HKSAR v. Rai Raju Kumar

CACC74/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 74 OF 2009

(ON APPEAL FROM HCCC NO. 215 OF 2008)

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Before : Hon Cheung, Kwan JJA and Saw J in Court

Date of Hearing : 10 June 2010

Date of handing down Reasons for Judgment : 18 June 2010

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REASONS FOR JUDGMENT

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Hon Saw J (giving the Reasons for Judgment of the Court) :

1.On 24 February 2009, after a trial before Deputy Judge Lugar-Mawson and a jury, the applicant was convicted of one count of Rape, contrary to section 118(1) of the Crimes Ordinance, Cap. 200.  He was on that day sentenced to be imprisoned for 6 years.  On 3 March 2009, he filed an application for leave to appeal his conviction.

2.On 10 June 2010 we dismissed the application for leave to appeal.  These are our reasons.

Background

3.The particulars of the offence alleged that the applicant had “on the 14^th day of June 2008 inside the toilet of the Halo Club, Lower Ground Floor, Nos. 8-12 Stanley Street Central, Hong Kong raped [Ms X]”.

4.Ms X was the first prosecution witness in the trial.  We shall refer to her as “PW1”.  The Halo Club was a private members club in Central, the applicant was employed there as a bartender.  On 14 June 2008 PW1 was a customer. 

5.At the commencement of his summing-up to the jury, the judge helpfully provided a succinct and we are satisfied accurate synopsis of the prosecution and defence cases.  He said this :

“    The complainant in the case is [PW1].  She is a 26-year-old Canadian of Chinese descent who is now living and working in Hong Kong.  On 14 June last year, 2008, she and a group of friends went to the Halo Club in Stanley Street, Central.  It is a private members club.  She drank heavily there and by around 4.30 in the morning she was feeling very unwell because of the effects of alcohol.  She was very drunk.  Soon after, she went to one of the toilets at the Halo Club to vomit.  She was very unsteady on her feet.  The defendant, who was a bartender at the Halo Club, accompanied her to the toilet.  All of this can be seen on the CCTV tapes taken by the Halo Club’s security camera system.

The two of them entered that toilet at 04:40:22 hours and they left it at 05:12:47 hours.  The times are taken from the CCTV tape taken by the Halo Club’s security system.  The tape shows them entering and leaving the toilet.  The door is seen closing fully at 04:40:22 hours and being opened by the defendant at 05:12:47 hours.

[PW1] says that once inside that toilet a dark man who, because he wore black clothing, which is the uniform of the Halo Club’s bartenders, she believes was one of the club’s bartenders, raped her.  She says that this man penetrated her vagina with his penis from behind.  He did this without her consent and he did it while she was vomiting or attempting to vomit into the toilet bowl.  She says that before that he tried to kiss her face and he put his hand inside her top and fondled her breasts. 

She says that at some time she heard the sound of knocking on the door and hearing a man speak in a language which was neither English nor Cantonese.  She says that the man who was raping her answered back in what sounded like the same language.  She says that he then helped to put her underpants back on, he told her to put her leg inside one of the leg holes. 

[PW1] cannot remember leaving the toilet and she cannot remember how she got home.

The man who knocked on the door was Vishal, another bartender at the Halo Club.  You have not heard from Vishal, but he can be seen both knocking on the door and speaking on the security video.  Both Vischel and the defendant are Nepalese and there is no dispute that the language they spoke in was Nepali.

As well as Vischel, Sarfraz Ahmad, the bar’s security manager, had knocked on the door several times and been told by the defendant that the girl was fine and was vomiting.  Sarfraz Ahmad’s visits to the toilet door can be seen on the security video, he made 10 visits to the door in all.

The next thing that [PW1] remembers is waking up at home several hours later suffering badly from the effects of alcohol.  She went to urinate, it was painful to do so.  She was menstruating, it was the fourth day of her cycle, and she says that she found her tampon high in her vaginal canal.  It was difficult to remove.  She says she had to insert her finger to locate the string.  She flushed the tampon away.  She went back to bed.

She woke later in a highly distressed state.  She phoned her friend, Stephanie Ng, and when Stephanie came she told Stephanie that she had been raped the night before at the Halo Club. 

Because she was so drunk and semi-conscious while in the toilet, [PW1] cannot identify the defendant as the man who raped her. 

