HKSAR v. LAU CHI MING

CACC 617/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 617 OF 2002

(ON APPEAL FROM HCCC 272 OF 2002)

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J U D G M E N T

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Woo JA:

1. This is an application for leave to appeal against conviction lodged by the applicant on 11 December 2002. Originally he also applied for leave to appeal against sentence, but that was abandoned by a notice of abandonment dated 21 May 2003.

2. The applicant faced five counts of sexual offences and was tried before Deputy High Court Judge Wright and a jury in the Court of First Instance. The complainant in each count was a Filipino domestic helper employed by the applicant's wife to work at the couple's home in Apleichau. The first two counts charged the applicant with indecent assault on the complainant at the home on two occasions in April 2001. The third count charged the applicant for raping the complainant at the home on 29 September 2001. The fourth count was for raping the complainant and the fifth count was for indecently assaulting her, both of which were alleged to have taken place on or about 12 January 2002 also at the home.

3. After trial, the jury returned a verdict of not guilty on the first three counts, but guilty on the fourth and fifth counts.

4. The prosecution's case was that the complainant was a domestic helper in the home and the employer was the applicant's wife. The complainant completed one contract of two years during which she was on "sisterly terms" with the wife but not on such good terms with the applicant. It was during her second contract with the couple that she was subject to harassment by the applicant. She gave evidence that the applicant indecently assaulted her on two occasions in April 2001, and that he raped her on 29 September 2001. These formed the basis of the first three counts.

5. Regarding counts 4 and 5, the complainant's evidence was that on the night of 11 January 2002, she was awoken by someone, whom she found to be the applicant, kissing her lips, neck and breasts. She cried out and struggled. He held her down and removed her pyjama trousers and underpants. She described how she felt that he forced penetration into her vagina. He then moved up her body kneeling astride her chest and forced her to perform fellatio on him. Shortly after he left her room, his wife came in. The couple then pleaded with her not to report the matter. The complainant called her aunt who was working as a domestic helper somewhere else in Hong Kong. Her two calls were received by her aunt's employer before she eventually succeeded to talk to her aunt. The aunt sought advice from her own employer, and pursuant to his advice, told the complainant to report to the police. When the police arrived at the home, they found the complainant in a very agitated condition and crying.

6. The applicant was arrested for raping the complainant and after caution he said to the police officer:

"We did it voluntarily."

7. Medical examination of the complainant revealed swelling and bruising at her vaginal opening, which was suggestive of recent sexual intercourse.

8. Medical examination of the applicant revealed three superficial horizontal lacerations on the penis which "appeared to be caused by overstretching of the skin along the longitudinal axis of the penis (for example, by rubbing during sexual intercourse without adequate lubrication)".

9. The applicant did not give evidence, nor did he call any witness. He provided to the court through counsel and admitted by consent a letter of reference with respect to good character from a medical doctor known to him in his work.

10. In the amended perfected grounds of appeal against conviction settled by Mr McGowan, for the applicant, three substantive grounds of appeal are raised, namely,

(1) The judge failed to direct the jury as to the alternative defence on the 4th count, namely "consent".

(2) The judge failed to direct the jury adequately, or at all, as to the evidential value of the applicant's response on arrest.

(3) The judge failed to sufficiently direct the jury as to the significance of the applicant's good character when assessing his credibility.

11. Mr McGowan argues grounds (1) and (2) together and submits that the applicant's response to the caution upon his arrest, namely, "We did it voluntarily", was a "mixed statement" containing an apparent admission (to intercourse) and a defence (it was with consent). Mr McGowan contends that the judge did not direct the jury on the defence of consent or belief of consent at all. He submits that the forensic and medical evidence in this case is equally consistent with consensual intercourse as rape, as is the complainant's distress in being discovered by the wife in flagrante delicto with the applicant, the husband of the complainant's employer.

12. Mr McGowan refers us to R v Duncan (1981) 73 Cr App R 359 at 365 which was followed in The Queen v Chan Chi-wai and others [1992] 1 HKCLR 1, at p 6 line 25, and in HKSAR v Kong Siu-ming [2000] 2 HKLRD 449. The often-cited passage in Lord Lane's judgment in Duncan at 365 is as follows:

"Where a 'mixed' statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state. Equally, where appropriate, as it usually will be, the judge may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. Nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence."

13. Mr McGowan complains that the judge gave no guidance or direction to the jury as to how they should consider the applicant's "verbal" statement in response to the caution, and submits that the failure is fatal to the conviction.

14. Mr Madigan, for the respondent, has conceded, as was the fact, that the judge had not in his summing-up specifically referred the jury to the "incriminating" part and "exculpatory" part of the applicant's response to the caution. However, the judge did refer them to the response, and dealt very fully with the issue of consent while, at the same time, reminding the jury that the defence case was that there had been no sexual intercourse (as alleged under count 4) and that the fellatio (in count 5), which was admitted, was done with the consent of the complainant.

