HKSAR v. WONG PO CHUNG and Others

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 513
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. We will refer to the Applicants as they were in the court below. D1 was after a trial before Deputy Judge Hartmann and a jury convicted of one count of rape and one count of assault occasionally actual bodily harm. D2 was convicted of the same count of rape and two counts of assaults and she had previously pleaded guilty to another count of assault. D3 was likewise convicted of rape and one count of assault. D1 was sentenced to 9 years' imprisonment for the rape and 2 years for the assault which were ordered to be served concurrently. D2 was sentenced to 8 years' imprisonment for the rape and 1 year each for the assaults all of which to be served concurrently and D3 was sentenced to 8 years' imprisonment for the rape and 18 months' imprisonment for the assault to be served concurrently. D1 and D3 seek leave to appeal against both their convictions and sentences and D2 seeks leave to appeal against her convictions.

2. The proceedings were quite protracted. The background was that D1 and Mei-ying the 16-year old victim had had a relationship and had on a number of occasions had sexual intercourse.

3. During the concurrency of this relationship D1 and D2 had met and become friends. Indeed at the time of the offences, D1 and D2 were cohabiting.

4. It would appear to have been common ground that the relationship between D1 and Mei-ying had gone sour. D1 had indicated that he did not wish to continue the relationship with Mei-ying. She found it difficult to accept this and had made numerous telephone calls to D1 which were characterised as being nuisance telephone calls. These telephone calls had caused annoyance to both D1 and D2.

5. There were two main witnesses for the prosecution, Mei-ying and a Ms Ho.

6. Mei-ying gave evidence that she had gone to visit D1 on 28th June 1996 so that she could discuss matters with him. On her way to the flat she had met D2 in the street and that after a short verbal exchange D2 had assaulted her. They had then repaired to the flat which was occupied by D1 and D2. D2's sister, D3, another younger sister and another girl had then arrived at the flat. Some of the girls went into the bedroom where D1 was. After a short time the girls came out and started assaulting Mei-ying. Amongst other things she was beaten with a folding chair. At the conclusion of the assault, D2 and D3 dragged her into the bedroom and stripped off her clothes thus rendering her naked. She then saw D2 put a condom on D1's penis and he proceeded to have sexual intercourse with her against her wishes. In this connection it should be added that D1 was additionally charged with attempted buggery but was acquitted on this count. Following this, the victim was again assaulted by the girls.

7. Later in the afternoon she was allowed to leave the flat. She went to Fanling Hospital where she received treatment. The doctor who examined her Dr. Ma gave evidence in this connection. It is significant however that Mei-ying did not complain that she had been sexually assaulted. After receiving treatment she returned home. She did not tell either of her parents what had transpired. She said that she was afraid of her father who was something of a disciplinarian and apparently her mother has some form of mental handicap. She did however tell her younger sister Mei-yee who persuaded her to make a report to the police. This was done. The next morning she was examined by a forensic pathologist Dr. Ng.

8. The other main witness was Ms Ho. She was a friend of Cheung sisters. She gave evidence that she had been asked to go to the flat on the day in question and had done so.

9. When she entered the flat she had seen Mei-ying in a distressed condition sitting on the sofa in the living room. She had then gone to the bedroom where she saw the 3 defendants talking in quiet voices.

10. The gist of their discussion was that Mei-ying must be taught a lesson. She was to be assaulted and then raped by D1.

11. Shortly after this D2, D3 and their younger sister had gone out and started beating up Mei-ying. She admitted that she also had taken part in the assault. She had then left the flat for a short period. When she returned she saw that Mei-ying was in a distressed condition and that D1 was wearing only underpants. She assumed that the plan which had been discussed had been implemented.

12. That very briefly was the prosecution case in respect of these offences.

13. A similar defence was run by all three defendants who all went into the witness box. It was agreed that there had been a bad relationship between D1 and Mei-ying.

14. As to the assaults it was accepted that there had been an incident. D1 and D3 had both attempted to distance themselves from it.

15. There was a total denial concerning the sexual offences. All the defendants gave evidence that Mei-ying had determined to falsely fabricate evidence against them in revenge for the assault which she had been subjected to.

16. The main tactic during the trial was to attack the evidence of the prosecution witness and draw attention to inconsistencies and other unsatisfactory aspects of the prosecution case.

17. Deputy Judge Hartmann gave detailed directions to the jury on both the law and the facts and the jury returned the verdicts earlier referred to.

18. D1 and D2 in their applications do little more than repeat their denials of the offences. D3 repeats in some detail the evidence she gave at the trial together with a commentary on the case in general.

19. Before us, D1 complained that the Judge did not refer to the possibility that the victim had fabricated her evidence.

20. He also referred to the victim's delay in making a complaint to the police. In addition to this he referred to the fact that the victim's injuries observed by Dr. Ma did not appear to be as great as those observed by the forensic pathologist.

21. The answer to all these complaints is that the Judge did refer to these matters in his summing-up.

22. He also complained that the victim's family first went to a friend connected with the police and the friend went to the police station. He suggested that the complaint may have been exaggerated as a consequence of this. There is no reason to believe that this was the case.

23. He also complained that the counsel representing him at the trial had had to withdraw during the trial due to illness and Mrs Panesar who was representing D2 had then agreed to represent him. From a perusal of the transcript this did not cause any prejudice to D1. There was no conflict between the defence he was running and the defence which was being run by D2. There is no justification in this complaint.

24. D2 said that the victim had exhibited a blue coloured shirt which she claimed she had been wearing at the time whereas according to her recollection, the victim had been wearing a green dress. She had not raised this matter with her counsel. It would not appear that this was a matter which cannot be taken further.

25. She also alleged that the victim had attempted to persuade her friends to testify against her. This had been a matter which had been raised at the trial. It would appear that this was not a matter which impressed the jury.

26. D3 referred to the fact that the victim did not complain about being raped when she was examined by Dr. Ma. It was only later that she complained of rape. She also referred to the evidence suggesting that she was suffering from more extensive injuries when she was subsequently examined by Dr. Ng than was the case when she was examined by Dr. Ma. This of course was a matter the Judge referred to in his summing-up. The Judge did canvass the possibility that the victim's injuries may have been sustained in some other way.

27. There is really not very much which can be said on this application.

28. The jury had all of the evidence before them. They were assisted by an able and thorough summing-up which it can only be said was scrupulously fair to the Applicants.

29. The Applicants have not been able to demonstrate any reasons why we should interfere with the jury's verdicts.

30. The convictions were in no way unsafe or unsatisfactory and these applications must be dismissed.

SENTENCE

31. We have attempted to outline the facts of this case earlier. It can be seen that these were vicious rapes. They were intended to be and were particularly humiliating and the victim was a girl of only 16. The Judge was fully justified in adopting 9 years as a starting point.

32. The reductions he gave to D2 and D3 were generous in the circumstances.

33. As to the assaults they were also quite serious. Amongst other injuries one of the victim's teeth was partially broken. Again the sentences imposed could not in any way be described as being either manifestly excessive or wrong in principle. These applications are also dismissed.