HKSAR v. Singh Balwinder
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CACC 166/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 166 OF 2014 (ON APPEAL FROM HCCC NO. 351 OF 2013) ____________ BETWEEN
____________ Before : Hon Lunn VP, Macrae and McWalters JJA in Court Date of Hearing : 30 January and 13 February 2015 Date of Judgment : 13 March 2015 ____________ J U D G M E N T Hon Lunn VP (giving the Judgment of the Court) : 1.The applicant sought leave to appeal against his conviction on 2 May 2014 after trial by Deputy High Court Judge S. D’Almada Remedios and a jury of indecent assault of a woman referred to at trial as Ms X, at domestic premises at Pok Fu Lam Road, Sai Ying Pun on 28 April 2013, contrary to section 122(1) of the Crimes Ordinance, Cap. 200 (Count 1) and of raping Ms X at the same premises on the same day, contrary to section 118(1) of the Crimes Ordinance, Cap. 200 (Count 2). The applicant was sentenced to 6 months’ imprisonment in respect of Count 1 and 6 years’ imprisonment in respect of Count 2, which sentences were ordered to be served concurrently. The hearing of 30 January 2015 was adjourned in face of the application made on behalf of the applicant at the outset of that hearing, which the court granted, for leave to file re-amended Perfected Grounds of Appeal against Conviction. 2.Having filed a Notice of Abandonment with the court on 4 February 2015 of his application for leave to appeal against sentence, the application was dismissed on the same date. The trial The prosecution case 3.There was no dispute that Ms X, a Mainland woman in her 40s, had been twice married. She married her first husband, a Hong Kong man in 1997 and came to live in Hong Kong in 2004. They had two children, born in 1999 and 2000 respectively, but they divorced in 2008. She married again in April 2012, but she and her second husband separated in October 2012. 4.Ms X came to reside at the flat at Pok Fu Lam Road on 27 April 2013, pursuant to an agreement with Mr Kumar, to whom she was introduced by a real estate agent, Mr Yu, by which she would have use of a room to herself and shared use of communal areas for a rent of $4,000 per month. The applicant was staying at the premises of Mr Kumar temporarily. 5.Ms X said that at about 8:30 p.m. on 28 April 2013 the applicant had returned to the premises smelling strongly of alcohol. She was preparing dinner. Having failed to obtain entry to Mr Kumar’s room, the applicant simply removed his trousers, leaving him clad in underwear only. Ms X went to her room and provided the applicant with a pair of her husband’s red boxer beach shorts which, at her invitation, the applicant put on. Soon afterwards, whilst she was standing by the sink in the kitchen, he approached her from behind seizing and squeezing both her breasts with his hands. Having struggled to free herself from his grip, she turned around and reprimanded him, telling him to sit down. He did so. 6.Then, she shared with him the food that she had prepared. Whilst she was washing the dishes, the applicant approached her again from behind and squeezed her breasts and, having dragged her into her bedroom, pushed her onto the bed. He bit her private parts through her shorts. She resisted, pushing him away, kicking him with her feet and shouting out. Eventually, he succeeded in removing her shorts and underpants and removed a pair of shorts and the underpants which he was wearing. Then, he penetrated her vagina with his penis. As he did so, he used one hand to cover her mouth and another to hold one of her hands. After about five minutes, he withdrew his penis from her vagina and ejaculated outside her body. She did not consent to any of the sexual acts of the applicant. 7.Shortly afterwards, the applicant left the room and Ms X cleaned herself with the bed sheet and closed the door. Later, having opened the door and observed that the applicant was lying on the sofa, she went to the bathroom and showered. Then, she returned to her room where she considered the pros and cons of making a report to the police: she had just moved to the area and was not familiar with the place or the people; to do so would be to expose the shameful incident and would be very troublesome. Having rested during the night, she resumed her consideration of the matter: on the one hand, she regretted having let herself be bullied; on the other hand, she was very worried that reporting the matter to the police would result in her husband, ex-husband and children coming to know about the matter. In the event, she reported the matter by telephone to Mr Yu, saying “I had been sexually assaulted by somebody else, can you come over?” He did so and, after she had confirmed that she had been sexually assaulted he reported the matter to the police, who then attended the flat. 8.The prosecution case was that the applicant had lied about a