HKSAR v. CHENG CHI WAH

CACC 370/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 370 OF 2003

(ON APPEAL FROM HCCC NO. 344 OF 2002)

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J U D G M E N T

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Hon Woo JA (delivering the judgment of the Court):

Background

1. On 14 August 2003, the applicant was convicted after trial before Recorder J Leong SC and a jury in the Court of First Instance of a count of rape. The judge sentenced him to a period of 8 years' imprisonment.

2. The applicant was originally charged with two offences, namely, robbery and rape. The applicant pleaded guilty to the robbery charge but he only admitted to have indecently assaulted the complainant instead of raping her. Then he was put on trial for two counts, the first count being rape and the second count, which was alternative to the first count, was indecent assault. The particulars of the first count for rape were that on 1 May 2002 at a staircase between the 6th floor and 8th floors of Fook Wai House in a housing estate in Shatin, he raped the complainant. The second alternative count was for his indecently assaulting the complainant on the same day and at the same place.

3. Owing to the admissions made by the applicant that he had robbed and indecently assaulted the complainant on the day and at the place as mentioned in the particulars of the first count, the issue was very narrow, which was whether there was penetration. This can be seen from the facts.

The facts

4. Having spent several hours at a disco in Mongkok, the complainant was on her way home after 4 am on 1 May 2002. The applicant followed her. When she boarded a minibus in the vicinity of the disco, the applicant also got onto the bus. They travelled to Shatin where they alighted, somewhere just past the Lion Rock Tunnel.

5. The applicant followed the complainant into the Sun Tin Wai Estate, and shortly afterwards the applicant approached her with a knife. He then led her around to various parts of the estate over a period of perhaps as long as about half an hour, starting from about 5 am.

6. They eventually ended up on a staircase landing in Fook Wai House, where the applicant robbed the complainant of various items of jewellery, her mobile phone and some cash. He then proceeded to kiss and fondle her. On his orders, she pushed her jeans and her underpants down to her thighs and bent over forwards, with her feet on the landing and her hands on one of the upper steps. The applicant then inserted something into her vagina. All these were not disputed. It was also not in dispute that whatever was inserted into the complainant's vagina was moving up and down or rocking back and forth for about two minutes before it was withdrawn.

7. What was hotly in dispute was what exactly was that something which was put into the complainant's vagina. The complainant told the jury that she suspected that it was the applicant's penis, but she did not at any time actually see it. The applicant, on the other hand, testified that it was one or two of the fingers of his left hand. The complainant also said that while the moving up and down was happening, both of the applicant's hands were continuously on the top of her thighs and that she could see and feel his hands. The applicant, however, maintained that he never placed his hands on her thighs and that both his hands in fact were fully occupied elsewhere. He said that his left hand was in contact with her private parts, where one and sometimes two of his fingers were inserted into her vagina. He says that his right hand was being used to masturbate himself.

8. What happened afterwards was not much in dispute either. The applicant opened the complainant's handbag and took out with his left hand a packet of tissues, which he tore open. The applicant said that he first removed one tissue, which he used to wipe his right hand, into which he had ejaculated. He said that he then handed the same tissue to the complainant, who then used it to wipe her vaginal area. He said that he then gave her a second tissue with which to wipe herself, and that she did so, and that a third tissue was then used by her as a pad which she placed inside the crotch of her underpants before pulling them back up, together with her jeans.

9. The complainant said that the applicant had handed her three tissues and she had used them as described by the applicant. The first two tissues were then discarded on the landing where they were standing, together with the empty tissue packet.

10. The following were facts admitted by the parties pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221. Between 7:18 am and 8:20 am, a tissue packet and two pieces of tissue paper were found by the police at the staircase between the 7th and 8th floors of Fook Wai House. The piece of tissue paper that had been placed between the underpants and the private parts of the complainant was also seized. A forensic pathologist took a low vaginal swab and a high vaginal swab from the complainant in the late morning of 1 May 2002. A forensic scientist found stains of semen belonging to the applicant on all the three pieces of tissue paper, and also on the low vaginal swab and high vaginal swab taken from the complainant. The left thumbprint of the applicant was found on the tissue packet. On 5 June 2002, the complainant attended an identification parade at Shatin Police Station where she identified the applicant.

