gave evidence concerning the system adopted for checking in students at the library. Her evidence about this was in accordance with the Applicant's.

22. The next witness to give evidence was Miss Tsang Lai-mei. She was a fellow student who also used the library. She was able to remember 16th September 1996 as she had been suffering from toothache and had been unable to attend school. She remembered seeing the Applicant who she knew, arriving 10 to 20 minutes after her and studying. She had checked in at 3:30 p.m.

23. Another student Miss Ng Chuk-wah gave evidence. She had known the Applicant for some time. She expressed the opinion that his appearance had not changed much during the relevant period.

24. Another witness Miss Chow Yuet-yuen was called to give evidence concerning the distance from the toilets in question to Miss To's home. She said there were different routes and that it would only take a minute or two to cover the distance.

25. Ground 1 of the perfected grounds of appeal reads:

"(1) In respect of Count 2, which alleged the rape of TO Clara -

(a) the learned trial judge, in his directions relating to the defence of alibi raised by the Applicant, failed to remind the jury that the duty of the prosecution in this regard was not only to disprove the alibi, but also to disprove such alibi beyond a reasonable doubt. This failure was significant in view of the approach of the prosecution in not challenging the alibi as false; and was compounded by the description by the learned trial judge of the prosecution's suggestion that 'it is still possible for the defendant to have slipped out of the reading centre in between those times and committed the offence described by Clara TO'. See p 77F-I and N-P of the Transcript. The learned trial judge should have reminded the jury that they must be satisfied beyond a reasonable doubt that the 'possibility' suggested by the prosecution was in fact the true situation before rejecting the alibi. It was not sufficient for the trial judge to merely reminding the jury generally of the standard of proof at pp 80R-81C of the Transcript.

(b) the learned trial judge, in his directions relating to the defence of alibi raised by the Applicant, failed to remind the jury of the evidence given by the PW22 CHUNG Chi Man (DSPC 46084) at pp 393-394 of the Transcript and by DW6 CHOW Yuet Yuen at pp 279-288 of the Transcript. He failed to remind the jury that the testimony given by these two witnesses was part and parcel of the 'evidence relating to time in respect of the 2nd count given by all the witnesses' (pp 77T-78B of the Transcript). These two witnesses gave evidence as to the time taken by different routes from the male toilet which was the scene of the alleged offence to the reading centre referred to in the alibi and to the home of Clara TO, the victim of the offence, respectively. The failure of the learned trial judge to remind the jury of the evidence given by these two witnesses wrongly gave the impression to the jury that the evidence of these two witnesses was not credible and/or insignificant. The net effect of the said failure was that the jury were not alerted to the situation that given the time Clara TO could have taken to walk from the male toilet back home after the alleged assault and then to complain to her grandmother of the assault almost immediately, it was impossible for the Applicant, if he were the assailant, to walk from the toilet back to the reading centre and be at that reading centre at 5:13 p.m., when DW2 WONG Chun Yu noticed his presence, thus foreclosing the 'possibility' advanced by the prosecution that the Defendant could have slipped out of the reading centre between 3:40 p.m. and 5:13 p.m., committed the alleged offence and returned to the reading centre."

26. Mr. McCoy, S.C. submitted that the situation in the present case called for full directions to be given to the jury that it was for the prosecution to disprove the alibi evidence. His authority for this proposition was R. v. Leroy Owen Lesley [1996] 1 Cr. App. R. 39. It is not entirely simple to follow the logic of the reasoning in that case. We are satisfied that the law in this connection is correctly formulated in R. v. Sung Kwok-man and Another [1994] 2 HKC 161 and that this is applicable to the present case.

27. There is no duty imposed upon a Judge giving directions to a jury to direct them that an alibi must be disproved beyond a reasonable doubt.

28. The important matter to bear in mind so far as Ground 1(a) is concerned is that there is not inevitably a conflict between the prosecution evidence and the defence evidence on timing. As has been stated by Mr. Saw, S.C. for the prosecution in his helpful written submissions no attempt was made by the prosecution to challenge the witnesses who gave evidence concerning the timing of their activities during the afternoon in question. It was not necessary because as can be seen from the short summary of the evidence given in this judgment it would have been quite possible for the Applicant to have committed the offence referred to in the second count within the time frame sworn to by Miss To.

