HKSAR v. CHAND GILL

CACC 219/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 219 OF 2014

(ON APPEAL FROM HCCC NO. 20 OF 2014)

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REASONS FOR JUDGMENT

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Hon Macrae JA (giving the Reasons for Judgment of the Court):

1.  The applicant originally faced an Indictment containing three counts of rape (Counts 1, 2 and 4), contrary to section 118 of the Crimes Ordinance, Cap 200, and one count of non-consensual buggery (Count 3), contrary to section 118A of the same Ordinance. He pleaded not guilty to all four offences before Line J and a jury.

2.  On 17 June 2014, the jury acquitted the applicant on the first two counts of rape (Counts 1 and 2) but returned unanimous verdicts of guilty on the count of non-consensual buggery (Count 3) and the third count of rape (Count 4).  The judge sentenced him on the same day to concurrent sentences of 7½ years’ imprisonment in respect of Counts 3 and 4.  The applicant sought leave to appeal against his convictions on both counts.

3.  On 9 October 2015, we granted leave to appeal in respect of the applicant’s conviction on Count 4 and allowed the appeal on that count.  We dismissed the application for leave to appeal against his conviction on Count 3.  On 14 October 2015, we substituted for the sentence of 7½ years’ imprisonment passed on Count 3 a sentence of 4½ years’ imprisonment.  We said we would hand down the reasons for our decision in due course, which we now do.

The prosecution case

4.  The complainant was an Indonesian domestic helper who had come to work in Hong Kong in 2011.  She had been married in 1999, since when she had given birth to three children.  She was a Muslim and in the habit of praying five times a day.  In terms of physical stature, she was 151 cm tall and weighed some 42 kg.

5.  The complainant had first met the applicant by chance on her day off on Sunday, 4 August 2013 near Mei Foo Sun Tsuen MTR station in Kowloon.  At first she ignored the applicant’s attentions, but eventually they spoke to each other, which resulted in the exchange of telephone contacts.  They subsequently communicated a number of times.  On 9 August 2013, the complainant was again on holiday, which also happened to be the day of an Indonesian festival.  The applicant rang her up in the morning whilst she was at prayers and asked to see her in the afternoon.  She expressed concerns that it might not be proper for her to see him alone, but he assured her that as her friend, he would not do anything bad or improper to her.  With that assurance, she agreed to meet him at the Sham Shui Po MTR station early that afternoon.

6.  The two met up at about 2 pm and walked together to the applicant’s home on the 9^th floor of a residential building in Sham Shui Po. Along the way, the applicant bought some bottles of mineral water and other drinks, although the complainant could not say what they were, or if they were beers.

7.  Since she was still apprehensive about being in the applicant’s company alone, and for her own peace of mind, the first thing the complainant did when she entered the flat was to ask him to give her the keys to the premises; the applicant obliged and gave her three keys.  After initially chatting on a mattress, the complainant entered the toilet to wash her face and hands in preparation for her afternoon prayers.  When she came out of the toilet, she noticed that the applicant had taken off his T-shirt and trousers and was only wearing a pair of short pants.  She felt uneasy and asked him to get dressed. After praying as she was required to do, she shook hands with the applicant in accordance with a Javanese tradition.  The applicant pulled her hand but she told him not to and pushed him away.  The applicant suddenly pushed her, causing the back of her head to bump against the wall.  She reminded him of his promise not to do anything improper and they became quiet for a while.  However, less than a minute later, the applicant pushed her again and, as she lay flat on a mattress, he pressed his body against hers, touching her breasts, and kissing her on the face and lips.  He then moved to sit astride her so that she was unable to move, and removed her dress, trousers, underpants and brassiere.  She tried to resist by holding her thighs together and putting her hands on his chest, but she was not strong enough.  The applicant then removed his underwear and raped her.  In the course of the act, the complainant said she did not want to have another child; whereupon the applicant withdrew his penis and ejaculated on her stomach (Count 1).

