HKSAR v. WONG HING KWOK

CACC 9/2020

[2021] HKCA 1630

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 9 OF 2020

(ON APPEAL FROM HCCC NO 244 OF 2019)

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J U D G M E N T

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1.  The applicant was indicted on one count of rape, contrary to section 118(1) of the Crimes Ordinance, Cap 200 and stood trial in the High Court before Deputy Judge Johnny Chan (“the judge”) and a jury. On 19 December 2019, he was convicted (by a majority) and, on 23 December, sentenced to 5 years and 4 months’ imprisonment. Having filed notice of application for leave to appeal by way of Form XI, he now seeks leave to appeal against both conviction and sentence.

2.  After hearing from counsel, I reserved judgment on both applications and said that I would give my decision in due course.  This is my decision and the reasons therefor.

The prosecution case

Ms X’s evidence

3.  It was the prosecution allegation that the applicant raped Ms X, who was PW1 at trial, on 22 November 2018 at a flat in Savoy Garden, Shatin, New Territories.  Ms X sold luxury watches and lived with her younger brother in Tsim Sha Tsui, Kowloon.  She had been introduced to the applicant as a potential client by her then boyfriend, who was PW2 at trial, in October 2018.  Thereafter, Ms X and the applicant met up with each other socially a few times^[1]. The applicant did not know that Ms X and PW2 were in a relationship.

4.  On 21 November 2018, the applicant invited Ms X to a boat party, telling her that he would introduce her to potential clients for her business.  She said she would attend the boat party and the two met up in Central at about 7 pm that day.  There were some 10 women and several men on the boat, which subsequently set sail from Central to Causeway Bay.  On the boat, Ms X consumed several glasses of wine, but ate little.  She described her memory as vague and her limbs becoming weak.  The applicant had also been drinking^[2]. When Ms X disembarked from the boat, the applicant assisted her to board a taxi but she soon lost consciousness inside the taxi.  The next thing she remembered was seeing the glass door of a building, which was not her own residential building.  She then lost consciousness again.

5.  Ms X woke up on a bed, lying face-up.  The applicant, who was naked, was on top of her.  He managed to pull her underpants down to her thigh area, but Ms X pushed him away and pulled them back up.  The applicant then pulled away the crotch area of Ms X’s underpants and penetrated her vagina.  She closed her legs very tightly and pushed the applicant away with her left hand, her right hand covering her private parts.  At the same time, she told the applicant, “You are married.  You have a wife, and I am unwilling.  And we are only friends”^[3]. Ms X said that although she did not see it, she felt that what penetrated her was the applicant’s penis rather than a finger because she could feel its warmth.  The applicant’s penis was inside her for 1 or 2 seconds, and the applicant was not wearing a condom^[4]. After Ms X had pushed the applicant away, she developed a serious headache and lost consciousness again.

6.  In the morning of 22 November 2018, Ms X woke up with her dress, bra and underpants on.  The applicant was lying on the bed next to her.  She then went to the toilet, threw away her sanitary pad and put on her dress^[5]. When she came out of the bathroom, she saw the applicant naked on the bed.  When she sat on the bed to put on her shoes, the applicant grabbed her hand and said, “I suppose you would sleep for a longer while”.  Ms X then asked the applicant, “Last night nothing happened between both of us, right?”  The applicant said nothing.  She then left the flat^[6].

7.  Ms X went home and went to sleep.  At about 10 or 11 am, she woke up and thought over what had happened.  She was concerned, because she did not know if the applicant had further assaulted her after she had pushed him off her and lost consciousness.  Accordingly, she went to St Teresa’s Hospital in Kowloon, hoping to be examined in the Department of Gynaecology.  However, she was told an examination was not available, so she called other hospitals, but in vain.  Not knowing quite what to do, she dialled ‘999’ at 12:04 pm on 22 November 2018^[7]. Ms X was then told that she should make a report to the police, who would arrange a medical examination^[8].

8.  As a result of her ‘999’ call, police officers arrived at Ms X’s residence at 12:38 pm on 22 November 2018 in order to make enquiries.  She was then escorted by a woman police constable to Queen Elizabeth Hospital for the purposes of a medical examination^[9].

