HKSAR v. Lam Man Kin William

CACC 388/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 388 OF 2007

(ON APPEAL FROM HCCC NO. 77 of 2007)

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Before:   Hon Stuart-Moore VP, Beeson and McMahon JJ

Date of Hearing: 30 September 2008

Date of Judgment: 21 November 2008

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.This is an application for leave to appeal against conviction on 16 October 2007 for rape which followed a trial before Deputy High Court Judge Line and a jury. 

The prosecution case

2.The complainant, who was known to the applicant, alleged that she was raped by him in her flat in Tsuen Wan on 10 October 2006.  The applicant was at that time a serving police constable.

3.The complainant first came to know the applicant in 1998 when she was about 16 or 17 years old after she had answered a newspaper advertisement in a ‘Friends Wanted’ column.  They met, had sex and were intimate friends for a period of about 3 months.

4.In late 1999 or early 2000, the complainant resumed contact with the applicant after she had spoken to him about her quarrels with a new boyfriend.  They had sex again on two occasions.  The first time was in a villa in Kowloon Tong and the second time was inside a vehicle at a place somewhere on a hillside.  However, according to the complainant, she did not consent on the second occasion and sexual intercourse only took place because the applicant was violent towards her. She became frightened of the applicant after that and had no further contact with him for about six years.

5.It seems that the applicant got married on 20 May 2006 as he telephoned the complainant to tell her about this.  They then resumed contact by telephone.  At this time, the complainant had a boyfriend (PW2). 

6.In about July 2006, the complainant moved from her family address to the flat in Tsuen Wan (identified in the rape count).  PW2 would sometimes stay there overnight. 

7.In August 2006, the complainant informed the applicant that she had moved and she invited him to visit her at her new flat.  Shortly afterwards, the applicant went to see her there and helped her to rearrange the furniture.  During conversation, the complainant said she was feeling pain somewhere in the region of her abdomen.  The applicant pressed the area which was hurting to check it.  The complainant did not recall why or how but they ended up inside her bedroom where the applicant embraced and kissed her.  When she pushed him away, the applicant said he would not “touch” her by which he meant that he would not have sex with her.  She was frightened that the applicant might want to have sex with her and so she told him that she was having her period.  He then, with one hand, held her tightly on the bed while he masturbated himself with the other hand in spite of the complainant making her disapproval clear to him.  Although she felt disgusted at the applicant’s behaviour now that he was married, the complainant did not feel in danger as she said he did not harass or hurt her.  She just wanted him to leave as soon as possible as “when they were dating, he frequently made such sexual demand on [her]; even though [she] was unwilling to have it, he would still go on.  In fact, what [she] learnt from his character was that every time he saw [her] he would come up with the sex request.”

8.The applicant called the complainant on the day following his visit to her flat to ask her to look for his wallet which he had left behind.  She found this and arranged to meet him on 1 September 2006 at the MTR station to return it.  However, this arrangement had to be changed and, in due course, the applicant once again met the complainant at her flat.  She was in a hurry and, after she had changed her clothes, they left the flat together.

9.On 9 October 2006, the applicant called the complainant to see whether her boyfriend (PW2) would be going to her flat.  She was not sure.  However, on 10 October 2006, when the applicant telephoned her again, she was able to say that PW2 would not be going to the flat.  This was the cue for the applicant to visit the complainant at about 11 pm after he had finished work. 

10.The complainant and the applicant chatted and watched television in the sitting room and she mentioned to him at one stage that she had been diagnosed as having a uterine cyst.  She told the applicant that she was worried about getting thinner for no apparent reason and she complained also that she had sore shoulders.  The applicant massaged her shoulders whilst she sat on the sofa but he was later able to convince her to lie on the bed as he said it would be a more comfortable way to massage her. 

11.Whilst the complainant lay face down on the bed, the applicant pulled down her underpants to her knees.  The complainant asked him what he was doing and he said “… feel rest.  Feel assured that I would not touch you and I will not have sex with you.”  She was thinking at the time that if the applicant got sexually aroused, the most he would do would be to masturbate himself.  However, when she heard him removing his leather belt, she turned round in time to see the applicant removing his pants.  He was saying: “I can’t control myself any more.”  He then climbed onto her, kissed her and pressed her down.  She kept saying “no” and resisted his advances but he then grabbed her hair, shook her head and knocked the back of her head against the wall about twice.  He used his right hand to grab hold of her neck for a few seconds but the way he did it was so hard that she almost lost her breath.  She then became afraid that her life was in jeopardy and so she did not dare to protest.  The applicant told her: “You know that the consequence will be the same even though you protest.  There’s no use for you to protest or resist.”

