HKSAR v. Chiong Bernard Leocario

CAC C 402/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 402 OF 2010

(ON APPEAL FROM HCCC NO. 165 OF 2010)

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BETWEEN

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Before: Hon Yeung VP, Macrae and McWalters JJ in Court

Dates of Hearing: 19 July 2012

Dates of Judgment: 22 August 2012

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J U D G M E N T

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Hon Yeung VP and Macrae J (giving the judgment of the Court):

Introduction

1.The applicant (Chiong Bernard Leocario) was charged with one count of rape punishable under s118(1) of the Crimes Ordinance, Cap 200.  He pleaded not guilty to the charge and appeared before Deputy Judge A Chan (the judge) sitting with a jury in the High Court for trial.

2.On 1 November 2010, the applicant was convicted as charged and sentenced to 8 years’ imprisonment.  Represented by Ms M Panesar, the applicant seeks leave to appeal against both conviction and sentence.

The Facts and the Prosecution Case

3.The victim, a 25-year old mother, was a domestic helper working for the applicant and his family.  She first worked for the applicant’s family in the Philippines in 2004/2005 and starting from 26 October 2008, she worked for them in a flat in Tung Chung (the flat). The victim claimed to have a good relationship with the applicant’s wife, who was a flight attendant with Cathay Pacific, and their children.  The victim said she treated the applicant as her elder brother.

4.According to the victim on 10 December 2009 at about noon time, when she was doing household chores in the flat, the applicant entered her room and demanded to have sex with her.  The applicant grabbed hold of her, forcefully pulled her onto her bed and held both her hands, before undressing her lower garments and forcefully inserting, firstly, his finger, and then, his penis into her vagina.

5.When the applicant was raping the victim, there was a knocking on the main door.  The applicant withdrew his penis, ejaculated partly onto the victim’s vagina and partly onto the bed before leaving her room.

6.The victim admitted that the applicant had neither hit nor threatened to hit her.  She said she was too afraid to shout and all she wanted to do was to get away from the applicant.  She was adamant that she did not consent to the sexual intercourse and that she had tried to move her body to avoid the penetration.

7.Shortly after the incident, the victim texted a friend, Ms Dorin who also worked as a domestic helper nearby, complaining and saying that “she would ask him for termination papers and that she had asked everyone to help her look for another employer”. Ms Dorin advised the victim to approach the police.

8.According to the victim’s aunt (Rose), the victim called her at about 10 to 11 am on 11 December 2009, saying that she had been raped by her male employer when she was folding clothes.  Auntie Rose said the victim was crying and she told her to go to the doctor. The victim also texted Auntie Rose saying that she wanted “bernard” to be imprisoned.  She also said she would divulge what he had done to his previous helper.

9.Auntie Rose called the victim to arrange to meet her on 12 December 2009 at the church and when they met, the victim looked scared and asked for help.  They then went to see a doctor and the matter was eventually reported to the police.

10.Another witness said that the applicant looked normal on that day in church.

11.The police seized items of clothes from the flat including a pair of underpants belonging to the victim.  Subsequent forensic examination confirmed the presence of the applicant’s sperm and DNA on the pair of underpants.  The police also seized the mobile phones of the applicant and the victim and retrieved therefrom SMS messages.  There was no evidence of any physical injury on the victim’s body.

12.The retrieved messages, including those between the victim and Ms Dorin and those between the victim and the applicant, were produced by consent. It was accepted that the dates and times of the messages that appeared in the mobile phones might not be entirely accurate.

13.In the 1^st text message to the applicant dated 10 December 2009, the victim said she would try to forget what had happened, but could not promise that she would stay for long.  She also complained that the applicant had added to her problems and had “ruined” her plan to work until the contract expired.  The victim did not use the word “rape” in her text message and instead in her 2^nd message dated the same day she asked the applicant why he did not respond to her SMS.

14.The applicant responded on 13 December 2009 and he said:

“I humble myself before you because the incident even though we both wanted it. How come you told my wife that I raped you? Do you remember when you were still inviting me that night? I will talk to my wife and I will tell her that facts of the incident and it was not rape. We both wanted it and you even sent SMS to me, asking me at night to go to your room.”

15.In other SMS messages to the victim on 13 December 2009, the applicant denied that he had raped her, saying that it was the victim who had invited him to her room and that she was just embarrassed that something happened between them.  The applicant also repeatedly asked for forgiveness, saying that he was drunk although he also alleged that the victim had fabricated “it”.

