THE QUEEN v. CHENG MAN TO

IN THE COURT OF APPEAL

            1986, No. 542
            (Criminal)

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Dates of Hearing : 5^th and 6^th March 1987

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J U D G M E N T

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Silke, J.A.

1. The Applicant, Cheng Man To, faced trial upon an Indictment containing 8 counts of incest.  The period covered by those counts was from May 1980 up to September 1984.  He was acquitted, by direction, on the 1^st count.  He was acquitted on counts 2 to 6.  He was convicted on the 7^th and 8^th counts, the 7^th relating to the 8^th of September 1984 and the 8^th to the 14^th of September 1984.

2. He received a sentence of 5 years on each count to run concurrently, and an order was made that he pay $2,000 costs.

3. He now seeks leave to appeal against both conviction and sentence.

4. While the Applicant was represented at the committal proceedings, he was, by his own choice, unrepresented at trial.  Mr. Eddis, with him Mr. Ronald Tang who appears for the Applicant in this Court, has, as background, drawn our attention to the unfortunate position in which the Applicant placed himself in that it was necessary for him to cross-examine his own daughter.  Further certain discrepancies in the evidence were, says Mr. Eddis, not emphasized sufficiently by him in the course of that trial.

5. No issue was taken as to the fairness of the trial.  Nor, apart from two directions which Mr. Eddis submits were first, a non-direction and second, a mis-direction on fact, was any stricture leveled at the summing up.

6. The thrust of this appeal is that the jury’s verdicts were inconsistent, that they were incongruous and that they should not be supported.  It is further suggested that portions of the evidence were not given full and proper consideration by the jury: had they properly considered them they could not have convicted the Applicant.

7. On the non-direction, it is said that the trial judge failed to direct the jury that the evidence of a witness called from the Family Planning Association as to the starting time of a boyfriend girlfriend relationship between the girl and one Lee Yee Cheuk differed completely from the evidence of the girl herself and from that of Lee on this aspect.  We do not think there is anything in this ground.

8. Ground 5 alleges a material mis-direction.  The trial judge had made specific reference to the girl’s having told a Dr. Lun of the Hong Kong Polytechnic on 4^th of October that her father had been having sexual relations with her for a long time.  Mr. Bruce, who appears for the Crown in this Court, concedes that there was no evidential basis for this direction.  He seeks the application of the proviso.

9. It was the evidence of the girl that the father forced her into sexual intercourse while they were together in Guangzhou in 1980.  Thereafter, intercourse took place at frequent intervals,  it was suggested on some 200 o0ccasions, until September of 1984.

10. The Crown in opening said that the first six counts on the Indictments were sample counts.  At the commencement of the trial, the Indictment had been amended to delete from counts 2 to 6 the specific dates mentioned and to insert the more general phrase “in the month of”: for in the original Indictment count 2 related to the “5^th” of July 1981; count 3 to the “15^th” of November 1981; count 4 to the “18^th” of July 1982; count 5 the “23^rd” of December 1982 and count 6 to the “6^th” of August 1983.

11. While giving evidence, the girl made reference to a sheet of paper which she said was a note made up from a series of entries in notebooks no longer in existence.  She kept the records of the number of occasions upon which intercourse took place as she had been advised to do this when she had obtained her first abortion so as to facilitate knowledge of the dates of possible conception.

12. In July of 1981, she instanced four days, the 5^th, 12^th, 24^th and 29^th; in November of 1981, she instanced five days, the 1^st, 8^th, 15^th, 21^st and 29^th.  Still referring to the paper, she said that there had been intercourse in July 1982 on six occasions, in December 1982 on two occasions and in August 1983 on seven occasions.  These months without specifying the precise date.

13. The trial judge directed the jury that it would be sufficient for conviction on these counts, as framed, for them to find that intercourse had taken place at any time in those months.  For September 1984, she had stated that there were three specific occasions, the 1^st, the 8^th and the 14^th.

14. Mr. Eddis has drawn our attention to the large number of occasions in the course of the summing up in which the trial judge had made it abundantly clear to the jury that they had to be sure of the truth of the girl’s accusations before they could convict.  Examples of this were:

 “The defendant expects in this case a true and just verdict.  He has devoted much of his time in seeking to prove that he is innocent.  You must be sure that the girl has told you the complete and unvarnished truth in her accusations of incest against her father.”