12.The complainant said that she only submitted to having sex with the applicant because she wanted him to leave as soon as possible but, as she was afraid of contracting venereal disease, she asked him to put on a condom.  She went into the sitting room to collect the condoms.  However, as the applicant was unable to get an erection after putting on a condom, she assisted him to get erect and to put on two further condoms.  Eventually, she allowed the applicant to have sex without a condom so that he would finish quickly and leave.  When sexual intercourse had taken place, the applicant ejaculated onto her abdomen.  Throughout, the complainant said she had been crying and during the incident she said that she had not dared to answer her mobile telephone when it rang on two occasions.

13.After the applicant had left, the complainant was still crying.  She immediately called PW2 to say “sorry” and to tell him that she did not want this to happen.  She could not recall exactly what she said to him but she asked him to come to her flat as soon as possible. 

14.The complainant then called a close friend (PW4) whilst she was waiting for PW2 to arrive.  It was at about 12.35 am when the complainant spoke to PW4, telling her that she had just been raped by her “cop” ex-boyfriend.  She said that he grabbed hold of her neck and held her down and had not used a condom.

15.During the cross-examination of the complainant, it was suggested to her that she had made up lies to conceal the fact that she had been dating the applicant secretly after PW2 had questioned her about her failure to answer his calls that night.  It was suggested also that she had consented to have sex with the applicant and that some injuries found on her after she had undergone a medical examination were the result of engaging in vigorous sexual intercourse.  Similarly, it was alleged that the complainant had engaged in consensual sex with the applicant during his first visit to the flat rather than masturbation.  All of these suggestions were denied.

16.When PW2 arrived at the complainant’s flat, he found her in a very emotional state.  She related to him the events which had led up to her having sexual intercourse with the applicant and she asserted that she had been an unwilling participant in this. 

17.When PW2 was cross-examined, it was put to him that he was suspicious that the complainant had been dating secretly and that, by virtue of his questioning of the complainant, he had caused her to make up an allegation against the applicant in order to maintain her relationship with PW2.  PW2 rejected these suggestions.

18.PW2 said that he asked the complainant to make a report to the police but he said that she was reluctant at first as she was afraid that her name would be reported in the newspapers and that her family would find out.  PW2’s response was that it would be difficult to face this unless she did make a report. Eventually, this was done and, once a report had been made, the police came quickly, arriving at the flat at about 2 am.

19.The complainant was medically examined in the early hours of that morning.  Dr Tsang (PW3) testified that her examination of the complainant revealed injuries to the complainant which were consistent with the complainant’s description of being grabbed hard around her neck and her legs being separated by force.  These injuries, all of which were recent, are clearly visible in the album of photographs (Exhibit 49).  There was no challenge to Dr Tsang’s evidence but Dr Tsang readily conceded that it was not possible to say if the injuries were the result of non-consensual rather than consensual sexual intercourse.

Defence case

20.The applicant did not give evidence or call any witnesses on his behalf. 

21.The defence relied on the account the applicant had given in his video-recorded interview in which he said that sexual intercourse had taken place with the complainant’s consent.  He said that it had been a happy occasion and he did not know why the complainant would say that he had raped her but he guessed that she had made up a story to explain her failure to respond to PW2’s calls while they had been together.  The applicant said that the complainant was framing him and he denied using any violence on the complainant, saying that she had at no time resisted him or told him to stop.  He said that he would have stopped if she had indicated to him to do so because she had her “right”.  Her only complaints had been when he accidentally put his hand behind her head and her hair was caught and, at another stage, when he penetrated her too deeply. 

22.As to the complainant’s failure to answer PW2’s telephone calls, the applicant said that he suggested “explanations” she could give to PW2.  The applicant had, he said, never subjected the complainant to violence or forced her to have sex with him without her consent.  The hillside incident several years earlier involved, he said, consensual sex. 

Grounds of appeal

23.Mr M K Wong SC advanced five substantive grounds of appeal.

