R. v. KWOK TAK MING, DANNY

IN THE COURT OF APPEAL

1996, No. 304
(Criminal)

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J U D G M E N T

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Nazareth, V.-P. (giving the judgment of the Court) :

1. The applicant, Kwok Tak-ming, was convicted by Stock J, sitting with a jury on 9th May 1996 of two offences. The first count was rape contrary to s.118(1) of the Crimes Ordinance, Cap. 200, in that on 18th June 1995 at Room 1617B, Sau Fung House, Fung Wah Estate, Chai Wan, he raped Lee Wai-yin. The second count was blackmail contrary to s.23(1) and (3) of the Theft Ordinance, Cap. 210 in that on 19th June 1995 with a view to gain for himself he made an unwarranted demand of money from Lee Wai-yin, the complainant, with menaces. After trial, he was convicted on both counts and sentenced to 7 years imprisonment on the first count and 2½ years for blackmail on the second count, to run concurrently as to 2 years, thus making a total of 9 years.

2. The applicant on 24th May 1996 lodged a written notice of application for leave to appeal against both conviction and sentence. Before us today, he has abandoned his application for sentence. He was subsequently granted legal aid but in respect only of the first count and accordingly he relies upon his original application in respect of the second count, i.e. the blackmail offence. In respect of the first count, perfected grounds of appeal have been put in by counsel, Mr Hanif Mughal, who appears for him today.

3. The perfected grounds of appeal, all four of them, relate to the same point which is that the judge failed to give a proper and full direction to the jury on the matter of a mistaken belief generally held by the applicant that the complainant consented to the act of sexual intercourse. To address that ground in the way it was presented below and before us, it is only necessary to outline the facts to the following extent.

4. The complainant was a girl of 18 years of age at the time of the offence and the applicant was 28 years old. She was living at home with her parents. Her day job was as a clerk and she worked evenings at a pizza parlour. The prosecution case which emerged almost entirely from her evidence was that the applicant used to phone the manager, Alan, who was his friend. Her evidence was on the night of the incident he telephoned her more than once and said he wanted her to go out with him. In one of those telephone calls, he got involved with an exchange with one of her colleagues, Ah Ming, who apparently swore at the applicant. Her answer to the applicant was that she would not go out with him. But later she agreed to go with him. She said she did that because he stated he was prepared to go to the pizza parlour and beat up the colleague who swore at him. She said she was scared of the applicant. At any rate she agreed to go to meet him later that evening at a bar. She had only met him for the first time two weeks previously. At the bar she joined Alan, the manager, and Ah Ming, her colleague, who were already there. At the instance of the applicant, Alan who apparently owed him some money and Ah Ming had been persuaded to go as a result of the exchange over the phone. There was some sort of physical exchange between the applicant and Alan and he left. Ah Ming was told to remain. He remained. Later he was told to go and he went. Then the applicant told the complainant that he wanted her to go to his home. He took her there. She said she was scared. Her evidence was that later, after told her that he had important underground connections, was high up in the triad hierarchy, and that it might be safer for her friends and relatives, she agreed to have sex with him because she was scared.

5. The applicant's version was very different. He claimed that as soon as she appeared at the bar, quite uninvited, she sat by him. She appeared to be very keen on him. When the manager and her colleague left, he invited her to his place for drinks. There were no threats. It was not said that she should stick with him as she alleged. There was no talk of trials. She went willingly to his room and when he happened to be sitting on the bed, answering a telephone call, she came and joined him with some beer and embraced him. He pushed her away. She embraced him again, removed her clothes, kissed him and then they had sex. There was no question of her not consenting. In fact, he said she took the initiative and the part she played was an active one. He described how she adopted different postures. He claimed that when they were having sex, she asked him whether he would give up his girlfriend. She increasingly pressed him on the following day about giving up his girlfriend. He suggested that it was his refusal to give up his girlfriend that prompted her to fabricate the story about rape.

