HKSAR v. LEE SZE LUNG AND ANOTHER

CACC 16/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 16 OF 2010

(On Appeal From High Court Criminal Case No. 209 of 2009)

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BETWEEN

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J U D G M E N T

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Hon Cheung JA :

1.  The two applicants were each indicted separately of one count of rape, contrary to section 118(1) of the Crimes Ordinance (Cap. 200). They pleaded not guilty but were convicted after trial by the late Mackintosh J sitting with a jury. They were sentenced to 6 years’ imprisonment. They lodged applications for leave to appeal against conviction and sentence. They abandoned their application for leave to appeal against sentence at the hearing. Accordingly that application was dismissed. For ease of reference I will refer to the applicants as the 1^st and 2^nd defendants.

Facts

2.  The judge summarised the facts of this case in his direction to the jury which I will gratefully adopt :

‘ On the night of 18/19 June 2008, two young women, —, PW1 and —, PW2, who were close friends, went to the Coins Club, which is situated in the Lamma Building in Tsim Sha Tsui. They were joined by the 1^st defendant, Lee Sze-lung, who, though older than them, once attended the same school. [PW1] and D1 had not been friends at school, and it was only the second time she had met him since leaving school some years before. The first such meeting had been on 14 June 2008, also at the Coins Club, at D1’s birthday party, though they had engaged in some MSN communication during the previous three months.

The 2^nd defendant, Ng Ka-ming, was a barman at the Coins Club.  The bar was operated by D1’s godmother.  He knew D2 through previous visits to the bar and perhaps through football.

After these young women and D1 met, they were drinking alcohol, and in due course PW2, also known as “–”, became drunk, and, having vomited in the washroom, she went to sleep on a sofa in the bar.  PW1, –, also became intoxicated.  She too vomited in the washroom.  She describes losing consciousness on and off and being very tired and weak and wanting to sleep.

D1, accompanied by D2, also known as “Ah Ming”, took PW1 by taxi to the New San Diego Hotel in Jordan.  D2 returned to the Coins Club.  D1 took PW1 to the room he had booked.

Whilst they were together in that room, he had sexual intercourse with her.  PW1 says she was only intermittently conscious during this time, that she remembers little of what happened and did not know he was having sexual intercourse with her, and that she did not consent to it. D1 agrees that he had sexual intercourse, but says that PW1 was a willing and active participant in the sexual intercourse, which was therefore with her consent.

Meanwhile, D2, having returned to the Coins Club, went back to the New San Diego Hotel with [PW2].  They went to the room in question, and all four of them lay on the bed.  At some point whilst all four were on the bed, D2 had sexual intercourse with PW1, –.  She says that though she was aware of some activity, she did not know he was having sexual intercourse with her and did not consent to it.

At some point during the intercourse, she told him not to interfere with her and moved her body.  At that point he ceased to have sexual intercourse with her.  D2 agrees that he did have sexual intercourse with PW1, but says she was a willing and active participant in the sexual intimacy prior to the intercourse, and that she consented to the intercourse.’

PW1’s evidence against the 1^st defendant

3.  The judge summarised PW1’s evidence against the 1^st defendant as to what had happened inside the hotel room as follows :  

‘ PW1 said that she found she was on a bed. She said that she could feel that D1 was lying on top of her. She saw it was him by the lighting from the bedside and the washroom. “Then he slipped his hand under my top and he removed the hook on my bra. Then I felt he used his hand to knead my breasts. I was very much unwilling. I did shout ‘No’, but at that time I felt very weak. I was weak all over my body, and I felt unable to resist.

When she shouted, he stopped for a moment, but then continued. PW1 said that she tried to turn to avoid D1, but she had no strength. He was fondling her breasts for two to three minutes, and then she no longer felt anything, and fell asleep. She does not describe any act of sexual intercourse, although one took place. She said she was not aware of it.’

PW1’s evidence against the 2^nd defendant

4.  The Judge summarised the evidence of PW1 against the 2^nd defendant.

‘ PW1 said she woke up again when she heard PW2, who she said had arrived in the room after the sexual intercourse had finished, patting her and calling her name, but she did not wake up properly. In this regard, of course, her account is supported by PW2’s evidence, which I will remind you of later. PW1 said that at this time she had a feeling that her lower parts had been interfered with, and she realised that she was wearing no lower clothing. After a while, she heard PW2 talking to D1. At this point, she said, she had not yet regained consciousness.

Then she felt Ah Ming pressing against her body.  His whole body was pressing against hers.  He touched her breasts and kissed her lips.  She said, “Initially, I was unable to resist, and I felt his lower parts were rubbing against me,” and she explained what she meant explicitly by referring to his penis rubbing against her vagina.  She said she pushed him away with force and said “No”.  Then he left; that is, he stopped pressing against her.  She then said that she resisted when he touched her breasts.  She moved her body to try to avoid him.  A little later, she explained that initially she had been unable to resist, and that referred to what she called the first occasion, pressing against her and touching her breasts and kissing her.  

Then a little later, when he did it again - the second occasion; that is, touching her breasts and kissing her and using his lower parts to touch her – she was able to resist by moving her shoulder and attempting to turn her body.  She said she did not want this to happen.  “I did not want to have any contact with this person.  His penis was moving at my lower parts.”  That is, her vagina. She was unable to remember whether that movement was inside or outside her vagina.  She said she felt very cold.  Then she pushed him away and said “No”, and that led to him moving away from her.

She said at one point that when compared with previously, she was more clear-minded at this stage and was very much unwilling……’

Evidence of PW2

5.  The Judge summarised the evidence of PW2 after she arrived at the hotel room with the 2^nd defendant.  She saw PW1 sleeping on the bed covered with a blanket.  She told PW1 to get up and go home, but PW1 said that she was very sleepy and tired.  PW2 then asked PW1,

‘ Did you people do it’ – that is, have sex. PW1 just shook her head once, but did not answer. She was still keeping her eyes shut tightly. D1 was on the corner of the bed, and PW2 said that she then asked him whether he had had sex with PW1, and he nodded. So she asked him if he wore a condom. He nodded. And then she tried again to pat on PW1 to wake her up, but she got no response.’

6.  PW2 then contacted a friend and asked him to take them home.

‘ Then D1 said that since PW1 was so tired, ‘Why don’t you sleep here?’  PW2 said that she was also feeling tired after drinking, so she called Tsui again and said there was no need to come, and that they would come home the next day.

Then she got on the bed next to PW1.  You will remember she marked the plan which you have got or which you will have as Exhibit 1A as to the positions of the various parties on the bed, and D1 was on the other side of PW1 and was not moving.

Then she described how D2 tried to climb on to her from what she called the rear of the bed; that is, the foot of the bed.  He was wearing a pair of shorts.  She thought he was trying to see what was her response and whether she might be willing to have sex with him.  He made two attempts, 10 seconds apart, and on each occasion she kicked at him and told him to go away.  He left the bed……

……

  Next, PW2 said that D1 went to her right side and lay next to her.  She had not seen him, D1, go to the bathroom, but her evidence that he lay next to her is in part consistent with D1’s evidence that he did so.  But she insisted that D1 did not hold her or hug her in mistake for PW1. Indeed, at the time, they had a conversation with each other about his life and him taking drugs.  She did not at that time see where Ah Ming, D2, was, but as they continued with their conversation, D1 suddenly said, “She’s okay.  You can do it.”  “He did not say that to me,” said PW2, and PW1 was not conscious, “so I believed he was saying this to Ah Ming.”  That was her evidence.

…… She said she then turned her head to the left – that is, towards PW1 – and she saw she was lying on the bed, face up, with her eyes shut, and Ah Ming was on top of her, covered with a blanket.  She saw his body moving to and fro as if it were the action of rubbing against something, and her perception was that they were having sex.  This lasted about two minutes, and she could feel the bed moving.  Then PW1 said, “Very cold.  Don’t interfere with me.”  Her eyes were still shut.

       When she was cross-examined by Mr Tse on behalf of D2, she said: “I could not say on her behalf whether she consented, but I thought at the time that she was conscious of what was happening and knew what she was doing, and so I did not intervene.”  It was suggested that this was a made-up story, and you may remember that there was an issue as to whether she had said in her statement “sober” or “conscious”, and there was something of a translation issue there.  The basis of that was that she had said: “If you ask me whether she was conscious/sober, I would think that if someone touched you or had movement, if you were conscious, you will know that.  At the time, it was because of such that I thought she was conscious/sober.”

       Of course, PW1 says “No, I did not know what was happening.”  PW2 said that D2 was, as she put it, violating PW1.  He tried to have sex with her.  She says that she watched and did not continue to talk to D1.  You may note that it is not suggested by PW2 that she saw any of the other sexual activity which is admitted by D2 – that is, the kissing or any oral sex.  At the same time as saying, “Don’t interfere with me”.  According to PW2, PW1 attempted to move her shoulders as if she intended to push him away, and after five to six seconds, Ah Ming then left the bed and did not return.’

Evidence of the 1^st defendant

7.  The 1^st defendant chose to give evidence.  He admitted that he had sexual intercourse with PW1 but with her consent.  The Judge summarised the 1^st defendant’s evidence as follows :

‘ Now let us turn to D1’s evidence. Lee Sze-lung, D1, testified, and his case, in a nutshell, is that at the Coins Club, PW2 got drunk and slept, that he and PW1, who had previously become friendly on MSN, became amorous and affectionate on the back stairs after she had been in the washroom, vomiting; that PW1 remained fully conscious at all times, even if she was suffering some effects from alcohol; and indeed, she had a temper tantrum on the landing as they left over whether PW2 should join them or whether they should go back for more drinks. He said that PW1 remained conscious, even if tired, at the San Diego Hotel; that D1 and PW1 were amorous and affectionate in the bedroom, and that after some sexual foreplay between them, they had sexual intercourse on a wholly consensual basis.

They were holding hands as they walked along the corridor to the room.  They entered the room.  D1 said that he used the washroom, and then he says that he saw PW1 lying on the bed.  She was awake. They chatted, and she complained again about the headache, so he massaged her head.  Then she complained about very tired shoulders, so he massaged her shoulders.  Then the two of them looked at each other and started kissing and holding.  He said they were kissing intimately; French-kissing each other.

Then she took off his clothing first before he removed hers, but he says he got stuck with the bra hook.  He says that she removed the bra herself, but she left the black top on.  They touched each other and they continued kissing and touching, including touching to the private parts.  The defendant said that after one to two minutes he was kissing her on her breast and he felt he had an erection, so he took off his boxer shorts and then found a condom in the small compartment at the side of the bed, apparently provided by the management.