15. This matter will be conveniently dealt with in detail below when I consider the third ground of appeal.

16. The third ground of appeal is a complaint directed at the judge's direction on the good character of the applicant. While it is accepted that the judge had given an adequate direction on "propensity" it is contended that the judge failed to give assistance to the jury on the question of "credibility", ie, whether what the applicant said in his reply after caution about consent was or might be true, and how the jury could utilise his good character in that consideration.

17. As a matter of fact, contrary to Mr McGowan's submissions that the judge failed to direct the jury on the defence of consent, throughout the summing-up, there were many occasions where the judge squarely put consent in its fullest terms before the jury. For instance, at paragraph 45 of the summing-up, after reminding the jury that it had been denied on behalf of the applicant that sexual intercourse ever took place, the judge told the jury that if they found that there was penetration, the prosecution must prove that at the time of the sexual intercourse, the complainant did not consent to it. He went on:

"45.(3)

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

46. 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 are sure, that he did not believe that she was consenting to sexual intercourse. No one has suggested that mistake plays any role in this case in respect of the rape counts. However, since the facts are for you I am obliged to tell you what the law would be in such a situation lest you should contemplate it on the facts as you find them. What if he held such a 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 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.

47. ... In respect of the fourth count she told you that the Accused entered her bedroom around midnight on 11/12 January and again had sexual intercourse with her against her will during which she continually struggled and protested. Again it was suggested to her, in respect of the alleged rape, that no such thing had occurred, which she disputed. Thus, if you are sure, firstly, that on each occasion sexual intercourse did take place, secondly, that [the complainant] did not consent and, thirdly, the Accused knew she did not consent or was reckless as to whether or not she consented, then the charge is proved. If you are not sure of any one of those ingredients, you must return a not guilty verdict on the particular incident that you are considering."

Again, when dealing with the indecent assault alleged in count 5, the judge (at paragraph 50 of his summing up) dealt with consent as an ingredient of that offence saying:

"If you think (the complainant) did or even may have consented in any of the instances charged, then again you must acquit. The law in relation to the issue of consent in cases of indecent assault is no different from the law of consent in cases of rape about which I directed you a few moments ago. Bear in mind what I have just said to you about mistaken belief, too".

The judge then went on to direct the jury:

".... It was also put to (the complainant) that in respect of the fifth count alleging indecent assault, on 12 January 2002, this was not an assault upon her because such that occurred was consensual: this count relates to her performing oral sex on him. She denied this suggestion. So, if you are sure, in respect of each such incident, firstly, that the alleged act was deliberate and happened as described by (the complainant); secondly, that the circumstances in which it happened were indecent; and thirdly that (the complainant) did not consent and the Accused knew she did not consent or was reckless as to whether she consented or not, then the charge is proved. If you are not sure of any one of those ingredients, you must return a not guilty verdict on the particular incident that you are considering."

18. After detailing the evidence on counts 4 and 5, the judge further said:

"127. In regard to count 4 you will have to decide, firstly, if the sexual intercourse did occur at all; then you will have to decide, secondly, if so, whether it occurred without [the complainant's] consent, although you are unlikely to have too much difficultly with that; and then you will have to decide, finally, whether that lack of consent was known to the Accused or whether he was reckless, although if you find it did occur you will likely find that she protested and cried which may satisfy you that the Accused knew she was not consenting.

128. In regard to count 5, you will have to decide, firstly, whether the Accused did put his penis into [the complainant's] mouth; then you will have to decide, secondly, if so, whether that conduct was indecent; and then you will have to decide, finally, whether it occurred without [the complainant's] consent, a fact which was known to the Accused or about which he was reckless, although if you find it did occur you will likely find that she protested and cried which may satisfy you that the Accused knew she was not consenting."

19. Regarding the applicant's response to the caution and his good character, the judge said:

"54. In deciding whether the prosecution has made you sure of the Accused's guilt, you should have regard to the fact that he is a man of 40 of good character. Of course, good character cannot by itself provide a defence to a criminal charge but you should take it into account in his favour in these ways: firstly, even though he has chosen not to give evidence before you, you will recall that he responded to the caution administered to him at the time of his arrest. In considering the response and the weight, if any, you should give it you should bear in mind that that response was made by a person of good character; secondly, the fact that he has reached the age of 40 without committing an offence may mean that he is less likely than otherwise might be the case to commit this crime now. You have also heard the content of a letter written by a person known to him in his work telling you about him. This, too, is a matter which you should take into account.

55. I have said that these are matters to which you should have regard in the Accused's favour. It is for you to decide what weight you should give to them in this case. In doing this you are entitled to take into account everything you have heard about the Accused."

20. On the good character direction, Mr McGowan refers us to what Litton PJ said in TANG Siu-man v HKSAR, FACC No. 1 of 1997 (11 March 1998, unreported) at page 18:

"The Court of Appeal held that ... once the judge had decided to give a good character direction, he should have given an adequate one, and what the trial judge had said was not enough. Rightly so.

