HKSAR v. CHU CHI WAH

CACC 211/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 211 OF 2009

(ON APPEAL FROM HCCC NO. 28 OF 2009)

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REASONS FOR DECISION

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Hon Tang VP:

1.  At trial, the applicant faced 13 charges, 12 of which concern alleged unlawful sexual intercourse with the complainant X, who was born in December 1991.  Seven of those charges relate to alleged sexual intercourse whilst X was under 13 (charges 1 – 6 and 8), five (charges 9 – 13) whilst X was under 16.  The charges span a period of almost three years (from 1 January 2004 to December 2006).

2.  The remaining charge (charge 7) was for conspiracy to procure an abortion between 1 July 2004 and 31 August 2004.

3.  The applicant was acquitted of charges 7 and 13 but was convicted of all other charges.

4.  His appeal to us in relation to those charges was heard on 11 May 2010.  We were told at the time that in the event of the appeal being allowed the prosecution would not seek a retrial because X had refused to testify at a retrial.

5.  We gave notice on 14 June 2010 that our judgment would be delivered on 21 June 2010.  By letter dated 15 June 2010, we were informed that the prosecution would seek a retrial because X:

“Having thought through the matter, is now willing to testify should there be a retrial.”

6.  On 21 June 2010, we delivered our reasons for judgment (“the judgment”) allowing the appeal, but adjourned the consideration of a retrial to a date to be fixed because neither counsel for the respondent nor for the applicant was available to deal with the matter on the day.  The applicant was remanded in custody in the meantime.

7.  We heard the application for a retrial on 30 June 2010, at the end of which we refused to order a retrial. 

8.  Prior to the hearing on 30 June 2010 by letter dated 28 June 2010, the parties were informed that they should submit skeleton submissions in respect of the application for a retrial.

9.  On 29 June 2010, the parties were further informed that in addition to any submissions which they might wish to make, the court wished to hear submissions on whether a retrial on the charges as framed should be permitted, having regard to the dictum of Sir Anthony Mason NPJ in Chim Hon Man v. HKSAR (1998) 2 HKCFAR 145, quoted in para. 81 of the judgment which included the statement that:

“… An accused person may be subjected to unfairness and embarrassment if he is called upon to meet a charge of one offence based upon evidence of the commission of multiple offences, more particularly if the evidence is such that it does not enable each such offence to be clearly differentiated from the others. …”

If not, whether a retrial would be sought on amended charges?  If so, the court wished to see the amended charges and to hear submissions on James Henry Ting v HKSAR (2007) 10 HKCFAR 632  as well as on the statement in the Hong Kong Archbold at 7-78 that:

“The Court of Appeal may not order a retrial where the appeal is successful due to the default of the prosecution.”

10.  The parties were also asked that if the amended charges involved particular offences to be identified, whether there was evidence which would enable that to be done.

11.  By written submissions dated 29 June 2010, the respondent submitted that there should be a retrial of charges 1 to 6, and 8 to 12.  It stated that in relation to the issue raised in para. 81 of the judgment, apart from shortening the period covered, one solution would be to add in the particulars of offence, that it was the first occasion:

“除了縮短控罪發生的時間外，其中一個解決的方法是在控罪的詳情加上在該時段的第一次 (first occasion)，”  See R v DWB [2008] VSCA 223 at paras. 23-40 and PPP v R [2010] VSCA 110 at para. 2.

12.  The respondent’s written submissions had not addressed all the issues raised in the letter of 29 June 2010.

13.  At the hearing, we were told by Mr Leung for the respondent that in relation to charges 1 to 3, the respondent would proceed with them unamended.  However, in relation to the remainder, amendments would be necessary because as framed, they were all specimen charges.  However, no amendment was produced nor were we told whether there was evidence to support such new particularised charges. 

14.  In respect of the first three charges, Mr Leung submitted that they were not specimen charges.  The 1^st and 2^nd offences were allegedly committed between 1 January 2004 and 29 February 2004, and relate to the 1^st and 2^nd occasions when allegedly the applicant had unlawful sexual intercourse with X.  In relation to the 3^rd charge, that alleged an intercourse on a day in February 2004, other than the occasions covered by the 1^st and 2^nd charges.

