Leung Tze Chun v. R.

CACC000690/1993

IN THE COURT OF APPEAL

1993, No.690
(Criminal)

___________

___________

Coram: Sir T.L. Yang, C.J., Ryan and Stuart-Moore, JJ.

Date of hearing: 26 July 1994

Date of judgment: 26 July 1994

________________

J U D G M E N T

________________

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

1. Following a four-day trial in the High Court before Leonard, J. and a jury, the Applicant was convicted of rape and sentenced to seven years' imprisonment. He now applies for leave to appeal against conviction and sentence. The allegation can be briefly stated as the issues were clear and uncomplicated.

2. The offence occurred on the ground floor of No.84, ,Tai Tei Tong Village in Mui Wo, Lantau. The victim, who was a Swedish lady, was asleep at shortly before 4.28 in the morning, when the matter was first reported to the authorities. She was awakened to find someone having sexual intercourse with her. First she thought it was her boyfriend Michael Sheppard. Quickly she realized that he was no longer in bed with her and she managed to fight off the man who was now in her bed before he had time to ejaculate inside her. The man then ran out of her room having taken with him the pair of shorts that had been lying on the ground. At that time he wore only a T-shirt. The victim got up, locked the door and then discovered a wallet containing amongst other things this Applicant's identity card which lay on the floor of the bedroom. Having alerted police, and whilst she awaited their arrival, the Applicant returned to her address. He did not mention the wallet or the identity card to the victim but was offering 'adjustment' or 're-adjustment' or something to that effect. Not surprisingly she told him to go away, and she did not allow him in. After that, her boyfriend Michael Sheppard, who had been out walking with a friend called James, arrived back at the address. They had, according to Sheppard who gave evidence in the trial, encountered the Applicant in the course of their walk. The Applicant spoke of his concern about leaving behind his wallet at the address. There was no dispute about that in the trial, and it was following that conversation that Sheppard returned to the house with this Applicant in order to sort out the matter. It was then that Sheppard discovered what his girlfriend had endured in his absence.

3. The Applicant, when interviewed by police under caution, gave a very strange account of his movements at the material time for that night. He said he was looking for someone whose name he did not fully know, but who he knew as Hak Shuk, in order to borrow an instrument used to electrocute fish. Although he lived very close to No.84 where Hak Shuk also lived, there are three stories in No.84, and the Applicant explained to the police that he did not know on which floor Hak Shuk lived even though he had known him for ten years. The Applicant went on to explain how, starting on the ground floor, he went from room to room in his search at that hour of the morning for Hak Shuk. He said this to the police:

'I saw a foreign woman sleeping on the bed and I went outside immediately. At that time the foreign woman sleeping on the bed did not get up. Outside the house I called Hak Shuk again. It was the course of the incident and I had not touched the foreign woman.'

4. Aside from the general oddity of the story he told, the evidence given by Sheppard that the Applicant had come up to him because of his anxiety at losing his wallet was a strong indication that he knew exactly who lived in the house and where they were living.

5. The case against this Applicant was a combination of direct evidence of identification by the victim and two kinds of circumstantial evidence. Firstly, all the evidence relating to the wallet that was dropped at the scene of the crime and secondly there was 'contact' evidence as it came to be called in the trial. That, as the learned trial Judge made plain, was a reference not to body contact but to fibre contact. The Applicant's T-shirt had 18 fibres which were identical to a red and white blanket which Sheppard had bought and which at the material time was on the bed. Additionally there were ten identical fibres, identical that is both in chemical composition and dye content, on the Applicant's shorts. This provided powerful evidence of contact between his clothing and the blanket although the scientist could not eliminate the possibility that the contact had occurred elsewhere than at the scene of the crime on account of the probable availability of other similar blankets, or even because of secondary transfer.

6. The Applicant did not give evidence at this trial.

7. We have carefully considered the submissions of Mr. Wu who did not appear for the Applicant in the trial. The first ground of appeal is that:

'In directing the jury to evaluate the evidence of the victim as a whole against the context of other evidence, the learned judge wrongly made reference to contact evidence where in fact there was no such evidence before the court.'

In the summing-up the learned Judge dealt with the matter very carefully pointing out precisely what contact evidence there had been and how the jury might regard it. There is a long passage to which some mention has been made today at pages 30 and 31:

'Then we had Dr. Leung's "contact" evidence. He said that he found from the red and white blanket as he called it, Exh.P21, eighteen fibres on the T-shirt and ten on the shorts, the chemical composition and dye content matched perfectly. And that result was consistent with contact having taken place between the T-shirt and shorts on the one hand and the exhibit P21 on the other. But he did agree that there was nothing to suggest that the textile of which P21 was made was not widely available. So there is no evidence as to how rare or widely available that type of blanket is.

Then he was asked about a possible secondary transfer, in other words, if it was put to him, "If the fibres had got on to, say, the shirt, and then he had sat down, couldn't they have then moved from the shirt to the shorts or vice versa?" And he said, "Well, what he could say was that there would not be any secondary transfer after the articles had been seized because they were all put into separate bags." But the question is open whether the defendant's shirt and shorts might have touched something which had fibres on it from the bed. And no doubt you will bear that possibility in mind.'

