Cheung Moon-tong (A1) and Another v. The Queen
Read the full judgment text of CACC 832/1980 on BabelCite. This Court of Appeal judgment.
1. We allowed these appeals and said we would give cur reasons in writing.
Cited by 2 cases
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CACC000832/1980 Criminal Law - rape - cross-examination of complainants - questions as to previous sexual experience to explain presence of semen and not to attack their characters - disallowance a wrong exercise of discretion. Summing-up - belief that complainant consented a good defence even though based on insufficient grounds - unnecessary so to direct jury unless a basis of evidence exists for such defence. Date (s) of hearing: 21st April, 1981. Date of handing down reasons: 25th May, 1981. Jackson-Lipkin, Q.C. & Miss Fi-lan Chua (Director of Legal Aid) for Appellants. J. Dick for Crown/Respondent.
----------------- Coram: Sir Alan Huggins, V.-P., Cons, J.A. and Silke, J. Date of Judgment: 25th May, 1981. Date (s) of hearing: 21st April, 1981. Date of handing down reasons: 25th May, 1981. ----------------- JUDGMENT ----------------- Sir Alan Huggins, V.-P.: 1. We allowed these appeals and said we would give cur reasons in writing. 2. The applicants were each charged on two counts of rape and were convicted on both charges. 3. The evidence was that, while in the company of a third young man, the applicants accosted two European girls who were making their way back to Sek Kong after spending a weekend on Hong Kong Island. The girls said that they were somewhat reluctant to accept a lift in the applicants' car but were bundled into the back seat. They set off up Route Twisk but were then driven to an isolated spot near the Tai Lam Chung Reservoir. Eventually the car stopped and the second applicant, who had been driving, attempted to fondle the breasts of the first girl. When she objected, he produced a large knife and ordered her out of the car. According to the girls they were then raped, the first by the second applicant and the second initially by the first applicants and then by the third man, who was not before the Court. Both applicants were alleged to be present, aiding and abetting the rape by the other. During the attack on the first girl lights were seen some distance away and she started to scream, but the second applicant put his hand over her mouth and in so doing caused an injury which was found on her lip. Afterwards the man reverted to their previous friendly attitude and took the girls back to Sek Kong. On the way they sought to arrange a further meeting and exchanged telephone numbers, the girls co-operating so that they would not be abandoned out in the country. A subsequent medical examination disclosed that both girls had semen in their vaginas. 4. The applicants did not deny having picked up the girls and taken them to the place described. The defence of the first applicant was that the girls consented to have intercourse but that he was unable to penetrate the second girl because he could not raise an adequate erection. The second applicant similarly alleged that the girls consented and, though admitting intercourse with the first girl, alleged that he withdrew before ejaculation. 5. It was a substantial part of the defence of both applicants that the semen found in the girls was not theirs and in the course of the trial their Counsel sought the leave of the Judge, under Section 154 of the Crimes Ordinance, to cross-examine the girls about their previous sexual experience. This step was prompted by questions put to the girls in examination in chief to establish that they had not had sexual intercourse with another man during the previous week. The Judge refused leave and that refusal has been the subject of the main complaint upon the appeal. 6. It must be said that the basis of the application for leave to cross-examine upon this matter was not put before the Judge in the clearest manner. In particular there was no indication that the cross-examination was primarily concerned with sexual experience during the previous week. Had there been, it is possible that the Judge would have taken a different view. His decision was that there was no reason for giving leave to advance what he described as (and junior counsel for the applicants conceded to be) "a standard defence". Exactly what was meant by that phrase we are not sure, but it does suggest that the Judge had not appreciated that the cross-examination was to be concerned with the presence of the semen rather than to be a general attack on the character of the girls. There was, indeed, no reason for giving leave to cross-examine with a view to attacking their characters. Nevertheless the importance of the issue whether the semen could have come from persons other than the applicants was indicated by, the questions which had been put by Counsel then appearing for the Crown. In the case of the second applicant his allegation of withdrawal before ejaculation stood little chance of belief in the face of the presence of the semen and the uncontroverted (and, by reason of the previous ruling in relation to the first applicant, unchallenged) evidence that she had not been with another man. Had he been believed on this issue there was at least a possibility that the jury would have doubts concerning the lack of consent. In our opinion a fair trial was impossible unless the second applicant was allowed to challenge the girl's denial of previous intercourse. 7. The first applicant denied ever penetrating the second girl and orima facie it was equally vital to his case that he should be allowed to challenge her denial that she had been with another man previously. There was, however, this difficulty - the significance of which was not made clear to us on the hearing of the appeal - that there was evidence of a subsequent rape of this girl by the third man. (Incidentally, the evidence of the first applicant was that he attempted sexual intercourse with the girl after the third man and not before him). The girl said that the third man ejaculated inside her, and, if believed, that could have accounted for the semen found and it would have been immaterial whether the girl had had sexual intercourse with someone else prior to the offence charged. Only if the evidence of connection with the third man was disbelieved would the possibility of prior sexual intercourse have become material: it could then have lent credence to the evidence of withdrawal and conceivably have raised a doubt in the minds of the jury as to the rest of the girl's evidence. Although not explicitly admitted, it does not seem to have been denied that the third man had sexual intercourse with the second girl and the jury probably accepted that he did. In the absence of evidence contradicting the girl they probably also accepted her evidence that he ejaculated inside her, unless they thought that she had been proved to be wrong on some other issues. It is here, again, that the denial of previous sexual intercourse was important: if Counsel for the defence had been able to shake her on that, it is conceivable that the jury might have begun to have doubts upon other matters. The refusal to allow cross-examination could thus have contributed to the verdicts returned. 