R. v. Lam Yau Tim

CACC000556/1991

HEADNOTE

A trial judge is not required to give a direction on general belief in a rape case unless the matter is raised by the evidence. Suggestions that such a direction be given which are not granted in evidence of any real significance rejected as fanciful. A nexus must be established between flight and the offence before it can be capable of amounting to an admission of guilt. Jury should not have been left to draw an inference from an admission of intercourse which was as consistent with innocence as with guilt.

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Coram: Hon. Yang, C.J, Kempster & Power, JJ.A.

Date of Hearing: 23 October 1992

Date of Judgment: 12 November 1992

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicant faced three counts of rape. In each it was alleged that on 16th November 1990 at Room 2413, Oi Ming House, Yau Oi Estate, Tuen Mun, he raped Yu Tsuen-ho. He pleaded not guilty to all counts and was on 28th November 1991 after trial before Wong J. and a jury convicted on each count and ordered to be imprisoned for five years on each with the sentences to be concurrent. He seeks leave to appeal against those convictions.

3. The Crown case rested upon the evidence of the complainant Madam Yu. Her evidence was as follows: On 15th November 1990 she rang a family friend, Mr. Lee Yiu-kuen, because she wanted to discuss with him the marital conflict she was having with her husband as a result of which she had on three occasions attempted suicide. She often met Mr. Lee to discuss family matters and on that evening she was feeling very depressed and her mind was very confused Mr. Lee came to her flat with his younger son. When the Lees arrived, her daughter had already gone to bed but her son played with Mr. Lee's son. While Mr. Lee was there, she received a telephone call from a Mr. Leung Shiu-yui who was a friend of her husband, and who, acting on her husband's behalf, spoke to her about her intention to obtain a divorce. The applicant also came on to the phone and spoke to her. The applicant asked why she and her husband had got to that stage and she said that it was not something she would discuss over the phone with him and that perhaps they had better then come to the flat to talk to her. At some time after midnight, the two men and a third man, who was introduced as Ah Chung, arrived at her flat. By that time Mr. Lee had left. Ah Chung smoked a cigarette and then left but Mr. Leung and the applicant spoke with her telling her not to divorce her husband. After about 15 minutes Mr. Leung said that he was leaving and she said that the applicant should also leave. The applicant said that he was not going to leave as he had something else to talk about to her. She had the impression that he had taken a lot of alcohol. She did not want him to stay, but he did so and continued to talk to her about her marital problems and, despite her asking him to leave on three occasions, he made no response. He appeared to go to sleep and she covered him with a blanket and then went to her own bed. Throughout the evening she had been wearing a sleeping gown which came down to her knees as she had already had her bath and got into her sleeping attire before any of the men arrived. The applicant came to her bed, sexually assaulted her and demanded intercourse.

4. It is not necessary to detail her evidence, suffice to say that she stated that she continually objected to his attentions, that she told him that he could not have intercourse and that she only submitted to intercourse on each of the three occasions because of threats and force.

5. The applicant gave no evidence. Mr. Chandler, who appears for the applicant, argued 7 grounds of appeal. To resolve the appeal we need deal only with Ground 5 and Ground 6(c).

6. We think it proper, however, also to deal shortly with Grounds 1 and 2. The thrust of these grounds was that the judge failed to direct the jury as to the possibility that the applicant had a mistaken but genuine belief that the complainant was consenting to the acts of sexual intercourse. Mr. Chandler relied, in particular, in this regard upon Mohammed Bashir (1983) 77 Cr.App.R. 59 and Satnam and Kewal (1984) 78 Cr.App.R. 149. He submitted that the facts in the present case closely resembled the facts in those two cases. He referred particularly to Mohammed Bashir. He submitted that the applicant in the present case, who gave no evidence, was in as good a position as the defendant in Mohammed Bashir who gave evidence saying that he remembered nothing but who was held to be entitled to rely upon the Crown evidence to raise genuine belief. We are satisfied that the facts in the two cases cited are markedly dissimilar from the facts in the present case. There was nothing in the present case which could properly be said to require a direction on genuine belief. The evidence of the victim was that throughout, she had protested and resisted. Nowhere in her evidence was there anything that could be construed as giving rise to the possibility that the applicant thought that she was consenting to intercourse. Mr. Chandler asks us to remember that she was in her nightdress, that she, according to Mr. Leung but not to her, was the one who asked the applicant to stay on when Mr. Leung left and that she had, on the following morning, according to her son, but again not to her, said "Good-bye" to the applicant as he was leaving. Mr. Chandler submits that these matters, along with all the other circumstances, were sufficient to give rise to the possibility that the applicant might have been led to the belief that she was prepared to have intercourse with him. We reject this submission. Given the evidence overall it is in our view fanciful to suggest that there was any evidence sufficient to require the giving of a direction as to honest belief.

