HKSAR v. LEE YUET TONG

IN THE COURT OF APPEAL

1996, No. 711
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant originally faced six counts. Two were counts of rape each with an alternative count of unlawful sexual intercourse with a defective. There was one count of attempted rape with an alternative count of attempted unlawful sexual intercourse with a defective. It was alleged in the first count that the applicant had, on 15th September 1995, inside the ladies lavatory at Kwai Shing Playground, Kwai Shing Estate, Kwai Chung, New Territories, raped Tsang Pui-yee. In the alternative count it was alleged that he had unlawful intercourse with her, she being a female defective. We need not concern ourselves further with the other four counts as the prosecution, in the course of the trial offered no further evidence on those counts and the jury returned directed verdicts of not guilty thereon.

2. It was the prosecution case that at about 9:40 p.m. on 15th September 1995, the applicant went into a toilet cubicle in the public toilet block of the Kwai Shing Playground and there had sexual intercourse with Miss Tsang to which she did not consent. Miss Tsang was 17 at the time of the offence. She is deaf and dumb and there was evidence that she has a mental age of about 7. She said that the applicant had forced his penis into her vagina and had ejaculated. A tampon which she had been wearing in her underpants was later found to have semen on it.

3. The applicant, who was arrested at the scene, said that he knew Miss Tsang and knew that she was mentally retarded and that he had simply gone into the toilet to keep her company and that, while she was urinating, he had just stood there looking at the entrance.

4. The evidence of Mr. Kwok Tun-wun, a driving instructor, was that on the night of 15th September 1995, at about 9:30p.m. he was in the vicinity of the Kwai Shing Playground giving a lesson to a student when a boy came to his vehicle, knocked on the door and asked him to make a telephone call. He said he then dialled 999 and made a report to the police. He then left in his vehicle. He said that he was later contacted by the police.

5. Yeung Ka-kit, PC50863, said that he was on duty on 15th September 1995 and around 9:57 he received instructions to the go to the Kwai Shing Circuit where he arrived at about 9:59. He said that when he first saw the applicant he was being caught hold of by "the informant" (who was not called to give evidence) and that the informant then told him something. The witness pointed to a spot on Photo 2 of Exh.P2 which shows the lavatory block saying that that was where he had arrested the applicant on a charge of indecent assault. He said that the applicant was at his late fifties or early sixties and was wearing a shirt, a pair of trousers and slippers. The officer said that, when he arrived with the applicant back at Kwai Chung Police Station, he made a post record of the arrest and that the following exchange then occurred:

"'What is the relationship between you and female Tsang Pui-yee?' You replied, 'Nothing, (we are) just friends of the same (housing) estate.' I asked you, 'How long have you known the girl?' You replied, '(I) have known the girl for two years or so.' I asked you, 'Have you dated the girl before?' you answered '(I) have not dated her before.' I asked you, 'When did (you) see the girl today?' You replied, 'At about sometime past 9 o'clock tonight.' I asked you, 'Why were you inside the second cubicle of the female toilet with the girl?' You replied, 'The girl pointed at the toilet, I therefore kept (her) company.' I asked you, 'What did the two of you do in the toilet?' You replied, 'She was urinating. I just stood there.' I asked you, 'To whom the towel inside the toilet bowl of that cubicle belonged?' You replied, '(I) do not know.' I asked you, 'Do you know that the girl is mentally retarded?' You replied, 'I knew that she's mentally retarded when I knew her.' I went on to ask you, 'You accompanied her to the toilet for urinating just now. What did you do while you were standing?' You replied, "I just looked at the entrance.' I further asked you, 'Do you know (how) serious her mental retardation was?' You replied , 'I know that she's mildly mental retarded and is dumb.'"

The officer said that the applicant read over and agreed to the statement.

6. Miss Tsang was examined by Dr. Wu Siu at the Yan Chai Hospital on the night of 15th September. Dr. Wu found that there was no external wound on the vulva peritem and that there was no semen stain.

7. On the next day, about mid-morning, Dr. Poon Wai-ming, a forensic pathologist, examined the girl's private parts internally. He found diffuse redness and swelling on the inner surfaces of the labia majora and diffuse redness around the circumference of the vestibule. He said in addition there were few small abrasions each about 1 mm x 1 mm in size at the 9 o'clock position of the vestibule. He said that the diffuse redness and swelling was consistent with some form of recent irritation or mechanical trauma to the private parts which terms would include sexual intercourse. He said the abrasions were fresh and probably been caused by scratching or rubbing with a rough surface and that this could have been done by a rod, a stick or even by fingers.

