HKSAR v. LAI SHE HUNG

CACC 46/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 46 OF 2005

(ON APPEAL FROM HCCC NO. 184 of 2004)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Introduction

1.  On 13 January 2005, the applicant, aged 49, was convicted of rape (count 3), following a trial in the Court of First Instance before Deputy Judge Carlson and a jury.  The applicant was acquitted on the same indictment of false imprisonment (count 1) and rape (count 2).  He did not give evidence at trial but his case was presented on the basis that there was one act of sexual intercourse to which the complainant had consented.  Leave is now sought to appeal against conviction.

2.  All the offences were alleged to have occurred on 18 August 2003 in a 3^rd floor flat in Mongkok.  The complainant was the same in each count and was aged 20 at the material time. 

1^st ground of appeal – inconsistency of verdicts

3.  It is unnecessary to go into much of the factual detail in the case in the light of the 1^st and principal ground of appeal raised on the applicant’s behalf by Ms Charlotte Draycott who did not appear in the court below.  This amounts to an allegation that inconsistent verdicts were reached by the jury in that there was no logical basis for any distinction being drawn by the jury between the evidence presented on count 3 on which they convicted and counts 1 and 2 on which they acquitted. 

4.  The particulars of the 1^st ground of appeal, in relation to rapes that were allegedly committed at some time around 1:00 a.m. (count 2) and at about 6:00 a.m. (count 3), illustrate by reference to the transcript pagination of the complainant’s evidence the point being made on inconsistency, namely, that every allegation of violent conduct towards her preceded the first of the alleged rapes.  These were set out in the 1^st ground as follows:

“	A.	The complainant’s evidence in relation to the first two charges, of which the defendant was acquitted, was as follows (see summing up p. 29G-31H).  It was alleged that:
	i)	the defendant dragged her back into her flat as she attempted to leave, pulling her hair and hitting her (p. 250);
	ii)	there followed a fight with the defendant and the complainant hitting each other and the complainant shouting for help (pp. 250-251);
	iii)	the defendant continued to hit the complainant such that she suffered injury to her lip (p. 251);
	iv)	the defendant imprisoned the complainant in the flat overnight despite her pleas to leave (pp. 258-260);
	v)	the defendant forcibly removed the complainant’s clothing and ordered her to perform oral sex upon him (p. 258);
	vi)	the complainant did as he demanded for fear of being further assaulted (p. 258);
	vii)	the defendant then raped the complainant as she hit him and shouted for help (p. 259); [and]
	viii)	the defendant further intimidated the complainant by a show of his prowess with a chopper, inflicting injuries to his own abdomen (p. 259).
	B.	This evidence was supported by injuries to both parties and the fact that intercourse had taken place which the defendant claimed in interview was consensual.”

This ground continued with the following observations:

“	C.	The complainant’s evidence (p. 260) in relation to the third charge, of which the defendant was [convicted], is set out at pp. 31P-32E of the summing up.  She alleged that after the incidents related at ‘A’ above, the defendant chatted to her through the night and then at 6 am, he took off her clothes and raped her again despite her oral protest.  There was no separate independent evidence to support the complainant in relation to this charge.
	D.	It is difficult, if not impossible, in the circumstances, to follow the jury’s reasoning when they disbelieved the complainant in relation to Counts 1 and 2, which formed the gravamen of her complaint, but yet relied on the same witness in relation to Count 3.”

5.  In fact, there were several other important features of the complainant’s evidence to which reference might have been made if Ms Draycott had not only concentrated, as she was perfectly entitled to do in order to make her point, on the episodes involving physical violence in the complainant’s account.  We need only refer to three of them.  Firstly, on 17 August 2003, just under 24 hours before the time material to the first alleged rape, the complainant telephoned the applicant at 2:30 a.m.  The call is recorded as having lasted 35 minutes.  Secondly, on 18 August 2003, in the company of two other friends as well as the applicant and before any sexual activity took place at the flat, the complainant consumed beer and ketamine and later played finger-guessing games and dice accompanied by the consumption of more beer.  Thirdly, at about the time when the violence preceding the 1^st rape was alleged to have occurred, the complainant telephoned one of the men who had earlier been in the flat, ‘Yip Chai’, and left a message for him.  When he called back, she seemed to be asking him to go out to have fun.  It was sensibly conceded in these proceedings by Ms Draycott that, in fact, the violence which undoubtedly occurred at some stage, the result of which is graphically depicted in the photographs, must have been later on or the conversation with Yip Chai would make no sense. If she was injured, in other words, the complainant would hardly be looking to go out for fun with Yip Chai.  In any event, this evidence was dealt with by the judge in these terms:

