HKSAR v. SHAH ISRAR

CACC 239/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 239 OF 2011

(ON APPEAL FROM HCCC 332 OF 2010)

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REASONS FOR JUDGMENT

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Hon Lunn JA (giving the reasons for judgment of the court)

1.  At the hearing on 24 July 2012 we dismissed the application made on behalf of the applicant for leave to appeal against his conviction on 1 June 2011 after trial before Derek Pang J and jury of a single count of rape and said that we would give our reasons for so doing in due course. This we do now.

THE COUNT

2.  The count on the indictment alleged that the applicant had raped Ms W (“W”) on 30 May 2010 at Room 3617, Shek Kai House, Shek Lai Estate, Lei Pui Street in Kwai Chung.  Those premises were the applicant’s family home.

THE TRIAL

The prosecution case

3.  There was no dispute at the trial that the applicant had sexual intercourse with W in the master bedroom of the applicant’s home in the afternoon of Sunday, 30 May 2010.  At issue, was whether that sexual intercourse was with the consent of W.

4.  W testified that, having come from Indonesia to Hong Kong in January 2009 to take lawful employment as a domestic helper, her employment was terminated by her employer.  Then, she was employed by a second employer.  However, that employment was terminated after one month, in consequence of which in March 2010 W went to live in Bethune House Shelter, which was a mission for migrant workers.  There, she came to know Ms Juvy Bustamantae (“Juvy”), a Filipina domestic helper.  However, she ceased residing at the shelter on 16 April 2010, when her visa to remain in Hong Kong expired.  Nevertheless, she remained in Hong Kong unlawfully, residing in boarding houses.

5.  Through the introduction of a friend she agreed to work part-time as a domestic helper for the applicant’s wife in the family home.  She did so for the first time on 29 May 2010.  On the following day, 30 May 2010 she returned to the applicant’s home for another day’s work.  The applicant, his wife, daughter and young son were in the premises.  That was the first time that she had met the applicant.  In the late afternoon the applicant’s wife and daughter left the premises to go shopping, leaving the applicant and his son together with W in the premises.  CCTV film depicted the applicant’s wife and daughter leaving the building between 17:10 and 17:12.  Whilst she was cleaning the windows in the master bedroom the applicant entered the bedroom and, having exposed the tip of his penis to her, said, “My wife is pregnant and her legs hurt.  It’s very hard for me.”  In face of W’s protests, “Don’t do that to me!  It’s not right!”, the applicant pushed W from the position at which she was kneeling on to the bed where she lay face upwards.  In that position, in face of her resistance and screaming, he pulled down her trousers and underpants and inserted his penis into her vagina and after several minutes ejaculated inside her.

6.  W said that the sexual intercourse had resulted in bleeding in her vagina, which was painful.  She dressed herself and then went to the bathroom, where she cleaned herself up.  When she tried to leave the premises the applicant threatened her, “Do you know what floor this is?”  She took that to be a threat to throw her out of the window.  She was told not to look so unhappy when the applicant’s wife returned to the premises.  When she did return, W made an excuse and left the premises, having been paid by the applicant’s wife for her work.  CCTV film showed that to be between 18:10 and 18:12.

7.  Having found a place to sit underneath the building she made several unsuccessful telephone calls to people seeking help.  Then, having obtained Juvy’s telephone number, she contacted her at 18:23 complaining that her employer had raped her.  Because Juvy had difficulty in hearing her, she sent her a text message:

“ The husband of my mum raped me, very painful, I can’t walk, now it’s bleeding. I am still downstairs of their building, but I’m afraid to call the police cz I am over stayer Add is: Sek Kai house, Blok 10 35/F No. 3517.”

8.  Juvy testified that W was crying when she received W’s complaint by telephone of having been “raped by a male Pakistani”.  Also, she confirmed having received the text message from W.  As a result, having made contact with the Director of the shelter, arrangements were made for the applicant to be met at an MTR station.  Juvy sent a text to the applicant, “Just wait Mhae @ Kwai Chung mtr.”  There is no such MTR station, so W went by taxi to Kwai Hing MTR station, where she met Ms Edna Mae who escorted her to the shelter in Jordan.  There, she met Juvy, who testified that W was crying and that W hugged her.  W said that she had been raped and that her vagina was bleeding and painful.  She agreed that W was emotional.

