HKSAR v. MAN YIU FAI

CACC 223/2017

[2019] HKCA 340

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 223 OF 2017

(ON APPEAL FROM HCCC NO 73/2016)

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J U D G M E N T

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Hon McWalters JA (giving the Judgment of the court):

1.  The applicant faced an indictment containing two sets of linked counts in respect of two separate victims. The first set of linked counts were in respect of an incident occurring on 12 December 2014 and involving the victim Miss X. The counts were administering drugs to obtain or facilitate an unlawful sexual act, contrary to section 121 of the Crimes Ordinance, Cap 200 and indecent assault, contrary to section 122 of the same Ordinance (Counts 1 and 2). The second set of linked counts were in respect of an incident occurring on 31 May 2015 and involving the victim Miss Y. This second set of linked counts were a further count of administering drugs to obtain or facilitate an unlawful sexual act, together with one count of rape, contrary to section 118(1) of the same Ordinance (Counts 3 and 4).

2.  The applicant pleaded not guilty to these offences on 8 May 2017 and the trial then proceeded before Deputy High Court Judge Stuart-Moore (“the judge”) and a jury.  The evidence concluded on 18 May with closing speeches taking place on 19 May.  The same day the judge commenced his summing-up which he concluded on 22 May, after which the jury retired to consider their verdicts.

3.  Shortly after they retired to commence their deliberations the jury raised a question for the judge concerning the meaning of indecent assault.  This question led to the prosecutor reviewing the prosecution case in respect of Count 1.  The prosecution case for this count was based on an allegation that the “unlawful sexual act” which the drug was administered to facilitate, was an indecent assault.  The prosecutor raised with the judge the question of whether the indecent assault that the prosecution relied upon as “an unlawful sexual act” was within the definition of that term as set out in section 117(1A) of the Crimes Ordinance, Cap 200.  This definition required that the unlawful sexual act be unlawful sexual intercourse, buggery or “an act of gross indecency.”  It was conceded by the prosecution that it could not now change its stance and allege that the applicant intended to rape Miss X, if for no other reason than that the evidence simply did not support such an allegation.  The prosecutor then went on to concede that the “unlawful sexual act” element of the offence could not be made out.  Inherent in this latter concession was an acceptance by the prosecution that the indecent assault that was alleged by Miss X could not constitute “an act of gross indecency”.

4.  The judge accepted the legitimacy of this concession by the prosecutor and directed the jury to acquit the applicant of Count 1 and this they thereupon did.  The jury continued with their deliberations on the remaining counts, at the end of which they acquitted the applicant of Count 2 and convicted him of Counts 3 and 4.   

5.  On 5 July 2017, the applicant was sentenced on Counts 3 and 4 to an overall term of 12 years’ imprisonment. 

6.  The applicant subsequently filed a Notice of Application for Leave to Appeal (Form XI) against conviction and sentence on 24 July 2017.  At the hearing of the application we reserved our judgment which we said we would hand down at a later date.  This is our judgment.

The trial

The voir dire

7.  The applicant challenged the admissibility of the record contained in the police notebook of his responses to being cautioned and his two video records of interview.  The grounds of objection to the admissibility of the notebook records were, in essence, that from the time of his arrest he had been beaten and threatened by the police and as a result of their violent and oppressive conduct he had made the admissions in the two responses to being cautioned.  The admissions contained in the video records of interview were fabricated and were made by the applicant as a result of coaching by the police at the police station and because he had been beaten and threatened by them.

8.  The applicant elected to testify on the voir dire.  He said that on 1 June 2015, police officers arrived at his residence armed with a search warrant.  He claimed that he was pushed into the bedroom and a sergeant slapped him.  The sergeant accused the applicant of having raped someone and subsequently slapped him again on his face, punched his chest and kicked his genitals a number of times.  The applicant said that he fell against a wardrobe and as he did so, the glass door of the wardrobe shattered and cut his wrist.  He said he was threatened if he did not cooperate and so, out of fear, he signed against an admission that he had sexual intercourse with Miss Y.  The police threat also deterred him from engaging a lawyer at this stage. 

9.  The applicant also alleged that he was coached to admit that two bottles found in his clinic contained “date rape liquid”.  He said the police officer thought these two bottles must have contained “date rape liquid” and so he demanded that the applicant admit that they did.  In the second video recorded interview, the applicant was told to admit that he had used the two bottles of liquid and he did so out of fear that the police officers would hit him, or disturb his family and friends, which they had threatened to do if he refused to cooperate.  In fact, the applicant said these two bottles bore labels containing the words “Love Aphrodisiac”, and he was not the person who suggested those bottles were “date rape liquid”; rather it was the police officer, who did not understand the meaning of the word “aphrodisiac”.

10.  The applicant also testified that he was coached to supply some names of other “victims”.  He said that as he was in fear of the police officers he felt forced to do as he was told.  Consequently, he just blurted out two random names to satisfy the officer’s request. 

11.  The applicant was subsequently taken to hospital where he was found to have tenderness in his chest wall and right thigh, and a laceration on his right wrist.  These injuries were documented in medical records.

12.  The police officers who were involved in the case all denied the applicant’s allegations. 

13.  At the end of the voir dire, the judge ruled that the applicant’s responses to caution and his two video records of interview should be admitted into evidence.  In his ruling the judge said:

“Mr Ng has said all that can be said really in this context, but I’m afraid that I think this material should be heard by the jury and I’m not persuaded that the evidence is inadmissible. It’s the other way around of course. The prosecution has satisfied me it is and therefore we’ll admit the evidence. Thank you.”[1]

The prosecution case

14.  In the Admitted Facts it was admitted that the applicant was a health consultant operating a clinic in Mong Kok, Kowloon. 

15.  The complainant, Miss Y, testified she was a tourist from Germany and on 31 May 2015 she had visited the applicant’s clinic for treatment of her back pain and a sleeping problem after having previously been introduced to him by a friend.  

16.  Miss Y said when she arrived at the clinic, the applicant greeted her and then asked her to drink from a cup containing a liquid that had an alcoholic smell which she did not like.  She was told to drink the liquid slowly but she drank only half of it.  Very soon after drinking this liquid Miss Y began to feel dizzy and sleepy.

