Chan Tak Ping v. The Queen

CACC000839/1981

Headnote

Conviction : rape : corroboration : phrase "linking the accused person in some way with the offence" in circumstances not sufficient direction.

Nature of comments upon the giving of evidence by an accused disapproved.

Retrial.

BETWEEN

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Coram: McMullin, V.-P., Li and Silke JJ.A.

Date: 7 July 1982

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JUDGMENT

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Silks J.A. :

1. The Applicant, Chan Tak Ping, was convicted of the offence of robbery and of the offence of rape on the 11th September 1981.

2. He was sentenced to imprisonment for 1 year and 7 years respectively the sentences to run consecutively.

3. He was refused leave to appeal against both conviction and sentence by the Single Judge on the 31st December 1981. He now appears before us by reason of his renewal of those applications and confines his application in respect of conviction on the rape charge.

4. He was tried with two other persons, Yu Tak Yuen and Chin Cheung, in respect of both offences. Those two persons pleaded guilty to the offence of rape and were found not guilty by the jury in respect of the robbery.

5. It was, briefly, the case for the Crown that a young lady aged 20 received a telephone call at about half past eight in the evening of the 14th February 1981 - the caller claiming to be one Andy with whom she was acquainted. That call suggested a meeting. A little later there was a further call in relation to her coming to see his Celica car and again a little later a third call which fixed the meeting place as being the swimming pool at Morse Park and the time at 9 p.m.

6. She left her residence, went to the meeting place and was stopped by the Applicant who asked her her name and then told her that Andy had gone to telephone. She was to wait in a car for him.  She got into a car with the Applicant and one of the other defendants and close upon that the remaining defendant boarded the car. There was conversation and one of the defendants said that Andy had gone to the Kwok Pan Restaurant. There was apparently a table waiting for them there.

7. The car then drove off, the Applicant driving, and the young lady was told that they were going to a stone but to fetch a girlfriend of one of the trio. The car went on for a considerable distance and, from the main road, reversed into a small road and stopped. The girl asked why they had stopped and the Applicant told her that they had to go to the toilet. The men got out of the car and shortly after they all returned, two sitting in the back and the Applicant in the driver's seat. There was a conversation in relation to their lack of money and the Applicant was said to have asked the girl if she had a thousand dollars. Her reply was that she had only $120. She was asked if she were casual about sex.

8. The Applicant attempted to lean against her. One of the men in the rear touched her arm and said she was a big girl. There was then a question as to whether or not she was a "professional". She offered them the money she had and she gave her card, relating to her occupation in a car firm, to the Applicant. She said she was feeling ill.

9. The Applicant saying to her that he was about to close the door of the car leant across her and pulled down the lever which controls the back rest of the front passenger seat. She was pushed by him and she fell back with the seat. She struggled and was held by the two persons in the back of the car. The Applicant hit her in various portions of her body with his fist and he produced a knife touching her neck and threatening to stab her to death.

10. One of the men from the rear went to the front. He had been hesitant, but the Applicant told him to come over. The Applicant and the two others removed her jeans belt, stockings and underpants. Her T-shirt was lifted up and the Applicant used the knife to cut her bra. The first defendant raped her and while he was doing so the Applicant fondled her body and the second defendant, still at the back, fondled her breasts. The rapist then left and returned to the back of the car and at that moment she managed to press the horn of the car with her leg. The Applicant then assaulted her and the others squeezed her neck. The second defendant came round to the front of the car got into the front passenger seat and raped her while the Applicant and the first man also fondled her. As this was going on the police came. The girl complained of rape.

11. The robbery of the $120 had occurred before the sexual assaults. It was the Crown's case that the Applicant had taken the $120 from the girl's zippered jacket pocket and placed it in his own pocket. There was evidence from a police constable that he found this money upon the Applicant.

12. A medical examination had showed that the girl had various injuries none of them serious, but nevertheless unpleasant, upon her person. There were finger nail marks on both sides of her neck, the skin over her voice box was bruised. It will be remembered she said that she was held by the persons at the back who squeezed her neck. She was bruised above the breasts and on her right thigh and on her mid fore arm. Her lower lip was swollen and bruised consistent with a blow from a fist.

13. The defence was a denial of the robbery and of the rape. There was an admission by the Applicant that he was at the scene. He said that the girl had gone willingly with them having been teased by the second defendant at Morse Park traffic lights and that she was friendly. There was no deception practised upon her. She in fact led them to a quiet place near Sai Kung. She had said she was a dance hostess and made no mention of being with a car firm. What then took place between the first defendant and the girl was a voluntary exercise which displeased the Applicant. He got out of the car at one time and on returning found her bra on the seat. He threw it at her and he said she slapped his face.

14. In essence he said that he very strongly disapproved of that which had taken place but it was consensual and he did not interfere. It was not suggested by the Crown that the Applicant had had intercourse with the girl. Reliance was placed on his aiding, abetting, counseling and procuring the rapes.

