HKSAR v. HUNG HING LUEN

CACC 3/2024

[2024] HKCA 844

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 3 OF 2024

(ON APPEAL FROM HCCC NO 83 OF 2023)

_______________

_______________

________________

J U D G M E N T

________________

1.  On 19 October 2023, following a trial before Deputy High Court Judge Douglas Yau (as Yau J then was) (the judge) and a jury, the applicant was convicted of one count of rape (Count 1) and one count of indecent assault (Count 2). On 14 December 2023, the applicant was sentenced to concurrent terms of 11 years’ imprisonment on Count 1 and 12 months’ imprisonment on Count 2.

2.  It was alleged that on separate occasions in the summer of 2016, the applicant raped and indecently assaulted a 9-year-old girl (referred to as “X” at trial), who was living with the applicant and his wife under their foster care at the time of the offences.

The grounds of appeal

3.  On 5 January 2024, the applicant filed a notice of application for leave to appeal against conviction.  On 30 April 2024, Mr Mark Leung, counsel for the applicant, filed Perfected Grounds of Appeal against Conviction.  The grounds of appeal read as follows:

(1)  The judge erred in admitting X’s complaint to PW3 (Z) on 23 August 2022 and 3 September 2022 about the alleged rape and abuse, and X’s complaint to PW4 (WPC 8881) on 4 September 2022 about the alleged rape (the complaints) as evidence to show X’s consistency with her account, when there was no legal basis for such admission of this evidence.

(2)  The judge erred in directing the jury to the effect that the complaints were relevant in deciding X’s consistency with her account and truthfulness, when there was no legal basis for making such direction.

(3)  The judge erred in failing to give proper directions to the jury on the evidence of X’s distressed condition at the relevant time before and during X’s making of the complaints.

(4)  The applicant’s convictions on the two counts were unsafe and unsatisfactory.

The brief facts

4.  X’s mother (referred to as “Y” at trial) placed her daughter under the foster care of the applicant and his wife ( whom X called Uncle and Auntie respectively) in 2012, when X was 5 years old.  X would live with her foster parents on weekdays and spend the weekends with her mother.  She lived with them until 2015, when she was placed with another foster family for six months, but returned in early 2016 and stayed with the foster parents until late 2018.  She returned again and stayed with them between early 2019 and 2020.[1]

5.  It was one night in the summer of 2016 that the applicant allegedly raped X in his bedroom.  He undressed and fondled her.  He lay her on the bed and had sexual intercourse with her.  She was in great pain and protested.  She felt an intense tearing sensation and asked him to stop.  The incident lasted for about 5 to 10 minutes.  She went to the toilet and wiped herself.  She noticed blood and some discharge.  It was not until she was older that she realised that the applicant had ejaculated inside her.  The applicant told her not to tell anyone and that it would be a secret between them.[2]

6.  Later that evening when the applicant’s wife returned home, X did not mention the incident to her because she appeared not to be in a good mood, and she was scared after the applicant had told her not to tell anyone about it.  She did not have the courage to tell anyone when she went to school the next day.  She also did not tell her mother for the same reason and did not want to worry her because her mother’s relationship with her boyfriend was not good.  It was when she received sex education classes at school in 2018 that she realised she had been raped by the applicant.[3]

7.  In the evening, about one week after the alleged rape, while X was in the kitchen, the applicant stood behind her.  She felt his penis touching her buttocks for 1 to 2 seconds.  She shook him away, and he left the kitchen.[4]

8.  About 6 years later, on 23 August 2022, X got drunk at a friend’s home and told her then girlfriend, PW3 (referred to as “Z” at trial), that the applicant had raped her when she was 9 years old when her auntie was not at home.[5]

9.  On 3 September 2022, she got drunk after work and was in a distraught state.  She attempted to jump off a building, but PW3 and a friend stopped her and called the police.  X then told the police officer, PW4 (WPC 8881), who accompanied her to the hospital, about being raped by the applicant.[6]

10.  On 14 September 2022, X was interviewed by a clinical psychologist, which was video recorded and produced as her evidence-in-chief at trial in accordance with the provisions regarding vulnerable witnesses.  She recounted the events of the summer of 2016 and described how she was raped and indecently assaulted by the applicant.  She also mentioned how the matter came to light when she told her then girlfriend, PW3, about it on 23 August 2022.  There was another occasion when she was drunk and behaving badly, she again mentioned to her girlfriend that she had been raped by her uncle.  As her girlfriend and a friend could not control her, the police were called.  She additionally told the police about being raped.[7]  She further testified in court by way of video link and was cross-examined.