He put the condom on, and they had sex with him on top of her.  He said that he told her he was going to enter her, and she nodded in reply.  During the course of their sexual activity, she was moaning, and she threw her arms around his neck.

I might say that it was not put to PW1 that she was moaning and participating in this manner.  Neither, as I have described earlier, was it put to PW1 that during the course of the sexual intercourse they changed their positions and she knelt on the bed and he entered her from behind.

He said that after he had ejaculated, they wiped themselves with tissues and he threw the condom away at the side of the bed.  Then they chatted for a few minutes before the door was knocked and he got up to open it, wearing a towel. PW2 and D2 were there.  PW2 came in and immediately asked him, without any preamble, whether he had worn a condom, and he said he had, and then she went to talk to PW1, who was awake on the bed.’

The 2^nd defendant’s defence

8.  The 2^nd defendant did not give evidence but relied on the record of interview he had given to the Police.  The Judge summarised the contents of the interview :

‘ Remember D2 had already told the police upon his arrest that he had had sexual intercourse with PW1, saying that she had taken the initiative and that she was conscious and consented. He said at item 90 in his interview that he and PW1 were lying side by side, that their hands touched, that they held hands, that she leaned towards him and they kissed, and then he kissed her all over her body, including her private parts. When he realised that she was wearing no pants, he then removed his own lower clothing and had intercourse with her, asking her during the course of the sexual intercourse whether she was comfortable, to which she responded positively. Then, after a while, he lost his erection and ceased the intercourse. He remarked at the time that both PW2 and D1 were watching.’

Grounds of appeal of the 1^st defendant

1) Flagrant incompetence of defence counsel

9.  The first ground of appeal of the 1^st defendant is concerned with the incompetence of counsel at the trial for the 1^st defendant (not Mr. McCoy S.C. and Mr. Daniel Hui who only appeared in the appeal for the 1^st defendant).  This involved three issues.  First, matters that were only raised in the 1^st defendant’s evidence but not put to PW1.  Second, counsel agreed with the Judge not to discharge the jury without taking instructions from the 1^st defendant.  Third, the issue of dangerous drugs.

(1)  Matters not put to PW1

10.  This complaint arose in this way.  In the evidence-in-chief of the 1^st defendant, after he described that he entered PW1, the following question and answer appeared :

‘ Q: After you had entered [PW1] and were having sexual intercourse with her, are you able to remember now whether there was any reaction? How was [PW1] acting during this particular part of the episode?

A:    She was moaning and she threw her arms around my neck and she also kissed me.  And later we changed our position.  She was kneeling and then I entered from behind.’

11.  That the 1^st defendant and PW1 had changed their positions was not a matter that was put to PW1 in her cross-examination as can be seen from the following evidence of PW1 :

‘ Q. There was foreplay between you where each touched and fondled each other’s private part.

A. Incorrect.

Q. You were kissing each other during this time.

A. Incorrect.

Q. That Mr Lee produced a condom and you signalled your agreement by nodding your head.

A. Disagree.

Q. And indeed before he entered you, he looked at you again and you agreed there should be sex by nodding your head.

A. Incorrect.

Q. What I’m suggesting to you, [PW1] is the sexual intercourse that you had with Mr Lee was consensual and reciprocal.

A. Incorrect.  I was unwilling.

Q. You reciprocated the passion that he’d demonstrated for you.

A. Incorrect.

Q. And after it was over, you held each other and kissed each other, did you not, and chatted?

A. Incorrect.’

Exchange between the Judge and counsel

12.  The Judge was aware of the omission and brought up the matter with counsel in the absence of the jury.  The Judge was concerned that the jury might be under a misapprehension as to the turn of events which he described as a ‘startling revelation’ that came out from the 1^st defendant’s evidence.  The Judge said,

‘ the reaction of the witness to such an allegation and she was a witness who did react on occasions to certain things that were being put to her and the jury were entitled to see that and were entitled to measure that reaction when judging what she - - what was being put to her and judging whether the allegation was true or not.’

13.  Counsel confirmed that he had written instructions from the 1^st defendant on this point.  He informed the Judge the reason why he did not put the parties’ change of sexual positions to PW1 :

‘ It was because her case being that she was entirely unconscious during the act of sexual intercourse.’

14.  Counsel for the 1^st defendant further informed the Judge that,

‘ …… I can’t say I made a deliberate decision but it did seem to me that in putting my case it was sufficient, given that she had said that she was, in her statements anyway, that she was entirely unconscious and unaware that beyond saying that fully consensual sex took place that I was not under a duty to put what sex had taken place. My Lord, in hindsight I accept your Lordship’s criticism. My Lord, I should have thought about it more and I’m sorry.’

15.  On the next day the Judge brought up the issue again in the absence of the jury :

‘ COURT : I hope I accurately reflect what was said yesterday afternoon when I say that it appears that you accept that it is a matter which should have been put and that the judgment or the decision not to put it was a wrong, unequivocally wrong decision.

COUNSEL : My Lord, I’ve given great consideration to that overnight.  Mr Lord, my view is I think not.  I think my professional duty was to - - on the issue of consent, went no more than putting to the PW1 that throughout sexual intercourse between the two there was consent and reciprocation.  My Lord, I’ve thought about it and I accept everything that your lordship has said, but even with the benefit of hindsight and your Lordship’s observations, my Lord, I do not think I was wrong.

COURT : Well, [Counsel], I rule that you were wrong, and I am in absolutely no doubt whatsoever that your decision not to put such a crucial part of your case to the witness in respect of whom it related, was a serious misjudgement by you. But I am determined, I am absolutely determined that no adverse inference shall be drawn against D1 by this jury for your failure to put what undoubtedly should have been put.

I’m afraid - - I hear what you say, that you think you only needed to put that she was consenting and reciprocating.  What more by way of a signal of submission and consent could there be than the witness, as your client says, allowing him, kneeling on the bed, and allowing him to have sexual intercourse with her from behind?  What more could there be by way of submission and consent, the very issue that is in - - is the subject of this trial before this jury?’

16.  The Judge stated that he had considered discharging the jury but had decided against taking such a step. The Judge informed counsel that he would raise the matter in the presence of the jury.

17.  When the jury returned, the Judge referred to the evidence of the 1^st defendant about the change of positions and that 1^st defendant had entered PW1 from behind.  This was followed by the following exchange between the Judge and counsel.

‘ COURT : This was a matter which was not – I think I’m right to say – put to PW1 by you on behalf of D1.

COUNSEL : Not specifically, my Lord, no.

COURT : And I want to ask you whether that part of D1’s evidence-in-chief formed part of your instructions from him at the time that PW1 was being cross-examined?

COUNSEL : Yes, my Lord.  I had written instructions to that effect prior to this trial commencing.

COURT : Thank you.

COUNSEL : And my Lord, I should perhaps add that it was my conscious decision not to put that to the - - to PW1.’

The Judge gave the first direction 

18.  The Judge then directed the jury as follows (‘the first direction’) :

‘ What is of crucial importance, members of the jury, is that you should know that counsel was in possession of instructions prior to cross-examination that that was his client’s case, that there had been a change of sexual position in the manner described; in other words, that it was not something that was new during the course of his, D1’s evidence, before you in the witness-box.

It is of importance that you know that in case you draw an adverse inference, in case you say, “Well, that was new and therefore it must have been something made up in the witness-box.”  Because you know, now, that such an inference, if you were considering drawing it, would not be correct because you are told that it formed part of counsel’s written instructions.  And it is most important in any criminal trial that no unfair adverse inference should be drawn against an accused.  That is, I hope, as obvious as day and night; you know that.  But I’ve got to make sure that you are told this and told it now so that you do not at any stage draw such an adverse inference.’

The summing up

19.  In his summing up to the jury the Judge stated that :

‘ 1. You will recall that I asked [Counsel] about this in your presence, and he told us that this allegation formed part of his written instructions prior to him cross-examining [PW1]. He said he had decided not to put the matter to [PW1]. The reason I raised the matter then in front of you is that, as must have been obvious to you during this trial, counsel has a duty to put all significant parts of his case to witnesses so that they have a chance to respond to particular allegations, and also, if something important emerges for the very first time during a defendant’s evidence, it may look as though he is making it up in the witness-box. [Counsel’s] assurance that this was part of his instructions from the defendant means that you can accept that the defendant was not making it up in the witness-box. [Counsel’s] failure to put the matter to the witness means that you, the jury, have been deprived of any reaction she might have had to such an allegation.

2. You might infer, given the rest of her evidence, that she would have denied it, but you are judging not just by words but also by how a witness responds to something that is significant, and you do not have this in relation to what is, if true, a manifest indication of co-operation and consent in relation to sexual intercourse.  You may find it extremely surprising that it was not put to PW1 for her comment and reaction, but, and this is the crucial point, as I told you when dealing with the matter earlier during the trial, you must not draw any inference against D1 in respect of it.  The decision was that of his counsel, not him, and it would be unfair to criticise.  Neither may you speculate about how [PW1] would have reacted if such an allegation had been put to her.  The fact is you have been deprived of her reaction as a witness, and that is as far as one can go.

3. You are nevertheless entitled to judge, from what you have seen and heard of PW1, — and from the evidence generally, including that of D1, whether you believe that she may have acted in this way with D1 in all the circumstances you know about during this first act of sexual intercourse between them, or whether you are sure that this is an allegation which has been invented to add strength to the defendant’s claim that she was consenting to have sexual intercourse with him.’

For ease of reference I have given numbers to the paragraphs.

Applicable principles on counsel’s flagrant incompetence

20.  The Court of Final Appeal in Chong Ching Yuen v. HKSAR (2004) 7 HKCFAR 126 addressed the circumstances in which incompetence of counsel may constitute a proper ground of appeal.  It must be an error of significance which would preclude the defendant from having a fair trial.  It is generally described as flagrant incompetence.  Sir Thomas Eichelbaum NPJ held that,

‘ 47……. As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics…….

48. It follows, almost inevitably, that ordinarily, a tactical decision by counsel which, in hindsight, ought to have been made differently, will not provide any ground for appeal, any more than if such decision had been made by the defendant personally.  Nor will other forms of mere error of judgment.

