HKSAR v. CHAN SAU-MAN

CACC 403/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 403 OF 2000

(ON APPEAL FROM HCCC 106 OF 2000)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 15 September 2000, the Applicant was convicted of rape following a trial in the Court of First Instance before Deputy Judge Tong (as he then was) and a jury. On 22 September 2000, the Applicant was sentenced to seven years' imprisonment. He now seeks leave to appeal against conviction and sentence.

2. The facts were a little unusual but can be shortly described. The complainant, aged 26, alleged that in the early hours of 23 November 1999, she was raped inside Room 1205 at the New San Diego Hotel in Yaumatei. She had willingly gone to the hotel with the Applicant after they had spent the evening of 22 November together. Consensual sexual intercourse, when the Applicant had been using a condom, had taken place twice in the 12th floor room before the alleged rape.

3. The complainant said that after intercourse had begun to take place with her consent on the second occasion, a stage was reached when the Applicant removed the condom he was using. She said that she had made it plain throughout that she would only have sex with him if he was wearing a condom. It was her concern that unprotected sex with this relative stranger, who she had only met three times before, might infect her with AIDS. She therefore resisted, and struggled with the Applicant, when he attempted to have intercourse without a condom. However, the Applicant made his intention to have sex with her without wearing a condom equally clear. In order to get his way he used force and a number of threats. Amongst other things, the Applicant pressed the complainant's neck with his forearm and then covered her head with a pillow. He shouted abuse at the complainant, blamed her for the situation and accused her of not trusting him. He spoke of his father being a 14K member and said that he could find people, who would not use condoms, to rape the complainant. The complainant was very scared.

4. Despite her resistance, the Applicant eventually succeeded in penetration for a short time. After this, the complainant was subjected to threats and violence for a number of hours before being allowed to leave.

5. As the complainant was leaving the hotel, she went first to the reception counter in circumstances we shall return to shortly. She then went straight to Yaumatei Police Station to lodge a complaint of rape.

6. There was no corroboration of the complainant's account that the Applicant had engaged in sexual intercourse against her consent at a time when he was not wearing a condom.

7. The Applicant did not give evidence, but his case was presented on the basis that, having twice had intercourse using a condom, he then wanted to have intercourse without one. When the complainant refused, it was put on his behalf that "the mood had been ruined and he lost interest". They then had a violent argument. They eventually left the hotel at about 6.00 a.m., without any further act of sexual intercourse taking place.

8. The defence relied, to an extent, on extracts taken from hotel security video recordings, taken in the foyer of the hotel and on the 12th floor corridor. These showed the movements of the Applicant and the complainant when arriving at and departing from the hotel. In particular, the complainant was apparently not exhibiting symptoms of distress, such as tears, when she left, although she was seen at the police station to be crying. It was suggested that this was part of an act which might have been motivated by a desire on the complainant's part for revenge arising from the argument which had earlier taken place in the hotel room.

Grounds of appeal

9. Mr Whitehouse, on the Applicant's behalf, raised four substantive points, and he submitted that these, taken together with what he suggested was the "generally unsatisfactory nature" of the complainant's evidence, gave rise to a lurking doubt which would justify quashing the conviction.

10. In his first ground, it was contended that the judge had wrongly exercised his discretion when failing to give the jury a direction that "it would be dangerous to convict the Applicant on her supported and uncorroborated evidence ..... and that they should exercise caution before accepting her evidence."

11. Mr Whitehouse acknowledged, of course, that the rule that a jury should be warned of the danger of convicting without corroboration had been abrogated by section 4B of the Evidence Ordinance, Cap. 8, but he submitted that the old rule that a warning had to be given should not entirely be rejected. He relied on what Lord Taylor CJ had said in R v Makanjuola [1995] 2 Cr App R 469 which was adopted in R v Chu Ip-pui [1997] HKLRD 549 at 552:

"Whether, as a matter of discretion, a judge should give any warning and if so its strength and terms must depend upon the content and manner of the witness's evidence, the circumstances of the case and the issues raised...... Where, however, the witness has been shown to be unreliable, he or she may consider it necessary to urge caution."

