HKSAR v. QASIR JAHANGER

CACC 307 /2018

[2020] HKCA 712

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 307 OF 2018

(ON APPEAL FROM HCCC NO 427 OF 2017)

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R E A S O N S   F O R   J U D G M E N T

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.  The appellant was convicted of a single count of attempted rape, contrary to sections 118(1) and 159G of the Crimes Ordinance, Cap 200, after a trial in the High Court before D’Almada Remedios J (“the judge”) and a jury. Following his unanimous conviction, he was sentenced to 9 years’ imprisonment.

2.  On 17 December 2019, the appellant was granted leave to appeal his conviction by the Single Judge, on the basis that it was reasonably arguable that the judge had failed properly to direct the jury in respect of the limited purpose for which they could make use of an out-of-court statement made to a police officer by the complainant’s husband, who was not subsequently called as a witness at the trial.  Leave to appeal against conviction on all other grounds and against sentence was otherwise refused^[1].

3.  At the conclusion of the hearing of the appeal, we dismissed the appellant’s appeal and said we would hand down our reasons for doing so in due course, which we now do.

The appellant’s representation at trial

4.  The appellant had initially been legally represented for the purposes of his trial.  However, at the end of examination-in-chief of the complainant (“Madam X”), the appellant applied to the judge for the discharge of his then entire legal team, which application was duly granted^[2]; thereafter, he represented himself for the remainder of the trial.  Assistance and guidance was provided to him from time to time by the judge so as to ensure that the appellant would receive a fair trial, even without the benefit of legal representation.

5.  After the appellant had been convicted by the jury, he accepted representation by Mr Sherry for the purpose of mitigation and sentence.  Mr Sherry now appears on his behalf at this appeal, as he did before the Single Judge.

The prosecution case

6.  The attempted rape in question took place during the evening of 10 May 2017, inside a room (“Room A”) of a sub-divided unit in a residential building in Sham Shui Po, Kowloon.  Apart from Room A, there were three other rooms within the same sub-divided unit.  Madam X, who was a 58‑year-old Vietnamese woman, was at the time residing in Room A with her husband, while the appellant, a Form 8 recognizance holder of Pakistani nationality, was living together with two other Form 8 recognizance holders in Room B. 

7.  The prosecution case was that at about 9:10 pm on 10 May 2017, Madam X was alone in Room A when someone knocked on her door.  Believing it to be her husband, she opened the door and was confronted by the appellant.  She immediately tried to close the door, but the appellant forced it open and entered Room A.  He then shut the door and removed all his clothing.  By that time, his penis was already erect. 

8.  Madam X was frightened and immediately retreated onto the bed.  The appellant grabbed hold of her legs and held her down.  He also took off her underpants, pressed her down onto the bed and tried to insert his penis into her vagina.  Madam X described the appellant’s penis as “knocking” against her vagina and the surrounding area with great force[3].  She was crying and shouting out loudly as she struggled with the appellant, by means of pushes and kicks, to prevent him from penetrating her.  Having been thwarted by Madam X’s resistance, the appellant then took hold of his penis and ejaculated onto her clothing, body and bed.  He then left Room A. 

9.  Madam X testified that she immediately latched the door and made a telephone call to her husband, but she was unable to reach him.  Accordingly, having cleaned herself and soaked her night clothes in a basin of water, she dressed and went downstairs to look for him.  When she left the building, she met her husband on the street and told him what had just happened. He then went up and knocked on the appellant’s door, but there was no answer.  A report was duly made to the police, resulting in the appellant’s identification and arrest. 

10.  The identity of the appellant was not in dispute and his semen was confirmed by DNA analysis to have been found on Madam X’s bed.  Upon a medical examination, Madam X was observed to have redness on her breast and her back, as well as a split wound at the area just outside her vagina, consistent with a newly inflicted penetrative wound.  The prosecution case against the appellant, therefore, depended essentially upon Madam X’s account of what had taken place inside Room A. 

11.  In addition to Madam X’s testimony as to the non-consensual sexual advance by the appellant, the prosecution also relied on the evidence of a police officer (“PW5”) to whom Madam X had made a complaint upon arriving at Sham Shui Po Police Station with her husband^[4]. The husband also later provided a written statement to PW5, which detailed what Madam X had said to him about the incident during a telephone call and upon his arrival home.  However, this evidence was not, and could not have been, relied upon by the prosecution as evidence of recent complaint, since the husband was not called to testify.  Indeed, as we shall see, it was not the prosecution who sought to adduce this evidence. 