6. It is convenient at this point to turn to the grounds of appeal. They were quite short. First, that the judge failed to give a full and proper direction to the jury that while the defence was one consent to sexual intercourse and the applicant believed that the complainant had so consented, the judge did not go on to tell the jury that where an applicant holds a genuine belief that the complainant consented to the act of sexual intercourse, that was a complete defence to the offence even if the applicant was mistaken in the genuine belief or the belief was unreasonable. Secondly, that the judge failed to ensure that the jury was left in no doubt that a mistaken belief which is genuinely held by the applicant that the complainant was consenting to intercourse, however unreasonable was a complete answer to a charge of rape. The other two grounds are related to these two points and allege that the judge did not consider the issue of consent on a wholly adequate basis and that the conviction is unsafe and unsatisfactory.

7. The submissions by Mr Mughal, who did not appear for him below, focus upon certain passages in the judge's summing-up. The first passage appears at p.23 of the transcript of the summing-up:

"The defendant, on the other hand, says that she was not only willing but she was really the prime mover in the matter; in other words, she initiated it. She came to him. He even recoiled at the first approach. She willingly partook in engaging in several different postures, activity which, he says, is hardly consistent with an unwilling partner. If he is right about that or if he may be right about her consent, then the second ingredient is not made out and you will not go on to consider the third ingredient; you would acquit on the first count."

The second passage, and it is this primarily that Mr Mughal relies, appears at p. 24:

"It is not for him to prove that he genuinely believed she was consenting. It is for the prosecution to prove that he did not genuinely believe it. It is for them to prove that his attitude was one of couldn't care less whether she consents or not. The issue is his belief and his attitude, not what you or somebody else might have believed in that situation. And if you find that he mistakenly believed or may have believed that she was consenting, then he nonetheless so believed and the prosecution would have failed to prove this ingredient. But in deciding whether he believed that she was consenting, you should have regard to whether there were reasonable grounds for such a belief and you should have regard to all the relevant circumstances in assessing that issue."

There at the end of the latter passage, Mr Mughal submits, the judge seemed to be indicating that a belief that the complainant had consented had to be based on reasonable grounds.

8. The law of course is quite clear. It is now well-established that a mistaken belief is a complete defence if it is genuine. It matters not that it is a mistaken belief or that it is based on grounds that are not reasonable. However that may be, it seems to us, looking at those passages in total and against the rest of the summing-up, that the judge was not suggesting that the belief had to be based on reasonable grounds. We do not think that passage could have been understood in that way. Moreover, what the judge appears to have been doing is making a reference to s.118 of the Crimes Ordinance which deals with rape and provides as follows in subsection 4:

"It is hereby declared that if at a trial for a rape offence the jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed."

We therefore see nothing in that point.

9. Mr Mughal's other point is that the judge did not go far enough and make quite clear that a belief that the complainant was consenting was sufficient if it was genuine regardless of whether it was mistaken or founded on grounds which were not reasonable. If one looks at the judge's summing-up, it can be seen that he clearly referred to the defence of a genuinely held belief no less than three times. Having set out the three matters to be addressed in deciding whether the offence of rape had been committed, the judge first of all at the bottom of p. 23 said this:

"Now what does that mean, reckless as to whether she consented? It means this, if he did not believe, genuinely believe, that she was consenting and could not have cared less whether she was consenting or not ... then he has been reckless as to whether she consented and he is guilty of rape."

That passage clearly identified a genuine belief as a defence. The judge then enlarged upon it in the passage that has already been quoted from p.24 of his summing-up. And he again made a reference to the defence of a genuine belief at the bottom of p. 24. Finally, at the end of his direction on consent at p. 26, he yet again made reference to the necessity for the jury to be sure that the applicant did not genuinely believe that the complainant was consenting.

10. This succession of references to a genuinely held belief of consent has to be considered against the factual background of the case and the defence. What was clearly and starkly in issue was the sharply conflicting versions of the complainant on the one hand, and the applicant on the other; her evidence that she was intimidated and frightened into consenting, and his evidence not only that she freely consented but indeed that she took the initiative.

11. In dealing with the issue of consent, the judge began by highlighting those two different versions and pointing out that in approaching the matter the jury had to decide which of the two versions was correct. If they believed the version of the complainant, then it is difficult to see how the question of the applicant's belief of consent by the complainant could have arisen as a live issue and it was against that background that the judge gave his direction.