12. It is unnecessary for present purposes to delve into a detailed account of the evidence given at the Applicant's trial. Suffice it to say at this stage, that the defence had alleged that there were a number of inconsistencies in the account given by the Applicant.

13. Mr Whitehouse highlighted during his submissions one so-called inconsistency as having particular significance. It had been part of the complainant's account that during her prolonged argument with the Applicant he had alleged an attempt on her part to steal his money. She went on to say that before she left the hotel, she had asked the receptionist (without making any reference to the alleged rape) to search her and also her belongings, in order that she could prove to someone who was independent that she had not taken any of the Applicant's money. Indeed, this action on her part was clearly to be seen on the security video-tape.

14. Mr Whitehouse's submission was that in cross-examination, when the allegation of her attempted theft from the Applicant was put to her, she claimed that it was "the first time she had heard of the allegation". He was submitting, in other words, that the complainant had changed her story in court by saying that she was hearing of such an allegation for the very first time through defence counsel's cross-examination.

15. In the light of her earlier evidence that she had been accused of trying to steal the Applicant's money and in the light of her account that she wanted to be searched by the hotel receptionist to prove that she had taken nothing which belonged to the Applicant, this would have been a remarkable about-turn in her evidence if that is what had happened. Mr Whitehouse submitted that the judge had referred to it in his summing up when he covered the various matters put to the complainant in cross-examination and her response to those suggestions. The passage dealing with the complainant's replies to some of the allegations made against her reads as follows:

"Members of the jury, you have already heard PW1's replies to these allegations. Basically, she agreed that after the accused had removed the condom, he had indeed acted as if he was going to insert his penis again. She agreed that she had told the accused that she would not want to do it without a condom. She disagreed that it was, at that point of time, he had rolled (off) her and said she had ruined the mood of the evening. She disagreed she had used foul language and that she did not say she would take the money. She also disagreed that she had hit the accused with a telephone set. She stated that this was the first time she heard of the allegation that she was stealing money. She said that she had not fabricated the events. Regarding the condoms, PW1 later explained that she had purchased them in Hong Kong or Taiwan and she had brought them back to Hong Kong from the United States. She also disagreed that there was no mention of the use of condoms before going to the hotel.

Members of the jury, the above is the gist of the evidence of PW1. She is the main witness and you should consider her evidence with care." (Tr. p. 21C-N) (Emphasis added)

16. We have the benefit of a considerable number of transcripts. These include the whole of the complainant's evidence. The complainant's evidence about hearing the Applicant's allegation concerning the theft or attempted theft of his money, putting it in its full context, reads:

"Q. (Defence Counsel) Well, I suggest that the allegation from him that you were trying to steal his money is the thing that upset you more than anything else that night.

A. Well, now, it was - it is the first time I know he alleged me of stealing his money.

Q. Well, that's very interesting, witness, because the first thing you did when you got down to the reception was to say, 'I didn't steal his money. Search me, search my bag, I didn't steal his money.'

A. I did." (Tr. pp. 167R-168B) (Emphasis added)

17. Set into this fuller context it is perfectly apparent that the complainant had not changed her story. On the contrary, she was maintaining that she had asked for her bag and for herself to be searched just before she left the hotel. What she was plainly saying was that at a certain stage of the argument in the room she had come to realise the Applicant was accusing her of stealing his money and that, because she was concerned she might be falsely accused of theft, the approach to the receptionist was her way of establishing her innocence.

18. In our judgment, Mr Whitehouse's submission carried no weight. We have been able to find nothing which was contradictory in the evidence given by the complainant on this topic.

