HKSAR v. HABIB AHSAN AND ANOTHER

CACC 211/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL APPEAL NO. 211 OF 2002

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J U D G M E N T

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Hon. Seagroatt, J. (giving the judgment of the Court):

Applications for leave to appeal against conviction

1. The first aspect of this hearing is an application for leave to appeal against conviction by two Defendants who were convicted of rape (and other offences) upon a 21 year old Indonesian girl before V. Bokhary, J. and a jury on 22 April 2002 after a trial lasting some 11 days. The verdicts on the counts of rape had been unanimous. For the sake of convenience we shall refer to them as the first and third Defendants.

2. Originally three men were indicted but the third (originally the 2nd Defendant) pleaded guilty to the offence of rape and, by virtue of an arrangement with the prosecution, the other two charges against him, of lesser gravity, were allowed to lie upon the file, a course approved by the judge. He was also to give evidence for the prosecution.

3. It is necessary to set out the salient features of the prosecution's case from the time that the Defendants first had contact with the victim.

4. This victim and a female colleague were approached by two of the Defendants at the Clock Tower near the Star Ferry Concourse on Tsim Sha Tsui side, but rejected their approach. This was on the morning of 24 January 2001 during the Chinese New Year holiday.

5. Later that day at about 8 p.m. the two Defendants reappeared with the third. The third Defendant held the victim from behind. The victim was on her own at that time but her friend returned and the third Defendant was told to let her go, which he did and then another grabbed her back. He pulled her away, she tried to call the Police on her mobile phone but he said he was not afraid even if she did. She was unable to release herself from his grip and somehow the three Defendants, the victim and her friend and another Indonesian girl, reached the taxi-stand where the victim was pulled into the taxi.

6. The victim was pulled out of the taxi by her friend and the two of them ran away but the first Defendant caught her and pulled her back. Her friend telephoned the Police. The victim held by the first Defendant was forced into the taxi. Four persons, the first and second Defendants, the victim and the other Indonesian girl, a companion of the second Defendant were driven off to Jordan where they were joined by the third Defendant. The change of taxi was brought about because the Defendants believed that the Police had been given the number of the taxi they took from Tsim Sha Tsui by the victim's friend on her mobile phone. The first Defendant took possession of the victim's portable telephone. The five of them then got into another taxi and were driven off to a villa at Kam Tin. There two rooms were rented by the Defendants. The victim was taken into room 202 by the first and third Defendants.

7. The second Defendant went into room 203 with the other Indonesian girl who, as far as we can tell, went willingly.

8. At this stage the victim was crying and unable to escape. The first and third Defendants lifted her onto a bed, took her clothes off and the third Defendant then raped her whilst the first Defendant stayed in the shower. She was in pain.

9. The first Defendant then came into the room told her to take a shower, and then he raped her in the absence of the third Defendant. Afterwards the third Defendant returned and indecently assaulted her.

10. Finally the second Defendant, who it appears had recently had himself had consensual intercourse with the other Indonesian girl, purportedly his "girlfriend" whom he had met for the first time on that day, entered the room, forced his penis into the victim's mouth and then raped her. He had slammed her head down on the pillow when she had tried to avoid the oral contact.

11. Not content with this, two of the Defendants searched her wallet. Her phone was taken. She was able to retrieve it at some stage to try and phone her employer but the phone was taken from her again before she could do so.

12. She showered again and dressed. She asked for the return of her mobile phone. Eventually her wallet and keyholder were returned but not her mobile phone.

13. The Defendants eventually left the villa and on being told by a Chinese lady that they had gone, the victim left with the other Indonesian girl and returned to her employer's home at about 2 o'clock in the morning. Her employer contacted the Police. She was examined by a doctor. Photographs show a number of bruises on her body, which appear to be consistent with being gripped and a bite on her neck. The summing up does not deal with the injuries in detail but describes them as minor and that "they could have happened in any number of ways".

14. Apart from the victim herself, her friend, her employer, the taxi-driver, and the receptionist at the guest house, the second Defendant gave evidence for the prosecution.

