HKSAR v. TSANG TAK WAH, ANDY

 CACC 95/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 95 OF 2010

(ON APPEAL FROM HCCC NO. 371 OF 2009)

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BETWEEN

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JUDGMENT

Hon Cheung JA (giving the judgment of the Court):

1.  The applicant was indicted of one count of rape, contrary to section 118 of the Crimes Ordinance, Cap. 200, Laws of Hong Kong. He pleaded not guilty and was tried before Deputy High Court Judge Patrick Li sitting with a jury. The jury returned a verdict of guilty by a ratio of 5 to 2. The applicant was sentenced to 7 years and 6 months imprisonment. He applies for leave to appeal against both conviction and sentence.

Evidence of the victim

2.  The victim X was a 15 year old girl.  She came to know the applicant on 20 July 2009 on a social networking website on the internet.  They communicated with each other through MSN.  X said that the applicant himself joined her MSN group.  The applicant told X that he had shot some films and had done make-ups for some models.  He asked the victim whether she wanted to be a model and used the lens on the computer to show her some cosmetics and a skirt.  He said he would give the skirt to X as a gift.

3.  Subsequently, they talked with each other on the telephone.  The applicant told X that he was running a model company, did make-ups for people and had shot films.  He asked X whether she would like to be a model.  X said she was too short.  The applicant asked her whether she wanted to join the show business or to be a photography model.  X said she wanted to join the show business.  Thereupon the applicant told her that certain models and singers had sexual relationships with him.  He told her that in order to do what she wanted, she needed to pay a price.  Then he asked her, “Do you want that?” X thought what he meant was make up, and she answered, “That’s OK.”  X said the applicant had told her, “A starlet who desires to stand out from others as quickly as possible has to offer her body in exchange.”  X said she did not know whether this statement was a suggestion to her that that was what she needed to do, or whether it was just a casual remark in an ordinary conversation.  Then the applicant asked her, “Do you want that?”  At that time X misunderstood that the applicant was referring to make up and photo-taking.  After that, the two of them arranged for seeing each other on the following day.  The applicant emailed to X a commercial advertisement contract for models.  X signed the contract and emailed it back to the applicant.

4.  On the following day, the two of them met in a McDonald’s restaurant in Tsuen Wan. After they met, the applicant asked X, “Are you going to do it now?”  X thought that he was referring to matters about modeling and make up.  The applicant gave a skirt to X as a gift.  Then they went to an hourly hotel.  The applicant and X went into a room of the hotel and sat on a bed.  The applicant opened a cosmetic case and explained to X what cosmetics there were inside.  Then he asked X to stand up and he kissed her lips.  According to X, at that moment she was very scared.  “I trembled all over.  My hands were freezing and my whole body kept on trembling.”  However, she said she did not do anything.  Her reason was that during her childhood she had been beaten by a private tutor.  She was not bold enough to resist and she feared that the applicant might have weapons and might kill her; yet she had never conveyed to the applicant what there was in her mind.  When the applicant wanted to kiss her, she stepped back.  The applicant bent forward to kiss her, and X bent her upper body backward.  She lost balance and fell on the bed.  Then the applicant touched her breasts with his hands.  X was very afraid, but she did not do anything or say anything to show that she resisted him.  The applicant went on and took off his clothes.  He asked X to take off her clothes, and she took off her outer garments and underclothes. After that, the applicant removed X’s bra and briefs.  X still did nothing to resist.  X said she had tried to step back but she did not say anything.  X said she lacked the courage to resist.  She was very sensitive.  There was a shadow in her mind, so even though her family members had given her proper guidance, she did not have the courage to resist.  She explained that actually she did try to resist. “I mean it’s like playing.  I tickled him, [trying] to get him off me.”  What followed was that the applicant asked her to lie on the bed, and he got onto X’s body.  X said she feared that the applicant’s penis would get into her vagina, she therefore moved her body towards the foot of the bed in order to prevent him from doing that.  X said the genitals of the applicant touched the outside of her vagina, but did not get into her vagina.  Soon, the applicant ejaculated outside her body.  Then he lay down beside X and the two of them watched television together.  Later, the applicant again got onto X’s body and inserted his penis into her vagina.  X said she was not sure whether his penis had actually got into her vagina, but she felt great pain inside her vagina.  The applicant moved his penis forward and backward.  After a while, the applicant stopped and slept beside X.  In the course of this sexual intercourse, the applicant said to her, “You still seem to be afraid of me”, and the response from X was an “Ah”.