15.  Mr Wong, for the applicant, submitted that at trial, Ms Rosaline Leung for the prosecution, informed the court on 12 March 2009, that all the charges were specimen charges.  Ms Rosaline Leung said:

「而且，證人佢實在真係無辦法可以詳述到每一次嘅性交，佢亦都講唔到係個詳情，個事實就係佢真係只可以講到係二百幾次，咁所以控方只可以作出一啲sample charge，或者係代表性嘅控罪。咁呢一方面，喺錄影帶，即使證人喺庭上面作供，佢亦都係會係講出呢個咁嘅情況嘅。」

16.  However, Mr Leung submitted that Ms Rosaline Leung was merely saying that charges 4 to 6 and 8 to 12 were “sample charges” but not the first three charges.  It is clear from the evidence of X that she had a clear recollection of the 1^st and 2^nd occasions.  The 1^st occasion could be easily distinguished from the 2^nd occasion, because there was incomplete penetration.  On the 2^nd occasion there was full penetration and ejaculation.  I agree with Mr Leung that the first two charges were not specimen charges.  However, I believe the 3^rd charge was also a specimen charge.  It is true that the 3^rd charge was distinguished from the 1^st and 2^nd charges, but the 3^rd charge was not distinguished from other alleged acts of sexual intercourse which took place in February 2004.  According to X, after the 1^st and 2^nd occasions, sexual intercourse took place regularly. 

17.  I am of the view that charges 1 and 2 are not objectionable, and in a proper case, a retrial should be ordered.

18.  I turn to consider the law in relation to the how charges should be framed in cases of this kind. 

19.  In Chim Hon Man, the prosecution case was that the defendant had raped his stepdaughter on a number of occasions between 14 July 1989 and 15 August 1989.  However, no complaint was made until 5 years later.  Two “specimen counts” of rape were laid on the basis that X was raped at least once during the first fortnight of the month and at least once during the second fortnight.  Although the indictment contained only two counts of rape, the prosecution led evidence of various acts of rape, the jury being asked to find that at least one act of rape occurred in each period.  The jury was not asked to identify the particular occasion of the rape, and was directed that if they were satisfied there was at least one rape during each period they should convict. 

20.  In his judgment (which had the concurrence of their other lordships), Sir Anthony Mason NPJ said:

“… in allowing the trial to proceed without confining each count to a single act of rape, there was an error of law. …” 164D

applying Johnson v Miller (1937-38) 59 CLR 467, S v The Queen (1989-90) 168 CLR 266, both decisions of the High Court of Australia.

21.  Sir Anthony Mason NPJ went on to explain:

“The rule against duplicity contributes to a fair trial by enabling the accused to know the charge he is called upon to answer and the jury to found its conviction upon the specific offence charged.  Once this is recognised, it is but a short step to the companion principle, affirmed in S v The Queen (1989-90) 168 CLR 266, following Johnson v Miller (1937) 59 CLR 467, which in turn was based on Parker v Sutherland (1917) 86 LJKB 1052, that confines the prosecution to the proof of one offence as the basis for a conviction of a single offence charged in a count in an indictment.

This principle serves the same general purposes as the rule against duplicity.  Knowledge of the particular act, matter or thing which is the foundation of the charge is important in enabling the accused to ascertain and prove what, if any, defence, for example, an alibi, he may have to the offence charged and to subject a complainant's evidence to searching scrutiny by reference to the surrounding circumstances.  An accused person may be subjected to unfairness and embarrassment if he is called upon to meet a charge of one offence based upon evidence of the commission of multiple offences, more particularly if the evidence is such that it does not enable each such offence to be clearly differentiated from the others.  The degree of unfairness or embarrassment may vary according to the circumstances.  If the prosecution case is based on evidence of many offences in an extended period of time the unfairness may be considerable.