number of material matters in a video recorded interview conducted on him by police officers in the afternoon of 30 April 2013. There, he denied having touched Ms X’s breasts with his hand. He denied ever going into her room and having sexual intercourse with her on 28 April 2013. He said he had had a quarrel with Ms X in which she had slipped and fallen to the ground. She had abused him in foul language. The defence case 9.The applicant testified in the defence case. He was born in India in 1991 and, having graduated from High School in 2008, had come to Hong Kong in December 2011, where he lodged a claim for asylum on the basis of his fear of torture. On his release from the Castle Peak Immigration Centre in March 2013, he was permitted by Mr Kumar to live in his flat and to sleep on the sofa in the living room. 10.On his return to the flat in the evening of 28 April 2013, he gained entry as the result of Ms X opening the door to the premises. Whilst in the living room he removed his T-shirt and trousers because it was hot. He put on a pair of shorts that he had been given by Ms X previously, not red boxer shorts. When he approached her where she was in the kitchen she complimented him on those shorts. They spoke in Chinese, which he spoke “a little bit”. For his part, he hugged and kissed her, placing his hands on her breasts. He told her that he liked her very much. She laughed and asked him to sit on the sofa. He did so. Then, she shared with him the food that she had been preparing. After he had washed up the plates and returned from the toilet, he went up to her where she was in the kitchen and hugged her. She expressed concern about the possible return of Mr Kumar and, taking him by the hand, led him into her bedroom. There, they kissed and fell onto the bed. Having lifted up her T-shirt, he kissed and massaged her nipples. He removed his shorts and underpants and she touched his penis. Then she removed her shorts and he kissed her vagina and inserted his finger. She masturbated him and he ejaculated. He used no force and he believed that she consented to the conduct. 11.The applicant admitted that the account of the events that he gave in the video recorded interview of his encounter with Ms X in the flat at the time of the alleged rape was a series of lies. He lied because he was frightened, having been arrested by the police for rape. The issues 12.The issues raised in the respective cases were clear. Ms X said that the applicant had overpowered her and had sexual intercourse with her without her consent. The applicant denied that he had sexual intercourse with Ms X and said that such sexual activity that they had was with mutual consent. The grounds of appeal against conviction 13.By the re-re-amended Grounds of Appeal against Conviction Ms Panesar submitted that the judge erred first, in permitting the prosecution to adduce evidence of the applicant’s previous criminal conviction in the Magistracy for fighting in a public place, for which he was fined $750 on 12 November 2012, and the fact that he was bound over to keep the peace on the same date in respect of separate but similar conduct, namely fighting in a public place, occurring on a different occasion. She contended that the requisite provisions of section 54 of the Criminal Procedure Ordinance, Cap. 221 were not satisfied. Secondly, she contended that even if those provisions were satisfied, the judge erred in the exercise of discretion in permitting the prosecution to adduce evidence of the applicant’s criminal conviction. 14.Thirdly, Ms Panesar submitted that, having permitted evidence to be adduced, the judge failed to give adequate directions to the jury as to the limits use to which they could put the evidence which did not include the applicant’s propensity to commit a violent crime. She contended that the judge ought to have given the jury a “full propensity” direction and reminded the jury that the applicant had never been convicted of any sexual offence let alone the offence of rape. 15.Fourthly, she submitted that the judge ought to have given separate directions to the jury in respect of their approach to the criminal convictions of the applicant on the one hand, and Ms X on the other. The judge erred in giving the jury a direction which encompassed both of them. In giving the direction in respect of the applicant, she submitted that the judge ought to have reminded them again at that stage not only that if they determined that the evidence of the applicant was or may be true they were to acquit but also that, even if they “did not positively believe the evidence of the applicant”, they could not find an issue against him “contrary to that evidence if that evidence gave rise to a reasonable doubt as to that issue”. 