HKSAR v. Ma Kin Yiu
Read the full judgment text of CACC 161/2007 on BabelCite. This Court of Appeal judgment was delivered on 25 April 2008.
1. The applicant was charged with one count of non-consensual buggery, contrary to section 118A of the Crimes Ordinance (“the Ordinance”), Cap. 200, Laws of Hong Kong. He was convicted of the offence after trial before Barnes J and a jury. He applied for leave to appeal against conviction.
Cited by 5 cases · Cites 4 cases
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[English Translation – 英譯本] IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO.161 OF 2007 (ON APPEAL FROM HCCC NO. 170 OF 2006) ---------------------------------- BETWEEN
---------------------------------- Before: Hon Cheung, Yeung and Yuen JJA in Court Date of Hearing: 25 April 2008 Date of Judgment: 25 April 2008 Date of Reasons for Judgment: 14 May 2008 ----------------------------------------- REASONS FOR JUDGMENT ----------------------------------------- Hon Cheung JA (giving the Reasons for Judgment of the Court): 1.The applicant was charged with one count of non-consensual buggery, contrary to section 118A of the Crimes Ordinance (“the Ordinance”), Cap. 200, Laws of Hong Kong. He was convicted of the offence after trial before Barnes J and a jury. He applied for leave to appeal against conviction. 2.We heard the application on 25 April 2008. At the conclusion of the hearing, we granted leave and, treating the application as the appeal itself, allowed the appeal and quashed the conviction. We now set out the reasons for our judgment. Prosecution case 3.The particulars of offence stated that on 20 November 2005 the applicant committed buggery with a female (hereinafter called “the victim”) without her consent. 4.The prosecution’s case was that the applicant came to know the victim in 2002 through the internet. They met afterwards and had sex for the first time at the victim’s residence. They became sex partners thereafter. Apart from vaginal intercourse, they both agreed to have sado-masochistic activities, which included taking turns to be tied up. 5.In late 2003, they had anal sex for the first time. Before having anal sex, they had vaginal intercourse. In the course of anal sex, the victim told the applicant that she felt pain and did not want to have anal sex. The applicant then stopped the anal sex immediately. 6.Although the victim indicated on this occasion that she was not willing to have anal sex, they still had anal sex for four to five times afterwards. In February 2005, they had anal sex once again. The victim first put on a dildo bought by the applicant and then inserted it into the applicant’s anus. Afterwards, the applicant inserted the same dildo into the victim’s anus and then had anal sex with her using his own penis. About five minutes later, the victim said to the applicant “[the penetration is] so deep [and it was] so painful”, and the applicant then stopped the anal sex. 7.The victim came to know a new boyfriend after this occasion and so did not meet the applicant again. 8.On 19 November 2005, the victim went to the applicant’s residence and had oral sex with him. 9.On the following day (i.e. the day of the offence), the victim went to the applicant’s residence again. On her evidence, she visited the applicant because she wanted to have sexual intercourse with him. The victim agreed to be tied up by the applicant with leather buckles, chains and ropes. Her legs were tied up to her head and her body was folded up. The applicant covered her mouth and eyes with kraft tapes and then they had vaginal intercourse. Later, the applicant wanted to have anal sex with the victim, and he applied lubricant to her anus and his penis. He also said to the victim something like “let me satisfy your needs first” and “how about penetrating [your] anus”. Knowing that the applicant wanted to have anal sex, the victim started to put up struggle and said “No” to him. At this moment, the tape covering her mouth was loosened, and she said to the applicant “No, [it is] so painful.” Although she had been tied up, she still tried to twist her body in order to stop the applicant from conducting anal sex. However, he did not stop his movement and forcefully proceeded with the anal sex. Feeling painful and hurt, the victim kept saying “No” and twisting her body. In the end, she managed to make the applicant pull his penis out of her anus. 10.Thereafter, the applicant untied the victim. She removed the kraft tape covering her mouth and left the room. However, soon afterwards she returned to the room upon the applicant’s suggestion and had another sexual intercourse with the applicant. This time the victim tied up the applicant and tortured him, following which they had vaginal intercourses for twice and oral sex for once. Defence of the applicant 11.The applicant testified that originally he intended to break up with the victim on the day of the offence and was therefore apathetic to her. However, she took the initiative to embrace and kiss him. She requested him to tie her up and have anal sex. The applicant then tied her up and covered her mouth and eyes with kraft tape. He had vaginal