HKSAR v. LAM KAI MAN

CACC 250/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL JURISDICTION

APPLICATION FOR LEAVE TO APPEAL AGAINST

CONVICTION AND SENTENCE

CRIMINAL APPEAL CASE NO 250 OF 2013

(ON APPEAL FROM HCCC 327 OF 2012)

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Reasons for Judgment

Hon Poon J (giving the reasons for judgment of the court):

Introduction

1.  The Applicant was charged with raping a female, X, on 27 April 2012, contrary to section 118(1) of the Crimes Ordinance. He pleaded not guilty but was convicted by the jury unanimously after trial before Deputy High Court Judge Wong and a jury. He was sentenced to 6 years imprisonment by Wong J. The Applicant applied for leave to appeal against his conviction and sentence. On 27 February 2013, this court refused his application after hearing. Here are the reasons.

Prosecution case

2.  At the material time, X was a 17-year-old Form 6 student whereas the Applicant was 26 years old, working as a salesperson in a telecommunications company.

3.  X was interested in modelling work, so on 24 April 2012she posted a message seeking part-time modelling job on a part-time models recruitment website. She uploaded her own picture and left her online messaging number (MSN) for contact. In the early hours on 27 April 2012, the Applicant contacted X through MSN. At that time he used a false name and falsely claimed to be a manager of a modelling agency. They agreed to meet at noon on that day.

4.  They first met somewhere near Tai Wo Hau MTR station at the time agreed. After that they went to a park nearby, where they had a discussion for about 30 minutes. X said the Applicant told her that she might need to “accompany bosses” if she wanted fame, which meant providing sex service in return for modelling jobs. He also said that taking body measurements was required for modelling and tried to persuade X to go back to her home for that purpose. As a result, X agreed to bring the Applicant to her residence in Tai Wo Hau.

5.  In X’s home, both of them sat on a bed. The Applicant told X that she could not be shy and that she had to take an active role and try to treat the Applicant as her boyfriend. She was told to close her eyes. When she did so, the Applicant kissed her mouth. X drew back and said it was unacceptable. The Applicant then suggested that X take off all her clothes for body measurement, to which X agreed. After taking body measurement, the Applicant requested X to lie on the bed for he had to look at her body fat distribution. After that, he said to X, “Let me try to kiss you and see if you get any feel. If you don’t, I will leave it and stop.” X agreed and closed her eyes again. The Applicant then kissed X’s mouth and used his hands to touch the breasts and lower part of X and kissed them. The Applicant then took off his pair of trousers to rub the lower parts of X with his penis. X pushed him away immediately and told him to stop. She also said she did not want to be a model. The Applicant got hold of X and said she had better continue as she had already come to such a pass. He then used his body to press on X’s body. X pushed her feet against the Applicant and shouted no. The Applicant ignored her. X struggled to leave the bed but the Applicant lurched towards her from behind, making her fall down on the floor. Giving a shout of pain, X asked to go over to the couch and sit there. The Applicant asked X to give him a few more minutes. X said she could not accept that and that she would rather not be a model if it was what she had to do in return for job opportunities. The Applicant repeatedly said that he would only “rub the outside” without any penetration. X asked a few times if it would just be “rubbing the outside”. The Applicant agreed and a pinkie promise with X was made. The Applicant then used his penis to rub the outside of X’s genitals. X kept cowering but the Applicant grabbed her thigh with one of his hands. Later, during the rubbing, the Applicant’s penis penetrated into the vagina of X completely. After a few seconds, the Applicant cried out and ejaculated at the same time. The Applicant found there was semen on the couch cover as well as on the floor. Furious and frightened, X told off the Applicant. The Applicant, however, argued that there was no penetration and asked if X had any wrong feeling. Eventually, the Applicant and X left X’s home and went away separately.

6.  After leaving home, X telephoned a friend Mr Lee (transliteration) and later her boyfriend Mr Ying (transliteration), crying and complaining about the assault. At that time X sounded frightened. In the afternoon on the same day, X returned home in the company of her boyfriend. She told her parents what happened. After deliberation, a report was made to the police in the evening.

7.  On the night in question, X’s father gave the police two pieces of tissues with semen that he picked from the rubbish bin in his residence. The police seized a couch cover from X’s residence and lifted 2 DNA samples from the floor. Analysis by the chemist revealed that the DNA extracts from the semen “sperm fraction” found on the tissue papers and the couch cover could be attributed to the Applicant whereas the semen “non-sperm fraction” found from the couch cover had a mixture of DNA that came from both the Applicant and X. Moreover, the DNA samples lifted from the floor of X’s residence also had DNA from both the Applicant and X. 

