HKSAR v. TANG SIU FUNG AND ANOTHER

CACC 418/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 418 OF 2008

(ON APPEAL FROM HCCC NO.158 OF 2008)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Cheung J.A. (giving the reasons for judgment of the Court):

1.  The two applicants were each indicted separately of one count of rape, contrary to section 118(1) of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong. The particulars of offence of the two charges stated that on 26 August 2007 each of them raped Miss X in an hourly hotel in Hong Kong.

2.  The case was heard before Deputy High Court Judge D. Pang (as he then was) and a jury. The 1^st applicant and the 2^nd applicant were found guilty by the jury by 6 to 1 and 5 to 2 respectively, while another accused of this case, namely the 3rd accused, was found not guilty by the jury by 6 to 1. The two applicants sought leave to appeal against their convictions. After hearing, we granted the application and treating the application as the appeal proper, we allowed the appeal and quashed the convictions.

Prosecution case

3.  The victim Miss X was in her 20’s and single. Sometime between 1 and 2 a.m. on 26 August 2007, Miss X went to a nightclub to join a birthday party. The people in this party included the two applicants and the 3^rd accused. The 1^st applicant was a schoolmate of Miss X. Miss X said that when she was in the nightclub, she had at different times drunk two alcoholic drinks she made. The first drink was made up of 5 parts Vodka to one part orange juice, while the second drink consisted of half Vodka and half orange juice. She drank half of each of the drinks. In the course of the party, she danced with the 2^nd applicant and the 3^rd accused. Not long afterwards, she felt sleepy and she fell asleep, resting her head and the upper part of her body on a table. She had wakened up twice —the first time because she wanted to vomit; the second time was that a friend nicknamed Siu Ming was about to leave the nightclub and woke her up and asked her whether she would leave with him, but she remained there and continued to sleep. Later, somebody woke her up and told her to leave the nightclub. At that time she felt weak all over and her faculty of judgment did not function. She left the nightclub with that person. When Miss X viewed the CCTV videotape of the building where the nightclub was situated, she recognized that the person she followed when leaving the nightclub was the 3 ^rd accused. Subsequently she, the two applicants and the 3 ^rd accused went by car to somewhere she did not know. Upon arrival at that place, she just heard someone say, “No vacant place.” After that, they went somewhere else. When they were taking a lift, someone touched her breasts. She was not in a clear state of mind at that time, so she did not know who that person was. Later, Miss X saw a fat woman, who said, “So many people, are you going to have a party?” Someone answered, “We’ll leave soon.”

4.  After that, Miss X entered the room. She was drunk and felt sleepy, and she lay on her front on a bed. Shortly afterwards, she felt that she became totally naked and that she was having sexual intercourse with someone. She described that at that juncture her mind was blurred and she could not use her senses. She was not willing to have sexual intercourse but was not able to express what was in her mind. In the course of the sexual intercourse, she did not feel good or upset. The only feeling she got was tiredness and that she was under the control and manipulation of somebody. She was lying on her front on the bed throughout, therefore she did not know how many persons had intercourse with her. She heard the 1^st applicant say, “Brother-in-law, [you] should have no complaint about me.” She also saw the 2^nd applicant video-recording the process of the intercourse with a mobile phone, and heard someone asking other persons whether they wanted the video-recording. She remembered that someone lifted up her head and forced her to do oral sex to him. Subsequently, someone put clothes back on her body for her. The 3^rd accused put his arm round her waist and the 1^st applicant said, “She is very tired, let her have a rest.” Following that, someone asked, “Have another go?” and the 3^rd accused said, “No, thanks.”

5.  Then Miss X fell asleep. She slept until she was wakened up by someone. At that time the 1^st applicant had gone. When she left that place with the 2^nd applicant and the 3^rd accused, she became aware, and it was only then that she was aware that the place was an hourly hotel. Then Miss X parted with them and took transport to go home alone. She said she felt that her “head was swimming” at that time. She only knew that she had been forced to have sexual intercourse with some people, but she dared not believe that it was true. It was sometime between 8 a.m. and 9 a.m. when Miss X returned home. She went to bed at once. She had thought of making a report to the police but she did not do that because she was afraid that her family would learn of the matter.

6.  When she woke up, Miss X telephoned her ex-boyfriend Mr. Wong and complained to him about what happened. Miss X told him:

“I was taken by the 1^staccused and two men whom I had just came to know to an hourly hotel.  At first, we got to some where but I don’t know what place it was.  There was no vacant place.  Then we went to another place.  There, I had sexual intercourse with some people but I don’t know who they were.  I was raped.  I dare not believe it’s true.  I saw that someone appeared to have video-recorded it.  I am very afraid.  I don’t know whether I should tell my family about it.  I don’t know whether they had worn any condoms.”

7.  Mr. Wong asked Miss X why she did not report the matter to the police, but Miss X did not answer this question; she only asked Mr. Wong to accompany her to buy contraceptive pills. The two of them went together to buy contraceptive pills. Then they went to a food establishment. Miss X took some contraceptive pills and they talked with each other. Miss X cried bitterly. Mr. Wong again tried to persuade her to make a report to the police, but Miss X was afraid that her parents would learn of the matter and she refused to report the matter to the police.