“He [Yip Chai] produces telephone records.  That is Exhibit 79, members of the jury.  You have got it.  I am not going to repeat it now.  ‘I made these calls’, and then they are listed, and the really important one, you may think, is one at one minute and 29 seconds after 1 o’clock, a 94-second telephone call – just over a minute-and-a-half – and you may think that this is perhaps the high point of the defence case.  It happened when he was at home, ‘and she asked me to return and to go out and have fun.’

Now, this is about the time, members of the jury – and I reminded you of this when I was reminding you of her evidence – that she says she was being beaten by the defendant, and here we are, according to Yip Chai, if you accept his evidence, she is telling him that she wants him to return and to go to have some fun.

Then he is cross-examined by [defence counsel] who immediately picks up on this and he tells [counsel]:

‘Well, she seemed in a good mood then.  She sounded like she wanted me to go out and have fun with her.  She appeared like she really wanted to have fun.  She did not mention she had been raped or beaten or attacked.’

So this is important evidence which you may think assists the defendant. And then [counsel] asks, ‘Nor in the previous two calls had she mentioned anything adverse happening to her’ and Yip Chai agrees with that suggestion …

So that is important evidence which you will want to deliberate about, members of the jury.

Then he gave us some evidence about what time he left the flat, about 12.15 am, so that helps you on the timings and I reminded you of this yesterday.”  (Appeal bundle p. 45)

6.  Ultimately, what this evidence may boil down to, is that it provides another illustration amongst several that the complainant’s version, here concerned with the timing of events, was very considerably inaccurate.  Her own account had been that the violence began soon after the others had left the flat.

7.  We have of course sought the assistance of Mr Saw SC, on the respondent’s behalf, to see whether he could shed light on the complaint which is raised by providing some justification for an apparently inexplicable inconsistency in the verdicts.  Mr Saw helpfully took us to some of the leading jurisprudence on the subject which is summarised in Archbold 2005 at para. 7-70 and he referred us to a number of authorities from this and other jurisdictions.  In particular, he reminded us of Lord Devlin’s formula which was cited in R v Durante [1972] 56 Cr App R 708 at 714 and summarised by Edmund Davies LJ in these words:

“We do not know whether the Court of Appeal has ever previously formally adopted the view expressed there by Devlin J, as he then was, that the burden is upon the appellant to show that verdicts upon 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 of that proposition and adopt it.”

8.  More recently, as Mr Saw pointed out, the High Court of Australia have held in R v MacKenzie [1996] 90 A Crim R 468 (headnote 5) that:

“Appellate courts should not be too ready to conclude that because a guilty verdict cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the guilty verdict.  Nevertheless where the different verdicts represent an affront to logic and common sense it strongly suggests a compromise of the jury’s duty.”

9.  In the present case, there was, to put no finer point on it, no single piece of evidence which was capable of providing a sensible explanation for the jury convicting on count 3 when they went on to acquit on both other counts, although Mr Saw did suggest that perhaps the jury had felt unable to rely on the complainant’s evidence at a stage when she would plainly have been under the combined influence of alcohol and ketamine whereas later, when she had regained her senses, they may have felt confident in placing reliance on what she had to say.  However, this is not, with respect, a likely scenario on the evidence because it was never suggested by the complainant, or by the applicant in his interviews, that the complainant was under the influence of drugs when either act of sexual intercourse took place.  Indeed, it was common ground, both from her own testimony and his statement, that she was sober and clear-headed at the time of the 1^st act of sexual intercourse, and it is worth emphasising also that it was common ground that the 1^st act of sexual intercourse did take place.  The fact remains that by acquitting the applicant on the 1^st rape, the complainant’s account in the present circumstances had been utterly discredited.

10.  Our concern about the apparent inconsistency in the verdicts was something which the judge, in a summing up of paramount fairness and clarity, had anticipated and had sought to avoid with the following directions:

“… as there are three counts, members of the jury, when you come to return your verdicts, you will be asked to return three quite separate verdicts and it follows, does it not – you would appreciate this – in order to do that you must give separate consideration to each count.

