The Queen v. Chan Keung-lee
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CACC000073/1983 IN THE COURT OF APPEAL
BETWEEN THE QUEEN and CHAN KEUNG-LEE Coram: Li & Silke, J.J.A. & O'Connor, J. Date: ______________ J U D G M E N T ______________ Li, J. A. : 1. The applicant is convicted of rape, attempting to choke with intent to rob and lastly robbery. 2. The incidents occurred on the 21st of January, 1982. It was alleged he raped Miss So, attempted to choke Miss So with intent to rob her and did rob her of $46.60 as well as taking away certain property of her employer's set out in the 3rd count of the indictment. 3. Miss So was employed by a firm of so-called legal consultants at Pioneer Centre, Nathan Road, Kowloon. She returned to work in the afternoon. Coming out of the lift to enter her office, she saw the applicant in the corridor - a total stranger to her. In the office, she noticed a statement of services charges payable by her employer. She went out to the corridor where she found the caretaker of the building near the lift lobby. She had a conversation with the caretaker. At this point, the applicant, whom she saw earlier, joined in their conversation. After that, she re-entered her office. 4. A little later, the applicant went into her office saying that he wanted legal advice. Both her employers were out. She told him to return later. The applicant said he would wait as the matter was urgent. While she was conversing with the applicant, one of her employers telephoned the office. The applicant took over the telephone and spoke to her employer. In the meantime, the applicant had written his name down on a piece of paper. She could remember only two characters of that name - 'Chan' and 'Kwok'. The applicant then went out to the general area, had a cigarette and then suddenly locked the front door of the office. She went out to unlock it. Suddenly the applicant seized her. She enquired what it was all about. The applicant pushed her down on the floor, then put one foot upon her chest and took off his own clothings and trousers. He then tore her dress, broke her belt, took off her under-garment and proceeded to rape her. Prior to that, the applicant told her not to make any noise because he was coming to rob. 5. In the course of the struggle, the applicant squeezed her neck and told her to be cooperative. The applicant forced himself upon her, lying on top of her for about a couple of minutes, penetrated her vagina, with his penis. He squeezed her neck so tight that she could not struggle further. She was afraid because the applicant threatened to choke her to death if she would not cooperate. The applicant did not ejaculate. Subsequently, he pulled her to kneeling position and forced his penis into her mouth while squeezing her neck and pulling her hair. After that, the applicant helped her to dress, asked her for money and took away $46.60 from her drawer. He took away a gold ball pen from her employer's office, ransacked that office and took away an attache case with contents. 6. Before the applicant left, he tied her up, telling her that when he got downstairs, he would tell somebody to release her. After the applicant left her employer telephoned again. She told the employer that they had been robbed. The employer reported to police and soon afterwards a party of police officers arrived. 7. On arrival of the police, she merely told the police that she had been robbed. Subsequently, in response to a question by the sergeant, who observed her distressed condition, asking whether she had been raped, she nodded her head. A statement was taken from her. She gave a description of her assailant and of the rape. 8. The applicant was arrested on the 3rd of February in connection with another case. He was subsequently turned over to a team of police officers headed by a sergeant who was investigating a number of unsolved robberies. On the 4th of February, the applicant was taken back to his home for a search. Nothing of any significance was found in his home except two gold ball pens. The sergeant instructed the constable to seize it. At that time, the applicant was being guarded by detective police constable 10488. The applicant there and then told the officer that he, together with a Chinese male, HUI Hon-fai, robbed a legal consultant office on the 10th floor of Pioneer Centre in Mongkok at 3.00 p.m. on the 21st day of January, 1982 and obtained these golden-colour Parker ball pens. DPC 10488 immediately reported to the sergeant. He was told to post-record the statement when he went back to the station. 9. In contrast to this, the other detective police constable who saw and seized the pens also reported to the sergeant. He made a note on his note book as to the seizure and the record was witnessed by the applicant and his common law wife countersigning on note book. 10. The applicant was then taken back to the police station for questioning. After that, they set out to locate this HUI Hon-fai who turned out to have nothing to do with this robbery at all. 11. At about 9.25 p.m. on the 4th of February, the detective constable who had heard the confession of the applicant made a post-recording of the confession which was read over to the applicant and signed by him. The post-recording did not finish until five minutes past eleven when the applicant indicated to detective constable 10488 that he was tired and wanted to have a rest. He was then taken to the duty officer and was detained in a cell in the Kwai Chung Police Station. 12. Going back to the 21st of January, the victim, Miss So, made a statement to a woman police constable giving detailed descriptions of her assailant and she was medically examined by doctors. She was found to have a blood patch on her eyes, pin-point blood spots all over her face and a criss-cross ligature mark around the front of her neck extending to the back. She had some abrasions on her breast and a slight tear of 0.5 cm on her fourchette. No seminal stain or sperm was found either in her vagina or her mouth. Her hymen was intact and no other injury was found inside her legs or her vaginal passage. 