R. v. CHEUNG YUEN CHUNG and Another

IN THE COURT OF APPEAL

1996, No. 87

(Criminal)

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J U D G M E N T

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Litton, V-P giving the judgment of the court :

Introduction

1. There are two applicants before us: Cheung Yuen-chung (D1) and Cheung Man-tsan (D2) who were the 1st and 2nd defendants at the trial. They were charged together with a 3rd defendant Law San-kit on an indictment which contained a count of rape, with an alternative count of attempted rape. At the time of the offence, 8 June 1995, they were respectively 22 and 17 years of age. The 3rd defendant Law San-kit was 14 years old. At the conclusion of the evidence of the alleged victim Wong Man-yi (PW1) the indictment was amended to include an alternative count of indecent assault. D1 and D3 testified at the trial. D2 did not. All three accused were found not guilty of rape, but guilty of attempted rape. D1 and D2 were sentenced each to six years' imprisonment.

The victims's tory

2. The victim, PW1, was, in June 1995, just over 13 years old. On the evening of 6 June 1995, after a dispute with her mother, PW1 left home and spent the first night with a school-mate. The next day, 7 June, she spent the day with Cheung Pui-fan, D2's sister, until late at night. Both of them then went to a place in the northern New Territories where there was a container. This was next to a yard, the premises of Wai Yip Engineering Co. where there were containers converted partly for use as offices, one stacked on top of another. On arrival PW1 was taken to the first container where she met the three accused, two other men and two other girls. After staying in this container for a while, PW1 went across to the Wai Yip Engineering Co. yard with Cheung Pui-fan and the three accused. The evidence became unclear at this point: Possibly, D1 left them at the yard to go and take a shower. PW1 went with Cheung Pui-fan, D2 and Law San-kit (D3) to the upper floor of the container. There were pieces of furniture inside, including a sofa. There was no electricity in the container and the only lighting came from the outside. By this time it was the early hours of 8 June 1995. There, PW1, Cheung Pui-fan, D2 and D3 sniffed thinner. Soon, Cheung Pui-fan left, leaving PW1 alone with the men.

3. What happened thereafter, and whether D1 was involved at all, were the issues at the trial. PW1, even after making due allowance for the difficulty of her situation, was an extremely poor witness. There were internal contradictions in her testimony: for example, at one point she said that the boys removed her "epper garments" and her jeans, but her bra and "enderwear" were not removed. Later, she said they were, but could not recall whether she had anything on her upper body or not. The prosecutor felt constrained to put leading questions to her in many instances, perhaps to give coherence to her story, but with unfortunate results. When she was first asked by the prosecutor who were in the container with her, she said D2, another boy whose name she did not know (later identified as D3) and her friend Cheung Pui-fan. There was no mention of D1. But, in answer to a leading question from the prosecutor she said that when Cheung Pui-fan departed that left her "sitting in the container with the three males"; she was then assaulted by the three males; but, in cross-examination, she agreed that D1 never touched her while she was in that container. It is of some significance that when she was first interviewed by the police she said there was only one boy in the container during the incident.

4. To continue the narrative, after the boys had left the container PW1 put on her clothes and then Cheung Pui-fan came in and found her crying. The two girls then left this container and returned to the container on the ground level and slept there for the rest of the night. The three accused were also sleeping in the same container, and there were other young people there as well.

5. PW1 and Cheung Pui-fan got up at about 11 a.m., when the three accused were still asleep, and they went shopping in Fanling. They returned to the yard in the afternoon. There were girls there playing mah-jong and the three defendants were working, packaging plastic bags stacked near the container. She spent the evening there and slept a second night in the same container. On the evening of 9 June 1995 PW1 went home and received a scolding from her mother. Her mother had, in the meanwhile, made a "missing person" report to the police. When her mother took PW1 to the police station to cancel that report, PW1 was interviewed about the two days she had spent away from home.

Defendants arrested

6. On 11 June 1995 the three accused were arrested at the container near the Wai Yip Engineering yard and taken to Lok Ma Chau Police Station.

