HKSAR v. YEUNG SHING SANG

CACC 374 /2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 374 OF 2013

(ON APPEAL FROM HCCC NO. 452 OF 2012)

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REASONS FOR JUDGMENT

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

1.  At the hearing we refused the applicant’s application for leave to appeal out of time against his convictions on 4 September 2013 after trial by M. Poon J and a jury of procuring another person, Ms X, to do an unlawful sexual act by false pretences, contrary to section 120(1) of the Crimes Ordinance, Cap. 200 (Count 1) and of the rape of Ms X, contrary to section 118(1) of the Crimes Ordinance, Cap. 200 (Count 4). We said that we would give our reasons in due course. That, we do now.

2.  The offences were committed at the applicant’s home in Kwun Tong, Kowloon between 28 and 29 June 2012.  On 3 October 2013 the applicant was sentenced to 3 years’ imprisonment in respect of Count  1 and 12 years’ imprisonment in respect of Count  4, which sentences were ordered to be served concurrently.

3.  The applicant’s application for leave to appeal against sentence, filed with the Court on 17 October 2013, was heard and the appeal allowed by this Court in May 2014 and the sentence of 12 years’ imprisonment imposed in respect of Count 4 was quashed.  In its place, the Court imposed a sentence of 10 years’ imprisonment.^[1]

4.  On 3 July 2014, the applicant filed a Notice of application for leave to appeal against conviction out of time.  Accordingly, the application was eight months out of time. 

The trial

Prosecution case

5.  At the time of the offence Ms X, a 38-year-old woman, worked as a masseuse in Hong Kong, to which she had come to reside in 2005.  In 2000, she had married a Hong Kong resident and gave birth to their son in 2001.  However, their marriage had broken down in 2005 and she lived together with her son, who was mildly mentally retarded.

6.  Ms X came to know the applicant, who was 39 years of age, in June 2012 through the introduction of her twin sister Jin, who was the applicant’s lover.  On the morning of 28 June 2013 Jin told Ms X that she had made love to the applicant, who was a God with magical powers.  In subsequent telephone conversations, Jin suggested that the applicant could help Ms X’s mentally retarded son.  As a result, Ms X met Jin in the afternoon and accompanied her to the applicant’s home.

7.  At the applicant’s home, the applicant urged Ms X not to give up on her son and claimed that he could perform rituals not only to help her son but also to transform her boyfriend.  Also, he mentioned a ‘ghost’ child that he had brought up.  Having given Ms X a mineral drink to consume from a bottle, he showed her some explicit sexual photographs stored on his Samsung mobile telephone.  He said he had performed rituals that helped many husbands, whose wives performed sexual acts with him in gratitude.  Later, Ms X felt tired and fell asleep.  After the three of them had eaten dinner, Jin left the premises to purchase material for use in the ritual, including sausages, lubricant and condoms.  Then, at the applicant’s suggestion she consumed some coffee from a plastic cup, which he said would enhance her blood circulation.  In enquiries made after the matter was reported to the police, it was found that two plastic cups found on the premises contained traces of ice, as did the blood and urine samples taken from Ms X.  She had never taken drugs before.

8.  In the guise of performing a ritual on Ms X, her eyes were covered with a towel and the applicant inserted a sausage contained in a condom into her vagina, which she was then instructed to expel by simulating the movements of childbirth.  Subsequently he had inserted his fist into her vagina, likewise contained in a condom.  The applicant took photographs of her, although if these existed no such photographs were adduced at trial.  At one stage, Ms  X became aware that the applicant was penetrating her vagina with his penis without a condom.  In response to her loud shouts of “No”, he desisted and withdrew.

9.  In the morning, Ms X left the premises and returned to her home and to her boyfriend, to whom she appeared distressed.  In the afternoon they were joined by Jin.  Ms X and Jin embraced each other and cried.  Then, a report was made to the police.

Defence case

10.  The applicant did not avail himself of the right to give evidence at his trial.  Rather, he relied in part on his out-of-court statements in video recorded interviews with the police.  There, he admitted having had sexual intercourse with Ms X, but asserted that he had desisted and withdrawn his penis from her vagina when he became disconcerted by the presence of Jin.  He went on to have sexual intercourse with Jin.  He asserted that he had had sexual intercourse with Ms X with her consent.  He denied having inserted a sausage or his fist into Ms X’s vagina and having committed buggery with Ms X.

11.  Although in his out-of-court statements the applicant had denied having inserted a sausage or his fist into Ms  X’s vagina, in cross-examination of Ms X it was suggested, albeit denied by Ms X, that she had consented to the performance of those sexual acts on her.  Similarly, she denied the suggestion that voluntarily she had consumed a drink contained in a plastic cup which she knew to contain ice and that she had done so having become aroused by watching the applicant and Jin having sexual intercourse.

