THE QUEEN v. CHEUNG YAU SO

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JUDGMENT

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Yang, J.A.:

1. The Applicant was convicted on the verdict of a jury in the High Court on 23rd October, 1985 of three offences involving indecency.

2. This is the Applicant's application for leave to appeal against conviction on Count 4 only.

3. The Applicant married the victim's sister in November 1984. The events about which I am going to relate took place in mid-March 1984 and the 12th April, 1985. At the time of these incidents the victim was about 14 years of age. Though we are concerned only with Count 4, it would be helpful to look at the victim's evidence relating to these events. It will not be necessary to go into the details of this unsavory story, suffice it for us to state briefly her evidence that was before the Court. It was the victim's evidence that in mid-March 1984, she was indecently assaulted by the Applicant. At that time he was engaged to the victim's sister and living in the victim's apartment at the Homantin Estate. One day, when only the victim and the Applicant were at home, he tied her up to the bed and indecently assaulted her. Then, according to the victim's account, he untied her and "raped" her on a table. However in her complaint to her mother and sister shortly after the event, she spoke only of an indecent assault and did not mention rape.

4. There was also evidence that when the so called 'rape' took place, she was tied to what was described as a "rickety table" where it was almost a physical impossibility for sexual intercourse to have taken place. Furthermore in cross examination, she seemed to be unable to distinguish whether it was a finger or a penis that went inside her.

5. On that evidence, the jury found that the Applicant was not guilty of the original charge of rape but guilty of the alternative offence of indecent assault.

6. For reasons which could not be fathomed, the mother and sister, though knowing full well what had happened in mid-March 1984, nevertheless suggested that she should go and stay with the Applicant and the victim's sister, now newly wed, in their apartment in the Lam Tin Estate. She went to live with them prior to 12th April 1985

7. It was the Crown's case that on that date the Applicant indecently assaulted the victim and also attempted to rape her (Counts 3 and 4 respectively). He pleaded guilty to the count of indecent assault at the outset, though it is not entirely clear as to the facts which formed the basis of this particular charge. It would appear that on that occasion she was undressed and then photographed by the Applicant in the nude much against her will. There was also evidence that he attempted to insert his penis into her though she kept moving about. During the process he also indecently assaulted her. He failed to enter her, tried again and failed again. It was her evidence that when he realized that she did not want sexual intercourse with him, he did not persist. The evidence was that there were no recent complaints about the alleged attempted rape when she spoke with her mother and sister, and some days later when she spoke with a doctor who examined her.

8. Unlike the offence of indecent assault committed in mid-March 1984, in this instance there was no corroboration of her evidence on the attempted rape.

9. Mr. Plowman, acting for the Applicant, argued come seven grounds of appeal. We do not think it necessary to deal with them in detail, suffice it to say that the main thrust of his argument concerns the following.

10. Firstly, it was complained that the trial judge in his direction to the jury made a mistake when he referred to evidence given by the accused to the effect that he desisted in his attempt to have sexual intercourse with the victim when he realized the victim was unwilling, when in fact it was the victim who gave this evidence. It is true that the judge was in error there, but we do not think that the jury would have reached a different verdict even if the correct version was given.

11. Then it was argued that the judge failed to direct the jury on the issue of consent adequately and to bring the issue to the forefront of the jury's mind. It was further said that the judge failed to distinguish Count 4 from Count 1 on this crucial issue. Having considered the summing up as a whole, and in particular the judge's direction on consent in respect of both these counts, we are unable to say that the judge erred in any way.

12. Thirdly, it was argued that according to the victim's evidence, when the Applicant realized that she was unwilling, he desisted in his attempt to penetrate her. In our judgment, there is nothing in this argument because there was ample evidence to show that she had been moving about when he tried to penetrate her and it must have been clear by that and also by her clear indication of unwillingness when he tried to photograph her and to fondle her that she was unwilling. In any event, we do not think that her opinion as to the Applicant's state of mind at that time was of any evidential value. It should not have been accepted in evidence.

13. Finally, Mr. Plowman complained of the definition given by the trial judge of an attempt. There are two passages in the summing up which relate to this issue. Reading them together we are of the view that he had defined "attempt" correctly.

14. There are other grounds of appeal which we have considered but need not go into in this judgment. We discuss his application for leave to appeal against conviction.

15. The Applicant also applies for leave to appeal against sentences on the three counts involving offences of indecency. It is true that he all along maintained that he was guilty of indecent assault under Count 1 and this was the offence of which he was convicted as an alternative verdict. He also pleaded guilty to Count 3. The maximum sentence for indecent assault is five years. The sentencing judge therefore gave the Applicant a discount of one year for each of those two counts. It is argued that this is by no means the worst type of indecent assault and a discount of one year for a plea of guilty is not sufficient. However one must look at the totality of sentence. Count 4 relates to an attempted rape for which he was given five years. The maximum sentence for attempted rape is of course life imprisonment. Whilst there is little physical violence involved in this case, the victim was tied up and we have to take into consideration that the Applicant is some eight years older than the victim, who was then only 14 years of age. Then we have to take into account the fact that she was in March 1984 about to become his sister-in-law and in April 1985 already his sister-in-law.

16. At the other end of the scale, we take into consideration the reports by the psychiatrist as well as by the clinical psychologist, and the fact that on the second occasion, temptation was put in his way by the stupidity of his wife and his mother-in-law. However taking all the circumstances into consideration, we do not feel that we could interfere with the totality of five years imposed for these offences. The application is accordingly refused.