HKSAR v. JOHNSON BENJAMIN

CACC 351/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 351 OF 2016

(ON APPEAL FROM HCCC NO 456 OF 2015)

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J U D G M E N T

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Hon Macrae JA (giving the Judgment of the Court):

1.  The applicant faced an Indictment containing one count of assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance, Cap 212 (Count 1); one count of rape, contrary to section 118(1) of the Crimes Ordinance, Cap 200 (Count 2); and one count of indecent assault, contrary to section 122(1) of the same Ordinance (Count 3). The applicant pleaded not guilty to all counts. On 28 October 2016, after a trial in the High Court before Deputy Judge Lugar‑Mawson (“the judge”) and a jury, the applicant was convicted by a unanimous verdict on Count 1, and majority verdicts of 5:2 on Counts 2 and 3. He was sentenced to an overall sentence of 10 years’ imprisonment on the same day.

2.  The applicant filed his Notice of application for leave to appeal against conviction (Form XI) within time on 18 November 2016 but applied for leave to appeal against sentence out of time, supported by his affirmation, on 12 December 2016.  The applicant explained in his affirmation that the delay in his application was because he had not received the transcript of the trial proceedings.  Legal aid was subsequently granted to the applicant for his application for leave to appeal against both conviction and sentence.

The trial

The prosecution case

3.  There was no dispute at trial that the applicant was arrested by police officers on 18 June 2015 for the offence of rape at the rear portion of 3/F, 32C Shan Tung Street in Mongkok, Kowloon.  The address where the applicant was arrested was also the premises at which the relevant events allegedly took place (“the Premises”).

4.  The prosecution alleged that on 18 June 2015, inside the Premises, the applicant had raped Ms X and forced her to perform oral sex on him.  It was further alleged that the applicant had also assaulted Ms X, thereby causing her injuries.

5.  Ms X testified that she was a friend and former colleague of the applicant’s wife, Sarah, through whom she had met the applicant in or around 2013[1].  Ms X would occasionally go to the Premises with her daughter to see their pet rabbit, which Ms X had once looked after for them.

6.  Ms X said that, in 2015, after she became aware that Sarah was pregnant, she and her daughter had been to the Premises for meals on several occasions.  She also maintained telephone contact with the applicant because Sarah had asked her to send messages via the applicant’s telephone. She described such messages between herself and the applicant as “casual greetings from an ordinary friend”, although she felt that “it was a bit overdone as (the applicant) very often asked about my life”.

7.  On the morning of 18 June 2015, when Ms X was on her way to work by bus, she received a telephone call from the applicant, who told her that “Sarah was having a problem at the hospital” and asked her to go with him to visit her.  Ms X immediately agreed.  Having tried unsuccessfully to get hold of Sarah at the hospital, she began to worry.  At 09:02 am, Ms X sent a WhatsApp message asking when they should arrive at the hospital.  At 09:03 am, the applicant asked her to come to Mongkok first.  Ms X therefore took a taxi to Mongkok and met the applicant at the downstairs main gate to the Premises.

8.  When the applicant appeared, he was bare-chested and only wearing a pair of boxer shorts, which prompted Ms X to ask him if they were actually going to visit Sarah.  The applicant said he needed to fetch something upstairs before setting off and led Ms X up to the Premises, and in particular, to an adjacent store room.  The witness noticed that there were lots of beer cans strewn over the floor of the room.  After smoking a cigarette with the applicant in the store room, they walked over to the Premises and the applicant asked Ms X to go into the bedroom.  Upon entering the bedroom, the applicant locked the door and pushed Ms X onto the bed.

9.  The applicant then pressed Ms X down and, despite her struggling, shouting for help, kicking and scratching, he managed to remove her pair of shorts and tear off her underpants.  The applicant punched Ms X forcefully and repeatedly with his fist on her arms and head.  Ms X estimated that the assault on her lasted for 5 to 10 minutes.

10.  The applicant then tried to insert his penis into Ms X’s vagina.  When he did not succeed, he fetched a bottle of lubricant from a table nearby and poured it into her vagina.  He then penetrated her for “a few 10 minutes, maybe 20 minutes” before he stopped and told Ms X to get up.  The applicant then told Ms X to perform oral sex on him but she refused and made an attempt to escape.  The applicant immediately pushed Ms X to the floor and shut the door, before beating her further around the arms and head for another “possibly one to two minutes, a few 10 seconds”.  The applicant threatened her that if she tried to do that again, he would kill her.  He told her again to give him oral sex, which she did.