11.  As part of the prosecution case, both PW3 and PW4 gave evidence, in which they described what X had told them about the sexual abuse she suffered.  PW3 testified that she became acquainted with X in late June 2022, when X was 15 and she was 18.  On 22 August 2022, PW3 attended a party, and X was also there.  X took her into the washroom to have a chat early in the morning on 23 August 2022.  X seemed upset and affected by alcohol.  X then described in detail how she had been raped by her uncle when she was 9 years old.  She said she wanted to die and appeared very distressed.  PW3 took X to her home, and she stayed the night. PW3 said that she sympathised with X, and they became close, but eventually, the relationship ended.  It had been put to X by defence counsel that she had made up the allegations to gain Z’s sympathy, which she denied, saying she would not lie to anyone to earn sympathy.[8]

12.  PW3 mentioned another incident on 3 September 2022, when a friend of X called her, telling her that X was drunk and asking her to take a taxi to Leung King Plaza.  She went to a rooftop, where she found X in a distressed state, saying she wanted to die.  X ran to the edge of the rooftop but was stopped by PW3 and the friend.  They then called the police.[9]

13.  PW4 testified that she had gone to Leung King Plaza in the early hours of 3 September 2022 to investigate a case of attempted suicide.  She saw X lying on the ground and crying.  X told her that she had been  raped and gave her details about it, which PW4 recounted fully in her evidence.[10]

14.  Of the evidence of PW3 and PW4, the judge directed the jury in the following terms:[11]

“Now, in relation to the evidence of Z and officer 8881, I will direct you as follows. You have heard evidence that about six years after the rape, X recounted the rape to Z and then 8881 on two different occasions. This is not evidence as to what actually happened between X and the defendant. That is because Z and officer 8881 they were not present. They were not in the room. They were not watching. They were not present at the time of the alleged offence. They did not see what happened between X and the defendant.

The relevance of their evidence is that for the prosecution they say that what X told them is, in general, consistent with what X told you and the psychologist through the – in the VRI and that, therefore, she is more likely to be truthful.  On the other hand – on the other hand, the defence, Mr Shaw, says that look at the evidence of Z and 8881 and what X said happened.  You will notice there are discrepancies.  The -- for example, the sequence of movement, when clothes were taken off, what was said.”

15.  The judge then elaborated upon the discrepancies alleged by the defence. [12]

16.  The applicant denied that he had raped and indecently assaulted X and accused her of making up these allegations.  He did not testify but called his wife as a witness (DW1), who described the general living arrangements at the home and their relationship and difficulties with X.[13] The applicant’s daughter (DW2) also gave evidence, and testified about the size of the kitchen and that the applicant would always ask someone to leave the kitchen before he would enter.[14]  Finally, another carer of X (DW3) also testified, who sometimes took X to school and tutored her.  She described X as rude and would tell lies.[15] 

17.  It was not in dispute that when the applicant was arrested on 14 September 2022, he said under caution, “I have no idea what’s going on”.[16] A forensic pathologist examined X, and his report was admitted into evidence in which he said he was unable to say in 2022 whether someone had inserted his penis into X’s vagina in 2016 when she was 9 years old.[17] 

Ground 1

18.  By this ground, it is argued that the judge erred in admitting X’s complaint to PW3 on 23 August 2022 and 3 September 2022 about the alleged rape and sexual abuse and X’s complaint to PW4 on 4 September 2022 about the alleged rape as evidence to show X’s consistency with her account, when there was no legal basis to do so.  The respondent accepts that X’s complaints to PW3 and PW4 in 2022, some 6 years after the alleged rape, did not qualify as recent complaints as they were not made at the first reasonable opportunity.  However, the respondent submits that the complaints were, in any event, admissible to rebut the defence allegation against X of recent fabrication.