8.  Miss X returned home. She worried that the video-recording of the sexual intercourse would be uploaded onto the internet, so she sent a text message to the 1^st applicant, asking him to keep the video-recording secret and “I would rather you delete it”. The 1^st applicant replied to her by text message that he would not make the matter public.

9.  Miss X reported the matter to the police on 29 August 2008. The police asked Miss X to assist them in the investigation. As instructed by the police, she telephoned the 1^st applicant, telling him that she worried very much about this matter. The 1^st applicant then sent a text message to her, telling her not to worry.

10.  Miss X said that on that night in the nightclub, half an hour after she drank the first glass of alcoholic drink she began to lose her sobriety. She still remembered that some people talked to her and danced with her but she had no recollection of details. According to her own description, at the time she left the nightclub she was “dead drunk” and could not maintain a stable standing position.

11.  When cross-examined, Miss X admitted that in her telephone conversation with Mr. Wong she did not say that she had been raped; only when she met Mr. Wong did she tell him that she had been raped. Miss X agreed that she had a lively, cheerful and outgoing personality. She did not mind talking with people about matters concerning sex. She described herself as a person who had social experience, knew how to protect herself and would not let herself be taken advantage of by other people.

Evidence of PW2 Mr. Wong

12.  The evidence of Mr. Wong was that Miss X telephoned him on that day. She asked him to accompany her to buy morning-after pills. He asked Miss X why she had to do that, but she refused to tell him the reason. Mr. Wong knew that she had gone out to have alcoholic drinks on the previous night, so he asked her whether anything had gone wrong after she had the drinks. Miss X admitted that she had sexual intercourse with someone and that person was the 1^st applicant, but she was unwilling to disclose the details. Mr. Wong sensed something suspicious and he asked Miss X whether she was willing to have sexual intercourse with the 1^st applicant, but Miss X did not answer. Relying on his intuition, Mr. Wong pressed on and asked her whether she had sexual intercourse with more than one person. Miss X said, “3 persons.” Mr. Wong felt that something serious had happened, so he asked Miss X to come out to see him. After they bought the contraceptive pills, they talked about this matter again. Miss X did not want to go into details. Mr. Wong asked her how come she had sexual intercourse with 3 people. Miss X did not answer. She just kept on crying. After repeatedly asked by Mr. Wong about this, she said that she was not willing to have sexual intercourse with those people. Mr. Wong told her that it was rape. Miss X just bowed her head and did not utter a word. Then Mr. Wong tried to persuade her to report the matter to the police. Miss X became agitated and said, “No way, no, I will be severely scolded by my family. If you really tell the police about this, I will die before your eyes!”

13.  Mr. Wong stated that Miss X had also told him that when she was having sexual intercourse, someone video-recorded the process. Mr. Wong said that Miss X at that time was depressed, but when he talked about reporting the matter to the police, she became agitated. In the course of this conversation which lasted for 10 minutes, she sometimes did not say anything and sometimes cried. Mr. Wong said that he, on his own initiative, used the word “rape”.

PW3

14.  PW3 Mr. Fung has a nickname called “Siu Ming”. He had known Miss X for several months. He invited Miss X to come on that night to the nightclub to have entertainment. After Miss X arrived there, she herself made up alcoholic drinks, drank the drinks and then danced. At that time Miss X was in high spirits. She danced with many people and when she danced, her arms were round her partners’ waists or on their shoulders, and her partners did the same to her. At that time she was sober. At about 3:15 a.m., Mr. Fung was going to leave the nightclub and he asked Miss X whether she would leave with him. Miss X said that she had left her handbag with a friend, so she would not leave with him. According to Mr. Fung, Miss X at that time had just finished dancing and appeared to be a bit tired, but was still very much sober. Mr. Fung left the nightclub first. At 1 p.m. on the same day, Mr. Fung telephoned Miss X and asked her at what time she finished enjoying herself. Miss X told him that she had just left the nightclub a moment ago. Mr. Fung asked her, “You had been enjoying yourself for such a long time! With whom did you have the enjoyment?” Miss X said, “Do you think there’s only one?” Mr. Fung said,“Wow, did your enjoyment go to that extent?” Then Miss X said, “There were 3.” Mr. Fung went on,“Then you must be very happy?” Miss X answered, “Damn it, now I have to buy medicine for my use.” Miss X told Mr. Fung that she had been video-recorded and she complained in a very unhappy tone that the person who did the video-recording was the 2nd applicant.

15.  Mr. Fung described Miss X as a person having an emotional character. Sometimes she was in low spirits but at other times she could be “wild with joy”. Mr. Fung had once heard Miss X talk about the sexual ability of a boyfriend of hers who was a fireman.

