HKSAR v. Lee Yuet Tong
|
CACC000711/1996 IN THE COURT OF APPEAL 1996, No. 711 ______________
______________ Coram: Hon. Power, V.-P., Nazareth, V.-P. and Liu, J.A. Date of hearing: 11 July 1997 Date of delivery of judgment: 1 August 1997 ______________ J U D G M E N T ______________ Power, V.-P.(giving the judgment of the Court): 1. The applicant originally faced six counts. Two were counts of rape each with an alternative count of unlawful sexual intercourse with a defective. There was one count of attempted rape with an alternative count of attempted unlawful sexual intercourse with a defective. It was alleged in the first count that the applicant had, on 15th September 1995, inside the ladies lavatory at Kwai Shing Playground, Kwai Shing Estate, Kwai Chung, New Territories, raped Tsang Pui-yee. In the alternative count it was alleged that he had unlawful intercourse with her, she being a female defective. We need not concern ourselves further with the other four counts as the prosecution, in the course of the trial offered no further evidence on those counts and the jury returned directed verdicts of not guilty thereon. 2. It was the prosecution case that at about 9:40 p.m. on 15th September 1995, the applicant went into a toilet cubicle in the public toilet block of the Kwai Shing Playground and there had sexual intercourse with Miss Tsang to which she did not consent. Miss Tsang was 17 at the time of the offence. She is deaf and dumb and there was evidence that she has a mental age of about 7. She said that the applicant had forced his penis into her vagina and had ejaculated. A tampon which she had been wearing in her underpants was later found to have semen on it. 3. The applicant, who was arrested at the scene, said that he knew Miss Tsang and knew that she was mentally retarded and that he had simply gone into the toilet to keep her company and that, while she was urinating, he had just stood there looking at the entrance. 4. The evidence of Mr. Kwok Tun-wun, a driving instructor, was that on the night of 15th September 1995, at about 9:30p.m. he was in the vicinity of the Kwai Shing Playground giving a lesson to a student when a boy came to his vehicle, knocked on the door and asked him to make a telephone call. He said he then dialled 999 and made a report to the police. He then left in his vehicle. He said that he was later contacted by the police. 5. Yeung Ka-kit, PC50863, said that he was on duty on 15th September 1995 and around 9:57 he received instructions to the go to the Kwai Shing Circuit where he arrived at about 9:59. He said that when he first saw the applicant he was being caught hold of by "the informant" (who was not called to give evidence) and that the informant then told him something. The witness pointed to a spot on Photo 2 of Exh.P2 which shows the lavatory block saying that that was where he had arrested the applicant on a charge of indecent assault. He said that the applicant was at his late fifties or early sixties and was wearing a shirt, a pair of trousers and slippers. The officer said that, when he arrived with the applicant back at Kwai Chung Police Station, he made a post record of the arrest and that the following exchange then occurred:
The officer said that the applicant read over and agreed to the statement. 6. Miss Tsang was examined by Dr. Wu Siu at the Yan Chai Hospital on the night of 15th September. Dr. Wu found that there was no external wound on the vulva peritem and that there was no semen stain. 7. On the next day, about mid-morning, Dr. Poon Wai-ming, a forensic pathologist, examined the girl's private parts internally. He found diffuse redness and swelling on the inner surfaces of the labia majora and diffuse redness around the circumference of the vestibule. He said in addition there were few small abrasions each about 1 mm x 1 mm in size at the 9 o'clock position of the vestibule. He said that the diffuse redness and swelling was consistent with some form of recent irritation or mechanical trauma to the private parts which terms would include sexual intercourse. He said the abrasions were fresh and probably been caused by scratching or rubbing with a rough surface and that this could have been done by a rod, a stick or even by fingers. 8. Dr. Poon also examined the private parts of the applicant and found no sign of any defects. 9. There was expert evidence as to the following matters. A smear of blood was found on the accused's underpants. Upon analysis this was found to be of human origin but it could not be otherwise typed. The same was so for a spot of blood found on Miss Tsang's panties. Semen stain mixed with blood were found on a sanitary napkin of Miss Tsang. The blood was classified as group B which was the blood group of the accused. The evidence was that one in four people in the Chinese population in Hong Kong carry that blood group. 10. There was evidence from Miss Christina Li, a forensic scientist, that she had made a DNA profile match between the accused's blood sample and the semen stains found on the tampon. She said that the matching profiles made the accused a possible donor of the semen and that the chance of finding a random person with matching profiles was 2.26% or one in 44 persons in the local Chinese population. 