HKSAR v. AU YEUNG LEUNG YUEN

CACC 289/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 289 OF 2012

(ON APPEAL FROM HCCC NO. 404 OF 2011)

____________________

REASONS FOR JUDGMENT

Hon Cheung JA (giving the reasons for judgment of the court):

1. The applicant was indicted on one count of rape, contrary to section 118(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong and was tried before Deputy High Court Judge Andrew Chan (as he then was) sitting with a jury.  He was found not guilty of rape but guilty of attempted rape and was sentenced to imprisonment for seven years and six months.  He applied for leave to appeal against both conviction and sentence.  At the conclusion of the hearing, we dismissed the applications.  The reasons are set out below.

Facts

2. We adopt the summary of the prosecution case and the summary of the defence case prepared by Mr. David Joseph Chan, Assistant Director of Public Prosecutions, who acted for the respondent.

Prosecution case

1)   The victim X and the applicant were strangers to each other.  Sometime between 7 p.m. and 8 p.m. on 26 May 2011, X went to Kai Ming Street, Hung Hom to visit a couple of husband and wife, who were her friends.  X drank five cans of beer in her friends’ home.  When it was nearly midnight, she left.  Although she had had the beer, she was not drunk and was not under the influence of alcohol. She walked down the staircase and when she reached the 1^st floor or the 2^nd floor, she came across the applicant on the staircase.  When the applicant was walking past her, he suddenly pushed X on her right shoulder, so that X fell backward and onto the stairsteps.  Then he fondled her breasts with his hands.  X cried out loudly and asked him what he was doing, but he grabbed hold of X’s neck with his hand and made her upper body lie on the steps, with her waist being held down on the steps.  When she wanted to cry out again, he covered her month and nostrils with one hand.  The whole of him climbed on top of her and with the other hand he undid the fastener on the waistband of her trousers.

2)   X was very frightened, but she could not resist by moving her body or using her legs.  She could just scratch with her hands frantically.  She had difficulty in breathing and her waist was being pressed hard on the steps.  When she was struggling she scratched the applicant thereby injuring him, but he still managed to take off her trousers and her knickers.  Then he “scraped” her private parts with his hand.  X was struggling at that time, so she did not see whether he had taken off his pants.  X noticed that after she was assaulted her private parts bled badly, and at that stage the applicant had left.  X called 999, but after the line was through she did not tell them what happened, because her private parts had bled a lot and she felt dizzy.  She recalled that a man’s voice asked her whether she needed help.  Later, X left the building and stood outside the entrance.  She was still very afraid, but she knew that someone had called the police for her.  Throughout this incident, from the beginning to the end, she clearly indicated that she was not willing to be molested by the applicant.

3) The second prosecution witness Ms. Lam Shuk-yin saw that, at 1.15 a.m. that day, outside another building on Kai Ming Street, namely Wong Teck Building, the defendant pressed the doorbell of the building. At that time the applicant was agitated. He kept on uttering foul language and was not wearing any shoes; then he took out a key from a pocket of his pants, opened the gate himself, went into the management office of the building and threw a flowerpot onto the floor.

4) The 7^th prosecution witness Ho Siu-hong [transliteration of 何兆康], a government chemist, found some substance, which was a mixture of the applicant’s DNA and X’s DNA, on the surface of the applicant’s penis but he did not find any blood, semen or human DNA on the corona of glans penis of the applicant.  Mr. Ho explained that if the applicant did not wash his hands and in that way he transferred X’s blood, which was stuck on his right hand, to the surface of his penis, it was necessary that the blood was not dry, because blood which was dry could not be transferred to another surface.

5) The 9^th prosecution witness, Dr. Foo Ka-chung, a forensic pathologist, medically examined the applicant.  He found some bruises and abrasions on the applicant’s left ear, neck, left forearm, right forearm, left wrist and dorsum of the [left] hand, front part of the right foot and the little toe of the right foot.  Dr. Foo said that the time it took for a given quantity of human blood to become dry was dependent on such factors as temperature, humidity, the quantity of the blood, and wind speed.

6) The 10^th prosecution witness Chan Lap-mo came across X on Kai Ming Street at 1.36 a.m. that day.  He helped her by telling the person on the other end of the phone the name of the street.  At that time Mr. Chan sensed some smell of alcohol on X.

