Li Chui Alias Li Tsui v. The Queen
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CACC000697/1971 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 697 OF 1971 -----------------
Coram: Rigby, C.J., Huggins & Leonard, JJ. Date of Judgment: 2nd May, 1972. ----------------- JUDGMENT ----------------- 1. This appellant was convicted upon four counts preferred against him of incest contrary to section 21 of the Punishment of Incest Ordinance Cap. 216. The first count charged that on a date unknown in August 1968 he had carnal knowledge of his daughter Li Wai-chun at No. 10 Shing On Street, 6th floor. The second count charged a similar act at No. 8 Shing On Street, 5th floor, on a date unknown in August 1969. The third charged a similar act on or about the 11th November, 1970, at the same address and the fourth alleged a similar act at the same address on the 22nd May, 1971. Although the indictment contained four counts only, the case for the Crown was that there was an incestuous relationship between the appellant and his daughter extending between August 1968 and May 1971. 2. The complainant was the natural daughter of the accused and was born on the 29th of March, 1955. Her mother had left the appellant in or about the year 1959, leaving him three children of their union, that is, the complainant, an elder daughter Li Wai Ha, and a son Li Yiu-cheong, who is younger than the complainant. In 1968 the appellant with the complainant and Li Yiu-cheong lived at No. 10 Shing on Street, 6th floor, in a cubicle. In their cubicle there were two bunks, one above the other. The framework of the bunks was of light angular steel and the bottom of the bunks consisted of wooden planks. The complainant occupied the top bunk with Li Yiu Cheong while the appellant slept on the lower bunk. In August 1969 the family moved to No. 8 Shing On Street, 5th floor, where they again lived in a cubicle with similar sleeping accommodation. On the 19th of June, 1971, the complainant went to see her sister Li Wai Ha, a married woman who lived at No. 48 Homantin Street, 1st floor. She was crying and informed Li Wai Ha that she had had sexual intercourse with their father as a result of which Li Wai Ha brought her to the Shaukeiwan Police Station. Li Wai Ha did not dispute the fact that the relationship between her and her father was not good. As a result of the complaint having been made to the police the complainant was medically examined and was found to be no longer virgo intacta. 3. The case against the appellant depended entirely on the evidence of the complainant. She gave evidence that in the year 1968 she was living at No. 10, Shing On Street, 6th floor, and that on a date in August 1968 she was asleep on the upper bunk when she was awakened by her father coming up to the bunk; that he thereupon removed her clothing but that she, although very frightened, pretended to be asleep. Her evidence as to the occurrence was far from satisfactory. At one stage she stated that her father had not entered her body and at another occasion she said he entered about one inch. "He remained inside about 1 inch". She further stated that she did not dare tell anyone about this and that it did not occur to her at all to do so. The complainant stated that sexual intercourse took place regularly between her father and herself while they continued to live in No. 10 Shing On Street, either once a week or once a fortnight. The family moved to No. 8 Shing On Street, 5th floor, about August 1969. There again, she said, she and her young brother occupied the upper bunk while her father slept in the lower bunk. Three days after they moved to those premises, her father came to the bunk, undressed her and had complete intercourse with her. Thereafter she noticed blood on her underclothes. She was uncertain whether this intercourse took place on the upper or lower bunk. She complained of further similar acts thereafter about once a week or once a fortnight. She further stated that about the 11th November, 1970 sexual intercourse took place. She could not be specific as to whether this occurred on the upper or lower bunk, but stated that prior to this she had been watching television, when "it seemed that he asked" her to go down to his bunk saying that if she did not come she would die. For that reason she went down and intercourse took place while her brother slept on the upper bunk. She went on to say that intercourse took place regularly about once a week thereafter until about the 22nd of May, 1971. On the 19th of June, he having sought to have intercourse with her and she having refused him, she finally went and complained to her sister. She stated that she had refrained from so doing earlier because of threats by the appellant to beat her. 4. The complainant was vigorously cross-examined but apart from the inherent improbability of her story, having regard to the sleeping arrangements in the cubicles in question being shown, her evidence was not seriously undermined. She admitted that she and her sister were