8. Dr. Poon also examined the private parts of the applicant and found no sign of any defects.

9. There was expert evidence as to the following matters. A smear of blood was found on the accused's underpants. Upon analysis this was found to be of human origin but it could not be otherwise typed. The same was so for a spot of blood found on Miss Tsang's panties. Semen stain mixed with blood were found on a sanitary napkin of Miss Tsang. The blood was classified as group B which was the blood group of the accused. The evidence was that one in four people in the Chinese population in Hong Kong carry that blood group.

10. There was evidence from Miss Christina Li, a forensic scientist, that she had made a DNA profile match between the accused's blood sample and the semen stains found on the tampon. She said that the matching profiles made the accused a possible donor of the semen and that the chance of finding a random person with matching profiles was 2.26% or one in 44 persons in the local Chinese population.

11. The victim Tsang Pui-yee was affirmed in sign language. Throughout her evidence care was taken to try to ensure that she understood the questions asked and was responding thereto.

12. Mr. Liu, who appeared for the Director of Public Prosecutions, commenced by asking her general questions about her family and then asked her about a playground which was situated near her late grandmother's flat. She indicated that there was such a playground and that she used to go there when she felt bored. She was then shown Exh.P2 which contained ten photographs of the Kwai Shing Playground and indicated that she recognized Photo 1, a general view of the playground. She pointed to a shaded area where two concrete benches were situated indicating that it had something to do with "herself and the boy". She then pointed to a yellow wall on Photo 2, immediately adjacent to the toilet block "indicating that the two of them were walking towards there".

13. The following passage then occurred :

"Q. You mentioned another boy, where was he?

A. Inside the basket ball pitch.

Interpreter: She just point out to you where the shoot -- range of shooting - shooting range was.

Mr. Liu: Yes. Where there is some sort of a ...

Interpreter: Painted area.

Mr. Liu: Yes. Thank you.

Q. Is that the area with the dot?

A. To the left of the pitch there is a lamp post. Along the middle there is a .. (indistinct) .. path.

Q. Yes. Yes. What was he doing there?

A. He was standing there first, and then walked across where the positions of the trees and shrubs are.

Q. All right.

A. And then after the sexual intercourse, I sat on the bench as shown in the photograph.

Q. All right. Miss Tsang, one step by one step.

A. Well, that boy appeared to be very cocky, arrogant.

Q. Miss Tsang are you ..

Interpreter: She was talking - mention of a -- referring to another spot now. Beneath the basket ball stand there is another man who was watching and he caught hold of the other man.

Q. Okay. Now, Miss Tsang, just listen carefully. The boy that you first mentioned, are you able to tell us what -- around what age was he?

Interpreter: Well, she doesn't know, perhaps she doesn't understand it.

Q. Okay. Let me ask you again. Did he have black hair or grey hair or what?

Interpreter: Well, the hand signal indicates black but she seems to say grey. Shall I ask her to write it out?

Court: Yes.

Interpreter: Well, she doesn't want to write. She says that the hair is like that.

Mr. Liu: Okay.

Interpreter: We gather she means black."

She then looked at Photo 4, which showed the entrance to the women's toilet, and then to Photo 5 which showed the interior of the toilet which she indicated she could recognize. The following passage then occurred:

"Court: Sorry, Madam Interpreter - Madam Interpreter, she said something -- she indicated something just now. And she did this sort of ...

Interpreter: Okay. she understood that. Another boy caught hold of him and they talked to each other."

The witness then looked at photograph 7 which showed three toilet cubicles and indicated the third cubicle to the right. The interpreter then said:

"She made hand gestures indicating sexual intercourse took place there."

14. She said that the boy undressed, pulled off his trousers and placed himself on top of the girl. She said that at that time she was sitting on the toilet bowl. She demonstrated sexual intercourse by using a male and female doll and also indicated that the male organ "entered into her vagina". She indicated that "the male organ moved inside her vagina three or four -- three times".

15. The following passage then occurred:

"Q. Yes. Let me ask you again. After this three or four times what did you do?

Interpreter: Then she sat into the bowl where she was seated, some whitish fluid was dropped."

