HKSAR v. CHAN CHI HOU

1997, No. 1
(Criminal)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

____________

____________

_______________

J U D G M E N T

_______________

Wong, J. (delivering judgment of the Court) : -

1. This is the judgment of the Court.

2. The applicant was tried before Keith J. and a jury on an indictment containing the following counts :-

First Count
STATEMENT OF OFFENCE
Indecent assault on a person, contrary to
section 122 (1) of the Crimes Ordinance, Cap. 200.

PARTICULARS OF OFFENCE CHAN
Chi-hou, on the 3rd day of September,
1995 at On Chung House, Shun On Estate,
Kowloon, in Hong Kong, indecently assault CYC.

Second Count
STATEMENT OF OFFENCE
Indecent assault on a person, contrary to
section 122 (1) of the Crimes Ordinance, Cap. 200.

PARTICULARS OF OFFENCE CHAN
Chi-hou, on the 19th day of
September,1995 at On Chung House, Shun On Estate,
Kowloon, in Hong Kong, indecently assaulted TWM.

Third Count
STATEMENT OF OFFENCE
Indecent assault on a person, contrary to
section 122 (1) of the Crimes Ordinance, Cap. 200.

PARTICULARS OF OFFENCE CHAN
Chi-hou, on the 7th day of
November, 1995 at On Chung House,
Shun On Estate, Kowloon, in Hong Kong,
indecently assaulted LPS.

Fourth Count
STATEMENT OF OFFENCE
Rape, contrary to section 118 (1)
of the Crimes Ordinance, Cap. 200.

PARTICULARS OF OFFENCE
CHAN Chi-hou, on the 17th day of
November, 1995 at On Chung House,
Shun On Estate, Kowloon, in Hong Kong, raped KLM.

3. After trial, the jury returned a verdict of guilty on Count 2 and a verdict of not guilty of rape but guilty of indecent assault on Count 4. They acquitted him on Counts 1 and 3. The judge whereupon sentenced him to six years' imprisonment on each count and ordered one year of the sentence on Count 4 to be served consecutively to the sentence on Count 2, making a total sentence of 7 years' imprisonment in all. The applicant now seeks leave to appeal against conviction.

4. Between 3 September and 17 November 1995, a number of women were attacked at On Chung House, a housing estate in Sau Mau Ping, Kowloon. Three of them were schoolgirls aged 10, 13 and 15 respectively at the time of the offences. The other woman, CYC who was the victim in Count 1 was much older, being 22 years of age. The attacks had a number of similarities and these are very well summarized by the judge in his summing up at p.13 and p.14 of the transcript :-

"Let me deal first with the assaults on the three schoolgirls and because those three assaults all have, you may think, a number of strong similarities.

All three of them were wearing their school uniform when they were attacked. They were all attacked in the late afternoon. And they were all attacked in On Chung House. All of them had gone up in the lift with the man who attacked them. When they got out of the lift, they were all grabbed from behind by the man. And the man dragged each of them up the staircase. They each had a sharp weapon pointed to their neck. And in the case of two of them, TWM and KLM, they had to take off their clothes and had to put their underpants over their head to prevent them from seeing anything. That did not happen to LPS. She had had the presence of mind to turn round and try to snatch the weapon the man had. She called out for help and the man ran off.

But the attack on the fourth victim CYC did, you may think, not quite follow that pattern ......"

5. The applicant was intercepted by the police at about ten to six in the afternoon of 5th of December when he was seen walking up and down by the lifts in On Chung House. He was searched and there is no dispute that a metal ruler, measuring 6 inches long, a cord and a piece of tissue paper or kitchen roll were found on him. In a series of interviews back at Sau Mau Ping Police Station, the applicant made admissions which could amount to confessions to the crimes.

6. Mr. Grounds, who appears for the applicant before us, advances four grounds of appeal. In view of the complaint of inconsistent verdicts in the first ground, it is necessary to set out briefly the facts on each count.

Count 1

On 3rd September 1995 at about 2.15 p.m. when the victim was about to take the lift at the lobby on 19/F., she was grabbed from behind. She was threatened with a metal ruler and indecently assaulted. She had no chance to see the face of her attacker. In her original statement to the police, she referred to the weapon as a paper-cutter. She failed to identify the applicant in an identification parade. In a record of interview, the applicant admitted indecently assaulting a female by threatening her with a metal ruler and touching her breasts.

Count 2

On 19th September 1995 at about 6 p.m. the victim, a 10 year old schoolgirl in her school uniform, took the lift back to her home in Room 2638 and she was followed by a man. When the lift reached 26/F., she went out but was grabbed from behind. She was dragged to the staircase. The man threatened her with a metal ruler and told her to take off all her clothes and she did so. He covered her head with her underpants. She was sexually assaulted. She could not see clearly the face of the attacker throughout. After the assault, she returned to her home naked, holding her clothes. The dress belt of her school uniform was later found at the staircase between 27/F and 28/F. In a later identification parade, she wrongly identified an actor as the attacker. In his records of interview, the applicant admitted using a metal ruler to threaten a girl and to indecently assault her by touching her breasts and private parts and to force the girl to perform oral sex.