11.  The applicant then inserted his penis into Ms X’s vagina again for about 20 minutes before he suddenly stopped and dragged her towards the kitchen.  She was very scared and tried to escape again, this time managing to open the main door of the Premises but not the gate behind. The applicant caught her and dragged her back to the bedroom, where he punched her again about 10 times on the arms, hands and face.  He then told her to give him oral sex again.  Terrified that he would kill her, she administered oral sex on the applicant for about 5 to 10 minutes, before the applicant fell asleep snoring.

12.  Ms X then gathered up her bag and her clothing, save for her watch and underpants, and, holding onto her shoes, she quietly sneaked out of the Premises naked.  She was unable to find her torn underpants or her watch, which had been ripped from her by the applicant during the earlier struggle. On the staircase outside the Premises she put on her clothing and, when she got to the ground floor, hailed a taxi to go home.  She made immediate complaints to her boyfriend (“PW2”) and another friend (“PW4”) and, later that day, reported the matter to the police in the company of both PW2 and PW4.

Dr Kwok’s evidence

13.  Dr Kwok Ka Ki, who gave evidence as PW2, examined Ms X at shortly after 10 pm on 18 June 2015, noting 18 injuries on Ms X’s body and 4 abrasions to her private parts.  Dr Kwok was of the view that the injuries to Ms X’s face and body were compatible with being blunt force traumas inflicted within one or two days prior to her examination, and that the blunt force could have been that of a fist or Ms X bumping into an object. Save for the extensive bruising to her left arm, for which the degree of force was considerable, the force required to inflict the remaining injuries was described as mild to moderate.  Dr Kwok accepted under cross-examination that those injuries could have been caused by someone trying to restrain Ms X but she could not tell for sure that they were defensive injuries.

14.  As for the abrasions in Ms X’s private parts, Dr Kwok said that those injuries were compatible with being blunt force traumas inflicted by a blunt object within one or two days before examination, and that the blunt object could have been a male penis.  She said the injuries were consistent with sexual intercourse having taken place but from the injuries, she could not tell if such intercourse had been a consensual act or not.

15.  Regarding the extensive bruising to Ms X’s left arm and other bruises and abrasions around that area, Dr Kwok commented that they could have been caused by Ms X and the man falling against the wardrobe, if a protruding part of that wardrobe had hit Ms X’s upper left arm.  Dr Kwok had been given an account of what Ms X said had happened and she said the injuries found were compatible with that account.  However, she went on to say that it was hard to say if she would have expected to have found more extensive injuries to Ms X, since the parties were moving around.  If Ms X had been punched repeatedly as she alleged, Dr Kwok said she would have expected to have found more severe injuries.  The witness had found no broken fingernails on either of Ms X’s hands.  She would have expected to find the applicant’s DNA under Ms X’s nails if she had scratched him.

The defence case

16.  The applicant elected to give evidence.  His version of what happened was rather different to Ms X’s account.

17.  The applicant testified that he had been in Hong Kong since 2013 and was a trader in goods between Hong Kong, the Mainland and West Africa.  The applicant said he first met Ms X in June 2013[2], when he and his wife Sarah went to retrieve their pet rabbit, which she had been looking after at home.  Thereafter, the applicant and Ms X exchanged telephone numbers and started to talk about personal matters including work, relationships and sex.

18.  The applicant said that on one occasion in February 2015 when Ms X and her daughter came to the Premises for a meal, Ms X had initiated some intimate contact with the applicant when the two of them were smoking inside the store room.  Since then, the two had developed a flirtatious relationship and they had, from time to time, had sexual contact in the store room when smoking.  The applicant also mentioned that Ms X had told him that her boyfriend’s business was not going well and that she was interested in partnering in the applicant’s business.

19.  The applicant said he told Ms X about his new born baby on 17 June 2015 by WhatsApp message.  On 18 June 2015, the applicant intended to invite Ms X over to discuss about her business as well as her boyfriend’s business, and also to go to visit Sarah.  The applicant denied telling Ms X that Sarah had a “problem” and the mention of “suffering” in the WhatsApp message was only a reference to the pain that a woman had to go through in labour.  The applicant said he asked Ms X to come to the Premises first as they had discussed the sequence of events over the telephone and would have sexual intercourse first before going to the hospital.