7) The applicant underwent two video-recorded interviews in the police station.  During the first video-recorded interview, he claimed that around 00:30 on 27 May 2011 he was drunk, so he left his friend’s home on his own and walked downstairs.  On the staircase between the 4^th floor and the 5^th floor he saw that a woman (X) was sitting on the steps.  He did not know X but he tried to strike up a conversation with her. The applicant explained that due to the influence of alcohol he had an urge to have sex.  He fondled X’s breasts with his hands.  She resisted and bit his right hand and the back of his left ear and thereby injured these areas.  The applicant stretched his hand into X’s trousers and knickers, but he said he did not pull down her trousers or knickers.  Later, he took his hand out and saw that there was blood on it, then he gave X one slap and left.  He said he had never taken off his pants, so he denied having raped her.

8) During the second video-recorded interview, the applicant stated that because he was drunk, he went home but he had no key and there was no one in the management office who could open the door for him, so he was infuriated.  Subsequently, someone opened the door and the applicant entered the building.  At that time the caretaker was not there.  The applicant stretched his hand into the management office and swept a flowerpot onto the floor.  His action also resulted in damage to the screen of a television.  After that, he returned to where he lived.

9) The applicant also said that because he was drunk, he left his slippers in his friend’s place, and that when he returned home he was barefooted.

Defence case

10) The applicant elected to give evidence and he called one defence witness, Mr. Ho Man-kai [transliteration of 何文佳].

11) The applicant came from Fukien to Hong Kong in 2001 for settlement.  He was married and had a son and a daughter.  He engaged in construction site work and lived with his family in a residential unit on the rooftop of Wong Teck Building, Kai Ming Street, To Kwa Wan.

12) On 26 May 2011, after the applicant went off work, he bought eight cans of beer and went to a cybercafé for entertainment.  He stayed there until sometime between 10 p.m. and 11 p.m., then he telephoned Mr. Ho Man-kai, who was a sub-contractor at the construction site, and learnt that Mr. Ho was at Ah Ling [transliteration of 阿玲]’s home having beer with seven or eight fellow townsmen.  Mr. Ho invited the applicant to that place to have beer.  The applicant bought a pack of 12 bottles of beer and went to Ah Ling’s home, which was situated in a building on Kai Ming Street.  The time then was 21:48.  Later, at the request of Mr. Ho, the applicant went out to buy some grape wine, and he returned to that place at 22:14.  After that, these people continued to have alcohol until the small hours on 27 May, then the applicant left.  When the applicant was walking, it suddenly occurred to him that he had left his mobile phone at Ah Ling’s home, so he turned back.  At that stage he was very drunk and was staggering along.  When he was on the staircase between the 2^nd floor and the 3^rd floor, he saw that X was alone and was sitting on the stairsteps.  X greeted the applicant, who greeted her in return, then the applicant sat down beside X and they chatted.  After a while, the applicant and X stood up and, not knowing why it would be so, the applicant began to kiss X’s cheeks and neck, and then he went further and touched her breasts outside her clothes.  In the course of his doing so, perhaps because they lost balance, both of them fell to the ground together.  The applicant stood up first, then he helped X to get up and massaged her backbone and arms.  He asked her whether she was injured.  X smiled and answered that she was not injured.  Following that, the two of them continued to embrace and kiss each other on the staircase.  In the course of such conduct, X put one of her arms round the applicant’s body and the applicant put his hand into X’s upper outer garment and touched her breasts outside the bra.  The applicant felt that X was sexually stimulated and she made noises showing that she was aroused.  She even gave the applicant a bite on his arm, and then the applicant moved his hand downward on X’s lower abdomen to her private parts, and inserted a finger into her vagina.  He moved the finger in and out of her vagina two or three times.  While he was doing so, X moaned and groaned, showing that she was feeling good.  She also touched the applicant’s penis outside his pants and bit his ear and neck.  After that, X suddenly said the applicant was useless.  Because of that, the applicant was a bit angry and he pulled out his finger.  At that time, he saw that there was blood on his finger and he sensed some strange smell, unpleasant smell and also felt pain in his ear, so he pushed his hand towards X’s face, left the scene and went home.  However, not long afterwards, he went back to the staircase because he wanted to see whether X had any problems.  X indicated that there was no problem, then the applicant left but he forgot to put on his slippers.