(1) Directions on the approach to defence evidence

24.In the first ground, a threefold complaint was made that the jury had not been properly directed about the approach they should take to the case for the defence.  In the first place, it was submitted, the judge gave the jury the impression that they “must choose between the prosecution’s version of rape and immediate complaint and the defence version of consensual intercourse and invention of rape, as if the jury were not entitled to find that the defence case may be true”.  This suggestion was made in the light of the judge’s words to the following effect:

“The issue in the case could not be clearer. Was that sexual intercourse the result of rape – the defendant using force to have his way with her without her consent as she told you in her evidence – or was the sexual intercourse happy and consensual as the defendant described to the police in his interview after arrest?

Was this a true rape where the victim immediately complained she has been raped to her boyfriend and her close girlfriend, as those two witnesses [PW2 and PW4] told you in their evidence or have they misled you, hiding the true position, which the defence suggests was one where the boyfriend’s suspicion and jealousy led to the invention of a false claim of rape by [the complainant] prepared after she consulted her girlfriend in the matter? How and in what circumstances were the injuries caused that the pathologist found on [the complainant] when [s]he examined her? These are the central issues and questions that have emerged in the trial. Deciding those questions is your job and nobody else’s.”

25.These passages appear in the second and third paragraphs on the first page of the summing up.  In these two short paragraphs, the judge had managed to encapsulate the issues to be determined by the jury in a manner which, we consider, is to be encouraged.  It is plainly helpful to a jury, before a judge embarks on a summary of the relevant law, for the judge to remind the jury in simple and straightforward terms what the issues in the case they have been trying really are.  This is precisely what the judge, in this case, did before giving formal directions on the law. 

26.One such direction included the approach which the jury should take to the issues they had to decide, bearing in mind that the applicant had chosen not to give evidence.  In doing this, the judge correctly directed the jury as follows:

“The defendant did not give evidence. He was not obliged to do so. He is entitled to sit in the dock and require the prosecution to prove its case. You must not assume he is guilty because he did not give evidence. You have to decide whether on the prosecution’s evidence you are sure of his guilt. The fact that he did not give evidence proves nothing one way or the other. It does nothing to establish guilt. On the other hand, it means there is no evidence from the defendant to undermine, contradict or explain the evidence put before you by the prosecution.”

27.Immediately following this direction, the judge continued (see: R v Sharp [1988] 1 WLR 7 at 10-11):

“The prosecution’s evidence contained what the defendant said in his video-recorded interview. The interview with the police contains both incriminating parts and explanations. For instance, he admits having sexual intercourse with [the complainant], but he says that it was consensual, with her consent. You must consider the whole of the interview in deciding where the truth lies in the case. You may feel that the incriminating parts are likely to be true, for why else would he have said them?

You may feel there is less weight to be attached to the defendant’s explanations - that is, when he says it was with her consent - for that assertion has not been made after oath and affirmation in the witness-box. More importantly than that, perhaps, it has not been tested by cross-examination. If you were to reject what the defendant said in his interview, or give it diminished weight, the prosecution evidence must still make you sure of guilt before you could convict.”

28.Mr Wong’s second complaint, in the context of his 1^st ground of appeal, arose from the directions we have just cited as nowhere, it was submitted, was the jury told that even if they did not positively believe that this was a case of consensual intercourse, they should still consider the defence case to decide whether it “may be true”.  Mr Wong contended that the jury were left without instruction as to what to do if they were not sure whether to believe the applicant’s account given in his answers to the police.

29.This submission, with respect, was somewhat naïve in the light of the directions given by the judge as to the burden and standard of proof.  The jury had been told that:

“… If after considering all the evidence you are sure the defendant is guilty of the charge against him, your verdict must be guilty. If you are not sure, the verdict is not guilty.”

Nothing could have been clearer.  If the jury were less than sure, they had been told they must acquit.

30.However, the judge did go on to explain shortly afterwards that:

“… To achieve a conviction in this case, the prosecution must make you sure that the defendant knew that [the complainant] was not consenting to the sexual intercourse but her submission to it and her co-operation in its execution came about because he had overborne her will and resistance.”

31.The third and last complaint under this ground was that the judge:

“… erred in directing the Jury that since the Applicant elected not to give evidence in Court it means there is no evidence from the defendant to undermine, contradict, or explain the evidence put before the Jury by the prosecution in that the Applicant had given a mixed statement in a cautioned interview which says that [the complainant] consented in the sexual intercourse, which in law was evidence of the truth of the content, which could undermine, contradict or explain the prosecution’s evidence.”

