R. v. CHAN CHI WA

IN THE COURT OF APPEAL

1996, No. 559

(Criminal)

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J U D G M E N T

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Nazareth V-P (giving the judgment of the Court) :

1. The applicant Chan Chi-wa was charged before Leong J in the High Court on five counts. The 1st, 4th and 5th counts were of rape contrary to s.118(i) of the Crimes Ordinance (Cap 200). The 2nd count was of non-consensual buggery, contrary to s.118A of the Crimes Ordinance. The 3rd count, which was alternative to the 2nd count was of buggery with a girl under the age of 21 years contrary to s.118D of the Crimes Ordinance. After trial, the jury on 11th September 1996 found him guilty on the 1st, 2nd and 4th counts by a majority of 5 to 2 and unanimously not guilty on the 5th count. He was sentenced to 10 years imprisonment on each of the three counts on which he was convicted, to run concurrently. He now seeks leave to appeal against conviction and sentence.

2. The complainant in respect of all the counts was one Lisa Au-Yeung, a girl of the age of 17 years at the time of the offences, all of which were alleged to have taken place on the same occasion and at the same place, i.e. the 29th December 1995 at Room 38 Baguio Motel, Lee Garden Hill Road, Wan Chai.

3. The facts can be very shortly stated. On 28th December 1996 the complaint Lisa went with Wong Ka-po and other friends to the Red Bar. Later they went to the Green Parrot Bar. They were joined by the defendant because Wong Ka-po had met him before in her ex-boyfriend's place. Lisa's evidence was that it was the first time she had met the applicant. She was unhappy at the time because of her studies and because she had broken up with her boyfriend and also had had a quarrel with her mother. The applicant asked her why she was unhappy. During the evening she had had quite a lot of beer to drink and went to the toilet to throw up. Later, she and the applicant left the Bar and walked to the Neptune Bar in Wan Chai. They spent about half an hour there. She drank a further one and half bottles of beer. They then left the disco. The defendant stopped a taxi and Lisa got in. She thought, she says, they were going back to the Green Parrot Bar because she had an earlier arrangement to meet Wong Ka-po there. She felt dizzy and uncomfortable. She was not sure about the direction the applicant gave the driver, but he took them to the Baguio Villa. She declined to go up but the applicant said he would simply go to make a telephone call to Wong Ka-po to come and pick up Lisa. So she went up. She paid for the room and signed the motel receipt because the applicant told her. Once the attendant left the applicant locked the door, turned nasty, then forcefully had sexual intercourse with her against her will. Later, he forcefully had anal sexual intercourse with her, followed by two acts of vaginal sexual intercourse.

4. The applicant denied having anal sexual intercourse with her altogether and said that he had only had vaginal sexual intercourse with her twice with her consent. Their evidence differed significantly in many respects and totally on the issue of consent. There was no corroboration of her evidence. She said that she had been struck and slapped. The first doctor who examined her on 29th December 1995 at 8.30 in the evening found a patchy red bruise on the left side of her face. But the doctor who examined her the next day, 30th December at about 1.15 a.m. found no external bodily injury. However he did say the red mark left on the face by slapping would normally fade away within a day or less.

5. With that very short account which suffices for the purpose, we turn to the applicant's perfected grounds of appeal against conviction. Of these, Mr Buchanan for the applicant, who did not appear for him at his trial, relied mainly upon the second ground, i.e. that the trial judge misdirected the jury by giving a lies direction which was superfluous, unnecessary and materially detrimental to the defence.

6. He referred first of all to a passage at p.30 of the summing-up in which the judge pointed out that in his statement to the police the applicant said he could not remember Lisa's name, although he also said she had written out her name and pager number for him and that they had exchanged telephone numbers. The judge also mentioned that the applicant had likewise said he could not remember Wong Ka-po's name, although he admitted that he had been introduced to Wong Ka-po by that name at her ex-boyfriend's place. He continued:

"However, he explained that he normally could not remember the names of persons. You may think he was lying to the police in his statement on 4 January 1996.

Members of jury, if you are sure he lied, you must consider why he lied. The mere fact that he has lied is not itself evidence of guilt. He may lie for various reasons, such as to bolster up a true defence or out of panic or confusion. If you think there is or may be some innocent explanation for his lies, then you should take no notice of them. But if you are sure that he did not lie for some such or other innocent reason, then his lies can support the prosecution case."

7. Mr Buchanan submitted that this showed absolutely no need for a lies direction. Whether or not the applicant could or could not remember of the names of the two females was neither material or relevant to the real issues of the case. The failure is capable of numerous inferences and does not justify a "lies" direction. Such a direction was completely superfluous, unnecessary, inadequate and materially detrimental to the defence case.

