HKSAR v. Xia Hongjun

CACC 61/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 61 OF 2011

(ON APPEAL FROM HCCC NO. 384 OF 2010)

_______________________

BETWEEN

____________

Before: Hon Yeung VP, Hartmann JA and McWalters J in Court

Dates of Hearing: 14 June 2012

Date of Judgment: 14 June 2012

Date of Handing Down Reasons for Judgment: 25 June 2012

______________________________

REASONS FOR JUDGMENT

______________________________

Hon Yeung VP (giving the reasons for judgment of the Court):

Introduction

1.The applicant (Xia Hongjun) appeared before Line J sitting with a jury on an indictment consisting of one charge of rape and one charge of attempted rape.  On 1 February 2011, the applicant was convicted of both charges and sentenced to the respective terms of 8½ years and 4½ years’ imprisonment with one year to run consecutively, making a total sentence of 9½ years’ imprisonment.  The applicant sought leave to appeal against both conviction and sentence.

2.At the commencement of the appeal hearing, Mr Alan So, counsel for the applicant, informed the court that the application for leave to appeal against sentence would not be pursued and it was accordingly dismissed.

3.At the end of the hearing, we also dismissed the application for leave to appeal against conviction.  We indicated that we would hand down our reasons in due course and this we now do.

The Prosecution Case and Evidence

4.The victim, a 17-year-old schoolgirl, was the applicant’s step daughter.  She was born in the Mainland and came to Hong Kong when she was 12 years old.  After divorcing the victim’s father, the victim’s mother (the mother) married the applicant and they had a son born in 2004.

5.By 2010, the family of four resided at a public housing unit in Tuen Mun (the premises).  The applicant did not reside at the premises all the time, but commuted between Hong Kong and the Mainland.

6.The victim alleged that the applicant raped her in the afternoon on 14 June 2010 in the premises.  She said after having examination at school that day, she lunched with her boyfriend (Barry) before meeting the applicant in the town centre where the applicant purchased a watch. The victim and the applicant then took a taxi to go home.

7.Upon arriving at the premises, the applicant changed into shorts and a T-shirt and the victim had a snack.  According to the victim, the applicant then approached her, stood in front of her and put his arms around her body tightly before trying to kiss her.  The victim resisted by pushing the applicant away, telling him not to do it, but failed.

8.The applicant then said, “Mummy would not know it”, and started to remove the victim’s clothes.  The victim could not resist as the applicant was strong.  The applicant pushed the victim into the bedroom, saying “You’re father’s baby and father loves you most”.

9.The victim said she could not escape as the applicant blocked her way and she was so frightened that her mind had gone blank.  The applicant then removed his clothes and pressed himself on top of the victim and started to kiss her.

10.The applicant then removed the victim’s clothes and separated her legs as she was crying and trembling.  The applicant kissed and licked her vagina before penetrating her with his penis.  The victim said the applicant was inside her for two to three minutes before he ejaculated.

11.The applicant laid on her for another minute saying again, “You’re father’s baby, father loves you most” before the victim managed to free herself to go to the toilet for a wash.  She said she noticed some white liquid or substance in her vagina.  The victim also said the applicant gave her RMB800 and she wondered if it was a reward for having sex with him.

12.The victim said she told the mother in the evening when she was cooking in the kitchen that the applicant had sex with her, but the mother simply asked her if it was painful and the conversation stopped when the applicant suddenly appeared in the kitchen.

13.The victim said she texted Barry in the early hours on 15 June 2010, saying that she was frightened as the man had approached her.  She also typed a crying symbol in the message.

14.The mother arranged for the victim to meet the applicant for lunch on 15 June 2010 and the victim said she avoided going home early so that she would not be with him alone.  The victim said she telephoned a friend (Eugene), telling him that she had had sex with her stepfather on 14 June 2010, before returning home at about 5 pm.  The victim said Eugene had advised her not to bear it with silence and to approach a social worker.