16.It appeared that the victim had deleted one or two text messages sent from her phone to the applicant shortly after the incident in question.  The deleted messages read, “if you want to be happy, I will make you happy, you come to my room.  Anyway, you have ruined my family”; “Mr Chiong, where are you now?  I have been waiting for you here.  Why don’t you reply to my text message?”

17.The victim accepted that shortly after the alleged rape, she texted the applicant asking him to go to her room to talk.  She said she wanted the applicant to come to her room so that he could feel the impact of what he did to her.  She did not accept that she had deleted the messages from her phone, but failed to explain why they could not be located.

The Defence Case

18.The applicant accepted that he had sexual intercourse with the victim, but claimed that it was a consensual one.  Indeed, it was his case that the victim had seduced him before the consensual sexual intercourse took place on 10 December 2009.

19.The applicant claimed that soon after the victim started working for his family, they had developed certain mutual understandings.  He said the victim started to seduce him in January 2009 when she went to his room, sitting next to him and asking about his affair with his former domestic helper, Len.  When the applicant asked her if she also wanted such a relationship, she just smiled and left.

20.The applicant also said there were occasions when he was watching romantic movies, the victim would stand next to him and that there were also times when he was alone with her in the flat, the victim would just wrap herself in a towel after taking a bath.

21.It was the applicant’s case that they became closer in October 2009 when he lost his job and was spending more time at home whilst his wife was out of Hong Kong.

22.The applicant said he suffered serious injuries to his left knee, left foot, left hand and right elbow in a motorcycle accident on or about 14 November 2009 in the Philippines, and as a result he had to use crutches.

23.The applicant said that upon his return to Hong Kong on 26 November 2009 he had to rely on the victim a lot as he could not put on clothes, could not take a shower and had difficulty walking even for a short distance.  The applicant also said his relationship with his wife was not good as she was flying out of Hong Kong most of the time.  He said in early December 2009 he started to have feelings towards the victim and then developed an intimate relationship with her.

24.According to the applicant, on the day in question, he realized that there was the time and the opportunity to have sex with the victim, and so he entered her room and asked if she wanted to have sex. The applicant said he sat next to the victim and put her hand on his penis and asked her to masturbate him, and the victim agreed.  The applicant then inserted his hand into her private parts, removed her lower garments, and had sexual intercourse with her without using a condom as he did not like wearing a condom. The applicant also said although there was no intimate talking or kissing prior to the sexual intercourse, they both enjoyed it.

25.It was the applicant’s case that before the sexual intercourse, they had performed “foreplay” on each other’s private parts for up to one minute and both of them were moaning and enjoying it.  He said during the sexual intercourse the victim was calling his name in a very romantic way and as they were both enjoying it they held each other’s hands with fingers interlocking.

26.The applicant was asked why he did not remove his own shorts before the sexual intercourse and why he did not use a condom.  He said the sexual intercourse was impulsive and his daughter was on her way home. The applicant further explained that as both of them were already moaning after the “foreplay”, the question of using a condom did not cross their minds.

27.The applicant recalled the text messages sent by the victim to him after the incident, which could not be recovered from the victim’s phone.

28.The applicant left Hong Kong for the Philippines on 11 December 2009 for a dental appointment and he said the applicant helped him to dress up before he left for the airport.  The applicant returned to Hong Kong on 12 December 2009 and was told that the victim had accused him of rape.  The applicant said he could not believe what he had heard and became very angry.  He released his anger at the victim’s belongings by throwing her suitcase in the bathtub and running water over it.

29.On 13 December 2009, the applicant decided to go to the clinic at the airport as it was Sunday and the other clinics in Tung Chung were all closed.  The applicant remained at the airport until his wife called him saying that the police were looking for him.  The applicant told his wife to inform the police that he was going to surrender himself and at 9 pm he met the police on the ground floor of the flat.

The Judge’s Summing Up to the Jury

30.In a short summing up the judge suggested to the jury that it was a case of the victim’s words against that of the applicant.  The judge reminded the jury that what the victim told her friend and aunt were not evidence of what had actually happened between her and the applicant and that those complaints could not prove that the allegations against the applicant were true.  The judge further reminded the jury that even if the apparent distress of the victim was genuine, it could be the result of regret and not that she had been raped.