7. In the afternoon they were taken to the Field Patrol Detachment Administration block in Fanling to be interviewed. In the evening they were taken to Sheung Shui Police Station for detention overnight.

8. On 12 June they were taken in the morning to the pathologist's office at the Police Headquarters (NT). In the afternoon of the same day they were taken again to the Field Patrol Detachment Administration block for further interviews. Later on in the afternoon they were charged with rape.

Police statements

9. D1 made two statements to the police, after he had been cautioned that he was not obliged to say anything. The first was in the afternoon of 11 June, and the second was on 12 June, after having been examined by the pathologist. This second statement added little to what was said in the first statement.

10. D2 likewise made two cautioned statements to the police. They were likewise first, in the afternoon of 11 June and, second, in the afternoon of 12 June.

11. If the contents of these statements were true, there cannot be the least doubt that D1 and D2 were guilty of rape.

Challenge to the police statements

12. A number of grounds of appeal have been formulated, directed at the confession statements. They boil down to two propositions:

(1) On the evidence before the judge in the voir dire, the judge could not properly have been satisfied as to the voluntariness of the statements.

(2) In any case, the judge misdirected the jury concerning the weight of these statements.

13. Point (1) arises from the following circumstances:

(a) There was evidence to the effect that when D1 was examined by the pathologist Dr. Poon on the morning of 12 June, he had reddish indentation marks on the front and back of both wrists. These were consistent with the impressions made by tight handcuffs. D1 had been taken in handcuffs from the police station that morning to the pathologist's office. The police officer who had interviewed D1, in giving evidence, accepted that the handcuffs were tight because D1 was rather fat. (His nick name is "Fat Chung").

(b) When D2 was examined by Dr. Poon, he found some blood in his saliva. Dr. Poon had then made out a memo, intending that D2 should be taken by the police to Fanling Hospital for further examination. This was not done.

14. Counsel invites us to conclude, from these two pieces of evidence, that the applicants were maltreated by the police; accordingly, the judge's acceptance of the police evidence that the cautioned statements were voluntary cannot stand. We reject this submission. As far as the indentation marks on D1's wrists are concerned, nothing suggests that these were not simply transient marks, caused shortly before D1 was examined by the pathologist.

15. As regards the blood found in D2's saliva, the pathologist had testified to the effect that it could have been caused by a variety of factors, wholly unrelated to maltreatment in police custody. As to why D2 was not taken to hospital for further examination, the matter was simply not pursued by defence counsel at the trial and it ended there. No inference, adverse to the police, can properly be drawn from these bare facts. We therefore reject these grounds of appeal.

16. As to point (2), the alleged misdirections, the submission made on behalf of D1 focusses upon a remark made by the judge. With reference to the reddish indentation marks found by Dr Poon on D1's wrists, the judge said this to the jury:

"In real life, members of the jury, you may think, a little rough handling is to be expected if you are in police custody suspected of having committed a serious crime. After all, police stations are not five-star hotels. But there must be a limit. Using violence to extract confessions is a totally different matter."

17. This was an unfortunate remark which ought never to have been made. Apart from everything else it was a serious and unwarranted imputation on the professionalism of the police generally. The question is whether, by this remark, the jury was in effect directed to give more weight to D1's statement than the circumstances warranted. We do not think so. The suggestion of "rough handling" was not made with reference to D1's other allegations of violence: it was confined to the effect of tight handcuffing: an allegation which, standing on its own, was of no relevance. We cannot therefore conclude that this was an irregularity which affected the verdict.

18. Yet another point, taken on behalf of both applicants, is this. The judge, with reference to the cautioned statements, told the jury in effect that he had, in proceedings conducted in their absence, ruled that the statements should be put before them for their consideration. It was unnecessary for the judge to have made such a remark, but since he had clearly also told them that the weight of those statements was for their consideration, this was not a material irregularity.

Medical examination of PW1

19. PW1 was examined on the afternoon of 13 June. Her hymen was found intact: a finding inconsistent with full penetration by the penis, though consistent with partial penetration.