20.  When Ms X arrived, they both went into the store room and sat down.  She then went to the toilet and when she came out, she had removed her shorts and underpants.  She then sat on a swivel chair and said, in Cantonese, ‘Cunnilingus’.  The applicant did as she asked.  Thereafter, the two then moved to the bedroom, where the applicant continued to administer cunnilingus on Ms X at her request.  She then suggested that he should give her some money, which he considered inappropriate.  She then performed oral sex on the applicant, after which he began having sexual intercourse with Ms X.  After penetrating her for about 7 or 8 minutes, Ms X again asked for money.  When he asked how much, she replied “$300,000”.  An argument then ensued, during which Ms X grabbed a glass from the cabinet beside the bed.  Thinking that she would cause damage, he immediately grabbed Ms X’s hands, as a result of which her watch broke and came off her wrist.  Ms X then taunted the applicant that she would tell Sarah that he had had sex with her, at which the applicant told her to leave.  She then tore her own underpants and said she would give him trouble.

21.  A struggle ensued as Ms X made a grab for the crib.  Accordingly, he grabbed hold of her and they both fell against the cabinet above the crib.  The applicant then pulled Ms X, kicking and struggling, towards the door and told her to leave.  She tried to go to the small refrigerator in the bedroom but the applicant pulled her off it, slapping her arms three times in the process.  She told him that if he hit her, she would call the police.  The applicant gathered up her clothing and told her to go away.  Once she had left the Premises, he threw her underpants in the dustbin.

22.  The applicant later tried to call Ms X as he wanted to see if she had gone through with her threat to call the police.  He said he felt very bad since his wife had just had a baby and he worried that his mother might know that he had cheated on his wife.  He was subsequently arrested by the police.  He agreed that he had suffered no injuries in the struggle with Ms X.

23.  In putting forward the defence case, Ms Charlotte Draycott SC, on behalf of the applicant at trial, cross-examined Ms X on the assertion in her first witness statement, made on 19 June 2015, that she only came to know the applicant in February 2015, when she had testified that she had come to know him in 2013.  Ms X denied having worked in a bar or having sex with customers whom she had then blackmailed with compromising photographs of the men concerned; a confession she was said to have made to Sarah.  She was also asked questions as to why she had remained in the Premises for so long (about two hours), when the events she described should have taken a much shorter period of time.  She was further unable to say whether the applicant had ejaculated on either of the two occasions he had penetrated her.

Grounds of appeal against conviction

24.  No complaint is made by Mr James McGowan, on behalf of the applicant, about the judge’s summing‑up either in respect of his directions in law or his summary of the evidence.  The only point that is taken in relation to conviction is that there was material non-disclosure of a statement made by Ms X.  Made on 15 July 2016, it was in fact the fourth and final statement of the witness (“the fourth statement”), her first statement being made on 19 June 2015, followed by two others (on 2 July 2015 and 11 September 2015), which are not relevant to this appeal.

25.  The circumstances of the making and non-disclosure of the fourth statement have been attested to in an affirmation from Woman Detective Sergeant Lau Kit-man.  The suggested consequences of this non-disclosure on the conduct of the defence are dealt with by Ms Draycott and her then (as he is now) instructing solicitor, Mr Simon Cleves.  We were prepared to admit all of this material on a de bene esse basis with the agreement of the parties.

26.  It is common ground that the fourth statement was not served by the prosecution on the defence, but it is also accepted by Mr McGowan that such non-service was inadvertent and not deliberate.  It has been explained to us by Woman Detective Sergeant Lau that, at the time when the fourth statement was to have been served on the applicant as unused material, the applicant was unrepresented.  Accordingly, it was not handed to the applicant and nor, by an oversight on the part of the prosecution, was it included in a list of unused material and served on the applicant’s instructing solicitors.  As it was, the first time that the defence saw the statement was shortly after Ms Draycott began her cross-examination of Ms X on the morning of 14 October 2016.

27.  The reason that the fourth statement came into being arose from a bail application made on behalf of the applicant by Mr McGowan before Deputy Judge Beeson in the High Court on 12 July 2016.  In the course of that application, it was asserted on behalf of the applicant that he had known Ms X before 2015.  On the instructions of government counsel who was responding to the bail application, Ms X was subsequently contacted by the police to ask if she had any means of ascertaining when she had first become acquainted with the applicant.  She was properly not told anything about the assertions made on the applicant’s behalf during the bail application.  Ms X subsequently reverted to the police that, having looked at her Facebook account, she now recalled that she had met the applicant in 2013 and not in 2015, as she had stated in her first witness statement of 19 June 2015. Accordingly, she was invited to Mongkok Police Station, which resulted in the making of the fourth statement.