The following passage then occurred:

"Q. Yes. Do you see -- Did you see or feel where those white fluid come from?

Interpreter: From the same organ which was inserted into her body.

Q. And can you look at photograph 10. Where you then still sitting on the toilet bowl when the white fluid came out?

A. Yes.

Q. Now you were going to tell us something when you looked at the picture, please tell us.

Interpreter: The male -- the boy gave her some paper to wipe herself, the whitish substance and then dropped the paper into the bowl. The male -- the boy used the tissue to wipe his own organ."

She indicated that he gave her paper to wipe her body and that after wiping herself she threw the paper into the bowl and put her panties on and the two then left. She indicated that at that time she was having her period and that she was wearing a sanitary napkin and that when she left the toilet it was inside her panties. Miss Tsang was still wearing her panties and the sanitary napkin when WPC 18226, at 45 minutes past midnight at Kwai Chung Police Station, took possession of her clothes and of the napkin. She indicated that after leaving the toilet she sat on a bench and waited. She referred to photograph 3 indicating that the person with whom she had had intercourse sat on the left side of one of the benches and "the one who caught hold of the other sat on the bench on the right and they spoke to each other". She indicated that she did not agree to have sexual intercourse.

16. The above evidence was given on Friday 15th November, 1996. The court did not resume until Monday 18th November.

17. Upon resumption the witness demonstrated that sexual intercourse had taken place using two dolls and the interpreter added "Well, she said the lower part of the man's body entered hers." She indicated that the man had not been wearing spectacles. She was shown her clothes which were seized by the WPC but she was unable to say whether they were the ones which she had been wearing at the time of the incident but did indicate that she was wearing panties of that sort at that time.

18. Up until this point there had been no attempt to fix the date or time of the incident. Miss Tsang then said that she had been stopped after she had left the toilet. The judge then, the witness having shown signs of tiredness, adjourned the proceedings.

19. When the witness resumed giving evidence some 30 minutes later, she was asked when the incident had happened, day time or night time, and she indicated "3 p.m." The interpreter said,

"She emphasized it was 3 o'clock in the afternoon."

Mr. Liu then said,

"Now I would like you to look at another set of photographs"

The witness's attention was then directed towards Exhibit P3. These were photographs of the Kwai Hop Street Playground where it was alleged that on 24th November 1995 the applicant had raped the victim (3rd Charge) and had attempted to rape her (5th Charge). This incident was alleged to have occurred two months after the incident at Kwai Shing Playground. Miss Tsang said that she recognized the place shown on Photo 1 of Exh.P3 and she ran a hand along the pavement shown on the photograph indicating "she was on the pavement in the photograph. To her right there was a boy. The two of them walked along the road."

20. Counsel endeavoured to direct the witness's mind towards November 1995 but was not successful in doing so. He then asked her could she relate any incident in 1995 to the area shown in Photo 1. She indicated that something had happened in the afternoon after she had gone to that place on foot. She went on to demonstrate that on a bench shown in Photo 10 of Exh.P3, intercourse had taken place between "the boy and the girl". She indicated "The male gave her $40. The boy sat there, the girl left.". She indicated that sexual intercourse had taken place twice and that she felt the penetration of the sex organ. She indicated that she was not willing to have intercourse with the man. She indicated that nothing happened after the intercourse. She also said that "When the boy came, he smoked. there's the packet of cigarettes." Photo 11 shows a packet of cigarettes. She indicated that this boy wore spectacles, but she was unable to say whether he was young or old. She indicated that she had never seen him before this incident. She then appeared to refer to another incident when she entered the park by the entrance shown on Photo 14 and indicated that at the place shown in Photo 18 intercourse had taken place. She indicated that this was the same man who had had intercourse with her at the place shown on Photo 10 and that after this she left and went back to work.

21. These followed a long series of what proved to be inconsequential questions to which no intelligible replies were given. She was asked what she had done with the $40 and she indicated "A person named Ho gave me the $40 and -- for buying soft drinks and the like and had a chat with me." The following exchange then occurred:

"Q. Yes. So I want to make it quite clear. Was that Ho the name - the guy Ho, was he the same guy who had sexual intercourse with you?

A. Yes.

Q. Yes. How did you know that his surname is Ho?

Interpreter: She shook her head meaning 'no'.