29. Miss To first saw the Applicant at 4:10 p.m. according to her evidence. This means that the Applicant would have had to leave the library a few minutes after 4:00 p.m. Again on Miss To's evidence he would have left the public toilet some time around 5:05 p.m. If he had walked briskly back to the library he would have been there by 5:13 p.m. It was essentially a matter of fact for the jury to determine whether they believed that the Applicant had absented himself from the library and committed the offence as charged. The directions which were given by the Judge were impeccable.

30. There is no merit in the complaints made in Ground 1(b). The Judge did remind the jury at p.44 of the summing up of PW22 Chung Chi-man's evidence concerning the amount of time taken to walk from the toilet to the library and of the obvious evidence that the journey could be completed in much less time if the person making the journey walked briskly. Similarly at p.70 the Judge reminded the jury of the evidence of Chow Yuet-yuen who gave evidence that the journey from the toilet to Miss To's residence could be accomplished in a very short passage of time.

31. Before us Mr. McCoy's attention was drawn to the fact that the Judge had specifically referred to the police officer's evidence that the journey from Miss To's residence to the toilet had taken eight minutes. He then complained that this was unbalanced as it meant that the man who had attacked Miss To must have left the scene of the incident earlier than the evidence of Miss Chow Yuet-yuen had indicated.

32. We do not think that there was any lack of balance. The Judge when reciting the evidence relating to the timing said at p.78T that it had only taken Miss To a few minutes to get home from the toilets.

33. It is evident that the Judge carefully gave detailed directions to the jury on this aspect of the case and there is no merit in this ground.

34. Ground 2 reads:

"(2) In respect of Count 2, which alleged the rape of TO Clara, the learned trial judge wrongly directed the jury that the victim's 'distress and emotional state after the event is also consistent with her evidence that she did not consent to it'. See p33D-E. The jury instead should have been specifically directed that they should attach little, if any, weight to that evidence because the distress condition of the victim was part and parcel of the evidence of recent complaint. See R. v. Lee Hong Keung [1987] HKLR 136 (CA). See also HKSAR v. Kwok Wai Chau [1998] 3 HKC 354 (CA). A complaint of rape cannot be used as evidence to prove lack of consent: R. v. Pointon [1985] 1 NZLR 387."

35. At the trial there was no issue on the question as to whether Miss To had been raped. On the defence which was run by the Applicant he was certainly not in a position to contest whether Miss To had consented to sexual intercourse. This could fairly be described as a non issue having regard to the matters which had to be determined by the jury.

36. Ground 3 is as follows:

"(3) In respect of Count 2, which alleged the rape of TO Clara, the learned trial judge failed to direct the jury that even if (SIC) their rejection of the alibi evidence did not mean confirmation of disputed identification. See R v. Duncan (1992) Times, 24/07/92; R. v. Pemberton (1994) 99 Cr App R 228; and R. v. Drake [1996] Crim LR 109. It was not sufficient for the learned trial judge to direct the jury as he did in p77H-I of the Transcript."

37. The Judge gave these directions:

"Insofar as the 2nd count is concerned, the defence to this 2nd count was one of mistaken identity as well. Moreover, the defence has relied on an alibi to show that he could not have been the attacker of Clara TO. The defendant says that because of this alibi he was not at the scene of the crime when it was committed. As the prosecution has to prove his guilt so that you are sure of it, the defendant does not have to prove that he was elsewhere at the time. On the contrary, the prosecution must disprove this alibi, and even if you conclude that the alibi was false, that does not of itself entitle you to convict the defendant. The prosecution must still make you sure of his guilt. An alibi is sometimes invented to bolster a genuine defence. Even if you reject his alibi, that by itself does not prove that the defendant was the person who had attacked Clara TO.

In this case however, the prosecution has neither challenged as false, the evidence of the defence witnesses, nor produced any evidence to rebut it. What the prosecution is saying is that even if you accept the defence evidence as true, that TSANG Lei-mei saw the defendant at 10 or 20 minutes after the time she arrived at the reading centre, namely 10 or 20 minutes after 3.30 p.m., and that WONG Chun-yu saw the defendant at the reading centre at 5.13 p.m., it is still possible for the defendant to have slipped out of the reading centre in between those two times and committed the offence described by Clara TO."

