HKSAR v. Wong Tak Fai

CACC 64/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 64 OF 2008

(ON APPEAL FROM HCCC NO. 210 OF 2007)

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Before:  Hon Tang VP, Suffiad J and Barnes J in Court

Date of Hearing: 19 September 2008

Date of Judgment: 19 September 2008

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J U D G M E N T

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Hon Tang VP:

Introduction

1.The applicant, Wong Tak-fai, appeared before Bokhary J sitting with a jury on an indictment consisting of two charges of rape.  The 1^st charge alleged that the applicant raped the complainant, nicknamed “Creamy” at the New Kings Hotel in Yaumatei on 4^th June 2007, and the 2^nd charge alleged that the applicant raped the complainant on the same day and at the same place, but on an occasion other than the one referred to in the 1^st charge.

2.The applicant pleaded not guilty to both charges.  At the close of the prosecution case the learned judge directed the jury to return a not guilty verdict on the 2^nd charge.  The jury convicted the applicant of the 1^st charge, and the judge sentenced him to 4 ½ years’ imprisonment.

3.The applicant now seeks leave to appeal against conviction.

The Facts

4.The applicant and the complainant did not know each other, but were both guests at the birthday party of a friend Ms Yuen Wai-shan, Ris at the Neway Karaoke in Prat Avenue, Tsimshatsui in the evening of 3 June 2007.

5.After midnight, the complainant was quite drunk, having drunk, in a dice game, nine to ten glasses of whisky with green tea.  She had vomited and was lying on a sofa. A taxi was summoned and the applicant agreed to see the complainant home, as according to him, he had “made her drunk”.

6.A taxi driver (“Mr Cheung”) having received an order to go to Sheung Shui, arrived at the Neway Karaoke at about 3.30 am on 4 June 2007 and picked up the applicant and the complainant.  When Mr Cheung asked if they were going to Sheung Shui and where in Sheung Shui, the applicant asked to be taken to Man Ming Lane in Yaumatei instead. Mr Cheung heard the applicant saying, “Going to your place or to my place?” but did not hear any reply from the complainant.

7.The applicant then alighted in Yaumatei with the complainant and, after withdrawing money from a nearby ATM machine, walked to the New Kings Hotel in Nathan Road.  Shortly before 4 am, the applicant, together with the complainant, registered and paid for a room at the New Kings Hotel.  They were then taken to Room 706.

8.Both the hotel receptionist and the bellboy said the complainant appeared to be quite drunk, but the applicant was not.  The receptionist said that the applicant was holding the complainant’s arm and the bellboy said when the complainant entered the lift, she took the applicant’s arm.

9.The bellboy also said when he entered the room in response to the applicant’s complaint about the air-conditioning, he saw the complainant lying on the bed, with her eyes closed, and appeared to be sleeping.

10.The applicant and the complainant ended up in the same bed, and had sexual intercourse in the early hours of 4 June 2007.  The complainant was a virgin.

11.The complainant left the New Kings Hotel at about 8.45 am on 4 June 2007 and contacted her sister.  Before taking a train to go to Sheung Shui, she told her sister that she had been raped.

12.Having met up with her sister, the complainant was taken to a nearby park where, in tears, she gave an account of what according to her had happened.  The sister then made a report to the police.

13.The applicant left the New Kings Hotel at about 11 am on 4 June 2007 and went to the Mainland.  In the early hours on 5 June 2007, the applicant returned to Hong Kong.  He was arrested at Lok Ma Chau and taken to the Yaumatei police station, and then to Tsimshatsui police station where he was interviewed under caution.

The Prosecution Case

14.The prosecution alleged that the applicant took advantage of the complainant’s state of drunkenness and had sexual intercourse with her against her will when she was too weak to resist.

15.The complainant said, in her evidence, that the applicant claimed to be taking her home.  She could not remember getting into a taxi, but remember getting off it, thinking it was in the vicinity of her home. When she got into a lift, she realized that she was with the applicant and that it was not her home, although she did not know it was a hotel.