28.  The fourth statement was a short one‑page document with two paragraphs.  It reads as follows:

“I am the aforesaid female [Ms X], aged … I was educated up to secondary level and I can read and write Chinese. At noon on 19 June 2015, I made a statement to the police regarding a case of ‘rape’ and the case reference number was […] I was the victim of this case.

On the afternoon of 15 July 2016, I make a supplementary statement to the police of my own free will regarding this case […]  Because I once viewed the old photos at my social media website (account) [Facebook] since this case happened.  (They) brought to my mind that I was acquainted with the arrested person [AP] of the case … in 2013 but I have forgotten in which period of the year 2013 I was acquainted with AP.”

29.  Ms Draycott was, of course, unaware of the existence of the fourth statement clarifying the year when Ms X had first met the applicant, since it had not been placed in the bundle of unused material.  So was the judge, since it had never been included in either the court depositions or served as additional evidence.  Consequently, Ms Draycott asked Ms X in cross-examination why, having told the jury that she had first met the applicant in 2013, she had originally said she first met him in her first witness statement in 2015.  The witness explained that she had initially been very confused when making her first statement.  Subsequently, she had looked at some events on Facebook concerning the applicant and Sarah’s rabbit and come to remember that she had met him earlier.  It was then put to her:

“Q. What happened was that you went to the police station. You didn’t want to admit the relationship between you and the defendant and so you lied about when you had first met him.

A. I disagree with you.

Q. After you had made this statement you realised that the Facebook and messaging interchanges between you and Sarah would reveal that there was indeed a meeting, and in fact there were photographs of the meeting in 2013.

A. Right.

Q. And so you changed your story.

A. I agree.

Q. Because you would look really stupid if we produced photographs showing that you had met the defendant in 2013 if you had given the version you gave to the police at the time.

A. I don’t agree with your way of putting it.

Q. So do you suggest that you simply forgot about the incident of fetching the rabbit in 2013?

A. I just forgot when.”

30.  Ms Draycott returned to her theme a little later in cross-examination:

“Q. Well, I suggest that it was when you realised that these photographs were in the social media you realised you couldn’t maintain the lie that you hadn’t known him before 2015.

A. The point is that I really had forgotten about exactly when I first met the defendant. I have not been telling lies throughout. From the beginning I tried to tell the truth and I am telling the truth.  It’s just that later on when I was made aware of the photos on some other thing on the social media that I came to remember more.  And as soon as I was aware of that, I told the police immediately.  So I have all along been frank.”

31.  Leading counsel has explained by way of affirmation that when she received this last answer, she moved across to speak to prosecuting counsel at the Bar table and asked if the witness had made a further statement.  A woman police officer sitting behind prosecuting counsel then produced a copy of the fourth statement from her file and said that it had been served on the defence as unused material.  Ms Draycott read the statement whilst on her feet, but decided not to make too big an issue of the matter, since it seemed to confirm what the witness was saying and she did not wish to bolster the witness’s credibility in front of the jury.  Furthermore, she thought that she might have overlooked the statement in the unused material. She now contends by way of affirmation that had she been shown the fourth statement earlier, she would have investigated the circumstances in which it was made and would then have been in a position to challenge Ms X when she appeared to say that she had volunteered the information to the police. However, because of the non-disclosure, the point was lost.

32.  Mr McGowan has submitted that the case hinged upon the credibility of Ms X.  The witness had given the misleading impression that it was she of her own initiative who had approached the police when she realised that the year was not correct in her first statement, whereas the truth was that the police had asked her to check the date she had first met the applicant.  Therefore, the defence were deprived, by the failure of the prosecution to make full and timely disclosure, of the opportunity of cross-examining Ms X as to the circumstances in which she had come to make her fourth statement, and of specifically suggesting that she was lying when she appeared to claim that she had volunteered this information.