15. His evidence, albeit as an accomplice, was potentially supportive of that of the victim in a number of important respects:

it confirmed that the victim was subjected to force and pressure, in effect, that she was abducted;

that the change of taxi was to avoid or at least lessen the risk of Police intervention following any alert by the victim's colleague;

that there was a reasonable inference that abduction was with a view to sexual intercourse, consensual or otherwise;

that the victim had been kept in the taxis against her will;

that she had been taken into a room by two Defendants;

that he (second Defendant) had been encouraged to have intercourse with her after he had had consensual intercourse with his girl companion, by the first Defendant slapping the victim to compel her to acquiesce and he had also committed an offence of gross indecency against her, prior to raping her;

that her telephone had been taken from her and the obvious purpose was to prevent her from telephoning for help.

16. He also gave evidence in relation to three matters which were not represented by charges against the persons concerned, that is, his co-defendants.

17. Those were identified by the judge during submissions in the following terms:

"His evidence suggests that the third (Defendant) raped the other Indonesian girl (the second Defendant's companion for that evening) by slapping her after she refused to have sex with him and then having sex with her. But nobody's charged with raping the other Indonesian girl; [the second Defendant's] evidence suggests that the [third Defendant] aided and abetted him [the second Defendant] to rape [the victim]. [His] evidence is that after [the victim] refused to have sex with him, the [third Defendant] slapped [her] and told him [the second Defendant] that he could have sex with [her] forcefully. [His] evidence suggests that the [third Defendant] stole the other Indonesian girl's telephone and that the first [Defendant] had stolen $2,000 from the Indonesian girl. Nobody's charged with having stolen anything from the other Indonesian girl." [Appeal bundle - p. 434T to 435E.]

This led the judge to raise of her own volition her concern at these aspects of the evidence of the second Defendant. By then he had not only given evidence in-chief for the prosecution but had been cross-examined on behalf of both Defendants. There had also been some short re-examination. No submission in relation to his evidence was made at any stage by either defence counsel. It had not been suggested prior to his evidence that it was in any part inadmissible; nor, after the evidence was concluded did counsel suggest that inadmissible material had emerged. And there the matter rested until the following day when the judge in the absence of the jury invited defence counsel to make submissions in respect of his evidence having given an indication that she was considering whether "the jury should be directed to totally ignore all the evidence which he has given".

18. It is necessary at this stage to identify her reasons for this concern and the course of action she possibly had in mind. She had concluded "there is nothing probative from Atif (second Defendant) as to what happened in the villa" i.e. as to consent.

"As to what happened before, the evidence of (other) witnesses is in any event more reliable."

"Although there is nothing probative from Atif there is much that is prejudicial."

She added that in the course of the submissions that were to follow the defence should include "whether there is any part of Atif's evidence which the defence wishes to rely upon... [If there is] then, any direction that I give the jury to ignore his evidence will be subject to that."

19. Discussion duly followed as a result of which both defence counsel confirmed that they wished the judge to adopt the course that she had indicated as being likely at the outset. They also stated that there was nothing in the second Defendant's evidence upon which the Defendants relied so as to invite the judge to put that before the jury. It ought to be stated that in the discussion and submissions, counsel for the prosecution firmly opposed the course which the judge had in mind and her reasons for it.

20. In the event the judge directed the jury in the following terms after the end of the submissions:

"The direction which I am going to give you is one of law and you must follow it. Now, I direct you to totally ignore the whole of the evidence given by the witness, Mirza Atif. As a matter of law, he had given no evidence fit for your consideration.

Some of the evidence which he gave, if taken into account, would be prejudicial to the two accused men, so I direct you...to totally ignore the whole of the evidence given by that witness..."

This direction was repeated in almost identical terms in the summing-up to the jury:

"In relation to the witness Mr Mirza Atif's evidence, I have already given you [a] certain direction which I said I will repeat to you when I sum up the case to you...

The direction is one of law. You must follow it. I direct you to totally ignore the whole of the evidence given by the witness... As a matter of law, he has given no evidence fit for your consideration. Some of the evidence which he gave, if taken into account, would be prejudicial to the two accused men. So I direct you as I have said to totally ignore the whole of the evidence given by Atif."

It is this direction, or these directions which form the basis of this application and of the argument of Mr Robert Andrews who appears for both Applicants but who did not represent them at trial.

21. The argument runs that not only was the direction inadequate but, instead of giving a direction, the judge ought to have discharged the jury and ordered a retrial with, no doubt in mind, an indication to the prosecution that the witness concerned should be told not to make reference to the three matters identified by the judge as the basis for her decision.