17.  Miss Y testified that she and the applicant had agreed that she would give him a Japanese energy massage, and, in return, the applicant would help with her back pain as a result of one of her legs being shorter than the other.  For 10 or 15 minutes Miss Y gave the applicant a Reiki Massage, but found it very difficult to focus.  She had to sit down as she found herself falling asleep.  She then lay on the massage bed and the applicant started to massage her.  He asked her to remove her upper clothes and then he took off her bra buckle.  Miss Y said that after this she passed out.

18.  When she regained consciousness, Miss Y found herself fully naked and the applicant was wearing only his underpants.  The lights were turned off and the applicant started to touch her body and kiss her breasts.  He tried to push her legs apart.  Miss Y testified that she felt that her muscles were stiff and heavy when she tried to move.  She did not want to be touched and said “No” to the applicant a few times but the applicant continued and raped her. Afterwards he said he loved Miss Y and asked her if she loved him.  She said she did not and that she was going home.  She said she found it difficult to walk.

19.  Unbeknown to Miss Y, the incident was filmed by the applicant via a video recordable watch and the video record was admitted into evidence at trial.  What this video recording revealed was described by the judge in his Reasons for Sentence as follows:

“From this film, it was perfectly apparent that Miss Y was powerless to do anything.”[2]

And also:

“This perverted act contributed to his eventual undoing as nothing could more clearly demonstrate that the victim was incapable of defending herself from the defendant’s attack.”[3]

20.  Subsequently, the applicant escorted Miss Y out of the building and to the bus stop where, before leaving her, the applicant kissed her on her cheek. 

21.  CCTV in the lift of the building was also admitted into evidence.  It recorded Miss Y as arriving at the applicant’s office at 19:15 hours and as leaving his office around 23:12 hours on 31 May.  It was suggested by the Defence that this CCTV footage showed Miss Y to be in a good mood whilst she was in the lift.  Miss Y explained her conduct in allowing herself to be escorted by the applicant to the bus stop and not resisting his goodbye kiss as a strategy to allow her to leave as soon as possible and to not provoke the applicant.  It was an admitted fact that Miss Y arrived at the home of her boyfriend at midnight on 1 June. 

22.  Mr Merrick, who was Miss Y’s boyfriend, gave evidence and testified that when Miss Y came home, she seemed drunk and dizzy. She told Mr Merrick that the “Chinese doctor” gave her a drink and took off her clothes.  Mr Merrick said that Miss Y’s condition so concerned him that he called an ambulance and had Miss Y taken to Kwong Wah Hospital at 00:33 hours on 1 June and it was from there that a report was made to the police.

23.  It was an admitted fact that when Miss Y was examined at 01:31 hours on 1 June, she was conscious and alert but she had weakness of all her limbs, an abnormal heart beat and an ECG test showed abnormal rhythm. Blood and urine samples were collected for toxicological examination.

24.  A toxicology test established that Miss Y had ingested flunitrazepam and quetiapine.  The metal cup from which Miss Y drank in the clinic, and which bore traces of her DNA, was also found to contain traces of these two drugs.  It was an admitted fact that flunitrazepam when lawfully sold is marketed under the name of Rohypnol.

25.  Expert evidence was given by a forensic chemist, Dr Dao, in relation to the toxicology results.  He testified that flunitrazepam was a kind of hypnotic drug, and quetiapine was an anti-psychotic drug.  Importantly, he also testified that flunitrazepam is a synthetic drug that is chemically created and, to his knowledge, is not found naturally occurring in herbs or plants.

26.  A Professor of Psychiatry, Dr Tang, gave expert evidence on the effects of flunitrazepam and quetiapine.  He said that people who take these drugs would feel sleepy.  Flunitrazepam is a so-called “sleep-inducing drug” and whilst quetiapine was not for sleep, it has a side effect of sedation or somnolence.  Dr Tang said a person who took both drugs would feel more sleepy than if the person had taken just one.  He also added that a person who takes flunitrazepam would have their mental condition affected, and that includes sedation, reduced anxiety and memory loss.  Motor response would also be affected in terms of muscle relaxation.

27.  The judge asked Dr Tang the reason why flunitrazepam had come to be known as a “date rape drug” but Dr Tang was not sure of the reason for this.  He said flunitrazepam belongs to a class of drugs called benzodiazepines and other drugs belonging to this class also have similar effects in terms of causing one to feel sleepy and experience memory loss.

28.  Finally, there were the applicant’s responses to caution and his records of interview.  In his first response to caution that took place at the time of his arrest at 11:40 hours on 1 June, the applicant admitted to having had sexual intercourse with Miss Y but said he did not ejaculate. 

29.  The officer’s notebook entry also referred to the incident that occurred during the search of the applicant’s home between 12:10 and 12:40 hours, when the applicant suffered a laceration to his wrist.  Although it did not contain any verbal statement by the applicant, he did sign against the record as confirmation of its accuracy.  The record in the officer’s notebook is as follows:

“1225 (‘)While (I) was escorting (you) during the house search, you male/MAN Yiu-fai was handcuffed in the front. When (we) searched the room of your wife, female/CHUNG Oi-chun, as the room was messy, you lost balance and fell forward, causing damage to the (deletion) wardrobe inside the room. Your wrist was injured and bled. All the above was caused by the knock against the wardrobe when you fell down. (I) now ask you. (You said) there was no need to see a doctor nor pursue this accident. Sign for confirmation.(’) (Sd) (illegible)”[4]

30.  At the end of the search the applicant was requested to sign the police officer’s notebook record of it to confirm that “You have no complaint against this search.”  The applicant signed accordingly.  

