THE QUEEN v. LEE KIN WAI AND OTHERS

Headnote

Communication with jury during retirement by Judge's clerk: test in Sawyer [1980] Cr. App.R. 283 adopted

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JUDGMENT OF THE COURT

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Silke, V.-P.:

1. Lee Kin Wai, Fook Kam Fai and Tsang Hing Fuk, together with a 4th defendant against whom no evidence was offered, appeared for trial before His Honour Judge Ryan (as he then was) sitting as a Deputy Judge of the High Court. Each of them faced an individual count of rape. Lee, Fook and Tsang were convicted and each was sentenced to a period of 6 1/2 years' imprisonment. All three originally sought leave to appeal against their convictions and the 3rd defendant, Tsang, if necessary, also against his sentence.

2. Lee abandoned his application in respect of conviction but filed, on 13th September 1988, an application for leave to appeal against sentence out of time. We have earlier today dealt with that application, refusing it. Tsang abandoned his application in respect of sentence.

3. The progress of this appeal has an unfortunate history. The convictions were in 1988, sentences being passed on 10th of November of that year. The applicants originally made an application for legal aid which application was withdrawn on 25th January 1989. A solicitors firm, So and Karbhari, then came on record. On 14th April 1989 full transcript was provided. After the Court had made enquiry as to why no grounds had been filed this matter was listed, on 1st June 1989, for hearing. Subsequent to the listing D1 re-applied for legal aid and, on 29th May, So and Karbhari came off the record. By the 1st June, the hearing day, all three had re-applied for legal aid and their applications not yet having been determined and the matter was adjourned. It came up for hearing again on 3rd August and there was a further adjournment and eventually, on 2nd November 1989, the applications for legal aid in respect of conviction were refused. The matter was then re-listed for today.

4. The rape was alleged to have taken place of the same girl on the same date, 5th March 1988, and at the same place, Kap Lung Tsuen at Pat Heung in the New Territories. The girl was aged 21 at that time and it was the case for the Crown that she worked as a night club hostess getting part of her income from acts of prostitution. Her work place was in Tsimshatsui. On the evening of 4th March she was drinking with customers at the Club where she worked. She left there and went to another club where she drank some more. When she left that latter club she became physically ill partly, as she described it, as a result of the alcohol she drunk, and partly as a result of tireness and a stomach upset. A man came along and offered her a lift home. She got into a car saying she wanted to go to Hong Kong Island. There were three men in all in the car. She was instead taken for a joy-ride, during the course of which the car stopped for petrol at a Tsuen Wan Petrol station. In the course of the journey that car was joined by two other cars.

5. The cars eventually arrived at a water catchment area in the New Territories, an isolated place which had a tunnel leading to the water catchment and a road leading to the tunnel. Before the car containing the girl had reached that place she had asked to be allowed to get off when a taxi was seen but she was not permitted to do so and she, at some point of that journey, cried.

6. When they reached the tunnel she was equally refused permission to leave. D2, Fook, led her to another car where he sat in the drivers seat, she in the passenger seat. They had a conversation and D2 suggested to her that she become his, D2's, girlfriend. This so that the other would not tamper with her. She agreed to this and D2 then left the car. The girl heard an animated discussion going on, in the course of which some person said "It is crazy as she has been a hostess she must be used to it."

7. D2 then returned to where she was in the car and told her he could not help her as his friends had refused. A further long discussion, mainly about the girl's private affairs, took place. Money for services rendered was mentioned. The girl said she refused saying "I will not do it, I want to go away."

8. There were 8 to 10 persons present. she was in fear because of the numbers and she succumbed to the inevitable, adjusting the car seat and removing her nether clothes. She then had intercourse with D2. Five further men in succession had intercourse with her and those men included D1, Lee, and D3, Tsang.

9. None of this was seriously disputed at trial in the sense of intercourse having taken place. It was accepted that the girl had made no overt complaint and that she was generally co-operative.  The whole issue at trial was consent and the possibility of a mistaken belief by D2, and in particular by D1 and D3 who were the last of the group who had intercourse, as to the girl's consent to that which was taking place.

10. On all of this the jury were very properly and very clearly directed. They had the benefit of hearing the girl in evidence and she was cross-examined, by leave, on her previous sexual experience. The judge said at page 9 of the summing up in relation to the belief in consent:

"If after considering this you think that an accused may have genuinely, although mistakenly, believed that the complainant was consenting, then that accused person is entitled to be acquitted. The test is a subjective one, it's not what you might have thought or I might have thought, or a reasonable man might have thought in the circumstances, it's what you think the accused thought at that time."

11. A similar direction was given at a later stage in the summing up.

12. When the incident was over at the catchment area the girl was taken to Poon Uk Tsuen where she stayed for a while with D1, Lee, and a fat man. She was not detained there and she left of her own accord. She took with her the watch of D1.  D1 then offered to take her to Mongkok and they set out taking in the course of the journey two minibuses and a taxi.

