HKSAR v. Cheung Hok Man

[English Translation — 英譯本]
CACC 340/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 340 OF 2008

(ON APPEAL FROM HCCC 131 OF 2008)

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BETWEEN

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Before: Hon Tang VP, Cheung JA and Yuen JA in Court

Date of Hearing: 18 November 2009

Date of Judgment: 18 November 2009

Date of Reasons for Judgment: 27 November 2009

REASONS FOR JUDGMENT

Hon Cheung JA (giving the reasons for judgment of the Court):

1.The Appellant was charged with an offence of “rape”.  After a jury trial before Tong J in the Court of the First Instance of the High Court, the Appellant was convicted of the charge and sentenced to an imprisonment term of 7 years and six months.  The Appellant sought leave to appeal against his conviction and sentence.  We granted leave and treating the hearing as the appeal, allowed the appeal, quashed the conviction and sentence imposed for the offence and ordered a retrial.  The following are the reasons for the judgment of the Court.

The Prosecution Case

2.At the time the crime occurred, the victim was a girl of 14 years of age while the Appellant was a young person of 19 years of age.  The victim came to know the Appellant on the Internet.  The victim subsequently realised that she had seen the Appellant before in a comic bookstore (where he worked) when she patronized the bookstore previously.

3.On 3 January 2008, the Appellant invited the victim to his home.  The victim went to the appointed place.  The two of them watched DVD in the Appellant’s room.  Afterwards, the Appellant asked the victim to sit on a bed, then he embraced her and fondled her breasts and private part.  The victim told the appellant not to do that and brushed away his hand(s), but the Appellant continued fondling the victim.  With the excuse that she needed to go to the toilet, the victim tried to phone her schoolmate but she was unable to reach that person.  The victim then returned to the appellant’s room and told him that she had to leave.  However, the appellant pulled the victim onto the bed with force, pinned her down with his body pressing against hers and removed her underpants.  He inserted his finger(s) and penis into her vagina successively.  Not long afterwards, the Appellant ejaculated outside her.  All the time throughout, the victim kept struggling and she asked the Appellant to stop doing so but he ignored her.  Since the Appellant could exert greater power and force than the victim, the victim was unable to break loose.  After the event, the victim left the Appellant’s home and called a schoolmate of hers and told the schoolmate about the incident.  The victim also told a close male friend about the incident.  The victim then took the morning after pill.  On the 3 January entry in her diary, the victim made the following record:

“Loss of virginity	Really very painful…  Why did it to me?
	Having taken morning after pill… I’m in great fear I will get pregnant!  Now realise that people around me … love me very much!”

The Prosecution tendered a duplicate copy of the diary to Court as evidence.

4.When the victim’s mother discovered that the academic performance of the victim had suddenly slipped a lot, in order to find out what had happened, she peeped into the diary of the victim and read the above diary entry.  Being subject to her mother’s persistent questioning, the victim disclosed the whole incident.  The two then reported the matter to the police.

The Evidence of the Appellant

5.The Appellant elected to give evidence in Court to defend himself.  He claimed that on the day in question it was the victim who came to his home of her own accord, went into his room and lay down on his bed.  Seeing that, the Appellant embraced her, kissed her and fondled her.  The victim did not refuse him at all.  He then removed the trousers of his and that of the victim and intended to have sexual intercourse with the victim.  But the victim said to him, ‘This is the first time we meet, don’t, leave it for the next time.’  The Appellant said that at the time he had no idea what the victim had actually in her mind.  To try and test if she was unwilling to have sexual intercourse, he once again proceeded to touch the body of the victim.  But the victim pushed him away and repeated the above utterance.  At that time the Appellant came to realise that the victim was really unwilling to have sexual intercourse, he stopped his act immediately.  After that, they put on their own trousers themselves.  The Appellant denied ever having inserted his finger(s) or penis into the vagina of the victim or ejaculating outside her.

The Closing Submission of the Prosecution

6.In his closing submission, the prosecuting counsel quoted the relevant part of the victim’s diary and told the jury that the relevant part of the victim’s diary tallied with the testimony that she gave in court.  It was said that the victim’s utterance in the course of giving evidence in Court of ‘raped by someone’ tallied with the contents of the diary such as ‘loss of virginity’, ‘Really very painful…  Why did it to me?’  ‘Having taken morning-after pill … I’m in great fear that I will get pregnant!  Now realise that people around me … love me very much.’  In addition, in the diary the victim wrote down the feeling of pain and the words ‘why toyed with her?’  All these lines indicated that she had had sex against her will.  Written in the diary was ‘Have taken morning-after pill, in great fear that I will get pregnant!’ and this line also tallied with the victim’s version in which she claimed that she had had sexual intercourse.  Had she not had sex, she would not have to be fearful about getting pregnant.  The prosecuting counsel asserted that had the Appellant only rubbed his penis against the outside of the vagina of the victim, which was alleged by him to be the actual fact, why was the victim fearful of getting pregnant?  The prosecuting counsel further submitted that the sentence ‘Now realise that people around me love me very much’ written in the diary showed that the victim had poured out the course of events of the incident to her friends after the incident and they supported her and helped her. 

7.After Mr. Justice Tong had delivered a direction to the jury, the jury retired for deliberation.  Afterwards, the jury requested the Court to provide it with the original copy of the victim’s diary, and Mr. Justice Tong did so accordingly. 

