The Queen v. Wong Wah Chiu and Others
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CACC000980/1982 [Reference by counsel to failure of accused to testify]
_______ Coram: Roberts, C.J., Cons and Barker, JJ.A. Date: 30th and 31st August 1983 ___________ JUDGMENT ___________ Roberts, C. J. : 1. The six defendants, whose applications for leave to appeal against conviction and sentence are before us, were originally charged in an indictment which contained 15 counts. The 1st, 2nd, 3rd and 5th defendants were acquitted on the 1st count of arranging or assisting the passage of unauthorised entrants to Hong Kong. The 1st to 5th defendants were convicted on the second count, of arranging or assisting the passage within Hong Kong of unauthorised entrants. All were convicted of false imprisonment on the 15th count. Defendants 1,3,4,5 & 6 were each convicted on one count of rape, that is counts 3,7,9,11 & 13. The 2nd defendant was convicted of two counts of rape, that is to say counts 5 & 6, and there were acquittals on counts 4,8,10,12 & 14. All the defendants seek leave to appeal against both their convictions and sentences. Summary of Crown Case 2. The Crown case was that a young Chinese girl Chu Hei-mui, who was just under 18 years of age at the time, travelled from her home in Wu Han where she lived to Canton at the beginning of August 1981. After spending some weeks in Canton with relatives and friends, she was put in touch about the middle of September with a man whom she identified later as the 5th defendant and, after further meetings between them, arrangements were made for her to be brought illegally into Hong Kong. 3. On the 17th of September she and two other young people were taken from Canton to a beach where they waited for a day and a night for a boat. On the evening of the 18th, the boat arrived and a man called Ah Kwok led them to it. They were transported to Hong Kong in it. When she arrived in Hong Kong, she was met by a number of men, among them the 1st and 2nd defendants, and was driven in a car to the Fu Wail Hotel. In this hotel she was taken to a room. 4. About two days after she arrived, she was taken in a car by the 2nd defendant, who was one of the men who met her on her arrival in Hong Kong, to another hotel where he raped her (5th count). 5. This was the first of a series of rapes committed separately by each of the defendants between about the 21st of September and the middle of October. The Crown's case was that the object of the defendants was to bend the girl to their will so that she would eventually work for them as a prostitute. 6. On a later date she was taken by the 2nd defendant to another hotel and raped again (6th count). When she had been in Hong Kong for 3 or 4 days, she was moved from the Fu Wah Hotel to a flat owned by Ah Kwok. After about a week there she was brought back to the Fu Wah Hotel again. After her return the 5th defendant came to her room in the hotel and raped her (11th count). 7. While she was in the hotel, the 1st defendant had visited her at various times and on ore occasion he raped her there (3rd count). After this, she was moved from her hotel to premises in On Ning Building in Mataukok Road and there she was raped by the 3rd defendant (7th count). 8. She said that she first met the 4th defendant at the Fu Wah Hotel and that after she moved to On Ning Building, he also raped her (9th count). 9. While she was at On Ning Building, the 1st defendant, who was known as Boss Wong and seemed to be in charge of the group, told her that she was to make love to the 6th defendant as the 1st defendant owed him a favour and thereafter the 6th defendant entered her room and raped her (13th count). 10. The Crown case on the charge of false imprisonment (15th count) is that during a period of over five weeks this girl was detained by the defendants, though not all of them were present at any given time. She was in fear of them, she said, because she was an illegal immigrant unable to go out for fear of being caught and returned to China, and one or more of the first five defendants was constantly with her. 11. About the 26th of October, she was taken by the 2nd, 3rd and 4th defendants to the house of a man called Chan in Castle Peak Road. She thought that she had been sold to him as his wife. On the 27th of October, the police raided the premises and found her there. She admitted to them that she was an illegal immigrant and was arrested. It has never been contested that she was an unauthorised entrant into Hong Kong. Statements to police 12. After her arrest, she was questioned for several hours by immigration and police officers, during which time she made no accusations of rape against any of the defendants. It was only after a considerable amount of pressure by those who were questioning her that she finally made the allegations which form the subject of these charges. It is to be noted that, on the 2nd of November, at an identity parade, she identified each of the six defendants separately. 