13) When the applicant reached the building in which he lived, due to his drunkenness, he forgot that he had the key on him, so he waited for eight to ten minutes.  After he returned home he went to the toilet at once to urinate, but he did not wash his hands either before or after he urinated.  When he was urinating, both of his hands came into contact with his penis.  After he came out from the toilet, he slept in the sitting room without changing his clothes.  He slept there until his wife woke him up and he was taken to the management office on the ground floor by the police.

14) The applicant admitted that earlier on when he was on the way home he damaged a flowerpot at the management office.

15) According to the applicant, in a room in Hung Hom Police Station a policeman punched him on his head and swore at him in foul language, accusing him of raping an old woman.  In addition, he was given two slaps by another policeman. Notwithstanding that, the applicant kept on denying the accusation.  After he had a rest in the detention cell, the police post recorded a cautioned statement made by him and arranged for two video-recorded interviews.  When he was on the way to the interview room, [a] policeman said something to him, aiming at inducing him to say certain things.  What the policeman said included the suggestion that if the applicant did not admit rape, he might as well admit indecent assault.  After the video-recorded interviews were over, the applicant had never viewed the compact discs which recorded the interviews, nor did he know that he had the right to ask the police to take another record of interview in order to amend what he said in the previous interviews.  The applicant complained that the contents of the video-recorded interviews were not correct.  The incorrect parts included the following: The time of his arrival at Ah Ling’s home was not half past ten; it was nearly ten o’clock; he met X somewhere between the 2^nd floor and the 3^rd floor, not between the 4^th floor and the 5^th floor; X was a woman in her 30’s, etc.  The applicant explained that when the video-recorded interviews were underway, he still had the feeling of being drunk and he felt sleepy.  He was slow and dull in response.  His mind was blurred.  His hearing was not good and he was not assisted by a Minnan dialect interpreter, so he could not hear the questions clearly.  All in all, the applicant alleged that both interviews were video-recorded in circumstances where he was not willing to take part.

16) The evidence of Ho Man-kai was to the effect that he invited the applicant to Ah Ling’s home to have drinks together with eight fellow townsmen.  On that night when the applicant left Ah Ling’s home, he had drunk a lot of alcohol and was very drunk, so much so that he left behind his mobile phone.

Application in relation to conviction

3.   The applicant put forward five grounds of appeal.  We shall deal with them one by one.

Ground of appeal (1)

4.   The applicant submitted that the Deputy Judge did not give the jury a full direction on lies, and that the absence of which constituted substantial injustice.  The applicant complained that the prosecution had used a variety of expressions to describe the telling of lies by the applicant, for example: “unimaginably far-fetched”, “illogical, irrational, teems with flaws, riddled with untruths”, “He argued in such a cunning way that, I say, what he said is an outright insult to our intelligence”, “The defendant is a man who will lie and is prepared to lie at any time”, “He lied to suit his own needs”, “You will not be hoodwinked by him so easily”, “The prosecution consider that the defendant is lying …… The prosecution have no counterevidence ……” and “…… It would not have to go to the extent that one of the parties has to resort to lying, to deceiving.  It is only something which doesn’t impact on this case in any way”.  The applicant’s view is that in these circumstances it was necessary for the Deputy Judge to give directions on lies.

5.   In Yuen Kwai Choi v HKSAR [2003] 2 HKC 337 the Court of Final Appeal made the following comments about under what circumstances the court should give directions on lies:

“37. In the great majority of cases where the prosecution contend that an accused is telling lies in the witness box, a direction on lies is inappropriate (See R v Barnett [2002] 2 Cr. App. R. 11 168, 173). In cases where the rejection of any explanation given by an accused almost necessarily leaves the jury with no choice but to convict as a matter of logic, or where the jury are asked to decide on the truth of what an accused said on a central issue in the case, the usual direction on the burden and standard of proof would normally be sufficient. …

38. Where there is a risk that the jury may regard lies told by an accused as probative of his guilt, as in the case where the prosecution address the jury on the basis that the accused has lied in what he said and that the lie is supportive of the prosecution’s case …… or where there is a danger that the jury may in any way misuse the lie, it is necessary to give a direction on lies. …” (emphasis added)

6.   The applicant admitted that he did fondle X, but he said this was done with the consent of both parties.  Apart from this, he denied that he had raped or attempted to rape X.  His version of the events was vastly different from X’s evidence and other evidence.  Although the prosecution portrayed the applicant as a liar and said that his defence was nothing but lies, our view is that in accordance with the judgment in Yuen Kwai Choi, the court did not need to give directions on lies under such circumstances. This was because ultimately the jury were only required to decide whether they would accept the prosecution’s allegations as true, or take the applicant’s explanations as true, and the Deputy Judge had already given directions as to the burden of proof and the standard of proof.