31.The judge pointed out what, according to the defence, were inconsistencies and shortcomings in the victim’s evidence.  The judge warned the jury the danger of convicting the applicant on the evidence of the victim alone.  The judge seemed to suggest that the shortcomings of the victim’s evidence could be explained when he said:

“When you consider this aspect of her evidence, you may like to note that (the victim) was only 25 at the time. Although she was a mother, she was only 25, and she had just arrived in Hong Kong over one year ago. She was not brought up in Hong Kong, where we generally trust our police force.

…

Remember that a statement is not the same thing as testimony in court. Whilst statements are designed to be thorough in important cases, they can never have the same detail in them as from questioning in court.

When you consider (the victim’s) inconsistencies, you will bear in mind that (the victim) had a very long day on 12 and 13 December after going to church, hospital, and police station.”

32.The judge invited the jury to examine the contents of the SMS messages in their proper contexts.

33.The judge told the jury that they must acquit the applicant if they believed the applicant’s evidence or if they thought what he said might be true.  The judge further told the jury that even if they did not believe the applicant’s evidence, the prosecution still had the burden of proving the applicant’s guilt.

34.On the ingredients of the offence, the judge said to the jury:

“…by definition of the offence of rape, a man commits rape if he has sexual intercourse with a woman who, at the time, does not consent to it, and if, at the time he has sexual intercourse with her, he either knows that she does not consent to it or is reckless as to whether she consents to it.

The first ingredient is that you must be sure that the defendant had sexual intercourse with (the victim).

…

The second ingredient is that you must be sure that at the time of the act of sexual intercourse, (the victim) did not consent to it, i.e. a lack of consent.

When I am talking about ‘consent’, I am of course talking about the state of mind of (the victim), not whether or not she may have expressly said that she agreed to have the intercourse. The law does not require a man expressly to ask a woman if she is prepared to have sexual intercourse and receive an express answer. By ‘consent’, the law is referring to the state of mind of (the victim).

The word ‘consent’ bears its ordinary everyday meaning… a woman who actively desires to have sexual intercourse consents to the sexual intercourse. On the other hand, if a woman is not willing to have sexual intercourse but she submits to it as a result of force, her submission is not consent.

The third ingredient of which you must be satisfied relates to the state of mind of the defendant.  The prosecution have to prove that the defendant either (a) knew that (the victim) did not consent, or (b) that he was reckless as to whether she consented…  ”

35.The judge juxtaposed the victim’s version and the applicant’s version as to what had happened and then made the following passing comments on the applicant’s evidence:

“…you may think this sexual encounter would be the apex of their special relationship. Yet the physical act, according to the defendant’s version of events, if I may say, was, at least, unromantic.

Not only the defendant did not pull his trousers, his shorts, down; there was also no intimate talking or kissing prior to the sexual intercourse.

…(The applicant’s daughter) just called a few minutes before the sexual intercourse. She asked for permission to buy something from Macdonald’s. So in other words, he had plenty of time to make this intimacy a memorable one or a romantic one. What was the rush or having it with all his clothing and (the victim’s) upper garments on?

No condom was used. The defendant stated that he did not like it. Members of the jury, you may think it would be a terrible embarrassment if, one day, your domestic helper wakes up and tells you that she is pregnant in your home.

On the other hand, according to (the victim), she knew that she needed to pick up the (applicant’s) son at 12 o’clock from school.  She knew the routine.  She knew the time.  So, members of the jury, why would she like to have sexual intercourse at that time?”

36.The judge did not mention the allegations that the applicant had attempted to destroy evidence and flee Hong Kong on 13 December 2009, which, though not being part of the prosecution case, were referred to by prosecuting counsel both at the cross-examination of the applicant and in his final address.

Grounds of Appeal

37.Ms Panesar put forward a number of grounds.

38.Ms Panesar suggests that when the judge said to the jury’ “a woman who actively desires to have sexual intercourse consents to the sexual intercourse.  On the other hand, if a woman is not willing to have sexual intercourse but she submits to it as a result of force, her submission is not consent”, the judge was putting too restrictive and narrow an ambit to the issue of consent.

39.Ms Panesar argues that the judge should have directed the jury about the wide spectrum of states of mind that could constitute “consent” and the failure to do so constitutes misdirection.

40.Ms Panesar suggests that the judge’s passing comments on the applicant’s evidence were unjudicial and disparaging, with the effect of inviting the jury to reject the applicant’s defence and to that extent, the trial was not fair.

41.Mr Panesar relies on other parts of the judge’s summing up in support of her suggestion that the judge’s summing up as a whole was unfair and imbalanced, amounting to a second speech for the prosecution.  Ms Panesar suggests that the judge had not properly directed the jury on the applicant’s case at all.

