R. v. WONG WING SUN

IN THE COURT OF APPEAL

1996, No. 18
(Criminal)

--------------------------

----------------------

J U D G M E N T

----------------------

Litton, V.-P.:

1. This is the judgment of two members of the court, Bokhary, J.A. and I.

Introduction

2. This is an application for leave to appeal against conviction. It is plainly a case where leave should be given. The matter has been fully argued. We therefore proceed to deal with this as the appeal itself.

3. The appellant was originally charged on two counts: (1) rape, in that on 2 May 1995 at the staircase landing between the first and second floors of Block C, Kui Wo House, Tai Po Estate, Tai Po, he raped Lai Fung-chun; (2) attempted buggery, in that at the same time and place he attempted to commit buggery with Lai Fung-chun.

4. After trial in the High Court before Seagroatt J and a jury in November 1995 he was acquitted on the second count and convicted on the first count of rape and sentenced to 10 years' imprisonment.

The appellant's case

5. The appellant was, at the time of trial, 33 years old, married, with a 3-year old son. He was reasonably well educated, having spent three years in a technical institute and one year at the Polytechnic after secondary schooling. At the time of the offence, in May 1995, he was the director of a garment manufacturing company.

6. The appellant testified at the trial. His story, in essence, was this: He frequented karoake bars from time to time, in entertaining customers. On the evening of 1 May 1995 he was playing mah-jong in Shatin until 2 a.m. After dropping off two of his friends he went to Tai Po with a 3rd member of the mah-jong party, a Mr Yip, for a night snack. He consumed no alcohol. Mr Yip lived in the Kwong Fuk Estate in Tai Po. Having dropped Mr Yip off, he intended to drive home to Tuen Mun but lost his way. By this time, it was past 3 a.m. Driving along Pak Shing Street (with Lam Tsuen River on his right), he saw a woman walking on the other side of the road. That was Lai Fung-chun (PW1). He turned off Pak Shing Street and stopped his car near the junction. He got out and went up to her to ask the way. She gave certain directions and he walked back to his car. He then realised that she looked familiar: He though he might have met her before in a karaoke bar, so he returned and engaged her in conversation. There was mention of trips to the mainland and "having fun" with mainland girls, and whether mainland girls were "better" than Hong Kong girls. He said words to the effect that given the choice he would have fun in Hong Kong, adding "not every girl on the mainland is so good"; then she asked: "what about me?" and "do you want to try?" All this was taking place when they were walking together towards Tai Wo Estate (access to which is gained from Pak Shing Street across Tai Wo bridge). As to the price for her sexual services she said "the price on the market is $1,000, you know it, and if it is finished and you're happy, you can pay me more." He then asked where he could hire a room and she said "why waste the money on that, give me the money." So she suggested going to the staircase and they went to the landing between the first and second floors where the sexual activities began. This is how he described them:

" I embraced her, touched her, kissed her. I put my hand under her skirt to reach her chest. I moved her skirt inside out and removed her bra. I was standing behind her. I unfastened buttons on my fly. I fondled her upper body. She didn't resist. I pulled down her underpants, then she bent over and I noticed that she had a sanitary napkin in her underpants."

7. He said that when he saw the sanitary napkin he lost interest. His erection subsided and he offered her $300 but she got very angry, threatening to shout "Save life" if he did not pay the full amount; and in fact did shout "Save life" several times. He then suggested oral sex which she refused but she said: "Can you fondle me, and then you can jerk off and make it hard - on yourself." He proceeded to do as she suggested but then lost interest, offered to pay her and call it off. But he discovered he only had $400-odd in his wallet - having lost money at mah-jong that evening - whereupon she got very angry. Then, at this point, he heard people approaching and being frightened ran away, up the stairs. On the eighth floor he was arrested.

Police statement

8. The statement he made to the police, at the Tai Po Police Station, on the morning of 2 May 1995 was at variance with this story. There he told the police that he had followed PW1 to the lobby of Kui Wo House, having spotted her as he was driving and had wanted to touch her "out of momentary impulse". He had pulled her to the staircase on the first floor and began to assault her sexually. This involved his squeezing her breasts, touching her vagina with his fingers, touching her buttocks with his penis and masturbating. As recorded in exhibit P19, he said nothing to the police about her invitation to have sexual intercourse for $1,000, his offering only $300 when he lost interest and her getting angry and shouting "Save life".