13. Statements were made by some of the defendants to the police and admitted in evidence. The 1st defendant admitted having intercourse with her but said that it was voluntary and that he paid her money for it. The 4th defendant similarly admitted Intercourse with her but said that she had consented to this. The 2nd defendant admitted contact with the girl during the relevant period but made no admissions as to any sexual intercourse with her. The 6th defendant admitted having intercourse with her but said that he thought she was a prostitute and that he had paid her for her services which were willingly given. The 3rd and 5th defendants made no statement to the police. 14. 1st, 2nd and 4th defendants gave evidence to the same effect as their statements. They asserted that they did not know that the girl was an illegal immigrant or that she was being detained. They thought she was a prostitute and had paid her for the services which she rendered. The 3rd, 5th and 6th defendants gave no evidence. 15. In addition to those defendants who did testify, a Mrs. Kam was called for the defence. She described how she had shared a cell with the young girl and how, during a conversation which she had with her in that cell, the girl had said that the allegations of rape which she had made against the defendants were not true. Is there a substantial doubt? 16. With the exception of one question of law arising from a comment by the prosecutor with which we will deal at a later stage, there is only one ground of appeal of any substance, namely, that the verdicts were unsafe and unsatisfactory and ought to be quashed, on the authority of The Queen v. Cooper. It's unnecessary for us to refer in any detail to that case, which is well known. The principle stated in it is that an appellate court should be prepared to quash a conviction if, although there has been no fault in the summing-up, it feels nevertheless what has been described as a lurking doubt as to whether or not the conviction is safe. This court commented on Cooper in Tang Wai-tong and Another v. The Queen 1979 HKLR 479 at p.486 as follows:
17. That therefore is the approach which we feel an appellate court should adopt when it is suggested that Cooper should be applied to the facts of an appeal before it. The evidence of Chu Hei-mui 18. The argument submitted to us is not that the Commissioner mis-directed the jury in law or in fact, nor that he failed to put the defence such as it was, nor that he failed to warn the jury of the dangers of convicting on what was almost entirely the uncorroborated evidence of this young girl. Counsel for the appellants drew our attention with great care to a substantial number of discrepancies and contradictions in the girl's evidence, to unsatisfactory and unconvincing replies, and to the circumstances in which, under police pressure, she first involved the defendants after several hours of questioning during which she had made no such allegations. 19. This girl, on her story, was kept in virtual detention for about five weeks and raped several times during that period. She made her long statement to tire police, in which she implicated the defendants, in October 1981. In February 1982 she gave verbal evidence at length in a preliminary enquiry; in August 1982 she gave her evidence and was for a period of 12 days subjected to a detailed cross-examination. It would be extraordinary if there was not a substantial number of discrepancies, in view of the lapse of time, and the weight of the questions. 20. So far as the question of her late complaint to the police is concerned, she gave an explanation; the jury were asked to consider it by the Commissioner and to decide whether or not they could accept it. The judge drew the jury's attention in his summing-up to a number of contradictions and improbabilities; for example, her confusion about the colour of the car in which she was driven when she first arrived in Hong Kong, inconsistencies as to whether she changed cars during that first journey, how long she was in Hong Kong before the 5th defendant raped her, and whether or not at the time of her arrest she was wearing the underpants which she said had been torn by the 5th defendant. 