The principle also plays a part in preserving the notion of a separate trial for a separate offence.  In so doing, it enables the jury to focus on the single offence proved as the basis for a conviction of the offence charged and it encourages the jury to apply the criminal standard of proof to the evidence of that offence.  In the event that the jury is invited, as it was here, to find the commission of at least one offence from evidence of multiple offences, there is either a risk of want of unanimity as to the same offence or a willingness to find guilt from the very frequency of the offences suggested by the evidence.  The risk arises because the focus of the jury may be directed from the particularity of a single offence to the generality of the evidence of multiple offences.

Another purpose served by the principle is to secure certainty in the conviction or the acquittal, thereby making available a plea of autrefois convict or autrefois acquit to a subsequent prosecution for the same offence.  The risk of uncertainty in the conviction, arising from the way in which the prosecution case was presented here, for the purpose of such a plea would not appear to be significant.  For the reasons given by Brennan J in S v The Queen (1989-1990) 168 CLR 266 (at pp.271-272) it is inconceivable that the prosecution could discharge the onus of showing that a subsequent charge for an offence in a relevant period of time was other than for an offence for which he had been convicted or acquitted previously.

Although the purposes served by the principle do not all have equal force, the considerations relating to fairness and proper jury deliberation have very strong force and support the general principle upheld unanimously in S v The Queen (1989-1990) 168 CLR 266.  That decision denies the suggestion that there is an exception or qualification which permits a prosecution for sexual abuse of a child to be presented on the basis of a specimen count when the complainant is unable to be precise as to the date, time and place of the particular offences of which complaint is made, is unable to distinguish between them and the offences extend over a long period of time.”

22.  He then went on to note that a different approach had been adopted in New Zealand and England, and observed at page 163:

“… If, as I conclude, there is a general principle which precludes proof of more than one offence as the basis for the conviction of the single offence charged, s. 9(3) cannot require the Hong Kong courts to depart from that substantive principle of law.

It is difficult to craft an exception to the general principle which would strike the right balance between ensuring that the principle does not provide a charter of immunity to offenders where a complainant is unable to differentiate between offences and providing adequate safeguards to an accused person.  Archbold’s Criminal Pleading Evidence and Practice (1988 ed.) p.49 suggests that in cases where differentiation is impossible, an indictment may be drawn to include a number of counts, each, apart from the first, alleging ‘on an occasion other than that alleged [in the previous counts]’.  That course can be pursued where the series of offences is alleged to have been committed over a relatively short period of time.  It is a course which might have been adopted in the present case and it would have provided an answer to the problem.  Although that approach would not have resulted in the giving of particulars or of more specificity in the complainant’s evidence, it would have resulted in the jury’s attention being focused on the individual acts alleged and the evidence relating to those acts, without any departure from the general principle.

For this reason, I do not regard the present case as one which falls within an exception to that principle, even if it were appropriate for this Court rather than the legislature to recognise a category of cases as constituting such an exception.

I conclude therefore that, in allowing the trial to proceed without confining each count to a single act of rape, there was an error of law. …”

23.  I believe Chim Hon Man is authority that specimen charges are not permissible in Hong Kong. 

24.  We have been referred by Mr Leung to more recent Australian decisions.  In R v DWB [2008] VSCA 223, a decision of the Court of Appeal of Victoria, delivered on 12 November 2008, the Victorian Court of Appeal, after a detailed survey of the authorities, said of the technique of framing a count as the first occasion on which a course of conduct, say, sexual assault, which took place on a “between dates” basis, that it was necessary that the evidence enabled the first occasion to be identified and distinguished from all the similar conduct. 

25.  In the joint judgment of Vincent and Weinberg JJA and Mandie AJA, their lordships said:

“[36] Such a technique will not overcome the difficulties identified in S v R S v R (1989) 168 CLR 266 unless there is some way that the specific act that constitutes the offence charged in any particular count can be identified and distinguished from all other similar conduct.

