THE QUEEN v. TO SANG

IN THE COURT OF APPEAL

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JUDGMENT

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McMullin, V.-P.:

1. TO Sang was convicted in the High Court upon two counts of rape. He received sentences of six years upon each count. He now seeks leave to appeal against conviction and sentence.

2. In August 1984 the applicant was working as a captain in the Good World Restaurant at Mei Foo Sun Chuen. He was then about 38 years of age. He had been married but was divorced and was contributing to the maintenance of two daughters.

3. The complainant, KWONG Yuk-lin, began to work in the Good World Restaurant as a waitress in June 1984. She was working directly under the supervision of the applicant and they became friendly. She was then 19 years of age. Although the complainant and the applicant, both of whom gave evidence, described the progress of this relationship in markedly different terms, it is common ground between them that the relationship developed very rapidly into one of considerable sexual intimacy.

4. KWONG Yuk-lin went out with him many times during June, July and August. She admitted having had sexual intercourse with him on about ten occasions. These included trips in his company, with other male and female friends, to Macau for an overnight stay and a trip to his home island of Tap Mun.

5. She maintained, however, that throughout the greater part of this time she was not a willing companion of the applicant and that she maintained the relationship and granted him these favours mainly because he had, from time to time, and in order to secure her favours, claimed triad affiliations in such a manner as to cause her to believe that she might be in some danger if she refused.

6. In the middle of August they had a row in a public street and he struck her on the face because, according to her,she was unwilling to accompany him home. Thereafter she resigned her job at the Good World and, while without work, continued to reside at her sister's house in Tsuen Wan.

7. The applicant continued to pester her with repeated telephone calls, entreating her to return to work and to resume their relationship. She did not do so, however, and did not see him again until the early evening of the 22nd August when, as she was returning from a cinema, and was close to her sister's premises, the applicant approached her from behind in a very hostile manner and, indicating that he had a knife or some similar weapon in a plastic bag which he was holding, seized her by the arm and succeeded in bundling her into a taxi despite her protests. The taxi driver, ignoring her entreaties for help, drove the two of them to the vicinity of the applicant's home premises in Argyle Street.

8. The applicant dragged her out of the taxi and into the building. She strove to dispossess him of the bag which in the course of the struggle, dropped to the ground. She was forced to the ground herself and cut her hand on a bottle which had been in the bag and which had broken on impact. He then put his arm around her neck and tried to drag her into the lift. She prevented the lift door closing by jamming her foot against it. He struck her in the face. She cried out, "indecent assault".

9. The caretaker came and remonstrated with the defendant and shortly after that the applicant's principal tenant, Madam Lau, arrived and the three, of them went up in the lift together and into the principal tenant's premises. Madam Lau helped the girl to tidy up and wash away the blood from her hands and clothing. She also stitched up some of the girl's garments which had become torn in the fracas. She asked Madam Lau to get in touch with the police for her, but the latter refused because the applicant was her tenant, as also was a work-mate of his from the Good World Restaurant called MOK Man-yee.

10. The complainant described in considerable detail the circumstances surrounding the two incidents which are the subject matter of the charges. The salient features of her story are as follows. Having persuaded her to enter his cubicle the applicant locked the door and thereafter would not let her leave. He repeatedly sought to extract from her a promise that she would return to work and, when she cried out, he produced from under a cupboard a plastic bag with something projecting from it that loaded like the handle of a knife, so that she was overcome by fear. Eventually he undressed her and made her put on pyjamas belonging to him and then lay down beside her and embraced her. She tried to push him away. He made as it to reach for the knife. She shouted that he should not do it but he persisted. He removed her pyjamas and had intercourse with her.

11. They both slept after that but she was awakened when the applicant got up later and went to make himself a snack to eat. She did not join him: nor did she try to escape because, as she said, she was tired and in discomfort.

12. When she woke up in the morning she tried to leave but the applicant also woke and once more embraced her and had intercourse with her.