21. There were other questions which the jury had to consider and which were put before them: why did she not shout for help when she was taken to the cinema by the 5th defendant, or to a restaurant thereafter: how did she know that she had injuries to her neck when there was no mirror in the flat; why didn she lean out of the window and shout; and what is the effect on her credibility of Mrs. Kam's evidence. There were these and other inconsistencies and difficulties in her evidence, particularly her failure to make an early complaint when arrested. For each of these circumstances she offered an explanation, which was before the jury. 22. The Crown case falls or stands on the credibility of this girl. The jury saw her and heard her story dissected in minute detail for 12 days, long enough surely for anybody to form a clear, considered view of the reliability, character and truthfulness of the witness. They must have concluded that she was worthy of belief in the main essentials of her story. We are asked to say that, although there was no fault in the summing-up or the conduct of the trial, we should conclude that we are uneasy with the verdict and substitute our own, unaccompanied by any of the advantages which flow from an observation of the witness. Cooper says we may do so, Tang says that we must have a substantial remaining doubt before we do. We do not have any such substantial remaining doubt in this case. Reference by counsel to failure of defendant to give evidence 23. The only other ground of substance which was put forward by the appellants was that there had been an infringement by Counsel of section 54(1) of the Criminal Procedure Ordinance, which provides that the failure of any person charged with an offence, or the wife or husband as the case may be of the person so charged, to give evidence shall not be made the subject of any comment by the prosecutors. This section is in the same terms as section 1(b) of the English Criminal Evidence Act of 1898. 24. This section was referred to by this court in Yu Yuk-kwong and Others v. The Queen, 1979 HKLR, p.585, at p.594, as follows:
25. It is to be noted that that passage was obiter, because the convictions had already been quashed by the court on other grounds. Insofar as that passage may suggest that a conviction must be quashed or a retrial ordered if there is any mention at all by the prosecutor of the failure by a defendant or his wife to give evidence, this seems to us to go further than the cases require. It is only necessary to refer to the R. v. Dickman (1910), 5 Cr. App. R., 135 and to R. v. Hunter (1969) Criminal Law Review for 1969, 262. In each of those cases, the prosecutor referred inadvertently to the failure of the defendant's wife to give any evidence. In both cases the appeals against conviction were dismissed, the appellate court being satisfied that there had been no miscarriage of justice. 26. The principle appears to be that if an appellate court is satisfied, taking into account the circumstances in which the comment was made and its terms, the jury would not have been influenced thereby, the proviso can properly be applied and the conviction upheld. 27. What were the circumstances of this reference? At the conclusion of his summing-up, the Commissioner asked Counsel if there was any matter to which he should refer. The prosecutor replied: "There is one matter, my lord, your Lordship has directed the jury on the effect of the third, fifth and sixth defendants not giving evidence and I wondered, my lord, whether Section 37D subsection (2) of Chapter 115, should be drawn to the jury's attention in relation to the fact that there is no evidence from the third, fifth and sixth defendants." 28. The section, which the prosecutor mentioned, creates a presumption, which has to be satisfied by defendants on the balance of probabilities, once the Crown has established certain primary facts. The prosecutor was referring to an earlier passage in the summing-up in which the Commissioner said: "It is the natural reaction of laymen in these circumstances to say that the 3rd, 5th and 6th defendants had not gone into the witness box. "Why has not the 3rd defendant, why has not the 5th defendant, why has not the 6th defendant gone into the witness box if he is innocent? What I am going to tell you is this, that it does not matter. You have not got to judge what the reasons are, whether they -- be they convincing or not. Each of these three accused has the right not to go into the witness-box. All it means is that there is no evidence from the 3rd defendant, the 5th defendant and the 6th defendant other than that contained in the statement made by the 6th defendant." 29. The prosecutor therefore is asking the Commissioner to instruct the jury that there is no evidence from the defendants on the charge of arranging the passage of illegal immigrants within Hong Kong. What he said about this was immediately superseded by the Commissioner's direction. We have no doubt that it must be the direction, rather than the brief mention by Counsel which gave rise to the direction, which would have remained in the jury's mind and that Counsel's reference can have had no influence on the jury's verdict. 30. The applications for leave to appeal against conviction of all defendants are refused. We will hear any submissions that Counsel may wish to make on the applications for leave to appeal against sentence. Representation: Mayne, Q.C., John Lee (Jenkins & Au) for 1st, 2nd and 4th accused. S. Westbrook (D.L.A.) for 3rd, 5th and 6th accused. R.G. Walters, Counsel for the Crown (on fiat) |