19.  The common law exception of recent complaints in sexual cases to the prohibition against a witness testifying as to his previous consistent statements allowed evidence of recent complaint to be admissible for the limited purpose of assessing the credibility of the complainant’s in-court testimony but not as proof of the truth of the allegations contained in that testimony: HKSAR v Chak Kong Fai [18].  To come within the common law recent complaint exception, the complaint must be made at the first reasonable opportunity after the commission of the offence: Chak Kong Fai [19].

20.  Another exception to the prohibition against a witness testifying as to his previous consistent statements is when the evidence is admitted to rebut an allegation of recent fabrication: R v Charles Oyesiku[20].

21.  When prosecuting counsel opened the case to the jury, she referred to X’s complaints to PW3 and PW4, stating that they were not evidence of the facts asserted, but “admissible as evidence of the consistency of her conduct with the account given by her in court” and it was for the jury to assess the value of those complaints.[21]  As part of its case, the prosecution elicited the evidence of the complaints from X[22], which were revisited when PW3[23] and PW4[24] testified.  At the conclusion of the taking of evidence, the judge raised the issue of the admissibility of the complaints with counsel.  Prosecuting counsel repeated that the complaints did not constitute recent complaints but showed consistency in X’s account.[25] 

22.  It is submitted on behalf of the applicant that it was accepted X’s complaints to PW3 and PW4 (the complaints evidence) did not constitute recent complaints, nor could they in light of the facts and circumstances of the case.  It is argued that the only other basis on which the complaints evidence may be admissible is to rebut an allegation of a recent fabrication.  However, it is submitted (1) that the prosecution never sought to rely on the complaints evidence for the purpose of rebutting recent fabrication and the judge was not invited to make such a ruling; and (2) the requirements to constitute such evidence as set out in Charles Oyesiku would not be satisfied in that the earlier statements by X to PW3 and PW4 were not “made contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction.” 

23.  The respondent argues that the details of X’s complaints to PW3 and PW4 had not been elicited during the examination-in-chief of X.  It is submitted that X only briefly mentioned that she had confided in PW3 about what the applicant had done to her when she was 9, when her auntie was not at home; and that she had told PW4 about the rape.[26] Moreover, it was defence counsel who elicited the details of the complaints in cross-examination of X.[27] 

24.  The respondent further submits that it was alleged against X that she made up the rape when she mentioned it to PW3 because she was drunk and wanted PW3’s sympathy so they could be closer together.[28] It was the defence case that X had made up the rape and indecent assault, and her complaints were a recent fabrication.[29] 

25.  The respondent contends that the complaints evidence became admissible to rebut the allegation that X had recently invented the sexual offences, notwithstanding the complaints in 2022 had not been made “contemporaneously” with the sexual offences in 2016. It is argued that the complaints were made before X’s interview, which was “sufficiently early” to be inconsistent with the suggestion that her account was a late invention.

26.  The respondent finally points out that the applicant had also intended the complaints evidence to go before the jury so as to exploit the discrepancies within X’s evidence, such as the sequence of movements, when her clothes had been taken off and what had been said.[30]

27.  I find this ground to be reasonably arguable.  It is accepted by the respondent that the complaints evidence did not constitute recent complaints and prosecuting counsel relied on such evidence to show consistency of X’s accounts.  Although defence counsel had raised no objection, there is an issue regarding the admissibility of X’s complaints to PW3 and PW4.

Ground 2

28.  By this ground, it is complained that as a consequence of wrongly admitting into evidence X’s complaints to PW3 and PW4, the judge erred in directing the jury to the effect that the evidence was relevant in deciding X’s consistency with her account and her truthfulness.  The error occurred because the judge gave a direction similar to the standard direction for the evidence of a recent complaint. 