49. Nevertheless, the courts have recognized that in some exceptional instances, an error of sufficient proportion and consequence will enable the court to intervene and avert a miscarriage of justice.  To describe this ground, the expression “flagrant incompetence” has generally been used, see for example R v Mo Lee Kuen [1993] 1 HKCLR 78; HKSAR v Wong Chi Keung & Others (unrep., Crim App No 585 of 1996, [1998] HKLRD (Yrbk) 157); R v Lau Sui Fu [1997] HKLRD 323; HKSAR v Au Yeung Long & Another (unrep., CACC No 522 of 1998, [1999] HKEC 1099).  While the term is firmly embedded in case law in Hong Kong, and in some jurisdictions overseas as well, it is more a convenient form of shorthand than anything like a comprehensive description of the foundation for a successful appeal.  Indeed, at least at first impression, the reference to incompetence may suggest an issue about the general competence of counsel, which usually is not in issue at all, and was not in issue here.  Occasionally, in extreme cases, an appeal may turn on counsel’s conduct of the trial as a whole, for example a failure to conduct the case in accordance with any theory of a defence case where a clear line of defence is available. More often, however, assertions of “incompetence” will relate to the manner in which counsel dealt with a specific issue during trial, involving a matter of judgment or decision, or advice given to the defendant.  The expression “flagrant incompetence” rightly underlines an appellant’s need to show much more than a mistake, an error of judgment, or a decision to follow one course when in hindsight another would have been preferable.  But it should not deflect attention from the most critical point, namely given that there was a significant error of some kind, what will be decisive is the effect of the error on the trial.  As Lord Steyn said, in delivering the judgment of the Privy Council in Boodram v Trinidad and Tobago [2002] 1 Cr App R 103:

... the general principle requires the court to focus on the impact of the faulty conduct. (at p.ll8)

The bottom line is that to succeed, an appellant must be able to show he or she received less than a fair trial.  As the Appeal Committee said in Mak Kam Chuen v HKSAR (unrep., FAMC No 35 of 2001, [2002] HKLRD (Yrbk) 276, [2001] HKEC 1521): 

... the ultimate question for the court is whether the conduct complained of has resulted in the accused not getting a fair trial so that the conviction is unsafe or there is a miscarriage of justice.  (at p.4)’

21.  Bokhary PJ discussed the relationship between a defendant not having a fair trial due to counsel’s flagrant incompetence and the application of the proviso.

‘ 13. Delivering the advice of the Privy Council in Sankar v Trinidad and Tobago [1995] 1 WLR 194, Lord Woolf said this at p.198B-C:

In an extreme situation where the defendant is deprived of the necessities of a fair trial then even though it is his own advocate who is responsible for what has happened, an appellate court may have to quash the conviction and will do so if it appears there has been a miscarriage of justice.

As I understand that, the question of a miscarriage of justice comes in by reason of the proviso.  I would not rule out the possibility of circumstances in which an appellate court can be satisfied that the result of a trial is just even though the trial itself was unfair.  But I find such circumstances difficult to envisage.  If an accused has been deprived of something that he would have received if his trial had been fair, what the outcome of the trial might have been if he had not been deprived of that thing would naturally tend to be in the impermissible realm of speculation.  This (as one sees at pp.200H-201B of the report in Sankar v Trinidad and Tobago [1995] 1 WLR 194) is precisely why the Privy Council declined to apply the proviso in that case.

14. In R v Ho Ling & Another [1996] 1 HKC 733, defence counsel failed to advise his clients, as he plainly ought to have advised them, that the prosecution’s evidence against them was such that it was a virtual certainty that they would be convicted unless they gave evidence. They did not give evidence, and they were convicted.  The Court of Appeal quashed their convictions.  Delivering the judgment of the court, Yang CJ said (at p.736G) that evidence from the accused “might or might not have helped them”.  This echoes Toohey J’s statement in Dietrich v R (1992) 177 CLR 292 (at p.356) that “it is the loss of a chance of acquittal fairly open to an accused which in the end leads to a conviction being set aside”.  No appellate court would lightly declare a trial unfair.  But where it concludes that a trial was unfair, that leaves little (if any) room for saying in effect that such unfairness did not really matter.’

My view on counsel’s incompetence in respect of matters not put to PW1

22.  Counsel had filed an affidavit in response to the allegations made against him.  He also attended the hearing of the appeal.  Although there is certain discrepancy between what counsel said at the trial and the content of his affidavit, Mr. McCoy S.C. did not make any oral submissions on the affidavit.  Mr. McCoy S.C. and Mr. William Tam SADPP, counsel for the respondent, informed the Court that they had no questions to ask counsel.  The Court also had no questions.  Counsel declined when asked whether he wished to say anything in response.

23.  I will deal with this issue on the basis of the contemporaneous exchange between the Judge and counsel at the trial.  Much as I regret finding incompetence against counsel, I have to say that counsel was flagrantly incompetent in not observing his instructions and not putting forward his instructions to PW1 that she had changed her position and the 1^st defendant had entered her from behind.  Although counsel said that he chose not to put this matter to PW1 because she was unconscious at that time, he did, however, put to her other sexual acts between her and the 1^st defendant.  Hence the decision not to put the matter to her could not be for tactical reasons.  In my view the omission is significant for the following reasons :

1) It precluded the 1^st defendant from having his case fully presented before the jury.  His case that PW1 had indeed changed her position and let him enter from behind was part and parcel of his case that the sexual intercourse with PW1 was consensual.  As the Judge observed, what more could there be by way of submission and consent which was the very issue that the jury had to decide.

2) The jury was precluded from observing PW1’s reaction if this matter was put to her and if she was cross-examined on it.  There was a significant gap when they come to assess the evidence.

3) The jury may draw adverse inference against the 1^st defendant in not putting the matter to PW1 and only chose to raise it in his own evidence.  They might have the suspicion that the 1^st defendant belatedly made up a story about PW1 consenting to the sexual intercourse.

24.  The omission is a serious one.  This together with the subsequent decision by counsel agreeing with the Judge not to discharge the jury without seeking instructions from the 1^st defendant do have the effect of preventing the 1^st defendant from having a fair trial.

25.  The more difficult decision in this appeal is whether the 1^st defendant was indeed precluded from having a fair trial?  To consider the question one has to examine the directions given by the Judge.

26.  In my view the first direction given by the Judge to the jury immediately after the topic was raised and in the first two paragraphs in his summing up which I had quoted had certainly removed the possible prejudice of a recent invention.  The Judge had clearly directed the jury that the fault lay with counsel and not the 1^st defendant in not putting the matter to PW1.  They were directed not to draw inference against the 1^st defendant.

27.  However, I have serious difficulties with the contention that the other prejudice to the 1^st defendant was also cured by the directions.  The fact remains that the 1^st defendant was deprived from having his case of a consensual intercourse being presented fully because of counsel.  As a result there was still the missing evidential gap when the jury assessed the case.  Added to the difficulty is the Judge’s direction in the third paragraph of the summing up which I have quoted.  The Judge had told the jury that they were deprived of any reaction that PW1 might have had to the allegation that she had changed her sexual position during the intercourse because this matter was not put to her in her cross-examination and they had to judge not merely by words but also how a witness would respond to a significant matter.  The Judge further stated that in that regard, the jury did not have PW1’s response to what, if true, was ‘a manifest indication of co-operation and consent to sexual intercourse.’  They were told not to speculate.  These were clearly proper directions.  But having said that, the Judge went on to direct the jury in the third paragraph that nonetheless they were entitled to judge whether they would believe PW1 might have acted as suggested or whether it was an invented story to strengthen the 1^st defendant’s claim that she was consenting to the sexual intercourse.  Short of recalling PW1 (which was not done) to have this matter put to her and obtain an answer from her, I just do not see how the jury could adjudicate in the way as directed by the Judge.  The matter that was not put to PW1 was not trivial but significant.  As the Judge himself had observed it bears directly on the issue of whether there was consensual sex.  This is precisely the problem caused by the failure of counsel to cross-examine PW1 on this very issue.  To say that the jury must have by their verdict accepted the evidence of PW1 and rejected that of the 1^st defendant begs the question as to why in the first place a defendant was not entitled to have his case fully presented in an unembellished way.

28.  As to the rhetorical question of how a fair trial could be vitiated by the omission of one matter, the answer must be that the omitted matter must be considered in its context.  I, on my part, would hold that the 1^st defendant did not have a fair trial.  This was caused by the flagrant incompetence of counsel and on that basis, there is no room to apply the proviso.

(2)  Counsel’s incompetence in not taking instructions on discharge

29.  I have already addressed this point earlier.

(3)  Counsel’s incompetence in not challenging allegation of drug use

30.  When PW1 decided to report to the Police, her complaint was that she suspected that she had been drugged.  When asked by the Police why she had such a suspicion she revealed the story of sexual assault.  PW1 accepted that in her initial report, she informed the Police of sexual assault and not rape.  In her evidence in Court she mentioned that the 1^st defendant had a soft drugs habit.  PW2 also mentioned that the 1^st defendant took soft drugs.

My view on the drugs issue

31.  It is plain from the Judge’s summing up that the 1^st defendant wished to highlight PW1’s reason for approaching the Police :

‘ Besides, the defence suggests that the allegation of sexual assault was made because she believed that drugs had been put into the drinks, and she therefore went to the police to complain about drugs. It is suggested that she then felt that she had to make a complaint of sexual assault against D1 and indeed D2, even though the sex that had taken place had been, as she knew, consensual. It has been submitted to you that PW1 was not prepared to let the drugs issue go, and that she believed that she could not tell the police about the spiked drinks without also telling them about sex with D1 and D2.’

32.  Earlier on the Judge had given a similar direction to the jury :

‘ You must not speculate, as I have said, about matters in respect of which there is no evidence, and I direct you that, given the state of the evidence, it would be unsafe for you to conclude that PW1’s drink was contaminated with drugs by anyone, let alone by either of these defendants. The issue in this respect is whether PW1 became so intoxicated that she was unable to give her consent to sexual intercourse first with D1 and later with D2. The question of how she may have become so intoxicated, if that was the case, is not necessary for you to decide.’

33.  Mr. McCoy S.C.’s real complaint is that, while the issue of spiking of drinks may be relevant, PW1 should not be allowed to refer to the 1^st defendant’s habit of taking soft drugs and counsel was incompetent in not objecting to it.

34.  In my view although PW1 and PW2 had given evidence on the 1^st defendant taking drugs, the Judge had properly directed the jury that they should ignore the allegation of the 1^st defendant taking drugs.  This issue had no impact on a fair trial.

‘ With regard to D1, you have heard both PW1 and PW2 say that he was someone who took dangerous drugs. This has been said in the context of their suspicion that their drinks had been spiked – this is, contaminated with drugs – on the night in question. That is, they say that they had such suspicions because of the way they felt that night and because they believed D1 was a drug user.

……..

I do want to say this about drugs.  PW1 said in answer to these direct questions from the defence that D1 did have a soft drugs habit.  But if you believe her to be correct as to that, you must not, as I said to you earlier, allow that to prejudice your view of this case.  You are not trying him for an offence arising from dangerous drugs.  If you were to conclude that he did use dangerous drugs, that conclusion must be ignored for the purpose of this case.’

