The Queen v. Tse Yui-to

Case No.CACC 699/1983

Court

Court of Appeal

Date26 Oct 1983

Judge—

Case Document

100%

CACC000699/1983

IN THE COURT OF APPEAL

1983 No. 699

(Criminal)

BETWEEN

THE QUEEN

and

TSE YUI-TO

Coram: McMullin, V.-P., Li & Silke, JJ.A.

Date: 26th October, 1983

___________

JUDGMENT

___________

Li, J.A.:

1. The applicant is convicted of attempted rape and sentenced to 7 years imprisonment. He applied for leave to appeal against conviction. At the end of the hearing we refused leave and indicated tide would give later our reasons which we now do.

2. The charge laid against him is that on the 9th of January, 1983 at bunk No. D26 in Hut 26, Kowloon Bay Temporary Resettlement Area, Kai Tak East Camp, Kowloon attempted to rape LAU Siu-king. The prosecution relied basically on the evidence of the complainant, Madam Lau. Her home was at one time destroyed by fire and she was temporarily accommodated in the camp asset out in the charge. So was the applicant accommodated. The two of them were nodding acquaintances. Occasionally, they might exchange greetings.

3. Late at night on the 8th of January this year, Madam Lau woke up and saw the applicant on her bed space carrying a knife. The applicant threatened her with the knife shouted at her that she should pull down her trousers and panties. She had no option as she was frightened. She complied with his demand. At that time the applicant also lowered, partially, his own trousers and exposed his penis. He then demanded that the victim should use her hand to put his penis into her vagina. There was a struggle. She held on to the blade of his knife with both hands, one above the other. As a result, her finger was cut. While she was still holding the applicant's knife and struggling with him, the applicant managed to lay on top of her and inserted his finger into her vagina. She retreated to a reclining position and managed to wrangle the knife from the applicant. In the course of the struggle, she bit the applicant's thumb. Once the knife was out of the hands of the applicant, the latter changed his tatics. He proposed. marriage to her, telling her they could join together to apply for housing accommodation because the camp was about to be demolished. The applicant asked her for the return of the knife. By that time, she pulled up her trousers and said She would consider the applicant's request. The applicant then left. She was so scared at the time that she sat up for fear that the applicant might return. She sat up until 5 o'clock in the morning when she dozed off. She woke up round about 7. By 8 a.m. that morning, she telephoned her brothers one after another. Eventually she made a report at the police station.

4. The police arrived but failed to locate the applicant. In fact, the applicant was not located until the 17th of January, 1983 outside the Housing Department Office outside the Kai Tak East Camp when he was arrested at 2.30. He was brought back to Ngau Tau Kok Police Station. He was cautioned at the C.I.D. room. The applicant wrote a cautioned statement, starting from 3.05 in the afternoon to 3.45 p.m. The statement is Exh. P1. In this statement the applicant said:

"Because I love her, I therefore did it. Concerning the knife, I had thrown it away but I could not remember where it was thrown to. My finger had been bitten by her at the time."

This statement was objected to on the ground that it was involuntary in that the applicant was first assaulted, then threatened, induced and then the statement was dictated to him to be copied.

5. A voir dire was held. The judge accepted the prosecution evidence, rejected the allegations by the defence, and admitted that statement into evidence.

6. The defence was that the applicant was acquainted with the complainant because they were living in the same camp and in the same hut. They were on talking terms. Sometime in Summer 1982, he spoke to the complainant about his family background and suggested that they should join together as co-tenants to apply for rehousing. She said she would consider.

7. It was common ground that such an occasion did occur. The complainant admitted that sometime in the middle of Summer 1982, the applicant talked to her about joining together to apply for housing accommodation. The complainant said that was the one and only occasion they discussed this matter and she told the applicant that she would consider the proposition.

8. The applicant, however, said that was not the only time they talked about this proposition. The first time was in the 7th moon of the Chinese calendar in 1982. The second occasion was on the 15th of the 8th moon in 1982 when the same subject was brought up by the applicant. The complainant stalled him. Then, sometime in October 1982, the applicant approached the complainant on the same subject. He again received no definite reply from her.

9. In the evening of the 8th January, 1983, the applicant went to a wedding banquet where he had some drinks. He returned to the camp about midnight. As he was walking to his bed, he walked pass the bed space of the complainant. He suddenly recalled that he had this urgent matter to discuss with the complainant, because in that morning he saw, on the notice-board, a notice from the proper authority that the hut in the transit camp in which they were living would be demolished by the 24th of January. He wanted a definite and a quick answer from the complainant.