8.  The complainant was crying as a result, and repeated that she did not want to have a child.  The applicant apologised and tried to comfort her by assuring her that she would not get pregnant.  They then both went quiet again, after which the applicant again raped the complainant on the mattress (Count 2).  The complainant protested that he had promised not to do this kind of thing to her and used her fingers to pinch or scratch the applicant, leaving a mark on his chest.  However, the applicant simply ignored her.

9.  In the course of this episode, the applicant turned the complainant’s body over and penetrated her in the anus, moving his penis in and out (Count 3).  She immediately screamed in pain and begged him to stop because it was painful. She struggled free and crawled from the mattress onto the floor, in the course of which the applicant kicked her in the back.  She squatted down and cried, and then threw an ashtray at him, at which the applicant became furious.  Scared, the complainant went into the toilet and tried without success to shut the door.  She sat down inside the toilet hugging both of her legs together.  The applicant entered the toilet and gestured to the complainant to perform oral sex on him; which she refused.  He then urinated, and the complainant seized the opportunity to leave the toilet to look for the keys the applicant had given her; but she could not locate them.  The applicant came out of the toilet and was obviously angry.  The complainant put on her dress, but the applicant threatened to throw her trousers out of the window.

10.  The complainant sat on the mattress, trying desperately to think of a way to escape. The applicant pushed her down and raped her again (Count 4).  The complainant said that her mind went blank with fear.  The only thought she had was how to escape but, by this stage, she no longer had the strength to resist.  When the complainant felt something warm inside her, she realised that the applicant was ejaculating and managed to push him away.  As a result, he ejaculated around her private parts, on her dress, and on the upper part of her thigh.

11.  Having been pushed away, the applicant stood up and told her to go away.  She opened the door with a key which she found in a box by the window and fled, leaving her belongings behind.  The applicant, naked, chased after her to the end of the corridor before returning to the flat.  Since she did not dare to return to his place, she asked him in a loud voice to throw her belongings out of the flat.  When he failed to do so, she went downstairs.  On her way down the staircase, she met a Madam Chan (PW2), who lived on the 7^th floor. The complainant was unable to render the word “rape” into Cantonese, so she showed Madam Chan the stains on her dress and asked her to help get her belongings back.

12.  Madam Chan noticed that the complainant was barefoot and nervous.  Fearing that the complainant might be in trouble, Madam Chan called the police on her own telephone.  When asked why she had used her own telephone to make the call, Madam Chan explained that the complainant had nothing on her person.

13.  A police officer (PW3) arrived at the building at about 4.26 pm to investigate.  At about 4.35 pm, he saw the applicant walking down the staircase.  He arrested him for the offence of rape and took him to Sham Shui Po Police Station.  During the 15 minutes or so the officer spent in the applicant’s company that afternoon, the officer did not notice that the applicant was drunk or that he had consumed alcohol.

14.  In the afternoon of 10 August 2013, the applicant attended a video recorded interview conducted by a police officer (PW4) in the presence of a Punjabi-English interpreter.  He told the interviewing officer that he had had consensual sexual intercourse with the complainant twice that day, but denied having raped her.  He said he had known the complainant for about a week and referred to her as “darling”.  On 9 August 2013, he and the complainant telephoned each other and arranged to meet at Sham Shui Po MTR Station.  After they had met up, the complainant followed him to his place.  There, he drank beer while the complainant prayed.  After her prayers, and with her consent, he had unprotected sexual intercourse with her twice.

15.  The applicant said that he might have ejaculated inside the complainant in the first round of sexual intercourse.  He then cleaned himself in the toilet, after which the complainant went into the toilet to clean herself up.

16.  The complainant was, he said, wearing her long dress, which he pulled up when engaging in the second episode of sexual intercourse with her.  He said he had made a mistake and unintentionally penetrated her in the anus.  He realised his mistake when she shouted and screamed; after which he maintained that “the story ends there”.

17.  It was clear from the entirety of the record of interview, and it may be said that the applicant was emphatic about it, that there were only ever two sessions of consensual sexual intercourse, the second of which had ended when he had accidentally buggered her.