19. Mr Whitehouse went on to suggest that the passage we cited earlier, where the jury was instructed to use care in their approach to the complainant's evidence, had contained the only direction to the jury which came close to urging caution in the jury's approach to her evidence. Just to repeat what that was, the judge had said:

"She is the main witness and you should consider her evidence with care." (Tr. p. 21)

20. The judge had, however, also reminded the jury of the allegations put to the complainant, and he did so in very considerable detail. To take just a few examples, in the context of the evidence concerning "recent complaint", the jury were directed that her account to police "may be true, but it may be false or exaggerated". Dealing with the ways in which the complainant had described how she had made it plain she would not consent to sex without a condom, the jury was reminded of the allegation that she had been fabricating her account that the Applicant had raped her. As to motive, the judge said to the jury:

".... you have to consider whether PW1 had really, in order to teach the defendant a lesson, gone to the police station and told a long story. Has she really made up this story or was she telling the truth? It is a matter for you." (Tr. p. 24)

21. Bringing these matters and others together, towards the end of the summing up the judge had this to say:

"The issues in the present case in fact, are quite simple. You have to decide whether PW1 was an honest and truthful witness. If you believe everything PW1 said beyond a reasonable doubt, then you may have not much difficulty in finding the charge proved. As, according to PW1, there was a partial penetration by the defendant's naked penis into her vagina and that, by virtue of her earlier stipulation about the use of condom and her subsequent conduct and words, the defendant must have known that she was not consenting to his penetration without the condom, or that he was being reckless as to whether she was consenting. That would constitute the offence of rape.

However, having heard the speech by defence counsel, if you agree with his analysis and doubt PW1's evidence, then you have to acquit. In particular, if you are actually not sure that the defendant's naked penis had partially penetrated PW1's vagina, you have to acquit. Furthermore, if you find that there is a possibility that, despite PW1's actions and words, that the defendant had genuinely believed that PW1 was consenting to the penetration without a condom, then you must also acquit." (Tr. pp. 32-33)

22. There was, as Mr Whitehouse acknowledged, no requirement to give any specific warning to the jury about their approach to the complainant's evidence. This was a straightforward case where the complainant's evidence, the accuracy of her evidence and her veracity, on the central issue stood alone. The judge had meticulously pinpointed all the areas in the evidence where her account was materially disputed and had invited the jury to look at her evidence with care. In the circumstances, the judge was perfectly entitled, in the sensible exercise of his discretion, to adopt this course.

23. We note in passing that, in any event, there was really no evidential basis for saying that the complainant's evidence was inherently unreliable. She had been consistent in her account to a very large extent and nothing in cross-examination appears to have shaken her. If there was anything which had been strange about the account she had given, it was that she had said that it was the Applicant who had picked up a telephone receiver in the hotel room in a way which made her feel she was going to be struck by it. In fact, he then hit himself with the receiver and caused himself an injury to his head. The judge dealt with this fully in his summing up to the jury, pointing out that it had been suggested that it was the complainant who had struck the Applicant with it. The matter was plainly before the jury to consider.

24. The first ground fails.

25. The second ground of appeal complained that the judge had misdirected the jury as to the ingredients of rape and had given directions which were misleading and confusing.

26. In particular, Mr Whitehouse pointed out that there had been an issue at trial as to whether, when the Applicant had tried to penetrate the complainant at a time when he was not wearing a condom, he had in fact been successful in doing so. This was, of course, a central issue in the case. Mr Whitehouse further suggested that confusion could have been created in the mind of the jury by the direction that they were given which had been in these terms:

"Here, there is no dispute that the accused had sex with PW1 on two occasions while he was wearing a condom. There is, however, dispute whether the accused had penetrated PW1 while he was not wearing a condom. If you consider that the accused had not done so, then that was the end of the matter." (Tr. p. 8)

27. We do not agree that this passage in the judge's summing up could have given rise to any confusion. The judge had isolated one of the main issues in the trial. Furthermore, it is plain that the judge was very sensibly leaving the case to the jury on the basis of rape or nothing. We are told, and accept, that prosecuting counsel had invited the judge to leave attempted rape as an alternative basis for verdict. The judge's rejection of such a course was entirely right in the circumstances of this case. If attempted rape had been left, when the complainant had stated that she was sure that the full offence had taken place, this could only have led to confusion. There was really no evidential basis for a guilty verdict on attempted rape. Later, as we have already set out in a passage taken from towards the end of the summing up, the judge again told the jury, so that they should be in no doubt about the issue which they had to decide upon:

".... if you are actually not sure that the defendant's naked penis had partially penetrated (the complainant's) vagina, you have to acquit." (Tr. p. 32)

28. All the directions as to the ingredients of rape were concisely and accurately set out in the clearest language for the jury to follow. There is no merit in this ground.