9.  At about 10:24 pm that evening, police officers and Ms X went to Shatin, together with a social worker, to look for the flat where the incident allegedly took place.  She pointed to Artland Garden, but when the party went to a particular floor of the building, she was unable to identify the flat.  

10.  At about 11 am on 27 November 2018, they went to the same floor of another building, this time in Savoy Garden and, on this occasion, Ms X was able to identify the particular flat as the place where she had been sexually assaulted.  It was not disputed that the applicant resided at that address^[10].

11.  The CCTV footage of the carpark at Shatin Park Stage 3 was admitted into evidence, depicting Ms X and the applicant arriving together between 1:00 and 1:15 am on 22 November 2018.  It also showed that Ms X was unsteady on her feet^[11].

12.  Ms X had a number of minor injuries, of which photographs were taken and admitted into evidence by agreement^[12].  She testified that she did not have the injuries before boarding the boat on 21 November 2018, and only became aware of them after she woke up on 22 November^[13].

13.  Under cross-examination, Ms X was shown the record of WhatsApp messages between herself and a Mr Johnny Yip, who was DW2 at trial, and who had been the host of the boat party^[14].  DW2 had sent Ms X a video of herself in a drunken state and appearing to throw a temper^[15]. In a voice message, he alluded to something happening between her and the applicant at the bow of the boat^[16]. Ms X said she had no memory of what took place at the bow of the boat because she had already “blacked out”.  She suggested that if she had been sober, she would not have kissed and hugged the applicant^[17]. She denied telling DW2 that she liked the applicant^[18].  She agreed that PW2 had telephoned her when she was on the boat and she had asked him to pick her up because she was very drunk^[19].

PW3’s evidence

14.  WPC25860, who was PW3 at trial, went to Ms X’s residence shortly after 12:29 pm on 22 November 2018, where Ms X related the incident to her.  PW3 made a record of what she had told her about the incident in the investigation report and her in police notebook.  After reading aloud from her notebook, PW3 confirmed that Ms X did not speak of any penetration^[20].

PW5’s evidence

15.  DPC2962, who was PW5 at trial, attended Queen Elizabeth Hospital with WPC10296 at about 1:50 pm on 22 November 2018 to make enquiries of Ms X.  PW5 was told by X that, after the applicant had pulled down her underpants, he “continuously poked his penis against the opening of her vagina”^[21]. Under cross-examination, PW5 agreed that the word “penetration” was not used in his record.

The defence case

The applicant’s evidence

16.  The applicant elected to give evidence.  He had been friends with PW2 for 13 years and they had set up a company providing financial services^[22]. He was married but since the birth of his daughter, his wife and the baby seldom slept in the applicant’s flat.  He said that PW2 had introduced the applicant to Ms X, but he was not aware that they were in a relationship.  He understood from that Ms X lived in Tsim Sha Tsui, although he did not know the exact location^[23].

17.  On 21 November 2018, DW2 asked the applicant to invite some friends to a boat party he was hosting.  The applicant asked Ms X and she accepted.  On the boat, he and Ms X drank alcohol at the bow of the boat, in the course of which they became physically intimate, with the applicant holding Ms X’s waist as they kissed.  At one stage, they stood at the bow of the boat, pretending to be characters from the film ‘Titanic’^[24]. Subsequently, they went into the cabin to have hotpot with the other guests.  Ms X was behaving in a drunken way, shouting and running here and there.  At one stage, she said she wanted to jump into the water.  Then her telephone rang and she seemed to calm down.  Having spoken on the telephone for a while, she passed it to the applicant.  After PW2 had declined the invitation to join them, the applicant told PW2 that he would keep an eye on Ms X.  He and Ms X then embraced and kissed each other again^[25].

18.  Eventually, he and Ms X disembarked from the boat.  The applicant said he was unsteady on his feet and Ms X helped him.  They managed to hail a taxi and the applicant gave his home address to the driver.  Ms X asked where that was and the applicant replied, “My home.”  She then leaned back and fell asleep in the taxi, as did the applicant.