on bad terms with the appellant who, she said, was very strict with her. She further admitted that she had on one occasion run away from home and that a boy Liu took her father to find her at an apartment house. Liu had helped her to find this boarding house and had assisted her with money. She denied, however, that she had sexual intercourse with Liu or with anybody else other than her father. The appellant elected to make a statement from the dock. He denied his daughter's allegations saying "Li Wai Chun is my natural daughter. I am her father. I would not do anything of the sort. That is all." 5. The younger brother was called as a witness for the defence. He described the bunk on which they slept as somewhat fragile and indicated that he would know when one climbed on it. Often he would wake his sister, or she him, by climbing in and out of bed but he never knew of any occasion when their father climbed up to the top bunk and his sister had never said anything to him about their father's behaviour. 6. There were two grounds of appeal: the first was that the verdict was unreasonable, alternatively, that it could not be supported having regard to the evidence; and the second ground was that the learned trial judge "misdirected the jury in that he failed to direct them that it would be dangerous to convict upon the uncorroborated evidence of the complainant." At the hearing of the appeal, counsel for the appellant conceded that he could not seriously argue the first ground of appeal, his contention being rather that the weakness of the case for the prosecution called for a meticulous warning as to the danger of convicting on the uncorroborated evidence of the complainant. As to the first charge, she had initially said that no penetration had taken place and the depositions showed that she had made a similar statement before the magistrate. Although she was only 14 when that incident took place there had been no pain. She had never felt pain, she had never cried out, and there was no evidence of any bleeding while the parties were living at the first premises. She gave evidence at the trial that on no occasion did she pretend to be asleep other than the first occasion but before the examining magistrate she had said that on every occasion she pretended to be asleep. Counsel further pointed to the improbability of her story having regard to the structure of the bunk. If the two children were sleeping on the top layer of the bunk and the father clambered up, the entire bunk would obviously have shaken yet the younger brother had never been awakened. He suggested that it was inherently improbable that the younger brother could be ignorant if the facts were as the complainant had averred. No complaint had been made prior to the 2nd May, 1971. The case was weak and it was therefore very important that the question of corroboration should be adequately dealt with. 7. The learned trial judge had, in the course of a very detailed summing up, dealt with corroboration in the following terms:-
The learned trial judge then went on to point out:-
He further pointed out that the evidence of the doctor could not amount to corroboration nor could the fact that the appellant elected not to give evidence. He correctly advised the jury that they were entitled to have regard to that provided that they did not regard it as being a separate independent proof of guilt. 8. In discussing the absence of an early complaint by the complainant he addressed the jury in the following terms:-
In support of his suggestion that the warning as to corroboration was defective counsel for the appellant referred to the case of Reg. v. Price(1). Counsel did not complain that the warning would be insufficient in every case but suggested that it was insufficient in this particular case because of the inherent weakness of the case itself. In Price's case(1), while agreeing that a trial judge could properly suggest to a jury that the degree of danger in relying on an accomplice's evidence could vary according to the circumstances, the Court of Appeal was at pains to point out that there was no magic formula which had to be used with regard to any warning given to juries or with regard to the circumstances in which juries could act on the uncorroborated evidence of an accomplice. The direction given to the jury in that particular case was held to be insufficiently clear or precise. It was in the following terms:-