2)  Judge not discharging jury

35.  In the light of my view on counsel’s incompetence, it is not necessary for me to consider the ground of appeal concerning the Judge’s wrong exercise of discretion in not discharging the jury.

3)  Flagrant incompetence of prosecuting counsel

36.  Another ground of appeal relied upon by the 1^st defendant is that prosecuting counsel had in breach of the rules of fairness and/or the rule in Browne v Dunn (1894) 6 R 67 and/or with flagrant incompetence failed to fairly put the prosecution case to the 1^st defendant in relation to the matters that were not put to PW1 and the circumstances leading up to, during and after the sexual intercourse with the complainant.

37.  The transcript of evidence showed that prosecuting counsel at the trial (not Mr. William Tam, who only appeared in this appeal) only asked a few questions in her cross-examination of the 1^st defendant on what had happened inside the hotel room.

‘ Q. I put it to you that she was in such a condition that all she wanted to do was to sleep on the bed. Isn’t that correct?

A.     Agree.

Q.     I put it to you that she never responded to your sexual advances because she was in such a physical state that she was unable to do so.

A.     Disagree.

Q.     I put it to you that you, seeing her in such a physical condition, you decided to take advantage of her and have sex with her without her consent.

A.     Disagree.’

38.  Lord Herschell LC in Browne v Dunn at70 stated that,

‘ …… it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him; the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling.’

This principle applies to both civil and criminal cases : Fenlon and others (1980) 71 Cr. App. R. 307.

My view on prosecuting counsel’s incompetence

39.  It is a startling proposition that prosecuting counsel was required to cross-examine the 1^st defendant on the matters not put to PW1 and also on matters relating to the sexual activities between 1^st defendant’s and PW1 in the hotel room and that the failure to do so would vitiate a fair trial.  It may well be that the omission would preclude prosecuting counsel from commenting on the truthfulness of the 1^st defendant’s evidence but this is a long way away from saying that a fair trial has been vitiated.  I do not regard this ground to be sustainable.

4)  Direction on PW1’s self induced intoxication

40.  Although it was raised as a ground of appeal, Mr. McCoy S.C. conceded at the hearing that the Judge had given proper directions on the self-induced intoxication of PW1.  In my view, the direction given by the Judge was clear and provided proper guidance for the jury on this point.

5)  The Judge’s refusal to give a ‘genuine but mistaken’ belief direction

41.  The Judge gave a recklessness direction but refused to give a ‘genuine but mistaken’ belief direction.  Counsel at the trial considered that such a direction was not necessary for the 1^st defendant.

42.  Mr. McCoy S.C. argued that a belief is not inconsistent with the recognition of the possibility of a contrary state of affairs : but a belief is inconsistent with knowledge of a contrary state of affairs.  A defendant believed that by acquiescent conduct the complainant is consenting to sexual intercourse; that belief may prove to be mistaken, but as long as genuinely held (even if unreasonable) it is a full defence; but it is no defence if the defendant knows that the complainant is not consenting.

43.  The 1^st defendant’s mistaken belief can itself be an inference drawn from all of PW1’s conduct e.g. proceeding to the love hotel, walking hand-in-hand, she leading the way down the corridor, no objection by her to sexual activity became of her drunken state. As PW1 on her own evidence was perfectly capable of being ‘unconscious’ yet able to carry out autonomous integrated physical acts before the hotel room door, the fact-specific basis for the 1^st defendant’s possible perception exists that on the other side of the hotel door her so-called ‘unconscious’ physical acts were equally consensual.  A drunken / tired / exhausted consent by PW1 is still consent.  The scope for the 1^st defendant to misunderstand or misinterpret her capacity to give consent is real.  The (un-cross-examined) fact that she said ‘Mm’ is obvious and relevant to the 1^st defendant’s perception.

Relevant principles

44.  In the House of Lords decision of DPP v Morgan [1976] AC 182, Lord Hailsham of St. Marylebone held (at p.214) that :

(1) The ‘actus reus’ for the offence of rape is having sexual intercourse with the victim without her consent.

(2) The ‘mens rea’ for that offence is the defendant’s intention to have sexual intercourse with the victim without her consent.

(3) The prosecution has to prove that the defendant had such an intention in order to have him convicted.

(4) If the defendant genuinely believed that the victim consented to sexual intercourse, the aforesaid intention would be negated.

Standard direction

45.  The standard jury direction issued by the Judicial Studies Board on genuine but mistaken belief is as follows :

‘ If it is or may be the case that the defendant believed that she was consenting, then he cannot be guilty of rape. It is not for the defendant 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. And what if he held that 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 might 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.’

Authorities

46.  In Cheung Moon Tong and Another v. The Queen [1981] HKLR 402 at 406, this Court (Huggins VP, Cons JA and Silke J) stated that,

‘ A “Morgan direction” is not necessary in every case: it is only when the effect of the evidence as a whole, to use the words of Lord Fraser, “is that the defendant believed, or may have believed, that the woman was consenting”, when she was not, that one is necessary.’

47.  In HKSAR v. Ma Kin Yiu [2008] 1 HKCLRT 350, this Court (Cheung, Yeung and Yuen JJA) stated that,

‘ 20. Mr Cheung raised the question of whether a direction on “genuine belief” would be needed in every sexual assault case which involved dating pairs or sex partners. We wish to stress that we consider it necessary to give a direction on “genuine belief” in the present case solely on the basis of the facts of the case. Our ruling on the need for such a direction is not based on a dating or sexual relationship between the applicant and the victim. We do not consider it necessary for the court to give a direction on “genuine belief” in each and every sexual assault case involving dating pairs or sex partners. The court does not apply the law mechanically. This is because, even where a case involves dating pairs, a married couple or sex partners, if the facts leaves no room whatsoever for a direction on “genuine belief”, the giving of such a direction would only serve to confuse the jury.’

48.  In Ma Kin Yiu the Court reviewed the cases where the direction was either given or not given.  The following cases should also be considered.  In respect of HKSAR v. Yiu Chi Wang (CACC 582/2002) where at first instance the judge gave the direction, on appeal it was held that the direction was not necessary.  In that case the complainant got drunk at a bar.  When she regained consciousness, she found herself lying on the defendant’s bed and had been raped by the defendant.  She had no recollection of what happened that night save that she had got drunk at the bar.  The defendant alleged that the victim consented to sexual intercourse with him.

49.  This Court (Stuart-Moore VP, Yeung JA and Beeson J) in Yiu Chi Wang also referred to the following decision :

‘ 42. Similarly, in R v Kwok Tak-ming, Danny [1996] 4 HKC 395, a case in which the victim said she had submitted to the applicant, whereas the applicant had claimed that the victim played an active role, this court (at p. 399) observed:

“In dealing with the issue of consent, the judge began by highlighting those two different versions and pointing out that in approaching the matter the jury had to decide which of the two versions was correct. If they believed the version of the complainant, then it is difficult to see how the question of the applicant’s belief of consent by the complainant could have arisen as a live issue and it was against that background that the judge gave his direction.”

Later (at p. 401), the judgment continues with the statement that:

“The defence was in fact that she did consent and any question of a genuine belief that she consented only came to be mentioned because the judge was attempting to be more than fair to the applicant; he was under no obligation to give a direction upon it.’

43. Bearing in mind the enormous gulf between the two versions in the present case, it can readily be seen that “mistaken belief” as a defence to rape was not a matter which, as Mr Saw rightly submitted, could ever have arisen on the evidence.’

50.  In R v. Chow Siu Hei and another (CACC 692/1995), this Court (Power VP, Bokhary and Mayo JJA) dealt with a case where the complainant was in a comatose state due to excessive alcoholic intake when she was raped.  The defence was consensual sex.  This Court held that,

‘ There is a stark difference between these two sets of evidence. The evidence of the victim is that she was gang-rape when she was comatose. The evidence of D1 is that she was a willing, indeed eager, partner. The direction given by the judge was a tailored-made to the circumstances of this case. We refer to the case of Anthony Edward Haughian and Arthur Reginald Pearson [1985] 80 Crim. App.R. p.334 and to the judgment of O’Connor L.J. at p.341 where he said:

“In cases such as the present in which the conflict of evidence between the complainant and the accused is acute and in which, if the jury decides that the account given by the complainant is truthful, there is no room for a genuine but mistaken belief by the accused that she was consenting, any over elaborate direction to the jury on the question whether the Crown has proved that the accused knew that the complainant was not consenting would only tend to confuse them and would be unnecessary.”

We emphasize those last words.  We are satisfied that had an elaborate direction been given in the present case it could have done nothing but confuse the jury.’

51.  In HKSAR v. Wai Sze Lim (CACC 442/2006), the complainant and the defendant were former schoolmates.  They attended a reunion dinner together.  Afterwards they went for drinks at a bar.  The defendant drove the complainant home.  She sat at the back of the car and fell asleep.  When she woke up, the car was stationary and the defendant was trying to arrange her clothing.  She suspected that she had been molested by the defendant.  The defendant was charged with rape.  The defendant relied on consensual sex.  He said that the complainant was not drunk and had not fallen asleep.  She removed her clothes and demanded sex from him.  This Court (Stuart-Moore VP, Beeson and McMahon JJ) first discussed whether there was the need to give a recklessness direction,

‘ 17. We are, however, concerned as to whether a direction as to recklessness was necessary on the evidence before the court. The complainant’s evidence was that she was asleep at the time of the offence. The applicant’s evidence was that she was wholly awake and had initiated intercourse. It is difficult to see how recklessness was, on that evidence, a live issue at trial.’

52.  Referring to the possibility that the jury may reject the defendant’s evidence and accept that of the complainant to the effect that she did not consent to any sexual intercourse because she was asleep and the jury may have thought the defendant may have had intercourse with the complainant without his being sure whether she was consenting or not, this Court held that,

‘ 20. But any such possibility would have been quite contrary to the evidence in the case. Even had the jury rejected the applicant’s evidence it is difficult to see, without more, how the applicant could have thought a sleeping woman was consenting to sexual intercourse. In our view, in the circumstances of this case, the recklessness direction strictly speaking was unnecessary.’

53.  The Court further rejected the need for a genuine belief direction

‘ 24. The judge in his directions to the jury as to what the prosecution had to prove said this :

“ So before you could convict the defendant you have to be sure of these things: (1) the defendant had sexual intercourse with [the complainant]; (2) that at the time of that act of sexual intercourse [the complainant] did not consent to it; (3) that at the time of the sexual intercourse either the defendant knew that [the complainant] did not consent, or he was reckless as to whether she consented or not.”