[37]  In the present case, there was no basis upon which that could be done. Neither CL nor SB had the slightest idea of what the ‘first occasion’ on which they were indecently assaulted might have been. It was not sufficient for the Crown to say, as it did in this case, that there must, logically, have been a ‘first occasion’. Of course, that is true. The difficulty is that there is no evidence to support the count as formulated and particularised. The principles that were so carefully formulated in S v R S v R (1989) 168 CLR 266, though seemingly technical, reflect a need to ensure fairness to an accused who is otherwise faced with an impossible situation whereby it cannot be said with any certainty what charge he or she must meet. Those principles are not to be circumvented by the use of what is essentially nothing more than a linguistic device, devoid of any substance or meaningful content.

[38]  There is a further difficulty with the Crown's position. Tadgell JA observed in Lewis Director of Public Prosecutions v His Honour Judge G D Lewis [1997] 1 VR 391 that when the Crown ties itself to a ‘first occasion’ method of particulars, it, of course, undertakes to prove that the offence charged occurred within the period specified in the count, but it also goes further. In his Honour's terms, the Crown undertakes ‘to prove that no offence answering the given description occurred earlier, whether within the specified period or outside it’. If that observation is correct, and it seems to us plainly to be so, then the Crown, in particularising on a ‘first occasion’ basis, may in fact be assuming a burden that will not always be easy to discharge.

[39]  In any event, the position in the present case seems tolerably clear. The evidence given by the complainants fell well short of proving that the offence charged within any of the ‘first occasion’ counts took place during the period specified. The offence charged was said to be the ‘first occasion’. However, neither complainant had the vaguest recollection of any feature of that offence that would allow her to say that this was indeed the first time it had occurred, and that no other offence of a like character had taken place beforehand.”

26.  In DWB the court rejected the submission that a notional first occasion would suffice because there must logically have been a “first occasion”.  It held instead that the prosecution was obliged in such cases to adduce evidence which established that what is said to be the offence charged was the first occasion. 

27.  A more recent decision is PPP v R [2010] VSCA 110, also a decision of the Court of Appeal of Victoria which was delivered on 10 May 2010. 

28.  There, the defendant was convicted of, inter alia, five counts of rape which comprised of two counts of oral rape, two counts of penile rape and one count of digital rape.  The offences were committed over a period of approximately 6 years on a daughter of a woman with whom the defendant was then cohabiting.  The charges were count 4, which was particularised as the first occasion of oral rape by fellatio; the 5^th count, the first occasion of oral rape by cunnilingus; the 6^th count, as the first occasion of penile penetration of the complainant’s vagina simpliciter; and count 8 which was particularised as the first occasion of penile vaginal rape and ejaculation.  As usual in this kind of cases, the charges occurred within the context of an ongoing relationship of repeated sexual abuse of the complainant by the applicant.  The appeal was allowed on the basis that there had been inadequate direction by the trial judge of the use to which such evidence may be put. 

29.  A relevant question for our purpose is whether a retrial should be ordered which depended upon whether the prosecution could adequately particularise the act constituting the offence charged.  In that context, Redlich JA in a judgment which had the concurrence of the other members of the court said:

“[41] Where the same offences are committed against the same person with great frequency over a lengthy period in the same manner and circumstances, it will be extremely difficult for the victim to identify some distinguishing feature of one occasion when the offence was committed. Hence in the present case the difficulty which the prosecution faced in providing particulars arose from the sheer volume and persistence of the alleged charged and uncharged acts committed for the most part in the main bedroom of the family home at night. The profound effect upon the victim of these events may have made it more difficult for her to recall the details of particular acts of sexual abuse. The submission made by the applicant under this ground raises for consideration the level of particularity that is required in such circumstances.

[42]  The starting point is the proposition that for a trial according to law, the accused must be apprised not only of the offence with which they are charged but must have particulars of the act constituting the offence. These particulars are designed to serve a number of important purposes:

(1) to enable the accused to exercise the right to object to evidence on the ground of relevance;

(2) to permit the accused to know how the charge might be answered;

(3) to provide the accused with the opportunity to test the credibility of the complainant by reference to the surrounding circumstances disclosed as a result of the particularisation of the count;

(4) to enable the trial judge to instruct the jury properly as to the law to be applied;

(5) to ensure that there is a unanimity of view by the jury as to a specific act by the accused;

(6) in the event of conviction, to enable the court to know the offence for which the defendant is to be punished;

(7) to ensure that the record discloses of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict.”

