R. v. NG KAM-WAH AND OTHERS

-----------------------------

-------------------------------------------------------

JUDGMENT  OF  THE  COURT

-------------------------------------------------------

Macdougall, J.A.:

1. The applicants were convicted after trial before Gall J. and a jury on five counts of rape and were sentenced to consecutive terms of eleven years imprisonment. They now apply for leave to appeal against both conviction and sentence.

2. The evidence for the prosecution was that on the evening of 15th September 1989, a Miss Chiu who was then 15 years of age, and a female friend, Miss Ching, met Miss Ching's boyfriend, a Mr. Lam. Lam suggested that they attend a birthday party that was being held at Yuen Long. Miss Chiu and Miss Ching agreed to do so. Soon after they reached their destination, which was a house in Hung Cho Tin Village, a group of young men arrived. After a short discussion three of the young men went off with Lam and Miss Ching to buy food for a barbecue.

3. However, Lam and Ching did not return. After waiting for a half an hour, Miss Chiu left the house while the remaining young men were in another room and walked to the main road near the village. Discovering that she had left the house, the 5th applicant followed her, seized her by the hand and, despite her protests that she wanted to leave, attempted to carry her back to the house, telling her that she had to return and ask his big brother, whose birthday it was, for permission to leave.

4. With the 5th applicant resting his hand on her shoulder Miss Chiu reluctantly returned to the house She was taken into a room where all five applicants were present. Her handbag was searched and items were taken from it. Her camera was used to take some photographs, after which the film was removed. Miss Chiu then asked for her belongings to be returned to her. When the applicants refused to do so, she became angry. One of them switched off the light and closed the door. Miss Chiu switched the light back on but the same applicant switched it off again. When Miss Chiu swore at him he demanded that she take her shoes off and apologise to him. She attempted to remonstrate with him, but he hit her. In order to escape further violence she took refuge behind the 5th applicant. The applicant who had switched off the light then had a mock fight with the 5th applicant.

5. Taking advantage of this situation, Miss Chiu picked up her handbag and attempted to open the door. However, she was prevented from doing so by the applicant who had switched off the light. She ran over to one of the other applicants in order to gain his assistance, but he offered her none. The applicant who had switched off the light then came across and slapped her twice across the face. One of the other applicants demanded that she beg to him and told her she would be allowed to leave if she did so. The other four applicants then left the room and closed the door, leaving her alone with him. He ordered her to remove her clothes. She was very frightened and did as she was told. He then had intercourse with her. While he was doing so, she struggled and he slapped her face twice. After he had finished, the other four applicants had intercourse with her one after the other. Although Miss Chiu later identified at an identification parade all five applicants as the men who had raped her, she was unable to say at the trial in which order they had had intercourse with her.

6. In a statement which he made to the police, the 5th applicant admitted that had had intercourse with Miss Chiu, but said that it had been with her consent. He admitted that after Lam and Miss Ching had gone to Yuen Long with some of his companions to buy food for a barbecue, Miss Chiu had said that she wanted to leave. According to him he accompanied her to the entrance of the village where he then told her that it was his big brother's birthday and that she should speak to him before she left. She agreed to do so and, on the way back to the house, they met up with the three applicants who were returning from buying food. He went on in the statement to give a description of events which, with one major exception, accorded in substance with Miss Ching's account of what then happened.

7. He said that after one of the other applicants who had been left alone in the room with Miss Chiu eventually emerged naked, he, the 5th applicant, then entered the room and saw Miss Chiu lying on a mattress and covered with a blanket. Realizing that she was naked, he asked her if he could make love to her. She agreed to his suggestion. He then had intercourse with her, after which he left the room and had a shower. Later, after all the other applicants had had intercourse with her, he again asked her if she would allow him to make love to her. Again she agreed. While he was doing so Miss Chiu began to weep and told him that she wanted to kill herself and that she wanted to go home. He comforted her. Then, after they had had a bath together, he took her to the village, gave her $100 to take a taxi home.

8. Plainly the jury believed Miss Chiu for they returned unanimous verdicts of guilty against each applicant on each count.

