HKSAR v. Ho Man Ho

[English Translation - 英譯本]

CACC 177/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 177 OF 2010

(ON APPEAL FROM HCCC 372 OF 2009)

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BETWEEN

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Before: Hon Cheung and Kwan JJA and Chu J in Court

Date of Hearing: 8 April 2011

Date of Judgment: 8 April 2011

Date of Reasons for Judgment: 19 April 2011

REASONS FOR JUDGMENT

Hon Cheung JA (giving the reasons for judgment of the Court):

1.The Applicant was charged with one count of rape, contrary to section 118(1) of the Crimes Ordinance (Cap. 200), and was convicted after trial before Barnes J and a jury.  Barnes J sentenced the Applicant to seven and a half years’ imprisonment.  The Applicant sought leave to appeal against conviction and sentence.  At the conclusion of the hearing, we dismissed the application on conviction but allowed the application on sentence and substituted a sentence of five and a half years’ imprisonment.  What follows are our reasons for judgment.

Prosecution Case

2.The Complainant, a 16-year-old school girl, met the Applicant on the internet in 2008 and subsequent to that, they had no contact for some time.  They resumed contact via MSN on 15^th March 2009.  The Applicant told the Complainant that he was 25 years old, but in fact, he was 35.  The Complainant told the Applicant that she wanted to be a model.  They arranged to meet on 19^th April 2009 at the Applicant’s residence for a friend of the Applicant to take photos of the Complainant so that the Complainant would have a chance to take up modelling jobs.

3.On 19^th April 2009, the Complainant visited the Applicant’s residence to have a photo-shoot training session.  The Applicant had told the Complainant prior to their meeting that she would need to have some alcohol on the day of photo shoots.  After the Complainant had arrived at the Applicant’s residence, the Applicant gave her some orange juice mixed with alcohol, saying that the drink would help her loosen up a bit when posing and behave a little more professionally before the camera.  The Applicant then took photos of the Complainant.  Some of the photos taken depicted the Complainant wearing revealing clothing in sexy poses and some showed the Complainant without knickers on, exposing her private parts.   Later, the Complainant became drunk and felt sleepy.  She felt the Applicant fondle her abdomen and breasts.  She asked the Applicant not to do that, but he was “like losing his mind”; thereafter the Complainant cried.  The Applicant walked away, returned 15 minutes later, again told the Complainant to pose and took photos of her.  The Complainant said she was heavily drunk and later felt that the Applicant, with his penis inside her vagina, was having sex with her.  Despite her desire to resist, she lacked the strength to push the Applicant away.  The Applicant stopped the intercourse 15 minutes later, but had sex with the Complainant again after approximately five minutes.

4.There was evidence in the case that a few days prior to 19^th April 2009 (i.e. on 12^th April 2009), the Complainant had visited the Applicant’s residence and that the Complainant visited the Applicant’s residence again for photographs to be taken of her by the Applicant after alleging that she was raped by the Applicant on 19^th April 2009 (i.e. on 26^th April 2009).

The Applicant’s admission of having sex

5.It was an undisputed fact that they had sexual intercourse.  According to the admitted facts, the Applicant and the Complainant had sexual intercourse on the day in question.  It was the Applicant’s evidence that he had consensual sex with the Complainant twice on the day in question.

Grounds of appeal

6.While the issue at trial was whether the Complainant consented to the sexual intercourse with the Applicant, this was not the issue pertinent to the Applicant’s application for leave to appeal against conviction.  The jury, in our view, could find on the Complainant’s evidence that she did not consent to it when they were having sex; however, her state of intoxication rendered her incapable of resisting.  Mr. Sewlyn Yu, Senior Counsel, and Ms. Jolie Chao representing the Applicant accepted that the direction given by Barnes J was fair and that she had directed the jury to give full consideration to the evidence upon which doubts, favourable to the Applicant, arose.

7.The Applicant’s ground of appeal was that reliance was placed by the prosecution on two acts of sexual intercourse as the basis of the allegation against him notwithstanding the fact that there was only one count of rape against him. The prosecution never made it clear which act of sexual intercourse was the one with which he was charged and which was the “uncharged act”.  The Applicant submitted that Barnes J was wrong in proceeding with the single count of rape charging two acts of rape.  It was the Applicant’s submission that Barnes J, when directing the jury, erred in (1) failing to identify which of the two acts of sexual intercourse between the Complainant and the Applicant was the one alleged in the charge and which was the “uncharged act”; and (2) failing to sufficiently and properly direct the jury in respect of the “uncharged act”, including the criteria of admissibility, use and nature of such “uncharged act”.