7.   The applicant submitted that there were special circumstances in this case which warranted directions on lies: there was no evidence which showed that the applicant had done any act of rape or attempted rape; in her evidence, X did not say that the applicant had done anything like taking out his penis or trying to have an erection which could constitute rape or attempted rape.  The applicant argued that even if he did lie, his purpose was only to exculpate himself from the offence of indecent assault, not rape or attempted rape.

8.   We do not agree with this argument, X did say that because she was struggling at the time, she did not see whether the applicant had taken off his pants, nor did she know whether he had taken out his penis or whether his penis had entered her vagina.  However, in the present case there was other circumstantial evidence which could support the prosecution case that the applicant had committed rape or attempted rape.  Such evidence included the applicant’s explanations about the whole course of events which happened in this case; why is it that soon after this crime occurred, the closed circuit television of the building captured the images that the pair of shorts which he was wearing had been pulled down; a mixture made up of the applicant’s DNA and X’s DNA was found on the applicant’s penis; and the explanations given by him. Therefore, we do not accept the argument that any lies told by the applicant were only for the purpose of exculpating himself from allegations about indecent assault, but not for exculpating himself from the more serious allegations of rape or attempted rape.

9.   The applicant relied on R v West (1984) 79 Cr. App. R. 45 to support his argument. In that case, the defendant was charged with two offences: one was assault and the other was rape.  In those days, the law was that in respect of an allegation of rape, corroboration was required.  The jury were directed by the trial judge that the appellant’s lie could amount to corroboration.  The English Court of Appeal held that the direction given by the trial judge was inadequate in that he had failed to draw the jury’s attention to the possibility that the purpose of the appellant’s lying was just to lie himself out of the assault charge.  A lie could amount to corroboration only if the jury were satisfied that the lie constituted an attempt by the defendant to lie his way out of conviction not only on the assault charge but also on the rape charge.  We consider that West cannot support the applicant’s argument that directions on lies were necessary in the present case.  The judgment in West was only directed against the failure of the trial judge in that case to give the jury a comprehensive set of directions as to the use of the defendant’s lie as corroboration.

Ground of appeal (2)

10.   The applicant submitted that the Deputy Judge just indicated his disagreement with the submission of the defence that there did not exist a “third version of what happened” which was neither the prosecution version nor the defence version, but he did not give any adequate, correct or comprehensive directions as to the possibility that in a criminal trial, apart from the prosecution case and the defence case, there might exist a “third version of what happened”.  Such approach could easily cause the jury to think that they could rely on a “third version of what happened” in the present case, which was distinct from the versions alleged by the prosecution or the defence.  The applicant submitted that there were very unusual features in this case, which were: (1) X, who was the only prosecution witness present at the scene, had never said the applicant had raped her or attempted to rape her; and (2) the applicant, who was the only defence witness present at the scene, also denied that he had raped or attempted to rape X; and that therefore whether or not there was a “third version of what happened” had much bearing on the giving of a just verdict in this case.  Mr. Yeung, counsel for the applicant, said in his written submission:

“The position of the applicant is that ‘the injuries may not be able to support the prosecution case ” (P.187C), and that there would not be a third version of what happened which was neither the prosecution version nor the defence version (P.187E).  The trial judge, apart from indicating his disagreement (P.187F), did not give further direction to the jury as to whether or not there was a ‘third version of what happened’.  Such approach could easily cause the jury to suppose that if the applicant “would not simply satisfy his desire by touching”, but also had the intention to harm her, then they would need to consider the offence of attempted rape.”

11.   How this issue arose was as follows: Mr. Yeung in his closing submission pointed out to the jury that the applicant’s injuries might not be able to support X’s case.  He went on and said:

“I would like to bring out this important point, that is, under the present litigation system, the adversarial system, under which the prosecution and the defence adduce their own evidence, actually there won’t be a third version of what happened. There is a prosecution version of what happened and there is a defence version of what happened, but as a matter of fact, there won’t be a third version of what happened. In the prosecution case, there are … .”