31.  After returning from a search of the applicant’s home the police conducted the first record of interview, which took place on 1 June between 15:54 and 17:27 hours.  The interview commenced with the police officer putting to the applicant his first response to caution and asking if he agreed to it.  The applicant replied:

“We had consensual sex.”[5]

32.  In this interview, the applicant admitted that he had given Miss Y a drink that contained some red wine and some hypnotic herbs which would relieve stress, help her to relax and improve her sleep.  He claimed Miss Y knew he had put the red wine and hypnotic herbs into the drink.  He went on to explain how he asked her to remove her clothes so he could treat her and how circumstances developed that led to them having consensual sexual intercourse.  He also explained how he covertly made a video recording of what took place.  That interview concluded with the police officers telling the applicant that later they would be taking the applicant back to his clinic to conduct a search and asking him for his assistance in pointing out those items at his clinic which related to his case.

33.  They arrived at the applicant’s clinic, in order to search it, at 18:05 hours.  At 18:36 hours, whilst at his clinic, the applicant told the police officers that he wanted to say something.  The officer then cautioned the applicant again and the applicant’s second response to caution was recorded as follows:

“‘Ah sir, in fact last night I did put the Gaan Sui into the drink of the girl. The bottle is in the box.’ At that time you simultaneously pointed to a paper box on the left hand side of the computer desk inside the clinic which was related to the case.

Later, Detective Police Constable 58504 opened the box in front of you and found two golden small bottles with grey caps.”[6]

34.  The search of the clinic was completed at 19:30 hours and again the applicant signed against the police officer’s notebook entry of it to confirm that he had no complaint in respect of it. 

35.  Reading the two responses to caution the applicant declared them to be correct, true and made of his own free will.

36.  The applicant’s second video interview did not take place until the following day, 2 June, between 14:29 and 17:21 hours.  In that interview the applicant admitted that he had put a “date rape liquid” into Miss Y’s drink. 

37.  As complaint is made about the use of the words “date rape drug” by the judge it is important to appreciate how commonly they, or words to the same effect, were used in the course of the trial.  We have seen how, in his second response to caution, the applicant himself used the Chinese words that when translated into English mean “rape water”.  In this second video interview, the phrase “date rape liquid” was frequently used by the interviewing officer as is apparent from the following excerpt:

“21.	…
		Later, according to the investigation of the Police, at 6.36 p.m. yesterday, that is 1 June 2015, when we the Police searched your unit, i.e. location in question, you pointed out to us that there was a bottle of date rape liquid which was in connection with the case. At that time, I declared arrest on you. Under caution, you said to me that (you) understood. I now make enquiry of you into this case. I now caution you. You are not obliged to say anything unless you wish to do so, but what you say will be recorded on video and given in evidence. Do you understand?
22.	C. :	Understand.
23.	A.	Look, at 6.36 p.m. yesterday, that is 1 June 2015, when we were found it upon search, you said to me, (‘)Ah sir, I wish to say something.(’) Then I cautioned you, after I cautioned you, I suspected that you were going to provide some information in connection with this case, well, I cautioned you, under caution, you said to me, (‘)Ah sir, in fact I did put date rape liquid into the girl’s drink last night. The bottle is in the box.(’) At that same time, (you) pointed to a box. After we searched it, two bottles of suspected date rape liquid were found. I want to ask, who was the girl (you) mentioned under caution?
24.	C :	Er the one you mentioned just now?
25.	A :	The victim of the case?
26.	C :	Yes.
27.	A :	Well, from now on, we will refer the victim of the case as Miss X. Do you understand?
28.	C :	Yes.
29.	A :	All right. I want to ask how you er, can you tell us more about how you, er according to you, you did put date rape liquid into the girl’s drink last night. Can you tell us more about it?
30.	C :	Er because the bottle of stuff was in fact for, I mean, painkilling and, when I bought it, it was said to be for painkilling and er for resolving sleep problem as well as for sexual arousal. So I, I mean, did that for her, which caused pain, and so (I) added it to ease her pain.
31.	A :	Just now you said (you) did that for her. What was that?
32.	C :	Er when treating the leg length discrepancy, when treating the spine (problem) and the leg length discrepancy.
33.	A :	I want to ask at what stage you put the date rape liquid into the drink that you said.
34.	C :	Er the bottle of stuff for upper pain (wrong character)(painkilling) and sexual arousal, er in the beginning, er in the beginning, no, in the beginning, (I) put it together with the fruit and the red wine.
35.	A :	Well according to the video recorded interview we had with you, the Police, yesterday, you mentioned that er (you) made a drink by mixing the fruit paste, the red wine and the herbal liquid and putting it into a purple glass for Miss X to drink. Is this the one you were talking about?
36.	C :	Yes.
37.	A :	I want to ask how much you put in.
38.	C :	Put in three to four drops.
39.	A :	Three to four drops?
40.	C :	Yes.
41.	B :	I want to ask if Ah Miss X knew you put it in.
42.	C :	No, (she) did not.”[7]

(Emphasis added.)

The phrase is, thereafter, repeatedly used by the police officer in the course of the interview.

38.  The applicant also identified two bottles in his clinic that he said contained “date rape liquid” and admitted administering this so called “date rape liquid” to two other girls.  However, it turned out that the two bottles contained no flunitrazepam or any substance that would stupefy or disable anyone, and the two girls mentioned by the applicant said nothing untoward had ever happened to them.  The prosecution suggested that the applicant had deliberately misled the police by making these admissions.

The defence case

39.  The applicant elected to give evidence.  The applicant testified that he had not knowingly administered flunitrazepam to Miss Y.  However, he said that he and Miss Y had knowingly taken a substance known as Ayahuasca which he had bought for himself to use.  It is a psychotic substance which South American tribes drink as a part of a spiritual ritual.  The applicant said that after consuming Ayahuasca a person would be in a state of semi-consciousness and would experience feelings of being between the real world and the virtual world.  Ayahuasca, he said, had been used to treat emotional or psychological illness.  People who did not suffer from emotional or psychiatric problems would experience improvement in their emotional or character development.  The applicant contended that, like himself, Miss Y was interested in trying Ayahuasca. 

40.  He said that the main purpose in Miss Y coming to his clinic was to help him open his third eye and get his soul out of his body.  This involved chanting and Miss Y touching his body.  He then provided her with a massage in return for her having helped him in opening his third eye.  After the massage they sat on the massage bed chatting and then they became amorous, leading to consensual sexual intercourse taking place.    