8.  On 3 May 2012, the Applicant was arrested for rape. The response under caution was, “I understand. She was engaged in compensated dating. I did pay. It was a transaction.” On the same day, the Applicant took part in 2 video interviews voluntarily. He repeated that the intercourse with X was a compensated dating transaction. Both parties agreed the price for sex without wearing a condom would be $1,000. As the Applicant partly ejaculated inside her, X was not happy and asked for an extra $500. The Applicant refused and reasoned with X. X was unhappy but did not say anything further.

9.  On 9 May 2012, X identified the Applicant in an identification parade at the police station.

Defence case

10.  The Applicant elected to give evidence. He confirmed what he told the police was all true. He repeated his explanation that he and X had compensated dating sexual transaction by mutual consent. As X was not happy that the Applicant partly ejaculated inside her, she asked for an extra $500. The Applicant refused any extra payment as the amount agreed during negotiation was just $1,000. The Applicant denied that X had put up any resistance or refused him or he had promised X that there would only be rubbing outside her vagina.

11.  The Applicant called no other witnesses.

The only issue

12.  The only issue in this case was whether X had sexual intercourse with the Applicant by consent, and whether the Applicant knew that she did not consent to the intercourse, or he was reckless as to whether she consented to it.

Conviction application

13.  In respect of the leave to appeal against conviction, the Applicant had raised 6 grounds of appeal. This court will now look at them one by one.

Ground of appeal 1

14.  X gave 2 witness statements in the police station on 28 April 2012, one at 1:20 am and the other at 20:30 on the same day. Some details in the 2 statements were not consistent. They did not tally with her testimony either. During cross-examination, Mr Kwan for the Applicant had shown X her 2 witness statements, but when he applied to put these 2 witness statements before the jury, the trial judge refused him. 

15.  Mr Yuen for the Applicant submitted that in so doing, the trial judge prevented the defence from cross-examining X smoothly and effectively on the issue of whether she consented to sexual intercourse, and made it difficult for the jury to appreciate the inconsistency between the statements and testimony of X, which  was obviously prejudicial and unfair to the Applicant. Mr Yuen cited The Queen v Yip Chi Keung [1988] 1 HKLR 229 to support his argument.

16.  Section 14 of the Evidence Ordinance stipulates that:

“A witness in any proceedings may be cross-examined as to previous statements made by him in writing or reduced into writing relative to the subject-matter of the proceedings, without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him:

Provided always that it shall be competent for the court, at any time during the trial or hearing of the proceedings, to require the production of the writing for its inspection, and the court may thereupon make such use of it for the purposes of the trial or hearing as it may think fit.”

17.  Depending on the actual circumstances and the necessity, a trial judge shall decide on how to make proper use of the statements in writing or statements reduced into writing for the purpose of a fair trial or hearing. In a jury trial, in case the writings concerned are statements previously made by a witness under cross-examination, subject to the actual circumstances and the necessity, the judge may allow the witness to read the statements with or without putting a copy of the same before the jury.

18.  When the judge considers whether a copy of a statement should be shown to the jury, the complexity of the issue concerned is always a very important factor. The Court of Appeal said in Yip Chi Keung at page 234 lines B-D that it was perfectly possible, in a simple case, to cross-examine a witness without putting his statement before the jury. Where the matter was at all complex, sharp criticism and comparisons were being made by counsel between the witness statement and testimony, the statement should be put before the witness and the jury. There were 3 purposes for doing so:

(1) It would be fairer to the witness;

(2) For a fair and effective cross-examination on previous inconsistent statement;

(3) For the jury to follow and understand the cross-examination better, and to access the evidence concerned, so as to give appropriate weight to it.

19.  The details of the events given by X in her 2 witness statements were not entirely the same. They were inconsistent with her evidence in court, too. In fact, when the trial judge gave directions to the jury, he mentioned that the number of discrepancies between her 2 statements and her testimony was more than 20. However, this did not mean a copy of X’s statements must be shown to the jury. This needed to depend on the actual circumstances and necessity.

20.  The facts of this case were indeed very simple. This was a so-called “one against one” case. The only issue was whether X consented to the sexual intercourse with the Applicant, and whether the Applicant knew that she did not consent to the intercourse or he was reckless as to whether she consented to it. The testimony of X and that of the Applicant on this issue were very clear. Briefly, X was saying that the Applicant falsely claimed himself to be the manager of a modelling agency when he asked to see her. After meeting each other, the Applicant said X had to provide sexual service in return for modelling jobs. X then brought the Applicant home. Upon his repeated requests, X allowed the Applicant to touch and kiss her intimately but never consented to sexual intercourse with him. But after all, the Applicant raped her. The Applicant’s version was entirely different. He said X consented to compensated dating and thus sexual intercourse. When the issue involved was that simple, a copy of X’s statements would not necessarily be required to be shown to the jury according to Yip Chi Keung case.

