HKSAR v. Yik Yiu Wai

CACC 491/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 491 OF 2012

(ON APPEAL FROM HCCC NO. 209 OF 2012)

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BETWEEN

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

1.This is an application for leave to appeal against conviction. On 28 November 2012 after trial before Deputy High Court Judge Stuart-Moore and a jury, the applicant was convicted upon an indictment containing one count alleging rape. The allegation was that on 20 February 2012 in a dwelling room on the 13^th floor of a building in Nathan Road, he raped a woman referred to as X. He was sentenced to 6 years’ imprisonment.

2.X had a boyfriend who at the material time was in custody at the Lai Chi Kok Reception Centre pending trial.  Her evidence was that on 19 February 2012, she visited him there and when she emerged she was met by a female called Ah Yan, to whom she owed money for drugs, and two men.  Discussions took place about repayment, as a result of which X contacted her boyfriend’s sister who was asked to pay money into the boyfriend’s account, in respect of which account X had an ATM card.  As result of some confusion about the accounts, the money was not immediately credited and there then followed a series of events, the details of which are not important for present purposes, save to say that X was taken by the men to two hotels and then by a man called Ah Chung to the apartment where the applicant was staying.  Her case was that she was there against her will awaiting resolution of the money issue.

3.According to this account, there came a stage when she fell asleep.  She heard or saw Ah Chung leave the flat, so that she was then alone with the applicant.  She had been lying on a sofa, very tired because she had been catching little sleep in the previous few days as result of the number and timing of her visits to Lai Chi Kok.  She dozed off again, and the next thing she realised was that the applicant was dragging her down the sofa bed and pulling down her trousers and inserting his penis into her.  She tried to push him away and struggled but to no avail.  He then washed himself and told her to leave before Ah Chung returned.  She did so and contacted a friend to whom she complained about what had happened.  She then visited her boyfriend and told him about it and then contacted the police.

4.Upon his arrest, the applicant immediately conceded that he and X had engaged in sexual intercourse at his place but he insisted that it had been consensual; and in an interview and in cross-examination of X, his case was that she had been the instigator of what happened.

5.X testified at length at the trial but the applicant did not testify, relying instead on his record of interview and suggesting unsatisfactory aspects of X’s testimony.

6.In his home-made grounds of appeal, and in comments to this Court today, the applicant makes a number of points:

(1) that X’s evidence-in-chief was inconsistent with her evidence in cross-examination as well as with the statement she had made to the police;

(2) that X is a drug user with a background which makes her an unreliable witness;

(3) that there was evidence which was inconsistent with her assertion that she was captive in his apartment, for example the fact that she fell asleep, and the fact that on her own admission, she had taken off her shoes, indications, he says, of relaxation;

(4) that in the course of cross-examination she conceded that because her boyfriend was in custody she had sexual needs;

(5) that the judge failed to remind the jury of certain matters of which he should have reminded them, for example, that they should consider whether she had lied on oath; and

(6) that after the events in question, she sought to blackmail him by demanding money, otherwise she would put him in jail.

7.All these factual issues save the last were issues before the jury.  As for the last, it was evidence available at trial and there is no basis for now admitting it and, any event, even if true, is not inconsistent with her allegation that she had been wronged.  One can fully understand why counsel would have taken a tactical decision to leave this aspect well alone, lest it strengthen her assertion that he had wronged her. 

8.We have studied the summing-up.  The judge correctly directed the jury on all relevant aspects of the law and clearly drew their attention to the single important issue in the case, namely, whether they were sure that X had not consented to sexual intercourse and, if they were sure of that, whether they were sure that the applicant knew that she did not so consent.  The summing-up was accurate as to law and wholly balanced as to the facts.

9.X’s testimony was lengthy and she underwent a very detailed cross-examination in the course of which counsel for the applicant had every opportunity of testing her veracity and the jury thereby had ample opportunity of assessing it.  In so far as one can glean credibility from a written record, there is nothing in the record to cause us concern about the jury’s acceptance of her testimony.

10.In the circumstances, we see no basis upon which the verdict is properly impeachable and, accordingly, the application for leave to appeal against conviction is dismissed.

Mr Eddie Sean, SADPP of the Department of Justice, for the Respondent

Applicant – acting in person