9. The Perfected Ground of Appeal in respect of each applicant is "That the Appellant's convictions for Aiding and Abetting Rape should be set aside on the grounds that they were unsafe and unsatisfactory". We should observe at the outset that the applicants were not convicted of aiding and abetting rape but were convicted on five counts of rape. It seems that this ground of appeal springs partly from the following observation of the judge in the course of his Summing-up:-

"Now each of the accused are jointly indicted with each other accused on each count of rape. In some ways this is an unsatisfactory way to draft an indictment and there are other ways in which it could have been done."

10. The judge gave no indication as to why he thought the indictment had been unsatisfactorily drafted. In this regard we think it pertinent to refer to the decision of the House of Lords in The Director of Public Prosecutions v. Merriman (1972) 56 Cr.App.R. 766 where at page 796 Lord Diplock said:-

"... whenever two or more defendants are charged in the same count of an indictment with any offence which men can help one another to commit, it is sufficient to support a conviction against any and each of them to prove either that he himself did physical act which is an essential ingredient of the offence charged or that he helped another defendant to do such an act, and, that in doing the act or in helping the other defendant to do it, he himself had the necessary criminal intent."

Lord Diplock then went on to state that this was held to be the law by the Supreme Court, New South Wales, in R. v. Fenwick and Taylor (1953) 54 S.R.N.S.W., a case in which two accused were in one count jointly charged with rape in an indictment that did not contain separate counts alleging independent crimes of rape by each accused. The two accused had given a girl a lift home from a dance. Each of them had then raped her. It was contended on appeal that it was not open to the jury, if they found an absence of common purpose, to consider the individual cases of the two accused as if separate indictments had been preferred against them for the act of rape which it was alleged that the particular accused had committed. This contention was rejected by the court. In delivering judgment Street, C.J. said:-

"Indictments are to be read jointly and severally and this indictment as is the common factors in indictments in cases of murder, although it is framed against two accused, is to be regarded as a joint and several indictment of those accused."

Strictly speaking, therefore, it would have only been necessary for the prosecution to prefer one count alleging that the five applicants had raped Miss Chiu. It seems likely that, in preferring five identical counts, the draftsman of the indictment in the present case sought to avoid any argument that a single count would be bad for duplicity, and had in mind the following passage from the speech of Lord Morris in Merriman at p.775:-

"The question arises - what is an offence? If A attacks B and, in doing so, stabs B three times with a knife, has A committed one offence or five? If A in the dwelling-house of B steals ten different chattels, some perhaps from one room and some from others, has he committed one offence or several? In many different situations comparable questions could be asked. In my view, such questions when they arise are best answered by applying common sense and by deciding what is fair in the circumstances. No precise formula can usefully be laid down, but I consider that clear and helpful guidance was given by Lord Widgery C.J. in a case where it was being considered whether an information was bad for duplicity (see Jemmison v. Priddle (1971) 56 Cr.App.R. 229 at p.234.) I agree respectfully with Lord Widgery that it will often be legitimate to bring a single charge in respect of what might be called one activity even though that activity may involve more than one act. It must, of course, depend upon the circumstances."

11. While we do not think that the draftsman of the indictment was wrong in preferring five counts of rape, we are of the opinion that in the present case, as in Fenwick and Taylor, a single count of rape would have sufficed and would not have been bad for duplicity. We should add that where, in an abundance of caution, the prosecution decides to include a separate count for each act of rape, the indictment would be more readily comprehensible if the words "on an occasion other than those referred to in the other counts in this indictment" or words to that effect were inserted after the date alleged in each count.

12. In the event, the jury, by returning verdicts of guilty against the applicants on all counts, were plainly of the view that each of them had not only raped Miss Chiu by having had intercourse with her against her will, but had also aided and abetted each other to rape her. This is perfectly consistent with the direction which the judge gave to the jury following his observation, to which we have already referred, concerning the drafting of the indictment. He said at p.13 of the summing-up:-

"But what this means is that in respect of each count on the indictment, it is alleged that one of the accused actually had sexual intercourse with Miss Chiu against her will, and whilst he did so, the other four accused were nearby intending that the rape should take place and in a position to aid the person actually having the intercourse or to prevent the escape of Miss Chiu if required, that is what the Crown has alleged."

