THE QUEEN v. YAU WAI HUNG AND ANOTHER

IN THE COURT OF APPEAL

1987, No. 38
(Criminal)

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JUDGMENT

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Yang, V.-P.:

1. D1 and D2 seek leave to appeal against their conviction on two counts of rape.

2. The prosecution's case was that in the small hours of 9th June 1982 at San Ying Building, third floor, Maple Street, Kowloon, D1 and D2, acting in concert with one Chinese man called Ching Shan Fai (“Ah Fai”), raped Ho Wai-ling (“V1”, then 13 years and 10 months old and Cheng Lai-ling (“V2”, about 16 years of age).

3. The actual rape upon V1 was committed by Ah Fai and then D2. The actual rape upon V2 was committed by D2 and then D1. Save the cautioned statements of D1 and D2, there was no corroboration of the two victims’ oral evidence.

4. Of D1's grounds of appeal, we consider it necessary only to deal with the complaint that the judge’s direction on joint enterprise was wrong (Ground 2 and that part of Ground 3 which is said to be “another way of putting Ground 2”). The other complaints of misdirection and inconsistencies in the evidence (Grounds 1, 3-7) are in our view without merit. In a careful and full summing up, the trial judge correctly explained these issues to the jury.

5. Of D2’s grounds of appeal, the complaint that his cautioned statement was wrongly admitted has no foundation (Ground 1). Mr. Wong for D2 has taken us exhaustively through the evidence but he has not satisfied us that the judge exercised his discretion under any misapprehension of that evidence or that it was based on entirely wrong principles.

6. Similarly the argument that the judge had failed to direct the jury as to what part of D2’s statement could amount to corroboration is without merit (Ground 7), given that the statement, taken in its proper context, is an admission that sexual intercourse with the victims took place without their consent. It is not necessary in an ordinary straight forward case such as this for a trial judge to give the detailed directions which Mr. Wong would require to give.

7. In Baskerville [1916] 2 K.B. 652 Lord Reading C.J., as well as giving the classic direction as to what evidence in corroboration is at p.667, had this to say at p.665:

“What is required is some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it.”

8. This is precisely the effect of the statements under consideration here.

9. Again, in the light of what we have said about the summing up, we do not consider it necessary to deal with the ground that the judge failed to point out to the jury that a passage in D2’s statement was not supported by the victims’ evidence (Ground 8), nor with the ground that certain comments made by the judge amounted to a misdirection (Ground 10). Grounds 2 to 5 complain that the judge’s direction on joint enterprise was wrong. These grounds may be discussed together with D1’s Ground 2.

10. D2’s Ground 6 states that the judge failed to direct the jury that the test for D2’s belief in the victims’ consent was a subjective test. In Taylor (1985) 80 Cr. App. Rep. 327, the Lord Chief Justice said (at pp. 330 – 331):

“The first ground of appeal advanced by Mr. Engel is that the learned judge erred in failing to direct the jury that the appellant was not guilty, if he genuinely believed that the complainant was consenting, although such belief might have been mistaken. He reinforces that complaint by telling us, correctly, that at one stage during the trial he specifically requested the learned judge to give such a direction to the jury, but the learned judge declined to accept that invitation.

It should be plainly understood at the outset that there is no general requirement that such a direction should be given in all cases of rape. The nature of the evidence, and of course particularly the evidence given by the complainant and the defendant, will determine whether or not such a direction is advisable and whether to give such a direction would be fair. There must be room for mistake in the case before such a direction is required.”

Reading D2’s statement as a whole and in its proper context, no issue of consent could be said to have arisen. Similarly, there is nothing in the oral evidence which shows that there was any room for mistake on the question of consent or no consent. The judge was in our judgment perfectly entitled not to give the direction suggested. Ground 6 fails.

11. We now come to the question of joint enterprise. For this purpose, it is necessary to examine the prosecution’s evidence a little more closely.

12. D1’s first statement (ExP42) mentioned that when he was having sex with V2 she pushed him away and said, “No. It’s very painful to me”.

13. His second statement (ExP43) spoke of Ah Fai’s demand that the victims should repay him the money he had spent on them earlier that evening or to “sleep with us for one night if you have no money.” D1 and D2 were present when this threat was uttered.