29.  The respondent argues that whilst X’s complaints to PW3 and PW4 were not admissible as recent complaints, they were admissible to rebut the allegation of recent fabrication of her allegations against the applicant.  On this basis, it is contended that the judge was entitled to direct the jury to consider such evidence in assessing whether X’s account had been consistent in assessing her credibility. 

30.  In HKSAR v LYY[31], the Court of Appeal said that the trial judge had erred in giving a recent complaint direction when it was accepted that the complainant’s account to a teacher did not constitute a recent complaint and that the jury should have been directed that a consistent complaint did not prove credibility, whilst discrepancies between the complaint and the account given might affect credibility.  The respondent submits that this case can be distinguished from the present as there had been no allegation of recent fabrication against the complainant.

31.  In his directions to the jury, the judge emphasised that X’s account of the rape to PW3 in PW4 was “not evidence as to what actually happened between X and the defendant”.  He instructed them that the evidence was relevant because, in a general sense, it was consistent with what X had told them and what she had said in her interview, and therefore “she is more likely to be truthful”.  In contrast, he noted that the defence had highlighted discrepancies with the accounts that X had given.[32] 

32.  One of the difficulties with the judge’s directions is the acceptance by the respondent that the complaints evidence did not constitute recent complaints.  This is further exacerbated by the argument now advanced by the respondent that the complaints evidence was admissible to rebut the allegation of recent fabrication.  It still raises the question of whether the complaints evidence would have been admissible on this basis in the circumstances of this case; and whether the judge’s directions would have been correct and would not have misled or confused the jury. 

33.  The respondent notes that when the judge discussed his directions with counsel, defence counsel agreed with the judge’s proposed directions and did not raise any objection.[33]  Moreover, the judge made it clear in his directions that the complaints evidence was to be used for the limited purpose of assessing X’s credibility, and therefore, the jury was appropriately guarded against the risk of using them for an impermissible purpose: HKSAR v Cheung Hok Man [34]. In addition, the judge also made it clear to the jury that the defence sought to make use of the complaints evidence to support its case that X had made everything up and went so far as to remind them of the lateness of the complaints.  What the judge actually said was as follows:[35]

“Now, Mr Shaw had mentioned and said on behalf of the defendant that the fact that X did not report what had happened to her as soon as possible makes it less likely that the complaint she eventually made was true. Whether that is so in this particular case is a matter for you to consider and resolve. However, it would be wrong to assume that every person who had been the victim of a sexual assault will report it as soon as possible.

Experience suggests that victims of sexual offences can react to the trauma in different ways. Some in distress or anger may complain to the first person they see. Others who react with shame or fear or shock or confusion do not complain or go to the authorities for some time. There is, in other words, a classic, typical response. A late complaint does not necessarily signify a false complaint, any more than an immediate complaint necessarily demonstrates a true complaint.

It is a matter for you to determine whether in the case of this particular complaint and, X, the lateness of the complaint such as it is as you and, if so, what weight to attach to it.  You need to consider what X herself said about it, as well as what Mr Shaw has suggested to you in his speech.”

34.  An additional issue arising from the judge’s above remarks is whether he was inviting the jury to consider if the complaint was true, which can not be evidence of the truth of what was asserted.

35.  I am satisfied that this ground is reasonably arguable.

Ground 3

36.  On this ground, it is argued that the judge erred in failing to give proper directions to the jury regarding the evidence of X’s distressed condition when making her complaints to PW3 and PW4.  It is submitted that the judge failed to heed the approach in dealing with evidence of distress as suggested by the Court of Final Appeal in Leung Chi Keung v HKSAR [36]. The Court held that evidence of distress might have probative value as to the facts in issue and a tribunal of fact must first be satisfied: (i) that the distressed condition of the complainant was genuine; and (ii) that there was a causal connection between the distressed condition and the alleged sexual offence.  If the tribunal of fact was doubtful as to either (i) or (ii), it should disregard the evidence of distress.  But where (i) and (ii) had been met, then it might give such weight to the evidence of the complainant’s distressed condition as was appropriate.