The first ground of the application for appeal against conviction is wholly misconceived.

8. The second ground is equally misconceived, and reads as follows:

'The Appellant denied in his cautioned statement that he had touched the victim and he called no evidence at the trial. Counsel for the prosecution suggested to the jury that the above-mentioned denial was a lie. The direction made by the learned Judge to the jury that, if they found that the Appellant did lie, they should look for possible explanations (including innocent explanations) for such a lie is a misdirection or an unfair direction prejudicial to the Appellant in that it encouraged the jury to find the Appellant had in fact lied.'

9. The learned trial Judge had to deal with lies during the course of his summing-up. The Prosecution was suggesting that the Applicant had told lies in his statement under caution as he was denying ever having touched the victim. Equally, Mr. Cosgrove, who was counsel for the Defence, addressed the jury on the basis that the Applicant had lied because, as he suggested, the Applicant had gone to the bed where the victim lay and had touched her. The summing-up dealt with this by pointing out that this was something which Mr. Cosgrove had said and he was not able to give evidence about it. There was no evidence to support that contention. The only versions the court had heard were those from the victim herself and the one the Defendant had made in his statement. The learned trial Judge went on to say:

'But you do know, as Mr. Moorfoot explained to you, that if counsel does put something to a witness, it can be assumed that he does so because he has been instructed to do so, and you know therefore that Mr. Cosgrove put an alternative version to [the victim] which was denied by her, so it has no evidential value.'

10. When the learned Judge came to deal with lies he did so with impeccable fairness and clarity. There was nothing unfair or prejudicial in the approach that he suggested to the jury which was in the following terms:

'Now Mr. Moorfoot has suggested on behalf of the prosecution that in his statement under caution, the defendant lied to the police because he simply said he went into the room, saw the girl and went out again; and he denied that he had touched her.

Now if you find that he did lie, when you look at the evidence as a whole, you are entitled to ask yourselves why he lied. But, of course, the mere fact that a defendant tells a lie is not in itself evidence of guilt. You must ask yourselves what promoted him to tell a lie.

A defendant may lie for various reasons. For example, generally speaking he might be wanting to protect someone else or to save himself embarrassment, or out of panic, or out of confusion and so on. So if you think that there is or may be some innocent explanation for any lie which you find he has told, then you should pay no attention to the lies. But if you are sure that he told a lie which was relevant to the allegation which was made against him, and it was not prompted by any innocent motive, then those lies would be evidence supporting the prosecution's case.'

11. We turn now to the third ground upon which leave to appeal is sought. It is argued that in a case where scientific evidence relating to hair could not link this Applicant to the victim that it was an unfair direction to remind the jury that there was found in the victim's pubic hair a strand of pubic hair that could not have been her's or her boyfriend's. Once again the learned Judge could not more fairly have expressed the position in a full and accurate summary of the scientific evidence. He concluded by saying:

'So there is no scientific evidence to help you to tie it to the defendant. You will have to look at all the circumstances and give to the presence of that foreign hair in her pubic hair such weight as you think fit ......'.

It goes without saying that the victim had given evidence of being raped at a time after her boyfriend had left the house with the door unlocked. It was open to the jury to find that the hair was indicative of someone having been in intimate contact with her. The jury could not more clearly have been told the state of the evidence leaving it to them to decide what weight, if any, to give to this aspect. There is no substance to Ground 3.

12. The fourth ground has very realistically today been abandoned as Mr. Wu has now had the benefit of reading the full transcript.

13. The fifth and final ground of appeal reads:

'In the absence of any evidence proving body contact between the Appellant and the victim, and in the light of the fact that the Appellant voluntarily returned to the scene of the crime to meet the victim shortly after he left the victim's flat, and taking all the circumstances of the case into consideration, the conviction was unsafe and unsatisfactory."

In our judgment there was nothing about this conviction that was unsafe or unsatisfactory. Reliance is placed upon the fact of a return by this Applicant to the victim's address. It is small wonder that he returned to the address. He wanted his wallet back and to retrieve the damning evidence that it represented.

14. Accordingly the application for leave to appeal against conviction is refused.

15. Turning to the application for leave to appeal against sentence, this was a rape of a particularly unpleasant kind because it was committed by a man who had gained access to his victim's home under cover of darkness and whilst she lay asleep. In The Queen v. Billam and others (1986) 1 W.L.R. p.349 the Lord Chief Justice set out the guidelines for sentence in rape cases. The suggested starting point for rape committed by a person who gains access to a place where the victim is living is set at eight years.

16. In our judgment, if any criticism were to be levelled at the meticulously fair handling of this case by the trial Judge, it is that he erred it on the side of leniency. Perhaps he particularly paid regard to the youth of the Applicant who was then twenty years old. The starting point was eight years and the sentence imposed was seven years. There is no valid complaint which the Applicant can make to the sentence he received.

17. The application for leave to appeal against sentence is without any merit and is refused.

Representation:

Mr. Paul K.N. Wu (Messrs. Phyllis K.Y. Kwong & Co.) for Applicant

Mr. John Reading for Crown/Respondent