THE QUEEN v. CHEUNG KWOK-LUN (D1) AND OTHERS

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JUDGMENT OF THE COURT

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Mayo, J:

1. The 4 Applicants were all charged with rape. The 1st and 2nd Applicants were charged with 2 counts of raping Miss Fung Shuk Yee in the early hours of the 15th August 1989 and the 3rd and 4th Applicants with raping Miss Wong Ku Kei at about the same time. On each count one man was charged as principal and the other as aiding and abetting the offence.

2. All the men were together on the evening in question and were accompanied by another man who was referred to as Ah Ngan. He was not before the Court.

3. All the Applicants pleaded not guilty to the respective offences and were tried in the High Court before Barnes, J. and a jury. At the conclusion of the trial the 1st and 2nd Applicants were found guilty as charged on the 1st two counts. The 3rd Applicant was found guilty on the 3rd count but not guilty on the 4th count and the 4th Applicant was found not guilty on the 3rd count but guilty on the 4th count.

4. The men had met the two girls early on the 14th August. The 1st Applicant had previously known Miss Fung. It was agreed that Miss Fung would contact the 1st Applicant through his pager so that a further meeting could be arranged.

5. Miss Fung telephoned the 1st Applicant during the day and a meeting was arranged for that evening. The 5 men picked up the 2 girls in a van outside the Sogo Department Store in Causeway Bay. There was some dispute as to what exactly transpired but it would appear that the van was driven to the Kowloon side.

6. On the girls' version they wanted to leave the men when the van stopped outside the 7-eleven store in Mongkok. Indeed there was evidence to the effect that the girls had tried to escape from the van and that Miss Fung had been dragged back into it.

7. It is however common ground that the van did proceed to an isolated spot in the Siu Lam area with the men and girls aboard.

8. It is also common ground that all five men had sexual intercourse with the girls as I have indicated when referring to the charges. All the Applicants made cautioned statements to the Police in which they admitted that they had had sexual intercourse with the girl referred to. However, they all claimed that the girls had consented to this. This was the main issue at the trial.

9. Mr. Plowman represented the 1st Applicant on this appeal, Mr. Ramnnathan represented the 2nd and 4th Applicants and the 3rd Applicant was unrepresented.

10. Mr. Plowman submitted that the trial judge had misdirected the jury as to the evidence which was capable of corroborating Miss Fung's testimony. He had directed that on the 1st count the evidence of Miss Wong and Dr. Beh Swan Lip who had examined Miss Fung shortly after she made a complaint to the Police the same day could corrobroate her evidence.

11. Miss Wong had been in the rear part of the van at the time of the alleged offence. She had given evidence concerning Miss Wong's distress at the time. Mr. Plowman argued that Miss Wong could not be described as an independent witness.

12. There was every reason to suspect that Miss Wong's evidence may have been concocted or fabricated.

13. During the trial both Miss Wong and Miss Fung had been asked a series of questions as to whether they had had any knowledge of a night club at Kimberly Road, Tsimshatsui. They had both denied any such knowledge. It had subsequently transpired that both these girls had been present at the night club some days before the commission of the alleged offences when the Police had conducted a raid on the premises. Miss Fung had been working as a hostess at the club and Miss Wong had been making a visit there.

14. When this was put to Miss Wong she had admitted that she had told lies under oath. The explanation she had given for this was that she did not wish people to think that she was a person such as a hostess in a night club.

15. What seems to be particularly significant about this is that both girls told similar lies. It is most unlikely that they would both do this independently of the other and it would appear to be almost inevitable that the two girls agreed together to toll these lies.

16. It is also significant that these lies go to the very root of the matters which had to be considered by the jury. If either one or both of these girls was a professional hostess in a night club this would have a considerable bearing upon the question as to whether they had consented to have sexual intercourse with these men on the evening in question.

17. The House of Lords considered the question of concocted evidence and the extent to which it may be able to amount to corroboration in R. v. Kilbourne [1973] AC 729. Lord Hailsham had this to say in his speech at p. 747 of the report:-

"The other ground upon which the general proposition may be defended is the bald proposition that one accomplice cannot corroborate another. In support of this proposition were cited Rex v. Noakes (1832) 5 C. & P. 326 per Littledale J.; Rex v. Gay (1909) 2 Cr. App.R. 327; Reg. v. Prater [1960] 2 Q.B. 464, 465 per Edmund Davies J.; Rex v. Baskerville [1916] 2 K.B. 658, 664 citing Noakes; and Rex v. Cratchley (1913) 9 Cr. App. R. 232.

I believe these citations have been misunderstood. They all refer to fellow accomplices: see per Lord Diplock in Reg. v. Hester [1973] A.C. 296. Obviously, where two or more fellow accomplices give evidence against an accused their evidence is equally tainted. The reason why accomplice evidence requires corroboration is the danger of a concocted story designed to throw the blame on the accused. The danger is not less, but may be greater, in the case of fellow accomplices. Their joint evidence is not "independent" in the sense required by Rex v. Baskerville [1916] 2 K.B. 658, 667, and a jury must be warned not to treat it as a corroboration. But this illustrates the danger of mistaking the shadow for the substance. I feel quite sure that, for instance, where an unpopular officer in the army or the unpopular headmaster of a school could have been the victim of a conspiracy to give false evidence of this kind as the suggestion was in Rex v. Bailey [1924] 2 K.B. 300 a similar warning should be given. As Lord Hewart C.J. said in that case (which turned, however, on a wholly different point), at p. 305:

"The risk, the danger, the logical fallacy is indeed quite manifest to those who are in the habit of thinking about such matters. It is so easy to derive from a series of unsatisfactory accusations, if there are enough of them, an accusation which at least appears satisfactory. It is so easy to collect from a mass of ingredients, not one of which is sufficient, a totality which will appear to contain what is missing."

