The Queen v. Dung Shue-wah

CACC001110/1982

BETWEEN

Coram: Hon. Huggins, Ag. C.J., McMullin, V.-P. & Yang, JJ.A.

Date: 15th July, 1983.

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JUDGMENT

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McMullin, V.-P. :

1. The applicant, Tang Siu-wah, now a 50 year old man, had been living for some years with the complainant's mother, Chan Ho-fai at No. 101, Ma Tau Wei Road. The complainant, Tam Fung-yee, went to reside with them at that address in ate 1974. She was then 8 years old. She continued to reside there with them until 1981 when the events upon which the charges in the present case are based came to light and were investigated.

2. Throughout this period, although she was not his natural child, the applicant to outward appearances filled the role of father and was so accepted both by the child's mother and the child herself.

3. The case for the Crown was that throughout the period commencing in the Autumn of 1975, when the child was 9 years old, and concluding with the arrest of the applicant, the applicant had regularly sexually abused the child, forcing her by threats of various kinds to yield to him whenever he desired.

4. There were 14 charges, these covered seven separate incidents and are, as the Crown acknowledges, specimen charges concerning incidents to which the girl was best able to testify by giving circumstantial detail as to place and approximate time etc. There are thus seven charges of rape with alternative charges taken either under s.123 or s.124(1) of the Crimes Ordinance according as the incidents referred to concern the period in the child's life when she was under the age of 16 or of 13 years.

5. The complainant's testimony afforded the only direct evidence against the applicant. The seven incidents which she described all followed the same pattern. It appears that her mother would leave the family home in the morning to go to work, leaving her alone with the applicant. The first two incidents (counts 1-4) took place in September 1975. The fourth and fifth incidents (counts 5-8) took place within a week of each other in May 1981; the remaining three incidents (counts 9-14) were described as occurring in the month of February 1982 on the 7th, 9th and 11th of that month.

6. All of these assaults took place in the family home in 101 Ma Tau Wei Road and on each occasion, according to the complainant she was forced to undress either by threat of beating or, on at least one occasion, by the actual infliction of blows, and thereafter to submit to intimacies which varied from slight penetration without ejaculation to full intercourse. She said that the applicant also threatened to beat her if she said anything to her mother about these events. While she was still a very young child, she would occasionally be given small gifts of money by the applicant, which she accepted.

7. During this long period there were other significant occurrences which the complainant described. She told the court how in May 1981 because she had missed her period for three months the applicant took her to China where she had an operation to terminate a discovered pregnancy. On this occasion she and the applicant spent a night in a hotel where he insisted upon taking some photographs of her in the nude. She returned with him to Hong Kong where the incident described in the 7th and 8th counts occurred. A few days later he took her back to China again on a pleasure` trip and took some more nude photographs of her. After this she returned to Hong Kong alone and the defendant remained with his family in China until the end of the year. She and her mother then moved to other premises which her mother had previously rented and stayed there with her brother who had moved there previously. Upon the applicant's return from China he insisted on them resuming residence with him in No. 101.

8. There was also evidence of a somewhat confusing nature concerning events alleged to have occurred in the year 1980. This concerned the girl's relations with a boyfriend called Law Kei-chong. The girl, her mother and this young man all gave evidence to the effect that she had gone out with him on three occasions, the last of those culminating in the discovery of them together, naked, upon the bed in No. 101, by the girl's mother. Both the girl and her boy friend denied that sexual intercourse had taken place on that occasion. After that incident there was some kind of formal engagement between the girl and the boy which was subsequently broken off

9. After his arrest the applicant was found to have had upon his person three pages in the writing of the girl which contained a partial description of her relationship with the boy, Ah Cheong. The complainant said that this had been written by her at the applicant's dictation. The mother said that she was aware that the girl had written something at the applicant's dictation and that she had been compelled to do this as a means of preventing her continuing to have relations with Ah Cheong. She said however that she was quite unaware of the applicant's unhealthy interest in her daughter until, upon the 11th of February, 1982 (the date of the final incident charged), she discovered the nude pictures of her daughter in cabinet which had been used only by the applicant. The whole matter then came out when she discussed what she had found with Fung-yee, and together they went off and reported to the police.

10. The defendant did not give evidence but a lengthy statement made by him to the police was introduced by the prosecution. In it he denied any improper, connection with the girl and he attributed the taking of the photographs to Madam Chan, the girl's mother, as also the dictating of the girl's confession concerning her relations with Ah Cheong. According to him, the purpose of both of these operations was to check her dubious relations with boys.   He admitted that he had taken the girl to China where she had had an abortion but was satisfied that the complainant's mother knew about the situation.

11. Madam Chan, for her part, admitted that after the Ah Cheong episode the applicant had asked her to take pictures of the girl in the nude but that she had merely pretended to do so, there being ho film in the camera which she used.