Effect of confessions

20. As mentioned earlier, if full weight were given to the statements made by D1 and D2, the jury could not have failed to convict them of rape. D1 related how the three of them had forcibly removed PW1's clothes, with D2 pressing her hands back on the sofa and she (PW1) crying and kicking; with D3 helping to hold her legs D1 had sexual intercourse lasting 2 to 3 minutes but, feeling remorseful, did not continue to the point of ejaculation. He then left the container.

21. D2's statement was to the effect that D1 had sexual intercourse first, followed by him (D2) who ejaculated after several minutes and then D3 in turn raped PW1; all the time PW1 was crying.

22. Prima facie, these were full admissions of rape by the two applicants.

Did D1 take part in the rape?

23. Arguably, the jury did not give full weight to D1's confession statement. If they did, they should have convicted D1 of rape.

24. As mentioned earlier, D1 testified at the trial. It was to the effect that he did notice PW1 arriving with Cheung Pui-fan sometime after midnight. He was playing mahjong in the first container. He then went across to the Wai Yip container to take a shower. He then looked into the upper floor and found D2, D3, Cheung Pui-fan and PW1 sniffing thinner. He was not interested in participating so he left and returned to the first container to watch others playing mahjong. He was wholly innocent of the crime.

25. D3 also testified. Whilst he admitted that he and D2 were in the container with PW1 and did sniff thinner together - and he saw D2 at one point removing PW1's trousers - he never implicated D1.

Judge's direction to the jury concerning D1

26. As can be seen, apart from D1's statement to the police, the evidence implicating D1 in any offence was, at best, equivocal. Plainly, PW1's evidence was important. She was, as we have said, an extremely poor witness. Counsel suggests that it was incumbent upon the judge in these circumstances to carefully direct the jury, highlighting her inconsistencies.

27. PW1, in testifying, said she found difficulty in expressing in words what had occurred. She said that whilst she was struggling, with her clothes removed and the men pressing her down on the sofa, a "hard object" was inserted into her lower part" and she felt very painful. As to this, the judge quite rightly said to the jury:

"You will recall that Wong Man-yi (PW1) had great difficulty in relating this part of the incident. This may be due to her lack of knowledge in sex matters or she was deliberately trying to be vague and evasive. That is a matter entirely for you."

28. But - and this is the passage in the summing-up of which counsel complains - the judge went on:

"One thing that she was sure about was that all three accused were inside the container while this was going on."

29. Counsel for D1 argues that this was a serious misdirection concerning the effect of PW1's testimony, taken as a whole.

30. Earlier, the judge had reminded the jury that PW1, in cross-examination, had agreed with defence counsel that D1 did not sniff thinner and also agreed that D1 did not touch her. The judge then went on to say:

"Cheung Pui-fan left that room after a while, leaving her alone with the three accused. She had been sitting down on the sofa that's shown in photograph 4. The door at that stage was closed, and when she tried to leave to look for Cheung Pui-fun, one of the three accused grabbed her. Her clothes were removed, she was pressed down on the sofa, two of the men were holding her hands and feet. She was struggling and crying out but to no avail." (Emphasis added).

31. Here, as can be seen, the judge was summarising the effect of PW1's testimony as if there were no doubt concerning D1's presence throughout the incident. This, counsel says, fails to highlight the inconsistencies in PW1's testimony: in particular, the following passages in the cross-examination:

"Q. And he never touched you while you were in the container on the 2nd floor.

A. Agree.

Q. Yes, and at the time that you were interfered with Mr CHEUNG Yuen-chung, Fat Chung, had gone into the Wai Yip Engineering Company to have a bath, have a shower.

A. At that time I was not clear."

32. And in relation to the time, a little earlier, when PW1, Cheung Pui-fan and the others were going across to the Wai Yip Engineering Company container, PW1 said she saw D1 holding a towel but did not know what he was then doing. The cross-examination then continued:

"Q. Was that on the ground floor, was it?

