R. v. YEUNG KIT YUNG and Another

IN THE COURT OF APPEAL

1993, No. 15
(Criminal)

____________

_______________

J U D G M E N T

_______________

Penlington J.A. :

1. This is the judgment of the court.

2. On 21st of December 1992 the applicants YEUNG Kit-yung (D1) and LO Kit-shing (D3) were convicted by Stock J. and a jury on counts of rape. In the case of D1 there were 2 counts. The first was for raping a young lady, "the victim", in which another accused, FOK Tung-hoi (D2), was also indicted for assisting in that rape. It was ruled by Stock J. that D2 had no case to answer on that count and he was acquitted by direction. The second count was against all three accused and the basis for it was that D2 raped the victim, assisted by D1 and D3. All accused were convicted on that count.

3. There was a 3rd count against all accused of possession of an imitation firearm. D2 and D3 were found to have no case to answer on that charge and the jury was

directed to acquit them, which they did. The jury was not so directed in respect of D1 but acquitted him on the evidence before them.

4. D1 and D3 now apply for leave to appeal against the convictions.

5. D1 was sentenced to 5 years' imprisonment in respect of the first rape and 9 years and 6 months in respect of the second count. He seeks leave to appeal against those sentences.

Background

6. The evidence of the victim was that on the 22nd of September 1991, when she was 16 years of age, she went to a party at the Hong Kong Cricket Club with her boy friend, CHENG Ming-kin. At about 1 a.m. she left the party and went to Causeway Bay with her boy friend where they became separated. She then made her way to Wanchai Pier and went to a 7-Eleven convenience shop where she bought four cans of beer. She then went towards the ferry where she sat down and consumed three of the cans. Not surprisingly in view of the amount of liquor that she had previously consumed, she became dizzy and went to sleep. Her evidence was that the next thing she knew was waking up to find herself on a bed in a flat. She was naked and there was a man on top of her having intercourse with her. She started struggling and shouted at the man to stop but he did not do so. Instead he put his hand over her mouth and she said that she could feel there were "some other men around trying to hold me down". She said that the lighting conditions in the flat at that time were sufficient for her to get a clear look at the man who was on top of her and on the 30th of September at an identification parade she identified D1 as that person. After that she said that D2 also had intercourse with her, despite her resistance, during which D1 held her head between his thighs, threatened her if she continued to resist and gagged her mouth with a towel which was brought by a third man. Eventually when both men the victim said had intercourse with her had finished it was almost daybreak and she then saw them looking for their clothes which they then put on. She also got dressed. There was also present a third man who suggested that he take her to Kowloon, to which she agreed. She said that she was very confused and tired at this stage. This third man was HUI Tin-lai (Hui) who gave evidence for the Crown under an immunity. His evidence supported that of the victim but clearly he was an accomplice and could not afford legal corroboration. The victim also gave evidence that there was another man present, D3. She said she thought he was near her legs when she was raped by D2 but she could not see clearly.

7. At about 1 p.m. on the 22nd of September the victim, having gone home, said she received a telephone call from her boy friend who asked what had happened to her last night. He then said that in fact he knew already what had happened and the victim then said to him "last night I was gang-raped." Eventually on the 25th of September she made a report to the Police.

8. The victim said that in addition to the three cans of beer that she consumed at the Wanchai Pier she had two cans at the Cricket Club and she had also taken some pills which had been prescribed for her by her doctor.

9. It was put to her on behalf of D1 that he was not present when any rape took place; that he entered the flat, which was his own residence, in the early hours of the 23rd September and found the victim together with D2, D3 and Hui. The victim threatened to report D2 to the Police and D1 in order to calm her down offered her two $500 bank notes which she refused. She said that was an insult which made her become very angry with D1. It was put to her that she was mistaken in her identification of D1 as the man who had the first intercourse with her. She was not cross-examined by counsel for D3.

10. Evidence was given by the accomplice Hui that on the 22nd of September 1991, which was Mid-Autumn Festival, he was drinking with some friends and eventually they finished up at the Wanchai Pier. He saw D1 talking to a girl and then he together with D2 and D3 went to D1's flat at 82 Java Road, North Point. D2 had a key of the premises and they entered. About 10 to 15 minutes later D1 arrived with the girl who had also been drinking. He identified her as the victim. D1 then removed her clothing, without any resistance, and he also then disrobed and turned off the light in the lounge although one was left on in the kitchen. A Hi-Fi set was turned on and D1 then had intercourse with the girl. When he finished he asked Hui if he also wanted to have intercourse with her but he declined. However D2 took off his clothing and he then also had intercourse with the girl. Prior to this the girl's head and legs were turned round on the bed. He gave evidence that during this second act of the intercourse the girl's head was held by D1. He also said that during that second act the girl started to struggle and D3 went to the bed "near where the girl's legs were".

