THE QUEEN v. SOHN YOUNG SHEK, JOHN

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JUDGMENT

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Macdougall, J.A.:

1. This is the judgment of the court.

2. The applicant was convicted after trial before Ryan J. and a jury of the offence of rape. He now seeks leave to appeal against that conviction.

3. The evidence disclosed that the applicant and the complainant had met in mid-November 1987 and that about a month later he went to live with her in her flat in Wanchai. It was a tempestuous relationship. They had frequent disputes which often degenerated into physical violence. On two occasions the police were called in but no formal charges were ever laid. Indeed the couple continues to live together until 27 February 1988 when the complainant had the applicant's belongings removed from her flat. As a result of this the applicant went to live with his mother.

4. Notwithstanding that they no longer cohabited they continued to see each other. Not only did they go out together but on occasion the complainant even stayed overnight at the home of the applicant's mother. Moreover between 27 February and 2 April of that year the applicant visited the complainant at her flat on 4 occasions between 5 and 6 a.m. after having gained access through a window. On each of these occasions they engaged in the usual arguments and physical conflict that had formed the pattern of their earlier relationship while living together, and on each occasion this was followed by sexual intercourse.

5. All of this history was common ground between the complainant and the applicant. It was not until 2 April when the applicant paid a fifth dawn visit to the complainant's flat by gaining entry through the window that the incident with which the trial was concerned occurred.

6. The complainant's evidence concerning the events of this visit was that they followed the pattern of the earlier visits in that after he had entered through the window the applicant kissed her and said that he wanted to resume cohabitation with her. She replied that she was unwilling to allow him to live on the premises. A quarrel then erupted during the course of which the applicant removed his clothes save for his vest. After the quarrel, which lasted for more than an hour, had ceased, he attempted to kiss and embrace her. She resisted his advances and told him to find a prostitute.

7. One word led to another and eventually a fight ensued during which the applicant, using his left hand, managed to hold both of her hands above her head while he undressed her with his right hand. He then knelt on her chest, tore off her pants and had intercourse with her. During intercourse he released his grip on her hands. This enabled her to squeeze his private parts as hard as she could thereby causing him to cry out in pain. He then lay beside her for several minutes after which time she attempted to rise and dress herself preparatory to leaving the flat to go to work. The applicant then pushed her back onto the bed, seized both of her hands with his left hand and again had intercourse with her. Following this the complainant dressed herself and told the applicant that she was departing for work. As she left the premises she noticed that he was lying asleep on the bed. Instead of going to work however she went to a police station and made a complaint that he had raped her. The police accompanied her back to the flat where they found the applicant asleep and arrested him.

8. They also discovered the complainant's torn vest and pants in a rubbish bin in the kitchen.   With those items was the applicant's vest which the complainant claimed she had torn during the course of the struggle.

9. The applicant's version of the incident was that after he had climbed into the flat through a window he had kissed the complainant. They then began to talk about the applicant's failure to find employment. It was then that the complainant started to dig her nails into his wrists. Realising that she was irritated with him, and in order to prevent her from using her nails, he grasped hold of her writs and started to kiss and embrace her. She began tugging at his clothing, so he rose and stripped down to his vest. When he lay down again he found that the complainant had taken off her vest. She then ripped his vest and he responded by tearing hers. According to him it was not uncommon for her to tear his clothing. Indeed she admitted in cross-examination that she had on occasion cut his neck ties with a scissors.

10. The applicant then took off her pants and after caressing her began to have intercourse. She said something to him to the effect that he was raping her, but since on earlier occasions when they were cohabiting she had told him that he was raping her he thought nothing of it. At some stage she squeezed his testicles. Feeling some discomfort he temporarily ceased having intercourse with her. He admitted that she had told him to look for a whore and that he had responded by calling her a whore, but he explained that she had said this to him on previous occasions when they had been living together.

11. The whole crux of his defence was that he had not understood her actions or words to indicate that she was not consenting to intercourse. On the contrary, he thought that she was consenting and that her behaviour was just a game that she was playing and had played on earlier occasions.

