CHEUNG SHU WAI v. R.

IN THE COURT OF APPEAL

1993, No. 383
(Criminal)

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JUDGMENT OF THE COURT

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Macdougall, V.-P.:

1. The applicant was convicted after trial before Duffy J and a jury on two counts of rape. Directed verdicts of not guilty were returned on three counts of indecent assault on a 13 year old girl, the elder sister of the alleged rape victim. He was sentenced to concurrent terms of nine years' imprisonment on each count.

2. The alleged offences came to light in 1992 when one of the complainant's girlfriends confided in the complainant, who by this time was aged 13, that her own father had sexually assaulted her. The complainant then disclosed to her girlfriend that the applicant, who was her mother's boyfriend and was living at her home with her mother, her sister and herself, had sexually molested her. Subsequently, the complainant's girlfriend, when making a report to the police about her own father's behaviour, informed them of what the complainant had told her about the applicant's conduct.

3. It is not necessary to go into any details of the complainant's testimony as to the circumstances of the two alleged incidents of rape save to say that she said that they occurred when she and the applicant were alone in her mother's flat and that on each occasion the applicant had forced her to strip and had inserted his penis into her vagina against her will despite her protests and an attempt by her to push him away.

4. In her evidence in chief she stated that the first incident had occurred in the summer of 1988 and that the second incident took place about three months later. The particulars of the counts in the indictment alleged that the offences occurred in the summer of 1988 and in early 1989 respectively. In cross examination she agreed that she had first met the applicant at the end of 1988. Later, when questioned by the judge regarding the timing of the first incident, the complainant said that she could not remember in which year it had occurred, but that it had taken place in the summer and that the second incident had occurred about three months later.

5. Although, for reasons which will soon be apparent, these conflicts regarding time had no bearing on the outcome of this application, we think that we should make the following observations.

6. It is not at all surprising that an honest rape victim of tender years would be unable, after a lapse of four or five years, to recall precisely which year it was in which the offence or offences occurred. However, while we accept that the time of the commission of a rape is not an essential ingredient of the offence, the timing of the first alleged rape in the present case became important when it emerged both from the complainant's testimony and that of her mother, who was also a prosecution witness, that the complainant had not met the applicant until the end of 1988.

7. Since it was accepted that that the first occasion on which the complainant and the applicant met each other was not until some time at the end of that year, we think that prosecuting counsel should have attempted to clarify the timing of the alleged offences by asking the complainant for an estimate of the length of time after she had first met the applicant that the first incident had occurred. It may then have been possible to identify with reasonable precision the year in which both alleged incidents had occurred. In those circumstances counsel could have then applied to the judge to amend the times alleged in the particulars of each count to bring them into conformity with the complainant's testimony. Although the failure to adopt this course would not have been fatal to the convictions in the present case, we consider that it would have been the proper one for prosecuting counsel to have taken.

8. The prosecution sought to gain support for the complainant's evidence by calling one Yau Chi-wai who testified that while he and the applicant and other prisoners were in a holding cell at Tuen Mun Magistrate's Court the applicant had approached the other prisoners and asked whether he would be granted bail. The other prisoners, who knew that he was charged with rape, asked him how the rape had been carried out. He replied that he had not had intercourse with his own daughter but that he had done so with the younger daughter, aged about 7 or 8 at the time, of his girlfriend. He denied that he had had intercourse with his girlfriend's older daughter. He added that since it had happened long ago an examination of the girl would reveal nothing. When asked why he had had intercourse with such a young girl, he replied "For a stiff cock there are no relations."

9. The applicant elected to give evidence. He denied that he had committed the offences and alleged that the complainant and her sister resented his presence in the flat. He asserted that he had never been alone with the complainant.

10. A number of grounds of appeal were set out in the re-amended perfected grounds of appeal. However, it became necessary to deal with one ground only as that ground was determinant of this application. It was that the judge misdirected the jury by telling them that the evidence of Yau Chi-wai was capable of amounting to corroboration of the complainant's evidence that the applicant had raped her.

11. Having given the jury the usual general directions as to corroboration the judge said this:

"There is one piece of evidence which I can tell you is capable of amounting to corroboration in this case. That is the evidence of YAU Chi-wai, the man who shared the holding cell with the defendant and a dozen other people just before appearing at Tuen Mun Magistrate's Court on 9 June 1992. He says, he told you in evidence, members of the jury, the defendant told him and the others that he had had intercourse with this girl, his girlfriend's daughter, he thinking she was 7 or 8 years of age at the time."