42.Ms Panesar complains about the judge’s comments on the applicant’s evidence when he was being cross-examined by prosecuting counsel.  Such comments, Ms Panesar argues, constitute unfairness and prejudice to the applicant.  Ms Panesar also complains that the cross-examination of the applicant by the prosecutor, with the use of offensive questions, comments and argumentative questions, was unfair.

43.More seriously, Ms Panesar suggests that highly prejudicial matters (the attempts to destroy evidence and to flee Hong Kong), which were never part of the prosecution case, were put to the applicant by prosecution counsel and then emphasized in his closing speech, yet the judge had said nothing to neutralize or remedy the impact of what had been said, thus resulting in an unfair trial.

Discussion

44.The concept of consent or the lack of it in the context of rape is a simple one and a reasonable jury should have no difficulty in deciding if a victim consents to the act of sexual intercourse.  It may not always be necessary for the judge to further elaborate on the issue or provide examples as illustrations although we accept as correct the following comments by the English Court of Appeal in R v Olugboja [1981] 3 All ER 443 at p 448G-449C:

“... although ‘consent’ is an equally common word, it covers a wide range of states of mind in the context of intercourse between a man and a woman, ranging from actual desire on the one hand to reluctant acquiescence on the other. We do not think that the issue of consent should be left to a jury without some further direction. What this should be will depend on the circumstances of each case…They should be directed that consent, or the absence of it, is to be given its ordinary meaning and if need be, by way of example, that there is a difference between consent and submission; every consent involves a submission, but it by no means follows that a mere submission involves consent…In the majority of cases, where the allegation is that the intercourse was had by force or the fear of force, such a direction coupled with specific references to and comments on the evidence relevant to the absence of real consent will clearly suffice. In the less common type of case where intercourse takes place after threats not involving violence or the fear of it…we think that an appropriate direction to a jury will have to be fuller. They should be directed to concentrate on the state of mind of the victim immediately before the act of sexual intercourse, having regard to all the relevant circumstances, and in particular the events leading up to the act, and her reaction to them showing their impact on her mind. Apparent acquiescence after penetration does not necessarily involve consent, which must have occurred before the act takes place. In addition to the general direction about consent which we have outlined, the jury will probably be helped in such cases by being reminded that in this context consent does comprehend the wide spectrum of states of mind to which we earlier referred, and that the dividing line in such circumstances between real consent on the one hand and mere submission on the other may not be easy to draw. Where it is to be drawn in a given case is for the jury to decide, applying their combined good sense, experience and knowledge of human nature and modern behavior to all the relevant facts of that case…” (Italic emphasis added)

45.How a judge deals with the issue of consent depends on the circumstances of each case.  In the present case, the victim’s evidence was clear.  She said the applicant entered her room and demanded to have sex.  The applicant grabbed hold of her, pulled her onto the bed and removed her lower garments before inserting his finger and then his penis into her vagina.  On the victim’s evidence, she could not have consented to the sexual intercourse.

46.On the other hand, the applicant’s case was that the victim had seduced him in the past and that they had developed an intimate relationship.  On the day in question, he sat next to the victim, put her hand over his penis and asked her to masturbate him.  He then put his hand into her private parts before removing her lower garments and inserting his penis into her.  There was no resistance from the victim and they had both enjoyed it.

47.On the applicant’s evidence, the victim was clearly consenting to the sexual intercourse.

48.That being the case, it was just a question of whether the applicant or the victim was to be believed, bearing in mind of course the benefit of any doubt should be given to the applicant.

49.However, the judge considered it necessary to give further direction to the jury in accordance with Olugboja (supra) and in so doing he had possibly used wrongly the word “actively” instead of “actually”.

50.When the judge said to the jury that “…a woman who actively desires to have sexual intercourse consents to the sexual intercourse.  On the other hand, if a woman is not willing to have sexual intercourse but she submits to it as a result of force, her submission is not consent”, the judge was not only unnecessarily limiting the scope of consent, he could also be logically incorrect.

51.A woman who does not actively desire to have sexual intercourse may nonetheless consent to it for other reasons, such as for monetary gain, for affection and sympathy or in order to repair a relationship and so on.

52.This may not be a very important matter in the context of the present case as the judge had reminded the jury that “consent” bears its ordinary everyday meaning and the jury should be able to decide correctly, based on the evidence before them, if the sexual intercourse between the applicant and the victim was a consensual one.  As the judge put it:

“Putting it bluntly, in this case, it is (the victim’s) word against the (applicant’s). At the end of the day, it is for you to decide whether you accept her evidence that she was raped that day. It you are not sure as to what she told you, you must acquit the (applicant) of the charge.”