16.The complainant then felt that she was lying on a bed and the applicant was taking off her clothes against her will. She said she had tried to stop the applicant, but was too weak to do so. The applicant then took off his clothes and laid on her, kissing and touching her before having sexual intercourse with her.

17.The complainant said she struggled in vain as the applicant was lying on top of her.  She felt aggrieved and burst out crying.

18.The complainant said that the applicant had raped her three times, twice by penetrating her from front and once from the back. She said as the applicant was raping her, she could not keep awake and fell asleep. She was adamant that she did not consent to the sexual intercourse, but was unable to resist the applicant as she was powerless.

19.The complainant further said that when she woke up, it was 7.15 am.  She immediately grabbed her clothes and rushed into the bathroom to clean herself. The applicant unsuccessfully tried to hold her back as she was trying to leave, asking her to be his friend and saying it was a misunderstanding, and said he was sorry.

20.It was established in cross-examination that when the complainant was in the bathroom, she realised that she had left her vest in the bedroom, and she then held a jacket in front of her and returned to the bedroom to search for the vest together with the applicant.

21.The complainant, however, denied ever getting on top of the applicant and saying it was her “first time”.

22.As noted above, the complainant then contacted her sister before taking a train to go home in Sheung Shui and, after meeting her; the matter was reported to the police.

23.The prosecution further alleged that the applicant had made admissions to the police after his arrest in two interviews.

24.In the 1^st interview, the applicant described how he attended the birthday party and how he was having fun with others, including the complainant, whom he had just met.  The applicant said they had both consumed a large amount of whisky with green tea.  However, the applicant said he was just a bit dizzy and the complainant was not drunk, although she was unable to tell him where exactly in Sheung Shui that she lived.

25.The applicant said he intended to escort the complainant back to Sheung Shui, but then realized that he did not have sufficient money to pay for the taxi and as the complainant appeared to be in much discomfort, he decided to withdraw money from an ATM machine and to rent a room so that she could take a rest.  However he had not asked whether she agreed.

26.After entering the hotel room, the applicant put the complainant on the bed after taking off her shoes. The applicant admitted that while sleeping, he kissed, touched the complainant and then removed her clothes to have sexual intercourse with her. The applicant further admitted that he did not ask the complainant for her consent but that claimed that she did not say anything either.

27.The applicant further said that once when the complainant pushed him, he stopped.  However, after a while, he started kissing and caressing the complainant again and she did not resist.  He then had sexual intercourse with her.  The applicant said he did not know if she consented to it.

28.The applicant was interviewed a second time in the same evening.  The applicant said the complainant was able to walk on her own although he had to support her with his hands.  The applicant further admitted that when he was having sexual intercourse with the complainant, her eyes were closed and she did not move, and he was not sure if she was conscious.

29.The applicant admitted to have had sexual intercourse with the complainant two to three times, although he only ejaculated once.  He said there was an interval of about 30 minutes between each intercourse during which both of them slept.

30.The applicant also claimed that when he was having sexual intercourse with the complainant, she had, on one occasion, climbed on top of him.

The Defence Case

31.The applicant did not give or call any evidence in his defence. However, through cross-examination, it was suggested to the complainant that she agreed to and fully participated in the sexual intercourse with the applicant.

32.It was suggested to the complainant that she initiated the sexual intercourse with the applicant and had enjoyed it, and that it was only in the morning when it dawned on her that her family would ask questions that she came up with the story about her being powerless to resist the applicant’s advances.

33.The defence further suggested that the applicant’s interviews by the police were not properly conducted and the records of the interviews were the result of impropriety and oppression. In addition to the various forms of inducements and threats, it was suggested that the applicant was not permitted to call his mother, and was instructed as to what to say.

