HKSAR v. MA KIN YIU

[English Translation – 英譯本]
CACC 161/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.161 OF 2007

(ON APPEAL FROM HCCC NO. 170 OF 2006)

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REASONS FOR JUDGMENT

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Hon Cheung JA (giving the Reasons for Judgment of the Court):

1. The applicant was charged with one count of non-consensual buggery, contrary to section 118A of the Crimes Ordinance (“the Ordinance”), Cap. 200, Laws of Hong Kong.  He was convicted of the offence after trial before Barnes J and a jury.  He applied for leave to appeal against conviction. 

2. We heard the application on 25 April 2008.  At the conclusion of the hearing, we granted leave and, treating the application as the appeal itself, allowed the appeal and quashed the conviction.  We now set out the reasons for our judgment.   

Prosecution case

3. The particulars of offence stated that on 20 November 2005 the applicant committed buggery with a female (hereinafter called “the victim”) without her consent.

4. The prosecution’s case was that the applicant came to know the victim in 2002 through the internet.  They met afterwards and had sex for the first time at the victim’s residence.  They became sex partners thereafter.  Apart from vaginal intercourse, they both agreed to have sado-masochistic activities, which included taking turns to be tied up.

5. In late 2003, they had anal sex for the first time.  Before having anal sex, they had vaginal intercourse.  In the course of anal sex, the victim told the applicant that she felt pain and did not want to have anal sex.  The applicant then stopped the anal sex immediately. 

6. Although the victim indicated on this occasion that she was not willing to have anal sex, they still had anal sex for four to five times afterwards.  In February 2005, they had anal sex once again.  The victim first put on a dildo bought by the applicant and then inserted it into the applicant’s anus.  Afterwards, the applicant inserted the same dildo into the victim’s anus and then had anal sex with her using his own penis.   About five minutes later, the victim said to the applicant “[the penetration is] so deep [and it was] so painful”, and the applicant then stopped the anal sex.  

7. The victim came to know a new boyfriend after this occasion and so did not meet the applicant again. 

8. On 19 November 2005, the victim went to the applicant’s residence and had oral sex with him.

9. On the following day (i.e. the day of the offence), the victim went to the applicant’s residence again.  On her evidence, she visited the applicant because she wanted to have sexual intercourse with him.  The victim agreed to be tied up by the applicant with leather buckles, chains and ropes.  Her legs were tied up to her head and her body was folded up.  The applicant covered her mouth and eyes with kraft tapes and then they had vaginal intercourse.  Later, the applicant wanted to have anal sex with the victim, and he applied lubricant to her anus and his penis.  He also said to the victim something like “let me satisfy your needs first” and “how about penetrating [your] anus”.  Knowing that the applicant wanted to have anal sex, the victim started to put up struggle and said “No” to him.  At this moment, the tape covering her mouth was loosened, and she said to the applicant “No, [it is] so painful.”  Although she had been tied up, she still tried to twist her body in order to stop the applicant from conducting anal sex.  However, he did not stop his movement and forcefully proceeded with the anal sex.  Feeling painful and hurt, the victim kept saying “No” and twisting her body.  In the end, she managed to make the applicant pull his penis out of her anus.

10. Thereafter, the applicant untied the victim.  She removed the kraft tape covering her mouth and left the room.  However, soon afterwards she returned to the room upon the applicant’s suggestion and had another sexual intercourse with the applicant.  This time the victim tied up the applicant and tortured him, following which they had vaginal intercourses for twice and oral sex for once.

Defence of the applicant

11. The applicant testified that originally he intended to break up with the victim on the day of the offence and was therefore apathetic to her.  However, she took the initiative to embrace and kiss him.  She requested him to tie her up and have anal sex.  The applicant then tied her up and covered her mouth and eyes with kraft tape.  He had vaginal intercourse with her and then said to her “let me satisfy your needs first”.  Then he applied lubricant to her anus and his penis.  He testified he in fact did not want to have anal sex with her at that time and that he simply wanted “to do it perfunctorily, to perform the duty”.  He denied having had anal sex with the victim by force.  He claimed that she had agreed to do it.  On his evidence, she neither cried in pain nor put up any struggle.  However, after a while he noticed that she did not look good.  He then tore off the kraft tape that covered her mouth.  She said to him, “Not too comfortable, it’s a bit painful”.  The applicant therefore stopped having sex and untied her.  Then she played the opposite role by tying up the applicant and carried out sado-masochistic activities upon him.  Afterwards, they had vaginal intercourse and oral sex.

