HKSAR v. CHOW KAM WAH

CAC C 456/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 456 OF 2010

(ON APPEAL FROM HCCC NO. 80 OF 2010)

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BETWEEN

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

Introduction

1.  This applicant was tried by Barnes J and a jury upon an indictment containing five counts: three of procuring a woman to do an unlawful sexual act by false pretences contrary to section 120 (1) of the Crimes Ordinance Cap 200; and two of rape.  On 8 November 2010 he was convicted of the false pretences charges and of one of the charges of rape and sentenced to a total of 11 years’ imprisonment.  He now seeks leave to appeal both conviction and sentence.

2.  He is represented by Mr Poon in relation to conviction and by Mr Percy in relation to sentence: this oddity stems from the refusal of legal aid in relation to conviction but its grant in relation to sentence.

The evidence

3.  The events in question took place in 2009.  The applicant was then aged 51 years and the complainant a 19-year-old described by the judge in her sentencing remarks as naive and superstitious.

4.  It is unnecessary for the purposes of this appeal to go into great detail as to the contending issues of fact which were thoroughly aired at trial and rehearsed most comprehensively in the summing-up.

5.  It suffices to say that at the material time the applicant lived in public housing in Tin Shiu Wai, and the complainant lived nearby.  How they came to meet each other and how their relationship developed was the subject of wholly contradictory evidence by the two.

6.  There was testimony from the complainant as well as from her stepmother that she was superstitious and believed in ghosts and that there was a ghost following her.  Her case was that the applicant came to know this and offered to exorcise the ghost.

7.  The young lady believed him and in consequence of that belief visited his home on three occasions between 1 March and 31 May 2009 for him to perform an exorcism ritual.  There, according to her testimony, he burned incense, made hand signs and stamped his feet, blindfolded her and asked her to lie face down whereafter he removed her clothing and had sexual intercourse with her.  She baulked at intercourse but reluctantly submitted herself to it believing the applicant’s representations that intercourse was necessary to make the exorcism effective.

8.  Later in the year, in September 2009, according to the complainant’s evidence, the applicant met and drove her to places to collect her wages.  Thereafter on the pretext of driving her home he took a detour and drove her to a deserted place in Tuen Mun where, in his car, he forced himself upon her and raped her.  She was at the time menstruating, a fact supported by the medical examination shortly thereafter conducted on her; and on none of these occasions of sexual intercourse did the applicant wear a condom.

9.  Immediately after the September incident the complainant, in distress, reported what had happened both to her boyfriend and to a girlfriend.  A report was then made to the police and the applicant was arrested.

10.  The applicant testified at trial.  He admitted sexual intercourse with the complainant on all the occasions alleged by her but asserted that it was consensual each time, with no talk of ghosts or exorcism and no representations by him which induced her to acts of sex.  Rather, according to his account, she was regularly in debt and borrowed money from him, said that she wished to earn money from prostitution and had encouraged him to sexual intercourse in consideration of him foregoing money which she owed him or in order to secure further loans from him.

11.  In relation to each of the counts upon which the applicant was convicted, the jury returned a unanimous verdict of guilty.

The unarguable grounds

12.  There are three grounds of appeal against conviction.

13.  The first is that the judge failed in not directing the jury adequately or at all as to the effect of certain aspects of her proved conduct upon her credibility.  It suffices to say in respect of this ground that the fact that the complainant took drugs from time to time was well before the jury as was the fact that on one or more occasions she took money from her stepmother when she was in need without telling her stepmother; but in the latter regard the stepmother did not take too serious a view of the matter. There was also evidence of the family’s concern that the complainant associated with some undesirable persons at the estate where she lived.

14.  All of this was thoroughly rehearsed and the judge made amply clear that the question of the complainant’s credibility was a central issue.  It is relevant to note that at the end of a lengthy summing-up the trial judge specifically asked experienced counsel (Mr Percy, who appears before us as to sentence) whether there were any matters arising from her summing-up in respect of which counsel wished to raise comment and although counsel mentioned one or two matters which he wished to be corrected, there was no complaint about the directions in relation to credibility or a suggestion that the judge should give a direction along lines now suggested.  That no doubt was because it was recognized that a direction along those lines would be crossing i’s and dotting t’s because the point was plain enough without it.  There is nothing in this ground. 

