HKSAR v. LEUNG SUN KEUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 17
(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 seeks leave to appeal against his conviction for rape. At his trial before Deputy Judge Suffiad as he then was and a jury the Applicant was originally charged with both rape and an alternative charge of administering drugs to obtain or facilitate intercourse, contrary to s.121(1) of the Crimes Ordinance, Cap. 200. At the conclusion of the prosecution case Mr. Hoosen made a submission of no case to answer on both charges. The judge ruled that there was a case to answer on the first count but there was no case to answer on the second. Following this he directed the jury to acquit the Applicant of the second charge.

2. According to the prosecution case the events leading to the first charge arose in the early hours of the morning of 3rd November 1996 at a flat in Siu Hong Court at Tuen Mun. The alleged victim was a 16-year-old student who was referred to as Ah Yan.

3. Ah Yan gave evidence that she was at the flat which she lives in with her mother on the night in question. She received a telephone call from a male friend of hers Leung Chi-chiu. Leung gave evidence as PW4. According to Ah Yan he invited her to go on a joy ride with him and two of his male friends. She declined the invitation and suggested that he and his two friends should come to her place to play mahjong. He agreed to this.

4. Some time later she went downstairs to meet Leung and his two friends who had just arrived. She was introduced to the men with Leung. One was called Ah Joe and the other Sai Keung. Ah Joe gave evidence as PW3. Sai Keung is the Applicant. She noticed that the Applicant had some bottles of orange juice. She took the men up to the flat and told them that they should not make too much noise as her mother was sleeping in one of the bedrooms. Ah Yan went into her bedroom and changed into more informal attire. She then came out and joined the young men in playing mahjong. She remembered that Ah Joe gave her some orange juice and pressed her to finish it.

5. The next thing she could remember was waking up at about 6:00 a.m. She found that the clothes she was wearing were different to those she had been wearing when playing mahjong. Also she felt pain in her genital area. This pain was similar to pain she had experienced after having sexual intercourse on another occasion. She saw her brassiere, panties and a sanitary towel on her bed. She had at this time been having her menses. She saw her mother and asked her to make a report to the police as she believed that she had been raped. She claimed to have no recollection on a number of matters which were put to her.

6. Ah Yan's mother who is a widow gave evidence. She remembered talking to Ah Yan at about 2:00 a.m. that morning. After that she took a sleeping pill. She did however hear the sound of people playing mahjong and shouted to them to be quiet. When she awoke at about 6:00 a.m. a female friend of Ah Yan's Lau Po-yan was in the living room with two young men and the room was in a mess. She learnt that the young men Ah Wai and Ah Fai were not the same men as those who had been playing mahjong earlier. She went into Ah Yan's room and saw that she was still in bed. Ah Yan complained that someone had had sexual intercourse with her. She said that she had been raped. She looked around the room and found a pair of panties, a sanitary towel and a used condom. When she went out to the living room she saw three bottles. She retrieved these and put them in a zip bag with the articles she found in Ah Yan's bedroom.

7. Ah Yan was in what she described as being an unclear condition. She claimed not to be able to move her limbs. In this connection there was medical evidence that Ah Yan had consumed a very large quantity of clonazepam a drug which would account for her symptoms. Ah Yan's mother said that she made a report to the police at about 3:00 p.m. that afternoon.

8. The 3rd and 4th witnesses were Ah Joe and Leung. Both these men were originally charged with these offences as accomplices. It was only after they had indicated a willingness to testify against the Applicant that the charges were dropped and they were given immunities.

9. They both gave evidence to the effect that they and the Applicant had been together earlier in the evening. The Applicant had gone to his residence to obtain some pills which he used when "flirting with girls". Leung had arranged for the three of them to go and play mahjong with Ah Yan. Prior to this they had gone to a convenience store nearby to purchase some orange juice and some condoms.

10. Both men gave evidence to the effect that the Applicant had spiked Ah Yan's drink. They also gave evidence that the Applicant had been in Ah Yan's bedroom for about an hour with her. During this time Ah Joe and Leung had attempted to listen to what was going on in the bedroom. Ah Joe said that he thought he could hear the sound of people making love. Ah Joe also gave evidence that after Ah Yan had come out and gone to the toilet she was obviously under the effect of a drug. She had asked who had had sex with her whereupon the Applicant had said that it was him. She then embraced him and referred to him as being her husband. Leung gave a slightly different version of this.