9. Despite his previous inconsistent statement, his story as told in the witness-box was not an account which could be rejected out of hand and needed careful evaluation.

PW1's version of events

10. PW1, a woman aged 36, married, with two teenaged children, lived at Kui Wo House, Tai Wo Estate. She worked as a hostess in a karaoke lounge in Mongkok, entertaining customers. On the night in question, she took a minibus at Mongkok at about 2.40 a.m. to return home. The minibus got to Tai Po at about 3 a.m. She got off the minibus at Pak Shing Street, walked along the road and then turned to cross Tai Wo bridge. The area near the bridge was brightly lit and normally there were people walking along the bridge even at that time of night.

11. Just before she got into the lobby of Kui Wo House suddenly a man grabbed her from behind, telling her not to move. She immediately shouted out for help: "Save life". He then hit her repeatedly on her back and she continued "shouting out for help" for quite a long time. She then said:

"I was hit until ... the rubbish bin toppled over, and I tried to resist and I eventually came to know that it was impossible for me to do so, so I asked him what he wanted. And he said: 'I just want to touch you': and I said to him: Don't hit me any more because I have got heart trouble."

12. Her version of events was then as follows:

"Then he said: 'You should not shout any more or I will hit you again': and then he grabbed me and I thought he was taking me to one side, but he was taking me towards the staircase. I put up resistance but he hit me and he told me not to shout out. And I was grabbed and was taken to a corner of the staircase landing between the 1st floor staircase and the 2nd floor staircase."

13. Pausing here, this point is worthy of note: throughout the incident, PW1 said she never saw the man's face. He was always behind her - to the extent that, later on, at an identification parade, she had asked for a voice identification, being unable to make any visual identification. This means that however she was "grabbed" - as to which she never elaborated - it was from behind. How, in these circumstances, he was able to repeatedly hit her with any degree of force whilst "grabbing" her remains a mystery. Nor did PW1 say how, "grabbed" as she was from behind, she was forced up three flights of steps to the landing where the rape took place. We have seen the appellant in Court. He is a slightly-built man, 5 feet and 7 inches tall: not the sort of man who could easily have manhandled a protesting woman up three flights of steps, holding her from behind.

14. Her evidence, (collating what she said in-chief and in cross-examination) was to the following effect: The man lifted up her dress to cover her head, removed her brassiere, her panty hose and underpants. All the while, he was behind her. She felt him taking off his trousers. She tried to put up resistance and wanted to run away but he "grabbed round me" and told her to put her two hands on the step of the staircase in front of her. She cried and said "Please stop." Then she said:

"But despite that, he still raped me forcefully".

15. This, however, turned out not to have been the correct sequence of events. She said that, at that time, the man wanted to insert his penis into her anus but she felt that it was flaccid and he could not insert it.

16. The man then asked her to have oral sex with him and when she told him she did not know how to do it he said: "Are you mocking me? I will hit you." Then she told the court: "Because I wanted to look at his face, so I said to him: I can do it for you with my hands", but he refused.

17. Pausing here, it will be observed that, according to her story, she had retained sufficient cool-headedness to want to lure the assailant into adopting a position where his face might be revealed. Continuing her testimony, she told the Court the appellant then grabbed her neck with one hand and with the other she felt him use it to manipulate his penis. Then, very soon, he inserted his penis into her vagina and she felt the stubble of his face on her back. Whilst he was moving his penis inside her vagina he asked whether she worked in a karaoke and whether she was living there. She then said:

"I asked him not to ask so much, so many questions. Then he said to me: Are you turning nasty? Shall I hit you?"

18. She then heard the voices of people approaching and her narrative continued:

"He got frightened and grabbed me from behind and made me to squat down as if we were a courting couple, and told me not to shout out."