Q. Was -- did he tell you that his surname is Ho?

A. Yes.

Q. Did he tell you his surname was Ho? How did he tell you that?

Interpreter: Well, I asked her for long time and she didn't answer me that question and she just told me that that person is surnamed Ho.

Q. when you were with this Ho chap in the park, did he write out his name for you?

A. No, he didn't.

Q. All right. So if you were to see this Ho again, would you be able to recognise him?

A. Yes."

She was later asked by the court whether she had ever seen Ho prior to the incidents in the park when she had twice had sexual intercourse with him. She indicated no.

22. Under cross-examination she admitted that, on 18th April 1996, some seven months after the incident on 15th September 1995, she had indicated to the police that on the previous day she had sex with a man inside a toilet, that it was the second booth and that she had been given $40. She also agreed that in November 1995 she had told the doctors that the first time she had sex was when she was fifteen years old. She indicated that this had been with a friend and that it occurred twice and that on both occasions it was in a toilet. She indicated further that in November 1995 she had told the police that she had sex with two different men on two occasions in May and June 1995 and on each occasion had been given $40. She indicated that on each of these occasions it was the toilet shown in Exh.P2, that is the toilet in the Kwai Shing Playground. As to the incident on 17th April 1996, she agreed that she had indicated to the police that the intercourse occurred in that toilet, and that she had, prior to the incident, gone to look for the man in a flat in a building because she failed to find her grandmother and felt bored. She indicated to the police that the man was someone she knew and that he walked with a big brown stick. When she did not find him in his flat she went out to the street where she found him and that they then went together to the toilet. After having sex with him inside the toilet cubicle, she was given $40. The following passage then occurred:

"Q. Now if I may ask you now to a look at Exhibit P2 again. Take a look at photograph No.7. Previously when you were questioned by the prosecution, you mentioned of one incident which took place in one of these cubicles shown in the photograph.

A. Yes.

Q. Now, the person who had sex with you; did you tell the police in one of the statements that you gave that he had a moustache?

A. Yes.

Q. Is that what you say now, the man had a moustache?

A. Yes, he does have a moustache but not long, just this thick.

Q. Yes, a noticeable moustache.

A. Yes.

Q. You also told the police that the man was tall and slim?

A. Yes.

Q. That he was wearing a long-sleeved white colour shirt?

A. Yes.

Q. And had brown colour shoes?

A. Yes.

Q. That you had not seen the man before and you did not know him.?

A. Right.

Q. So you say that was, in fact, the case.

A. Yes.

Q. Now, on this occasion that you gave evidence about, did you go into the cubicle first or did the man go into the cubicle first?

A. This occasion, are you referring to the occasion on 18 April?

Q. No, I am referring to the event which you gave evidence about when questioned by the prosecutor previously, the incident involving a person, you say, with a moustache.

Interpreter: Will you please repeat the question?

Q. On that occasion did the man go inside the cubicle first or did you go inside the cubicle first?

A. The boy went in first.

Q. So you followed?

A. Yes.

Q. You told us that it was the cubicle to the far right, looking at the photograph.

A. Yes.

Q. In your witness statement you mentioned it was in the middle booth.

A. No, it was in the third one.

Q. All right. So why did you follow the man into this cubicle?"

There was no answer to this final question and the cross-examination was then discontinued as the court felt it an appropriate time to adjourn.

23. The question was taken up on the following day and the answer was simply that she went in. She then indicated that she went in to urinate and that she then had sex with the boy inside the cubicle. She said she was sitting on the bowl at the time and the boy was standing. She was asked how sexual intercourse had occurred and she gave hand signals indicating that the boy's male organ entering her body. She went on to indicate that the boy, after cleaning his male organ with tissues, gave a tissue to her and she cleaned her private parts. She indicated that she then gave the tissue back to the man and he threw it away. The manner in which intercourse taken place was then pursued as follows:

"Q. Now, you mentioned that this boy's sex organ entered into your private part. Did you see it or did you feel it or did you both see it and feel it?

A. I saw the male organ.

Q. Was it limp or was it hard?

A. Dangling.

Q. So was his penis still dangling when he entered you?

A. Well, the man used his hand to lift his male organ to tuck it into my body.

Q. But could you tell whether it was limp or not limp?

A. Limp.

Q. And he was still standing up and you sitting down?

A. Yes."

She was then asked for how long the organ had remained inside her body and she indicated for a very short period and then once the organ was inside her body the person moved. She indicated the movement was backward and forward and that something white was ejaculated by the male. The interpreter added that the witness had indicated that the man ejaculated outside her body. She was then questioned about her statement to the police and it was put to her that she had told the police that the boy had not moved at all. To this she indicated "Not correct, the male -- boy's male organ did move."