In the course of my summing-up and as we go along I am going to assist you as to what evidence relates to what count.  Although, as you will appreciate – and I am sure you have appreciated this already – there is a considerable overlap in the evidence as it affects each of these three counts.

May I also say this, that – and this is very much a matter for you, members of the jury – technically it is open to you to return quite different verdicts on these three counts.  You could say, for instance, not guilty to all three.  If you were satisfied so that you were sure you would say guilty to all three, if you wanted to, or guilty to one count, not guilty to the other two, or you could say guilty to two counts and not guilty to one count.

All permutations are, as a matter of law, available to you.  You decide in giving these three counts your separate consideration.  But you may think – and again this is entirely a matter for you – that as the case has been presented to you on the issues that are laid before you, and where the central issue in the case is one of consent – ‘Did this lady consent to what happened or did she not?  Did she consent to remain in the flat?  Did she or did she not consent to have sex with the defendant?’ – then, in practice, you may think – and it is entirely a matter for you – that these three counts stand or fall together; guilty to all or not guilty to all.

But that having been said and my having made that observation, I want to stress again that this is entirely for you to decide and what I am saying to you is that a complete range of possible verdicts is open and available to you and you decide that on the evidence as you find it.”  (Appeal bundle pp. 5-6) [Emphasis added]

2^nd ground of appeal – jury’s confusion over the verdicts

11.  Whether or not the obvious wisdom of these directions fell on deaf ears because they were not fully comprehended by the jury is difficult to say but Ms Draycott, in a 2^nd ground of appeal, submitted that the confusion at the time the verdicts were taken was such that it can only add to a sense of unease about the guilty verdict on count 3.  What seems plain, whatever may have been the reason for it, is that this particular jury had the greatest difficulty in following explicit directions which had been given to them about the nature of majority verdicts, supplemented, as these directions were, by a written form setting out the questions they would be asked at the time they returned their verdicts. 

12.  The following passages record what happened at 4:46 p.m. after the jury returned to court, ostensibly to return their verdicts.  The exchanges between the judge, the court clerk and the foreman of the jury are interspersed with the unhelpful remarks (although they were not intended to be) of trial counsel for the defence which, as Mr Saw rightly observed, only added to the confusion.  The transcript reads as follows:

“	CLERK:	May the foreman please stand.  On the 1st count of false imprisonment against the accused, Lai She-hung, have you reached your verdict upon which at least five of you have agreed?
	FOREMAN:	No.
	COURT:	Very well, let’s go to the next count.
		Members of the jury, have you reached a verdict on any count upon which at least …
	FOREMAN:	I’m sorry, maybe I misunderstand …
	COURT:	Yes.
	FOREMAN:	… the question, so …
	COURT:	Have you reached a verdict on the 1st count of false imprisonment upon which at least five of you are agreed?
	FOREMAN:	No.
	COURT:	Very well.  Have you reached a verdict …
	DEFENCE COUNSEL:	Well, I’m sorry, my Lord.
	COURT:	Yes.
	DEFENCE COUNSEL:	I heard some of the jurors saying ‘Yes’.
	COURT:	Ah.  Well …
	DEFENCE COUNSEL:	But I - - this is why we have this form, you see.
	COURT:	Yes, of course.
	FOREMAN:	So, in fact, the question is like that, ‘at least five of you have agreed’…
	COURT:	Agreed, yes.
	FOREMAN:	… so my answer is ‘No’, not more than five persons have agreed.
	COURT:	But …
	DEFENCE COUNSEL:	Ah, it’s the ‘at least’ which is …
	COURT:	Oh, yes, so …
	FOREMAN:	Because it use ‘at least’.
	DEFENCE COUNSEL:	Yes …
	COURT:	Yes.
	DEFENCE COUNSEL:	… the juror is right.
	FOREMAN:	This is grammar.  You use …
	DEFENCE COUNSEL:	Yes.
	FOREMAN:	… ‘at least five of you have agreed’.
	DEFENCE COUNSEL:	He’s right.
	COURT:	Yes.
	FOREMAN:	I’m right I think.
	COURT:	Well, I don’t know about that …
	DEFENCE COUNSEL:	Yes, Yes
	COURT:	… but …
	DEFENCE COUNSEL:	Five or more.
	COURT:	… have at least five of you agreed on a verdict in respect of the 1st count?
	DEFENCE COUNSEL:	My Lord, sorry, with great respect …
	COURT:	Yes.
	DEFENCE COUNSEL:	… and don’t think I’m being in any way …
	COURT:	No, no, of course not.
	DEFENCE COUNSEL:	In fact, I’m trying to help because …
	COURT:	Yes, I know you are.
	DEFENCE COUNSEL:	Yes.  Shouldn’t it be – I’ve not noticed this – shouldn’t it be ‘five or more of you have agreed’?
	COURT:	Well, we can put it in that way.
	DEFENCE COUNSEL:	Because I think that the jury foreman regards ‘at least five’ meaning six and I think he’s possibly, on one view of the English …
	COURT:	Well, all right.
	DEFENCE COUNSEL:	… language.
	COURT:	Have you reached a verdict upon which five or more of you …
	DEFENCE COUNSEL:	Yes.
	COURT:	… are agreed?
	FOREMAN:	No.
	DEFENCE COUNSEL:	I apologise, my Lord.  I’m sorry.
	COURT:	Very well.  That’s all right.
		Have you reached any verdicts on this indictment upon which at least five or more of you are agreed, members of the jury?
	FOREMAN:	You mean count no. 1?
	COURT:	Well, no, any count.  You’ve told us that you haven’t reached a verdict upon which five or more of you are agreed on count 1 and I am just enquiring of you whether you reached any verdicts in respect of counts 2 or 3 now?
	FOREMAN:	Yes.
	COURT:	You have, have you?
	FOREMAN:	Yes.
	COURT:	Very well.  Well, let’s put the question in respect of the 2nd count then, on count 2.
	CLERK:	On the 2nd count of rape against the accused, Lai She-hung, have you reached a verdict upon which five of you have agreed to?
	DEFENCE COUNSEL:	Or more of you.
	CLERK:	Or more.
	COURT:	Five or more.
	CLERK:	Five or more of you have agreed to?
	FOREMAN:	The answer is still no.
	DEFENCE COUNSEL:	Right.
	FOREMAN:	That is not more than - - five or more of us have agreed …
	COURT:	I see.
	FOREMAN:	… the answer is no.
	COURT:	And is that the same answer in respect of the 3rd count?
	FOREMAN:	No.
	COURT:	You haven’t reached a verdict upon which …
	FOREMAN:	For the 3rd count, our answer is five or more of us have agreed.
	COURT:	I see.  Very well.  On the 3rd count then.
	CLERK:	Okay.  On the 3rd count of rape against the accused, Lai She-hung, have you reached your verdict upon which at least or more of five of you have agreed to?
	FOREMAN:	Yes.
	CLERK:	Is the verdict unanimous?
	FOREMAN:	No.
	CLERK:	By what majority have you arrived at the verdict?
	FOREMAN:	Six to one.
	CLERK:	What’s the verdict?
	FOREMAN:	Guilty.
	COURT:	Very well.  Members of the jury, I’m going to ask you now to return and continue your deliberations in respect of the first two counts.  Is there any assistance that I might be able to give you in respect of those two counts, on either the law or to remind you of some of the evidence?
	FOREMAN:	Well, my Lord …
	COURT:	Yes.
	FOREMAN:	… I think the question itself has some sort of problem.  If you don’t mind, maybe we can tell you the counts ‘yes’ or ‘no’ so definitely there will not be an ambiguous answer.
	COURT:	Yes.
	FOREMAN:	Because the question structure is like that.
	COURT:	Oh, it’s the questions?
	DEFENCE COUNSEL:	I think that’s …
	COURT:	I see.
	FOREMAN:	If they - - in order to eliminate any ambiguity, if, my Lord, you may allow us to let you know about how many number of ‘yes’ and how many number of ‘no’ …
	COURT:	Yes.
	FOREMAN:	… then definitely it will be …
	COURT:	All right. …
	FOREMAN:	… the answer.
	COURT:	Don’t tell me what your verdict is but are you unanimous on the 1st count?
	FOREMAN:	No.
	COURT:	All right.  Well, in what way …
	FOREMAN:	Proportional.
	COURT:	… are you split on the 1st count?
	FOREMAN:	One to six.
	COURT:	One to six.
	FOREMAN:	One ‘yes’ and six ‘no’.
	COURT:	All right, well, I can accept a verdict of six to one.  Can you tell me your verdict?  Is it guilty or not guilty on the 1st count?
	FOREMAN:	Not guilty.
	COURT:	Not guilty.  By a majority of six to one?  Very well.  Now, in respect of the 2nd count, to continue doing it in your way, are you unanimous?
	FOREMAN:	No.
	COURT:	And in what way are you split?
	FOREMAN:	Three to four.
	COURT:	Three to four.  Well, that …
	FOREMAN:	Three ‘yes’ and four ‘no’.
	COURT:	Well, no …
	DEFENCE COUNSEL:	No, no, no.
	COURT:	… that is not a verdict that I can accept, and so what I’m going to do, in those circumstances, is to invite you to continue your deliberations to see if you can reach a verdict in respect of that.
		Now, is there any assistance that I can give you in respect of that 2nd count?
	FOREMAN:	I think for the members of jury we are quite - - we have decided the verdict.  If you may ask me ‘guilty’ or ‘not guilty’ then I give you the answer.
	DEFENCE COUNSEL:	No.
	COURT:	Well, you see, I can’t, because you’ve told me that you’re split 3:4 so that is not a verdict that I can accept either way.
	FOREMAN:	Mm’m.
	COURT:	It either has to be unanimous, 5:2, or 6:1, so that is the - - and that is either guilty or not guilty, but that anything less than that is not a verdict that I can accept.  So in respect of that count, I must invite you to continue your deliberations.
	FOREMAN:	I understand, yes.
	COURT:	All right.
	FOREMAN:	Well, if we can have another retirement …
	COURT:	Yes, of course.
	FOREMAN:	… for the members, I think we can discuss amongst ourselves …
	COURT:	Very well.  Very well.
	FOREMAN:	… so that better – maybe not a better but maybe a more suitable …
	COURT:	Of course.
	FOREMAN:	… answer can be given to the court.
	COURT:	Well, it’s not a question of being suitable.  You appreciate that …
	FOREMAN:	What I mean is our answer will be in line with the - - so-called the procedure that …
	COURT:	Well …
	FOREMAN:	… you are looking for.
	COURT:	… you go and retire and further consider the matter, if you would.
	FOREMAN:	Okay.
	COURT:	Thank you very much indeed.  And take as long as you need.
	FOREMAN:	Okay.
	COURT:	Thank you.  Very well.” (Appeal bundle pp. 59-65)