19.  When the taxi arrived at Savoy Garden, the driver woke both the applicant and Ms X up.  The applicant paid $500 to the driver, alighted and Ms X followed him without any prompting.  Having walked ahead to the building, with Ms X behind him, they both got into a lift and in due course entered the applicant’s flat.  Once inside the flat, the applicant stripped down to his underpants, laid down on the bed and covered himself with a quilt.  At that time, he thought Ms X was sober and could communicate with him.  She then took out her telephone, played some songs on it and put the telephone next to his ear in order to wake him up.  The applicant and Ms X embraced and kissed on the bed for about 10 seconds.  When Ms X again tried to put her telephone to his ear again, he swept it away and fell asleep.  Sometime after 7 am, Ms X got up and, having put on her shoes which were by the door to the flat, she walked back to the bed and asked: “Nothing has happened between us, right?”  Before the applicant could answer her, she left the flat^[26].

20.  The applicant admitted that he became less inhibited towards women after consuming large amounts of alcohol.  He denied he had been completely naked when Ms X was in the flat, or that he had penetrated her or poked his penis against her private parts^[27].

21.  Under cross-examination, the applicant admitted that he had had the idea of having sexual intercourse with Ms X when they were kissing on the boat.  Once he was in his flat, he wanted to see how things would develop^[28]. He agreed that on seeing Ms X running around the boat and drinking a lot of alcohol, it was obvious to him that she not in control of herself^[29]. He considered that Ms X was not so drunk that she could not consent to sexual intercourse; but he did not expressly ask her about it^[30].

DW2’s evidence

22.  DW2 said that Ms X was obviously “tipsy” and “a little bit crazy”.  He noticed that Ms X was with the applicant during the whole of the boat party and acted intimately with him at the bow of the boat, by embracing and kissing him^[31]. He had taken a video of the two of them.  

23.  Under cross-examination, DW2 agreed that it was obvious to everyone on the boat the Ms X was drunk and behaving in a strange way.  She was talking loudly.  However, he did not see her run about on the boat, nor did he hear her talk of jumping into the sea.  Nor did he see her knocking into things whilst on the boat.

DW3’s evidence

24.  Mr Jacky Tam, who was DW3 at trial, was a sailor in DW2’s employ.  He said there had been about 30 guests at the boat party.  He noticed Ms X and the applicant behaving intimately and kissing each other.  He thought she was very drunk, and doing “crazy acts” such as splashing red wine on the boat.  He also noted that she and the applicant had consumed almost a whole bottle of VSOP cognac.  He paid particular attention to Ms X and the applicant because they were more drunk than the other guests, and she repeatedly said she wanted to jump into the sea.  When Ms X’s telephone rang and she answered it, he saw that she was “suddenly very normal” and she passed the telephone to the applicant who said he would take care of Ms X.  When the two left the boat, DW3 saw that Ms X could walk, although she staggered a little.  She was waiting for the applicant next to the pier.  The applicant then disembarked, and he and Ms X walked hand-in-hand^[32].

25.  In cross-examination, DW3 said his job was to serve the guests at the party, which was “quite a lot of work”.  Nonetheless, he insisted that he could pay attention to what Ms X and the applicant were doing. He agreed that he thought initially Ms X was “out of her mind” but, on seeing her talk on the telephone, he said that she was not so drunk that she did not know what she was doing.  DW3 grabbed onto Ms X’s hands to prevent her from jumping into the sea several times.  He confirmed that Ms X staggered when getting off the boat because she was drunk and he helped her^[33].

Issues at trial

26.  The key issues for the jury were (i) whether there was penetration^[34]; (ii) if there was penetration, whether Ms X consented to sexual intercourse^[35], and (iii) whether the applicant had a mistaken but honest belief as to Ms X’s consent to intercourse^[36].

Grounds of appeal (conviction)

27.  Mr Andrew Bruce SC and Mr Billy Ma, appearing for the applicant, have advanced two perfected grounds of appeal against conviction.

Ground 1 – Inadequate time for preparation for trial

28.  Ground 1 avers that the judge denied the applicant effective legal representation because the new defence team were not given sufficient time to prepare for his trial, thereby depriving the applicant of a fair trial.

29.  On 5 December 2019 (which was a Thursday), the scheduled first day of trial, the prosecution made a complaint to the judge that a legal executive of the solicitors’ firm then engaged by the applicant had offered $200,000 to Ms X’s boyfriend (not PW2) to persuade her not to attend court^[37]. The applicant’s then counsel, Mr David Ma, applied to the court for an adjournment and to re-fix the trial because the firm then acting for the applicant could not properly continue to act for him, and the applicant would need time to engage another firm of solicitors^[38]. At the same time, the prosecution applied to have the applicant’s bail revoked on the basis that the bail condition prohibiting contact with any prosecution witness had been breached^[39]. The judge made clear that he was only prepared to grant a short adjournment but not to re-fix the whole trial because he could not see any difficulty for the applicant to engage another firm of solicitors^[40].  The judge revoked the applicant’s bail and adjourned the case to 9 December 2019 (which was a Monday)^[41].