18.  The applicant told the interviewing officer that in relation to the first incident of sexual intercourse, the complainant had never objected.  He insisted that if he had had sexual intercourse with the complainant by force, she could have called the police after the first round of sexual intercourse.  He claimed that the complainant had agreed to the second episode of sexual intercourse.  However, he had just entered her in the wrong place, as a result of which she might have become angry with him.

19.  The applicant further maintained that he was drunk at the time of the incident (having drunk 10 to 20 cans of beer since 9 or 10 am that morning) and that, when he subsequently went downstairs, he assumed everything was fine, since he and the complainant had had sexual intercourse as boyfriend and girlfriend.

20.  In the evening of 9 August 2013, the complainant was examined by a forensic pathologist Dr H C Shum, who found, inter alia, (i) a 0.5 cm long split wound on her posterior fourchette near the fossa navicularis, and (ii) a 0.2 long longitudinal split of the mucosa at the 6 and 12 o’clock position of the complainant’s anal opening.  Dr Shum remarked that the injuries to the complainant’s posterior fourchette and anus were caused by the penetration of a hard object, such as a finger or a penis, within a day or two of his medical examination.

The defence case

21.  The applicant, a person of clear record, exercised his right not to testify before the jury but called Dr W T Tsang, who had examined the complainant on 9 August 2013.

22.  Dr Tsang gave evidence that the complainant claimed to have been raped by her newly-met boyfriend.  In cross-examination, however, Dr Tsang explained that he had written the word “boyfriend” in the complainant’s medical notes because she had said that the rapist was a friend who was male.

23.  The defence case, as it was put to the complainant in cross-examination by the applicant’s counsel at trial (not Ms Panesar), was essentially this.  First, the telephone conversations leading up to the incident were the sort which lovers might have.  Secondly, the complainant had consented to all of the sexual intercourse with the applicant.  Thirdly, the applicant was drunk at the time.  Fourthly, he had accidentally buggered the complainant with a single penetration, from which he immediately desisted when he realised his mistake.  Fifthly, the complainant was angry with the applicant for ejaculating in her vagina during the last act of sexual intercourse, one that took place after the accidental anal penetration. The complainant denied all of these suggestions.

The judge’s discussion with counsel and his summing-up

24.  It will be immediately apparent that there was a significant conflict between what the applicant had told the police in his record of interview, the admissibility of which was not challenged at trial, and the case which was put to the complainant in cross-examination.  The case asserted by the applicant in his record of interview was that there were only ever two episodes of consensual sexual intercourse, which ended with an accidental buggery.  The case put by the applicant’s counsel at trial to the complainant was that all of the episodes of sexual intercourse, including the last one (the subject of Count 4, which occurred sometime after the buggery in Count 3) were consensual.  In other words, the case accepted by counsel at trial in cross-examination was that there were indeed, as the complainant had testified, three episodes of sexual intercourse, and not, as the applicant’s records of interview suggested, only two episodes of sexual intercourse.

25.  Prosecuting counsel, Mr Paul Leung, was obviously concerned about this apparent inconsistency in the defence case and how it should be dealt with that he raised the matter with the judge before his closing speech to the jury:

“MR LEUNG: Well, my Lord, you see, from (the complainant) there are four sex acts, four charges, whereas in the VRI there’s only mentioned two and it was never put to the witness that there was, in fact, two. I don’t know how your Lordship is going to deal with that.

COURT: I hadn’t intended to highlight that for them. They’ll be alive to the fact that his account ends at the buggery.  Hers doesn’t.  I might mention that.  ...”

And there the matter was rather unsatisfactorily left.

26.  In due course, the judge in his summing-up identified the central issue for the jury’s determination in this way:

“ Members of the jury, there has been no dispute that on 9 August of last year, 2013, … , an Indonesian maid, left a flat used by the defendant, without her shoes and without her belongings. She called the police with the help of a kind Chinese lady and caused the defendant to be arrested for rape. She has given evidence to you for nearly two days in the witness-box about what led to that. She told you she was escaping because the defendant had raped her three times and had deliberately buggered her.

