HKSAR v. TAM KON-CHUNG AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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JUDGMENT

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Power, V.-P. (giving the judgment of the Court):

1. The 1^st applicant Tam Kon-chung was D2 at trial. The 2^nd applicant Wan Kai-cheung was D3. Cheung Wai-lun was D1. We will refer hereafter to those three persons as D1, D2 and D3. In the original indictment there were three counts of rape, in each of which all three persons were named as defendants. It was alleged in each count that one of the three had actually reaped the victim and that the other two had assisted.

2. At the end of the prosecution case, Lugar-Mawson J. directed acquittal of all three on the counts in which it was contended that they had assisted a rape, and of D1 on count 1 in which it was contended that he had actually raped the victim. D2 was left facing count 2 and D3 was left facing count 3.

3. Shortly put, it was the prosecution case that the three victims were Karaoke club hostesses and that at about 2 a.m. on 18^th June, a group of people, which included the three defendants, pushed their way into Flat A, 6^th floor, No.16 Apliu Street, Shamshuipo, Kowloon, where the three girls resided, and then assaulted two of the girls. The group then left. Shortly thereafter, the three defendants returned and molested and eventually raped the three girls.

4. The victim in the second count Tse Pui-man ("Ken") said that she had been raped twice - once in the toilet and once on a mattress on the floor of the flat.

5. The victim in the third count Ng Wing-yi ("Co Co") said in her evidence in chief that she had been raped once and had been forced to perform an act of oral sex. In her statement she had said that she had been raped twice and during cross-examination she agreed that what she had said in her statement was correct.

6. There were many contradictions and inconsistencies in the evidence of the complainants and of Siu Wai-ling, the girl who had been involved in count 1.

7. On this appeal, Mr. Thomas Iu appears for D2 and Mr. Phillip Ross appears for D3.

8. Mr. Iu has argued the following four grounds of appeal:

9. Mr.Ross for D3 has argued three grounds:

10. There was considerable overlapping in Ground 1 of D2 and Ground 2 of D3 and in Ground 4 of D2 and Ground 3 of D3.

D2 - Ground 2

11. We will first consider Ground 2 of D2.

12. The directions given by the judge as to honest belief were as follows:

Ground 2(a)

13. It is first suggested that the judge failed to tell the jury that the test must be a subjective one. We are not persuaded that the judge did fail in this regard. He clearly told the jury at the outset that what they were concerned with was whether "both defendants genuinely but mistakenly believed that the girls were consenting". He immediately went on to indicate to the jury that what they were concerned with was whether D2 "may genuinely have believed Ken consented to having sexual intercourse with him" and whether D3 "may genuinely have believed that Co Co consented to having sexual intercourse with him". He went on to tell the jury that they must acquit the defendants "even though each one of them may have been mistaken in that genuine belief ...". There can be no doubt that the judge was here speaking of a subjective belief.

Ground 2(b)

14. It is equally clear, we are satisfied, that he was indicating that there was no onus upon the defendants to prove any such belief as he told the jury to acquit if they may have held such a belief and had already said at the beginning of the summing up:

          "Now I must give you two very important directions on the law. The first is that the prosecution must prove each defendant's guilt. Neither of the defendants has to prove his innocence. The second important direction is that before you can convict either defendant, you must be sure of his guilt. That is the same thing as being satisfied beyond reasonable doubt of his guilt. Nothing less than that will do."

15. At the end of his summing up, he repeated those directions saying:

          "Let me just now repeat to you the directions I gave to you earlier on the burden and standard of proof. The prosecution must prove each defendant's guilt. Neither defendant has to prove his innocence. Before you can convict either defendant, you must be sure of his guilt. That is the same thing as being satisfied beyond reasonable doubt of his guilt. Nothing less than that will do."

Ground 2(c) and (d)

16. The judge was right to tell the jury that they had to consider all relevant matters including "the presence or the absence of any reasonable grounds on the part of" the defendants "for such a belief". It was, however, in the final words of this passage that it is suggested he erred. His concluding words were:

"You have to look at the evidence - all the evidence - and ask in respect of each defendant : Is there any evidence here of anything which constitutes reasonable grounds for a genuine belief that this woman consented. That is a matter which the law specifically provides that you, the jury, must look at."