11. When the second act of intercourse were concluded the victim got up and burst into tears. D1 then switched on the light and he and D2 got dressed. Shortly afterwards he assisted the victim to put on her clothes. D1 then offered her $1000 which she refused. The group then left the flat and he took the victim to Kowloon, using money provided by D1.

12. A statement made by D3 was produced which had been recorded by a Police Officer in the presence of D3's father. In that statement D3 said that he went back to the flat from the Wanchai Pier together with D2 and Hui. He then went to sleep. He woke up when he heard a women shouting for help and said that he saw D1 sitting by a girl's head and that D2 was on top of her. The girl was struggling and shouted for help. Hui then gave D1 a towel which D1 used to gag the girl's mouth. However she managed to free her right hand from D1's grasp and "YEUNG Kit-yung then told me to catch hold of the right hand of that girl. After I had caught hold of the right hand of that girl I let YEUNG Kit-yung hold it back." He then went on to say that D1 produced a gun and again he told him to hold of the right hand of the girl. After that the girl did not struggle any more and "YEUNG Kit-yung let go his left hand which had pressed on that girl and I also let go my right hand which had grasped hold of that girl."

13. There was agreed evidence from people who were living in adjoining accommodation at 82 Java Road to say that on the night in question they did not hear any unusual noises coming from the flat in which the rapes were alleged to have taken place. There was, however, loud noise from a hi-fi set.

14. D1 gave evidence in which he said that he met the victim at the Wanchai Pier. He was accompanied by D2, Hui and D3. The girl had clearly been drinking and she was holding a can of beer. D2 suggested that she came home with them but he then went off with a man he called Tony with whom he had had a telephone conversation. They went to have a night snack at premises known as the Kar Chuk Club in Johnson Road, Wanchai. There they met another man called Ah Kinn and they had some drinks together. Eventually he got a taxi home, arriving at about 5:15. He found the girl together with D2, Hui and D3 in his flat. The girl was very angry with D2 and at his suggestion D1 offered to pay her $1,000. To this she reacted violently and said that he, D1, was treating her as a prostitute. The girl and Hui then left. Hui borrowed $200 from D1 in order to go back to Kowloon.

15. Evidence was given on behalf of D1 by CHEUNG Po-tan who said that he spoke by phone to D1 at about 2:30 a.m. on the 23rd of September and they arranged to meet at the Wanchai Pier. He said he was known to D1 as Tony. He saw a young girl in the group together with D1 but then he and D1 then went off to the Kar Chuk Club where they met Ah Kinn. That was at about 4 o'clock. D1 left the Club at 5:15 a.m.

16. Finally evidence was given by D2 who simply said that he had drunk so much on the evening in question that he could not remember anything of what happened. He said that the first thing he knew after he had left the Wanchai Pier was waking up in the flat in the afternoon of 23rd of September.

Grounds of appeal

17. It was argued on behalf of D1 that the judge wrongly commented on the victim's evidence saying that perhaps she had some score to settle with him and was "targeting her venom against him." This was wrong in that it was never the case for D1 that the girl was deliberately telling lies about him but that she simply was mistaken in her identification. However as there was evidence of D1 offering the victim the $1,000 which she strongly resented this was an aspect which the judge was perfectly entitled to comment on. Even if the question of malice was not raised by the defence, the judge should direct the jury upon it if he considered that it was relevant.

18. It is further argued that the judge wrongly allowed evidence to be given of the telephone conversation between the victim and her boy friend, CHENG Ming-kin, because this complaint had been made as a result of leading questions put to her by Cheng. Her evidence on this was as follows:

"Q. On the 23rd of September at about 1 o'clock did your boy friend CHENG Ming-in telephone.

A. Yes

Q. Who spoke first?

A. he did.

Q. What did he say?

A. What has happened to you?"

"Q. Did he say anything else?

A. I say 'nothing' then he said ' I have already known what happened to you last night.'

Q. What happened then?

A. I paused for a while then I said 'Last night I was gang-raped'.

Q. What then?

A. Then he said 'by who'. I said ' I don't know'."

In cross-examination she also said that Cheng asked her who had raped her and she said she did not know.

19. That does not seem to us to offend against the principle that evidence of a complaint should not be given if it was not made at the first opportunity or was elucidated by a leading question. R v. Osbourne 1905 1 K.B. 551. Indeed it would seem that, in light of the defence of D1 that the victim was mistaken in her identity, it was, if anything, evidence in his support.