25. That direction was repeated in written directions subsequently handed to the jury.  The judge then went on to say in expanding on the third element of the offence:

“ The prosecution says you can be sure the defendant knew she was not consenting, because he achieved the sexual intercourse knowing she was not conscious. If you are not sure of that, the verdict is one of not guilty and the case is over.” [Emphasis added]

26. On the basis of that direction the jury must have been well aware that if they were not sure the applicant knew the complainant was not consenting they had to acquit.

27. We might add that in the circumstances we have already outlined it was never the defence case that the applicant may have mistakenly believed the complainant to have been consenting.  That being so, we are satisfied the direction given by the judge was more than sufficient.

28. This ground had no merit.’

My view on genuine but mistaken belief direction

54.  As pointed out in Cheung Moon-tong the direction is only necessary when the effect of the evidence as whole shows that the defendant believed or may have believed that the woman was consenting.  I do not consider that as a prerequisite for the direction to be given it is necessary for the defendant to state that he was genuinely mistaken that the woman had consented.  Rather, the Court is to ascertain whether on the evidence the defendant believed or may have believed there was indeed consent.  While the belief is subjective, the Court has to ask itself whether objectively the evidence may give rise to the possibility of the defendant believing that the complainant had consented.  In this case, PW1 and the 1^st defendant were not strangers.  They knew each other at school.  Prior to the night in question, in March 2008, they started sending messages to each other by MSN and on 14 June 2008 PW1 attended the 1^st defendant’s birthday party.  As the Judge directed the jury some of the texted messages were personal in nature although not exceptionally so.  On the night in question the CCTV tape also showed PW1 and the 1^st defendant were holding hands when they exited from the lift of the building where the club was.  After they got on the taxi, PW1 realised that they were going to a hotel.  When they arrived at the hotel the CCTV tape showed that PW1 was standing with the 1^st defendant at the hotel counter before proceeding on her own to a sofa and sat down.  Afterwards, PW1 and the 1^st defendant were seen holding hands after they exited the lift and walked along the corridor towards the hotel room.

55.  Although the 1^st defendant agreed with the question put to him by prosecuting counsel that when they entered the room the condition of PW1 was such that all she wanted to do was to sleep on the bed, he also said that after he had used the washroom, he saw PW1 lying on the bed and that she was awake.

56.  The evidence of PW1 is that on the night in question her state of awareness of what was happening to her or around her varied from time to time.  This being the case, could she really be in a position to refute what the 1^st defendant said had happened that night?  In the context of this case (and I emphasis this direction must be considered in the context of each case), I would hold that the direction was needed despite the contrary view of the Judge and trial counsel.  It is not suggested that a further direction along the lines stated by the trial judge in Wai Sze Lim had been made in the present case.

57.  The Court has raised the issue in the course of the discussion whether the genuine but mistaken belief direction was not necessary because of the ‘recklessness’ direction given by the Judge, namely,

‘ A man would be reckless as to whether a woman consented to sexual intercourse if he knew there was a risk that she was not consenting but he carried on anyway, when, in the circumstances known to him, it was unreasonable to do so.’

58.  In view of the fact that this issue has not been fully canvassed by counsel in the appeal, I would refrain from dealing with it.  It is sufficient for me to say that it seems that there is indeed a distinction between belief and knowledge and the genuine but mistaken belief direction is distinct from the recklessness direction.

Disposal of the 1^st defendant’s application

59.  I would, on my part, grant leave to the 1^st defendant and allow his appeal against conviction.  I would like to indicate that my intention is to hear arguments on a retrial if his conviction is quashed.

The 2^nd defendant’s grounds of appeal

1)  Genuine but mistaken belief direction

60.  The 2^nd defendant argued that a genuine but mistaken belief direction is required.  Mr. Bruce Tse who appeared below had requested such a direction but was refused by the Judge. Mr. Plowman S.C. and Mr. Tse, counsel for the 2^nd defendant referred to the following parts of the summing up :

‘ (1) “There is evidence in D2’s case that whilst he was having sexual intercourse with PW1, she said “No”, and “Don’t interfere with me”, and turned her body, and a few seconds later he ceased having sexual intercourse with her and left the bed.” (AB 25 P-S)

(2) “The prosecution case is that PW1 did not resist at first, and when she did, after sexual intercourse had commenced with D2, he did back away from her by leaving the bed.”  (AB 50 U-51B)

(3) “According to PW2, PW1 attempted to move her shoulders as if she intended to push him away, and after five to six seconds, Ah Ming then left the bed and did not return.” (AB 52G-I)’

61.  Counsel further referred to the following evidence of PW1 

‘ Q : At the time, did you do anything?

A: I felt very cold at that time and then I pushed him away with force.

Q. And then?

A: I did shout ‘No.’

Q: And then what happened?

A: Then he left.

Q: What do you mean ‘Then he left’?

A: He no longer pressing against me.

……..

Q:    …..When you moved your body around to avoid him, and you shouted “no”, he came off you, he came – he did not touch your any longer, is that correct?

A:    Right.’

62.  It was submitted by counsel for the 2^nd defendant that the sexual activity between the 2^nd defendant and PW1 lasted for about two to three minutes or so and PW2 was watching closely nearby all the time; PW2 believed PW1 was sober/conscious and knew what she was doing.  PW2’s evidence was

‘ Q: At the time, [PW2], you believed [PW1] consented to what was going on between she and Ah Ming, correct?

A: I could not say that it’s consented, I could not say on behalf of [PW1] that she consented, but I just thought at that time she was conscious of what was happening.

……….

Q: You also told the police, [PW2], that you believed at the time [PW1] knew what she was doing?

A: Correct, that is what I thought.

Q: That’s why you did not interfere, right?

A: Correct.

………….

Q: Can you please go to page 3, please, the third paragraph on the page, the fourth line, please, can you read that out?

A: ‘I saw the body of Ah Ming moving to and fro and I also felt the bed was moving and I thought [PW1] was conscious or sober of what she was doing so I did not stop Ah Ming

…………

Q: Well, the matter, or what was happening between [PW1] and Ah Ming as described lasted for about two to three minutes, am I correct?

A: Yes.

Q: …..it was clear, was it not, to you that Ah Ming and [PW1] were having sex?

A: Yes, if you are asking me according to my perception what they were doing at the time, yes, I thought they were having sex.

Q: So you were watching very closely what was going on?

A: As what I said, it’s just a distance of one foot.

………….

Q: What were you doing at a foot away from those two people?

A: I was still lying on the bed watching what was happening.

Q: Every second of those two to three minutes?

A: Correct.’

63.  PW2 further testified that the 2^nd defendant stopped and left PW1 alone just seconds after PW1 said she was cold.

‘ Q: First of all, [PW2], so soon as you heard [PW1] saying “I’m cold” etc, Ah Ming immediately left her, left the bed, am I correct?

A: Yes, after roughly five to six seconds.’

64.  In my view there was no room for the direction to be given for the 2^nd defendant.

(1) PW1 only met the 2^nd defendant twice at the club where he worked as a bartender.  She described the 2^nd defendant as an ‘absolute stranger’ to her.  In the early part of the night in question, the 2^nd defendant’s role was to serve drinks to the party goers including PW1.  He had described no intimate acts between him and PW1 at the bar which might give him the impression that PW1 would be willing to have sex with him later on.  The fact that PW1 seemed to be willing to go to a hotel with the 1^st defendant cannot be the basis for the 2^nd defendant to have a genuine but mistaken belief that she would be willing to have sex with him as well.

(2) The 2^nd defendant did not in his record of interview adopt what PW2 had said, namely, she believed the 1^st defendant said to the 2^nd defendant that ‘She’s (i.e. PW1) Okay.  You can do it’, to be the basis for his belief that PW1 was consenting to have sex with him.  This was also not relied upon in the appeal.

(3) The 2^nd defendant must have seen the state of PW1’s intoxication when he accompanied her and the 1^st defendant to the hotel.  The fact that PW1 initially did not resist him when he kissed her, touched her breast and rubbed against her (because she was unable to resist) could not have given him the mistaken belief that she was consenting.

(4) The fact that the 2^nd defendant stopped when PW1 pushed him away and shouted ‘no’ does not mean that there was room for a genuine but mistaken belief that PW1 was consenting to have sex with him in the first place.  On the contrary the resistance put up by PW1 is an indication that she had not given consent to the sexual intercourse at all.

(5) PW2 thought that PW1 was conscious, this must be understood in the context in which PW2 gave this evidence.  She said ‘…. I would think that if someone touch you or have any movement, if you are conscious then you would be able to feel that… and at that time because of such I thought she was conscious or sober.’ Properly understood, it could only mean that PW2 thought PW1 to be conscious because she did not immediately stop the 2^nd defendant from having sex with her.  The intoxicated state of PW1 must be considered.

2)  The Judge erred in allowing evidence of suspicion of PW1’s drinks being spiked to be given

65.  This is not a valid point because counsel for the 1^st defendant wanted this issue to be before the jury as part of the 1^st defendant’s defence.  The Judge could not have excluded such evidence from being adduced.  In any event, the Judge had given proper direction to the jury that it was unsafe to speculate that the drinks had been contaminated with drugs.

3)  Inadequate direction on self induced intoxication

66.  The 2^nd defendant adopted the submission of the 1^st defendant on this issue.  However, the 1^st defendant conceded that adequate direction was given by the Judge.  This point was not pressed by the 2^nd defendant.  In any event, as pointed out earlier, a proper direction had been given.

Disposal of the 2^nd defendant’s application

67.  I would dismiss the 2^nd defendant’s application for leave to appeal against conviction.

Hon Yuen JA :

68.  I have read the draft judgments of Cheung JA and Line J.  After much deliberation I have come to the view that the appeal must be allowed on the ground that no direction was given to the jury on genuine but mistaken belief. Before I give the reasons for that decision however, I will first express my views on the counsel’s incompetence ground. 

Counsel’s incompetence ground

69.  In respect of the 1^st ground of appeal, I take the view that whilst counsel appearing at trial for the 1^st Defendant (hereafter “trial counsel”) had no good reason for omitting to put to PW1 his client’s instructions concerning the allegation that she changed her position during intercourse to facilitate his entering her from behind, in the circumstances of this case it did not amount to flagrant incompetence such as to warrant the appeal to be allowed on this ground.

70.  First and foremost the prejudice suffered by the 1^st Defendant by this omission was the risk that the jury would draw an adverse inference against him that he had invented this allegation whilst giving evidence because it had not been put to PW1 by trial counsel in cross-examination.  However this prejudice was completely purged by the trial judge’s strong and clear direction to the jury that the fault for the omission lay with trial counsel and not with him.