1st Applicant’s record of interview with the police

16.  The 1st applicant stated that on that evening he invited some friends, including Miss X, to join a party. At that time, they talked, drank alcohol and danced. At about 3 to 4 a.m., Miss X had consumed a lot of alcohol by then and was in high spirits. She danced with and kissed the three of them (namely the 1st applicant, the 2nd applicant and the 3rd accused). She also danced with other men with her arms round the bodies of those men. At about 4 to 5 a.m., Miss X was sitting beside the 3rd accused, embracing him and kissing him. Following that, she said she wanted to leave the nightclub with the 3 of them together. In the meantime, she had body contacts with these 3 people. They took a taxi together to Causeway Bay to look for a place to “sleep”. They alighted at Pak Sha Road. Miss X embraced and kissed each of them in turn. They went to everywhere to look for a place to stay overnight. They had been to two places. In a lift, he caressed the breasts of Miss X and she responded by making sweet voices in a coquettish manner. According to the 1st applicant, after they entered a room in an hourly hotel, Miss X first kissed the 3^rdaccused and had sexual intercourse with him. After that, she did oral sex to him (i.e. the 1^st applicant) and the 2^nd applicant in turn, and then had sexual intercourse with them. In the course of the sexual intercourse, all 3 of them had put on condoms and had video-recorded the intercourse process with mobile phones. In the course of doing all these things, they had talked with each other; Miss X, however, had just spoken a few words.

17.  When it was over, the 1st applicant left the hourly hotel first. Later, he met the 2nd applicant and the 3rd accused and they discussed how they should deal with the video-recording stored in the mobile phones. The 1st applicant said that he had deleted the video-recording before he returned home. He could not remember who suggested that all of them sleep together, but he was sure that everyone agreed to do that. No one suggested sexual intercourse beforehand, but by that time all the 3 of them had a lot of body contacts with Miss X, such as caressing and kissing each other, therefore everyone understood that there was going to be contacts that would go a step further. The 1st applicant maintained that Miss X was willing to have sexual intercourse with the 3 of them together. She enjoyed having sex with them. In the course of doing so she groaned joyfully and her body moved in concert with the movements of her partners.

18.  After the 3 persons had sex with Miss X, Miss X was lying on bed sleeping, so they put her clothes back onto her body for her, and subsequently they left the hotel together. When the police officer asked the 1^st applicant whether Miss X was sleeping or conscious at that time, the 1^st applicant answered, “It appeared to me that she was exhausted, because she had finished having sex and before that she had drunk alcohol, that could increase the degree of exhaustion she felt to a level higher than what she experienced at normal times.”

2^nd applicant’s record of interview with the police

19.  The 2^nd applicant’s account was that he and the 3^rd accused arrived at the nightclub first. Then the 1^st applicant introduced them to Miss X. In the nightclub, they drank alcohol, talked and danced. In the course of doing these things, Miss X, on her own initiative, praised the 2^nd applicant and the 3^rd accused, saying that among all the people in the whole nightclub, they were the most handsome men. When Miss X danced with him, she embraced him; and she went to everywhere in the nightclub, bringing him along with her. When Miss X was dancing with other men, she called him to come to her to embrace her. The 2^nd applicant heard Miss X say to the 3^rd accused, “There are many young men tonight. Remember, don’t let me go away with other men.”

20.  Sometime between 3 and 4 a.m., Miss X sat beside him and pressed against his thigh. Even when he went to toilet, she went with him.

21.  At 4 a.m., the 3 people decided to leave the nightclub. The 2^nd applicant said to Miss X, “Let’s go together, go to Causeway Bay to rent a room.” Miss X said, “Good.” Then they took a taxi at Central District and got to Pak Sha Road in Causeway Bay. They first went to a convenience store and bought beers and condoms. When they entered a room in the second hotel, they drank beer first, then the 3^rd accused began to kiss and caress Miss X. Following that, the 1^st and 2^nd applicant jointly took off the clothes on the lower body of Miss X. At this moment, the 3^rd defendant let Miss X do oral sex to him, then they had sexual intercourse. When the 3^rd defendant was having sexual intercourse with Miss X, the 1^st applicant and the 2^nd applicant let Miss X do oral sex to them in turn. After the 3^rd defendant had sexual intercourse with Miss X, the 2^nd applicant and the 1^st applicant had intercourse with her separately. However, the 1^st applicant could not have a full erection and finally he masturbated himself. All 3 of them video-recorded the whole process of the intercourse with telephones. Throughout the process of all these things, Miss X not only did not indicate that she was not willing to have sexual intercourse nor did she put up any resistance, she even continuously moaned and groaned.

22.  At 7 a.m., they left the hourly hotel together.

23.  The 2^nd applicant said that sometime between 2 and 3 a.m., the 3 of them and Miss X were a bit tipsy. When Miss X danced, she bumped against other people. When she was leaving the nightclub, she could only stagger along and needed to be helped. The 2^nd applicant said that when they were in the vehicle, Miss X kissed the 3^rd accused. When they were outside the convenience store, Miss X, the 1^st applicant and the 3^rd accused embraced together. In the room of the hotel, Miss X did not say anything, she just occasionally answered their questions. When the police constable asked the 2^nd applicant whether Miss X needed to be helped in order to walk, he answered, “I was told to support, to help her.” When the police constable asked the 2^nd applicant whether Miss X was sleeping or whether she was conscious after she entered the room of the hourly hotel and when she was lying on bed, his answer was “She was drunk, but I am not sure whether her eyes were opened.” The 2^nd applicant went on to say that when they took off Miss X’s pants, she was conscious enough to cooperate with them so that her pants could be taken off, and she was able to move her head to do oral sex to them. When the 3^rd accused had sexual intercourse with her, Miss X opened her legs and kept on moaning and groaning. When the 1^st applicant ejaculated on her face, she was aware of that and asked one of them to wipe her face for her. He said that Miss X had never refused to have sex with them or done anything which signalled her resistance.