13..  The jury retired again at 4:55 p.m. and eventually returned to court at 7:21 p.m. when they acquitted the applicant by six to one on the first rape, the subject of count 2.

14.  On the following day, when the judge turned to the difficult task of sentencing in the circumstances which had arisen, he alluded to the problem in these terms:

“My task is not an easy one, having regard to the jury’s verdicts which may have to be reviewed in another court.  I had suggested to them in the course of my summing-up that having regard to the way that the matter had been presented to them, that these three counts stood or fell together, although I had also told them that any permutation of verdicts was open to them as a matter of law and they have clearly availed themselves of that option by acquitting you on the first two counts and convicting you on the 2^nd count of rape, Count 3 in the indictment.

These verdicts do, in my judgment, remove much, if not all, of the serious violence alleged against you.  I accept that the violence complained of preceded the first rape.  I am not going to attempt to second guess what has motivated these verdicts, save to say that the jury must not have been sure of the complainant’s evidence up to the conclusion of the first rape at about 1 am or 1.30 am as I followed the evidence.

It is also fair to say that they must have paid serious attention to the evidence of the man who has been referred to as Yip Chai in the trial, who told them that he had telephoned the complainant just after 1 am when this violence was supposedly being meted out to her, when she gave him the distinct impression on the telephone that all was well and she invited him to return and to go out to have some fun.” (Appeal bundle p. 68)

Conclusion

15.  Set against an evidential background where the jury acquitted on the first allegation of rape which was said to have been preceded by a series of violent or intimidatory acts, this left in our opinion no logical or reasonable basis for a conviction on the later rape.  Whilst it is in no way determinative of the grounds raised in this application, we are fortified in this view by the knowledge that the trial judge, having seen and heard all the evidence, plainly felt the two counts of rape stood or fell together. 

16.  The circumstances in which the verdicts were recorded have only added to our concern about the conviction.  Accordingly, we have concluded that the conviction on count 3 is unsafe and cannot be permitted to stand.

17.  We shall grant leave and, treating the hearing as the appeal, we allow the appeal and quash the conviction.