THE QUEEN v. CHAU CHEUK MAN

Headnote

Corroboration: sexual offence.

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J U D G M E N T

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Silke, V.P. :

1. This is the judgment of the Court.

2. Chan Cheuk Man - "the Applicant" - appeared for trial before Barnes, J. and a jury on an indictment containing three counts. The first: false imprisonment at common law, the particulars of which alleged that he together with four other named persons unlawfully and injuriously imprisoned Miss Ho Yuk Lin against her will; the second the rape of the girl and the third, stated to be alternative to the second, unlawful sexual intercourse with the girl, who was under the age of 16.

3. All these offences were said to have occurred on 21st October 1987 inside Room 528, Block 14, Ngau Tau Kok Lower Estate, Kowloon.

4. It was accepted that the girl was under 16 years of age being fifteen years and eleven months at the relevant time.

5. The Applicant was convicted on the first and the second counts and he now seeks leave to appeal against the convictions on the second count - rape - only.

6. It was the case for the Crown, based mainly on the evidence of the girl, that on 20th October, she was walking with her current boyfriend in Ngau Tau Kok and in the area of the Amoy Commercial Complex. They were accosted by an ex-boyfriend of hers together with another man. They were forced to go to the nearby Luen Bouy Billiard Room where both were assaulted. Later the current boyfriend was permitted to leave but she was detained and, again, assaulted. She was felled by a blow, kicked on the back and the chest and subjected to further assaults. A monetary reward was demanded from her for her release. During this part of the incident the Applicant was not present.

7. At about midnight she, having been asleep, was awakened and taken by her captors to the entrance of the Billiard Room. There another group of men joined them and in this group was the Applicant.

8. She was taken to Room 523 in Ngau Tau Kok Lower Estate which she described as being "Fu Lo' s house" and which was the room of the grandmother of the Applicant. The room was empty when they got there. One of the group unfastened the iron grill and the wooden door in order to gain entrance.

9. When the group was inside - Ip Ching Hang - one of the persons named in the particulars of Count 1 and, on the evidence of the girl the ringleader in the whole of the incident, told her to "serve his brothers nicely". She protested but was told to "shut up".

10. The rest then left the room there remaining in it the girl and the Applicant. The Applicant began to strip her. She protested but was threatened with further assaults and, as a result of the threats levelled at her, she allowed the Applicant to have intercourse with her.

11. When that episode was over the Applicant opened the door, admitted all the rest who then, in turn, raped her.

12. At 6:00 a.m. that morning - it now being 21st - the Applicant and another of the named persons - Li Wai Yin - took her back to the Billiard Room. There she made telephone calls in an endeavour to get the release money. Eventually a man named Siu paid money, took her over as his prisoner for two days and, after that, she was released.

13. This was by now the 24th October and she went home and made a complaint to her mother. On 25th October she and her mother made a report to the police.

14. Four men were arrested but not the Applicant. Between then and the 9th May 1988 the police on many occasions visited the grandmother's flat, the residence of the Applicant's family, which was also in Ngau Tau Kok Estate, and the Billiard Room but without tracing the Applicant. It was on 9th May that he was arrested and at his grandmother's flat.

15. The girl identified him on an identity parade the following day.

16. Medical examination, made after the report to the police on 25th October, disclosed no relevant sexual injuries.

17. Bed clothes from the flat were examined. A stain, positively identified as human semen, was found. There was forensic evidence that this could have emanated from one of three different males, including the Applicant, or from a combination of them mixed with fluid from the girl.

18. The Applicant, who was 21, said in evidence that he was friendly with two of the named persons and knew the names of the others. He occasionally stayed with his grandmother in Room 528 but only when she was ill. In October 1987 she lived there alone but, prior to that, one of the named persons, Ip Ching Hang, had lived in the room the Applicant having made arrangements for him to stay with his grandmother but, quite frequently, he did not return to that room.