32.The point is not a new one and, to take a recent example where this court has had to deal with a criticism of the standard direction given to juries in cases where a defendant has chosen not to give evidence, Tang VP approved the direction in HKSAR v Wong Tak-fai CACC 64/2008, pointing out that it was in accordance with the decision in Li Defan and Anor v HKSAR [2002] 5 HKCFAR 320 at 325 paragraph 3.

33.In the present case, the judge had reminded the jury that the weight to be attached to the explanations given by the applicant to the police was for them to decide and, when he had summarised the answers the applicant had given, the judge went on to say:

“That concludes my summary of what the defendant said to the police.  I remind you of my earlier direction that the weight you choose to give to what he said in his interview is a matter for you. But remember it has not been tested by cross-examination, and bear in mind the consideration that incriminating parts and explanatory parts - bits that help him - can attract different weight. It is a matter for you.

Of course I remind you he denied rape in the interview, but I also point out there is nothing in the interview to explain the injuries that were found on [the complainant] by the pathologist. The suggestion that they were caused accidentally in robust consensual sexual intercourse is just that; it is the suggestion that came from [defence] counsel.

Indeed, what you will want to do, probably, is [to] consider if what the defendant described in his interview was consistent with the suggestion of robust sexual intercourse that would explain the marks the pathologist found on [the complainant].”

34.When dealing with the complainant’s injuries, the judge had earlier remarked:

“There was no challenge to her description of the sexual intercourse, with its three intermissions to accommodate the defendant’s failing erection. You may think that the finding of the three condoms in the flat supports her on this. I mention this, as it is something you can consider when seeking to judge the nature of the sexual intercourse and the idea that consensual sexual intercourse caused the injuries that were later found by the pathologist on [the complainant]. In other words, was it a robust sort of sexual intercourse which would cause those sort of injuries accidentally, or was it something less than that, with the intermissions and the failing erection?”

35.Taking the whole effect of the directions, as to the approach the jury should take to the case for the defence, it was made abundantly plain to them that if they were not sure about the applicant’s guilt, they must acquit the applicant.

36.This ground fails.

(2) Evidence of previous violence

37.It was submitted in the 2^nd ground of appeal that the judge failed to direct the jury that “the evidence of the Applicant’s previous use of violence in having sex with [the complainant] against her will and [his] masturbation in front of [the complainant] against her will [was] not … admitted to show prope[n]sity [on the part] of the applicant in committing the present offence”.

38.There had been a brief discussion between counsel and the judge as to whether any objection would be raised by the defence to evidence being given by the complainant about the two previous incidents which had allegedly taken place against her will.  No firm opinion was expressed either way but, just after the complainant began her evidence, this topic arose again in the context of the complainant’s relationship with the applicant.  When she replied that every time she saw him “he would come up with the sex request”, there was a further discussion in the jury’s absence. 

39.No objection was taken to the admissibility of the evidence about the earlier incidents and none is taken in these proceedings but Mr Wong, relying on HKSAR v Zabed Ali [2003] 6 HKCFAR 192, submitted that the failure of the judge to direct the jury as to the relevance of this evidence may have left the jury believing that this was evidence of the applicant’s propensity to commit rape.

40.We need to refer to a number of evidential matters in order to put Mr Wong’s contention into proper context.

41.First, the jury was well aware that the applicant was a serving police officer.  This, together with the fact that he had a clear record was admitted under section 65C of the Criminal Procedure Ordinance, Cap. 221.  Stemming from this, the judge gave a standard direction as to ‘good character’ in these terms:

“It is the fact that the defendant has no previous convictions. Indeed, you know he is a serving policeman, with all that implies about a man’s character. Of course that cannot of itself provide a defence but it can help a defendant and it can help this defendant in two ways. Firstly, the fact that he has not been convicted of committing an offence may mean he is less likely than otherwise might be the case to have committed the crime alleged against him now. Secondly, the lack of previous conviction can support a defendant’s credibility in assessing what he said about the issue to the police. Credibility simply relates to the confidence or lack of it that you have in the truthfulness of what he then said.

These are matters to which you should have regard in the defendant’s favour. It is for you to decide what weight you should give them in the case. You have to place these matters in the context of the whole of the evidence …”

42.Secondly, the past history concerning the applicant’s association with the complainant was dealt with by the applicant in his interview where he had described the ‘hillside’ incident many years earlier (referred to at paragraph 4 above) as involving sex with the complainant’s consent and, as we have already indicated, he described the incident on his first visit to the complainant’s flat in August 2006 as involving consensual sexual intercourse rather than masturbation on his part.