The defendant was arrested the Monday after, 16 June.  He was arrested at work at the Halo Club.  When cautioned, he told the police officer who arrested him that, and I quote, ‘I only took her to the toilet to clean her as she had vomited.’  Earlier, when he was shown the CCTV security tapes, he had said, and again I quote, ‘I had taken her to the toilet because she had vomited and I cleaned her face.’”

6.The applicant gave evidence which was consistent with that which he told the police when he was arrested.  Thus it was that the critical issue for the jury to determine was what had taken place in that toilet cubicle in the 32 minutes when PW1 and the applicant were inside.  PW1 said she was raped. 

7.What was not in issue in the trial was the fact that the applicant had been inside the toilet cubicle together with PW1 for those critical 32 minutes.  The applicant’s case was that the allegation of rape was untrue.  He said that he was there to assist PW1 because of her state of intoxication.  She was vomiting and he was holding her upright—presumably to prevent her falling into the toilet. 

8.He washed her face for her.  Nothing untoward occurred.  Neither he nor anyone else had sexual intercourse with her in this time, let alone sexual intercourse without her consent. 

9.The judge correctly observed at the beginning of his summing-up that were the jury to find that PW1 had been raped then they would have little difficulty in the circumstances in concluding that it was the applicant who had raped her. 

The evidence

10.There was no evidence which directly supported PW1’s allegation that she had been raped.  Subsequent to her making a complaint PW1 was examined by a Dr Ying.  He was noted that she had several small bruises on her back and right arm but accepted that those could have been caused by bumping into objects whilst intoxicated.  There was also an abrasion on the inner lining of the middle labium minus and also a superficial split wound on the fossa navicularis.  The injuries to her private parts were consistent with recent penetrative blunt force.  Another doctor, Dr Yung who had not examined PW1, considered that these could have been caused by the repeated insertion and removal of tampons in the course of PW1’s menstrual cycle.  Dr Ying could not rule out that possibility.

11.It was an admitted fact that there was no DNA evidence which linked the applicant to PW1.

12.The judge summarized the evidence of PW1 for the jury.

“    She said: ‘I can remember Vischal coming around the bar and saying to me ‘Are you okay?’  I said, ‘Okay’, but I felt ill and I went to the bathroom again, I was very intoxicated.  I threw up, and suddenly someone was in the toilet with me.’

This is what she said in evidence-in-chief when Miss Lau asked her questions. 

‘I don’t remember someone coming to the toilet with me.  I don’t remember locking the toilet door.  I noticed someone standing between me and the bathroom door.  I believe the door was closed.  I remember facing the man.  He grabbed my face and tried to kiss me.  I pushed him away.  I remember him groping me, holding me from behind.  I wasn’t really standing, I was too intoxicated.  He was putting his hands on my shirt, touching my breasts, trying to take my shirt off.  I tried to resist.  I couldn’t.  I was very drunk.  I remember facing the toilet.  I wanted to throw up.  The man was behind me.  He wasn’t able to take off my upper garment.  Then I remember feeling someone penetrate me from behind and raping me.  He had his arms around my waist.  It felt like someone had put their penis inside me.  He was making a noise.  It was inside my vagina.  I was wearing jeans, a black top, a gold necklace and pink shoes.  He took my jeans off.  I couldn’t do anything to stop him.  I didn’t consent to this.  When he was groping me, I tried to move my arms but I couldn’t.  I can’t remember if he ejaculated inside me.  In my head it lasted maybe 10 minutes, I can’t be sure.  I remember hearing knocking on the door - shouting - saying something.  The man behind me answered, neither in English or Cantonese.  The one outside the door kept banging on the door, yelling.  The man behind me yelled back.  I remember falling forward and throwing up in the toilet.  The person behind me drew back and continued to rape me.  I remember my pants had fallen off, my right leg was out.  He tried to help me put my pants and jeans and shoes back on.  Then I don’t remember being fully conscious.  I felt someone carry me upstairs, then I don’t remember what happened, I passed out completely.  I remember hearing Mukesh’s voice and like he was carrying me.  I remember Mukesh putting me to bed and he -- and me trying to tell him I was raped.”

13.PW1 also said that the following morning at about 10 a.m. she complained to PW2 that she had been raped.  PW2 confirmed this allegation. 

14.PW2 described PW1 as being in a highly distressed state.  She was crying hysterically and kept saying that she needed to go to a hospital.  The judge directed the jury correctly as to how they could take the description of her distress and the complaint made to PW2 into account if they were minded to.