Other evidence

24.  The evidence produced by the prosecution included video recording footage recorded by the CCTV system of the building where the nightclub was situated, which showed how these 4 people behaved when they left the nightclub, and part of the video-recording of the sexual intercourse from the mobile phones of the 3 defendants which had been deleted but was restored by the police.

Evidence of the 1^st applicant

25.  The 1^st applicant elected to give evidence. He was a former schoolmate of Miss X. The two of them met again in April or May 2007 at [their] working place. Subsequently, they and other friends went out together to have entertainment. On that night in the nightclub, Miss X, on her own initiative, invited men to dance with her and she embraced the 3 of them. Finally, the 4 of them decided to leave the nightclub. At that juncture, someone said, “Let’s go together to a hotel.” Miss X then made a phone call in order to look for her mobile phone. When they were standing outside the entrance to the building where the nightclub was situated, they asked Miss X whether she wanted to go to a hotel. At that time she did not need help and she got into the taxi herself. In the taxi, Miss X kissed the 3^rd defendant and held the 1^st applicant’s hand in her hand. Upon arrival at the hourly hotel, they got off the taxi and walked for 15 to 20 minutes. Miss X was full of life and she behaved intimately towards the 2 applicants.

26.  As to what happened afterwards, the 1^st applicant repeated what was recorded in his record of interview with the police. The 1^st applicant said that on 1 September 2007 Miss X had sent, through the internet, “several actions to cheer him up”, but he did not understand what she meant. On 26 August 2007, Miss X did not tell him that he had raped her. The 1^st applicant said that the person who suggested that they go to Causeway Bay to look for a hotel was the 2^nd applicant. In the nightclub, Miss X was in high spirits and was a bit tipsy. At the time they left the nightclub, Miss X and the 3^rd accused embraced each other and talked to each other. It appeared to him that Miss X was sober. He disagreed that Miss X needed to be helped by the 3^rd accused in order to walk. He said the 3^rd accused just put his arm round Miss X’s waist, but at that time the 3^rdaccused carried Miss X’s handbag for her. They had asked Miss X whether she wanted to go to Causeway Bay to “rent a room” in a hotel. He was sure that Miss X heard the 3^rd accused reminding the 2^nd applicant to buy condoms, and she should be able to see the 2^nd applicant holding condoms in his hand. The 1^st applicant claimed that when Miss X was in the hotel room, she was conscious and she did oral sex to him. He admitted that in the hotel he did say, “Brother-in-law, [you] should have no complaint about me.” He explained that it was only a joke, without any special meaning.

27.  He said that Miss X was not drunk after the sexual intercourse. He only handed clothes to her and she put on the clothes herself.

Defence witness

28.  The 1^st applicant called one of the persons who had joined the party at the material time to give evidence. This witness said that on that night Miss X’s behaviour was bold and uninhibited. She danced passionately, and she embraced and kissed the 3 defendants. On that night he put Miss X’s handbag in a locker. At the time Miss X left the nightclub, she telephoned him and asked him where her handbag was. At that moment, Miss X’s appearance was no different from that when she just entered the nightclub. The expression in her eyes and her tone and manner of speaking all looked and sounded normal.

The 2^nd applicant

29.  The 2^nd applicant elected not to give evidence.

Directions about intoxication and consent to sexual intercourse

30.  One of the grounds of appeal of both applicants is that Deputy Judge Pang had failed to give sufficient directions to the jury as to how they should deal with Miss X’s behaviour under the influence of alcohol. We now concentrate on this issue. Deputy Judge Pang gave the jury the following directions about the elements of rape:

“…… What the prosecution must prove beyond reasonable doubt are: Firstly, the accused specified in the charge had sexual intercourse with Miss X.  Secondly, at that time Miss X did not consent to sexual intercourse.  Thirdly, at that time the accused knew that Miss X did not consent to sexual intercourse, or was reckless as to whether Miss X consented to sexual intercourse.

Then what is ‘reckless’?  It means that the man knew that there was a risk that the woman was not consenting or might be not consenting to sexual intercourse, but he did not care and carried on anyway, when in the circumstance known to him it was unreasonable to do so.  That is to say, he took this risk knowing that it was unreasonable to do so, that is ‘reckless’.  However, if due to the man’s age or personal characteristics, he really did not appreciate or foresee this risk, then he was not ‘reckless’.