30.  Redlich JA then concluded:

“[73]  It is commonly the case that offences of the present kind are charged by reference to the occasion (first or otherwise) on which they are committed. Commonly the alleged circumstances of the offence may be set against a background of repeated conduct with the same victim in the same circumstances over a protracted period of time. Experience has shown that commonly in such cases no distinguishing feature (additional to the occasion) of the offence charged can be provided. If it is not disputed on trial that the accused and the complainant were, throughout the period specified in the count, in each other's company at the place where it is alleged that the offences occurred, it may be no more than a theoretical possibility that more specific particularity of the occasion charged would advance the ability of the accused to answer the charge. In the absence of demonstrated prejudice, to require some further distinguishing feature, would reduce the law to absurdity and would bring the administration of justice into disrepute.

[74]  In the present case, the applicant did not deny having lived in the house with the complainant for the period covered by the counts. His defence was an outright denial that any improper conduct occurred. There existed, therefore, no more than a theoretical possibility that, if more specific particularity as to the dates was provided, the applicant would be better placed to answer the case being advanced against him. No unfairness or prejudice was demonstrated.

[75]  At trial, the complainant's evidence identified four different rapes of the different types alleged in the particulars. Her account of each occasion was accompanied by detail of what occurred and by some level of recall that those occasions were the first occasions. That recall differed from count to count so that on some counts, what was said to be the first occasion that such an act occurred, was not free from uncertainty. Consequently her evidence does raise the prospect that on some counts there may be difficulty in the prosecution relying upon a ‘first occasion’ mode of particularisation. But this is not a case in which the complainant has no recollection of the ‘first occasion’ acts or that it is obvious that there is no other means available to overcome those difficulties. Neither is it a case in which the prosecution is unable to establish that the offences occurred within the periods specified in the counts. I would therefore order a new trial on each of those counts.”

31.  On the basis of the authorities discussed above, although it is clear that specimen charges are not permissible for the kind of offences with which we are concerned, a defendant may be charged by reference to the occasion (first or otherwise) on which they are committed.

32.  I turn to consider whether a retrial should be ordered.  The leading authority on retrial is the decision of the Court of Final Appeal in Ting James Henry v HKSAR, where Lord Woolf NPJ said at para. 49:

“49.   The critical question when considering a retrial is, in the language of s.83E of the Criminal Procedure Ordinance, what justice requires.  The general approach was set out by Lord Diplock in 1978 in a case when the Court of Appeal of Hong Kong’s exercise of its discretion was being reviewed by the Privy Council.  In this case, the situation is different, it is this Court, which has to exercise its discretion. The task is not one of review.  However, Lord Diplock’s words are still worth repeating.  In Au Pui-kuen v. AG [1979] HKLR 16 at p.19, Lord Diplock said:

The discretion whether or not to exercise the power to order a new trial in any particular case is confided to the Court of Appeal of Hong Kong and not to their Lordships’ Board.  To exercise it judicially may involve the court in considering and balancing a number of factors some of which may weigh in favour of a new trial and some may weigh against it.  The interests of justice are not confined to the interests of the prosecutor and the accused in the particular case.  They include the interests of the public in Hong Kong that those persons who are guilty of serious crimes should be brought to justice and should not escape it merely because of a technical blunder by the judge in the conduct of the trial or his summing-up to the jury.