The Summing Up

34.Since intercourse was not in dispute, the only issues for the jury were whether it was consensual and if not, whether the applicant genuinely believed the complainant was consenting.  The learned judge directed the jury as follows:

“Rape is committed when a man has sexual intercourse with a woman without her consent and he either knows that she does not consent, or is reckless as to that fact. I will repeat that. Rape is committed when a man has sexual intercourse with a woman without her consent and he either knows that she does not consent, or is reckless as to that fact. Sexual intercourse means… As to recklessness, a man is reckless if he does not believe that the woman is consenting or not but presses on regardless. Even if the woman is not consenting, if the man genuinely believes that she is consenting, then that genuine belief is a complete defence to rape, and he must be found not guilty of rape. It does not matter whether his belief is reasonable or not. Provided that it is genuine, it is a complete defence. Of course, the reasonableness or otherwise of believing that the woman was consenting in the circumstances is a relevant factor to be taken into account in deciding whether or not the accused genuinely believed that she was consenting….

Since there is evidence that the accused had consumed alcohol, I should tell you this: as far as recklessness is concerned, if you are sure that the prosecution has established that the accused was reckless, then the fact that this was or may have been due to the voluntary consumption of alcohol is no defence. Also, if you come to the sure conclusion that the accused did not, or may not have applied his mind at all to the question of whether the woman was consenting, in other words, if you feel sure that because of the drink he had voluntarily consumed, his mind on the topic was or may have been virtually a blank, then he will – I repeat – will have been reckless. If wholly due his voluntary consumption of alcohol, a man forms a mistaken belief that the woman was consenting to sexual intercourse when she was in fact not consenting to it, then he will have been reckless, and may be convicted.”

35.On the absence of evidence from the applicant, the judge gave the standard directions to the jury, saying:

“The accused has not given evidence. An accused does not have to give evidence. He is entitled to sit in the dock and require the prosecution to prove its case. You must not assume that he is guilty because he has not given evidence. The fact that he has not given evidence proves nothing, one way or the other. It does nothing to establish his guilt. On the other hand, however, it means that there is no evidence from the accused himself to undermine, contradict, or explain the evidence put before you by the prosecution.”

“The accused has neither given or called evidence. As I have told you, he is under no obligation to do so, and is perfectly within his rights in no doing so. His not doing so is not to be held against him in any shape or form whatsoever. Having said that, I should remind you of this: The accused’s choice not to go into the witness-box does mean that there is no evidence from the accused himself to undermine, contradict, or explain the evidence before you by the prosecution, most importantly of course that of Creamy herself.”

36.These direction were made in accordance with a decision in the Court of Final Appeal in Li Defan and Anor v HKSAR [2002] 5 HKCFAR 320.

37.It was agreed that the applicant had a clear record, and on this the learned judge said:

“The accused has a clear record. He is therefore of good character. This helps him in this way: he can rely on his good character as making it more unlikely than otherwise that he would commit crime of rape as the prosecution alleges and which he denies.”

38.In the end, the learned judge put the following question to the jury:

“Was the accused aware that Creamy was not consenting, or at least reckless as to whether or not she was consenting? To decide this question as to the state of mind, you consider all of the circumstances of which you feel sure. Then you ask yourselves whether the only reasonable inference in such circumstances is that he was aware that she was not consenting, or at least reckless as to that…”

39.The summing up concluded at 11.44 am and by 7.20 pm, the jury was still out.

40.The learned judge called back the jury at 7.22 pm to tell them that if they could not reach a verdict by about 8.30 pm, they should retire and resume deliberating the next morning.  She said:

“Members of the jury, you have been deliberating for quite a long time now, and you must not overtire yourself. Now, when a jury need more than a day to reach its verdict, what happens is that they will spend the night in bedrooms in this building and then continue the following morning after a night’s rest. That does happen from time to time, and indeed we do have special jury accommodation for that purpose.

Now, all things considered, I think that you should be given until 8.30 tonight to see if you can reach a verdict…you must not be under any pressure as to time and rush in order to reach a verdict. You have all the time in the world. You have got the whole of tomorrow, the day after and the day after. Sometimes juror do need some time to reach their verdict…”

41.After the learned judge had given the overnight direction to the jury, the foreman indicated that they had 2 questions.