Alright, if the man at that time did believe that the woman consented to it, then how should you deal with it?  The answer is that if it is true or may be true that the man held such belief, then he is not guilty.  Even if it was a complete misunderstanding on his part, he is still not guilty.  If it is true or may be true that he believed that the woman was consenting, then he is not guilty.  Furthermore, even if the defence did not say anything about this, but if there are facts in this case which will make one think that the man was or might be in such a situation, then the prosecution has the duty to prove until you are sure that the man at that time did not genuinely believe that the woman consented to sexual intercourse.  Why?  Because the burden of proof is on the prosecution.  On the other hand, the man, that is theaccused, is not required to prove anything.  Of course, before you come to a decision on this question, you are entitled to have regard to all relevant circumstances which existed at that time to see whether there were reasonable grounds for the man to hold such a belief, or to have such a misunderstanding.  And in the final analysis, you cannot convict him unless you are sure that he did not genuinely believe that the woman consented to sexual intercourse.”

31.  The directions quoted above are basically in line with the standard jury directions designed by the Judiciary, which are:

“  Before you may convict the accused, you have to be sure of each of the following matters:

1.  that the accused had sexual intercourse with Ms [X];

2.  that at the time of that act of sexual intercourse, Ms [X] did not consent to it; and

3.  that at the time of the sexual intercourse either the accused knew that Ms [X] did not consent, or was reckless as to whether she consented to sexual intercourse. The accused was reckless as to whether Ms [X] consented to sexual intercourse if you are sure that the accused did not know and did not care whether she was consenting or not and carried on regardless. In other words, his state of mind was that he could not have cared less.

If it is or may be the case that the accused believed that she was consenting, then he cannot be guilty of rape. It is not for the accused to prove that he believed that she was consenting; rather, it is for the prosecution to prove, so that you sure, that he did not believe that she was consenting to sexual intercourse. And what if he held that belief but was mistaken? If it is or may be the case that he held a genuine but mistaken belief that she was consenting, then you must acquit him. In deciding whether or not he believed or may have believed that she was consenting, you should have regard to the existence or absence of reasonable grounds for such a belief, and to all the surrounding circumstances. But the question must always be whether you are sure that he himself did not hold such a belief.”

32.  In addition, Deputy Judge Pang reminded the jury of the positions held by the prosecution and the defence respectively as to whether Miss X consented to sexual intercourse, and gave them directions about how to deal with the evidence on this issue:

“…… The prosecution maintained that Miss X did not consent to sexual intercourse, but because she was drunk, she could not give expression to that and could not indicate any struggle or resistance either by her words or her behaviour. On the opposite side, the defence said, ‘It is not the case. It is true that you were a bit tipsy, but basically you were still sober, and at least your behaviour indicated that you were willing to have sex with all the accused. In the course of doing so, you even very actively cooperated with them.’ That’s the difference in their positions. I have explained in detail what ‘reckless’ is and what you should do if the man misunderstood the woman. My explanation is to make you understand what you should do if, I emphasize if, you are sure that Miss X did not consent to sexual intercourse and you are sure that she was unable to give expression to that, but as far as the accused are concerned, they did not clearly know that, alright?

Finally, I ask everyone of you to bear in mind that the prosecution case is very clear throughout. They said that Miss X was not capable of expressing what was in her mind because she was drunk after drinking the concoction made by mixing vodka with orange juice. There was no other reason, therefore you can only consider Miss X’s evidence on this basis. You must not go into the realm of speculation, for example, “Did anybody drug Miss X without her knowing it?”  You cannot do that, understand? I repeat, the prosecution case is that on that night Miss X was drunk. It is for you to decide whether you believe Miss X or not.”

Question asked by the jury

33.  The unusual feature of this case is that when the jury retired for deliberation, they put down in writing and asked the court the following question:

“If a person has done certain acts when he was drunk or when he was not fully sober, can these acts be accepted under the law?”

34.  When Deputy Judge Pang received this question, he first indicated to counsel that he did not understand this question from the jury:

“There’s a new question, which I don’t know how to answer: ‘If a person has done certain acts when he was drunk or when he was not fully sober, can these acts be accepted under the law?’ Who is he? It’s not specified. ‘If a person has done certain acts when he was drunk or when he was not fully sober, can these acts be accepted under the law?’ It appears that it refers to the defendants, I think, correct? Or who does it refer to?”

35.  Following that, Deputy Judge Pang asked the jury to clarify who the expression “a person” in the question referred to:

“Court: The new question: ‘If a person has done certain acts when he was drunk or when he was not fully sober, can these acts be accepted under the law?’  Right?  Who is he?  What kind of person?  Who is this person?

Foreman: Any person, if he has done any act because he was drunk, then can I consider that what he has done is something meaning [meaningful]?

Court: But who is this person?  What has he done under what circumstances?

Foreman: For example, if I was drunk and have done… for example, if I do not have the intention to…

Court: Well, please stop… I don’t understand your question, I don’t understand your question.  Mr. juror… foreman, can you go back and write clearly who you are referring to, which person in this case?  Alright?”

36.  After deliberation, the jury informed Deputy Judge Pang that they would withdraw the question. The following is the conversation between Deputy Judge Pang and the foreman:

“Foreman: Concerning the question which we asked just now, we cannot formulate it in such a way that will be fair to both parties, so we decided that we won’t ask this question any more.

