HKSAR v. ALI NAZAKAT

CACC 15/2019 &
CACC 35/2019
(Heard together)

[2020] HKCA 679

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NOS 15 & 35 OF 2019

(ON APPEAL FROM HCCC 107 & 108 OF 2018)

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BETWEEN

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REASONS FOR JUDGMENT

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1.  On 26 March 2018, the applicant pleaded guilty to one count of theft[1], one count of conspiracy to obtain property by deception[2] and one count of fraud[3] in HCCC108/2018.

2.  The applicant was also charged with one count of rape[4] and two counts of indecent assault[5] contained in a separate indictment in HCCC 107/2019.  The applicant pleaded not guilty to these counts and was convicted after trial before Li J (“the judge”) by the verdict of the jury of the count of rape but acquitted of the two counts of indecent assault. 

3.  On 9 January 2019, the applicant was sentenced to 8 years and 6 months’ imprisonment in HCCC107/2018, and to a total term of 2 years’ imprisonment in HCCC108/2018 of which 1 year and 6 months was ordered to run consecutively to the sentence for the rape count.  Thus, the total sentence imposed on the applicant was 10 years’ imprisonment.    

4.  The applicant subsequently applied for leave to appeal against his conviction for rape and leave to appeal against the sentences imposed on him for all the offences.   

5.  At the hearing of the application I granted the applicant leave to appeal against conviction, but only in respect of two of the grounds of appeal, and refused the application for leave to appeal against his sentences.  I said I would hand down my reasons for doing so at a later date.  These are my reasons.

The factual background to the sexual offences (HCCC 107/2018)

6.  The rape and indecent assault counts were all alleged to have been perpetrated against Miss X (“X”) on 7 December 2016.  The prosecution case was that on 6 December 2016, at about 10 pm, X had met up with three friends at Lan Kwai Fong for drinks.  By 1:30 am on 7 December she had become quite drunk. Her friends then put her in a taxi to take her to her home, which was in Kwai Chung.  X could not recall what happened to her afterwards until at about 6 or 7 am on 7 December, she woke up in a disoriented state and found herself lying on a sofa at Flat 27E of an industrial building in Kwai Chung.  The applicant was there but did not answer her questions as to her whereabouts and how she ended up there.  The applicant then squeezed her left breast, and then her right breast, and these actions formed the subject matters of the indecent assault counts.  The applicant then took out X’s handbag from a cupboard and returned it to her. 

7.  Later the applicant took X downstairs.  Before she left in a taxi, the applicant gave her his mobile telephone number which was written on a receipt.  After X arrived home, she went to bed immediately. She woke up in the afternoon and found some abnormal secretion on her underpants. She suspected she had been raped and therefore called one of the friends with whom she had been socialising the night before and informed him of her suspicion.  X then made a report to the police.  The statement of her friend was admitted into evidence under section 65B of the Criminal Procedure Ordinance, Cap 221 and it was relied on by the prosecution as evidence of the extent of X’s inebriation when she left Lan Kwai Fong, as well as being evidence of “recent complaint” by X. 

8.  The applicant’s identity was not in dispute. It was also not in dispute that he had sexual intercourse with X in the early hours of 7 December.  Indeed, it was an admitted fact that the applicant’s sperm was found in X’s vagina and her underpants.  The issue at trial was one of consent. 

The factual background to the dishonesty offences (HCCC 108/2018)

9.  The summary of facts which the applicant admitted for the purpose of his sentencing revealed that when X woke up and found herself inside Flat 27E at around 7 am on 7 December, she noticed that her mobile phone, HK$500 cash, one octopus card and one credit card were missing from her handbag.  Later, after X was informed by the bank of three successful transactions at a jeweller with her lost credit card, she then made a report to the police.  By pleading guilty to the theft count (Count 1), the applicant admitted that on 7 December, he stole from X a mobile phone, HK$500 cash, one octopus card and one credit card. 

10.  In relation to Count 2, a count of conspiracy to obtain property by deception, the applicant admitted that at about 10 am on 7 December, he went to a jeweller in Tsuen Wan with an accomplice, and this person successfully used X’s credit card to purchase a gold necklace and two gold bracelets for a total cost of HK$21,885.  