9.  W testified that, having discussed with Juvy what she should do, she decided to report the matter to the police and was escorted to Kwai Chung Police Station by Ms Edna Mae.  After she had lodged her complaint of rape, W was examined by a forensic pathologist and then taken to Princess Margaret Hospital where she was examined by a gynaecologist.  The former, Dr Mok, testified to having found various injuries to her private parts, including a split wound to the vulva, abrasions on her labia minor and abrasions with contact bleeding inside her vagina.  However, he found no external injuries to any other part of her body.

10.  The applicant was arrested for the rape of W shortly before midnight on 30 May 2010.  In answer to the words of caution, DPC 290 said that the applicant replied in Cantonese, “Sir, that person is a friend of mine.  I did not know that she was not willing to make love with me”.  In answer to specific questions, the applicant said that he had taken a shower and was not willing to be physically examined by the police.  The officer made a post record of the conversation at 01:35 on 31 May 2010 which record was read to the applicant with the help of an interpreter in Urdu later at about 3:00 p.m. in the afternoon, after which the applicant wrote out a declaration, inter alia, that the written record of those events was true.

The defence case

11.  The applicant gave evidence in the defence case and called his wife and another witness.  He said that he had first met W in January 2010 when he was working at a friend’s shop.  Thereafter, they met perhaps seven times, sometimes at McDonald’s or at places near the MTR station, and became familiar with one another.  His wife came to know W.  The applicant said that W was present in the family home on Sunday, 30 May 2010, not as a domestic helper but merely as a visitor.  The applicant said that his wife told him on Saturday, 29 May 2010 that W had telephoned her to say that she would visit the family home the following day.  Having arrived at the family home W was entertained with first breakfast and then lunch.  His wife confirmed that account.

12.  In the afternoon, the applicant’s wife and daughter had gone out shopping to buy the latter shoes.  After they had left, W asked him if he could help her out with some money.  The applicant said that he agreed to do so.  Then, his wife called out asking him to go outside the flat and pick up a mirror that had been discarded.  He did so and on his return to the flat eventually went into the master bedroom.  There, W approached him from behind and embraced him around his waist placing her head on his back, telling him how grateful she was.  Then, she moved her hands to touch his private parts.  Intimacies followed and, having been reassured by W that his son was watching cartoons in another room, they each took off their clothes and sexual intercourse ensued.  At first, he had difficulty in entering her vagina and was told by W, “Don’t do it so fast.  I’m a virgin”.  He ejaculated, as a result of which the sheets were soiled.

13.  Because they thought they heard sounds of the applicant’s wife returning they dressed hurriedly and straightened out the bedding.  However, that proved to be a false alarm and W took the opportunity to press him to give her some money, asking for $15,000.  When he showed her his empty wallet W protested that he was reneging on his earlier promise to help her.  Nevertheless, the applicant said that he promised her that later he would go with her and withdraw some money for her from an ATM machine.  Shortly afterwards, the applicant’s wife returned and, whilst he was having a shower, W left the flat.  However, he had told W that he would meet her outside later.  At no stage had he stopped her from leaving the premises or threatened her.

14.  The applicant testified that when he was arrested there were difficulties in communicating with the police in Cantonese.  Having been told simply that the allegation for which he was arrested was that he had raped a girl who had visited earlier, taking that to be a reference to W, he denied having committed rape and said in English, “She’s my friend.  Why did she go to the police?”  He had not said what the Police attributed to him.  He agreed that he had told one of the police officers that he had taken a bath.  However, the context of the issue of a doctor was a question asked of him as to whether he wanted to see doctor, not if he was willing to be examined by one.

GROUNDS OF APPEAL AGAINST CONVICTION

15.  Issue was taken with the judge’s directions to the jury in respect of both W’s distressed condition and her recent complaint of rape.

Distress

16.  Of the direction in respect of distress, it was submitted that, although the judge had directed the jury to have regard to whether or not her distressed condition was feigned, rather than being genuine, the judge had failed to identify the evidence relevant to that issue.  Further, it was contended that the judge had misdirected the jury on the drawing of inferences from evidence of distress.