12. The only other evidence of significance in the case was that of the doctor whose examination of the girl on the 12th February confirmed her evidence that she had had intercourse on the previous day.

13. Mr. Payne for the applicant takes two points. Firstly, he says that this being a case which rested almost entirely upon the testimony of the complainant herself, a girl who, as the Judge observed, had shown herself to be of a somewhat promiscuous nature, and there being little in the case to afford corroboration of her testimony, the need for a careful warning on the topic of corroboration was paramount. The Judge's directions on corroboration were, counsel says, in one important respect, gravely deficient, and that upon its own, he says, is fatal to these convictions. He does not however take exception to the Judge's general direction on the topic of corroboration which was in these terms:

"Now, what can in law amount to corroboration? It is fairly straightforward. You must look for some independent piece of evidence. I mean some evidence that does not come directly from the mouth of the complainant herself. Some independent piece of evidence relating to some material fact, which implicates the defendant and tends to show that he is guilty of the offence. It need not be independent evidence of the whole offence because in that case it would not be corroboration. It would be evidence complete and entire in its own right. The Crown would then not need the evidence of the complainant because it would already have sufficient evidence to prove the case. But it must confirm some important part of the evidence as true. The other aspect is that it must in some way implicate the defendant as the person who committed the offence So firstly, you will look. for corroboration as to the identity of the defendant, the fact of intercourse, the absence of convent and the defendant's knowledge that she did not consent.. But let me stress that it is for you to decide whether them evidence does in fact corroborate the complainant's story. It is merely for me as judge to tell you what in law is the kind of evidence that can be corroboration. The final decision whether it does or does not corroborate is yours and yours alone."

14. There is no doubt that in that passage the Judge alerts the jury to the desirability of fortifying evidence to support the complainant's testimony in respect of four separate and distinct elements of proof necessary to bring home the charge. He then went on to identify those parts of the evidence which were capable of constituting corroboration of the complainant's story. At page 20 of the summing-up, he said:

"Your main task in this case is to decide if Fung-yee is telling the truth about having intercourse with the defendant. This is the central fact

15. On the next page he said:

"I have warned you of the dangers of convicting on the unconfirmed evidence of the complainant and I do so again, but I repeat that, if you find that there is no satisfactory corroboration on any point, you are still entitled to convict if you are satisfied beyond reasonable doubt that the girl's evidence is true. However, if you think that her evidence may be true, you should look for corroboration. There are some pieces of evidence that may amount to corroboration and it is for you to say whether they do or do not confirm the girl's evidence

16. Again, no exception is taken to these admirable directions. But the Judge then went on to point to three things which he said might afford corroboration. First was the fact that the applicant had arranged for the girl's abortion without telling her mother. This he suggested might afford corroboration of the fact that it was the applicant himself who had had intercourse with the girl. Next he pointed out that the medical evidence indicating the presence of semen in the girl's private party, on the 12th of February was capable of confirming her evidence that she had had sexual intercourse on the previous day. lastly he told them that if they were satisfied that the defendant was the one who had taken the photographs - and there was evidence which supported the mother's and the girl's story in this respect - they could regard that as corroborating the girl's evidence that it was the defendant who had had sexual intercourse with her.

17. Mr. Payne's point is that even if those directions were in themselves correct - and he was not disposed to take issue with the Judge upon them - they only identify corroborative matter relating to a) the fact of intercourse, b) and the identity of the defendant as the person involved. The Judge did not go on to say that these items of corroboration, assuming that the jury found them to be such, were not corroborative of her testimony in respect of one essential element in the charge, viz., the want of consent on her part. Mr. Payne relies upon the Privy "Council. decision in the case of James v. Reg. [1971] 55 Cr. App. Rep. 299.  In that case as in the present case the Judge had given the jury a general direction on the nature of corroboration which was unexceptionable. The only independent evidence apart from the testimony of the complainant herself had been found in the discovery of semen upon her clothing. At two places in the summing-up he gave directions on the question of corroboration in similar terms, the latter being to the following effect:

"In dealing with corroboration this morning, members of the jury, I pointed out to you, and this is a matter for you, but I pointed out to you that it seemed tome that the doctor corroborates the complainant that intercourse had taken place. As I say it is a matter for you; but I went on to say, and I repeat, if intercourse had taken place you will have to decide on what facts you accept, was it without consent. If intercourse had taken place without consent of the complainant, then who was the man that had intercourse with this complainant In other words, was it the prisoner that had intercourse with her as she alleges?"

18. The Board found this to be a wholly erroneous direction. Their lordships interpreted it as a direction to the effect that the doctor's evidence was capable of corroborating the girl's story not only as to the fact of intercourse but also as to the identity of the defendant and the fact of non-consent. The general principle enunciated by the Board appears on p.302, and is in the following terms:

"Where the charge is of rape, the corroborative evidence must confirm in some material particular that intercourse has taken place and that it has taken place without the woman's consent, and also that the accused was the man who committed the crime."