The Court of Appeal in Hong Kong has never adopted in terms the rule of practice in Vye, preferring to leave the matter to the good sense and judgment of the trial judges: remembering always that, at the end of the day, the summing-up must be fair and balanced, and any doubt must be resolved in the defendant's favour...."

21. On the other hand, Mr Madigan refers us to Litton PJ's other observations in the same judgment, at pages 24-25 of which he said:

" As enshrined in Vye and Aziz, the two 'limbs' [credibility and propensity] would appear now to have equal weight in the eyes of the courts in the sense that when a good character direction is required, then (if the defendant has made a pre-trial statement or had testified or both) both limbs must be stated by the judge. This goes against the earlier trend - for example Berry at 166-F - which gave primacy to the credibility limb. The Vye rules, applied in practice, might be highly artificial. They might amount to no more than the incantation of a well-worn formula. The need to heavily qualify the direction, to avoid an affront to common sense, might make the words virtually meaningless. This is liable to induce cynicism and despair on the part of trial judges, and lower the standing of the law in the eyes of the juries. It might also confuse the jury.

Further, the 'credibility' direction must be given according to Vye even if the defendant did not testify, so long as the prosecution has put before the jury a 'mixed' statement and the defendant is, through counsel, relying on the exculpatory portions of it. The probative value of the statement might be virtually nil: It might be more consistent with common sense, and perhaps more favourable to the defendant, for the judge to focus on, and emphasize, the 'propensity' limb, ignoring the 'credibility' limb altogether. The Vye principles take away from the judge this flexibility."

22. Litton PJ's conclusion, at page 29 of the judgment, was:

"At the end of the day, the summing-up will be looked at by the appellate courts to see if it is fair and balanced. That is the ultimate test."

23. In his summing-up, the judge did not specifically analyse the applicant's response to the caution as containing an "exculpatory" and an "incriminating" part. If he had and, as suggested by Lord Lane in Duncan, had pointed out to the jury that the incriminating part was likely to be true, whereas the excuse (of consent) did not have the same weight, it would in my view be more disadvantageous to the applicant's case than not referring to the response at all.

24. It is to be noted that in paragraph 54 of the summing-up, cited above, the judge did ask the jury to bear in mind that the response was made by a person of good character and that the jury should take into account the applicant's good character in his favour. He stressed that the jury should have regard to these matters in the applicant's favour in paragraph 55. I do not consider in the present circumstances, that the judge was in breach of his duty as the directions were fair to the applicant in their overall effect. In particular, the admission that there had been sexual intercourse was not disputed and on the issue as to whether this was a voluntary act on the part of the complainant, it was the applicant's propensity, or lack of it, rather than his credibility which had primarily to be considered by the jury.

25. Having examined the summing-up very carefully, and especially in view of the judge's emphasis to the jury of the required burden and standard of proof and his continual reminders to the jury of the importance of the applicant's knowledge of absence of consent on the part of the complainant, I find the summing-up was neither unfair nor unbalanced.

26. Having regard to the arguments advanced on the applicant's behalf, I would grant leave.

27. For the above reasons, treating the hearing as the appeal, I would dismiss the appeal.

Stock JA:

28. The questions in this appeal are whether or not the trial judge directed the jury, adequately or at all, that the defendant's assertion, when arrested by the police, that the complainant had consented to sexual intercourse - for that was the clear essence of his reply - was to be treated by them as evidence of the truth of that assertion, and whether it was brought home to this jury, adequately or at all, that in this case, that defence was a live issue.

29. The suggestion at [17] above that '... contrary to Mr McGowan's submissions that the judge failed to direct the jury on the defence of consent, throughout the summing up, there were many occasions where the judge squarely put consent in its fullest terms before the jury,' does not, in my respectful judgment, reflect the gravamen of the complaint. Furthermore, such directions as were provided by the trial judge on the question of consent were, overwhelmingly, general directions as to the law of rape and what it was that, in rape cases generally, had to be proved in order to establish the commission of that offence. Those directions as to the constituent elements of the offence are to be distinguished from those parts of the summing up which tell the jury what is and what is not evidence (including repeated directions that what is said outside court, not adopted in court, is not evidence of the truth of the out of court statement); from the summing up of the evidence itself; and from an indication by the judge that, if sexual intercourse were proved, in relation to the fourth count, consent was not truly an issue in this case.

30. The statement made by the applicant to the police was on made very shortly after the alleged rape. There was no question on the facts but that sexual activity of some kind had taken place. Indeed, that was never in issue. There was, as a reading of the summing up illustrates, and as the sense of the judge's own asides suggest, very strong evidence that sexual intercourse had taken place. In these circumstances, the applicant's answer upon his arrest for rape, made when little time had passed to enable him to think matters through, and made at the very place of the incident itself, was, one would have thought, an important piece of evidence.

31. The statement was a mixed statement:

(1) it was inculpatory in that it contained an implicit admission that sexual intercourse had taken place; but

(2) it was exculpatory in that it contained an assertion that intercourse had been consensual.