43.The defence at trial, while making no attempt to have the evidence of the past history of the complainant’s relationship with the applicant excluded, suggested that the complainant had not been telling the truth on material aspects of her evidence, including her description of these two allegedly violent incidents in the past, and used the complainant’s description of the applicant as someone who forced her to act against her will in an attempt to show that she had been making up a story about the applicant being a dangerous person.  With a knowledge of the way he was likely to behave, she would hardly, it was suggested, have allowed him into her flat at night, let alone have permitted him to massage her and remove her underwear. 

44.For this reason, no doubt, the complainant was cross-examined about having had sex with the applicant, years beforehand, somewhere on a hillside.  The cross-examination about this incident was covered by the judge when summing up, as follows:

“As regards the sexual intercourse that took place on the hillside she was asked specifically in cross-examination if she had been willing to have sex with him on that occasion and she answered no and said that the sex was against her will.  She agreed she had not reported it to the police.  She was asked if he was violent on that occasion and she said yes.  She was asked if they remained friends after the incident and she said she was small then, and did not know what she should do, but that after the incident there had been no contact with him until he got married years later.  She thought once he was married he could not do what he had, in fact, done in this case to her.”

45.In Zabed Ali (above), the court was concerned with evidence which was said to have been evidence merely of propensity which ought not to have been admitted.  Plainly, evidence which has been properly admitted for reasons other than to show propensity on a defendant’s part to commit crime, will call for a direction to be given to the jury to indicate how it might be relevant to the issue they have to decide and to emphasise that an acceptance of such evidence does not necessarily lead to a conclusion adverse to the defendant.

46.Here, the background evidence provided by the complainant was part and parcel of the account she gave of her association with the applicant and what she had said about those two incidents was as much in dispute as her evidence about the rape alleged in the indictment.  Detail about the nature of the hillside incident and other evidence of the applicant’s past behaviour towards her was introduced in cross-examination by defence counsel on the narrow basis that it went to the complainant’s credibility as to her having allowed the applicant into her flat on the occasion of the alleged rape and her evidence that she was then unexpectedly forced to have intercourse with him against her will.  Against the background of her evidence of his previous behaviour towards her, it was suggested that her evidence of having been then unexpectedly subjected to the applicant’s sexual advances was less than credible.  It must have been plain in the circumstances of this case and the approach counsel took to this evidence that this was an issue confined to credibility and the direction given by the judge was in our view a reflection of that.  There was no realistic chance that the jury would have strayed from that narrow parameter and speculated about the propensity of the applicant to commit the charged offence.

(3) Previous consistent statement

47.The 3^rd ground of appeal amounted to a complaint that the judge had:

“erred in directing the jury that PW2’s statement to the police commencing at 2.34 am on 11 October, which included the allegation that the complainant had told PW2 that the applicant had grabbed [her] neck, was admissible on the issue of bad faith and who is telling the truth in that, in law, a previous consistent statement is not evidence of the truth of the content”.

The context in which this submission was made needs to be considered as it was highly significant. 

48.The judge had made it clear from the outset, with regard to PW2’s evidence, that PW2 had not been present at the alleged offence and so he was in no position to say what had happened.  His evidence (and the evidence of PW4) merely related to the complainant’s account of what had happened.  The judge’s directions on recent complaint were as follows:

“… Let me say a word to you about the effect of the evidence of [PW2] and [PW4] in so far as it relates to them telling you of [the complainant’s] complaint of being raped. Obviously, they cannot tell you what happened between [the complainant] and the defendant. They were not present and did not see or hear what occurred. They can only tell you what [the complainant] said about it shortly afterwards.

The question for you, if you accept that a complaint was made as described by them, is did [the complainant] thereby behave in a way consistent with having been raped in the way she described. If she did you can use that consistency, if you judge it to be right, to bolster [the complainant’s] credibility, that is, whether you believe her. If you think it inconsistent, then, again if you judge it to be right, you can use it to diminish her credibility.

You hear the evidence because it helps you to decide whether or not [the complainant] has told you the truth. It is for you to decide whether the evidence of complaints helps you to reach a decision. But it is important that you should understand that the complaints are not independent evidence of what happened between [the complainant] and the defendant. It therefore cannot, of itself, prove the complaints are true. The evidence only goes to the issue of credibility by the consideration of consistency.”