Recent complaint

17.  Of the judge’s directions in respect of recent complaint, it was submitted that he erred in directing the jury that Juvy’s evidence was substantially different from that of W in respect of how W came to be in the master bedroom and whether or not the bedsheets were changed after W had sexual intercourse with the applicant.  It was not for the judge to direct the jury on findings of fact.  Further, it suggested that in other respects Juvy’s evidence of the complaint that she received from W was consistent with the evidence of W.  In the course of her oral submissions, whilst acknowledging that it was not a ground of appeal, nevertheless Mrs Panesar contended that the judge had erred in not directing the jury to ignore the evidence of recent complaint.

Consent and honest belief

18.  It was submitted that, given the prosecution evidence of the applicant’s response to being cautioned for rape, in particular that he “did not know she was not willing to make love with me”, the judge ought to have directed the jury as to the applicant’s state of mind and belief in respect of that issue.  Further, the judge erred in failing to direct the jury as to the meaning of consent in the context of rape.  Next, the judge was wrong to have directed the jury that if they accepted the evidence of W, the applicant would have known that W was not consenting to sexual intercourse.  Finally, it was contended that the judge erred in directing the jury in respect of W that, “Everything depends, you may think, on the truthfulness of her evidence.  There is no such halfway house as the defendant being reckless.”  In effect, the judge was directing the jury that the applicant’s evidence was of no weight in that determination.

The applicant’s understanding of Cantonese

19.  Then, it was submitted that the judge had erred in failing to remind the jury that, in having regard to the applicant’s understanding of what W had said by way of refusing sexual intercourse, they must have regard to the issue of the applicant’s understanding of Cantonese, which was not his mother tongue and whether or not there were ambiguities in the words W said she used.

The applicant’s out-of-court statements

20.  It was submitted that the judge erred in not directing the jury to have regard to the issue of voluntariness and weight to be attached to the applicant’s alleged oral admissions after caution, which were subsequently post recorded.  Further, given that the applicant testified that he had not made the oral statement in the terms attributed to him, the judge erred in saying that he had maintained “this version or account of what took place inside the flat”.  Also, it was suggested that the version that DPC 290 had noted in his police notebook varied from that which he testified were the words said by the applicant.

21.  Next, it was contended that the judge erred in admitting into evidence the statements attributed to the applicant that he had taken a shower and refused to be examined by the police.  They had no probative value, but were highly prejudicial.  Such directions as the judge gave did not cure the prejudice.

The applicant’s alleged threats

22.  It was submitted that the judge had failed to give any direction to the jury as to how they should treat the evidence of W that she had been threatened when she attempted to leave the flat.

Summing-up: unfair and unbalanced; ‘lurking doubt’

23.  Finally, it was submitted that the summing-up was unfair and unbalanced and that there was a lurking doubt as to the safety of the conviction.

A CONSIDERATION OF THE SUBMISSIONS

Distress

24.  In respect of the evidence of W’s distress, the judge directed the jury that it was of no relevance unless they were sure of two things:

“ (a) the condition was not feigned or falsely made up; and

(b)   there was a causal connection between this condition and the alleged offence.”

In answering those questions, the jury was directed that, having regard to W’s maturity and age, they should consider:

“ …the time interval between the alleged offence and the time the complainant was seen to be in a distressed condition; the conduct and appearance of the complainant and the events affecting the complainant during this interval; the circumstances existing when the complainant was observed or seen to be in a distressed condition; and whether the complainant expected to be seen....”

25.  As Mrs Panesar acknowledged, in identifying the two central issues and directing the jury to the evidence relevant to resolution of those issues, the judge adopted the Judicial Studies Board’s Specimen Direction 30.  Indeed, the language used by the judge in addressing those issues is taken verbatim from the judgment of Li CJ in Leung Chi Keung v HKSAR (2004) 7 HKCFAR 526 at 540 C-F, paragraphs 28 and 29.

26.  That the judge had not directed the jury to have regard specifically to particular circumstances, as relevant to the issue of whether or not the distress was feigned or falsely made up, reflects the fact that no such suggestion was made in cross-examination of W or in counsel’s closing speech on behalf of the applicant, other than a brief reference to the text message sent by W to Juvy.  Of that, the jury was merely asked to have regard to the grammar and punctuation of the text message in the context of whether or not W was in such an emotional state.