20. The third ground relied on is that the judge failed to give a proper direction regarding the way in which the jury should consider the identification of D1 by the victim. Reliance placed on R v Turnbull 1977 Q.B.224. The judge said to the jury as regards the victim's identification evidence:

"You must examine her identification with care particularly cause we know that she did not know this man. She hadn't met him before and particularly because of what we know about the lighting conditions and her condition when she brought back to the flat. Examine carefully then the circumstances in which her identification was made. How long did she have the man who was on top of her and then later on holding her head between his legs under observation? At what distance? She has told us, remember, by the very nature of things when the intercourse was taking place the man was close and the intercourse took place over a period of some minutes. What was the lighting like? We will come to that in a moment. Was there anything that interfered with her observation? Had she ever seen this person before? We know she hadn't. We also know that she identified him at identification parade about a week later."

21. The judge then went on to outline the evidence relating to the events that took place and reminded the jury that the victim's evidence was that the light was sufficient for her to have a clear look at the man on top of her. She said that following the alleged intercourse the light was turned on and clearly she could then get a very good view of the men who were in the room. This, according to her evidence, was before anybody put their clothes back on.

22. We are quite satisfied that this was not a "fleeting glimpse" situation and that a Turnbull direction was not required. Even if that was not so the judge has given a clear and thorough direction on the question of identification.

23. It was then argued that there was no proper direction as to discrepancies between the evidence of the victim and that given by Hui, in particular as to what the victim was doing during the first rape and the role paid by Hui in both rapes. Having considered the evidence which we have been referred to we are satisfied that the summing-up fully covered this evidence and nothing further was required.

24. It is a further ground of appeal by D1 that the judge did not sufficiently put his case to the jury and in particularly failed to refer sufficiently to the evidence of CHEUNG Po-tan who corroborated D1 and who emerged unscathed from cross-examination. We have considered the direction given by the judge in relation to this evidence. He repeated the substance of it and reminded the jury that Cheung's evidence closely coincided with that of D1. He said it was entirely a matter for the jury as to whether they accepted the evidence or not. We do not consider that any complaint can be made of the judge's direction as to Cheung's evidence.

25. It was argued that the judge should not have admitted the statement made by D3 which was prejudicial to D1 in that D3 said he had intercourse with the victim. This particularly so since D1's own statement had been held inadmissible. Again we do not consider this ground of appeal has been made out. The judge directed the jury that the way in which they should consider the statement of D3 was as follows:

"Now remember please and is very important that you remember that this statement and what is in it if you accept what is in it is true is not evidence against the 1st defendant or against the 2nd defendant because it is not evidence by the man in court and when he is making the statement out of court, the 1st defendant and the 2nd defendant were not there and they were not there to defend themselves against these allegations and that is an essential reason why we have this rule of law. Look at that statement by all means and ask yourself 'did he make it and is it true?' And if you think it is true, act on it, but only act on in relation to the 3rd defendant. It is only evidence against himself."

26. We are satisfied this was a perfectly adequate direction as to the manner in which the jury should consider the statement of D3 and that they must have fully realised that it was not evidence against D1.

27. It was a further ground of appeal that the judge wrongly commented on D1's evidence insofar as it affected D2 and that the jury may have taken these comments as throwing doubts on D1's credibility. We are satisfied that the comments made were perfectly proper and that the judge was required to advise the jury that they should look with some suspicion on the evidence of D1 as it affected D2 because clearly he was endeavouring to put the blame for what had happened on D2 and avoid it himself.

28. It is also argued that there was a failure to fully direct the jury as to the agreed evidence of the next-door neighbours that they heard no shouts or sounds of struggle. Again however the judge told the jury that such evidence was before them and that it was not challenged. It was for them to consider in the light all the other evidences and, in particular, that the hi-fi was on and that at some stage the victim's mouth was gagged with a towel.

29. Finally it was argued that the judge did not give a proper direction as to the manner in which the jury should treat the evidence of the victim in relation to the pills which she had taken which might have made her identification evidence unreliable. Clearly however the jury was fully aware that the girl had taken a large quantity of alcohol and some pills. They must also have been aware that she was in a poor condition and would have considered that in relation to her identification evidence. Again, we find nothing in this ground of appeal.

30. We are satisfied that the application by D1 for leave to appeal against conviction must be refused.

31. It is argued on behalf of D3 that in light of the evidence of the victim and of Hui the judge should have withdrawn D3's statement from the jury because that statement was inconsistent with the evidence given by the victim and Hui.

