TANGKAO SAE TANG v. R.

IN THE COURT OF APPEAL

1994, No. 56
(Criminal)

- Headnote -

Criminal Law - Conviction for rape - Opinion evidence - Acceptance by jury of expert's opinion concerning marks on appellant could not have rendered appellant's evidence either more or less likely - Misdirection by judge.

Good character - Generally, standard direction on good character should be given - Failure to direct jury on relevance as regards credibility did not prejudice appellant in this case.

IN THE COURT OF APPEAL

1994, No. 56
(Criminal)

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J U D G M E N T

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Litton, J.A. giving the judgment of the court:

1. This applicant was convicted on one count of rape after trial before Leong, J. and a jury on 14 January 1994 and sentenced to five years' imprisonment. He is represented in this court by Mr Grounds who did not appear in the court below and seeks leave to appeal against that conviction.

2. The offence allegedly occurred on 6 February 1993 at about 10am in Flat A 2/F, No. 90 Broadway Road, Mei Foo Sun Chuen, a flat belonging to a Mr and Mrs Wong. The victim named in the charge, a Filipina, Ms Bolivar, was employed there as a maid by Mr and Mrs Wong. There were four children living in the flat, the oldest of whom was 12 years of age and the youngest two years old. The two-year-old sometimes slept in Ms Bolivar's room.

3. The applicant is a Thai national and a business associate of Mr Wong. He normally lived in Thailand. On his visits to Hong Kong the applicant would sometimes spend the night in the flat at Mei Foo Sun Chuen. On 5 February 1993, the day before the incident, the Wongs had gone to China on business leaving the four children behind. The applicant was on a visit to Hong Kong and Ms Bolivar was instructed by the Wongs to open the door to the applicant.

Event prior to the incident

4. The complainant's version of events leading up to the rape was to the following effect. Around midnight on 5 February 1993, the applicant went into her room on two occasions within an interval of 15 minutes. She was then sleeping, with the little girl at the foot of her bed. The applicant made sexual advances which she repelled. She said she shouted at the applicant in English to leave her room.

5. The applicant gave evidence at the trial and did not deny that he went twice into the maid's room that night as alleged. He said he went in because the little girl was crying and, on the second occasion, he told Ms Bolivar to make some milk for her. He denied there were any sexual advances by him or that Ms Bolivar shouted at him. He said on the contrary that she spoke to him in a gentle voice.

Complainant's case

6. As to the allegation of rape itself, the complainant's version of events was this. At around 10am on 6 February, the applicant told the older three children to leave the flat. When she was alone with the applicant and the two- year-old girl, he came into her room whilst she was tidying up. The little girl was also there. She said that the applicant grabbed her by the shoulders and started kissing her. She resisted. The little girl was holding onto her leg but the applicant pushed the little girl away. The applicant then forced her to lie on the bed. He held her two hands with one hand and with the other pulled off her clothes and undid the zipper of his pants. The complainant said she cried and tried to push him away but he was too heavy for her. He was on top of her pressing his body on her. He pulled down her pants and used his foot to force open her thighs. She was crying, shouting and kicking during all this time. He succeeded in having sexual intercourse with her. She further said that after the sexual intercourse the applicant said in English "I am sorry. I am sorry. I love you" and took out tissues to clean her, put a diaper on her abdomen and then left the room. He returned and offered her a laisee packet which she threw away. He picked it up, offered it to her again and she again threw it away. He then picked it up from the floor and left the room. After the complainant had regained her composure, she went into the living room and tried to phone the police but the applicant stopped her. There was a struggle and the complainant succeeded in pushing him into his room and locking him inside. She then phoned 999 but was so distressed that she failed to get her message through on the first occasion. Eventually the police arrived at the flat. They found the complainant crying in the living room and she complained to the police that she had been raped by the applicant.

Applicant's case

7. The applicant's version of events was quite different. He said that on the morning of 6 February the complainant went into his bed-room, pulled him into her room and started embracing him and kissing him. A little later when the three older children had left the flat he went into her room and found her lying on the bed. He kissed her and fondled her and they then had sexual intercourse. She was a willing party. He denied saying sorry to her but accepted he said "I love you". He admitted offering the laisee packet to her and that she threw it away twice. He did not know why. He agreed that she had pushed him into his bed-room and locked the door but denied that he had prevented her from phoning the police. He said he was hesitant to open the door to the police because he was frightened. He was frightened because he did not know why the complainant had reported to the police.

Forensic examination

8. Later on that day both the complainant and the applicant were examined by Dr Lai, a government forensic pathologist. The complainant was found to have the following: (a) two patches of reddish bruises on her neck, fresh at the time of examination, probably made within two days; and (b) patches of redness and a red streak on her inner thighs. These were very fresh, probably within a few hours.