27.  Nevertheless, in reminding the jury of W’s evidence, the judge did draw to the attention of the jury matters that were clearly relevant to whether or not W had a motive to make a false allegation of rape and to feign distress.  Having reminded the jury that W’s visa expired on 16 April 2010, the judge said:

“ From that day onwards, she was no longer legally employable. In fact, she was not supposed to remain in Hong Kong, which explained why she was both penniless and could not stay in the shelter house. The shelter house she could only go to if she was in trouble, such as when she was terminated or having a labour dispute, or after reporting a rape case, pending trial, like now. Before that, she did not even have a return ticket to Indonesia, and had to stay in a Mong Kok boarding house.”

We have no doubt that the jury would have realised readily the relevance of those matters to the issues of a fabricated allegation of rape and to feigned distress.

28.  Of the submission that one matter relevant to the issue of feigning distress was W’s fear of the adverse reaction of her family and friends to learning that she had had sexual intercourse with a man who was not her husband, Mr Tam is correct to point out that there was no relevant evidence.  Certainly, it was not a matter that was put to W in cross-examination.

29.  Of the use to which the jury could put a finding that that they were sure W’s distressed condition was genuine, having regard to the two issues that he had identified, the judge directed the jury that it was for them to give such weight to the evidence as they saw fit:

“ At the highest, you may - I’m not saying you should, but you may - think it supports (W’s) claim that she was raped and that the defendant was the one who did it, but it’s a matter for you.” [Italics added.]

30.  Obviously, the judge’s direction was that the evidence was supporting evidence, no more.  Clearly, that direction was correct.  Certainly, he did not direct the jury that it was a matter from which alone they could infer the applicant’s guilt of the offence charged.  Once again, the language used by the judge resonated with the judgment of Li CJ in Leung Chi Keung (see page 540 G-I, paragraph 31).

Recent complaint

31.  The contention made on behalf of the applicant that the judge’s identification of two aspects of Juvy’s evidence, of the complaint she received from W, as being “completely different” from the complainant’s evidence of the account that she had said to Juvy, “suggest that those were the only differences” is demonstrably not borne out, if regard is had to the context in which the judge gave those directions.  He reminded the jury that it was Juvy’s evidence that, when she and W met at the shelter in the early evening of 30 May 2010, W:

“ ... emotionally, (W) described what happened to her for 25 minutes. Amongst other things, she said her vagina was bleeding. The rest Juvy could not now remember, but you may think that in itself is already enough to contradict (W’s) evidence that she gave them no details.” [Italics added.]

32.  Then, the judge went on to identify the two particular pieces of evidence, namely that a Pakistani man had taken her into the room and that he had removed the bedsheet after sexual intercourse, describing them as “completely different” from W’s account of her complaint to Juvy.

33.  In drawing those matters in the evidence to the attention of the jury, the judge was not taking away from the jury their responsibility to make findings of fact and determinations of the weight to be given to such findings.  Having directed the jury that evidence of recent complaint was not independent evidence as to what actually happened, the judge directed the jury that the evidence was put before them so that they could determine, if W had been consistent in her account, whether “she is more likely to be truthful”.  Then, the jury were directed:

“ In the end, it is for you to decide whether these complaints can help you in the way I described…”

34.  There is no merit in these criticisms of the judge’s summing up.

Consent and honest belief

35.  As the judge made plain in his summing up, there was no issue that sexual intercourse had taken place between the applicant and W.  The central issue in the trial was whether W had consented to sexual intercourse.  W said that she had not: she told the applicant “Don’t do that to me!”; when he persisted, she resisted physically and screamed; and sexual intercourse took place only because he overpowered her.  The applicant testified that not only had W readily consented to sexual intercourse, removing her own clothing, but also she was the one who had initiated intimacies.

36.  Of the issue of the applicant’s understanding of what W had said to him in Cantonese at the material time it is to be noted that in his evidence he said that having been in Hong Kong for 15 years, during which time he had worked on construction sites, he understood more Cantonese than he spoke.  Also, he said that he could speak some English, although Urdu was the language of the three with which he was most familiar.  He communicated with the applicant in Cantonese and English.  Her command of both the dialect and the language was better than his own.

37.  The judge reminded the jury that DPC 290 had said that the applicant had spoken to him at the applicant’s home on 30 May 2010 in “fluent and accentless Cantonese”.