41.  After the sexual intercourse, the two chatted for a while and then they both dressed.  When they left the clinic, they were chatting, laughing and walking hand in hand.  The applicant said Miss Y appeared to be very happy.  Whilst holding hands and walking to the bus stop, the applicant said they walked past two police officers but nothing unusual happened.  When the bus came, they gave each other a goodbye kiss.

42.  The applicant said that before this incident he did not know what flunitrazepam was but that since his arrest he had given thought to how it might have come to be present in the drink he gave Miss Y.  The only explanation he could think of is that the Ayahuasca that he bought must have contained flunitrazepam in it. 

43.  He maintained that Miss Y voluntarily consumed the Ayahuasca, that the sexual intercourse was consensual and that the video he took of their activities was with her knowledge.

The mitigation

44.  Counsel for the applicant referred the judge to the Court of Appeal’s judgment in HKSAR v Wu Chi Keung[8] which suggested that 6 years’ imprisonment was an appropriate starting point for Count 3.  However, he urged the court to depart from this figure and consider a lower starting point given the circumstances of the applicant’s offence.  The applicant’s counsel pointed out that some of the factors present in the Wu Chi Keung case were not present in the applicant’s case and that there was minimal harm caused by the drug to Miss Y.  He further submitted that there was no violence used and there was no degrading or humiliating treatment of Miss Y.  In fact, the applicant thought he was in love with Miss Y and it was his wish that they could develop further their relationship.  As Counts 3 and 4 were a connected sequence of events the court was urged to have regard to the principle of totality.  The applicant’s counsel accepted that the making of the video recording was an aggravating factor.  

The judge’s Reasons for Sentence

45.  After setting out the circumstances of the offence, the judge commented that the applicant had told many lies to the police and to the jury and his explanation that he had given a liquid concoction to Miss Y without realizing that it contained a “date rape drug” had not been believed.  Yet the false allegation that he made against Miss Y had been broadcast in various media reports.

46.  The judge outlined five aggravating features which he said existed in the present case.  He said:

“First of all, the defendant held himself out to be a professional doctor in his field and he had all the hallmarks of someone who was properly qualified to practise in Chinese medicine, herbal medicine and physiotherapy. The medical questionnaire that Ms Y was asked to fill out could only have reinforced this impression.

Secondly, the drug flunitrazepam, which not only can cause deep sleep but also memory loss, had a devastating effect on Ms Y and it was not the only drug in her drink. The defendant had also added something called quetiapine which is an anti-psychotic drug used for patients with mental disorders such as schizophrenia and bipolar disorder.

…

The defendant’s story at trial, which the jury clearly rejected, was that he had used a South American hallucinogenic concoction known as Ayahuasca, with ingredients that were unknown to him. This was plain, utter nonsense. He knew exactly what he was doing. He had deliberately added Rohypnol for the purpose of rape.

Thirdly, the defendant used no condom and for any victim of rape, when that happens, it can only add to the concern that they will feel for obvious reasons.

Fourthly, the defendant actually filmed the rape of his victim using this well-disguised camera which had the appearance of a wristwatch. This perverted act contributed to his eventual undoing as nothing could more clearly demonstrate that the victim was incapable of defending herself from the defendant’s attack.

And there is a fifth point as well. Some five and a half months earlier, the defendant had been arrested for doing to another young woman, who was referred to as Ms X, the same as he had done to Ms Y, that is giving Ms X a drink which had the same ingredient, flunitrazepam, in it.

For entirely technical reasons, nothing to do with the merits at all, that charge, at a very late stage, had to be dropped by the prosecution. But, and this is where it is relevant in this case, the defendant had been given a very serious warning because, at the time of Ms Y’s rape, he was on bail for an offence of exactly the same kind and this demonstrates that he had not been discouraged in the least.

This is why I say the defendant, for those reasons that I have just outlined, has shown not a grain of remorse. He has put Ms Y through the ordeal of reliving this dreadful event for her. The nature of the defendant’s defence, which of course cannot add to his sentence in any way, can only have been additionally disturbing to Ms Y.”[9]

47.  The judge then turned to consider the victim impact statement which was provided by a clinical psychologist who interviewed Miss Y.  The psychologist reported that ever since the incident, Miss Y had developed symptoms of depression as well as anxiety despite having received counselling since January 2016 to tackle these emotional problems.  She concluded that Miss Y displayed post-traumatic stress symptoms relating to the offences. Her daily functioning was being disrupted and she was less able to enjoy normal day-to-day activities.  Her trust in others was negatively affected because she was hurt by a professional who should be trustworthy.  She had become socially withdrawn and this loss of trust and social withdrawal would pose a negative effect on Miss Y’s interpersonal relationships.  In the words of the psychologist, Miss Y “displays significant traumatised symptoms and significant emotional disturbances.”[10]

48.  The judge observed that these offences had the most dreadful effect on Miss Y and he considered the offence to be an extremely serious one.  Having regard to the mitigation put forward and the circumstances of the case, the judge imposed a sentence of 6 years’ imprisonment on Count 3 and 10 years’ imprisonment on Count 4.  The judge ordered that 2 years of the sentence on Count 3 should run consecutively to the sentence on Count 4.  The applicant was, therefore, sentenced to an overall term of 12 years’ imprisonment.

The Perfected Grounds of Appeal Against Conviction

49.  In his Perfected Grounds of Appeal filed on 11 May 2018, Mr Trevor Beel, counsel for the applicant, put forward two grounds of appeal against conviction, namely, that:

(i)   the judge had described flunitrazepam as a “date rape drug” in his summing up, a pejorative expression which was highly prejudicial and “could lead the jury to improperly reason that the presence of flunitrazepam would only be for the purpose of rape and thereby its very presence would establish that Miss Y had been raped.”; and

(ii)  the judge had failed to give reasons for his ruling in the voir dire that two verbal admissions recorded in the police notebook and the video recorded interviews were admissible and so left unresolved:

(a)  material inconsistencies arising in the evidence of the police;

(b)  evidence from the applicant consistent with his allegations.