19. It will readily be seen that both on the facts and in the nature of the general directions on corroboration, that case and the present case are closely similar. But Mr Duncan for the Crown seeks to distinglish them in the following way. Firstly, he says that the Judge in James did not give such a warning as was given in the present case about the need to look for corroboration in respect of four elements in the necessary proof; secondly, he says that in James the burning issue was the issue of identity which was not so in the present case. The Judge's direction in James only identified the evidence capable of corroborating the fact of sexual intercourse and the jury may therefore have concluded that this was corroborative also of her evidence as to identity.   It is true that, by contrast in the present case, the Judge identified evidence which might be corroborative of the girl's testimony both as to the fact of intercourse and the identity of the man. But it is difficult to see how this distinction disposes of the prosecution's difficulty in the face of the principle enunciated in James, viz. that in rape a prosecutrix's evidence stands in need of confirmation in respect of each essential element in the proof of the crime. Want of consent is such an element.

20. Mr. Duncan also argues that want of consent was not an issue in the present case. It may be said that that is an argument which touches a sympathetic nerve so far as the members of this court are concerned.  It must honestly be said that until confronted with the principle as stated in James, each of the members of this court would have been disposed to consider the possibility that there might be circumstances in which the classic definition of corroboration given by Lord Reading L.C.J. in Rex v. Baskerville (12 Cr. App. Rep. 81) could be satisfied by the showing of corroboration in relation to one or more but not necessarily to all of the elements of the offence. Nor would we wish to say anything which might give the appearance of foreclosing argument against such possibility should the circumstances of a later case call for further consideration of the reach of the rule quoted above from James. Such an approach might seem especially appealing in such a case as the present, involving, at least at the outset, a child of tender years and a person in loco parentis - a situation in which the whole notion of consent must necessarily tend to have a weakened relevance. Be that as it may, the principle as stated in James is clear and it is clearly applicable in the present case.

21. Although the Judge in the present case did identify. corroborative matter in relation to the questions of intercourse and identity, he failed, as did the Judge in James, to point out that such evidence could not be corroborative of the girl's allegation that what was done was done against her will. Upon this ground alone, albeit with considerable reluctance, we feel compelled to interfere.

22. Mr. Payne's second point was that in explaining the elements of the offence of rape to the jury, the Judge did not attempt to define for them what would constitute recklessness within the meaning of s.118(3)(a) of the Crimes Ordinance Cap. 200. He relies upon the decision of Court of Appeal in Pigg [1982] 74 Cr. App. Rep. 352. In that case the Judge had ventured upon a definition of what constituted recklessness under the English section which is in terms identical with our own. The Court of Appeal found that in doing so he had presented the matter to the jury in a manner altogether too favourable to the appellant. altogether the court did go on to consider what else might constitute recklessness within the meaning of the section, we cannot find anything in the judgment to suggest that the term bears a special or lawyer's meaning therein. On the contrary, Lord Lane L.C.J. cites with approval observations of the House of Lords in Caldwell [1981] 73 Cr. App. Rep. and Lawrence [1981] 73 Cr. App. Rep. 1 in which cases the notion that the word "reckless", when it appears in statutory provisions, bears other than its common sense meaning was firmly repudiated. These authorities have been enlisted to the same effect recently by another division of this court in Chau Ming Cheong, Cr. App. 1011/82.

23. We see no reason to depart from the advice then given.

24. For the reasons given in respect of Mr. Payne's first point, however, we think that the appeal must be allowed,. the convictions quashed and the sentences set aside.

25. That, however, does not end the matter. The jury were carefully instructed on the nature of the alternative charges and they were told, correctly, that in relation to those charges it was immaterial whether there had been consent or not. They can only have convicted of rape on one of two possible basis : either they believed the complainant's story and convicted on that alone without having regard to the matters pointed to by the judge as affording corroboration or else they did enlist that evidence in finding her story to be truthful. If it had been demonstrated to this court that the former course had been adopted by the jury we mould have had no reason to upset the convictions. It is because we cannot be sure of that that we must interfere. But the directions on corroboration were perfectly correct insofar as the issues of intercourse and identity are concerned and the jury in convicting of rape must necessarily have approved the force of the corroborative matter on these issues as well. Had they not been, possibly, misled into relying on it also for want of consent, they must at any rate have convicted upon the alternative charges since the complainant's age has never been in issue and was satisfactorily proved. We think, therefore, that justice can best be served by substituting convictions for unlawful sexual intercourse with a girl under the age of thirteen years on counts two and fair and for unlawful sexual intercourse with a girl under the age of sixteen on counts six, eight, ten, twelve and fourteen.

Note:

Representation:

Mr. Ian Payne (D.L.A.) assigned for Appellant.

Mr. Peter Duncan for Respondent/Cram: