SUNG KWOK MAN and Another v. R.

IN THE COURT OF APPEAL

1993, No. 426
(Criminal)

- Headnote -

Sentence: Billam (1986)82 Cr.App.R.347: The factors which should be borne in mind by sentencing judges relating to the circumstances of rape are the same in Hong Kong as those in England. However, the courts in Hong Kong are not bound by the Billam guidelines in respect of quantum of sentence.

IN THE COURT OF APPEAL

1993, No. 426
(Criminal)

___________

_____________________

JUDGMENT OF THE COURT

_____________________

Macdougall, V.-P.:

1. The applicants stood trial before His Honour Judge Daniell sitting as a deputy judge of the High Court and a jury on an indictment containing four counts.

2. The first and second counts were against the second applicant alone. The first count alleged that on 1 April 1992 at Tuen Mun Highway he and other persons robbed one Madam Tai of cash, her bank account book and her bank card. The second count alleged that he and other persons stole $6000, the property of the Hong Kong bank.

3. The third and fourth counts were against both applicants. The third count alleged that on 11 April 1992 at Pat Heung they and other persons raped one Madam Ng. The fourth count alleged that they robbed her of a ring, a watch and $6000 cash.

4. The jury returned unanimous verdicts of guilty on all counts. The first applicant ("A1") received concurrent sentences of 18 years and 8 years respectively, and the second applicant ("A2") was sentenced to concurrent sentences of 8 years and 4 years respectively on the first and second counts and to concurrent sentences of 15 and 8 years respectively on the third and fourth counts.

5. Their respective overall sentences were therefore 18 and 23 years' imprisonment.

6. They both sought leave to appeal against conviction and sentence. These applications were refused. We now give our reasons.

7. Regarding the first two counts Madam Tai testified that she was driving her car home at 4 am when she was intercepted by a car in which there were several men. Two of the men leaped out of their car and boarded Madam Tai's car. One of the men, whom she subsequently identified at an identification parade held on 29 May that year as A2, held a knife at her throat and forcibly removed her from the driver's seat to the rear compartment of her car where he sat next to her. The interior light of the car was switched on while the two men rifled her handbag and stole the items referred to in the first count. They then forced her to divulge the personal identity number in conjunction with which she used her credit card to operate an automatic teller machine to withdraw cash from her bank. The number was written down and passed to the other two men who had remained in the intercepting car.

8. Madam Tai was then driven around in her own car for some forty five minutes while the men in the other car went to operate her bank card. During those forty five minutes A2 was seated beside Madam Tai in the rear compartment of her car and she had a very good view of his face. For approximately fifty per cent of that time the interior of the car was illuminated by street lighting. Moreover, the interior light of the car had been switched on for some ten minutes when the men had been searching through the contents of her handbag. She had been unable, however, to obtain a good view of the features of the man who drove her car around awaiting the return of the accomplices.

9. Eventually the other car returned. A2 and his companion then left Madam Tai's car, threw the keys to her and departed in the other car. At the identification parade Madam Tai identified A2 after having looked at the line up for only a few seconds.

10. Madam Ng testified that at 1.30am on 11 April she was driving her car to her home in Tsuen Wan when, as she was approaching Belvedere Garden, she was intercepted by a car carrying four men. As she was attempting to reverse her car one of the men, who was armed with a hammer, entered the front compartment and sat in the passenger seat alongside her. He forced her to open the driver's door to a man who was tapping on the window of that door with a knife. The second man bundled her out of the driver's seat into the rear compartment of her car. A third man from the intercepting car then came over and sat in the driver's seat of Madam Ng's car.

11. Madam Ng testified that the man armed with the hammer was A2 and the man with the knife was A1, and that she had had a clear view of their faces as they entered her car. Despite the circumstances she was sufficiently composed to take a mental note of the registration number of the intercepting car and was able, but for one letter in the prefix, to recall it accurately after the horrendous ordeal which followed.

12. After she had been forced into the rear compartment the interior light of the car was switched on while the contents of her handbag were being examined. She was able to get another clear view both of A1's features as he sat beside her and of A2's features as he turned around to talk.

13. When Madam Ng told the robbers that she could not remember the personal identification number for her bank card all three men in the car threatened her with gang rape unless she divulged it.

14. She was then driven to a refuse tip. In the course of that journey she was forced to duck her head down from time to time. At the refuse tip the drivers of both cars and A2 alighted and held a conference for about ten minutes in front of her car during which time they were illuminated by the light from its headlights.

15. While the discussion was being carried on the interior light of the car was illuminated and A1 remained next to Madam Ng in the rear compartment. He offered her a cigarette and as he used a lighter to light it she paid particular attention to his features. Through a half opened window she could hear the other three men discussing gang rape.

16. When they returned to the car they produced a towel which they had obtained from their own car and used it to blindfold Madam Ng. They then drove off towards Tsuen Wan. Madam Ng was able to peep out from under the blindfold to see the direction in which the car was being driven. During the course of the journey she was again told that if she did not help them to operate an automatic teller machine they would gang rape her.

17. In her desperation Madam Ng made several calls over her portable telephone in an attempt to raise money. Eventually she managed to contact a lady friend. During the course of the conversation with the friend one of the robbers snatched the telephone from her and accused her of speaking too much. Shortly afterwards the lady friend telephoned Madam Ng telling her that she would withdraw $6000 for her and asking how she would pay the money to her.

18. The three men then told her that they would no longer be satisfied with $6000 and that they required a few tens of thousands of dollars. Later, as the car reached Tai Mo Shan, they told her that they no longer wanted money and that they were going to gang rape her. When she begged for mercy A1 told her to be silent otherwise he would use two knives to stab her in the genital region.

19. The vehicle was then driven off at high speed to Kap Lung. During the course of the journey the men scolded Madam Ng with foul language and demanded that she take off her clothes. A2 turned around from the front seat and told her that if she did not remove her clothes he would tear them off. With that Madam Ng slowly began to undress. A2 continued to shower abuse on her in foul language and told her that if she continued to strip so slowly they would stab her with two knives and push her in her car down the hill after they had gang raped her.

20. When the car finally came to a halt Madam Ng had removed all her clothing. She begged them to let her go but A2 removed his trousers, entered the back compartment and, while the other three men, including the fourth man who had followed in the other car, were searching Madam Ng's car for valuables, demanded that she perform oral sex on him. After she had submitted to this demand he raped her. He then demanded that she again perform oral sex on him. After she had complied, a second robber demanded that she perform oral sex on him. When she had finished doing so, he too raped her. The third robber made the same demand and, after Madam Ng had submitted, attempted to sodomise her following which he raped her and again demanded that she perform a further act of oral sex on him. The fourth robber also subjected Madam Ng the indignity of performing oral sex on him, after which he too raped her.

21. After this ordeal had come to an end Madam Ng was driven off to Tuen Mun where the robbers left the car, telling her that they had her address and identity card number and that if she reported the matter to the police her whole family would die.

22. On 29 May that year Madam Ng identified A2 at an identification parade. When asked by the officer in charge of the parade whether she was sure of the identification she replied that she was not sure and requested that each man on the parade be asked to say the words "Duck down". Having heard them utter these words, she said that she was sure of her identification of A2.

23. At another parade on 6 June that year she identified A1. When asked by the officer in charge of the parade whether she was sure of that identification she replied in the affirmative but added that she wanted to look at A1's hand so that she could be 200% sure.

24. Mr Stirling, who appeared for A1 in this court but not in the court below, argued two grounds of appeal. First, he submitted that the quality of the evidence identifying A1 as one of the four men was so tenuous that the deputy judge had erred in law by failing to rule at the conclusion of the case for the Crown that A1 had no case to answer on the two counts relating to him.

25. Mr Stirling referred to inconsistencies in Madam Ng's testimony with a statement which she had made to the police. These related to the opportunities that she had had to see the robbers' features during the course of the ordeal which it was not disputed she had undergone. The whole incident occurred over a period exceeding an hour. In our view there was ample evidence on which, if they accepted it, a jury could properly convict the applicants. It was for them to decide what weight to give to her evidence in the light of those inconsistencies. We are entirely satisfied that the judge correctly let the case against each applicant go to the jury. We should add that both Mr Stirling and Mr Keane for A2 readily accepted that the deputy judge gave the jury an unexceptionable Turnbull direction.

26. Mr Stirling's second ground of appeal was that the deputy judge erred in law by failing adequately or at all to direct the jury of the dangers of convicting A1 on the rape count in the absence of corroboration.

27. The deputy judge gave the following direction:

"Normally in cases such as rape and other sexual offences, the judge has to warn the jury of the need to look for corroboration of the complaint and to warn them of the danger of convicting in the absence of corroboration. Corroboration means independent evidence which affects the accused by connecting or linking or tending to connect or link him with the crime. It must be evidence which implicates him, that is which confirms in some material particular not only the evidence that the crime has been committed but also that the defendant committed it.