15.  Buried in the written submissions is a supplementary ground to the effect that the judge invited the jury to consider as a fact rather than as an issue in contention that the complainant was a superstitious person.  This ground depends on cherry picking sentences out of context of the summing-up as a whole.  The judge expressly directed the jury to consider whether the complainant was superstitious and that it was for them to decide whether she was a naive superstitious girl such that she believed promises of exorcism.

16.  The next ground is also unmeritorious.  It alleges that the judge failed to give a sufficient direction in respect of the continuous contact which the applicant and the complainant apparently had between the first and fifth alleged incidents.  This evidence was in fact different as between applicant and complainant but, that fact apart, the possible relevance of this suggested continuous contact emerges clearly from the summing-up : the judge specifically drew attention to the suggestion of continuous contact after the first three alleged offences as being of central importance: namely, was the complainant actively associating with the applicant seeking money or assistance from him or, conversely, was she scared of him and actively trying to avoid him; the implication of continuous contact being perfectly clear.  

The issue of motive

17.  The only ground that we deem arguable in relation to conviction is that which complains about the judge’s direction about motive towards the end of the summing-up.

18.  The judge said this:

“I just want to remind you what was the exact relationship between the two, the defendant and [the complainant]. You might think that what the exact relationship between [the complainant] and the defendant throughout this whole period in which the five incidents covered by the five counts is of importance in this case. Was their relationship such that [the complainant] was scared of the defendant, after coming to believe that he was connected to a triad, that she was actively trying to avoid the defendant and only associated with him when she had no choice? Or she was actively associating with him, seeking money and assistance from him from time to time, up to the car incident?

….

The main thing is, from all these witnesses, you have heard conflicting evidence about whether they were together, they were not together whether [the complainant] actively seek out the defendant or not actively seeking out the defendant, only sort of incidental because all the others were there: you heard all this conflicting evidence. You will have to decide, at the end of the day, what was really the relationship between these two people throughout this whole period.

No motives have been shown as to why [the complainant] made the allegation against the defendant. No motives have been shown. She was not asked,“Because you want to take revenge or whatever,” she was not asked. You are not to speculate as to whether she had any motive, or what those motives were. Your task is to assess her evidence together with all the evidence in this case, to decide whether you find her evidence credible and reliable. I have to remind you again that, although the defendant now faces five counts, she only made a report of one incident. It was only through the police questioning that she related the earlier incidents before. That might help you to consider why she made the report on that day. She told you the reason, she could not accept it any more, that is why she asked a trusted friend for advice, went to the police station. Do you believe her? Is that the reason why, on this occasion, she reported to the police? Is she telling you the truth? Or she is not telling the truth at all? She is making all this up. She actually had sex with the defendant for money every time and for reasons only known to herself, she decided to come here and fabricate all these incidents against the defendant.” (Emphasis added)

19.  As framed in the grounds of appeal, the complaint is that the judge “erred in not directing the jury that there was no duty on the applicant to prove any motive on the part of complainant.”

20.  The question of a motive for false allegations on the part of the complainant first emerged in cross-examination of the applicant.  No suggestion had been made to the complainant by counsel for the applicant at trial (Mr Percy) that she had a motive to lie or what that motive might be.  However, in cross-examination, the applicant volunteered the suggestion that it had occurred to him that she may have made a report to the police because he had refused to lend her $50,000 to pay for an abortion sought by one of her friends; an incident which in her evidence she denied altogether.  The applicant conceded that it was speculation on his part.

21.  Later in the course of cross-examination of the applicant, it was put to him that he had said that after sexual intercourse had taken place in the motor vehicle, the complainant had been smiling so that, on that basis, there appeared to be no motive to make a subsequent complaint to the police, to which comment the applicant offered no contrary suggestion.

22.  In his closing speech to the jury, counsel for the prosecution suggested that no motive had been shown for false allegations against the applicant.  However, counsel for the applicant in his closing submissions did not take up the applicant’s speculation about the supposed disappointment or anger at the failure to provide money for the friend’s abortion but suggested, again as a matter of speculation, that perhaps the complainant was so emotionally weighed down by cumulative shame at her own conduct, that she “cracked” and made a false allegation against the applicant.