Count 3

In the afternoon of 7th November 1995, the victim, a 13 year old schoolgirl in her school uniform, took the lift back to her home in On Chung House. When the lift reached the floor where she lived, she went out but was grabbed from behind and dragged to the staircase by a man. There she was sexually assaulted. She could not see the man's face throughout. She identified a wrong person in an informal identification and failed to identify anyone in a formal identification parade held subsequently. In a record of interview, the applicant admitted threatening a girl with a metal ruler and sexually assaulting her.

Count 4

On 17th November 1995 at 4.31 p.m. the victim, a 15 year old schoolgirl in her school uniform, returned home at Room 2538 by taking the lift. After she went out of the lift on 25/F., she was grabbed from behind and was dragged to the staircase by a man. There, she was forced to take off all her clothes. The man then put the underpants over her head and fondled her breasts and private parts. She was then told to lie down on the ground. She could feel that the man inserted his penis into her vagina. She could also feel the action of moving up and down by the man on her but did not feel any ejaculation. Throughout she could not see his face. A piece of white tissue paper was found at the staircase between 25/F and 26/F. She failed to identify anyone in an identification parade. In the records of interview, the applicant admitted sexually assaulting but not raping a girl and to force her to perform oral sex.

7. In the fourth ground of the Amended Perfected Grounds of Appeal, the applicant seeks to admit into evidence the affirmation of Mr. John Dunn pursuant to s.83V of the Criminal Procedure Ordinance, Cap. 221. Mr. Dunn was Counsel for the applicant at the trial. We will deal with this ground first which reads :-

"There was a material irregularity in the course of the trial in that the Prosecution failed to disclose scientific evidence which would or might arguably have assisted the defence."

8. There was in existence a witness statement of Cheung Yu-ming, a scientific officer, of which the defence was unaware at the time of the trial. The statement reveals that this witness had examined the clothing of the victims, which had been seized immediately after they had made reports to the police and the clothing of the applicant. In the statement, the witness concluded that "nothing of significance was found with respect to fibre contact evidence examination." It is argued for the applicant that the prosecution case would have been greatly weakened had this piece of evidence been placed before the jury during the trial and the judge during the voir dire. Mr. Grounds relied on the decision of the English Court of Appeal in R v Ward (1993) 96 Cr. App.R, 1 in which it was held, inter alia, that there was a clear obligation on an expert witness to disclose evidence of any tests or experiments which he had carried out or had knowledge of which tended to cast doubt on an opinion he was expressing and to bring the records of any such tests or experiments to the notice of the solicitors instructing him so that they might be disclosed to the other party. Ward was really concerned with indirect inconsistency in the forensic evidence. It is not the case here. The result of the examination of the clothing was completely negative which is unlikely to weaken the prosecution case or strengthen the defence. It is different if the result of the examination had been positive and had shown that the contact fibre had not come from the clothing of the applicant. The clothes of the applicant were not given to the police until some three weeks after the last incident. The effect of Mr. Cheung's statement in relation to Count 4 is that there was no contact evidence on the clothing of the applicant and Miss KLM, the victim. The evidence of K was that she was ordered to take off all her clothes before she was assaulted and the applicant confirmed this in his cautioned statement. In the circumstances, it is highly speculative whether Mr. Cheung's evidence might or might not assist the defence. We are not persuaded that this is a proper case that we should exercise our discretion to admit the affirmation of Mr. Dunn and the application is refused. It follows that this ground of appeal fails.

9. We turn now to the first ground of appeal which reads :-

"By reason of the fact that the case against the Appellant on each particular count was fundamentally dependant upon the records of interview made by the Appellant to DPC22672 (transcript 119-153), the verdicts recorded against the Appellant are inconsistent, self-contradictory, illogical and confused to such a degree and extent that the convictions recorded are thereby repugnant and unsafe and unsatisfactory."

10. Mr. Grounds submits that as none of the victims identified the applicant as her attacker nor was there any other evidence, apart from the records of interview, to connect the applicant with any of the attacks, it would be a matter of logic, consistency and common sense for the jury to find the applicant either guilty of all four counts or not guilty of all of them. He cited the decision in R v McKechnie and Others (1992) 94 Cr.App.R.51. We have taken the opportunity to examine the factual consistencies and inconsistencies in each count.

11. In relation to Counts 2 and 4, both victims said that the attacker was not wearing underpants and the applicant was not wearing underpants at the time of arrest. At the time of his arrest, the applicant was also found in possession of a 6-inch metal ruler, a cord and some paper tissue. The victim in Count 2 identified the metal ruler as similar to the one used by the attacker whereas the victim in Count 4 identified the kitchen roll found on the applicant to be similar to the type used by the attacker. Both pieces of kitchen roll were markedly similar. These were circumstantial evidence which supports the prosecution case. Moreover the records of interview relating to these two counts were clear, unambiguous and matched the details of the accounts given by the two victims.