71.1  Whilst it is true that the judge also took trial counsel to task as the jury had been deprived of the opportunity to observe PW1’s reaction when such an allegation is put to her in cross-examination, I take the view that this did not result in the 1^st Defendant not having a fair trial. 

71.2 It was clear from the cross-examination that PW1 categorically and consistently denied all allegations put to her which suggested that sexual intercourse was, as trial counsel expressly put to her, “consensual and reciprocal”.  When she had denied even having talked and laughed about a relatively innocuous act such as the 1^st Defendant’s offer to massage her head and shoulders, it is unrealistic to expect that her reaction to an allegation of change of position could be anything other than adverse to the 1^st Defendant.

71.3 The trial judge alluded to this when he said to the jury that “you might infer, given the rest of her evidence, that she would have denied it”, but this was followed by his direction that as it was the decision of trial counsel, not the 1^st Defendant, not to put the allegation to PW1, it would be unfair to criticize and that the jury was not to speculate about how PW1 would have reacted if such an allegation had been put to her.

71.4 There is also the point that PW1 could have been recalled for the allegation to be put, and her reaction observed, so that the evidence could be complete.  That this step was not taken was not a ground of appeal.  The fact that the experienced trial judge did not, in his discussions with counsel, suggest recalling PW1 demonstrates that in substance the only real prejudice suffered by the 1^st Defendant by the omission had been purged by the trial judge’s directions.

72.  As for the trial judge’s direction that the jury was entitled to judge from all the evidence whether PW1

“may have acted in this way with D1 in all the circumstances you know about during this first act of sexual intercourse between them, or whether you are sure that this is an allegation which has been invented to add strength to the defendant’s claim that she was consenting to have sexual intercourse with him”,

the allegation about the change of position was part of the 1^st Defendant’s evidence and the judge could not have ignored it in his summing-up to the jury.  I take the view that this was a proper direction in the circumstances, given the matters I have discussed in the preceding paragraph.

Genuine but mistaken belief ground

73.  I now come to the genuine but mistaken belief ground.  It is well-established that whether such a direction should be given depends on the particular circumstances of each case.

74.  In the present case, the undisputed evidence was that PW1 and the 1^st Defendant were at school together, and for 3 months prior to the incident, had been chatting to each other on MSN, involving messages about relationships which were, in the judge’s words, “quite personal in nature but not exceptionally so”.  She was 20 and the 1^st Defendant was 23.  They were both single and employed in responsible positions, she at an airline and he as a financial planner. 

75.  The judge left it to the jury to decide whether, having seen the MSN messages, “was this [PW1] a young woman pushing herself forward to commence a relationship with a young man?”  According to the 1^st Defendant he had asked her out on a date a couple of months before the incident but that did not materialise.  There were MSN messages about his taking her out.

76.1 More importantly it is clear from the judge’s summing-up that it was part of the 1^st Defendant’s case that some MSN messages from PW1 gave the 1^st Defendant the impression that she was a “hardened drinker”.

76.2 A few days before the incident the 1^st Defendant invited PW1 to his birthday party at a club.  PW2 called the 1^st Defendant a few days later proposing drinks at the same club.  According to the 1^st Defendant she told him PW1 would come, as in fact she did.  It is not disputed that at the club, PW1 voluntarily had a substantial quantity of alcohol.  On PW1’s own evidence, she had consumed similar quantities before.  This may support the defence case that she was a “hardened” or at least regular drinker.

77.1 PW2 fell asleep at the club.  PW1 did not.  PW1 said frequently during her evidence that after drinking at the club, she was “unconscious”.  It is important to note that when PW1 used this term, she did not mean “comatose” or “sleeping”, but in effect “unaware” of what was going on, even though she was apparently autonomous. 

77.2 Therefore the cases cited to us dealing with sexual intercourse with women who were comatose or sleeping are not apposite.

78.1 There was no evidence that PW1’s drinks had been “spiked”.  The only evidence before the jury was that when PW1 went to hospital the morning after the incident, the results of her tests did not indicate the presence of any drugs.

78.2 More importantly there is in any event no evidence that the 1^st Defendant was aware that PW1’s drinks had been “spiked”.  He was of course aware that she had been drinking - but his perception of her ability to hold her drink had to be considered in the context of the MSN messages suggesting that she was a “hardened” or at least regular drinker, and there were no previous occasions when they had been drinking together when he had been able to assess her ability to hold her drink (other than the birthday party where there was no evidence that she had got intoxicated).

79. It is correct that even on the 1^st Defendant’s own case, he helped PW1 off the floor of the toilet, and the CCTV images taken in the lift of the club showed PW1 on the floor, but PW1 also admitted that she was able to make a telephone call to a friend whilst in the toilet, and afterwards the CCTV images showed her walking out of the building.  It may be that she was being led out of the building by the 1^st Defendant, but her physical state was not such that she needed to be supported. 

80.  More importantly, in her statement to the police, PW1 said that she knew, whilst she and the 1^st and 2^nd Defendants were in the taxi, that their destination was the hotel.

81.1 The CCTV images from the hotel lobby show that only the 1^st Defendant and PW1 went in.  They show PW1 tidying up her hair, and walking by herself to an armchair where she sat after the 1^st Defendant left the hotel to use a teller machine. 

81.2 She did not call the friend whom she knew had called her in the taxi, or leave the hotel, or at least approach the lobby staff for assistance if she was feeling ill.           

81.3 The CCTV images showed that after the 1^st Defendant returned, PW1 went up the lift with him and walked down the corridor with the 1^st Defendant holding her hand.  Again it may be that she was being led to the room by the 1^st Defendant rather than holding hands walking, but her physical state was not such that she needed to be supported.  Her actions were apparently autonomous.

82. It is against the backdrop of these matters that the issue whether there should have been a direction of genuine but mistake belief arises.  If the 1^st Defendant genuinely had or might have had the belief that PW1 was consenting to sexual intercourse, then the prosecution would have failed to prove that he knew or was reckless about lack of consent.

83. The specimen direction is as follows:

“ If the defendant may genuinely have believed that [the complainant] consented, although such belief may have been mistaken, then he is not guilty of rape. When you are considering whether he [may] genuinely [have] believed that she consented, you should have regard to the presence or absence of reasonable grounds for such belief together with any other relevant matters”.

84.  In the present case, matters which could have been left to the jury as reasonable grounds for such belief included:

- the MSN messages which, at least on the 1^st Defendant’s interpretation, showed PW1 was “pushing herself forward to commence a relationship” with him,

- the fact that PW1 left the club with the Defendants leaving her friend PW2 there,

- the fact that she knew they were going to a hotel and did not express any objection,

- the fact that she remained in the lobby by herself when the 1^st Defendant had left the hotel, and

- the CCTV images that showed, in the words of the judge, that when they walked across the lobby to the lift, “she [was] slightly in the lead at first, and apparently walking unaided”.  At least by the time she was walking towards the room along the corridor, she was walking without support.

85.1 Of course PW1 also said in evidence that she had just wanted to sleep in the hotel and that from time to time she was not aware of her actions.

85.2 The jury could have been directed to consider whether the 1^st Defendant might have thought that PW1 could have slept at the club which was what PW2 was doing and that the 1^st Defendant’s evidence was that when he proposed going home, she said “my home or your home?”

85.3 As for PW1’s state of awareness, there was no evidence that her drinks had been “spiked”, or that the 1^st Defendant was aware of that, and the 1^st Defendant’s evidence was that the impression she gave him in the MSN messages was that she was a hardened or at least regular drinker.  The jury would have to consider the 1^st Defendant’s belief when PW1 was aware that they had gone to a hotel, and as the CCTV images showed, she was capable of autonomous actions, and had the opportunity to leave.

86.  In these circumstances, I take the view that a direction should have been given to the jury that they should consider whether the 1^st Defendant had a genuine but mistaken belief that PW1 was consenting to sexual intercourse, and if that were the case, then the prosecution would have failed to prove that he knew or was reckless about lack of consent. 

87.1 The issue was not whether the jury believed that PW1 was from time to time unaware of what she was doing, as she repeatedly explained - at the trial in the witness box -, but whether the prosecution could prove that the 1^st Defendant knew - that evening in the hotel room - that she was not so aware, despite her apparently autonomous actions. 

87.2 As for the fact that PW1 allowed the 2^nd Defendant, a brief acquaintance, to have sexual intercourse with her, that does not affect the 1^st Defendant’s awareness of PW1’s condition as he (the 1^st Defendant) had already finished intercourse with her before the 2^nd Defendant commenced.

88.  Finally I would add for the sake of completeness that to only give a direction that a defendant would be reckless

“if you found that he knew there was a risk that she was not consenting, and carried on anyway when, in the circumstances known to him, it was unreasonable to do so”

may or may not be inadequate, as the jury is not told that “the question must always be whether you are sure that he himself did not hold such a belief” (emphasis added).  However as this has not been argued, I should say no more. 

89.  In the circumstances I take the view that the appeal should be allowed so far as the 1^st Defendant is concerned and that the parties should be heard on the question whether there should be a re-trial.  As for the 2^nd Defendant, I agree with the reasons given by Cheung JA for dismissing his appeal.

Hon Line J :

90.  The facts have already been set out.

91.  Ground one of the amended perfected grounds of appeal of the first applicant complains that defence counsel at trial displayed flagrant incompetence:

(a)  in failing to put to PW1, the complainant, as his written instructions required him to do, that PW1 in the course of sexual intercourse altered her position from a missionary position to kneeling on the bed to facilitate further sexual intercourse by the applicant from behind her;

(b)  in failing to put to PW1 that she was moaning in pleasure and actively participating in sexual intercourse;

(c)  not relevant;

(d)  without seeking instructions informed the learned judge that after his incompetence in (a) above was admitted, that there was no need for the jury to be discharged.

92.  Ground two complains “that the Judge’s directions to the jury in this regard were inconsistent, confusing and invited the jury to even speculate to the extent that they were invited to decide whether the “unput” instruction may have been a false invention to strengthen the applicant’s affirmative case.  This only exacerbated the original failure of defence counsel”.

93.  Ground three complains that the Judge erred in the exercise of his discretion to refuse to discharge the jury.

94.  These three grounds involve the cross examination of PW1 by counsel for the first applicant.  The relevant part of it reads thus:

“Q. Now, inside that bedroom, may I suggest to you that this happened, that first of all you and Lee chatted for a little bit?