On the other hand, where the so-called accomplices are of the third class listed by Lord Simonds L.C. in Davies v. Director of Public Prosecutions [1954] A.C. 378, 400 the danger is or may be nugatory. The real need is to warn the jury of the danger of a conspiracy to commit perjury in these cases, and where there is the possibility of this, it is right to direct them not to treat as corroborative of one witness the evidence of another witness who may be part of the same conspiracy, but who cannot be an accomplice because if the evidence is untrue there has been no crime committed".

18. Barnes, J. did give some warning of the danger attendant upon accepting the testimony of Miss Wong as corroborating the evidence by Miss Fung at p. 16 of the summing up. He directed that her evidence could only be relied upon by the Jury if they could be satisfied that Miss Fung and Miss Wong had not conspired together to "concoct a false story about their experiences at Siu Lam....".

19. We agree with the submission made by Mr. Plowman that this direction was inadequate having regard to the principles referred to by Lord Hailsham above and the evidence which was before the court in this case.

20. We also consider that Barnes, J. was wrong in directing that the evidence of Dr. Beh could corroborate Miss Fung's evidence. Here it is significant to note that at no time did Miss Fung complain about the injuries she had sustained. Indeed she did not in her evidence even state that she had been medically examined.

21. What is perhaps of equal importance is that the injuries which were referred to by Dr. Beh could just as easily have been sustained during the the rape alleged in the 2nd count or during the violence and scuffles referred to in the evidence leading up to the incidents. If the medical evidence was to be used to corroborate Miss Fung's evidence it was clearly incumbent upon the judge to explain to the jury the difficulties which may be encountered in relating the injuries to the 1st count. We have derived some assistance in this from the report in R. v. Pountney [1989] Crim. L.R. at p. 216.

"Held, dismissing the appeal, the main argument for the appellant confused matters of law with those of fact and, if acceded to, would lead to the usurpation of the jury's function. It was a startling proposition that if a female had the misfortune to be raped by two men within a relatively short space of time that evidence which might corroborate her account, e.g. marks of violence, could never be placed before a jury for that purpose. Such evidence might be less likely to afford corroboration of either incident, but it did not thereby become less capable of doing so. Corroboration was independent evidence which either showed or tended to show that the crime had been committed by the accused (see R. v. Baskerville (1916) 12 Cr. App. R. 81). The evaluation of the effect of such evidence was one of fact for the jury. Where successive acts of rape had been alleged against different persons, evidence which otherwise would be capable of corroborating the complainant's account of rape No. 1 did not become inadmissible or incapable of being corroborative of such merely because it might also be capable of corroborating rape No. 2. In such circumstances, it would almost invariably be incumbent upon the judge to ensure that the jury had the possible alternative in mind and to direct them to consider that possibility."

22. A further aspect of the directions which were given on corroboration which causes us difficulty is the fact that the learned judge directed on count 1 that both Miss Wong's and Dr. Beh's evidence could amount to corroboration but then went on to say that there was no corroboration of Miss Fung's evidence on the 2nd count. We can see no logic in this distinction. The surrounding circumstances of the 2 rapes were so similar that it would appear to us to be impossible to make any such distinction.

23. What is clear however is that in our view neither the evidence of Miss Wong nor Dr. Beh was capable of corroborating Miss Fung's evidence on the 1st count and the trial judge should not have directed the jury that it was.

24. As all of this went to the crux of the issue which was before the jury - namely whether Miss Fung had consented to the 1st Applicant having sexual intercourse with her on the evening in question we consider that the conviction on the 1st count was unsafe and unsatisfactory and accordingly must be quashed.

25. The main complaint made by Mr. Plowman on the 2nd count was the 'knock on' effect of the misdirections on the 1st count. It would appear that Mr. Bailey for the crown accepted that there would inevitably be some prejudice as a result of this.

26. However a further complaint was made by Mr. Plowman concerning the inadequacy of the directions given by the trial judge as to what acts of the 1st Applicant might amount to the aiding and abetting of the 2nd Applicant in the commission of rape. This was particularly important in the present case as on the available evidence the 1st Applicant's participation did not amount to much more than presence at the scene at the time of the 2nd rape.

27. According to Miss Fung he had moved to the front seat after allegedly raping her. He had only looked over his shoulder and watched the 2nd Applicant having sexual intercourse with her. In such circumstances it was clearly necessary for the judge to give clear directions upon what conduct might amount to aiding and abetting an offence. The general directions given in the summary were inadequate for this purpose.

28. Mr. Ramanathan adopted all of Mr. Plowman's submissions. He also made a number of other submissions. We do not consider it to be necessary to deal with these as we are satisfied that the effect of the misdirections relating to the 1st count are sufficiently serious to render all of the convictions on the other counts unsafe and unsatisfactory. This being the case we quashed the convictions against all the Applicants on all the counts.