13. It was only when the girl was in the taxi that she asked the taxi driver to stop. He first thought she was joking, but subsequently he did stop at a police vehicle and then she made her complaint. All the applicants were arrested and in statements made they all denied rape but admitted to intercourse with her. Tsang, D3, at first denying that also. It was in the third statement that he admitted to intercourse.

14. D3 had been found at the time of his arrest leaving his premises with some clothes. It was suggested at trial the reason for this was that he had been warned that others had been arrested and that he should get rid of any evidence there might be but that this was simply a panic reaction. In his cautioned statement, Lee had said words to the effect that he knew he was wrong. From these, in the course of the trial, the Crown sought to draw inferences of guilt.

15. None of the applicants gave evidence but their defence of either consent, or a genuine belief in consent, was clearly introduced in front of the jury in the course of cross-examination and by reason of the statements they made.

16. In their homemade grounds and in submissions made to us today Fook and Tsang referred us to various portions of the evidence, Fook in particular drawing our attention to specific portions of the girl's evidence, but all these matters were very clearly and very properly drawn to the attention of the jury in the course of the summing up by the trial judge.

17. Tsang has drawn to our attention the fact that, subsequent to the applicants' trial, three other men were charged and came on trial for the rape of this girl but that the girl did not appear and those men were discharged. He suggested that this might be indicative of a guilty conscience on the part of the girl but this can only be, and is, speculation. It has no relevance to the convictions of the applicants in this trial.

18. They have each also referred to an episode which took place after the summing up had concluded and suggested, in effect, that there was a material irregularity in the course of the trial sufficient to vitiate the convictions.

19. What had happened was this. The jury requested that certain portions of the evidence of the girl be provided to them in transcript. The actual provision of a transcript was, of course, not possible so the judge adjourned the matter to get the court reporter who had transcribed the evidence to come into Court to read the notes of the portions the jury required. While this was being done the jury were asked to retire to their waiting room. This they did. This occurred at 2:41 p.m.. At 3:10 p.m. the Court resumed at the request of counsel, the jury being absent. Mr. Lunn, who appeared as counsel for the Crown on fiat, drew to the attention of the trial judge a matter which he thought it proper should be referred to. Both the judge's clerk and the jury usher were asked to leave the Court before this matter was ventilated.

20. What had happened was that the judge's clerk had gone to the jury and had had some "communication", as Mr. Lunn put it, with them. This was not done upon the direction of the judge. Mr. Lunn submitted that this was in fact an immaterial irregularity but that the matter should be drawn to the attention of the trial judge.

21. The jury were called back into Court as were the clerk to the judge and the jury usher. The judge then addressed his clerk and asked her to tell what had occurred to which she made answer: "I was speaking to Mr. Chui, one of the jury members that they have to wait for a while, we are going to find the court reporter to read them the official notes." The judge then addressed the juror, who was the foreman of the jury, asking him could he confirm that which the clerk had said. The foreman did so.

22. There was no application from any counsel to discharge the jury and the judge stated that he thought it an irregularity which he did not consider to be material and that he could not see the possibility that any miscarriage of justice arising from it.

23. The trial then proceeded with the passage that the jury required from the evidence of the girl being read out to them.

24. In Sawyer [1980] 71 Cr.App.R. at page 283 Lord Parker, L.C.J. at page 285, set out the test in matters of this kind. As to what the judge has to do he said this:

"It seems to us that what he principally had to decide was whether there was any danger from anything done or said that the jury might have been prejudiced against the appellant."

25. There is a discretion in a trial judge to stop a trial which discretion must be exercised judicially and exercised on the facts as known to the judge. In Regina v. Spencer [1987] 1 A.C. 128 the House of Lords endorsed the test as set out in Sawyer and, at page 145, Lord Ackner in his Speech said:

"It fell to the Court of Appeal as it does to your Lordships to ask themselves whether in all the circumstances they were satisfied that the verdict was safe and satisfactory."

26. The manner in which the trial judge dealt with this incident was proper and was a correct exercise of his discretion. We accept that there was an irregularity but we do not consider that irregularity to be in any way material. The judge's assessment of that which had taken place as giving rise to no miscarriage of justice was correct.

27. Many of the matters raised to us today by the applicants in relation to the other grounds were matters which could have properly been said at trial by them but were not. In any event, the trial judge had very carefully directed the jury on all the various aspects which were relevant to their consideration of the offences charged.

28. The issue was essentially a jury issue. They decided it and, on the evidence before them, they were entitled to come to the conclusions they did.

29. We do not find these convictions to be either unsafe or unsatisfactory and the applications for leave to appeal against conviction are refused.