The respondent’s reply on conviction

33.  Mr Ira Lui, on behalf of the respondent, acknowledges that the prosecution fell short in its duty to make proper disclosure. However, the key disputes at trial were the events of 18 June 2015 themselves and the relationship between Ms X and the applicant prior to those events.  The circumstances in which Ms X had come to clarify the date when she had first met the applicant was a peripheral aspect of her account.  As to how she had come to realise that the date stated in her first statement was wrong was canvassed in cross-examination, during which the witness had accepted that certain events depicted on her Facebook account were inconsistent with what she had originally maintained.

34.  The only question, therefore, which defence counsel might have asked but did not ask, was whether Ms X had only changed her mind about the date she had first met the applicant when directed to check by the police, or whether she had made the discovery on her own initiative.  Even had Ms Draycott asked the question, the answer may well have been that she was indeed asked by the police if she had any means of ascertaining when she had first met the applicant; that she had decided that the way to answer that enquiry was to examine her own Facebook account; that she then discovered the discrepancy; and that she duly reported her discovery to the police.  Mr Lui contends that there is nothing necessarily misleading in the answers she in fact gave in cross-examination.

35.  In the event, the jury were directed by the judge to consider the fact of the discrepancy between Ms X’s evidence as to when she first said she had met the applicant and what she had said in her first witness statement.  The judge said:

“(Ms) X was extensively cross-examined by Ms Draycott. Of material note, you may consider, is that in cross-examination she accepted the following: that she had known the defendant since 2013 when the defendant was Sarah’s boyfriend. She had told the police in her 1^st witness statement, of 19 June, that she only came to know him in February 2015. There are in evidence photographs dated 8 July 2013 showing the defendant with (Ms X’s daughter) and they are photographs and the defence bundle, D5 and D6.”

A little later, the judge gave this direction:

“It must be obvious to you that you should examine (Ms) X’s evidence with very great care. Bear in mind what must also be obvious to you: allegations of a sexual attack are very easy to make up and they are often very difficult to refute. It is clear from Ms Draycott’s cross-examination of (Ms) X that (Ms) X had said things in her police witness statement, of 19 June, which conflict in some particular with the evidence she gave before you. You have to decide whether those conflicts are material. You should not be concerned if the conflicts or variations relate only to very small matters of detail or are just matters of phraseology.

If you are of the view that there is a material conflict between what she told the police in her statement and what she told you in her evidence, then you may take into account the fact that she made such statements in her witness statements when you consider whether she is believable as a witness. However, the contents of the witness statement, the ones that have been read out to you, are not part of the evidence in this trial except for those parts of the statement which she has told you are true.”

36.  Mr Lui makes the point that the judge, in giving this direction, must have been likewise unaware of the clarification of the issue in the fourth statement of Ms X.  Accordingly, the jury were invited to consider the materiality of this ‘discrepancy’ in her evidence in determining the credibility of the witness, when in truth, but unknown to the judge or the jury, the witness had in fact clarified the matter in the fourth statement. The defence were arguably in a better position than if the witness had conceded that she had made the Facebook discoveries at the behest of the police.

Consideration

37.  Unfortunate as the failure to disclose was, the fact is that the existence of the fourth statement was disclosed by the prosecution at about 12:14 pm on Friday 14 October 2016, Ms Draycott’s cross-examination of the witness having commenced at 11:17 am that morning. Her cross-examination of Ms X then continued uninterrupted for the rest of that day, for the whole of the morning of the following Monday 17 October, finally concluding at about 3 pm on Monday afternoon.  In other words, Ms Draycott and her instructing solicitor had two luncheon adjournments, a mid‑morning adjournment and a whole weekend to make enquiries of the prosecution as to the circumstances of the taking of the fourth statement had they wanted to pursue the line of enquiry which it is now contended was so essential for the attack on Ms X’s credibility.

38.  Either enquiries were never made or a decision was taken to leave the matter where it was, the defence having exposed what they considered to be a material discrepancy between the witness’s evidence and her first statement.  The defence certainly had enough time to make appropriate enquiries if they had wanted to, and were not necessarily constrained from putting to the witness that she had not volunteered the evidence on an unsolicited basis.  In the event, it is clear from Ms Draycott’s closing speech to the jury that the discrepancy between Ms X’s evidence and her first statement was relied upon as evidence that she was not telling the truth and that she realised that she had been caught out by her own social media postings.