intercourse with her and then said to her “let me satisfy your needs first”. Then he applied lubricant to her anus and his penis. He testified he in fact did not want to have anal sex with her at that time and that he simply wanted “to do it perfunctorily, to perform the duty”. He denied having had anal sex with the victim by force. He claimed that she had agreed to do it. On his evidence, she neither cried in pain nor put up any struggle. However, after a while he noticed that she did not look good. He then tore off the kraft tape that covered her mouth. She said to him, “Not too comfortable, it’s a bit painful”. The applicant therefore stopped having sex and untied her. Then she played the opposite role by tying up the applicant and carried out sado-masochistic activities upon him. Afterwards, they had vaginal intercourse and oral sex. Directions on “genuine belief” 12.The first ground of appeal advanced by Mr. Wong, Counsel for the applicant, was that the trial judge had declined his request to direct the jury that the applicant “genuinely believed that the victim consented to the sexual intercourse”. The standard direction to the jury provided by the Judicial Studies Board on the issue of whether the defendant charged with a sexual offence believed that the victim consented to sexual intercourse is as follows:
13.Although this standard direction is designed for the offence of rape, it is also applicable to other offences which involve the issue of whether the victim has consented to a sexual act. Legal principles 14.The legal principles governing “genuine belief” are as follows:
Authorities 15.The cases cited by the parties show that, whenever the court gave a direction on “genuine belief”, there were some special elements in the case that warranted such a direction.
16.On the other hand, there are cases in which the facts simply leave no room for a direction on “genuine belief”.
The present case 17.Mr. Wong cited the aforesaid legal propositions in support of the appeal. He submitted that, had the present case merely involved what happened on the day of the offence, he would not have invited the court to give a direction on “genuine belief”, but the facts of the present case did render it necessary to give such a direction. 18.We agree with the above submission. It can be seen from the abovementioned authorities that directions on “genuine belief” were given in cases where the facts left room for such directions. The present case falls within this category. To sum up the facts, the applicant and victim were sex partners and had been maintaining this relationship for quite some time. During this period, apart from having the usual sexual activities, they also did unusual sexual acts such as sado-masochistic sex and anal sex. Although the victim had indicated that she was feeling painful and reluctant to have anal sex after she had this form of sex with the applicant for the first time in 2003, they did have anal sex for 4 or 5 times afterwards. The incident most relevant to the charge was that, when they had sex for the last time prior to the offence, the victim obviously consented to anal sex. Although they did not see each other for months after having sex on that occasion, they had sexual activities again on 19 and 20 November 2005, and the victim conceded that on both occasions it was she who took the initiative to visit the applicant’s residence and had sex with him. The events on 20 November 2005 not only represented a continuation of their sexual relationship, but, more importantly, showed that they had vaginal intercourse, to which they both consented, before having anal sex. Accordingly, the court could not rule out the need for a direction on “genuine belief” merely because both parties had given different accounts of how they had anal sex on the day in question. In our view, the court had to consider the facts as a whole before determining whether a direction on “genuine belief” was necessary. The present case did not involve the victim having been raped by a stranger. Had this been the case, there would simply have been no room for such a direction. In light of the facts and background of the case, we have no difficulty in concluding that there was room for such a direction. This was because the applicant might, on the basis of his sexual experience with the victim in the past and on the day in question, have mistakenly thought that she consented to buggery. 19.Mr. Patrick Cheung, Senior Assistant Director of Public Prosecutions, submitted on behalf of the respondent that the victim might in the past have consented to other form of sexual activities but not anal sex, and hence the facts of the present case would not have given rise to a mistaken but genuine belief on the part of the applicant that the victim consented to anal sex. Mr. Cheung also submitted that, given the applicant’s testimony that he did not intend to have anal sex with the victim at all and that he had sexual intercourse with her only reluctantly upon her request, the facts did not form any basis of a “genuine belief” on the part of the applicant. With respect, we do not agree with this submission, which we consider sweeping and over-generalized. In our view, whether the applicant believed the victim consented to anal sex was to be determined by reference to a whole range of factors, including their sexual relationship over the years and the sexual intercourse that they first had by consent on the day in question. Even if the applicant had anal sex with the victim perfunctorily on that day, it does not mean he did not genuinely believe that she consented to anal sex. The perfunctory act and the belief were not mutually exclusive. 