32. The law of evidence normally precludes the admission of hearsay evidence, that is, evidence of a statement made by a declarant otherwise than in the course of the proceedings where it is intended thereby to establish the truth of the statement made. An exception to the rule is where the declarant has made a statement against interest. So in the case of a mixed statement, partly against interest, and partly exculpatory, the purist approach, as it has been called in R v Aziz [1996] 1 AC 41, 49, might dictate that only that part of the statement which is inculpatory is admissible as evidence of its truth. That approach has been rejected as unworkable, and it is now settled law, applied in Hong Kong, that the exculpatory part is evidence of its truth, although the weight to be afforded to the excuse is normally less than that attached to the incriminating part: see R v Duncan (1981) 73 Cr App R 359, 365; R v Sharp (Colin) [1988] 1 WLR 7; R v Aziz [1996] 1 AC 41, 48-50; HKSAR v Kong Siu-ming [2000] 2 HKLRD 449.

33. It follows from these principles, as well as from the well-known passage in Duncan which is cited at [12] above, that in cases which feature mixed statements a judge should:

(1) normally, tell the jury that the whole statement must be considered by the jury in deciding where the truth lies, with such proviso as may be appropriate as to the weight to be given to the different parts; and

(2) never tell the jury that the exculpatory part of such a statement is not evidence of the truth of its content.

34. In my judgment the trial judge in the present case was in error in both respects. Not only did he not give the standard Duncan direction, but, more importantly in the context of this case, of the issue at its centre, and of the way in which it was run, he did not tell the jury that the statement of the applicant was evidence of its truth and, instead, left them with the impression that it was not. Thus:

(1) The judge directed the jury, correctly, that they were to decide the case only on the evidence (para 6 of the summing up); and in the course of the summing up, and at various stages of it, having emphasized at para 26 that "You have undertaken to try this case according to the evidence", itemized for their benefit what constituted and what did not constitute evidence;

(2) He told them (para 10) that the fact that the applicant had not given evidence meant '... that there is no evidence from the accused to undermine, contradict, or explain the evidence put before you by the prosecution' (Emphasis added). That is a statement that was repeated immediately after reviewing the evidence (para 130) and towards the close of the summing up. In a technical sense the statement was correct, in that what the applicant had said in his defence to the police was part of the evidence presented to the court by the prosecutor and not by the applicant. Yet that is a fine point which no jury can be expected to appreciate, and the fact is that there was admissible evidence which had emanated from the mouth of the applicant which did contradict the other evidence put before the court by the prosecutor, and contradicted it upon a crucial issue.

(3) The judge rehearsed those matters which did and which did not constitute evidence, one of which was the category of suggestions made in cross-examination, and he told the jury that whereas it had been put to the complainant that in the period of her employment she had initiated physical contact with the applicant on dates that were put to her, she denied those suggestions and the judge emphasised that the suggestions were not evidence and that 'there is no evidence to contradict her rejection of those suggestions' (para 70) (any emphasis). In a sense that, again, was strictly speaking correct for the statement made to the police made no suggestion - certainly no express suggestion - of earlier intimate contact at the complainant's instigation; yet the direction underscores the contention that only evidence from the applicant in court could constitute contradictory evidence.

(4) The judge directed the jury that statements made on a previous occasion, 'not in this court', were not evidence of the facts contained in the statement (para 26):

"... if on a previous occasion, not in this court, the witness states that he or she had done something, or seen something, or heard something, that is not evidence that he or she in fact did that or in fact saw that, or in fact heard that ... What you may not do is use the contents of the previous statement as evidence of the truth that the events as stated in that statement are true and correct..."

That, generally speaking, is correct. It is not correct in relation to a relevant and admissible out-of-court statement made by a defendant. It was, moreover, a direction reinforced (at para 115) by a later example that what Madam Wan, the applicant's wife had said to the police had, in the absence of its adoption by her in court as a witness '... no value as evidence before you'. Nowhere at all did the judge qualify these oft repeated directions reference to the statement of the applicant to the police.

(5) In addition, and importantly, the impression that consent was not a live issue was conveyed most starkly by the following comments made by the judge:

"127. In regard to count 4 you will have to decide, firstly, if the sexual intercourse did occur at all; then you will have to decide, secondly, if so, whether it occurred without (the complainant's) consent, although you are unlikely to have too much difficulty with that; and then you will have to decide, finally, whether that lack of consent was known to the Accused or whether he was reckless, although if you find it did occur you will likely find that she protested and cried which may satisfy you that the Accused knew she was not consenting." (Emphasis added).

The phrase "although you are unlikely to have too much difficulty with that" was clearly intended to say that if indeed intercourse took place at all, it was almost a given that it took place without consent. It was a comment made as if the applicant's contention upon arrest had no place in the case.

The combined effect of the summing up therefore was to deprive the applicant of the evidential status of his response to the accusation of rape; and that, in my judgment, constituted a material error which renders the convictions on Counts 4 and 5 unsafe.