39.  Had Ms Draycott put to the witness that her discovery of photographs with the applicant in her Facebook account in 2013 had come about at the behest of the police rather than of her own initiative, we cannot of course say with any certainty what the witness’s answer would have been.  However, we do not see her answers to the jury as necessarily inconsistent with the fact that she had been asked by the police if she had any means of ascertaining when she was first acquainted with the applicant; and that she had subsequently consulted her Facebook account and reported her discovery to the police.  Nor do we accept Mr McGowan’s argument that, even if she had given an answer that was helpful to the defence on this issue, it would have been better than the obvious discrepancy between her evidence and her first witness statement.  And it was that obvious discrepancy on which the judge gave the applicant an entirely favourable direction to the jury.

40.  The case of McInnes v Her Majesty’s Advocate[3], to which Mr Lui drew our attention, is instructive in considering the present appeal.  The appellant in that case had been convicted after trial of two offences, one of which was attempted murder.  The case against the appellant rested on the evidence of two stewards at a hotel dance, one of whom was called Pearce.  Although Pearce had identified the appellant as the person who had delivered a kick to the victim’s head outside the hotel, it became apparent that he had given two witness statements following two Identification Parades, which had not been disclosed to the appellant’s solicitor advocate and which contained certain inconsistencies with his oral evidence, suggesting that his identification was less than unequivocal.  It was argued before the Court of Appeal that if the defence had had these two statements, they would have been able “to undermine Pearce’s more confident identification at the trial of the appellant as the person who had administered the kick on the head”[4], which could have made a difference to the outcome of the trial[5]. The Court of Appeal rejected the argument, as a result of which the appellant appealed to the Supreme Court.

41.  As Lord Hope characterised the issue before their Lordships[6]:

“The question for this court, given that there was a failure in the duty of disclosure, is what the correct test is for the determination of the appeal.”

In answering that question, Lord Hope explained[7]:

“Two questions arise in a case of this kind to which a test must be applied. The tests in each case are different, and they must be considered and applied separately. The first question is whether the material which has been withheld from the defence was material which ought to have been disclosed. The test here is whether the material might have materially weakened the Crown case or materially strengthened the case for the defence … In the case of police statements, the position is clear. Applying the materiality test, all police statements of any witnesses on the crown list must be disclosed to the defence before the trial: McDonald v HM Advocate[8], para 51.

The second question is directed to the consequences of the violation. This is the question that arises at the stage of an appeal when consideration is given to the appropriate remedy: see Spiers v Ruddy 2009 SC (PC) 1. In that case it was the reasonable time guarantee that was in issue, but I think that the ratio of that case applies generally. As Lord Bingham of Cornhill put it in para 17, the Lord Advocate does not act incompatibly with a person’s Convention right by continuing to prosecute after the breach has occurred. A trial is not to be taken to have been unfair just because of the non-disclosure. The significance and consequences of the non-disclosure must be assessed. The question at the stage of an appeal is whether, given that there was a failure to disclose and having regard to what actually happened at the trial, the trial was nevertheless fair and, as Lady Cosgrove said in Kelly v HM Advocate, para 35, as a consequence there was no miscarriage of justice: see section 106(3) of the Criminal Procedure (Scotland) Act 1995. The test that should be applied is whether, taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict.”

42.  Lord Hope concluded[9]:

“The question which the appeal court must ask itself is whether after taking full account of all the circumstances of the trial, including the non-disclosure in breach of the appellant’s Convention right, the jury’s verdict should be allowed to stand. That question will be answered in the negative if there was a real possibility of a different outcome - if the jury might reasonably have come to a different view on the issue to which it directed its verdict if the withheld material had been disclosed to the defence.”

43.  Lord Rodger put the matter in similar terms[10]:

“The significance of any infringement of an accused’s article 6(1) Convention rights will depend on the circumstances. As has been said on many occasions, not every infringement of a particular right will mean that the accused’s trial as a whole has been unfair. Obviously, for example, failure to disclose a police statement of a Crown witness who is not called to give evidence will usually have no effect on the fairness of the trial. And, even in a case like the present where the witness, Pearce, gave evidence, an appellate court will have to assess how the failure by the Crown to disclose various statements which he made to the police actually affected the trial. Of course, an appellant can always argue that if his advocate had been armed with the statements, it is possible that he could have persuaded the jury to come to a different conclusion. But the law deals in real, not in merely fanciful, possibilities. So, in cases like the present, an appellate court will only hold that the trial has been unfair and quash the jury’s verdict as a miscarriage of justice if there is a real possibility that, if the statements had been disclosed, the jury might reasonably have come to a different verdict. Mutatis mutandis, this is the same as the test in Stirland v DPP [1944] AC 315, 321, which has often been widely applied by the appeal court.”

