LEE WING ON v. R.

1993, No. 102
(Criminal)

________

HEADNOTE

________

Rape - Leave to cross-examine complainant on her previous sexual

experience - Section 154 Crimes Ordinance Cap. 200 - Meaning of sexual

intercourse - Whether mere statement by the complainant that she had sexual intercourse with the applicant sufficient to prove penetration.

IN THE COURT OF APPEAL

1993, No. 102
(Criminal)

______________

_____________________

JUDGMENT OF THE COURT

_____________________

Wong, J.:

1. On 18 February, 1994 we allowed the appeal, quashed the conviction and set aside the sentence holding that the conviction was unsafe and unsatisfactory. We now give our reasons.

2. The applicant was convicted after trial of one count of rape before Leong J. sitting with a jury. He was sentenced to 5 years imprisonment and sought leave to appeal against both conviction and sentence. His co-accused was convicted of aiding and abetting rape and was sentenced to 6 years imprisonment. He is not before us.

3. The particulars of offence alleged against the applicant were that on 22 March 1992 in Cheung Chau, Hong Kong, he raped Chiu Ka-yan, a girl aged thirteen and a half years.

4. The evidence in support of the charge, which came virtually from the complainant, was uncorroborated. It was her testimony that in the afternoon of 21 March 1992, a Saturday, she received a telephone call from a female friend and as a result she went to the Shamshuipo ferry pier. There she met Lee Suet-man, Wong Pui-shan, both her schoolmates, Patrick and Tai How, the applicant. She had known the applicant for about a week or two. They went to have tea in a Chinese restaurant where they were joined by Ah Ho, the co-accused and Mei Mei. They took a walk in a nearby park after tea and whilst there the applicant asked her to be his girlfriend and she refused. She wanted to leave with her two schoolmates but the applicant grabbed her hand to prevent her from leaving. She became frightened and cried. After her schoolmates had left, the applicant and Ah Ho brought her to a flat in Nam Cheong Street, Shamshuipo. There was no allegation that any indecency took place in the flat. They stayed in the flat for some hours. Later that night, the complainant, the applicant, Ah Ho, Mei Mei, Ah Fung and Patrick took a ferry to Cheung Chau, arriving there sometime after 9 p.m. She was persuaded and not threatened to go because it was the applicant's birthday and Patrick told her not to spoil the party.

5. Having rented a villa and while the others were having a barbecue outside, the complainant went to sleep because she was tired. At some stage, the applicant came to the bed where she was sleeping and lay down beside her. She tried to push him away but he refused to go. She continued sleeping. Sometime later, she saw Ah Ho, the co-accused holding a knife in his hand and threatened her that if she did not agree to have sexual intercourse with the applicant she would either be chopped or raped in turn by all men in the group. She chose to have sexual intercourse with the applicant because she was frightened and sexual intercourse with the applicant took place as a result. In examination-in-chief she said that the applicant was present when Ah Ho made the threat with the knife. Under cross-examination, she however agreed with counsel that it was possible that the applicant was not present when the threat was made.

6. The next morning, she went out with Ah Fung and made a telephone call to Wong Pui-shan to tell her where she was and not to worry about her. She learned from Miss Wong that her parents had reported her disappearance to the police. But she did not make any complaint to her friend that she had been raped. The party returned to the flat in Nam Cheong Street later that day. She stayed there with the others and shared the same bed with the applicant for the next two days until 24 March when the police came and took her, Ah Ho and the two other girls to Shamshuipo Police Station. Again, there was no allegation of any indecency or sexual interference during this period. The applicant was not in the flat when the police came and he was subsequently apprehended in Yuen Long. During her stay in the flat she spoke to her aunt on the telephone and arranged to meet her mother on 23 March. She did not go to the arranged meeting because the applicant threatened to chop her if she did.

7. The complainant was examined by a forensic pathologist on 26 March 1992. The medical findings were that there were healed tears of her hymen in several positions indicating penetration and that she was not a virgin. The judge directed the jury that this was not evidence that the healed tears were caused by penetration by the applicant because of lack of evidence regarding the age of the tears.

8. Neither the applicant nor his co-accused gave evidence. But the co-accused called three witnesses and their evidence was that during the night in Cheung Chau there was no threat uttered by the co-accused and the applicant did not rape the complainant. It was nothing other than a happy occasion. The defence of the applicant during the trial was that sexual intercourse did not take place between him and the complainant.

9. The first ground of appeal was that the trial judge erred in law in disallowing counsel for the applicant to cross-examine the complainant about her previous sexual experience and the refusal was unfair to the applicant as the jury might draw the inference that the fact that the complainant was not a virgin was the result of having sexual intercourse with the applicant. The error was aggravated by the judge's subsequent direction to the jury that the medical evidence of the healed tears of the hymen might be evidence of sexual contact. Mr. Wan, who appeared for the applicant both here and below, informed us that in her witness statement the complainant admitted to having had sexual intercourse with another man about one week before 22 March, 1992. It was this piece of information upon which he was seeking to cross-examine the complainant. His aim was not to attack the credibility of the complainant, but to explain to the jury why she was not a virgin and to establish that the fact that she was not a virgin had nothing to do with the applicant.

10. Whether leave should be granted or refused to cross-examine the complainant in a charge of rape on her previous sexual experience is governed by section 154 of the Crimes Ordinance, Cap. 200. This section, which is identical with section 2 of the Sexual Offences (Amendment) Act 1976, reads :

" (1) If at a trial before the High Court any person is for the time being charged with a rape offence or indecent assault to which he pleads not guilty (whether or not at the trial he, or any other person, is for the time being charged with an offence which is not a rape offence or indecent assault), then, except with the leave of the judge, no evidence and no question in cross-examination shall be adduced or asked at the trial, by or on behalf of any defendant at the trial, about any sexual experience of a complainant with a person other than that defendant.