12. It is clear both from our summary and that of the judge of Yau Chi- wai's evidence that Yau had not testified that the applicant had admitted that he had raped his girlfriend's daughter but that he had merely admitted that he had had intercourse with her.

13. Where intercourse, lack of consent and identity are all in issue in a rape case it is incumbent on a judge to warn the jury of the danger of convicting the accused in the absence of corroboration, and to leave to them, for their decision as to whether it in fact corroborates the testimony of the complainant, only such independent evidence that is capable of confirming not only her account that intercourse took place, but that it was without her consent and that it was the accused who had intercourse with her - even if the complainant was only nine or ten years of age at the time of the commission of the alleged offence.

14. The following passages from the judgment of the Privy Council read by Lord Dilhorne in James v. R. (1971)55 Cr.App.R.299 at 302 and 303 are pertinent:

"Where the charge is of rape, the corroborative evidence must confirm in some material particular that intercourse has taken place and that it has taken place without the woman's consent, and also that the accused was the man who committed the crime." and

"Independent evidence that intercourse had taken place is not evidence confirming in some material particular either that the crime of rape had been committed or, if it had been, that it had been committed by the accused. It does not show that the intercourse took place without consent or that the accused was a party to it."

15. We wish to emphasise that the first passage must be read in the context of the evidential situation and issues that existed in James. As was pointed out in R. v. Chance (1988)87 Cr.App.R.398 and R. v. Sung Kwok-man Criminal Appeal 426 of 1993 (unreported), it is not necessary, in cases where intercourse and lack of consent are not in issue, for the judge to direct the jury that it is dangerous to convict in the absence of corroboration. Where the sole issue is identity a Turnbull direction is sufficient.

16. In the instant case, however, intercourse and consent were very much in issue. Although we are of the view that it is unlikely that the jury would have thought that a ten year old girl would have consented to intercourse in the circumstances related by the complainant, the lack of consent was an essential ingredient of the offence. It was therefore a serious and, in our opinion, fatal error to direct the jury that Yau's testimony as to the applicant's admission that he had intercourse "with his girlfriend's seven or eight year old daughter" was capable of amounting to corroboration of the complainant's testimony that the applicant had raped her.

17. For this reason the application was granted and, treating the hearing as that of the appeal, the appeal was allowed, the conviction quashed and the sentence set aside.

18. There are two other matters which we think are worthy of comment before taking our leave of this case. First, since the complainant was 14 years of age at the time of the trial, it was unnecessary for the judge to hold an enquiry for the purpose of deciding whether she should be permitted to give her testimony under oath or affirmation. See section 4 of the Evidence Ordinance Cap.8 and R. v. Fung Kam-keung (No.2) [1993]1 HKCLR 89. Where, however, the necessity to hold such an enquiry arises in a sexual case, the judge should, in the presence of the jury, inquire from the complainant whether he or she understands the nature of an oath or affirmation and recognises the solemnity of the occasion which carries with it an added responsibility to tell the truth, over and above the ordinary duty that is cast upon a person in normal social conduct. See R. v. Hayes (1977)64 Cr.App.R.194; R. v. Khan (1981)73 Cr.App.R.190 and R. v. Campbell [1983] Crim. L.R.174.

19. In the present case, the judge, having unnecessarily embarked on an inquiry, merely asked the complainant whether she knew the difference between telling the truth and telling lies, and inquired of her whether she knew what would happen to her if she told lies and whether she intended to tell the truth to the court. Where an inquiry is necessary, questions such as those asked by the judge would be insufficient.

20. Finally, since the complainant was clearly under the age of 13 years at the time of the alleged offences, we express our surprise that the indictment did not contain two additional counts, each alleging the commission of the offence of intercourse with a girl under 13 contrary to section 123 of the Crimes Ordinance. Had these counts been included, the testimony of Yau Chi-wai would clearly have been capable of amounting to corroboration of the complainant's evidence as to the alleged relevant conduct of the applicant in the two incidents which she described.

21. The convictions having been quashed, Mr Moultrie, who appeared for the Crown, stated that he would not apply for a re-trial. The applicant was therefore discharged.