R. v. LAM WING WAH

IN THE COURT OF APPEAL

1994, No. 334
(Criminal)

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J U D G M E N T

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Bokhary, J.A. (giving the judgment of the Court):

1. This is an application for leave to appeal against conviction and sentence. At this stage, we are dealing with conviction.

2. The case comes before us from a lengthy trial before Wong J and a jury last summer.

3. The applicant was the first of five accused on trial. The indictment contained 12 counts.

4. The 1st and 2nd counts were of controlling a woman for the purpose of prostitution, contrary to s.130(1)(b) of the Crimes Ordinance, Cap. 200.

5. The 3rd and 4th counts were of detaining a woman against her will with the intention that she should have unlawful sexual intercourse with men, contrary to s.134(1)(a) of that Ordinance.

6. The 5th count was of rape, contrary to s.118(1) of that Ordinance.

7. The 6th count, which was in the alternative to the 5th count, was of unlawful sexual intercourse with a girl under the age of 16, contrary to s.124 of that Ordinance.

8. The 7th count was of rape.

9. The 8th count, which was in the alternative to the 7th count, was of unlawful sexual intercourse with a girl under the age of 16.

10. The 9th count was of rape.

11. The 10th count, which was in the alternative to the 9th count, was of unlawful sexual intercourse with a girl under the age of 16.

12. The 11th count was of rape.

13. The 12th count, which was in the alternative of the 11th count, was of unlawful sexual intercourse with a girl under the age of 16.

14. Two victims were named in those counts: a Miss Chung who was aged 13 and a Miss Ng who was aged 14.

15. Miss Chung was the victim named in the 1st count (controlling), the 3rd count (detaining), the 5th count (rape), the 6th count (unlawful sexual intercourse), the 11th count (rape) and the 12th count (unlawful sexual intercourse).

16. Miss Ng was the victim named in the 2nd count (controlling), the 4th count (detaining), the 7th count (rape), the 8th count (unlawful sexual intercourse), the 9th count (rape) and the 10th count (unlawful sexual intercourse).

17. All the offences were alleged to have taken place in the same flat in Yuen Long.

18. The controlling and detaining counts were against the applicant and the 3rd, 4th and 5th accused. For each of those four offences, the charge period was the same i.e. between July 23 and August 6, 1993.

19. The rapes and acts of unlawful sexual intercourse under the 5th, 6th, 7th and 8th counts were alleged against the 1st accused. For each of those four offences, the charge date was July 23, 1993.

20. The rape under the 9th count and the act of unlawful sexual intercourse under the 10th count were alleged against the 3rd accused. For each of those two offences, the charge date was July 26, 1993.

21. The rape under the 11th count and the act of unlawful sexual intercourse under the 12th count were alleged against the 2nd accused. For each of those two offences, the charge date was July 29, 1993.

22. In the result, only one conviction was reached. It was against the applicant on the 1st count, which was of controlling Miss Chung. On July 23 last year the jury unanimously convicted him on that count. And on the 20th of that month, the judge sentenced him four years' imprisonment.

23. The applicant, we might mention, is a man of previous good character in his early 40's.

24. Sub-section (2) of s.130 of the Crimes Ordinance Cap. 200 provides that:-

"A person shall not be convicted of an offence under this section on the evidence of one witness only, unless the witness is corroborated in some material particular by evidence implicating the accused."

25. As the judge told the jury, the only evidence against any of the accused came from Miss Chung and Miss Ng.

26. The judge told the jury each girl's evidence was capable of corroborating the other girl's evidence. Let us assume that that is correct and that the judge went no farther than to tell the jury so. But the fact is this. It is inexplicably strange that the jury were apparently prepared to accept Miss Ng's evidence as corroboration of Miss Chung's evidence that she, Miss Chung, was controlled but were apparently not prepared to accept Miss Ng's evidence that she herself was controlled or that any of the other offences charged had been committed against her. We consider the conviction here unsafe. And in those circumstances, there is no need to consider the other grounds of appeal.

27. This application for leave to appeal must be treated as the hearing of the appeal itself, and the appeal must be allowed so as to quash this conviction and set aside this sentence. The appeal is allowed accordingly.