THE QUEEN v. CHAN CHO-NAM AND ANOTHER

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JUDGMENT

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1. This is an appeal against conviction and sentence by CHAN Chu-nam and WONG Yuen-shing. On 11th December 1985, they were convicted by a jury in High Court Case No. 157 and 208 of 1985. They were the second and third Defendants, respectively, in that case. The first Defendant HUI Chu-keung was also convicted of the two offences. However, he appealed and on the 15th July 1985, in Criminal Appeal No. 2 of 1986, this court, differently constituted, allowed his appeal and ordered a retrial, primarily upon the ground that the jury had been told to ignore evidence that following the alleged rape the complainant lived with D1 for some days and was in bed with him at the time of his arrest. At the retrial, D1 was acquitted on the 13th August 1986. As a result, the two Appellants made applications for leave to appeal on the 3rd September 1986, which applications we granted on 26th November.

2. The indictment at the original trial contained 7 counts. However, the present appeal is concerned only with the first 3 of those courts which charge in turn each of the three Defendants as principal with raping SO Yee-ping and the other two Defendants as aiders and abettors. All three offences were alleged to have been committed on the same day, the 30th May 1985, and at the same place. The jury at the first trial found all three Defendants guilty on the first count which was presented on the basis that D1 was the principal and the other two aiders and abettors, and also on the third count, which was presented on the basis that D3 was the principal and the other two aiders and abettors. All three were acquitted on the second count which was presented on the basis that D2 was the principal.

3. At his retrial, D1 teas only charged upon one count, but could, of course, have been convicted either as principal or as an aider and abettor.

4. Mr. Plowman for the Appellants contends that as a result of the acquittal of D1 at the retrial, the conviction of the Appellants as aiders and abettors on the first count is unsafe and unsatisfactory. Relying upon the decisions in SURUJPAUL v R (1958) 3 All E. R.300 and R v COGAN AND LEAK (1975) 2 All E R 1059, he submits that the conviction of the 2 Appellants could only be upheld if the jury acquitted D1 solely upon the basis that he mistakenly believed that the complainant had consented, and that upon what basis the jury acquitted is patently not known. Mr. Grenville Cross for the Crown, upon the ground that the requisite intention of; .the two Appellants was never put to the jury, does not seek to support the conviction. We think Mr. Plowman's submission must be accepted and that the conviction of the two Appellants on the first count cannot stand.

5. As to the third count, Mr. Plowman submits first of all that the acquittal of D1 as an aider and abettor at the retrial gives rise to grave doubts as to the reliability of the convictions of the second and third Defendants. Second, he submits, that the nature of the complainant's evidence at the retrial casts such doubt upon its credibility that the conviction is unsafe and unsatisfactory. At the first trial, the complainant claimed that four different persons had sexual intercourse with her, that D1 apologetically told her he had raped her, and that she later complained to one particular person. At the retrial, she stated that she could not remember if four different persons, or one single person had had intercourse with her four times, she refused to say if D1 told her he had raped her, and finally she stated that she had complained to an altogether different person and not the person originally mentioned.

6. Mr. Grenville Cross on the other hand claimed that there was ample evidence upon which the conviction could be sustained. The discrepancies in the complainant's evidence, he submitted, could be explained by the passage of time between the two trials i.e. some nine months, and the effect of the Mandrax tablets given to the complainant at the time of the incident.  There was therefore the complainant's consistent evidence that she was raped, the Appellants' cautioned statements not only admitting intercourse but also implying the lack of consent, and finally there was evidence of other witnesses that on the Mandrax tablets being taken by the complainant, she became unsteady and was helped to Dl's flat.

7. In our view, it is an inescapable implication of the acquittal of D1 at the retrial that the jury give little or no credence to the evidence of So and to the cautioned statement of D1, and likewise of the acquittal of D2 at the original trial, to the credence given to the cautioned statement of D2. That situation is compounded by the discrepancies that appeared in the complainant's evidence at the retrial. The additional evidence of other witnesses mentioned by Mr. Cross is of minimal and peripheral effect. That leaves only the cautioned statement of D3 which, of course, is not evidence against D2. As against D3 himself, the two juries' lack of credence in the first and second Defendants' cautioned statements must necessarily reflect upon the value of D3's cautioned statement. We note in addition, as observed in the judgment on D1's appeal, the Judge's direction in the first trial that the complainant had told less than the whole truth.

8. For these reasons we think that the conviction of the two Appellants on the third count is unsafe and unsatisfactory and must be set aside.

                Having heard counsel as to whether a retrial should be ordered, we note that the two Appellants have been serving their sentences for very nearly one year now. The only evidence that could be adduced against them must be regarded as unsafe and unsatisfactory for the reasons already outlined. We think. therefore that the interests of justice would not be served by ordering a retrial. We accordingly quash the convictions on both counts 1 and 3 and set aside the sentences.