38.  The judge directed the jury to have regard in particular to the issues that arose, namely did W consent to sexual intercourse; if not, did the applicant know that to be the case?

39.  It was in that context, the judge directed the jury:

“ …the question of recklessness does not arise in this case. Either W has told the truth, so the defendant must know her lack of consent; or she lied and was a consenting party to the intercourse. Everything depends, you may think, on the truthfulness of her evidence. There is no such halfway house as the defendant being reckless. Recklessness is not an issue that needs worry you.”

Moments earlier, he had directed the jury:

“ In the end, if you think it is or may be the case that W did consent to the intercourse, then put an end to the matter and find the defendant not guilty.”

Moreover, that suggested approach to the evidence resonated with the submission made to the jury by counsel for the applicant in his closing speech, in which he said of W, “…it’s a case which basically pivots on her credibility and reliability”.

40.  Clearly, in directing the jury that “Everything depends on the truthfulness of her evidence”, the judge was not directing the jury to ignore the evidence of the applicant.  Earlier, the judge had directed the jury in respect of the evidence adduced in the defence case:

“ …if a defence is put forward that is or may be correct, then you must acquit, for that would mean that the prosecution has failed to prove its case beyond reasonable doubt.”

The judge repeated that direction at the conclusion of his summing up.

41.  Although the judge directed the jury in terms with respect to “a defence”, clearly the jury was being asked to have regard to the evidence of the applicant, in particular that, whilst sexual intercourse had taken place between the two of them, W consented to that happening.  In those circumstances, whilst it would have been better if the judge had referred specifically to the evidence of the applicant as being the evidence to which the direction referred (see Specimen Direction 44 A), we are satisfied that the jury would have understood that to be the case in any event.

Recklessness

42.  Sensibly, in his closing speech for the applicant Mr Delaney accepted that, having regard to the evidence, the issue of recklessness was not relevant to the jury’s consideration :

“ In this case, it may be - and obviously subject entirely to his Lordship - it may be, given her evidence of this forceful assault, that recklessness doesn’t play a part here because if you believe her, if you sure you can believe her on that, okay, then it’s absolutely manifestly obvious to anybody that she’s not consenting. So, in other words, you may not have to concern yourself about the issue of recklessness.” [Italics added.]

43.  Nevertheless, Mrs Panesar submitted that, given the answer after caution attributed by the police officer to the applicant, in particular, “I did not know she was not willing to make love with me”, the issue of an honest but mistaken belief in the applicant that W was consenting to sexual intercourse arose.  She contended that the judge had erred in not giving the jury a direction to the effect that if the applicant held a genuine but mistaken belief that W consented to sexual intercourse he was to be acquitted.

44.  Section 118(4) of the Crimes Ordinance, Cap. 221 provides that in considering the issue of whether or not a man believed that a woman was consenting to sexual intercourse, “the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed.”

45.  In HKSAR v Mak Kin Yiu [2008] 3 HKLRD 655 this court, differently constituted, examined the authorities in England and Wales and in this jurisdiction relevant to the issue and concluded that (paragraph 15):

“ ...whenever the court gave a direction on ‘genuine belief’, there were some special elements in the case that warranted such a direction.”

Earlier, the court cited with approval (paragraph 14) the judgment of the Court of Appeal of England and Wales in R v Adkins [2002] 2 All ER 185, in support of the proposition that such a direction was necessary “...only where there was room for a defence of a mistaken belief that the victim had consented to the intercourse”.  In the judgment of the court in Adkins, Roch LJ said (page 191C) :

“ Such a direction need only be given when the evidence in the case is such that there is room for the possibility of a genuine mistaken belief that the victim was consenting. In our view that accords with basic principle that the jury should not be subjected to unnecessary and irrelevant directions.”

46.  There was no room on the evidence in the instant case for the possibility in the applicant of a genuine mistaken belief.  The judge was correct to invite the jury to view the answer to caution made by the applicant, if they accepted the prosecution evidence, as :

“ It admits to sexual intercourse, but it denies rape. ‘I did not know she was not willing’. It is a denial.”

47.  In context, that evidence did not give rise to the issue of a genuine mistaken belief in the applicant.  The applicant did not suggest otherwise in his evidence nor was that suggestion made in the closing speech made on his behalf.  It is to be noted, that in his evidence the applicant testified that when he was told that he was to be arrested for having committed a rape, he said:

“ What rape? I do not accept any rape. I have not committed any rape.”