5.  Subsequently, the applicant had sexual intercourse with X for the 3^rd and the 4^th times and then he bathed her.  Finally, they left the hotel together.  The applicant asked X to go with him to a shop to look for some false eyelashes.  Following that, he accompanied X to take transport.  Before X boarded the bus, she kissed the applicant’s cheek at his request.  However, she said she was not willing to do that, so after she boarded the bus she immediately wiped her mouth with a tissue.

6.  In the bus, X telephoned her friend Y and arranged to meet him/her.  When they met, X complained to Y that she had been “molested” by the applicant.  At night on the same day, X also complained to another friend, W, whom she came to know at a photography club.  In the evening of 22 July 2009, X and Y together went to make a report at the Tsuen Wan Police Station. 

7.  The prosecution evidence showed that there was an old laceration on X’s hymen.  According to X, the cause of the laceration might be either one of the following two incidents: on one occasion when she was riding a bicycle, her private parts were hurt by pressing against something hard; on another occasion, she felt that there was some hard object inside her vagina and she put her hand into her vagina.  X said that when the applicant was lying on bed with her, he asked her “Have you done it with other boys before?” X answered by saying casually and equivocally, “May be and may be not.”

Defense

8.  The applicant was 31 years old.  He was arrested by the police on 24 July 2009.  He admitted under caution that he had sex with X, but he claimed that X had sex with him voluntarily. He denied raping her.

9.  The applicant admitted that he had sexual intercourse with X and that he knew X was only 15 years old at the material time.  He said X consented to having sexual intercourse with him.  They came to know each other on the internet and then communicated with each other by telephone.  X told him on the phone that she longed to join the show business.  The applicant told her that the show business was dark and corrupt, and that she had to go to bed to sleep with various people.  He asked her, “Can you do that?” and said to her, “That means other than having me as your partner, you’ll have to accept other people to be your partner.  Do you know?”  X answered, “Well, I know.”  Then they arranged to meet on the following day.  They met in a McDonald’s restaurant.  The applicant gave her his name card and a grey skirt as a gift.  After that, he showed her the information on other name cards and let her see the things in his cosmetic case.  The applicant asked X once more, “Can you do that?”  X said, “Yes.”  Then they went to an hourly hotel.  In a room in the hotel the applicant asked X again, “Can you do that?” X said, “OK.”  Then the applicant told her to take off her clothes herself, and she took off her clothes herself.  What followed was that the two of them lay on a bed, kissing and then had sexual intercourse.  The applicant admitted that his penis was inserted into X’s vagina, but he said he ejaculated outside her body.  During the intercourse, X did not have any response.  After the intercourse, the applicant asked her, “You don’t feel OK?” X said, “Mm.”  The applicant explained that he asked her this question because he found that she was expressionless when the intercourse was over, and he wondered what she was thinking.  Later, they took a bath together and left the hotel.

Special feature of this case

10.  Obviously, the special feature which distinguishes this case from other rape cases is that at no time before, during or after any one of the intercourse did X say anything or do anything to indicate that she did not consent to any one of the intercourse.  The contact between these two people lasted quite some time.  The applicant had 4 sessions of sexual intercourse with X and after that, he bathed her. Then he left the hotel with her and went to a shop, and then accompanied her all the way until she boarded a bus.  The behavior of X throughout this process was hard to comprehend.  If she did not consent to intercourse, why did she not do or say anything to resist?  Even taking into account the possibility that she might still be affected by the traumatic experience she suffered during her childhood ─ she had been assaulted ─ and so she was so frightened that she did not know what to do at the initial stage, it is impossible that she would continue to behave in this nil-resistance way at the latter stage of the incident.  Such behavior is different from the reaction which a girl or a woman would demonstrate when she is forced to have sexual intercourse.  X did say that before the intercourse she had tried to resist by, for example, keeping away from the applicant, dodging or moving her body towards the foot of the bed; but she also said that her acts of resistance were like playing, like tickling the applicant or pushing him away with her hands.  Moreover, X’s evidence showed that in the evening before the incident when she were talking with the applicant on the phone, what the applicant said already touched upon sex, for example, he said that he had sexual relationships with some models and singers, and that if X wanted to join the show business she had to pay a price, to go to bed with various people.