11.  In relation to Count 3, a count of fraud, the applicant admitted that on 7 December, he used X’s credit card and tried unsuccessfully to purchase various goods from different merchants, namely cigarettes, mobile phones and perfume.  Subsequently, the applicant was arrested by the police on 9 December at Flat 27E, and X’s mobile phone was found in his possession.  

The video records of interview of the applicant

12.  The police conducted a series of four video records of interview (VRIs) with the applicant shortly after his arrest.  The 1^st and the 2^nd VRIs concerned the investigation of the sexual offences, and the 3^rd and the 4^th VRIs concerned the investigation of the dishonesty offences.  Their contents can be briefly summarised as follows. 

(i) the 1^st VRI concerned the allegation of rape.  In this VRI the applicant denied having sexual intercourse with X inside Flat 27E and mentioned nothing about their sexual intercourse which, in his later testimony, he would say had taken place elsewhere.  However, he described X as being at that time in a “fully over drunk”[6] state and as “not aware of herself, she was not conscious”[7];

(ii) the 2^nd VRI, concerned the allegations of the two indecent assaults.  In this VRI, the applicant described how he had put a quilt on X and in doing so had accidentally touched her breast but only once.  Again, he described X as being “in a state of unconsciousness, absolutely she had not sense”[8] when he brought her to his flat; 

(iii) the 3^rd VRI, concerned the allegation of stealing X’s mobile phone and cards.  In this VRI, the applicant denied the allegation and said the mobile phone was a gift from X. He again described X as being not “in her sense”[9], “she was not even in that much senses to realise where she is where, she was not even aware of herself”[10] and “she was so drunk”[11];

(iv) the 4^th VRI, concerned the allegation of attempting to make purchases with X’s credit card.  In this VRI, he admitted trying to use the credit card to purchase a perfume because, he claimed, X had allowed him to use her credit card and told him to buy whatever he wanted.  He also identified himself and X from the CCTV footage of the factory building.  He described X as not having “sense of herself”[12]; “just like lifeless”[13] and “vomiting”[14] when he met her on the footbridge.  

13.  Although the applicant did not make any admission to rape or indecent assault in these VRIs, the prosecution sought to produce them for the limited purpose of showing the applicant’s demeanour and reaction when first confronted with X’s allegations[15].  The voluntariness of all of the VRIs, was contested by the defence on the ground of oppression and inducement by the police and these allegations were the grounds of an unsuccessful voire dire.

14.  The defence objected to the evidence concerning the dishonesty counts being adduced before the jury on the ground that it was prejudicial to the defence[16]. In support of this application the defence characterised the dishonesty offences as uncharged acts in relation to the sexual offence counts and referred the judge to case authorities relevant to the admissibility of uncharged acts evidence.

15.  The judge declined to exclude the 3^rd and the 4^th VRIs from the jury with the following observation:

“…Although strictly speaking, the third and the fourth VRIs did not concern the charges in the present trial, they were however relevant being the conduct of the defendant after the alleged rape and indecent assault charges. They were not uncharged incidents in its typical sense as set out in the authorities. They were relevant to show the whole circumstances of the case. I see no ground to exclude the third and the fourth VRIs.

That is my ruling.”[17]

16.  After receiving this ruling, the prosecutor formally applied to the judge to be allowed to disclose to the jury in his opening address the applicant’s guilty pleas to the dishonesty offences.  The prosecuting counsel based his application on the need for the jury to understand the whole picture and so that the prosecution could show that the applicant had told lies in the VRIs.  The defence counsel objected to their disclosure on the ground that the prejudicial effect of this evidence outweighed its probative value, but accepted that the defence were bound by the judge’s earlier ruling.[18]

17.  The judge referred to what he had said in his earlier ruling that it would be fair to all parties for the guilty pleas to be disclosed to the jury because the jury was “entitled to know the whole course of the matter”[19].

18.  There were five sets of CCTV footage seized from the common area and the lift of the factory building which captured the movement of X and the applicant at the relevant time and their admissibility was also contested on the ground of prejudice.  The defence argued against their admissibility at trial but in the appeal this ceased to be an issue.