24. The following exchange then occurred:

"Q. You told the police officer that after the boy had inserted his penis into your vagina, he had no action and had not moved.

A. Incorrect, he did. Besides, some whitish substance oozed out from my -- just outside by vagina."

The interpreter then corrected the interpretation saying:

"Some whitish substance was ejaculated just outside my vagina."

25. Under re-examination she said that male she had intercourse with at the place shown in Photo 10 of Exh.P2 was "an old one".

26. At this point Mr. Liu announced that he did not propose to call any further evidence in relation to the 3rd, 4th, 5th and 6th counts. The jury were then directed to return verdicts of not guilty on those counts.

27. The first nine grounds are an attack upon the evidence of Tsang Pui-yee. They read as follows:

"1. The nature of the evidence of Tsang Pui-yee was so flawed and unreliable that it should not have been left to the jury to consider, on either charge.

2. By the conclusion of Tsang's evidence it was apparent that it was inadmissible by reference to Section 3(b) of the Evidence Ordinance (Cap.8) i.e. that it was apparent that she was a person of unsound mind and had shown herself to be incapable of receiving just impressions of the fact or of relating them truly.

3. That she did not give evidence, or testify as those terms are understood in law. The "evidence" had to be given by way of very limited and broken sign language, drawings and body language. This form of communication is not the way in which juries or triers of fact assess credibility.

4. At the end of Tsang's evidence the position was as follows:

(i) There was no identification of the Appellant. Indeed such identification as there was, was of a person who clearly was not the Appellant.

(ii) She gave an account of a time and location of an incident of intercourse which did not match the time or place where the Appellant was arrested.

(iii) Tsang's description of the act of intercourse seems extremely unlikely if not physically impossible.

5. There was no corroboration of her "story".

6. Indeed such corroboration as one might expect to have found had she had intercourse was absent; i.e. the medical evidence showed no signs of semen on or in her and no other signs of recent entry, forcible or not.

7. Where her evidence reads coherently, the assistance of the interpreter must be assumed. And even then it may be that the transcript does not give the whole story.

8. Insofar as absence of consent is concerned, the evidence is tenuous in the extreme. Whilst she could not of course raise a hue and cry, there are none of the usual physical indiciae of rape and no indications of any resistance on her part. The jury were not directed on this point.

9. Insofar as one could glean a story from Tsang, she was talking of another incident.

28. No one could suggest that the evidence of Miss Tsang was wholly satisfactory. Was it, however, when considered in the round, a coherent account of the incident on the night of 15th September 1995? The applicant admits that he was in the toilet with her on that occasion. There is evidence from the physical condition of her vagina and from the tampon that she must have been engaged in sexual activity with someone on that evening. There is no suggestion of any incident other than an incident involving the applicant.

29. It is reasonably clear that when she spoke of a boy she meant a male person. Indeed she finally indicated that the person about whom she was speaking was an old person.

30. She indicated both that intercourse had occurred and that she did not consent.

31. Mr. Grossman submits that the evidence of Miss Tsang, leaving aside the manner in which it was elicited from her, contained so many manifestly unsatisfactory features that the judge should not have allowed the matter to go to the jury. He reminds us that she repeatedly described the person involved as a boy, that at one stage she had appeared to be saying that he had a moustache, that she was confused as to whether or not he was wearing glasses, that she described the man as being tall and slim and wearing slippers, which the applicant was not, that she gave different confused descriptions as to the shirt he was wearing, that she said the incident had occurred in the third cubicle when it appears that this was not so. We are conscious of these unsatisfactory features of evidence but consider, nonetheless, both that Miss Tsang was not incompetent, in terms of s.3 of the Evidence Ordinance, and that the matters of which complaint is made were, as identified by her, matters which could properly be left for the determination of the jury.

32. We turn now to the summing up. As to consent the judge said in this regard:

"I come now to the second ingredient. It is again, members of the jury, a matter of fact for you to determine whether on the evidence you can be sure that when the sexual intercourse took place Tsang Pui-yee did not consent to it.