It would not, in their Lordships’ view, be helpful to attempt a catalogue of the various factors which the Court of Appeal should take into consideration in determining how to exercise their discretion, still less to make any suggestion as to the relative weight to be given to them.  The factors that are relevant and their relative importance may vary greatly as between one case and another.  These are matters which call for the exercise of the collective sense of justice and common sense of the members of the Court of Appeal of Hong Kong …”

33.  In Reid v The Queen [1980] AC 343, another decision of the Privy Council, Lord Diplock said at page 348:

“The interest of justice that is served by the power to order a new trial is the interest of the public in Jamaica that those persons who are guilty of serious crimes should be brought to justice and should not escape it merely because of some technical blunder by the judge in the conduct of the trial or his summing up to the jury. There are, of course, countervailing interests of justice which must also be taken into consideration. The nature and strength of these will vary from case to case. One of these is the observance of a basic principle that underlines the adversary system under which criminal cases are conducted in jurisdictions which follow the procedure of the common law: it is for the prosecution to prove the case against the defendant. It is the prosecution's function, and not part of the functions of the court, to decide what evidence to adduce and what facts to elicit from the witness it decides to call. In contrast the judge's function is to control the trial, to see that the proper procedure is followed, and to hold the balance evenly between prosecution and defence during the course of the hearing and in his summing up to the jury. He is entitled, if he considers it appropriate, himself to put questions to the witness to clarify answers that they have given to counsel for the parties; but he is not under any duty to do so, and where, as in the instant case, the parties are represented by competent and experienced counsel it is generally prudent to leave them to conduct their respective cases in their own way.

It would conflict with the basic principle that in every criminal trial it is for the prosecution to prove its case against the defendant, if a new trial were ordered in cases where at the original trial the evidence which the prosecution had chosen to adduce was insufficient to justify a conviction by any reasonable jury which had been properly directed. In such a case whether or not the jury's verdict of guilty was induced by some misdirection of the judge at the trial is immaterial; the governing reason why the verdict must be set aside is because the prosecution having chosen to bring the defendant to trial had failed to adduce sufficient evidence to justify convicting him of the offence with which he has been charged. To order a new trial would be to give the prosecution a second chance to make good the evidential deficiencies in its case--and, if a second chance, why not a third? To do so would, in their Lordships' view, amount to an error of principle in the exercise of the power under section 14 (2) of the Judicature (Appellate Jurisdiction) Act. …”

34.  As I have explained above, the 1^st and 2^nd charges are such that a retrial could be ordered.  From the evidence of X, it is obvious that she could distinguish the first occasion from the second which took place within a week or two of the first occasion.  The two events also took place within a relatively short span of time.

35.  However, the evidence relating to the period of time within which the 1^st and 2^nd offences were allegedly committed is unsatisfactory.  The charges alleged that the 1^st and 2^nd charges occurred between 1 January 2004 and 28 February 2004.  However, on different occasions, X had put these offences in different time periods.  In her first statement to the police dated 9 September 2008, she said it was at the end of August 2004 that the first occasion took place and that the second occasion took place two or three days afterwards.  Thereafter, in every month there were four or five occasions of sexual intercourse until December 2005, when it became two or three times weekly.  In the same statement, she said that there was an abortion in July 2005.  Later, she changed the date about the abortion from 2005 to 2004 because she said she remembered it took place in the summer before she started Form 2.  It will be recalled that the alleged abortion became the 7^th charge of which the applicant was acquitted.

36.  X had also told the doctor who examined her on 12 September 2008, that the first sexual intercourse took place in August 2004. 

37.  We were told that by Mr Leung that the evidence showed that she had told her boyfriend on 1 September 2008 that the first sexual intercourse took place in November 2003 and that the abortion took place in July 2004.

38.  At trial, she said the first occasion took place in the winter of 2004, hence between 1 January and 28 February and not the summer in August 2004 because she had an abortion in the summer of 2004.  That being the case the first sexual intercourse could not have taken place in the same summer. 

