The Queen v. Yeung Wo Pun
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CACC000607/1988
Headnote Unusual and difficult rape case. Insufficiencies in summing up on corroboration and recent complaint.
------------- Coram: Hon Fuad, V.-P., Hunter & Macdougall, JJA Date of Hearing: 27 June 1989 Date of Handing down Reasons: 21 July 1989 ----------------------------- Reasons for Decision ------------------------------ Hunter, JA : 1. This is the decision of the Court. 2. On 29th November 1988, after trial before de Basto J. and a jury, the applicant Yeung Wo Pun was convicted on an indictment which charged that on 7th April 1988 in the security guard's changing room, basement, Paliberg Plaza, he raped Liang. The applicant sought leave to appeal against that conviction. On 27th June having heard counsel for the applicant and for the Crown, we allowed the application and appeal and quashed the conviction, stating that we would hand down our reasons later. This we now do. 3. There wes no dispute that on the night in question sexual intercourse took place between the complainant and the applicant. The issue was consent. This presented a number of unusual and difficult features. As a result the case was a difficult one to try and one which required a most careful and balanced summing up. 4. Both complainant and applicant worked for the same security company at Paliberg Plaza: she on the day, he on the night shift, as a supervisor. She was aged 20 and had had a very sheltered upbringing. Prior to the incident in question she had had no sexual experience, and further it would seem little if any experience with men. He was 26, a married man with a daughter. It was plain that he was actively seeking to persuade the complainant to start living with him as his mistress. In consequence he may well have presented an unattractive picture to the jury. 5. The first significant issue of fact for the jury was the nature of the relationship (if any) between the complainant and the applicant prior to 7th April and the reason why she came to be in the security guard's changing room after midnight on the night in question. It was common ground that the complainant left her home, travelled some distance to Paliberg Plaza, and overcame the real problems of gaining entry at that late hour, as a result of two telephone calls she received from a Mr Mok Chi Fai a co-employee of the applicant on night shift duty that evening. It is also common ground that Mok told her that the applicant was ill. But there were significant conflicts between her, Mok and the applicant about these calls and the prior existence of any association between the applicant and the complainant. 6. Initially the complainant emphasised two things namely that she was not acquainted with the applicant and only knew his name; and that the reason why she made her journey was that Mok had told her that the police were there waiting to take a statement from her. Later in her evidence she substantially qualified her initial answer about acquaintance, admitting that she and the applicant had talked together a good deal and that on several occasions he had expressed his love for her. Further the fact that the police were not present must have been obvious to her on arrival, but it aroused no comment. 7. Mok claimed to know that she and the applicant were associating. In relation to the telephone calls he admitted that he had told the complainant a number of untruths, but with, he insisted, the connivance of the applicant. He denied saying anything about the police being present or wanting a statement. The applicant spoke of an association with the complainant extending over a number of meetings at work and elsewhere. But both in his out of court statement to the police and in his evidence, he denied conniving with Mok over the telephone calls. 8. If Mok was to be believed in preference to both the complainant and to the applicant, then in the context of consent a serious question arose as to which was the most significant falsehood, the applicant's denial of connivance or the complainant's story about the police. The former would make the applicant party to some deception of the complainant; the latter might suggest that she had travelled not out of a sense of public duty but out of real concern and possibly affection for the applicant. We think that the potential significance of both conclusions should have been referred to in the summing up. But the judge did not address the second, and concentrated wholly upon the first. 9. In relation to that he accepted the Crown's submission that the applicant's out of court denial of connivance, if disbelieved, could amount to a lie sufficient to constitute corroboration of the complainant in relation to lack of consent. The judge's direction here precisely followed the summary in para 16-10 of the 43rd edition of Arshbold of the four criteria mentioned in R v Lucas [1981] 1 QB 720. No attempt was made to relate these criteria to the facts before the jury. This was insufficient. Assuming that the jury were prepared to find the statement contain a deliberate lie, the key criteria were the second and third namely:
Earlier in his judgment Lord Lane CJ summarised the significance of these criteria when he said :
A similar point was made by Robert Goff LJ in R v West (1984) 79 Cr App R 45, 47 when he said :
10. The issue was consent. There was no corroboration of the offence at all unless the corroborative evidence went to consent: James v R (1971) 55 Cr App R 299. This assumed lie was as consistent with an exercise in seduction as it was with an exercise of rape. Therefore this was clearly a case where again in Lord Lane CJ's words in Lucas the jury ought to have been "reminded that people sometimes lie, for example, .... out of shame or out of a wish to conceal disgraceful behaviour from their family". No such warning or reminder was given. The judge's initial error was compounded when later in his summing up he said :