Having examined that passage "with anxious care", the Court of Appeal came to the conclusion, having regard also to other matters in relation to the particular direction on items alleged to be corroboration, that the direction was not on that occasion sufficient. In the view of this court the direction given by the learned trial judge in this case went far beyond that given in Price's case.(1) As will be seen from the passage quoted above in extenso, he carefully explained the reason for the warning. The learned trial judge did not expressly say "It is dangerous to convict", but he explained why it was dangerous to convict. This danger was not one which could have escaped the attention of the jury. Furthermore, there was nothing else in his summing-up which could cause concern. 9. The case is one which has caused the members of this court a great deal of anxious consideration. Our anxiety is occasioned not so much by reason of any defect in the summing-up but by reason of the obvious paucity of the evidence in regard to so serious a charge; such evidence depending, as is almost inevitable in such cases, upon the uncorroborated testimony of a girl who was 16 1/2 years of age when she gave her testimony at the trial and at ages varying between 13 and 16 years when the four offences complained of were allegedly committed. 10. In so far as the first offence - which allegedly took place some time in August 1968 - is concerned, we are fully satisfied that the evidence on this count was so inherently unsatisfactory that it would be unsafe to allow the conviction to stand. At the risk of prolixity we find it necessary to refer again, but in somewhat greater detail, to the evidence in support of the first count. The girl was then 13 years of age. She was apparently able to remember that the first incident occurred some time in August 1968. There is no evidence as to how, or why, she was able to Pin-point that particular month. She slept in the upper bunk of this metal-framed sleeping bunk with her younger brother while her father occupied the lower bunk. Her father climbed up to the upper bunk and, apparently, without at any time awakening or disturbing her younger brother, succeeded in taking off her pyjamas and having sexual intercourse with her. At one time in her evidence she said he did not enter her body but remained outside. Later, she said he entered inside her body about one inch. She did not scream or call out because she was frightened: that, no doubt, was a perfectly reasonable explanation. But despite the fact that, according to her testimony, he had penetrated inside her about one inch she felt no pain and subsequently she found no blood upon her. According to her testimony, sexual intercourse thereafter continued either weekly or fortnightly for the next twelve months until the family moved to another address. During the whole of that period on the occasions when such intercourse took place she did not at any time feel pain and she saw no blood. It is important to emphasize that the charges preferred were charge of carnal knowledge and that an essential ingredient of that offence - as in the case of the offence of rape - is some degree of penetration even though the slightest degree is suffieient to establish the commission of the offence. It was, of course, for the jury to say how much (if any) of the girl's evidence they believed and, in particular, in the light of her contradictory statements as to penetration whether they believed that intercourse did take place in August 1968. Nevertheless we feel bound to say that, giving all weight to the view of the jury, who had the opportunity denied to us of seeing the girl in the witness box, we think it would be unsafe to allow the conviction on the first count to stand. 11. What, then, is the position with regard to the other counts? If the jury considered the evidence sufficient to enable them to convict on the first count, in what state of mind did they approach the evidence on the remaining counts? We think it right to say, at this stage, that looking at the record as it stands, and judging solely on the record, we not having seen the witnesses, not one of the members of this court would have been prepared to agree to a verdict of guilty on any of the counts charged. But that in itself is not sufficient: the sole test is; can it be said that the verdict of the jury was unreasonable or that it cannot be supported by the evidence? Undoubtedly, in so far as the second, third and fourth counts were concerned, the girl was more certain in her testimony and she maintained that the appellant did in fact enter her body although she said that on all occasions he discharged outside her. 12. Nevertheless, the jury, who heard the evidence in this case and accordingly were able to form their own individual and collective impressions as to the credibility of the essential witnesses concerned, including, of course, and in particular, the female complainant, were satisfied, by a majority of 6-1 on all four counts, that the evidence satisfied them beyond reasonable doubt as to the guilt of the appellant. After most careful and anxious consideration we have come to the conclusion that there are no grounds upon which we could properly say that the verdicts of the jury on the second, third and fourth counts were unreasonable. The result must be that the conviction on the first count must be quashed and the sentence set aside, whilst the convictions on the second, third and fourth counts are confirmed. Representation: Charles Ching assigned for Appellant. Corbally, D.P.P. for Crown/Respondent. (1) (1969) 1 Q.B. 541. |