30.  By 9 December 2019, a new firm had been engaged and Mr YC Yeung of counsel had been instructed to appear for what he said he understood was to be a mention hearing^[42]. Mr David Ma and Mr Patrick Chiu, of counsel, then applied to be discharged, which application the judge granted.  The original firm of solicitors was also discharged^[43]. When Mr Yeung expressed some uncertainty as to whether he was retained to conduct the trial, the judge stated that he had made an order to discharge the original counsel on the basis that Mr Yeung would take up the trial, and hoped that Mr Yeung was “not going back on his words”[44].  Mr Yeung said “No”.  Mr Yeung also made an application for bail on the applicant’s behalf, to enable him to clarify his instructions, but the judge refused the application^[45]. The judge then adjourned the trial until the next day, 10 December 2019.

31.  Mr Bruce’s complaint is that the judge ought to have given reasonable time to allow the new legal team to prepare for trial, when the new solicitors were required to take new instructions from the applicant in custody, since the solicitors’ file from the original firm was not available.  He submitted that two days over a weekend were inadequate for the new legal team to prepare, given the scope of the allegations and the nature of the defence; hence the applicant was denied effective legal representation at trial.

Ground 2 – Apparent bias of the judge

32.  Ground 2 comprises two parts: firstly, a complaint that the judge’s intemperate conduct towards the applicant’s legal team during the trial had given the appearance of bias (Ground 2A); secondly, the judge’s summing-up was unbalanced and apparently partial to the prosecution (Ground 2B).

33.  Ground 2A concerns the judge’s unnecessary criticism of defence counsel and the applicant’s legal team during the trial, which itself has four aspects.  During Ms X’s cross-examination, it is said that the judge criticised the applicant’s counsel: by saying, for example, “If you remember her evidence yesterday you shouldn’t ask this question at all”^[46]; and “It doesn’t make sense your question.  The mind was able to direct her feet to walk, not to give consent”^[47]. Further, he disallowed counsel to ask Ms X to repeat certain evidence again, saying: “That is not the way to cross-examine a witness”^[48]; he told counsel not to ask Ms X about something of which she may not be aware^[49]; and he repeatedly criticised counsel for repeating the witness’s evidence^[50].

34.  Further, in the presence of the jury, the judge improperly hurried Mr Yeung to complete his cross-examination of Ms X within the day^[51]. Her evidence lasted from 10 December to the luncheon adjournment on 12 December 2019.  In the absence of the jury, the judge expressed his concern that he had another trial beginning on 23 December[52]. And he subsequently reassured the jury that the case would finish on schedule after defence counsel had apologised for not having the defence witnesses ready to give evidence[53].

35.  It is alleged that when the applicant was giving evidence, the judge entered the arena by interrupting, questioning or even impeaching the applicant in front of the jury, including asking the applicant whether he was conscious while waiting for the lift^[54]; saying to the applicant “answer the question, please”, then repeating the question twice^[55]; assisting the prosecution to establish its case by asking a question^[56]; and criticising the applicant for avoiding the question^[57].

36.  After the applicant finished giving evidence, and in the absence of the jury, it is said that the judge criticised defence counsel for the failure of the solicitors’ firm to arrange DW2 and DW3 to attend court to give evidence in time, and inappropriately directing counsel to give an explanation to the jury.  Counsel accordingly informed the jury that the two defence witnesses were “out of town” and would return to Hong Kong by flight that very evening^[58]. Although the judge expressly asked the jury not to attribute the failure to call witnesses in time to the applicant when they considered their verdict^[59], it is alleged that letting the jury know of such matter inevitably discredited the reliability of the applicant’s legal team and impeached the applicant’s case.  The judge also questioned DW2, without giving notice to counsel on either side, as to when he was told to attend court, to which DW2 replied that he was told to come to give evidence that day^[60]. This is said to have discredited the applicant’s legal team and impugned DW2’s reliability.  As a result of the applicant’s counsel’s explanation as to why the defence witnesses could not attend court earlier, prosecuting counsel saw fit to cross-examine DW3 so as to elicit that he had in fact been in Hong Kong on 16 December 2019^[61]. Again, it is argued that this unfairly impeached DW3’s credibility and the integrity of the applicant’s legal team.