13. Mr. Forrest, who appeared for the applicant in this court but not in the court below, submitted that the judge had effectively told the jury at p.22 of the Summing-up that if they were satisfied that each of the five offenders had physically raped Miss Chiu, then that would be sufficient to convict all the accused of all counts that they face.

14. The passage to which Mr. Forrest referred is as follows:

"If you are sure, having heard Miss Chiu in chief and in cross-examination, that what she described was the truth as to the acts of intercourse, as to the lack of consent, and sufficient to prove that the 5th accused did not believe she was consenting, if you find it is sufficient as to the evidentity of the 1st, 2nd, 3rd and 4th accused, then her evidence, if you bear in mind the warning about corroboration but still find her to be telling the truth, would be sufficient to convict all the accused of all counts that they face."

15. We accept that, taken in isolation, this passage is somewhat obscure and seems to relate the belief of the 5th applicant that Miss Chiu was consenting to intercourse with him to the case of the other applicants on all the counts relating to them. However, we think that it must be read in conjunction with the passage that we have already quoted from p.13 of the summing up and the following direction which the judge gave at p.30:

"At the end of the day, your options are these: if you are sure beyond reasonable doubt that each of the accused raped, in the terms of the definition that I have given you, Miss Chiu, you will find them each guilty of one count of rape. If you find you are sure that one or more of them aided or abetted the rape by one of more of the others, you will convict those you hold to be aiders and abetters on the number of counts you hold they aided and abetted. In respect of the 1st, 2nd, 3rd and 4th accused, if you are not sure the Crown has proved the guilt of anyone or more of them you will acquit the 1st, 2nd, 3rd, 4th and 5th accused of four counts of the indictment. Then go on to consider whether you are sure or not the 5th accused committed the offence of rape. If you are sure of his guilt you will convict him of one count of the rape and go on to consider whether the 1st, 2nd, 3rd and 4th or any of the accused were guilty of aiding and abetting the 5th accused. If you are sure that any of them did so aid and abet you will convict them. If not, you will acquit. If you are not sure of the guilt of the 5th accused you will acquit him of that one remaining count, and also acquit the other accused as they could not have aided and abetted him. If you are not sure that all of the accused or that any of the accused committed any of the offences, you will acquit. them."

In the light of these directions, we do not think that the jury would have been led into error in the way in which Mr. Forrest complains they could have been.

16. Indeed, in the latter part of the last passage we have quoted, the judge gave a direction which was unduly favourable to the 1st, 2nd, 3rd and 4th applicants when he wrongly told the jury that if they were not sure that the 5th applicant physically raped Miss Chiu, they should not only acquit him on that count but should also acquit the others as they could not have aided and abetted him.

17. An aider or an abetter may be convicted of rape notwithstanding the acquittal of the alleged principal offender. This is because the actus reus of the offence is the act of sexual intercourse without the consent of the woman, and the mens rea is the intention of the aider and abetter that the principal should have sexual intercourse with the woman without her consent. It is irrelevant that the alleged principal offender did not intend to have sexual intercourse with her without her consent (see R. v. Cogan and Leak (1975) 61 Crim. App.R. 217.)

18. Mr. Forrest further submitted that a direction which the judge gave in response to a question asked by the jury 7 hours after they had retired "may have been insufficient to negate in the minds of the jury a clear but erroneous direction which they had earlier received at p.22".

19. The question which the jury asked was: "My Lord, we would like you to reclarify the counts for each individual accused." The judge then consulted prosecuting and defence counsel in the absence of the jury. He said at p.31:-

"What I take them to mean is this, the jury wish to have reclarified the situation that since individual accused were not identified that it is . necessary for them to either be sure that all four of the 1st to the 4th accused committed the offence of rape or they must acquit all four, other than that, the only direction that I can see that they could be given was that in respect of each count it must be that it relates to an act of rape by one and the other four are aiders and abetters."