15. And again:

“Of  course in a case of this kind where everything turns on your assessment of her credibility, if you are satisfied that she has lied on certain parts of her evidence, then you will have to work out yourselves whether that lie is of such kind as to lead you to say ‘Enough is enough and I do not accept what she says’.  On the other hand, as I have already told you, you can accept part of the evidence of a witness and reject the remainder.  You must learn to sort the wheat from the chaff.  The issue here is unadulterated truth when she says that her father did have sexual intercourse with her?”

16. Towards the end of his summing up, he said this:

“Now you ay take the view, and it’s a matter entirely for your, that that sort of contradictory statement or lie”

– (he was there referring to the girl’s having told the Family Planning lady that she had had two abortions whereas in evidence she said she had had three) –

“demonstrates that she is an unreliable witness, and that puts paid to all her evidence.  You are entitled to take that view members of the jury if you wish, and acquit the defendant.  If you think that she lies on one matter, well then you may ask yourselves how can you be certain she is not lying on another?”

17. He suggests that the whole tenor of the summing was on “all or nothing” approach.

18. Mr. Eddis, quite rightly accepts that the burden of showing to us that these verdicts are inconsistent lies upon the Applicant.  He says that the basis of his application is that because of the inconsistency and the other matters to which he has drawn to our attention, the verdicts are, within the meaning of section 83 of the Criminal Procedure Ordinance “unsafe and unsatisfactory”.  That section gives to the Court of Appeal a discretion wider than that which had existed before its introduction.  Then it would not have been possible to say that a verdict was unreasonable or unsupported by the evidence or that a miscarriage of justice had occurred and to quash the conviction for those reasons even though the Court felt considerable doubt as to the propriety of the conviction.  He stresses that that is no longer the case.  The provisions of that section are mandatory.  The Court has to make a subjective judgment.  As Lawton L.J. in Pattinson ⁽¹⁾ said :

“The problem for us on this evidence is this: have we got a lurking doubt about this case?”

In Regina v. Andrews-Weatherfoil Ltd.⁽²⁾,  Evleigh J. (as he then was) considered inconsistent verdicts first of all by two different juries and then, as here, when they are returned by the same jury.  He referred to the later position as being “usually more simple”.  He went on:

“If the inconsistency shows that that single jury was confused, or self contradictory, its conclusions are unsatisfactory or unsafe and neither verdict is reliable.  Very often, however, an apparent inconsistency reflects no more than the jury’s strict adherence to the judge’s direction that they must consider each case separately and that evidence against one may not be admissible against the other: for example, where there is a signed confession.”

And again,

“The verdict ‘not guilty’ includes ‘not proven’.”

19. Here, the judge did direct that the jury should consider each count separately.  Mr. Eddis says that, while technically correct and while the wording of the direction was impeccable, nevertheless, where the whole train of the evidence running through the first to last count was the sole and uncorroborated evidence of the girl, this direction was less than helpful.  On this aspect, we do not agree.  It was incumbent upon the judge to do that which she did.  He could have taken no other course.  And he did make it abundantly clear to the jury that the sole evidence against the Applicant was that of the girl and that her credibility was the issue.

20. In Regina v. Durante⁽³⁾, Edmund Davies L.J. in giving the judgment of the Court of Appeal made reference to Hunt⁽⁴⁾ in which Lord Parker C.J. cited an unreported judgment Devlin J. (as he then was) in Regina v. Stone.  This had regard to the approach which the court should adopt in cases of inconsistent verdicts.  What Devlin J. is cited as saying was:

“When an appellant seeks to persuade this court as his ground of appeal that the jury had returned a repugnant or inconsistent verdict, the burden is plainly upon him.  He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.  But the burden is upon the defence to establish that.”

The Court of Appeal in Durante⁽³⁾ approved and adopted that passage, in particular its reference to where the burden lies.

21. The burden the Applicant bears is a heavy one.  This Court will not lightly interfere with the verdict of a jury.

22. Here the evidence of the girl as to intercourse was explicit. The matter had come to light when she made a report to the police in October of 1984. She had previously been to the Family Planning Association. A visit there had arisen from an incident on the 23rd of September 1984 when she and the boy Lee, in Daimaru, were seen by, and themselves saw, the Applicant.  There was a quarrel that evening between herself and her father.  On her version, this quarrel took place after the other family members, her mother and her two brothers, had been ordered by the Applicant to go to their rooms.  Her mother, who agreed to give evidence and was called by the Crown, but only for the purpose of tendering her, stated in answer to her husband’s question that she and the boys were told by the Applicant to be present in the living room and were there when the Applicant demanded the return of the girl’s credit card and car key.  When the girl handed them back the went to her own room where she cried. 

