R. v. FU CHUN MAN

IN THE COURT OF APPEAL

1994, No. 221
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicant was charged with the offence of raping a Thai maid, Ms Liw who was employed by him on 8 April 1993. He was convicted of the offence after a trial before Deputy Judge Wilson in April 1994.

2. The applicant did not deny that sexual intercourse had taken place with Ms Liw on the afternoon of 8 April 1993. His defence was that she had consented to have sex with him.

3. Ms Liw gave detailed evidence as to what transpired. She alleged that her working conditions were oppressive and that she had not been fully remunerated by the applicant for the work she had undertaken. She was not in a strong position. Under the terms of the visa issued to her by the Hong Kong Government restrictions were imposed on the employment she could undertake. She was not in a position where she would be able to resign and obtain employment from another employer.

4. She said that in the afternoon of 8 April when she was ironing clothes the applicant took her by the hand and led her into his bedroom. He told her to lie on the bed. When she declined to do so a struggle ensued. Notwithstanding her efforts to resist him she was overpowered and the applicant tied her wrists behind her back with a shirt. He got on top of her and proceeded to have sexual intercourse. It took some time.

5. At the conclusion he inserted a tablet in her vagina. He remained on the bed and she adjusted her dress and went out to seek assistance. She saw two police officers at the market and made a complaint to them.

6. The applicant gave evidence that he had believed that Ms Liw had consented to have sexual intercourse with him. He described the circumstances when consent had been forthcoming. According to him Ms Liw had accepted his invitation to have sex with him the previous evening while she was shampooing his hair. It was suggested that they should have intercourse the following afternoon. She had nodded her head in acquiescence to this.

7. The applicant claimed that he had left his work at a stall in the early part of the afternoon on a pretext of working on a jammed lock and returned home. He had allayed Ms Liw's fears concerning possible conception and sexual intercourse had taken place. He believed that this was with the consent of Ms Liw.

8. He noticed that after this had taken place Ms Liw was not around. He thought nothing of this and went back to his stall. Later in the afternoon he was approached by a police officer who had informed him that Ms Liw had made a complaint that he had raped her. He had immediately agreed that sexual intercourse had taken place and he made a full statement to the police stating that intercourse had taken place with Ms Liw's consent.

9. It will be appreciated that there was a clear conflict of evidence before the jury.

10. The first ground of appeal in the amended perfected ground is that Deputy Judge Wilson gave confusing directions on the issue of consent.

11. The directions given by the judge were

" As to the law on rape, in this case there is not much difficulty, but I am bound to tell you that rape is a male having sexual intercourse with a female who does not consent and he knows that she does not consent. Intercourse is defined as penetration by the male organ of the female organ, and any penetration is sufficient and ejaculation is not necessary.

The prosecution must prove that the defendant knew the female did not consent, or at least was reckless whether or not she consented. Reckless means you must be sure the male did not believe she was consenting and could not have cared less whether she was consenting or not.

As to this lack of consent, again in this particular case there is probably no difficulty, but as to lack of consent, it is not necessary for the prosecution to prove that the female struggled. She is not expected to fight back like a heroine, but it is sufficient for her to indicate that she does not consent. If you are satisfied that the sexual intercourse was under duress or through fear, that is enough."

12. The main complaint made by Mr Matthews for the applicant was the failure of the judge to make further comment upon the evidence before the jury which may cast doubts upon the likelihood of a struggle having taken place. One of the matters he referred to was the lack of injuries found on Ms Liw when she was examined by a doctor in the evening. The Deputy Judge did make comment upon the injuries which had been sustained when commenting upon the medical evidence at p4 of the summing-up. It was clearly a matter which was before the jury.

13. We do not consider that there is substance to this complaint. Sufficient directions were given to the jury to enable them to adequately consider the evidence. We would however observe that it would have been preferable if the judge had tailored his summing-up more specifically to deal with the issue which was germane namely whose version of what transpired was to be believed.

14. One of the important factors in this case has been the difficulty which was encountered throughout due to Ms Liw being unable to communicate effectively in Cantonese or English.

15. She only had a basic education in Thailand. Her knowledge of Cantonese was derived from a very short course of instruction she attended prior coming to Hong Kong. She also had little or no knowledge of English.

16. The consequence of this was a difficulty in communicating with the applicant and his family. Also considerable difficulties were encountered when she made her complaint to the police and also when she attended in court and gave evidence.

17. As a result of the difficulties encountered during the trial it was necessary for arrangements to be made for a Thai Interpreter familiar with a Northern Thai dialect to undertake a double interpretation exercise with the Thai Interpreter who was assisting the court.