22. Mr Andrews contended that despite the judge's comprehensive direction to ignore all the evidence "as a matter of law" the jury would in any event have had regard to the prejudicial material because having heard it all, they could not realistically be expected to exclude it from their minds. Secondly, the jury would remain confused because they had not been given an explanation as to why they should ignore it. The extension of that argument was that the jury should have been told of all the defects in his evidence and in his character. As to this second aspect we will return in due course.

23. The first question is whether it was correct to give any such direction. In other words was the judge's assessment of the evidence of the second Defendant (Atif) a correct one? The mere fact that a witness has given evidence of an offence which has not been charged is not of itself so prejudicial as to require the exclusion of all of the evidence. In this instance the learned judge was not in our opinion correct in assessing the witness' evidence of events in the villa as non-probative. Of course his evidence was prejudicial but it was or could be highly probative on the issue of consent. He had given evidence of the force used at Tsim Sha Tsui, the change of taxis and the reason for this and the circumstances under which he came to have intercourse with the victim, his treatment of her in the presence of another Defendant, and the fact that she was deprived of her phone. The evidence relating to events in the villa was entirely consistent with a plan to abduct the victim for the purpose of intercourse whether she was willing or not. It was important evidence capable of supporting the victim's account and also that of her friend as to earlier events when the first taxi left Tsim Sha Tsui.

24. Mr Andrews contended that the second Defendant's evidence as to rape of the other Indonesian girl by the third Defendant could only be admissible on the basis of similar fact evidence. We find that an artificial and unnecessary compartmentalisation.

25. It was part of the immediate factual matrix in the context of which the complainant was maltreated. It was not evidence of some prior offence days or weeks before the events in question. Here, according to the evidence, was the third Defendant forcing himself on a woman in the very next room to the complainant in almost precisely the same circumstances as he had moments before, on the victim and with a 'slapping' prelude identical to that allegedly practised on the victim moments later as a prelude to the second Defendant's rape of the victim.

26. The evidence was probative of the third Defendant's intention and attitude with respect to the women taken to the Kam Tin Inn and to the lack of consent. It went therefore directly to the question of consent in relation to the victim, a fortiori in relation to the third Defendant's participation in the rape by the second Defendant which was an offence of aiding and abetting the latter's rape of the victim.

27. Finally, as far as the theft of the money and telephone from the other Indonesian girl is concerned, again no offence had been charged. Her identity is not known and she had not made any complaint in respect of the events of that evening. However this evidence did not emerge as a matter of surprise or without some earlier evidential basis. As the judge made clear in her summing up the victim herself had given evidence of the Indonesian girl's tearfulness at finding $3,000 missing from her wallet which with her key-holder and mobile phone had been taken by one of the Defendants. She spoke of the first Defendant denying having taken the girl's money but having in his possession her wallet, key-holder and phone. He was told by the other Defendants to return the items to her. He nonetheless retained the phone. The inference to be drawn was that since he and/or his co-Defendants now held the mobile phones of both girls neither was able to make any telephone contact.

28. As Lord Mackay said in D.P.P. v P. 1991 2 AC. 447:

"Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree."

29. In R v Docherty [1999] 1 Cr. App. page 274 Roch L.J. observed:

"We would add that for a judge having to decide whether or not to discharge a jury, the question is whether there is a real danger of injustice occurring because the jury, having heard the prejudicial matter may be biased."

30. In that case Lord Goff's observations in R v Gough [1993] A.C. 646, as to the test to be applied by the trial judge was whether there was or was not a real danger that the jury might be prejudiced by the evidence, were adopted:

"In conclusion, I wish to express my understanding of the law as follows. I think it possible, and desirable, that the same test should be applicable in all cases of apparent bias, whether concerned with justices or members of other inferior tribunals, or with jurors, or with arbitrators. Likewise I consider that, in cases concerned with jurors, the same test should be applied by a judge to whose attention the possibility of bias on the part of a juror has been drawn in the course of a trial, and by the Court of Appeal when it considers such a question on appeal. Furthermore, I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time. Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias."

31. In our judgment we consider that the evidence, though of course having a prejudicial element, was admissible as clearly probative, and that the learned judge erred in directing the jury to ignore the totality of the evidence of the second Defendant.