11. The victim Tsang Pui-yee was affirmed in sign language. Throughout her evidence care was taken to try to ensure that she understood the questions asked and was responding thereto. 12. Mr. Liu, who appeared for the Director of Public Prosecutions, commenced by asking her general questions about her family and then asked her about a playground which was situated near her late grandmother's flat. She indicated that there was such a playground and that she used to go there when she felt bored. She was then shown Exh.P2 which contained ten photographs of the Kwai Shing Playground and indicated that she recognized Photo 1, a general view of the playground. She pointed to a shaded area where two concrete benches were situated indicating that it had something to do with "herself and the boy". She then pointed to a yellow wall on Photo 2, immediately adjacent to the toilet block "indicating that the two of them were walking towards there". 13. The following passage then occurred :
She then looked at Photo 4, which showed the entrance to the women's toilet, and then to Photo 5 which showed the interior of the toilet which she indicated she could recognize. The following passage then occurred:
The witness then looked at photograph 7 which showed three toilet cubicles and indicated the third cubicle to the right. The interpreter then said:
14. She said that the boy undressed, pulled off his trousers and placed himself on top of the girl. She said that at that time she was sitting on the toilet bowl. She demonstrated sexual intercourse by using a male and female doll and also indicated that the male organ "entered into her vagina". She indicated that "the male organ moved inside her vagina three or four -- three times". 15. The following passage then occurred:
The following passage then occurred:
She indicated that he gave her paper to wipe her body and that after wiping herself she threw the paper into the bowl and put her panties on and the two then left. She indicated that at that time she was having her period and that she was wearing a sanitary napkin and that when she left the toilet it was inside her panties. Miss Tsang was still wearing her panties and the sanitary napkin when WPC 18226, at 45 minutes past midnight at Kwai Chung Police Station, took possession of her clothes and of the napkin. She indicated that after leaving the toilet she sat on a bench and waited. She referred to photograph 3 indicating that the person with whom she had had intercourse sat on the left side of one of the benches and "the one who caught hold of the other sat on the bench on the right and they spoke to each other". She indicated that she did not agree to have sexual intercourse. 16. The above evidence was given on Friday 15th November, 1996. The court did not resume until Monday 18th November. 17. Upon resumption the witness demonstrated that sexual intercourse had taken place using two dolls and the interpreter added "Well, she said the lower part of the man's body entered hers." She indicated that the man had not been wearing spectacles. She was shown her clothes which were seized by the WPC but she was unable to say whether they were the ones which she had been wearing at the time of the incident but did indicate that she was wearing panties of that sort at that time. 18. Up until this point there had been no attempt to fix the date or time of the incident. Miss Tsang then said that she had been stopped after she had left the toilet. The judge then, the witness having shown signs of tiredness, adjourned the proceedings. 19. When the witness resumed giving evidence some 30 minutes later, she was asked when the incident had happened, day time or night time, and she indicated "3 p.m." The interpreter said,
Mr. Liu then said,
The witness's attention was then directed towards Exhibit P3. These were photographs of the Kwai Hop Street Playground where it was alleged that on 24th November 1995 the applicant had raped the victim (3rd Charge) and had attempted to rape her (5th Charge). This incident was alleged to have occurred two months after the incident at Kwai Shing Playground. Miss Tsang said that she recognized the place shown on Photo 1 of Exh.P3 and she ran a hand along the pavement shown on the photograph indicating "she was on the pavement in the photograph. To her right there was a boy. The two of them walked along the road." 20. Counsel endeavoured to direct the witness's mind towards November 1995 but was not successful in doing so. He then asked her could she relate any incident in 1995 to the area shown in Photo 1. She indicated that something had happened in the afternoon after she had gone to that place on foot. She went on to demonstrate that on a bench shown in Photo 10 of Exh.P3, intercourse had taken place between "the boy and the girl". She indicated "The male gave her $40. The boy sat there, the girl left.". She indicated that sexual intercourse had taken place twice and that she felt the penetration of the sex organ. She indicated that she was not willing to have intercourse with the man. She indicated that nothing happened after the intercourse. She also said that "When the boy came, he smoked. there's the packet of cigarettes." Photo 11 shows a packet of cigarettes. She