42.The learned judge asked the foreman to write down the questions, the time was then 7.26 pm.

43.The court resumed at 7.59 pm in the absence of the jury when the judge informed counsel of the two written questions, which were:

“1  Definition of genuinely belief

no indication

2   Definition of consent, if didn’t say anything what does it mean?”

The learned judge then discussed with counsel on how to deal with the questions which concluded at 8.10 pm.  At 8.19 pm and before the learned judge had the opportunity of further directing the jury, the jury informed the court that they had already reached a verdict.

44.When the court resumed, the learned judge, nevertheless, proceeded to give further direction to the jury on the two questions raised by them.  She directed them, inter alia, as follows:

“Now as to [the 1^st] question, I will tell you this. Genuinely believing that a woman was consenting to sexual intercourse means really thinking that she was consenting to it. It arises where the woman was not consenting. The question then is whether, even though she was not consenting, whether the accused genuinely believed - that is, really thought - that she was consenting.

A man does not - and I repeat - a man does not genuinely believe that a woman is consenting if he wither knows that she is not consenting or he is reckless if he does not believe that she was consenting and could not care less whether she was consenting or not, but presses on regardless.

If he is reckless, then he does not - I repeat - then he does not genuinely believe that she was consenting. Recklessness, as I have explained to you, is enough for a guilty verdict. So that is the answer to your first question.

As to the second question … In the context of rape, consent to sexual intercourse means willingness to have sexual intercourse.  The question of indication is one of fact.”

45.She then asked the jury if they wished to retire to further consider their verdict.  Without further deliberation, the foreman said, “We have verdict already.” When the judge further asked if there was the need for them to further retire, the foreman said, according to Mrs Panesar without conferring with the other jurors, “No need”, whereupon the judge proceeded to take the verdict from the jury, which was a guilty verdict by a majority of 6 to 1.

Grounds of Appeal

46.Mrs M Panesar, on behalf of the applicant, initially relies on two grounds of appeal:

“1.(a) The jury had not understood the learned judge’s direction about the applicant’s belief subjectively and objectively, whether PW1 was consenting or appeared to the applicant to be consenting by conduct. This lack of understanding was reflected in the jury’s questions for which they did not receive further directions before reaching the verdict;

(b) The jury was not properly directed on mens rea, and the applicant’s belief and state of mind at the material time.

2.   Whilst having directed the jury regarding the applicant’s right to silence, however, there was emphasis placed on his failure to testify, which undermined the applicant’s right to silence.”

First Ground

47.Mrs Panesar’s submission is not that the learned judge’s direction was in any way defective.  The submission is that notwithstanding the clear direction given by the learned judge, the two questions showed that the jury had not understood the direction.  Nor is it complained that the learned judge’s further directions were not sufficient to inform the jury regarding consent or the defence of genuine belief.  The complaint is that after such further directions the jury informed the court that they had the verdict and there was no need for them to further retire.

48.However, it is important to note that between the time the questions were posed (at about 7.26 pm) and the further directions at 7.59 pm, the jury had had time to further consider their verdict.  I can see no reason to assume that during that time, upon further reflection they could not have resolved any doubt which earlier they might have had.  Furthermore, they had the benefit of the further directions at 7.59 pm.  I cannot proceed on the basis that if the further directions was in any way different from their understanding on those issues, the jury would not have retired and considered the matter further.  As Pun Luen-pan v HKSAR [2008] 2 HKLRD 404 shows, a jury must be given credit for its ability to apply commonsense to the directions given to them by the judge.  I would add that it must be given credit for its ability to do its duty to return a ture verdict according to the evidence. 

49.Nor can I agree that the jury had been put under any pressure of time.  They commenced their deliberation at about 11.45 am.  By the time they were given the overnight-direction at 7.22 pm they had been deliberating for 7½ hours.  The overnight direction was properly given.  It is entirely speculative (indeed unfair) to say that the jury had hastily and without proper understanding returned their verdict because of the overnight direction.

