R. v. KEUNG HUNG CHUN

IN THE COURT OF APPEAL

1996, No. 368
(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.

2. This was a most unfortunate case. The applicant was also charged with indecent assault in respect of the same incident and pleaded guilty to this count.

3. To a large extent there was agreement on the facts of the case.

4. The victim a school girl aged 9 was walking through a park on her way to buy a comic when the applicant approached and patted her on the shoulder. He ordered her to carry something for him and that if she refused he would stab her to death or render her unconscious.

5. As a consequence of this she agreed to accompany him to the rooftop of a nearby building. There he ordered her to remove her clothes which she did.

6. He then committed a number of indecent assaults upon her.

7. Amongst these assaults the applicant admitted that he inserted a finger into her vagina.

8. The area of dispute on the rape charge was whether the applicant had inserted his penis into her vagina. The victim said that he did. The applicant denied this and suggested that the girl must have been mistaken when she said that he had done this. However the victim had given evidence that the man's penis was much softer than the finger which had been inserted into her.

9. Before us the applicant alleged that the complainant had lied to the court. He also referred to the fact that when the complainant first made her complaint she didn't claim to have been raped. Having regard to the facts of this case and to the girl's age this was hardly surprising. She gave very specific detail as to what had transpired.

10. In his summing-up Leong J gave the most careful and detailed instructions upon the approach the jury must adopt to the victim's evidence and that they must be certain of the truth of her evidence.

11. All of the evidence was before the jury and it was a matter for them to determine whether the prosecution had proved its case on this charge. We can see no reason to interfere with their verdict. The conviction was not in way unsafe or unsatisfactory and this application is dismissed.