The defence case

19.  The applicant elected to give evidence but called no witness.  He testified that he lived in Flat 27E with his sister, her husband and her son at the material time.  He claimed he had met X on two occasions in bars at Lan Kwai Fong prior to 7 December.      

20.  On 7 December, shortly before 1 am, he walked home from Kwai Hing.  He saw X at the far end of a footbridge, leaning against the railing and making sounds of vomiting.  He thought she was drunk.  When he walked past her, X asked for his help.  She said to him she was drunk and could not go home.  Sooner or later she recognised him and suggested that he could let her stay at Flat 27E.  He agreed so he took her back to the factory building. 

21.  After they entered the factory building, the applicant first went to the toilet on the ground floor next to the loading bay.  X then followed him to the toilet and thanked him for his help.  They indicated mutual affection for each other and hugged.  X started kissing him and lowered her underpants.  They had sexual intercourse in the toilet and X even performed oral sex on him.  The applicant said X was sober and was the one who initiated it.  He genuinely believed X consented to the sexual intercourse. He said he did not know what he was saying when he described X as unconscious, no sense and drunk during his VRIs.    

22.  The applicant explained that he did not mention the sexual intercourse in the toilet in his VRIs because he was only asked about what took place in Flat 27E but not elsewhere, and at that time he was disturbed by the fact that his sister’s son had also been arrested. 

23.  The applicant said that after the sexual intercourse in the toilet, he and X then went up to Flat 27E.  It was the applicant’s sister who put X on the sofa to sleep and put a quilt on her.  He said before X slept, she gave him a credit card to buy whatever he wanted as a gift.  He explained that he pleaded guilty to the dishonesty offences upon legal advice and after learning that it was a mistake to use someone else’s property.  However, he maintained that his guilty pleas were not inconsistent with his case that he took those items with X’s consent.  He denied having touched her breasts twice as she claimed.   

24.  When he took X downstairs, X asked him for his phone number and he gave her a piece of paper with his number written on it. 

25.  In respect of his VRIs, the applicant said the police officers induced him to answer questions posed by them by promising to release him and his sister’s son should he do so.  He was not allowed to make any phone call nor was he allowed to contact a lawyer.   

The judge’s Reasons for Sentence

26.  Having set out the facts in HCCC 107/2018 and HCCC 108/2018, the applicant’s background, and both the physical and psychological impact on X, the judge said that the penalty for the offence of rape must reflect the courts’ intolerance of it and must deter others from similar conduct.  He identified the following aggravating features as warranting an enhancement of the applicant’s sentence:

(i) the applicant’s status as an illegal immigrant;

(ii) the applicant was a total stranger to X who took advantage of her drunkenness;

(iii) the applicant did not use a condom and ejaculated inside X;

(iv) the offence was premeditated as the applicant carried X all the way back to Flat 27E before raping her; and

(v) X suffered both physical and psychological trauma as a result of what she endured. 

27.  The judge also considered the cases of HKSAR v Tse Hoi Pan, Dominic[20], HKSAR v Ho Man Ho[21] and Secretary for Justice v Lau Yun Leung[22] which had been referred to him by the applicant’s counsel.   

28.  For the offence of rape the judge adopted a starting point of 7 years, which he enhanced by 1 year and 6 months for the aggravating factors.  For the rape offence he sentenced the applicant to a total sentence of 8 years and 6 months’ imprisonment. 

29.  In regard to the dishonesty offences, the judge adopted for Count 1 a starting point of 2 years’ imprisonment which he reduced to 16 months’ imprisonment for the guilty plea; for Count 2, a starting point of 3 years, which he reduced to 2 years for the guilty plea; and for Count 3, a starting point of 3 years which he reduced to 2 years for the guilty plea.  The sentences for all the dishonesty offences were ordered to run concurrently with each other and so the total sentence for the dishonesty offences was 2 years’ imprisonment. 

30.  The judge then turned his mind to whether he should order any part of the sentence for the dishonesty offences to be served consecutively to the sentence for the rape offence.  He said that the three dishonesty offences were different offences even though they clearly followed the rape offence.  But, he noted that he had to have regard to totality and so, after doing so, he ordered that only 1 year and 6 months of the sentences for the dishonesty offences should run consecutively to the sentence for the rape offence.  The total sentence imposed on the applicant was, therefore, one of 10 years’ imprisonment. 