What directions should be given to the jury

11.  We think that the natural and reasonable response of a person equipped with legal knowledge when confronted with these facts would be to doubt whether the prosecution could prove beyond reasonable doubt that X did not consent to having sexual intercourse with the defendant.  In other words, would a girl or woman who does not consent to sexual intercourse behave in the same way as X did?  We consider that under these circumstances it was necessary for the Deputy Judge to give clear directions to the jurors, who, though well educated, did not have knowledge about the law, so as to bring home to them how the prosecution could be able to discharge their burden of proving beyond reasonable doubt that the applicant had committed the offence charged.  Before the jury gave their verdict of guilty on the basis of such evidence, they were required to consider carefully whether X had, as she said, never consented to sexual intercourse throughout the whole course of the incident, or whether, as alleged by the applicant, the reason for X behaving in such a way after she met the applicant was that she had already agreed during the telephone conversation to go to bed with him.  Furthermore, even if X did not say on the telephone she would do that, could her behaviour in the hotel room support the applicant’s allegation that she consented to sexual intercourse?  The Deputy Judge was certainly entitled to point out to the jury the strengths and weaknesses in the evidence of the prosecution and of the defence, but such directions must not downplay those areas of X’s evidence which could cause one to feel puzzled.  In our judgment, owing to the special feature of this case, there was every reason why the Deputy Judge should direct the jury’s attention to this special feature and give prominence to the conflict in the evidence in this aspect, so that they could focus their attention on this part of the prosecution evidence which was most likely to cause one to doubt and was most difficult to comprehend, thereby enabling them to understand it was essential that they could not find the applicant guilty unless they had no reasonable doubt.

The case of Jim Fai

12.  In Jim Fai v. HKSAR [2006] 9 HKCFAR 85, the Court of Final Appeal set down the following principles as to what directions should be given to the jury about the treatment of defence evidence and prosecution evidence:

(1)   There is a fundamental difference between the treatment of defence evidence and prosecution evidence in the jury’s deliberation of their verdict.  It is only when the jury feel sure that the prosecution evidence is true and can be relied on that they can convict the accused.  If they disbelieve the prosecution evidence or entertain a reasonable doubt in such evidence, they are not to convict on the basis of it. On the other hand, even if the jury totally reject the defence evidence, they still have to be sure that the prosecution evidence is true and that there is no reasonable doubt before they can convict the accused.  If they think that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case.  In that case, the jury have to acquit him.  (See paragraph 16)

(2)   This crucial difference necessarily follows from the application of the principle that it is for the prosecution to prove the guilt of an accused beyond reasonable doubt.  The direction to the jury on how they should approach defence evidence is thus intrinsically linked up with the direction on the burden and the standard of proof.  It is essential that the jury should be properly directed on this aspect in clear and simple terms.  (See paragraph 17)

Specimen directions

13.  The crucial point of these principles is that if the jury consider that the defence evidence is true or may be true, they have to find the defendant not guilty.  This is a concrete manifestation of the requirement that they can convict if and only if they “have no reasonable doubt”.  Paragraph 44A of the Specimen Directions in Jury Trials compiled by the Judicial Studies Board of Hong Kong clearly says that the defendant “does not have to prove his innocence.  He does not have to prove anything… It is for [the jury] to decide whether [they] believe the evidence of the defendant… or whether it may be true… if the account given by the defendant … is or may be true, then the defendant must… be acquitted”.

14.  In HKSAR v. Or Chung Yeung [2004] 3 HKLRD 645, the defendant was convicted of rape. His ground of appeal was that the trial judge failed to direct the jury as to what should be done if the evidence given by him “may be true”.  The Court of Appeal acknowledged the importance of this direction to a jury with no legal knowledge when they were deliberating their verdict.  However, the Court of Appeal also stressed that the court could not deal with the judge’s failure to give directions about what should be done if the evidence given by the defendant “may be true” in isolation and overlook the facts of the case and the entire set of directions.  The Court of Appeal had to look at the entire set of directions given by the judge when considering whether the verdict was rendered unsafe by the absence of a relevant direction.  In that case, even though the trial judge did not give any direction as to what should be done if the defendant’s evidence “may be true”, he had actually given directions to the jury about how to apply the relevant laws to the facts, so the Court of Appeal found that the verdict was still safe.