15.According to the victim, the applicant entered her room naked at around midnight on 15/16 June 2010 when the mother was asleep and started to kiss and touch her despite her protest.  The applicant also removed her leggings and pants, and then separated her legs.  The applicant tried to penetrate the victim by touching her vagina with his penis.  The victim resisted, telling the applicant to go away, and indicated that she did not want to be touched.  The applicant then said he would not touch her anymore and that she was still his “favourite” before leaving her room.

16.The victim said she was frightened and texted Barry saying that the man had approached her again.  She also used the crying symbol.  The victim had also sent a text message to her friend (Leo) about the matter.

17.According to the victim, the mother gave her a “morning after” contraceptive pill the next morning.

18.The victim said she met Leo and another friend (Kate) later that day, but did not further mention the two events even though Leo asked her what had happened.  She then met Barry and Eugene at 3 pm when she related to them the two incidents.  Eugene gave her several suggestions, including approaching RainLily which she did.  There was then a meeting with a social worker and a report was made to the police.

19.The victim admitted that, having met Barry in 2007 and when they were not seeing each other often in 2010, she had sex with Chan Fai and was pregnant by him.  Chan Fai took her to Shenzhen on 8 May 2010 for an abortion.  When the mother learned about it, there was a meeting with Chan Fai and he was asked for $2,000.

20.The victim said she was angry at the mother and did not discuss with her what the applicant did to her because the applicant and the mother were “of the same party”.

21.The victim described a rather astonishing event when the mother told the victim that the applicant had not “had any virgin” before and suggested that the victim should have a hymen reconstruction operation to meet the applicant’s desire.  The victim said she initially refused, but the mother explained that the applicant had said that he like the victim and if she co-operated and had sex with the applicant, he would stay at home more often and work hard to support the family instead of going out for fun.

22.The victim said she eventually went to Dongguan with the mother on 21 May 2010 for a hymen reconstruction operation with the $2,000 obtained from Chan Fai.

23.The victim admitted to have lied to Leo, including not revealing to him what the applicant did to her.  She said she wanted to hide things from him.

24.It appeared that the victim said in her witness statement that she had told Leo and Kate about the matters, but in her evidence, she said she did not; and that the mother told her to sleep with the applicant in January 2010 when in her evidence she said it was in 2009.

25.The victim admitted that she first had sex with Barry in May 2008 although she said in her statement that she only had sex with him once in December 2009.

26.The victim denied the suggestion that her allegations against the applicant were all fabrications and that she only told the mother of having sex with the applicant in order to test her reaction.

27.The victim rejected the suggestion that she had in fact initiated intimate sexual advances towards the applicant on 14 June 2010 by kissing him on the lips and leading him to the bedroom for further kissing and that it was the applicant who resisted and said he should not do it.

28.The victim also rejected the suggestion that the applicant only got up at around midnight on 16 June 2010 to put on a fan because it was hot and that he only touched her on the forehead to see how she was.

29.Barry, in his evidence, confirmed that he and the victim became lovers in May 2008 and they first had sex in December 2009.  He said the victim texted him on 15 June 2010 saying that she was scared and dirty; and that her mother, in order to keep her husband, had betrayed her.  There were also SMS exchanges between the victim and Barry shortly after midnight on 16 June 2010 when Barry suggested that she should make a report to the police or leave home.

30.Barry confirmed that the victim had texted him saying, “He went to my bed, kissed me and called me ‘Baby’, also touched me”.  He also confirmed the discussion with the victim and Eugene as to how the matter should be handled and as a result Eugene decided to call RainLily, before they contacted a social worker.

31.Barry agreed that the victim did not have a good relationship with the mother as the mother gave her too much housework and that her relationship with the applicant was good.  Barry said the victim also told him in the text message on 15 June 2010 that she was pregnant in March 2010 when they saw each other less.

32.Eugene, one of the victim’s good and close friends, related how the victim told him that her mother had wanted her to have sex with the applicant.  Eugene also confirmed that in the early morning of 15 June 2010, the victim told him that she had sex with her stepfather and she sounded helpless and wanted to cry.  The victim further said that she was scared and did not know where she could go.  It was then arranged for Barry, Eugene and the victim to meet.