32. We agree that it would have been better had the judge told the jury why she was excluding the evidence of the second Defendant; to make it easier perhaps for the jury to put the evidence out of their minds. We think that a suitable formula could have been found. As it was, merely to tell the jury that it was being excluded because it was prejudicial was not, with respect, something that a jury was likely, as a reason, to understand. And if the jury did not understand the reason were they likely to take the evidence into account despite the direction? And if they did, it is to be noted that there was no direction as to the caution with which an accomplice's evidence was to be approached.

33. These are questions which have concerned us. But the answer in this case is that considerable weight must be given to the stance of counsel at trial who have the best sense of the impact, which a direction to which they have consented is likely to have, as against the risk that the jury might have difficulty in excluding the evidence from their minds. Counsel took a deliberate tactical decision that the interests of their clients were better served by the windfall which the judge had presented than by a retrial; and they endorsed the course proposed. They evidently took the view that the direction would on balance serve the purpose which it was designed to serve and that decision having been taken no further reference was made to the second Defendant's evidence in any of the speeches. Neither counsel applied to the judge that she should discharge the jury. In these circumstances and given the particular force of the direction we are satisfied that there remains no justifiable complaint. Accordingly these applications are dismissed.

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Application for review of sentence

We now proceed to deal with the Secretary for Justice's Application for a Review of the sentences imposed.

34. The sentences imposed were as follows:

First Defendant (Habib) Rape	- 6 years
Aiding and abetting rape	- 1 year
Theft	- 4 months

All sentences were to run consecutively thus totalling 7 years 4 months.

Second Defendant (Atif) Rape	- 3 years
Third Defendant (Shah) Rape	- 6 years
Indecent Assault	- 1 year

Both sentences were to run consecutively thus totalling 7 years.

35. The Application for Review of sentence is in respect of the totality of the sentences imposed on all three Defendants.

36. In the course of the mitigation advanced before the trial judge, counsel for the first and third Defendants in particular seemed to have lost sight of the realities of the situation and to have misunderstood and misstated the effect of a decision upon which they relied. Mr Andrews who appears for the first and third Defendants before us today, dissociates himself from the approach by counsel who appeared before V. Bokhary, J.

37. We have already set out in that part of our judgment concerning the application for leave to appeal against conviction the salient facts and circumstances of the offences and do not need to repeat them.

38. The mitigation advanced by counsel below on behalf of the first accused included the somewhat astonishing assertion that at the villa (the so-called Kam Tin Inn guest house) no force was used. In answer to that, the victim had been abducted, her telephone taken from her, and she had been raped in succession by three strangers. She had been forcibly subjected to a degrading act of gross indecency, and a further indecent assault. She had also been slapped across the face.

39. The counsel concerned went on to describe it as "a more gentlemanly sort of rape as it were, one after another." How any counsel could equate any "sort of rape" with "more gentlemanly" conduct defies belief. Not surprisingly Mr Andrews for the first Defendant distanced himself from this bizarre concept.

40. Counsel in the court below stated that no force was used on the victim at the villa, nor was she injured as a result of sexual contact. This victim was a virgin and forced to submit to rape by three men and other abuse. The reference to his client having acted foolishly was a gross understatement. Anyone listening to such mitigation could be forgiven for thinking that counsel was referring to some other case.

41. Counsel for the third Defendant submitted that there was no violence used. That too was inaccurate.

42. All counsel in the court below advanced as a general basis for their mitigation that this was not the worst rape of its kind. Quite what that means is difficult to fathom. All relied upon a number of decisions of the Court of Appeal as suggesting that the range for the starting point of the appropriate sentence is between 6 and 9 years. The principal decision then relied upon was HKSAR v Kong Ka Chun & Others No. 311 of 1997 (10 March 1998). The Court of Appeal was considering the extent of the discount on a sentence for rape by a youth who had pleaded guilty (albeit he had later tried unsuccessfully to change his plea). The series of incidents were described as "a bad gang rape". The trial judge had adopted a starting point of 6 years and increased it to 9 years to reflect the aggravating features. This case is not an authority for saying that the Court of Appeal set out 6 to 9 years as a guideline range for sentencing for rape in such cases or in general.

