R. v. CHEUNG KIN SHING and Others

IN THE COURT OF APPEAL

1994, No.102
(Criminal)

___________

____________________

J U D G M E N T

____________________

Gall J. :

1. The appellants each faced three counts of rape. On the evening of the 8th of March 1993 the complainant, aged 26, quarrelled with her boy friend and in the early hours of the next morning went to a bar. There she met a group of four men and one woman, the woman being known to her. Three of the men were the appellants. She played games of dice with them, drank beer and took a pill which she obtained from one of the appellants. The other man and woman left and the complainant remained in the bar with the three appellants.

2. In the early hours of the 8th of March 1993 the four of them left the bar and the appellants drove the complainant to the street outside her home. There she was unwilling to alight and asked the appellants for more pills. With her consent they took her to the home of the first appellant where she took three more pills given to her by the appellants. In addition she smoked marijuana. After she had taken the pill each of the appellants had sexual intercourse with her.

3. Each of the appellants admitted the act of sexual intercourse with the complainant but testified that she gave her consent to each of the acts.

4. The principal issue for the jury to decide was whether the prosecution had proved a lack of consent.

5. The evidence of the appellants made it clear that at the time of the acts each of them genuinely believed that the complainant consented to each act of sexual intercourse. It was incumbent upon the learned trial judge to direct the jury on this issue both as to the need for a lack of consent and as to the situation where an accused is reckless as to whether the victim consents to the act or not. He did so in these terms :-

"So the prosecution must satisfy you beyond reasonable doubt that (1) sexual intercourse took place and (2) the victim or complainant does not consent to it.

For reckless you must be sure that the defendant did not believe that a woman was consenting or could not have cared less whether she was consenting or not and press on regardless. That is the meaning of reckless."

6. The learned trial judge did not go on to tell the jury that where an accused holds a genuine belief that the complainant consented to the act of sexual intercourse that was a complete defence to the offence even if the accused was mistaken in that genuine belief or the genuine belief was unreasonable. His failure to give a full and proper direction must have led the jury to have considered the issue of consent on a wholly inadequate basis.

7. The proper approach is set out in R. v. Sohn Young-shek John (1990) 2 HKLR 121 at 125 where Macdougall JA. said :-

"It is essential that the jury should have been left in no doubt that a mistaken belief genuinely held by the appellant that the complainant was consenting to have intercourse with him, however unreasonable such belief may appear to them to have been, was a complete answer to the charge."

8. Each of the appellants must succeed on this ground of the appeal and we do not find it necessary to consider the other grounds of the appeal.

9. We indicated at the conclusion of the hearing that we would grant the application by each of the appellants for leave to appeal and, treating the hearing as the appeal, that their appeals would be allowed. Accordingly in respect of each appellant the convictions are quashed and the sentences are set aside.

10. The Crown applied for a retrial of this matter. As we have already indicated we do not consider that the interest of the public would be served by ordering a retrial and as we previously indicated the application for a retrial is refused.

11. We have granted the costs of this appeal to each appellant pursuant to Section 83 XX (2) and (4) of the Criminal Procedure Ordinance to include the application for bail.