38. Following this the Judge summarised the evidence in relation to the timing of events as given by the different witnesses.

39. Mr. McCoy submitted that as this was a case arguably involving an alibi it would have been incumbent upon the Judge to give a full 'lies' direction. His authority for this was HKSAR v. MO Shiu-shing [1999] 1 HKC 43. He placed particular reliance upon the passage at p.53C:

"It is now well-established that there are certain categories of cases where a 'lies' direction is required. In R. v. Burge & Pegg [1996] 1 Cr App R 163, guidance was given by the English Court of Appeal as to when a direction of some kind should be given. This judgment makes it abundantly plain that such a direction is not required in every case even if the jury might conclude that the defendant had told lies. At 172E Kennedy LJ said:

... the direction on lies ... comes into play where the prosecution say, or the judge envisages that the jury may say, that the lie is evidence against the accused; in effect, using it as an implied admission of guilt ... quite distinct from the run of the mill case in which the defence case is contradicted by the evidence of prosecution witnesses in such a way as to make it necessary for the prosecution to say that insofar as the two sides are in conflict, the defendant's account is untrue and indeed deliberately and knowingly false.

The court went on to identify four main categories of case where it considered directions on lies to be appropriate having found a tendency, in common with what this court has also experienced for 'one appeal after another to assert that there has been no direction, or an inadequate direction, as to lies'. Kennedy LJ went on, at 173, to say:

... it may be helpful if we conclude by summarising the circumstances in which, in our judgment, a Lucas direction is usually required. There are four such circumstances but they may overlap:

1. Where the defence relies on an alibi.

2. Where the judge considers it desirable or necessary to suggest that the jury should look for support or corroboration of one piece of evidence from other evidence in the case, and amongst that other evidence draws attention to lies told, or allegedly told, by the defendant.

3. Where the prosecution seek to show that something said, either in or out of the court, in relation to a separate and distinct issue was a lie, and to rely on that lie as evidence of guilt in relation to the charge which is sought to be proved.

4. Where although the prosecution have not adopted the approach to which we have just referred, the judge reasonably envisages that there is a real danger that the jury may do so.

If a Lucas direction is given where there is no need for such a direction (as in the normal case where there is a straight conflict of evidence), it will add complexity and do more harm than good. Therefore, in our judgment, a judge would be wise always, before speeches and summing-up in circumstance number four, and perhaps also in other circumstances, to consider with counsel whether, in the instant case, such a direction is in fact required, and, if so, how it should be formulated. If the matter is dealt with in that way, this court will be very slow to interfere with the exercise of the judge's discretion. Further, the judge should, of course, be assisted by counsel in identifying cases where a direction is called for. In particular, this court is unlikely to be persuaded, in cases allegedly falling under number four above, that there was a real danger that the jury would treat a particular lie as evidence of guilt if defence counsel at the trial has not alerted the judge to that danger and asked him to consider whether a direction should be given to meet it. The direction should, if given, so far as possible, be tailored to the circumstances of the case, but it will normally be sufficient if it makes the two basic points:

1. that the lie must be admitted or proved beyond reasonable doubt, and;

2. that the mere fact that the defendant lied is not in itself evidence of guilt since defendants may lie for innocent reasons, so only if the jury is sure that the defendant did not lie for an innocent reason can a lie support the prosecution case."

40. What is very clear is that every case has to be considered in relation to the evidence which has been adduced. In the majority of cases where the defence place reliance upon an alibi and it is disbelieved this will inevitably lead to a situation where the jury have rejected a substantial proportion of the defence case on the basis that lies have been told by the Defendant and or his witnesses.

41. That is an entirely different situation to the one facing the jury in this case. As has already been stated the prosecution did not challenge the Applicant's witnesses evidence as it was their contention that even if it was truthful and accurate the Applicant could still have committed the offence.

42. So far as the Applicant was concerned it was simply his case that he had not been at the toilets at the relevant time and that he had never met either of the girls. There was no question of the jury reaching a conclusion that the alibi evidence putting the Applicant in the library at 5:13 p.m. was false. The issue which was before the jury was whether on all of the evidence the prosecution had proved at the appropriate level that the Applicant was guilty of committing the offence between 4:30 p.m. and 5:00 p.m. approximately.

