HKSAR v. CHOI LIN CHEONG

CACC 597/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 597 OF 1998

(ON APPEAL FROM HCC 95/1998)

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J U D G M E N T

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

1. The applicant was tried in the Court of First Instance before Stock, J. and was convicted by the jury of three counts. The 1st count was attempted rape. This count alleged that he on 18th December 1996 attempted to rape a female Chan Yuen-wah. The 2nd count was indecent assault. This count alleged that he on the same date indecently assaulted a female Chan Yuen-wah. The 3rd count was wounding with intent. This count alleged that he on the same day wounded Kwok May-sim with intent to resist or prevent the lawful apprehension or detainer of himself.

2. The applicant was sentenced on the 1st count to 13 years imprisonment, on the 2nd count 10 years imprisonment concurrent and on the 3rd count 3 years imprisonment consecutive to the 1st and 2nd counts, making a total of 16 years imprisonment.

3. He now applies for leave to appeal against both conviction and sentence.

4. The prosecution case as summarized by the trial Judge in his summing up is this. The victim Chan Yuen-wah was a 15 year old girl student. In November 1996, she received a telephone call from a man who invited her to join a swimming contest. The man told her she would get a swimming costume for taking part. She agreed. Thereafter, the man telephoned her a number of times about the contest and on one of these occasions, she told him her address. On 18th December 1996, the girl came home after school and the man telephoned again. He told her he was in the vicinity of her home delivering a swimming costume to another contestant and asked her if he could come to her home to give her the swimming costume. She agreed. The man arrived and he gave her a swimming costume and she then tried it out in her room while the man whom she had not seen before, sat in the sitting room. When she came back to the sitting room, the man produced a cutter and threatened her by putting it against her neck. The man then tied her hands and feet and lifted her and carried her to her bed room where she lay facing on the bed. She wanted to scream but he warned her not to. He removed her trousers completely and turned her to face upwards. He used a towel to gag her and cover her eyes. He then pulled up her top and fondled her breasts. He moved his penis against her vagina in an attempt to put it inside but eventually, made her hold it in her mouth and suck it, all these were against her will. At this time her mother Kwok May-sim, the victim in the 3rd count came back. She saw her daughter on the bed with no clothes on the lower part of her body. The man with the cutter in his hand assaulted the mother from behind and there was a struggle. He told her not to scream. He then gagged the mother's mouth. As a result of the struggle, the mother was injured. The man then got away.

5. Medical examination of the girl that evening showed that she had bruises consistent with ligature marks to her wrists and lower legs, bruising to her chest consistent of being inflicted by a blunt force during a struggle, reddish swelling at the lower part and inner aspect of the inner fold of her private parts consistent of being caused by recent blunt trauma.

6. On 13th November 1997, almost a year later, the girl was confronted by a man with a knife when she returned home. She shouted for help and was chased after by the man. She recognised this man was the one who assaulted her in December the year before. The man then disappeared. The matter was reported to the police on 30th November 1997. The applicant was subsequently arrested on 25th December 1997. At an interview, the applicant told the police officer that he became excited after he saw the girl in swimming costume and he admitted to have indecently assaulted her but he denied having sex with her or he had any such intention. He admitted having the cutter and that he had injured the mother when she came back. He admitted he went to the girl's premises and tried to see her in November 1997 but he said he was there to say that he was sorry. At an identification parade the applicant was identified by the girl as the man who assaulted her in December 1996. The applicant on being identified said that he only indecently assaulted the girl but did not rape her.

7. The applicant's defence evidence in the trial, as summarised by the trial Judge, was that he did go to the girl's home on 18th December 1996 in order to give her a swimming costume and a track suit because she had agreed to take part in the swimming contest which he helped to organise. He waited at her home for her mother to return so that the entry form could be signed by her. When the mother came back, there were some discussions about the matter. The mother disagreed to the girl taking part. The straps in the track suit cut the mother's hands. Because of that, the mother told him to give the swimming suit to the girl or she would take legal proceedings. They then had an argument and he left in anger. He never saw the girl again. He denied that he had been to her home in November, 1997.