50.  In support of his first ground of appeal, Mr Beel submitted that flunitrazepam is sold under the trade name of Rohypnol and it has a proper and legitimate pharmaceutical application for the treatment of insomnia.  He argued that there was no direct evidence to establish that flunitrazepam is known as a “date rape drug”.  In fact, during a discussion in the voir dire, the prosecutor stated that he would avoid the expression “date rape drug” as he thought it was prejudicial.

“Mr Adams:	I’m not sure because I tried to find an expert to say that and we can’t find even Dr Dao to say it and I don’t think Dr Tang says it either, but we found that looking at the internet. But Dr Tang says it’s a date rape drug. It’s marketed under the name Rohypnol, that’s what I read somewhere, but I haven’t found it in the papers. I was going to avoid using the expression ‘Rohypnol’, I was even going to avoid using the expression ‘date rape drug’.
Court:	Really?     Why?
Mr Adams:	I think it’s prejudicial. But if my friend doesn’t – he is shaking his head and nodding his head this time.
Court:	I’m not surprised, what you just said. Date rape drug is a well-known expression.
Mr Adams:	Well, date rape, yes. Well, Dr Tang says that so perhaps I’m being over-cautious.
Court:	I think a little bit. Anyway, Rohypnol doesn’t – I was looking to find it and couldn’t, but I can’t remember where I read something to the effect that it is the same thing as Flunitrazepam.” [11]

51.  When the experts were called to give evidence, no reference was made to flunitrazepam being known as a “date rape drug”.  Dr Tang testified to the effects of flunitrazepam and stated in his report that it was “occasionally administered in drug-facilitated sexual assaults”.  When the judge asked Dr Tang of the reason why flunitrazepam came to be known as a “date rape drug” rather than all the other sleep inducing drugs, Dr Tang replied that he was not sure about that and explained that all the drugs that have similar effect in terms of causing people to sleep and memory loss belong to a group called benzodiazepines.  He said he did not know the answer to the judge’s question.

52.  Mr Beel submitted that the suggestion that flunitrazepam is known as a “date rape drug” came from the judge himself rather than from any direct evidence that had been called by the prosecution.  Thus, the judge fell into error by referring to and describing flunitrazepam as a “date rape drug” repeatedly in his summing-up.  It was Mr Beel’s position that the judge should have only referred to the effects upon a person who has been given flunitrazepam and it was for the jury to determine whether or not it had been administered by the applicant in order to facilitate the rape.  The expression of flunitrazepam being a “date rape drug” could potentially lead to improper reasoning by the jury and an inference being wrongly drawn that the presence of flunitrazepam in the drink given to Miss Y meant that the applicant intended to rape her.  Mr Beel submitted that in such circumstances, it is impossible to be confident that the jury’s decision-making process was unaffected by the judge’s comments.

53.  For Ground 2, Mr Beel submitted that during the voir dire, there were distinct issues that arose for the judge to resolve, firstly, that there were injuries to the applicant’s wrist and chest wall and secondly, that the applicant had made two false admissions to the police.  The first false admission was of having used the contents of two bottles found in the clinic to overpower Miss Y and the second false admission was of having used the drugs to overpower two other women whom he identified.

54.  Mr Beel submitted that these were important matters which the judge was required to address, especially as the police officers had contradicted each other in their evidence.

55.  Regarding the false admissions made by the applicant, Mr Beel submitted that there was no discernible benefit to the applicant in making the false admissions but that doing so was consistent with the applicant being in fear and feeling the need to appease the police officers. 

56.  Mr Beel relied on the judgment of the Court of Appeal in HKSAR v Okafor[12], where Stock VP said[13]:

“29. ...This means that if the basis of the tribunal’s determination is clear from the circumstances as revealed by the record, there is no need for the provision of reasons; for in such a case the tasks of the adviser and of the appellate tribunal are not obstructed. If the basis for the decision is not clear from the circumstances – which includes the evidence, the nature of the challenge, exchanges in the course of the proceedings – then reasons should be provided, otherwise the convicted defendant is effectively deprived of his right of appeal in relation to a material issue in the case.

…

34.  What are the consequences when the reasons for a material decision arising on a voir dire are not apparent from the record or from a reasoned ruling?

35.  The answer, in my judgment, is that an error of law is thereby constituted.  The proposition seems to me to be self-evident but in any event, there is ample support for it…”

57.  Mr Beel submitted that in the circumstances of the present case the failure of the judge to give reasons for his ruling in the voir dire amounted to a material irregularity and error of law that rendered the conviction of the applicant unsafe or unsatisfactory.

The respondent’s submissions on the conviction appeal

58.  In response to Ground 1, Mr Eddie Sean, for the respondent, submitted that the use by the judge of the term “date rape drug” when referring to flunitrazepam had no relevance to the issues in the case.  The applicant’s case was that he did not know why flunitrazepam was found in Miss Y’s body and that he did not deliberately administer it to her. The jury would have acquitted the applicant if they found the applicant had not administered the drug or might not have known of its presence in the liquid that he poured into Miss Y’s cup.  In fact, the evidence against the applicant was overwhelming, which entitled the jury to apply their common sense and everyday experiences to find that Miss Y was under the influence of the drug and was not in a position to consent to the sexual intercourse.  The judge duly directed the jury to acquit the applicant if they found the defence case was or might be true. 

59.  In regard to Ground 2, Mr Sean submitted that the voir dire concerned only questions of fact and the judge was alive to all the evidence before him to determine if the admissions were made voluntarily.  It was apparent that the judge did not think any inconsistencies in the prosecution’s evidence were material. 

60.  Mr Sean referred to Wallace v R[14], where Lord Mustill held that a trial judge does not have to give reasons in a voir dire when the issues only concern the credibility of police officers and defendants[15]:

“Here, the trial judge was faced with an irreconcilable conflict of evidence between the police officers and the defendants, turning on credibility alone. No principles of law were in issue, and there was no discretion to be exercised. The only question was whether the judge believed one set of witnesses or the other. His ruling leaves the answer in no doubt.”