Directions given in this case

15.  In this case, although the Deputy Judge had clearly explained the burden of proof at the early part of his directions to the jury, he did not give any directions as to how they should proceed if “the defendant’s evidence may be true”.  This can be seen from the extracts below:

“ …… The prosecution has the burden of proving each and every element of the offence by making you sure that the defendant did commit the rape specified in the indictment. If you are sure of that, you should return a verdict of ‘guilty’. If you are not sure, your verdict should be ‘not guilty’.

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You may have heard the phrase ‘beyond reasonable doubt’ used by the lawyers. Actually, it has the same meaning as ‘sure’. I must emphasis this: the defendant does not have to prove his innocence and does not have to call any witness. The defendant in this case has chosen to give evidence. He is not different from any other witnesses; that is to say, you should examine his evidence by using the same standard. However, even if you completely reject the defendant’s evidence, it does not follow that the defendant is guilty, because you must still consider the prosecution evidence to see whether it is sufficient to make you sure that the defendant is guilty. To put it simply, you are not to choose who you would believe. You must consider whether the prosecution evidence is sufficient……

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All right, let me summarize it as follows: If you have any doubt about whether X did not consent to the sexual intercourse, that means there is a doubt and the rape is surely not established.  Then you can move on to consider the molesting charge, that is, the charge of indecent assault.”

16.  Having said that, as stated above, this omission will not necessarily render the jury’s verdict unsafe or unsatisfactory.  The entire set of directions has to be looked at before a decision can be made.  First of all, having examined the entire set of directions, we are of the view that in relation to some important and heavily disputed issues the Deputy Judge did not give the jury clear directions which could make them realize how the principle of “beyond reasonable doubt” operated in practice.  He only pointed out to the jury the differences between the prosecution case and the defence case, and enjoined them to evaluate which side was more reasonable.  However, he did not go a step further to remind the jury to consider whether they, notwithstanding these issues, could be sure of the defendant’s guilt. This can be illustrated by the following directions about X’s evidence:

“ …… You must look carefully at the whole conversation. If X had agreed to go to bed to sleep with him, [but] no indication whatever can be found in any part of the conversation. I ask you to look at it carefully when you retire to deliberate. Well, in the telephone conversation did X agree to go to bed to sleep with him? The defendant has his version and X hers. Earlier on, I asked you to go over X’s records of interview and I have told you what the defendant said under caution when he was interviewed. You have seen how the two of them gave evidence in court. You should consider where the truth lies. What was actually in X’s mind when she went to meet him on 21 July? ......

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…… You must pay attention to this: X’s evidence about what she did at the time in fact tallies with the defendant’s evidence about what X did, and that is, X was just lying there, without resistance. If you believe that was how X behaved at the time, then this is evidence which you should consider whether it is useful for deciding whether X at the time consented or not. ……

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…… Members of the jury, is it reasonable to put up resistance in such an unclear way?  Was X telling the truth when she said she was scared because of the effect of her traumatic experience?  These are issues about which you must make a decision after you have gone over the evidence.  Of course, the fact that at the time X did not do anything, just stiffly lying there, does not necessarily mean that she did not consent.  It is possible that at the time she was shy or felt embarrassed.  In this connection, you have watched the video tapes and have seen X’s demeanour when she was giving evidence.  You should make your judgment by common sense.  You should consider for what purpose the meeting was originally arranged.  If you think that the purpose was indeed to go to bed with the defendant, then why X did not have any reaction?  If the original purpose of the meeting was actually about making up and photo-taking, but suddenly it changed to a matter of going to bed, then is it reasonable for X to be afraid and didn’t know what to do?”