The Perfected Grounds of Appeal against conviction for the rape offence in CACC 15/2019

31.  Mr John Marray, counsel for the applicant in the present application, advanced four grounds of appeal against conviction for the rape offence.

32.  Essentially the first two grounds flow from the same complaint, namely, that the applicant’s dishonesty offences should not have been disclosed to the jury in the rape trial.  The first ground of appeal concerns the evidence of the dishonesty offences generally, while the second ground of appeal concerns, specifically, the 3^rd and the 4^th VRIs.    

33.  In respect of the first ground of appeal, Mr Marray submitted that the judge erred in ruling the facts surrounding the dishonesty offences were “relevant to show the whole circumstances of the case” and hence were admissible.  Mr Marray argued that the facts of the dishonesty offences were irrelevant to the issue of X’s consent and that even if they were relevant their probative value was far outweighed by their prejudicial effect. 

34.  Mr Marray relied on the judgment of the Court of Final Appeal in HKSAR v Zabed Ali[23] to argue that the jury would be tempted to fall into the impermissible line of reasoning that someone who would readily steal from a drunken person would be more likely to take advantage of her drunkenness to rape her.  Mr Marray says the facts concerning the dishonesty offences were no more than propensity evidence which ought to have been excluded. 

35.  In respect of the second ground of appeal, Mr Marray similarly submitted that the 3^rd and the 4^th VRIs ought to have been excluded, although he accepted that those parts of the 4^th VRI concerning the CCTV footage seized from the factory building were admissible. 

36.  Mr Marray argued that the contents of the 3^rd and the 4^th VRIs were clearly irrelevant to the issue of consent and that even if they were relevant, they should be excluded under the Zabed Ali test.  Mr Marray submitted that the cumulative effect of showing the jury the 3^rd and the 4^th VRIs and disclosing to them the applicant’s guilty pleas to the dishonesty offences would have led the jury to conclude that the applicant not only lied about the dishonesty offences but also the sexual offences too, and to allow the applicant’s guilt of the dishonesty offences to affect their conclusion as to his guilt of the sexual offences. 

37.  In respect of this third ground of appeal, the applicant complained that the facts of his illegal entry into Hong Kong in the 1^st and the 4^th VRIs, should not have been admitted into evidence at all.  Although the judge in the summing-up directed the jury that they must not draw an adverse inference on the basis of his illegal entry in deciding guilt in relation to the sexual offences, Mr Marray submitted that no direction from the judge could cure its prejudicial effect and these facts were irrelevant to the issue of X’s consent and should have been excluded at the outset.      

38.  In respect of the fourth ground of appeal, Mr Marray submitted that the judge’s direction on drunkenness and consent was insufficient.  Firstly, the judge only told the jury that “a drunken person could not be said to have given a genuine consent.  This is a common sense.” However, upon hearing the concern raised by the defence counsel, the judge reminded the jury that the issue before them was “whether X was in such a degree of drunkenness that she could not give a genuine consent”.  Mr Marray submitted that this direction was insufficient and over simplistic in that it did not take into account, firstly, X’s evidence that she did not have recollection of what took place after she left Lan Kwai Fong and the next thing she could remember was waking up from the sofa of Flat 27E, and secondly, the applicant’s testimony that, whilst X was quite drunk, she was the one who initiated the sexual intercourse in the toilet.  It was submitted that the judge should have directed the jury on this issue in accordance with R v Bree[24] and given a more focused and detailed guidance to the jury on X’s capacity to consent despite her drunkenness.    

The Perfected Grounds of Appeal against sentence for the rape offence in CACC 15/2019

39.  In respect of the rape offence Mr Marray submitted that the starting point of 7 years is manifestly excessive and that the enhancement of 1 year and 6 months for the aggravating features identified by the judge is also manifestly excessive.  Mr Marray submitted that the judge erred in taking into account the applicant’s illegal remaining status because the applicant would be punished separately for that offence, which normally warrants a 15-month imprisonment upon guilty plea.  Furthermore, Mr Marray asserted, the judge erred in coming to the conclusion that X suffered from serious physical and psychological trauma but her psychological report clearly suggested otherwise.  Also, the premeditation, though admittedly present, was very limited in that the applicant only met X by chance in the street and took her back to his home which was nearby.  Mr Marray maintained that the real aggravating feature present is the fact that a condom was not used, but this aggravating factor warranted a much lower enhancement. 