37.  Mr Bruce submitted that the judge’s comments and questioning were materially damaging to the applicant’s credibility and his case, and effectively amounted to what the Court in HKSAR v Lai Oi Yan^[62] had said was impermissible judicial intervention.

38.  Ground 2B complains that the judge’s summing-up was unbalanced and partial to the prosecution. This ground was further sub-divided into five distinct complaints.  When directing the jury on Ms X’s self-induced intoxication^[63], the judge failed to follow the guidance given in HKSAR v Tang Siu Fung and Another, that “there is nothing unusual about a couple of man and woman having sexual intercourse after both have voluntarily consumed a great deal of alcoholic beverages.  Provided that the intercourse is carried out with the consent of both parties, it is not rape”^[64].

39.  Since one of the key issues was whether there had been penetration, the judge failed to properly analyse and explain to the jury the significance of the inconsistency between Ms X’s evidence and that of PW3.  Instead the judge sought to explain such inconsistency unfairly, in favour of the prosecution, by saying[65]:

“…It has never been the prosecution case that there was any further penetration by the defendant while X was unconscious or asleep. If you accept the evidence of X, what trouble[d] her and caused her concern on 22 November 2018 was not this light single penetration by the defendant’s penis into her vagina while she was conscious. She was afraid and deeply worried that she might be further assaulted by the defendant during the period she lost her consciousness. That is why she went to St Teresa’s Hospital and called the police of 22 November 2018. In other words, she did not focus on whether there was a penetration, as lawyers in a rape case do, but what had happened to her during the time she was unconscious. You may think that the evidence of X can be better understood if read in that light.”

It was submitted that this comment also unfairly raised the possibility that further sexual assaults were committed against Ms X, which was never the prosecution case, and the judge failed to dispel such imputation.

40.  Mr Bruce submitted that the direction given by the judge on Ms X’s previous inconsistent statements in relation to penetration was too general and failed to make plain to the jury that, although it was technically correct to say that her earlier assertions were not evidence, such assertions were evidence of inconsistency; and, since penetration was a live issue, the inconsistency was significant^[66]. In his further directions, the judge told the jury that PW5’s evidence was only relevant to the consistency of X’s evidence with her accounts given to the police previously^[67]. It was argued that this further direction compounded the error, by misleading the jury to think that Ms X’s inconsistent assertions were insignificant, since they were not evidence.

41.  It was contended that the judge was in error when he did not completely analyse other inconsistencies in Ms X’s evidence; for example, whether she closed her legs tightly and pushed the applicant away, and how she was able to make WhatsApp calls and send messages to DW2 in the applicant’s flat.  The argument seemed to suggest that Ms X could have prevented penetration from taking place, and if the jury had been reminded of these features, they might have found a reasonable doubt as to the allegation of penetration.

42.  Mr Bruce also complained that while the judge referred to Ms X’s injuries, he did not give proper directions as to how to deal with such evidence^[68]. It was never the prosecution case that the applicant caused such injuries during a rape.  However, prosecuting counsel in his closing speech had improperly hinted that the applicant had caused the injuries^[69].  Alternatively, it was said that the judge erred in not excluding the evidence of Ms X’s injuries on the basis that the prejudicial effect of such evidence outweighed its probative value.

The respondent’s stance (conviction)

Ground 1 – Inadequate time for preparation for trial

43.  In response to this ground, Mr Andrew Li, on behalf of the respondent, pointed out that newly instructed counsel was able to give a time estimate for the trial, was prepared to take up trial the following day and his only concern was that he had prior court commitments on two mornings during the currency of the trial, which was the context in which counsel had expressed his reservation “whether it was appropriate for me to take up the trial as such”[70]. Subsequently, counsel informed the judge that he would be “instructed according to what I was told last week”^[71]. The original junior counsel, Mr Patrick Chiu, who had obtained full instructions from the former solicitors and the applicant, was retained to ensure the smooth running of the case^[72]. Mr Li submitted that the new defence team was able to cross-examine witnesses effectively and there was nothing to suggest that the fairness of the trial had been compromised.