19. But the voices approached and he ran up the stairs.

20. PW1 said that the incident, from the time when she struggled with the appellant outside the lobby to the time she was raped lasted about 15 to 20 minutes and that he had thrust his penis into her about 20 times. At all times the appellant was behind her and she never saw his face.

Weaknesses in PW1's story

21. Whilst, unquestionably, there were weaknesses in the appellant's version of events - in particular, his previous inconsistent statement given to the police - there were weaknesses in the prosecution case which the judge failed to highlight. In particular:

(1) Was this really a "stalking" case - with the appellant cruising around the area in his car, late at night, looking for women to rape? This was the basis upon which the judge sentenced the appellant eventually. Unfortunately, no evidence was adduced as to where the minibus stop was, at which PW1 alighted. Presumably, it was only after she had alighted from the minibus that the appellant could have identified her as a potential victim. Or was this a case of a chance encounter - the appellant having stopped his car to ask the way - as he said happened?. If the appellant's version was a possibility, then it must follow that the rest of PW1's story was unreliable.

(2) PW1's story was that she had put up a considerable struggle outside the lobby of Kui Wo House: She had shouted "Save life" several times, struggled to the extent of toppling a dustbin in the lobby. The noise must have been considerable and the chances of someone's attention being alerted must have been real. And yet, the appellant proceeded to carry out the assault and the rape.

(3) There were marks on PW1's upper back which the judge told the jury were consistent with her having been hit in the way she said. But were they? The marks, according to the expert evidence, could have been up to two days old: in which case they were inconsistent with her evidence, or at least neutral. Moreover, if PW1 had been held tightly from the back, as she claimed, it is difficult to see how severe blows could have been delivered by the appellant on her back: blows which, she claimed, overcame her resistance.

(4) It is also difficult to envisage how, grabbed from behind, PW1 was propelled up three flight of stairs to the landing between the 1/F and 2/F.

(5) The exchange of remarks with the appellant during the rape, and her apparent cool-headedness, rendered her version less credible.

PW2 Chow Woo

22. The judge thought that Chow Woo (PW2) was an important witness. He was a man in his 70s, unable to sleep and had got up to smoke a cigarette on the morning of 2 May 1995. His flat was on the 3/F of Kui Wo House. Some time after 3 a.m. he heard four or five shouts of "Save life" and heard someone moaning. He went down to the 2/F, looked down the staircase and "saw a man sexually assaulting [a woman] in a position in which certain animals have sexual intercourse. Her hands were on the stairs". He went on to say:

" She was moaning painfully, her head was bending towards the stairs but she was on her feet. He was behind her, holding her around the waist. His trousers were down, her skirt was up and her underwear was down. He was moving in the way certain animals have sex. I could see his thighs. I went to report it to the police."

23. This was a graphic account, but the possibility of exaggeration could not, however, be ruled out: Apparently, when the press and television personnel later arrived, PW2 assumed, or was put into a heroic role, guarding the landing with a stick and behaving as the protector of the victim. Moreover, as it is clear from the answers he gave in cross-examination he only observed the couple on the stairs for a few seconds, before he went to alert the police.

Expert evidence

24. It was an established fact at the trial that PW1 was, as the appellant asserted, menstruating at the time. The prosecution case was that the appellant had, in the course of the rape, achieved full penetration and had, as she said in evidence, moved his penis inside her some 20 times. The expert evidence was to the effect that, in these circumstances, it was likely that some traces of her menstrual fluid would be seen on the appellant: on his penis, in his underpants, or both. The appellant was arrested within minutes of the incident on the staircase landing and brought back to the police station. He was examined by the forensic expert Mr Wong within about six hours. There is no suggestion that he had any opportunity to wash himself, or change his underpants. And yet, not a trace of any menstrual fluid was found on the appellant.

Is the conviction unsafe or unsatisfactory?

25. The jury acquitted the appellant on count 2: the charge of attempted buggery. And yet, on PW1's story, the appellant had attempted to penetrate her anus. So, to that extent, her story must have been disbelieved.