12.   The Deputy Judge immediately said:

“I don’t agree. Members of the jury, would you please retire for a moment?”

13.   After that, the prosecution, the defence and the Deputy Judge had a discussion about this so-called a “third version of what happened”.

14.   This is a baffling ground of appeal.  When this court asked Mr. Yeung whether the “third version of what happened” which he mentioned referred to allegations about attempted rape, he agreed with our putting it in this way, but later he negated this view.

15.   When Mr. Yeung was making his closing submission, the Deputy Judge there and then in the presence of the jury stated that he did not agree with Mr. Yeung’s view.  Such an approach is open to question. A more appropriate approach is that the Deputy Judge should correct an argument advanced by the defence only after he had asked the jury to retire or when he was giving directions in his summing-up.  However, we do not think that this event would render the jury’s verdict unsafe or unsatisfactory.  Firstly, although the Deputy Judge did not expressly use the words a “third version of what happened” when he was giving directions in his summing-up, he told the jury that they could choose to fully or partly accept a witness’s evidence or reject that witness’s evidence, that they could accept part of the evidence of a witness and reject the evidence given by the other side, and that they could totally accept the evidence of a witness or totally reject his evidence.  The Deputy Judge also directed the jury how to deal with alternative offences.  We consider that although X did not say that the applicant’s penis entered her private parts, it was open to the jury to decide, on the basis of all the evidence, whether or not the applicant had done this act or attempted to do this act.  We believe that this was the reason for the Deputy Judge’s saying that he did not agree that there did not exist a “third version of what happened”.

16.   What is more important is that we do not think that because the Deputy Judge indicated that he did not agree with Mr. Yeung’s submission, the jury would then definitely hold the view that if the applicant did not want only to “satisfy his desire by touching”, but also had the intention to harm her, then they would need to consider the offence of attempted rape.  The Deputy Judge first gave directions to the jury about the elements of the offence of rape and then explained to them what constituted the offence of attempted rape, i.e. the applicant intended to commit rape and, with that intention, he did something which was more than mere preparation for committing that offence.  In relation to the applicant’s intention, the Deputy Judge directed the jury that they could take the following points into consideration:

1)   The applicant said he had an urge to have sex;

2)   The applicant said he wanted to make love;

3)   The applicant touched X’s breasts with his hands;

4)   The applicant touched X’s vagina with his finger;

5)   X gave evidence that the applicant removed her knickers and trousers;

6)   Whether the applicant had unbuttoned his pair of shorts; and

7)   Whether the applicant had taken out his penis with the result that X’s blood or DNA was left on the surface of his penis.

17. These directions did not fit the applicant’s complaint that the Deputy Judge’s directions would easily lead the jury to take into account only the applicant’s acts of indecent assault and his statement that he wanted to make love and to rely on these to conclude that the applicant had done something which was more than mere preparation for committing rape.

Ground of appeal (3)

18. This ground is divided into two parts: First, the applicant contended that his injuries, particularly the injuries caused by biting, could not support the prosecution case, because if the applicant covered X’s mouth and nose with his hand, she could not possibly injure the applicant by biting him; but such injuries was consistent with the applicant’s case.

19. The evidence in the present use showed that there were many bruises and abrasions on the applicant’s body.  They were present on his arms, earlobe and neck.  It was stated in the medical report that the time of the infliction of such injuries was about one day before the medical examination, which covered the time when this case occurred.  The Deputy Judge gave the following direction to the jury:

“There were conspicuous injuries on the defendant’s right arm, left earlobe and left side of his neck. The defendant said they were the result of their hot and passionate actions. Is that true? Members of the jury, I leave it to you to decide.”

20. During his first video-recorded interview with the police, the applicant admitted that at the material time X had resisted and had bitten his hand and ear with her mouth.  The Deputy Judge had explained to the jury in detail how to handle the confession.  We consider that this point was purely a finding of fact which was for the jury to make.