17.  Besides, it can be seen from the above extracts that the direction given by the Deputy Judge to the jury regarding X’s absence of reaction during the intercourse was an invitation to them to consider whether X behaved in this way was because she was shy, felt embarrassed, was afraid and did not know what to do.  When the Deputy Judge dealt with the applicant’s evidence, he also reminded the jury that the applicant had said that during the intercourse X was “expressionless”, and asked them to consider whether the applicant’s evidence that it did not occur to him that X did not consent to intercourse was reasonable.  We do not think that the directions given by the Deputy Judge were comprehensive.  He should have asked the jury to consider whether X behaved in the way she did because she thought that to have sexual intercourse with the applicant was the price she had to pay for gaining access to the show business, and therefore she had no reaction during the intercourse with the applicant.  This view of the events is not inconsistent with the allegation that she consented to the intercourse.  The intercourse in question did not involve any love or affection between a man and a woman but was only a sexual transaction for achieving the purpose of enlisting the applicant’s assistance for her gaining access to the show business.

18.  We agree that the Deputy Judge was entitled to point out to the jury areas in the applicant’s evidence where there were contradictions or where the truthfulness was questionable. However, since the law requires that evidence given by the defense should be approached according to a different principle, after the Deputy Judge expressed certain opinions which might be detrimental to the applicant’s case, it was necessary to remind the jury that even if they rejected the evidence given by the applicant, they still had to be sure that the prosecution had proved beyond reasonable doubt that the applicant did commit the offence.

19.  In this case, before the Deputy Judge finished his summing up of the facts about the rape, he made a number of rather sharp comments to the jury in the form of questions about the applicant’s evidence:

“ Well, the defendant admitted that in the McDonald’s restaurant when he asked X “Can you do that?”, at that moment he was still not sure whether X agreed to make love or not. He said that. That’s what he said in court in response to a question asked by Mr. Ma, the prosecuting counsel. Buthe still took X to Chui Yuen [transliteration] Villa（翠園小築）. He said because X did not ask, did not ask him about that, he thought X knew that they were going there to make love, to go to bed. Why should X have this responsibility? Why didn’t the defendant tell X clearly? What difficulty there was in telling her clearly? You can think about that. ……”

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“…… Look, the defendant also said this: he said that the phrase ‘go to bed to sleep with someone’ was too obscene —— I don’t know whether you remember that —— so he said to X, ‘Can you provide any service to him’. He said that the phrase ‘provide service’ sounded more decent. Well, when it was put to him that he himself used the phrase ‘go to bed to sleep with someone’ when he and X talked about this matter for the first time. Then he said what he really meant was that it was not very good to use this phrase in court, so he used the phrase ‘provide service’ in court. He further said he was afraid that if he told X about that, she might not understand what ‘provide service’ meant, so he said ‘go to bed to sleep with someone’. Then he even went further and said, he said that what he actually said was ‘go to bed with me’. He said that very clearly; he said that. Why are there so many versions of the defendant’s reply to such a simple question? Was he trying to evade the question or was he really confused by the questioning and became muddle-headed? Well, you have seen his demeanour when he was sitting here giving evidence. Make your own judgment.”

“ Alright, you have seen how the defendant gave evidence in court. In fact there are a number of glaring discrepancies between his evidence and what he said in his records of interview. Earlier on, I have mentioned some of them. His explanation was that he was very afraid, his mind blanked out and that he remembered it later. Members of the jury, please judge it by your common sense. Did he really forget that or was he making up excuses? You can also examine the video tapes about the defendant, including the transcripts of the defendant’s video-recorded interviews.”

20.  The intention of the Deputy Judge’s making these sharp comments about the applicant’s evidence was obviously to motivate the jury to examine and doubt the veracity of the applicant’s evidence.  As stated above, the Deputy Judge was entitled to do this; but at the same time, according to the legal principle, even if the jury did not accept the applicant’s evidence, they still had to be sure that the applicant had really committed the offence.  We consider that at this particular stage when the Deputy Judge was about to finish his summing up about the rape and when he gave these directions which were intended for attacking the veracity of the applicant’s evidence, it was imperative for him to remind the jury again of this cardinal principle.  In view of the absence of guidance in this respect, we believe that it became even more necessary that the Deputy Judge should have given directions about what should be done “if the account given by the applicant may be true”.