16.Finally, she complained that the judge had erred in permitting Mr Neil Mitchell, counsel for the prosecution, to ask the applicant in cross-examination if he could “give or explain any reason” why, if their sexual activity had been consensual, Ms X had complained in the morning in a distressed state to both Mr Yu and to the police that she had been raped.[1] 17.Ms Panesar submitted that the cross-examination of Ms X in respect of her criminal convictions of operating an unlicensed massage establishment and keeping a vice establishment was not intended to impugn her character, rather it went purely to her credibility. It was contended that its purpose was to rebut the applicant’s testimony that one of the many reasons she offered for not making an immediate report to the police was that she was concerned that once a report was made her husband, ex-husband and daughters would come to know of the shameful fact that she had been raped and she would be embarrassed. 18.She submitted that the judge erred in exercising her discretion to permit the prosecution to adduce the evidence having regard to the nature of the conviction of the applicant and the crimes for which he was standing trial. The conviction of the applicant for an offence of fighting in a public place and the fact that he was bound over in another matter “was not relevant to any issue in the case, including credibility since previous offences were not offences of dishonesty”. On the other hand, impermissibly, the jury might consider them relevant to his propensity to commit acts of violence, including violent rape. The judge failed to direct the jury adequately in respect of the issue of the propensity of the applicant to commit a violent crime. A consideration of the submissions 19.There is no dispute that, in the course of cross-examination of Ms X, Mr Oliver Davies, counsel for the applicant at trial, cross-examined Ms X about her criminal convictions. Ms X accepted that in 2007 she had been convicted of operating an unlicensed massage establishment and that in January 2013 she had pleaded guilty to the offence of keeping a vice establishment in 2009.[2] She accepted that girls working at the establishment provided services of masturbation. She agreed that she had been sentenced to imprisonment for “a couple of months”. 20.Earlier in the cross-examination Mr Davies raised with Ms X the fact, which she accepted, that she had worked as a masseuse and had operated a massage parlour in Yuen Long in 2007/8 and in 2009 in Sham Shui Po. However, when he suggested that she had been operating vice establishments, Mr Mitchell, counsel for the prosecution, intervened and at his request the jury was asked to leave the court. In their absence, having acknowledged that the prosecution was not in a position to prevent Mr Davies from putting her previous convictions to Ms X, he raised with the judge the separate issue of questions being posed of her previous sexual activity, which line of questioning he submitted required the consent of the court, pursuant to section 154 of the Crimes Ordinance, Cap. 200. Mr Davies explained that he did not propose to suggest any improper sexual activity by the applicant herself, rather he sought to adduce evidence from her that she had run a vice establishment in which sexual services were offered to customers by employees. He explained that he did so, in order to put into context the concerns which Ms X alleged about the consequences of making a report to the police of having been raped, namely that her daughters would come to know of that shameful event. That, he suggested was much less shameful than operating a vice establishment. 21.Although Mr Davies did not immediately resume his line of cross-examination, namely that Ms X had operated vice establishments which provided sexual services, soon afterwards he did so and, in the face of specific cross-examination, Ms X admitted the conduct that was the subject of those criminal convictions. Then, the following interchange ensued between Mr Davies and Ms X:[3]
22.In re-examination, the issue of her daughter’s embarrassment at her working in a vice establishment was revisited:[4]
23.At the outset of his cross-examination of the applicant, Mr Mitchell applied to the judge in the absence of the jury for leave to cross-examine the applicant on his previous convictions. He did so on the basis of the earlier cross-examination of Ms X by Mr Davies in respect of her criminal convictions, in consequence of which he submitted the applicant had “lost his shield”. He contended that the fact of the applicant’s previous convictions went only to his credibility.[5] 24.For his part, ultimately Mr Davies opposed the application, contending that in cross-examining Ms X, the defence was not attacking her character. Rather, it was to challenge her credibility, namely her explanation that a reason for the delay in reporting the matter to the police was her concern of her own embarrassment should her ex-husband, husband and daughters come to know that she had been raped.[6] That explanation was to be judged by the risk she ran of embarrassment from her family coming to know that she operated a vice establishment. 25.In the event, the judge ruled:[7]
26.Mr Mitchell dealt with the criminal convictions of the applicant immediately upon resumption of cross-examination:[8]
27.Immediately thereafter, Mr Mitchell went on to inform the jury: MR MITCHELL:
Summing up 28.In her summing up, the judge reminded the jury of the evidence in respect of the criminal convictions of Ms X and the applicant and gave them directions as to how they were to approach that evidence:[9]
29.Earlier, the judge had reminded the jury of the submissions of the defence, in the context of the failure of Ms X to make an immediate complaint of rape and her evidence that she was concerned that this shameful matter would be made public, of the relevance of her criminal convictions:[10]
30.Section 54(1)(f) of the Criminal Procedure Ordinance, Cap. 221 provides that:
31.There is no doubt that the cross-examination of Ms X in respect of her previous criminal convictions necessarily involved imputations on her character. It beggars belief that it was suggested otherwise. In the context of the acceptance by Ms X, in the face of questioning to that effect, that she had been convicted in January 2013, on her own plea of guilty, to keeping a vice establishment in 2009, the following exchange ensued with counsel for the applicant:[11]
32.As noted earlier, in the course of cross-examination of Ms X in respect of her work as a masseuse, Mr Mitchell intervened when Mr Davies first suggested to Ms X that she was “operating vice establishments…offering sexual services”.[12] In the absence of the jury, Mr Mitchell acknowledged that he was not able to prevent Mr Davies posing questions in respect of Ms X’s criminal convictions. In context, the import was obvious, albeit that no specific warning was made, as to the consequences if the applicant was to give evidence. In the event, Mr Mitchell had anticipated correctly that Mr Davies intended adducing evidence not only of her convictions but also the penalties imposed upon her. Clearly, Mr Davies was alive to the risk he was running that the applicant’s criminal record would be adduced before the jury. 33.There is no dispute that the judge had a discretion as to whether or not to permit Mr Mitchell to adduce the criminal convictions of the applicant before the jury. It is to be noted that at the outset, whilst expressing doubts as to why the prosecution sought to adduce the applicant’s criminal convictions, Mr Davies said “I’m not really objecting to it going in”.[13] Only later, did Mr Davies indicate that he took objection, asserting “it wasn’t in any way to attack her character”. He went on to say “her credibility, not her character though, and this is the difference”. 34.As was made clear by the judge in her ruling, the submission was to point to a difference with no substance. We agree. 35.Whilst it may have been the case that other judges might not have exercised their discretion to permit the prosecution to adduce evidence of the applicant’s criminal convictions, we are satisfied that her determination to permit this course of events lay squarely within her discretion. There is nothing in the submissions advanced by Ms Panesar to suggest that the judge erred in principle in the exercise of that discretion. 36.Further, we are satisfied that the judge gave the jury the appropriate directions in respect of how they were to approach the use of the evidence of the applicant’s previous convictions, namely that it was relevant to his credibility only and irrelevant to his propensity to commit the offences on which he stood trial.[14] Insofar as the judge directed the jury in respect of the relevance of the previous convictions of Ms X, which she dealt with during her direction in respect of the previous conviction of the applicant, her direction was apposite. As the judge said, it was relevant to the “truthfulness” and “truthfulness and credibility” of her evidence.[15] Cross-examination of the applicant of his knowledge of a motive in Ms X to lie 37.In cross-examination by Mr Mitchell, the applicant having confirmed that his sexual activity with Ms X had been consensual, “she was happy, I was happy” the following interchange occurred:[16]
The Law 38.In his judgment in the Court of Final Appeal in Wong Kwok Wang Warren v HKSAR, Chan PJ, with whom all the other judges agreed addressed the issue of the permissibility of the prosecution exploring with a defendant in cross-examination his knowledge of a motive in a prosecution witness to lie in giving evidence adverse to the defendant:[17]
39.Having addressed the possible dangers of permitting such a line of cross-examination, Chan PJ concluded that they were not sufficient reason to exclude such cross-examination:[18]
40.Of the circumspection required in pursuing such a line of cross-examination, Chan PJ observed:[19]
41.Of the danger that a jury might misuse the accused’s answers and the possible adverse impact on the burden and standard of proof, Chan PJ said:[20]
The propriety of the cross-examination 42.We are satisfied that the impugned questioning of the applicant by Mr Mitchell was permissible and admissible, it being relevant to the issues in the case. The questioning did not stray beyond that which was permitted, namely exploring whether or not the applicant knew of any reason that Ms X might complain of rape having enjoyed consensual sexual activity. The repeated refrain of the applicant’s answers were to the effect that he knew of no reason and culminated with an assertion that their sexual activity was consensual. The dangers of misuse of the evidence by the jury 43.Comment was made by both counsel in their closing speeches of the effect of the cross-examination of the applicant on this issue. In his speech, Mr Mitchell said:[21]
44.In his closing speech, Mr Davies said:[22]
Summing up 45.In her summing up the judge referred to those closing submissions. Of Mr Mitchell’s comments, she reminded the jury that he suggested:[23]
46.Of Mr Davies’s submissions she noted that he had suggested:[24]
47.The judge addressed the issues not only of the burden of proof but also the consequences of the jury rejecting the evidence of the applicant at the outset and at the conclusion of her summing up. At an early stage, she said:[25]
48.At the conclusion of her summing up, having summarised the points made on behalf of the prosecution and the defence, the judge addressed those two issues again:[26]
49.As is apparent from the directions that the judge gave to the jury she did not expressly direct them that there was no obligation on the applicant to show that Ms X had a motive to lie about the applicant’s conduct. With respect, it would have been better if she had done so expressly.[27] But, as noted earlier, the judge had told the jury at the beginning and the end of her summing up that it was for the prosecution to prove the applicant’s guilt so that they were sure of his guilt and that it was not for the applicant to prove his innocence. Moreover, she went on to direct the jury that, even if they rejected the applicant’s evidence, it remained for the prosecution to satisfy them so that they were sure of the applicant’s guilt. 50.In the course of argument, Ms Panesar submitted that the judge ought to have given the jury an additional direction, namely that there was no evidence that the applicant was aware of the distressed state of Ms X at the time that she made her complaint. That is nothing to the point. The cross-examination was based on the unchallenged evidence of the fact that at the time that Ms X made her complaints she was very distressed, not on the basis that he witnessed the distress. In any event, the primary question of the applicant was directed to whether or not he knew of any reason why Ms X, having enjoyed entirely consensual sexual activity with the applicant the previous evening, should complain of rape. Only then was the applicant reminded of the unchallenged evidence of the witnesses who received the complaint of Ms X that she was very distressed. The questions asked of the applicant were entirely permissible and the directions of the judge appropriate. Conclusion 51.For the reasons we have set out, we are satisfied that there is no merit in the grounds of appeal against conviction, which is dismissed.
Mr Eddie Sean, SADPP of the Department of Justice, for the respondent Ms M. Panesar, instructed by Massie & Clement, assigned by Director of Legal Aid, for the applicant (for conviction) [1] Appeal Bundle, page 285 A-M. [2] Appeal Bundle, pages 215 N - 217 L. [3] Appeal Bundle, pages 217 N - 218 J. [4] Appeal Bundle, pages 242 S - 243 H. [5] Appeal Bundle, page 260 A. [6] Appeal Bundle, pages 260 D. [7] Appeal Bundle, page 260 F. [8] Appeal Bundle, page 261 I-N. [9] Appeal Bundle, pages 16 A - 17 M. [10] Appeal Bundle, page 13 F-S. [11] Appeal Bundle, page 217 P-I. [12] Appeal Bundle, page 212 A-C. [13] Appeal Bundle, page 260 C. [14] Appeal Bundle, page 17 A-M. [15] Appeal Bundle, page 17 C-L. [16] Appeal Bundle, page 285 C-M. [17] Wong Kwok Wang Warren v HKSAR (2009) 12 HKCFAR, paragraphs 35-36. [18] Wong Kwok Wang Warren v HKSAR, paragraphs 39-40. [19] Wong Kwok Wang Warren v HKSAR, paragraph 42. [20] Wong Kwok Wang Warren v HKSAR, paragraph 44. [21] Appeal Bundle, page 291 H-L. [22] Appeal Bundle, page 315 B-E. [23] Appeal Bundle, page 45 J. [24] Appeal Bundle, pages 46 R - 47 B. [25] Appeal Bundle, pages 6 P - 7 D. [26] Appeal Bundle, pages 47 O - 48 D. [27] See Chan PJ in Wong Kwok Wang Warren v HKSAR at paragraph 46. |
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