9. Dr Lai, upon questions being put by the prosecutor, expressed certain opinions regarding those findings. As regards the marks on the neck the judge had misrepresented the effect of Dr Lai's opinion evidence to the jury and when this was later pointed out by the prosecutor, the error was corrected by the judge in these terms:

"I have the benefit of the note taken by the Court Reporter and we all agree that the evidence of Dr Lai is that the marks on the neck are not defensive marks. So you will disregard that part of my summing-up in relation to the evidence of Dr Lai. You will just concentrate on the injury on the thighs."

10. The applicant was also examined on the same day by Dr Lai who found a patch of redness on his upper abdomen. This was very fresh, within a few hours.

11. Dr Lai also expressed an opinion concerning that finding which was summarised by the judge to the jury in these terms:

"Dr Lai said this was consistent with it being caused by a blunt object such as the defendant being kicked or punched."

Opinion evidence

12. Dr Lai, an expert in the field of forensic medicine, was of course able to express an opinion on his findings based upon the examination he had conducted. But an opinion remains an opinion, however eminent the person expressing it. Thus when Dr Lai said that the marks on Ms Bolivar's thighs were consistent with someone trying to spread her thighs apart, he was going no further than what that expression of opinion implied: it was consistent with the prosecution case.

13. As regards the patch of redness found on the applicant's upper abdomen, Dr Lai said that this was consistent with it being caused either by a kick or a punch.

The summing-up

14. Unfortunately, the judge went far beyond the inference which could properly have been drawn from Dr Lai's opinion evidence.

15. After the passage earlier referred to, when the judge quite rightly reminded the jury of Dr Lai's opinion evidence concerning the redness on the applicant's upper abdomen, the judge went on to say as follows:

"You will remember the defendant said in his evidence that he was assaulted by the police when he was questioned by the police in the premises. He told you the police officer punched him once in the upper part of his abdomen and he purported to explain that the reddish mark on his upper abdomen was the result of this punch."

He then went on:

"If you accept the doctor's evidence, you may think that the injury is more consistent with the defendant being kicked by the victim in the course of sexual intercourse, but the matter is entirely for you.

Since the injuries found on the victim and on the defendant are relevant to the issue of whether or not the victim resisted and the issue of the defendant - whether the defendant had used force, that is relevant to the issue of consent. The evidence of Dr Lai, if you accept his evidence, is capable of corroborating the evidence of the victim that she resisted the defendant and she did not consent to the sexual intercourse by the defendant."

16. The "acceptance" of Dr Lai's evidence could not have led to the conclusion that the applicant was more likely to have been kicked than punched. Since the issue of consent went to the heart of the case, this passage was a serious misdirection. The evidence actually given by Dr Lai was not capable of corroborating that of the alleged victim. Mr Casewell counsel for the Crown in this court did not seek to argue otherwise. The judge tilted the scales heavily against the applicant and diminished quite unjustifiably the weight of the applicant's explanation that he had been punched by the police by reference to Dr Lai's opinion evidence. As Mr Grounds accurately puts it in the perfected grounds of appeal, Dr Lai's opinion evidence did not in truth render the applicant's explanation either more or less likely.

Good character

17. There is another ground of appeal which we feel we should mention in the course of this judgment, namely that the judge failed to tell the jury that the applicant's good character was relevant to his credibility as a witness. What the judge told the jury with regard to the applicant's previous good character was this:

"But you must take into account the evidence that the defendant is of good character and he is a married man with an 8-year-old child. He is, according to Mr Wong, an honest man and a good business partner. And it is agreed that he has a clear record. You will consider whether the defendant being of such good character would have committed the offence of rape."

18. This seems to us to be an adequate direction in the circumstances of this case. The omission of any reference to "credibility" did not prejudice the applicant.

19. In taking into account the applicant's good character as an indicator that he was less likely than otherwise to have committed the offence of rape, the jury, in our view, would inevitably have also taken it into account in deciding whether he might have been telling the truth in the witness-box when denying that he had raped the complainant. We would not have interfered with the verdict on this ground. However, we think it only right to add that where an accused person of good character goes into the witness-box and gives evidence in his own defence, the best course is for the judge to give the jury the following standard good character direction:

"In deciding whether the prosecution has made you sure of the defendant's guilt, give weight to his good character. You have heard that he is a .... and that he has reached the age of .... without having committed any offence. Give that weight in two ways: first, as with any man of good character, it supports his credibility; and secondly, the fact that he has reached the age of ... without committing any offence means that he is less likely than otherwise might be the case to commit crime now."

Conclusion

20. It follows from what we have said earlier that the application for leave to appeal must be allowed and treating the hearing of the application as the hearing of appeal, we allow the appeal and set aside the conviction and the sentence.