Court: Do you mean you will withdraw the question?

Foreman: Yes.

Court: You won’t ask this question any more.  Then I will treat it as if the question has not been asked.”

Applicants’ position

37.  The applicants pointed out that the jury obviously had doubts as to whether Miss X consented to sexual intercourse, therefore Deputy Judge Pang should not have allowed the jury to withdraw the question. Instead, he should have given more detailed directions in respect of this issue.

Respondent’s position

38.  The respondent argued that it is not necessary that the jury’s question referred to the victim; it is possible that it referred to the accused. Besides, the respondent submitted that according to Deputy Judge Pang’s summing up and directions, if the jury considered that Miss X consented to sexual intercourse, or if it may be the case that she had indicated that she consented to sexual intercourse, then they should find the accused not guilty. Therefore, when the jury asked this question, it was certain that they had found that Miss X at the material time did not consent to sexual intercourse and that she was not able to give expression to her desire and intention. That meant that the jury had totally rejected the evidence of the 1^st applicant and the 2^nd applicant that Miss X consented to going to the hotel to have sexual intercourse with them. The jury’s question was only “If Miss X was incapable of giving expression to her intention because she was drunk, should she be protected by the law?”

39.  The respondent submitted that the central legal issue in this case is whether Miss X lost the ability to express whether she was willing to have sexual intercourse, not why she lost the ability to do so; and whether she lost the ability because of sickness, drunkenness, tiredness or other reason, that has no relevance under the law; therefore the fact that Deputy Judge Pang allowed the jury to withdraw the question would not prejudice the interests of the defendant in any way.

40.  The respondent said that the applicants should not assume that the jury had departed from the directions and had provided their own answer to the question. But even if this assumption turned out to be true, the jury could only come to one of the following two conclusions:

(1)  The jury came to the conclusion that the acts done by Miss X while she was in a completely intoxicated state as a result of her being drunk were not protected by the law.  This conclusion was clearly a misunderstanding of the law and was advantageous to the two applicants.

(2)  The jury came to the conclusion that the acts done by Miss X while she was drunk or not fully sober were still protected by the law.  This conclusion reflected a correct understanding of the law and was not prejudicial to the two applicants.

41.  The respondent further submitted that whether the expression “person” in the jury’s question referred to the 3 accused or Miss X, and for whatever reason they withdrew the question, the 3 defence counsel at that time had neither raised any objection nor requested the court to make any clarification or give any further directions to the jury. Obviously, the 3 defence counsel at that time considered that to allow the jury to withdraw the question not only would not harm the 3 accused, but might even be advantageous to them.

Further directions should have been given

42.  We do not agree with the respondent’s views, these views being too narrow. In our judgment, Deputy Judge Pang should have given further directions in response to the jury’s question. First of all, although the jury did not spell out who the drunken person was, according to the facts, the only person in these charges who had any connection with the word “drunk” was Miss X. None of the 3 accused relied on as their defence their being drunk and having done certain acts while their power of self-control was absent.

43.  The special feature of this case is that the victim consumed a large quantity of alcoholic beverages of her own accord and as a result lost her sobriety. In other words, she voluntarily intoxicated herself. This is different from a case in which the accused made the victim drunk or plied the victim with lots of alcoholic beverages so that the victim became intoxicated and subsequently molested the victim. We believe that the purpose of the jury in asking the question whether the acts done by a person when he was drunk could “be accepted” under the law or whether the acts were “something meaningful” was to ask the court to assist them in order to understand what legal effects the acts done by a person in an intoxicated state would produce. The fact that the jury asked this question demonstrated that they had doubts in this area.

44.  The issue in this case is about a victim who voluntarily consumed alcohol and, being affected by the alcohol, became intoxicated. We will limit our discussion to this aspect and will not go into a general discussion about what legal effects the acts done by a victim made drunk by the accused will produce.

45.  We are of the view that Deputy Judge Pang should have brought the following matters to the attention of the jury:

(1)  An adult has the right to choose to consume a large quantity of alcoholic beverages and there is nothing unusual about a couple of man and woman having sexual intercourse after both have voluntarily consumed a great deal of alcoholic beverages.  Provided that the intercourse is carried out with the consent of both participating parties, it is not rape.

(2)  In a case which involves a victim who was affected by her own self-induced voluntary intoxication, the question is not whether the intoxication made the victim less inhibited than she would have been if she was sober. Nor is it whether she had, while she was intoxicated, done something which she regretted afterwards. Nor is it whether she had, while she was intoxicated, behaved irresponsibly. Nor is it whether she, because of the intoxication, could not recollect what had happened.  Under these circumstances, the court must remind the jury that the most important question is whether the victim consented to sexual intercourse.  If the victim, notwithstanding the effect of the alcohol, did consent to sexual intercourse, the consent cannot be revoked or regarded as ineffective.

(3)  The basic consideration as to whether a victim had consented to sexual intercourse is whether she was able to indicate her consent to sexual intercourse.  That means if the victim lost her consciousness temporarily because of intoxication, then she did not consent to sexual intercourse.  The reason is that being unconscious, she would not be able to make the decision to consent to sexual intercourse.  Subject to questions about the state of mind of the accused, sexual intercourse under these circumstances would be rape.

