KWAN CHI WING v. HKSAR

FAMC No. 44 of 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 44 OF 2009 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 201 OF 2008)

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Between:

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ :

1.  Going to a karaoke lounge and expecting to have sex in return for a payment by him of money, this applicant was introduced by a woman to a 17‑year-old girl. He was charged with raping that girl. She said in evidence that they had performed intimate acts and that he had penetrated her against her expressed wishes. His evidence, on the other hand, was that she had agreed to have sexual intercourse with him in return for $500.

2.  In the result, the jury convicted him of rape. His conviction was affirmed by the Court of Appeal, and he now seeks leave to appeal to the Court of Final Appeal.

3.  One of the judge’s directions to the jury was a direction on recklessness. The judge directed the jury to the effect that the applicant could be found guilty of rape on the basis of recklessness if they felt sure that he did not know or care whether the girl was consenting or not, but carried on regardless – in other words, that he could not have cared less whether she consented or not. This direction was criticised before the Court of Appeal by counsel for the applicant. But the Court of Appeal rejected the criticism, holding that the direction was consistent with previous decisions of that court and also with the approach to recklessness approved by the Court of Final Appeal.

4.  For the purposes of an appeal to the Court of Final Appeal, the applicant sought certification of a point of law under the “point of law” limb of s.32(2) of the Court’s statute. The Court of Appeal were persuaded to certify such a point, being the one contained in this question :

“Does a person charged with rape act recklessly, as that term is defined in HKSAR v Sin Kam Wah (2005) 8 HKCFAR 192, in having sexual intercourse with the complainant if he does not know and does not care whether she is consenting, but carries on regardless.  In other words that his state of mind was that he could not have cared less.”

5.  That question, and therefore the point which it embodies, is obviously an important one. But it is equally obvious that the answer is “Yes”. The contrary is simply not reasonably arguable, for the state of mind which the direction describes falls plainly within the concept of recklessness.

6.  Failing leave to appeal on the question certified by the Court of Appeal, the applicant seeks certification by this Committee of another point and leave to appeal to the Court of Final Appeal in order to pursue that other point. The other point is to the effect that even if the direction in the present case were otherwise acceptable, an additional direction on recklessness is necessary where, as counsel for the appellant puts it, “the commercial circumstance of the offence may lead a man to be less wary of the issue of consent than he might otherwise be.”

7.  In the alternative to certification of that other point and leave to appeal on it, the applicant seeks leave to appeal on the “substantial and grave injustice” limb of s.32(2). The argument thereunder is that it was a departure from accepted norms sufficient to warrant an appeal to the Court of Final Appeal not to have given an additional direction such as the one indicated by the further point. Counsel for the applicant recognises that seeking leave under the “substantial and grave injustice” limb is just an alternative to seeking certification of the other point and involves nothing different in substance.

8.  Quite simply, there is no accepted norm to the effect of giving an additional direction such as the one contended for. Nor is it reasonably arguable that there ought to be such a direction. What is put forward as “the commercial circumstances of the offence” is no more and no less than the circumstances in the context of which the jury would inevitably have approached a direction on recklessness. Jury directions are not academic statements of the law but are, as juries understand, meant to assist them in arriving at a true verdict according to the evidence. The evidence in this case includes that of what has been described on the applicant’s behalf as “the commercial circumstances of the offence”.

9.  In the result, there is no basis for leave to appeal, whether on one limb or the other and whether on one basis or the other of the arguments put forward on behalf of the applicant. Leave to appeal is therefore refused.