 You have not heard in (any?) evidence from the defendant. … all you know from his side is what he told the police when he was interviewed by them the next day. In that interview, he claimed that the woman consented to have sex with him and that he had been drinking alcohol continuously throughout the day and that the buggery was accidental. He said that she left the flat, talking on her telephone.

 Which is the true version? What really happened?  That is for you to decide.  You are the judges of what happened.  You are the judges of where the truth lies.  If you are sure that (the complainant) told you the truth, then the prosecution will have gone a very long way to proving the case against the defendant.  If you are not sure, then your verdict will be ‘not guilty’.  The issue really is as straightforward as that. Deciding the issue is a matter for you and not me.”

27.  Concerning the elements of the offences of rape and of non-consensual buggery, the judge told the jury:

“ A man commits rape if he has unlawful sexual intercourse with a woman who at the time does not consent to it and if, at the time he has sexual intercourse with her, he either knows that she does not consent to it or is reckless as to whether she consents to it.

     …

 Before you could convict the defendant, you have to be sure of each of the following matters: that the defendant had sexual intercourse with (the complainant); that at the time of that act of sexual intercourse, (the complainant) did not consent to it; and that, at the time of the sexual intercourse, either the defendant knew that (the complainant) did not consent or was reckless as to whether she consented to sexual intercourse.

 As to the first ingredient, there is no issue that sexual intercourse took place between the two of them, even though there may be an issue as to how many separate times it occurred.

 As to the second ingredient of lack of consent, the word ‘consent’ bears its ordinary meaning. … As to the second ingredient, there is an issue. The defence case is that (the complainant) consented to the sexual intercourse that took place.

 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. … You may think that if (the complainant) told you the truth, then the defendant must have known she was not consenting and the resolution of the question of whether she was an honest witness will resolve the question of guilt on the three counts of rape.

...

 I go on now. A man commits buggery if he deliberately penetrates the anus of another person with his penis. He commits non-consensual buggery if the prosecution prove that the other person did not at the time consent to it. Before you could convict the defendant, you would have to be sure of each of the following matters: that the defendant buggered (the complainant); that at time of that act or buggery, (the complainant) did not consent to it; and that at the time of the buggery, either the defendant knew that (the complainant) did not consent or was reckless as to whether she consented to the buggery.

 No issue of consent arises in relation to the buggery. There is no suggestion that (the complainant) consented to it. The defence to the charge of buggery in Count 3 is that it was accidental. The prosecution must prove that it was not so in order for you to convict. You may think that the issue here is simply who is telling the truth. (The complainant) described deliberate positioning and continued movement inside her anus after the initial penetration. The defendant told the police that it was an accidental penetration and that he withdrew and then ejaculated.” (emphasis supplied)

Grounds of appeal

28.  Unfortunately, it is this dichotomy between what was asserted by the applicant in his video recorded interview, which was broadly in conformity with his instructions, and what was put on his behalf to the complainant in cross-examination by his counsel at trial, which gives rise to the first ground of appeal advanced by Ms Panesar.  Her complaint is that the applicant’s clear instructions were not put properly or at all in relation to Count 4 and that, instead, a positive case of consensual sexual intercourse was advanced when the applicant’s actual instructions, consistent with his video recorded interview, were that there never was a third episode of sexual intercourse after the accidental buggery.  Yet, she submits the two lines of defence could not stand together: either the sexual intercourse never happened at all, or it did happen but it was consensual.  Accordingly, she complains that trial counsel was flagrantly incompetent in putting a positive case in defiance of his own client’s instructions.

29.  In view of the seriousness of the allegation, the Court called for evidence to be filed by the applicant and his counsel at trial as to what the instructions in fact were so far as Count 4 was concerned.  As a result of that enquiry, for which purpose the applicant waived his privilege, it became clear that, following the late inclusion of Count 4 on an amended indictment by the prosecution, instructions were taken at a conference on 29 May 2014, at which trial counsel was present and in which the applicant is recorded as saying of the additional charge of rape “Not done”.  Trial counsel suggests that such words may have been open to interpretation inasmuch as they could mean there was no sexual intercourse, or they could imply that there was intercourse but it was consensual.  However, no clarification of the applicant’s words was sought by trial counsel or his solicitor at that conference or at any time thereafter.  Moreover, it is clear from the rest of the applicant’s handwritten instructions that he was contending that there were only ever two incidents of sexual intercourse; the second of which culminated in the accidental buggery.

