HKSAR v TSE HOI PAN, DOMINIC

CACC 368/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 368 OF 2006

(ON APPEAL FROM HCCC NO. 18 OF 2006)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

Introduction

1.         This is an application for leave to appeal against conviction upon one count on an indictment that alleged that the applicant on 7 October 2005 in a hotel room in Mong Kok raped a young woman then aged 24 years.  On 21 August 2006 after a trial before Mr Recorder McCoy and a jury, he was convicted by a majority of six to one and sentenced to five years’ imprisonment.

The evidence

2.         The story of the evening in question concerned four persons: the complainant, her friend named Ms Chak, a man called Max and the applicant.  The applicant was known to Ms Chak and suggested to her that she bring along a female friend to a karaoke to meet him and Max.  The four met in the karaoke lounge.  It is common ground that they consumed alcohol, but a key allegation against the applicant was that he laced the complainant’s drink with drugs.

3.         There came a time when the four of them left the karaoke lounge, the complainant in the company of the applicant.  A CCTV recording showed the complainant walking with an unsteady gait.  The complainant’s evidence was that she was used to drinking beer but that on this occasion it seemed to affect her differently, so much so that she tried unsuccessfully to get hold of a male friend, Papa, not her boyfriend, in whose premises she lived.  She said that the applicant took her downstairs ostensibly to look for Papa; but instead led her to a room in a hotel within walking distance of the karaoke lounge.  Whilst there, she realised that someone was removing her pants and although she struggled, her neck was grabbed by her assailant who pressed her thighs and raped her. 

4.         Then she went to the lavatory and telephoned Papa.  She asserted – though this was in issue – that she told him that she had been raped.  She then walked to the reception desk at the hotel, naked from the waist down and feeling very confused.  There she saw the applicant.  Eventually Papa arrived and she complained to him (again) that she had been raped.  She was asked at trial why she had not called her boyfriend to which she replied that that was because she and he had quarreled that day.

5.         She was medically examined not long after and it is common ground that she had suffered a significant amount of bruising, blood spots around her eyes and other parts of the body, and there was evidence of trauma to her private parts.

6.         Ms Chak, her friend, testified to the effect that on 6 October 2005, when she was in the company of the applicant and Max, before they were joined by the complainant, the applicant gave her five $1,000 banknotes and told her: “I've already bought the drugs and booked [a] hotel room.  Later on, just pay no attention to whatever happens.”  Then, according to the testimony, there came a time in the karaoke lounge when the complainant went to the lavatory and at that stage she, Ms Chak, saw the applicant take out a phial and pour two to three drops into the complainant’s drink.  These allegations were first made by her to the police on 12 November 2005 and on several occasions thereafter, but none was made in three statements by her to the police on 7 and 8 October 2005.  She explained in evidence that there came a time, namely, in November 2005, when she decided to tell the whole truth, visited the complainant to tell her this facet of the story and then, in the complainant’s company, went to the police to tell them.

7.         The applicant did not testify at trial.  His case put through cross-examination was that the complainant had been forward with him, asked whether he would date her and asked him for an expensive gift and that they went to the hotel room where consensual foreplay took place, but that he failed to secure an erection so that there was no penetration, for which reason she ridiculed him.  He lost his temper and used her with violence, which, it was said, explained the injuries occasioned to her.

Ms Chak

8.         This application centres upon the testimony of Ms Chak.  She was given an immunity from prosecution on the basis that her accounts to the police on 12 November 2005 and thereafter implicated her as a party to the unlawful administration of drugs with intent to enable a person to commit an indictable offence; a party in the sense that by her conduct she aided and abetted the applicant in his plan to drug the complainant.  The terms of the immunity were as follows:

“

I hereby inform you that on condition that you will give full and true evidence at the trial or trials of Tse Hoi-pan, Dominic, in connection with an alleged offence of rape contrary to section 118(1) of the Crimes Ordinance, Cap. 200 which is alleged to have occurred on the 7th of October 2005 in Hong Kong.  No prosecution will be instituted against you in respect of an offence of administering, stupefying or overpowering drug in matter or thing with intent to enable a person to commit an indictable offence, namely rape, contrary to section 21 of the Offences Against the Person Ordinance, Cap. 212 or any other offences in connection with the said offence which has been disclosed by you or which may be disclosed by you in the course of your testimony during any of the said proceedings.  Should you fail to give full or true evidence at the aforesaid trial and/or trials, the Secretary for Justice shall not be bound by any undertaking given in this document and you may be prosecuted for the said offences or any other offences connected with the said offence.  This immunity does not apply to any offence of perjury or any other offence or offences involving the making of false or contradictory statements under the provisions of Clause 5 of the Crimes Ordinance, Cap. 200 created by you in the course of your testimony during any of the said proceedings.  Dated this the 13th day of March 2005.”