The appellant’s cross-examination of PW5

12.  In order to highlight apparent inconsistencies between Madam X’s evidence in court and the husband’s out-of-court witness statement in respect of how she first made the complaint to him and where they had met up^[5], the appellant sought to cross-examine PW5 on the contents of the husband’s witness statement^[6]. The judge was clearly aware of the limitations on this course, since the husband was not available to give evidence in court^[7].  Nevertheless, although she voiced her misgivings as to the advantages of doing so[8], she ultimately took the view that the appellant was entitled to cross-examine PW5 on what the husband had told him since he was the statement-taker of the husband^[9], for the sole purpose of showing the inconsistencies between the husband’s account in his witness statement of what Madam X had told him and Madam X’s actual evidence in court^[10].

The defence case^[11]

13.  The appellant elected to testify but called no other witnesses.  He claimed that prior to the present incident, he had had sexual intercourse with Madam X on two previous occasions, both of which he had paid for and were consensual.  He did not dispute that he had entered Room A and had a sexual encounter with Madam X, as a result of which he ejaculated onto the bed.  However, he said he did it at Madam X’s invitation that evening and he had not put his penis anywhere near her vagina.  In summary, he said he had been falsely accused by Madam X. 

The appellant’s perfected grounds of appeal

14.  By his amended perfected grounds of appeal, Mr Sherry complained that the judge was wrong to have allowed PW5 to give evidence of what the husband had told him, since it was plainly hearsay.  He initially argued that what the husband had told PW5 in his out-of-court statement was inadmissible per se, regardless of the reason why the appellant asked for it to be elicited in front of the jury.  Nevertheless, in argument before us, Mr Sherry accepted that PW5 could have been properly cross-examined on the differences between what Madam X told him (on which occasion the husband was also present) and what the husband later told him at the making of his witness statement. What was critical, however, was for the jury to receive proper directions as to how they were to deal with the husband’s reported account.  In this regard, Mr Sherry contended that the judge failed to bring home to the jury (i) that what the husband had claimed his wife had said to him was not evidence of the truth of what happened; and (ii) that the husband’s statement could not constitute a recent complaint from Madam X to her husband.

15.  By his second ground, Mr Sherry submitted that the judge, having erred in admitting the husband’s hearsay statement, compounded the error by leaving the jury to make what they liked of the inconsistencies between Madam X’s evidence and the husband’s statement.  By doing so, the judge had introduced a wholly unnecessary risk of the jury finding that Madam X had become a more credible witness because her version was supported, or otherwise bolstered, by her husband’s hearsay statement. 

The respondent’s reply

16.  Mr Wong, for the respondent, did not accept that the husband’s statement had been admitted for a hearsay purpose.  Rather, it was admitted, at the appellant’s insistence, for the sole purpose of demonstrating the inconsistencies between Madam X’s evidence and her reported complaint to her husband as recorded by PW5, thereby suggesting that Madam X had been untruthful in her account.  The true purpose was apparent from the judge’s recital of the appellant’s closing speech in her summing-up on the issue of Madam X’s credibility.  Further, the only time the judge reminded the jury of what the husband had actually said was when she directed them on how to deal with inconsistent evidence; moreover, she pointed out that, unlike PW5, the husband did not testify in court.  Therefore, it was submitted that the judge had made quite clear to the jury the limited purpose for which the husband’s statement had been admitted before them.

17.  In relation to the first ground of appeal, Mr Wong submitted that the judge, in directing the jury on the law of recent complaint, only directed the jury to consider PW5’s evidence as evidence of Madam X’s recent complaint.  On a plain reading of the summing-up as a whole, the judge did not create any perception in the mind of the jury that the husband’s statement to PW5 amounted to evidence of recent complaint.  The overall effect of the judge’s summing-up was to instruct the jury to have regard to PW5’s evidence only in assessing the consistency of Madam X’s account.

18.  In response to the second ground of appeal, Mr Wong submitted that since the husband’s statement had not been admitted for a hearsay purpose, the judge did not err in asking the jury to consider the inconsistencies between Madam X’s evidence and the husband’s statement of what she told him, as reported by PW5.  She directed the jury clearly that the husband’s statement was only relevant in revealing its inconsistency with Madam X’s account.  She did not invite the jury to use it in an impermissible way.

Discussion

19.  It was the appellant who wanted to introduce the evidence of what the husband had told PW5, so as to show that Madam X’s testimony was inconsistent with what she had told him (the husband) and was, therefore, untrue.  He made that purpose entirely clear in his closing address to the jury[12]:

“I want to bring into your knowledge the statement of Madam X’s husband is different from her evidence. She told different account and her husband told different account and she is not telling the truth. Because her husband’s statement is different and her statement is different.”