13. In the opinion of the forensic pathologist, there was certainly no full penetration of her vagina. However, he could not rule out the possibility of a partial penetration. He also offered the opinion that the injury to the fourchette was probably due to forcible parting of her legs. 14. On the 3rd of March 1982, she was asked to attend an identification parade which was held at Queen Elizabeth Hospital. On that parade, she identified the applicant as standing in position No. 6. After that, she made a request to the inspector in charge that the defendant should write two characters - the character 'Chan' and the character 'Kwok'. She was asked why she should ask the applicant to write those two characters. She said that was because the applicant had written those two characters before. She said that she had already recognised the applicant on parade before she asked him to write those characters. She said she was a hundred per cent sure before she asked him to write those characters. 15. She was closely cross-examined at length and in great detail, showing a number of discrepancies between her statement to the police and her evidence in court. She was also cross-examined to the effect that the character 'Kwok' written by the applicant on the parade at her request was in fact a different character 'Kwok' to that which she had told the police. However, she was adamant and was absolutely sure that the applicant was her assailant who raped her and robbed her on the 21st of January, 1982. 16. The defence was one of total mis-identification. The applicant's evidence was that on the 21st of January, 1982, he was no where near Pioneer Building. He was certainly not the rapist or the robber. He said he was either at home at the material time or somewhere else. He could not remember. What happened was that he was arrested on the 3rd of February in connection with another case. After the investigation by a team of officers of that other case, he was turned over to another team of police officers who happened to be investigating the robbery in the Pioneer Building and some unsolved robberies. The very moment he was turned over to this team of officers, he was severely beaten. He was told to cooperate. As a result, he confesses falsely to a robbery and a rape on the 21st of April in 1981. 17. He was taken back to his home for a search. His wife queried the police as to why he was under arrest. Detective sergeant 10426, who led the team of police to his home, told the wife that the applicant confessed to a rape and robbery that occurred in April 1981. The wife immediately contradicted the sergeant that it would be impossible because the applicant was at the material time in the Philippines. She produced two boarding passes showing that the applicant left for the Philippines in March 1981 and did not return until June 1981. The sergeant said that would be the end of the matter. However, the police seized two ball pens from his home. He was taken back to the police station. 18. On their return, they severely assaulted the applicant saying that the applicant deliberately made a fool of them. The applicant was thrown about and against a partition wall between the detective room and the office of the inspector. The force was so great that that partition wall was dented. The violence was sufficient to break a piece of glass in a book case in the inspector's office. That was on the 4th of February, 1982. 19. He was then detained in the cell. The next morning, he saw his sister and his solicitor. The solicitor saw him in a distressed condition and asked him whether he had been assaulted. He replied in the affirmative, but insisted that his solicitor should not make a complaint because he was in fear of further assault. 20. In the event, he complained of a stomach discomfort. He was allowed to go to see a doctor and was escorted by a police constable to the princess Margaret Hospital for the purpose. He dared not complain to the doctor, Dr. Lo, because he was afraid of further assault. 21. This visit took place at 12.25 hours on the 5th of February. The complaint was abdominal pain. He was not given a full physical examination but a slight tenderness was found on the abdomen. 22. He was taken back to the police station where he had a second interview with his solicitor, Mr. Lam. In the course of that interview, Detective Sergeant 10426 told the solicitor that he wanted to take the applicant away. The attitude of the sergeant was so fierce that even the solicitor, Mr. Lam, was in fear. No apparent reason was given as to why the sergeant should interrupt that interview. The applicant was arbitrarily taken back to the cell. 23. On his way to the cell, he was scolded by his escorting officer for having alleged assault by the police officers. That detective constable used a cigarette and to burn his arm near the wrist four times. 24. It was only after Mr. Lam' s complaint to Inspector Lee who was in charge of the case generally that the applicant was allowed to be brought back to the solicitor again for an interview. This time in the presence of the Inspector. At this stage, Mr. Lam noticed the burn marks on applicant's wrist. The solicitor complained to Inspector Lee. The applicant was taken back again to see Dr. Lo in Princess Margaret Hospital at 15.23 hours. This time, upon full physical examination, the doctor found various scratch marks over his chin and upon his arm and further found four blisters, each about ¾cm in diameter, over the dorsal aspect of the lower end of his left wrist. 25. Later the applicant was transferred to the Pik Uk Institution where he was examined by Dr. Klaw. He complained to Dr. Klaw that he had been assaulted by about six C.I.D. officers over the head, the chin, the chest, extremities and the sexual organ. The doctor, on examination, found no less than ten injuries on the body of the applicant. Some were healed scratch marks. The blisters were noted as was the swollen dorsal aspect of the lower end of his left wrist. 