HKSAR v. KHAN ARSHED

CACC 533/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 533 OF 2001

(ON APPEAL FROM HCCC 109 OF 2001)

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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 9 November 2001, following a trial in the Court of First Instance before Deputy Judge McCoy, SC, and a jury, the Applicant, aged 26, was convicted on two counts of rape. An overall sentence of seven and a half years' imprisonment was imposed. The Applicant originally applied for leave to appeal against conviction and sentence. However, the application in regard to sentence was abandoned and has been dismissed.

2. At the conclusion of the hearing on 19 August 2003, we dismissed the application relating to conviction. We now give our reasons for so doing.

Prosecution's case

3. The two counts of rape were alleged to have occurred on 31 December 2000 inside a small hotel in Yaumatei where hourly rates for rooms were available. The same woman ("the complainant") was named in Counts 1 and 2 as the alleged victim of rape. She was a Filipino domestic helper aged 32.

4. The prosecution's case depended entirely upon the complainant's account. She testified that the Applicant, whom she had not previously met, began to call her on the telephone. He was begging for financial help. Eventually, she agreed to meet him at an MTR station. When they met, the Applicant handed his passport to her together with his permanent identity card and a bank statement with his address on it. The complainant was struck by the desperate state in which the Applicant said he found himself and she agreed to try to find him the assistance he needed.

5. In the event, not surprisingly, the complainant was unable to find anyone who was prepared to loan money to someone unknown to them. She informed the Applicant by telephone of the situation and of the fact that she had no money of her own to lend him. Nevertheless, according to the complainant, the Applicant continued to call her. This reached a point where she had to ask him to stop doing so. The Applicant not only refused this request but also required the documents he had given the complainant to be given back to him in person by her. The Applicant continued to call the complainant on many occasions.

6. On 31 December 2000, the Applicant indicated that he wanted the immediate return of the documents. The complainant eventually agreed to go to a pre-arranged exit at Yaumatei MTR. On meeting the Applicant at about 3 p.m., he told her that he wanted to talk to her in private and asked her to follow him to a friend's place in a building nearby. It was then that the complainant was taken to the hotel room. When she saw that almost the only thing in the room was a bed, she realised that she had been tricked. There was also a television which was on full volume. The Applicant locked the door.

7. The Applicant's attitude then completely changed. He grabbed the complainant's handbag and threw it away. He asked her why she would not talk to him anymore. He slapped her and there was a struggle. The complainant ended up lying on the bed with the Applicant sitting on her chest. He kept slapping her and asking her why she did not want to talk to him anymore. He removed his clothes whilst he was sitting on top of the complainant. He then took off the complainant's clothing, grabbed her breast and forcibly raped her while the complainant was asking him to stop.

8. After the Applicant had finished, the complainant lay on the bed unable to move because of the shock and emotion she was experiencing. Later, she tried to stand up. She struck the Applicant with a pillow and the Applicant then slapped her. The complainant used the pillow to cover her face. The Applicant pushed her down onto the bed. The complainant asked the Applicant why he had done that. There was no explanation from the Applicant and the complainant called him a "fucking bullshit". Thereupon, the Applicant lay on top of the complainant. He grabbed her throat with one hand and opened her legs with the other, and raped her again. The complainant said that no more than thirty minutes had passed between the two rapes.

9. After completing the second act of rape, the Applicant embraced the complainant saying that he was sorry. The complainant did not reply. At some stage after that, the Applicant insisted that the complainant should buy him a mobile telephone. The complainant agreed to do this as she was afraid that the Applicant would become enraged if she refused.

10. Later, after both the Applicant and the complainant had taken a shower, the Applicant told the complainant to follow him or he would tell her employer what had happened. The complainant described herself at that stage as having been in a state of shock and behaving as if she was in a dream. They went to a shop in Dundas Street which sold telephones. As the Applicant was choosing a mobile telephone which he wanted the complainant to buy for him, the complainant's telephone rang. It was her sister. According to her, it snapped her out of her state of shock. She then left in a hurry and returned to her employer's address.

11. Later that day, the Applicant rang the complainant to say that he was sorry. At about midnight, a female friend of the complainant (PW2) telephoned her to wish her a happy new year and to ask her why she was not at a New Year's Eve party. The complainant was crying and clearly upset. She told PW2 that her private parts were bleeding and that she had been raped by a Pakistani. PW2 offered to go over to the complainant's address but the complainant asked her not to do so. That night, the complainant cried herself to sleep.

