HKSAR v. MAN WAI MING

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.254
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 8th May 1998, this Applicant was convicted by a jury of rape, following a trial before Stock J. who then sentenced the Applicant to 7 1/2 years' imprisonment. The Applicant now seeks leave to appeal against conviction.

2. The facts were relatively straightforward. The Applicant, aged about 25, had gone to a karaoke bar in Windsor House at Causeway Bay where he stayed until the early hours. He left at the same time as the 28-year-old alleged victim who lived in Shatin. She became the passenger in the Applicant's car but she was not taken to her home. It was a matter of dispute as to who suggested first of all that she should ride in the Applicant's car. It was about 4 a.m. when the victim, without trousers or underpants, and with numerous bruises and scratches to her body, which were photographed later in the day, found herself in Ngau Pei Sha Street. There was no dispute in the trial that the Applicant had driven off leaving the victim there.

3. The prosecution pointed to these circumstances, but in particular to the evidence of the victim who said that she had been molested in the car and then raped, in order to prove their case. Allegedly, when the victim had shown her dislike of what the Applicant was doing to her, the Applicant became increasingly aggressive and eventually raped her.

4. The version given by the defence was that no molestation had taken place at all; there was no sexual intercourse with the victim and at most what had happened was that the Applicant kissed and hugged the victim and fondled her with her consent.

5. The Perfected Grounds of Appeal focused on the directions given by the trial judge regarding the jury's approach to inferences. There are three grounds and they need to be read together. The effect of them is as follows:

"1. When directing the jury about inferences, the judge erred in failing to distinguish between inferences favourable to the prosecution and inferences favourable to the Applicant by omitting from his direction that the jury should approach the two matters differently.

2. When directing the jury on the standard of proof for 'primary facts' from which inferences could be drawn, the judge's direction to the effect that such facts should be proved beyond reasonable doubt failed to make clear to the jury that a lower standard of proof for primary facts should be adopted if they were to draw therefrom inferences favourable to the Applicant.

3. The judge's direction that the jury might only draw an inference if it was the only reasonable inference they could draw was also inadequate in failing to make clear to the jury that if they were to draw an inference favourable to the Applicant such inference needed only to be one of the reasonable inferences."

6. Inferences, if properly drawn, can be powerful evidence of guilt. However, they can only properly be drawn against a defendant if the facts inescapably point towards one conclusion. If the evidence might lead either to one conclusion which is adverse to a defendant or to another conclusion which is not, it would be pure speculation to assume the former and reject the latter. This is precisely the point that the judge was driving at when he summed up to the jury upon inferences in the passages which have been cited in the course of the argument.

7. At page 5 line O the judge said to the jury:

"All of what the defendant says in the witness-box is evidence in the case to be weighed in the balance with all the other evidence. Likewise, all of what his witnesses say in the witness-box is evidence in the case. But please remember that the burden of proving its case remains at all times on the prosecution. If you were not to accept what the defendant says or what his witnesses say, you must nevertheless be satisfied beyond reasonable doubt that the prosecution has proved its case before you can convict."

8. The judge then turned to inferences in order to explain the role that they could play in deciding whether or not the prosecution had proved its case, and at page 6 line L, he went on to say:

"Members of the jury, you are entitled to draw inferences from facts which you find proved beyond reasonable doubt. In other words, if you find certain facts proved on the evidence before you, you are permitted to say, 'Well, on the basis of those facts which I find proved, what the lawyers call 'primary facts', there are other facts about which I can be sure.'"

9. Without citing the lengthy example the judge gave, he then provided the jury with a typical example to illustrate the nature of circumstantial evidence and to assist the jury to understand how an inference can be drawn in practice. The judge went on, at page 7 line N to say:

"You may only draw an inference if it is the only reasonable inference you can draw. In other words, you are not dealing with the situation whether - can I draw that particular inference. We are dealing with whether the facts are such that they cannot fairly admit of any other inference. And in particular, you may only draw inferences of guilt or other inferences against the defendant if you are satisfied that that inference of guilt or other inference against him is the only reasonable inference you can draw.

If you have a set of primary facts, and you say, 'Now, what inferences can I draw from those?', and there's only one reasonable inference to draw from, all the other inferences are just fanciful nonsense. If there's only one reasonable inference you can draw, then draw the inference. But if from those sets - that set of primary facts you can draw inference (a), which is against the defendant; but you can also draw inference (b), which is not against him, then you must not draw inference (a). Do you follow? Because it's not the only reasonable inference you can draw."

10. Again, the judge then went on to give various examples, this time drawn from evidence in the case where the prosecution had invited inferences of guilt to be drawn from primary facts. These related to the numerous injuries to the victim found all over her body, to the fact that the victim was seen naked from the waist down outside the car in which she had been travelling with the Applicant, and to the fact that he had driven off after he had heard the victim allege rape.

11. The directions which were given as to inferences were, it seems to this court, scrupulously fair to the Applicant and in law they were impeccable, having the weight of long-standing authority to support the directions which the judge gave.

12. The trial judge was anxious, as the passages dealing with inferences show, in a summing up which extended to 65 pages, to give a balanced summary of the law and of the facts. The judge was seeking to ensure that the jury did not indulge in speculation which earlier remarks in his directions to the jury had indicated they were not to do.

13. There was, in our judgment, no requirement upon the trial judge to direct the jury in respect of how to approach inferences that might be favourable to the Applicant. The judge had made it abundantly plain to the jury that if the Applicant was right in his evidence of what had happened, or even if he might have been right, then a verdict of not guilty would follow. Putting it another way, the judge had made it clear that if the prosecution's case fell short of making the jury feel sure of the guilt of the Applicant, the only verdict open to them was one of not guilty. Any further directions along the lines suggested by Mr. Yeung as to inferences which might favour the defence would be more likely to confuse than to assist. They would also be completely unnecessary. If evidence fails to establish to the high standard required, the adverse inference which the prosecution has invited the jury to draw, it ceases in this context to have any evidential value.

14. From the directions taken as a whole, it is apparent, with respect to Mr. Yeung, that the present application is misconceived.

15. The application is dismissed.