The applicant’s explanation for failing to make the application within the prescribed time

12.  In his statement attached to Form XI by which the applicant gave notice of his application for leave to appeal against conviction out of time filed on 3 July 2014, the applicant sought to explain making his application out of time, namely that his mental condition was such that it was only at the time that he filed the notice that he had come to realise that he was able to file an application for leave to appeal against his conviction as well as against sentence.

13.  The applicant asserted that in the period July to September 2012, whilst remanded in custody at Siu Lam Psychiatric Centre he had been prescribed and had taken medication.  Having been released on bail on 19 October 2012 he attended a Psychiatric Clinic monthly.  Thereafter and during his trial he continued to take prescribed medication for his psychiatric condition.

Grounds of appeal

14.  The applicant filed Preliminary Grounds of Appeal, dated 2 January 2015, and two sets of Perfected Grounds of Appeal, dated 2 January 2015 and 4 March 2015, respectively.

15.  By grounds 1 and 2, the applicant contended that the judge erred in not stopping an outburst by Ms X at the end of her testimony and in failing to direct the jury immediately to ignore the outburst.  Further, it was submitted that the judge erred in not stopping (Mr Gao) when he called the applicant a beast or an animal, and in failing to instruct him not to do so.  Although the applicant acknowledged that the judge had, in her summing-up, directed the jury to ignore Ms  X’s outburst and Mr Gao’s complaint, the applicant alleged that the judge’s direction was ineffective.^[2]  As a result, his trial had been an unfair one.

16.  By ground 3, it was contended that the judge erred in revoking the applicant’s bail on 28 August 2013.  As a result, the applicant was deprived of his daily medication and he became unfit to attend court on 29 August 2013.  In consequence, the applicant became confused and experienced hallucinations, both visual and audio, and suffered loss of memory for short periods of time.  In those circumstances he was unable to, and did not, avail himself of his right to give evidence.

17.  By ground 4, the applicant contended that his counsel conducted his defence incompetently, it being asserted that counsel should have, but failed to, –

(i)  draw the judge’s attention to the applicant’s mental conditions and informed the judge whether the applicant was fit to give evidence,

(ii)  make an application for adjournment of the trial to obtain a psychiatric report to see if the deprivation of his medications might have triggered his mental illness conditions, and

(iii)  submit to the judge a report of a social worker on the psychiatric treatment the applicant had received at Yung Fung Shue Psychiatric Centre between October 2012 and August 2013. 

18.  By ground 5, it was submitted that the judge erred in failing to prevent the interpreter from seeking clarifications from Ms X before translating her evidence.  In so conducting herself, the interpreter had assumed the role of the prosecutor, which conduct the judge failed to stop.

19.  By ground 6, it was submitted that the judge erred in interrupting the cross-examination of Ms X by counsel for the applicant, in respect of a telephone conversation, and in directing Ms X to testify on the main points only.  The judge erred in instructing Ms X not to answer the question of counsel for the applicant concerning the voice mail function of her phone.

20.  Finally, it was contended that the judge erred in failing to note that there were errors (i) in a pre-sentencing medical report, namely the applicant’s age was wrongly stated to be 51, and (ii) in the probation officer’s report, namely the date of the report was wrongly stated to be 4 September 2013.

A consideration of the submissions

21.  This Court having allowed the appeal against sentence on 20 May 2014 and having delivered his reasons for judgement on 23 May 2014 some six or seven weeks prior to the applicant giving notice of an application for leave to appeal against conviction, we were concerned as to whether or not the Court had jurisdiction to entertain such an application.  Of course, the appeal against sentence was dealt with by this Court on the basis that the applicant had been convicted properly.  However, given that the respondent had not raised or addressed the issue and that the Court’s own limited research had not revealed any authority addressing that situation, the Court proceeded on the basis that we did have jurisdiction to entertain the application.

22.  In Form XI by which the applicant gave notice on 17 October 2013 of his application for leave to appeal against sentence the applicant also sought the grant of legal aid to pursue that application.  On 20 December 2013 the applicant was granted legal aid and on 23 December 2013 stipulated counsel and solicitors were assigned.  Counsel, Mr James Tse Ying Kuen, filed Perfected Grounds of Appeal against Sentence with the Court on 7 January 2014 and represented him at a hearing in this Court on 20 May 2014.  It follows that the applicant had the benefit of legal representation for many months prior to giving notice of his application for leave to appeal against conviction of 3 July 2014.

23.  At the time that the applicant was sentenced on 3 October 2013, M. Poon J had the benefit of reports on the applicant from both a psychologist, C P Woo, and a psychiatrist Dr W K Choi.  In sentencing the applicant, the judge noted:^[3]

“ The clinical psychologist formed the impression that the defendant is a manipulative individual with low frustration tolerance and inadequate problem-solving ability, poor emotion control and low self-esteem.  He is impulsive and short-sighted and did not consider the consequences of his actions.  He had resorted to substance abuse, that is abusing “Ice”, in coping with his multiple psychosocial stressors and maladaptation.  His risk of re-offending is assessed to be low to moderate.”