35. It is said at [23] above that had the judge provided a Duncan direction, it would have been more disadvantageous to the applicant's case than silence about the applicant's response upon his arrest. That sentiment arises from the fact that the defence as put to the complainant was that no intercourse had taken place at all; and the suggestion is that that defence would have been undermined by reference to the mixed statement and to the status of its constituent parts. I do not agree. There are cases where a defence should be addressed in the summing up even though it is not the issue joined between counsel for the parties or otherwise adopted by or for the defendant as his core defence. The point is discussed in Blackstone's Criminal Practice 2003, at paragraph D16.14:

"One of the dilemmas in the adversarial system is that the defence may not raise all the issues which would assist the accused. Sometimes the reasons are tactical, sometimes it is due to inadvertence. Yet it would be wrong for the accused to be convicted in these circumstances. So there is something of a burden upon the judge (notwithstanding the adversarial basis of the system) to intervene in certain circumstances to the extent of raising an alternative defence in his summing up. He is presenting the jury with a possibility which neither side has argued as part of its case."

36. Whilst in the present case the issue of consensual sexual intercourse was not the case put by the defence at trial, it quite obviously arose on the evidence. The applicant admitted through cross-examination that oral intercourse had taken place but asserted that that was consensual. His immediate response to the police accusation of rape had been that what had transpired was with the complainant's consent. The evidence that sexual intercourse had in fact taken place on 12 January was, regardless of the complainant's own testimony, overwhelming, and was to be found in compelling medical evidence (a summary of which is at paras. 124 to 126 of the summing up) and the applicant's own admission on arrest; and it is this evidence, independent of the complainant's, that no doubt drove the jury to convict on Counts 4 and 5 but to acquit on those counts for which there was no independent support. The suggestion put in cross-examination that there had been no intercourse had no evidential backing, whereas there was evidential support for the suggestion that there had been intercourse. The reality, therefore, is that the only defence that had any chance of success was the defence of consent, and the further reality is that that had been raised by the applicant on arrest. Whilst one cannot be sure what drove the applicant not to press that defence at trial, it is not difficult to guess at an understandable reason or two. The applicant was at all material times a married man, and the notion that he wished, in the hope of salvaging something of the marriage, to minimize what activities had taken place, is not far fetched. It is in these circumstances that I say that the manner in which the issue of consent was addressed by the judge was unsatisfactory in that:

(1) he failed to direct the jury that, as an exception to the rule about out-of-court statements, the applicant's statement constituted evidence of its truth; and

(2) he clearly intimated ("you are unlikely to have too much difficulty with that") that in this case consent was not really a live issue.

37. A direction could in my judgment quite readily have been fashioned which imported the defence of consent as a live issue, and which at the same time would not have offended the realities or the justice of the applicant's cause. In so far as it had to address two different defences, that part could have run along the following lines:

"The defendant has not given evidence. He was not obliged to do so. That does not mean he is guilty. The prosecution must still prove its case, and it is for you to determine on the evidence that you have heard whether that case is or is not proved. The defendant has, through his counsel, put to the witness that there was no sexual intercourse at all. He has not supported that contention with evidence, but if that is true or if it may be true, then he must be acquitted. However there is evidence from him, although not in court, that Ms [X] consented to what had transpired. The answer which he gave to the police contains an admission as well as a denial. The admission is that there was sexual intercourse. The denial is that he used force. He said to the police that intercourse was consensual. That is an assertion which as a matter of law is evidence and which you must consider. Although it is not a statement made in court, it is made by the defendant and is therefore evidence in the case; and furthermore was his immediate reaction to the accusation. If you take the view that it was true or may have been true, then the defendant must be acquitted."

There could then have followed, or there could have been inserted, the usual Duncan formula about weight.

38. Then it said (at [24] above) that the judge did indeed ask the jury to bear in mind the applicant's statement to the police. The passage to which reference is there made is para 54 of the summing up which runs as follows:

"54. In deciding whether the prosecution has made you sure of the Accused's guilt, you should have regard to the fact that he is a man of 40 of good character. Of course, good character cannot by itself provide a defence to a criminal charge but you should take it into account in his favour in these ways: firstly, even though he has chosen not to give evidence before you, you will recall that he responded to the caution administered to him at the time of his arrest. In considering the response and the weight, if any, you should give it you should bear in mind that that response was made by a person of good character; secondly, the fact that he has reached the age of 40 without committing an offence may mean that he is less likely than otherwise might be the case to commit this crime now. You have also heard the content of a letter written by a person known to him in his work telling you about him. This, too, is a matter which you should take into account."

That passage does not in my respectful opinion cure the omission which lies at the heart of this dissent. It is a passage about the relevance of good character. It is not part of that section of the summing up which tells the jury what constitutes and what does not constitute testimony. It is not part of those passages to which I have referred which deal with the issue of consent and which refer to the total lack of evidence from the applicant to counteract the complainant's assertions. It does not explain what status the answer to arrest has as a matter of law, nor how this direction sits with the direction that statements made out of court and not repeated in court are not evidence of their truth, and it is therefore difficult to see what a lay jury was to make of it, not least in the light of the judge's later comment that they were unlikely to have difficulty with the issue of consent.