Ground 2A – the judge’s intemperate conduct

44.  In reply to the ground concerning interventions by the judge, Mr Li argued that, by discouraging the applicant’s counsel from repeating evidence or questions, the judge properly exercised his case management function.  On other occasions, the judge merely reformulated the question so that it became more focused, which counsel then readily adopted^[73].

45.  Mr Li submitted that the judge at no stage put pressure on the applicant’s counsel to terminate his cross-examination of Ms X prematurely.  The judge did say he did not want Ms X to have to come back to give evidence for another day, but in the end adjourned the case having obtained a time estimate from counsel^[74]. It was a proper exercise of case management.

46.  It was contended that the judge did no more than clarify the answers given by the applicant under cross-examination.  In relation to the judge directing counsel to explain to the jury why defence witnesses were not able to come to court in time, Mr Li argued that the judge was dealing with a case management/administrative matter.  In any event, the judge clearly directed the jury not to hold it against the applicant in considering their verdict.  Even if prosecuting counsel cross-examined DW3 on that issue, such cross-examination was short and neither he nor the judge referred to that part of the evidence in their respective closing speech or summing-up.

Ground 2B – unbalanced summing-up

47.  Mr Li answered the complaint concerning the applicant’s reliance on Tang, by pointing out that the jury there had specifically sought assistance on the effects of drink in law, which the Court of Appeal said should have been provided.  The effect of Tang was not to lay down a mandatory direction whenever a rape complainant voluntarily consumed a lot of alcohol.  Mr Li argued that since the main thrust of the defence case was that there was no penetration, the direction on the effect of drink on the issue of consent was insignificant.  In any event, the jury had been given such a direction.  The judge told them, “An adult has the right to consume large quantities of alcohol and then have sexual intercourse by mutual consent”^[75], which was in effect the same as the direction in Tang.

48.  Concerning the direction on previous inconsistent statements, this was the subject of discussion after the summing-up between the judge and the applicant’s counsel, who was content with what had been said^[76]. Mr Li also argued that the judge in fact dispelled any misconception about any further sexual assaults having taken place.

49.  In relation to the evidence on X’s injuries, there had never been any application to exclude such evidence, which had been admitted into evidence by both parties by way of Admitted Fact^[77].  

50.  Reading the whole summing-up as a whole, Mr Li submitted that it was fair and balanced.

Grounds of appeal (sentence)

51.  The judge adopted 5 years’ imprisonment as the starting point, taking into account that the penetration was slight and lasted only one or two seconds.  He noted that “a little force was used”, but observed that the non-use of a condom and taking advantage of a very drunk woman were aggravating features.  Accordingly, he enhanced the sentence to 5 years and 9 months’ imprisonment.  The judge then took into account the applicant’s clear record and positive good character, and reduced the sentence to 5 years and 4 months’ imprisonment^[78].

52.  By Ground 3, Mr Bruce submitted that 5 years and 4 months’ imprisonment was manifestly excessive and the judge had not given sufficient consideration to the circumstances in the case.  He emphasised that penetration was only momentary and the applicant desisted after Ms X expressed unwillingness; that there was no evidence to show the injuries on Ms X were inflicted by the applicant; and that the applicant was of previous good character.  It was submitted that the starting point of 5 years’ imprisonment in R v Billam[79] and Secretary for Justice v Leung Yuet Hung^[80] should have been adopted and, given the applicant’s personal circumstances, the sentence reduced below 5 years’ imprisonment.

Respondent’s position (sentence)

53.  Mr Li submitted that the judge had considered everything the applicant’s counsel had put forward in mitigation when sentencing the applicant.  The judge’s comment that “a little force was used” might have simply referred to the time when Ms X pushed the applicant away after his attempt to pull her underpants down.  Mr Li contended that the judge was well aware that there was no evidence to show that Ms X’s injuries were caused by the applicant.  The judge was entitled to enhance the sentence to 5 years and 9 months’ imprisonment in view of the aggravating features present, and then reduce it for the applicant’s good character.  The eventual sentence of 5 years and 4 months’ imprisonment could not be said to be wrong in principle and/or manifestly excessive.