30.  We have regrettably come to the conclusion that the conviction on Count 4 cannot stand in the light of the way the applicant’s case was not put at trial, despite what appear to us to have been his clear instructions.  Whilst we recognise that a considerable discretion reposes in counsel conducting a criminal trial, which may even extend in certain circumstances to “choosing which of two inconsistent defences to put forward”[1], and that ordinarily a defendant is bound by the tactical decisions made by his counsel on his behalf, we do not think any tactical decision was involved by trial counsel in the present case.  Rather, there was a failure to put clear instructions or, if there were any doubt about them, to clarify those instructions.  In the result, a positive case was put to the complainant, which was not only at odds with the applicant’s answers in his video-recorded interview but was in defiance of what seem to us to be the applicant’s clear instructions.  We tend to agree with Ms Panesar that the jury might well have been puzzled by the notion that, following an episode of sexual intercourse which ended abruptly when the applicant buggered her (whether accidentally or deliberately), causing her to scream in pain, struggle to free herself, cower from him in the kitchen where she angrily threw an ashtray at him, and seek refuge in the toilet, they should both have happily resumed another episode of sexual intercourse minutes later, only for the complainant to run terrified and without her belongings from the flat and complain to a neighbour.

31.  It is no answer, as trial counsel has suggested, that even if he had put the right case on instructions to the complainant, she would almost certainly have denied it.  His duty was to put his instructions accurately so that the applicant’s defence (which was in fact broadly consistent with his answers in the video-recorded interview) was properly before the jury; particularly when the applicant did not give evidence.

32.  Accordingly, we allowed the application for leave to appeal against his conviction on Count 4 on this ground alone and quashed the conviction.  There are in fact other aspects to the first ground of appeal alleging flagrant incompetence, which also allege a failure by trial counsel to put his instructions (namely, Grounds 1 (b), (c) and (d)).  However, since they principally concern matters which were not put in relation to Count 4, we do not consider it necessary to embark on a detailed examination of them.  However, we should say, in deference to trial counsel, that we do not consider any of the other allegations engaged by Grounds 1(b), (c) and (d) to be made out and we would not have granted leave to appeal on any of those aspects of Ground 1, taken singly or together.

The consequences for Count 3

33.  We were concerned with the consequences of allowing the appeal in relation to Count 4 on the conviction on Count 3, and invited both counsel to address us on the point during argument.  Ms Panesar effectively submitted that if trial counsel was flagrantly incompetent in putting his instructions on Count 4, then the fair trial of the applicant may have been compromised throughout the trial and all convictions may have been infected by his conduct.  Mr Sean, for the respondent, argued that one could not assume that the applicant had been deprived of a fair trial generally simply because his counsel failed to put his instructions on one count, if instructions were properly put on the other counts.  He submitted that there would have been little or no impact at all on Count 3, however the jury resolved the applicant’s guilt on Count 4, because Count 3 involved a separate and discrete offence, in circumstances where the jury clearly understood their duty to return separate and distinct verdicts.

34.  We concluded that allowing the appeal for the reasons we have explained in relation to Count 4 would not have had any impact on the jury’s decision in relation to Count 3.  First, the issue for the jury on Count 3 was not whether or not the act of buggery had taken place at all, nor whether or not it was consensual.  The applicant’s defence was that the act had indeed taken place but that it was accidental; and that he immediately withdrew when he realised his mistake.  What was put to the complainant in cross-examination was consistent with the applicant’s instructions:

“Q. There was only one penetration in your anus and there was no movement after that.