39. I have had the advantage of reading in draft the judgment of Stuart-Moore VP. Subject to emphasising that a summing up must correctly state the law and the issues, I endorse his comment that a summing up is not addressed to a panel of lawyers attuned to the subtleties of legal jargon; as well as the implication of his comment, which is that a summing up should be assessed by the true likely impact upon a group of lay persons, rather than for its academic excellence or purely technical accuracy. A good summing up is a difficult exercise, for it requires accuracy of law as well as fashioning to the facts of a case and, in particular, comprehensibility to the layman. Those of us accustomed to addressing juries whether as advocates or as judges will know that the mere regurgitation of set directions without moulding to the case itself carries a danger of being an academic exercise inimical to the interests of justice.

40. Equally, those accustomed to addressing juries are aware of the potential power of a summing up and its nuances, are familiar with the standard structure of a summing up, and of standard formulae used by judges to convey one message or another, and are conscious of the need to ensure, precisely because one is addressing those wholly unfamiliar with the law, that a jury specifically exhorted to remember their undertaking to try the case only in accordance with evidence properly so called, understands accurately what constitutes evidence, and what are the live issues in the instant case and, most particularly, what are the live issues raised by a defendant.

41. It is exactly in recognition of the inexperience of juries that it does not suffice, in my judgment, to point merely to that part of the summing up where the judge directs as to the main ingredients of the offence, and to assert from that that consent was left, not merely as an ingredient to be proved, but as a live issue. And it does not suffice to point next to a passing comment about weight, buried in the context of a direction about good character, and to say from that that this brought home to this jury the fact that, whereas they been told that they were to decide the case upon evidence only and that statements out of court did not enjoy the status of evidence, this rule did not apply to the statement made by the defendant on his arrest, and that this adequately qualified the directions (see [34] above) that there was no evidence to contradict the complainant's testimony.

42. Stuart-Moore VP has described the judge's statement that the jury was unlikely to have too much difficulty with the issue of consent as a 'weighted comment' and as ill-advised (para [68] below). I think that it goes further than that. It is a specific formula to which we are well accustomed, a formula conveniently and regularly used by judges in relation to questions (for example, whether death resulted from a shot; whether the possession of drugs was covered by lawful authority) which are clearly not in issue. A comment of that sort is to be contrasted with those by which judges express scepticism about testimony or about a submission with phrases such as: 'If that had been the case, you may wonder why...; but it is a matter for you'. The latter type of statement is a weighted comment, and may or may not be ill advised. The comment to a jury that it is likely to have little difficulty about the issue of consent is the type of comment, or device, verging on a direction, that one only expects where consent is obviously not an issue in contention. It is a comment destined to reinforce rather than counteract such suggestions as were made that there was no evidence of consent.

43. This was a case in which the jury acquitted the applicant of three of the five counts on the indictment, and convicted him by a majority of 5-2 on the counts with which we are now concerned, the only counts in respect of which there was independent evidence of sexual contact between the applicant and the complainant. The issue of consent was at the heart of both counts, wherefore the errors upon which I have concentrated must be viewed, in my judgment, as material and ones that render the convictions unsafe. Although in relation to Count 5 the applicant admitted, through counsel's cross-examination, that there had been sexual contact and asserted that it had been consensual, so that the defence approach to that count was different from that in respect of Count 4, the safety of the conviction in relation to Count 5 remains tainted in my view because at its heart was also the issue of consent, and the jury was in effect told that there was no evidence to support that defence.

44. It is in the event unnecessary for me to address at any length the Vye direction issue. I would say only that I do not think that the direction given was adequate. In saying to the jury that "in considering the response [to the caution] and the weight you should give it you should bear in mind the fact that that response was made by a person of good character", the judge did not explain what he meant by that. The significance of the fact of good character was the credibility of the response; yet that was not said, perhaps because the judge did not wish to highlight that response for fear of undermining the defence put in cross examination. If that was the reason, it is one with which, for reasons I have given, I cannot agree.

45. Mr Madigan for the respondent suggests that if there was error by the judge, then the proviso to section 83 of the Criminal Procedure Ordinance should be applied. This in my judgment is hardly an appropriate case for that.

46. Accordingly, I would grant the applicant leave to appeal and treating the hearing of the application for leave as the appeal, I would allow the appeal, and quash the convictions in relation to Counts 4 and 5 of the indictment, set aside the sentences, and order a retrial on both counts.

Stuart-Moore V-P:

47. The Applicant was convicted, on the last two counts of a five-count indictment, which respectively alleged the rape and indecent assault of his domestic helper (the complainant). These offences were said to have occurred on about 12 January 2002, depending on which side of midnight they took place.

48. On the three earlier counts, alleging two further offences of indecent assault and one further offence of rape between April and September 2001, the Applicant was acquitted. The evidence on these counts, in contrast to the position on counts 4 and 5, wholly depended on the complainant's testimony, unsupported by any other source.