10. At the time the complainant was asleep. She was asleep in the middle bunk of a three tier bunk. He stepped up on the lower bunk which was unoccupied and took the complainant's arm, shaking her in order to awake her. He intended to tell her of the urgency of this matter. The complainant was not to be disturbed. She told him so. He continued to shake her. Suddenly the complainant turned nasty and tried to scratch his face. At this point, the applicant was very angry. He tried to slap her face. However, the complainant caught his hand and bit his thumb.

11. The applicant said that he never went onto her bed. He never had a knife with him and he never had indecently assaulted her. There was no chance for him to talk to her about the tenancy matter because the complainant simply did not listen but tried to scratch his face. All he did that evening was merely to touch her arm. He did say, however, to the complainant that all he intended was to talk about the tenancy matter and the complainant replied that she would consider it. Then he left and went back to his own bunk. On the way, his mother asked him repeatedly what happened and he repeatedly answered: "Nothing much happened.''

12. The next morning, he got up to go to work. He sari the complainant and said good morning to her. Nothing happened. While he was at his work place on the 9th of January, 1983, the applicant's mother went to his work place at about 11 a.m. and told him that two teddy-boy type persons were looking for him. The applicant was afraid that he might be beaten up or blackmailed. He did not return to his own bed space on his mother's advice. In fact he did not return to hut No. 26 at all. He stayed in but 22.

13. In response to a telephone call from the Housing Department, he eventually went to the office of the Housing Department at the camp outside the Kowloon Bay Housing office. He was arrested by three police constables. He was taken to the detective room, handcuffed. The Deputy Station Inspector came in, asked him a couple of questions and slapped him on his face. The three constables were present and remained with him. Then detective police constable Lai started to take the statement from him.

14. In the course of so doing, he was threatened, he was assaulted and, in the end, the statement was dictated to him. He succumbed to the violence and threats. He started to write the statement. In the course of so doing, the detective constable amended many times the paper that he wrote on. Many pieces of paper had been used. Finally, he was asked to copy from a piece of paper which was the second or third draft of the D.P.C.'s amendments. That resulted in the written cautioned statement.

15. He said that he was a man of low education. He had only a grand total of one year's primary school education. He said he was taught how to write by the constable when he had difficulty - his hand was grabbed and he was assisted to write. He was frightened and confused. The statement was never read back to him. He did not pay any attention in any event. The other constables wanted to hasten him by saying that the taker was busy. He was in fear and therefore he signed. In short, the applicant's case was that he was wrongly accused and the cautioned statement was a complete fabrication on the part of the constables.

16. Learned counsel for the applicant advanced three grounds in support of the application. The first was that the jury's verdict was unsafe and unsatisfactory. The particulars given in support were: that the complainant's account of the acts allegedly amounting to attempted rape was so inherently contradictory to the extent that no rational finding of facts could have been made upon it; that a single superficial cut on one finger of the complainant's left hand was wholly inconsistent with her account of having a prolonged struggle with the applicant for possession of the knife, throughout which she claimed to have gripped the blade tightly; that, because of the low standard of education on the part of the applicant, the jury should attach no weight to the statement. The constable, who allegedly recorded the statement had not told the truth in relation to what took place at that time. His evidence was therefore unsatisfactory.

17. Alternatively, it was argued that the trial judge erred in admitting the cautioned statement when it had been shown at the voir dire that, contrary to the evidence of PW5 that the applicant wrote out the statement unassisted, the applicant with such low educational standard was unable to read much of the statement himself.

18. The fourth particular, argued in very persuasive way, was that the preamble in the cautioned statement accused the applicant merely of indecent assault. The judge misdirected the jury by saying that such a cautioned statement was capable of corroborating the complainant's evidence on a charge of attempted rape.

19. Counsel, in the course of her address, took this court through the various parts of the complainant's evidence showing how bizarre was the incident alleged to have occurred. She attempted to show that how unreliable was the evidence of the complainant.

20. We were referred to a dictum of Widgery, L.J., as he then was, in the case of cooper ⁽¹⁾ in which he said:

It is, therefore, a case in which every issue was before the jury and in which the jury was properly instructed, and, accordingly, a case in which this Court will be very reluctant indeed to intervene. It has been said over and over again throughout the years that this Court must recognise the advantage which a jury has in seeing and hearing the witnesses, and if all the material was before the jury and the summing-up was impeccable, this Court should not lightly interfere. Indeed, until the passing of the Criminal Appeal Act 1966 - provisions which are now to be found in section 2 of the Criminal Appeal Act 1968 - it was almost unheard of for this Court to interfere in such a case.

However, now our powers are somewhat different, and we are indeed charged to allow an appeal against conviction if we think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. That means that in cases of this kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the Court experiences it."