23. The father said he had been informed by a “High Official” in Guangzhou, for he had business dealings with that part of China and was known there, that his daughter had had an abortion carried out in 23^rd June 1984.  He said he was distressed and he wished to ascertain who was responsible for his daughter’s condition.  He wanted more knowledge of the boy Lee whom he had seen with her.  He ordered the girl to return a credit card which he had given her and the keys to a car.  This she did.  She did not give full particulars of Lee.  She says the father threatened to “take out a contract on Lee”.  And that he went to the Hong Kong Polytechnic for the purpose of ascertaining the particulars he required.

24. It is correct that he did pay such a visit but he says  it was to find out Lee’s details so that he could, being a strict father, takes some course of action in relation to controlling the girl herself and to enable him to see Lee.  It was when the girl found out about his visit that she went to the Family Planning Association and she being concerned for Lee’s safety, went also to the police.

25. One of Mr. Eddis’ submissions as to why the jury’s verdict should not be supported is the lack of any evidence of a prompt complaint being made between the last incident on the 14^th of September and the date when eventually whe went to the police, the 15^th of October.  Further, he says, that there was insufficient evidence, and indeed confusing evidence, as to whether the incidents of the September intercourse had taken place in the Applicant’s office or in the home.

26. When the girl eventually told her mother of the incidents, she had said that they took place in the office.  Her evidence in Court was very unclear until, at the conclusion of re-examination, she was asked some questions by the trial judge.  It was only then that she appeared to say that the incidents took place in the home.

27. She had at the time told her mother of the Daimaru meeting.  The girl’s version of the mother’s reply was that this was “unlucky”.  The mother’s version, a very different one, was that she merely said to the daughter “why in earth did you not introduce Lee to your father” without the overlay which the daughter’s evidence of her reply could have.

28. Mr. Eddis submits that the verdict was incongruous because the jury acquitted the Applicant in relation to offences when she was young, immature and defenseless, ranging from the age of 14 until the age of 19, but then convicted in respect of offences when she was over 20 years old, she had boyfriends and had equally had what might well have been a sexual relationship with Lee.  There was no direct evidence of this last and the girl denied ever even having kissed Lee.  The Family Planning lady referred to a “sexual relationship” having existing between them based on that which she was told by the girl.  But this phrase was, somewhat remarkably, not intended to mean a physical sexual relationship but was the witness’ method of expressing a developing friendship.

29. These matters are urged in support of his main complaint that there was inconsistency but all these matters were before the jury.

30. The real issue in Mr. Eddis’ submissions that the jury’s verdict cannot be reconciled – they, having disbelieved the evidence on the 2^nd to 6^th counts yet accepted the evidence in relation to the 7^th and 8^th counts despite the fact that the sole evidence on all was that of the girl and despite the fact that she had been explicit on the months and, in some cases, the dates covering all the counts.

31. When they came to reach their conclusions, he submits, the jury may well have made a wrong analysis and that they had dismissed the importance of all this too easily.  He urges us to feel that something has gone wrong and that we should consider the verdicts unsafe and unsatisfactory.  We might consider the verdicts of acquittal to be wrong and if that be so then equally something had gone wrong.  The verdicts remain irreconcilable.

32. In addition, we should in the light of all this and in all the circumstances of this case have at least a lurking doubt sufficient for us to find the conviction unsafe and unsatisfactory.  He reminds us that section 83 of the Criminal Procedure Code uses the word “shall” in relation to the allowing of an appeal in these circumstances.

33. Mr. Bruce for the Crown has argued that the verdicts here have not reached the standard of total irreconcilability required by the authorities.  He accepts that they may be difficult to understand but they are not such as should cause us to think the guilty verdicts are unsafe or unsatisfactory.  He says that Mr. Eddis’ suggestion that it was all or nothing is not a correct one.  The judge never said so explicitly.  He goes on that there was a basis for a rational and wholly understandable distinction between the acquittals and the convictions.  He emphasized that the jury was directed on two occasions, and in terms, to consider each charge separately.  As Mr. Eddis, to make his point on “all or nothing”, had found it necessary to insert such words in the summing up as “her whole story”,  then he cannot say the direction were on an “all or nothing basis”.  It is Mr. Bruce’s submission that all the judge was saying in the relevant passage was: “Look at the whole of her evidence to see if credible generally. If it fails that test, then do not bother to go on looking at the individual counts for if it fails generally then it must fail specifically.  But if does not generally fail, then go on to the required separate considerations.”

34. The jury, says Mr. Bruce, was playing very, very, safe.  They had borne in mind and had strictly adhered to the directions given to them by the trial judge.  Where the girl’s dates were not specific, even though the charges themselves related only to a month and not to a specific date in that month, the jury was not prepared to convict.  It was only where the girl was specific as to the September dates, combined with the course she had taken immediately thereafter, that the jury, again being very careful, was prepared to convict.