In the case before us, there is no corroboration, there is no independent evidence which connects either of these defendants with the rape. I mention this to illustrate the importance attached to independent supporting evidence linking the defendants with the crime of rape. In this case there is, as I have said, no independent supporting evidence such as witnesses to the offence, forensic evidence as has been pointed out, firbre contact, DNA and so forth, there is none of that evidence. The rape, though, is formally admitted and is not in issue or dispute. What is very much in dispute is the identity of the offenders, and it is this issue which has taken up so much of the time in this trial."

28. The gist of Mr Stirling's complaint was that by using the word "Normally" there was a danger that the jury might have gained the impression that although, generally speaking, it was dangerous to convict an accused in a rape case in the absence of corroborative evidence, this was not such a case.

29. We do not think that there was the slightest possibility of any reasonable jury coming to that conclusion. It would have been perfectly clear to them that what the deputy judge said had application to the present case. The notion that they might have thought that by giving this direction the deputy judge was simply engaging in an academic exercise that had no application to the case before them is fanciful.

30. Having said that, however, we wish to emphasise that since it was conceded by the defence, and indeed admitted pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221, that Madam Ng had been raped and robbed by four men on 11 April 1992, it was not necessary for the deputy judge to give a corroboration warning in respect of her evidence as to the fact of rape which was not in issue. The only live issue before the jury on the rape count was whether A1 was one of the rapists.

31. We respectfully accept as correct the following statement of the law in the judgment of the Court of Appeal in England in R. v. Chance (1988) 87 Cr.App-R. 398 at 406:-

"Where the identity of the offender is in issue. The situation here seems to us to have been altered by the decision in Turnbull. As already pointed out, that decision (albeit not involving a sexual offence) deliberately avoided introducing the concept of corroboration in the strict sense into the problems of identification. Does the fact that the charge is of a sexual nature make any difference to that approach? There may no doubt be occasions when the sexual nature of the offence casts some doubt upon the complainant's identification evidence or adds to it a further peril, but in our judgment that possibility does not require judges on every occasion to give the usual warning. In the ordinary way a full Turnbull direction is sufficient, despite the sexual nature of the case. In the rare case where the sexual nature of the case may have affected the complainant's identification evidence or where the judge in his discretion considers it advisable, the Turnbull direction should be amplified to include a formal direction as to corroboration, tailored to the particular circumstances of the case."

32. Mr Stirling submitted that the decision in Chance is inconsistent with that of the Privy Council in James v. R. (1971) 55 Cr.App.R.299. The passage on which he placed reliance appears at page 302 of the report:

"Where the charge is of rape, the corroborative evidence must confirm in some material particular that intercourse has taken place and that it has taken place without the woman's consent, and also that the accused was the man who committed the crime. In sexual case, in view of the possibility of error in identification by the complainant, corroborative evidence confirming in a material particular her evidence that the accused was the guilty man is just as important as such evidence confirming that intercourse took place without her consent."

33. However, the ratio of their Lordship's decision is clear from the following passage at page 303:

"True it is that the medical evidence and the evidence of what was found on Miss Hall's clothing and on the articles taken from her bed confirmed her testimony that intercourse with her had taken place on her bed, but there was no medical evidence that the intercourse had taken place without her consent; and the judge directed the jury that, if they accepted that evidence, it could amount to corroboration in the sense in which he had already explained to them that the word was to be understood.

In their Lordships' view, this direction was entirely wrong. Independent evidence that intercourse had taken place is not evidence confirming in some material particular either that the crime of rape had been committed or, if it had been, that it had been committed by the accused. It does not show that the intercourse took place without consent or that the accused was a party to it. There was in this case no evidence capable of amounting to corroboration of Miss Hall's evidence that she had been raped, and raped by the accused. The judge should have told the jury that. His failure to do so was a serious misdirection, so serious as to make it inevitable that the conviction should be quashed."

34. Clearly, where the act of rape is admitted or not disputed the only issue is that of identity. Such a case is therefore no different from a non-sexual case in which the need for a corroboration direction does not arise but that for a Turnbull direction does.Turnbull has received the approval of their Lordships sitting in their appellate capacity both in the House of Lords and the Privy Council. We are entirely satisfied that in the earlier case of James their Lordships did not have in mind a situation such as that in the instant case but, in the passage relied on by Mr Stirling, were merely stating the principle applicable to the usual case where the act of rape itself is denied.

35. Therefore, had the deputy judge not given the corroboration direction which he did we would not have held, in the circumstances of this case, that he was in error.

36. With regard to A2, Mr Keane advanced three specific grounds and the general ground that the convictions were unsafe and unsatisfactory.

37. First, he submitted that the deputy judge erred in failing to give a specific direction that it was incumbent on the Crown to disprove the evidence of an alibi adduced on behalf of A2. A collateral complaint was that the deputy judge directed the jury in terms that suggested that the alibi witnesses had something to prove, thereby leaving the jury with the impression that there was a burden on the defence to establish the defence of alibi.