43. We would go further and state that a 'lies' direction would have been completely inappropriate in the present case and could only have served to confuse the jury. There is no merit in this ground.

44. Ground 4 reads:

"(4) In respect of Count 1, which alleged the rape of CHENG Pui Kwan, the learned trial judge, in directing the jury on the issue of identification evidence, failed to mention the lengthy period of time between the alleged time of the offence and the identification parade, namely about 11 months, as a specific weakness of the identification evidence. See pp 73A-74E of the Transcript."

45. This ground is misconceived. The Judge did when directing the jury as to the identification evidence at p.72 say that they had to consider, inter alia, "how long was it between the attack and the identification to the police."

46. In this connection it would have been very clear to the jury that a considerable passage of time elapsed between the commission of the two offences. The Judge specifically told the jury when the offence in the first count was committed at p.8.

47. Ground 5 reads:

"(5) In respect of both Counts, the learned trial judge, in directing the jury on the issue of identification evidence, described as a specific weakness the description by CHENG Pui Kwan and Clara TO of the complexion of their respective assailant. However, the learned trial judge failed to address or point out the nature of that specific weakness. It was common ground that the Applicant had many pimples at the material time of each of the alleged offences. See p 73F-H of the Transcript."

48. In the passage referred to in this ground the Judge did refer to the weakness in the identification evidence concerning the Applicant's complexion and the absence of any marks or pimples. This passage needs to be taken in conjunction with the Judge's summary of the Applicant's case at p.49 and p.50:

"He is quite sure about that he said. He agreed that his skin is of fair complexion and he is not tanned or dark-skinned; but he disagreed that he as no acne or pimples. He says he has a pimple on his chin and a big pimple on his nose. He said he had pimples in November 1995 a bit more than moderate and there should have been visible scars in 1995. He agreed that having pimples would not change the fair complexion of his face. He can't remember the colour of his skin in September 1996, but agreed that the colour of his skin had remained constant more or less since November 1995."

49. When these passages are taken together it is manifest that the jury's attention was sufficiently directed to this unsatisfactory aspect of the prosecution case.

50. Ground 6 reads:

"(6) In respect of both Counts, the learned trial judge wrongly suggested to the jury that evidence of recent complaint by each of the victims could 'possibly assist you on the question of whether you can accept as true' the testimony of each of them. Evidence of recent complaint is not evidence of the truth of the facts asserted in the complaint: R. v. Warner (1995) A Crim R 383, 385."

51. This ground can be considered in a similar manner to the complaint made in Ground 2. In the context of the relevant issues this was not a matter which was of significance.

52. Ground 7 reads:

"(7) In respect of both Counts, the learned trial judge should have directed the jury that doubts raised by evidence in relation to one count would apply equally to the other count since it was clear from the evidence of modus operandi and the description of the culprit that the same person committed the offences. See pp 71N-72D of the Transcript.

53. The passage referred to in the ground is as follows:

"In his final speech to you, members of the jury, Mr. Young said to you that because of the modus operandi in these two cases it is quite clear that it showed that the same person must have attacked both CHENG Pui-kwan and Clara TO, and he further went on to say to you that if you accept the defendant's alibi that he could not have been the attacker of Clara TO then you should also find him not guilty on the first count. That, however, is not quite correct.

You must consider the case against and for the defendant on each count separately. Look at all the evidence in relation to each count separately and come to a decision on each count separately, based on all the evidence in relation to it, and decide whether you are satisfied beyond reasonable doubt that the prosecution has proved his guilt on each separate count. You must not allow your decision or your verdict on one count to affect your decision or your verdict on the other count. The verdict on each count should only be based on all the evidence relating to that count alone."

54. As has been pointed out by Mr. Saw it was advantageous to the Applicant that the Judge did not give directions along the lines proposed by Mr. McCoy. Had he done so the Judge would have been duty bound to direct the jury on corroboration and similar fact evidence in relation to these two incidents. This ground has no merit.

