HKSAR v. WONG KIN MAN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 397
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant was convicted after trial of one count of rape, one count of assault and one count of indecent assault. He was sentenced to seven years' imprisonment for the rape, one year for the assault and two years for the indecent assault, all of which sentences were ordered to be served concurrently. The Applicant now seeks leave to appeal against these convictions.

2. Originally the Applicant was charged with a further count of rape. He was acquitted on this charge. To understand this appeal sufficiently it is necessary to also consider shortly the circumstances of this other rape charge. This was alleged to have occurred in December 1994 at a beach hut in Lantau. The Applicant had come to know the complainant Miss Shiu through his ex-girl friend Miss Yim Kit. They had gone to Lantau together and Miss Shiu had given evidence that the Applicant had forced himself upon her and had sexual intercourse with her against her will. She had not however made any complaint to anyone about this.

3. She had however had contact with the Applicant on several occasions prior to the incident which was the subject matter of the charges he was convicted of.

4. Miss Shiu gave evidence that on 14th October 1996, that is some twenty-one months after the Lantau incident, she had communicated with the Applicant. She had done so as a consequence of a conversation she had had with Miss Yim Kit.

5. The Applicant had picked her up in his motor car and they had then gone to Silver Strand Beach where they had had a discussion. It had then been decided that they should rent some laser disks and return to his home at Tseung Kwan O. When they had gone there the Applicant had suggested that they should have sexual intercourse. Miss Shiu rejected this suggestion whereupon the Applicant had become violent. She was prevented from leaving the Applicant's bedroom. He had insisted that she should smoke a cannabis cigarette. She had tried to resist doing this.

6. According to Miss Shiu's evidence the Applicant had slapped her face twice and held her down. He also kicked her. He had removed her clothes forceably. After he had removed her underwear he saw that she was menstruating at that time. He had then required her to masturbate him and indulge in oral sex. Following this, he had inserted his penis into her vagina and had sexual intercourse with her. He repeated this a second time. Shortly after the conclusion of this she had been able to make good her escape.

7. She had then taken a taxi home. During the course of the journey she had contacted two of her lady friends on her portable telephone and told them what had happened. She had also told her brother who had been a serving police officer and he had recommended that she should make a report to the police. She had done so. There was medical evidence of injuries which were consistent with the complaint she was making.

8. The Applicant gave evidence at his trial. He agreed that he had had sex with Miss Shiu on both the occasions complained of but claimed that this had been with her consent. The explanation he gave for the physical injuries sustained by Miss Shiu was that while under the influence of cannabis she had slipped and fallen and knocked her head against the cupboard next to his bed.

9. The first ground of appeal is as follows:

"The learned Trial Judge did not direct the jury adequately or at all on how they should regard the credibility of the alleged victim if they were not satisfied by her evidence on the first charge of rape."

10. Mr. Kynoch for the Applicant submitted that in the circumstances of the case where Miss Shiu's credibility was crucial it was imperative that the Judge should give a direction to the effect that if they did not accept her evidence on the first rape of charge this was a matter they should take into account when considering her evidence on the other charges. The Judge did consider this aspect of the matter at p. 26 of his summing up. He said:

"Now, whatever your verdict on the first count, members of the jury, you must then go on to consider all the evidence relevant to the second count, which alleges that some 18 months later, on 14 October 1996, the accused raped her in the bedroom of his flat at Tseung Kwan O. I remind you again that you may find some or all of the evidence in relation to the first count to be relevant to your considerations insofar as it may help you to understand what was the nature of the relationship between them at the time that the events of 14 October occurred, in depicting what had happened between them prior to the events of 14 October."

11. He also said at p. 10 - p. 12 of his summing up.

"You should take into account all the evidence in considering the second charge, obviously, which is directly relevant to that occasion in his flat, but your consideration may well also include the evidence in relation to the first count. You are quite entitled to take that into consideration. It may or may not help you. It is a matter for you, but it may or may not help you in assessing the credibility of the accounts which are given to you by the complainant on the one hand, the accused on the other hand, in relation to the second count. These are matters for you to decide, members of the jury."

What I am wanting to make clear to you is that although I have told you you must consider the case on each count separately that doesn't mean that evidence is given in separate rigid compartments and that you should only consider evidence in one compartment in relation to a particular count. It is not so. You should consider all the evidence which you have heard and which you consider to be relevant and as I say you may consider in your deliberations in respect of the second count of rape at the accused's flat, you are quite entitled to consider all the other evidence which has been given about what happened prior to that second occasion, including the incident on Lantau Island. It may or may not help you in deciding what weight to give in considering the evidence in relation to the second count.

