HKSAR v. FUNG HOI YEUNG

CACC 62/2019

[2020] HKCA 512

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 62 OF 2019

(ON APPEAL FROM HCCC NO 156 OF 2018)

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D E C I S I O N

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1.  The applicant was convicted after trial of one count of rape and was sentenced to 10 years’ imprisonment. He has filed his notice of appeal against both but his application for legal aid is still pending.  He applied for bail pending appeal.

2.  His initial grounds of appeal are broadly as follows (details were provided in the applicant’s write-up) :

(1) The judge did not allow the applicant to produce a photograph;

(2) The judge did not allow the applicant to cross-examine X’s previous inconsistent statement by reference to her written witness statement;

(3) The judge did not remain impartial during summing up;

(4) The judge did not point out to the jury the doubts lying in the finding of the pathologist;

(5) The judge erred in not answering the question raised by the jury in a sufficient manner.

3.  As I explained to the applicant during the hearing, his Grounds (1) and (2) are not open to examination at the present stage without the relevant transcripts.  There is no way for me to assess the correctness or otherwise of the trial judge’s decisions or rulings.  I have read the summing up and am not persuaded that Grounds (3) and (4) have merit. Ground (5) goes to the question of consent and the lack of a clear statement of unwillingness to partake in sexual intercourse.  The trial judge answered it by pointing out the defence case of pure fabrication, ie no sexual intercourse ever took place, and the irrelevancy of that question.  She then repeated what the jury had to be satisfied before convicting the applicant.  Defence counsel, who was consulted, agreed with that approach.  I can see no criticism in it. As things are, I am not satisfied that the applicant is likely to succeed in his appeal against conviction.

4.  The applicant’s sentence is a stiff sentence. Without going into details, however, this is a bad case of rape.  In any event, even if the sentence were to be cut down on appeal it would still be years before the applicant would be released.

5.  For the above reasons I dismissed the applicant’s application for bail.