29. The third ground is also, we have to say, without real substance. It alleged that because the complainant's report to a police officer had not been made at the first opportunity which had offered itself after the offence, such evidence should not have been admitted as evidence of "recent complaint".

30. Mr Whitehouse also submitted that the directions given to the jury were "somewhat brief", as he put it, in relation to recent complaint. We can dispose of this aspect straightaway by saying that, brief though they may have been, the directions were refreshingly concise and were all that were required.

31. It is perfectly true that at about 5.55 a.m., when the complainant left the hotel on 23 November 1999, she made no reference to the receptionist about having been raped when she had stopped there in order to prove that she had not stolen any of the Applicant's property. She explained that the reason for this was that she was intending immediately to go to Yaumatei Police Station to report the rape. She duly carried out her intention at about 6.30 a.m. This was, it is to be noted, the earliest reasonable opportunity, in the absence of the Applicant's physical presence, which had presented itself to the complainant.

32. Defence counsel raised no objection to the "recent complaint" evidence being admitted at trial, and even if he had done so, we cannot see that the judge could properly have excluded this evidence on the ground that it was inadmissible or that he should have exercised a discretion to exclude it.

33. Mr Whitehouse argued that because the complaint was not made to the first person the complainant had encountered after the alleged rape incident, it followed that the evidence should have been ruled inadmissible, notwithstanding the lack of objection by experienced defence counsel at trial. There is, of course, no rule of law which states that for evidence of recent complaint to be admissible it must relate to a complaint which has effectively been made at the first available opportunity (see: R v Cummings [1948] 1 All E R 551 or, more recently, R v Steven Warner [1995] 78 A Crim R 383 at 385). In any event, this was a complaint made very soon after the complainant had regained her liberty from the Applicant who had detained her for several hours following the alleged rape.

34. Mr Whitehouse also submitted that the directions to the jury about their approach to evidence concerning recent complaint were insufficiently clear.

35. This topic has to be viewed in the light of the judge's directions to the following effect:

"I turn your attention now to another matter. This is the matter that lawyers call the evidence of recent complaint. During this trial you have heard the testimony of the receptionist, PW3, and the policewoman, PW4. They are not called to testify on how the incident had occurred. They mainly told you what the complainant had said after the incident.

Members of the jury, a mere complaint is not evidence on the facts complained of. Put in another way, the fact that a person makes a complaint does not, of itself, make that complaint true. It may, of course, be true, but it may also be false or exaggerated. In addition, of course, there is no way in which a complaint can be treated as any supporting evidence that there was a rape. Such evidence of recent complaint, if accepted, mainly shows consistency about what the complainant said that had taken place in the hotel room." (Tr. pp. 10-11)

36. It was Mr Whitehouse's contention that, much later on in the summing up, when the judge reminded the jury of the evidence of recent complaint, he should have gone on to remind the jury again that this was not evidence of the facts about which the complainant was making a complaint instead of posing a question for the jury's consideration which invited them (in a passage we cited earlier) to decide whether the complainant was either making up the long story she told the police or was telling the truth.

37. We can see no substance in any aspect of this ground. Nothing the judge said at the later stage of the summing up was in conflict with his earlier directions on the law. Ground 3, therefore, also fails.

38. In the fourth and final ground, Mr Whitehouse alleged that prosecuting counsel's speech had been unnecessarily emotive and was inconsistent with her role in that capacity.