38. Early in his summing up the deputy judge directed the jury in these terms:

"Please bear clearly in mind the fundamental principle that the burden of proving the guilt of a defendant lies firmly on the prosecution, there is no duty on a defendant to establish his innocence because there is a presumption in law that he is innocent until he is proved to be guilty."

39. Later, he told the jury:

"As counsel have said in their speeches, there is no onus on a defendant to prove anything. But although neither defendant went into the witness box, each of the defendants has made his defence very clear through the cross-examination put to the Crown witnesses by his counsel. In short, it was the case of each defendant that he had been wrongly identified and that these offences had been committed by others not before the court.

On behalf of the 2nd defendant, you will remember that Mr Franklin called Miss Lai. She told you that she was the fiancée of the 2nd defendant and they had lived together, she told you, and she had kept a diary. I think the diary was kept - and I will be corrected if I am wrong - I think it was kept from October 1991 until shortly after the arrest of the 2nd defendant in May 1992. You have that diary before you and those three extracts which cover the periods when these offences occurred.

Now you have seen and heard this witness and will make your own assessment of her evidence. But do bear in mind that Miss Lai is not a professional witness and make allowance for any nervousness you may have noticed. You see, even for professional witnesses such as police officers and others, the exposure to searching cross- examination by experienced counsel can be something of an ordeal, how much more so must it be for a young woman who is a stranger to court procedures? So do take into consideration. You must give the same careful consideration to her evidence as you give to all the other witnesses who gave evidence before you.

You may think, and of course it is a matter for you, that she gave quite a good account of herself in that witness box. I would suggest that the Chinese members of the jury should read the diary, read through all the entries in the diary rather than simply reading those three short extracts in isolation. I think that that would make it easier for all of you to give a proper assessment of the weight you should attach to those parts which serve as an alibi, those of the three extracts."

40. In R. v. Wood (1967)52 Cr.App.R.74 the Court of Appeal in England stated that there is no general rule of law that in every case where an alibi is raised by the defence a particular direction must be given to the jury on the burden of proof; it is only where there is a danger that the jury may think that, because the alibi has been put forward by the defence, the burden lies on the defence to prove it, that there is a duty on the judge to tell the jury specifically that it is for the prosecution to negative the alibi.

41. This was reinforced by another division of the same court in R. v. Anderson [1991] Cr.L.R.361 which, while expressing the view that it was certainly better if a judge, when dealing with an alibi defence, repeated that the burden was on the Crown to disprove it, expressly approved of Wood and reiterated that there was no rule that the judge must give a further specific direction, assuming that he had given an adequate general direction at the commencement of the summing up. That approach is the one that has been adopted by this court.

42. Mr Keane suggested that the current trend in the decisions of appellate courts is to require judges to give specific directions to juries on more matters than had hitherto been the practice. If there be such a trend it is not one which this court intends to follow in the instant case. We do not think that the creation of unnecessary complications and difficulties for those who try criminal cases is a desirable step towards the attainment of justice.

43. In the present case we are of the opinion that there was not the slightest danger that the jury would have thought that there was any burden on the defence to prove the defence of alibi; the judge specifically told them that there was no onus on the applicant to prove anything.

44. Second, Mr Keane submitted that the deputy judge erred in permitting the jury to examine entries in Miss Lai's diary other than the three on which the defence relied to give rise to the defence of alibi.

45. We note with surprise that prosecuting counsel did not object to the defence putting the diary in evidence or in seeking to rely on the three entries to support Miss Lai's oral testimony as to alibi. Moreover, there was no certified translation of the other entries.

46. However, it is clear that the whole diary was put in evidence at the request of defence counsel and that he raised no objection when the deputy judge, in order to enable the jury properly to assess the three entries on which the defence relied, suggested to them that they should read through all the entries which the diary contained. There could therefore be no doubt that defence counsel wanted the jury to examine the other entries.

47. Prosecuting counsel had put to Miss Lai that she had given perjured evidence and had made false entries in her diary to secure the acquittal of her fiancé, the applicant. We think that it was only right that if the jury were to see the three entries on which particular reliance was placed by the defence, they should see all of the other entries in order to assist them in determining whether Miss Lai's testimony might be true.

48. Mr Mullick, who appeared with Mr Keane, submitted that certain entries might have resulted in prejudice to the applicant. He pointed to entries which put the applicant, who was living with Miss Lai, in an unfavourable light by revealing that he had behaved like "an errant husband", kept late hours, associated with other women, had displayed bad temper, had twice struck a pet dog and had been arrested by the police on 20 March as a result of which he had to report to the Tsim Sha Tsui police station three days later.