26. Whilst it is not possible to say that the judge had misdirected the jury in relation to the facts, nevertheless, had the judge highlighted to the jury all the weaknesses inherent in the prosecution case, would the jury have nevertheless convicted the appellant of rape? In our judgment, this question cannot be answered with any confidence.

27. This, in our view, is one of those (perhaps rare) cases where on reviewing the facts as a whole, there remains a "lurking doubt" as regards the guilt or innocence of the appellant. Section 83(1)(a) of the Criminal Procedure Ordinance Cap 221 does not define the "circumstances" under which this Court should allow an appeal, beyond the statement that it must do so if "it thinks that the conviction ... is unsafe or unsatisfactory". An unsafe or unsatisfactory conviction need not proceed from a misdirection on the part of the presiding judge. This is not to say that this Court, in the exercise of its appellate function, can properly usurp the role of the jury. All it means is that, in the administration of the criminal justice system, high value is placed on human liberty and where there is a real possibility that an innocent man might have been unjustly convicted of a serious crime, this Court has a duty to intervene. For these reasons, we would allow this appeal.

Ching J.A. :

28. The applicant was acquitted of attempted buggery but was convicted of rape. He applies for leave to appeal against conviction and sentence. It is clear to me that this application for leave to appeal against conviction must be dismissed. It was a conviction returned by a jury and it is not for this Court to re-try the case or to substitute its own views, gathered from the transcript, for those clearly reached by a jury. So far as any questions of fact are concerned our function is to examine the evidence to see if there was sufficient upon which the jury could have reached its verdict and, if there was, to consider whether or not there was any misdirection upon them. There was, in fact, one non-direction and in that respect we must consider whether or not the proviso should be applied.

29. The evidence for the prosecution was simple. The complainant, a woman in her late thirties and of a height of about five feet one inch, worked in a Karaoke Bar. In the early hours of the morning of 2nd May, 1995, she was followed home after she had alighted from a mini-bus. After she had entered the lobby of the building in which she lived she was grabbed from behind and was told not to move. She called out "Save life" upon which she was hit on the back several times. She tried in vain to resist. She realised it was impossible to resist and asked the man what he wanted. He said,

"I just want to touch you."

She said to him,

"Don't hit me any more because I have got heart trouble."

He said to her,

"Then you should not shout any more or I will hit you again."

He then took her to a half landing on the stairs between the first and second floors. He told her again not to shout or she would be hit. He raised her dress over her head and removed her brassiere, underwear and panties. She protested that he had said that he only wanted to touch her. Throughout the entire incident she had her back towards him. She felt that he was taking off his own trousers. She was minded to resist again but he grabbed her again and told her to put her two hands on one of the steps of the concrete stairway. She asked him not to do it as she was having a period. She cried and begged him not to do it and she was very frightened. She felt that he tried to penetrate her per anum but he was flaccid and could not. He then demanded oral sex from her but she said that she did not know how to do it. To this he reacted,

"Are you mocking me? I will hit you."

She says that she wanted to look at his face so she offered to masturbate him but he refused. He then held her neck with his hand and hardened himself after which he inserted himself into her vagina. She says that it took about 15 to 20 minutes from the time she started to struggle, meaning no doubt the original attack upon her in the lobby. He did not ejaculate. She says that he thrust into her about 20 times. While doing so he asked her various questions asking her whether she worked in a Karaoke and whether she lived in the block. He rubbed his face against her back and she could feel his stubble.

30. Another witness to a very small part of the proceedings was a gentleman aged 70, a retired man who lived on the third floor. He was unable to sleep that night and rose from his bed to smoke a cigarette. He heard shouts of "Save life" and looked out of his window. This raises the possibility of an implication that the shouts came not from the stairwell but from elsewhere and it is to be remembered that the complainant called out those words when she was first attacked in the lobby. He says the shouts were coming from the ground floor. He then heard noises from the staircase and then began to go downstairs to take a look, taking with him a stick to help him to walk. When he reached a spot on the half flight leading to the half landing between the first and second floors he saw a man and a woman. He heard the woman moaning painfully in a loud and painful voice. He said the woman was facing up the stairs with her hands on the stairs. The man was behind her holding her waist. Both of what he described as their trousers were down. The man was moving and he described it as being like cats and dogs having sex. He seized, as he said, the earliest opportunity to go back to his home and to call the police. He admits to having viewed the activities for a very short time. His name was Chow Woo.