33.At the meeting, the victim mentioned that she had sex with her stepfather and her mother gave her a pill.  Eugene noticed the victim having swollen eyes and a red nose.  Eugene decided to call RainLily and the victim then spoke to a social worker.

34.Eugene agreed that the victim did not mention details of the sexual intercourse she had with the applicant nor did she say if she consented to it.  He also said that the incident brought the victim closer to Barry.

35.Eugene accepted that in his witness statement, he did not mention the victim telling him that her mother wanted her to have sex with the applicant because the police wanted him to concentrate on the events on 15 and 16 June 2010.  He also said he did not mention the mother giving the victim a pill because it only came to his mind when his memory was refreshed when he gave evidence in court.

36.Chan Fai was tendered as a witness at the request of the defence.  Chan Fai confirmed that he had sex with the victim around Chinese New Year in 2010 and she became pregnant.  They decided to have an abortion and the victim did not want her family to know.  They then went to Shenzhen, but two weeks later the mother found out about it.

37.Chan Fai confirmed that there was a meeting when the mother urged them to give up their relationship.  The victim indicated that she wanted to have hymen recovery surgery and wanted Chan Fai to pay her $2,000 towards the cost of such surgery.  She also asked Chan Fai to pretend in front of the mother that he was her first boyfriend.

38.It was suggested to Chan Fai that the victim was eager to have the surgery, but he said all along it was the mother who said that the victim wanted the surgery.  According to Chan Fai, the victim actually told him in private that she did not want to do it and that it was the mother who forced her to do so.

39.Chan Fai said the victim was on ordinary terms with the mother but the victim found the mother annoying as not only was she strict with her, the mother often praised the applicant and tried to make the victim a match for the applicant by suggesting that the victim should sleep with him.

40.The applicant was arrested on 17 June 2010.  He was interviewed under caution.  The applicant admitted to have sex with the victim without a condom after kissing her body from the top to the bottom.  He also admitted to have ejaculated, but was not sure if it was inside.  The applicant claimed that it was the first time he had sexual intercourse with the victim.

41.As far as the incident on 16 June 2010 was concerned, the applicant said he wanted to have sex with the victim because she had consented to sex the day before.  He said he went to her room in his pants, but took them off and tried to pull down the victim’s clothes.  However, when the victim indicated that she did not want to have sex with the applicant, he withdrew.  The applicant said he did not tell anyone about his having sex with the victim.  The applicant said the victim’s boyfriend must have persuaded her to make a false complaint of rape against him.  The applicant was adamant in the interview that the victim consented to having sex with him although he admitted that he should have restrained himself.

42.The evidence of the arresting officer was confirmed by the evidence of a sergeant.  The officers rejected the suggestion that the applicant was coached by them with regard to what to say in response to the allegation of rape.

43.The medical evidence of the victim showed that she did not have any injury, but there were stitches in her vagina consistent with hymen reconstruction.

The Defence Case and Evidence

44.The applicant was 37 years old and had served in the Chinese Army for 12 years.  He met the mother and the victim in 2000 and started to support them.  Although the family lived in the premises, the applicant only came to Hong Kong at weekends and he said he found the relationship between the mother and the victim a bit tight.

45.The applicant’s case was that he did not rape the victim on 14 June 2010, but it was the victim who made sexual advances to him and he resisted them.  The applicant suggested that the alleged attempted rape in the early hours of the 16 June 2010 was a complete fabrication.  He said he was outside the victim’s room trying to turn on the fan and he was not naked.  As the victim complained of having a headache, he just touched her forehead to see if she had a fever.

46.In his evidence, the applicant mentioned an incident in 2008 when the mother argued with the victim who complained about the mother being too strict and indicated that she wanted to do something to teach the mother a lesson.  The suggestion was that the victim carried out the threat by making the allegation of rape against the applicant.

47.The applicant denied talking to the mother about him having sex with the victim.  The applicant said he had never touched her inappropriately as he loved her only as a father.

