THE QUEEN v. MAU MAN YIU

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J U D G M E N T

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Cons, Ag. C.J. delivered the judgment of the Court:

1. On the 23rd December MAU Man Yiu ("the Defendant") was convicted by a jury before Barnes J. of two counts of rape and one of assault occasioning actual bodily harm. He was sentenced to a total of three and a half years' imprisonment. He is applying now for leave to appeal the two rape convictions. He makes no application in respect of the assault occasioning actual bodily harm.

2. The substance of the evidence against him was that on the evening of the 29th August last year he and a business friend from Taiwan bought out two hostesses from the Club Volvo. One of the girls passed by the name of Con, and the other Mimi. The two men took the girls back to the room in which the friend was staying in the Kowloon Hotel. The girls said they understood that the purpose was merely to have drinks with the two men.

3. Once inside the room the Defendant suggested to Mimi that she indulge in sexual intercourse with his friend while he and Con looked on. Mimi declined whereupon the Defendant became angry and slapped her face. We should interpose that he offered a plea of guilty to common assault when the case was opened, but the offer was not accepted. Mimi then picked up her handbag to leave. The Defendant rushed to her, hit her again and uttered threats indicating that he had influence with underground societies and with the police. Frightened by this stage Mimi stayed, and eventually did suffer sex with the friend on the floor, while the Defendant on the bed focussed his attentions on Con. She declined initially, on the ground that her menstrual period was starting, but there does seem to have been in the end some sex between them, either on the bed or in the bathroom, into which he chased her after a while. Returning from the bathroom, - by which time Mimi had moved to the bed the Defendant sought sex with her there. She tried to refuse him but, according to her evidence, he hit her yet again and forced himself upon her.

4. When that was done both girls, having showered and dressed again made as if to leave. But although the Defendant allowed on to leave, he restraine Mimi, with more violence and threats, and said that he would teach her a good lesson for her earlier refusal. He forced her to take off her clothes again and to lie on the bed between him and his friend who then together manhandled her sexually, causing her great pain. The Defendant then raised her up, and forced her to have oral sex with him, while his friend, taking advantage of the situation, raped her from behind. After that they changed round, the friend forcing oral sex upon Mimi while the Defendant raped her from behind.

5. In the meantime Con had contacted their mamasan from the Club Volvo and together they enlisted the somewhat reluctant help of the hotel staff. Telephone calls to the room were first made each man answering quite untruthfully that Mimi had already left. Then, ignoring a "Do Not Disturb" sign on the door of the room, the manager threatened to call the police if entry were not given. Finally the door was opened and, Mimi made good her escape. The police were in fact notified and the two men arrested shortly afterwards.

6. The indictment reflected the conduct against Mimi in five counts, for some reason not put in strict chronological order. Count 2 alleged rape by the Taiwanese friend, that is, the first intercourse on the floor. Count 1 alleged rape by the Defendant, on the bed after he had left Con in the bathroom. Counts 3 and 4 were against both men, and derived from what happened after Con had left, Count 3 being the first part, that is when the friend was the actual rapist with the Defendant's support, and Count 4 vice vesa. The 5th count was in respect to the assault occasioning actual bodily harm.

7. The jury found the Taiwanese friend not guilty of all counts against him, that is two as direct rapist and one as secondary party; they found the Defendant guilty of the two in which he was charged as direct rapist and of the, assault occasioning bodily harm. They acquitted him of the the joint charge on which they had found his friend not guilty as, the direct rapist.

8. In his closing submission counsel for the Taiwanese friend stressed the possibility of the jury's returning different verdicts against the two men and also the need to consider the case against each man separately. The judge dealt with the latter aspect early in his summing up:

"As you know by now, the indictment alleges five offences. The requires that you consider each charge separately and the position of each defendant where there are the two defendants, two are charged, in relation to such charge individually."

But the only further help he gave was near the end:

"In relation to the third charge, you could not convict the 1st defendant if you found the 2nd defendant not guilty and in relation to the fourth charge, you could not convict the 2nd defendant if you found the 1st defendant not guilty. That is because in relation to the third charge, the 1st defendant is in effect charged with being present encouraging the 2nd defendant to commit rape, so that if you were unable to find that the 2nd defendant did commit rape then you could not find that the the 1st defendant encouraged him to commit the offence alleged.