8. In addressing that submission, it is helpful to first of all have regard to the reasons why a lies direction may be desirable given by Lord Devlin in his landmark judgment in Broadhurst v The Queen [1964] AC 441 at 457:

"It is very important that a jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if upon the proved facts two inferences may be drawn about the accused's conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends, of course, on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness.

This is the sort of direction which it is at least desirable to give to a jury. ..."

9. Although desirable, what has now come to be known as a Broadhurst direction was plainly not intended to be a requirement, nor is there today any rule requiring it to be invariably given (see e.g. the Hong Kong authorities listed at 1[200] at p.73 of Bruce and McCoy, Criminal Evidence in Hong Kong, 3rd Ed). That said, it should also be pointed out that there is no question in this case of the prosecution having relied upon lies, much less of lies having been used as corroboration, which the judge clearly pointed out was absent.

10. Mr Buchanan relied upon two authorities. First, R v H (1990) 49 A CrimR 396. This was primarily concerned with the use of lies as corroboration, and we do not think it of assistance. Mr Buchanan's second authority was R v Keeton [1995]2 CrAppR 241; 246B in which Hobhouse LJ said this:

"Here the question of lies was at best peripheral. Further, the jury had heard the explanation which the defendant had given. It was before the jury that there was an explanation for what the defendant had said other than a consciousness of guilt. Any elaboration of the issue would have given it undue prominence and have been adverse to Geoffrey Keeton. There was no misdirection nor was there anything unfair in the way the judge dealt with the matter."

11. It is of course quite true that undue prominence given to lies may be unduly adverse to a defendant. The question boils down to whether the adverse effect was unfair.

12. It must be pointed out that the jury were hardly likely to overlook the applicant's statement that he was unable to recall the names of the two females, and very likely to conclude that he was lying. Moreover, in outlining the facts the judge had quite properly called attention to two matters in regard to which the jury might well have concluded that the applicant had lied. First, his evidence that he had never slapped or assaulted Lisa. He said he had heard a bang in the toilet when Lisa was inside and after she came out, he saw a red patch on her face and thought she had bumped against something in the toilet. The second matter the judge mentioned was that the applicant's statement to the police did not contain any reference to the bang he said he heard before Lisa emerged from the toilet with the red patch on her face, although the applicant said that he had told this to the police officer who recorded the statement. The judge pointed out that the police officer's evidence was that whatever the applicant told him he accurately recorded in the statement. The judge also pointed out that the statement had been read back to the applicant by the police officer and also that the applicant had himself written out a sentence which suggested that he was able to read and write. Although the judge did not suggest that these might have been lies, he could not have been unaware that the jury were likely to come to that conclusion. In the result we do not think his decision to give a lies direction can be faulted, and it was a matter for his discretion.

13. We therefore reject the contention that a lies direction was absolutely unnecessary and superfluous. In addition, we are satisfied that it was not unfair.

14. The other two grounds pursued by Mr Buchanan can be disposed of quite shortly. The first of these, which was the third perfected ground, was that the trial judge made a number of comments upon the evidence which operated adversely to the defence case and hence additionally to the previous ground, rendered the summing-up fundamentally unbalanced and deprived the applicant of a fair trial. We think this ground can conveniently be considered along with the fourth perfected ground which was that in the particular circumstances of the case it was inherently probable that the complainant had willingly accompanied the applicant to the villa for an intimate liaison and it was incumbent upon the trial judge to have directed the jury that such a possibility existed, but no such direction was given. Justice was not seen to be done.

15. We have carefully considered the four passages in the transcript of the summing-up to which Mr Buchanan referred. We are unable to accept that they unbalanced the summing-up or rendered it unfair as a whole; moreover, ground 2 having been rejected cannot buttress the third ground. As to the fourth ground, undoubtedly there were aspects of the complainant's evidence and conduct which if viewed in isolation would render her version that she simply did not consent improbable. That we are unable to agree that this is so in the context of the evidence and circumstances as a whole, is not to the point. What is to the point is that all the evidence was fairly and fully put to the jury and that the jury were satisfied that the applicant was guilty.

16. In the result we do not accept that the conviction was unsafe and unsatisfactory. We refuse leave to appeal against conviction.