Pausing here, Mr Lui submits that the argument of counsel for the applicant that the verdict might have been different had Ms Draycott been in possession of the fourth statement is a fanciful proposition, which in the context of the significant issues at trial, is devoid of substance and realism.  Appellate counsel can always argue that the verdict might have been different: the question is whether there is a realistic possibility that if the material had been disclosed earlier, the jury might reasonably have come to a different verdict.  Furthermore, unlike the position in McInnes v HM Advocate, the fourth statement was disclosed to the defence well before the close of cross-examination of Ms X.  Had the defence wished to explore the matter of how the statement came to be made, they still had ample time to do so.

44.  For completeness, Lord Brown viewed the matter in slightly different terms[11]:

“Statements as a class are routinely disclosable because there is always the possibility that they may prove to be harmful to the Crown or helpful to the defence. In the event of non-disclosure, however, the trial is only to be regarded as unfair if in fact disclosure might have harmed the Crown or helped the defence to such an extent that in retrospect the defence can be shown to have lost a real possibility of acquittal. To say that Pearce’s statement here should have been disclosed because it materially weakened the Crown’s case is not to say that realistically its disclosure would in fact have significantly weakened the Crown’s case. Indeed, in retrospect it might have been better to formulate the test for disclosability in terms of material which might materially weaken the Crown’s case or might materially strengthen the case of the defence. Certainly, a finding of materiality relative to the disclosability of a document is not to be confused with a finding that it would actually have been of value to the defence nor regarded as pre-empting the defendant’s need on appeal to establish that, but for the non-disclosure, he would have had a realistic prospect of acquittal.”

45.  Lord Walker agreed with the judgments of Lord Hope and Lord Rodger, while Lord Kerr agreed with the judgments of Lord Hope and Brown.

46.  We have dealt with the judgments in McInnes v HM Advocate in some detail, not simply because of certain factual similarities between that case and the one before us, but to emphasise that it is not the mere non-disclosure of a witness’s statement that renders the trial unfair and the verdict suspect: only if there is a real possibility that the verdict might have been different, had the statement been disclosed, will this Court interfere.  Having looked at the evidence of Ms X in the context of the case as a whole, and having identified the significant issues at trial, including credibility, we do not consider that the trial was unfair.  Leaving aside the issue of whether the defence could still have pursued the matter had they wished to do so despite late discovery of the statement during cross-examination, we do not accept, in the language of Lord Hope, that it can realistically be argued that there is a real possibility that the jury would have arrived at a different verdict, in that they might reasonably have come to a different view of the credibility of Ms X, had the statement been disclosed in a timely manner.

47.  In reality, this was a relatively small and inconsequential point, the significance of which has become somewhat exaggerated by the importance which is rightly attached to the disclosure rules and the prospect that their breach might unsettle the conviction.  Ultimately, we think the applicant was rather better off with the exposure to the jury of the discrepancy between Ms X’s evidence and her first witness statement as to the year when she had first met the applicant than with the suggestion that the police had asked her to check on the date rather than her volunteering it in the fourth statement, which suggestion we rather doubt she would have disagreed with.

48.  For the above reasons, the application for leave to appeal against conviction is refused and the appeal against conviction dismissed.

Grounds of appeal against sentence

49.  The judge sentenced the applicant to 10 years’ imprisonment for the rape offence (Count 2), and 3 years’ imprisonment each for the assault occasioning actual bodily harm and indecent assault offences (Counts 1 and 3).  All sentences were ordered to run concurrently with each other, making a resultant sentence of 10 years’ imprisonment.

50.  The judge, in sentencing the applicant, remarked:

“I can say that, having heard the evidence over the 12 days of trial, it was the most brutal rape, one in which you severely beat the woman concerned and forced her against her will to commit acts of oral sex on you.”

Mr McGowan takes issue with the characterisation of the offence in Count 2 as a “most brutal rape”.  He points out that, while such a description may reflect what Ms X claimed had happened to her, it was not for the most part consistent with the injuries recorded as well as the medical evidence of Dr Kwok, who accepted, for example, that there might have been other causes of the extensive bruising; and that if Ms X was punched repeatedly on her body as she claimed, she would have expected there to be more severe injuries.  Furthermore, the injuries to Ms X’s private parts were relatively inconsequential and were the sort that might have been occasioned during consensual sexual intercourse; although Mr McGowan had to agree that that was not the implication of the jury’s verdict.