(4)  Where the victim voluntarily consumed alcohol and consequently made herself drunk but nevertheless remained capable of choosing whether or not to have sexual intercourse and she indicated her consent to do so, this would not be rape.  As a matter of practical reality, before a victim becomes unconscious, she may already be unable to make a decision as to whether she should consent to sexual intercourse.  Whether this is so or not depends on the facts of each particular case.

46.  What happened in the present case is remarkably similar to the facts of R v. Bree [2008] Q.B. 131. In that case the victim, having consumed substantial quantity of alcohol in the company of the accused and two friends, vomited in the toilet. The accused helped her to clean her up. Subsequent to that, sexual intercourse took place between the two of them. The victim said that she did not want to have sexual intercourse, but she did not say so to the accused. The defendant protested that the victim consented to sexual intercourse. At the outset, the prosecution case was that because of the effect of the alcohol, the victim was unconscious and lacked the capacity to make the decision to consent to sexual intercourse. However, the prosecution later changed their stance and claimed that the victim had been conscious and capable of making the decision to consent to sexual intercourse, but at the material time she did not consent. The Court of Appeal of England quashed the defendant’s conviction of rape and made comments, similar to those set out above, on the issues of self-induced intoxication by the victim herself as a result of voluntary consumption of substantial quantity of alcohol and whether she consented to sexual intercourse. See legal commentaries on Bree:The Journal of Criminal Law (2009) 73 JCL 318-344.

47.  We believe that one of the possibilities in this case is this: The victim claimed that she did not consent to sexual intercourse and that because of the effect of the alcohol, she was unable to indicate that she did not consent to sexual intercourse. But in her evidence she said on a number of occasions that after she drank the alcoholic beverages she became “muddle headed”, “my mind was blurred”, “my state of mind became very fuzzy”, “could not use my senses at all” and that after the incident “my head was swimming”. These parts of her evidence would very likely give the jury the impression that she was unconscious when she was in the hotel and was unable to consent to sexual intercourse. That was at variance with the prosecution case. It was necessary for Deputy Judge Pang to give further directions to deal with this aspect.

48.  Another factor which might cause the jury to have the above impression is that there was no sufficiently clear direction from Deputy Judge Pang in respect of the answers given by the 1^st applicant in his evidence in response to the prosecutor’s questions about whether Miss X was conscious. This is what Deputy Judge Pang said to the jury:

“… The 1^st accused is adamant that Miss X was conscious.  The fact that she was able to do oral sex, on her own initiative, to him (namely the 1^staccused) is an example.  Well, if that’s what happened, did Miss X know that you people had video-recorded it?”

“… In relation to another similar question, the 1^st accused said that on that night he put on a condom of his own accord … Finally, the prosecutor said, “If Miss X was really conscious, she should know very well that all 3 of you had put on condoms.”  But the 1st accused said —I quote —‘I’m not sure’ ”.

49.  However, the relevant evidence is that during cross-examination when the prosecutor put to the 1^st applicant that if Miss X was conscious, then she should know that the 3 of them had put on condoms, his answer was that he “disagree”. He did not say said he was “not sure” whether she was conscious. The matter which he was not sure of was only whether Miss X knew that he had put on a condom when he had sexual intercourse with her.

“Question  :  Did you put on a condom of your own accord, or did you put it on when Miss X asked you to do so?

Answer  :  I put on a condom of my own accord.

Question  :  At that time she was fully conscious, when you put on the condom?

Answer  :  She was conscious.

Question  :  Did she see you put on the condom?

Answer  :  No, she was not looking at me when I put it on.

Question  :  That means when you were putting on the condom, she did not see that or she turned her face to one side?

Answer  :  She was having sexual intercourse at that time.

Court  :  Wait a moment please.  When you’re putting it on, she was conscious but she was not watching you put it on, right?

Answer  :  Right, right.

Court  :  She was having sexual intercourse?

Answer  :  Yes.

Court  :  With whom was she having sexual intercourse?

Answer  :  With the 2^nd accused.

Question  :  Do you mean you thought that the fact that you had put on a condom when you had sexual intercourse with her … by ‘her’ I mean Miss X … that Miss X knew that?

Mr. Lo [盧]: … … .

Mr. Lo  :Let me see what his answer is.

Question  :  Do you agree? That means you had put on a condom when you had sexual intercourse with Miss X, and Miss X was fully aware that you had put on a condom when you had sexual intercourse with her, correct?

Answer  :   I am not sureof this … the answer to this.

Question  :  Well, 2^nd accused, 3^rd accused also had sexual intercourse with Miss X, correct?

Answer  :  Correct.

Question  :  Both of them also had put on condoms, correct?

Answer  :  Should be so.

Question  :  They also put them on in the room, correct?

Answer  :  Yes.

Question  :  They also put them on in front of Miss X, correct?

Answer  :  In fact, even I myself did not notice when they put on the condoms.