Directions on “genuine belief” 

12. The first ground of appeal advanced by Mr. Wong, Counsel for the applicant, was that the trial judge had declined his request to direct the jury that the applicant “genuinely believed that the victim consented to the sexual intercourse”.  The standard direction to the jury provided by the Judicial Studies Board on the issue of whether the defendant charged with a sexual offence believed that the victim consented to sexual intercourse is as follows:

If it is or may be the case that the defendant believed that she was consenting, then he cannot be guilty of rape.  It is not for the defendant to prove that he believed that she was consenting; rather, it is for the prosecution to prove, so that you are sure, that he did not believe that she was consenting to sexual intercourse.  And what if he held that belief but was mistaken? Well, 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 might 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.1

13. Although this standard direction is designed for the offence of rape, it is also applicable to other offences which involve the issue of whether the victim has consented to a sexual act.

Legal principles

14. The legal principles governing “genuine belief” are as follows:

1.   In the House of Lords case of R v Morganand others [1976] A.C. 182, Lord Hailsham of St. Marylebone held (at p. 214) that:

(1)The “actus reus” for the offence of rape is having sexual intercourse with the victim without her consent.

(2)  The “mens rea” for that offence is the defendant’s intention to have sexual intercourse with the victim without her consent.

(3)  The prosecution has to prove that the defendant had such an intention in order to have him convicted.

(4)  If the defendant genuinely believed that the victim consented to sexual intercourse, the aforesaid intention would be negated.

The principles set out in Morgan can also be extended to cover other sexual intercourses without the consent of the female victims.

2.  In Morgan, the trial judge directed the jury on “genuine belief”, in the course of which he told them that if the defendant did not have reasonable grounds for proving he had such a belief, then they must convict him.  The House of Lords held that, where the defendant genuinely believed that the victim consented to sexual intercourse, the jury could not convict him on the basis that he did not have reasonable grounds for such a belief.  In other words, the test for such a belief is a subjective one, not an objective one.

3.  As long as there is sufficient evidence for the issue of “genuine belief” to be raised, the judge has to give appropriate directions to the jury, whether such evidence or foundation comes from the prosecution or the defence.  See: Hong Kong Archbold 2007 paragraph 4-194, Morgan (at p. 214 A) and Palmer v R (1971) 55 Cr App R 223 at p. 229.

4.  In R v Taylor (1985) 80 Cr App R 327, the English Court of Appeal pointed out (at p. 330) that the court was not bound to give a direction on “genuine belief” in each and every rape case.  Whether such a direction was necessary, and whether the direction as given was fair, was to be determined by reference to the facts of the case, in particular the evidence of the victim and the defendant.  The court would give such a direction only where there was room for a defence of a mistaken belief that the victim had consented to the intercourse.  Also see R v Adkins [2000] 2 All ER 185, R v Kwok Tak Ming Danny [1996] 4 HKC 395 and HKSAR v Yiu Chi Wang CACC 582/2002.

Authorities

15. The cases cited by the parties show that, whenever the court gave a direction on “genuine belief”, there were some special elements in the case that warranted such a direction.

1) In Morgan, the defence put forward by the defendants was that they had been invited by the victim’s husband to have sex with the victim.  Their case was that the victim’s husband had told them the victim was consenting to sexual intercourse with them.

2) In HKSAR v Wong Shing Chung (CACC 66/1999), this Court (Leong JA, Woo J (as he then was) and Pang J) held that a direction on “genuine belief” was necessary in that case.  This Court said on page 7 of the Judgment: 

We do not agree that the facts of the present case did not leave room for a belief on the part of the applicant that the victim consented [to sexual intercourse].  The applicant’s defence was that he did not have actual sexual intercourse with the victim, and that any sex-related conduct on his part had been done with the belief that the victim consented to it.  He said the victim had flirted with him, that they knew each other very well, and that on the night in question they had been massaging each other for a very long time.  They had also consumed much wine and the applicant, under the influence of alcohol, might have thought that the victim consented to further intimate behaviour.  This might well be the genuine belief of the applicant at that time.  Therefore, the facts of the present case do leave room for considering whether the applicant held or might have held a ‘genuine belief’ that the victim was consenting.     

3) In HKSAR v Tsang Sai Kit [1997] 3 HKC 790, the victim had known the defendant for two days, during which they went out and had fun.  On the defendant’s evidence, they kissed and the victim offered to stay overnight at the defendant’s residence where they then had sex.  This Court (Power V-P, Liu JA and Saied J) held that a direction on “genuine belief” was necessary.

4) In R v Cheung Kin Shing and others [1995] 2 HKC 210, the victim came to know the three defendants at a bar, where they drank beer, played games and took drugs together.  Thereafter, the defendants alleged that the victim consented to sexual intercourse with them, but the victim complained she had been raped.  This Court (Yang CJ, Gall J and Stuart-Moore J (as he then was)) held that the trial judge should have given a direction on “genuine belief”.