indicated that this boy wore spectacles, but she was unable to say whether he was young or old. She indicated that she had never seen him before this incident. She then appeared to refer to another incident when she entered the park by the entrance shown on Photo 14 and indicated that at the place shown in Photo 18 intercourse had taken place. She indicated that this was the same man who had had intercourse with her at the place shown on Photo 10 and that after this she left and went back to work. 21. These followed a long series of what proved to be inconsequential questions to which no intelligible replies were given. She was asked what she had done with the $40 and she indicated "A person named Ho gave me the $40 and -- for buying soft drinks and the like and had a chat with me." The following exchange then occurred:
She was later asked by the court whether she had ever seen Ho prior to the incidents in the park when she had twice had sexual intercourse with him. She indicated no. 22. Under cross-examination she admitted that, on 18th April 1996, some seven months after the incident on 15th September 1995, she had indicated to the police that on the previous day she had sex with a man inside a toilet, that it was the second booth and that she had been given $40. She also agreed that in November 1995 she had told the doctors that the first time she had sex was when she was fifteen years old. She indicated that this had been with a friend and that it occurred twice and that on both occasions it was in a toilet. She indicated further that in November 1995 she had told the police that she had sex with two different men on two occasions in May and June 1995 and on each occasion had been given $40. She indicated that on each of these occasions it was the toilet shown in Exh.P2, that is the toilet in the Kwai Shing Playground. As to the incident on 17th April 1996, she agreed that she had indicated to the police that the intercourse occurred in that toilet, and that she had, prior to the incident, gone to look for the man in a flat in a building because she failed to find her grandmother and felt bored. She indicated to the police that the man was someone she knew and that he walked with a big brown stick. When she did not find him in his flat she went out to the street where she found him and that they then went together to the toilet. After having sex with him inside the toilet cubicle, she was given $40. The following passage then occurred:
There was no answer to this final question and the cross-examination was then discontinued as the court felt it an appropriate time to adjourn. 23. The question was taken up on the following day and the answer was simply that she went in. She then indicated that she went in to urinate and that she then had sex with the boy inside the cubicle. She said she was sitting on the bowl at the time and the boy was standing. She was asked how sexual intercourse had occurred and she gave hand signals indicating that the boy's male organ entering her body. She went on to indicate that the boy, after cleaning his male organ with tissues, gave a tissue to her and she cleaned her private parts. She indicated that she then gave the tissue back to the man and he threw it away. The manner in which intercourse taken place was then pursued as follows:
She was then asked for how long the organ had remained inside her body and she indicated for a very short period and then once the organ was inside her body the person moved. She indicated the movement was backward and forward and that something white was ejaculated by the male. The interpreter added that the witness had indicated that the man ejaculated outside her body. She was then questioned about her statement to the police and it was put to her that she had told the police that the boy had not moved at all. To this she indicated "Not correct, the male -- boy's male organ did move." 24. The following exchange then occurred:
The interpreter then corrected the interpretation saying:
25. Under re-examination she said that male she had intercourse with at the place shown in Photo 10 of Exh.P2 was "an old one". 26. At this point Mr. Liu announced that he did not propose to call any further evidence in relation to the 3rd, 4th, 5th and 6th counts. The jury were then directed to return verdicts of not guilty on those counts. 27. The first nine grounds are an attack upon the evidence of Tsang Pui-yee. They read as follows:
28. No one could suggest that the evidence of Miss Tsang was wholly satisfactory. Was it, however, when considered in the round, a coherent account of the incident on the night of 15th September 1995? The applicant admits that he was in the toilet with her on that occasion. There is evidence from the physical condition of her vagina and from the tampon that she must have been engaged in sexual activity with someone on that evening. There is no suggestion of any incident other than an incident involving the applicant. 29. It is reasonably clear that when she spoke of a boy she meant a male person. Indeed she finally indicated that the person about whom she was speaking was an old person. 30. She indicated both that intercourse had occurred and that she did not consent. 