19. On 20th October he had played billiards with his girlfriend watching him at the Billiard Room. They left for a midnight movie at 11:15 p.m.. When it was over they returned to the Billiard Room - this being now about 1:15 a.m.. The Applicant played more billiards. Later he went with his girlfriend to a soda fountain in the Billiard Room and from there to catch a bus to go to Tai Po. They arrived at Tai Po between 7:00 a.m. and 8:00. a.m. on what was now the 21st October. In effect, a total denial of any involvement with the victim and he asserted that he had never seen her before the identity parade held on 10th May 1988.

20. He agreed that his nickname was "Fu Lo". He further agreed that he knew the police were looking for him but said he did not know why. He did not ask his family as he thought it might be connected with some other matter irrelevant to this trial.

21. In the course of the summing up the trial judge, having explained why, warned the jury that:

"the law requires me to say that it would be dangerous for you to convict the defendant of either rape or the alternative offence of unlawful sexual intercourse on the uncorroborated evidence of HO Yuk-lin."

22. He then went on to a passage of which Mr. McCoy complains and which forms the first ground of appeal. He said:

"Corroborative evidence means evidence coming from a source other than Ho Yuk-lin which confirms her evidence that the particular sexual offence was committed and that the defendant was the offender. To be corroborative, the evidence does not have to tally detail by detail with the evidence she gave. It is sufficient if the independent evidence makes it more probable that her evidence describing the offence and the offender is true."

23. The judge, having properly indicated to the jury that it was his duty to point out what evidence was capable of being corroborative - it being for the jury to decide whether it was or was not - went on to tell them that there was no evidence capable of being corroborative on the rape count:

"... because there is no independent evidence capable of confirming her evidence that she did not consent to sexual intercourse."

He then immediately followed this up by saying:

"With regard to the alternative charge of unlawful sexual intercourse, there is evidence capable of corroborating her allegation that the defendant did have sexual intercourse with her."

24. He then, and properly, directed the jury that it was only if they were "so sure" that she told the truth that, despite the lack of corroboration, they could safely find the Applicant guilty.

25. It is Mr. McCoy's submission that the direction of which he complains left out the phrase: "confirm in some material particular"; that all three issues: identity, intercourse and consent were open; that by directing that there was no corroboration of the rape and, at the same time, directing that one of the issues involved in that offence, intercourse, was on the alternative count, corroborated, the trial judge could only have confused the jury there being but one act of intercourse alleged.

26. Mr. McCoy further submits that the confusion he suggests existed was further compounded - and this is his second ground - in that, by directing the attention of the jury to three matters said to be considered capable of corroborating intercourse, the trial judge erred in that those items were not so capable.

27. Those were: (1) the access the Applicant had to Room 528; (2) the finding of the sperm stains and (3) the Applicant's flight.

28. Immediately before giving the general directions on corroboration which are complained of by Mr. McCoy the trial judge had informed the jury of the necessity for separate consideration of each of the counts and also, and quite properly, that it was only if they found the Applicant not guilty on the rape count would they need to go on to consider the unlawful intercourse count.

29. He had defined rape as being where "a male has sexual intercourse with a female without her consent".

30. Apart from consent the ingredients which the Crown had to prove - intercourse and identity - were common to both Counts 2 and 3 and with identity common to Count 1 as well. Had there been consent to intercourse then it was no rape but it was, in view of the age of the girl, unlawful intercourse and it was this distinction which, in our judgment, the trial judge was seeking to draw when he gave the directions he did for he went on later in the summing up to direct them in these terms:

"In order to convict him of rape, you would have to feel so sure about the truthfulness of her allegation of lack of consent that you could safely convict in the absence of corroboration of her evidence about lack of consent. As I said to you earlier, if you do find him guilty on this count, you do not need to consider the third count. But if you find him not guilty, then you must go on to consider the third count. And so I will deal with that now."

31. Shortly afterwards he drew to their attention the three items which he said they could regard as being capable of constituting corroboration.