12. Next morning, the complainant met PW2. They talked and PW2 saw that the complainant had marks on various parts of her body. She also noticed that the complainant's eyes were swollen. PW2 advised her to go to a doctor. The complainant was worried that her employer might dismiss her if the matter came to light. If she lost her job, she was concerned that there would be no one to support her three children in the Philippines.

13. Later in the day, PW2 met the complainant again. It was then that a decision was taken to talk to the person in charge of the Filipino Refuge Centre at Bethune House.

14. It was some days before the complainant decided to report her ordeal to the police. This was done on 7 January 2001. To quote her evidence about this, she said that:

"After thinking it through and everything, I did go to the police. If I will not, I will not be the only victim. Who will help me if my employer terminates me?" (Appeal bundle p. 16)

15. The complainant was dismissed by her employer on 9 January 2001.

16. On the same day, the complainant made a telephone call to the Applicant, pretending she wanted to see him in Jordan at 7 p.m. At 7:40 p.m., the police arrested the Applicant after he had arrived late for the meeting.

Defence case

17. The Applicant, who had no previous criminal record, gave evidence stating that he had been born in Pakistan in 1975 and had come to Hong Kong in 1990. He said that his wife and his son lived in Pakistan. He described his address in Hong Kong as being on the roof of a building in Yaumatei. He worked as a construction site labourer earning a monthly wage of about $4,000. He remitted about $1,600 to his family in Pakistan each month.

18. The Applicant said that he was not in need of a loan and that he was not looking for a girlfriend because his wife would be coming to Hong Kong. He said that he first telephoned the complainant through a friend called "Oxen". There had been no discussion about a loan during any of his telephone calls. He said that he had agreed to meet the complainant near her place of work in Shaukeiwan because she had wanted to see what he looked like. They met for the first time for only about five minutes. The Applicant denied handing his passport and other documents to the complainant as there had been no conversation about a loan. He said that the complainant spoke to him about her boyfriend having left her and she told the Applicant that she liked him. They then arranged to meet on 31 December at Yaumatei MTR which was close to his address.

19. The Applicant said that when they met on 31 December 2000, they chatted at the turnstiles inside the station. The complainant told him that she wanted to be with him. The Applicant replied that he was tired and walked away. He said that he wanted to go home. However, the complainant went through the barrier at the turnstiles to follow him. They then went to the hotel which was nearby. He paid $80 for a room. He said that at that point he had no intention of having sex with the complainant and that he had no reason for going into the hotel.

20. The Applicant agreed that he eventually had sexual intercourse with the complainant inside the room. He said that the complainant enjoyed it so much that she asked him to do it again but that he had declined to do so as he was tired. The complainant told him that she wanted to meet him again on the following Sunday. Subsequently, they left the room arm-in-arm. The complainant was happy and laughing when she left the hotel. They walked to Dundas Street as the complainant wanted to buy a SIM card. An "auntie" of the complainant then called her. The complainant called him that night and they talked on the telephone every night after that. The Applicant said that he was puzzled and upset when he found himself under arrest for rape.

The application

(a) Absence of corroboration warning

21. Against the very straightforward factual background of the case, Mr Acton-Bond, on the Applicant's behalf, raised eleven grounds of appeal in which he complained that the convictions were unsafe or unsatisfactory having regard to the large number of matters of an allegedly unsatisfactory nature which he had raised in the grounds themselves. In particular, he alleged in his second ground that there had been a material irregularity in the course of the trial and, in ground 11, it was submitted that a number of significant inconsistencies between the complainant's testimony in court and her witness statements to police were not sufficiently explored in cross-examination. We propose to deal with these two specific grounds first.

22. In the second ground, it was alleged that the judge had erred by "failing to exercise his discretion ... to give the jury a warning as to the caution they should exercise before convicting on the unsupported evidence of a complainant in a case of a sexual nature".

23. It is, of course, only rarely that this court will interfere with the exercise of a judge's discretion. When this is done, it will generally need to be demonstrated that the judge has utilised his discretionary powers or, as Mr Acton-Bond has suggested in this case, failed to do so, having fallen into obvious error in the approach taken to the exercise of discretion.

24. We are grateful to Mr Zervos, SC, on the Respondent's behalf, for his most helpful analysis of the decisions in the Hong Kong Court of Appeal which followed the abolition of the corroboration rule in respect, firstly, of alleged accomplices and, secondly, following 30 June 2000, in respect of sexual offences. Section 4B of the Evidence Ordinance, Cap.8, provides that:

" (1) Any requirement whereby at a trial by and before a judge and jury it is obligatory for the judge to give the jury a warning about convicting the accused of an offence under Part VI or XII of the Crimes Ordinance (Cap. 200) on the uncorroborated evidence of a person merely because that person is the person in respect of whom that offence is alleged to have been committed is hereby abrogated.