Consent is a common word and when deliberating on this matter you will give it its ordinary meaning. I am sure you are aware that in sexual matters consent covers a wide range of states of mind. As men and women of the world you will know that in any intimate relationship there will be occasions when the woman's state of mind is one of actual desire on her part, when she responds keenly or even initiates intimacy. There may, however, be other times when she is really not in the mood but reluctantly acquiesce because she appreciates that her partner desires it and she then does not wish to disappoint him. Consent, therefore, in sexual matters covers a very broad spectrum.

You must be aware, however, that there is a difference between consent and submission. As counsel for the prosecution said yesterday in his address to you, of course every consent by a woman to sexual intercourse involves submission but it by no means follows that a mere submission involves consent."

The judge went on then to give illustration and then come to the facts in the present case saying:

"You will recall that Tsang Pui-yee, when asked by prosecuting counsel if she had consented to the act of sexual intercourse, waved her hands and shook her head in a gesture of denial, a gesture which my notes record was translated as: 'no, I did not consent'. That, the Crown submits, can be relied upon by you so that you can be sure of Tsang Pui-yee's state of mind at the moment before sexual intercourse took place and during it.

However, it must be remembered that there was no other direct evidence of her lack of consent. There was no evidence that she was threatened in any way, no evidence that she attempted to push the man away or protest even though she was deaf and dumb. In the face of such lack of evidence, it is the defence contention that you cannot rely solely on her evidence that she did not consent to be sure that she was not a willing party to it.

It will therefore be for you, members of the jury, to decide if you can be sure that Tsang Pui-yee merely submitted and did not consent. It will be for you to decide by concentrating on Tsang Pui-yee's state of mind immediately before the act of sexual intercourse began. It will be for you to decide by applying your combined good common sense, your experience, and your knowledge of human nature to all the relevant facts."

33. It was clearly important, when considering consent, that the jury have in mind the admissions Ms. Tsang made about other acts of sexual intercourse. Leaving aside the incident of the 15th September 1995, she indicated that she had by the time of trial, had intercourse on seven other occasions. It seems that she first had intercourse with a friend on two occasions when she was 15 in a toilet. She said that both were without consent but her evidence was somewhat equivocal in this regard. The relevant passage is as follows:

"Q. Did you consent to having sexual intercourse with this friend?

A. No, not consent.

Q. So did the friend suggest to have sexual intercourse with you or did you suggest to have sex with him.

Interpreter: Again her answer is that she didn't like it.

Q. So did you do anything when you didn't like it?

Interpreter: The answer was no and she stressed that she didn't like it."

She indicated to the police that she had intercourse in May and June 1995. Both of these acts were in the toilet of Kwai Shing Playground and both, she indicated, were without consent. She indicated that different men were involved on each occasion and that on each occasion she was given $40.

34. She indicated that, in November 1995, she twice had intercourse in the Kwai Hop Playground and that she had not given consent on either occasion but that on each she had been given $40.

35. She admitted that she had indicated to the police that in April 1996 she had intercourse in the second booth of the Kwai Shing toilet and on that occasion she was also given $40. There seems to be no doubt that she must have consented on that occasion as she said that she herself sought out the man concerned.

36. From her evidence it seems that at times she had consented and that at times she did not and, it appears possible, at least as regards the first two occasions, that closely connected in her mind was the concept of not liking intercourse and not consenting to it. The judge was mindful of this evidence and he dealt with it in the following way:

"As to her sexual experience in life, when questioned by defence counsel, Tsang Pui-yee accepted that she had had sexual intercourse for the first time when she was about fifteen years old. It had been with a friend and it had happened on two occasions. Both these times had been in a toilet, indeed a public toilet.

It was her evidence that she had not consented to it but when pressed on the matter her answer, you may remember, was a little different. She then said that in fact she had not liked it. She said that she did not see this friend any more and it was her evidence, even though questioned on the fact, that she had not had sexual intercourse with any other friend.

As to subsequent sexual experience, Tsang Pui-yee accepted that she told the police that she had had sexual intercourse with a man in May 1995 and with another man in June of 1995. Both these encounters, she indicated, had taken place in the Kwai Shing Playground toilet. On both occasions she agreed that although she had not asked for money, she had been forty dollars by the men. She had kept it and bought things with it.

You may also recall that it was put to Tsang Pui-yee that she had gone out onto the streets requesting money from strangers. This, however, she denied. It was also put to her that she had been found with extra money on her that could not be accounted for. This also she denied.