23.  In Wong Kwok Wang Warren v HKSAR (2009) 12 HKCFAR 218 at 235, Chan PJ warned of a danger to which even permissible cross-examination of an accused as to motive of a witness to lie might give rise, namely, that the jury might be led into thinking that the accused carried a burden to show motive and therefore, where that danger arose, it was important for the jury to be reminded that the accused was not required to prove any motive to lie on the part of a witness; rather, it was for the prosecution to satisfy them that the witness was telling the truth.  “In most cases,” said Chan PJ “I do not think specific directions are required.”  The question in any one case is whether the jury could have been led into believing that the accused was obliged to show that the witness had a motive to lie.  In the Warren Wong case, given the trial judge’s repeated directions on the burden and standard of proof and on the absence of any onus on that appellant to prove anything, the danger, so the Court held, did not arise.

24.  We are satisfied that the same holds true in the present case.  The judge gave regular directions to the jury that they could only convict if they were sure of the truth of the complainant’s complaints and, in particular, not only did the judge tell the jury that the burden of proving the applicant’s guilt was on the prosecution, “always on the prosecution”; but also that the applicant “does not have to prove anything” (a phrase also used by prosecuting counsel in his closing speech) and that if what the applicant said in his evidence might be true he was entitled to an acquittal.  It would, we think, in this case (as in all cases where motive is raised as an issue), have been better for the judge to have given a specific direction that the applicant had no burden to prove a motive but we are satisfied that the directions in fact provided obviated the danger that the jury would think otherwise.

25.  Although not raised by Mr Poon as an aspect of his complaint, we were concerned about the judge’s direction that the jury was not to speculate “as to whether she had any motive or what those motives were”, for motive had been raised and it was a matter relevant for the jury to consider, given especially that credibility was the central issue.  However, it seems to us that the judge was suggesting that motive, if raised, was a question of evidence upon which conclusions or doubt might be based; and since no suggestion had been made to the complainant as to motive, no motive on her part had been established.  We think that it would have been better had the judge drawn the attention of the jury to the hints at motive that had emerged but the failure to do so is ultimately in this case not fatal because, first, no suggested motive was put to the complainant; second, the suggestion advanced by the applicant as to possible motive was not taken up by defence counsel in his speech, so we can take it that he thought little of it on behalf of his client; and, further, counsel – who in fact made suggestions at the end of the summing-up as to corrections that were to be considered – made no complaint to the trial judge about this passage so we can take it that it did not strike him, in the context of all he had just heard, as reversing the onus.  But in any event, the judge did not exclude the jury from considering whether the complainant had lied; to the contrary, in the passage immediately following the passage we have emphasised at paragraph 18 above, she invited them to consider whether for a reason known only to herself (and indeed, only the complainant would know why she lied, if she did) she was not telling the truth.  So, at the end of the day we do not see this as a ground that succeeds.

Conclusion as to conviction

26.  Accordingly, although we grant the applicant leave to appeal conviction and treat the hearing of the application as the appeal, we dismiss the appeal.

Sentence

27.  At the time of these offences the applicant was aged 51 years.  There were two previous convictions: the first in 2006 for unlawful possession of dutiable goods; and the second in 2008 for criminal intimidation – neither of which was used by the judge in aggravation of sentence and she was correct not to do so.

28.  In relation to the sentences for the three offences of procuring another person by false representation to do an unlawful sexual act – for which the maximum sentence in respect of any one offence is 5 years’ imprisonment, she took a starting point of 2 years’ imprisonment for the first offence; and 2½ years’ imprisonment for each of the second and third offences, a larger starting point because they were repeat offences during a short time span.  Since there were no mitigating factors, those were the sentences which she passed for the first three offences.  She took the view that 5 years’ imprisonment was appropriate by way of totality, so she ordered the sentence on the second count to run concurrently with that imposed for the first and ordered the sentence on the third count to run concurrently to that imposed on the first but consecutively to that imposed in relation to the second, making a total of 5 years’ imprisonment for those three offences.

29.  In respect of the rape offence, she did not explain, as she ought, what starting point she adopted before adding for aggravating features; though she made reference to the starting point suggested by R v Billam [1986] 1 WLR 349 noting, however, that there were Hong Kong cases which permitted a departure from the Billam guidelines to take into account local conditions.

30.  The judge had before her the report of a clinical psychologist which described the complainant and the significant psychological impact which the offences had occasioned her.  The complainant was still haunted, in November 2010, by memories of “the traumatic scenes related to the offence” and she suffered recurrent frightening dreams and occasions of intense distress.  She had become socially withdrawn and was worried about the possibility of revenge against her, so much so that she had moved from the area in which she had lived.  The report also spoke of inhibited cognitive capacity, a rather simplistic and unsophisticated young lady vulnerable to exploitation; characteristics which obviously emerged at trial and characteristics which the applicant had knowingly exploited.  The judge took this impact into account as an aggravating factor; rightly so.