A. I saw him on the ground floor.

Q. With the towel?

A. Right.

Q. Where were you at the time?

A. At that time I was standing behind him.

Q. Behind him?

A. He was walking ahead of me. I was walking behind him.

Q. Right. That's when you were all walking into the Wai Yip Engineering Company, is it?

A. Right.

Q. Well, I suggest he carried on walking in to the container into that company and didn't go up to the 2nd floor with you.

A. I'm not clear."

33. This, on its face, is wholly consistent with D1's story and acquits him of any involvement.

34. The judge clearly was in some difficulty in summing-up the effect of PW1's testimony. It was PW1 who had led the police to the yard. There were a number of persons in the container when the police arrived, including the three accused. PW1 had identified the three accused to the police. When asked by the prosecutor why she had picked out those three, her answer was:

"A. Because at the time when this incident occurred these three defendants were present."

35. By "the incident" she meant the incident which occurred upstairs in the second container. In this sense, the passage in the summing-up now impeached - "one thing that she was sure about was that all three accused were inside the container while this was going on" - is accurate.

36. But, as a summary of the effect of her testimony overall, it was inaccurate.

37. This inaccuracy was, to an extent, aggravated by the following broad statement:

" In addition to the medical evidence, you will look at the evidence of WONG Man-yi and the cautioned statements if you believe that the statements were made by the accused and they are true. Before you can convict any of the accused of Attempted Rape, you have to be sure of two things. First, he intended to rape WONG Man-yi. Second, with that intention, he did something which was more than mere preparation for committing that offence."

38. In relation to D1 it would have been better if the judge had said to the jury words to the effect that, before anything else, they had to be sure that D1 was present during the incident.

39. It is, of course, no part of the judge's duty to be an advocate for the defence. On the other hand, there was a real issue, as regards D1, as to whether he was present at the incident at all. On the basis of his cautioned statement, he clearly was. But, on that statement, he was guilty of rape - not merely attempted rape on which he was convicted. But, that aside, the rest of the evidence raised a considerable doubt as to whether D1 was one of the assailants. PW1 testified unequivocally that D1 never touched her.

40. In these circumstances, whilst it is not possible to say that the alleged shortcomings in the summing-up amounted to a material irregularity, there remains a lurking doubt as to whether the conviction regarding D1 is safe and satisfactory.

41. Having reached this point, we must accede to D1's application and, treating the application for leave as the hearing of the appeal, allow D1's appeal and quash his conviction.

D2's conviction

42. D2's difficulty on appeal is compounded by the fact that there was no evidence from him to contradict PW1's testimony: unsatisfactory though it was in part: particularly bearing in mind that, on her own admission, her recollection of events must, to an extent, have been affected by sniffing thinner that night. Nevertheless, PW1's testimony was to the effect that when she first entered the upstairs of the second container she was with Cheung Pui-fan, her brother D2 and a boy whose name she did not know. D2, according to her, took full part in the assault after Cheung Pui-fan left. D2, in his cautioned statement, admitted rape to the point of ejaculation. D3, in his testimony, said that it was D2 who removed PW1's trousers.

43. In considering D2's case, the jury must have wondered what his version of events was. But D2 never testified. In this regard counsel complains of the following passage in the summing-up

"... the accused can also give evidence himself to rebut what is said against him. In this case, evidence given by the 1st accused and 3rd accused is evidence for and against all three of them."

44. D3, it will be recalled, had testified to the effect that D2 had removed PW1's trousers. When D2's counsel, belatedly, sought to have D2 called as a witness (after his case had closed and D3 had testified) this application, opposed by counsel for D3, was rejected by the judge. It is clear that, before D2 made his election to remain silent, he had been forewarned that D3 might implicate him. In these circumstances the judge had quite correctly disallowed D2's application to call rebutting evidence. We think that it would have been better if the judge had not said that "the accused can also give evidence himself to rebut what is said against him". After all, he had tried to do so but had been prevented from doing so. Nevertheless, looking at things in the round, we are satisfied that the remark did not render the verdict unsafe or unsatisfactory.

45. In these circumstances, it is not possible to entertain any lurking doubt concerning D2's conviction for attempted rape. His application must therefore be dismissed and we should hear counsel on his application for leave to appeal against sentence.