61.  Furthermore, in Okafor, Stock VP said that the trial judge should explain his ruling in the voir dire only where there was “material and obvious inconsistent or contradictory testimony on an important issue”[16]. He further said[17]:

“… I have emphasised the word ‘material’ because there is an unhealthy obsession amongst some counsel with immaterial inconsistencies in evidence, both internal to the testimony of one witness or as between witnesses. Whilst inconsistencies may be of the kind that truly affect reliability, inconsistencies should be approached realistically recognising that some inconsistencies are, with the passage of time, inevitable…”

62.  Relying on this passage from Okafor, Mr Sean submitted that there were no material inconsistencies in the evidence of the prosecution witnesses in the voir dire and that, consequently, the judge was not required to give reasons for his ruling.

Discussion: The appeal against conviction

The first ground of appeal

63.  The phrase “date rape drug” was first used in the trial by the prosecutor in his opening address when he told the jury:

“… Flunitrazepam, now I’ll tell you about that. This is a dangerous drug and it is included in the dangerous drugs covered by the Dangerous Drugs Ordinance. It is a powerful hypnotic and sleep-inducing drug, and for lawful purposes, marketed under the name Rohypnol.

When used unlawfully, as in this case, it is regarded as, and sometimes referred to as a date rape drug.” [18]

64.  It was thereafter mentioned frequently in the trial.  We have already set out how the phrase “date rape liquid” was repeatedly used by the police in the applicant’s second video record of interview and the contents of this video interview were necessarily referred to by the judge in his summing-up.  In reminding the jury of the contents of the second video record of interview, the phrase “date rape liquid”, as a quote from the interview, is spoken by the judge over ten times in the course of 13 pages of transcript.  Of course, the applicant himself, in his second response to caution, referred to “rape water”.

65.  The drug’s use as a facilitator of sexual assaults was also referred to in the report of Dr Tang.  In examining Dr Tang, the prosecutor asked him to read paragraphs 27 and 28 of his report.  The transcript of his evidence is as follows:

“Q.	Right. Carry on with 27.
A.	27, ‘Effects of flunitrazepam include sedation, reduced anxiety, muscle relaxation and memory loss, especially recall of events following the ingestion of flunitrazepam.’ 28, ‘Flunitrazepam is occasionally administered in drug‑facilitated sexual assaults. Drug-facilitated sexual assaults case reports indicate that the ingestion of flunitrazepam doses as low as 1 milligramme may cause memory loss, drowsiness, which is a feeling of abnormally sleepy, and confusion which is a disturbance of consciousness shortly after consumption of an adorated(sic) drink’...
Q.	‘Adulterated.’
A.	‘Adulterated.’”[19]

66.  Even the applicant’s counsel made use of the fact that Rohypnol may be used by a rapist to stupefy a victim.  It was important to his case to make the point that no such type of drug had been found in the applicant’s clinic.  In his closing speech to the jury, the applicant’s counsel said:

“Admitted facts, paragraph 10, subhead (3), second last point. ‘When lawfully sold it is marketed under the name Rohypnol.’ Importance, what is the importance? The evidence is - and I did ask officers this question; more or less I got the answer. A government Pharmacist was summoned to attend the office to assist with the search, he was there when various exhibits were seized. They knew what they were looking for; they thought it was a rape case with the administering of stupefying substance commonly used Rohypnol here which would have flunitrazepam. Important point, members of the jury, no Rohypnol; no flunitrazepam in any shape and form was found on the office, apart from the items which you have been shown. So the pharmacist would have been looking for this kind of substance, Rohypnol, none was found. He said Ayawaska he said Ayawaska.”[20]

67.  In his summing-up, the judge first used the phrase “date rape drug” when referring to the charges involving Miss X.  When referring to the applicant’s case he said:

“He certainly denies knowingly administering Flunitrazepam or, shall we say, a date rape drug, to use a sort of nickname for it; …”[21]

68.  By the time the judge came to use the phrase it had been repeatedly before the jury in the course of the trial.  To suggest that the jury would have been influenced by the judge’s use of this phrase is to ignore the fact that everyone in the trial, counsel and witnesses, had been using it or referring in some way to Rohypnol’s reputation as a “date rape drug”.

69.  The jury would not have been in any doubt that Rohypnol was a perfectly lawful drug that can be legitimately prescribed to treat certain medical conditions.  But, like so many drugs, it possessed qualities which could lead to its abuse by persons who wanted to take advantage of those qualities for unlawful purposes. 

70.  Furthermore, and most importantly, all of these uses of the phrase were in the context of a trial where the applicant denied being in possession of the drug and denied deliberately administering it to Miss Y.  His defence was that it must have been present in the Ayahuasca without his knowledge and this defence was clearly placed before the jury by the judge in his summing-up.  It was not his defence that he possessed the drug for lawful purposes or that he intentionally administered it for a lawful purpose.  Had either of these been his defence then this ground of appeal would have more force. 

71.  But they were not his defences and the issue before the jury was the straightforward factual one of whether the applicant deliberately put the drug into Miss Y’s drink or whether it came to be in her drink in some accidental way without the knowledge of the applicant.  There could not have been any doubt in the minds of the jury that this was the issue they had to address and resolve.

72.  If the jury reached the conclusion that the applicant deliberately put the drug into Miss Y’s drink then the prosecution was asking the jury to infer that, because of the nature of the drug and the effect it had on a person, and because there was no evidence that the applicant was in lawful possession of the drug, the applicant must have done so with the intention of stupefying her so that he could rape her.  Once the jury made the finding that the applicant deliberately put this drug in Miss Y’s drink without her knowledge, consent or any discernible legitimate need for it, there was a perfectly reasonable inference to be drawn that he did so in order to rape her.  Far from being a form of impermissible reasoning, it was entirely permissible and, with all respect to Mr Beel, the only reasonable inference to be drawn.

73.  We do not see that there is any risk that the reputation of the drug, as reflected in the pejorative term by which it has become known, would have influenced the jury in making this initial finding of fact.  The prosecution case was an overwhelming one and the defence case was properly characterized by the judge when he described it in his Reasons for Sentence as “plain utter nonsense.”