48.The applicant said, on 14 June 2010, he met the victim at a shop and she behaved normally, showing no fear of him.  They returned home and he told her about getting a Hong Kong identity card when they were both sitting on a sofa.  The applicant said that the victim looked very happy and leaned on his shoulder, saying that she wanted him to come to live in Hong Kong.

49.The applicant alleged that the victim took the initiative to kiss him before pulling him to the bedroom.  They kissed each other, but feeling confused, he stopped and stepped back as rational feeling told him he should not do what he was doing.  The applicant told the victim that she was his baby and that he loved her, but since he had married her mother it was wrong to do what they did and that the victim should accept his love as a father.  The victim then simply said “Not to tell mother”.

50.The applicant said the victim behaved normally and appeared to be happy.  He said she gave him a pen and he gave her RMB1,000 as pocket money from the grandparents before the mother returned.

51.Somehow, the mother said to him in the evening that the victim alleged that he had sex with her earlier on.  The applicant said he was shocked and angry at what the mother said and he just responded by saying “Let her say what she wants to say” as he did not want his wife to know what had happened earlier in the bedroom.

52.The mother then asked him if the victim had done it voluntarily or if he forced her to do it and he simply said, “Do you think I look like someone who’d rape somebody?”  The mother told the applicant that the victim had alleged that he had kissed her, removed her clothes, kissed her nipples and then touch her upper and lower parts.  According to the applicant, the mother appeared to be worried and they both became angry.

53.The applicant said he decided to “admitted the incident” because he did not want to be in the middle between the mother and the victim and he did not want the mother to know the cause of the matter.

54.According to the applicant, nothing untoward happened on 15 June 2010 and he just had lunch and did some shopping with the victim before returning home.  He described how he touched the victim’s forehead in the early hours of the 16 June 2010 because she complained of having a headache.

55.The applicant said he felt intimidated after being arrested and handcuffed.  He said the police officer told him that there would be a video recorded interview and that he should follow the instruction by saying that he had sex with the victim with her consent.  He said he was frightened as the sergeant behaved fiercely in threatening him that his permanent residence in Hong Kong could be cancelled.  The applicant said he had an appointment with the Immigration Department on 17 June 2010 and he was told by the police that if he co-operated and gave a statement, he could be allowed to go to the Immigration Department.

56.However, he was kept in custody for the night and was not allowed to make any phone call.  The applicant confirmed that he was visited by a lawyer the next morning, but he declined his services because it was too expensive.  The applicant said he simply followed the instruction to say that he removed the victim’s clothes, kissed her, kissed her nipples, had oral sex with her and then ejaculated because he was told that if he co-operated, he would be released otherwise the police would call the Immigration Department to cancel his permanent residency.

57.The applicant insisted that he was coached by the police to admit having sex with the victim and as he was told that it was not illegal to do so.  He said he just followed the instruction in order to be able to keep the appointment with the Immigration Department.

58.The applicant suggested that the victim lied to wrong him because he refused to buy her a computer and because of the conflict she had with the mother.  The applicant admitted that he did not deny the suggestion that he had sex with the victim when he was having a conversation with the mother in the evening of the 14 June 2010 because he did not want to affect the mother’s relationship with the victim and that he did not want to disclose to the mother that the victim had seduced him.

59.The applicant said the mother half-believed and half-disbelieved that he had sex with the victim.  He said he was hoping to have a chance to explain to her that he did not in fact have sex with the victim, but he could not before he was arrested.  He said he had questioned the victim on 15 June 2010 during lunch why she told the mother that they had sex and the victim simply responded by saying that she wanted to test how hard the mother loved or cared for her.

60.The applicant admitted that he did not complain about how the police had treated him, but explained that as a Mainlander, he had no idea how to do it as it was not allowed on the Mainland.

61.The applicant insisted that he only intended to convey that he had sexual intimacy with the victim, but not sexual intercourse, but was unable to do so accurately during the interview.  He even suggested that by “sexual intercourse” he actually meant “intimate act and feeling”.