5) In HKSAR v Yiu Chi Wang, the victim got drunk at a bar.  When she regained consciousness, she found herself lying on the defendant’s bed and had been raped by the defendant.  She had no recollection of what happened that night save that she had got drunk at the bar.  The defendant alleged that the victim consented to sexual intercourse with him.  The trial judge gave a direction on “genuine belief”.

16. On the other hand, there are cases in which the facts simply leave no room for a direction on “genuine belief”.

1) In R v Adkins, the victim was a waitress at a bar and the defendant was one of its customers.  The victim had repeatedly turned down the defendant’s invitations to take her out or his suggestions of going to her residence.  On the day in question, the defendant forcibly entered the victim’s residence and raped her.  The defendant alleged that he had sexual intercourse with her only after he obtained her consent.  The English Court of Appeal held that it was not necessary to give a direction on “genuine belief”.

2) In R v Kwok Tak Ming Danny, the victim worked in a pizza shop.  The defendant had repeatedly called the pizza shop and invited the victim out, but the victim declined the invitations.  Subsequently, the defendant called the victim again and threatened to beat up her colleagues if she did not meet him.  She therefore agreed to meet the defendant.  When they met, the defendant intimidated her by saying that he was a leading member of a triad society and that he would protect the victim and her family members.  The victim had sexual intercourse with him as she was scared of him.  He was charged with rape and intimidation.  This Court (Nazareth V-P, Mortimer and Mayo JJA) held that it was not necessary to give a direction on “genuine belief”.

The present case

17. Mr. Wong cited the aforesaid legal propositions in support of the appeal.  He submitted that, had the present case merely involved what happened on the day of the offence, he would not have invited the court to give a direction on “genuine belief”, but the facts of the present case did render it necessary to give such a direction.

18. We agree with the above submission.  It can be seen from the abovementioned authorities that directions on “genuine belief” were given in cases where the facts left room for such directions.  The present case falls within this category.  To sum up the facts, the applicant and victim were sex partners and had been maintaining this relationship for quite some time.  During this period, apart from having the usual sexual activities, they also did unusual sexual acts such as sado-masochistic sex and anal sex.  Although the victim had indicated that she was feeling painful and reluctant to have anal sex after she had this form of sex with the applicant for the first time in 2003, they did have anal sex for 4 or 5 times afterwards.  The incident most relevant to the charge was that, when they had sex for the last time prior to the offence, the victim obviously consented to anal sex.  Although they did not see each other for months after having sex on that occasion, they had sexual activities again on 19 and 20 November 2005, and the victim conceded that on both occasions it was she who took the initiative to visit the applicant’s residence and had sex with him.  The events on 20 November 2005 not only represented a continuation of their sexual relationship, but, more importantly, showed that they had vaginal intercourse, to which they both consented, before having anal sex.  Accordingly, the court could not rule out the need for a direction on “genuine belief” merely because both parties had given different accounts of how they had anal sex on the day in question.  In our view, the court had to consider the facts as a whole before determining whether a direction on “genuine belief” was necessary.  The present case did not involve the victim having been raped by a stranger.  Had this been the case, there would simply have been no room for such a direction.  In light of the facts and background of the case, we have no difficulty in concluding that there was room for such a direction.  This was because the applicant might, on the basis of his sexual experience with the victim in the past and on the day in question, have mistakenly thought that she consented to buggery.

19. Mr. Patrick Cheung, Senior Assistant Director of Public Prosecutions, submitted on behalf of the respondent that the victim might in the past have consented to other form of sexual activities but not anal sex, and hence the facts of the present case would not have given rise to a mistaken but genuine belief on the part of the applicant that the victim consented to anal sex.  Mr. Cheung also submitted that, given the applicant’s testimony that he did not intend to have anal sex with the victim at all and that he had sexual intercourse with her only reluctantly upon her request, the facts did not form any basis of a “genuine belief” on the part of the applicant.  With respect, we do not agree with this submission, which we consider sweeping and over-generalized.  In our view, whether the applicant believed the victim consented to anal sex was to be determined by reference to a whole range of factors, including their sexual relationship over the years and the sexual intercourse that they first had by consent on the day in question.  Even if the applicant had anal sex with the victim perfunctorily on that day, it does not mean he did not genuinely believe that she consented to anal sex.  The perfunctory act and the belief were not mutually exclusive.

20. Mr. Cheung raised the question of whether a direction on “genuine belief” would be needed in every sexual assault case which involved dating pairs or sex partners.  We wish to stress that we consider it necessary to give a direction on “genuine belief” in the present case solely on the basis of the facts of the case.  Our ruling on the need for such a direction is not based on a dating or sexual relationship between the applicant and the victim.  We do not consider it necessary for the court to give a direction on “genuine belief” in each and every sexual assault case involving dating pairs or sex partners.  The court does not apply the law mechanically.  This is because, even where a case involves dating pairs, a married couple or sex partners, if the facts leaves no room whatsoever for a direction on “genuine belief”, the giving of such a direction would only serve to confuse the jury.  