18. The situation was so unsatisfactory that the applicant's first trial had to be discontinued. We ordered that a transcript of this trial be produced and this was done. From a perusal of this transcript and also of the transcript of the 2nd trial it would appear that the problems which were encountered were not entirely overcome.

19. Mr Matthews' approach to this problem was to highlight what might have been individual mistakes or inconsistencies in the transcript. In his skeleton argument he refers to 16 passages.

20. It would seem to us that the most satisfactory way of determining the extent of difficulties encountered during the trial is to peruse the transcript of Ms Liw's evidence at the trial as a whole.

21. One difficulty which arises in this connection is that part of the transcript of the evidence was mislaid by a Court Reporter. It is unfortunate that we do not have the full transcript. However the transcript which does exist covers all of the significant evidence at the trial and does enable us to make a meaningful scrutiny of the evidence before the trial judge.

22. In examining Ms Liw's evidence it can be said in general terms that her evidence came across as a coherent whole and the answers she gave to questions put to her were for the most part logical and consistent with the prosecution case. It would appear that the problems which existed were sufficiently surmounted.

23. The most serious complaint which is made by Mr Matthews is that Deputy Judge Wilson gave very misleading and unsatisfactory directions on the subject of Ms Liw's possible motivation for making the report against her employer. As we have indicated earlier there was a wealth of evidence to the effect that Ms Liw's conditions of employment were deplorable.

24. The applicant gave evidence to the effect that Ms Liw had a strong motive to frame him in the present proceedings. If she were to resign from his employment she would have to immediately return to Thailand. The result of this would be that she would be unable to recover the considerable expenses she had had to incur in getting to Hong Kong. If she wished to again work here she would have to incur comparable expenditure all over again.

25. However if she made a complaint to the police that she had been raped by the applicant she would in all probability be permitted to remain here while proceedings were pending as she would be the main witness. While she was waiting she may be permitted to work for another employer.

26. As it has transpired this is exactly what has happened.

27. Deputy Judge Wilson dealt with this suggested motive in this way:

" In fact he even suggests that there might be a motive for the maid to make up a story of rape. He suggests if she resigned or was dismissed, she would have to go back to Thailand and her large amount of money invested in her language course and in the agency would be lost to her.

And he suggests that an allegation of rape would get her out of her job with this defendant who was cruel and harsh to her, gave her terrible working conditions; and he suggests that she would then be allowed and possibly even compelled to stay in Hong Kong as a witness and get another job with somebody else which is what has, in fact, happened.

Now you do not need to decide the truth of that suggestion. It was no more than a suggestion by the defence and it was denied by the maid."

28. This direction was unfortunate. It directs the jury that they do not have to consider the truth or otherwise of the suggestion. The jury might well have understood that because Ms Liw denied that she had falsely accused the applicant they need not consider the possibly strong motivation which might have existed for her to make this complaint.

29. Mr Cross, Q.C. for the prosecution directed our attention to the lengthy submissions made by counsel for the applicant at the trial when he had elaborated at some length on the subject. Mr Cross, Q.C. submitted that it was almost inconceivable that the jury would have heeded what they might have thought to be the judge's direction if they had indeed concluded that Ms Liw may have had such motivation. They would have acquitted the applicant.

30. We do not consider that this satisfactorily disposes of the problem. There must be some doubt as to the effect such a direction would have had upon the jury. This doubt is particularly worrying as one of the most important aspects of this case was the genuineness of the complaint being made by Ms Liw.

31. The difficulty is compounded as a result of the direction Deputy Judge Wilson gave concerning the applicant's character. He said:

" In deciding whether the prosecution has made you sure about the defendant's guilt, you can give weight to his good character. You have heard that he is a locksmith, thirty-four years of age, has not committed any previous offences. You can give that weight in two ways, first, as a man of good character, it supports his credibility and, secondly, the fact that he has reached the age of thirty-four without committing any offences means he is less likely than otherwise might be the case to commit a crime now." (emphasis supplied)

32. It will be noted that Deputy Judge Wilson did not say that the applicant was entitled to have his previous good character weighed in the balance. All that the judge said was that it was a matter they could take into account if they wished to.

33. Having regard to the main issues which were before the jury and the importance of the credibility of the witnesses in this case this direction was plainly inadequate. When this is taken in the conjunction with the misdirection on Ms Liw's possible motivation we do not consider that this conviction can be regarded as safe and satisfactory.

34. This application for leave to appeal against conviction is allowed. We treat the hearing as the substantive hearing and allow the appeal. We will hear the counsel upon whether there should be a retrial.

35. The application for a retrial is refused.