62.The applicant said he was not coached what to say relating to the incident on 16 June 2010, nevertheless, he decided to make up the answers about being naked and removing his pants and so on because he just said what the police wanted him to say.

63.The mother, in her evidence, denied talking to the applicant or the victim about them having sex before 14 June 2010.  She was asked the possible reasons for the victim to falsely accuse the applicant and she mentioned three incidents which led to their falling out, the first one in 2007 concerned the victim’s dubious friend who pushed her onto the sofa and the last one was a serious disagreement over the suggestion that the victim sold her mobile phone to fund some fun.  She said on that occasion, the victim walked out of the premises, but it was the applicant who brought her back.

64.The mother said it was the victim who suggested the hymen reconstruction after she leaned of her abortion and had a meeting with Chan Fai.  The mother was adamant that she could not have forced the victim to do it.

65.The mother confirmed that the victim had told her in the evening of the 14 June that she had sexual relationship with the applicant.  The mother said she was very angry and asked how it had happened.  The victim then described how the applicant kissed her and took her to the bedroom, how he removed her clothes and touched her on the breast and private parts.  According to the mother, the victim said she had tried to resist by saying “Don’t do it; don’t do it”.

66.The mother also said when she confronted the applicant with the victim’s accusation, he said nothing in reply.  When she further asked the applicant if he had forced the victim to do it, he replied in terms “did he look like someone who could do such a thing” before he became angry and said let the victim say what she wanted to say.

67.The mother said she did not notice anything unusual about the applicant and the victim.  She said when she tried to push the applicant for an explanation the applicant simply said he would explain it in due course and that he had not bullied the victim.

68.The mother also said that she was not aware of anything unusual on the night when the alleged attempted rape occurred.  She said she did ask the applicant if he entered the victim’s bedroom and he said, “Yes, I went in and touched her once, but since she did not consent I didn’t continue”. The mother said she then asked the applicant to apologize to the victim and he left the room for a short while and on returning, he simply said, “Let me sleep”.

69.According to the mother, the applicant said he had just touched the victim on the forehead once and that as the victim said she did not feel well, she gave the victim a painkiller pill.  The mother also said she had asked the victim what had happened and she simply said, “Don’t ask, just let it be”.

70.The mother alleged that a policeman talked her out of calling a lawyer after the applicant’s arrest, but she did call one on the following morning for the applicant.

71.The mother denied any discussion with the victim or the applicant about them having sex before 14 June 2010.  She insisted that it was the victim who wanted to have the hymen reconstruction surgery although she did recommend the hospital in Dongguan.  She said she just wanted to follow the victim’s wish, hoping that she would turn a new leaf.

The Judge’s Summing-Up to the Jury

72.The judge gave a very detailed account of the evidence of the various witnesses with reference to what they had said in their witnesses’ statements.  The judge also directed the jury on the contents of the records of interview of the applicant.

73.The judge indicated to the jury that as the victim had washed herself after the alleged incident, it would not be helpful to take DNA samples from her two days later.

74.The judge provided the jury a handout relating to the offence of rape and he also read it out to them.  The judge pointed out the three ingredients of rape, namely (1) that the applicant had sexual intercourse with the victim; (2) that the victim did not consent to it; and (3) that the applicant knew that the victim did not consent or was reckless as to whether she consented.

75.The judge pointed out the defence’s case that there was no sexual intercourse, but reminded the jury that even if they accepted that there was sexual intercourse, they still have to be sure that the victim did not consent to it before they could convict the applicant.  No doubt with what the applicant had said during the video recorded interview, the judge said to the jury:

“The defence case is that there was no sexual intercourse. And thus the question of consent to it does not arise on the defence case. However, if you were sure that there had been sexual intercourse, you would still have to be sure that there was no consent to it before you could convict…”

76.With regard to the 3^rd ingredient of knowledge, the judge reminded the jury that it meant the applicant was aware that the victim was not consenting.  The judge did not further deal with the issue of recklessness apart from saying the following:

“Neither side in this case invite(s) you to consider recklessness as opposed to knowledge, so put recklessness out of you mind. It occurs when a man could not care less whether the woman was consenting. Directing you further about it is therefore unnecessary.”