The Perfected Grounds of Appeal against sentences for the dishonesty offences in CACC 35/2019

40.  Mr Marray took no issue with the starting points for the individual dishonesty offences and his only complaint was that it is manifestly excessive for the judge to order 1 year and 6 months’ imprisonment of the dishonesty offences to run consecutively to the rape sentence.  Mr Marray argued that, a total sentence of 10 years’ imprisonment was manifestly excessive in light of the overall criminality. 

Discussion

41.  In my view the dishonesty offences are clearly part and parcel of the rape offence.  They all occurred at around the same time at the same location and involved the same victim.  In reality there was only one incident in the course of which different criminal offences were committed.  The relevance and admissibility of the various offences as one course of criminal conduct does not alter simply because the offender chooses to plead guilty to some of the offences but go to trial in respect of others. It would present the jury with an inaccurate and misleading picture of what transpired on the night in question if evidence of the dishonesty offences was not placed before them.  Even the applicant’s case made the whole of what transpired relevant, for his case was that X gave him her property and permission to use her credit card out of gratitude for the assistance he had rendered her.  I do not regard the first ground of appeal as reasonably arguable.

42.  The second and third grounds of appeal focus on the admissibility of the 3^rd and the 4^th VRIs, especially their admissibility in unredacted form.  In my view it is reasonably arguable that some of the material in these VRI’s, dealing with the spending spree of the applicant and all that he did in order to illegally enter Hong Kong, should have been redacted as being more prejudicial than probative.  I note, as Mr Derek Wong for the respondent emphasised, the judge gave directions to the jury that, arguably, went some way to preventing or curing the potential prejudice posed by these questions and answers.  However, whether that was sufficient is something the Court of Appeal should decide.

43.  In respect of the fourth ground of appeal I accept that the directions on drunkenness that the judge first gave were, arguably, not as complete as they could have been.  However, at the request of the applicant’s trial counsel the judge gave further directions to the jury and in my view it is not reasonably arguable that the supplemental directions were erroneous or insufficient in some way.  Nor, in my view, is it reasonably arguable that in giving supplemental directions, as a correction to earlier directions, the judge might have confused the jury.  I do not find the fourth ground of appeal to be reasonably arguable.

44.  In respect of the appeal against sentence I agree with the judge that this was a bad case of rape calling for a deterrent sentence.  The applicant took advantage of a young lady whom he knew would not be able to resist him.  The fact that X was unaware of what was happening to her does not deprive the act of rape of its violent character. 

45.  In respect of the applicant’s immigration status I reject the argument of Mr Marray that the applicant is at risk of double punishment.  Should the applicant ultimately be sentenced for illegally entering Hong Kong it will be a punishment for that conduct of entering Hong Kong.  The enhancement for his immigration status is an enhancement of punishment for criminal conduct in which he engaged after he has entered Hong Kong and during the period that he was allowed his liberty pending the processing of his torture claim.  The enhancement is for abusing this liberty that was extended to him and by his abuse harming Hong Kong.

46.  I do not see anything in the judge’s sentencing comments on the physical and psychological trauma suffered by X that would suggest he misapprehended or exaggerated the suffering X has had to endure.

47.  I am of the view that it is not reasonably arguable that the judge erred in characterising as an aggravating feature those matters that he identified or in the amount by which he enhanced his starting point for those features.

48.  I gave anxious consideration to the submission that the total sentence of 10 years’ imprisonment was manifestly excessive.  As a matter of sentencing principle the judge was entitled to impose consecutive sentences.  The only issue was totality.  I accept that the final sentence is a severe one but a severe sentence is precisely what was called for in this case.  I do not regard any of the grounds of appeal against the sentences or of the total sentence as being reasonably arguable.

Disposition

49.  For these reasons I granted the applicant leave to appeal against conviction for the rape offence but only in respect of the second and the third grounds of appeal and refused the application for leave to appeal against sentences for all the offences.