74.  There is no merit in this ground of appeal.     

The second ground of appeal

75.  Much significance is placed by Mr Beel on the applicant’s injury to his wrist and other minor injuries and his false admissions about the two bottles seized from his clinic and the two names of other victims.  He says that their importance is such that they had to be addressed and resolved by the judge.

76.  The injuries sustained by the applicant were fully explained by the evidence and that explanation was not dependent solely upon an acceptance of the police officer’s evidence.  The circumstances in which the injuries came to be sustained were fully documented by the officer in his notebook and the applicant signed against this record as confirmation of its accuracy. 

77.  The fact that the injuries were noted by a doctor, and thereby a documentary record was created in respect of them, did not take any further the allegation of how they came into being.  That the judge viewed the medical record as simply providing a means for documenting the applicant’s allegations is apparent from an exchange between the prosecutor and the judge on whether the medical report reflected the doctor’s findings or merely repeated the complaint that the applicant made to him.  The judge said:

“COURT:	Yes, it’s very badly recorded because it looks as though that’s what the doctor has found. In fact, it’s the allegation, isn’t it?
Mr Adams:	Yes.”[22]

It is clear that the judge did not regard the medical records as providing probative support for the applicant’s allegations.

78.  Clearly the judge felt that the injuries sustained by the applicant were explained by the police officer’s notebook entry.  There is no uncertainty or lack of clarity in respect of the reasons why the judge was not concerned by the existence of the applicant’s injuries and of the medical records which purported to document them.

79.  In respect of the false admissions, the judge clearly accepted that the applicant had deliberately made them in order to lead the police astray.  He knew before the search of his clinic took place that the police were looking to him for assistance in identifying the drugs and had ample time to plan in his mind what he would do in response to this. 

80.  Furthermore, the applicant’s evidence has an obvious inherent implausibility to it.  In respect of the two bottles thought to contain “date rape liquid”, he claimed that the police officers latched upon these bottles and told the applicant to make a confession in respect of them. But the police officers would have known that once such a confession was made the bottles would have to be seized and would become exhibits in the investigation.  The next step would be to have them tested in a laboratory in order to identify their contents.  If their contents proved harmless then the applicant’s confession was worthless.  For the police to have behaved as the applicant claimed just does not make sense.  Indeed, the police had the bottles tested and their contents proved to be harmless.

81.  Likewise, in respect of the other victims. No benefit would accrue to the police investigation from obtaining a false admission in respect of other victims, for the police would have known that such an admission was also worthless unless the “victims” confirmed that they had been similarly mistreated by the applicant.

82.  In these circumstances, it is quite apparent that there existed ample justification for the judge not viewing the false admissions as supporting the applicant’s case.   

83.  The voir dire commenced on 8 May and the applicant testified on 9 May at 10 am and concluded his evidence shortly after lunch at 2:51 pm.  The judge proceeded immediately to submissions but did not call upon the prosecutor.  The submission of the applicant’s counsel was succinct, to say the least.  The transcript records the submission as follows:

“COURT:	Yes. Is there anything you would like to say?
MR NG:	My Lord, the evidence is fresh before the court. The only point I would make, my Lord, is simply that you heard from six officers. I think it’s a fair comment, my Lord, to say that they were not really forthcoming with what they actually see there on the material days. A classic example, you know, ‘I was nearby. I didn’t pay attention’ to relevant part. The ‘I didn’t pay attention’ is the catchphrase, the pet term, for these officers when the …
COURT:	Well, I let you ask a lot of officers who probably wouldn’t have known. When you have got an exhibits officer who is responsible for exhibits, he is not going to be knowing what’s going on, necessarily, with the questioning.
MR NG:	Of course, my Lord, but as the defence lawyer, my position is to make that submission.
COURT:	Well, very well, but, yes.
MR NG:	Point made, and the rest of the evidence is before you, and defence relies heavily on the cuts to the wrist.
COURT:	All right.
MR NG:	Thank you.”

84.  What this submission reflects is that defence counsel saw no need for repetitive prolixity as the evidence had just concluded, the issues raised by it were obvious and there were no legal issues that had to be addressed.  The only issue was who the judge should believe.   

85.  It is clear that the judge believed the police officers, and he was entitled to do so.  The law does not require him to explain why he did so.  In that situation he is not required to explain why he believed them rather than the applicant unless there is something in the evidence which is so important to their credibility that it cannot be ignored.  This is what Stock VP described in Okafor as “material and obviously inconsistent or contradictory testimony on an important issue.”

86.  The differences between the police officers’ evidence on which Mr Beel relied do not reach this level of importance and, in any event, was explained by the judge in the exchange with counsel that is quoted at [83] of this judgment.  In respect of the two matters on which he particularly relied, we are of the view, for the reasons we have set out, that they do not require the resolution of the judge.

The Perfected Grounds of Appeal Against Sentence

87.  Mr Beel put forward only one ground of appeal, namely that the judge in sentencing the applicant fell into error by wrongly finding the presence of two aggravating factors.  They were, that the applicant had used two drugs on Miss Y in order to rape her, and that the applicant had administered the same drug to Miss Y, as he had earlier administered to Miss X, and did so whilst on bail in regard to the matter of Miss X.

88.  Mr Beel submitted that the administration of drugs on Miss Y was the subject of Count 3, and was to be sentenced in its own right.  It should not, by itself, be an aggravating factor for Count 4. 

89.  Further, Mr Beel submitted that the fact that the applicant had also administered a drug to Miss X was not supported by a finding by the jury.  Whether or not the jury acquitted the applicant on Counts 1 and 2 on a technicality, it nevertheless was still an acquittal.  Mr Beel submitted that when these aggravating factors were wrongly taken into consideration, the degree of aggravation had been unjustly magnified and this led to the starting point that was adopted by the judge being manifestly excessive.

90.  Mr Beel suggested that in sentencing rape cases, the courts would usually take into account the degree of harm to the victim, the level of culpability of the offender and the level of risk by the offender to society.

91.  Mr Beel relied on HKSAR v Cheung Chi Wing[23], where the Court of Appeal stated[24]:

“17. In each case, the sentencing judge is required to stand back and look at the circumstances as a whole, imposing a sentence which is appropriate having regard to all relevant circumstances. This must include a consideration not only of the features of the case which are adverse to an offender but to all other circumstances, particularly the level of culpability of the offender and whether the offender poses a risk to society.”