11. While the Applicant and Ah Yan were in the bedroom her friend Lau Po-yan had let herself into the flat. Ah Joe and Leung said they were friends of Ah Yan. Lau Po-yan had then gone to the bedroom door and knocked on it identifying herself. Ah Yan had shouted out that she was "boking" something in the room. The men understood from this that sexual intercourse was taking place in the room.

12. Lau Po-yan then told the men to make space available for her on the sofa so that she could go to sleep. Later two more men came and knocked on the door. These were Ah Wai and Ah Fai. Lau Po-yan asked at the bedroom door what Ah Yan wanted to do and she said tell the men to return two hours later.

Lau Po-yan then suggested to the men that she should take them out to breakfast and the men and her left.

13. After this the Applicant, Ah Joe and Leung all left and later Lau Po-yan, Ah Wai and Ah Fai all returned.

14. The submission of no case to answer on the first count was based upon the contentions that there was no direct evidence that the Applicant had in fact had sexual intercourse with Ah Yan and secondly that if he had there was no evidence that Ah Yan had not consented to it. For the reasons he gave the Judge rejected these submissions.

15. So far as the submission on the second count was concerned it was based on the requirement in s.121(2) that no one could be convicted under the section on the evidence of one witness unless the evidence was corroborated in some material particular by evidence implicating the Accused.

16. As has been indicated earlier Ah Joe and Leung were clearly accomplices. In addition to this one accomplice cannot corroborate the evidence of another accomplice. As there was no sufficient evidence to support a conviction independent of Ah Joe and Leung's evidence the submission was successful.

17. The Applicant did not go into the witness box or call any evidence.

18. The Jury having received a detailed and helpful summing-up from the Judge were satisfied that there was sufficient evidence to prove the first count.

19. The first perfected ground of appeal is that the Judge erred in finding that there was a case to answer on the first charge as there was insufficient evidence to prove that sexual intercourse had taken place.

20. In his ruling the Judge gave his reasons for being satisfied that there was a case to answer on this. He placed reliance upon the test laid down in Attorney General v. LI Fook-shiu [1990] 1 HKC 1.

21. In the circumstances of this case the test was:

"(3) could, may or might a jury properly directed be satisfied beyond reasonable doubt of such inferences as have to be drawn if all the elements of the prosecution case are to be established? If he concludes that a jury could, may or might be so satisfied, he will rule against the submission or application."

22. The particular matters from which the inference could be drawn were identified by the Judge. He said at p. 92 of the record before us.

"I would agree with him if that was the extent of the evidence insofar as Count 1 on the question of sexual intercourse is concerned. However, there are two further pieces of evidence that I can see from the evidence given. The two further pieces of evidence relates to, firstly, a condom found, according to the mother, on the floor, and according to PW5, on the victim's bed. But more important than that there is also the evidence from PW3, and I quote:

'After Ah Yan came out from her room with the defendant she went to the toilet. When she came out from the toilet she asked the three of us which of us had been in the room to bok with her.'

The defendant said, 'It's me, don't you remember?' Then Ah Yan said, 'I remember.' Then she embraced the defendant and called him 'my husband'. This piece of evidence to my mind is an admission by the defendant, and the word 'bok', there has been evidence in the trial that the connotation of that word is sexual intercourse."

23. There was sufficient evidence for the jury to draw an inference that the Applicant had had sexual intercourse with Ah Yan and the Judge was right in ruling that there was a case to answer. This ground fails.

24. The 2nd and 3rd grounds can conveniently be dealt with together. They are as follows:

"2. The learned trial judge erred in not discharging the jury from trying the first count of rape after the same jury had (as directed) returned a verdict of not guilty on the Second Count of administering drugs to obtain or facilitate intercourse, when the prosecution case against the Appellant was and remained that he had administered drugs to the victim so as to obtain or facilitate intercourse with her (i.e. that he was guilty on the Second Count) and having thus rendered her unable to give valid consent proceeded to have sexual intercourse with her.

3. The Appellant having been found not guilty on the Second Count, the learned judge in his summing-up misdirected the jury that they could find that the Appellant brought the drugs and put them into orange juice which was drunk by the victim, thereby asking the jury (despite having delivered the said Not Guilty verdict) to find that he was in fact guilty on that count."

25. The main complaint made by Mr. Hoosen related to the way the Judge summed up the evidence to the Jury at p. 37 of the appeal bundle.