55. Ground 8 reads:

"(8) The verdicts of the jury were contrary to the weight of the evidence having regard to -

(a) the alibi in respect of Count 2, which the prosecution did not seek to disprove;

(b) the total absence of corroboration; and

(c) the fact that after over five hours of deliberation, four out of seven jurors had 'doubt on the correctness of identification'. See p 86Q-S."

56. As to Ground 8(a) the verdict was not contrary to the weight of evidence.

57. As to Ground 8(b) the Judge gave further directions on the lack of corroboration at p.85 after the completion of the summing-up. There is no doubt that the jury were fully entitled to make the determinations they did.

58. The question of the jury's deadlock after five hours deliberations is more conveniently dealt with under the next ground.

59. Ground 9 reads:

"(9) In advising the jury in respect of the note from their foreman -

(a) the learned trial judge unduly pressurized the jurors to reach a verdict which at least five of them were agreed. The learned trial judge failed to indicate to the jurors that they were under no obligation to reach a verdict that the Court would take; that their duty was to genuinely determine the guilt or innocence of the Applicant in accordance with their appreciation of the evidence; and that it would not be dereliction of their duty if they were hung in their determination. See p 90E-U of the Transcript.

(b) Alternatively, the jury were misled into believing that they could only discharged their duty as jurors by reaching a verdict of a majority of at least five to two, whether that verdict was one of guilty or not guilty. By such advice, the :freedom of deliberation of the jury was wrongly restricted. See p 90E-U of the Transcript.

The jury duly returned guilty verdicts of the requisite majority two and a half hours later. See p 442-443 of the Transcript. Had the jury been properly advised, they would not have returned the verdicts that they did."

60. The note from the foreman of the jury reads:

"My Lord, On the first count of HKSAR against SO Yiu-fung concerning the rape case of CHENG Pui-kwan, four of the jurors have doubt on the correctness of the identification, while three of us believe the evidence of identification of CHENG Pui-kwan. The ratio of verdict is 4 to 3. Please advise."

61. The judge gave this direction to the jury:

"Now, the advice that I will give you is this. I have already directed you earlier on that you should strive to be unanimous in your verdict, but if you can't be unanimous, this court can accept a verdict of either 5 to 2 or 6 to 1 from you, but not a verdict of 4 to 3. Since you are now locked at 4 to 3 on the 1st count, I cannot take a verdict from you until you have come to a verdict of which at least five of you are agreed.

In the circumstances, therefore, I must ask you to continue your deliberations and to try to come to a verdict of which at least five of you are agreed. However, please do not feel that you are under any time pressure. If need be later on, you can order dinner and dinner will be served on you, and perhaps you can keep myself and counsel informed of your progress, say maybe in a couple of hours' time, if you cannot reach a verdict in the matter. Right.

62. Before giving these directions to the jury the Judge had a prior consultation with counsel.

63. It is evident from a perusal of the record that one of the matters which was of concern to the Judge was the fact that the possible deadlock only related to one of the counts. Clearly it would not have been right for the Judge to discharge the jury in relation to one of the counts and then require them to deliberate upon the other.

64. The Judge discussed this aspect of the matter with counsel and both counsel agreed that the jury should be directed in the manner in which the Judge did eventually direct them.

65. The jury were not subjected to any pressure to reach their verdicts. In addition to this it was not apparent from the question posed that the deadlock had in fact been reached.

66. It has also to be borne in mind that it may well have been contrary to the interests of the Applicant if the Judge had withdrawn the case from the jury at this time. The Applicant might have been deprived of an opportunity of an acquittal.

67. It is of significance to note that the Judge did specifically state that the jury should not feel themselves to be under any pressure.

68. This ground must fail.

69. The final ground of appeal complains that the verdicts were either unsafe or unsatisfactory or at least there must be a lurking doubt.

70. Having regard to the observations made earlier in this judgment there is no reason to have any doubts concerning these verdicts.

71. This application is dismissed.

Representation:

Mr. D.G. Saw, S.C., S.A.D.P.P. & Mr. Liu Yuen-ming, S.G.C. (D.P.P.) for Respondent

Mr. G.J.X. McCoy, S.C. and Mr. P.Y. Lo instructed by M/S Or, Ng & Chan for Applicant

Remarks:
On appeal by the Applicant to the Court of Final Appeal: Appeal dismissed. Please refer to FACC000005/1999.