HKSAR v. Cheung Hok Man

[Translation —英譯本]

CACC75/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 75 OF 2010

(ON APPEAL FROM HCCC 131 OF 2008)

------------------------

BETWEEN

------------------------

Before: Hon Cheung, Yuen JJA and Chu J in Court

Date of Hearing: 16 December 2010

Date of Judgment: 29 December 2010

JUDGMENT

Hon Chu J (giving the Judgment of the Court):

Background

1.The Applicant was charged with one count of Rape, contrary to Section 118(1) of the Crimes Ordinance, Cap 200 of the Laws of Hong Kong. After a trial before Barnes J and a jury in the Court of the First Instance of the High Court, the Applicant was convicted of the charge and sentenced to imprisonment for 7 ½  years.  The Applicant filed an application for leave to appeal against conviction.  

The Prosecution Case

2.The particulars of the offence alleged that on the 3^rd day of January 2008, the Applicant at his home in Tuen Mun raped a girl (hereinafter referred to as the ‘female victim’).

3.At the time of the offence, the female victim and the Applicant were 14 and 19 years of age respectively.  Around mid-December 2007 the two of them came to know each other on the Internet Chat-Room.  In the course of chatting on the Internet, the female victim realised that she had been to the comic bookstore where the Applicant worked and that she had seen him before.

4.On the 3^rd day of January 2008, the female victim finished school early as the school exams were under way.  She took a bus in Tsuen Wan to travel to the Applicant’s home in Tuen Mun.  The female victim played on the computer in the Applicant’s room.  Afterwards, the two of them watched video discs together, during which the Applicant asked the female victim to sit onto a bed.  The Applicant then embraced the female victim and tried to kiss her face and lips.  He also fondled her breasts and private parts.  The female victim brushed the Applicant’s hand(s) away and told him not to do that.  With the excuse that she needed to go to the toilet, the female victim left the room to make a phone call to a female schoolmate of hers in the toilet, but she could not reach with that schoolmate.   The female victim then returned to the room in an attempt to take her bag back and leave.  However, the Applicant pulled her onto the bed, pressed his body on top of hers, forcibly grabbed her breasts and fondled her private parts with his hand(s).  The Applicant then took off the female victim’s underpants and penetrated her vagina with firstly his finger(s) and then his penis.  Afterwards, he ejaculated outside her.  Throughout all this time, the female victim kept putting up resistance by twisting her body, saying loudly ‘No’ and ‘Don’t’ and pushing the Applicant with her hand(s).  But the resistance was in vain as the Applicant overpowered her.

5.After the Applicant and the female victim put their pants back on, the Applicant demanded to look at the female victim’s mobile phone and they had an argument over that.  Eventually, the female victim left the Applicant’s home.  When she was waiting for a ride, she called that female schoolmate of hers again, saying that a male ‘did it’ to her and that she was worried she would get pregnant.   Subsequently, the female victim stayed in a park near her home, where she thought long over the matter before she went to a nearby pharmacy to buy two contraceptive pills commonly known as ‘morning after pills’.  She took one of the pills on the same day and the other one on the following day.  After the female victim had returned home, she did not go out again. 

6.On or about the following day, the female victim called another female schoolmate, telling her that a male ‘did it’ to her and about how the incident happened.    The female victim also asked her opinion on buying ‘morning after pills’.

Evidence of the Applicant

7.The Applicant elected to give evidence in defence.   According to the Applicant, on the day in question it was the female victim who requested to go to his home.    Having arrived at his home, the female victim went into his room.  They watched video discs on the computer.  Initially they were leaning against each other on the bed in a half-lying and half-sitting posture.   After a while they started to embrace each other.  Another while later the Applicant kissed the female victim’s face and the female victim also kissed his.  The two of them then kissed each other on the lips.  Subsequently, they lay on the bed and the Applicant fondled the female victim’s breasts and private parts.  During that period of time, the female victim did not put up any resistance.  When the Applicant was taking off the female victim’s pants, the female victim said that it was the first time they had met, they should not rush to it.  However the Applicant thought that the female victim was being shy, he therefore continued to take off her pants and took off his. He drew very close to the female victim and prepared to have sexual intercourse. At that time, the female victim gave him a gentle push and repeated that it was the first time they had met, and that they should not rush to it.  The Applicant still thought that the female victim was being shy and he drew very close to the female victim again.  When his penis touched the female victim’s lower abdomen, the female victim pushed him away forcibly.  At that moment as the Applicant understood that the female victim was really not consenting to have sexual intercourse, he stopped.  The two of them put back on their own pants. 