It is clear to us that what the trial judge was doing was simply taking account of the starkly contrasting accounts of the circumstances in which the sexual intercourse took place and tailoring his direction to the facts before him.

53.However, we are troubled by the judge’s comments about the applicant’s evidence.

54.A judge is entitled to comment on a defendant’s case.  “… the judge must remain impartial.  But if common sense and reason demonstrate that a given defence is riddled with implausibilities, inconsistencies and illogicalities, there is no reason for the judge to withhold from the jury the benefit of his own powers of logic and analysis.  Why should pointing out those matters be thought to smack of partiality?” (See the judgment of Brown LJ in R v Nelson [1997] Crim LR 234)

55.On the other hand, a judge must be very careful in making comments, particularly comments adverse to the accused.  A judge must not unfairly usurp the function of the jury as the sole arbiter of facts.

56.We wish to repeat the observation of this court in HKSAR v Chu Chi Wah (No 1) [2010] 4 HKLRD 691 at para 74 quoting the headnote in HKSAR v Yeung Chor Ming [2004] 1 HKLRD 136:

“(1) The ultimate question was whether the summing-up as a whole was balanced and fair. This was one aspect of the long-established principle that justice must not only be done, but must be seen to be done …

(2) The principles governing the judge’s powers and duties in relation to summing-up could be summarised as follows:

(a) The judge should never take away the jury’s function as the sole arbiter of facts. Hence, the wording and comments made in the course of the summing-up should not give the impression that the judge was directing the jury to accept his views on the facts …

(b) The wording and comments made in the course of the summing-up should not give the impression that the judge was making another speech for the prosecution …

(c) Subject to (a) and (b) above, the judge was entitled to provide reasonable, impartial and fair explanation, analysis and comments on the parties’ cases and evidence, which would help the jury reach a conclusion …

(d)   Where (a) or (b) above was contravened, the unbalance of the summing-up would not be saved by the usual reminder or direction that the jury were the sole arbiter of facts, or that it was a matter for the jury to draw a conclusion or verdict on the facts, or that the jury were free to reject any of the judge’s comments with which they disagreed … ”

57.The judge, when directing the jury, simply summarized the victim’s evidence and repeated the defence’s suggestion on their oddities. The judge mentioned that “there was no crying, no shouting for help and (she) did not report the matter to the police immediately.  She, after the alleged rape, telephoned a friend, whose names she had forgotten”.  The judge also mentioned the victim’s text message to the applicant after the alleged rape that he should come to her room to talk and the fact that she had subsequently deleted it.

58.The judge made no comment about the fact that the victim looked normal on the day when she complained to Auntie Rose in church.  The judge did not refer to the victim’s other text messages to the applicant which appeared to be inconsistent with her allegation of rape.

59.The judge did not make any adverse comment about the victim’s evidence and indeed sought to put forward an explanation for the oddities of her evidence.  The judge emphasized that the victim was only 25 and that she had just arrived in Hong Kong for over one year; that she was not brought up in Hong Kong, where we generally trust our police officers.  The judge was clearly trying to impress upon the jury that those matters could have explained the oddities of the victim’s evidence as emphasized by the defence.

60.We find it difficult to accept that the matters identified by the judge could have any bearing on the veracity of the victim’s complaint against the applicant.  They also could not explain why the text messages to the applicant shortly after the alleged rape inviting him to go to her room for a talk no longer existed.

61.When dealing with the applicant’s evidence, the judge did not mention his complaint that the victim told his wife that he had raped her even though they both wanted it.

62.When the judge commented that the applicant did not use a condom and that “it would be a terrible embarrassment, if one day, your domestic helper wakes up and tells you that she is pregnant in your home”, the judge did not mention the applicant’s explanation that it was all an impulsive act and both of them were already moaning and therefore the question of using a condom did not occur to their minds.

63.We also fail to see why failure to take off the clothes would make the sexual intercourse “unromantic”.  The fact that the victim had to pick up the applicant’s son at 12 o’clock was certainly not inconsistent with the defence case that the sexual intercourse was a consensual one.  We must not ignore that on the applicant’s case, he was having sexual intercourse with a domestic helper at home and one of the children was about to come home.

64.We have examined the judge’s comment on the applicant’s case and we are persuaded that those comments had the effect of inviting the jury to accept the evidence of the victim and reject that of the applicant.