17. It is submitted that the judge was here telling the jury that the matter hinged upon a finding by them of "reasonable grounds for a genuine belief" and when so doing he fell into the same error as did the judge in the unreported decision R. v. Sohn Yong Shek, John (C.A. 239 of 1989). In that case, the judge correctly directed the jury that the issue was whether the accused genuinely believed that there was consent telling them:

"You will need to ask yourself whether he genuinely, if mistakenly believed that she was consenting. And in considering this question you have to have regard to the presence or absence of any reasonable grounds for such a belief in conjunction with all the other relevant circumstances of the case. If after directing your minds to the question of the presence or absence of reasonable grounds. you feel that the accused may have genuinely, although mistakenly, believed that the complainant was consenting, then he would be entitled to be acquitted." (Emphasis supplied.)

He, however, went on to say to the jury:

"I have also mentioned to you that in considering the question of the accused's knowledge on this occasion or his recklessness, you will need to consider all of the evidence that you have heard, all the evidence that surrounds the incident and the question of whether, in the circumstances, if you are satisfied that she did not consent, reasonable grounds existed for the accused genuinely but mistakenly believing that she was consenting." (Emphasis supplied.)

18. The Court of Appeal was satisfied that the earlier correct direction was, thereby, "clouded .... by shifting the emphasis from the vital consideration of whether the applicant had a genuine but mistaken belief that the complainant was consenting to intercourse, to the entirely subsidiary consideration to which the jury were to have regard, of whether, in deciding if this might be so, there were reasonable grounds for such a belief."

19. We are satisfied that the judge in the present case fell into the same error.

20. Mr. Luk, with him Ms. Lily Wong, who appears for the HKSAR, submits that genuine but mistaken belief was never part of the defence of either defendant's case, nor did it remotely arise on either the prosecution or the defence case. Neither defendant gave evidence. D2's defence as put in cross-examination was straightforward. It was put that after kissing and caressing, which was done with consent, Ken had voluntarily disrobed and had consented to intercourse with a view to getting D2 to pay her debts to the Karaoke bar. It was submitted that there was nothing in the evidence that could possibly have given rise to a defence of genuine but mistaken belief. It was D3's defence, as put in cross-examination, that the intercourse was consensual and, indeed, that it had only been achieved after Co Co had orally stimulated D3. It was Co Co's evidence that she had resisted throughout. It was again submitted that there was here no room for a defence of genuine but mistaken belief.

21. These submissions are, we are satisfied, correct. There was no need for any such direction as there was no evidence to raise a defence of "genuine but mistaken belief". For that reason, although the judge erred in his direction, this ground must fail.

D3 - Ground 1

22. We turn to consider the first ground argued by Mr. Ross for D3. This was that there had "been a material irregularity in the trial in that the jury never delivered a verdict as to whether the applicant was guilty as charged". When the jury returned after their deliberation, the following exchange occurred between the foreman and the clerk:

23. The clerk clearly was in error when he asked whether the jury had reached a verdict on the first count. The first count of rape had already been dealt with and the jury had returned directed verdicts that all three defendants were not guilty of that charge. It is not necessary to examine the authorities that deal with cases where a jury has delivered a verdict on the wrong count as we are satisfied that, in the present case, the jury manifestly did not deliver a verdict on the wrong count. The only count of rape before the court against D3 was count 3. The jury had heard evidence about this count, they had been directed upon it by the judge. We are satisfied that it is beyond argument that it was upon this count that they returned their verdict. The slip by the clerk was one which went unnoticed by them and indeed by everybody else. We are quite satisfied that they delivered a verdict of guilty on count 3 and that there is no possibility that that verdict related to any other count. That being so, that verdict cannot be challenged.

D2 - Ground 1, D3 - Ground 2

24. We turn then to first of the two matters in which the grounds overlapped, i.e. Ground 1 of D2's Grounds and Ground 2 of D3's Grounds.

