HKSAR v. YU WAI YIP AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.223
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

The charges

1. On 30th March 1998, following a trial in the High Court before Deputy Judge Jackson, these Applicants (D1 and D3 respectively) were each convicted of rape. D3 was additionally convicted of conspiracy to pervert the course of public justice, contrary to section 159A of the Crimes Ordinance, Cap.200 and Common Law (Count 4). On 17th April 1998, D1 was sentenced to six years' imprisonment for the rape alleged in Count 1 and D3 received five years' imprisonment on Count 3 for the rape of the same Victim. D3 was further sentenced to a consecutive term of 18 months' imprisonment on Count 4. D1 now seeks leave to appeal against his conviction for rape. D3 seeks leave to appeal against his conviction on Count 4 only. He originally sought leave to appeal against the total sentence of 6 1/2 years' imprisonment. However, that application has now been abandoned.

Prosecution's case

2. The general nature of the allegations made against both Applicants was straightforward. The Victim of both alleged rapes was 16 years old on the day they were committed. She was a former girlfriend of D3 and an acquaintance of D1. On 12th April 1997, the Victim went to D3's home address having been persuaded by him to have a talk. When she got there she found that D2 was also present. (D2 was convicted in the trial on Count 2 which alleged indecent assault, and he has made no application for leave to appeal against his conviction.) D1 arrived at the flat later.

3. The rape in Count 1 took place when, according to the Victim, she had gone into D3's bedroom to talk. However, D3 lifted her onto his bed where he raped her. Despite the distressed state that she was in, D2 then came into the bedroom where he proceeded to assault her indecently (Count 2). After that, D1 came into the room and took his turn to rape the Victim. There was an aggravating feature in his case which relates to the threats made by him at the time of the offence disclosed in Count 3.

4. Count 4 reflected an incident which took place 10 days later. D3 called up a female friend of the Victim (who was the second prosecution witness "PW2") to whom the Victim had earlier made complaints of rape and indecent assault along the lines already set out. When PW2 saw D3, he allegedly told her to telephone the Victim's mother offering a sum of not more than $100,000 to settle the matter out of court. The Particulars of Count 4 set out the brief allegation and read that D3 :

"...on or about the 22nd day of April, 1997 in Hong Kong, conspired together and with a person known as 'Fei King' and LEUNG Chung-kwan (PW2) to pervert the course of public justice by offering a sum of no more than HK$100,000 to LEE Pui-ling, mother of LAM Fung-ying, to influence the said LAM Fung-ying in an enquiry conducted by the Hong Kong Police Force into alleged offences under Part XII of the Crimes Ordinance committed by the said YU Wai-yip, LEUNG Ka-wai and CHAN Yiu-cheung in order to prevent their prosecution, intending thereby to pervert the course of public justice."

D1's grounds

5. With this background, we can turn to the grounds of the application concerning D1. The first ground of complaint made by Mr Dinan on his behalf is that the judge misdirected the jury, in a passage which is set out on page 19 F-H of the transcript, when he effectively said that because D1 had not given evidence, there was no evidence from him to "undermine, contradict or explain" the evidence led by the prosecution. This, Mr Dinan submits, ignores what D1 had said in his statement under caution where he had stated that the Victim had consented to sexual intercourse.

6. We do not need to dwell at length upon this ground. The trial judge, at the point where this complaint arises, was giving what has become a standard direction to the jury on the effect of a defendant's failure to give evidence. He went on to contrast the position of D1 and D2, both of whom had declined to give evidence, with the position of D3 who did go into the witness box to testify.

7. Of course, if the trial judge had gone on to say that the jury should pay no regard to what was contained in D1's statement, that would have been a serious misdirection but, as Mr Dinan rightly points out in his written submissions which he has adopted in their entirety, no such thing occurred.

8. The trial judge (at pages 20 R to 21 J) directed the jury in terms that they should consider D1's statement in full when considering what in truth had happened to the Victim. The jury was given clear, accurate and helpful directions in this regard, and it is inconceivable that they were left under the impression that they were not permitted to consider the explanation given by D1 that the Victim had consented to the act of intercourse. Furthermore, when the trial judge summarised the facts, the jury were given a detailed reminder of the many suggestions put to the Victim on behalf of D1 which she had denied.