49.Perhaps a little unusually, the evidence of recent complaint was challenged by defence counsel when he suggested to PW2 that the complainant “did not complain to [him] that she had been grasped by her neck by somebody”.  In his cross-examination, defence counsel had referred to PW2’s second statement which was made at 12.05 pm on 11 October 2006 in which reference had been made by PW2 to a complaint that the applicant had been “grasping” the complainant’s neck.  However, the cross-examination had made no reference to PW2’s earlier witness statement, made at 2.34 am on 11 October 2006.  PW2 was then re-examined on his first statement and the whole matter was dealt with by the judge in the summing up when he stated:

“In cross-examination, counsel attacked this witness [PW2] and accused him of lying. The thrust of what was suggested to him was that he was suspicious because his calls had gone unanswered and he therefore accused her on the telephone of monkey-business, suspecting and meaning that she had a secret date with another man. He replied, ‘Definitely not.’ The implication behind the suggestion was that it was his conduct towards her that made her upset and so invent a false allegation of rape. Whilst he conceded he could not remember exactly what he had asked or said, he adamantly denied suspicion of a secret date with another man and he denied that he kept demanding an explanation from her about not answering her phone. …

……

… He was also challenged about whether she had spoken of the defendant grabbing her neck. It was suggested to him that she had never made such a complaint. He said she had done so.

He was taken through the second statementthat he made at five minutes past noon on 11 October by defence counsel. He agreed with the contents, which tallied with what he had earlier said in his evidence. This witness statement mentioned that [the complainant] had told him of a boyfriend coming up in the telephone call and that it mentioned that she, [the complainant], had said that he, the defendant, had grasped her neck. Re-examination established that the grabbing of the neck had also been mentioned in the first witness statement that this witness had made on 11 October which had commenced at only 2.34 am, very shortly after the events in question.” [Emphasis added]

50.The judge went on to describe the relevance of this evidence as follows:

“Normally, the fact that a witness had said something before is not relevant. It is what the witness tells the jury in the witness-box here that matters. However, it was relevant for you to know about the first statement because it can help you judge whether or not this witness was telling you the truth about her mentioning the grabbing of her neck to him. It can do so because the statement is very nearly contemporaneous with the events it describes. The contemporaneity of a written account is obvious helpful when deciding disputed questions of accuracy but it can also help you in deciding disputed questions of bad faith - who is telling the truth - as you may think the scope for this witness to collude with [the complainant] and come up with a false story about the neck being grabbed by 2.34 am, the scope for that was insufficient. It is a question of fact for you.

As I have previously directed you, the relevance of the evidence of recent complaint is consistency or lack of it. Obviously, the evidence of this witness discloses that [the complainant] was complaining of rape by the defendant. You will want to see if the recollection of this witness as to what she said tallies with what she told you in her evidence. One would not expect the accounts to be identical word for word so you must look at the differences between them and evaluate them to see if there is support for [the complainant’s] evidence by consistency or damage by inconsistency.” [Emphasis added]

51.Mr Wong submitted that the judge’s reference to PW2’s statement being “very nearly contemporaneous with the events it describes” and the lack of scope for the complainant and PW2 to have colluded suggested that the judge was treating PW2’s first statement as part of the res gestae (see: R v Beattie [1989] 89 Cr App R 302) when, plainly, it was not. 

52.In our opinion, the judge’s approach followed the reasoning in R v Charles Oyesiku [1972] 56 Cr App R 240 where, as Mr Zervos SC for the respondent pointed out, the circumstances were similar to those in the present case.  The headnote conveniently sets out the approach as follows:

“If the credit of a witness is impugned on a material fact on the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, an earlier statement by the witness to the same effect becomes admissible if it was made contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction. The trial judge must exercise care in assuring himself not only that the account given by the witness has been attacked on the ground of recent invention or reconstruction or that the foundation for such an attack has been laid, but also that the contents of the earlier statement are in fact to the like effect and that, having regard to the time and circumstances in which it was made, it rationally tends to answer the attack.”

53.We found no substance in the complaint in this ground.

(4) Evidence of the complainant’s distress

54.The 4^th ground was in these terms:

“The learned Judge erred in failing to direct the jury that the distress of [the complainant], i.e. her tears and agitation when [the complainant] made her complaints of rape to PW2 and PW4, were part and parcel of the recent complaints and that [the complainant] knew that she was being observed when the distress occurred, therefore the jury should place no or little weight on the evidence of distress.”