48.  There is no merit in the submission that the judge erred in not directing the jury further as to the meaning of ‘consent’ in the context of rape.  The issue was simple.  On the one hand the effect of the evidence of W was clear: her lack of consent was evidenced by her oral refusal to engage in sexual intercourse, followed by physical resistance together with her screaming.  No further elucidation of the term was required.  The issue was whether or not the jury accepted that evidence or whether or not they found that the applicant’s evidence was or may be true.

The applicant’s answers to questions after arrest and caution

49.  Although objection was made by Mrs Panesar to the admissibility into evidence of the applicant’s answer to caution and his answers to subsequent questions, no such objection was taken at trial.  Of the answers to subsequent questions, it is contended that the prejudicial effect of the material outweighs its probative value and that the prejudicial effect was not cured by the directions given by the judge.

50.  Apparently in consequence of the applicant’s testimony, in cross-examination only, the judge ruled at the close of evidence that the applicant’s oral statement and the subsequent record of interview “were both voluntarily made”.  In the record of interview, which was conducted on the afternoon of 31 May 2010, the applicant confirmed the accuracy of DPC 290’s notebook record of the applicant’s oral statements after arrest and caution.  In cross-examination, the applicant said repeatedly that during the making of the record of interview his mind was “numb” because he had not slept.  In particular, he said that he had not slept for 38 hours.  Also, he said repeatedly that he had told police officers, “I need a lawyer.  He was …unhappy because there was no lawyer.”

51.  It is to be noted that although DPC 290 was cross-examined at some length, including in respect of the circumstances in which the record interview was conducted, it was never suggested to him that the applicant had repeatedly said that he needed to see a lawyer or that he appeared to be numb from lack of sleep.  Nothing turns on the suggested difference between the police officer’s notebook record of the applicant’s answer to caution and his oral evidence of the same issue.  In the latter, at the request of counsel for the applicant, DPC 290 was testifying without recourse to his contemporaneous note in his notebook of events that happened one year previously.  In any event, the suggested difference in the second sentence was of no significance: the notebook entry read “I didn’t know she was not willing to make love with me”, whilst DPC 290’s oral testimony was, “I didn’t know she wouldn’t let me make love with her”.

52.  Having suggested to the jury that the applicant’s answer that he had taken a shower before the arrival of the police late on the night of May 2010 was not an unusual thing to have done before retiring to bed, the judge directed the jury that they were not to hold against the applicant his refusal to be examined physically by the police.  The judge said:

“ Any person suspected of a criminal offence or charged with one is entitled to say nothing when asked questions about it. This is what we call the right to silence, and it includes the right to not submit oneself to the tests and examination of the authorities.”

53.  In all those circumstances, there is no merit in the submission that the judge erred in admitting the evidence of the oral statements made by the applicant at the time of his arrest and caution or of the subsequent record of interview in which those statements were confirmed. The judge’s careful specific direction to the jury not to make any finding adverse to the applicant in light of his refusal to submit to an examination by the police, it being his right to do so, was entirely appropriate.

54.  Furthermore, the judge gave the jury appropriate directions as to their approach to the impugned oral statement and the making of the record of interview.  They were reminded that it was the applicant’s case that DPC 290 had unfairly summarised his answers to caution.  There were language difficulties between them.  Of the record of interview, the jury was reminded that the applicant had said that he was tired and that he needed a lawyer, but that he had been ignored.  The jury was directed to ignore the evidence of the oral admission and the record of interview, “…if you conclude that the defendant’s complaint is or may be correct.”

Unfair and unbalanced summing up / ‘lurking doubt’

55.  The submission made by Mrs Panesar that the judge’s summing was unfair and unbalanced, in particular that he failed to direct the jury on matters of favourable to the applicant, is wholly without merit.

56.  The judge reminded the jury at considerable length of the evidence relevant to the earlier report of a rape, said to have taken place on 1 April 2009, which the applicant had lodged with the police only in October 2009.  The ‘rape’ had taken place in a Mong Kok hotel, in which she had gone merely to give a massage to a man whom she had met 2½ months earlier.  She explained the delay in making the complaint on the basis that the man had promised to contact her afterwards, but had failed to do so.  She explained that she had withdrawn that complaint in December 2009, because her “mood had recovered” and she wanted to get on with her work.  Of that, the judge had observed to the jury, “Interesting attitude, interesting development…”.  Clearly, the judge’s observation was an invitation to the jury to be skeptical of that evidence.