32. While it might perhaps have been put in clearer terms we do not think the general directions given, taken in the context of the whole of the evidence upon which the summing up was based, were wrong or would have caused in the jury the confusion Mr. McCoy suggests. If intercourse took place at all there was but one act. The jury were clearly told that it was only if they were not satisfied that the Crown had proved the rape that they would then go on to consider the alternative count. But they must have realised that the directions as to corroboration of intercourse, and indeed of the identification of the Applicant as the committee of the offences, though this was not specifically referred to by the trial judge, was something which they had to consider.

33. The real issue in this appeal is, in our judgment, whether those three matters to which the judge referred were indeed, capable of being corroborative. Two of them: the access of the Applicant to his grandmother's flat and his flight, both related to identity and, albeit indirectly, to the sexual offences having taken place, the Applicant having denied all. The third, the seven stains, related solely to the matter of intercourse.

34. It was a matter of fact for the jury, for there was evidence before them upon which they would have item entitled to their conclusions, whether or not they accepted that the Applicant was in the best position of anyone to provide the opportunity for the use of Room 528. It was not contested that incidents had taken place in Room 528 and that they concerned the girl. It was further left to them, and again on the evidence, to consider whether the flight of the Applicant was occasioned by a consciousness of guilt emanating from knowledge attributed to him that he knew why the police were looking for him, or whether his flight was, as he said it was, because although he knew the police were looking for him he thought that it was in connection with some irrelevant matter. If they were to find against the Applicant on both of these matters then both had the required tendency to implicate him in the offence and that it had taken place.

35. The full passage of Lord Reading C.J. in R. v. Baskerville [1916] 2 KB 658 at 665 bears repetition. Lord Reading said :

"What is required is some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably to safe to act upon it."

36. Having set out the classic test Lord Reading went on at p.667:

"It would be in high degree dangerous to attempt to formulate the kind of evidence which would be regarded as corroboration, except to say that corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused. The corroboration need not be direct evidence that the accused committed the crime: it is sufficient if it is merely circumstantial evidence of his connect ion with the crime."

37. In The Queen v. Yu Wai Chun and Another Criminal Appeal 179/87 (unreported) another Division of this Court cited with approval the passage appearing in the 42nd Edition of Archbold's Criminal Pleading, Evidence and Practice at paragraph 16-5 which reads:

"The whole tenor of their Lordships' observations in the cases of Hester, Kilbourne and Boardman, is to the effect that ... any evidence which makes it more likely that the accused is guilty can afford corroboration of a 'suspect' witness's evidence."

38. We accept that if a trial judge directs the attention of the jury to evidence which is not capable of corroborating and suggests to them that it is then there is a material misdirection: further if some of those matters are matters dependent upon the evidence of the complainant herself, and are not therefore independent, equally there would be a misdirection. Here all three matters were open. Mr. McCoy, citing James [1970] 55 Cr.App.R. 299 at 302 urges us to find that none of the three items identified by the judge passes all the three tests there set out: intercourse: lack of consent : that the Applicant committed the crime.

39. Leaving aside for the moment the matter of the sperm, in our judgment it is not incumbent upon a trial judge, where all three issues are open, to attempt to allocate that which may be corroborative evidence as between those three elements: intercourse, consent and identity: though of course, a jury must be told that it is all three elements, if they are contested, which require to be corroborated.

40. Since the hearing of this appeal counsel have, with leave of the Court and without further oral argument, submitted two brief additional addresses and have drawn our attention further to James and also to a number of other authorities. Mr. McCoy has specifically made further reference to R. v. Hills [1988] 86 Cr.App.R. 26, an authority upon which Mr. Bruce for the Crown had earlier relied. Hills was a case where the trial judge has listed some 13 points in his summing up, containing facts and circumstances which were admitted or proved by independent evidence, which were not individually capable of corroborating the evidence of the suspect witness, but stated that it was for the jury to decide whether collectively they might do so.

41. Lord Lane accepted the proposition that corroboration can be provided by a combination of pieces of evidence, each, innocuous on its own, which tend to show that the defendant committed the crime. But in such circumstances it is always important to consider (1) what are the real issues in the case; (2) what the evidence being put forward in corroboration does in fact prove - and the proof may come from several sources in which the corroboration may be cumulative; (3) whether that evidence (a) comes from a source or sources independent of the suspect witness; (b) goes some significant part of the way towards showing that the offence was committed and the accused committed it.