14. D’2 statement (ExP81) admitted to taking part in “that incident” and to Ah Fai’s threat referred to in D1’s second statement. It also referred to D1’s taking a length of iron and hitting it on a stool to threaten the victims, after which the girls “immediately agreed” to having sexual intercourse with them. D2 further said in his statement that V2 was willing to make love with him.

15. The gist of V1’s evidence is as follow. On the night of the 8^th and 9^th June 1987, the victims and the three youth mentioned in the indictment arrived at a billiard room after having had a few drinks elsewhere. There Ah Fai threatened V2 with an awl, saying that the girls were making fun of him because they wanted to go home and were not willing to accompany him. We wanted the victims to stay with him for one night, otherwise they would have to go out to work as prostitutes and to receive customers or to repay him the $300 he had spent earlier that night. Ah Fai also slapped V2 on the arm and head. Then on D1’s suggestion the party repaired to the floor above through a door which D2 prised open. Whilst on the upper floor, Ah Fai again asked the girls if they were prepared to keep him company. The two girls asked for permission to telephone their homes, but D1 and D2 refused. D1 then frightened them by hitting a gymnastic stick heavily on a chair. The girls asked to be allowed to go home, but Ah Fai, D1, and D2 refused. Then Ah Fai took her into a room and raped her, followed by D2.

16. V2’s evidence supported that of V1 up to the point where V1 was raped first by Ah Fai and then by D2. V2 was raped first by D2 and then by D1 in another room, after which Ah Fai came in and told her to masturbate him whilst D1 watched and laughed, telling Ah Fai to hurry up otherwise her mother would make a report to the police.

17. Except for one point, the learned judge in his summing up have careful and correct direction on the meaning of joint enterprise. Unfortunately he concluded this part of his direction by saying:

“If you are satisfied that the girl was raped but if you are not satisfied that the accused that you are then considering was one of the persons who actually raped the girl, then you will go on to ask yourselves whether he was present at the scene, sharing an intention with Ah Fai and/or the other accused or both that that should be done. If the answer is: ‘Yes,’ then you will find that accused guilty in relation to the charge you are considering notwithstanding the fact that he himself did not actually rape the girl.”

18. Now it is at once clear that mere presence is not sufficient; there must be a presence in order to render assistance to each of the two counts of rape. Indeed the judge gave an example of a lookout man or a man with getaway car in a robbery, which quite clearly indicates that mere presence is not enough. There must be presence as well as participation. However, the direction must be viewed in the light of the light of the evidence, capable of being accepted by the jury, which clearly showed that Ah Fai and the two applicants were in the course of a joint enterprise which was rape. On a consideration of the whole of the evidence D1’s “intention” was the same as that of the others. That we think is what the judge meant and what the jury must have thought he meant. Though, unhappily, he did not formulate the law in this part of the summing up as clearly as he might have done, we have no doubt whatsoever that, despite the lack of clarity in this direction the jury must inevitably have come to the conclusion they did.

19. It has further been argued that the learned judge should have explained to the jury the difference between a joint enterprise to have sexual intercourse simpliciter (which is not an offence) and a joint enterprise to rape (which is). In our judgment the distinction does not arise in the circumstances of this case. Even if at the outset of the evening the men had general sex in mind, in the course of events it became abundantly clear that they intended to have intercourse despite any lack of consent by the girls and that this agreement was put into effect by the creation of a climate of fear and the “enforcement” threats.

20. A final matter that was raised in the course of arguments relates to the correct attitude for the jury to take towards a cautioned statement which is partly incriminating and partly self-serving. The situation is dealt with in The Queen v. Leung Kam-kwok (per Lord Roskill) (1986) H.K.L.R. 188 (see also The Queen v. Eddie Lo and Anthony Lo (C.A. 59/1986) – unreported). While Leung Kam-kwok is not the easiest of judgments to understand, and there is no reference in it to Duncan (1981) 73 Cr. App. R. 359, nevertheless we are bound by it – however “to say the least, not helpful” the direction it requires may be.

21. In any event the whole of the statements were before the jury and it was for them to make what they could of them in te light of the generality of the evidence.

22. For the forgoing reasons, the applications for leave to appeal against conviction are refused.