(2) Any requirement that is applicable at a trial by a judge or magistrate and corresponds to the requirement mentioned in subsection (1) is hereby abrogated."

25. In England, the abolition of the corroboration rule for accomplice evidence and for complainants in sexual offences occurred at the same time by virtue of the provisions of section 32(1) of the Criminal Justice and Public Order Act, 1994, which is mirrored in Hong Kong by section 60 of the Criminal Procedure Ordinance, Cap.221, and section 4B of the Evidence Ordinance, Cap.8, respectively. Dealing with the effect of section 32(1) in England, Lord Taylor C.J. in R. v. Makanjuola [1995] 2 Cr App R 469 at 472-3 summarised the position in these terms:

"(1) Section 32(1) abrogates the requirement to give a corroboration direction in respect of an alleged accomplice or a complainant of a sexual offence, simply because a witness falls into one of those categories.

(2) It is a matter for the judge's discretion what, if any warning, he considers appropriate in respect of such a witness as indeed in respect of any other witness in whatever type of case. Whether he chooses to give a warning and in what terms will depend on the circumstances of the case, the issues raised and the content and quality of the witness's evidence.

(3) In some cases, it may be appropriate for the judge to warn the jury to exercise caution before acting upon the unsupported evidence of a witness. This will not be so simply because the witness is a complainant of a sexual offence nor will it necessarily be so because a witness is alleged to be an accomplice. There will need to be an evidential basis for suggesting that the evidence of the witness may be unreliable. An evidential basis does not include mere suggestions by cross-examining counsel.

(4) If any question arises as to whether the judge should give a special warning in respect of a witness, it is desirable that the question be resolved by discussion with counsel in the absence of the jury before final speeches.

(5) Where the judge does decide to give some warning in respect of a witness, it will be appropriate to do so as part of the judge's view of the evidence and his comments as to how the jury should evaluate it rather than as a set-piece legal direction.

(6) Where some warning is required, it will be for the judge to decide the strength and terms of the warning. It does not have to be invested with the whole florid regime of the old corroboration rules.

(7) It follows that we emphatically disagree with the tentative submission made by the editors of Archbold in the passage at paragraph 16.36 quoted above. Attempts to reimpose the straitjacket of the old corroboration rules are strongly to be deprecated.

(8) Finally, this Court will be disinclined to interfere with a trial judge's exercise of his discretion save in a case where that exercise is unreasonable in the Wednesbury sense."

Lord Taylor, in setting out these principles, had emphasised earlier (at p. 472) that:

"... these observations are merely illustrative of some, not all, of the factors which judges may take into account in measuring where a witness stands in the scale of reliability and what response they should make at that level in their directions to the jury. We also stress that judges are not required to conform to any formula and this Court would be slow to interfere with the exercise of discretion by a trial judge who has the advantage of assessing the manner of a witness's evidence as well as its content."

26. R. v. Makanjuola has been followed in Hong Kong in numerous cases [See, for example,: R. v. Thirlwell and Pang, CACC 332/1996 (unreported); R. v. Chu Ip-pui [1997] HKLRD 549; HKSAR v. Law Hay-chung and others, CACC 628/1998 (unreported); HKSAR v. Lee Ka-ho and others, CACC 390/1998 (unreported); HKSAR v. Leung Wong [2001] 1 HKLRD 813]. In one further case, HKSAR v. Chan Sau-man [2001] 3 HKLRD 593, the issue for the jury to decide was not unlike the issue before the jury in the present case. In that case, this court rejected the argument that the judge had erred by failing to give a corroboration direction. The judgment, at page 599, reads:

"22. There was, as (the applicant's counsel) acknowledged, no requirement to give any specific warning to the jury about their approach to the complainant's evidence. This was a straightforward case where the complainant's evidence, the accuracy of her evidence and her veracity, on the central issue stood alone. The judge had meticulously pinpointed all the areas in the evidence where her account was materially disputed and had invited the jury to look at her evidence with care. In the circumstances, the judge was perfectly entitled, in the sensible exercise of his discretion, to adopt this course.

23. We note in passing that, in any event, there was really no evidential basis for saying that the complainant's evidence was inherently unreliable. She had been consistent in her account to a very large extent and nothing in cross-examination appears to have shaken her. ..."