21.  When Mr Kwan applied to show the jury a full copy of X’s 2 statements, the trial judge did not find it necessary at that moment because even there were quite a number of discrepancies between her statements and evidence in court, relevant important matters could still be highlighted through Mr Kwan’s cross-examination. But then the trial judge made it clear that it depended on the development of the case as to whether it was necessary for the jury to see the copy of X’s statements at a later stage, and that he would keep an open mind. Mr Kwan concurred with the trial judge, continued with his cross-examination of X and made no application to show the copy of X’s statements to the jury again. During cross-examination, Mr Kwan brought up each and every discrepancy between X’s 2 statements and those between her evidence and the statements extensively. Mr Kwan also dealt with these discrepancies in detail in his final submissions to the jury.  

22.  Mr Yuen submitted that without showing a copy of X’s statements to the jury, Mr Kwan was unable to cross-examine X smoothly and effectively on whether she consented to the intercourse. Without a copy of X’s statements, it was very difficult for the jury to follow the cross-examination of X, they were easily confused and found themselves at a loss. This ground has no merit. Obviously, even though the jury was not shown the copy of X’s statements, Mr Kwan was still able to conduct his cross-examination on X about the discrepancies in her 2 statements as well as the discrepancies between the statements and evidence of hers adequately and effectively. With Mr Kwan’s cross-examination and final submission, coupled with the detailed summing-up and directions given by the trial judge, the jury should be able to follow and understand fully where the discrepancies in X’s evidence were.

Grounds of appeal 2 & 3

23.  Mr Yuen dealt with these 2 grounds of appeal together in his submissions.

24.  The main argument of Mr Yuen was that the trial judge did not lay explicit and sufficient emphasis on whether X consented to the intercourse and the Applicant’s knowledge as to whether X consented to the intercourse; he failed to make sufficient and comprehensive comments on the discrepancies between the statements and evidence of X; the trial judge did not stress the incredibility of X’s testimony to the jury, instead, he in bland terms downplayed the important points which were most favourable to the defence and hid them among many other factual issues; moreover , the trial judge suggested to the jury views and interpretations justifying those areas which seemed unreasonable or incredible in X’s testimony, thereby making the jury more inclined to accept X’s testimony.

25.  Looking at the whole summing-up, in our view, the trial judge’s directions to the jury were fair, comprehensive and balanced.

26.  First of all, apart from explaining clearly to the jury the legal definition of “rape”, the trial judge did thrice remind the jury that they could not convict the Applicant of rape unless they were sure of the following 4 matters: (1) the Applicant had sexual intercourse with X, (2) X did not consent to the intercourse, (3) the Applicant knew X did not consent to sexual intercourse or he was reckless as to whether she consented to it, and (4) the Applicant could not possibly believe that X consented to the intercourse.

27.  After that, the trial judge told the jury matters they had to note and consider, and how to deal with the issues of the case in this order: (1) decide first if the Applicant and X had sexual intercourse; (2) then consider if X did not consent to the intercourse; (3) consider if the Applicant really knew that X did not consent to the intercourse or he was reckless as to whether she consented to it only when they were sure of (1) and (2) above.  Insofar as (2) was concerned, the trial judge explicitly told the jury that they had to acquit if they could not feel sure that X definitely did not consent to the intercourse. The trial judge emphasised to the jury that even if they did not believe a single word of the Applicant, they had to acquit unless they were able to come to the conclusion that X definitely did not consent to the intercourse. In respect of (3), the trial judge told the jury precisely that if they thought the Applicant’s version was true or probably true, it would then be difficult to be sure that X did not consent to the intercourse; or even if X did not consent to it, it was not hard to find that the Applicant at least did not know that X did not consent to it, or at least he was probably not reckless as to whether she consented to it, or at least he probably believed X consented. In such cases they had to acquit. This court finds the directions given by the trial judge unambiguous and sufficient. They were also fair and accurate.

28.  In respect of the discrepancies between X’s statements and evidence, the trial judge provided a comprehensive, detailed and fair summary of all the versions given by X. This court does not think the trial judge ever suggested any justification or interpretation to the jury to make them accept X’s story.

29.  Mr Yuen said that X’s behaviour might make the Applicant think she consented to sexual intercourse, which was a point that the trial judge failed to stress to the jury. This court is of the view that the trial judge’s directions to the jury in this regard were adequate.

30.  As to the main defence raised by the Applicant that X made a rape complaint as she was probably not happy with his ejaculation inside her, the trial judge said to the jury that they might ask themselves whether X would make a false accusation due to the Applicant’s ejaculation inside her without wearing a condom or she was really raped. Mr Yuen submitted that this was a partial statement. This court does not agree. We find that the words of the trial judge were neutral without any prejudice.