35. He has directed our attention to a passage in cross-examination where the girl, in answer to her father’s questions on the matter of her records said that some of her dates were recorded after having sex with him and some were “transposed from other documents.”  Her statement to the police contained dates, the record having being made by then and handed to the police.

When asked:

 “Do you mean to say that you kept those dates on record before you referred the incident to the police?”

36. She replied:

“The record was always there and I have stressed that some of the entries, the recent ones, are those that I record after the sex relationship with my father and the previous one I have said that it was copied from other documents like my student handbook, my school calendars.”

37. In answer to a question put by the judge she said that the recent dates were originals and the previous dates were transposed from the student handbook and the school calendars.

38. The “recent dates” can only refer to those in counts 7 and 8 – the 8^th and 14^th September 1984.  Count 6 named the 6^th August 1983.  The effect of this was that the September dates were the only ones contemporaneously written down, the rest were “transposed” – to use the girl’s expression – from old and now non-existent records.

39. Mr. Bruce further submits that in view of the frequent visits to Guangzhou and of the history of intercourse having taken place there, the jury might equally have asked themselves: Was this intercourse in Hong Kong, when it would be an offence, or was it in Guangzhou where it would not be? and answered: We do not know.

40. He says that to go as far as Mr. Eddis wishes would be to enter, unjustifiably, into the realms of speculation.  Her failure to make a prompt complaint after the 14^th of September could well be explained by the girl’s hoping that it all might go away and that it was only when, according to her evidence, her father threatened Lee and went so far as to visit the Polytechnic that she felt forced to go out and to complain.  The “reconcilability” is given extra weight in that the judge had directed a verdict of not guilty upon the 1^st count because the girl was unable to say in what month of 1980 intercourse had taken place and the count charged the month of May.

41. This was not, however, the case in respect of the other months in the other counts charged.  She had been specific that intercourse had taken place in them.  The judge had directed, as we have said, if the jury accepted that, then there was enough for a conviction upon those counts.

42. In R. v. Drury⁽⁵⁾, the English Court of Appeal held that there was no general rule that the mere fact that a jury has returned inconsistent verdicts on counts in an indictment meant that the Court of Appeal is obliged, because of that, to quash the convictions.

43. It all depends on the facts of the case the test we pose ourselves is, to paraphrase Edmund Davies L.J., in Durante⁽³⁾ at p.1617,: Are we satisfied that no reasonable jury, who had applied their minds properly to the facts of the case, could have arrived at the two differing conclusions that this particular jury did?

44. These verdicts are, on the face of them, inconsistent but we do not think this jury to have been an unreasonable one.  The two sets of verdicts can stand together. They are not so irrational that the reasonable jury, which we think this to have been, could be said to have failed to apply their minds to the evidence before them.  It is not, in our judgment, a question of lurking doubt but, whether the two differing conclusions are so unreasonable as to warrant our interference.  The Applicant has not discharged the heavy burden laid upon him.

45. The factual misdirection of which Mr. Eddis complains clearly was a slip by the trial judge.  Had the non-existent complaint to which he made reference been placed before the jury as a first complaint and it been for there consideration on the consistency of the girl’s story then there would have been cause for concern.  It was not and we do not think the inaccuracy to have been of significance.  It occasioned no miscarriage of justice.

46. We have borne in mind Mr. Eddis’ exhortations to consider well if there be overall a lurking doubt in our minds.  We do not harbour such a doubt.

47. The application is refused.  We shall hear counsel on the matter of sentence.

Sentence

48. The Applicant was a businessman, aged 47, and at the time of the convicted offences, the girl was over 18.  We treat her as being an honest girl and not promiscuous.  There was a duty of care upon the Applicant which duty he transgressed.  We bear in mind that this was a conviction after trial and in this light we must give effect to the verdicts of the jury.

49. The maximum sentence for this offence under the Crimes Ordinance is one of 7 years’ imprisonment on each count, we viewed the offences as a course of conduct.

50. We must have aregrd to the public interest in this jurisdiction and while we are grateful to Mr. Eddis for drawing our attention to a line of English cases, they are not necessarily appropriate to a conviction for offence of this nature in Hong Kong.

51. That having been said, we think in all the circumstances, the sentence to have been excessive.  Sufficient regard does not appear to have been given to the acquittals on the sample charges.  Here a sentence, in a totality of 3^1/2 years to run concurrently.