R. v. LEUNG KAM TONG and Others

IN THE COURT OF APPEAL

1995, No. 602
(Criminal)

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J U D G M E N T

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Hon Yang, C.J.:

1. This is the judgment of the Court.

2. The three applicants were convicted after trial of attempted rape. Each was sentenced to imprisonment for three and a half years. They seek leave to appeal against their convictions.

3. The only evidence against each applicant is his own cautioned statement. The victim, a girl of sixteen and a student, remembered nothing at all. None of the applicants gave evidence.

4. The 1st applicant (A1) was a man of good character.

5. There was no corroboration of the girl's evidence.

6. The applicants present four Grounds of Appeal.

7. First, the judge failed to properly, adequately or fairly remind, direct or analyse for the jury (i) the evidence of the victim (PW1) particularly on the issue of consent, (ii) the evidence of the driver Wan Sui Kuen (PW2), who drove to Tai Mo Shan for a joyride with his friends, but he did not drive to the construction site where the attempted rape was alleged to have taken place, (iii) that such evidence of PW2, if accepted, would establish that PW1 was a liar, and (iv) it would also support the defence case of willing participation on the part of PW1.

8. Secondly, the judge failed to direct the jury properly or alternatively misdirected the jury upon the use they could make of the cautioned statements, including (i) the repeated references to the jury to use the cautioned statements "against" each accused and (ii) the failure of the judge to direct the jury to consider the whole statement.

9. Thirdly, the judge failed to leave indecent assault to the jury as an alternative verdict.

10. Fourthly, there is a lurking doubt.

11. PW1's evidence was that at about 8:00 pm on 26 September 1994, she went to a karaoke bar with her girlfriends. There they were joined by five or six youths whom she did not know. She consumed six cans of beer after which she felt very sleepy. Then she and her friend, another girl by the name of Ku Man Kuen, left with some youths in the car. She sat at the rear between two youths. In spite of being asked to be driven home, her party was driven first to Tai Mo Shan and then to a construction site at Tsing Yi, New Territories. She complained of being very thirsty and was given a can of beer half consumed. She saw another car behind her when they arrived at the construction site at Tsing Yi. She was not acquainted with any of these people. Having taken the half can of beer she fell asleep. The next thing she knew was that she was woken up by a policeman. Her jeans and underpants had already gone to her thighs.

12. PW2's evidence was that he drove from the karaoke bar to Tai Mo Shan and stayed there for a few hours before he left with his girlfriend Ku Man Kuen to have something to eat. He did not go to the construction site.

13. His evidence of the PW1's behaviour between the time at the karaoke bar and the party's stay at the Tai Mo Shan indicated that during that period of time the victim, PW1, was not entirely an unwilling participant in the party.

14. Coming back to PW1, she and her newly acquired friends started for Tai Mo Shan at about 11:30 pm. She was chatting and did not appear to be drunk. At one point she even made an attempt to study for her examination which was due to take place the following day. En route to the construction site, she said she was thirsty, her car then stopped and someone alighted from the car to go to a store and bought some beer and a packet of 12 condoms.

15. It may be noted that neither PW1 nor PW2 gave evidence implicating the applicants in the charge of attempted rape.

16. The evidence in respect of the charge comes from each applicant's statement.

17. We first quote extracts from A1's cautioned statement. Under caution, the 1st applicant said:

"Ah Sir, I didn't do that. I have never inserted into her lower part. I only put on a condom and moved about outside. I even ejaculated before inserting into it. How could it be regarded as raping her ! She at that time did hug and kiss me."

And further on, he said:

"Ah Sir, I came to know 'her' in the Entertainment Karaoke on 19th floor, Entertainment Plaza, Tsuen Wan. I came to know 'her' just at the time between 9 and 10 o'clock last night and I did not know her name. Later, in this police station, I came to know that her name was HONG Wing-chong."

Still further, he said:

"Ah Sir, the situation was that. At that time I held my penis with my right hand, actually intending to insert it into her vagina. However, the penis became flaccid at that time and was unable to enter. After that, I was too excited that I ejaculated. At that time I was so tired that I sat at the front passenger seat. I threw the condom onto the ground, put on the trousers and sat down there to take a rest. Then, you people arrived."

Then:

"Ah Sir, after HONG Wing-chong and we arrived at the said construction site, she was all the time sitting at the middle of the rear seat of FU5138. Later, I, together with Ah Hung and Ah Kwan, three in total, took off both the denim trousers and underpants of HONG Wing-chong. After that, I wanted to make love with her first. However, I could not enter just like what I have told you before. ..... Anyway, it was we three who took off the denim trousers together and then threw it to somewhere in the car. The underpants was also taken off by we three together. However, I have no idea where it has gone."

Further on:

"Later, I together with WONG Pak-hung and SHING Wai-kwan entered the 7-11 convenience store in Greenfield Garden and bought about five cans of Carlsburg beer. At that time WONG Pak-hung also bought a large size packet of condom. ..... Then, my car took the lead and I drove the car until arriving the said construction site."