50.I turn to the 2^nd ground.  The learned judge’s direction on the right of silence followed the guidance given by the Court of Final Appeal in Li Defan.  Mrs Panesar submitted that the direction are “at odds” with the later judgment of the Court of Final Appeal in HKSAR v Lee Fuk Hing [2004] 7 HKCFAR 600.  I do not agree.  In Lee Fuk Hing the defendant gave evidence during trial that the drugs were left behind by “X” something which he had not mentioned to the police during their investigation.  The trial judge questioned him on his failure to mention X’s existence to the police.  That was held to have impugned his right of silence during police investigation.  Indeed the right of silence was turned against the defendant.

51.But the point in Li Defan is that if a defendant had not given evidence in court, the judge must tell the jury that he was under no obligation to do so but the judge might add that there was thus no evidence from the defendant “to undermine, contradict, or explain the evidence” put before the jury.  Such a direction does not in any way undermine his right of silence

52.Mrs Panesar submits that the Li Defan direction would undermine “the exculpatory parts of the video recorded interview of the applicant” (para. 30).  She submitted there was some evidence in those interviews “which supports suggestion that PW1 was a willing party to the whole incident .... So, this is not exactly a case where there was no evidence from the applicant to ‘undermine, contradict, or explain’ the prosecution case.” (para. 31).  It is to be noted in Li Defan, the defendant had similarly given mixed statements under caution. 

53.The learned judge’s direction has been quoted in para. 34 above.  Earlier however the learned judge had given careful direction to the jury on the exculpatory evidence in the interviews, e.g. at 9P-R, 10 B-D and then 10H-O as follows:

“Members of the jury, you have heard from each counsel on the matter of which part of the accused’s out-of-court statements are particularly relied upon by the prosecution and which part of them are particularly relied upon by the defence. Each counsel have gone through the two video-recorded interviews with you quite thoroughly. They have drawn your attention to the particular parts which they are relying upon. You have watched the videotapes and you have the transcripts of the interviews - so I do not propose to take you through the transcripts, which are there for you to read as you see fit. What I will say to you is that the accused’s out-of-court statements, taken as a whole, should be read as being to the effect that he was saying that Miss Tsui was consenting, or at least that he believed that she was consenting, to sexual intercourse.”

54.These directions are impeccable.  It is important to note, however, that the Li Defan direction was directed to the fact that the defendant had not given evidence in court.  It was in that context that it was said:

“… there is no evidence from the accused himself to undermine, contradict or explain …”

In other words, no oral evidence from the accused himself before the jury to “to undermine, contradict or explain the evidence”.  There is nothing in this point.

55.Mrs Panesar also submitted in addition to these two grounds that the learned judge should have given direction to the jury on the applicant’s credibility having regard to his clear record.  It would be noted that earlier in my judgment I mention that the learned judge had given direction on the defendant’s propensity having regard to the fact that he has a clear record and therefore a person of good character.  Mrs Panesar submitted that because, in the video interviews, the applicant had made both inculpatory and exculpatory statements, the learned judge should have given a direction on credibility as well.  I do not agree that in such circumstances, a direction on credibility is necessary.  It is likely to cause confusion to the jury since they might find it difficult to decide what weight should be given to the statements, both exculpatory or inculpatory, in the video interviews.  The passages in the summing up which I have referred to in para. 53 above, have dealt with such matters appropriately.

56.For the above reasons I would refuse leave to appeal.

Hon Suffiad J:

57.I agree with the reasons given by Tang VP in this case and I too refuse leave to appeal.

Hon Barnes J:

58.I agree.

Mr. Robert S. K. Lee, SC, SADPP and Ms. Winsome Chan, SPP, of the Department of Justice, for the Respondent.

Mrs. M. Panesar, instructed by Messrs Francis Kong & Co., for the Applicant.