26. The applicant also testified that at no time did he made any confession to D.P.C. 10488 at his home or anywhere in the station. He said he never knew that the police had concocted the written confession. He said he never signed any document, nor did the constable make any post-recording of confession in his presence. As far as the applicant was concerned, the whole document - the confession, Exh. P8 - was a concoction at the part of the police and with a forgery of his signature thereon. He said he never saw the so-called confession, Exh. P8, until after the committal proceedings, that it had been served on him with the committal papers but had not been read by him until after the committal. 27. A hand-writing expert was called by the Crown to give evidence as to his examination of the signature on Exh. P8. He compared it with a number of signatures given by the applicant. The expert could not confirm that the signature on P8 was the signature of the applicant nor that it was a forgery. Irrespective of the other injuries found on the applicant, it would be quite unlikely that the four burn marks on the applicant's left wrist could have been self-inflicted within such a short space of time while the applicant was under police escort and in the cell. His injuries were supported by medical evidence. The misconduct of the head of the investigating team was further corroborated by the solicitor, Mr. Lam. 28. Further Police Constable 10488, the officer who post-recorded the so-called confession, had been caught lying in cross-examination. 29. According to the police evidence, when in the evening on the 4th of February, they were about to set out from the police station to arrest the person by the name of HUI Hon-fai who had been named by the applicant practically the whole of the team had known that rape had been involved in this charge. However, Detective Constable 10488 persistently denied that he had any knowledge that rape was involved. It is significant to observe that Exh. P8 was concerned with robbery and choking. Nothing was said about rape. 30. It is also pertinent to observe that the conduct of this particular team and the conduct of CAPO left a lot to be desired. I say this quite apart from any truth or falsehood in the alleged general misconduct. While the applicant was having his second interview with his solicitor, Mr. Lam, Sergeant 10426 arbitrarily interrupted that interview between a solicitor and his client without apparent reason. 31. There was a fierce argument between Mr. Lam and the Sergeant. By this time Mr. Lam had already known of the assault in the afternoon of the day before. He had telephoned to CAPO making the complaint and asking that they merely to go to the police station in order to preserve evidence by seeking a dent in the wall which the applicant alleged he was thrown against and seeking a piece of glass missing from the book cabinet. CAPO declined the invitation on the grounds that the case was still under investigation. We do not consider that an adequate explanation for failing to take steps to preserve evidence of misconduct by the investigating officers if such existed. 32. The sergeant's conduct in interrupting an interview between solicitor and client can only be described as deplorable. What appears to be even more ridiculous is that none of the team of officers admitted that they knew of the complaint made against them until much later. According to Inspector Lee, he had noted down the complaint made by Mr. Lam immediately on the 5th of February. He said that he told his subordinates, this team of officers, some time on the same day. Yet each officer in this team said that they had no knowledge of any complaint until weeks afterwards when the CAPO people contacted them for an enquiry. Either Inspector Lee was lying or this team of detectives was lying. We are more inclined to believe Inspector Lee. The conduct of this team showed them not to be reliable witnesses. 33. Having heard the evidence from the prosecution and the defence, the judge directed the jury in a flawless manner. He gave the jury an extremely careful guideline on matter of identification. He pointed out all the discrepancies in the evidence of Miss So and her statements to the police. He analysed in detail the circumstances in which the alleged confession was taken. He did not expressly tell the jury to ignore it but he made clear that he thought it was not reliable. It must be recalled the alleged confession was admitted without challenge having regard to the nature of the defence on this point. The judge was not asked to give a ruling as to the admissibility of that statement. Short of withdrawing completely Exh. p8 from the jury, or discharging them and ordering a new trial the judge did the best he could in the circumstances. It is only fair to the judge to observe no application was made to him on either point. 34. On the other side of the coin however, the Crown's case was that the applicant did make the statement which was post-recorded. Whether the applicant did make such a confession in the manner described and the view that should be taken as to its truth is a jury question. 35. In any event, in the light of the conduct of the team of constables who took this statement and the remarks made by the judge, it is probable that the jury would not have placed much if any weight on the contents of the confession. The applicant was convicted of all three counts on the totality of the evidence after a full and very detailed summing up. 36. The ground of appeal argued is that the verdict is unsafe and unsatisfactory. Four particulars of that ground are relied on. The first is that the identification of the applicant by the complainant is unreliable. Secondly, the complainant was not a reliable witness. Thirdly, the post recorded confession statement is highly suspect. And lastly, that the judge ought to have exercised his discretion in favour of the accused when the prosecution applied to cross-examine on character. 