9.         Cross-examination of Ms Chak developed unusually, as far as trials go.  Leading counsel for the applicant established that she had a number of convictions for offences of dishonesty, and that in the three statements provided by her in October 2005 she had not mentioned that she had seen the applicant put drops of liquid in the complainant’s drink and had not mentioned that she had received $5,000 from him in exchange for her silence.  He established further that immediately before she went to the police station on 12 November she visited the complainant.  We note that he also put to her that as a result of the immunity granted she had to “give evidence in accordance with what you say are the truth to the police in November,” an inaccurate summary of the content of the immunity in that the immunity did not require her to give evidence in accordance with the statement but, to give truthful evidence; which in any particular case may or may not be the same thing.

10.         Not surprisingly, counsel cross-examined her – to substantial effect, we think – as to why it was, if she were telling the truth, that she had not warned the complainant to avoid the karaoke once the applicant had revealed his plan to drug her and why, once she had seen the applicant put the drops into the drink, she had not followed the complainant to the lavatory to warn her about what had happened.  The witness’s answers were entirely unsatisfactory; leading, if logic were the guide, to one of two conclusions – either the evidence was untrue, or she was remarkably callous.

11.         It was put to her in terms that the applicant had never given her any money and had never put drops of liquid into the complainant’s drink; but with these suggestions the witness disagreed.  Her evidence was that the complainant had gone to the lavatory, as had Max, and that it was whilst she, the witness, was alone with the applicant at that stage that she saw him lace the drink.  

12.         There then followed this exchange:

“	Q.	After you saw the lacing of the drinks did you go out yourself?
	A.	No, I did not.
	Q.	I'm going to show you some image being captured by the CCTV later on.  I suggest to you you, in fact, did go out and returned to the room together with PW1.
	A.	Yes.
	Q.	I see.  You now recall it?
	A.	Yes.
	Q.	I take it that you must have met PW1 in the toilet and returned together.  Right?
	A.	Yes.
	Q.	So this is an ample good opportunity for you to tell PW1 what you just saw.  Right?
	A.	Yes.
	Q.	You did not do so.
	A.	Right.
	Q.	Because you did not see something.
	A.	Right.  Right.
	Q.	So you have lied to the police officer.
	A.	Not so.
	Q.	I don’t really understand.  You just agreed with me that you did not see the defendant lace the drink of PW1.  You agreed to that; right?
	A.	Yes.
	Q.	So, in November when you tell police officer in the video-recorded interview what you say is the truth that you saw the defendant took out a phial and put two to three drops of liquid in the drinks, this is a lie.
	A.	Yes.
	Q.	You did so because that was after the discussion between you, PW1 and the others inside the flat.
	MS CHAN:		I beg your pardon.  My Lord, I wonder if this witness should be warned again.
	COURT:		Just going through my mind, all these issues, but I was reluctant to stop the heat of the cross-examination …
	MR KWOK:		Th.
	COURT:		… obviously but I also was bearing in mind the legal implications of your observation.  I think I will now deal with it.  I was just trying to judge the time.  Let me take over, Mr Kwok, for a minute.
	MR KWOK:		Thank you.
	COURT:		Miss Chak, as I understand it, you have now admitted quite clearly that you lied to the police officers when you told them that you saw the accused lace the drinks of PW1 on the evening of 6 October 2005.  Am I right?
	A.	Right.  I was lying to the police.
	COURT:		You’ve admitted lying to the police now unequivocally.  You have been granted an immunity from prosecution signed on behalf of the Secretary of Justice on the basis that you tell the truth.  You've admitted lying. I now formally – get this clear in your mind – I am formally warning you that you do not have to give any further evidence in relation to this aspect of the case because if you do so it may self-incriminate you for a very serious offence.
	A.	I understand.
	COURT:		This may mean that this immunity has already been torn up.  That is not a matter for me or this jury to decide.  That will be decided, if necessary, elsewhere at another time in another forum.  Do you understand?  “Lei ho dai wok.” 「你好大獲」
			Mr Kwok, you may continue.  The witness can object if she wants to.”