A. Incorrect.

Q. You told him that your head and shoulders were tired and he offered to massage them for you.

A. Incorrect.

Q. And you agreed that he should do it.

A. Incorrect.

Q. You were talking together and laughing about it?

A. Incorrect.

Q. And eventually you both sat together in the bed so that he could massage you on your shoulders.

A. Incorrect.

Q. Both of you, Lee and you, both kissed.

A. Incorrect.

Q. When Lee kissed you, you reciprocated.

A. Incorrect.

Q. And there then followed more kissing, kissing that became more intimate to which you responded.

A. Incorrect.

Q. You were - you and Lee were, what I understand to be termed, “petting” that is each fondling each others body.

A. Incorrect.

Q. And it was not just he fondling your body but you were reciprocating by fondling him.

A. Incorrect. Why I would do such thing?

Q. And it led to taking off each other’s clothes. In fact it was you who took off Lee’s vest that he was wearing.

A. It was not done.

Q. He managed to unhook your brassier but couldn’t take it off and it was you who completed that operation but kept your vest on.

A. Incorrect.

Q. I suggest that you helped each other to take off your jeans, that is the jeans - that is the trousers that he was wearing and your jeans.

A. Incorrect.

Q. There was foreplay between you where each touched and fondled each other’s private part.

A. Incorrect.

Q. You were kissing each other during this time.

A. Incorrect.

Q. That Mr Lee produced a condom and you signalled your agreement by nodding your head.

A. Disagree.

Q. And indeed before he entered you, he looked at you again and you agreed there should be sex by nodding your head.

A. Incorrect.

Q. What I’m suggesting to you, [PW1] is the sexual intercourse that you had with Mr Lee was consensual and reciprocal.

A. Incorrect. I was unwilling.

Q. You reciprocated the passion that he’d demonstrated for you.

A. Incorrect.

Q. And after it was over, you held each other and kissed each other, did you not, and chatted?

A. Incorrect.

Q. You talked together, did you not about he becoming your boyfriend?

A. Incorrect.

Q. And you accepting.

A. Incorrect.

Q. Now, I also suggest this to you that - that when - that you were awake when Ah Ming - that is the 2nd defendant, and [PW2] - rang the door bell of the bedroom to come in.

A. Incorrect.”

95.  Whilst it may have been preferable for counsel to have put directly to the witness that she was moaning with pleasure, I am of the view that his question “you reciprocated the passion that he’d demonstrated for you”, against the background of the other matters he had put, was sufficient to avoid the omission as being correctly characterised as flagrantly incompetent or in significant error.

96.  I judge that the changing of positions and the reason for it should have been put to the witness.  It was an error not to do so.  As the judge said to the jury, it was “a manifest indication of co-operation and consent in relation to sexual intercourse”.  What was its impact on the trial?  It is common ground that the first applicant must show that he received less than a fair trial by reason of the error if he is to succeed on these grounds, (per Sir Thomas Eichelbaum in Chong Ching Yuen v. HKSAR (2004) 7 HKCFAR at paragraph 49).

97.  The most immediate damage to a defendant that may arise when a significant matter is not put by his counsel is that the jury may think his evidence about it to be a late invention.  This not uncommon situation is habitually dealt with by counsel acknowledging the fault in front of the jury and the judge giving a warning in terms that tells them they must draw no adverse inference against the defendant because of it.

98.  This course was adopted in this case.  When the matter was first ventilated the judge had counsel tell the jury that he had written instructions about the change of positions and he then gave the jury the relevant warning in the strongest possible terms.  The judge then repeated the warning in his summing up.  He said this:

“ What was not put to her was D1’s case that during the sexual encounter they had changed positions, and that she had knelt on the bed and that he had then had sexual intercourse with her from behind. The very first time this was mentioned in court was during the defendant’s own evidence. You may have found it to be a rather startling revelation. So much detail had been put to PW1 about the events at the Coins Club and at the hotel, some of which you may think to be trivial and insignificant, that you may have wondered why she was not asked about this.

You will recall that I asked Mr Andrews about this in your presence, and he told us that this allegation formed part of his written instructions prior to him cross-examining [PW1]. He said he had decided not to put the matter to [PW1]. The reason I raised the matter then in front of you is that, as must have been obvious to you during this trial, counsel has a duty to put all significant parts of his case to witnesses so that they have a chance to respond to particular allegations, and also, if something important emerges for the very first time during a defendant’s evidence, it may look as though he is making it up in the witness-box. Mr Andrews’ assurance that this was part of his instructions from the defendant means that you can accept that the defendant was not making it up in the witness-box. Mr Andrews’ failure to put the matter to the witness means that you, the jury, have been deprived of any reaction she might have had to such an allegation.

You might infer, given the rest of her evidence, that she would have denied it, but you are judging not just by words but also by how a witness responds to something that is significant, and you do not have this in relation to what is, if true, a manifest indication of co-operation and consent in relation to sexual intercourse. You may find it extremely surprising that it was not put to PW1 for her comment and reaction, but, and this is the crucial point, as I told you when dealing with the matter earlier during the trial, you must not draw any inference against D1 in respect of it. The decision was that of his counsel, not him, and it would be unfair to criticise. Neither may you speculate about how [PW1] would have reacted if such an allegation had been put to her. The fact is you have been deprived of her reaction as a witness, and that is as far as one can go.

You are nevertheless entitled to judge, from what you have seen and heard of PW1, [PW1], and from the evidence generally, including that of D1, whether you believe that she may have acted in this way with D1 in all the circumstances you know about during this first act of sexual intercourse between them, or whether you are sure that this is an allegation which has been invented to add strength to the defendant’s claim that she was consenting to have sexual intercourse with him.”

99.  The jurors can have been left in no doubt that they must not take the omission to have the matter put to PW1 in any way against the first applicant and that they must not think he was making the matter up in the witness box.  I am satisfied that the potential prejudice in this regard was nullified by these directions.

100.  The claim in ground two that these directions were inconsistent and confusing and exacerbated the matter are in my judgment unsustainable.  The alleged inconsistency was between inviting an inference that PW1 would have denied the suggestion and a direction not to speculate about how she would have reacted to the allegation.  The judge was making a clear distinction between the very reasonable expectation that she would not have accepted the allegation, given her other answers about what was going on, and how that may have been expressed: in other words her demeanour.  Denial was capable of inference: how she may have denied was not.

101.  Mr McCoy SC suggested in argument that the judge was not entitled to invite the jury to draw the inference that she would have rejected the allegation.  I regret to say that I find it to be a submission that has lost touch with reality.  One only has to cast one’s eye over the transcript to see the material which would justify the jury in coming to that sensible conclusion. She can be seen to be rejecting each and every suggestion of consensual intimacy.  The idea that this further single suggestion, albeit important, would not have gone the same way is fanciful.

102.  At the same time the judge was right to point out that one could not know how she would have responded in the sense of her demeanour or emotional response.  It may be that she would have adopted the single word “incorrect” as she did to other suggestions.  It may be that it would have prompted more.  There are examples in the transcript where this occurred.  There was no obvious inference in this regard and this was the area where the judge rightly told the jury not to speculate for the suggestion was one that may have produced a more emotional response, given how it graphically suggested enjoyment.

103.  The final paragraph quoted above was one that attracted attack from Mr McCoy SC because, he said, it invited the jury to consider whether the first applicant’s allegation may have been an invention.  If I followed him correctly, it was said that this was either an impossible or impermissible task as the matter had not been put.  The invitation by the judge was no more than an invitation to asses any available evidence that bore on the topic.  He mentioned in particular the evidence of the first applicant and that of PW1.  The idea that the jury was prevented judging the matter from the evidence because there was no direct question of PW1 on the topic is frankly simplistic.  They were well able to do so and were fully entitled to rely on the indirect evidence from PW1, namely her other repeated denials of what was put as part of the suggested course of consensual conduct.  The paragraph also reminded them to address the question in terms of the burden and standard of proof.

104.  The second potential for prejudice from counsel’s failure is that the jury was deprived of seeing PW1’s response to the suggestion.  It is true, of course, that they did not see her reaction to this one question, but the idea that this rendered the trial unfair is one that cannot be countenanced.  They saw her dealing with the course of consensual conduct that was suggested by counsel. They saw her rejecting her alleged enthusiastic participation with both applicants.  She was in the witness box for just short of four days.  The jury had ample material on which to form a sound judgment.  Nothing has been suggested that would lead one to think that her reaction to this particular mode of participation would have been any different to the others that were suggested.  There was nothing to suggest that her reaction, even if different, would have been different in a way that could have been favourable to the first applicant, let alone so potentially favourable that his trial became an unfair one.  There was every reason to infer an unfavourable answer and reaction.

105.  For the same reasons that the trial was not unfair, the judge was right not to discharge the jury after nine days of hearing.  The matter was canvassed between bench and bar and no counsel asked for it.  The decision was so obviously right that it calls for no further discussion.  What passed between the first applicant and his counsel concerning a re-trial is thus of no account.

106.  What was not canvassed was the prospect of re-calling PW1 so that the matter could be put to her.  Neither was the failure made the subject of a ground of appeal although it was adverted to in argument.  At first blush that may seem surprising, but experience shows that recalling a witness on a topic like this pays only lip service to the rules and serves no real purpose.  The cross examination cannot be undertaken again.  The single question is put, the witness predictably says no or disagree and leaves.  The addition to the evidence is theoretical rather than real.  It is impossible to re-create the feelings and atmosphere that cross examination produces.  The context for an emotional response has passed and cannot be re-created.  Recalling a witness is desirable if it is likely to lead to something new which should have been in evidence if the case had been properly put to the witness in question.  That was not the case here.  Recalling PW1 and putting the question was likely to lead to no more than that which was to be readily inferred: verbal rejection. It is these considerations that would explain why the course was neither discussed nor taken.  The failure to do so had no impact on the fairness of the trial.

107.  The idea that applicants can successfully come to this court for the failure of their counsel to put one line of their instructions, when the general gist of the case was put, is one that would be met with dismay by those who try these cases and appreciate the realities of such trials at first instance, including the quality and timing of the instructions counsel receive.

108.  Turning to the question of whether the judge should have given an honest belief direction, I need only deal with the case of the first applicant, agreeing as I do with the majority that there was no room for such in the case of the second applicant.

109.  The law is easy to state in this regard: if the evidence calls for such a direction it must be given.  It is a question of fact in each case.  The authorities cited to us provide factual examples.  Cases such as HKSAR v. Yiu Chi Wing CACC 582/2002 (woman waking up in defendant’s bed, with no recollection how she got there, with him having intercourse with her); R v. Chow Siu Hei CACC 692/1995 (woman comatose whilst gang raped); HKSAR v. Wai Sze Lim CACC 442/2006 (woman waking in back of car to find defendant re-arranging her clothes after the intercourse) show that, where the condition of the victim, especially her state of awareness or consciousness, was such that a man could not have mistakenly thought she was consenting, the direction was not necessary and indeed was best avoided lest it distract the jury from the real issue.