11. In her summing-up, the judge told the jury that:

"'Sexual intercourse' is penetration by a man's penis into a woman's vagina. The slightest degree of penetration is enough and it is not necessary to prove that emission or ejaculation took place." (Transcript p 5G-I).

12. The judge also drew the attention of the jury to the main dispute between the parties. She said:

"So the issue therefore, members of the jury, turns principally upon whether it was the defendant's penis or his fingers that penetrated the complainant's vagina, because there seems to be no dispute between both the complainant and the defendant that certainly something was inserted into her vagina." (Transcript p 12R-T).

Grounds of appeal

13. The defendant has written twice about his grounds of appeal, once in a document attached to Form XI which was his notice of application for leave to appeal and later in a separate letter. All his grounds are either directed at facts or arguments on facts. They can be summarised as follows:

(1)	If the complainant had actually been raped, she would have sustained some injuries in the vagina.
(2)	The complainant had consumed some soft drugs prior to the incident, and that must have affected her observations at the time of the incident.
(3)	His semen was left in the complainant's vagina through indirect means, that is, from the tissue paper which he had used to wipe his right hand into which he had ejaculated.
(4)	He could not have inserted his penis into the complainant's vagina as it was soft at the time.
(5)	The admissions that he made to the police during the interview were obtained from him by the police through threat, force and other oppressive conduct.
(6)	One or more than one member of the jury dozed off during the hearing.

14. Before us, the applicant complains that he should have been examined medically for proving that he could ejaculate without an erection, and states that that was what was happening at the time of the incident. However, he tells us that that does not mean that he was not able to achieve erection. The requested medical examination would therefore be quite irrelevant. What the applicant had told the jury was that he did not have an erection at the time when he masturbated himself. Whether there was erection and whether there was penetration would still remain a question of fact to be determined by the jury.

15. All the grounds of appeal raise, save the sleeping point, are matters of facts and evidence that were before the jury and for them to decide. The judge in her summing-up had adequately dealt with the issues and evidence and directed the jury to assess the evidence carefully to reach their own conclusions.

16. In convicting the applicant, the jury must have accepted what the complainant felt as being the truth, ie that the applicant had inserted his penis into her vagina. This was obviously supported by the complainant's testimony that in the course of the penetration both of the defendant's hands were continuously on the top of her thighs and that she could see and feel his hands.

17. The jury was fully entitled to accept the complainant's testimony and reject the applicant's. They were fully entitled to come to the conclusion that the semen of the applicant that was found on the high and low vaginal swabs of the complainant was left there in the manner described by the complainant, as opposed to what was described by the applicant.

18. Regarding the allegation that a juror or some jurors had fallen asleep, and that the judge did not stop one of the jurors from always sleeping, this allegation was never raised at the trial. Moreover, during the course of the summing-up and at the conclusion of the trial, the judge had the following to say, which goes a long way to show that the allegation is untrue:

"I turn then to the factual evidence in this case. This has been a fairly short trial and you have all obviously listened attentively to it, so I am not going to repeat it - go through it all again - now. I am just going to highlight a few areas. I am sure you have got it very clearly in your mind." (Transcript p 7B-E).

"Members of the jury, this concludes this trial. I'm particularly grateful to you for the time and the dedication that you've obviously shown to this case. It's clear that you've taken very considerable care about it, you've listened very careful over a number of days to this evidence and it's evident from the verdict that you have returned, how long and hard you have thought about this." (Transcript pp 36T-37B).

19. We have checked the summing-up carefully and found that it was expressed in clear and simple terms and there was no error of law in any respect.

Conclusion

20. For the above reasons, we consider that the applicant's grounds of appeal have no substance. There is nothing in this case which has caused us to feel that his conviction of the rape charge is either unsafe or unsatisfactory. The application must be dismissed.