20.Mr. Cheung raised the question of whether a direction on “genuine belief” would be needed in every sexual assault case which involved dating pairs or sex partners. We wish to stress that we consider it necessary to give a direction on “genuine belief” in the present case solely on the basis of the facts of the case. Our ruling on the need for such a direction is not based on a dating or sexual relationship between the applicant and the victim. We do not consider it necessary for the court to give a direction on “genuine belief” in each and every sexual assault case involving dating pairs or sex partners. The court does not apply the law mechanically. This is because, even where a case involves dating pairs, a married couple or sex partners, if the facts leaves no room whatsoever for a direction on “genuine belief”, the giving of such a direction would only serve to confuse the jury. Question raised by the jury 21.Mr. Cheung also pointed out that, in the course of their deliberations, the jury had raised the following question: if, in the course of having anal sex with the victim, the applicant came to know she did not consent to anal sex and thereupon stopped the act, was he guilty of the charge? The question and the direction given by Barnes J were framed in the following terms:
22.The above question, Mr. Cheung submitted, showed that the jury did consider that the applicant did not know at the beginning whether the victim consented to anal sex and only came to know in the course of anal sex that she did not consent. Mr. Cheung submitted that the guilty verdict returned by the jury showed that they considered the applicant went on with the anal sex upon knowing that the victim did not consent to it. Mr. Cheung added that, as the applicant did know the victim did not consent to anal sex, the possibility of a “genuine belief” simply did not exist. 23.The jury were not required to give reasons for their verdict, and in our view one should not second-guess why they returned a guilty verdict against the applicant. It is true that, as suggested by Mr. Cheung, the jury might have indeed considered the point mentioned by him, but it is not for the court to second-guess whether that was the basis on which the jury found the applicant guilty in the end. In our view, although the jury used the word “know”, as Barnes J had not given a direction on “genuine belief”, the jury, in raising the question about the applicant’s “knowledge” of the lack of consent to anal sex, were still not apprised of the legal concept of a genuine belief in consent. Furthermore, the facts of the present case were unusual in that the victim had consented to sado-masochistic activities such as bondage. Accordingly, even the victim had put up resistance in the course of the anal sex, we cannot be sure that the jury would still have concluded that the applicant had “knowledge” of the lack of consent to anal sex had they been directed on “genuine belief”. For these reasons, we will not hold that the present case did not involve the issue of ”genuine belief” because of the question raised by the jury and the supplemental direction given by Barnes J. 24.In our judgment, the jury’s verdict is unsafe for the reason that they had not been thoroughly apprised of the principles governing the mens rea of the offence. As Mr. Cheung took the view that it was unnecessary for Barnes J to give the relevant direction, he did not rely on the “proviso” to uphold the verdict. Under these circumstances, we do not have to consider whether the “proviso” can be applied. We will only say that, even if this question were to arise, we would not apply the “proviso”. As this Court pointed out in Wong Shing-chung:
Others 25.The second ground of appeal advanced by Mr. Wong was that, in her directions to jury, Barnes J had used a number of rhetorical questions, for the purpose of deliberately and obliquely inject her own viewpoints and opinions. Her approach, it was submitted, had affected the jury’s ability to think independently and had rendered the directions unfair. 26.As we have accepted the ground of appeal regarding “genuine belief”, it is not necessary for us to deal with the second ground of appeal.
Mr. Patrick Cheung, Senior Assistant Director of Public Prosecutions and Ms. Winnie Lam, Senior Government Counsel (Acting), for the Respondent Mr. Peter Wong, instructed by K. M. Lai & Li, for the Applicant Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor. 1 (In the above standard direction, the part concerning “reasonable grounds” may have to be revised, see paragraph 14 below) |
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