8. In his defence he said he was hooded and beaten by the police after he was arrested and when he denied the allegations. He was told to admit and he only admitted indecent assault but not rape. The answers recorded were partly his and partly made up by the police but he admitted that he deliberately gave some false answers to the police.

9. The prosecution case was that the applicant told lies both to the police and to the court and the applicant's lies supported the prosecution case.

10. The first ground of appeal is that the Judge misdirected the jury on law and standard of proof when he directed them on the inferences they could draw. The complaint is that the Judge told the jury to ask themselves the question whether the facts are such that they cannot fairly admit of any other inference and, as Mr. Allen for the applicant submits, the use of the word 'fairly' in this context is to lower the standard of proof.

11. What the Judge said in this part of his direction, starting from page 7 of his summing up, is this:

". . . You may only draw an inference if it is the only reasonable inference to draw. In other words, you do not ask yourselves the question, 'Okay, those are the primary facts, can we draw that particular inference?' You ask yourselves the question, whether the facts are such that they cannot fairly admit of any other inference.

In particular, you may only draw inferences of guilt or other inferences against the defendant, if you are satisfied that that inference of guilt or other inference against him, is the only reasonable inference you can draw. So if you have a set of primary facts before you, and you say, 'what reasonable inferences can I draw from those?' and there is only one reasonable inference to draw, and all the other inferences that might be drawn are fanciful nonsense, if there is only one reasonable inference to draw, then draw the inference. But if from those primary facts you can draw inference A, which is against the defendant, but you could also reasonably draw inference B, which is in his favour, then you must not draw the adverse inference, because it would not be the only reasonable inference you can draw."

12. Reading these passages as a whole, the Judge's direction on what inference the jury were entitled to draw from the primary facts they found is comprehensive. We are satisfied that the jury were left in no doubt that they could only draw an inference of guilt against the applicant if that was the only reasonable inference that could be drawn from the primary facts. The use of the word 'fairly' which the applicant complains of, in the context of the whole summing up, does not have the effect of lowering the standard of proof. There is no substance in this ground.

13. Grounds 2 to 4 can be taken together. The substance of the applicant's complaint in these grounds is the trial Judge had wrongly given the jury a full and lengthy direction on the issue of the applicant's lies. Such a direction the applicant says distracted the jury on the issue of credibility of witnesses when there was no evidence of a material lie by the applicant whether proved by the prosecution or admitted by the applicant. Mr. Allen submits that it was wrong for the Judge to tell the jury that the applicant must have lied for no other reason except that he realised that he had committed the attempted rape and assault on the girl and he feared the truth coming out.

14. Mr. Allen further submits that this is not a case where a full 'lies' direction is necessary because the real issue is the credibility of the defendant and the prosecution witnesses. It is also submitted by Mr. Allen that no argument was heard from counsel before this direction was given and that was not in accordance with established practice.

15. The Judge's direction on 'lies' is at pages 10 to 12 of his summing up and it is as follows:

"... I wish to address you on the subject of lies. It is said by the prosecution - it has been obvious from the way the prosecution has conducted its case - that the defendant, they say, has told you and the police a host of lies. And it is in the nature of their case that almost everything he has told you - apart from the fact that he was at the flat on 18 December 1996 - is a lie. And they have attacked his evidence in cross-examination, not just on that broad front but in relation to the smaller and specific points which they suggest are lies, why he had her name on that piece of paper in his wallet; about being told what to say at the identification parade; and lies about a significant number of matters."

Now, what I want to say to you is this. Whether he has in fact, lied to you or to the police about these matters or anything at all, is a matter for you to determine. I am not saying for a moment that that is what you will conclude, but what if you were to find that in one or more regards, the defendants has told you or the police lies, what should your approach be? Should you find that the defendant has lied either to the police or to you in court, then do not convict him simply because you find he has told you lies.

And I say that for this reason. People sometimes lie for reasons other than that they are guilty. Sometimes people lie in order to embellish and bolster a true defence. Sometimes people lie because they have done something that they are not happy about or they think may be wrong, even though it is not the wrong with which they are accused, and they think they had better deny any wrongdoing at all. Sometimes people lie because it is easier to deny that something was said or done than to explain why that thing was said or done.

