R. v. LEE KAM CHUNG

IN THE COURT OF APPEAL

1994, No. 532
(Criminal)

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J U D G M E N T

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

1. The applicant seeks leave to appeal against his conviction on two counts: one of indecent assault, the other of rape, for which he was sentenced to a total of nine years' imprisonment by Deputy Judge Yeung after trial in the High Court. The applicant was at the time of his conviction 26 years of age. He was convicted in September 1994 and sentenced on 4 October 1994.

2. The background facts are these. In November 1993 the applicant had rented for two nights a holiday flat on the 2/F of No. 135 Lo Wai Village, Pui O, Lantau Island. A young woman aged 23 lived in a 2/F flat next door, at No. 136 Lo Wai Village. Her name is Ho Wai-ling and she lived there with a man To Yee-cheung and their five months old baby daughter. Mr To worked as a night watchman on Hong Kong Island and accordingly Miss Ho was, in November 1993, alone at night in the flat with her baby daughter. Miss Ho was the complainant and the principal prosecution witness.

3. Her first encounter with the applicant was in the evening of 7 November when he came to her front door and asked to borrow detergent which she refused. Then at about 1.30am on 8 November, when she was getting ready for bed, she found the applicant in the sitting room. He had climbed into her flat. She was, of course, terrified. He subjected her to many questions concerning her family and herself. This went on for about 20 minutes and then suddenly the applicant attacked her, chopping her neck with his hand. She fainted. He carried her into the bedroom where the baby was sleeping and put her on the bed. He indicated he wanted sexual intercourse. She said her period had come and asked to go to the toilet. In the toilet she thought of climbing out of the window but was too scared. The applicant in the meanwhile was asking her to come out. Then she heard the sound of the escape of gas from the LP gas stove and smelt gas in the toilet. When she came out she saw that the applicant had tied the handle of the front door knob with electric wire which led from the bedroom.

4. The applicant grabbed hold of Miss Ho and dragged her into the bedroom, demanded sexual intercourse and threatened to injure the baby with a knife, pointing the knife at the baby. He told Miss Ho to take her clothes off, cut her brassiere with a paper cutter and the sexual activities which constituted count 1 on the indictment then took place.

5. Then at about 2.45am the applicant asked Miss Ho to go next door to his holiday flat to continue the sexual activities. He carried the baby. She got dressed and followed. He had the knife with him. In the flat at No. 135 Lo Wai Village he again threatened injury to the baby, told her to strip then had sexual intercourse with her. This constituted the rape in count 2.

6. The applicant then took Miss Ho and the baby back to her flat and told her not to report to the police. After the applicant had gone, at about 4am, she managed to locate her boyfriend Mr To by phone and he told her to dial 999 and report to the police. She dialled 999 and the call was transferred to Mui Wo Police Station where they recorded the conversation as starting at 5.02am on 8 November 1993.

7. The police eventually arrived at Lo Wai Village and Miss Ho took them to the applicant's holiday flat. The police had to break down the main door, then the bedroom door. According to Miss Ho there was a strong smell of LP gas in the flat. The police then went to the bathroom and found the applicant lying in the bathtub. He had injury marks on both wrists and his left wrist was bleeding. Among the exhibits seized by the police was exhibit P18 which appeared to be a suicide note addressed to the applicant's wife.

8. In the afternoon of 8 November, in the custodial ward of the Queen Mary Hospital, the applicant made a long statement to the police. Among other things he admitted having climbed into Miss Ho's 2nd floor flat and that he had cut off a length of electric wire whilst in her flat and had connected the wire to the main door, with the intention of giving Miss Ho's husband an electric shock. He admitted sexual activities having occurred in her flat; admitted the sexual intercourse at No. 135 Lo Wai Village and said he was drunk at the time. He denied in the statement carrying a knife or threatening to injure the baby with the knife.

9. The applicant chose not to give evidence at his trial. That was his right. It meant that there was no testimony in court to contradict what Miss Ho had said. The applicant claimed in his police statement that Miss Ho consented to the sexual activities, but he chose not to back that assertion up by his own testimony. The jury by their unanimous verdict had clearly accepted the veracity of Miss Ho's testimony which was corroborated to some extent by the applicant's police statement.

10. The applicant in his grounds of appeal argued that Miss Ho had volunteered to go to his flat for the purpose of sexual intercourse. On her evidence she had no choice as the applicant had her baby. The flat was next door. This took place at about 2.45am to 3.00am. She said Lo Wai was a very small village and there was no one about at that time in the morning who might have helped her. We see nothing in this ground of appeal.

11. This afternoon the applicant in argument put to us the point that there was no forensic evidence to link him to the sexual intercourse. This was, on his own case, wholly irrelevant. On his own story sexual intercourse took place. His identity was never in issue. The absence of forensic evidence is therefore irrelevant. The only question before the jury was: Did the activities constituting counts 1 and 2 in the indictment take place with Miss Ho's consent? The evidence that she did not consent was overwhelming. The application for leave to appeal against conviction is dismissed.