15. He alleged that he was in effect framed by the police constable for the robbery. He said the constable having gone away with a wallet belonging to the Applicant containing something in the region of $1,000 came back with the $120 in his hand. He denied that it was found separately upon his person.

16. The amended Notice of Motion in relation to the Grounds of Appeal contained 13 grounds. The main thrust of the submissions made by Mr. O'Reilly Mayne, with him Miss Sze Kin, who appeared for the Applicant in this Court relates to the trial Judge's directions on corroboration-this of course being a sexual case where such directions are needed. And secondly in relation to a passage which speaks of the reasons for an accused persons giving evidence in the course of a trial.

17. In the course of his summing-up the trial Judge first directed on law and specifically the law generally relating to criminal trials. He went on to make reference to the facts and in the middle of this gave a direction as to corroboration. It reads as follows :

"Experience has shown over the years that sexual charges are rather easy to bring and difficult to refute and sometimes brought, both by men and women, for obscure motives or matters of spite or matters of wishing to cover up some indiscretion or impropriety which has been detected. And so it is held to be desirable that sexual charges should be corroborated by some independent evidence apart from the person complaining, some independent evidence linking the accused person in some way with the offence."

Mr. O'Reilly Mayne attacks the use of the word "desirable" in the passage just quoted and the definition which has been given of that which is corroboration.

18. The passage goes on :

"This is a warning and not a prohibition. In certain circumstances, of course it is almost impossible to corroborate sexual charges because they take place very much in private and those intent upon committing sexual offences take as much care as they can to avoid leaving any traces of being caught. So a jury is quite entitled to convict on the uncorroborated evidence of the complainant in a sexual charge, provided it is thoroughly satisfied of the truthfulness of that witness' story.

Here we are concerned with corroboration in a rather limited field - that is really the field of the 3rd accused's involvement, if any. That sexual intercourse occurred between the 1st and 2nd accused and this girl is corroborated, if only by the medical evidence relating to the girl's condition herself and that of the 1st accused. The fact that she wasn't consenting may be considered to be corroborated by the very substantial - fortunately fairly superficial - injuries which she apparently suffered, according to the medical evidence of the forensic pathologist who saw her within an hour or two of her complaint.

The question is: Is there any corroboration that the 3rd accused was consenting, encouraging, assisting the others to have sexual intercourse with this girl, knowing that she was not consenting to it? I don't think there is any corroborative evidence on that narrow matter. You will have to let your judgment stand or fall on the view that you take of the girl herself as a witness."

Mr. O'Reilly Mayne says that no-where in the course of the whole passage is the danger of convicting on the uncorroborated evidence of a complainant in a sexual case brought to the attention of the jury. Further by saying "I don't think there is any corroborative evidence" the trial Judge was failing in the duty he had to first of all draw the attention of the jury to that which might amount to corroborative evidence in law and second to leave it to them, having done so, to find as a matter of fact whether or not it does corroborate.

19. We accept, as Mr. Duckett who appeared for the Crown in this Court has pointed out to us, that there is no set formula for the direction upon corroboration. In Henry & Manning⁽¹⁾ the Court of Appeal was considering complaints as to a trial Judge's summing-up upon corroboration. In the trial the case against Henry was very strongly corroborated. The case against Manning was not. In the course of the judgment Salmon L.J. had this to say at p. 153 :

"This Court has said again and again, and T hope, quite recently made it clear, in  O'REILLY (1967) 51 Cr. App. R. 345; ...that there is no magic formula or mumbo jumbo required in a direction relating to corroboration. What the judge has to do is to use clear and simple language that will without any doubt convey to the jury that in cases of alleged sexual offences it is really dangerous to convict on the evidence of the woman or girl alone. This is dangerous because human experience has shown that in these courts girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons, which I need not now enumerate, and sometimes for no reason at all. The judge should then go on to tell the jury that, bearing that warning well in mind, they have to look at the particular facts of the particular case and if, having given full weight to the warning, they come to the conclusion that in the particular case the woman or girl without any real doubt is speaking the truth, then the fact that there is no corroboration matters not at all; they are entitled to convict."

20. Here we think for the greater part the directions on corroboration are clear though the use of the word "desirable" - unaccompanied by the usual instruction that in the absence of such corroboration it is dangerous to convict on the complainant's evidence alone - elides the graveman of the required warning.

21. There is one aspect, however, in which the directions are deficient. The Applicant's conduct even on his own story was at least equivocal. It is likely, were the jury satisfied that rape had occurred, that they would have looked very narrowly at the Applicant's claim as to that which went on in his car being a consensual frolic of which he disapproved. Anything which might seem to confirm the girl's story, as it bore against him would, no doubt, have been seized upon by the jury.