Question  :  No, I mean do you agree that all 3 of you had put on condoms?

Answer  :  Yes.

Question  :  Miss X was aware of this? I am of course talking about what’s going on at that moment, not subsequently.

Answer  :  I am not sure.

…

Question  :  Why did you need to tell her that all 3 of you had put on condoms?  Wasn’t she aware of that?  She was fully con … you said she was fully conscious.

Answer  :  I explained to her what had happened.  I was not sure what she was talking about when she told me that she was upset, so I told her what I knew.

Court  :  Wait a moment.  You explained to her what you knew, right?

Answer  :  Right.

Question  :  I put it to you that if your evidence is true, I mean if Miss X was fully conscious throughout this process as you said, then you would have no need at all to tell Miss X that you and the 3^rdaccused“were both wearing condoms at that time”, do you agree?

Answer  :   I don’t agree.

Question  :  You knew very well that Miss X at that time was really drunk. She was dazed and muddled, and did not know what was going on.  That’s why you sent her this message, ‘Hey, don’t worry, at that time we had put on condoms’.  Do you agree?

Answer  :   I don’t agree.”

50.  We consider that because of the above-mentioned possibilities, there was additional reason for Deputy Judge Pang to give further directions in respect of the relevant issues when the jury asked the question.

51.  Another reason for the jury to ask the question may be that after taking into account the victim’s conduct, actions and behaviour before and during the sexual intercourse, they thought that it was possible that she consented to sexual intercourse, but they were troubled by not knowing what legal consequences her acts done under the influence of alcohol would produce. Under these circumstances, we believe it was imperative for Deputy Judge Pang to give directions and thorough explanation to the jury about the relevant legal principles, especially those relating to the mens rea of the accused.

52.  As the jury were troubled by problems concerning the acts which the victim herself had done, even though Deputy Judge Pang had given directions about “the applicants’ evidence may be true”, that could not give them any real assistance in solving the problems.

53.  While the position taken by the defence counsel is a factor which should be taken into account, we think that in this case the importance of the jury’s question far outweighs the importance of the defence counsel’s decision of not objecting to the withdrawal of the jury’s question in determining whether the convictions are safe.

Convictions are unsafe

54.  The court does not judge whether an accused has committed any criminal offence on the basis of moral standards generally accepted in the community, but on the basis of whether the prosecution has adduced sufficient evidence in relation to the elements of the offence concerned. Since Deputy Judge Pang did not give further directions to deal with particular issues when the need to do so arose (particularly further directions about the legal principles involved in the jury’s question), we hold that the convictions are unsafe and we quash the convictions. The respondent indicated that a retrial is not appropriate and it will not apply for a retrial. We think that it was a correct decision.

Other grounds of appeal

55.  There are other grounds of appeal put forward by the two applicants. The 1st applicant complained that the summing-up given by Deputy Judge Pang was not fair, that he admitted 3 sections of video-recording which had not been edited as evidence, that he allowed the jury to listen to the conversations in these footage, and that thereby he had been treated unfairly. The 2^nd applicant pointed out that the verdict of not guilty given by the jury for the 3^rd accused was an inconsistent and illogical verdict. He criticized Deputy Judge Pang for failing to present the summing-up fairly, failing to remind the jury of the defence of “genuine belief” when the jury asked him to give directions again in respect of the definition of “reckless” and failing to give directions to the jury as to what matters they should take into consideration in relation to the case of the 2nd applicant in order to determine whether the definitions of “reckless” and “genuine belief” were met. He also complained that Deputy Judge Pang, having told the jury if they found that Miss X did not make any complaint or that Miss X’s distressed appearance was fake, then they could ignore those parts of her evidence, failed to notice that such a finding would have considerable impact on the reliability of Miss X’s evidence and could create a lurking doubt in this case, thus rendering the verdict unfair.

56.  In our judgment, the crucial problem in this case is that Deputy Judge Pang failed to give further and in-depth directions as to the law regarding the voluntarily induced intoxication of the victim and whether she consented to sexual intercourse, thereby rendering the verdict unsafe. We do not find it necessary to go into other grounds of appeal except one, which is the complaint by the two applicants that Deputy Judge Pang’s summing-up was not fair. This concerned what Deputy Judge Pang said to the jury, “Although Siu Ming’s evidence cannot assist the prosecution in showing Miss X’s consistency, the defence can make use of it for their own ends.” The two applicants complained that this statement would make the jury misunderstand that the defence was making up a story and was therefore unfair to them. Our view is that the words “ make use of it for their own ends” are indeed derogatory. It means to seize on something and make an issue of it. We think that based on Mr. Fung’s evidence, the two applicants of this case could argue that the victim’s behaviour after the incident was not consistent with her allegation that she had been raped by them. They had the right to argue this and that was a substantive defence. A judge must remain impartial and use appropriate wording, particularly when he is making comments adverse to an accused, a judge should not use words which are derogatory. Deputy Judge Pang’s reference to the applicants by using the words “make use of it for their own ends” was improper. However, we do not think that Deputy Judge Pang deliberately said anything against the applicants’ defence. It was just a wrong choice of words.