77.The judge further directed the jury on the charge of attempted rape saying that “the prosecution must prove four things: (1) the (applicant) intended to have sexual intercourse with (the victim); (2) she did not consent to it; (3) he knew she did not consent or was reckless as to whether she consented; (and) (4) he did something that was more than mere preparation for committing the rape. …… There is no suggestion that if the (applicant) did as (the victim) described, that behavior would not amount to an attempted rape”.

Grounds of Appeal

78.Mr So suggested that the judge was wrong to have removed the issue of recklessness from the jury when the applicant’s admissions in the records of interview could have given rise to such an issue.

79.Mr So emphasized the following factors, namely (1) that according to the victim, the mother had asked her to have sex with the applicant and that as the applicant liked her as a virgin, the victim should have a hymen reconstruction; (2) that the mother’s evidence was that the victim had told her that she had had sex with the applicant; (3) that the prosecution’s case was that the applicant had conspired with the mother for him to have sex with the victim; (4) that the applicant had admitted in the records of interview that there was consensual sex with the victim; (5) that counsel for the prosecution and for the defence both referred to the applicant’s records of interview as another version of the defence’s case; and (6) that the judge mentioned the difference between consent and submissions as a result of threat or force.

80.On those factors, Mr So suggested that the judge was wrong not to leave the issue of recklessness to the jury.

81.Mr So also suggested that the judge failed to adequately direct the jury on all the issues arising from the applicant’s records of interview.  Mr So argued that even if the applicant’s evidence given in court was rejected, what he said during the interview, including the suggestion that the victim had consented to the intercourse should still be placed before the jury.

82.In so far as the judge indicated to the jury that it was unhelpful to take DNA samples from the victim, Mr So, in his written submission, argued that there was no evidence to support such a direction.

83.Mr So also suggested that the judge should have left the alternative verdict of indecent assault to the jury on the charge of attempted rape when on the contents of the applicant’s records of interview, the jury could have convicted him of such an alternative charge.

84.Mr So complained that the judge’s direction to the jury contained strong comments against the applicant’s case and the suggestion was that the applicant did not have a fair trial.

Discussion

85.In a criminal trial, the judge of course is bound to place before the jury all possible alternatives which are open to them on the evidence.  The Privy Council in Alexander Von Stark v The Queen [2000] 1 WLR 1270 said at p 1275 C-E:

“The function and responsibility of the judge is greater and more onerous than the function and the responsibility of the counsel appearing for the prosecution and for the defence in a criminal trial. In particular counsel for a defendant may choose to present his case to the jury in the way which he considers best serves the interest of his client. The judge is required to put to the jury for their consideration in a fair and balanced manner the respective contentions which have been presented. But his responsibility does not end there. It is his responsibility not only to see that the trial is conducted with all due regard to the principle of fairness, but to place before the jury all the possible conclusions which may be open to them on the evidence which has been presented in the trial whether or not they have all been canvassed by either of the parties in their submissions. It is the duty of the judge to secure that the overall interests of justice are served in the resolution of the matter and that the jury is enabled to reach a sound conclusion on the facts in light of a complete understanding of the law applicable to them.”

86.Whilst there was evidence from the prosecution that the mother had told the victim that the applicant wished to have sex with a virgin and that the victim should have a hymen reconstruction surgery to meet his desire, the applicant had denied categorically that he had ever talked to the mother about him having sex with the victim.

87.In the interviews with the police, the applicant admitted to have had sex with the victim, but suggested that it was with her consent.  It was the applicant’s case that he only followed the police’s instruction when he admitted to have had sex with the victim with her consent. The suggestion was that the contents of the interviews were completely untrue as the applicant was coached as to what he should say and that he only complied with the police request under threat and inducement.

88.In his evidence, the applicant not only denied having sex with the victim, but said it was the victim who had tried to seduce him and he had rejected her approach.

