The Queen v. Cheung Chun-fuk
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CACC000966/1983 IN THE COURT OF APPEAL
BETWEEN
Coram: McMullin, V.-P., Li & Silke, JJ.A. Date: 8th November, 1983 ___________ JUDGMENT ___________ Li, J.A.: 1. The applicant was indicted and convicted of rape. It is alleged that on the 20th of January this year, in No. 8 Block 23, Cornwall Street Temporary Housing Estate, he raped one CHEUNG Kwai-tai. 2. It is common ground that the complainant and the applicant were acquainted with one and other and that oh the day before the incident, she invited him to visit her when he had time. He did visit her on that day in the morning as he had ho work. Then their versions differed. 3. The complainant said she invited the applicant in. She served him tea. He sat down while she was doing her household chores. The applicant suddenly grabbed her from the back, pushed her down onto her bed. Her head came into contact with the bed railings. As a result there was a slight bruise oh her head. This was confirmed later by medical evidence. She struggled when he tried to penetrate her. He succeeded. But as a result of the struggle, he slipped out and ejaculated oh the lower part of her body, just below the naval. Then he tried to kiss her, offered her $500 and asked her not to tell anybody. At all times she was unwilling. Later in the day she saw her uncle, cried to him and complainted to her brother that she was raped by the applicant. 4. The applicant was arrested the next day. He made a statement in which he said that while he was sitting on the sofa, the complainant told him of her financial difficulties and sat very close to him. She even put her leg on his thigh. Later, she went into the room, pulled her own trousers down and invited him to have sexual intercourse with her provided he paid her $500. The applicant was agreeable to have sexual intercourse with her but it was unsuccessful and he ejaculated, prior to any penetration, on her stomach. 5. That was very different from the statement when he told the police while he was under caution immediately after his arrest. He told the police that no intercourse took place. All he did was, at the complainant's invitation, to fondle her breasts and kissed her breasts after promising to pay her $500 to buy a new refrigerator. Such was the totality of the evidence upon which the applicant was convicted. 6. The grounds of appeal filed in support of this application are five in number. It is necessary for us in the event only to consider the first ground which is as follows:
7. In his direction, the trial judge was careful enough, at page 4, to give a full definition of the offence of rape which included unlawful sexual intercourse, without the consent of the complainant. At page 7, he said this:
8. Learned counsel for the applicant contends that it is a wrong direction on the requirement of corroboration, because the aforesaid passage could mislead the jury into believing that once sexual intercourse was corroborated, then there was no necessity for the jury to consider whether there was any corroboration on the lack of consent. 9. In the case of The queen v. DUNG. Shue-wah, (1) this court cited a passage on this point from the case of James (2) that :
In other words, every single aspect and ingredient of the offence of rape requires some form of corroboration. In our opinion, the summing up by the judge had fully complied with the dictum in the case of James(2). The phrase "that it was committed by him without a consent" were merely matters of surplusage. 10. However, the real offending passage was on top of page 8 of the summing up in which he said:
The scientific report when examined in detail showed that there was some spermatozoa on her body and on her underpants. That piece of scientific evidence is equally consistent with the allegation made by the complainant as the applicant's evidence in court. The applicant said that he tried to mount her, but before he could do so, he was too excited, he ejaculated. In short, the scientific evidence was not the only referrable to sexual intercourse. That the judge failed to direct the jury that even if the jury believed the allegation of the complainant, the scientific evidence was equally consistent with the evidence that was given by the applicant. It should be up to the jury to decide whether such scientific evidence was capable of being corroborative. 11. Further, the judge failed to direct the jury that the scientific evidence as found was not corroborative of her lack of consent. There was, of course, the other evidence which might be capable of corroborating the complainant's evidence, namely, her slight bruise on the head. The judge never put that as being capable of corroborative. The first cautioned statement by the applicant was completely inconsistent with his evidence. That might be used as corroboration. The judge did not say anything about it. 12. For these reasons, we feel that the jury might well be led to adopt scientific evidence as corroborative for the lack of consent. Such evidence was equivocal even for the purpose of corroborating sexual intercourse. We feel that this alone is sufficient to prompt as allowing the appeal. It is not necessary to consider the other grounds. The application must be granted. The appeal is allowed, the conviction quashed and the sentences set aside. 13. In this connection, we would like to say that the additional ground five have some substance. The complaint is that the judge asked the jury to evaluate the applicant's evidence before considering the complainant's evidence. However, we feel that this can only be used as a make weight. Had that been the only ground we might have to apply the proviso. As the applicant is successful on the first ground alone then there is no necessity to consider the other grounds.
(1) Criminal appeal No. 1110 of 1982 (2) (1971) 55 Cr. App. Rep.299 (2) (1971) 55 Cr. App. Rep.299 Representation: Mrs. V.A. Penlington (Howell & Lo) for appellant I.M. Duguid (Crown) for respondent |