Strictly speaking, we do not consider that eliciting from PW5 the fact that Madam X’s husband had told him something different from what Madam X had told him was inadmissible. It was PW5’s evidence that the husband was present at Sham Shui Po Police Station “all along”[13], including the time when Madam X made what was clearly a recent complaint to him: accordingly, he would have known what she was telling the police.  And yet, the husband gave a different account of what she had told him.  It was open to the appellant to make that point: indeed, it was the whole thrust of his case.

20.  Since we are of the view that the appellant was entitled to ask PW5 what the husband had told him about Madam X’s claims, the next question is how the judge left the matter for the jury and whether there was any real risk that they might have adopted an impermissible line of reasoning by treating the report of what the husband said to PW5 as evidence of recent complaint capable of confirming that Madam X did not consent. 

21.  In answering that question, it is necessary to look to the scheme and structure of the judge’s summing-up so far as it relates to the point at issue.  The judge dealt initially with the law governing evidence of recent complaint.  In explaining this concept to the jury, the judge referred only to the evidence of Madam X, briefly describing how she had tried to contact her husband and how she had met him on the street outside the building[14]. The judge then continued to recite Madam X’s evidence of how she and her husband were escorted to Sham Shui Po Police Station, where Madam X made a complaint to PW5[15]. Other evidence established that this complaint was made at 1 am on 11 May 2017. It seems to us that up to this point in her summing-up, the judge was only characterising Madam X’s report to PW5 as evidence constituting a recent complaint.

22.  Having recited the contents of what she told PW5, the judge then explained[16]:

“Now, this complaint itself is not evidence of what actually happened between (Madam) X and the defendant. The evidence that (Madam) X told her husband and/or (PW5) what happened to her shortly after the attempted rape cannot, therefore, as a matter of law, be treated as evidence of the attempted rape. That is, as to how it happened or who committed it. That evidence is not independent of (Madam) X herself. You will know that neither her husband nor (PW5) were present when the alleged rape, attempted rape, happened. They were not there that evening so they cannot give evidence on that. They can only give evidence as to the complaint she, (Madam) X, made to them.” (Emphasis supplied)

23.  Here the judge was making clear that what Madam X told her husband or PW5 could not, as a matter of law, be treated as evidence of how the attempted rape happened, or who committed it; since they could only give evidence of what they were told.

24.  The judge then went on to focus on the evidence of recent complaint by Madam X to PW5[17]:

“In this case, you have the evidence of (PW5) telling you that (Madam) X told him what happened. The relevance of what (Madam) X said happened to (PW5), if you accept that (Madam) X told him that, is that it may show her conduct after the attempted rape was consistent with her evidence about it. That complaint may possibly help you on the question whether you can be sure that she has told you the truth, so it may help you decide if what (Madam) X said is the truth. The prosecution would have said that the complaint is entirely consistent with somebody who has attempted to rape her, that she should make the complaint a short time afterwards. So it is likely that (Madam) X was telling you the truth about what happened that night because she went on to complain to (PW5) almost immediately after the incident.” (Emphasis supplied)

This passage is significant because it only identifies what Madam X told PW5 as evidence of recent complaint: it does not say that the jury could rely on what Madam X reportedly told her husband as evidence of recent complaint.  And as Mr Sherry conceded, this passage is unimpeachable.

25.  If one looks at the above two passages together and in sequence, we can see that the judge was focusing the jury’s mind on the recent complaint made by Madam X to PW5.  It is true that the judge did also refer at the end of the first passage to the fact that PW5 and the husband were not present at the time of the alleged offence, could not, therefore, speak to that matter and could “only give evidence as to the complaint she, (Madam) X, made to them”.  However, the judge had already made clear in the early part of the first passage that what Madam X told her husband or PW5 could not be treated as evidence of how the offence happened or who committed it; and in the second passage which followed, the limited purpose of Madam X’s recent complaint to PW5.

26.  She also contrasted the position of Madam X, who had given evidence, with the husband, who had not.  After a break of half an hour in the summing-up, the judge next turned to the defence case that Madam X was not a truthful witness because of apparently inconsistent statements made by Madam X to PW5 and to her husband.  She said[18]:

“You have heard the defendant in his closing speech to you simply say that (Madam) X is not a truthful witness, and he relies on inconsistent statements between herself and what her husband told (PW5). You have heard that (PW5) took a statement from her husband shortly after the police report was made, and (PW5) told you what the husband had told him. Clearly, you know the husband was not in court to give evidence.

