HKSAR v. LO CHEUNG-ON

CACC 335/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 335 OF 2001

(ON APPEAL FROM HCCC124 OF 2001)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. The Applicant was convicted of rape on 17 August 2001 following a six-day trial in the Court of First Instance before Nguyen J and a jury. He was later sentenced to eight years' imprisonment. He now seeks leave to appeal against conviction and sentence. The Applicant was only legally aided so far as the first of these applications was concerned.

Prosecution's case

2. The facts in this short trial were uncomplicated. The twenty-year-old Indonesian victim was allegedly raped by the Applicant, aged 38, while she was staying at his flat in Sai Kung where she had gone for the purposes of training in how to work as a domestic helper.

3. The Applicant's wife was on the staff of the employment agency which had engaged the victim's services. The responsibility for the victim's training programme was her's.

4. The Applicant first met the victim at his flat in August 2000 when she was undergoing a two-day period of training. After this, the victim went to work at an employer's address. However, in October 2000, the victim returned to the Applicant's flat for further training. This followed a complaint from her employer about her standard of performance.

5. On this occasion, the victim's first night at the Applicant's flat was spent in the company of six other Indonesian domestic helpers.

6. On the following day, 4 October 2000, the victim remained at the Applicant's flat to carry out a number of domestic chores. At about noon, she was left alone with the Applicant in the flat, apart from one other maid who was unwell and sleeping in a room by herself. The victim was doing some cleaning when the Applicant knocked on the door where she was working. The Applicant asked what her name was and then told her to tidy up some toys which were on a bunk-bed located in the main bedroom. The victim did as she was told and when she had finished she returned to her cleaning duties elsewhere.

7. Later on, the Applicant called out to the victim again and this time he asked her to massage him. When she told the Applicant she did not know how to do this, he said to her that he would teach her. The victim felt uneasy but she followed the Applicant into his bedroom. The Applicant was wearing a pair of shorts but no upper garment. The victim was wearing a T-shirt and red shorts.

8. The victim began to massage him while he lay on a bed but the Applicant told her that she was not doing it very well. Both of them stood up and the Applicant massaged the victim on her back for about five minutes and he then lay down on the bed again with his head resting on a pillow. The Applicant told the victim to sit on the bed and to massage his shoulders which she was doing when the Applicant suddenly sat up and pushed the victim back on the bed. He got on top of her and kissed her. He told the victim that he liked her and that she should not say anything to his wife. He touched her breasts over her clothing. The victim was shocked and embarrassed and told him to stop but he pulled her legs down towards the end of the bed and took off her shorts and underpants. The victim noticed that the Applicant had removed his shorts. She struggled and cried out but despite this the Applicant had sexual intercourse with her. He did not, so far as she could see, use a condom.

9. Afterwards the Applicant wiped himself, put on his shorts and walked out of the bedroom, unlocking the door as he went. The victim then put on her clothes and walked to the toilet where she cried. She was upset and ashamed by what had happened. Shortly after this, she saw the other helper in the flat who had been resting because she was unwell. The victim said that the Applicant had told her to massage him.

10. Later that afternoon, the Applicant left the flat. After he left, the victim had a bath. She noticed that her private parts were bleeding. At about 2.30 p.m. she washed her underwear.

11. The victim stayed in the flat that night. On the following day, 5 October 2000, the Applicant's wife took her back to the agency's office in Ma On Shan to await her employer.

12. On 6 October 2000, the victim telephoned her sister, who also worked in Hong Kong, and told her that she had been raped by the Applicant. On 8 October 2000, she eventually brought herself to tell her employer and his wife what had happened. On 9 October 2000, the victim was taken by her employer to the Indonesian Consulate-General. A report was subsequently made to the police. On 10 October 2000, after a six-day time lapse, the victim was examined by a doctor. No injuries to her private parts were found and no signs of her having been subjected to any physical force were noticed.

13. The Applicant was arrested by the police at the flat in Sai Kung on 11 October 2000. He was interviewed and he emphatically denied committing the offence.