12. There was evidence of bruising on the complainant's wrists and on the middle of her chest. The latter lent support to the complainant's contention that the applicant had knelt on her chest, he having denied that he had done so.

13. The relevant provisions of sec. 118 of the Crimes Ordinance Cap. 200 are as follows:

The present case was clearly one in which sub-section (4) came into play.

14. Given these statutory provisions, the history and nature of the relationship between the parties and the applicant's account of what had occurred on 2 April, it was essential that the jury be given a clear and careful direction both on the effect of a mistaken belief by the applicant that the complainant was consenting and on the meaning of recklessness in rape.

15. The judge initially dealt with these matters by directing the jury in these terms.

"If you are sure that she did not consent, then you have to go on to consider whether the accused knew she was not consenting or whether he was reckless as to whether she consented or not.

 

To decide this third element, that is whether the accused knew she was not consenting or whether he was reckless, you have to consider what the accused may have genuinely believed in the circumstances. You will need to ask yourself whether he genuinely, if mistakenly, believed that she was consenting. And in considering this question, you have to have regard to the presence or absence of any reasonable grounds for such a belief in conjunction with all the other relevant circumstances of the case. If after directing your minds to the question of the presence or absence of reasonable grounds, you feel that the accused may have genuinely, although mistakenly, believed that the complainant was consenting, then he would be entitled to be acquitted.

 

This test is a subjective test, it is not what you might have thought in the circumstances or what I might have thought or what counsel might have thought in the circumstances, it is what the accused thought in the circumstances. This is what is relevant. And that is what you will have to consider."

In so far as it went this direction was correct. There was however no explanation of the meaning of the word "reckless".

16. After referring to the evidence given by the complainant the judge returned to the issues c of consent and recklessness. He said this:

"The issue then, as I have mentioned earlier to you, is not whether or not intercourse occurred, that is not in dispute, but it's the question of the consent and whether the accused knew she was not consenting or whether he was reckless.

 

I have also mentioned to you that in considering the question of the accused's knowledge on this occasion on his recklessness, you will need to consider all of the evidence that you have heard, all the evidence that surrounds the incident and the question of whether, in the circumstances, if you are satisfied she did not consent, reasonable grounds existed for the accused genuinely but mistakenly believing that she was consenting.

17. This clouded the earlier direction by shifting the emphasis from the vital consideration of whether the applicant had a genuine out mistaken belief that the complainant was consenting to intercourse, to the entirely subsidiary consideration to which the jury were to have regard, of whether, in deciding if this might be so, there were reasonable grounds for such a belief.

18. It was a direction that was likely to lead the jury to think that the absence of reasonable grounds for believing that the complainant was consenting was fatal to the defence.

19. Having dealt with the evidence of the applicant the judge then summarised the issues in the following way:

"So those are all of the circumstances surrounding this whole incident. The background is important. The details that Madam LEE told you of what happened on that night are, of course, important, as is what the accused has said.

 

You will have to decide from all that whether, firstly, she didn't consent, that you are sure she didn't consent. And then if you are sure that she didn't consent, you have to go on and consider this question of whether he believed she didn't consent or was reckless about it. And that's when you have to apply this subjective test as to whether he had reasonable grounds to believe that she wasn't, in fact, consenting."

20. With respect to the learned judge the latter part of this direction is a contradiction in terms.

21. 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.

22. Notwithstanding the judge's initial and correct direction the cumulative effect of his two succeeding directions was at least likely to produce confusion in the minds of the jury and at worst would have misled them into thinking that, once they were sure that the complainant had not consented, they could convict the applicant provided they were satisfied that he did not have reasonable grounds for believing that she was consenting to intercourse with him.

23. Moreover, neither in this final direction nor elsewhere in his summing up did the judge offer any guidance to the jury as to the meaning of the word "reckless". In the context of the evidence in this case we are of the view that such guidance was essential.

24. We have therefore come to the conclusion that the conviction cannot stand. We grant the application and, treating it as the hearing the appeal, allow the appeal and quash the sentence.