1. Cheung Chung-ming and Another v. The Queen

CACC000749/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.749 OF 1973

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Coram: Briggs, C.J., Huggins & Pickering, JJ.

Date of Judgment:

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JUDGMENT

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1. The two appellants together with others were charged with two charges of unlawful detention of a female, with three charges of rape and with one charge of assault occasioning bodily harm. The appellants Pleaded guilty to the assault charge. They were found guilty of one charge of unlawful detention and on one charge of rape; on a second charge of rape they were found guilty of indecent assault. In addition, the second appellant was found guilty on the third charge of rape. That is to say, the first appellant was found guilty of one charge of rape and the second appellant was found guilty of two charges of rape. The victim of the rape in each case was the same girl. I shall refer to her as "the victim".

2. The grounds of appeal are that there was insufficient evidence to found the conviction and that the verdicts were unsafe. The facts are as follows.

3. The appellants were members of a group of six young men. One of them, not one of the appellants, conducted the victim and a friend of her's to an address in Aberdeen. According to the victim they went under duress. According to the defence, the girls went there voluntarily. After the girls had waited outside in the street for a while, some members of the group came down to the ground floor and dragged the victim and her friend upstairs into a beauty parlour. The lights were put out and there was some dancing. The victim's friend was taken into another room and later she made her escape from a window. The victim said she was detained in the beauty parlour and that she was raped three times. Each of the appellants raped her once, penetration being achieved on each occasion. In addition, the second appellant aided and abetted the first appellant when he later achieved what he wanted.

4. I will deal with the count of unlawful detention first.

5. Mr. Sparrow, who appeared for the appellants, pointed out that there were inconsistencies in the evidence of the victim compared with that of her friend and that the true picture of the evidence was that the girls went to the address in Aberdeen willingly. These inconsistencies largely concerned the period from the time the girls were picked up in statue square by a member of the group and their arrival at the beauty parlour. The period of the unlawful detention did not commence until the girls had been taken upstairs into the beauty parlour however. The learned Commissioner was careful to point out to the jury the quality of the evidence as to this charge. There was evidence that the girls were dragged upstairs by some of the members of the group and that the appellants played an active part. We think that evidence, if believed, was sufficient to found the conviction and the appellants appeal on this charge must fail.

6. I now come to the three charges of rape. In the summing-up, which was favourable to the appellants and their co-accused, the learned Commissioner said that there was corroborative evidence that the victim had been raped but no corroboration of her evidence that it was the first and second appellants who were actually responsible. Mr. Sparrow's contention is that it would be unsafe to rely upon the evidence of the victim. He pointed out that the state of the lights and the excitement of the moment made it improbable that she would have a clear recollection of what had occurred.

7. On the first charge of rape, the third count, the jury found the appellants guilty of indecent assault. The first appellant has withdrawn his appeal against his conviction on this count. The victim said that the second appellant helped to undress her and there was evidence from another of the accused that this was so. In the circumstances, there was ample evidence of an indecent assault. We dismiss the appeal of the second appellant on this count.

8. The jury convicted both appellants on the second charge of rape, the fourth count. The evidence of the victim was that the first appellant succeeded in penetrating her. It was suggested that the second appellant was guilty of rape also in that he aided and abetted the first appellant. The victim gave a detailed description of the act of rape which she said was performed by the first appellant. She then said that after she had been raped the second appellant slapped her on the face. The second appellant, in giving evidence, denied this. He said he was out of the room at the time when the victim was being raped and when the came into the room it was all over and he did not slap the victim. We think it possible that this piece of evidence - the evidence of the victim that she was slapped by the second appellant - may have been considered by the jury to be evidence that the second appellant aided and abetted this instance of rape. This, of course, cannot be so since the slapping occurred after the rape. In the circumstances, we think that the conviction of the second appellant on this count is unsafe and we allow his appeal. However, there was ample evidence to convict the first appellant and his appeal on this count is dismissed.

9. There was also ample evidence to convict the second appellant on the third charge of rape, the fifth count, and his appeal is dismissed on this count.

10. The first appellant was given a sentence of five years' imprisonment for the offence of rape contained in the fourth count. The second appellant was given six years' imprisonment on the fifth count, the sentences to run concurrently. In imposing the sentences on the fifth count, the learned Commissioner stated that he took into consideration the fact that the second appellant had committed two acts of rape. He, therefore, imposed a heavier sentence than he had imposed on the first appellant. As we have allowed the appeal of the second appellant on the fourth count of rape, we think that we should give leave now to the second appellant to appeal against his sentence on the fifth count and to reduce that sentence on the fifth count to a sentence of five years' imprisonment and we order accordingly.

Representation:

Sparrow (W.K. Poon & Co.) for both Appellants.

Polson, Crown Counsel for Crown/Respondent.