R. v. NG KIN CHIT

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

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

J U D G M E N T

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

Litton, J.A.:

1. This is the judgment of the court.

2. On 21 February 1992 the applicant was convicted in the High Court (before Keith J. and a jury) on four counts, two on his own guilty pleas. The counts on which the applicant admitted guilt were counts 5 and 6 as follows :

Count 5

Statement of Offence

Assault occasioning actual bodily harm, contrary to Common Law and punishable under s.39 of the Offences against the Person Ordinance, Cap. 212.

Particulars of Offence

Ng Kin Chit, on 19 December 1990 at room 5, 4/F, No. 249 King's Road, Causeway Bay, Hong Kong assaulted Cheung Mang-chu, thereby occasioning her actual bodily harm.

Count 6

Statement: of Offence - same as the above.

Particulars of Offence - on the same date and in the same flat as above he assaulted Lam Mei-chun, thereby occasioning her actual bodily harm.

3. Arising out of the same event as  in count 5, the applicant was also charged in count 4 with causing grievous bodily harm with intent to do so to the same victim namely, Cheung Mang-chu, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212, but he was acquitted by the jury.

4. This leaves counts 2 and 3 for which the applicant was convicted and sentenced to a total of 5 1/2 years' imprisonment. They are as follows

Count 2.

Statement of Offence

Attempted rape, contrary to section 118(1) of the Crimes Ordinance, Cap. 200 and section 81(1) of the Interpretation and General Clauses Ordinance, Cap. 1.

Particulars of Offence

Ng Kin-chit, on 19 December 1990 at room 5, 4/F, No. 249 King's Road, Causeway Bay, Hong Kong, attempted to rape CHEUNG Mang-chu.

Count 3

Statement of Offence

Indecent assault on a female, contrary to section 122(1) of the Crimes Ordinance, Cap. 200.

Particulars of Offence

Ng Kin-chit, on 19 December 1990 at the same place as above indecently assaulted CHEUNG Mang-chu.

The applicant is not contesting the conviction on count 3, the indecent assault charge, and the application for leave to appeal is confined to count 2, the attempted rape charge.

Background Facts

5. The background facts in the case are these :

    (1) The victim Miss Cheung Mang-chu occupied a cubicle in the flat on the 4/F of Olympic Theatre Building, No. 249 King's Road Causeway Bay. The other victim Madam LAM Mei-chun, a friend of Miss Cheung, lived in another cubicle in the same flat. The applicant also lived there, in another cubicle.

    (2) The applicant had moved in about 2 months before the incident. Miss Cheung had spoken to him on a few occasions before. The applicant had previously gone into Miss Cheung's cubicle to have a chat.

    (3) On 19 December 1990 Miss Cheung returned home at about 10 p.m. The applicant was then with a male friend, the 2nd defendant, in the flat. Some time later the applicant went into her cubicle, wanting to have a chat. Miss Cheung went along with that for a while then later told him that she wanted to go to bed as she had work the following morning. The applicant's response was to snatch her shoe from her hand and throw it out of the cubicle. She was very angry and said she would report him to the police. The applicant then became aggressive and began to beat Miss Cheung : this led to counts 4 and 5. On the facts, the jury was merciful to have acquitted the applicant on count 4, the charge of causing Miss Cheung grievous bodily harm with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212. The injuries she suffered were as follows :

(a)Bruising around the left eye which closed the eye;

(b) fracture of the 4th metacarpal bone of the left hand;

(c) bruising of about 5 cm² around the left temple;

(d)bleeding from the nose.

    (4) The applicant then forced Miss Cheung onto her bed. He straddled her with his knees and roughly fondled her breast under her bra. This became the subject-matter of count 3, the indecent assault charge, for which the appellant was convicted : a conviction against which there is no appeal.

    (5) Whilst this was going on inside Miss Cheung's cubicle the applicant's friend, the 2nd accused, was beating up Madam Lam Mei-chun in her cubicle. The applicant broke off his assault on Miss Cheung when Madam Lam was heard loudly to say that she would get the police. The applicant left Miss Cheung's cubicle and went into Madam Lam's cubicle and there assaulted Madam Lam, causing her bodily injuries, and this became the subject matter of count 6 for which the applicant pleaded guilty.