27. The judge in the present case had gone to great lengths to illustrate the differences between the evidence given by the complainant on the one hand and by the Applicant on the other. The judge had also carefully summarised the cross-examination of the complainant, reminding the jury about how she had answered the more important matters which had been put to her when her credibility was being attacked. The jury were also reminded of a number of discrepancies which arose from the evidence given by prosecution witnesses on which the defence had placed some reliance.

28. There was no substance to this ground.

(b) Inconsistencies in complainant's evidence

29. Turning next to ground 11, it was submitted that the complainant had been insufficiently cross-examined on a number of alleged inconsistencies between the account she had given in court and the four statements she had provided to the police.

30. Again, this ground had no substance. The complainant was cross-examined about some of the matters which were alleged to have amounted to inconsistencies between her testimony and her earlier statements and, as we have indicated already, the judge was careful to highlight these when reminding the jury of the points which had been made in cross-examination. It was specifically stated by Mr Acton-Bond that he made no complaint about the competence of defence counsel who, we should add, had plainly carried out his duty of advancing the Applicant's case to the full. Many of the inconsistencies which Mr Acton-Bond submitted were worthy of further questions in cross-examination were of little or no significance and could only have trivialised the more serious points upon which experienced defence counsel at trial had very sensibly focused.

31. This was pre-eminently a matter for trial counsel to determine and we do not consider this ground to have been one which was arguable in the absence of any suggestion that the conduct of counsel at trial was either flagrantly incompetent or had led in some way to the Applicant receiving an unfair trial.

32. Accordingly, we did not accede to an application which was made in relation to this ground for fresh evidence, in the form of the complainant's four witness statements, to be adduced under the provisions of section 83V of the Criminal Procedure Ordinance, Cap. 221. It was neither necessary nor expedient in the interests of justice to order the production of these documents as they would not, in the present circumstances, have afforded any ground for allowing an appeal.

(c) Lurking doubt

33. The remainder of the Applicant's grounds of appeal were said to have amounted, in their cumulative effect, to reasons for saying that there existed a "lurking doubt" about the correctness of the jury's verdicts. Mr Acton-Bond contended that the strength of these grounds was, after the matters with which we have already dealt had been taken into account, twofold. Firstly, he argued under grounds 3 to 9 that the judge failed to give "adequate assistance" to the jury in relation to some aspects of the evidence. Secondly, under ground 10 he submitted that there were so many improbabilities in the complainant's account that these gave rise in themselves to concerns about the convictions.

34. Taking each of these suggestions in turn, the point raised in ground 3 amounted to a criticism that the judge's summary of the pathologist's medical examination of the complainant had not placed more emphasis on a particularly crucial matter to the defence when this had had the effect of casting some doubt on the complainant's truthfulness. The point being made was that the complainant had said that when she was medically examined seven days after she had been raped, she still bore the mark of a bruise on her right arm which had been caused during her ordeal. As to this, she was clearly wrong. The pathologist said that the bruise to which the complainant referred was, judging from its colour, no more than two days old.

35. Whether or not the complainant had lied about this bruise or was merely mistaken in her recollection was, therefore, a matter for the jury's consideration. Mr Acton-Bond's argument, that this reflected on the veracity of the complainant's testimony, was exactly the same point which had been made by the defence at trial.

36. The judge, when summing up, dealt with the medical evidence in some detail. He reminded the jury of the doctor's opinion about the visible "purplish bruise" on the complainant's arm which showed no "browning", leaving the doctor in no doubt that it was "one or two days old only". The judge went on to remind the jury of the reliance placed on this aspect of the evidence by the defence to show that the complainant had not been telling the truth. In this context, the jury had heard that all the other marks of injury, referred to by the complainant as having been suffered by her in the course of the rapes, and observed by PW2 soon afterwards, had disappeared by the time of the pathologist's examination.

37. The whole topic was thoroughly and fairly canvassed at trial. The suggestion that the judge placed insufficient stress on the significance of this aspect of the case is wholly without foundation. The judge even went to the extent at one stage, perhaps rather more dramatically than was strictly necessary, but in a way which was entirely favourable to the Applicant, of stating that:

"(defence counsel) says, triumphantly, the prosecution were really relying upon that bruise on the right forearm but it cannot have been a bruise from what happened on 31 December." (Appeal bundle p. 31)

38. The point had been well made by the judge and Mr Acton-Bond's complaint that insufficient emphasis had been given to this aspect of the case was utterly without merit.