Sometimes people lie because they cannot recall properly what happened or what they did on a particular day and they think they had better make something up. Sometimes people lie out of panic or because they think that the real story, even a story in their favour does not sound good enough, it does not sound compelling, or it is unlikely to be believed so they make up a better one, and sometimes they lie to protect others. All sorts of reasons of that kind.

Now, if you find that the defendant has lied, and that the lie may have been for one of the reasons which I have suggested, then pay no attention to the lie. What you then do, is you disregard the evidence which you find untruthful, and concentrate on the remainder of the evidence. If you find something is untrue, cast it aside, concentrate on the evidence which the prosecution has satisfied you is true, and on that part of the defendant's evidence which you find to be true, or which you find may be true.

But even if you were to be sure that a lie was not told for one of those innocent reasons which I have described, one thing you must remember, and it is this, that a lie can never in itself prove a defendant's guilt; it is not in itself evidence of guilt. What a lie can do in certain limited circumstances is to add to the factors which strengthen the inference of guilt. But before it can do that, before it can support other evidence, there are a number of factors concerning the lie about which you have to be sure. ..."

16. At the latter part of the summing up, the learned trial Judge came back to the direction on 'lies' and this is at page 28 of his summing up. He told the jury this:

"Do you remember I spoke to you about lies yesterday, and I said that there may be many innocent reasons why people -- understandable reasons why people tell lies. And I explained to you that you should not convict any body just because they tell lies. And if you find lies proved, then just cast the evidence you do not believe aside. And I told you also that a lie can never, in itself, ever, in any circumstances, prove guilt. ..."

and then he said:

"But you could only use a lie to support the girl's story if the lie satisfied a number of conditions. If you thought the defendant had lied about something, you have to be sure it is a lie, a deliberate lie, not just a mistake. It has got to be a lie about something relevant. If the defendant, for example, tells a lie about his age - nobody is suggesting he has, but I am using it as an example - it would not be relevant to anything.

Thirdly, before a lie could be used to support an allegation, or suggestion of, for example, attempted intercourse, he must have lied because he realised that he tried to have intercourse with the girl, and he had told the lie because, and only because, he fears the truth about the coming out, not for some other reason. Well when you consider the 2nd count, the lie would have had to have been told because he realised he indecently assaulted her. And finally, the lie must be shown to be a lie by evidence other than Miss CHAN's, and that is logical because I have told you that corroboration must be evidence independent of hers."

17. Mr. Allen complains that the Judge was wrong to use the words "you must have realised that he tried to have intercourse that the girl and he had lied because he feared that the truth about coming out and not for some other reason" and that the Judge could have used a more neutral expression.

18. In the present case, the applicant admitted he deliberately lied to the police in the answers he gave during his interview by the police and there was also evidence on which the jury could find the applicant had lied in a material aspect of the case such as what happened in the girl's home. We are satisfied that the present case is one where the prosecution relied on the lies of the applicant as evidence of guilt and a full 'lies' direction was justified. It is not one of those run of the mill cases as Kennedy L.J. put it in R. v. Burge & Pegg [1996] 1 Cr. App. R 163:

"In which the defence case is contradicted by the evidence of prosecution witnesses in such a way as to make it necessary for the prosecution to say that in so far as the two sides are in conflict, the defendant's account is untrue and indeed deliberately and knowingly false."

19. The Judge's direction on 'lies', albeit a lengthy one, fully satisfies established requirements and is in accordance with the guidelines in HKSAR v. Mo Shiu-shing [1999] 1 HKC 43 on the need to give:

"A two fold warning to the effect that: -

a) lies can never prove guilt in themselves; and

b) that persons may lie for reasons other than guilt."

20. The fact that the Judge used the words Mr. Allen complains of does not render defective the Judge's direction which overall is in accordance with the recommendations in Mo Shiu-shing. These passages did not add complexity to the case nor distract the jury from the issue of credibility of witnesses and standard of proof. Grounds 2 to 4 must fail.