21.  Although Mr. Yuen, counsel for the applicant, did not rely on the argument that “the defendant’s evidence may be true”, we are of the view that the gist of the applicant’s grounds of appeal was that the Deputy Judge failed to give comprehensive directions to the jury, so that it was not brought home to them how to apply the principle of no conviction unless it is “beyond reasonable doubt”; and it was beyond dispute that the aforementioned guidance was indeed absent.

Reactions of Y and W

22.  In addition, we find that there were errors in the Deputy Judge’s way of dealing with the evidence of Y and W.  The Deputy Judge said:

“Please pay attention to this: when X complained to Y and W, she did not use the word ‘rape’. This is a fact and is part of the evidence. However, after these two witnesses heard what X said, both of them suggested to X that she should report to the police. Was this reaction consistent with X consenting to or not consenting to the sexual intercourse? That is to say, was it consistent or not consistent with the giving of consent, or was it consistent with not giving consent? Please think about it carefully. I emphasize this: X had never said that she had been raped.”

23.  Evidence of the recent complaints which X made to Y and W could not be used for negativing X’s consent to the sexual intercourse.  Its purpose was merely to show consistency in X’s evidence which would include her evidence as to lack of consent: see Leung Chi Keung v. HKSAR (2004) 7 HKCFAR 526.  However, the Deputy Judge directed the jury that they could consider whether the reactions of X and Y were consistent with whether X consented or did not consent to the sexual intercourse.  We believe that such direction exceeded the limits of the legitimate use of evidence concerning recent complaints and would confuse the jury, because the reactions of Y and W not only could not prove that X did not consent to the sexual intercourse, they could not even be used to support the consistency of X’s evidence.

Conversation between Y and W

24.  The Deputy Judge summed up W’s evidence and gave directions as follows:

“Another witness was W. …… In the evening of 21 July, W received a MSN message from X. What did X ask him/her at that time? Please pay attention to this: She asked him/her whether the website of the defendant’s company was reliable. In the course of the conversation, X told W on the phone that somebody did it to her. W’s response was that he/she understood X to mean that she had been raped. W also said that at that time X’s words came out from her mouth brokenly and she spoke in a way different from that in normal times. W suggested to X that she should report to the police. X’s answer was that —— she has said that in court —— she worried very much that the matter would be exacerbated and feared that her parents would give her a good dressing down. Later, when W was being cross-examined, he/she said that actually X did not mention the word ‘rape’. You may notice that after lengthy questioning by the defence counsel Mr. Wong, at last W remembered that X at that time told him/her that she had a friend who was under 16 and who had sexual intercourse with someone; and X asked W whether that friend, i.e. her friend under 16, had broken the law. W explained that he/she simply forgot that, that is, forgot this conversation; and that he/she was not trying to help X. Please think about this yourselves.”

25.  Our concern is what X told W about a friend of hers who was under 16 and who had sexual intercourse with someone.  Who was this friend?  If X used this friend to stand for herself and the applicant had sexual intercourse with her without her consent, then why did she ask whether she had broken the law?  If this friend was not X, why did X mention him/her at all?  Did this friend have sexual intercourse with X and was it related to X’s fear that the matter would be exacerbated?  We think that the Deputy Judge should have had these doubtful areas clarified before letting the jury consider W’s evidence.

Conclusion on rape

26.  Judging from the entire set of directions, we find that the Deputy Judge failed to give appropriate directions to the jury to assist them to consider whether they could resolve the heavily disputed issues in this case on the basis that any benefit of the doubt should be given to the applicant.  We hold that the verdict of the jury is unsafe and unsatisfactory.

Our order

27.  Section 83A of the Criminal Procedure Ordinance, Cap. 221 of the Laws of Hong Kong, provides that when dealing with an appeal against conviction, the Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the verdict of guilty of the offence originally charged a verdict of guilty of another offence.  The Deputy Judge had informed the jury that they could find the applicant guilty of an alternative offence, namely Indecent Assault.  Before we make our final decision about this appeal, we need to hear submissions from the parties on the following matters:

(1) Whether this court should substitute a conviction for Indecent Assault or another alternative offence for the original conviction;

(2) Whether the respondent will seek a retrial if this court decides to set aside the original conviction without substituting a conviction for an alternative offence for the original conviction.

28. We will fix another hearing date for hearing submissions from both parties.  The applicant shall be remanded in jail pending the hearing.