24.  Of his examination of the applicant, the psychiatrist said in a report dated 25 September 2013:[4]

“ Mental state examination in the present remand found that he was largely calm, settled and attentive. There was no abnormal gesture observed. His mood was mildly depressed, and his affective response was appropriate. He spoke coherently and relevantly. There was no psychotic symptom elicited. He denied having active suicidal thoughts. He managed to give his own account on the index offence in a coherent manner, claiming that he was framed by X and her sister. He knows clearly what he is charged with. He understands his position and the legal proceedings.

In my opinion, Yeung suffers from a persistent depressive disorder, which was precipitated and perpetuated by multitude of psychosocial stresses.  With treatment provided, his mental condition improved. Inpatient treatment is not necessary at the time being, but he should be continuously followed-up at the outpatient clinic.”

25.  We reject the applicant’s explanation for filing the notice of his application for leave to appeal against conviction with the Court nine months out of time.  In the first place, it is to be noted that in the Form XI by which the applicant gave notice of his application for leave to appeal against sentence, the part of the form which concerns an application for leave to appeal against conviction was crossed out.  That lies immediately above the part of the form that relates to sentence.  Secondly, it is to be noted that the applicant had the benefit of legal representation both at trial and, from 23 December 2013, in the preparation for and the conduct of his application for leave to appeal against sentence.  Further, it is to be noted that, notwithstanding the fact that judgment was delivered on the application for leave to appeal against sentence on 20 May 2014 and the reasons for judgment handed down on 23 May 2014, it was a further six weeks or so before the applicant filed a notice of his application for leave to appeal against conviction.  Thirdly, we are satisfied that the applicant has chosen to grossly exaggerate his mental condition at the relevant time to support his explanation.  He is accurately described in the psychologist’s report as being “manipulative”.  We are satisfied that this application is a cynical attempt to manipulate the processes of this Court.

26.  As is the practice of the Court, notwithstanding the view we take in respect of the issue of the application being made out of time, we have had regard to the merits of the proposed appeal.  There are none.

27.  The applicant’s complaints against his counsel at trial, Mr Bernard Chung, were wholly unjustified and unfair.  As was to be expected of him, in face of the invective of Ms X directed at the applicant at the conclusion of her evidence, namely that he was a “bastard and an animal”, Mr Chung endorsed and supported the judge’s efforts to bring the abuse to an end.  Having listened to the audio recording of those proceedings, counsel for the respondent, Mr Sean informed the Court, a matter not disputed by the applicant, that it was at Mr Chung’s request that following Mr Gao’s subsequent outburst, at the conclusion of his evidence, of invective against the applicant that the judge directed the jury when proceedings resumed in their presence to ignore the assertions and behaviour of both Ms X and Mr Gao.  No doubt, that was why in the summing-up the judge said: “You will recall that during the trial, I told you to ignore the outbursts of X on completion of her evidence and the allegation made by the second prosecution witness, Mr Gao.”  Furthermore, Mr Sean informed the Court that Mr Chung opposed the revocation of the applicant’s bail and, after the judge had revoked his bail, it was Mr Chung who asked that proceedings be adjourned, given the applicant’s medical and mental condition.  In the event, the applicant was treated at Queen Elizabeth Hospital.  After that treatment the applicant returned to court and proceedings resumed.  Then, it was Mr Chung who informed the Court that the applicant’s medication had been returned to him.

Conclusion

28.  In the result, we refused the application for leave to appeal against conviction out of time.

Loss of time

29.  Having informed the applicant that we rejected his explanation for filing a Notice of application for leave to appeal against conviction out of time and that, in any event, we were satisfied that the grounds he sought to advance were without any merit whatsoever, we invited him to address the Court as to why the Court should not exercise its powers pursuant to section 83W of the Criminal Procedure Ordinance, Cap. 221, namely to order that some of the time during which he has been in custody pending the determination of his appeal shall not be reckoned as part of the term of imprisonment to which he is subject.

30.  A considerable amount of the time of the Court has been entirely wasted in reading the Appeal Bundle, grounds of appeal and submissions.  Although two members of the Court constituted the Court that allowed the appeal against sentence, that was almost one year earlier and the issues raised in the proposed appeal against conviction are quite different.  The third member of the Court had to acquaint himself, without any prior knowledge of the case, with all those matters.  More importantly, as a result of this application the hearings of meritorious applications for leave to appeal have been delayed unnecessarily.

31.  However, from information supplied at the request of the Court by officers of the Correctional Services Department, it is clear that it would not be appropriate in the circumstances to make a ‘loss of time’ order.  Notwithstanding, the fact that the reports of the psychologist and the psychiatrist, referred to earlier, stated that the applicant did not require inpatient treatment, it appears that the applicant has been detained in Siu Lam Psychiatric Centre ever since the time of the revocation of his bail and that he is to this day in receipt of medication under medical supervision.