13. A very important feature of her testimony was that on neither of these two occasions did she actually put up any physical resistance to his advances. It was, of course, her case that she was in fear and that resistance would have been ineffectual since he might have resorted to the knife to secure compliance.

14. Later in the morning, she was given a track suit to wear by MOK Man-yee, who lived in a cubicle in the same premises. She returned to the applicant's cubicle. She had not complained to Mok "because he was a man". The applicant seemed to be angered by her going to see Mok and threatened to disfigure her with a small plastic safety-razor.

15. Mok left the premises about 10:00 in the morning. The applicant and the complainant left together at about noon and went shopping for a new dress, which the applicant bought for her. She spent the rest of the day in his company. They had lunch at a restaurant and in the evening went to a jewellery shop where a girl, Miss TO Pui-fong, whom the applicant knew was working. Miss To was instructed to watch over her while the applicant went to have tea in a restaurant in the same building. She and this girl joined him there after a short while and later she and the applicant had dinner together at another restaurant in the course of which, she admitted, that there was some talk about him getting a job for her.

16. It was her evidence that throughout that day she had been unable to escape from his company although it was put to her in cross-examination that there had been a number of opportunities when she might have tried to do so. In the evening the applicant escorted her to her home.

17. The applicant admitted in evidence that there had been a row in August when he had struck the girl, because he suspected that she had been consorting with another man, but he said that this had been repidly made up. Although she had left the job at the Good World after that incident, he saw her again on the 19th of August when they spent an evening at the home of Miss To.

18. He said that they had been lovers in the fullest sense and that the complainant had asked him to marry her but, although he was in love with her, he had pointed out that there were debts to be cleared and difficulties in the way of immediate marriage.

19. On the 21st of August he phoned her to make a date but got a somewhat evasive reply and that was why he went to wait for her near her home on the 22nd. Again he suspected that she might have been seeing someone else. He denied any violent confrontation on that occasion. They got a taxi and on the way to his home she spoke of marriage; when they left the taxi they shopped for provisions at a nearby supermarket before entering the building.

20. He had wished her to come up to his premises on the 8th floor to clear up a matter with the principal tenant who had complained about late right phone calls and who suspected that the complainant had been the caller. He agreed that a row had broken out because the girl seemed unwilling to talk to the principal tenant. In the course of a struggle a bottle had been broken upon which she cut her hands. The bottle was part of the provisions which had been purchased at the supermarket.

21. Madam Lau, the principal tenant, came and all three went up to the premises on the 8th floor. They sat with Madam Lau for a while in the living room.

22. When the principal tenant was preparing her eventing meal he and the complainant went into his cubicle where they sat and chatted for a while and eventually lay down together on the bed. He agreed that he had given her his pyjamas to wear, but denied that she had been forced to put them on or that he had later forcibly removed them. He said that both of the acts of intercourse had been fully consensual on her part as had all the previous such acts. He pointed out that they had had several happy expeditions together and that she had taken sufficient interest in him to persuade him to take up the exercise of jogging to improve his figure. Thus his story was that the events of the night of August 22nd to 23rd constituted a happy resumption of their formerly harmonious relationship.

23. The girl's account of the struggle at the lift was confirmed by the care-taker who had seen the accused strike her at least twice on the face and had remonstrated with him.

24. The principal tenant however - from whom the Crown had clearly expected greater support - did not confirm the complainant's evidence that she had cried out loudly while she was within the applicant's cubicle and said that, to the contrary, she had heard nothing unusual and that she had actually peeped in at one stage and seen the accused sitting quietly beside the bed upon which the complainant was lying.

25. MOK Man-yee,who lived in a cubicle close to that of the applicant, said that when the girl came to his cubicle in the morning she cried but did not say anything.

26. The only other evidence as to the girl's demeanour came from Miss Law who had been in the shop visited by the complainant and the applicant in the evening of the 23rd. She said that the applicant did not look very happy on that occasion though he and the girl were arm-in-arm.