55.All that we need to say about this ground is that the judge’s direction on the subject of distress, as observed by PW2 and PW4, was entirely appropriate and in full accordance with the approach suggested in Leung Chi-keung v HKSAR [2004] 7 HKCFAR 526 at 542 (paras. 37-39).  The judge said:

“These two witnesses also described the distress of [the complainant] – her tears and her agitation. If you were to find that [the complainant] was in such a condition then you are entitled to take it into account in deciding the case. But before you may do this you must be satisfied beyond a reasonable doubt firstly that her distressed condition was genuine, and secondly that it was causally connected with the alleged rape. In other words, you must be satisfied that the distressed condition was not feigned and that it was referable only to the alleged rape and not to any other cause.

In deciding these matters you take into account all of the relevant circumstances. If you were sure that her distressed state did meet the conditions I have just mentioned, then you may give the evidence such weight as you think appropriate. I venture to suggest that the way it could help you would be in judging whether it showed [the complainant] was being consistent at the time.” [Emphasis added]

56.The suggestion that the judge should have gone further by reminding the jury that the complainant’s distressed condition occurred when she was expecting to be under observation by PW2 and PW4 was amply covered by the judge’s direction that the jury must be satisfied that the complainant’s distress was genuine.  No more needed to be said.

(5) Demeanour

57.In the 5^th and final ground of appeal, it was submitted that the judge had failed to direct the jury “not to over-emphasise the importance of demeanour which is very often an unreliable factor” on which to rely.

58.This omission was said to have occurred in the passage taken from an early stage in the summing up, where the judge said:

“When a witness gives evidence from the witness-box you have an opportunity to watch them, to listen to them and to observe their demeanour. That demeanour is a factor which can help you decide how much weight to put on what they tell you. You could consider the ‘feel’ of the witness when they give evidence before you. When you are trying to assess the credibility of a witness, that is, whether you believe them or not, you are entitled and you are expected to use your own experience of life. And this is important, you are expected to use your common sense.

Perhaps one of the first major questions you will ask yourself is whether or not [the complainant] was a witness who was doing her best to tell you the truth. You may wish to judge whether she was putting on an act for you in the witness-box to persuade you of something she knew was not true, or whether her evidence is such that you just cannot rely on it. You will have to use your combined good sense, experience of the world, knowledge of human nature and knowledge of modern behaviour in reviewing all the evidence in addressing these matters.”

59.Mr Zervos pointed out that a number of observations were made in the course of the trial about the complainant’s distress.  Indeed, defence counsel’s cross-examination of the complainant at trial had commenced:

“Q.    … when you were describing to us about what had happened inside your premises when the defendant first visited you, you were crying in the witness-box, you remember that?

A.  Are you asking me if I remember I was crying at that time or today? I remember yes, I was crying in the morning today.

Q.  Before you gave evidence before members of the jury, did anybody advise you what sort of manner you should be wearing before members of the jury?

A.  Only the procedures was mentioned to me, but not how or what facial expression I should have.

……

Q.  Did anybody advise you that tears is the best weapon to touch the heart of the jury, namely gaining sympathy from them?

A.  No.”

60.This plainly set out the stance taken by the defence.  The possibility of the jury being misled by the complainant’s demeanour was amply dealt with in a passage in the summing up to which we referred earlier when the judge posed the question: “Was this a true rape where the [complainant] immediately complained [to PW2 and PW4]” or “have they misled you, hiding the true position?”  Again, in the passage dealing with demeanour, the judge asked the jury to consider whether the complainant “was a witness who was doing her best to tell the truth” or was, alternatively, “putting on an act … in the witness box to persuade [the jury] of something she knew was not true”.

61.There was no duty on the judge to direct the jury in terms that demeanour is an uncertain guide to ascertain the truth as Mr Wong suggested.  There may be circumstances where it would be better to point out explicitly that demeanour may not be the best guide to an assessment of a witness’ veracity but, here, the matter had been left in the jury’s hands by the use of a form of words which could not have been more clearly stated.

62.There was, in our view, nothing unsafe or unsatisfactory about the applicant’s conviction.

63.Accordingly, the application is dismissed.

Mr Kevin P Zervos, SC, DDPP and Ms Polly Wan, SPP, of the Department of Justice, for the Respondent.

Mr Wong Man Kit, SC, and Ms Manyi Tsang, instructed by Messrs Anthony Kwan & Co., for the Applicant.