8.The Applicant told the police in the video recorded interview that when he was taking off the female victim’s pants, intending to carry out sexual intercourse, she resisted him vigorously and pushed him away with her hand(s).  The Applicant made another attempt, but in vain.  During that period of time, his penis only brushed against the female victim’s body without penetrating her vagina. 

9.The Applicant denied ever having inserted his finger(s) or penis into the vagina of the female victim or having ejaculated outside her.

10.According to the Applicant’s testimony, after they had each put back on their own pants, he read from the communication record on the mobile phone of the female victim’s that some intimate text messages were sent to some other men by her.  The two of them had an argument over that, and the female victim left angrily.

The first Ground of Appeal   

11.The first ground of appeal of the Applicant is that the trial judge did not give a proper direction to the jury on the legal principle of ‘genuine belief’ and on whether the Applicant genuinely believed that the female victim consented to have sexual acts, and that was a material irregularity rendering the conviction unsafe.

Concerning the Legal Principle of ‘Genuine Belief’

12.Regarding the charge of rape, the prosecution is to prove that the defendant had sexual intercourse with the victim when he knew that the victim was not consenting or he recklessly pressed ahead with it regardless whether she was consenting. If the defendant genuinely believed that the victim consented to have sexual intercourse, no such mens rea existed on the part of the defendant: DPP v Morgan & Others [1976] AC 182, 214; HKSAR v Ma Kin Yiu [2008] 3 HKLRD 655, 659-660, para 14.

13.In HKSAR v Ma Kin Yiu, this Court (Hon Cheung, Yeung and Yuen JJA) pointed out that it was not necessary for the court to give a direction on ‘genuine belief’ in each and every rape case. Whether such a direction was necessary, and whether the direction as given was fair, was to be determined by reference to the facts of the case, in particular the evidence of the victim and the defendant.   If there is sufficient evidence or any special factor in the case causing there to be room for a defence of a genuine belief or mistaken belief that the victim had consented to sexual intercourse, the court is bound to give such directions.  The evidence or basis of ‘genuine belief’ can come from either the prosecution or the defence.

14.In HKSAR v Wong Shing Chung CACC 66/1999), this court (Leong, Woo JJA and Pang J) held that the relevant element was whether the defendant ‘genuinely believed’ rather than ‘honestly believed’ that the victim consented to have sexual intercourse with him.  Hence, even if such belief of the defendant was based upon wrong or unreasonable grounds, that would be of no relevance.

Discussion over the First Ground of Appeal

15.In the course of the present case, the trial judge discussed with counsel of both sides on whether a direction on ‘genuine belief’ would be given.  The trial judge held, based on the Applicant’s denial of sexual intercourse having taken place, that ‘genuine belief’ in the female victim’s consent to sexual intercourse did not exist and that it was thus unnecessary for the court to give a direction on ‘genuine belief’.

16.Mr. Wong, counsel for the Applicant, submitted that the background of the case and the evidence adduced in the trial left room in the present case for a genuine or mistaken belief on the part of the Applicant that the female victim consented to sexual intercourse, rendering it necessary for the court to give such a direction to the jury.   This court agrees with the submission.

17.First of all, before the incident, the Applicant and the female victim had already started to have frequent communications with each other on the Internet Chat-Room and to telephone each other.  According to the records of their Internet communications, the female victim not only had an affection for Applicant, but also did not mind or object to the intimate and affectionate conversations with him.  One day before the incident, the Applicant even called the female victim intimately as ‘Madam Wife’, the female victim’s response was ‘Got it’, and she even sent (an) ‘I love you’ message(s) to the Applicant.  Under cross-examination by the defence, the female victim also agreed that the Internet communications between the Applicant and her were partly intimate.

18.Besides of that, on the day of incident, the female victim finished school early and she took a ride on her own from Tsuen Wan to Tuen Mun to visit the Applicant. According to the testimony of the female victim, after she had entered the Applicant’s room and while they were watching a video disc, she sat onto the bed of the Applicant at the Applicant’s request; when the Applicant embraced her and fondled her breasts on top of her upper garment, she brushed the Applicant’s hand(s) to the waist.   Besides, according to the testimony of the Applicant, the female victim and he embraced each other while they were watching video discs, they subsequently kissed each other on the face and lips; he then fondled the female victim’s breasts and private parts, to which the female victim did not object.