51.  Mr McGowan accepted that there were two episodes of sexual intercourse as well as of oral sex, the intercourse was unprotected and there was a measure of violence exerted on the victim.  However, even with those aggravating features, the applicant’s conduct did not merit 10 years’ imprisonment.

The respondent’s reply on sentence

52.  Mr Lui does not take serious issue with the fact that the application for leave to appeal against sentence is made out of time, although he questions why the applicant should have appealed against conviction within time but sentence out of time.  In the event, the delay in filing notice of application for leave was only some two weeks, and the applicant has endeavoured to explain the delay.  We are prepared to give leave to the applicant to argue sentence out of time.

53.  The respondent submitted that the judge was entitled and right to characterise the rape offence in the way he did, having had the advantage of hearing the evidence given at trial.  Mr Lui identified what he contended were ten aggravating features present in the commission of the offence.  First, the applicant had used significant violence over and above the force necessary to commit the rape offence.  Secondly, the offence was plainly premeditated and involved tricking the victim into coming to the applicant’s home on the pretext of collecting something to take to his wife, who was said to be unwell, at the hospital.  Thirdly, there was a breach of the trust which Ms X would have reposed in the applicant as the husband of her friend and former colleague.  Fourthly, there were multiple and serious injuries to the victim’s face, chest, limbs and private parts.  Fifthly, the rape was repeated: there were two incidents of sexual intercourse.  Sixthly, Ms X was subjected to the further degradation of being forced to perform oral sex on the applicant between the two incidents of sexual intercourse.  Indeed, there were in fact two separate incidents of oral sex.  Seventhly, the victim’s ordeal lasted some two hours between 9:30 and 11:30 am.  Eighthly, Ms X was threatened with violence to both herself and her daughter.  Ninthly, no condom was used.  Tenthly, the applicant was a non-refoulement claimant, whose conduct had seriously tarnished Hong Kong’s reputation for order and security: see HKSAR v Azad[12].

54.  Acknowledging that the sentence was a severe one, Mr Lui submitted that in light of these aggravating features, the importance of deterring such conduct, the necessity of marking public abhorrence of such crimes and the need for the courts to provide redress for the victim’s grievance, the sentence was neither manifestly excessive nor wrong in principle.

Discussion

55.  We do not agree with Mr McGowan’s criticism of the use by the judge of the word “brutal” to describe the rape of Ms X.  There is no question that the applicant did severely beat his victim, as well as force her to perform acts of oral sex on him in a most degrading ordeal that must have lasted a significant time.  It was a callous, merciless attack on an unsuspecting woman who was lured up to the applicant’s flat on the pretext of helping him take something to his wife (and her friend), who had apparently been taken ill after giving birth.  Since these events, there has not been one shred of remorse on his part.

56.  We accept that all of the aggravating features enumerated by Mr Lui were present to a greater or lesser extent in this case, even if the value to be ascribed to each factor is different and if allowance is made for an element of overlap between them.  However, as the Court in HKSAR v Yang Xingyun[13] cautioned, it can sometimes:

“… be somewhat artificial to identify a specific base starting point, which is then increased by defined or prescribed increments: indeed, the danger is that by adopting too mathematical an approach by the addition of a specific increase for each aggravating feature, particularly where there is an element of overlap between those factors, the sentence becomes unrealistic and excessive. As the Court in HKSAR v Wang Wei[14]put it:

“Sentencing is not a question of precise mathematical progression for each aggravating feature…”.”

57.  At the end of the day, we must stand back and ask ourselves whether, given the whole course of the applicant’s conduct, aggravated by the features the respondent has identified and we have accepted, an overall sentence of 10 years’ imprisonment was manifestly excessive or wrong in principle.

58.  It is our considered view that, while the sentence was a severe one, it cannot be said to be either manifestly excessive or wrong in principle.  Nor were the individual sentences for each offence manifestly excessive or wrong in principle.  However, given that the offences all arose out of the same course of conduct, the judge rightly ordered all of the sentences to run concurrently with each other.

59.  The application for leave to appeal against sentence must likewise be refused and the appeal against sentence dismissed.

Conclusion

60.  For the above reasons, the applications for leave to appeal against conviction and sentence are both refused and the appeals dismissed.