21. Second, the applicant submitted that the Deputy Judge had failed to give adequate directions to the jury about the probative value and the prejudicial effect of the evidence that the applicant pulled up his pants which had been pulled down.  The prosecution told the jury that according to the time shown on the closed circuit television (CCTV) at the scene, before the time of the offence, everytime when the applicant appeared before the CCTV camera his pair of shorts was not pulled down.  The only time when it was shown in the video footage that his pair of shorts had been pulled down and he pulled it up back to his waist was the moment after he came into contact with X.  The video footage after that moment showed that his pair of shorts had not been pulled down again.  The Deputy Judge had given directions to the jury in respect of the evidence in this area.  We do not agree with the argument that the prejudicial effect of such evidence is greater than its probative value.  We hold that this was a relevant factor which the jury could take into account when they considered whether the applicant had taken off his pants when he was with X so that X’s blood or DNA was left on the surface of his penis.

Ground of appeal (4)

22. The applicant submitted that the Deputy Judge did not give detailed explanation in respect of the elements of “attempt”, and that the prosecution had also asked the Deputy Judge to elaborate on this point.  The applicant complained that the Deputy Judge’s directions were unable to bring home to the jury that “(i) The statement that the applicant ‘wanted to have sex with (to make love to) X’ did not constitute the intention to rape or an ‘intrinsic element’ of rape, unless the jury were satisfied that he was reckless as to whether or not X was consenting, or he knew that X was not consenting but pressed on regardless; and (ii) The applicant’s fondling of X, even if X did not consent to it, did not amount to action ‘more than preparation’ for committing rape.”

23. We do not agree with this argument.  In the foregoing paragraphs we have already dealt with the Deputy Judge’s directions to the jury about attempted rape.  The Deputy Judge further said to the jury the following:

“ The acts which I mentioned earlier not only can be taken into account for considering whether the defendant had such intention, but also can be taken into account for determining whether what the defendant did at that time was more than mere preparation for committing rape. Just now I said there are two conditions, right? If you are sure of the two things which I mentioned, namely first, he intended to commit the offence in question; second, he did something which was more than mere preparation for committing that offence; then you should find the defendant guilty of attempted rape.”

24. Although the prosecution did ask the Deputy Judge to further elaborate on “acts which were more than mere preparation for committing rape”, it does not follow that the Deputy Judge’s directions were not comprehensive.  In our view, the Deputy Judge had given comprehensive directions about this issue.

Ground of appeal (5)

25. In addition, the applicant submitted that the Deputy Judge’s general direction —— the jury should first consider whether the offence of rape was established, then consider whether attempted rape was proved, and then consider whether he was guilty of indecent assault —— was confusing and was unfair to the applicant, because such direction was contrary to the sequence of events.  In view of the fact that no legal provision or legal literature, such as Archbold, has ever made indecent assault an alternative offence to rape or attempted rape where the victim is an adult, the applicant said, to arrange the offences in that order would deprive the applicant of the chance of having the defence of consent in relation to the offence of indecent assault adjudicated.  Attempted rape and rape are mutually exclusive, whereas attempted rape and indecent assault are not, because X could consent to being touched but did not consent to sexual intercourse, or she could object to or consent to both acts.

26. We do not agree with this argument.  The Deputy Judge was entitled to give directions about alternative offences in accordance with section 51(2) of the Criminal Procedure Ordinance, Cap. 221, Laws of Hong Kong:

“If on the trial of any information, charge or indictment for any offence other than treason it is proved that the accused is not guilty of that offence but the allegations in the information, charge or indictment amount to or include, whether expressly or by implication, an allegation of another offence falling within the jurisdiction of the court of trial, he may be found guilty of that other offence or of an offence of which he could be found guilty on an information, charge or indictment specifically charging that other offence.”

27. In R v Hodgson (1973) QB 565, CA, the English Court of Appeal pointed out at page 572 that a charge of rape and a charge of indecent assault necessarily involved two constituent elements, namely an assault and indecency, and that therefore every charge of rape contained the essential ingredients of indecent assault.

28. The same view is also expressed in paragraph 21-8 of Archbold Hong Kong 2013. In fact, the applicant had indicated to the Deputy Judge that he entirely agreed that the constituent elements of rape included those of indecent assault.

29. In the present case, although in the indictment rape was the only charge against the applicant, and no alternative charge of attempted rape or indecent assault was expressly preferred, we are of the view that the offence of rape definitely contains the elements of attempted rape and indecent assault.

30. In Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354, the Court of Final Appeal made the following holdings about alternative verdict:

1)   If there was evidence upon which a reasonable jury might return an alternative verdict, even if it was not raised by the parties or was inconsistent with the defence run by the accused, a judge was under a duty to place that alternative before the jury.  A defendant must not be over-convicted or under-convicted, or acquitted when he had committed a lesser offence of the type charged (Alexander Von Starck v the Queen [2000] 1 WLR 1270, R v Coutts [2006] 1 WLR 2154 applied).