19.This court is of the view that the events and testimony mentioned above might have caused the Applicant to mistakenly believe that the female victim consented to have sexual acts.

20.Furthermore, under cross examination by the prosecution, the Applicant indicated in explicit terms that as he had had intimate acts with the female victim, he personally regarded the female victim to be consenting to have sexual acts with him.

21.Ms. Lai, counsel for the prosecution, argued that the present case was different from HKSAR v Ma Kin Yiu and HKSAR v Wong Shing Chung,  because the Applicant said that when he had come to know that the female victim was not consenting, he ‘made a pause on the brink of a precipice’ and did not carry out sexual intercourse; therefore there was clear and distinct evidence in the present case to show that the Applicant knew the female victim did not consent to sexual intercourse; however, the ground of defence put forward by the Applicant in Ma Yiu Kin, which involved only one count of ‘non-consensual buggery’, was that the female victim consented to have anal sex at the outset, she subsequently had an uneasy look on her face and told him that she found it uncomfortable and painful, the Applicant therefore stopped the sexual acts.  In other words, the Applicant in the case also defended himself by saying that he did not proceed with anal sex after he had come to know that the female victim was not consenting.  This court, based on manifold factors such as the previous relationship between the Applicant and the female victim in the case, the circumstances of the day in question and so forth, finds the facts of the case to have room that warranted the court to give a direction on ‘genuine belief’.

22.In regard to the Applicant’s testimony that he did not carry out sexual intercourse, this court is of the view that in considering whether a direction on ‘genuine belief’ is necessary, the court has to weigh manifold factors.  Whether the Applicant had sexual intercourse with the female victim and the Applicant’s argument that he in fact did not carry out sexual intercourse were the core issues at trial.  However, the Applicant also argued that he personally believed that the female victim consented to have sexual acts as he had had intimate acts with her at that time.   It did not seem from the facts or background of the present case that there was no evidence or basis to support the circumstances that the Applicant had thought the female victim to be consenting to sexual acts.   Hence, the present case did leave room for consideration of whether the Applicant held or might have held a ‘genuine belief’ that the female victim was consenting to sexual intercourse.

23.The prosecution needs to prove each and every element of the charge of ‘rape’ which include, inter alia, the Applicant knew that the female victim did not consent to sexual intercourse, or alternatively, the Applicant did not believe that the female victim consented to have sexual intercourse.  Under the circumstances of the present case, the trial judge did not give the jury a direction on ‘genuine belief’, constituting a material irregularity that rendered the conviction unsafe.

The second Ground of Appeal

24.The second ground of appeal put forward by the Applicant was that the trial judge wrongly found the evidence of a witness on the prosecution witness list to be irrelevant to the present case, and that the judge wrongly and repeatedly refused the defence’s application for calling the witness to give evidence in court.        The Applicant argued that the decision of the trial judge deprived him of the right to summon a witness, causing him to have no opportunity to impeach the credibility of the female victim’s evidence in front of the jury. 

25.The prosecution witness concerned was a male friend of the female victim’s, whom she called as ‘god-brother’ (hereinafter referred to as ‘god-brother’).  He said in his written statement that at about three o’clock on the afternoon of the day in question, he met the female victim by chance in a shopping mall of a hotel in Tsuen Wan.   The female victim was, as he saw her, ‘long-faced’ and ‘very unhappy’.  When being asked what the matter was, the female victim only cried and refused to say anything.  He guessed that the Applicant had given the female victim a hard time.  He then called the Applicant with the female victim’s phone, confronting him if he ‘did it’ to the female victim, and requesting him to come out to talk.  The Applicant still did not show up after they had waited for an hour or so; the female victim left and he also left later.    In a subsequent conversation, the female victim told him that she had been raped by the Applicant.

26.The Applicant, on his own initiative, told the police in a video-recorded interview that several hours after the female victim had left his home on the day in question, a male called him, asking him if he had had sexual acts with the female victim and had raped her; when he denied having done so, the male said that if he denied, he would make a report to the police; the male also told him to come out and meet up.  The Applicant did not know whether that male was trying to intimidate him.  He did not go to meet that male, and that male did not contact him again either.