It follows from what I have said, of course, that you may or may not come to the same conclusion in respect of both charges of rape. You may conclude that the prosecution have failed to make you sure of any of the matters that I have drawn your attention to in relation to both of these charges of rape, in which case you must find the accused not guilty of both the charges. Or you may conclude, it is a matter for you to decide of course, that the prosecution have made sure of all these matters, those three matters I mentioned, in relation to both charges, in which case you will convict him of both charges. Or you may conclude that the prosecution have made you sure of those matters in relation to one of the charges but not the other one, in which case then you will return a verdict of not guilty in relation to the charge that the prosecution has not made you sure of and a verdict of guilty in relation to the charge in respect of which you find that the prosecution has made you sure so that you are satisfied, beyond a reasonable doubt, that the accused did commit the offence charged."

12. What needs to be borne in mind is that while there was undoubtedly a connection between the two different incidents it was not necessarily the case that if the jury were not prepared to convict the Applicant on the first rape this would necessarily indicate that Miss Shiu's credibility had been called in question or even if it had that it had been affected in relation to the second incident. The circumstances of the two rapes were very different. There was evidence of recent complaints relating to 14th October's incident and there was also the medical evidence which supported Miss Shiu's allegations of assaults.

13. The fact that the jury were not prepared to convict the Applicant on the first rape does not necessarily mean that the jury entirely rejected Miss Shiu's evidence. The Judge had directed the jury on the burden of proof and the high threshold which had to be surmounted before they would be justified in finding the Applicant guilty. It may well have been the case that they were prepared to give the Applicant the benefit of the doubt notwithstanding the fact that in general terms they had found Miss Shiu to be a credible witness.

14. The directions given by the Judge were impeccable. There is no merit in the first ground.

15. The second ground is that:

"The Judge did not direct the jury adequately on a man's 'honest but mistaken belief' that the woman was consenting and in particular gave no direction on the burden of proof in this regard."

16. Deputy Judge Whaley did on a number of occasions give directions to the effect that the jury could only convict the Applicant of rape if they were satisfied that Miss Shiu had not consented to have sex and that this was clear to the Applicant or that he had been reckless as to whether or not she was consenting. It is clear from reading the summing up as a whole that the Judge did direct the jury on both rapes that they had to be satisfied that the Applicant had to be aware of Miss Shiu's lack of consent notwithstanding the evidence she gave concerning the assaults on the second occasion.

17. He also at the commencement of the summing up gave directions on the burden of proof in this way.

"It is very important that you remember this, that the prosecution must prove the defendant's guilt. The defendant does not have to prove or to satisfy you of his innocence in this matter. The fact that the defendant is sitting in the dock in this matter charged with these offences, you should not allow to be interpreted in any way to his disadvantage in your mind. That is simply where defendants sit when they are charged and it is for you to decide whether the prosecution has proved his guilt.

Before you convict the defendant you must be sure of his guilt and that is the same thing as being satisfied beyond a reasonable doubt. That is the phrase that is often used, that you must be satisfied 'beyond a reasonable doubt' of his guilt and that means that you must be sure of his guilt on the basis of the evidence that you have heard."

18. These directions were sufficient in the circumstances.

19. The 3rd ground is:

"The Judge did not disclose to Counsel that the jury had already reached a verdict until after he had discussed the jury forms with Counsel and had given a further direction to the jury."

20. It would appear that Deputy Judge Whaley was concerned about the form of the written instruction which is given to jurors concerning the manner in which their verdicts are delivered. The form being a pro forma type includes directions as to how jurors are to proceed when alternative verdicts are returned.

21. In the present case there were no alternative verdicts. The Judge was apprehensive that the jurors may become confused by the instructions in this connection. The Judge raised this matter with counsel in the absence of the jury apparently shortly after he had been advised that they have reached their verdicts. When discussing the form of the instructions with counsel the Judge had omitted to advise them that he had been informed that the jury had already reached their verdicts.

22. There had however been agreement as to how the jury should be directed concerning the instructions and the Judge had given these directions to the jury.

23. It is difficult to see how any prejudice could arise as a consequence of counsel being unaware of the fact that the Judge had been informed earlier that the jury had already reached their verdicts. There is no substance in this ground.

24. This case was pre-eminently one for the determination of a jury. The fact of the matter is that having heard all of the evidence and having been given impeccable directions the jury was satisfied at the appropriate level that the Applicant was guilty of these offences. We can see no reason or justification for interfering with these convictions. The application is accordingly dismissed.