HKSAR v. YIU CHI WANG

CACC 582/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 582 OF 2002

(ON APPEAL FROM HCCC 269 OF 2002)

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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):

Background

1. On 18 November 2002, following a trial in the Court of First Instance before Deputy Judge Line, the applicant, aged 40, was convicted of rape and sentenced to six years' imprisonment. He now seeks leave to appeal against conviction.

2. We are grateful to Mr Saw, SC for the respondent, for his comprehensive outline of the evidence given at trial which, to a considerable degree, we propose to adopt.

3. The offence was alleged to have occurred at the applicant's home on 5 May 2002. The complainant, aged 20, stated that at about 9.30 am, she awoke to find herself in premises she had never seen before. She was naked and the applicant was in the process of having sexual intercourse with her.

4. Evidence was given by other witnesses for the prosecution and defence about the complainant's behaviour prior to the alleged rape which, on any view, revealed that she had, as she herself accepted, become very drunk in the early hours of that morning. Perhaps even more significantly, she had at some point in time, without being aware of it herself, consumed a drug known as Clobazam which has side effects including drowsiness, confusion, light-headedness, and amnesia (loss of memory). If taken with alcohol, increased effects would result therefrom.

Prosecution's case

5. The complainant and the applicant were known to each other, having met on a previous occasion when they went to a karaoke establishment in Tsim Sha Tsui. The applicant had afterwards driven the complainant home.

6. Turning to events on 5 May 2002, the complainant was at the C Club in Lan Kwai Fong with her friend Wong Yuen-fa, Jennifer (PW2). The complainant gave evidence that she was "very drunk". She remembered wanting to dance and being hungry but also feeling bad and vomiting. Her evidence was that she could remember PW2 supporting and holding her but, after this, she had no recollection until she later awoke in the same bed as the applicant. The complainant had no specific memory of anything which occurred between herself and the applicant in the early hours of the morning, either at the C Club or at a restaurant which the evidence revealed she had visited. She had no recollection of meeting the applicant. She was unable to remember anything from the time of leaving the C Club until she awoke the next morning. Amongst other things, she said:

"That morning when I opened my eyes, I found myself in a not familiar room. I found myself naked without any clothes. A man was pressing against me. He was naked as well. He was raping me. Then I told him not to do that, but he ignored me. Then I tried to push him away, but I was not strong enough to push him away because he held against me. .... All along, he was raping me until after a while, he left the room. I was very scared, I dare not move and just looking at the wall." (Appeal bundle p. 59)

A little later she said:

"I was not willing to have sexual intercourse with Dickie (the applicant). I also told him not to do that, but he ignored me and ignored my request." (Appeal bundle p. 60)

She said also that she had shouted out for help on four or five occasions (appeal bundle p. 65) and when asked what kind of resistance she had offered, she replied:

"When he pressed against me, I used my force or strength to push him away. But at that time, I was dehydrated and had not enough strength, so eventually, I could not push him away." (Appeal bundle p. 66)

7. Later, the complainant went on to say that she had no knowledge, while in Lan Kwai Fong, of having taken any sleeping pills, tranquillizers or medicine of any kind.

8. The complainant, soon after the alleged rape, confided in PW2, the girlfriend who had accompanied her in Lan Kwai Fong before the complainant left with the applicant, and also in her godmother (PW3) as to what had happened.

9. PW2 was a student and a close friend of the complainant. She had met the complainant by arrangement at about 1.30 am on 5 May 2002 in Lan Kwai Fong. They had a number of drinks at the C Club and, in due course, they joined the applicant and his group of friends who happened also to be there. The complainant became progressively drunk and used the washroom to vomit on several occasions. At one stage, PW2 saw the complainant asleep on a sofa.

10. PW2 observed that the complainant, whilst very drunk, was being kissed and cuddled by the applicant who told PW2 that she need not be concerned about the complainant as he would look after her.

11. Eventually, PW2 left the C Club to go to a nearby café to find something to eat. PW2 related how the complainant had to be carried there by "Paul" (one of the applicant's friends). By this time, the complainant could not walk without support and at the café she made use of the washroom where she once again vomited. PW2 said that she had to help the complainant to get to and from the washroom.