Grounds of appeal

8.The ground of appeal put forward in this case is that Mr. Justice Tong did not give a proper direction to the jury on the contents of the diary, and therefore rendering the conviction unsafe and unsatisfactory.

Legal principles

9.In using the victim’s diary record written by her after the incident, the prosecution was obviously trying to persuade the jury to accept that the victim’s evidence against the Appellant was the truth because her diary record made after the incident tallied with and were consistent with the testimony that she gave in court.

10.When referring to a witness’ previous utterance as being consistent with his or her testimony given in court, the relevant legal principles are:

1) In general, even if a previous utterance made by a witness agrees with the testimony of the witness given in court, it cannot serve as corroborative evidence in support of the testimony because the previous utterance will not be admitted as evidence at all.  This reason is that the relevant consistent utterance and testimony came from the same witness.  Even though what she said before and afterwards are consistent, it does not suffice to prove that her previous utterance and her testimony are true.  Hence, when considering how much weight to be attached to the related evidence, the utterance that is consistent with the testimony does not serve any substantive purpose.

2) An exception to this principle is ‘the recent complaint’ made by the victim of a sexual offence, i.e. a complaint made by the victim at the earliest reasonable opportunity after the occurrence of the incident to the effect that she had been sexually abused.  The ‘recent complaint’ supports the allegation of sexual abuse by the victim against the defendant as being a consistent one.  And it also serves to negate any suggestion that the victim had given prior consent to have sex.  See Phipson on Evidence (16^th Edition) paras 12-72 and 12-74.

3) Nevertheless, where the Court allows the prosecution to rely on a ‘recent complaint’ as evidence, the Court still has to give a direction to the jury to enable them to know clearly that even if a previous utterance made by the victim after the occurrence of the crime did tally with the testimony given by the victim in court, it does not follow that her previous utterance is the truth.  The reason is that the relevant utterance does not come from an independent witness but from the victim herself.  Had the Court not given a direction on this, the jury may be under the misapprehension that the utterance is a further piece of evidence in support of the allegation made by the victim against the Defendant, without knowing that such an utterance serves as any other evidence for them to refer to when they decide whether the victim’s testimony given in court is the truth or not.  Should the Court fail to give such a direction to the jury, the conviction would be unsafe and unsatisfactory, see: Abdul Khar Mohammad Islam [1999] 1 Cr. App. R. 22 and R v. Croad [2001] EWCA Crim 644. Also see: R v. B [1997] Crim LR 220.

Views of the Court

11.During the trial, the legal representative of the Defendant never raised any objection to the production of the diary as evidence by the prosecution and neither the defence counsel nor the prosecuting counsel sought a relevant jury direction from Mr. Justice Tong.  As the comments in R v. B indicate, the contents of the diary may not constitute the basis of a ‘complaint’ since the victim might not have thought of showing her diary to a third party at all.  Hence, what she wrote in her diary might not necessarily be a complaint.  Since both counsel on appeal did not make any submission on whether the diary record could be accepted by the court as a ‘recent complaint’, this Court is not going to give its views on this issue.  This Court is of the view that should Mr. Justice Tong be able to find that the contents of the diary constituted a ‘recent complaint’ and admitted it as evidence, he should have directed the jury to enable them to understand the practical function of this piece of evidence, but he did not do so.  Consequently, it is highly likely that the jury would have mistaken the contents of the diary as further evidence from the prosecution in support of the allegation made by the victim against the Defendant, rather than for merely assisting the jury to consider whether the victim’s evidence was true or not.  This Court therefore finds that the conviction is unsafe and unsatisfactory.

12.Mr. Justice Tong stated in the course of directing the jury that the only evidence in the case was victim’s the testimony, though he gave the following direction on the complaint made by a victim after she had been sexually abused:

“Members of the jury, usually when a female had been sexually abused, perhaps she would have, as the first opportunity arose, made a complaint to her family member(s), friend(s) or the police.  Had there been such evidence of complaint, it could show that what the victim said before and afterwards were consistent.  But an immediate complaint does not necessarily mean that what the female victim said must be true.  It only shows that what she said before and afterwards are consistent.  Looking at the other side of the argument, had the female victim not made any complaint all along, or what she said before and afterwards were contradictory, the credibility and reliability of her account of the incident would be weakened.

But Mr. Justice Tong did not give a direction on the contents of the diary in particular.  Consequently, this Court considers the direction given by Mr. Justice Tong as not comprehensive.  The Senior Assistant Director of Public Prosecutions for the Respondent, Mr. William Tam Yiu Ho, accepts that the direction given by the Judge was not defect free.

Retrial

13.Mr. Tam of Counsel seeks an order for a retrial.  Having considered all the circumstances of the case, including factors that the Appellant was tried once and he has been imprisoned for over 14 months, that the tender-age victim will be required to give evidence once again about the sexual abuse incident if there is a retrial, the serious nature of charge, the strength and weaknesses of the prosecution evidence and the reason(s) for quashing the conviction, this Court finds that there should be a retrial.  Consequently, we now make an order for a retrial, and grant the Appellant bail pending the retrial.

Costs order

14.As regards the Appellant's application for costs, it is ordered that costs of the Appeal and that of the original trial be to the Appellant.  Mr. Tam of Counsel does not resist the application.

Mr. William Tam Yiu Ho, Senior Assistant Director of Public Prosecutions, for the Respondent.

Mr. Alan So, instructed by Wan Henry and Yeung, for the Appellant.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.