32. D3's statement was taken in the presence of his father and was a clear admission that he was present and conscious in the flat at the time when the second alleged rape took place, though he denied that he himself raped the victim. While morally his conduct was totally reprehensible to found a conviction for rape there must be evidence that he did more than simply look on and failed to take any action to prevent the other men doing what they did. As far as that is concerned the relevant part of his statement related to holding the victim's hand. He said "I also saw that the said girl struggle and shouted for help". So YEUNG Kit-yung told HUI Ting-lai to take a towel to him. I saw that HUI Ting-lai then took a towel to YEUNG Kit-yung from the wall near the door. Then YEUNG Kit-yung gagged the mouth of that girl with the towel. Then that girl struggled there and managed to free her right hand from YEUNG Kit-yung's grasp. YEUNG Kit-yung then told me to catch hold of the right hand of that girl. After I had caught hold of the right hand of that girl then I let YEUNG Kit-yung hold it back. Then YEUNG Kit-yung told HUI Ting-lai to get a gun from the upper deck of the bunk bed and give it to him." Later on he said "that girl then did not struggle any more and said 'you let me put on my clothes and leave' then YEUNG Kit-yung let go his left hand which had pressed on that girl and I also let go my right hand which had grasped hold of that girl."

33. It is argued that such evidence is in conflict with both the evidence of the victim and of Hui in that they said that D3 was holding her legs or anyway was in the vicinity of her legs, not her hands. It is also argued that the judge was wrong to leave to the jury two mutually exclusive accounts of the alleged assistance given by D3 in the second rape.

34. It is quite true that the evidence by the victim and Hui was that D3 was in the vicinity of the victim's legs but as far as the victim herself was concerned clearly her situation was that she could not be sure exactly where anybody was except the person who was actually having intercourse with her or, in the case of D1, holding her head during the second alleged rape. While Hui does not refer to D3 holding the victim's hand we do not consider that his evidence is such that the jury was not entitled to consider the evidence contained in D3's own statement that, at D1's request, he had held the victim's right arm while she was being raped by D2.

35. It is also a ground of appeal for D3 that as there were two different versions of the assistance allegedly given by D3 in the second rape that the jury should have been told they must be satisfied as to which version was correct i.e. either he was holding her legs or her hand. Reliance is placed on R v Brown 1984 79 C.A.R. 115. That was a case involving fraudulent statements and it was a question of which one of those statements had influenced the victim into purchasing shares. It was held that the jury should have been directed that, subject to the standard majority direction, they should be satisfied as to which inducement was the one which had acted on the mind of the victim. We do not think that the facts here are within the principles laid down in Brown. Clearly the only evidence upon which the jury could have convicted D3 was his own statement. There was no evidence against him from the victim apart from his presence and Hui said he was in the vicinity of the victim's legs. The jury was, however, entitled to rely on D3's own statement as to his part in the second rape.

36. It is further complained that the judge was wrong at the end of the cross-examination and re-examination of the victim to ask her whether she saw anybody other than D2 at the time of the second rape. The answer given was "there was another one who was near where my legs were stopped. I couldn't see." It is further argued that answer should not have been repeated to the jury during the judge's summing up. We do not see any reason why that should not have been mentioned to the jury to make what they might of it. It did not take the Crown's case against D3 any further.

37. We are satisfied that none of the grounds of appeal raised and argued on behalf of D3 are such as to make his conviction unsafe or unsatisfactory and his application for leave to appeal against conviction is also refused.

Sentence

38. D1 appeals against the sentences passed upon him; these were 5 years in respect of the first count of rape and 9½ years in respect of the second one, the sentences to be concurrent. It is argued that these sentences are manifestly excessive taking into account the fact that D1 was only 17 years and 10 months at the time of the offence and that D3, who was convicted with D1 on the second count received a sentence of 2 years probation. D2 who actually carried out the second rape received only 8 years and he was somewhat older than D1, being 21 at the time of offence. It is also submitted that the judge failed to give proper regard to D1's background when imposing the sentences that he did.

39. It is quite true that D1 was a young man at the time this offence was committed but he seems to be a person who is considerably more mature than the average man of his age. He did receive a more severe sentence than D2 but we are satisfied the evidence shows that he was the ring-leader in this whole appalling incident in which a young girl, obviously totally helpless due to the consumption of alcohol, was taken back to D1's home and there treated in the manner which she has described, in particular that she was held down and gagged by D1 while D2 raped her. D1 has a list of previous convictions including offences of assault and possession of offensive weapons. While there are no convictions of a sexual nature certainly he cannot point to anything remotely like a clear record.

40. Some reliance also was placed on a probation report which stated that D1 had been spoiled by his parents and had not been given any proper guidance or discipline at home. That is of course all too often the case. We do not however consider those were factors which the judge has not taken into account for what they are worth.

41. Severe though these sentences are we are not satisfied they are such as justify our interference. These were appalling crimes and the victim was treated in a way which called for severe punishment. The application for leave to appeal against sentence is also refused.