57.  Counsel for the applicant having reminded the jury of W’s use of the shelter on earlier occasions and of her circumstances in late May 2010 in his closing submissions to the jury, the judge summarised succinctly the evidence relevant to those issues.  He reminded the jury (see above paragraph 27) that prior to her complaint of rape, although penniless, given her unlawful status in Hong Kong she was unable to resume residence in the shelter.  The fact of her complaint of rape permitted her to seek refuge again in the shelter.

58.  Further, although objection has been taken in this court, the judge’s directions in respect of the inconsistencies between the evidence of Juvy and the complainant as to her complaint of rape and the attendant circumstances were in truth powerful directions in favour of the applicant.

59.  Similarly, the judge reminded the jury in detail of the contrast between W’s account of violence done to her by the applicant and the absence of injuries discerned on her body, other than her private parts, by doctors who examined her subsequently.  Although the bump to her head at the onset of the attack on her was painful, it left no discernible injury.  Further, she had chosen not to tell the doctors about it even though they had asked if she suffered any other injury.  No injuries have been found to her wrists or to her thighs, although the applicant said that one or both of her wrists had been held tightly by the applicant at different stages of her rape and that she had seen resulting blue marks.  W said that, after her pants had been pulled down, the applicant had used his knees to apply pressure to her thighs to prise them apart.

60.  Towards the end of the summing up the judge repeated his direction as to the burden and standard of proof.  Similarly, having reminded them that if the “defence is or may be incorrect” the prosecution would have failed to prove their case, the judge went on to conclude his summing up by giving the jury a warning in respect of allegations made by alleged victims of sexual cases:

“ Experience has shown that alleged victims of sexual complaints sometimes do lie. They do so for a variety of reasons and such allegations are easy to make and frequently difficult to challenge, even by an entirely innocent person, particularly whether the crux of the matter there is only the evidence of the complainant to go on. So you must be careful.”

Lurking doubt

61.  In the judgment of the Privy Council, delivered by Lord Steyn, in the Queen v Kwong Kin Hung [1997] HKLRD 15 Widgery LJ’s oft-quoted phrase ‘lurking doubt’ (R v Cooper (Sean) [1969] 1 QB 267 at 271 C-G), as to the safety of the conviction, was said to fall within the ambit of the statutory words, namely “unsafe and unsatisfactory”.  The majority of the Court of Appeal had rejected the submission “that the jury acted perversely in relying on the uncorroborated evidence” of two sisters, victims of two rapes committed at the same time and place, “...so that there must be a lurking doubt as to the guilt of the applicant”.

62.  There was no dispute that there were discrepancies and inconsistencies in the accounts of the two sisters.  However, as Lord Steyn observed, “…those flaws in the prosecution evidence need to be examined in the light of a common thread in the evidence of the sisters”.  One element of that common thread was to be found, as Lord Steyn observed, in the fact that (page 16 J) , “...each sister insisted throughout in evidence that they had been raped in turn.”  Of the trial judge’s summing up, Lord Steyn said, (page 17 D), “…it was plainly a summing up carefully designed to guide the jury towards an acquittal on both counts.”  Of the jury’s verdict, Lord Steyn noted, (page 17 E), “Not heeding the guidance of the trial judge they convicted the appellant on both counts.”

63.  The majority’s rejection of the submission that the jury had acted perversely was described by Lord Steyn as being “shorthand for saying that there was evidence on which a properly directed jury (as this jury was) could conscientiously have convicted”.  Clearly, in those circumstances the integrity of the jury’s verdict was to be respected.

64.  The jury was properly directed in the instant case by the judge, who exposed the frailties of the complainant’s evidence in his comprehensive summing-up.  Having been properly directed by the judge, in our judgment there was evidence on which the jury could conscientiously convict the applicant.

Conclusion

65.  In the result, we were satisfied that there are no merits in the proposed grounds of appeal against conviction.  Accordingly the application for leave to appeal against conviction was refused.