92.  Mr Beel submitted that the judge when sentencing the applicant did not seem to have evaluated the level of risk that the applicant posed to society.  He argued that if there were only three aggravating factors present in this case, as identified by the judge, then a starting point of 9 years’ imprisonment would have been appropriate for Count 4.

The respondent’s submissions on the sentence appeal

93.  Mr Sean submitted that even if the factor of administering flunitrazepam was to be disregarded as an aggravating factor, the starting point of 10 years’ imprisonment as adopted by the judge on Count 4 would still have been appropriate.

94.  Mr Sean submitted that there were, in the present case, the following aggravating features of the applicant’s offending, including:

(a)  in an attempt to exonerate himself, the applicant took videos to use them to claim that Miss Y consented to the sexual intercourse;

(b)  the applicant abused his position as an alternative medicine practitioner.  Miss Y trusted him because of his professional status and he abused that trust;

(c)  Miss Y was a tourist and was only 23 years old.  The applicant was 42 years old at the time of the offence; and

(d)  the offending was premeditated and well planned.

95.  In relation to the point that the applicant committed Counts 3 and 4 whilst he was on bail for the matter relating to Counts 1 and 2, Mr Sean submitted that the fact the applicant committed similar offences whilst on bail showed that he had utterly no regard or respect for the law.  Hence, the judge was entitled to take this into consideration as an aggravating factor. The overall sentence of 12 years’ imprisonment was, he submitted, appropriate for the seriousness of the applicant’s conduct.

Discussion: The appeal against sentence

96.  When the judge was referring to the aggravating features in the applicant’s conduct he was talking about the case generally and not confining his remarks only to the rape offence.  That being so, the only questions are whether his comments have relevance to the section 121 Crimes Ordinance offence and, if so, whether there is anything in his Reasons for Sentence which suggests that he wrongly used them when assessing the seriousness of the rape offence. 

97.  His comments in respect of the second aggravating feature are to the effect that:

(i)  the drug flunitrazepam does not cause only deep sleep but also memory loss and it had a devastating effect on Miss Y;

(ii)  the applicant used two drugs to stupefy Miss Y, the other drug being quetiapine, which is an anti-psychotic drug used for patients with mental disorders; and

(iii)  the presence of the alcohol in the drink would also have added to Miss Y’s sleepiness.

98.  All of these comments are valid in that they are based upon the evidence and are relevant to the judge’s assessment of the seriousness of the section 121 Crimes Ordinance offence.  They can properly be taken into account as aggravating that offence and in determining the appropriate starting point for it. 

99.  The fifth aggravating feature also relates only to the section 121 offence. What the judge said bears repeating:

“And there is a fifth point as well. Some five and a half months earlier, the defendant had been arrested for doing to another young woman, who was referred to as Ms X, the same as he had done to Ms Y, that is giving Ms X a drink which had the same ingredient, flunitrazepam, in it.

For entirely technical reasons, nothing to do with the merits at all, that charge, at a very late stage, had to be dropped by the prosecution. But, and this is where it is relevant in this case, the defendant had been given a very serious warning because, at the time of Ms Y’s rape, he was on bail for an offence of exactly the same kind and this demonstrates that he had not been discouraged in the least.”[25]

100.  These comments do not go behind the verdict of the jury.  The judge was very careful to ensure he did not do precisely that.  The point the judge was making is that the applicant committed the offence with Miss Y whilst on police bail for an identical section 121 offence in respect of Miss X.  His arrest for that offence constituted a very serious warning to him which he deliberately refused to heed.  The fact that the applicant was ultimately acquitted of this charge does not lesson the point the judge was making.  He was perfectly entitled to regard this as an aggravating factor for the section 121 offence. 

101.  Having concluded that there was nothing wrong in the judge treating these matters as aggravating factors for the section 121 offence, we have then carefully considered the judge’s Reasons for Sentence to determine whether he allowed the comments he made in respect of these two aggravating features to affect his assessment of the appropriate starting point for the rape offence.  We can detect nothing in his reasons which might suggest that he did so.

102.  Notwithstanding that we have found no merit in the grounds of appeal we have considered whether the overall sentence is manifestly excessive as Mr Beel contends that the sentence for the rape offence should only have been 9 years’ imprisonment.  He does not contest the sentence for the section 121 offence of 6 years’ imprisonment and he does not complain about the order that 2 years of it should be served consecutively to the sentence for the rape offence.  What he seeks, therefore, is a reduction of the total sentence from 12 years’ imprisonment to 11 years’ imprisonment.

103.  The judge was right to characterise these offences as very serious.  The fact that the applicant was willing to abuse the trust of his client, that he was able to gain access to drugs of this kind, that he persisted in abusing these drugs after his arrest in respect of Miss X and his total lack of remorse, all went to the seriousness of his conduct and to demonstrating the need for a sentence containing a strong element of personal deterrence.  Cumulatively, they were evidence that the applicant indeed posed a risk to society. 

104.  The three aggravating factors of abuse of trust and professional status, no condom and making a video record of the rape are all serious in their own right.  When these are added to the conduct of a defendant who showed no remorse and whose victim has been significantly traumatized by what she was forced to endure, and then re-live in the witness box, the offence becomes very serious indeed.  We are not persuaded that the starting point should have been no more than 9 years’ imprisonment.  10 years’ imprisonment for this offence may be severe but, for the conduct of this applicant, it is not manifestly excessive.

105.  The criminal conduct underlying each offence is quite different and the fact that they occurred at the same time, with the section 121 offence conduct being committed to enable the applicant to rape the victim, does not mandate concurrent sentences.  The conduct involved in the former offence clearly adds to the culpability of the applicant’s conduct that underlies the latter offence.  Partially consecutive sentences were, therefore, appropriate and, in our view, after applying the totality principle, it cannot be said that the total sentence is manifestly excessive. 

Disposition

106.  For these reasons we refuse the applicant leave to appeal his conviction and leave to appeal his sentence and dismiss his appeal.