110.  Counsel for the first applicant, when the question of whether or not to give the direction was raised, said this: “that at the heart of this matter there is an issue of consent or no consent, and there could have been no mistake about this”.  I agree with him.  The first applicant was in the best position to say whether or not his belief in consent was based on fact or mistake.  Counsel did not wish the direction to be given and there is no criticism of his competence in this regard.  It was a legitimate tactical decision.  Counsel must have judged that he was better off with the directions catering for the way the case had been conducted, which was on the issue of consent.  He must have judged that he was not better off with directions about a defence he had not adopted and which proceeded on the basis that PW1 had not in truth been consenting.

111.  Was there evidence in the case that made it imperative for the judge to go behind the issue that the parties framed and argued to the jury?  I judge not.  If there was to be any doubt about a lack of consent then the jury was obviously bound to acquit.  The jury would have to believe PW1’s evidence about her condition for them to find a lack of consent and so convict the first applicant, as they unanimously did.  Once sure of her condition what room was there left for a mistaken belief in her consent?  I judge that there was realistically none.  For that condition was one which she had described as being beyond the usual effects of taking alcohol.  It allowed the first applicant to have sex with her without her being aware of it.  It allowed a virtual stranger to have sexual intercourse with her almost immediately thereafter, of which she was only dimly aware, in circumstances where she lacked the ability to prevent it, even though her friend was there to call upon for help.  The jury must have been sure that she did not consent to this second act of sexual intercourse for the second applicant was convicted of rape.  How could mistake sensibly run if she was in such a condition that allowed for all of this?  It is no surprise to me that counsel did not want to argue for it. It is no surprise to me that the judge considered it unnecessary and of no help to the jury in its task.

112.  What is capable of being identified in the evidence that would afford scope for mistake and the need for the direction?  Let me turn to those matters at paragraphs 54-56 in the judgment of Hon Cheung JA.  I will take the matters in turn.

113.  The fact that the two had some acquaintance and had some SMS contact before the events in question cannot of itself have laid the ground for a mistaken belief in consent.

114.  The next three facts (two hand contacts and going to the sofa in the lobby) came from the CCTV tapes.  The judge summed up all the points to be made from the CCTV tapes (and there were more than these three, both for and against) comprehensively and with balance and fairness.  The jury obviously believed her evidence about the state she was in.  Her state obviously explained satisfactorily to them her actions as seen on the CCTV tapes such that they were not to be taken as an indication of any conscious and willing co-operation with a view to going for sex in the hotel with the first applicant.  If they had not believed her about her condition they would have been bound to acquit, for her condition was the sole explanation of how it was possible that she was raped by the first applicant.  I would suggest that there was simply no scope for the jury to think that the first applicant could have mistaken her condition given the amount of time he spent with her in intimate circumstances and his ample opportunity to perceive and appreciate her condition.

115.  As to knowing the taxi was going to a hotel she said this: “on board the taxi and even though I heard that the destination was hotel, I was feeling very unwell and I had just thrown up and feeling dizzy so I did not have the strength to ask Lee Sze-lung (the first applicant) the reason.”

116.  Finally, at paragraph 56 above, this question is posed on the issue: “The evidence of PW1 is that on the night in question her state of awareness of what was happening to her or around her varied from time to time.  This being the case, could she really be in a position to refute what the first defendant said had happened that night?”  With great respect, this question addresses the sufficiency of the evidence of lack of consent.  It does not address the scope for a mistaken belief in another person about PW1’s condition and attitude to sex.  Since it is posed, however, it can be answered with confidence.  The answer is that she was in a position to be able to refute what the first applicant said about what happened that night as she convinced the whole jury that there was no truth in it.  If they had harboured any reasonable doubt about her refutation of the first applicant’s account they would have acquitted him.  With respect I cannot see that this court should take a different view about her ability to refute his claims of her conscious consent.

117.  As regards those matters identified in the judgement of Hon Yuen JA as giving rise to the need for the direction, I would agree with the proposition “that the issue was not whether the jury believed that PW1 was from time to time unaware of what she was doing, as she repeatedly explained - at the trial in the witness box -, but whether the prosecution could prove that the first defendant knew - that evening in the hotel room - that she was not so aware, despite her apparently autonomous actions.”  It is with the greatest of respect that I differ as to whether the issue, in the context of this trial, called for the direction about mistake.  I would suggest that the jurors had to make their minds up about her condition and then make their minds up about the first applicant’s knowledge of it, just as the judge guided them.  I cannot see, and neither did the first applicant’s counsel nor the judge, that there was sensible room to introduce mistake into that hotel room if her condition was that which she described.  The relevance of the sexual intercourse that took place with the second applicant, with her only being dimly aware of it, so soon after that with the first applicant, is that it indicated the nature and quality of her condition.  That condition did not arise between the two acts of sexual intercourse.  For reasons I have already given, it must have been the case that if PW1’s condition was not established the prosecution case would fail.  If it was established there was no room for mistake.

118.  It is right to point out that there was no evidence of PW1’s drink being spiked.  She did seek a test to establish whether it had been.  By the time one was arranged 34 hours after the event, it was too late to detect the presence of any substance of a type which could be expected to account for her earlier condition.  As the judge pointed out, the evidence of the testing was neutral on the issue.

119.  PW1 had described the quality and nature of her condition as being one beyond the usual effects of taking alcohol.  The judge rightly directed the jury that there was no evidence that her drink had been spiked, let alone by either of the applicants and advised them to concentrate on her condition as opposed to how it came about.  I mention this lest those other matters described as “autonomous actions” could be said to be inconsistent with the taking of alcohol alone.  This jury was not obliged to decide the case on the basis that alcohol must have been the only explanation for PW1’s condition.  Using their knowledge of the world, they may have had little trouble in contemplating what is well-known in our criminal courts, that substances exist which in the hands of the unscrupulous expose victims to criminal exploitation, of either their bodies or their possessions, by interference with their consciousness short of knocking them out cold.

120.  The cases cited dealing with sexual intercourse with women who were comatose or sleeping are, in my respectful opinion, apposite.  The live issue in those cases was whether or not the woman was telling the truth about her condition and the circumstances of the sexual intercourse.  They show that if the woman’s account is accepted and she was not conscious of her penetration, then the direction about genuine mistake is not to be given.  The evidence given by PW1 in this case amounts to that very thing: she was not conscious of her penetration by the first applicant.  A genuine belief in consensual sex must involve some appreciation of the state of mind of the other party to it.  What could the first applicant have appreciated about her state of mind that would have allowed him to believe, albeit mistakenly, that she was consenting?  There was simply no room for genuine mistake.

121.  It is thus that I am unable to agree that the matters identified as giving rise to a need for the mistaken belief direction did so.

122.  In argument, Mr McCoy SC suggested that one could not proceed on the basis of the jury being sure of lack of consent and use it as I have in an argument for the direction on mistaken belief being unnecessary.  He based this on a claim that the jury may have decided the mental state of the first applicant without having decided whether or not PW1 had consented or not.  I find the idea of that quite unrealistic.  The idea that jurors would seek to work out what the first applicant knew or foresaw about any lack of consent without having resolved the issue of whether she had consented can safely be disregarded.  The whole thrust of the trial and common sense demanded that the issue of consent had to come first, before resolving what the first applicant must have appreciated about it.

123.  If, contrary to any reasonable expectation, a juror had decided to consider the question of whether the first applicant had mistaken lack of consent for consent, despite mistake not being mentioned at all in the evidence or in counsels’ speeches or by the judge, what would that juror have known to do?

124.  I would suggest that such a juror would have turned to the written directions about the offence with which he had been provided by the judge.

125.  The juror would have seen from the written directions that the prosecution had to prove that the first applicant knew that PW1 was not consenting or was reckless as to it.  The definition of reckless was set out:

“ A man would be reckless as to whether a woman consented to sexual intercourse if he knew there was a risk that she was not consenting but he carried on anyway, when, in the circumstances known to him, it was unreasonable to do so.”

126.  It demanded proof that the first applicant must at least know that there was a risk of the woman not consenting.  The jury was told that, before they could convict, they had to be sure that the first applicant at the least knew or realized that there was a risk that PW1 was not consenting.  A genuine mistake could allow for no such knowledge or realization.  Thus if the juror did turn his mind to whether the first applicant may have mistakenly believed PW1 was consenting when she was not, he would have been bound to acquit as the prosecution would have failed to prove knowledge of the risk of no consent.  I say this as no man, in the circumstances of a case like this one, about to have sexual intercourse with a woman for the first time, who knew that there was a risk of a lack of consent to it, could sensibly have an honest and genuine belief in her consent.

127.  Thus, even if it could be said that the issue of honest belief had arisen on the evidence, I would still dismiss this appeal as in the circumstances of this case the basic direction sufficed.  Of course there is a distinction between the basic direction and the honest but mistaken belief direction.  I do not suggest that the distinction does not exist: all I say is that on the facts of this case it could never have mattered.  If the case of the first applicant had even hinted at genuine mistake, I would agree that the direction was required.

128.  The full direction, concerning the nature of the mistake as needing to be honest and genuine and not necessarily reasonable, is to do with the quality of the mistake.  I would suggest that on the evidence in this case the most a juror could ever have contemplated was the existence of a mistaken belief as there was simply no evidence or submission about the quality of such a belief.  No questions were directed to mistaken belief.  (I remark that if there had been, it would have taken no great forensic skill for prosecuting counsel to have had the first applicant agree that mistake had no place in the case).  In other words, the basic direction amply covered that which could arise: existence of such a belief.

129.  Mr McCoy SC dealt with the question of the basic direction being sufficient.  He had overnight to consider it and came back with written submissions.  He argued that a man could honestly believe in consent whilst knowing there was a risk the woman was not consenting so that the basic direction did not suffice. Whether or not that is a theoretical possibility, it is one that I am confident no jury would accept in a case of this nature.  If they thought the first applicant knew of the risk of no consent they would never countenance an honest and genuine belief by him in her consent, not least because such knowledge of the risk demands a man check before proceeding to the penetration of a woman, let alone a woman who was intoxicated and who had been vomiting and with whom he had shared no previous sexual contact.

130.  I would dismiss both applications.

Conclusion

131.  By a majority, the Court allows the 1^st applicant’s application.  The Court will treat the application as the appeal proper, allow the appeal and quash the conviction.  The Court directs the parties to lodge written submissions within 14 days on re-trial.

132.  The Court unanimously dismisses the application of the 2^nd applicant.