11. The complainant's account of the incident of alleged rape itself raised its own problems. It took place upon a narrow canvas folding bed. The parties had very different physiques: she was 5 ft 1 1/2 ins tall and weighed 107 lb he was over 6 ft tall and weighed 244 lbs. The complainant and the applicant agreed that no penetration took place when he was on top of her, and that it first occurred when she was on top of him. It is by no means easy on her evidence alone to understand how this occurred against her will and without her co-operation. On this difficult aspect it was in our view insufficient for the judge to do no more than remind the jury of one of the complainant's answers which sought to explain one of these difficulties. 12. On the complainant's own evidence her conduct after the incident was at its lowest unusual. After performing her ablutions, she said that she and the applicant talked until 3 or 4 am. She then went to sleep in the rest room, whilst the applicant returned to his home. She worked her day shift the next day. That evening she talked further with the applicant who escorted her home on a bus. He was trying to persuade her to set up a home with him, and asked her for money to enable him to make a down payment upon some suitable accommodation. In relation to this suggestion she said that she did not "agree with him fully". She was very much in two minds as to whether it was right for her to leave home and to set up with the applicant at all. But she gave the applicant her bank Card and wrote down the number which enabled him to withdraw money with it. 13. She spent that evening at home with her mother and family. She gave two reasons for saying nothing to them about the incident. She said first that she dared not reveal what had happened to her mother, or to her brothers and sisters for fear that they would tell her mother. Secondly she said :
She sought advice from a friend, Miss Ng Kot Lan, a former employee of the same security company. They first spoke on the telephone at about noon. The complainant told Miss Ng that she had had sexual intercourse with the applicant, and that he was asking her for money to set up home with him. She said nothing suggesting rape. She arranged to meet Miss Ng that evening. 14. Before leaving her work early to meet Miss Ng the complainant did two things. Almost certainly on the advice of Miss Ng she went to her bank and closed her account. Secondly she wrote a note to the applicant which he found in his jacket pocket at work that evening. This note reads : "Sorry, this time I have thought it over carefully. I have to part with you.
15. When the complainant met Miss Ng that evening at miss Ng's home, she repeated in more detail what she had said on the telephone; namely that she had had sexual intercourse and lost her virginity, that he was asking for money and for her to move out of her home and into accommodation with him. Again she said nothing suggesting rape although in her evidence in chief she was given every opportunity for saying she had done so. Miss Ng, she said, suggested that she should made a report to the police because "possibly", the applicant, "was trying to cheat me". Eventually at Miss Ng's insistence the complainant accompanied by Miss Ng went to the police on 10th April. She then made a statement which the judge directed to go before the jury, in which for the first time she expressly complained of rape. 16. The judge admitted the evidence of Miss Ng as evidence of a recent complaint. She bore out the complainant's evidence about the telephone call adding that she had described herself as "a foolish person". At the evening meeting Miss Ng's evidence was that the complainant said that she had been "indecently assaulted" in the changing room. Under cross-examination, for the first time, she said that the complainant "said that he (the applicant) forced her to do that thing". 17. We think that the judge ought carefully to have directed the jury as to the relevance and relationship of this conduct to the issue of consent. This he did not do, and especially in two respects we have been constrained to conclude that his summing up was in one respect erroneous and another insufficient. 18. The error arose in relation to the question of recent complaint. Neither to her family nor to Miss Ng did the complainant complain of or allege rape. Her first complaint of rape was in her statement to the police. This was not voluntary or spontaneous but was inspired by Miss Ng. As the matter was not argued before us we express no view as to whether the evidence of Miss Ng was properly admitted. But having admitted it, we have no doubt that the judge was wrong when, by a process apparently of attributing Miss Ng's evidence in cross-examination to the complainant, he directed the jury :
In reality she made one report to her friend, another to the police. Secondly we cannot regard as adequate his direction in relation to the letter. This was a most unusual piece of evidence in a rape case. The complainant was emphatic that the sentence starting "for what happened on that occasion ..." did not refer to the alleged rape, but to some quarrel which had taken place two days before. The letter therefore could not be read as supportive of the complainant. Rather it contained material which might have been regarded as shedding considerable light upon the association between the complainant and the applicant, and upon the issue of consent. It merited much closer consideration and analysis than it received from the judge. 19. For these reasons we were unable to regard the verdict as safe or satisfactory. There is one further observation I desire to make, although the matter was not specifically relied upon by the applicant. It relates to the judge's direction, in the exercise of his discretion under s 14 of the Evidence Ordinance (Cap 8), that the applicant's statement to the police be put before the jury. I am concerned that he may have been misled by some of the breadth of my language in R v Yip Chi Hung [1988] 1 HKLR 229. In the unusual circumstances of that case, I was seeking to do no more than echo what had been better said long ago by Channell B in R v Riley (1866) 4 F & F 964, Archbold para 4-321 namely that the full impact and weight of apparent discrepancies between oral evidence and earlier written statements can on occasions only be assessed by seeing such discrepancies in the context of the statements as a whole. 20. In this case there was great risk in what the judge did. The only real discrepancy, the differences in the description of the incident itself, were manifest without further reference to the statement. In a case like this, where the first subsequent overt complaint of rape is in the statement, it is extremely difficult to convince a jury of the limited use it can properly make of the statement. Here the judge himself failed because after an initial correct direction he added:
I am constrained to read this as an invitation to the jury not simply to treat the statement as evidence but to prefer it to that which she had given in Court. Representation: Gary Alderdice assigned by DLA for Applicant Lugar-Mawson, SACP, for Crown/Respondent |