Discussion

54.  Mr Bruce argued that, although ultimately it caused no discernible effect on the trial, the judge’s insistence on proceeding with insufficient time for the new legal team to prepare, had placed the trial in jeopardy.  He contended that the new defence team had effectively been placed in an impossible position, in which defence counsel had no alternative but to go ahead. 

55.  The problem with this argument is that defence counsel never complained, nor did he ask for further time.  And, as Mr Bruce himself recognised, defence counsel, who is an experienced practitioner, conducted a perfectly competent defence of his client, and a proficient cross-examination of Ms X.  He clearly had full instructions from his client as well as the continuity of the same junior from the previous legal team to assist him.

56.  It should also be remembered that the applicant had by then been remanded in custody; and Ms X was expecting to give evidence imminently as a victim in a sexual case.  A judge would have had to place these matters in the balance when deciding whether or not to adjourn the matter and for how long.  In the event, there never was an application for an adjournment by the applicant’s new counsel and the case proceeded with appropriate expedition according to the time frame the judge had prescribed.  I do not see any reasonably arguable ground of appeal that he should not have done so, or that the fairness of the trial was thereby compromised.

57.  In respect of Ground 2A, I do not regard it as reasonably arguable that any apparent bias was shown by the judge to the defence by his conduct and interventions.  Even taking the judge’s interventions as a whole, they do not come anywhere near the type of conduct which has been impugned by the appellate courts as hostile questioning or improperly entering the arena.  Ms X’s evidence-in-chief took from 2:34 pm to 4:37 pm on 10 December 2019; in all, it took half a day.  Cross-examination began at 10:02 am on 11 December and continued through to 4:54 pm the same day, before resuming on 12 December at 10:02 am and finishing shortly before 1:00 pm.  There were, of course, short breaks during those periods, but cross-examination spanned effectively a day and a half.  Such comparisons between the times a witness takes in examination-in-chief and cross-examination are not in any way definitive, and will necessarily depend on the issues and the behaviour of the witness, as well as any interventions by counsel for the other side or the court.  Nevertheless, having read this cross-examination as a whole, it is not reasonably arguable that counsel was unnecessarily hurried or the cross-examination was somehow curtailed or incomplete.

58.  In relation to Ground 2B, I do not think the complaints under this ground amount to a reasonably arguable ground of appeal that the summing-up was unfair and unbalanced.  The judge’s directions were not incorrect, although the gravamen of this ground is not so much what was said as what was not said. 

59.  I was at one time concerned whether the judge may have left the jury to make something of Ms X’s injuries as somehow corroborative evidence of the rape.  But, on a close reading of the summing-up, the judge merely stated the actual evidence that Ms X did not notice the injuries when she boarded the boat[81]. It should be remembered that there was evidence that Ms X had been behaving “crazily” as a drunken person might at a party on a boat where alcohol is flowing freely, while it was the submission of prosecuting counsel in his closing address to the jury[82]:

“All she can say is that when she boarded the boat, she didn’t have those injuries.

But one might think that these injuries are consistent perhaps with a person being drunk and knocking into things and hurting herself, but so drunk that she didn’t even realise what was happening.”

Clearly, the prosecution were not relying on the injuries as corroborative of a rape.  In any event, the fact of Ms X’s injuries was an Admitted Fact[83] and it is not now open to fresh counsel on appeal to contend that the evidence should never have been admitted, unless it is to be suggested that trial counsel was flagrantly incompetent.  However, in that regard, it may well be that defence counsel at trial wanted the evidence to be adduced in order to explain Ms X’s earlier conduct on board the boat.

60.  I do not regard the other matters under this ground, which I have adverted to in the arguments of the parties, as reasonably arguable.  It is not reasonably arguable that the jury would not have appreciated the various inconsistencies in Ms X’s account.  Leave to appeal against conviction is refused.

61.  On the matter of sentence, there were essentially two aggravating features: first, the taking advantage by the applicant of an obviously drunken women by taking her to his home and having intercourse when she was in no fit state to resist, object or consent; secondly, the absence of a condom.  The ultimate sentence of 5 years and 4 months’ imprisonment, from an initial starting point of 5 years’ imprisonment, bearing in mind those aggravating features, but at the same time the applicant’s clear record, do not amount to a reasonably arguable ground of appeal that the sentence was manifestly excessive and/or wrong in principle.  Accordingly, I also refuse leave to appeal against sentence.