49. I have read the judgment of Woo VP (as, at the time of writing, he now is) and I agree with his conclusions. The facts are fully set out by him and it is, therefore, unnecessary for these to be rehearsed again.

50. I have also read Stock JA's judgment. With regret, I have to say that I am unable to agree with his conclusions. This is not to say that I disagree with his analysis of the law, in the fine detail into which he has gone or, for the reasons which Stock JA has identified, that I consider the summing up was as happily phrased as it might have been.

51. However, a summing up is not, of course, addressed to a panel of lawyers, with their finely tuned knowledge of the subtleties of legal jargon. A jury, composed of laymen, requires a set of rules, expressed in terms which are readily understood, to enable them to decide, in accordance with the law, the important issues in the trial along the path leading to their eventual verdict. Whilst it may be that many of the directions which are given to juries follow a fairly standard pattern, a judge has a wide discretion to mould those directions in order to cater for the particular facts of the case in hand.

52. Sometimes the directions are imperfectly expressed and occasionally mistakes are made or omissions occur. Not always are these sufficiently serious for a verdict to be upset or for the proviso to section 83 of the Criminal Procedure Ordinance, Cap. 221, to be applied. What is more or less fundamental for a summing up to withstand the scrutiny of an appellate court is that the law has been adequately explained to the jury, that the issues in the trial have been correctly identified and that the overall effect of the judge's words reveal a fairness and balance which will enable the jury, in its approach to the issues they must decide, to have proper regard to the principles which the judge has explained to them.

53. In this case, on count 4 there were two real issues. The first was whether the prosecution had proved that sexual intercourse had taken place. If this was established, secondly, the jury had to be satisfied that the complainant had not consented to that act. On count 5, the only real issue was consent as it was not disputed on the Applicant's behalf at trial that he had engaged in an act of oral sex with the complainant.

54. How did the judge deal with these issues? The directions in respect of the law to be applied to rape and indecent assault were set out in the terms cited in paragraphs 17 and 18 (above).

55. It is not suggested that these directions failed in any sense to describe with precision and clarity the ingredients of each offence in law. In particular, so far as the rape in count 4 was concerned, the judge explained that although it had been suggested to the complainant that "no such thing had occurred", if they were sure that sexual intercourse had taken place, they must also be satisfied of lack of consent on the part of the complainant and that the Applicant either knew consent had not been given or was reckless as to whether she consented or not.

56. On the fifth count, the judge reminded the jury that it had been suggested that the complainant had consented to the acts she had described as having taken place and he directed the jury that:

".... If you think that (the complainant) did or even may have consented in any of the instances charged, then again you must acquit. The law in relation to the issue of consent in cases of indecent assault is no different from the law of consent in cases of rape about which I directed you a few moments ago. Bear in mind what I have just said to you about mistaken belief, too." (Appeal bundle p. 16)

57. Thus far, the directions were immaculate.

58. In dealing, shortly thereafter, with other legal aspects of the case, the judge went on to give the directions in relation to the Applicant's previous good character. These are relevant to the third ground of appeal and they are set out at paragraph 19 (above). This direction, insofar as it concerned credibility, related to the single answer given by the Applicant after he had been arrested for rape and cautioned. There was nothing else said by the Applicant for the jury to consider. As the judge said, when pointing this out:

"In considering the response and the weight, if any, you should give (the answer after caution) you should bear in mind that that response was made by a person of good character...." (Appeal bundle p. 18)

59. It was quite plain, in my opinion, from this simple statement of law, inviting the jury's attention to the Applicant's good character in relation to his single utterance to the police, that this was a consideration to be borne in mind when they considered the credibility or "weight, if any," of that reply. The word "credibility" may not have been used but the meaning was abundantly plain.

60. Having dealt also with the "propensity" aspect of the "good character" direction, again choosing simple language to describe the significance of a person aged 40 who had not previously committed an offence, and having reminded the jury of the character reference contained in a letter about the Applicant, the judge went on to say:

"I have said that these are matters to which you should have regard in the Accused's favour. It is for you to decide what weight you should give to them in this case. In doing this you are entitled to take into account everything you have heard about the Accused." (Appeal bundle p. 18)

61. When Mr McGowan complained in his third ground of appeal that the judge failed to direct the jury sufficiently as to "the significance of the Applicant's good character when assessing his credibility", no doubt the judge could once again have spelt out the Applicant's words: "we did it voluntarily" (as he did later in the summing up) rather than adopting the formula that the jury would "recall that he responded to the caution administered to him at the time of his arrest". In this context, it has to be remembered that the police officer's notebook recording this answer had been exhibited (P. 36 and P. 36a) and a sensible jury could not have failed to understand the meaning of the judge's words.