A. He moved it in and out.

Q. You then shouted, “It’s the wrong side.” He then apologised and stopped.

A. No, he ignored me.”

Given that there was no dispute that buggery had in fact occurred and that the complainant had made it clear that she was not happy about it, it was a simple matter for the jury whether they accepted the account of the complainant that the applicant had deliberately turned her body over in order to bugger her and continued despite her objections, or whether it might have been accidental, as a result of which he immediately desisted.

35.  As we have seen (at para 27 supra), the judge properly characterised the issue for the jury as follows:

“No issue of consent arises in relation to the buggery. There is no suggestion that (the complainant) consented to it. The defence to the charge of buggery in Count 3 is that it was accidental. The prosecution must prove that it was not so in order for you to convict.”

The jury must unanimously have decided that it was not accidental.

36.  Secondly, there was an interval of some time between the facts giving rise to Count 3 and the facts giving rise to the last allegation of rape in Count 4.  We cannot see how the failure to put instructions on Count 4 can realistically have impacted retrospectively on the jury’s assessment of the issue of whether or not the buggery (which act was not disputed) was accidental.  Nor can we see how the jury’s decision on Count 3 can prospectively have affected their decision on Count 4.  It is true that credibility was in issue on both counts, but credibility is not indivisible, as indeed the judge told the jury; and as the acquittals on Counts 1 and 2 demonstrate.  He directed them as follows:

“In the case of all the witnesses you have heard, you can accept or reject all or some of what they told you. The fact that you disbelieve or do not accept a witness on one part of his or her evidence does not mean you have to reject or disbelieve him or her on the whole of their evidence. It is up to you what you accept and what you reject.”

37.  Thirdly, the judge made it quite clear that the jury must consider each count separately. He directed the jury as follows:

“There are four separate counts on the indictment or charge sheet, of which you have a copy, and you must give each separate count separate consideration because the evidence about each one is different; though the issue in each case may well be was the lady telling the truth, but separate consideration, please, for each count.”

Again, it is clear that the jury must have faithfully followed that direction, in the light of the different verdicts they returned as between Counts 1 and 2 and Counts 3 and 4.

38.  Accordingly, we were satisfied that the failure to put the applicant’s instructions on Count 4 cannot in any material way have impacted on the safety of the conviction on Count 3.

Other grounds of appeal

39.  By Grounds 2 and 3, Mrs Panesar submitted that the judge erred in failing to direct the jury that if they found what the applicant said in the video recorded interview might be true, they must acquit the applicant, and the judge erred in inviting the jury to consider, as between the complainant and the applicant, who was telling the truth.  She cited the case of R v Liberato (1985) 159 CLR 507 in support of the proposition.  With respect, the judge told the jury in clear terms that the applicant’s good character was something they could take into account in the applicant’s favour when assessing the credibility of what he had said in his records of interview.  Furthermore, the jury received the standard directions on the burden and standard of proof and, read as a whole, the summing-up made it abundantly clear, as the direction at para 35 supra explicitly directed, that they had to be sure in respect of Count 3 that the prosecution had disproved the defence of accidental buggery.  There is nothing in this point whatsoever.

40.  By Ground 5, Mrs Panesar complained that a list of definitions of medical terms requested by the jury was not read out or formally admitted in open court, contrary to Article 10 of the Hong Kong Bill of Rights Ordinance, Cap 383.  With respect, this point was never taken by counsel at trial, who, on the contrary, was perfectly happy to agree and participate in the provision to the jury of the definitions of certain medical terms, which had already been used in evidence.  There can be no valid complaint and we are surprised that Ms Panesar should take this point on appeal.

41.  Finally, it was averred by Ground 9 in Ms Panesar’s re-amended perfected grounds of appeal that the judge’s constant interruptions, interjections and comments undermined counsel’s cross-examination, as a result of which justice was neither done nor seen to be done.  With respect, counsel should consider very carefully before putting forward grounds such as this.  Not only is this ground unjustified on a close examination of the judge’s interventions and why they were necessary, but we cannot understand how Ms Panesar could have added such a ground of appeal, when she knew that trial counsel had already stated by way of affirmation to this Court, several months before she saw fit to amend the grounds of appeal, that:

“I wish to make it clear what I have stated in paragraphs 15-16 of the aforesaid affirmation (as to the Judge’s interruptions) did not prevent me by discharging my duty and am of the view the Trial Judge’s constant interruptions are not grounds of appeal.”