49. This, however, painted a warts and all picture of the applicant which, it seems, defence counsel at the trial thought had the effect of creating a setting which gave a more genuine appearance to the three entries than if they had been viewed in isolation. This was an entirely reasonable assessment of the situation. However that may be, the decision to tender the entire diary in evidence was one that was made by the defence. The applicant cannot now be heard to complain that the diary did not have the effect of persuading the jury that Miss Lai might possibly have been telling the truth.

50. Lastly, it was contended that A2's convictions are unsafe and unsatisfactory. Although Mr Keane frankly conceded that the judge had properly left the case against A2 to the jury, he submitted that the circumstances of the case were such that this court should be left with a lurking doubt as to the safety of the convictions.

51. In support of this ground he pointed to inconsistencies in Madam Ng's testimony with a statement that she had given to the police as to the weather conditions on that night and the opportunities that had been available to her to see the faces of her attackers. To what extent, if any, these inconsistencies affected Madam Ng's credibility was, however, properly a matter for the jury to decide in the light of their assessment of the explanations given by her and of her testimony overall.

52. Criticism was made of the reliability of Madam Ng's identification of A2 at the identity parade, bearing in mind that she was unable to be sure of her initial visual identification of A2 until she had heard him utter the words "duck down". A further complaint was that there should have been a Turnbull direction in respect of the voice identification.

53. We do not consider that there is any merit in these complaints. It is not necessary that a correct identification be exclusively dependent on visual perception. Indeed, we think that an identification that is founded on more than one human sense is likely to be at least as reliable, if not more so, as one which depends on one sense alone. We are of the opinion that in these circumstances it was not necessary for the deputy judge to do more than give what was conceded to be an unexceptionable general Turnbull direction.

54. As for the contention under this ground that "the identification was poor and made in difficult circumstances" we are satisfied that the jury were perfectly entitled to conclude that during the long period of time during which Madam Ng had been held captive by her attackers and the opportunities which she testified that she had had to see their faces and hear them speak, her identification of A2 was completely reliable. We would and that in assessing Madam Ng's evidence the jury would have been justified in taking into consideration the fact that it was uncontradicted by any evidence from A2 himself.

55. It was for these reasons that the applications for leave to appeal against conviction were refused.

Sentence

56. We now turn to the applications for leave to appeal against sentence. It was contended on behalf of both applicants that the sentences were manifestly excessive and wrong in principle in that the rapes were not the worst of their kind and that no violence other than that associated with the act of rape itself was used.

57. While it is correct to say that this court is in respectful agreement with the Court of Appeal in England in R. v. Billam (1986)82 Cr.App.R.347 as to the relative gravity of different circumstances of rape and the factors which aggravate the crime, it must be borne in mind that the guidelines there laid down as to the proper length of sentence in any particular type of case are no more than general indications of what was considered to be appropriate at that time in England. The courts in Hong Kong are entitled to taken into account local conditions and to pass sentences that vary from those referred to in the Billam sentencing guidelines.

58. We note that passage in R. v. Wong Man Hung CA 480/92 when the Chief Justice in delivering the judgment of the court said, at p2:

"The general sentencing policy of rape cases is authoritatively stated in the well-known case of R. v. Keith Billam [1986]82 Cr.App.R.347. There the Lord Chief Justice suggested five years as a starting point in a contested rape case. He also referred to a number of aggravating factors which would justify a sentencing judge taking a more serious view of the offence".

59. We do not consider this passage as being intended to apply the quantum of the sentences as set out in Billam to the offence of rape in Hong Kong. What was being said in Wong Man Hung was, as has been said in these courts before, that the factors relative to the circumstances of the rape which should be borne in mind by judges in England are equally applicable in Hong Kong.

60. Madam Ng was abducted and held captive by a gang of men who were clearly on the prowl for a victim. A weapon was used to frighten her. She was robbed and threatened with violence. She was subjected to sexual indignities by each of the four robbers before he raped her. One of the men attempted to sodomise her. A1 had previously been convicted of rape in July 1990.

61. The rape and robbery of Madam Ng called for consecutive sentences for each applicant. We think that the deputy judge recognized this fact by passing an overall sentence of 18 years' imprisonment in the case of A1 and of 23 years' imprisonment in the case of A2, who had committed the further offence of robbery of Madam Tai.

62. These are undoubtedly heavy sentences but we think that they were entirely appropriate. Nocturnal marauders who hunt in packs can expect to receive sentences of this severity. The applications for leave to appeal against sentence were therefore refused.