25. Mr. Iu complains that the evidence of the complainants was so "manifestly contradictory, inconsistent and improbable" that the judge should have ruled that there was no case to answer. He goes further saying that the judge recognized that this was so. Mr. Ross complains that the evidence was "of such a weak and tenuous nature" that the judge should have held no case to answer. Both sides support their arguments by pointing to the careful examination by the judge of the difficulties that existed in the evidence of the two complainants. This, in our view, gives no real support to their argument. To the contrary it shows that the judge, when reaching his decision, made a full and detailed evaluation of all of the matters which he should have considered.

26. Mr. Iu goes on to suggest, in Ground 1(b), that, as regards D2, the case was allowed to go to the jury because the judge considered that he had no option but to do so as Ken continued to contend that she did not consent. He refers in this regard to the following passage:

"Again there is force in Mr. Iu's submissions but these are matters which are for the jury and not for me. Ken maintains that she did not consent. She is adamant about that it is for the jury to decide that issue."

27. We are satisfied the suggestion that the judge allowed the matter to go to the jury simply because the complainant continued to complain is completely groundless. The judge had in the preceding pages examined the evidence with great care and was well aware of the tests in R. v. Galbraith, (1981) 1 W.L.R. 1039. Indeed, he set them out in his ruling. His decision to let the matter go to the jury was made after having given the fullest consideration to the evidence and after applying the correct principles thereto and was, we are satisfied, correct.

D2 - Ground 4, D3 - Ground 3

28. This leaves the final overlapping ground which was Ground 4 of D2 and Ground 3 of D3.

29. In D2's case, there was no question that the complainant's evidence alleged two acts of rape. Early in his summing-up the judge said:

30. The prosecution gave no particulars as to which of the two acts was the subject of the charge and at no time did the judge require them so to do. Clearly the prosecution should have been required to indicate which act of intercourse was the subject of the charge. The difficulty might have been met if the judge had directed the jury that, before they could convict, they must be satisfied to the required degree of unanimity on one or other of the two rapes. This, without more, would have left its own problems as, on appeal, it would not be known which act founded the conviction. Could these difficulties have been cured if the judge after verdict had asked the jury upon which act they had convicted? However that may be, such a situation should never have arisen as the prosecution should have particularized early in the trial the act which was the subject of the charge.

31. Mr. Iu further argues that if the prosecution was relying upon the second act of intercourse, then the judge should have directed the jury as to the effect of any findings they might have made as to the first act of the intercourse. His submission in short is that the jury should have been told that if they had any doubts as to what had occurred, they must bear those doubts in mind when they came to consider whether the second act was proved.

32. The situation is different as regards D3. In that regard, the judge directed the jury that they were dealing with only one alleged act of intercourse. He sets that out in the passage to which we have referred above and repeats it in the following passage:

          "In both examination-in-chief, that is the question as she was led through her evidence by Mr. Hoosen, and in cross-examination both by Mr. Mayne and by Mr. Matthews, the counsel for the former 1^st defendant, she said that there had been one act of non-consensual intercourse which had been proceeded (preceded) by a non-consensual act of oral sex. She was given ample opportunity in cross-examination, both by Mr. Mayne and by Mr. Matthews to correct this. In her statement she had said something totally different. She had said there that there were two acts of sexual intercourse, both non-consensual, that she had then sat naked on the defendant's private part, but had not allowed his private part to enter her, and then finally there had been an act of oral sex. That, of course, is completely contradictory to what she said in evidence. As I have said, she was given ample opportunity to recall the sequence of events." (Emphasis supplied.)

Mr. Ross submits that this direction was wrong as, in cross-examination, Co Co agreed that there had been two acts of rape. He refers to the following passage in which Co Co was being cross-examined about the statement which she had given to the police:

33. Mr. Ross submits that there is clear evidence here confirming the original allegation that two rapes took place. We are satisfied that Co Co was saying that she had been raped twice. Mr. Ross submits that not only was there a misstatement of Co Co's evidence by the judge, but also that the jury was given no assistance as to how they should deal with two alleged rapes when only one had been charged.