31. The police came very quickly. The man heard their radios and ran up the stairs. He was apprehended on the 8th floor and subsequently gave a statement under caution. He was the applicant. A woman police officer was in the party. She saw the complainant and gave evidence that her hair was dishevelled, the strap of her skirt was out of position and she was crying. She was very emotional and said she had been raped.

32. The applicant in fact gave two cautioned statements. The first was recorded after the event. When arrested for the offence of rape he said,

"Ah sir, I did it only out of momentary impulse."

When asked how he did it, he said,

"I pulled the girl from the lobby to the stairs of the 1st floor, tore open her upper garment, pulled away her bra and took off her underpants. Then I mounted on her and undid my trousers, took my dick out intending to fuck her."

Later that morning he gave the second statement. In it he was asked why he was in the building at all. He said, in answer 1,

"I was driving a vehicle to Tai Po when I saw that girl. I felt that she was very beautiful, so I wanted to touch her out of momentary impulse. I then followed her to the lobby of Kui Wo House."

He described the events in the lobby as follows, in answer 4,

"In the lobby behind the girl I used my right hand to cover her mouth. She then shouted. I then told her that I only wanted to touch her and told her not to shout. Then I put my left hand on her shoulder, pulled her to the staircase of the first floor."

Once there he described the events as follows, in answer 5,

"At that time I stood behind that girl. That girl wore a dress. I then reached out my hand under her dress and touched her breast. Then I reached out both my hands into it, took off her bra and then squeezed her breast. I then stripped off her underpants and had her underpants pulled down to the thighs. I squeezed her breast with one hand, touched her cunt with the other hand. Then inserted my right middle finger into her cunt. That girl then told me that she was menstruating and said not to interfere with her. I told her that I only touched her. With my right hand, I unfastened three buttons on my trousers and from the left side of my underpants, I took out my dick and used my dick to touch her buttocks. Following this, I masturbated with my right hand. This lasted for about one odd minutes. I heard many noises of people from downstairs. I then told her I was going to leave. I then ran upstairs along the staircase. Throughout the whole incident, I did not ejaculate."

He described, in answer 6, the locus as being "the turning corner" on the staircase landing between the ground floor and the first floor. He said, in answer 7, that throughout the whole incident he was frightened and did not feel excited. He "didn't have a hard-on" until he masturbated himself.

33. The only two other witnesses for the prosecution that need to be mentioned are the forensic pathologist, Dr. Poon Wai Ming, and the forensic scientist, Wong Dart-man. Dr. Poon examined both the complainant and the applicant. He examined the complainant at 11.25 a.m. on the morning of 2nd May, 1995, some eight hours after the events of which she made complaint. He found bruises on her left upper back of her trunk, meaning the left shoulder blade and also near the right shoulder blade consistent with her having been struck with a blunt instrument. He also found scratches on her back consistent with being scratched by a rough object. He described the injuries as being recent, by which he meant that the injuries were inflicted within two days of examination. Examination of her private parts showed no recent injury. She was menstruating. The examination of the applicant took place about an hour earlier, that is to say after about seven hours of the matters of which complaint was made. He took swabs from both parties and these were examined by Wong Dart-man. Mr. Wong's evidence was that there was a trace, a small amount, of menstrual blood on the complainant's sanitary napkin and on the swab from her vagina. There was a spot of blood on the shirt the applicant was wearing which the evidence showed was not his. There was no evidence that it was or could have been that of the complainant.