37. Learned counsel for the applicant freely conceded that he could not find any fault with the judge's direction to the jury. In the course of his summing up, the judge was directing the jury in ho uncertain terms that, unless they were absolutely sure of the identification by the complainant, the so-called confession was useless. He also directed the jury that in this case there was no corroboration of the complainant's testimony as far as the count of rape was concerned. In the course of his directions he set out no less then eleven points as to why the jury should have grave doubts of the police evidence. He concluded by directing the jury in these terms (page 27):
38. Dealing with the particulars in reverse order it is alleged that the judge should not have allowed the prosecution to cross-examine on the character of the applicant at the trial. At the time when the application was made Mr. Lam had not given evidence. Nor had Dr. Klaw. A serious attack had been made upon the conduct of the police witnesses, namely violence, fabrication, perjury and forgery. Whether such allegation be true or false, justifiable or unjustifiable, serious allegation had been made. It was only fair at that stage for the jury to be aware of the nature of the person making such allegations. Indeed, Counsel for the applicant did not press this point before us. He only used it as a make-weight. We are of the opinion that the judge was not wrong in permitting the prosecution to cross-examine the applicant on character. In his summing up the judge gave a proper direction to the jury as to the purpose for which they could use the character evidence. 39. As to the third particular: that the alleged confession was truly without value. The basic question for us to consider is first whether the complainant was a reliable witness and whether her identification was reliable. If the answer to these two questions be in the affirmative, would the conviction be safe and satisfactory? 40. It should be added that one of the members of this Court had doubts in the light of that which, on the face of it, appeared to be gross misconduct by members of the R.H.K.P.F. as to whether or not this conviction should be, as a matter of principle, allowed to stand. This irrespective of the strength of the girl's identification and her reliability. 41. Going on to consider her reliability as a witness. Complaint has been made as to the various discrepancies between her description of the applicant's age, height and build in her statement to the police and in the evidence she gave in court. The judge directed upon these points to the jury in detail but drew their attention to the traumatic experience she had had, a few hours before she made that statement to the police. It is not surprising that there could be discrepancies. In her evidence at trial, she said that there had been full penetration or at least that most part of the applicant's penis penetrated. However, the forensic pathologist said that at most, there could be partial penetration and doctor could not rule out that possibility. 42. One must also bear in mind that when she saw the assailant, she did not have cause to pay particular attention to his height or weight. She had no experience of sex. What might be felt by her to be a full penetration could have been a partial penetration. 43. As to identification. Her evidence was that she first noticed the applicant as a stranger in the corridor. When she went out to talk to the caretaker the applicant joined in the conversation. The second sight. She next saw the applicant when he came into her office and talked to her. The third, and more lengthy, sight. She was face to face with him while she telephoned her employer. She asked him to write his name and address on that mysterious piece of paper which since has disappeared. She had ample opportunity to observe. There is indeed the evidence of the wrong word 'Kwok' being written in the identification parade. However she stated herself to be one hundred per cent sure that the applicant was the person who assaulted her even before she made the request to the applicant to write those two characters 'Chan Kwok'. She asked him to write only when the Inspector in charge told her that she could ask any question. 44. In view of the totality of her evidence it was open to the jury to find that she was not only a reliable witness but also that her identification was not mistaken. The evidence of identification was very strong. 45. As to the second question: whether one can rely on her evidence alone to found the conviction of the applicant of all three charges; what went on in the jury's mind when they considered their verdict is a matter of speculation. We bear in mind however that the confession was before them. There had been no application to the trial judge to exclude it from the jury. Further, the manner in which the trial judge had dealt with that confession: that he told the jury that the confession was of no consequence unless they were sure of the complainant's evidence and her identification. The judge did tell the jury that, as far as the rape charge was concerned, there was no corroborative evidence. It was in these circumstances that the jury convicted the applicant's on the three counts. 46. It appears to us that even without the confession the jury would have convicted and we are satisfied, and this satisfaction is also that of the member who had doubts in principle, that the convictions are both safe and satisfactory. The application for leave to appeal against the convictions on all three counts is refused.
Representation: A.M. Niamatullah (D.L.A.) for appellant McMahon (Crown) for respondent |