14. In essence, the Applicant said that he went out on 4 October 2000 with his wife and had tea with her until later that morning. He then went home to sort out some documents and left the flat at some time after 2 p.m. While he was at home during this period, there were only two Indonesian maids in the flat, one of whom was unwell. He claimed that he did not ask either of the two maids to massage him and that while at the flat he remained in the sitting room at the writing desk dealing with the documents which had caused him to return home.

15. On 16 October 2000, the victim attended an identification parade at Wong Tai Sin Police Station. There, she identified the Applicant as the person she alleged had raped her.

Defence case

16. The Applicant elected not to give evidence. The defence case amounted to a complete denial that anything untoward had taken place between the Applicant and the victim.

17. The Applicant called a character witness and also one of the Indonesian maids (Ida) who had been living at the flat in Sai Kung at the material time. Ida asserted, amongst other things, that when she returned to the flat some time after 3 p.m. on 4 October 2000, she saw the maid who was unwell and the victim. She noticed that the victim's demeanour appeared normal.

Ground of appeal

18. Against this background, Mr Paul Leung, on the Applicant's behalf, has advanced a ground of appeal which he submitted rendered the conviction unsafe or unsatisfactory.

19. The single ground was in these terms:

"1. (i) There was a material irregularity at the trial of the applicant in that the learned trial judge failed, in replying to the Jury's second question posed after retirement, to give a further direction on how they should approach the evidence.

(ii) After approximately ten hours of deliberation, the Jury handed in a note which contained two questions. The second question posed was as follows:

'Even we believe beyond reasonable doubt on all prosecution evidence can we still vote not guilty?'

The form of the question suggests that the Jury might be troubled by certain aspect(s) of the evidence. It also indicates that they might have misunderstood or forgotten the direction on (the) burden of proof and on (the) standard of proof.

(iii) The learned trial judge erred in simply answering the question in the negative without any clarification."

The application

20. Although Mr Leung had confined his written ground of appeal to the 'second' question asked by the jury, he argued that their 'first' question gave "some indication" that they might have forgotten some of the directions given to them in the summing up or that they or at least one of them must have been in some confusion. However, so far as the 'second' question was concerned, he contended that this gave "strong indications" that some of the jury might have forgotten, or had failed to appreciate, the judge's directions on the burden and standard of proof. Mr Leung submitted that this being so, the judge had failed in his duty to provide the jury with the assistance they needed in the manner described in Berry v The Queen [1992] 2 AC 364 at 383 where Lord Lowry, giving the judgment in the Privy Council said:

"The jury are entitled at any stage to the judge's help on the facts as well as on the law. To withhold that assistance constitutes an irregularity which may be material depending on the circumstances, since, if the jury return a guilty verdict, one cannot tell whether some misconception or irrelevance has played a part. If the judge fears that the foreman may unwittingly say something harmful, he should obtain the query from him in writing, read it, let counsel see it and then give openly such direction as he sees fit. If he has decided not to read out the query as it was written, he must ensure that it becomes part of the record. Failure to clear up a problem which is or may be legal will usually be fatal, unless the facts admit of only one answer, because it will mean that the jury may not have understood their legal duty."

21. Mr Leung conceded that the judge's directions on the burden and standard of proof in the main body of the summing up had been clear, but he suggested that it was quite likely that they had been forgotten as these had been given on 15 August 2001, the day before the jury retired to consider their verdict.

22. In his written reply, which Mr Chapman adopted on the Respondent's behalf, Mr Chapman was able to demonstrate that while the directions as to the burden and standard of proof had been given in full on 15 August 2001, they had in effect been repeated on 16 August 2001, because very shortly before the jury retired, the judge said:

"That is all the evidence which was adduced in this trial, members of the jury and, as I said, you have to consider all the evidence and you have to consider, in particular, the prosecution's evidence and decide whether the prosecution has satisfied you beyond a reasonable doubt that the defendant is guilty.