7. We turn now to Grounds 5 and 6(c):

"5. The learned Trial judge erred in that he omitted to adequately direct the jury as to the use they were entitled to make of evidence that the Applicant was arrested at Lo Wu on the 18th November 1990. The learned Trial Judge, whilst warning the jury against speculating, by the nature of his direction invited them to do just that."

"6. The learned Trial Judge erred in that in all the circumstances his direction to the jury as to corroboration was inadequate. In particular the learned Trial Judge:-

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(c) erred in that he left to the jury the Applicants statement under caution as being potentially corroborative of the complainants allegation of non consensual sexual intercourse. That statement was in all the circumstances ambiguous and in the absence of express explanation was not capable of affording corroboration."

The trial judge dealt with both of these matters in the following passage:

"It is an admitted fact that the accused was stopped and detained at the Lowu Checkpoint by Immigration officials at about 10 a.m. on the 18th of November, 1990 when he was crossing from Hong Kong to Shenzhen. This happened two days after Madam YU had reported to police that she was raped by him. It is for you to draw the inference from the evidence why he wanted to leave Hong Kong at this time, but you will not speculate and that is you will not guess.

At 8.55 p.m. on the same day, he was interviewed by Detective Police Constable 2661 CHAN Ching-yan in Tuen Mun Police Station. In response to the caution administered by the officer that he had raped Madam YU on the 16th November, 1990 the accused said, 'Because I had had alcoholic drinks that night, I had sexual intercourse with YU Tsuen-ho on the impulse of the moment. I am filled with remorse afterwards.'

Again it is for you to decide the meaning of this passage. Why did he feel remorseful? Was it because he felt guilty that he had sexual intercourse with the wife of a friend and former colleague and therefore committed a moral sin or was it he felt remorseful because he had committed a crime? It is really a jury matter and I don't think I can take you any further and give you more assistance. You will have to make up your own mind yourself by looking at and examining the evidence carefully."

8. When addressing us on Ground 5 Mr. Chandler referred to R. v. CHAN Kwok-keung and another[1990] 1 H.K.L.R. 359, and in particular to the judgment of Lord Ackner at p.362 as follows:-

"In order for flight to be capable of amounting to an admission of guilt there must be some evidence which establishes a nexus between the conduct of the accused, his flight or concealment and the offence in question. In this case the prosecution produced no evidence to establish that either of the appellants had been hiding away or otherwise behaving in an unusual manner in this period of nearly ten months. There was therefore no material which could have justified the jury inferring that the only reasonable explanation for the appellants stowing away on the ship from Hong Kong to Macau was that they were on the run, because they knew they might be arrested and charged with this murder. There could have been a variety of other reasons for their having stowed away nearly ten months after the murder.

Their Lordships are therefore satisfied that the judge and the Court of Appeal were in error in holding that their evidence was potentially corroborative of Leung's evidence. Indeed, in the circumstances, the jury should have been directed, not only that it was not potentially corroborative evidence, but of the danger of paying any regard to it."

9. In the present case the applicant was, on the evidence, not aware that any complaint had ever been made about his conduct. The evidence was that he had remained in the complainant's premises until after 7 in the morning and had left the premises without any indication having been given by her that she intended to report the matter. There was nothing to establish a nexus between his attempting to leave Hong Kong at Lowu and the offences. The jury should, we are satisfied, have been told that it would be dangerous to pay any regard to that evidence.

10. We are concerned further by the suggestion which the judge made to the jury that it was for them "to draw the inference from the evidence why he wanted to leave Hong Kong at this time but you will not speculate and that is you will not guess." The use of the words "the inference" without explanation or elaboration was imprecise to the point where the jury might well have been left in some doubt as to what exactly the judge meant. If they took him to mean an inference of guilt, as they very likely would have, then, as we have already said, the direction was wrong and should not have been given.

11. Mr. Chandler when addressing on Ground 6(c), submitted that the applicant in his statement could be taken to have admitted no more than that he had had intercourse with the victim. He submitted that the jury should have been told that it was not an admission of rape and that it was not capable of being corroboration. He submitted that the expression of remorse added nothing damaging to the statement as it was what might be expected from someone who, influenced by drink, had had intercourse with the wife of a friend.

12. We are satisfied that there is considerable force in these submissions. We are satisfied that the judge should have told the jury that the statement of the accused was not an admission of rape and that it could be taken as establishing no more than that he had had sexual intercourse with the complainant. An admission of sexual intercourse coupled with remorse was, in the circumstances that obtained, consistent with innocence of rape and the jury should have been told that they could not exclude such an inference and that it was, therefore, not open to them to draw an inference of guilt.

13. We are satisfied that the above misdirections were serious ones which render the convictions unsafe and unsatisfactory and, accordingly, we give leave to appeal, treat this hearing as that of the appeal, which we allow and order that the convictions be quashed and the sentences be set aside.

Representation:

Mr. I.C. McWalters (Crown Prosecutor) for the Respondent.

Mr. J.P. Chandler (Messrs. K.C. Man & Co.) for the Applicant.