12. As they left the café, the applicant offered to drive the complainant to her home, saying that he knew where she lived. PW2 told the complainant that she would telephone her when she got home. She attempted to do this, but the telephone went unanswered. At the time they parted, the complainant was still very drunk and unable to walk unaided.

13. Later in her evidence, she described how she rang the complainant's mobile telephone at about 6.30 am but the call was not answered. However, she was awoken at about 10.30 am by a telephone call from the complainant who was crying and saying that she was scared; that the applicant had not seen her home but had taken her to his home; that she had been raped by "Dickie" (the name by which she knew the applicant); that she had no strength to push him away; that she felt very painful "down there"; and that she had not known where she was until later she asked a taxi driver.

14. PW3 said that she regarded the complainant as her natural daughter. She described how the complainant had come to her home during the morning of 5 May 2002 crying and complaining that when she had opened her eyes that morning, she realised she was being raped.

15. The evidence of PW2 and PW3 was not disputed.

16. The prosecution also produced evidence of a closed circuit television (CCTV) tape and twelve photographs taken from it which appeared to show the complainant inside a lift at the applicant's premises in a state of semi-consciousness, with the applicant trying to keep her from collapsing onto the floor.

The defence case

17. The applicant gave evidence, admitting that sexual intercourse had taken place. He said that at the time of the act of intercourse, the complainant was a willing and enthusiastic participant who was in control of herself. In his words, the complainant was only "a bit tipsy" and that the CCTV images only showed her wanting to vomit. She had willingly removed all of her clothing at his home and they had slept together naked. Later in the morning, she initiated matters by fondling his penis which had led to a consensual act of sexual intercourse.

18. Although the defence case had not raised such a defence, the judge left for the jury's consideration, perhaps out of an abundance of caution, the issue of genuine but mistaken belief in consent.

Grounds of appeal

(1) Burden and standard of proof

19. Ms Annie Lai, on the applicant's behalf, advanced four substantive grounds of appeal. In the first of these, which she described as her most important argument, she contended that the judge had erred in his directions to the jury concerning the burden of proof. This argument focused on two specific passages where the judge invited the jury to consider whether it was the complainant or the applicant who had been telling them the truth and a further passage where the jury was asked to consider whether or not the CCTV film provided any support for either of the versions they had heard.

20. The three passages, shown with the emphasis placed on them by Ms Lai, were as follows:

"You may thus think that the case turns entirely on who is telling the truth. I put it that way saying, 'You may think' because it is a matter for you and not me. Let me explain our different jobs." (Appeal bundle p. 2) (Emphasis added)

"You may think that it must be that either (the complainant) or the defendant is lying. One of them was putting on an act for you in the witness box. You will have to use your combined good sense, experience of the world, knowledge of human nature and knowledge of modern behaviour in reviewing all the evidence to find out which one it was or may have been." (Appeal bundle p. 5) (Emphasis added)

"You are entitled to ask yourselves whether this CCTV provides support for either the evidence of (the complainant) or the evidence of the defendant." (Appeal bundle p. 18) (Emphasis added)

21. It is, of course, right to say that a direction to a jury which allows them to think that they are permitted simply to choose from two versions that which they think is the more reliable, without more, is impermissible. It is important, therefore, to look at the whole of the summing up, so that these passages are not viewed in isolation, for the purposes of determining whether this rule of practice was infringed. The context of the passage about which the first complaint was made was the judge's observation:

"So the issue is consent. If she is right, he must have known she was not consenting. If he is right, she consented and she knows it, yet she now denies it and persists in a false accusation of rape." (Appeal bundle p. 2)

22. The next of the judge's observations, the subject of the second complaint, was followed by a change of context where "general remarks" turned to directions on the law. This was made plain in the passage which immediately followed:

"So having given you those general remarks, let me turn to the law. I start with two important directions.

The first is this : that in this case, as in every criminal case, the prosecution must prove that the defendant is guilty of the offence charged against him. He does not have to prove his innocence." (Appeal bundle p. 5)

23. After this, the judge went on to the standard of proof and gave directions which are usually given in that regard.

24. The question posed by the judge in the third passage which was criticised in this ground, namely whether the CCTV provided support to the version given by the complainant or the applicant, amounted to no more than a statement of the obvious.