27. Mr. Payne upon the appeal has taken a number of points on behalf of the applicant. In the event we find it necessary to deal with only one of them. In his summing-up the judge had properly warned the jury of the caution which must be observed in considering the testimony of the complainant and the need for corroboration.

28. Having properly directed the jury that certain matters relied upon by the prosecution could not amount to corroboration, the judge drew their attention to one piece of evidence which, though not so relied on was, he said, capable of affording corroboration of the complainant's story.

29. The complainant had been medically examined by Dr. YU Hon-wai on the 24th August shortly after her report to the police and again by Dr. LAW Kim-wan on the 28th. In addition to the bruising to her arms, foot and throat, both doctors noted a further injury described by Dr. Yu as "a healing laceration 5 mm × 3 mm at the back corner of the vulva". In cross-examination it was put to the doctor that this was something which was perfectly consistent with normal sexual intercourse. His answer was as follows:-

"No.  The laceration found at the corner, back corner, of the vulva was a definite injury which indicated force .. that indicated force had been used in that area which may be due to forceful penetration by the penis or rubbing with any hard object such as a finger. Since her hymen is of the dilatable type, usually, sexual intercourse would not cause any injury to her private parts, so this injury was very unusual."

Mr. Cross for the Crown argued that the judge had rightly identified this as capable of affording corroboration since it could be taken together with the complainant's testimony that upon the first occasion of intercourse on the night of the 22nd August she had felt pain.

30. Against this, however, must be set the fact, strongly stressed by Mr. Payne, that the girl positively stated that she had not struggled or been overcome by force while submitting to the applicant's advances. Having described how she had been frightened by the applicant's reaching downward as though to take hold of the object which he had earlier shown her, and which she thought was a knife, she went on to say that he returned to the bed and embraced and kissed her and that for fear of the knife: "I did not make any move, I just let him embrace me." A little later: "I dare not move and just let him do what he wanted."

31. There is no doubt that the pathologist's finding did give independent support to the complainant's evidence that on the first occasion of intercoruse she felt some degree of pain. It may be said that that enhanced her credibility as a witness. Did it afford corroboration within the long established formula in Baskerville ⁽¹⁾?

32. Since neither the fact of intercourse or the question of identity was in issue the only part of the complainant's story which needed corroboration was her contention that she had not consented.

33. But this piece of evidence, put at its highest, is corroborative only of the girl's assertion that she had felt pain. Yet when she was asked in cross-examination to say in what way this first penetration on the night of the 22nd of August differed from all the previous acts of intercourse with the applicant - acts which she claimed were also to an extent unwilling - she made no reference to pain as a distinguishing feature.

34. Considering the background of intimacy and the many acts of intercourse which preceded the events of the 22nd of August, and which the jury might well have regarded as fully consensual, it was particularly important that this evidence from Dr. Yu should have been set clearly in the context of the complainant's own testimony that she made no physical resistance at all on either occasion. There was nothing in the evidence to show that this injury was or even might have been occasioned because the degree of force which caused it was necessary to overcome resistance.

35. We were satisfied that this evidence of injury could not, in these circumstances, constitute independent confirmation of the complainant's testimony on the material and vital particular of consent.

36. Although the jury were rightly directed that if they did not think that Dr. Yu's evidence corroborated the girl's story of rape they were yet entitled to convict if they believed her story as a whole, we cannot be sure that they must inevitably have done so if they had been directed that,the medical evidence of the injury to the vulva could not amount to corroboration.

37. Where a jury is invited to regard something as affording corroboration which cannot properly do so the conviction will as a rule be quashed unless, because of the presence of other corroborative evidence, the Court of Appeal feels able to apply the proviso (see Reg. v. Thomas ⁽²⁾). There was no such other evidence in this case and the conviction therefore cannot stand.

(1)    12 Cr. App. Rep. 81

(2)    (1959) 43 Cr. App. Rep. 210 at page 214