Question raised by the jury

21. Mr. Cheung also pointed out that, in the course of their deliberations, the jury had raised the following question: if, in the course of having anal sex with the victim, the applicant came to know she did not consent to anal sex and thereupon stopped the act, was he guilty of the charge?  The question and the direction given by Barnes J were framed in the following terms:

Judge:   Right, members of the jury, you have a question, namely whether the defendant committed the offence of non-consensual buggery if, in the course of having anal sex with PW1 on 20 November 2005, he immediately stopped the act (that is, having anal sex) as soon as he came to know that PW1 did not consent to anal sex.  Having discussed the matter, we are of the opinion that you should be given the following directions: if you find as a fact that the defendant did not know the victim did not consent to anal sex at the moment they started to have anal sex, but soon afterwards he came to know the victim did not consent to it and thereupon he immediately stopped doing it, then he did not commit the offence of non-consensual buggery because he had no knowledge of [the lack of consent] at the outset.  It is for the prosecution to prove that he must – to prove that he knew the victim – that means, first, the victim did not consent, and secondly, the defendant knew that the victim did not consent.  In other words, the prosecution has to prove that the defendant had anal sex with the victim knowing that she did not consent to it.  Therefore, if the fact as you find it is that the defendant had no knowledge at the outset and stopped immediately once he came to have knowledge, then he did not have anal sex with the victim knowing that she did not consent to it.  But of course, we do not know what your finding of fact is, and I can only tell you that as a matter of law, if you find as a fact that [the defendant] had no knowledge at the outset and then came to have knowledge during – during the course of [anal sex] and then stopped immediately, then he did not commit the offence of non-consensual buggery.  I hope this helps.  Thank you.

22. The above question, Mr. Cheung submitted, showed that the jury did consider that the applicant did not know at the beginning whether the victim consented to anal sex and only came to know in the course of anal sex that she did not consent.  Mr. Cheung submitted that the guilty verdict returned by the jury showed that they considered the applicant went on with the anal sex upon knowing that the victim did not consent to it.  Mr. Cheung added that, as the applicant did know the victim did not consent to anal sex, the possibility of a “genuine belief” simply did not exist. 

23. The jury were not required to give reasons for their verdict, and in our view one should not second-guess why they returned a guilty verdict against the applicant.  It is true that, as suggested by Mr. Cheung, the jury might have indeed considered the point mentioned by him, but it is not for the court to second-guess whether that was the basis on which the jury found the applicant guilty in the end.  In our view, although the jury used the word “know”, as Barnes J had not given a direction on “genuine belief”, the jury, in raising the question about the applicant’s “knowledge” of the lack of consent to anal sex, were still not apprised of the legal concept of a genuine belief in consent.  Furthermore, the facts of the present case were unusual in that the victim had consented to sado-masochistic activities such as bondage.  Accordingly, even the victim had put up resistance in the course of the anal sex, we cannot be sure that the jury would still have concluded that the applicant had “knowledge” of the lack of consent to anal sex had they been directed on “genuine belief”.  For these reasons, we will not hold that the present case did not involve the issue of ”genuine belief” because of the question raised by the jury and the supplemental direction given by Barnes J.

24. In our judgment, the jury’s verdict is unsafe for the reason that they had not been thoroughly apprised of the principles governing the mens rea of the offence.  As Mr. Cheung took the view that it was unnecessary for Barnes J to give the relevant direction, he did not rely on the “proviso” to uphold the verdict.  Under these circumstances, we do not have to consider whether the “proviso” can be applied.  We will only say that, even if this question were to arise, we would not apply the “proviso”.  As this Court pointed out in Wong Shing-chung:

In our view, the prosecution had to prove each and every element of the offence being charged, and one of the elements was that the defendant knew the victim did not consent to sexual intercourse or that he did not believe she consented to sexual intercourse.  The judge’s misdirection might have led the jury to think that the prosecution had discharged the burden of proving all the elements, whereas the facts of the case against the applicant did not point overwhelmingly to the conclusion that he indeed had sexual intercourse with the victim when he did not believe she consented to it.  Therefore, in our view the present case is not one in which the appeal can be dismissed by applying the ‘proviso’.

Others

25. The second ground of appeal advanced by Mr. Wong was that, in her directions to jury, Barnes J had used a number of rhetorical questions, for the purpose of deliberately and obliquely inject her own viewpoints and opinions.  Her approach, it was submitted, had affected the jury’s ability to think independently and had rendered the directions unfair.

26. As we have accepted the ground of appeal regarding “genuine belief”, it is not necessary for us to deal with the second ground of appeal.

1 (In the above standard direction, the part concerning “reasonable grounds” may have to be revised, see paragraph 14 below)