25. The problem with which the jury in this case was confronted is not infrequently encountered in cases involving allegations of sexual assault where the prime conflict, as to what occurred just before and at the time of the alleged offence, is to be determined solely on the testimony given by the complainant and by the defendant. This was, as Mr Saw reminded us, considered in the High Court of Australia in Liberato and Ors v R [1985] 159 CLR 507 at 515, where Brennan J observed:

"When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue."

26. Not only were the jury given directions in the clearest terms as to the burden and standard of proof early on in his summing up, the judge returned to the subject at the end when he dealt with these issues in the context of the evidence given by the applicant, as follows:

"86.	The defendant chose to give evidence. He was not obliged to do so. He does not have to prove his innocence. He does not have to prove anything.
87.	It is for you to decide how much weight, if any, to give to the defendant's evidence. You must always remember that even if you were to decide that you did not believe him, the prosecution must still make you sure by their evidence that the defendant is guilty of the charge he faces if you are to convict.
88.	If you think that the defendant might or may have been telling you the truth about the sexual intercourse, that means you must necessarily have a doubt about the truth of the prosecution evidence. In those circumstances, your verdict will be 'Not Guilty'." (Appeal bundle p. 19)

27. There was, in our opinion, no misdirection on the part of the judge in the way which has been alleged when the directions on the burden and standard of proof are taken in their proper context. In particular, the jury had been told that even if they did not believe what the applicant had said in his testimony, it was still for the prosecution to prove the charge by the evidence they had called. This ground fails.

(2) Inconsistent statements

28. The judge's direction which forms the basis of the complaint in the second ground is to be found in a single sentence which reads:

"Do not forget that you are entitled to look at consistency as well as inconsistency and that you can consider the whole of the contents of the two statements to put any inconsistency in its context." (Appeal bundle p. 15)

29. The statements to which reference is made in this ground were two witness statements made by the complainant (exhibits P46 and P47) which were tendered in evidence in their entirety by the defence during the course of cross-examination of the complainant. Ms Lai was junior counsel at trial for the applicant and she has emphasised again in these proceedings how it was regarded by the defence as important to put these statements before the jury to demonstrate a number of inconsistencies in the evidence given by the complainant. Indeed, the statements were at first referred to (appeal bundle p. 90) as provisional defence exhibits.

30. The defence were perfectly entitled to have adopted such a course but, having done so, there was no obligation on the part of the judge to confine his comments on these statements, or the jury's examination of them, purely to those portions which had been made the subject of cross-examination. In any event, the directions given by the judge have to be put into a broader context to make proper sense out of what he was saying which was as follows:

"Normally, a jury does not see the written statements of a witness who is called to give evidence. It is what the witness says in court that matters and not what was written down on paper by or for him or her at an earlier time. You see them in this case because the defence want you to see them. They wish to point out to you that there are differences between what (the complainant) said in her evidence and what is in those statements. The purpose of doing this is to seek to undermine her credibility. They argue the differences make her less believable as her story has changed.

So the use of the two statements is limited to helping you assess her credibility. You cannot use those statements instead of, or in addition to, her evidence of what happened. For instance, she tells you in the witness-box she was raped. You can act on that if you wish and find that that was so. She said in the witness statements that she was raped, but you cannot act on that to find that she was. You only use what is in those statements to determine whether her story - the evidence - is worthy of belief. If she adopted a part of the statement when it was put to her and said it was true, then her evidence in court allows you, if you wish, to use what she adopted as evidence of its truth. Parts that were not so adopted cannot be evidence of their truth.

Broadly speaking, if there is a material inconsistency, it might lead you to any number of views. You might conclude that the witness is generally not to be relied upon; or that part of his or her evidence is inaccurate; or you may accept the reason he or she has provided for the inconsistency and consider the witness to be wholly reliable. You will obviously want to consider how significant any discrepancy that you find is and this will entail, in part, pondering if it goes to a disputed issue.

