Yau Fat v. The Queen
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CACC000906/1971 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 906 OF 1971 -----------------
----------------- Coram: Briggs, Huggins and Leonard, JJ. Date of Judgment: 20th July, 1972. ----------------- JUDGMENT ----------------- Huggins J.: 1. This is an appeal against convictions and sentences on one charge of rape, one of indecent assault and one of attempted rape. The Appellant was indicted and arraigned on six charges of rape against the same young girl but the learned judge directed the jury to acquit him on three counts and the verdicts already indicated were returned on the remaining three counts. On those counts the Appellant was sentenced to four years' imprisonment, one year's imprisonment and two years' imprisonment concurrent. 2. Twelve grounds of appeal have been indicated but we find it necessary to deal with only four of them. In the event counsel for the Crown has not sought to uphold the conviction for indecent assault on Count 3. The learned judge directed the jury that the evidence of the Prosecutrix, a child aged ten years at the time of the alleged offence, required corroboration. The only evidence which supported the evidence of the Prosecutrix was that of another young girl, who gave her evidence unsworn. The learned judge correctly indicated that the evidence of the second girl could not be corroboration of the evidence of the Prosecutrix and, though this could have been put more clearly, that her own evidence required corroboration. However, with reference to this count he later said:
While counsel for the Crown was prepared to argue that there was some corroboration, he conceded that the position was not made clear to the jury. The evidence of the second girl required corroboration by statute: s.4 of the Evidence Ordinance. In our view there was no evidence capable of amounting to corroboration of the evidence of the second girl and therefore it should not have been left for the consideration of the jury. In any event the jury should have been told that corroboration of her evidence was required by statute: R. v. Gregg(1). We could not say that the jury would necessarily have convicted without the second girl's evidence and it follows that the conviction on that count must be quashed. 3. It was submitted that the learned judge misdirected the jury on the burden of proof and suggested to them that the Appellant could be convicted upon a balance of probabilities. It is true that the judge did say "of course anything is possible, but is it probable?" In another appeal from the same learned judge we recently stressed the desirability of avoiding any reference to probabilities in a criminal trial, even in trying to explain the meaning of the phrase "beyond reasonable doubt", but, as in that case, we are satisfied that the general effect of the summing-up can have left the jury in no possible doubt that they had to be sure of the guilt of the Appellant before they convicted. 4. It was also contended that the Prosecutrix should not only not have been allowed to give evidence on oath but should not have been allowed to give evidence at all. The second part of that submission appears to us to be extravagant, because there could be no possible doubt after she had been questioned by the learned judge that she had sufficient intelligence to justify the reception of her evidence and understood the duty of speaking the truth. There was some ground for the first part of the submission, because at one stage the learned judge was obviously minded not to allow the witness to be sworn. However, at the instance of counsel for the Crown he questioned her further and came to the conclusion that she understood that in giving evidence in the witness-box she would be giving it under more serious circumstances and that her position would be one of greater solemnity. She had previously made it apparent that she knew it was wrong to tell lies and now, when asked what might happen if she did not tell the truth after making the affirmation, she said:
In our view that answer fully justified the ruling of the learned judge. 5. The last point to which we need refer also relates to the matter of corroboration. There is no doubt that corroboration is required of the Prosecutrix's evidence in a sexual case. The basis of this requirement was stated in Crocker(2) in these terms:
That being so it is within the province of a jury to convict on the uncorroborated evidence of the Prosecutrix. Nevertheless they must be clearly warned of the danger. 6. The question is, what is meant by "corroboration" in such a case? In James v. Reg.(3) the trial judge had said:
On an appeal to the Privy Council the Board said:
Salman(4) made it clear that where on a charge of rape the sole issue was lack of consent the material particular of which corroboration should be sought was the lack of consent or, as counsel for the appellant in that case put it, "corroboration must be directed to that portion of the prosecutrix's story which the prisoner challenges". The Lord Chief Justice, giving the judgment of the Court of Criminal Appeal, said at p.51:
That case was followed in Hong Kong in MA Kam-wing v. Reg.(5). In MA Kam-wing's Case(5), as in the present, identity was never in issue: the accused admitted having had sexual intercourse with the prosecutrix. There can now be no doubt that corroboration of identity is essential where it is disputed. However, the present case differs from MA Kam-wing's Case(5) in that here the Appellant at the trial denied the sexual intercourse. There were, therefore, two and not merely one of the three elements (identity, sexual intercourse, lack of consent) in dispute. The question which we have to decide is whether in such a case there has to be corroboration of both the disputed elements or whether it is sufficient to have corroboration of only one. Perhaps, more accurately, the question is whether it is necessary to direct the jury that there must be corroboration of both the disputed elements and to leave it to the jury to decide whether there is such corroboration. It is necessary to be accurate about this because there is no doubt that lies can be corroboration but they are not necessarily corroboration (R. v. Clynes(6)), so that if the jury finds corroboration of sexual intercourse and believes that sexual intercourse did take place the fact that the accused had denied sexual intercourse is capable of being corroboration of the prosecutrix's evidence of lack of consent, but it is for the jury to decide whether it is corroboration. 7. It is now unnecessary to go further back than R. v. Baskerville(7) to ascertain what corroboration is required. The Court of Criminal Appeal there reviewed the then existing authorities, which were not all to the same effect, and laid down the rule thus at p.667:
The important words for our purposes are "which shows or tends to show that the story of the accomplice that the accused committed the crime is true" (the ...(illegible) is ...(illegible)). The Court said in respect of the decision of Baron ...(illegible)(8):
In James v. Reg.(3) (supra) the Privy Council said at p.302:
This appears to indicate that confirmation that the accused had sexual intercourse with the prosecutrix is not (or may not be) confirmation of the evidence "that the crime has been committed". The reason is that an accused may deny intercourse not because he wishes to hide the fact that he has committed rape but, for example, to hide the fact that he has committed adultery and adultery under our law is not a crime. As the Board pointed out, in that case not only was there no corroboration of the evidence of identification, but also the judge had misdirected the jury when he said that if they accepted the medical evidence, which showed that sexual intercourse had taken place on the prosecutrix's bed, it could amount to corroboration in law. The Board continued at p.303:
A particular is, therefore, "material" only if it distinguishes conduct which is criminal from conduct which is not criminal, although it may be otherwise improper. What is required is not merely corroboration of the evidence of intercourse but corroboration of the evidence of the "unconsented-to intercourse". 8. It follows that the direction of the learned judge in the present case was incorrect. The statement by the Accused merely corroborated the evidence of the Prosecutrix that intercourse had taken place and that was not "a material particular". It has been submitted by counsel for the Crown that although there was a misdirection nevertheless there was corroborative evidence. That is true. In the case of a young girl it may well be that not much more need be proved than her age to show lack of consent: Harling(9). The only evidence of lack of consent which did not come from the Prosecutrix herself in the present case was the fact, as to which the jury were clearly satisfied, that the Appellant had told a lie when he denied having sexual intercourse with the girl at all. (There were parts of her own evidence on other matters which tended to show lack of consent). While we think the jury may well have come to the conclusion that there was corroboration of lack of consent or even have been prepared to convict without corroboration, it would be unsafe to assume that they would. It is, however, abundantly clear that the Appellant was guilty of the felony of having carnal knowledge of a girl under the age of thirteen years (there is no doubt, as there was in MA Kam-wing's Case(5), whether the girl was under or above the age of 13 years) and we substitute a conviction for that offence on Count 1 and for an attempt to commit that offence on Count 4. 9. In passing we would mention that it was also wrong for the learned judge to say:
The evidence of the Prosecutrix required corroboration not because she was young but because she was the prosecutrix. It was only LAW Shiu-kam whose evidence required corroboration on the ground of her youth and then only because, owing to her lack of understanding, she was unsworn. 10. Having regard to the age of the girl and to the fact that the Appellant was to some extent in loco parentis - having been asked by the father to assist the mother in matters of discipline during his absence - a sentence of four years' imprisonment could be justified. However, bearing in mind the advanced age of the Appellant and the improbability that a measure of leniency will be misconstrued by others we reduce the sentence on Count 1 to 2 1/2 years' imprisonment and that on Count 4 to 18 months' imprisonment concurrent. The sentence on Count 3 must, of course, be set aside. 20th July, 1972. Representation: (1) (1932) 102 L.J.K.B. 126. (2) (1922) 17 Cr. App. R. 45, 48. (3) (1970) 55 Cr. App. R. 299. (4) (1924) 18 Cr. App. R. 50. (5) (1966) H.K.L.R. 885. (6) (1960) 44 Cr. App.R. 158. (7) (1916) 2 K.B. 658. (8) (1855) Dears. C.C. 555. (9) (1937) 26 Cr. App. R. 127. |