18. A2 in his cautioned statement said this:

"I did not know the girl's name. I came to know her earlier on at a karaoke on the 19th floor of the Entertainment Plaza in Tsuen Wan. ..... Later LEUNG Kam-tong, SHING Wai-kwan and I together pulled down the girl's jeans. At first, we pulled the jeans down to her knees and then pulled her underpants down to her knees. However, the girl did not resist when the three of us were undoing her jeans and underpants. At that time, she did not tell us to help her undo her trousers. The girl was conscious at that time. She opened her eyes and watched us undoing her trousers (the jeans and underpants) ..... Then I saw that the girl was lying in the passenger seat of the rear compartment of my car. She was wearing her upper garment at that time but her jeans and underpants had been pulled down to the knees. Then I put a condom on my penis myself and then took off my jeans and crawled onto the girl's body. Then I put my right hand into the underneath of the girl's upper garment to caress her breasts from the outside of her bra and caressed her body. When I was caressing the girl, she hugged my neck and kissed me on my face but she did not say anything. About a minute and a half later, I got out of the car, walked near the front passenger's seat, and stood there. I did not have sexual intercourse with her because I was afraid. I put on my jeans and discarded the used condom onto the ground beside the car."

19. Finally, A3 having been cautioned said:

"Ah Sir, I didn't. HONG Wing-chong was very drunk when arriving at the open space. Then, the several of us wanted to molest her. Later, I alighted from the car and LEUNG Kam-tong molested her first. After a while, LEUNG Kam-tong said, 'Oh! It's done, Chau Kai.' After that, WONG Pak-hung claimed that he was flaccid and incapable. He then asked me if I wanted to try. I then returned to the car to take off my trousers and put on the condom. However, Ah Sir and your people arrived before I could mount her."

Further on, he was asked:

"You said that at that time HONG Wing-chong was very drunk, how drunk was she and what was her condition ?

The answer was:

"At the beginning she had a little bit consciousness and offered kiss to anyone. However, she later closed her eyes and not much consciousness was left, just like falling into sleep."

Further answers to questions are as follows:

"A. LEUNG Kam-tong, WONG Pak-hung and I took it off/pulled it down together.

Q. You said, 'Ah Sir, your people arrived before I mounted her', what is the meaning of 'before I could mount her' ?

A. That was to say that not yet had sexual intercourse with HONG Wing-chong.

A. Before I could mount her, I did have kissed her, caressed both of her breasts and assisted in taking off her trousers. Later, I even lay on HONG Wing-chong and intended to molest her. However, Ah Sir and your people arrived by then."

And finally:

"We all took off the denim trousers of HONG Wing-chong completely and threw it in the car. After that, we pulled down her underpants. One side of which was taken off completely whereas the side on the right was pulled down to her knee."

20. This then was the evidence implicating each of the applicants.

21. We now return to the Grounds of Appeal.

Ground 1

22. It must be noted that PW2 did not know the three applicants, nor did he go to the construction site. His evidence only covered the period from the karaoke bar to the time spent at Tai Mo Shan. The alleged attempted rape took place afterwards at the construction site at Tsing Yi.

23. The judge in his summing up to the jury dealt with the evidence of both PW1 and PW2 adequately analysing the evidence of the witnesses and left out nothing that was of importance. It was quite clear from the summing up of the judge that the jury was told about the girl's attitude towards her being taken in a car at first thinking that she was being driven home and then being taken for a joyride. There is, in our judgment, nothing in this ground of appeal.

Ground 2

24. The applicants' cautioned statements were in part inculpatory and in part exculpatory, both aspects of which were pointed out by the judge in his direction to the jury. The judge in his summing up said quite clearly to the jury that the only evidence against the accused was really their statements, so the statements became very important in this case. He was at pains to impress upon the jury that they could only use the statements in respect of each maker and not anybody else who might be mentioned in the statements. He said, for example:

"The first matter I bring to your attention is that a statement by the first defendant is only evidence against him. He might have said the second defendant did this or said that, the third defendant said this or did that, and you must disregard that because it is not evidence against them. The statement of the first defendant is only evidence against himself."

25. It is therefore quite clear that the context within which the judge used the words "against him" was that the jury were enjoined not to use the statement to implicate anyone other than the maker himself, whether those words were exculpatory or inculpatory. There is nothing in this ground of appeal.

Ground 3

26. There was no application at the trial that alternative charges of indecent assault be added to the indictment or be left to the jury. Indecent assault is certainly not a statutory alternative to a charge of rape or attempted rape. We do not think that the case for the defence is prejudiced in any way by not having the alternative charge of indecent assault left to the jury. There is nothing in this ground of appeal.

Ground 4

27. This is no lurking doubt. There is nothing in the whole case that gives rise to any lurking doubt. We therefore see nothing in this point either.

28. For these reasons, the applications for leave to appeal against conviction are dismissed.