34. When the applicant came to give evidence he gave a story that was wholly different from that contained in his cautioned statements. He said that he had lost his way while driving in the vicinity. He saw the complainant, parked his car and asked for directions which she gave. He returned to his car but then thought that he had seen her at a Karaoke establishment before so he returned and engaged her in conversation. That conversation had sexual overtones and eventually she offered herself to him. She said that the market price was $1,000 but that if he was happy when it was finished he could give her more. He thought of getting a room somewhere but she said that she could do it on the stairs and he could pay her the money which it would cost for the room. Thus it came about that they were on the stairs. There he pulled her dress up over her breasts but not over her head. He fondled the upper parts of her body. She offered no resistance. He pulled down her pants and saw that she was wearing a sanitary napkin. Just before that he had had an erection but he lost it when he saw the napkin. He protested to her and she replied,

"Don't worry, the period was at the initial stage."

He replied,

"Even though it's in the initial stage, I still could not do it."

He offered to give her $300 and to patronise her another time but she insisted that since he had got to that stage he would have to pay her the full amount. She threatened to shout "Save life" unless he did pay her. She did shout, several times. On his evidence this was the first time she had shouted. He said in his evidence in chief that he then said,

"At the most, I paid you enough money. No need for you to shout out 'save life.'"

In cross-examination this became,

"Please don't shout any more, I will pay you $1,000."

There was then a conversation in which he asked for oral sex, which she refused. She suggested that he could masturbate himself while fondling her and that when he was hard he could "do it with me." He refused the latter invitation because of her period. She asked if he wanted to use her anus. He thought that if he had to pay he would fondle her some more and do so while rubbing himself with his hand. He concedes that while doing this his finger may have touched her anus and that his penis may have touched her buttock or thigh. He tired of this. When he took out his wallet he found he had only $400. She became angry and again threatened to shout out "Save life" if he did not give her enough money. There was sounds of people approaching, she called out "Save life" once and he fled because he was afraid of what she might say.

35. His evidence as to his cautioned statements was that he had been denied access to a solicitor, threatened and assaulted to the extent that he signed or wrote what he was told. At the beginning of the second statement he was cautioned and was reminded of his first statement which has been set out above. The first question he was asked was why he had turned up at the lobby of Kui Wo House, the block where the complainant lived. He gave answer 1 also set out above. In cross-examination he said that the first sentence was true, namely,

"I was driving a vehicle in Tai Po when I saw that girl."

But he says he never said it. The third sentence was also true, namely,

"I then followed her to the lobby of Kui Wo House."

But again he says he never said it. He denied saying the second sentence, namely,

"I felt she was very beautiful, so I wanted to touch her."

He denied giving answer 5 but admits that it accurately sets out what happened. He denies giving answer 7. He denies that he was frightened but admits that he did not have an erection until he masturbated himself. Neither statement contains any sort of allegation of a consensual liaison.

36. It was for the jury to decide which parts of this evidence to accept after having sat through a nine-day trial, after having seen and heard the witnesses and after having heard a summing-up of which no complaint is made except as to one matter to which I shall return. There was an abundance of evidence upon which the jury could and did convict. The primary defence was that the complainant had consented to whatever occurred and a denial of penetration in any event. There is no appeal against the ruling of the trial Judge that the applicant's two cautioned statements were admissible. If the jury accepted that reliance could be placed upon them, which they were entitled to do, the defence of consent could not stand. If the jury accepted the complainant's evidence, which they were entitled to do, then the defence of consent was equally not available. Her evidence is, in fact, supported in many material particulars by those statements. It is supported also by the witness Chow Woo. He saw the complainant and the applicant for only a brief time. The only suggestions to him were that he had been mistaken because the light was dim and that he had puffed up his role in the affair. But he heard shouts of "Save life" which he thought had come from the street. He heard the complainant moaning painfully and that has nothing to do with the dimness of the light.

37. I have had the advantage of reading the judgment, in draft, of Litton, V.P. I cannot agree with it. I need not repeat my observations on the evidence of Chow Woo. I set out briefly my own observations on the weaknesses in the complainant's evidence given in that draft judgment but I do not lose sight of the fact that these were all matters for the jury. It is true that in sentencing, the Judge used the words,

"You decided to stop your car and park it in a side road and you stalked her, in effect."