9. There was no misdirection of the jury and this ground must fail.

10. Ground 2 complains that the jury were misdirected when the judge stated that D1's statement under caution was "incriminating" to the extent that he admitted having sexual intercourse with the Victim.

11. The judge was, at the point where he used this expression, explaining how the jury should approach the statement. It is abundantly plain from what he said in passages on pages 20 and 21 of the summing up that the judge was distinguishing between a confession by D1 to an essential ingredient of the offence which the prosecution had to prove and, in the same passage, an exculpatory explanation for the act of sexual intercourse. Whilst it may have been better in the interests of clarity if the judge had said that D1's admission to the intercourse meant that there was no challenge about one of the ingredients of the offence, rather than to have used the word "incriminating", the overall effect of his direction is clear.

12. A similar point is maintained in Ground 3 where it is submitted that the judge failed to identify the nature of the defence adequately or fairly. This complaint is without any foundation. Several times over, the judge highlighted the issues which divided the prosecution's case from that which had been advanced on behalf of D1. Indeed, Mr Saw, S.C., for the Respondent, placed considerable reliance upon this, and rightly so. In particular, the trial judge put the matter squarely before the jury at page 7 of the transcript when defining the offence of rape and explaining the defence of consent which had been advanced on D1's behalf. The suggestions consistent with innocence which were put on behalf of D1 to the Victim were then summarised, as mentioned earlier, between pages 30 P and 32 B. Again, following that, the jury were reminded of the defence when the evidence given by Senior Detective Constable 13074 was summarised at pages 43 M to 44 F.

13. The directions were fair and they were full. The summing up gave an accurate and well-balanced account of the facts from the point of view of both sides.

D3's grounds

14. Turning now to D3, Mr Allan has advanced two grounds that can be taken together. These are that so far as Count 4 is concerned, the judge fell into error when he refused an application for leave to call evidence in support of an alibi, with the result that D3 was denied the chance of presenting his defence as fully as he would have liked.

15. In essence, an application was made to the trial judge on 25th March 1998, which was the 8th day of the hearing and at a time when the prosecution's case was about to close, for leave under section 65D(2) to call a witness known as "Ah Hong" to give evidence in support of D3's alibi defence to this charge. This was, in other words, an application that was being made almost exactly 11 months after the event in respect of which the supporting alibi evidence was said to be relevant.

16. Mr Allan, who, like Mr Dinan, did not appear in the Court below, points out from the transcript that "Ah Hong" could have given evidence to show that D3 was at work at the time when PW2 allegedly conspired with him to pervert the course of justice. This evidence depended in part upon a written record that D3 was at work on 22nd April 1997 and in part, also, upon the memory of the intended alibi witness that D3 was still at work until after 6.00 p.m.

17. The transcript reveals that "Ah Hong" was located only on 24th March 1998, having first been looked for by the solicitors for the defence on the preceding Friday. D3 was said to have been one amongst five working at a particular site of whom one was said to have since died, and another was said to be "Ah Hong" himself. The prosecution, not surprisingly in view of the lateness of the application, objected to the calling of this evidence pointing out that it would take some time to investigate.

18. In these circumstances, the judge declined to exercise his discretion to permit the calling of this evidence so long after the event. In the view of this Court, it would have been surprising if the judge had been prepared to allow the application bearing in mind the delay and disruption this would have caused to the trial if the application had been granted.

19. In any event, the case on Count 4 was simple and straightforward. D3 was well known to PW2. The issue was whether "on or about 22nd April 1997", at around 6.00 p.m. D3 and PW2 had conspired to pervert the course of justice following D3's rape of PW1. D3 was not prevented from giving his version of events by the judge's ruling which was that he did not meet PW2 or conspire with her. We have not been given any good reason why we should interfere with the judge's discretion, and accordingly, these grounds must fail.

Conclusion

20. For the reasons we have given, these convictions were neither unsafe nor unsatisfactory. Both applications are therefore dismissed.