42. The directions of the trial judge there failed the tests as set out by Lord Lane for some of the items were not of the independent nature required. There was a material misdirection.

43. The Lord Chief Justice adopted that which was said by Lord Reid in Director of Public Prosecutions v. Kilbourne [1973] AC 729 at 750:

"There is nothing technical in the idea of corroboration. When in the ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating to the particular matter; the better it fits in, the more one is inclined to believe it. The doubted statement is corroborated to a greater or lesser extent by the other statements or circumstances with which it fits in."

Lord Lane then went on to comment:

"The other statements or circumstances are only of value if, having regard to what is in issue, they come from a source or sources independent of the accomplice and go some part of the way towards proving guilt, by tending to show that the offence was committed and that the accused committed it."

44. Both the opportunity, which was virtually alone available to the Applicant for the use of Room 528 and, to a lesser extent, his flight were, in our judgment, circumstances, one a good deal less innocuous than the other, which tended to show that the Applicant had committed the crime.

45. The sperm falls into a. somewhat different category. It went only as far as to suggest that intercourse had taken place in that room and that three possible persons were involved, including the Applicant. It did not, as we understand it, fall within that which, was said in R. v. Chan Chun Man Criminal Appeal 326/85 (unreported) which spoke of a close relation between the composition of body fluids at an incriminating place and those of an accused as being corroboration, but only where a limited class of persons in Hong Kong had the same composition of body fluids. Here there were three possible donors with the possibility of the girl herself contributing to the stain. The composition of that stain clearly troubled the jury for they came back for further directions in relation to it and they were told, quite properly and quite clearly, that what the forensic expert said was that the likely source of the stain were three Chinese males, one of them the Applicant, and any of them mixed with the girl.

46. Of it the trial judge had said, beginning his directions with this phrase:

"There is independent evidence which you may think supports some of HO Yuk-lin's evidence." (Emphasis Supplied)

47. Mr. McCoy seeks to employ the use by the judge of the word "supports" to bolster his contention that the trial judge has confused that which is corroboration with that which is mere supportive evidence and has drawn our attention to The Queen v. Chan Kam Sam CA 563/1984 where the use of that word was criticised. The judge then went on, repeating the word "supports", to say:

"The finding of the spermatozoa stain on the bedclothing is a circumstance which you may think supports her allegation that someone had sexual intercourse with her in that room. Was the finding of that stain a coincidence or a circumstance which supports the truth of that part of her story?

48. Having made reference to the issue of flight, the judge continued:

"    If, however, you concluded that the finding of the stain supported the truth of Miss Ho's allegation of having had sexual intercourse in Room 528 and that the defendant was hiding from the police because of a feeling of guilt over his association with them (sic), then you would find support for her allegation that he did have sexual intercourse or rather you could find support for the allegation that he did have sexual intercourse with her in that room.

    But that confirmation of her story does not amount to corroboration of her allegation of rape because he could have had a feeling of guilt even if she consented, because it was still an offence to have sexual intercourse with her even with her consent because she was under age."

49. It was immediately after that he went on to advise them that to convict him of rape they would have to feel "so sure" about the truthfulness of her allegation of lack of consent before they could safely convict in the absence of corroboration.

50. We accept, with respect to the trial judge, that some of these directions could have been more happily expressed. But he did make it clear to the jury that, even if they found the spermatozoa stain supported the girl's evidence or that, in conjunction with flight it could so support, this support was not corroboration of the allegation of rape. In those circumstances, and as the jury were fully advised that the source of the spermatozoa stain was not confined to, or identified as, coming from the Applicant alone we do not think the conviction on the rape count to be either unsafe or unsatisfactory.

51. There were issues proper to be brought to the attention of this Court. We would grant leave to appeal, treat the hearing of the application as the hearing of the appeal but dismiss the appeal.