If that is how trial counsel himself felt about the judge’s interventions, it is extraordinary that appeal counsel should have seen fit to include this as a ground of appeal.  With respect, this point should never have been taken.

42.  We do not need to deal with the other grounds of appeal, since they relate only to Count 4, on which we have already quashed the conviction.

Sentence

43.  In view of section 83B of the Criminal Procedure Ordinance, Cap 221, we considered that we should review the sentence passed upon the applicant, given that the judge did not explain what his individual sentence for the buggery offence in Count 3 was or would have been, but merely increased the sentence for the rape offence in Count 4 for various aggravating factors, including non-consensual buggery, from a starting point of 6 years’ imprisonment to 7½ years’; before making both sentences concurrent with each other.  The proper course, with respect, would have been to identify the individual sentence appropriate to each count before considering whether the two sentences should be made partly consecutive and partly concurrent.  Since we cannot know what sentence the judge thought appropriate in respect of the offence of non-consensual buggery, and Count 3 is all we are now left with, we have no alternative but to consider sentence afresh.

44.  We must approach sentence on the basis that the applicant no longer stands convicted of the rape offence in Count 4.  Furthermore, we must honour the jury’s verdicts of acquittal on Counts 1 and 2.  Equally, it is quite clear that the jury must have rejected the applicant’s defence that the act of buggery in Count 3 was accidental and accepted the complainant’s evidence that the act was not only non-consensual but that it was persisted in, even when she screamed in pain and repeatedly told him to stop, before managing to free herself and crawl away from the mattress.  Even then, the applicant did not desist from his aggressive behaviour, pursuing her to the toilet, where she had taken refuge in an obviously distressed state, and asking her for oral sex.

45.  In the circumstances, we adjourned this matter so that both counsel could look at any relevant cases on the question of sentence.  In the event, none of the authorities referred to was of particular assistance on the facts of this case, save perhaps for the helpful approach and guidance given in HKSAR v Yee Yiu Sam (unrep., CACC 530/2001), where the Court upheld a starting point of 4 years’ imprisonment for an offence of buggery with a girl under 21, contrary to section 118D of the Crimes Ordinance. That was, however, a different offence.  As the Court observed, at para 20:

“Here the applicant had pleaded not guilty to the section 118A offence and guilty to the section 118D offence. The one issue which distinguished these two offences where a woman was under the age of 21 was the question of consent.”

We are, of course, dealing with an offence contrary to section 118A of the Crimes Ordinance, where the jury have found that there was no consent to buggery, against a background of what we must nevertheless accept as consensual sexual intercourse.

46.  In our judgment, the appropriate sentence after trial on the facts of this particular case, and in the circumstances of the offender, was one of 4½ years’ imprisonment.  We should here make clear that we did not attach great significance to the absence of a condom because, if we must accept that the first two episodes of sexual intercourse may have been consensual, then the complainant may also be taken to have accepted that a condom would not be used during their sexual activity.

47.  Accordingly, we reduced the sentence of 7½ years’ imprisonment on Count 3 (which had been made concurrent with the sentence for rape on Count 4, which has been set aside) to one of 4½ years’ imprisonment.

Conclusion

48.  The application for leave to appeal against conviction on Count 4 was granted and, treating the hearing of the application as the hearing of the appeal, we accordingly allowed the appeal and quashed the sentence of 7½ years’ imprisonment.  We refused leave to appeal against conviction on Count 3 and dismissed the appeal.

49.  In place of the sentence of 7½ years’ imprisonment passed on Count 3 by the trial judge, we substituted a sentence of 4½ years’ imprisonment.

[1] Halsbury’s Laws of England (4^th ed.) Vol 3(1), para 518 at p 420, approved in Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126, at 143J-144A, per Sir Thomas Eichelbaum NPJ