65.In Lin Ping Keung v HKSAR (2005) 8 HKCFAR 52, Chan PJ emphasized at paragraph 26 of the judgment the importance of what the judge says in his directions to the jury:

“However, what a judge says to the jury is very often the last word they hear before they retire and carries more weight than what defence counsel says in a closing address and what the judge says must truly and accurately reflect the evidence, must give a fair and balanced guidance to the jury and must avoid the use of sarcastic, unnecessary, inappropriate or even extravagant language.”

66.Considerable complaint is made of the judge’s questioning and comments during the evidence of the applicant and of prosecuting counsel’s conduct, in particular in relation to his cross-examination of the applicant.  Of the judge’s interventions, it is said that they were highly prejudicial to the applicant and to his case without any attempt in the summing up to neutralise or remedy the effect of what had been said.  Of prosecuting counsel’s conduct, it is averred that his cross-examination of the applicant was peppered with offensive and argumentative questions and comments.  More seriously, it is alleged that the cross-examination was unfair because highly prejudicial matters, which were never part of the prosecution case, were put to the applicant and then emphasised in his closing speech, whilst other matters which were irrelevant or peripheral were put to the applicant in such a way as to vilify and insult him. 

67.On the complaints against counsel’s cross-examination, we have been taken through the transcripts in detail by Ms Panesar in her written and oral submissions.  There is no doubt that prosecuting counsel did not mince his words and conducted an aggressive cross-examination of the applicant.  The following excerpts give a flavour of the tone of that cross-examination:

“Q. You did not use a condom.

A. Yes.

Q. Because you don’t like them.

A. Yes.

Q. You don’t care about her. It’s all about you, what you like, what you want.

A. No, that’s not true. That’s not true.

…

Q. (Let me) ask you this. Why would she lie? You help us with that, can you?

INTERPRETER: Sorry?

Q. You help us with that question.

A. That is what I don’t know, why she charged me for rape. We already had a mutual understanding and if I was really going to rape her then I would not ask her if she wanted to have sex with me. And if it was really true that I raped her, the door was open, how come she did not run away and escape? I even sat beside her.

Q. Because you forced her. Because you forced her, that’s why she didn’t run away.

(At this stage, the judge intervened and told prosecuting counsel not to shout at the witness. Prosecuting counsel apologised to the court.)

…….

Q.  You keep talking about a relationship.  The only relationship was employer and employee, nothing else.

A.  Yes. Before it was but then we started to have a mutual understanding.

Q.  Rubbish. That is rubbish.  Isn’t it?

A.  Well, if that is what you say.

Q.  That is what I say.  And I am right…

(Again the judge intervened and asked prosecuting counsel to move on)

…….

Q.   So you picked up her large black suitcase and you threw it into the bath.

A.   That’s true.

Q.   To destroy evidence, right?

A.  It was not my intention to destroy any evidence.  I did that only because of my anger.  If I really wanted to destroy any evidence I could have burned them..

Q.   No, you couldn’t, there’s nowhere in Tung Chung to burn that stuff.  Don’t be silly.  You put it in the bath and you ran water over it to destroy evidence, that’s what you did.

A.   I wet them because I was very angry, no other intention.  It was only done because of anger.

Q.   Explain this, can you.  With your terrible motorcycle injuries how did you pick up this large black suitcase and throw it into the bath?

A.   Well, perhaps because of my anger I was very strong, it gave me strength, and I did it…

COURT:   Pause. Yes.  “Because of my anger it gives me strength”, yes.

INTERPRETER:  Yes.

Q.   Just as your lust on 10 December gave you strength.

(The sarcasm about the motorcycle injuries derived from an earlier exchange in which prosecuting counsel had described the healing of the applicant’s leg before his hand as “Amazing”, for which comment he had apologized to the judge.)

……

Q.   Let’s move on.  You told us that you went to the airport.

A.   Yes.

Q.   You told us that you went there to wait for a doctor.

A.   Yes, I said that.  I also went there to think of what happened and to think of what really happened on why she accused me.

Q.   No, you didn’t.  You went there to run away.

INTERPRETER:  Sorry?

Q.   You went there to run away.

A.   If I really wanted to run away, when I went back to the Philippines on the 11th then I would not come back here again.