12. Returning to Mr Mughal's submission, he relies upon two authorities: R. v. Cheung Kin-shing and others [1995]2 HKC 210 and R. v. Sohn Young-shek John which was cited in the former in the following passage at p. 211:

"The learned trial judge did not go on to tell the jury that where an accused holds a genuine belief that the complainant consented to the act of sexual intercourse that was a complete defence to the offence even if the accused was mistaken in that genuine belief or the genuine belief was unreasonable. His failure to give a full and proper direction must have led the jury to have considered the issue of consent on a wholly inadequate basis.

The proper approach is set out in R. v. Sohn Young-shek John [1990]2 HKLR 121 at 125 where Macdougall, J.A. said:

"It was essential that the jury should have been left in no doubt that a mistaken belief genuinely held by the applicant that the complainant was consenting to have intercourse with him, however unreasonable such belief may appear to them to have been, was a complete answer to the charge."

However, it has to be pointed out that in both these cases, the circumstances were such that the issue of consent and of belief that the complainant had consented was the live issue. It is not necessary to adumbrate those circumstances.

13. Mr Cross in his helpful submission has drawn attention to other authorities which it is helpful to touch upon. First of all R. v. Chow Siu-hei and another Cr App No. 692 of 1995, where Power, V.-P. at p. 11 said this:

"There is a stark difference between these two sets of evidence. The evidence of the victim is that she was gang-rape when she was comatose. The evidence of D1 is that she was a willing, indeed eager, partner. The direction given by the judge was a tailored-made to the circumstances of this case. We refer to the case of Anthony Edward Haughian and Arthur Reginald Pearson [1985] 80 Crim.App.R. p.334 and to the judgment of O'Connor L.J. at p.341 where he said:

'In cases such as the present in which the conflict of evidence between the complainant and the accused is acute and in which, if the jury decides that the account given by the complainant is truthful, there is no room for a genuine but mistaken belief by the accused that she was consenting, any over elaborate direction to the jury on the question whether the Crown has proved that the accused knew that the complainant was not consenting would only tend to confuse them and would be unnecessary.'"

14. There is another passage at p. 342 of R. v. Haughian and another which is also pertinent:

"In the present case once the jury found that the complainant had not consented to intercourse with either of these men, as the majority must have found, the facts were such that there was no room for mistaken but genuine belief. In Taylor (supra) the learned judge was expressly requested to direct the jury on mistaken belief. In the present case no such request was made, and it is worth noting that counsel who defended Taylor also defended Haughian in the present trial. The truth is that mistaken belief was never an issue in this trial, it was not made such by the question from the jury who were doing no more than telling the learned judge that eleven of them were agreed that at least both men were reckless as to whether the complainant consented or not. We do not think that the learned judge in fairness to the appellants was under any obligation in the present case to give any direction as to mistaken belief."

Finally, in R. v. Ng Pong-lung Cr App No. 468 of 1993, unreported, Macdougall, V.-P. said this:

"[Counsel for the Crown] submitted ... that there was no evidential basis on which a finding of reckless rape was open to the jury, and that therefore a direction as to reckless rape was unnecessary and inappropriate.

We entirely agree. It is plain from the above extensive summary of the evidence that there was no evidential basis on which a jury could properly have found that the appellant had been reckless within the meaning of that word when applicable to the law relating to rape."

15. In the light of those authorities we observe again that once the jury accepted the version and evidence that the complainant gave, the issue of a genuine belief that the complainant consented arose only in the oblique way the judge raised it in his summing-up. What he said was:

"The defence say that there arose no question of him (the applicant) not caring less whether or not she consented.

The defence was in fact that she did consent and any question of a genuine belief that she consented only came to be mentioned because the judge was attempting to be more than fair to the applicant; he was under no obligation to give a direction upon it.

16. Viewed therefore as a whole, we find no fault in the summing-up and we reject the submissions with reference to the first count.

17. As to the second count, in his original written notice of application, the applicant mentioned some six nebulous grounds which we do not propose to outline here. There is nothing in any of them.

18. Before us today, the applicant has sought to go into aspects of the complainant's evidence, matters that were fully put to the jury and which were considered by the jury. They chose not to believe the applicant's evidence and to believe the complainant as they were entitled to. There is nothing in this belated attempt also.

19. For those reasons, we refuse the applications for leave to appeal against conviction on both counts.