2)   For an alternative to be left to the jury, the threshold requirement was that the evidence in support of an alternative verdict must not be so incredible or tenuous or uncertain that no reasonable jury could have accepted it.  This low threshold was consistent with the fundamental principle that it was for the prosecution to prove guilt beyond reasonable doubt.

31. In the present case obviously there was evidence in support of attempted rape and indecent assault, which were offences alternative to rape.  In the foregoing paragraphs, we have set out the directions given by the Deputy Judge to the jury about the acts relating to attempted rape.  As for indecent assault, the Deputy Judge’s directions were:

“ In this case the defendant did not dispute that he had fondled or touched the woman’s breasts, nor did he deny that he had put his hand [sic] into [X]’s vagina. Members of the jury, you have to make your own decision as to whether these were indecent acts. In this regard, you should use the experience you have gained in your daily life and your common sense to judge whether the defendant’s conduct had seriously violated generally accepted contemporary norms and protocol governing social intercourse and at the same time contained elements of indecency.”

32. We consider that it was necessary for the Deputy Judge to give directions about the two alternative offences.  According to the written directions provided by the Deputy Judge for the jury, the jury could consider attempted rape only after they found the applicant not guilty of rape, and that they needed to consider indecent assault only after they found him not guilty of attempted rape.  We do not see in what way this approach was unfair to the applicant.

33. Paragraph 21.8 of Archbold Hong Kong 2013 reads:

“ As every charge of rape contains the essential ingredients of indecent assault (namely an assault and indecency), it follows that where a man is acquitted of rape on the ground of the victim’s consent, it is open to the jury to convict him where the victim is under 16, of indecent assault, because the consent that provided a defence to a charge of rape cannot, by virtue of section 122(2), provide a defence to a charge of indecent assault. Age is not an ingredient of, nor an essential averment in the framing of a count of indecent assault: R v Hodgson [1973] QB 565, CA.”

34. We do not think that this paragraph of comment can assist the applicant.  The circumstances of this case and the content of the comment quoted from Archbold have nothing at all to do with each other.  The subject of the comment quoted from Archbold is that a person under 16 cannot give any consent which would prevent an act from being an indecent assault.  Therefore, even if a defendant is acquitted of rape on the ground that the victim, who is under 16, has consented, he can still be convicted of indecent assault.  Such scenario did not exist in the present case.  X did not give any consent in relation to indecent assault or in relation to rape.

Application for leave to appeal against sentence

35. In sentencing the applicant, the Deputy Judge said:

“ Defendant, you have committed a very serious offence. In the depth of night, in the public place of an old building, you attempted to rape an elderly woman who was a total stranger to you. I consider that to assault an elderly woman is an aggravating factor.

The way in which you subdued the victim was not the most serious type, but as a result of your assault on her, her private parts bled profusely and she was hospitalized for four days. I believe that the main reason why you did not take further action was that you saw [X] bleeding profusely at that time. To have pity on the victim definitely was not the reason for your stopping to take further action. Although I have not called for any report concerning [X], I firmly believe that even if she tries hard to forget this distressful incident, she would still be tormented by what happened that night for the rest of her life. The effect on X of what you did could be seen from the emotional state she was in when she was giving evidence in court. The trauma you inflicted on [X] is also an aggravating factor of this case.

   According to the comments made by the Court of Appeal in Secretary for Justice v Lau Yun Leung (CAAR 3/1999), neither the fact that you, defendant, had taken alcoholic drinks before the incident nor the fact that you committed this offence without any planning in advance is a mitigating factor, because the court has the same duty to protect women from being assaulted by people under influence of alcohol.  To commit an offence when one is drunk makes no difference from committing the same offence when one is sober.”

36. We endorse the Deputy Judge’s view.  The present case is a serious case of attempted rape.  We do not agree with the applicant’s assertion that he, of his own accord, stopped the sexual assault or that the victim in this case had suffered no serious indignity.  In our judgment, even though the term of sentence is longer than that of similar cases, it is not manifestly excessive.

Conclusion

37. For the above reasons, we have dismissed the applications for leave to appeal against conviction and against sentence.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.