13.         Shortly thereafter came the mid-morning break after which the Recorder said:

“

Miss Chak, I remind you you’re on your former affirmation.  I’ve already warned you about your right to claim the privilege against self-incrimination, which means you may object to any question which may incriminate you. You must personally object to any question you do not wish to answer.  I am not your lawyer.  However, if you do object, I will decide on an individual question basis whether your objection is valid in law.  What has happened this morning: you will be aware, clearly, that you are at risk of the offences of perjury and perverting the course of justice.  These are offences that strike at the very centre of the administration of justice.  So you will answer the questions unless you object and I rule you do not have to answer.”

14.         Cross-examination continued in some detail and was only occasionally interrupted whenever leading counsel put to her that she was making up her evidence about what the applicant had said to her before they were joined by the complainant and about him paying her $5,000 to keep quiet; and particularly when it was put to her – as it was in terms – that what she had said to the police in November was as a result of her putting her head together with the complainant and others to fabricate a story against the applicant.  The interruptions were to remind her of her right not to answer, although it was not always necessary to do so.  Sometimes she availed herself of the warning, sometimes not.

15.         It was demonstrated in cross-examination that she had given several different versions to the police as to how she had spent the $5,000.  She had told them that she had spent some on rent but the rent receipts that she handed them were for a period after 7 October.  She accepted that she then changed her story and told them that she had spent some on an expensive handbag, yet she was able to produce no invoice to support the purchase nor say from which shop it had been bought.

The argument

16.         It is said by Mr Macrae SC on behalf of the applicant that the warnings against self-incrimination were unnecessary.  With this we do not agree.  After her acceptance that she had lied to the police, in at least one highly material regard, it was quite clear that what was being put was that she and the complainant had, possibly with others, conspired to pervert the course of justice.  It was proper for, indeed incumbent upon, the Recorder to render the warning.

17.         Then it is said that because of the repeated reminders by the Recorder, the cross-examination by counsel for the applicant was unduly inhibited.  Again, we do not agree.  We have read the cross-examination and we see no evidence of inhibition of at all, nor of undue interruption by the Recorder.  Whilst it is true that the witness occasionally availed herself of the warning and refused to answer a question, a great deal of cross-examination led to substantive answers – as opposed to refusals to answer – and the cross-examination appears to us to have been effective.  It is in particular to be noted that at no stage did leading counsel suggest that the warnings were inappropriate or that his progress was in any way stultified.  On the occasions when the witness refused to answer, common sense in the context of this cross-examination dictates that he was as much assisted by the refusal as he might have been by any substantive answer.

18.         A further point was taken in the grounds of appeal as to the directions about recent complaint but, sensibly in our view, was not pursued by Mr Macrae.

The key issue

19.         In the event, however, the appeal concentrates on the remonstration of the witness by the Recorder in the form: “Lei Ho Dai Wok” which is a colloquial expression meaning “You are in deep trouble”.  Another interpretation has been suggested but that is the sense of it.

20.         The Recorder was no doubt exercised by the fact that the witness had just admitted that she had lied to the police and by the effect of that admission, which was that she must therefore also have lied in chief when she said that she had seen the applicant lace the complainant’s drink.  He no doubt intended to convey to her the message that she had undertaken to tell the truth in court; that that was the basis of the immunity; and that from that point on, she had better make sure that she told the court the truth.  

21.         The question though that we have to address is what in context this lay witness may have understood what Recorder was saying to her.  There are two possibilities:

(1)	that even if it contradicted her statements to the police, she had better tell the truth to the court; or
(2)	that she had lied to the police and was for that reason in deep trouble and in danger of losing her immunity.

If it was the latter, then the danger was, as has been argued, that the evidence that followed was tailored by her to coincide with her statements to the police, rather than with the truth. 

