The Queen v. Leung Ming Yun and Another

1986 No. 550
(Criminal)

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon. Yang, J.A., Hon. Power, J. & Hon. Macdougall J.

Date of hearing: 20th March 1987

Date of delivery of judgment: 20th March 1987

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J U D G M E N T

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Power, J.

1. The original hearing involved four accused who faced three counts.

2. The applicants, who were D2 and D3, faced counts 2 and 3 upon which they were jointly charged with two other defendants namely Yeung Wai-hung, D1 and Ha Kam-wah, D4. Count. 1, which D1 faced alone, was one of rape, which was alleged to have occurred on the 14th of October, some 10 days before the 2 charges faced by the present applicants. All of the charges involved a young woman named Yau Lai-yuen. D1 was found guilty on the rape count and on both of the other 2 counts. These 2 counts were, firstly, a count of detention of a woman against her will for unlawful intercourse which was alleged to have taken place on the 23rd and 24 days of October 1985 and in which all four accused were said to have participated and, secondly, a count of control over a woman for the purpose of prostitution which was alleged to have taken place on the same days in relation to the same young woman and in which again all 4 accused were said to have participated. The applicants were found guilty on the detention count only and the 4th accused was acquitted on both counts.

3. The facts revealed a situation which is regrettably all too common in Hong Kong. It was the Crown case that the victim was raped and that there was then a plan to force her into prostitution. It was suggested by the evidence that she was being forced into prostitution so that she could obtain money to repay debts said to be due from her boy friend (D4) to one of the other accused.

4. The applicants now appeal against their conviction on the detention charge arguing that the convictions are unsafe and unsatisfactory. They raise 5 particular matters for the consideration of this court.

5. We do not need to go beyond the complaint that the trial judge failed to give a proper direction with regard to a need for corroboration. The trial judge having told the jury that all of the charges required corroboration and having dealt with the rape charge said :

"In respect to the other charges which all of the accused are involved in, there is a degree of corroboration for some accused on some charges, I will deal with that when I consider the evidence."

6. After having dealt in a comprehensive way with the evidence, he turned to indicate the evidence, other than that of the victim, that existed in relation to the 2nd charge against the 2nd and 3rd defendants. He said that there was no inculpatory evidence in their statements. He did not, however, go on to refer to any other evidence. He did not indicate any evidence which was capable of being corroboration nor did he tell the jury that there was no such evidence. Mr. Bruce, for the Crown, concedes this to be so. Indeed, Mr. Bruce says, while admitting that he has not been able to read all of the record, that his impression is that there was, in fact, no evidence capable of being corroboration in relation to the 2nd charge. Whether such evidence existed was of vital importance as the credibility of the young woman was the real issue in the trial. The jury were, because of the failure adequately to direct in this regard, never placed in the position properly to apply the warning. The matter is compounded to an extent by what occurred towards the end of the summing-up when the trial judge, referring to the 3rd charge, said to the jury:-

"The evidence of the 1st accused is of course evidence which can be considered when dealing with the 2nd and 3rd accused but he says they were not party to it either, so that does not corroborate. So the law is and I direct you that the law is that you cannot convict the 2nd and 3rd accused unless you find corroboration. I have told you that there is no evidence which I consider capable of being corroboration. You must make the decision as to whether there is corroboration or not. If you find there is none, you must acquit.  If you find there is, then you can go through the process of deciding whether you believe that evidence and whether it is sufficient to convict."

7. This direction was wrong in law. It was for the trial judge to tell the jury whether or not there was evidence capable of being corroboration and it was for them to accept what he said in this regard. It was not for them, having been directed that there was no such evidence, to make their own finding thereon. This direction was, of course, concerned with the 3rd count, as to which both of the applicants were found not guilty. There was a danger, however, that the direction indicated to the jury that, whatever the judge said as to corroboration, it was open for them to go through the evidence and to see whether they could find anything that they themselves considered corroborated the evidence of the victim. 

8. We do not know whether this direction had any effect on the jury's deliberations on the second count.

9. However, it is plain, as we have already observed, that having told the jury that there was a degree of corroboration in relation to the second and third counts, the Judge did not refer them to any evidence on the second count other than that of the complainant herself. Moreover, it appears that there was no evidence on that count that was capable of amounting to corroboration of her testimony. 

10. For all these reasons, therefore, we have come to the conclusion that the conviction on the second count cannot stand. 

11. It has been suggested that we consider applying the proviso but, given the facts, we are quite satisfied that it would be wrong so to do. The conviction is quashed and Mr. Bruce having informed us that the Crown does not seek a re-trial, we make no order in that regard.

Mr. A.A. Bruce, Crown Prosecutor for the Respondent.

Mr. Alexander King (D.L.A.) for both 1st and 2nd Applicants.