    (6) The applicant then returned to Miss Cheung's cubicle and began what the judge called the "second stage" of the incident that night. The applicant found Miss Cheung sitting on her bed dealing with her injuries. She was using tissue paper to soak up patches of blood. The applicant was at first solicitous but his mood changed. The applicant pushed Miss Cheung onto the bed; she tried to resist but he was too strong. He tried to pull her trousers off and she shouted out for help. He punched her a number of times with clenched fist on the side of her body and said that he had to "try her that night" meaning that he was going to have sexual intercourse with her. At this point Madam Lam was heard to leave her cubicle and make a phone call complaining that she had been beaten up and raped. When this was said, the applicant stopped trying to take Miss Cheung's trousers off and left the cubicle.

Count 2 : Attempted Rape

6. At the trial, it was the applicant's case that, with regard to the "second stage", what he was embarking upon was not rape but seduction. In putting forward the applicant's defence, his counsel latched onto this reply of Miss Cheung given in cross-examination : "He was trying to remove my trousers step by step he was trying to seduce me."

7. Having earlier on caused the injuries to Miss Cheung, as to which the applicant pleaded guilty in count 5, and indecently assaulted her for which he was found guilty in count 3, having then returned to her cubicle uninvited and engaged in further violence, the notion that the applicant was, in the "2nd stage", embarking upon a course of seduction with Miss Cheung as a willing party, is wholly beyond belief. The jury had clearly rejected it.

8. The crime of attempted rape falls into the category called inchoate offences where the criminal purpose of the accused is intended but not achieved. As Glanville Williams' "Textbook of Criminal Law" 2nd ed. p.402 puts it  "A man who starts on a criminal path but who is checked before he can accomplish his purpose may commit what is in itself an offence." Here, the trial judge directed the jury as follows

"      Now to convict the 1st defendant, of attempting to rape Miss Cheung the prosecution has to satisfy you so that you are sure of four things.

First, you have to be sure that the 1st defendant intended to have sexual intercourse with her. if, for example, you think it might have been the case that the 1st defendant, intended merely to beat her up physically and not to have sexual intercourse with her, then you must acquit him. of attempted rape.

Secondly, you have to be sure that she was not consenting to have sexual intercourse with him.

Thirdly, you have to be sure that the 1st defendant intended to have sexual intercourse with her either knowing that she was not willing to have sexual intercourse with him or not caring less whether she was willing or not and would have carried on regardless. So if you think it possible that, he was only intending to have sexual intercourse with her with her consent, then again you would have to acquit him of attempted rape.

Fourthly, you have to be sure that intending to have sexual intercourse with her, he did something more than merely preparatory to the act of sexual intercourse. You are not guilty of attempted rape merely by thinking about it, and you are not guilty of attempted rape simply by taking some preliminary steps to achieve your end. You can only be guilty of attempted rape if you have taken active steps to achieve your end which go beyond the taking of preparatory steps to having sexual intercourse without the woman's consent.

    Well, if you are sure of all of those four matters, you must convict the 1st defendant of attempting to rape Miss Cheung. If you are not sure about any of them, then you must acquit him on count two."

9. Counsel for the applicant submits that the judge had misdirected the jury on the essential ingredients of the crime of attempted rape by using a formula which is only appropriate if the definition of attempt in the Criminal Attempts Act 1981 of the U.K. were in force in Hong Kong : which, of course, it is not. Section 1(1) of the Act provides :

"If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence."

10. Counsel argues that since the common law continues to govern the definition of attempted rape in Hong Kong, there should have been a direction from the judge regarding the proximity of conduct to the completion of the offence; the judge should not have diluted the ingredient of criminality by reference to the much lower threshold laid down in the Statute law of the United Kingdom, where, an act which is "more than merely preparatory to the commission of the offence" is sufficient to constitute the actus reus crime of attempt.