8. That brings us to the further complaint that the defences were in any event not adequately put before the jury and, particularly, that the distinctions between them were not pointed out. It is not necessary for a judge to review the defence evidence as a whole, provided that the material parts of it are clearly before the jury. Mr. Dick conceded that the defences were not put in the best way possible, but submits that they were sufficiently put. It was unfortunate that the Judge on two occasions suggested that both applicants admitted having had sexual intercourse. As regards the first applicant that was not correct : it was his case that he was incapable of intercourse on this occasion, as the Judge elsewhere stated. No reference was made in the summing up of the light brown Caucasian head hair found among the pubic hair of the second girl, her own head hair being "very dark brown". On the equally vital issue of consent it was the first applicant's evidence that the second girl, having had intercourse with the third man, actively invited him to do the same. That was not mentioned by the Judge, nor was his denial that the knife was produced. The second applicant's evidence of withdrawal was also not mentioned. We would be slow to conclude that the Judge's ommissions had led to such an inbalance as to constitute a failure adequately to put to the defence, but in regard to the second applicant the omissions were clearly too great to allow of a fair presentation of the issues and in regard to the second applicant we had considerable anxiety. 9. It was contended before us that in every case of rape it is incumbent upon the judge to direct the jury as to the law governing the accused's possible belief that the complainant had consented even though there was no consent in reality. This contention was based on that which the House of Lords accepted by a majority in Director of Public Prosecutions v Morgan /1976/ A.C. 182. That was a case most unusual on its facts in that the defence raised there was an alleged belief, not induced by the complainant, that she consented, despite what on the surface was her obvious and total lack of consent. In the House of Lords the direction the judge at first instance gave to the jury that such a belief must be reasonable was held to be wrong on the ground, criticised in Archbold 40th Edition, para 1439(a), that when a defendant had had sexual intercourse with a woman without her consent, genuinely believing nevertheless that she did consent, he was not to be convicted of rape, even though the jury was satisfied that he had no reasonable grounds for so believing. 10. It is noteworthy that the appeals in that case were dismissed in the Court of Appeal and stood dismissed in the House of Lords, though on different grounds, Lord Edmund-Davies, of the minority, saying at p.235:
Lord Hailsham at p.215 expressed the view that "no miscarriage of justice has or conceivably could have occurred". 11. In Director of Public Prosecutions v Morgan the House imported a subjective test into the criminal law in respect of the mental element which it is necessary for the prosecution to prove in order to obtain a conviction on a charge of rape. It appeared to distinguish Reg. v Tolson (1889) 23 Q.B.D. 168, and the line of cases stemming from it, wherein the test was (p.181) -
However, Lord Hailsham expressly declined to overrule Director of Public Prosecutions v Tolson, and Lord Cross of Chelsea thought it still to be of general application, though he differed from Lord Simon and Lord Edmund-Davies, the minority, as to its extent - which leaves the matter in some doubt. The House did supplant that test by a test of "genuine belief" even on inadequate grounds, with the reasonableness of that belief being merely evidential. As Lord Fraser of Tullybelton said at 1976 A.C. 237,
12. Rape is intercourse with a woman without her consent, or being reckless and not caring whether the woman be a consenting party or not. That is the prohibited act and in our judgment judges should so tell juries. On the extraordinary facts of Director of Public Prosecutions v Morgan it was considered necessary to go on to direct the jury on the genuine belief aspect, as the trial judge did, and the case turned on whether or not it was a misdirection for him to say that that belief should be a reasonable one. A "Morgan direction" is not necessary in every case: it is only when the effect of the evidence as a whole, to use the words of Lord Fraser, "is that the defendant believed, or may have believed, that the woman was consenting", when she was not, that one is necessary. This view is consistent with dicta in Australian cases referred to in the House, viz Reg. v Burles /1947/ V.L.R. 392 and Reg. v Flannery and Prendergast /1969/ V.R. 31, and with the judgment of the Court of Criminal Appeal in Rex v Steane /1947/ 1 K.B. 997, some phrases of which were expressly approved by Lord Hailsham in Director of Public Prosecutions v Morgan at p.213. 13. In the present case the Defendants alleged, amongst other things, consent in fact and there was no suggestion that if the girls in reality did not consent the Defendants had a genuine belief that they did. Nor was there sufficient in the evidence to warrant the judge's having raised the issue of his own accord. The matter for the jury was whether or not real consent existed. 14. None of the other matters raised calls for mention in this judgment save the suggestion that by the use of the phrase "of course" the learned Judge "poured scorn" on the first applicant's defence and that by saying "in a sense" it was right "that the defence had to prove nothing and the Grown has to prove everything" the Judge misdirected the jury as to the burden of proof. In our view there is nothing whatever in the first point, whilst we are satisfied that taking the summing up as a whole there can be no reasonable fear that the jury were misled as to the burden of proof. 25th May 1981. Representation: Jackson-Lipkin, Q.C. & Miss Fi-lan Chua (Director of Legal Aid) for Appellants. J. Dick for Crown/Respondent. |
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