31. Mr. Grossman submits that the evidence of Miss Tsang, leaving aside the manner in which it was elicited from her, contained so many manifestly unsatisfactory features that the judge should not have allowed the matter to go to the jury. He reminds us that she repeatedly described the person involved as a boy, that at one stage she had appeared to be saying that he had a moustache, that she was confused as to whether or not he was wearing glasses, that she described the man as being tall and slim and wearing slippers, which the applicant was not, that she gave different confused descriptions as to the shirt he was wearing, that she said the incident had occurred in the third cubicle when it appears that this was not so. We are conscious of these unsatisfactory features of evidence but consider, nonetheless, both that Miss Tsang was not incompetent, in terms of s.3 of the Evidence Ordinance, and that the matters of which complaint is made were, as identified by her, matters which could properly be left for the determination of the jury. 32. We turn now to the summing up. As to consent the judge said in this regard:
The judge went on then to give illustration and then come to the facts in the present case saying:
33. It was clearly important, when considering consent, that the jury have in mind the admissions Ms. Tsang made about other acts of sexual intercourse. Leaving aside the incident of the 15th September 1995, she indicated that she had by the time of trial, had intercourse on seven other occasions. It seems that she first had intercourse with a friend on two occasions when she was 15 in a toilet. She said that both were without consent but her evidence was somewhat equivocal in this regard. The relevant passage is as follows:
She indicated to the police that she had intercourse in May and June 1995. Both of these acts were in the toilet of Kwai Shing Playground and both, she indicated, were without consent. She indicated that different men were involved on each occasion and that on each occasion she was given $40. 34. She indicated that, in November 1995, she twice had intercourse in the Kwai Hop Playground and that she had not given consent on either occasion but that on each she had been given $40. 35. She admitted that she had indicated to the police that in April 1996 she had intercourse in the second booth of the Kwai Shing toilet and on that occasion she was also given $40. There seems to be no doubt that she must have consented on that occasion as she said that she herself sought out the man concerned. 36. From her evidence it seems that at times she had consented and that at times she did not and, it appears possible, at least as regards the first two occasions, that closely connected in her mind was the concept of not liking intercourse and not consenting to it. The judge was mindful of this evidence and he dealt with it in the following way:
37. The judge returned to this issue of consent later in his summing-up when he said:
We find it difficult to see how the judge could have dealt more fairly or more comprehensively with this issue. 38. There can be no doubt that there was an incident in the ladies toilet on the evening of 15th September 1995. The applicant admits that he was in a closed toilet cubicle with Miss Tsang. There can be no doubt as to the time of that incident. There was compelling expert evidence, which in no way relied upon the evidence of Miss Tsang, which strongly suggested that the applicant had been involved in sexual activity with Miss Tsang. This evidence gave impressive support to the evidence of Miss Tsang that she had removed her underwear and that sexual activity had then taken place. It did not, however, prove that penetration had occurred or that she had been unwilling. The evidence of Miss Tsang had to be relied upon to establish these two matters. 39. There was ample evidence for the jury to consider as regards penetration. There was also evidence from Miss Tsang that she did not consent. We are, however, gravely concerned as regards that evidence. She admitted that on five occasions she accepted money after having had intercourse. She indicated that, on four of those occasions, she did not consent. On the fifth on her own admission she had sought out the man involved, had had intercourse with him and had then accepted money from him. Her condition made coherent examination of her as to her motivation impossible. Given that she was happy to receive a reward for having intercourse could reliance safely be placed on her curt and untested assertion that she did not consent to intercourse on 15th September 1995. Having given this matter anxious consideration, we are left with a lurking doubt as to the propriety of the conviction and it must therefore be quashed. We do not, given the foregoing, need to consider the other grounds of appeal. We are precluded from returning a verdict on the alternative count as the jury made no determination as to whether Miss Tsang was, in law, a mental defective. 40. The hearing of the application is treated as the hearing of the appeal and the conviction is quashed.
Representation: Mr. I.G. Cross S.C. & Mr. Y.M. Liu (D.P.P.) for the Respondent. Mr. Grossman S.C. and Mr. Wong Po-wing instructed by Messrs. Peter Kimpton Wong & Co. for the Applicant. |