11. It was conceded by counsel in argument that the present case is not analogous to R. v. Chan Ching-fung (Cr. App. 523/91, unreported, 13 August 1992) where the trial judge directed the jury solely in accordance with the Criminal Attempts Act 1981. There the court, in quashing the charge of attempted murder, said :

"Broadly speaking, what the 1981 Act did was to alter the nature of the actus reus of attempt. Preparatory acts not sufficiently proximate to satisfy the common law became attempts. As Yang, V.P. ..... pointed out in R. v. Chan Kwong (1987) HKLR 758 at 759 Hong Kong has no statute containing the same provisions as the English Act and so the common law still applies..... Judges in Hong Kong must continue to rharge the jury in accordance with the common law of attempt."

12. The question is : did the judge err in a similar way, albeit not in the same way, in this case? Here, the judge directed the jury in relation to the actus reus of attempted rape in these terms :

"You can only be guilty of attempted rape if you have taken active steps to achieve your end which go beyond the taking of preparatory steps to having sexual intercourse without the woman's consent." [Emphasis supplied]

Is this a sufficient direction in accordance with the common law?

13. Plainly, given the wide range of crimes which attempt must coyer, it is not possible to lay down a formula which is appropriate in every circumstance. The general statement in the old editions of Archbold's Criminal Pleading, before the Criminal Attempts Act 1981 was passed in the United Kingdom, has been accepted as a sufficient definition of the crime : see, for instance, Chan Kwong p.759 to this effect

"It is submitted that the actus reus necessary to constitute an attempt is complete if the prisoner does an act which is a step towards the commission of the specific crime, which is immediately and not merely remotely connected with the commission of it, and the doing of which cannot reasonably be regarded as haying any other purpose than the commission of the specific crime."

Here, the judge did not tell the jury that the step or steps must be "immediately and not merely remotely connected" with the completion of the act of rape, but he did say in clear terms that there must have been "active steps to achieve your end". Arguably, steps which are "immediately connected" with the intended rape are closer to the completed crime than "active steps to achieve your end", but the formula in Archbold could still leave a jury wondering what those steps might be. As Lord Hailsham remarked in Haughton v. Smith [1975] A.C. 476 at 492-E

"Obviously whenever the test of proximity becomes crucial in a particular case, difficult questions of fact and degree will arise....."

Here, the judge had first of all directed the jury in clear terms that they must be satisfied that the appellant had intended rape and nothing else. He elaborated on this by saying

"If, for example, you think it might have been the case that the 1st defendant intended merely to beat her up physically and not to have sexual intercourse with her, then you must acquit him of attempted rape."

The actual steps taken by the appellant were (1) forcing the victim onto the bed (2) further assault upon her (3) saying that he must "try her" that night (4) attempting to take off her trousers. If it was not rape which he had intended, upon these facts, what might it have been?

14. A trial judge is entitled to exercise his judgment as to how best to explain the ingredients of a difficult crime such as attempt to a jury. He is not bound to a set formula. In Chan Kwong the court looked at various formulations in a number of cases going as far back as 1854: in R. v. Eagleton (1854)5 Dears C.C. 515 the words were "the last act", but this has been criticized as too limiting; "acts immediately connected with the full offence", "the accused must have progressed a sufficient distance along the intended path" have been used and approved. But there is no magic in these words; as Lord Reid said in Haughton v. Smith at 499-G:

"It has often been said that to constitute an attempt the act must be proximate to and not remote from the crime itself. But that is hardly illuminating".

15. Arguably, it might nave been better if the judge had, in this case, used the formula set out in Archbold's Criminal Pleading, a formula approved by successive judgments of the Court of Appeal. However, as Yang, V.P. remarked in Chan Kwong at p.762-F :

"Furthermore, an act is proximate if this is first of a series of similar acts intended to result cumulatively in the crimes. Thus one who intends to kill another by slow poisoning is guilty of attempts murder as soon as he administers or attempts to administer the first dose which by itself may not be fatal : R. v. White (1910)2 K.B. 124. The administering of the first dose is certainly not the last act."

16. In our judgment, having regard to the fact that the judge had earlier stressed that the acts must be such as to indicate an intention to rape and nothing else, he had defined for the jury sufficiently the crime of attempted rape in this case and had not misled the jury, as the judge did in Chan Ching Fung, by reference solely to the formula in the Criminal Attempts Act 1981.

For these reasons, we would dismiss the application.