34. Mr. Luk acknowledges that Ken was alleging that she had been raped twice and does not take issue with the submission that Co Co had, in cross-examination, adhered to her original statement which was that she also had been raped twice. He argues, however, that this court can properly follow the decision in the D.P.P. v. Merriman (1973) A.C. 584 and hold that the rapes were, in each case, part of the same activity. He refers to the judgment of Lord Morris at p.593 where he said:

"If A attacks B and, in doing so, stabs B five times with a knife, has A committed one offence or five? If A in the dwelling house of B steals ten different chattels, some perhaps from one room and some from others, has he committed one offence or several? In many different situations comparable questions could be asked. In my view, such questions when they arise are best answered by applying common sense and by deciding what is fair in the circumstances. No precise formula can usefully be laid down but I consider that clear and helpful guidance was given by Lord Widgery C.J. in a case where it was being considered whether an information was bad for duplicity: see Jemmison v. Priddle [1972] 1 Q.B. 489, 495. I agree respectfully with Lord Widgery C.J. that it will often be legitimate to bring a single charge in respect of what might be called one activity even though that activity may involve more than one act. It must, of course, depend upon the circumstances."

Lord Diplock at p.607 states:

          "The rule against duplicity, viz. that only one offence should be charged in any count of an indictment, which is now incorporated in rule 4(1) of Schedule 1 to the Indictment Act 1915, has always been applied in a practical, rather than in a strictly analytical, way for the purpose determining what constituted one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment."

He also refers to the Australian case of R. v. Fenwick (1953) 54 S.R. (N.S.W.) 147, saying:

"The two accused were in one count jointly charged with rape and the indictment did not contain separate counts alleging independent crimes of rape by each accused. The two accused were driving a girl home after a dance. Each one had intercourse with her. She said that it had been against her will. They said that she had consented. On appeal it was contended that it was not open to the jury, if they found an absence of common purpose, to consider the individual cases of the two accused as if separate indictments had been preferred against them for the act of rape which it was alleged that the particular accused had committed. The contention failed. Street C.J. said, at p. 152:

'Indictments are to be read jointly and severally, and this indictment as is the common practice in indictments in cases of murder, although it is framed against two accused, is to be regarded as a joint and several indictment of those accused.'

He referred to Hale, Pleas of the Crown, vol.1 p.46, where there was a reference to an indictment against a husband and wife and where it was pointed out that:

'... every indictment is as well several, as joint; and as upon such an indictment the wife may be acquitted, and the husband found guilty so e converso the wife may be convicted, and the husband acquitted; for the indictment is in law joint, or several, as the fact happens.'"

35. As regards D2, we find it hard to see how the "one activity" approach can be applied given the summing-up by the judge who quite clearly directed the jury that they should regard the two rapes as to separate incidents. It must be borne in mind is that we are here not dealing with two defendants charged with a single count. In the present case, we are dealing with separate offences each alleged to have been committed by one defendant. The judge summed up upon the basis that it was alleged that D2 had committed two offences of rape. He did not indicate to the jury that they must be satisfied to the requisite majority as to at least one of the offences. In such circumstances, we are driven to the conclusion that we must regard the conviction as bad.

36. In the case of D3, the judge quite clearly directed the minds of the jury towards one of the rapes. The second and later offence was never referred to in his summing-up. Indeed, he was in error when he stated that Co Co had never given evidence that there had been any such offence. We are satisfied that the jury, in the case of D3, had their minds directed to the first of the two rapes which Co Co said had occurred, and that their verdict was of guilt on that rape. We do not see how that verdict could in any way be made unsafe or unsatisfactory by the judge's misdirection on Co Co's evidence as the misdirection, in effect, told the jury that there was no evidence of a second rape. If anything the misdirection was in D3's favour as the judge highlighted an inconsistency which did not in fact exist in Co Co's evidence. There was a misdirection but it was not one which would make the conviction either unsafe or unsatisfactory and we could, therefore, be prepared to apply the proviso.

37. The application of both applicants is allowed. The hearing of the applications is treated as the hearing of the appeals.

38. D2's appeal is allowed and his conviction is quashed. As regards D3, we are satisfied that there was a misdirection by the trial judge but that the conviction was not thereby rendered either unsafe or unsatisfactory. We apply the proviso and dismiss the appeal.