THE QUEEN v. LIU KWOK CHUNG

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JUDGMENT

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Silke, J.A.:

1. The applicant, Liu Kwok Chung, was convicted before Mr. Justice O'Connor and a jury of the offences of common assault, false imprisonment and rape. He originally sought leave to appeal against his convictions on all three counts. He now confines his application to the count of rape.

2. A 19 years old waitress lived with one Siu Chung Man. In April 1983, she broke off relations with Siu. Siu was anxious to continue. On 14th April 1983, she met Siu by chance on her part, possibly by arrangement on the part of Siu. And Siu was with three others, one of whom was the applicant here. Demand was made to her to pay $5,400 as a separation fee.

3. The girl, I would interpolate, was clearly not a very good witness and the judge expressed concern, in the course of the trial, as to the nature of and her manner in giving evidence.

4. She went on to say that she was taken aboard a car on the pretence that she was being brought to collect some clothes of hers from the flat which she had shared with Siu. As the car went along the road, she appreciated that she was not being brought to the flat. She was brought to a construction site near Kwun Tong. There she was assaulted by the applicant and she was asked whether she wished to go to the New Territories or to Yuen Long. She did not under-stand what was happening. The assault perpetrated by the applicant was a slap upon her face and a punch upon her chest.

5. The car which had departed came back. They all got into the ear, spoke to some other men and the car moved off. This time to a place near Castle Peak Hospital. There the girl was walked by, amongst others the applicant - who was clearly acting as an escort - to a derelict, isolated house and in that house she was raped repeatedly and had sexual indignities perpetrated upon her.

6. Subsequent to that, she was brought back to Kowloon, with the applicant again acting as an escort, and taken to a flat with the man Siu.

7. It was never the Crown's case that the applicant actually had had physical intercourse with the girl. It was their case that he was a full participant in the events of the evening and that he had given active and intentional encouragement to the rape. The sole ground of appeal argued before us by Mr. Westbrook, who appears for the applicant in this Court, is that there was no or no sufficient evidence of such active and intentional encouragement to justify the jury in coming to their conclusion that the applicant was guilty of rape.

8. The jury were directed with clarity and precision - that mere presence was not enough and also of the ingredients that it was necessary for the Crown to prove in order to show the guilt of the applicant. No quarrel has been taken with anything that is contained in the summing up in respect of the directions in law given by the trial judge.

9. It was a matter for the jury as to whether they did or did not draw inferences of guilt from the generality of the evidence. Mr. Westbrook has valiantly sought to isolate the rape from everything else that went on that evening. While we accept that there was no evidence of an intention to have sexual intercourse with the girl expressed prior to the arrival at the house itself, nevertheless, the applicant was fully aware, upon arrival, that the intention was that she should be raped. And that by "more than one person in turn" as he himself said in his cautioned statement which was admitted in evidence and was before the jury. He made it clear that he did not say anything when this proposal was announced and that he walked away but he had certainly remained there, that is near the hut. He had previously assaulted the girl acting on the instructions of Siu, the main instigator of the whole incident; he had escorted her against her will to this hut and he had escorted her away again after the incidents. While he may have declined the offer himself, for the reason given that he had a girlfriend, he was fully conversant of the fact of the incident taking place and, having escorted her there, remained on the scene. We consider that there was sufficient evidence for the jury to draw the inferences necessary to guilt and to come to the conclusion they did. In these circumstances, the application for leave to appeal against conviction is refused.

Sentence

10. The applicant seeks leave to appeal against sentence which application is out of time. We are prepared to grant the application in respect of time and consider the application for leave to appeal against sentence. The sentences were: 6 months on the common assault, 12 months on false imprison- ment and 6 years for the rape - sentences running concurrently. Mr. Westbrook's contention is that this totality is manifestly excessive, although we did water that down a little to be "rather too much" at a later stage of his submission. He bases his contention to a large extent on the sentence passed on the man Siu by another judge in another Court after a plea of guilty. That sentence was one of 3½ years, something of which the trial judge here was well aware making reference to it when he passed the sentences he did.

11. It is possible that the sentencing judge in respect of Siu was not, because of the plea of guilty, fully aware of all the factors involved in this matter. We cannot think that, had he been so informed, he would have passed so inadequate a sentence.

12. The fact that one sentence is inadequate, and in our view wrong, does not justify an alteration in a sentence which we think to be adequate, right and, in no way excessive. Six years, in the light of the nature of this offence and the acts which took place, even though the applicant was not actively engaged in sexual intercourse with the girl, is not excessive. The application, is therefore, refused.