21. It was contended that in view of the inherent improbability of the happening of events, as illustrated by the various accounts on the part of the complainant, this court must entertain a lurking doubt. However, the case of Cooper ⁽¹⁾ involved a question of identification. In that case the victim was pushed down and felt dizzy. She had only a fleeting glance of her assailant. There was evidence of another man admitting to be the assailant. He said that the girl was probably mistaken and that it would be all come right in the end. It was in such circumstances that the Court of Appeal entertained a lurking doubt. The reliability of a prosecution witness or indeed any witness is basically a jury question.

22. In the present case the jury have heard the evidence and they were properly directed. In the course of his summing up, the trial judge told the jury to discount the complaint made by the complainant to her brothers, asked them to treat her evidence with suspicion and said (at page 10) as follows:

"You must also believe that what appears in Exh. Pl, that is cautioned statement, is what the accused wrote with his own unaided hand in the way P.W.5 described, because if it was not or if you had some reasonable doubt about that, then it's a statement, isn't it, which is not truly the accused's and any such statement in any such type of case is not worth, you might think, the paper that it is written on."

He also reminded the jury that there were certain omissions in the complainant's evidence of what she failed to tell the police. He said (page 17):

"	Now, at that report, a statement was recorded from her. Now, much has been made in the trial of what she said about the touching or otherwise of her vagina by the accused. I took a note of what she agreed she said and I'll read it to you and I am quoting my note, 'Chinese male TSE asked me to help to hold his penis and insert it into my lower part, but I refused to do so, and then he touched my vagina with his hand. When he touched my vagina, I grabbed the blade of the knife. He then stopped touching my vagina.'
	Now, the defence suggest to you that this amounted to omitting to refer in this statement to the incident that she spoke about in evidence of a finger into her vagina. She did initially agree, you'll remember, that she was confused, but she seemed to agree, if you remember the evidence, that it was at some later stage, a day at a police station in Shamsuipo, that she added this particular piece to her statement. So there you have it: 'He touched my vagina or finger in a vagina.' It's suggested this is a matter of some moment in consequence, flowing as it does from the defence, you must give it the utmost consideration. You decided what you think of it, I shan't make any comment about it at all."

23. The judge also put the defence case in full to the jury. Learned counsel for the applicant highlighted persuasively the strange events as alleged by the complainant.

24. As to the matter of admissibility of the cautioned statement, a full voir dire was conducted. The judge, having heard both sides, believed the police evidence to be true. In this connection, it must be observed that when DPC Lai was giving evidence and cross-examined, the allegation that he assaulted, threatened the applicant or in any way, held his hand to assist him was never put to the constable. The applicant gave detailed allegations in his evidence. He repeated these allegations when he gave evidence in the general issue. He also emphasized how long was his educational standard, that he was incapable of writing out the statement all by himself. The question of admissibility was in the discretion of the trial judge. He accepted the prosecution evidence. He was entitled to rule that the statement was admissible.

25. It was further submitted in an able argument by Miss Siddall that the trial judge erred in law in that he directed the jury that the cautioned statement was capable of corroborating the complainant's evidence on the charge of attempted rape, whereas the cautioned statement was made in relation to the offence of indecent assault.

26. The applicant was clearly told by D.C. 14094 that he was making enquiries in respect of a case of indecent assault in the "small hours", being about 12 o'clock, on the 9th January at bed D26. He was further told that the facts were that the complainant "was threatened by a Chinese man surnamed Tse with a fruit knife about 6 inch long and indecently assaulted on her body and private parts by the said man".

27. After caution the applicant replied "Because I love her therefore I did it. Concerning the knife, I had thrown it away but l could not remember where it was thrown to. My finger had been bitten by her at that time."

28. This is, of course, correct that the effect of the evidence of the complainant was to turn the indecent assault "on her body and private parts" into sexual intercourse without her consent - a factor not mentioned by the constable.

29. But the statement, if accepted as true by the jury, clearly placed the applicant at the scene - as did other evidence - tended to implicate him in a forced non-consensual sexual assault and was evidence independent of that of the complainant.

30. While the submissions of Miss Siddall have their attractions we do not think the reference in the statement to indecent assault when the facts, again if accepted as true, indicated rape would of itself invalidate the use of the statement as the necessary corroborative material in a case of a sexual nature.

31. The evidence of the applicant was not that he went to assault indecently the complainant. His evidence was one of a complete denial. He said he went there for a totally different purpose. In convicting him, the jury must have rejected his evidence and treated that evidence as an untrue.

32. Despite this very ingenious argument, we are of the opinion that the judge was not wrong in directing the jury that such statement could be corroborative evidence of the complainant's evidence. For these reasons, the applicant for leave to appeal against conviction must be refused.

(Simon F.S. Li)

Court of Appea

(1) 1968 C.A.R. 82

Representation:

Miss Linda Siddall (D.L.A.) for appellant

J. McNamara (Crown) for respondent