"Again , the evidence in this respect comes from KWONG Ka-chun and LEUNG Chi-chiu. It is their evidence that the drugs were brought along by the defendant. KWONG Ka-chun says that he saw the defendant putting the drugs into the orange juice which was later given to PW1. LEUNG Chi-chiu said that although he did not see drugs being put into the bottle of orange juice, he saw the defendant shaking the bottle with white substance in it. If you accept this evidence, it would show that the defendant clearly knew that CHENG Chi-yan was being drugged after drinking the orange juice, and if you also accept the evidence of Dr LAU as to the extent of Ah Yan's intoxication by this drug Clonazepam, it is open to you to infer from all this evidence that the defendant knew, or believed that CHENG Chi-yan was not in a condition to give her consent to having sexual intercourse that night."

26. Mr. Hoosen argued that it was not open to the prosecution to place reliance upon this evidence having regard to the acquittal on the second count.

27. Mr. Hoosen referred us to a passage in the judgment of Salmon, L.J. as he then was at p.439 of G. (An Infant) v. Coltart [1967] 1 QB 432.

"There is very little authority on this point. I think, however, on general principles that it would be quite wrong to allow the prosecution in order to obtain a conviction in case B to seek to show that the defendant was guilty in case A, after the defendant has been acquitted in case A. I have no doubt that, even although the defendant is acquitted in case A, evidence called against the defendant in case A could be relevant in case B, for example, to show what his intent was in case B. But it can never be permissible in case B to rely on the guilt of the defendant in case A if he has been acquitted in case A."

28. This passage was referred to in D.P.P. v. Humphrys [1977] AC 1 where consideration was given to whether there was such a doctrine as issue estoppel in criminal proceedings. What was clear was that a defendant should not be subjected to double jeopardy or any form of unfairness or injustice. In this connection Lord Salmon stated at p.47 that "he did not know of any way how anyone, however disreputably he has obtained an acquittal can subsequently be convicted of the offence of which he has been acquitted."

29. Lord Hailsham went on to consider the relevant principles at p.40. He said:

"Since this opinion is already long I venture to summarise it as follows. (1) The doctrine of issue estoppel as it has been developed in civil proceedings is not applicable to criminal proceedings. It follows that the decision in Reg. v. Hogan [1974] Q.B. 398 was wrong and should not be followed. The decision in H.M. Advocate v. Cairns, 1967 J.C. 37 was correct and is applicable in England. (2) Although the civil doctrine of issue estoppel as it has been developed in civil proceedings is not applicable to criminal proceedings, there is a doctrine applicable to criminal proceedings which is in some ways analogous to issue estoppel, and has sometimes been described by that name. However, (3) the civil doctrine is based on the necessity for finality between private litigants, whereas the doctrine in criminal proceedings is based on the prohibition of double jeopardy, that is, the maxim nemo debet bis vexari pro una et eadem causa. It follows (4) that whereas the civil doctrine is equally applicable to either of the two civil parties, the criminal doctrine is available to the accused but not to the Crown. (5) Whereas the civil doctrine applies to all cases where an individual issue can be isolated and identified as determined, the criminal doctrine is not so limited but is primarily concerned with verdicts, and applies to verdicts which are either in form or in substance inconsistent. (6) In general, the doctrine in criminal law precludes the Crown from adducing evidence or making suggestions which are inconsistent with a previous verdict of acquittal when its real effect is determined. The doctrine is one of substance rather than form. The court will inquire into realities and not mere technicalities. (7) Where a second charge is brought which is different both in substance and in form from an earlier charge, the mere fact that some of the evidence adduced in support of the second charge is inconsistent with innocence on the earlier charge does not preclude the Crown from adducing that evidence in asserting its truth when considering a verdict on the second charge. (8) Where the second charge consists in an allegation that the accused in the first charge has committed perjury in his evidence given on his own behalf in his defence on the former charge, the mere fact that some of the evidence brought in support of the charge of perjury is identical with evidence given in the first charge and inconsistent with innocence on that charge does not preclude the Crown from adducing that evidence or asserting its truth where it is accompanied by other evidence in support of the charge of perjury but (9) where the evidence is substantially identical with the evidence given at the first trial without any addition and the Crown is in substance simply seeking to get behind a verdict of acquittal, the second charge is inadmissible both on the ground that it infringes the rule against double jeopardy and on the ground that it is an abuse of the process of the court whether or not the charge is in form a charge of perjury at the first trial. (10) Except where the formal pleas of autrefois acquit or convict are admissible, when it is the practice to empanel a jury, it is the duty of the court to examine the facts of the first trial in case of any dispute, and in any case it is the duty of the court to rule as a matter of law on the legal consequences deriving from such facts. In any case it is, therefore, for the court to determine whether on the facts found there is as a matter of law a double jeopardy involved in the later proceedings and to direct a jury accordingly."