Q.   No accusation had been made against you when you came back.  You thought you had got away with it.

A.   No. Because it was not true that I raped her.

Q.   You were running away, that’s why you went to the airport.

……

Q.   For whatever reason you changed your mind and decided that you would not run away after all.

A.   If I really wanted to escape or to run away I could have checked in in the morning at the counter.

Q.   You didn’t know about the accusation, did you?

A.   My wife already told me on the night of December 12.

Q.   You thought, well, I won’t run away, changed my mind because I destroyed the evidence in the flat and I’ll delete some messages from my telephone

INTERPRETER:  Sorry. “You thought on one way”?

Q.   “I will not run away because I’ve destroyed the evidence in the flat and I can delete some messages from my phone.”

A.   I did not decide on any of those things mentioned because I had not the intention to run away.  Because it is not true what she accused me of.

Q.   So on your case she’s come here to tell us a complete pack of lies.

A.   If that is what she said I can’t do anything.  It’s only God knows what is the truth.  That was a one on one.  There was no witness.  And she has her own statement and I have my own.

Q.   And you thought “I can get away with it again”.

A.   Which one?

Q.   That’s what you think; “I can get away with it”, isn’t it.  There’s no witness…

COURT:   Because it’s one against one.

A.  Because there were only two of us and no other people, no witnesses.  So what I want to say, I trust God.

COURT: I’m sorry, you always use God.  God forbids adultery.

A.  That’s why I’m very remorseful for what I have done.”

(The reference to doing it “again” appears to have related to a relationship which the applicant said in evidence in chief he had had with a previous domestic helper.  That relationship, which he said was a consensual one, was introduced by him to explain PW1’s initial approach to him about his previous affair with a domestic helper.)

68.With respect, some of the language and tone of prosecuting counsel’s cross-examination of the applicant in these and other passages was not appropriate.  Had more restraint being shown, counsel would have realised that it was never part of the prosecution case that the applicant had tried to destroy evidence or sought to flee the jurisdiction.  Nor should the innuendo that there was another occasion when the applicant had done the same thing have been made. 

69.Regrettably, in his closing address to the jury, prosecuting counsel invited the jury without any basis in the evidence to find that it was the applicant’s intention to destroy evidence:

“And why did he put it all in the bath? Was it to destroy evidence or was it because he was angry, as he said. Or was it both? I mean, they’re not mutually exclusive. If you find as a fact that he did do it to destroy evidence, or an attempt to destroy evidence, it doesn’t mean that you can’t also agree with him about him being angry. You can have both.

And let me leave you with this thought in relation to this point.  If he was so angry that he goes and throws all of her personal belongings into the bath, and that’s what he’s capable of when he’s angry, what is he capable of when he is filled with lust.”

70.Since it was never part of the prosecution’s case that the applicant had, by throwing her suitcase into a bath, attempted to destroy evidence, the suggestion should never have been put before the jury.  Indeed, in the absence of any evidence as to what was in the suitcase and its significance, the jury were being encouraged to embark upon a wholly speculative exercise.

71.Shortly after this passage, prosecuting counsel then addressed the jury on the issue of flight:

“Let’s go to the airport on Sunday evening.  I suggested to the defendant “you were running away”.  He denied it.  He said “No, I wasn’t”.  You know what was interesting about what he said is he never said “I couldn’t run away because I didn’t have my passport”, did he.  Think about this.  If somebody said “you were at the airport, were you planning on a trip?”, I’d say “no, didn’t have my passport, couldn’t go”.  It is a matter for you.  You find the facts.  Was he there to see a doctor, was he there to run away and changed his mind.  I don’t know.  It’s for you.”

72.Again, with respect, it was never part of the prosecution case that the defendant was fleeing the jurisdiction, or was thinking of fleeing the jurisdiction but changed his mind, and the matter should simply never have been put before the jury in this way.

73.Regrettably, although the judge could have and should have given a robust direction to the jury in his summing up that there was no evidence upon which the issues of destruction of evidence and flight could be sustained, that they were to ignore the imputations and not to hold them in any way against the applicant, he never mentioned the former and seemed to give legitimacy to the latter.  He directed the jury:

“We know from the defendant’s evidence that he was in the airport on 13 December. He was there. He stated that he was there because he was worried about his blood sugar, and therefore staying close to a 24-hour clinic.

Is that true, you may ask yourself?”