39. As an example of what Mr Whitehouse was criticising, he maintained that it was unfair to the Applicant, who was a man of previous good character, to find himself described as someone who was not "an innocent young man". The basis for this so-called emotive use of language was that an exhibited hotel receipt showed that the Applicant had visited the hotel nine times since June 1998 and that he had spent a night there only two days earlier. Prosecuting counsel was not attacking the character of the Applicant. Rather, she was answering the attack made on the complainant by defence counsel that the complainant had seduced a young man.

40. These comments by prosecuting counsel were followed by remarks to the effect that the Applicant was "a big shot with his BMW car" and that he "fancied his chances". It was said that these remarks devalued and undermined the Applicant's admitted good character.

41. Mr Whitehouse also complained that prosecuting counsel had breached the terms of section 54(1)(b) of the Criminal Procedure Ordinance, Cap. 221, which prohibits comment by the prosecution on the failure of a defendant to give evidence. This was a reference to the prosecutor's summary of the evidence about the Applicant's head injury which was said by the complainant to have been caused by him hitting himself with the telephone in the hotel room. The passage about which Mr Whitehouse complained was where prosecuting counsel said:

".... remember, the only evidence you have to consider on this point, on how the injury was caused, comes from what the girl said on how it was caused, ...." (Tr. p. 204)

However, the prosecutor had gone on to say:

".... and of course what the defendant said to the police and to the receptionist. Members of the jury, you look at the possible permutations, consider the position of these people, the position of the injury - it's a matter for you to decide."

42. It is apparent from the full context of prosecuting counsel's remarks that there was no breach of the prohibition to which we have referred in section 54.

43. Mr Whitehouse even went so far as to criticise prosecuting counsel's decision to make a final speech after the Applicant had decided not to testify. As to this, the prosecution was perfectly entitled to make a speech and, in our view, it was to be expected that the prosecutor would take this course, especially bearing in mind the prolonged cross-examination of the complainant.

44. All of these criticisms only have to be set out for their lack of substance to be demonstrated.

45. Whilst it does not arise from the fourth ground of the appeal, we note that from time to time prosecuting counsel expressed her own opinion, or views, about the evidence. This, we have to say, was most unfortunate and should not have occurred. Counsel for the prosecution was perfectly entitled to make her submissions. She was not entitled to make her personal views known to the jury.

46. The fourth ground of appeal fails, and so it follows that the application, as far as conviction is concerned, is dismissed.

Sentence

47. There would probably be those, on first hearing that the Applicant received a sentence of seven years' imprisonment for raping a woman who had willingly gone to a hotel, expressly for the purposes of having protected sex with him, and who twice had protected sex, before the Applicant insisted on having unprotected sex against the complainant's consent, who might think that this was a severe sentence. There were, however, a number of factors which the judge had to weigh. In dealing with the application relating to conviction, it was unnecessary for us to refer to them all. The judge summarised some of the more important features of the case in his sentencing remarks by saying:

"At the material time, the victim was 26 years of age and the defendant had just reached 20. Both of them had returned from the United States.

A few days after they were introduced to each other, they agreed to go to the hotel to have sex. However, the victim made it plain that the defendant must use a condom. The defendant accepted this condition. They checked into a hotel and had sex. Afterwards, the victim wanted to leave, but the defendant persuaded her to stay and even held on to her bag to stop her from leaving.

Then they started to make love again. From time to time, the victim would try to use her hand to check if he was still using a condom. This seemed to infuriate the defendant. He became angry. He removed his condom and forcefully penetrated the victim, despite her verbal protest and actual resistance. He succeeded in penetrating half of his penis into her vagina. In the meantime, the defendant had assaulted her.

He apparently made some telephone calls and said things to threaten her. He mentioned his father being a triad and words to the effect that he could find people to come to gang rape her and no condoms would be used. He had carried her up and threw her on to the ground. He also carried her to approach the window, acting as if he would throw her out. It is to be noted that the room was on the 12th floor of the hotel.