17. We turn then to the applicant's application made out of time for leave to appeal against sentence. The first point taken by Mr Buchanan is that the applicant was sentenced upon his previous record, namely an earlier conviction for rape, and that this was wrong in principle. The submission relates to the following passages from the transcript of what the judge said at p.42 and 43 when sentencing the applicant:

"As I mentioned before, you were convicted of rape and was sentenced to 7 years' imprisonment and you were released from prison in January 95 and within a year you resorted to the same offence of rape. ...

Your repetition of a rape offence within a short period after release from prison indicates that you appear to be a person from whom the public should be protected.

So in the circumstances I will impose in respect of the 1st count of rape, 10 years' imprisonment, 2nd count of non-consensual buggery, 10 years' imprisonment, 4th count of rape, 10 years' imprisonment, all sentences to run concurrently."

We do not accept that the judge sentenced the applicant in respect of his earlier offence. He addressed the sentences on the totality principle and in doing so, took into account the previous conviction as an aggravating factor in sentencing him for the present offences. He was entitled to do so: see R v Billam [1986] 82 CrAppR 347, which as to its principles has been followed in Hong Kong; R v Lau Yuk-ming [1994]2 HKCLR 256. It was said in Billam at p.350 that the crime of rape should be treated as aggravated by any of the eight factors there listed, the fifth being that the defendant had previous convictions for rape or other serious offences of a violent or sexual kind.

18. We therefore reject the first ground but before leaving it, we mention that although not included in the perfected grounds of appeal against sentence, Mr Buchanan also submitted that "in Hong Kong there is no power to impose preventative sentences". He founded that submission upon the words "you appear to be a person from whom the public should be protected" used by the judge in sentencing him. However, we are satisfied that those words viewed in the context in which they appear, apparent from the passage quoted above, do not support his assumption that what was imposed was a preventive sentence.

19. Turning then to the second perfected ground of appeal against sentence, this is "that the sentence imposed upon the applicant was disproportionate to the offence, nor did it bear a proper relationship to the gravity of the offence even acknowledging that the previous offence was an aggravating factor, and hence the sentence was excessive and/or wrong in principle".

20. Mr Buchanan drew our attention to the starting point of five years for rape committed by an adult without any aggravating or mitigating features suggested in Billam as the starting point in a contested case. He then drew our attention in R v Lau Yuk-ming submitting that although it was there said that sentences of rape in Hong Kong were on the low side and judges not tied to the quantum in Billam, the court added that the Billam starting point of 5 years could be used. He also pointed out that in Lau Yuk-ming the court noted that the statistics provided there, to which we will come, did not indicate that the rapes were allied to other charges. He accepted that there are numerous reported cases on rape and that it is difficult to draw any firm discernible conclusion as to the quantum of sentences as the facts differ widely and the rapes are often linked to other offences. He submitted that the judge appears to have accepted that this was not the worst sort of rape offence and there was no visible injury on the victim except the slap on the face which had no permanent effect; also that the offences took place during a relatively short period. His submission was that in the circumstances of the case itself and even acknowledgment that the accused had one prior conviction for rape, the sentence of 10 years imprisonment went beyond permissible or tariff limits and was excessive and/or wrong in principle.

21. In addressing his submission, it is helpful to set out the paragraph in Lau Yuk-ming in which Silke Atg CJ dealt with the statistical information:

"Mr Reading, who appears for the Crown, has presented to us a document containing statistical information relating to the crime of rape for the years 1990 to 1993. While these are of general interest, they do not indicate whether the charge of rape was allied to any other charge. We note that in 1990 the range of prison sentences was between 3 and 8 years; in 1991, it ranged between 5 and 11 years; in 1992, it ranged between 3 and 12 years and in 1993, it ranged between 31/2 and 15 years. Since the instances of the aggravating features set out in Billam, and which have been adopted as a criteria by the courts in Hong Kong, are so varied, it is inadvisable to indicate specific guidelines save to say that, as we have indicated, the starting point in Billam is not one which necessarily should be used as a starting point in Hong Kong."

22. Mr Bruce, for his part, referred us to other rape sentences in the vicinity of 11 years. None of the cases we were referred to by either side purported to provide any guideline or tariff, and counsel very properly accepted that they were of very little assistance save to indicate the wide range of sentences consonant with the widely different circumstances of individual offences.

23. Here, as we have said, the judge was entitled to have regard to the previous offence of rape as an aggravating factor. In addition, the following additional aggravating factors in Billam were present:

(3) the rape is repeated;

(6) the victim is subjected to further sexual indignities of perversion; and

(7) the victim is either very old or very young.

Plainly the judge was entitled to take a severe view of the offences and to impose a severe sentence, we are satisfied that he did not err in principle and that the sentences are not manifestly excessive. We refuse leave to appeal against sentence.