22. The girl's claim to have been robbed was very clearly confirmed by the fact that the very sum which she said had been taken from her was found in the Applicant's pocket immediately after her complaint to that effect. That would in law, if such were needed, provide corroboration for the charge of robbery; it could not in law corroborate the charge of rape. In saying that corroboration could be supplied "by some independent evidence apart from the person complaining……linking the accused person in some way with the offence", there was a real danger that, in the absence of a positive direction to the effect that the discovery of the money, or even the Applicant's mere presence at the scene, could not corroborate her on the rape charge, the jury might easily have thought that it did. Such a direction would have been necessary even if there had been an emphatic warning that there was nothing in the evidence which could be regarded as corroborative of the complainant's story. However, the danger that the jury might resort to non-corroborative factors to support their verdict is enhanced by the fact that being told only that the Judge did not think there was any corroborative evidence the jury might have felt that that was a tentative opinion which left them free to look for themselves. The need to warn the jury that evidence which they might regard as corroborative does not in law bear that character was underlined by Lord Parker, C.J., in R. v. Goddard⁽²⁾ at page 461. He said:

"Equally, if you get a case, as in many sexual cases, where there is a danger that the jury will treat as corroboration something which is incapable of being corroboration, there must be a duty on the judge to explain to the jury what is not corroboration as, for example, a complaint made by the complainant."

23. The second main submission of Mr. O'Reilly Mayne relates to the following directions in relation to the Applicant's giving evidence in the course of the trial. The passage reads :

"It is not a question of granting a favour to an accused person. If at the end of the day in relation to any of these charges, your mind is in this state: well, he may have done this, but we are not entirely sure, then your duty is to acquit on that charge, because for you to convict if there was a doubt lurking in your minds would be very unsafe and unsatisfactory and unfair."

This passage by itself cannot be questioned. In fact it goes rather farther in favour of the Applicant than is necessary.

24. But the trial Judge then went on:

"Sometimes it is said the prosecution, the Crown has to prove everything and the accused has to prove nothing. In a sense that is true, but if it were literally true, of course, one might wonder why an accused person gives evidence in his own defence. The 1st and 2nd accused have not availed themselves of that opportunity. That was entirely up to them.

An accused person gives evidence in the hope of convincing the jury of his innocence or at least of causing the jury to doubt the prosecution evidence to such an extent that it is not prepared to convict. Time was when accused persons could not give evidence on oath in the witness box."

25. The expression "in the hope of convincing the jury of his innocence" says Mr. O'Reilly Mayne reverses the onus.

26. And now comes that passage to which particular exception is taken :

"This partly had something to do with the law's horror of perjury. It was felt that accused persons were so liable to commit perjury that it wasn't really safe to let them take an oath and give evidence. They gave an unsworn statement from the dock upon which they could not be cross-examined by the prosecuting counsel.

That option remains in England, and we have very wisely done away with it in Hong Kong now. A person either gives evidence in the witness box on oath and faces cross-examination or he remains silent. Well the 3rd accused has given evidence."

27. It is Mr. O'Reilly Mayne's submission that the two passages taken together are highly prejudicial to the Applicant and that, in effect, they took away from him his right of defence; that the direction places the Applicant first of all in a class or category of persons whose purpose is to convince the jury of their evidence as opposed to telling the truth then, second, in the class of perjurers. It not only shakes but destroys his credibility.

28. Further he complains that, while there was a general and proper direction as to how witnesses should be treated by the jury in the viewing of their evidence, they were not told specifically that the Applicant should be treated in the same way as any other witness.

29. While we think the phraseology of the trial Judge to have been somewhat unfortunate, if it stood alone we would not have been prepared to upset the conviction though directions of this nature should be avoided in the future - they tend to confuse.

30. But we feel we must view this direction in the light of the complaints which we think to be justified relating to the earlier direction on corroboration.

31. It may well be that a properly directed jury would have come to the same conclusion as to the guilt of the Applicant. But we feel that we cannot say that they inevitably would. Viewing the portions complained of in the summing-up overall we think the conviction of the Applicant to be unsafe and that we are not in a position to apply the proviso.

32. We have heard Counsel on the matter of a retrial. While bearing in mind that which Mr. Mayne has said as to double jeopardy and as to the period of a year and three quarters that the Applicant has spent in custody we are of the opinion that the evidence is strong and that the public interest and the interests of justice require a new trial.

33. We would therefore allow the application for leave to appeal, treat the hearing of the application as the hearing of the appeal quash the conviction on the count of rape and order a new trial.

34. Under the provisions of Section 83F Criminal Procedure Ordiance we direct a fresh indictment to be preferred in the terms of the second count in the indictment dated 1st September 1981.

(1)    [1969] 53 Cr. App. R. 150

(2)   [1962] 46 Cr.App.R. 456

Representation:

D.F. O'Reilly Mayne, Esq., Q.C. and Miss Sze Kin (Chan & Chan) for Applicant.

A.P. Duckett, Esq., for Crown/Respondent.