You will consider the evidence of the complainant very carefully. Please consider her evidence very carefully and please remember that her evidence is not supported by any other witnesses or any other source of evidence; that she made a complaint to her sister only, two days after the event. So please remember that her complaint to her sister does not support her allegation that she was raped by the defendant.

Please bear in mind always that the burden is on the prosecution to prove that the defendant is guilty. Please bear in mind that the defendant has no duty whatsoever to prove that he is innocent. If, after you have considered all the evidence, including what he said to the police and including the evidence of Ida and his character witness, if you feel that you have a reasonable doubt about whether he is guilty, then it is your duty to return a verdict of not guilty. On the other hand, if you feel that you are sure that he is guilty and that you have been satisfied beyond a reasonable doubt that he is guilty, by the prosecution's evidence then, similarly, it is your duty to return a verdict of guilty.

You remember the oath that you took at the beginning of the trial is to return a verdict in accordance with the evidence." (Appeal bundle pp. 41-42)

23. With these directions in mind, Mr Chapman did not accept that the jury could have been labouring under any misunderstanding as to the burden or the standard of proof. He submitted that the jury's questions revealed an awareness of the issues and merely reflected a concern, towards the end of their deliberations, about their approach on the two issues raised in their questions.

24. It is convenient at this stage to set these out in the exact manner of the questions written down by the jury. They wrote as follows:

"Question 1.

Can we give a verdict simply based on our belief (beyond reasonable doubt) on what we heard in the Court without being necessary to rely on any independent source of evidence.

Question 2.

Even we believe beyond reasonable doubt on all the prosecution evidence we can still vote 'not guilty'."

25. After counsel at trial, neither of whom appear in these proceedings, had made their submissions to the judge, the jury was directed in the following terms:

"COURT: Mr Foreman, the answer to Question 1 - and I've discussed this with counsel - the answer to Question 1 is: 'There is no legal requirement for the evidence, especially the evidence of the complainant, to be supported by any independent source of evidence.' If you accept beyond a reasonable doubt what she said, if you accept that what she said is the truth, then there is no need for her evidence to be supported by any independent source. All right.

Question 2 is -- I think this is what you mean: that when you say 'believe' in Question 2, I believe you need to say, 'If we accept' - 'Even if we accept beyond reasonable doubt all the prosecution's evidence, can we still vote not guilty?' Is that your question?

FOREMAN: Yes, that's our question.

COURT: Is that your question? Yes.

FOREMAN: Yes.

COURT: Well, the answer to that is 'No', because if you accept beyond a reasonable doubt all the prosecution evidence, then you should not vote 'Not guilty' because then it would be a perverse verdict. All right?

FOREMAN: All right. Thank you." (Appeal bundle p.50)

26. Mr Chapman submitted that this was an adequate and clear response to the questions posed and that no more needed to be said.

27. We have had no difficulty in concluding that the judge's answer to each question was essentially correct. In particular, the jury were apparently seeking reassurance for one or more of their number in their first question that they could convict in the absence of evidence which independently confirmed what the victim had said. As to the second question, which is the essential basis for the present application, the judge's answer was the only one properly open to him. Each juror had either taken an oath or made an affirmation to "give a true verdict in this case according to the evidence". Whilst the judge could not, of course, direct a verdict of guilty, when he was asked by the jury if they could "still vote 'not guilty'" in the event that they accepted (or believed) all the prosecution evidence beyond reasonable doubt, the only possible answer to this was in the negative.

Conclusion

28. No reason has been advanced which causes us to find that the verdict was unsafe or unsatisfactory. The application is dismissed.

Sentence

29. So far as the sentence of eight years' imprisonment is concerned, the Applicant repeated some of the matters on which he relied in mitigation in the court below when complaining that his sentence was too long. We do not agree with his complaint. This would have been a traumatic experience for the victim, perhaps all the more so because she was far away from her home having only recently arrived in Hong Kong from Indonesia. The Applicant has shown not the slightest remorse for what he did to his victim who was nearly half his age and who was effectively under the Applicant's care at the time of this offence.

30. The sentence was within the proper range which was open to the judge for consideration. This application is also dismissed.