27.Under cross-examination by the defence, the female victim testified that she did not see the god-brother on the day in question, and she denied having seen the god-brother after she left the Applicant’s home.  Under re-examination by counsel for the prosecution, the female victim maintained that she surely did not see the god-brother on the day in question.

28.Mr. Wong, who was then counsel for the defence as well, discussed with the trial judge on many occasions at trial over calling the god-brother as a witness.   The first occasion being the time after the female victim had finished giving her evidence.  On that occasion, the trial judge asked the prosecution what the purpose of the god-brother’s evidence was, counsel for the prosecution replied that there was no need for the prosecution to call the god-brother to give evidence, and that the defence requested to call him though.   The trial judge said that the female victim did not make a ‘recent complaint’ to the god-brother and that his evidence was merely hearsay.  Mr. Wong said that the defence would not quote or have the intention to rely on the conversations between the god-brother and the female victim, and that the defence, however, wished to test the reliability of the female victim’s evidence with the god-brother’s evidence.  The trial judge did not see it in the same light as Mr. Wong did, and yet she did not rule formally on whether the god-brother could be called.

29.The second occasion being the time when the prosecution case was approaching to an end.  On that occasion, Mr. Wong made a formal request for calling the god-brother to give evidence.  He also indicated that the purpose was to elicit the fact that the god-brother saw the female victim on the afternoon of the day in question and that he did call the Applicant, thereby testing the credibility and reliability of the female victim, and ascertaining the reasons and motivations behind her denial of having been to the shopping mall of the hotel and having met the god-brother there by chance.  The trial judge refused the application by reason of the irrelevance of the god-brother’s evidence to the core issue of the case (i.e. whether sexual intercourse had taken place), and the failure of the defence to put it to the female victim that she had been to the shopping mall of the hotel and seen the god-brother there, and that her denial of it was a lie.

30.The third occasion being in the course of the examination-in-chief of the Applicant.  When the Applicant testified that he received a phone call from a male on the afternoon of the day in question, the trial judge disallowed him to elaborate further.  Mr. Wong submitted that the evidence concerning the god-brother was relevant to the overall credibility of the female victim and might undermine her credibility.  He also submitted that the female victim was beside the god-brother when the god-brother called the Applicant and made certain allegations.  The trial judge regarded the evidence on the point to be hearsay and of no relevance to the core issue of the case.

31.At last after the defence had closed its case, Mr. Wong said that he, as instructed by his client, requested to call the god-brother as a defence witness.  The trial judge pointed out that the defence should have made the application before closing its case, and that the female victim’s denial of having seen the god-brother did not necessarily mean that she was lying.  The trial judge further said that when the defence failed to put it to the female victim that she was hiding something as far as the matter is concerned, the god-brother’s evidence would only cause the jury to speculate.  In the end, the trial judge disallowed calling the god-brother to give evidence.

Legal Principles concerning the second Ground of Appeal 

32.As far as the second ground of appeal is concerned, Mr. Wong cited a number of cases decided by the Privy Council and the English Court of Appeal: R v Funderburk [1990] 2 All ER 482, 491d-g; R v Gibson [1993] Crim LR 453; R. v. Nagrecha [1997] 2 Cr App R 401, 406B-E & 409D-F; Tiwari v The State [2002] UKPC 29, para 29.  The legal principles laid down by these authorities were:  as sexual acts in sexual cases usually take place in private, the evidence would basically be limited to that of the complainants’, and assessing their credibility thus lies as a core question in those cases.  Consequently, there is in effect no line drawn between issues relevant to the credibility of a witness and questions relevant to an issue in a case; evidence which has bearing on the credibility of the witness would have bearing on the matters in dispute in the case as well.  Hence, the court should allow calling evidence relevant to the credibility of the complainants, because the evidence may cause the jury to come to a different view of their testimonies.

Discussion over the second Charge [sic.]

33.Concerning the evidence of the god-brother, the trial judge, with reference to the god-brother’s written statement(s), rightly held that no ‘recent complaint’ was involved, and that the conversation between the female victim and the god-brother about how the incident happened was hearsay evidence.   We however have reservations over the trial judge’s view that the god-brother’s evidence was of no relevance whatsoever to the core issue of the case and the decision to disallow calling the god-brother as a witness.

