HKSAR v. KONG KA CHUN and Others

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 311
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The 1st Applicant seeks leave to appeal against the sentence of 7 1/2 years' imprisonment imposed upon him when he pleaded guilty to one count of rape. A2 who was D3 in the trial below seeks leave to appeal against his conviction on the same count of rape and the sentence of 8 years' imprisonment imposed upon him for the offence and A3 who was D4 below likewise seeks leave to appeal against his conviction on the count and his sentence of 8 years' imprisonment.

2. It is convenient to refer to A2 and A3 by their descriptions in the court below.

3. There were altogether 3 incidents complained of by the victim Miss Wong who was aged 14 at the relevant time. So far as these Applicants are concerned this application is confined to the 3rd incident which occurred on 9th June 1996 at a leisure park on Tsing Yi Island.

4. On the evening in question Miss Wong was with two of her friends in the open area near Ching Chung House. One of the friends left. She then left with her other friend, Mr. Tse Lee-tat. When they reached the basketball court they came upon a group of youths which according to the prosecution case included the three Applicants. Miss Wong and Mr. Tse knew some of the young men from a previous encounter with them.

5. Mr. Tse who was a witness in the trial below was told to leave and Miss Wong attempted to make good her escape. She was unsuccessful in this and was brought back by the youths to the leisure park.

6. The youths then manhandled her and indecently assaulted her. In addition to this the 1st Applicant slapped and punched her. The incident escalated further when the group decided that some or all of them would have sexual intercourse with her. Miss Wong resisted this as best she could and asked the youths to stop.

7. A1 had sexual intercourse with her. He pleaded guilty to raping Miss Wong and gave evidence for the prosecution in connection with this incident and an earlier one. However at the conclusion of the trial an application was made by his counsel to reverse his plea. The basis of this application was that he claimed that Miss Wong was his girl friend and that he had been under the impression that she had consented to the intercourse. The judge refused the application and there is no appeal in relation to this.

8. According to Miss Wong the men had sexual intercourse with her successively although she said that the one she described as the young one experienced difficulty in penetrating her to any great extent. A1 however gave evidence to the effect that while D3 had had sex with Miss Wong D4 had only stood by as an observer. It is pertinent to observe that Pang J. the trial judge in his summing up to the jury gave directions on the subject of what might constitute a joint enterprise and accordingly the whole of D4's participation at the scene would have been considered by the jury.

9. At the conclusion of the incident a police van arrived at the park and the youths endeavoured to escape. This was at about 11:30p.m., that is about 1 1/2 hours after the beginning of the incident. The sergeant in charge of the team saw the men running away and ordered them to stop and squat down. They obeyed this order.

10. It was the prosecution case that on his arrest D3 said:

"Ah Sir, I mounted the girl but it was Ka Chun and Ah Shek who had mounted her first. Only when they had finished that they told us to mount her. Ah Sir, please give me a chance."

and D4 said:

"I only pressed the girl and squeezed her boobs. I did not fuck the girl, only KONG Ka-chun and CHENG Sai-wai fucked the girl."

11. The sole ground of appeal advanced by Mr. Cheung for D3 was that the judge erred in law in failing to rule on the voir dire whether the prosecution had proved the defendant's alleged oral admission was voluntary.

12. At the trial a voir dire had been conducted to determine whether statements allegedly made by the defendants and the post recorded statements containing the admissions referred to should be admitted as evidence. In the course of the voir dire there had been evidence of improprieties on the part of police. These included allegations of misconduct which were alleged to have occurred prior to the admissions supposedly made shortly after the arrest. It was quite clear from the short reasons given by Pang J. when he ruled all the statements to be inadmissible that he had not ruled on the oral admissions. Mr. Bruce for the prosecution accepted the judge had been in error in not so ruling.

13. The admission of the verbal admissions amounted to a material irregularity which rendered the convictions unsafe and unsatisfactory.

14. Mr. Wong for D4 associated himself with Mr. Cheung's submissions and also made submissions in relation to the other grounds of appeal. His appeal must also succeed. In the light of our decision on these appeals it is not necessary for us to comment on these grounds.

15. Treating the application as the appeal we quash D3 and D4's convictions and allow the appeals.