39.  This is what the learned judge said in the summing up:

「咁大律師又話喇，X嘅口供前後矛盾甚多，於理不合。黃大律師指出，X喺報警之後參與認人手續，畀警方嘅口供全部都有提及過佢上教員室改簿、改卷，全部都有提及過小五嘅時候畀被告錫咗一啖嘅事件喎，佢係直至到11月進行錄影喇，然後先第一次講番教員室改簿，畀被告錫咗一啖呢啲事件出嚟嘅啫。另外，就住第一次性交，究竟係幾多月？嗰陣時究竟係晏晝定係黃昏？性交之前係睇緊電視定做緊功課？以至佢究竟有冇點頭表示同意？大律師就指話，X嘅書面口供同埋佢錄影入面嘅內容都前後不符。而且，X所講畀佢男朋友王展雄聽，所講畀法醫劉明輝聽，有關佢第一次發生性行為嘅日期，有關佢墮胎嘅日期，亦都同佢錄影嘅時候所講嘅日期有分歧。黃大律師就質疑，X有乜理由連咁刻骨銘心嘅第一次性行為究竟係冬天定夏天發生都搞錯咗呢？」

40.  With respect I do not believe the learned judge had adequately directed the jury on the discrepancies in X’s evidence. 

41.  Be that as it may, we have to consider whether we should exercise our discretion to order a retrial in respect of these two charges.  The alleged offences are extremely serious.  I am also painfully aware how difficult it must be for a complainant, who was young and vulnerable when the alleged offences were committed, to remember with clarity when the offences were committed.  The court must approach the problem realistically and with common sense.  On the other hand, the fact that the allegations are serious and the great importance which one must attach to the protection of children cannot detract from the importance that a defendant must have a fair trial. 

42.  Here, in a retrial, the applicant would be faced with the dilemma that according to X, she could only remember the date of the first sexual intercourse by reference to the alleged abortion.  Mr Leung has suggested that in a retrial X could be instructed not to say that there had been an abortion, but simply to say that she could remember the first event by reference to a medical incident.  But that is not satisfactory.  If this had not been a retrial, the problem would not have arisen because the applicant would have to deal with the abortion count at the same time.  In that case if a jury acquits him of the abortion, they may also acquit him of the unlawful sexual intercourse.  We note here that the verdicts of guilt were not unanimous.  And in the case of the 2^nd charge, it was by a majority of 5 to 2. 

43.  Mr Leung accepted that if a retrial is ordered in respect of the first two or three charges only, evidence relating to the subsequent sexual intercourse should not be admitted.  But any mention of abortion would necessarily involve allegations of subsequent sexual intercourse.  Moreover, as explained above, X’s evidence on when the first occasion had occurred was unsatisfactory.  She could not even remember whether it took place in the summer or in the winter.  As explained, she decided that it was in the winter because the alleged abortion took place in the summer.  It is important to bear in mind that the jury would be concerned with an actual first or second occasion and not a notional first or second occasion.

44.  In all the circumstances, I decided not to order a retrial of the 1^st and 2^nd charges.

45.  In relation to the other charges, 4-6, 8-12 are admittedly specimen charges.  I have explained why charge 3 is also a specimen charge.  Charge 13 was not a specimen charge, it alleged an act of unlawful sexual intercourse on a day in December 2006.  The applicant was acquitted of this charge.  The other charges alleged acts of unlawful sexual intercourse on a “between dates” basis, for example, charge 12 covered the period of 1 January 2006 to 30 November 2006.

46.  The authorities are clear that specimen charges are not permissible.  Mr Leung accepted that amendments would be necessary.  I presumed Mr Leung had in mind (as indicated in the skeleton submission) amending those charges by shortening the period covered and to allege that it was the first occasion during such shortened period.  There was no submission on whether there was evidence to support the amended particularised charges.  There is no evidence that the prosecution could prove actual first occasions as opposed to notional first occasions.  That is understandable having regard to what Ms Rosaline Leung had told the learned judge at trial quoted in para. 15 above.  There were allegedly over 200 occasions of unlawful sexual intercourse and X could not be expected to remember them individually.  Given Mr Leung’s well recognized ability and diligence I am sure that he would have spared no effort if he was able to assist the court further.  In applying for a retrial, the respondent must satisfy the court that it is proper to order a retrial.  That being the case, in exercise of my discretion, I would not order a retrial in respect of these charges. 

Hon Yeung JA:

47.  I agree with the judgment of Tang VP.

Hon Yuen JA:

48.  I agree with the Vice President’s reasons for decision.