The contradictions that Mr Li (leading counsel for the defence) urges you to consider here relate most prominently to whether she can remember meeting the defendant in the C Club. In her evidence, she said she could not remember. Her statements relate such a meeting, thereby suggesting that she could remember. On the basis of what I have just told you, you will appreciate that you cannot use the statements there as evidence that they did meet, though of course there is other evidence from the prosecution and the defence that they did so and it is not an issue that is in dispute. The use of the statements is limited to whether they diminish the quality of her evidence and, if so, to what extent." (Appeal bundle pp. 12-13)

31. The suggestion made by Ms Lai in these proceedings that the judge had failed to give adequate directions to the jury as to the use to which the statements could be put, for the purposes of assessing the complainant's credibility, was without any foundation. This is particularly so bearing in mind that the jury's attention was specifically drawn to a number of the inconsistencies between the statements and the complainant's evidence.

32. In the context of this ground, we should perhaps add that Ms Lai also submitted that the inconsistencies in the statements given by the complainant, together with a number of contradictions of her account when placed alongside the evidence given by other witnesses, gave rise to a "lurking doubt" about the conviction. However, these matters were all thoroughly canvassed at trial and we do not consider that they amounted to a ground of any substance.

(3) Genuine but mistaken belief in consent

33. Ms Lai complained in her third ground of appeal that the judge had erred in the directions he gave to the jury concerning "mistaken belief" and "consent", in that he had "wrongly presumed (the complainant) was in a comatose state and (had) neglected to direct the jury properly on the issue of mistaken belief".

34. Ms Lai understandably made no criticism of the judge having raised this defence as being available to the applicant although the applicant himself had not raised it and had given positive evidence which contradicted such a possibility. This was, as Ms Lai realistically accepted, a bonus for the defence. Nevertheless, her complaint was that having directed the jury in this way, the judge had failed to express the issue, from the applicant's point of view, in a satisfactory manner.

35. We do not propose to set out the directions which the jury were given in the abbreviated form Ms Lai adopted in this ground of appeal for the purpose of demonstrating her criticism. They need, in our opinion, to be set out in full. The judge, having dealt with two of the three ingredients which the prosecution had to prove in order to establish rape, said:

"As to the third ingredient, the prosecution has to prove that the defendant knew that (the complainant) did not consent or that he was reckless as to whether she consented. Knowledge - him knowing - needs no elaboration. It means that he was aware that she was not consenting. What does 'reckless' mean? The defendant would have been reckless as to whether (the complainant) consented to sexual intercourse if you are sure that he did not know and did not care whether she was consenting or not, and carried on regardless; in other words, that his state of mind was that he could not have cared less. That is recklessness.

The defendant denies that any consumption of alcohol played any relevant part in his behaviour. He says he was sober at the time of the sexual intercourse. However, since there is evidence that he was drinking in Lan Kwai Fong, I will simply tell you this: if you are sure that the prosecution has established that the defendant was reckless, then the fact that this was or may have been due to his voluntary consumption of alcohol is no defence.

No one has suggested that mistake plays any part in this case. In some cases, issues arise when a man says, 'All right, maybe she was in fact not consenting, but at the time, I genuinely thought she was and I made a mistake about that for such and such reasons'. That is not what the defendant says here. He says there could be no mistake about what she was doing: she was consenting and that he knew that to be so because it was in fact so and it was obviously so from her behaviour. That is the defence here. However, since as I have told you the facts are for you, you could if you wanted to consider mistake. If you do consider that, I have to tell you this: that if a man may honestly and genuinely, but mistakenly believe that a woman is consenting to his having sex with her, then he has a defence to the charge of rape unless that mistaken belief was wholly due to his voluntary consumption of alcohol. The prosecution must make you sure the defendant did not have that state of mind of honestly and genuinely, albeit mistakenly, believing in the woman's consent. The question is what was actually in the mind of the defendant but the law requires that if a jury does consider whether a defendant held such a belief, then the presence or absence of reasonable grounds for such a belief is a matter to which that jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed.