Similarly, in relation to the fourth charge, you could not find that the 2nd defendant encouraged the 1st to commit the offence if you found the 1st defendant not guilty in respect of it, the logic being that you cannot find somebody guilty of encouraging somebody to commit an offence if he hasn't in fact committed the offence."

9. The jury took matters a stage further, interrupting their deliberations with a note to the judge containing three questions:

"1. Charge No. 3, can we find the 2nd defendant guilty and the 1st defendant not guilty?

2. Charge 4, can we find the 1st defendant guilty and the 2nd defendant not guilty?

3. Will the above charges stand?"

10. The judge answered all three with a simple affirmative. As a matter of strict law that was, of course, correct, but it is surprising that in the circumstances he did not assist he jury by relating the questions to their factual context in Mimi's evidence.

11. Mr. Alderdice, who appears for the Defendant today, applies to set aside the verdicts against his client as being inconsistent with those in favour of the Taiwanese friend.

12. It is true at the argument presents immediate attraction. The two men were in the room together. If the jury had no reasonable doubt that Mimi spoke the truth with regard to what happened there, why should they have reasonable doubt in respect of the Taiwanese friend? But there was on the evidence - and certainly it was so suggested to the jury -, a possible significant difference between the situations of the two men. The Taiwanese friend spoke Mandarin, and although, as Mr. Alderdice has pointed, out, there was some evidence from Mimi that she and the Defendant spoke Mandarin to each other the evidence as a whole left room for the jury to conclude that it was in Cantonese that the initial abuse and the threats were uttered by the Defendant, in particular his suggested connection with triad, societies and the police an aspect that the jury may have thought very material. The judge was careful to point out that if Mimi had. submitted to intercourse with the friend, the friend could only be guilty if he had known of the threats and that they caused her submission. Counsel for the friend had dwelt on this aspect in his address to the jury and the judge adverted at another point in his summing up to "the importance of the language point taken by counsel".

13. That factor alone may well have been sufficient to sway the jury with regard to the first rape, as Mr. Alderdice has today, with his usual frankness, acknowledged. But there were other factors which may have also influenced them. After the friend had taken Mimi to what was called "the corridor", that is, the part of the room outside the bathroom, in order to have intercourse on the floor with her, she provided him with a condom. She I may even have put it on for him, and certainly took contraceptive precautions for herself. Then, after he intercourse was over, he either gave her directly or put in to her handbag, the sum of $700. Finally there was Con's evidence that She noticed no struggle or violence or noise coming from the floor at the time of their intercourse.

14. It is perhaps not quite so easy to perceive the jury's approach with regard to the joint rapes. But, again, there was the language question. The jury may have accepted that the further threats arid the comments about giving her a good lesson were in Cantonese; they may have taken the view that by that stage Mimi was sufficiently cowed not to put up any real resistance; and that the physical force that she spoke of as occurring thereafter was not so real as she later recollected. The jury may well have been left with some doubt therefore as to whether the Taiwanese friend might have thought that she was still a consenting, albeit perhaps reluctant, party to the games this followed. That being so, we have no reason to say that their verdicts were inconsistent.

15. As a second ground of appeal Mr. Alderdice complains that the judge gave no, what might conveniently be called, "Morgan direction". R v Morgan [1976] AC 182 was a case most unusual on its facts and led to the establishment of the law by the House of Lords that a man is not guilty of rape if, despite what is apparently obvious lack of consent, he nevertheless honestly believes that the woman is in fact consenting.

16. The judge gave a direction in substance on these lines more than once when dealing with the evidence against the Taiwanese. That was to be expected. The need was occasioned by what we have referred to as "the language point". The judge gave no such direction generally or when dealing with the Defendant. In our view that was not necessary. The issue as far as he was concerned was simple and straightforward, consent or no consent. There was no call for a Morgan refinement.

17. Finally Mr. Alderdice has suggested that in all the circumstances we might be constrained to feel a lurking doubt, that perhaps there has been a miscarriage of justice in relation to the Defendant. This is a question that hardly lends itself to argument. We need only say that we are not so persuaded.

18. For these reasons the application for leave to appeal is refused.