15.PW3 was also a witness called to give evidence of recent complaint.  He was the person she referred to as Mukesh.  He and his brother-in-law had taken PW1 home after she had emerged from the toilet cubicle at the Halo Club.  He said that at that time she was in a drunken unconscious state.  However by about 6 a.m. she recovered consciousness and said “Rape” and asked him to get her roommate—he said that she was still very drunk at the time.  The judge directed the jury to ignore this evidence.

16.The applicant gave evidence.  He said that at one point late that night PW1 had told him that she felt like vomiting.  The time when this occurred was 04:40:10 when he is shown on the CCTV tape coming from behind the bar to speak with her.  He offered to help her to go to the toilet and she accepted this offer.  They both entered the toilet cubicle at 04:40:37 again shown on the CCTV.  He locked the cubicle door.  Over the next 30 minutes he assisted PW1 whilst she vomited from time to time.  They remained there together until they are shown leaving the cubicle.  At which time PW1 was almost unconscious.

17.The CCTV tape confirmed in part, the evidence of PW1 and that of the applicant that during the time that they were in the toilet cubicle other members of the staff of the Halo Club were seen on occasions banging on the door of the cubicle telling the applicant to open the door.

18.The summing-up was we are satisfied focused and accurate it contained the appropriate mandatory and discretionary directions.  This included a recklessness direction notwithstanding that the applicant denied that there had been sexual intercourse. 

The grounds of appeal

19.The applicant appears in person.  Legal aid was refused on 24 April 2009.  The applicant has filed a handwritten document dated 31 October 2009 headed “Perfected Grounds of Appeal against Conviction”.

20.Whilst there is in part some repetition in this document.  It is we believe fair to say that his complaints are as follows :

(1) The judges’ directions to the jury were deficient inasmuch as they did not give assistance to the jury as to how to determine the applicant’s guilt or innocence when there was no direct independent evidence that he had raped PW1. 

(2) He complains that insufficient emphasis was given to the lack of DNA connecting him to PW1 and that the injuries to PW1’s vagina were equally consistent with the entry and removal of tampons during the course at her menstrual cycle.

(3) The judge did not place sufficient emphasis on the fact that PW1 was very intoxicated and the relevance of this to her credibility and reliability.

Discussion

21.The judge made it abundantly clear that the prosecutions case was dependant upon the evidence of PW1 and that objectively there were matters which could render it unreliable, he said :

“    … she admitted that she was very drunk that night.  Her recollection of what happened in the toilet is not clear.  She admitted that.  Bear in mind what I am sure is obvious to all of you, that allegations of a sexual attack are easy to make up and often difficult to refute, particularly where there is evidence, as there is in this case, that the man and woman were alone together for a substantial period of time.

Bear in mind that there is no independent evidence that confirms [PW1]’s account of what happened.  You only have her word that the tampon was high in her vagina when she attempted to remove it, it was not found there by the forensic pathologist when he examined her.  She said that she threw it away.

Mr Khosa yesterday in his speech said that there was ‘A serious lack of independent evidence’ in this case, and I certainly agree there is a lack of independent evidence.  Whether there is  ‘serious’ lack only you can decide.”

22.The applicant suggests that the jury did not pay attention to these matters and simply believed PW1.  We can see no substance in this criticism.

23.Of the DNA evidence the judge said this :

“    It is agreed evidence that nothing of significance was found either on [PW1]’s clothing or the defendant’s, the clothing that he wore that night.  [PW1]’s underpants appear to be bloodstained but there is no evidence why they are bloodstained.  Please do not speculate about that.  It is agreed that nothing of significance was found on the defendant’s other clothing that the police seized from his home. 

…

The defendant told you that none of his clothing, none of the clothing the police took from him, either from his body nor from his home, had been laundered before the police seized it from him.”

24.As to the injuries sustained by PW1, the judge said :

“    In cross-examination, Dr Ying accepted that the injuries to [PW1]’s vagina could have been caused by the clumsy removal of a menstrual tampon.  Dr Yung was also of that opinion.  She said the injuries could have been caused by the repeated insertion and removal of tampons during [PW1]’s menstrual cycle.  [She] said that 14 June was the fourth day of her menstrual cycle.