43. The Court of Appeal of which the Vice-President was a member considered sentences for the offence of rape in an application for a review of a sentence for a serious case of attempted rape in Secretary for Justice v Lau Yun Leung [1999] 3 HKLRD 289 in which the court also reviewed the principles set out in R v Billam & Others [1986] 82 Cr. App. Rep. 347 particularly in relation to aggravating features. It stated that courts in Hong Kong were entitled to take into account local conditions and to pass sentences that varied from those referred to in the Billam sentencing guidelines. Some cases might call for a higher starting point than 5 years in the absence of aggravating features. The aggravating features dealt with in Billam were not exhaustive. This is illustrated by the English Divisional Court in R v Nottingham Crown Court ex parte D.P.P. [1996] 1 Cr. App. Rep. (S). Although in the context of considering a sentence for common assault and whether a court was precluded from considering the consequences of the assault, Stuart-Smith L.J. said:

"It was a cardinal principle of sentencing that a court should take into account, when considering the gravity of the offence and the appropriate sentence, the consequences to the victim. This was because one of the purposes of the criminal law was to assuage the feelings of the victims and their friends and relations. The law must redress their grievance by inflicting an appropriate punishment and then there was no excuse for the victim and his friends to exact their own retribution."

Reference was made to Billam amongst a number of guideline cases. We see in Billam the type of aggravating features to which attention should be given. Our attention was also drawn to the English Court of Appeal decision in R v Millberry, R v Morgan and R v Lackenby, T. L. R, 11 December 2002. We note the decision which came after the trial in this case but nothing in it affects our view of the correct result in this case.

44. When the trial judge pronounced sentence it was apparent that she had accepted the basic points advanced by counsel in mitigation and specifically:

that it was not the worst rape of its kind;

that she should adopt the "lower end of the range" of sentencing, i.e. 6 years, as the starting point.

Accordingly the sentence for rape for the two Defendants who contested the allegations was 6 years. For the aiding and abetting offence, a consecutive sentence of 1 year was imposed together with a consecutive term of four months for the theft on the first Defendant. The third Defendant also received a consecutive term of 1 year for the indecent assault.

45. For the second Defendant who pleaded guilty and gave evidence a term of 3 years imprisonment was imposed, in effect halving his sentence on the basis of the mitigation.

46. The judge made no mention of any aggravating factors. There were in this case a significant number of serious aggravating factors:

the offence was planned;

the Defendants were openly preying on women in a public place;

the victim was abducted,

there was further degradation of the victim beyond the offences of rape;

this was a concerted rape by three men. It was in vernacular terms "a gang rape";

the victim will plainly have been traumatised having at the time of these offence been a virgin and by reason of her cultural background and religion she regarded herself understandably as having been "ruined".

47. We have set those factors out sequentially, not in order of importance or gravity.

48. The factors which we have identified undoubtedly put the starting point for sentence considerably higher than that adopted by the judge. In our view the appropriate starting point in overall terms was a sentence of 10 years. Accordingly we have concluded that the sentences imposed on all the Defendants were manifestly inadequate. Therefore we shall allow the Secretary for Justice's application.

49. The sentence on the first Defendant for the offence of rape (count 1 of the original indictment) should have been one of 10 years. We see no logic in the sentence of only one year for the offence of aiding and abetting (count 2). It too should have been a sentence of 10 years, ordered to run concurrently with the sentence on count 1. Having regard to the fact that this is a review in which the sentences are now to be increased substantially we shall set aside the sentences imposed on counts 1 and 2 and substitute sentences of 9 years and 6 months imprisonment on each, and order those sentences to run concurrently. The sentence of 4 months for the offence of theft (count 3) will stand, and run consecutively to the terms imposed on counts 1 and 2; making a total in the first Defendant's case of 9 years and 10 months imprisonment.

50. On the third Defendant, the sentence for the offence of rape should also have been one of 10 years. Since this is a review, and the sentences are substantially increased, we shall instead, on count 6, substitute a term of 9 years and 6 months imprisonment. We will not disturb the sentence of 1 year's imprisonment for the indecent assault (count 7), and we shall order that term to run concurrently a total in the third Defendant's case of 9 years and 6 months imprisonment.

51. For the second Defendant, we will adhere to the discount properly given by the judge of 50 percent. Since the starting point on count 4 should have been 10 years, the sentence in his case should have been one of 5 years imprisonment. In the event, the sentence which we substitute for that imposed by the judge is one of 4 years and 9 months imprisonment.