30. This passage is most helpful. In applying the principles to the present case it is necessary to consider (a) whether in substance the prosecution is attempting to adduce evidence which is inconsistent with the jury's acquittal of the Applicant on the second count and (b) whether looking at the charges as a whole the prosecution is seeking to go behind the acquittal on the second count.

31. In endeavouring to find the answer to these questions assistance can be derived from the commentary at para. 4-160 of the 1998 Edition of Archbold. What is necessary is to consider the identity of the charges rather than the nature of the evidence.

32. It has to be said immediately that there are significant differences between the offence of rape and the offence of administering drugs to obtain or facilitate sexual intercourse. The most obvious difference is that it is possible to be convicted under s.121 even though sexual intercourse may not have taken place.

33. Coming back to the facts of the present case it is necessary to consider the relevance of the evidence referred to in the summing-up at p.37 of the appeal bundle. While it was undoubtedly important evidence in support of the second count it was also highly relevant in support of the rape charge. The evidence if believed would go to demonstrate that the Applicant would have been aware that the victim would have been in no position to consent to sexual intercourse. As the Judge put it it would have been open to the jury to infer from all this evidence that Ah Yan was not in a condition to give her consent to having sexual intercourse that night.

34. Going back to the questions posed by Lord Hailsham this evidence was not inconsistent with the acquittal on the second count nor was it simply an attempt by the prosecution to go behind the acquittal. It was evidence properly adduced to demonstrate that the Applicant was guilty of the first charge. Also of itself it would have been insufficient to establish guilt on the second count. It certainly could not be said that it was a misuse of the evidence.

35. Mr. Wesley Wong for the Respondent has helpfully drawn our attention to R. v. YEUNG Chi-sing [1993] 1 HKCLR 95 where a similar situation was encountered. The headnote of the case accurately encapsulates the issues which arose:

"The applicant was arrested on 15th April 1989 outside a shed in Ping Yeung Village. The applicant was at that time carrying an orange carton containing in the region of 6 kg of dangerous drugs. The applicant was charged jointly with another of having possession of some 5.5 kg of dangerous drugs found inside the shed. The applicant was found not guilty on this count. The applicant was also charged in relation to possession of the drugs in the orange carton itself. The jury were unable to reach verdicts in relation to the charges concerning possession of the drugs in the orange carton and the applicant was tried again.

At the second trial the prosecution adduced evidence, inter alia that the applicant's fingerprints had been found on two trays in the shed, which trays contained traces of dangerous drugs. On behalf of the applicant it was argued that such evidence was wrongly before the jury, in that such evidence was only relevant in respect of the drugs that had been found in the shed and, in respect of that charge, the applicant had already been acquitted."

36. Power, J.A. (as he then was) who gave the judgment of the court said at p.99 line 26:

"We accept that it is not permissible for the prosecution in order to obtain a conviction in case B to seek to show that the accused was guilty in case A, after he has been acquitted in case A."

37. The court went on to hold that the evidence of the fingerprints found on the trays in the shed was led to establish not the possession of the drugs in the shed for the purposes of trafficking but knowledge which was relevant to the drugs found in the orange carton. The fact that the defendant may have been shown to know about the drugs in the shed was not the same as saying he had possession of them.

38. As has been indicated earlier in this judgment the ingredients of an offence under s.121 are not the same as those required to establish rape.

39. The evidence relating to the Applicant's spiking Ah Yan's orange juice was not being adduced to prove that he had committed the offence under s.121 but was evidence introduced to establish that the Applicant was aware that Ah Yan was not consenting to sexual intercourse.

40. This was consistent with the approach adopted by the Court of Appeal in YEUNG Chi-sing.

41. All of this leads to the conclusion that the Judge did not misdirect the jury when he addressed them in the way he did at p. 37 of the appeal bundle. Nor can it be said that the Judge was in error in not withdrawing the first charge from the jury when he held that there was no case to answer on the second charge. This being the case this conviction was in no way unsafe or unsatisfactory and this application is dismissed.