Legal principles

8.The two legal principles concerning a “count” in an indictment are as follows:

(1)  A count on an indictment must not allege two or more separate offences against the defendant (see Archbold Hong Kong 2011, paragraph 1-123).  Section 2(2) of the Indictment Rules (Cap. 221, sub. leg. C) provides: “Where more than one offence is charged in an indictment, the statement and particulars of each offence shall be set out in a separate paragraph called a count”.  If a “count” on an indictment is “duplicitous”, it may be quashed by the court.

(2)  The evidence adduced or facts alleged against a defendant may disclose latent ambiguities in the indictment.  An instance of this is where the prosecution adduces evidence of the defendant’s commission of a number of offences when the defendant is charged with one “count”.  In these circumstances, the charge may be dismissed by the court (see Court of Final Appeal, Chim Hon Man v. HKSAR (1999) 2 HKCFAR 145).

9.The spirit underlying these two legal principles is fairness in that a defendant should know what charges he faces (see DPP v Merriman [1973] AC 584).

10.The indictment in the present case only alleged one “count” against the Applicant. Consequently, the issue of “duplicity” set out in (1) above did not arise with respect to the indictment.

11.The issue on appeal related to (2) above.  Mr. Yu, SC, cited the legal principle set out in Chim Hon Man, namely that “in the absence of any act or acts being identified as the subject of an offence charged in an indictment, the prosecution cannot lead evidence that is equally capable of referring to a number of occasions, any one of which might constitute an offence as described in the charge and invite the jury to convict on any one of them”.

12.In Chim Hon Man, Sir Anthony Mason NPJ said at page 161I-162B:

“Knowledge of the particular act, matter or thing which is the foundation of the charge is important in enabling the accused to ascertain and prove what, if any, defence, for example, an alibi, he may have to the offence charged and to subject a Complainant's evidence to searching scrutiny by reference to the surrounding circumstances. An accused person may be subjected to unfairness and embarrassment if he is called upon to meet a charge of one offence based upon evidence of the commission of multiple offences, more particularly if the evidence is such that it does not enable each such offence to be clearly differentiated from the others. The degree of unfairness or embarrassment may vary according to the circumstances. If the prosecution case is based on evidence of many offences in an extended period of time the unfairness may be considerable.”

13.The Court of Appeal discussed how the court should deal with the evidence of “uncharged acts” in HKSAR v Kwok Hing Tony [2010] 2 HKLRD 761 and the legal principles concerned were affirmed by the Court of Appeal in HKSAR v Chu Chi Wah (No.1) [2010] HKLRD 675.

Our Views

14.We disagreed with the Applicant on the presence of an “uncharged act” in the present case.  We agreed with the Respondent’s position that in law, the two acts of sexual intercourse in this instance had satisfied the single sexual intercourse element as set out in the charge and they constituted a single conduct of rape.  In the present case, the two acts of sexual intercourse were separated by an interval of five minutes. Both occurred in a room at the Applicant’s residence.  In the course of the sexual intercourse on both occasions, the Complainant was unable to resist under the influence of alcohol and she did not consent to the sexual intercourse.  In these circumstances, the two acts of sexual intercourse were closely connected in terms of time, location, their nature and purpose.  We were of the view that, taking the evidence of the case as a whole, Mr. Yu’s argument that the Complainant might have consented to the sexual intercourse on the second occasion was not on a safe foundation.  The Applicant’s defence rested on prior consent having been obtained from the Complainant for the sexual intercourse on both occasions and thus there was no difference in the nature of the sexual intercourse on the two occasions.

15.In our judgment, the legal principle applicable to the present case is: where an activity involves more than one act, it is legitimate to join these acts in one charge (see: Jemmison v Priddle [1972] 1 Q.B. 489, 495D).  The court, in considering whether an act or acts performed by a defendant constitute commission of an offence or offences, needs to answer the question by applying common sense and deciding what is fair in the circumstances.  When a defendant has committed similar acts that are connected in time and place or by their common purpose, such acts can fairly be viewed as the same criminal activity. In those circumstances, it is open to the prosecution to lay a single charge against the defendant.

16.In Jemmison, an information was preferred against the defendant for “killing game without licence”.  The Court of Appeal found that it was proper to bring a single charge in respect of the defendant’s killing of two deer on the day in question by shooting them separately at the same geographical location in an interval of a few seconds.

17.In Merriman, the defendant and an accomplice were arraigned on one count of “wounding with intent” for their stabbing of the victim seven times with a knife.  Lord Morris said at page 593:

“The question arises – what is an offence? If A attacks B and, in doing so, stabs B five times with a knife, has A committed one offence or five? If A in the dwelling house of B steals ten different chattels, some perhaps from one room and some from others, has he committed one offence or several? In many different situations comparable questions could be asked. In my view, such questions when they arise are best answered by applying common sense and by deciding what is fair in the circumstances.”