21. Grounds 5 and 6 can be taken together. These complain that the trial Judge in directing the jury on what evidence was capable of amounting to corroboration wrongly told the jury that the pathologist's evidence of injury on the girl's private part was capable of corroborating her evidence that there had been a penis at or by her private parts since evidence of such injury does not implicate the applicant in the offence. This is so particularly in view of the inconsistencies between the doctor's evidence and the girl's allegation on what happened to her lower part.

22. The Judge's direction in this aspect of the case which appears on page 49 of his summing up, is this:

". . . one matter has been mentioned to me on the question of corroboration, and in the list of evidence which l drew to your attention, as capable of providing independent support of the girl's complaint of sexual assault, it has been suggested that the medical evidence itself doesn't show that the defendant was responsible. It doesn't tend to support evidence that the defendant was responsible for what happened to the lower parts of the girl's body. I wasn't suggesting it was capable of showing that. You're looking at support for the girl's allegations of sexual assault, insofar as she says that something had been going on down below. The medical evidence, to that extent, provides support for her evidence. .... Well, the medical evidence is capable of providing support to that extent."

23. That the applicant was at the girl's home when the mother came back was not disputed. What was in dispute was what happened and what the applicant did at her home. The mother's evidence is capable of corroborating the girl's evidence of assaults while the medical evidence is capable of corroborating her allegations that the assaults were of a sexual nature. That was what in substance the Judge told the jury in his direction. If the jury so directed considered the evidence as a whole, the medical evidence is only part of the circumstantial evidence from which it may be inferred that the applicant committed the offences. The criticism levied on the Judge's direction is not justified. This ground must also fail.

24. The conviction was therefore neither unsatisfactory nor unsafe.

25. All grounds of appeal having failed, the application for leave to appeal against conviction must be dismissed.

26. On the application for leave to appeal against sentence, Mr. Allen submits that the Judge did not give sufficient weight to the applicant's clear record and that the applicant is a married man, with no history of criminal disposition. Mr. Allen further submits that the Judge was wrong in concluding that the applicant had no remorse since according to the medical report persons with mental background such as the applicant's usually would not express remorse on such offences.

27. Before sentencing, the Judge had asked for a report from Dr. Connell, a psychiatrist. With the benefit of the report, the Judge considered whether in the circumstances of the case an indeterminate sentence should be imposed. However, he concluded that it was not an appropriate case for him to do so. In sentencing the applicant the Judge said:

"There are factors in the life history which do not equate with the usual picture of a sexual psychopath. Nonetheless, it is clear that you have a personality disorder, a deep seated problem into which you have little insight. It is well established that a sentence of life imprisonment, where such a sentence falls within the discretion of a court, should be passed only in the most exceptional circumstances and that with few exceptions it is to be reserved for the offenders who are in a mental state which makes them dangerous to the public."

28. The Judge concluded that there was a probability that the applicant might constitute a risk to the public but not one that warranted an indeterminate sentence. Having regard to the force and violence used in committing the offences and the impact and trauma to the victim according to the evidence given by the expert, the Judge adopted a sentence of 13 years as the starting point for the 1st count and 10 years as the starting point for the 2nd count. He found no mitigating circumstances for reduction from these starting points. However, he found the indecent acts complained of in this count somewhat overlapped those in the first count. As a result, he ordered the sentence on this count should be concurrent with that on the first count. On the 3rd count, 3 years imprisonment was taken as a starting point having regard to the injury and violence used. Generally, he found no mitigating circumstances for a reduction. But he ordered it to be consecutive to the other sentences the offence being a separate and distinct one.

29. For offences of such serious nature, the clear record of the applicant is of very little weight. An aggravating feature of this case is the young age of the victim, then only 15 years old. Another aggravating factor is the applicant had planned these offences. He took advantage of the victim's keen interest in swimming to gain access to her home. A similar aggravating feature is the degree of force used on the girl as well as on the mother who by chance had come home in time to prevent the applicant from perpetrating further his misdeeds. We are satisfied that the overall sentence of 16 years severe as it may appear, is fully justified in all the circumstances of the case. The Judge's approach, his conclusion to impose the sentences he imposed and the totality of the sentences cannot be criticised. The application for leave to appeal against sentence must be dismissed.