34.The circumstances of the present case are similar to those set out in the authorities.  The only prosecution evidence relevant to the core issue of whether sexual intercourse had taken place came from the female victim’s testimony. Her credibility, which was a material issue in the case, had a significant bearing on determining the core issue in the case, i.e. whether sexual intercourse had taken place.   Whether or not the female victim went to the shopping mall of the hotel and saw the god-brother there soon after the incident was neither a question of no relevance to the credibility of the female victim, nor a collateral issue of entirely no relevance to the core issue in the case.

35.According to the god-brother’s written statement, the god-brother should be the first person the female victim saw whom she was familiar with after she had left the Applicant, and they also stayed in the shopping mall of the hotel for an hour or so.  It should be unlikely, under the circumstances, for the female victim to have forgotten it because of the lapse of two years. 

36.Besides, according to the female victim’s testimony, she headed back home upon leaving the Applicant’s home.  While she was on her way back home, she stopped in a park near her home and thought over the matter for a very long time before she went to buy the ‘morning after pills’ at a pharmacy nearby.  She took one pill after she was home, because she had had sexual intercourse with the Applicant and was in fear she would get pregnant.  However, when she was having a telephone conversation with another prosecution witness on the following day, telling that prosecution witness that she had had sexual acts with the Applicant, she also asked the question of whether ‘morning after pills’ should be purchased or consumed.

37.In directing the jury, the trial judge mentioned that they needed to consider whether the discrepancies in time and the contradictions arising therefrom were resulted from the female victim’s mistaken memory about the date of telephone conversation with the witness, or her evidence that sexual intercourse had taken place being inaccurate.  At the same time, on the question of the female victim’s credibility, the trial judge pointed out to the jury that they could consider whether it was only because the sexual intercourse had taken place and the Applicant had ejaculated outside the female victim that she was in great fear that she would get pregnant, and so spent a long time in the park and discussed with her classmate about the purchase and consumption of the ‘morning after pills’.

38.Both the directions and actions the female victim took after she had left the Applicant’s home were of evident relevance to the credibility of her evidence that sexual intercourse had taken place.  According to the god-brother, he saw the female victim on the afternoon of the day in question and stayed in the shopping mall of the hotel with her for a period of time.  That was inconsistent with the evidence of the female victim that she was in great fear she would get pregnant and so she stopped in a park on her way home, thinking if she should buy ‘morning after pills’.  Both the inconsistency and the female victim’s denial of having seen the god-brother might affect the jury’s assessment of the overall credibility of the female victim, as well as the credibility of her evidence that sexual intercourse had taken place, thereby affecting the jury’s perceptions of the female victim and their views on the facts of the case as a whole.  The defence did not, in cross-examining the female victim, put it in clear and exact terms to her that her denial of having seen the god-brother was a lie, but that should not be an impediment to the defence in calling the god-brother and using his evidence to be given in that regard to impeach the credibility of the female victim and that of her evidence.  Furthermore, if the prosecution contended that the female victim should be given an opportunity to explain herself for the sake of fairness, the court could recall the female victim to do so on the conclusion of the god-brother’s evidence. 

39.Evidence unfavourable to the Applicant might be elicited if the god-brother were called to give evidence in the trial.  Mr. Wong acknowledged such a risk as the god-brother was a prosecution witness.  However, given the circumstances of the present case, impeaching the evidence of the female victim on direct examination had its difficulties, the defence was hence willing to take the risk.  It seems to this court that the primary considerations in deciding whether to allow calling the god-brother to give evidence were the admissibility of the god-brother’s evidence in law and its relevance to the issue in the case.  If the god-brother’s evidence was admissible and relevant to the issue in the case, even some of his evidence might be unfavourable to the Applicant or calling him was an unwise course to take, the application for calling the god-brother should not be refused on those grounds.

40.Based on the afore-mentioned legal principles and analysis, this court is of the view that the trial judge’s decision of refusing the Applicant’s application for having the god-brother tendered for cross-examination and calling the god-brother as a defence witness was wrong in principle, rendering the jury’s verdict of conviction unsafe.

Conclusion

41.On grounds of the above, this court finds the conviction of the Applicant unsafe.  We therefore grant the Applicant’s application for leave to appeal and treating this application as the appeal, we allow the appeal, quash the conviction and set aside the sentence.

Anna Lai, Senior Assistant Director of Public Prosecutions, for the Respondent.

Peter Wong, assigned by Director of Legal Aid, for the Applicant.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.