74.It should be observed that the judge did properly invite submissions from both counsel before their addresses to the jury as to the need for giving a flight direction.  Rather extraordinarily, defence counsel submitted that “the requisite of giving that direction are absent in this case and I feel obliged to submit that those directions may not be necessary.”  Equally extraordinarily, in the light of the significance which he had attached to the matter in cross-examination, and was later to give it in his address to the jury, prosecuting counsel also agreed that there was no need for a direction.  However, counsel’s view of such a matter is not determinative if the judge considers that there is a real danger of the jury thinking that the defendant’s supposed flight is evidence of his guilt.  He is the final arbiter of what is necessary to secure a fair trial for an accused.  We think there was an obvious danger of the jury regarding the allegation that the applicant was seeking to flee the jurisdiction, which was never part of the prosecution case, as evidence of his guilt.  It was incumbent on the judge in the circumstances to give the jury a warning to ignore this evidence, whatever the views of counsel on the matter.

75.With regard to those matters said to vilify and insult the applicant, reference is made to the following passage in prosecuting counsel’s closing address:

“Now this is not a court of morals. It’s not a criminal offence to drink beers in the middle of the night, it’s not an offence to ask your domestic helper to go out at night and buy you four beers. It’s not a criminal offence to stay up all night playing computer games. It’s not an offence to drink beer at seven, eight, nine o’clock in the morning. It’s not a criminal offence to fail to take your daughter to school or to the MTR station. It’s not an offence to collect your son from school, even though the defendant told us that ‘I was off work and therefore I could spend time with my children and I could do these things.’ We are not here to judge him on his morals or on his capacity as a father, nor is it a criminal offence not to wear a condom. It’s not an offence to have unprotected sex with different women, provided they consent. But you, as a jury, are perfectly entitled to take into account all matters that you think are relevant in this case when discussing and considering your deliberations.”

76.We wonder what the point of highlighting some of these matters was if not to cast the applicant and his character generally in a poor light. However, the judge did direct the jury in his summing up that moral judgments had no part to play in their deliberations. We think that was probably sufficient to counteract the effect of prosecuting counsel’s invitation.

77.Before departing from prosecuting counsel’s address to the jury, we note that counsel, having variously described the applicant’s explanation as “rubbish”, “nonsense”, “ridiculous” and “grasped onto…like a drowning man”, said this:

“It’s just – it’s almost laughable if it wasn’t such a serious case and if it wasn’t in such serious circumstances, we’d laugh at that.”

78.Just as it is no part of the prosecution’s duty to tell the jury that the case before them is an important one, prosecuting counsel must be careful not to suggest by advocacy that the jury should arrive at a particular conclusion because the case before them is such a serious one.

79.The complaint against prosecuting counsel’s cross-examination and closing address by themselves may not ultimately have succeeded in unsettling the conviction.  The judge could still have rescued the situation and remedied any unfairness to the applicant by timely intervention and emphatic directions in his summing up.  Although, as we have seen, he did on occasions intervene when he thought the normal proprieties of cross-examination had been transgressed, he did not counter the obvious prejudicial effects of certain aspects and implications of the cross-examination in his summing up.  Just as a summing up may be unbalanced for what it does say, it may also be unbalanced for what it does not say.

80.In relation to the complaints against various comments made by the judge during the evidence, we have again been taken through each of those.  Although some of the interventions, particularly those which amounted to comments on the applicant’s evidence as it was unfolding, were unnecessary and unwise, we are not persuaded that by themselves they prevented the applicant from receiving a fair trial.  We are far more concerned by the judge’s comments, in his summing up, on the applicant’s evidence and by his failure to counteract the prejudice and unfairness occasioned by prosecuting counsel’s cross-examination of the applicant.

81.Every defendant in a criminal trial is entitled to a fair trial and to have his defence, however weak or unconvincing, properly placed before the jury.  A judge must allow the jury a free hand to determine issues of fact.

82.We have considered the facts of the case and the way the judge had dealt with the parties’ cases in his summing-up to the jury. We are persuaded that the judge had stepped beyond the permissible boundary and that the summing-up as a whole was not balanced or fair when he was in effect directing the jury to accept the victim’s evidence and reject that of the applicant.  The judge’s failure to neutralize or remedy highly prejudicial matters, unfairly placed before the jury by prosecuting counsel, also meant that the applicant had not received a fair trial.

83.In the circumstances, we are unable to say that the conviction against the applicant is safe and satisfactory.  We therefore grant leave to the applicant to appeal against conviction and treating the application as the appeal proper, we allow the appeal.  We quash the conviction and set aside the sentence.

Mr William Tam, DDPP of the Department of Justice, for the Respondent

Ms M Panesar, instructed by Chiu, Szeto & Cheng assigned by the Director of Legal Aid, for the Applicant