22.         The Recorder’s comments after the break that the witness was at risk of incriminating herself of the offences of perjury and attempting to pervert the course of justice will tell the legally trained reader or listener what it was that the Recorder was saying: that the witness appears to have perjured herself in chief by then implicating the applicant in lacing drink and at the same time, by her admission that she had lied to the police, had rendered herself open to the prospect of a further prosecution for the offence of perverting the course of justice.  But we need to be realistic and not legalistic.  The witness was not a legally trained listener.  Her background and occupation would suggest a person of limited education, and the message that the Recorder no doubt intended to convey was not expressed to her as it might have been.  Where what he said may readily have been understood by her in one of two ways, we are bound to make an assumption that favours the applicant’s interpretation.

23.         What the Recorder told her, more than once, was that she had lied to the police and it was in the same breath that he said that her immunity was at risk; most particularly that: “This [your lie] may mean that this immunity has already been torn up” although it was not a matter for him to decide but for others at another time.  It is correct to say that the Recorder also referred expressly to her promise to tell the truth and that that may be read as referring to the lie in evidence in-chief.  But to her that would not, we think, have been clear.  It is also true that the lie to the police, if it was a lie, could not deprive her of her immunity, but that was a nicety that she could not be expected to appreciate.

24.         The risk of what the Recorder said and of the strong and unusual terms in which he said it, was of this witness receiving the impression – although of course not intended by the Recorder – that the danger, the “deep trouble”, looming over her, of the immunity being “torn up” might be avoided so long as thereafter she adhered to the story that she had given to the police and did not say that she had been lying to them. 

25.         The concern we have expressed is to be considered in the light of the fact that whilst the witness, before this remonstration, resiled from the assertion that she had seen the drink laced, she thereafter maintained her assertion that the applicant had told her that he intended to drug the complainant and that he had paid the witness $5,000 for her silence.  Whether the Recorder’s comments produced that effect we cannot possibly say one way or the other, but we cannot ignore the possibility.  What should also be recognized is the reality that some witnesses under immunity might start with the impression that they are expected to adhere to their witness statement, a concern enhanced in this particular case by the uncorrected summary of the effect of the immunity by counsel for the applicant that she had to ‘give evidence in accordance with what you say [is] the truth to the police in November’, a suggestion with which she agreed. 

26.         We are of the view that in these unusual circumstances what happened constituted a material irregularity.

The proviso

27.         The question then is whether it is clearly shown that that irregularity could in the event have had no bearing on the jury's verdict.  This question has caused us some difficulty because it might be said with force that given the conceded lie and, more particularly, the way in which the Recorder and counsel dealt with the testimony of this witness, this jury could not conceivably have placed any weight on her evidence.  The Recorder told the jury that they might conclude that “on the issue of the drugs on the issue of the $5,000, she has been completely and utterly destroyed in her credibility”; and, later, that the jury would, he thought, have no doubt in finding that she was utterly self-discredited.  In her closing submissions, counsel for the prosecution acknowledged that the jury might not believe a word of her testimony, asserting however that that did not necessarily mean that they could not accept the testimony of the complainant.  Counsel on behalf of the applicant at trial seemed confident, as one would expect, in his assertion that he had sufficiently demonstrated her allegations to have been untruthful.

28.         At the end of the day it has to be recognised that the allegations made by this witness, if they left any impression upon this jury as to the truth, were highly incriminating; and, further, that interwoven with the attack on this witness was the central suggestion that her fabrication of a story against the applicant was the result of collusion with the complainant, a point that the Recorder left to the jury in his summing-up where he reminded them that the applicant’s suggestion was of such a conspiracy, a suggestion that had never been put to the complainant.  We cannot with certainty say with what impression the jury was left.  If, for example, they were generally impressed by the testimony of the complainant, they might, in the absence of a retraction by Ms Chak of the rest of her account, have concluded that collusion was most unlikely and that, therefore, the essence of the witness’ assertions was true.  In the event, we have decided not to apply the proviso.

Conclusion

29.         Accordingly, we grant the applicant leave to appeal against conviction and treating the hearing of the application is the appeal, we allow the appeal and quash the conviction.

30. We will hereafter hear counsel on the question of a re-trial.