I do not understand the word "stalking" to mean cruising around an area in a car, late at night or otherwise, looking for women to rape. It means that he saw her and followed her to a place where, according to the applicant's own evidence, sexual activities would be less likely to be seen. In any event the word "stalk" was used in sentencing, not in the summing-up. The jury by its verdict clearly did not find the applicant's version possible. Secondly I do not believe that it detracts from the complainant's story that the applicant continued what he was doing after she had shouted "Save life." On his own evidence that is exactly what he did. Chow Woo heard the shouts from what he thought was the street and heard sounds from the stairwell. Thirdly, I decline to consider that in the course of a struggle it is impossible for a person grabbed from behind to be struck on the back. It is true that the expert evidence was that the marks on the complainant's back were consistent with their having been caused within two days of the examination. That is not to say that they were inconsistent with their having been sustained in the attack described. No one positively alleged that they had been sustained in the attack and if they were neutral the evidence was still properly before the jury for their consideration. Juries do not need to be spoon fed and to be told that evidence that the marks were consistent with having been made two days before does not necessarily mean that they were caused by the assault alleged. Fourthly, there was no allegation that the complainant had been propelled up the stairs. The applicant is a man of five feet seven inches in height compared with a woman of five feet one inch. We know nothing of how heavily or slightly she is built. In any event nobody alleges that she was manhandled up the stairs. Her evidence was that she was attacked in the lobby. She was grabbed, it matters not how, and struck. She had a heart condition and did not want to be struck again. She was frightened. If it was the defence case that it was impossible or improbable that she was taken to the half landing either through fear or by force or both that was a matter for the defence to explore and it did not do so. Finally, cases abound of women talking themselves out of a rape situation or, where possible, remaining sufficiently cool headed to recognise the features or a distinguishing feature of an attacker. It would be unfortunate if the fact that a woman who remains cool headed although frightened or who feels impelled through fear or otherwise to answer her attacker should find that this is held against her.

38. Nor do I agree that the jury must have disbelieved the complainant's evidence when they acquitted the applicant of attempted buggery. Juries who are faced with more than one charge arising from the same event or series of events are bound to consider them separately. All that can be drawn from their two verdicts is that they were satisfied to the requisite standard on the rape charge but not on the charge of attempted buggery. It is not for this Court to assign reasons for their having come to those conclusions.

39. The one matter which may have given pause to the jury was the absence of any evidence of menses or other bodily fluids on the applicant's penis. Nor was there any evidence that any was found on his pants. Dr. Poon was asked,

"In the case of a menstruating female, you would also expect, if there was full penetration, for instance, for there to be evidence of that on the male, provided you get to examine him early enough?"

He answered "Yes." He said,

"They may be present but not necessarily must be present."

He was then asked,

"..... Assume the following facts then, doctor : a woman who is experiencing menstrual bleeding of a normal level, yes? Penetration by the male sexual organ to a depth of 3 to 4 inches for a period of seven to eight minutes, yes?"

Absent wiping or washing he agreed that it was likely that something be found on the male organ. These matters were fully canvassed by the Judge in his summing-up. Again, this evidence was for the jury to accept or reject. It is to be noted that the complainant never said to what extent she had been penetrated or for how long she had been penetrated. She said that she felt that "it" moved about 20 times. Whatever may be meant by "menstrual bleeding of a normal level" the evidence from both the complainant and the applicant was that her menstruation was at an initial period. Mr. Wong found only a trace of menses on her pad and on the vaginal swab. The jury were directed that only "a degree of penetration" was necessary for rape. In all of the circumstances it cannot be said that the jury could not properly have come to the verdict to which they came.

40. There was, as I have said, one non-direction. The Judge drew the attention of the jury to the evidence of the woman police constable as to the recent complaint made to her by the complainant but failed to direct them that that evidence was only evidence of consistency and not evidence of the truth of the complaint. That was, indeed, an error but having regard to the mass of evidence I would apply the proviso. I have no doubt that the application must be dismissed. Mr. McGowan, who appeared before us for the applicant but not in the Court below, submitted that at the most his client should have been found guilty of attempted rape. Had I found anything in the arguments put before us I would have agreed but I find nothing in them.

Litton, V.-P.:

41. The result is that, by a majority, this appeal is allowed and the conviction quashed.