Whilst the facts are for you, you may well think that if a man penetrates a woman for the first time when she is clearly unconscious, he could hardly have a genuine and honest belief that she was consenting. He would know that her mind had shut off. You may thus think it would be difficult for a man in that situation, honestly and genuinely, to believe that she was consenting to sex with him.

What if he merely hoped that she would consent when she woke up? Hope is not the same as a genuine and honestly-held belief. You have to judge the man's state of mind at the time of the sexual intercourse. Thus if a man merely hoped that a woman would consent but he did not know or believe that she was consenting to his having sexual intercourse with her and he carried on regardless, he would be reckless.

If he penetrated whilst she was asleep and never gave a thought to the question of her consent, then again he would be reckless. Of course, as I have directed you, recklessness as to the woman's consent is sufficient to make a man guilty of rape if the other ingredients of the offence are established.

If he did penetrate her whilst she was unconscious and she woke up and protested and made her lack of consent known to him, yet he still carried on, there would be no defence whatever his previous belief in her consent may have been. His continued penetration of her with knowledge that she was not consenting, would be rape." (Appeal bundle pp. 7-9)

36. Mr Saw has very responsibly indicated, in the absence of any complaint to this effect, that it may not have been the ideal way for the judge to have drawn the jury's attention to this topic by indicating in this passage that since he had told them that the facts were for them, they could, "if (they) wanted to", consider mistake. No doubt the direction that the jury should consider such a defence if "they wanted to", which could only have arisen if the evidence may have left them believing that the applicant had been labouring under a mistaken belief as to the complainant's consent, could have been expressed in more emphatic language, but any such concern is cured by what was said immediately afterwards, namely:

"The prosecution must make you sure the defendant did not have that state of mind of honestly and genuinely, albeit mistakenly, believing in the woman's consent." (Appeal bundle p. 8)

37. Ms Lai's complaint was that as the judge had embarked on this topic at all, he had a duty to deal with it fully. She pointed out that nowhere had the judge informed the jury that, from a subjective point of view, the defence of mistaken belief could arise no matter how unreasonable that belief may have been.

38. This argument in a very real sense tends to illustrate the dangers of opening up a topic of law in the summing up for which there has been no evidential foundation. In simple terms, this can only lead to speculation.

39. Neither the complainant nor the applicant had said anything which even remotely gave rise to the suggestion that the applicant may have acted under a mistaken belief that the complainant was consenting to sexual intercourse. The complainant's version was that she had tried to stop the applicant when she awoke to discover what he was doing. The applicant, on the other hand, said that both of them had awoken to the sound of his alarm going off. The complainant then began to fondle him which had aroused him. He also fondled her and then they kissed. The applicant said that he went to the refrigerator and drank some coca cola. He fed some of this by mouth into the complainant's mouth and then they resumed kissing. He touched her private parts to find that she was also aroused. He then put on a condom and had sex with her in which he described the complainant's reactions as follows:

".... the situation is that she lay on the bed and the position is quite a normal position, she was underneath and I was on top and we made love and it's quite smooth. There is absolutely no resistance, no unwilling, no crying out of help, no such thing. Well, it's the truth..... during the making love well (the complainant) had quite a good response, you know, she had her moaning..... it's not true that she was not willing..... Of course as a man during the make love I like the other party have a good response. Well at that time she was underneath and I was on top and of course as a man I like to see her reaction then so I change my position a bit and with my knees kneeling on the bed..... Well, at that time I see her response and there's no -- there's making of love it's smooth and there's no resistance, no pushing away, no shouting help. This is the truth, it's really the situation, her is willing. Nothing of any unwilling, unwillingness. It's true, it's true..... Well during the making love, well even changing the position she was accommodating me." (Appeal bundle p. 174)

40. Returning briefly to the principal matter of complaint under this ground, Ms Lai's suggestion that the directions on this issue were unfair to the applicant, because the judge had confined what he said to a situation which arose only if the complainant was "clearly unconscious", ignored the circumstances in which mistaken belief in consent could ever have applied. In reality, as Mr Saw was right to submit, the applicant's mistaken belief as to consent having been given by the complainant could only have arisen on the facts if the jury concluded, based on what the complainant had alleged, that she awoke to find the applicant was in the process of having sexual intercourse with her. If the jury accepted that evidence, they would necessarily have rejected the applicant's account which the judge summarised to the jury in these terms:

"(The complainant) was all along a willing participant in the sexual activity that took place between them; that at all times she was in control of herself; that she was only ever a bit tipsy; that the CCTV images only show her needing to vomit; that she removed her clothes herself; that it was his suggestion she then rest when she lay naked on his bed; that in the morning she started things by fondling his penis; that they were both aroused; that this led to her consenting and responding enthusiastically to his lovemaking. His case is that he was sober and there was no room for any mistake and that she consented to the sexual intercourse." (Appeal bundle p. 2)

41. In R v Chow Siu-hei and Anor, CACC 692/1995 (unreported), where the facts bore some similarities to the case presently before us, it was submitted that a direction as to mistaken belief should have been given. Power VP said (at p. 9):

"On the one hand there was evidence of what might be termed 'eager consent'. On the other hand there was evidence which, if you believed, would establish that the victim was comatose and that any person approaching her must have been well aware that she was in no way able to give consent. Nowhere was there any evidence which required a direction as to mistaken belief."

42. Similarly, in R v Kwok Tak-ming, Danny [1996] 4 HKC 395, a case in which the victim said she had submitted to the applicant, whereas the applicant had claimed that the victim played an active role, this court (at p. 399) observed:

"In dealing with the issue of consent, the judge began by highlighting those two different versions and pointing out that in approaching the matter the jury had to decide which of the two versions was correct. If they believed the version of the complainant, then it is difficult to see how the question of the applicant's belief of consent by the complainant could have arisen as a live issue and it was against that background that the judge gave his direction."

Later (at p. 401), the judgment continues with the statement that:

"The defence was in fact that she did consent and any question of a genuine belief that she consented only came to be mentioned because the judge was attempting to be more than fair to the applicant; he was under no obligation to give a direction upon it."

43. Bearing in mind the enormous gulf between the two versions in the present case, it can readily be seen that "mistaken belief" as a defence to rape was not a matter which, as Mr Saw rightly submitted, could ever have arisen on the evidence. Whilst no doubt the judge was seeking to be as fair as possible to the applicant, his directions on this topic could only have led to considerations based upon pure speculation. In simple terms, the evidence left no room for a defence of genuine and mistaken belief that consent had been given.

44. It follows, therefore, that we do not consider these directions were appropriate in the circumstances. They were, with respect, unnecessary and, if they were incomplete in any respect, this was not something which caused any injustice as they could only have been of potential benefit to the applicant by giving him a further possible line of defence to which he was not entitled.

(4) Inconsistencies in the evidence

45. In the last ground of appeal, it was submitted that the judge was in error when he directed the jury that:

"Obviously there are significant differences between (Paul Wong's) evidence and that of Jennifer Wong (PW2). You do not have to resolve all the differences between them in order to reach a verdict, whatever your verdict is." (Appeal bundle p. 23)

46. Jennifer Wong (PW2) was one of the two "recent complaint" witnesses to give evidence for the prosecution who had also been able to describe some of the events before the complainant went to the applicant's home. Similarly, Paul Wong had also dealt with some of the earlier events at Lan Kwai Fong. His evidence was succinctly summarised as follows:

"He described the kissing in the C Club as being 'wet kisses'. He said that when they left the C Club, (the complainant) had to be helped to walk as she was a bit tipsy. He said that he did need to carry her in his arms and that this occurred once on the way to the Tsui Wah Restaurant which was closing and where they did not stay and from whence they went on to the Lan Kwai Fong Café. At this time, he said, there was no need to carry (the complainant) and that she could walk by herself and that in the café, she was normal and remained so, passing remarks that made it clear she wished for the company of the defendant. Obviously there are significant differences between his evidence and that of Jennifer Wong (PW2)." (Appeal bundle p. 23)

47. The judge then went on to make the observation which is the subject of this complaint. In our view, the judge's direction was entirely appropriate.

Conclusion

48. We are satisfied that there exists in this case no reason for saying that the jury's verdict was unsafe or unsatisfactory.

49. The application is dismissed.