20. He then invited prosecuting counsel and each defence counsel in turn to comment. Prosecuting counsel agreed that the judge's understanding of the jury's question accorded with his own understanding of it. One defence counsel replied that it appeared that it was not clear to the jury which count related to which accused. The other four counsel replied that they had nothing to add. The judge then recalled the jury and gave them the following direction:-

    "Members of the jury, I have received your enquiry and I have discussed the matter with counsel. There are before you five counts, each jointly against the five accused. The Crown has presented this case on the basis that each of those counts related to a physical act of rape by one of the accused and in each of the counts the other four aided and abetted that rape, that is one matter which you may wish to have clarified.

    The second matter that occurs to us that may cause you difficulty related to the 1st to the 4th accused. The role played by each of those accused was not identified by Miss Chiu when she gave her evidence, therefore, you cannot isolate each of those accused and identify from her evidence what role each played. That being so, if you have a doubt in respect of whether any of those four, the lst, the 2nd, the 3rd or the 4th accused, are guilty of rape, you not only must acquit the one in respect of whom you have a doubt but you also acquit the other three because you cannot tell from the evidence which one it was. If you acquit the four, the lst to the 4th, accused on that basis, the 5th accused must be acquitted of aiding and abetting each of those four and each of the four must be acquitted of aiding and abetting each other."

21. In our view the judge's redirection to the jury was entirely adequate. Indeed, on further reflection, Mr. Forrest frankly conceded that it was unexceptionable. However, he suggested that, in giving the direction at p.22 to which we have already referred, the judge, although not obliged to do so, could have given the jury some examples as to what evidence was capable of amounting to aiding and abetting. In our opinion, however, the direction which the judge gave a p.13 before outlining to the jury Miss Chlu's testimony as to what the applicants had done prior to committing the alleged rapes was all that was required of him.

22. Finally, Mr. Forrest referred us to two passages in the summing-up where the judge told the jury that two questions were crucial to their decision, namely, were the applicants involved in the incident and did they rape Miss Chiu. Mr. Forrest complained that the judge failed to make any reference to whether any or all of the applicants aided and abetted rape. In the light of the passage on p.13 of the Summing-up, to which we have already referred, we do not consider that there is any merit in this submission. We are satisfied that the convictions are neither unsafe nor unsatisfactory. The applications for leave to appeal against conviction are therefore refused.

Sentence

23. With regard to the applications for leave to appeal against sentence, Mr. Forrest contended that the concurrent sentences of eleven years passed on each applicant were excessive in all the circumstances of the case. In support of this contention he referred us to what was said by Lord Lane C.J. in R. v. Billam [1986] 81 Crim App.R. 347 at 359:-

"For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case. Where a rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years."

24. In the light of the passage, Mr. Forrest submitted that the sentences should have been no heavier than nine or ten years.

25. He pointed out that at the time of the commision to of the rapes all applicants were aged 19, but for the 2nd applicant who was 17.

26. The judge stated that the only real mitigation in respect of each applicant was that he was under 20 years of age at the relevant time. After correctly observing that the worst type of gang rape merited a starting point of sentence of 15 years (see R. v. Yau Wai-hung [1988] 1 HKLR 452 at 456 and R. v. Ng Kam-tai Criminal Appeal 330 of 1989 at p.5), he passed the sentences of 11 years' imprisonment.

27. Miss Chiu, who was only 15 years of age, testified that prior to these offences she was a virgin. This was supported by the medical evidence. She was subjected to six successive acts of rape by a group of five males who kept her captive in a house after she had been taken there against her will and after she had made it plain on more than one occasion that she wanted to leave. Some, albeit not serious, violence over and above that necessary to commit the rapes was used. She was also subjected to the further indignity of having to perform oral sex with one of the applicants.

28. In all the circumstances we have come to the conclusion that the sentences were entirely proper. Accordingly the applications for leave to appeal against sentence are refused.