…

Save that they are agreed that the injuries to her vagina were caused by something penetrating it, neither Dr Ying nor Dr Yung can say what that something was.  …”

25.It is to be remembered that in the early part of his summing-up, the judge directed the jury that if they were not sure that PW1 had sexual intercourse in the toilet cubicle that was the end of the matter.  The above directions focused the jury’s attention on PW1—her reliability and the accuracy of her evidence and the fact that it was unsupported by independent evidence.

26.Taking the summing-up as a whole it is clear that the jury would be alert to the fact that there was no independent support for the complaint of rape and that the evidence of PW1 had to be evaluated in light of the state of her intoxication. 

27.There is no substance in these complaints.  The directions given were we are satisfied appropriate and nothing more was required. 

28.This brings us to the applicant’s next complaint which is to the effect that there were inconsistencies between the evidence of PW1 and the statements she had made to the police at the time she was interviewed.  The judge dealt with these matters in the summing-up, he said :

“You will recall that Mr Khosa cross-examined [PW1] in relation to certain parts of the contents of two witness statements that she had made to the police officers investigating this case.  That was done to show that some of the things she said in those statements conflicted with her evidence to you. 

If you are of the view that there are conflicts, decide whether or not they are material conflicts.  You should not be concerned if the variations relate only to very small matters of detail or are merely differences in phraseology.  If you are sure that the conflicts are material ones, then you may take into account the fact that [PW1] made those statements when you consider whether she is believable as a witness. 

Take into account what [PW1] told you about the circumstances in which she made the first statement, if you believe her.  She said she had had repeated examinations that day at two hospitals - the Ruttonjee in Queen’s Road East and the Kwong Wah Hospital in Kowloon.  She said she was diagnosed as suffering from a bladder infection.  There is no independent evidence that she was.  She said that she was still distressed by what had happened at the Halo Club that evening.  She said the officer who took the statement was not proficient in English, which I believe is [her] native language, she is a native-born Canadian of Chinese descent.  And that much of what was said between the officer and herself had to be translated.

The other thing I have to tell you is that the contents of the two statements are not part of the evidence in this trial except for those parts of them that [PW1] told you are true.”

29.In the above passage, the jury were told in clear and unambiguous terms to evaluate her evidence in light of such inconsistencies that they found.  They were properly directed that they could accept all or part of a witness’s evidence and as to inconsistencies to determine whether or not these were important.  There is no substance in this criticism. 

30.The applicant complains that PW1 in her evidence said that she first complained of being raped to PW2 at about 10 a.m. that morning and yet in one of her two statements to the police it is suggested that her first complaint of rape was made to her room mate (who was not PW2).

31.The jury were no doubt alert to this inconsistency—if there was one.  They were properly directed as to their proper approach to it and others.  What is clear is that PW1 did complain to PW2 at 10 a.m. that day less than 6 hours after the alleged rape whether or not she had complained to another before or after that does not impact materially on her credibility.

32.Other matters raised by the applicant are more general in their nature.  He complains that PW1’s cries for help went unanswered and yet her friends were sitting close by and the Halo Club security staff were patrolling in the vicinity of the toilet outside.  PW1 was cross-examined on this matter.

“Q.    Is it probable you wrongly remember what happened in the cubicle?

A.  No, I wouldn’t wrongly remember.  I wouldn’t wrongly remember fighting off him trying to kiss me, raping me.

Q.  When he entered, what state were you in?

A.  Highly intoxicated.

Q.  How did you resist?

A.  I tried to take his hands off me.  He had his hands down my shirt.

…

Q.  What did you say to the man?

A.  Nothing.  I tried to cry out.

Q.  What did he say?

A.  I don’t know.  He shouted out, the man who was banging on the door, in a language not English or Cantonese.

…

Q.  You say he was making noises.  What -- sorry, you say you were making noises.  What were they?

A.  Trying to cry out.

Q.  Did you cry out?

A.  Obviously not loud enough to be heard outside.”

33.The judge highlighted this evidence for the jury—they were obviously aware of it and its significance. 

34.Finally, the overall thrust of the various matters raised by the applicant is that his conviction is unsafe and unsatisfactory by reason of the failure of the judge to properly direct, the jury and the consequential acceptance by the jury of the evidence of PW1 and in so doing proceeding to convicting him.

35.We are satisfied that there is no merit in the criticisms individually and collectively.  The summing-up was fair and balanced.

36.We dismissed the application for leave to appeal conviction.

Ms Virginia Lau, SPP of the Department of Justice, for the Respondent

The Applicant in person, present