12. On the other hand, there were many discrepancies in the evidence of the victims in Counts 1 and 3 from what the applicant said in his records of interview. In his record of interview of 5th December, he made no clear admission to the offence in Count 1 and his admission in the record of interview of 7th December was not entirely unequivocal. In her original statement to the police, the victim referred to the weapon used by the attacker as a paper cutter and not a ruler. Again, in the record of interview of 6th December, the applicant made no specific admission to the offence in Count 3 although he admitted the offence and gave details in the record of interview of 7th December. The victim identified a wrong person in an informal identification parade and failed to identify the applicant in a formal identification parade held subsequently.

13. The correct approach to inconsistent verdicts is laid down in R v Durante [1972] 1WLR 1612, a decision of the English Court of Appeal which has been applied in Hong Kong in R v CHEUNG Man-to [1987] 2 HKC 261 and HKSAR v WU Wing-hong, Criminal Appeal No. 238 of 1997 (unreported). Edmund Davies LJ (as he then was) said in his judgment at p.1617:-

"In Reg. v Hunt [1968] 2 Q.B. 433, Lord Parker C.J., at p. 438, cited from Reg. v Stone (unreported), December 13, 1954, and quoted what he described as a useful passage from the judgment of Devlin J. in regard to the approach that the court should adopt in cases of inconsistent verdicts. It reads :

'When an appellant seeks to persuade this court as his ground of appeal that the jury had returned to a repugnant or inconsistent verdict, the burden is plainly upon him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand. But the burden is upon the defence to establish that.'

We do not know whether this Court of Appeal has ever previously formally adopted the view expressed there by Devlin J. that the burden is on the defendant to show that verdicts on different counts are not merely inconsistent but are so inconsistent as to demand interference by an appellate court. Be that as it may, for our part we are satisfied that it is right and we now formally express our approval and adoption of that proposition."

14. In R v Mckechnie, 94 Cr.App.R.51, Auld J expressed the same view at p.59 :

"Not every inconsistency between verdicts justifies interference by this Court. The principle well established in a number of cases is that where is such an inconsistency the Court of Appeal will only intervene to quash a conviction where the appellant establishes that no reasonable jury properly have reached the verdicts that they did."

15. On the evidence before them, the jury were entitled to return different verdicts as there were sufficient discrepancies in Count 1 and 3 to cast doubt in their minds. The applicant has not established the threshold that the verdicts in the different counts are so inconsistent as to demand interference by this Court and this ground therefore fails.

16. Since the second ground and third ground are closely related, it would be more convenient to deal with them together. The second ground of appeal is worded in these terms :-

"The learned trial judge erred in law and or fact in that he directed the jury that the case involved a series of attacks committed by the same person and that the issue for them was whether that person was the Appellant."

The third ground is :-

"(1) The learned trial judge erred in law in that he failed to direct the jury that the evidence of each of the complainants in respect of the different counts was not admissible in the jury's consideration of the other or remaining counts.

(2) The learned trial judge erred in law in that he implicitly and wrongly directed the jury that the evidence of each of the different counts was admissible and could be taken into account in determining whether the Appellant had committed any of the other counts."

The judge opened his summing-up in these words : -

"Members of the jury, in the latter part of last year a number of women were attacked on a housing estate at Sau Mau Ping. Three of the women were schoolgirls. One of them claims that she was raped. The police believed that the attacks were the work of one man. Three weeks after the last of those attacks a man was arrested. That man was the defendant. The principal question that you have got to decide in this case is whether you are sure that it really was the defendant who was responsible for this series of attacks."

Here, the judge was telling the jury that it was the belief of the police that the attacks were the work of one man and he further advised the jury it was for them to decide whether the applicant was that man. It was up to the jury whether to agree or disagree with the belief or view of the police. We do not see anything wrong with this. But the judge went even further to make it perfectly clear so that there should be no misunderstanding.

He returned to this subject at p.45 of the transcript when he said :-

"Are you sure that the defendant was the man responsible for all or any of the offences with which he is charged?"

At the very outset at p.6, he directed and reminded the jury to consider each of the counts separately and to return separate verdicts on their individual merits. This is what he said.

"From that introduction, members of the jury, let me now turn to the indictment. The indictment contains four counts and you must consider each of those counts separately. If you find the defendant guilty on one count, that does not automatically mean that you must find him guilty on all or any of the other counts. Consider each of the four counts separately and on their individual merits. When you return to court after considering your verdicts, your foreman will be asked to give separate verdicts on each count."

Nowhere in the summing-up can the judge be accused of implicitly directing the jury that the evidence of each of the complainants in the different counts was admissible as evidence against the applicant in the other counts. He made it abundantly clear to the jury that they must consider each of the counts separately and on their individual merits. The summing-up must be read and considered as a whole. We are satisfied that the judge's direction was both fair and adequate. There is no merit in these two grounds of appeal and we have no hesitation to reject them.

17. There is nothing in the evidence or in the summing-up to cause us concern. We are satisfied that the convictions are neither unsafe nor unsatisfactory. Accordingly, the application for leave to appeal against conviction is refused.