31.  The judge further, and again correctly, took into account as an aggravating feature the fact that the applicant had failed on the occasion in question to use a condom and had ejaculated inside the complainant thus subjecting her to the risk of sexually transmitted disease and pregnancy.

32.  These aggravating features took her to what she described as a starting point of 8½ years imprisonment and that is the sentence which she imposed for the rape offence.  There were no mitigating features to detract from that sentence, so that is the sentence which she imposed for that offence.

33.  She then ordered 6 years of that term to run consecutively to the 5 years imposed for the first, second and third offences, the remainder to run concurrently, making a total of 11 years’ imprisonment.

34.  In relation to the procurement by false representation offences, Mr Percy’s real complaint is totality and in this regard he prays in aid the fact that the three offences took place within a period of three months.

35.  He drew to our attention a relatively recent decision HKSAR v Au Yeung Kwok Fu, 1 February 2012, unreported, in which this Court, differently constituted, imposed, by way of reduction of sentence, a total of 5 years’ imprisonment after trial upon a defendant who had committed no fewer than nine such offences on an 18-year-old girl.  He had posed as a Mao Shan master supposedly able to improve the girl’s luck in securing employment.  He required her as part of a ritual on each occasion to perform oral sex on him and to engage in sexual intercourse with him.  The sexual intercourse on each occasion was unprotected.  On the last occasion, she made it clear that she did not want to have oral sex or intercourse and the judgment says that “the applicant disregarded and forcedly had intercourse with her” though why that did not result in a charge of rape, we are not able to say.  Be that as it may, the defendant’s conduct in that case caused this 18-year-old to fall pregnant and she underwent an abortion; DNA testing showed that the defendant was the father.  The case was brought in the District Court – why not in the High Court, we cannot say – and the trial judge sentenced the defendant to 6 years 9 months’ imprisonment.  The Court of Appeal reduced the sentence to one of 5 years’ imprisonment, expressing the view that the overall sentence of 6 years 9 months’ imprisonment imposed in the court below was manifestly excessive.

36.  It may well be that that Court had information not appropriate for disclosure in the judgment which warranted the reduction in question, since it  is otherwise, with great respect, difficult to see upon what basis 5 years’ imprisonment was appropriate; for if 5 years’ imprisonment were justified after trial for nine such offences, on an 18-year-old girl, with unprotected sex, resulting in a pregnancy and an abortion, it would follow that much less would be justified upon a plea; still less if there were but one offence; less still if there were no pregnancy; and less again, if there had not been the added indignity of oral sex.  We do not see this as a case which should be used as a precedent for future sentencing for this category of offence.

37.  We were concerned lest the judge had double counted in taking into account for the sentences on the second and third offences the fact of the first offence whilst at the same time making the sentence for the third offence wholly consecutive to the second; and, similarly, whether the judge had double counted when taking into account as an aggravating feature for the sentence for the rape offence, the fact that the rape followed the indignities of the earlier offences whilst at the same time taking that into account in arriving at totality.  What we think the judge has done is to say that the second and subsequent offences constituted indignity upon indignity, as indeed they did; but in assessing whether the totality was manifestly excessive, we bear in mind the imperative against double counting.

38.  The offences of which the applicant was convicted were grossly serious offences committed by a mature man who posed as a father figure to a group of young men and women at the estate where he lived and we are satisfied that it was entirely clear to him that the complainant was a naive and vulnerable person.  He exploited that vulnerability and in respect of each of the offences, that exploitation is a serious aggravating feature which renders the sentences imposed in relation to counts 1, 2 and 3 low; as does the fact that intercourse with her was unprotected.  One has only to read her evidence to see how traumatised and ashamed she was by reason of these offences committed by a man who kept telling her not to tell anyone about what was happening.  We are satisfied that the totality of five years’ imprisonment in relation to the first three offences cannot be said to be manifestly excessive.

39.  In relation to the rape, the aggravating features to which the judge referred were indeed all present, as was the fact that he raped her whilst she was menstruating, a fact that added to the indignity to which he condemned her.

40.  The sentence of 8½ years imprisonment and the totality of 11 years’ imprisonment was, in each case, on the high side but, in our judgment, not manifestly excessive.

41.  Accordingly, the application for leave to appeal against sentence is dismissed.