37.  It is noted that the judge correctly summed up the three occasions where X was observed to be in a distressed condition, but he did not direct the jury in accordance with the approach set out in Leung Chi Keung. [37] Although, he mentioned to the jury X’s display of distress when giving evidence.  He said[38]:

“Now, Ms Crebbin reminded you that X became distressed and emotional a number of times when giving evidence. It is entirely for you to decide whether or not her evidence is true, but you must not assume that just because she showed distress and emotion that her evidence must be true. It is perfectly possible for a witness to become distressed and emotional when describing an incident such as this. Whether or not her account is true, the presence or absence of emotional distress when giving evidence may not be a reliable indication of whether a witness is telling the truth or not.”

38.  The respondent submits that no distress direction was required in the circumstances of the case.  As held in HKSAR v Tersem Singh [39], directions concerning distress are required where a jury is left to consider the evidence of the complainant’s distress as independently probative.  A complainant’s distressed condition usually concerns observations of her behaviour after the alleged incident, but in the present case, the evidence of distress related to events that occurred some 6 years after the alleged incident. 

39.  The issue for the respondent is that in accepting the complaints to PW3 and PW4 were not recent complaints, then on what basis was X’s distressed condition at the time of the complaints admitted into evidence and were they correctly addressed by the judge in his directions to the jury. 

40.  I am satisfied that this ground is reasonably arguable.

Ground 4

41.  It is argued that based on the previous grounds the convictions of the two counts are unsafe and unsatisfactory.

Conclusion

42.  I am satisfied that the grounds of appeal against the convictions of the two counts are reasonably arguable, and leave is granted to the applicant to appeal against his conviction.

[1]  Appeal Bundle, 64L-66U and 101C-H.

[2]  Appeal Bundle, 31H-33N.

[3]  Appeal Bundle, 40P-U.

[4]  Appeal Bundle, 39A-I.

[5]  Appeal Bundle, 37M-N.

[6]  Appeal Bundle, 63B-U.

[7]  Appeal Bundle, 37M-38B. 

[8]  Appeal Bundle, 64B-E.

[9]  Appeal Bundle, 67A-69N.

[10]  Appeal Bundle, 69O-71D.

[11]  Appeal Bundle, 71E-N.

[12]  Appeal Bundle, 71O-72D.

[13]  Appeal Bundle, 76D-83I. 

[14]  Appeal Bundle, 27S-U and 83J-85A. 

[15]  Appeal Bundle, 85B-86E.

[16]  Appeal Bundle, 72D-G. 

[17]  Appeal Bundle, 72H-K.

[18]  HKSAR v Chak Kong Fai [2022] 1 HKLRD 370, at [138]-[141].

[19]  Chak Kong Fai, at [3]-[7] and [149]-[152].

[20]  R v Charles Oyesiku [1972] 56 Cr App R 240.

[21]  Appeal Bundle, 101H-Q and 105B-E. 

[22]  Appeal Bundle, 37M-38A.

[23]  Appeal Bundle, 67E-68U.

[24]  Appeal Bundle, 70A-71C.

[25]  Appeal Bundle, 111P-113E. 

[26]  Appeal Bundle, 37M-T. 

[27]  Appeal Bundle, 61F-J and 63P-64B.

[28]  Appeal Bundle, 59E-F, 61Q-T and 64B-D. 

[29]  Appeal Bundle, 53E and 64F-G. 

[30]  Appeal Bundle, 71L-T.

[31]  HKSAR v LYY, unrep., CACC 84/2018, 29 April 2020.

[32]  Appeal Bundle, 71E-N.

[33]  Appeal Bundle, 92Q-93B and 113F-114D. 

[34]  HKSAR v Cheung Hok Man [2010] 2 HKLRD 417, at [10(c)].

[35]  Appeal Bundle, 89B-M. 

[36]  Leung Chi Keung v HKSAR (2004) 7 HKCFAR 526, at [26]-[31].

[37]  See also Specimen Directions in Jury Trials, Volume 2: 2020 Revision, Chapter 111-10.

[38]  Appeal Bundle, 87A-F.

[39]  HKSAR v Tersem Singh [2011] 3 HKLRD 245, at [29].