Tse Luen-lam v. The Queen

Case No.CACC 864/1973

Court

Court of Appeal

Date22 Feb 1974

Judge—

Case Document

100%

CACC000864/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINA APPEAL NO. 864 OF 1973

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BETWEEN:
	Tse Luen-lam	Appellant
	and
	THE QUEEN	Respondent

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

Date of Judgment: 22nd February, 1974

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JUDGMNET

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1. The appellant was convicted of two offences in the Supreme Court: the first offence was rape and the second offence was robbery.

2. The case for the Crown was that the appellant met one LI Kit-yin on a hillside at Kwun Tong, Kowloon and raped her. Immediately after he raped her he robbed her of a necklace and the sum of $2.60. She complained of his conduct immediately afterwards and he was arrested at once.

3. We will say at once that we find no fault with the summing-up of this case by the learned Commissioner. The jury found the appellant guilty on the charge of rape by a majority of five to two. The jury also found the appellant guilty on the charge of robbery by a majority of six to one. The record then contains the following words:-

	"COURT:	Ladies and gentlemen, thank you for the work which you have put in this case. Mr. Foreman, is there anything else you wish to say?
	FOREMAN:	Yes. We found it very hard to come to conclusions, specially on the of everybody on the jury is that, let us say, 55 per cent or 60 per cent for the case of Rape, whereas perhaps 40 per cent we could say that the lady willingly went to him - to this affair. So, we would like to ask for leniency on behalf of the accused."

The Commissioner then asked the Foreman whether there was any doubt as to the verdicts they had already given, that is to say five for a conviction of rape and two for an acquittal and the Foreman said that there was no doubt. It appears from the words used by the Foreman that the jury arrived at their verdict by a wrong method. And it clearly showed that on this charge they were not satisfied of the guilt of the appellant beyond reasonable doubt. In these circumstances, the counsel for the Crown, and we think rightly, did not seek to support the conviction on the charge of rape.

4. Counsel then addressed us on the appeal against conviction on the charge of robbery. Having heard counsel, we think that it would be unsafe to allow this verdict to stand. It is true that there is no evidence that the jury used the same method to arrive at the verdict on this charge as they did on the charge of rape. But the robbery charge was linked with, and closely linked with, the charge of rape. Indeed, in his summing-up the Commissioner referred to this fact. We therefore think that on this charge also it would be dangerous to allow the conviction to stand.

5. Treating this application as the hearing of the appeal itself we allow the appeal on both counts and set aside the sentence imposed. The appellant will be discharged.

Representation:

Bokhary (Director of Legal Aid) assigned for Appellant.

Gall, C.C., for Crown/Respondent.