The victim had to stay in the room and was subjected to such treatment for about three hours. It must have been a frightening and humiliating experience for her. The victim had to recount this embarrassing and painful experience in public, she had to face insulting questions from the defence, such as why she should go out with a 'boy' who was so much younger and that she was interested in a 'boy' because of his BMW and that his family had emigrated to the United States.

Concerning the injuries, however, I agree that the injuries received by the victim were not very serious ones. In his mitigation, counsel asked this court to use a very low starting point. It was said that the defendant was in a state of sexual excitement at the time and he was young. As revealed in the mitigation, the defendant had had a college education in the United States. He was even a auxiliary police(man) there. With this law enforcing experience, the defendant should know better than to force himself upon the victim in such a manner.

He could not be described as a boy, as counsel had called him. He must face the consequence of his failure to control his own conduct. It is true that the girl was originally willing to have sex with the defendant, but then her consent had always been a conditional one. The defendant knew that was the case. It was not a situation that the victim suddenly or at the last moment required the defendant to wear a condom." (Tr. pp. 46-47)

48. Although the judge's summary most adequately described the general nature of the aggravating features of this case, a reading of the complainant's evidence reinforces how she was subjected to lengthy and sustained violence and threats, while she was detained in the hotel room for what was certainly more than two hours after she had been raped, and before she was allowed to go. It is also apparent that the only reason the Applicant desisted from raping the complainant was because she made it impossible for him to continue, not because he merely decided to stop when she asked him to do so.

49. Mr Whitehouse agreed that the behaviour of the Applicant after the rape was an aggravating factor. He emphasised, however, that this conduct may have been generated by the Applicant's frustration at the complainant's refusal to allow him to have sex without a condom, rather than as a means of achieving his purpose. As to this, there is some merit in his submission because most of the threats and violence came after the rape had been committed.

50. Mr Whitehouse referred us to R v Anderson Greaves [1999] 1 Cr. App. R (S) 319 where the victim changed her mind during intercourse and the appellant refused to withdraw. A term of eighteen months was substituted for the three and a half year sentence which the appellant had received following his plea of guilty to rape. It is to be noted, however, that in Anderson Greaves, the victim put up no physical resistance. She had been engaging in acts of sexual intimacy with the appellant when he climbed on top of her and had sexual intercourse with her. The victim said to the appellant: "No, Steve. This isn't what I want. Stop." The appellant, who was wearing a condom, did not resort to physical violence or threats in the course of what occurred.

51. The present case is easily distinguished from Anderson Greaves. It involved the deliberate breaching of the Applicant's agreement with the complainant that he would not have unprotected sex with her. The Applicant was well aware that the complainant's consent to sexual intercourse was wholly conditional on this factor. With a condom there was consent, without one there was none. The Applicant deliberately removed the condom he was wearing and had sex by force, knowing full well that it was without the complainant's consent. He then, by his subsequent conduct, further aggravated the situation by humiliating and frightening the complainant for a number of hours when he had not the slightest justification for doing so.

52. We are not persuaded to the view that this sentence was manifestly excessive. Forced, unprotected sex in this day and age, in a case where the victim had throughout insisted on protected sex, is in our opinion a factor which made this case a serious one. Accordingly, the application relating to sentence is dismissed.

53. We should add, for the sake of completion, that when Mr Whitehouse had completed his submissions at about 11.40 a.m., he requested, and was granted, time to confer with the Applicant. When the court resumed at about 12.15 p.m., further time was requested, although Mr Whitehouse made it plain to us at that stage that the Applicant had expressed dissatisfaction with his services and might be asking for an adjournment.

54. When the hearing resumed later in the day, after representatives of the Department of Legal Aid had been given an opportunity to examine their file, a full inquiry was made into how much contact there had been between the Applicant and the Legal Aid Department. It became apparent that the Applicant had been given a copy of the perfected grounds of appeal and the full written argument, both of which Mr Whitehouse had settled. These covered every point that could have been made in this case. The Applicant had raised no objection to Mr Whitehouse representing him until after his submissions had been made. There was no basis for an adjournment and that application was refused.