18.In R v Wilson (1979) 69 Cr. App. R. 83, at page 87 of the judgment, the English Court of Appeal acknowledged and applied the legal principles set out in Jemmison and Merriman.  The defendant in that case faced eight counts alleging theft by the defendant in eight different stores, each count concerning one of the eight stores, but including a number of thefts by him at different departments in the same store.  The Court of Appeal held that the charges concerned were not bad for “duplicity” and consequently it was open to the prosecution to bring a charge against the defendant for each activity (that is, the offence of theft in each charge covered a number of acts of theft).

19.We did not consider any of the cases cited by the Applicant applicable to the present case for the reason that in all the cases concerned, the offences took place over a longer period of time and some of the incidents involved occurred long ago, as a result of which the prosecution was unable to set out details specific to the old offences when presenting their case.

(1)  In Chim Hon Man, the charges concerned what happened in a period of a month five years back.  The prosecution alleged that the victim was repeatedly raped by the defendant in that particular month.  The defendant was only charged with two counts of “rape”.  The “specimen charges” were based on the Complainant’s allegation that she was raped at least once at night in the first 14 days of that particular month and at least once at night in the next 14 days.  The victim in that case stated that she had been repeatedly raped by the defendant but she was unable to be specific as to the date of each rape committed by the defendant and individual incidents.  Nor did she have detailed recollection of the incidents.  The contents of the indictment were improper.

(2)  In Kwok Hing Tony, there were seven sexual offences.  The charges referred to “a day unknown” over a lengthy period of 1½ years (as in charges (a) and (b)) and in the period of a month (as in charges (c), (d), (e) and (g)) (between 1993 and 2006) respectively, the location being a place where the defendant and the complainants were likely to meet often.  It was the evidence of the two complainants that in the period overlapping with the time span specified in the charges, the defendant had sexually violated them on many occasions (ranging from ten-odd to tens of times).  That the defendant was unable to distinguish the acts with which he was charged from those “uncharged acts” and thus unable to present a defence corresponding to the charges would result in unfairness to the defendant.

(3)  In Chu Chi Wah, twelve of the charges alleged that the defendant had unlawful sexual intercourse with an underage girl between 2004 and 2006.  The victim in that case gave evidence that she had had sexual intercourse with the defendant of that case on numerous occasions.  It was unfair to the defendant that the trial judge did not properly direct the jury as to the obvious presence of “uncharged acts” in her evidence.

(4)  In HKSAR v Tam Kon Chung & Anor [1998] 3 HKC 392, the second defendant was left facing one count of rape in the end.  The victim said that the defendant had raped her twice, once in the toilet of the flat and once on a mattress placed on the floor of the flat.  The appeal against conviction was allowed by the Court of Appeal on the ground that the trial judge of that case should have directed the jury to consider the case in the light of two separate allegations of rape (see 403I of the judgment), and by so doing, the Court of Appeal found that the two rapes in that case could not be considered under the same “activity”.

20.In the present case, the two acts of sexual intercourse between the Applicant and the Complainant were both the “charged act” and thus there was no “uncharged act” in the present case.  It followed that it was not necessary for Barnes J to give any direction to the jury on “uncharged act”.

Conclusion (on conviction)

21.For the reasons above, we dismissed the application on conviction.

Appeal against sentence

22.Barnes J, in sentencing the Applicant to seven and a half years’ imprisonment, had considered the following:

(1)  The Applicant might not have any premeditated plan to deliberately get the Complainant to drink on 19^th April 2009 and make her unable to resist in order to rape the Complainant.

(2)  The Applicant merely took the opportunity when the Complainant was drunk to have sex with her and was reckless as to whether she consented to the sexual intercourse.  It was not the case where the Applicant had sex with the Complainant, knowing that she did not consent to it.

(3)  The Complainant was only 16 years old and the Applicant did not use any condom in the course of the sexual intercourse.

23.In view of the points considered by Barnes J, we found that the 7½ years’ imprisonment imposed by her was manifestly excessive.  If the Applicant did not have any premeditated plan to deliberately get the Complainant drunk in order to forcibly have sex with her, we found that the appropriate sentence should be one of five and a half years’ imprisonment.

Conclusion (on sentence)

24.Accordingly, we allowed the application for leave to appeal against sentence and treating the application as the formal appeal, substituted a sentence of five and a half years’ imprisonment.

Robert Lee, SC, Deputy Director of Public Prosecutions and Noelle Chit, Public Prosecutor, of the Department of Justice, for the Respondent.

Selwyn Yu, SC, and Jolie Chao, instructed by Au & Associates, for the Applicant.

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