Ground of appeal 4

31.  This ground concerned the inference direction.

32.  Mr Yuen submitted that on how to draw inference, how to consider if the Applicant was reckless as to whether X disagreed to sexual intercourse and how to consider the change of mind situation, the trial judge gave unclear, inaccurate and confusing directions to the jury.

33.  Strictly speaking, the trial judge needed not give any inference directions as X never said that she consented to sexual intercourse at a certain point of time but changed her mind later. That said, taking it as a whole, this court does not find anything wrong with the “reckless” direction given by the trial judge, nor did it confuse the jury or make the conviction unsafe.

Ground of appeal 5

34.  Mr Yuen submitted that certain comments made by the prosecutor in the final submissions were unfair to the Applicant and might easily confuse the jury, but the trial judge made no clarification and rectification when he gave directions to the jury.

35.  This court has read the transcript regarding the prosecutor’s final submissions. While some of the wordings used by the prosecutor were not that desirable, they were too trivial to cause any unfairness or confusion. More importantly, not only did Mr Kwan never ask the trial judge to make clarification or rectification to the jury, he also tried to refute the prosecutor’s argument at great length in the early part of his final submissions. No doubt the jury was able to understand the arguments of both sides without being confused by the prosecutor’s wordings.

Ground of appeal 6

36.  Mr Yuen submitted that the trial judge should not have given the jury a lies direction.

37.  What was not in dispute was, the Applicant admitted he told lies in 2 aspects: he used a false name when he contacted X and falsely claimed himself to be a manager of a modelling agency. The trial judge had discussion with both the prosecution and the defence on whether it was necessary to give a lies direction to the jury. The prosecution’s position then was neutral whereas that of the defence was negative since the prosecution was not relying on this to strengthen its case. The trial judge said he was not minded to give “a full lies direction” either. But in order to avoid any improper consideration of the Applicant’s lies by the jury, the trial judge made it clear that even if the Applicant did tell lies, this was neither probative of his guilt nor supportive of the prosecution case. The trial judge also made it expressly clear that whether the Applicant told lies or concealed the truth was a finding of facts which the jury had to make. Should the jury find the Applicant did tell lies or conceal the truth, they could take this into consideration when they dealt with the Applicant’s integrity and the respective mental states of the Applicant and X. The trial judge also specifically reminded the jury that they had to bear in mind the burden of proof was on the prosecution, they could not convict the Applicant unless the prosecution had proved all the ingredients of the offence. Even if the Applicant had told lies or concealed the truth it was not sufficient to support a conviction. 

38.  This court is of the view that the directions of the trial judge caused no prejudice to the Applicant, they were indeed ensuring fairness to the Applicant.

39.  None of the grounds of appeal against conviction can be substantiated and this court refuses the Applicant’s conviction appeal accordingly.

Sentence application

40.  The Applicant raised 2 grounds of appeal: (1) the trial judge neglected the evidence that X did consent to sexual intercourse or intimate acts, and the evidence that the Applicant was caused to believe or mistakenly believe X consented to sexual intercourse or intimate acts; (2) the trial judge neglected the evidence that X changed her mind about consent to sexual intercourse.

41.  These 2 grounds were not supported by any evidence. X testified that she consented to certain intimate acts after being persuaded by the Applicant and under the environment created by him; she never agreed to sexual intercourse and got the Applicant to make a “pinkie promise” that there would only be rubbing of genitals. As the trial judge said, the Applicant had used force before he entered her. The circumstances at the material time, the difference in their builds and X’s foolish acceptance of the Applicant’s promise all created the opportunity for the Applicant to take advantage of her. This was in no way a change of mind situation. It should not even be mentioned in the same breath with a change of mind situation. It is clear from the unanimous verdict that the jury accepted what X said. In other words, Mr Yuen’s either argument, that it was possible that X did not object to sexual intercourse or that the Applicant did genuinely believe (or misunderstand) X consented to sexual intercourse, could not be substantiated. 

42.  When sentencing, the trial judge took the background of the Applicant as well as the mitigating factors into consideration. What aggravated the case included the Applicant’s evil intent towards X (a 17-year-old F.6 student) at the outset. He created a trap and an environment which were favourable for assaulting X. After gaining X’s trust by various means, he forced himself inside her. The trial judge stressed that the Applicant’s not using a condom and ejaculation inside X had put X in worry that she might get pregnant and infection in her lower parts, for that she had to undergo medical examinations for months. The trial judge noted that the Applicant even tried to defame X at trial by saying she was engaged in compensated dating. That being so, his remorse, if any, would not be a reason for sentence reduction.

43.  This court agrees to the sentence imposed by the trial judge and his reasons.

44.  This court must say that 6 years imprisonment is in no way manifestly excessive. It is rather lenient indeed.

45.  Hence the Applicant’s appeal against sentence is also refused.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Patrick W.S. Cheung, Barrister-at-law.