62. I have little doubt that the judge had considered with some care how he could direct the jury on the issue of credibility without appearing to destroy the way the defence to the rape count had been run throughout this short trial. The judge's summary of the way the defence had been put was as follows:

"When (the complainant) was cross-examined concerning this incident (count 4) it was suggested to her that there had been no sexual intercourse on this occasion either; that there had been mutual bodily fondling; that she had indicated by gestures that the Accused should put his penis in her mouth; that he did so (count 5) and then ejaculated into her mouth; that as he tried to leave the bed Madam Wan entered the bedroom....." (Appeal bundle p. 35)

63. I consider that the judge's formula in dealing with credibility was explained to the jury as well, in these difficult circumstances, as it could have been. Furthermore, in a case of this kind, where a one-line answer is all that has to be considered in the context of a defendant's credibility, it is inevitably a somewhat artificial direction for a judge to have to give. The way in which the judge dealt with this, at least lent some dignity to the "credibility" direction without at the same time giving the appearance of undermining the basis of the Applicant's defence at trial that sexual intercourse had never taken place.

64. Turning to the second of Mr McGowan's grounds, here he complained that the judge had "failed to direct the jury adequately, or at all, as to the evidential value of the Applicant's response on arrest." It is true, as Stock JA has stated at paragraph 34 (above), that the judge did not say to the jury that "the statement of the applicant was evidence of its truth" but the phraseology adopted by the judge would, in my opinion, have been just as meaningful to the jury as the adoption of the formula suggested in paragraph 37 (above).

65. More importantly, I do not consider that the judge said anything to the jury which could have left them with the impression that the Applicant's oral statement to the police was not evidence which could be considered by them when deciding where the truth lay. Indeed, in the passage I have cited at paragraph 58 (above) the jury had been told to consider the response the Applicant had given to the police and the weight they should give to it. In contrast to that direction, the judge set out the legal position relating to the Applicant's failure to give evidence, the questions put in cross-examination by counsel for the defence which had not been adopted by the complainant and the parts of witness statements which the jury had heard read out which had also not been adopted. These were specific directions, correctly given, which were plainly directed solely at those issues. There could, in my opinion, have been no confusion on the jury's part that the Applicant's answer after caution was something which should be considered as part of the evidence.

66. Finally, turning to the first ground of complaint that the jury was not directed as to the "alternative defence on the fourth count, namely consent", this was a case, as Stock JA has pointed out in paragraph 36 (above), which provided strong evidence that sexual intercourse had taken place on 12 January 2002. I am not sure that the evidence of this was "overwhelming", as he puts it, in the light of the evidence that no semen was found in or near the complainant's vagina. Nevertheless, the Applicant had allegedly admitted it in his initial response to the police and there was persuasive medical evidence to that effect to support the complainant's account.

67. When dealing with the ingredient of consent for the second time in the summing up, in a passage cited in Stock JA's judgment at paragraph 34(5), the judge reminded the jury that, firstly, they had to decide whether sexual intercourse had occurred. If it had, then, secondly, the jury would have to decide whether it had occurred without the complainant's consent, adding: ".... although you are unlikely to have too much difficulty with that; ....".

68. I agree with Stock JA that, realistically, consent rather than whether sexual intercourse had taken place at all was more likely to have been the issue to have given the jury cause for concern on count 4, particularly as it was the sole issue on count 5. In these circumstances, the use of such a weighted comment, when directed at a live and central issue in the case was, with respect, ill-advised. Such a formula, which carries a special meaning to lawyers, should be reserved for situations where an undisputed matter has nevertheless to be decided by the jury. This will be so in spite of any direction, as twice used in the present case (see: paragraphs 5 and 57 of the summing up), that the jury should reject the judge's view of the evidence if they were in disagreement with it. This being said, it is apparent that the issue of consent was at no stage withdrawn from this jury and remained an essential ingredient of the offence which had to be proved. To this extent, if the spotlight is taken away from this unfortunate and misplaced phrase in the summing up, I am satisfied that the trial including the summing up, looked at overall, was a fair one.

69. Mr McGowan very ably and sensibly ran the arguments he advanced under grounds 1 and 2 together, pointing to the fact that it was the Applicant's statement: "we did it voluntarily" which was the sole cause for the issue of consent (on count 4) to have arisen in the first place. However, for the reasons set out in paragraphs 17 and 18 (above), I take the view that the complaint (in ground 1) that the judge "failed to direct the jury as to the alternative defence on the fourth count, namely consent" is simply not made out.

70. Despite the observation which I have earlier expressed as to the inappropriateness of the comment added by the judge, the jury was, in my opinion, fully directed as to this issue and could not have failed to understand precisely what the prosecution had to establish to their satisfaction on counts 4 and 5. Moreover, it is perhaps worth adding that in a most thorough review of the points raised in the cross-examination of the complainant (see: paragraphs 61-72 of the summing up), the judge related numerous suggestions which had been made to her, relevant to the issue of consent, which had not been adopted by her. In my view, if the jury found that sexual intercourse had taken place, they could have been left in no doubt that the complainant's lack of consent to it also had to be established. A full reading of the summing up reveals that this had been dealt with comprehensively.

71. While I would also grant leave, treating the hearing as the appeal, I would dismiss the appeal against conviction on both counts.

Conclusion

72. Leave will be granted but, treating the hearing as the appeal, by a majority we dismiss the appeal.