39. Ground 4 was related to the preceding ground because it was contended that if the pathologist's evidence showed that the complainant had lied about the bruise on her arm having been caused at the time she was raped, the judge failed to remind the jury of the impact of that lie on the credibility of PW2's 'recent complaint' evidence as, according to PW2, she had also seen a bruise on the arm. In the fifth ground, it was contended that the judge had also failed to remind the jury of an alleged discrepancy between the complainant and PW2's evidence concerning a telephone call at about midnight on New Year's Eve. The sixth ground alleged that the judge had failed to invite the jury to consider whether PW2's evidence about 'recent complaint' might be materially untrue.

40. These grounds do not assist the Applicant. There was no real discrepancy between the evidence given by the complainant and PW2 on the matter raised by Mr Acton-Bond in his fifth ground. This was merely his interpretation. There was, however, one plain discrepancy between the evidence of these two witnesses which the judge did mention. The complainant had referred to an injury on her right ear whereas PW2 had said that she had seen an injury to the left ear. The judge invited the jury to consider whether this was a "genuine inconsistency" or alternatively whether they were "making it up".

41. PW2's evidence was accurately summarised to the jury and there was no sensible basis upon which the jury could have been invited to consider PW2's evidence as materially untrue. The defence at trial had never suggested this for one moment. Indeed, as we shall see in ground 7, it was the defence case that PW2 had been given a false complaint of rape by the complainant.

42. The seventh and eighth grounds were set out in these terms:

"(7) The learned judge in dealing with the failure of the complainant to go to the police until the 7th January 2001 failed to set before the jury the possibility that having started the ball rolling with a false allegation to her friend, PW2, and then certain officers of Bethune House had little choice but to persist in her allegation when those officers accompanied her to the police station.

(8) That the learned judge failed to remind the jury that on the complainant's own evidence she had met the (Applicant) while she had still not exited the ticket turnstiles at Yau Ma Tei MTR station a fact that made her reasons for following the Applicant out of the station significantly less likely than if they had met at one of the exits from the station as she originally implied."

43. There was no substance whatever to these grounds.

44. The seventh ground was entirely fanciful. There was no basis for the judge to have advanced the theory that the complainant, by perpetuating a lie that had been made right from the start, found herself more or less compelled to make a report to the police. This would have amounted to pure speculation. Instead, the jury were properly reminded by the judge of the defence case that the complainant had not told the whole truth about what had occurred between the Applicant and herself by making up the allegations of rape when sexual intercourse had taken place with the consent of both parties.

45. The eighth ground is hard to follow. It was not in dispute that the Applicant had met the complainant at Yaumatei MTR station. The only difference between their two accounts on this aspect of the case, which on any view could hardly have mattered less, was that the Applicant said they met at Exit 'C' whereas the complainant stated that it was at Exit 'A'. The jury was reminded of this discrepancy in the summing up.

46. In ground 9, it was submitted that the judge had "played down" the potential importance of the evidence given by the cleaner and housekeeper (PW3) at the hotel where the alleged offences took place. However, her testimony had almost no evidential significance. The complainant, for her part, had said that she did not see the Applicant pay for the room. PW3, when asked about this, said that she had no specific recollection of the event although she would have collected the money for the room. There was, in other words, nothing of significance for the judge to "play down" about the evidence given by PW3. It was inconsequential.

47. In the tenth ground, it was argued that there were a number of fundamental improbabilities about the complainant's version of events particularly when looked at cumulatively. We do not need to list any of the fifteen matters which Mr Acton-Bond itemized. The fact that he considered these to have been improbable events, based as they were upon the evidence given by the complainant, was self-evidently not the view taken by the jury. At the conclusion of a trial, which had been fairly conducted in every regard, the jury had been given the opportunity of considering the very points Mr Acton-Bond resuscitated in this ground. Again, there was no substance to this ground.

48. An application was made, finally, to add a further ground of appeal. This was rejected. It was not a matter which carried this application any further forward or afforded any chance of success.

49. As we have indicated already, many of the grounds of appeal were effectively unarguable and others amounted to a trivialisation of aspects of the case which had already been properly canvassed at trial. We take this opportunity of repeating a part of Practice Direction 4.2 relating to 'Criminal Appeals to the Court of Appeal' which states that:-

"5. Where solicitor or counsel settles grounds of appeal, it is his duty to ensure that-

(a) (i) grounds are only put forward where he has satisfied himself that they are arguable; it is not his duty to put forward grounds merely because the appellant wishes him to do so;

(ii) grounds are not put forward unless they are 'reasonable', that is, they afford some real chance of success;....."

It appears to us that these directions were, unfortunately on this occasion, overlooked.

50. For the reasons we have given, the application was dismissed.