62.  The applicant is advised that he has the right to renew his application for leave to appeal against conviction and/or sentence to the Court of Appeal, but he is also warned that the Court has the power to make an order for the loss of any time which the applicant has spent in custody pending his appeal, if it were to come to the view that there was no justification for the renewal of the application.

[1]  AB, pp 175C-178M.

[2]  AB, pp 178S-180K.

[3]  AB, pp 180N-182J.

[4]  AB, pp 182R-183F.

[5]  AB, pp 183H-184P.

[6]  AB, pp 184Q-186P.

[7]  At [4] of Admitted Facts, AB, p 8.

[8]  AB, pp 188F-189N.

[9]  At [5]-[6] of Admitted Facts, AB, p 8.

[10]  At [1], [8] and [11] of Admitted Facts, AB, pp 8-9.

[11]  At [20] of Admitted Facts, AB, p 10.

[12]  At [9] of Admitted Facts, AB, p 8.

[13]  AB, pp 192G-194F.

[14]  Exhibits D1-D4, AB, pp 154/157.

[15]  Exhibit D3, AB, pp 156; AB, pp 217P-218D.

[16]  Exhibit D4, AB, p 157.

[17]  AB, p 213.

[18]  AB, p 219Q-S.

[19]  AB, p 216C-T.

[20]  AB, pp 265S-266M.

[21]  AB, pp 270P-271G.

[22]  AB, p 281G-S.

[23]  AB, p 285C-I.

[24]  AB, pp 287H-288U.

[25]  AB, pp 288S-289P.

[26]  AB, pp 291F-295K.

[27]  AB, p 296I-N.

[28]  AB, pp 297U-299G.

[29]  AB, p 304A-B.

[30]  AB, p 305B-F.

[31]  AB, pp 312G-313C.

[32]  AB, pp 319L-322H.

[33]  AB, pp 322K-327M.

[34]  AB, p 337K.

[35]  AB, pp 343J-344J; AB, pp 349K-350C.

[36]  AB, p 350D-H.

[37]  AB, pp 160H-161L.

[38]  AB, p 159L-160G.

[39]  AB, pp 161Q-163B.

[40]  AB, p 64E-I.

[41]  AB, pp 166Q-167C.

[42]  AB, p 169H-K.

[43]  AB, p 169D-G, p 170S.

[44]  AB, p 172T.

[45]  AB, pp 171D-173O.

[46]  AB, p 209S-T.

[47]  AB, p 222D.

[48]  AB, p 224O.

[49]  AB, p 235A-B.

[50]  AB, p 235G; p 242K-M.

[51]  AB, pp 232O-R, 236N-237A.

[52]  AB, p 169M-N.

[53]  AB, p 309P-Q.

[54]   AB, p 292I.

[55]   AB, p 302A-C.

[56]   AB, pp 303K-304B.

[57]   AB, p 304H-K.

[58]   AB, pp 307Q-309D.

[59]   AB, p 309Q-T.

[60]   AB, pp 318P-319B.

[61]   AB, pp.324Q-325B.

[62]   HKSAR v Lai On Yan [2016] 3 HKLRD 273, at [51]-[76].

[63]   AB, pp 68C-70H.

[64]   HKSAR v Tang Siu Fung (No 1) [2010] 2 HKLRD 1013, at [45(a)].

[65]  AB, p 78K-S.

[66]   AB, pp 65L-66M.

[67]   AB, p 373E-P.

[68]   AB, pp 29U-30K.

[69]   AB, pp 335T-336A.

[70]   AB, pp 169H-170K.

[71]   AB, p 171J-O.

[72]   AB, p 174C-E.

[73]   AB, pp 221O-222F.

[74]   AB, pp 232L-O, pp 236N-237H.

[75]   AB, p 68H-J.

[76]   AB, pp 371T-373P.

[77]   At [9] of Admitted Facts, AB, p 8.

[78]   AB, pp 85T-86H.

[79]   R v Billam [1986] 82 Cr App R 347.

[80]   Secretary for Justice v Leung Yuet Hung [2014] 3 HKLRD 304.

[81]   AB, p 30C-K.

[82]     AB, pp 335U-336C.

[83]   Admitted Facts, p 8, at [9].