89.According to the victim, the applicant forced her to have sex and she resisted by pushing him away.  On either of the prosecution or the defence case, the issue of recklessness could not have arisen.

90.In our view, any suggestion that the applicant could be acting recklessly in having sex with the applicant was wholly incredible and no reasonable jury could reasonably accept it.  When there is no evidential basis for a guilty verdict founded upon recklessness, it will be wrong for a judge to direct the jury on “reckless rape”. (See HKSAR v Luo Xian Ping [2007] 3 HKLRD 203 at p 211B-F)

91.The judge was right not to leave the issue of recklessness to the jury and Mr So’s main contention failed.

92.To leave the jurors the alternative conviction of a lesser offence is not to give them a soft option and there must be evidential basis for doing so.  A judge is only under a duty to place an alternative verdict to the jury if there is evidence upon which a reasonable jury might return an alternative verdict. (See Ho Hoi Shing v HKSAR [2008] 11 HKCFAR 354)

93.The applicant denied having done anything improper to the victim in the early hours of the 16June 2010.  He said he just turned on the fan and touched the victim’s forehead to see if she was alright.  If what the applicant said was true or might be true, he would of course be acquitted of attempted rape.

94.On the other hand, the victim was adamant that the applicant squeezed her breast and removed her leggings and pants from one leg despite her resistance.  He then separated her legs and tried to penetrate her vagina with his penis.  On the evidence of the victim, the applicant was clearly attempting to rape her.

95.In fact, it was accepted at trial that if what the victim described was true, then the applicant’s behavior would amount to an attempted rape.  If the jury had any doubt about the victim’s allegation against the applicant, they would, as instructed, acquit him of attempted rape.

96.We were not persuaded that there was evidence upon which a reasonable jury might return an alternative verdict of indecent assault on the 2^nd charge and the judge was right not to leave with the jury such an alternative verdict.  There was no unfairness to the applicant in the way the judge dealt with the issue.

97.The defence case was that there was no sexual intercourse, but the judge had nevertheless reminded the jury that if they were sure that there had been sexual intercourse, they would still have to be sure that there was no consent to it before they could convict the applicant of rape. We failed to see how it could be suggested that the judge had not directed the jury on all the issues arising from the applicant’s records of interview.  The judge had fairly placed the issues before the jury.

98.When the judge reminded the jury that the victim had washed herself and therefore taking samples of DNA from her two days later was not helpful, the judge was responding to the suggestion by defence counsel that DNA evidence was important.  What the judge told the jury was just common sense and it was not unfair for him to do so in the circumstances.

99.When the judge reminded the jury of what the applicant said during the interview, he emphasized to the jury that what he said was a defence to the charges as he asserted that the victim consented to whatever happened and that no attempt to rape took place.

100.The judge also asked the jury to consider if the applicant would fail to deny the suggestion that he had sex with the victim to the mother in the circumstances as he described.  In our view, it was not an unfair comment in the circumstances of the case.

101.The judge had reminded the jury at the outset that “if I appear to have a view of the evidence or of the facts which you do not agree with, then reject my view.  If I mention or emphasize evidence that you think is unimportant, disregard the evidence.  If I do not mention something you think is important, follow your own view and take that evidence into account”.

102.There was no basis for the suggestion that the judge had usurped the jury’s role in assessing and weighing up the evidence.  We rejected the argument that the judge’s summing-up was unbalanced and prejudicial to the applicant’s case.

103.We had considered the grounds of appeal against conviction advanced by Mr So on behalf of the applicant and we were satisfied that none of those grounds had been made out.  The case turned on the credibility of the witnesses and the jury was entitled to accept the prosecution evidence and then convict the applicant on that basis.

Conclusion

104.We did not find the conviction against the applicant in any way unsafe or unsatisfactory.  The application for leave to appeal against conviction was therefore also dismissed.

Mr Alain Sham, DDPP of the Department of Justice, for the Respondent

Mr Alan So, instructed by Jal N Karbhari & Co, for the Applicant