(2) The judge shall not give leave in pursuance of subsection (1) for any evidence or question except on an application made to him in the absence of the jury by or on behalf of a defendant; and on such an application the judge shall give leave if and only if he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked."

The test is relevance. If the question to be asked is not relevant that is the end of the matter. If the question is on the other hand relevant, the judge will consider whether to allow it or not within the terms of the section which limits the admissibility of relevant evidence. In this connection, the trial judge does not have a "discretion" in the matter - he has to make a judgment as to whether he is satisfied or not in the terms of the section. But having reached his judgment on the particular facts, he has no discretion to exclude the evidence, and the questions have to be allowed - R. v. Viola, (1982) 75 Cr. App. R. 125. Two judgments will illustrate the issues which we examine. The first one is to be found in R. v. Lawrence [1977] Crim. L.R. 492 where May J. (as he then was) had this to say :

"The important part of the statute which I think needs construction are the words 'if and only if he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked.' And in my judgment, before a judge is satisfied or may be said to be satisfied that to refuse to allow a particular question or a series of questions in cross-examination would be unfair to a defendant he must take the view that it is more likely than not that the particular question or line of cross-examination, if allowed, might reasonably lead the jury, properly directed in the summing-up, to take a different view of the complainant's evidence from that which they might take if the question or series of questions was or were not allowed."

The second judgment is that of Lord Lane, C.J. in R. v. Cox, (1987) 84 Cr. App. R. 132. He said:

"..... if the questions are relevant to an issue in the trial in the light of the way the case is being run, for instance, relevant to the issue of consent, as opposed merely to credit, they are likely to be admitted, because to exclude a relevant question on an issue in the trial as the trial is being run will usually mean that the jury are being prevented from hearing something which, if they did hear it, might cause them to change their minds about the evidence given by the complainant."

11. The defence raised by the applicant was not consent but that no sexual intercourse had taken place. Although the judge correctly directed the jury on corroboration, the absence of evidence of the age of the healed tears of the hymen could have left the jury to think that they might have been caused by penetration by the applicant despite the fact that the judge specifically told the jury that there was no evidence to show that they had. It would not be surprising if the jury had asked themselves why there were these healed tears; were they old healed tears or recently healed tears and how long it would take tears to heal. If the healed tears were not caused by penetration of the applicant, there was no explanation for them bearing in mind that the complainant was only a thirteen and a half years old girl. The rape was said to take place in the early hours of 22 March and the complainant was not examined by the forensic pathologist until 26 March, some four days later. Could the tears have healed in four days? Unfortunately, there was no evidence one way or the other to help the jury answer these questions.

12. Having regard to the circumstances, we are of the opinion that the question counsel for the defence sought to ask in cross-examination was relevant and was of sufficient importance in that it might reasonably lead the jury to take a different view of the complainant's evidence. The application should have been allowed.

13. The first part of the second ground of appeal has caused us anxiety and we think we should deal with it although we could have allowed the appeal on the first ground. It reads :

"The Learned Trial Judge erred in ruling that there was a case to answer for the Applicant where there was no or no sufficient evidence in proving penetration."

There was a submission of no case to answer by defence counsel at the close of prosecution evidence on the ground that there was no evidence to prove penetration. The submission was overruled. All the complainant said in her evidence was that she had "sexual intercourse" with the applicant as a result of the threat by the co-accused and she did not give any details or description of the sexual act complained of. This is how the judge dealt with the issue. He said:

"You will note that CHIU Ka-yan did not say how the sexual intercourse with the 2nd defendant took place. She did not explain what she meant by sexual intercourse. There is no direct evidence as to what was done by the 2nd defendant after the removal of clothes except CHIU Ka-yan's words that sexual intercourse took place for five minutes. However, you may think that having regard to her evidence, if you accept it, that is, that sexual intercourse took place after the 2nd defendant took off his trousers, and she had chosen to have intercourse with the 2nd defendant rather than to be raped by the group of men or chopped up by the 1st defendant, and having regard to her being a Form 2 student in Hong Kong, her reference to sexual intercourse with the 2nd defendant must have meant that there was some penetration by the 2nd defendant's sexual organ into hers. Whether you come to this conclusion or not is a matter entirely for you."

14. The judge correctly told the jury that there were three elements to the offence of rape and sexual intercourse was one of them. He also correctly told the jury that it was not necessary to prove full sexual intercourse. The slightest penetration by the man's sexual organ into the woman's vagina was sufficient proof of sexual intercourse. He went on to say this:

"Thus if a man inserted his penis into the vagina of the woman, that is considered to be sexual intercourse."

The only question is whether there was any evidence before the jury for them to draw the inference that sexual intercourse in the legal sense of the term had taken place. It has long been established that sexual intercourse is deemed complete upon proof of penetration only. It is not necessary to prove the emission of seed. Penetration, however slight, is an essential element of the offence and is a question of fact and not of law which must be proved by evidence from which the necessary inference can be drawn. A thirteen and a half years old girl who was a Form 2 student and had previous sexual experience might know what sexual intercourse was. But it is what the jury understood that is of real significance and not what the complainant knew.

15. In our judgment, the evidence in this case, having regard to the particular circumstances, falls short of what is required to prove beyond reasonable doubt that sexual intercourse involving penetration had taken place between the complainant and the applicant and the judge should have so ruled.

16. In view of the conclusions we have reached, it is not necessary for us to comment on the other grounds of appeal. For the reasons we have given, the conviction cannot be regarded as safe and satisfactory and the appeal succeeds.