Tsang Pui-yee readily accepted, however, that she had told the police of a similar experience which had occurred in April of this year, some seven months after the alleged incident which is the subject of the charges now before you. She accepted that she told the police that on that occasion, failing to find her grandmother, she had gone to look for a certain man at his residence in the housing estate. She had not come across him there but had met him in the street. The man had then taken her to the public toilet in the Kwai Shing Playground and after sexual intercourse had given her forty dollars.

She was asked by defence counsel if she had asked for this money and her answer, you may recall, was that she had not said a word. She had not asked for money. It was just the case that the man had given her money. It is, of course, a matter for you, members of the jury, what you make of this evidence. Remember this, however, this is not a court of morality.

You have heard evidence as to her mental age. According to Dr. Tam, she was, in her mind, somebody of five to eight years of age. Whether you accept that is a matter for you but if you do accept it, it is also open to you to think, 'Well was the money left with her perhaps to placate her, rather like sweets are left with a child so she won't tell her parents, or did it perhaps cultivate in Tsang Pui-yee's mind a belief that if she acquiesced to sex with men in the future, she might just be rewarded for it?'

In respect of the rape charge where you must be sure that Tsang Pui-yee did not consent to sexual intercourse, it is a matter which you must consider. It has certainly been put before you by defence counsel in his final address. However, members of the jury, you must also take into account that this particular matter was never even suggested to Tsang Pui-yee during the course of her evidence. She was never asked if she had received money or had hoped for money on that occasion in the toilet. Tsang Pui-yee therefore was given no opportunity to testify to the matter and you were deprived of the opportunity of hearing her answer.

In fact, in respect of the incident on 15th September, there was no evidence, members of the jury, concerning money, either the giving of it to Tsang Pui-yee, her asking for it or even her silent expectation of receiving it.

Having said that, of course, when we are dealing with a person of weak intellect, you will remember that sometimes ideas can be subconsciously implanted and that is one of the matters that counsel for the defence has asked you to consider. Is it possible, because of her past experience and because of her weak intellect, despite the sympathy that we have for her, that she may have been conditioned to believe that if she acquiesced to sexual intercourse, she may just receive some sort of a reward."

37. The judge returned to this issue of consent later in his summing-up when he said:

"As to the sexual intercourse, it was Tsang Pui-yee's evidence - and her only evidence - that she did not agree to it. As I have said earlier, you will recall that she shook her head and waved her hands in what was perhaps an international gesture of denial and was interpreted as, 'No, I did not agree to it.' But there was no evidence, members of the jury, that she had done anything and that again is a matter for you to decide. Did her weak intellect, did the occasion result perhaps in mere submission or was there an acquiescence for whatever reason?"

We find it difficult to see how the judge could have dealt more fairly or more comprehensively with this issue.

38. There can be no doubt that there was an incident in the ladies toilet on the evening of 15^th September 1995. The applicant admits that he was in a closed toilet cubicle with Miss Tsang. There can be no doubt as to the time of that incident. There was compelling expert evidence, which in no way relied upon the evidence of Miss Tsang, which strongly suggested that the applicant had been involved in sexual activity with Miss Tsang. This evidence gave impressive support to the evidence of Miss Tsang that she had removed her underwear and that sexual activity had then taken place. It did not, however, prove that penetration had occurred or that she had been unwilling. The evidence of Miss Tsang had to be relied upon to establish these two matters.

39. There was ample evidence for the jury to consider as regards penetration. There was also evidence from Miss Tsang that she did not consent. We are, however, gravely concerned as regards that evidence. She admitted that on five occasions she accepted money after having had intercourse. She indicated that, on four of those occasions, she did not consent. On the fifth on her own admission she had sought out the man involved, had had intercourse with him and had then accepted money from him. Her condition made coherent examination of her as to her motivation impossible. Given that she was happy to receive a reward for having intercourse could reliance safely be placed on her curt and untested assertion that she did not consent to intercourse on 15th September 1995. Having given this matter anxious consideration, we are left with a lurking doubt as to the propriety of the conviction and it must therefore be quashed. We do not, given the foregoing, need to consider the other grounds of appeal. We are precluded from returning a verdict on the alternative count as the jury made no determination as to whether Miss Tsang was, in law, a mental defective.

40. The hearing of the application is treated as the hearing of the appeal and the conviction is quashed.