The defendant says these inconsistent accounts between (Madam) X and what her husband told the officer show she is not a truthful witness. You have heard that the husband said at about 9:58 pm on 10 May, he received a phone call from (Madam) X, and she was very emotional and crying when she told him what had just happened, so he immediately returned home. And you will recall that in the statement he said he saw her at home. On the other hand, you have (Madam) X giving evidence in court telling you that she was unable to reach her husband on the phone, but she sent him a message. She therefore went downstairs to look for her husband and found him nearby the building on the street. So because of these inconsistent statements the defendant asks you to find (Madam) X not to be a credible witness.” (Emphasis supplied)

The jury would, in our view, have clearly understood from the fact that the husband was not in court to give evidence that his evidence was not to be considered as evidence of recent complaint and was only being relied on to illustrate inconsistencies between what Madam X had told PW5 and what she had told her husband. 

27.  The judge concluded this aspect of her summing-up by giving unexceptional legal directions as to how the jury should approach inconsistent or contradictory evidence[19].  No complaint is made about these directions, which conform to the Specimen Directions in Jury Trials promulgated by the Hong Kong Judicial Institute.

28.  Mr Sherry’s concern that the jury might have mistakenly thought, as a result of these directions, that what the husband told PW5 ranked as evidence of recent complaint or, worse, of what actually took place during the incident, is ultimately unrealistic when one looks at the structure and purpose of the summing-up as a whole.  As we have already pointed out, the judge had, before the break in her summing-up, only dealt with what Madam X told PW5 inside Sham Shui Po Police Station as evidence capable of amounting to recent complaint, its relevance being limited to the issue of the consistency of Madam X’s account.  She had not treated the report of the husband’s statement to PW5 as evidence of recent complaint and had made clear that the husband had not given evidence, nor could his account to PW5 be evidence of what had happened during the offence or who committed it.  Moreover, we agree with Mr Wong that the context of the latter passage following the break in the summing-up[20] was the inconsistency or contradiction between Madam X’s account in court and what she had reportedly told her husband; and the impact of such inconsistency or contradiction on the issue of Madam X’s credibility.  That had been the whole focus of the appellant’s cross-examination of PW5 and the only point of his final address to the jury.

29.  When the summing-up is looked at as a whole, therefore, we do not think there was any danger that the jury might have regarded the report by PW5 of what the husband told him as evidence of the truth, or as evidence of recent complaint.  Its sole purpose was to demonstrate the alleged contradiction between what Madam X had told PW5 and what the husband told PW5. In any event, we do not think this is a very strong point at all.  The fact is that there was CCTV evidence produced at trial, which, if anything, supported Madam X’s version of events rather than the husband’s statement to PW5; at least, so far as her failing to contact her husband by telephone and, therefore, leaving Room A and meeting her husband on the ground floor before then returning into the building with him.  In his statement to PW5, the husband had maintained, by contrast, that he received a telephone call from Madam X, who was very emotional, and, on being told what had happened, he returned home and met her there.

30.  In fairness to the judge, she tried to discourage the appellant from embarking upon this line of cross-examination of PW5 on the basis that it may not ultimately help his defence[21].  However, at his insistence, she allowed him to make the point about the inconsistency between Madam X’s account and what the husband told PW5 she had said, which was the point he stressed in his closing address to the jury.

31.  For the reasons we have given, we saw no error or harm in the judge’s directions and, accordingly, dismissed the appeal against conviction.

[1] HKSAR v Qasir Jahanger [2019] HKCA 1448 (Unrep., 20 December 2019), per McWalters JA.

[2] The Judge’s clerk’s log in respect of HCCC 427/2017 records this incident as taking place on 23 August 2018 between 10:19 am and 11:20 am.

[3] Appeal Bundle (“AB”), p 31F-H.

[4] AB, pp 22N-23C; pp 420Q-421C.

[5] AB, p 26A-H.

[6] AB, p 458A-D.

[7] AB, p 458C-E.

[8] AB, pp 463I-469C.

[9] AB, pp 459M-460 D, 462F-H.

[10] AB, p 462N-Q.

[11] AB, pp 35I-36G.

[12] AB, p 470D-F.

[13] AB, p 421H.

[14] AB, p 22D-F.

[15] AB, pp 22L-23C.

[16] AB, p 23D-J.

[17] AB, p 23K-R.

[18] AB, pp 25R-26H.

[19] AB, p 26I-U.

[20] At para 26 above.

[21] AB, pp 463I-469C.