HKSAR v. SINGH BALWINDER

CACC 166/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 166 OF 2014

(ON APPEAL FROM HCCC NO. 351 OF 2013)

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J U D G M E N T
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Hon Lunn VP (giving the Judgment of the Court) :

1.  The applicant sought leave to appeal against his conviction on 2 May 2014 after trial by Deputy High Court Judge S. D’Almada Remedios and a jury of indecent assault of a woman referred to at trial as Ms X, at domestic premises at Pok Fu Lam Road, Sai Ying Pun on 28 April 2013, contrary to section 122(1) of the Crimes Ordinance, Cap. 200 (Count 1) and of raping Ms X at the same premises on the same day, contrary to section 118(1) of the Crimes Ordinance, Cap. 200 (Count 2). The applicant was sentenced to 6 months’ imprisonment in respect of Count 1 and 6 years’ imprisonment in respect of Count 2, which sentences were ordered to be served concurrently. The hearing of 30 January 2015 was adjourned in face of the application made on behalf of the applicant at the outset of that hearing, which the court granted, for leave to file re-amended Perfected Grounds of Appeal against Conviction.

2.  Having filed a Notice of Abandonment with the court on 4 February 2015 of his application for leave to appeal against sentence, the application was dismissed on the same date.

The trial

The prosecution case

3.  There was no dispute that Ms X, a Mainland woman in her 40s, had been twice married.  She married her first husband, a Hong Kong man in 1997 and came to live in Hong Kong in 2004. They had two children, born in 1999 and 2000 respectively, but they divorced in 2008.  She married again in April 2012, but she and her second husband separated in October 2012.

4.  Ms X came to reside at the flat at Pok Fu Lam Road on 27 April 2013, pursuant to an agreement with Mr Kumar, to whom she was introduced by a real estate agent, Mr Yu, by which she would have use of a room to herself and shared use of communal areas for a rent of $4,000 per month.  The applicant was staying at the premises of Mr Kumar temporarily.

5.  Ms X said that at about 8:30 p.m. on 28 April 2013 the applicant had returned to the premises smelling strongly of alcohol.  She was preparing dinner.  Having failed to obtain entry to Mr Kumar’s room, the applicant simply removed his trousers, leaving him clad in underwear only.  Ms X went to her room and provided the applicant with a pair of her husband’s red boxer beach shorts which, at her invitation, the applicant put on.  Soon afterwards, whilst she was standing by the sink in the kitchen, he approached her from behind seizing and squeezing both her breasts with his hands.  Having struggled to free herself from his grip, she turned around and reprimanded him, telling him to sit down.  He did so.

6.  Then, she shared with him the food that she had prepared.  Whilst she was washing the dishes, the applicant approached her again from behind and squeezed her breasts and, having dragged her into her bedroom, pushed her onto the bed.  He bit her private parts through her shorts.  She resisted, pushing him away, kicking him with her feet and shouting out.  Eventually, he succeeded in removing her shorts and underpants and removed a pair of shorts and the underpants which he was wearing.  Then, he penetrated her vagina with his penis.  As he did so, he used one hand to cover her mouth and another to hold one of her hands.  After about five minutes, he withdrew his penis from her vagina and ejaculated outside her body.  She did not consent to any of the sexual acts of the applicant.

7.  Shortly afterwards, the applicant left the room and Ms X cleaned herself with the bed sheet and closed the door.  Later, having opened the door and observed that the applicant was lying on the sofa, she went to the bathroom and showered.  Then, she returned to her room where she considered the pros and cons of making a report to the police: she had just moved to the area and was not familiar with the place or the people; to do so would be to expose the shameful incident and would be very troublesome.  Having rested during the night, she resumed her consideration of the matter: on the one hand, she regretted having let herself be bullied; on the other hand, she was very worried that reporting the matter to the police would result in her husband, ex-husband and children coming to know about the matter.  In the event, she reported the matter by telephone to Mr Yu, saying “I had been sexually assaulted by somebody else, can you come over?”  He did so and, after she had confirmed that she had been sexually assaulted he reported the matter to the police, who then attended the flat.

8.  The prosecution case was that the applicant had lied about a number of material matters in a video recorded interview conducted on him by police officers in the afternoon of 30 April 2013.  There, he denied having touched Ms X’s breasts with his hand. He denied ever going into her room and having sexual intercourse with her on 28 April 2013.  He said he had had a quarrel with Ms X in which she had slipped and fallen to the ground.  She had abused him in foul language.

The defence case

9.  The applicant testified in the defence case.  He was born in India in 1991 and, having graduated from High School in 2008, had come to Hong Kong in December 2011, where he lodged a claim for asylum on the basis of his fear of torture.  On his release from the Castle Peak Immigration Centre in March 2013, he was permitted by Mr Kumar to live in his flat and to sleep on the sofa in the living room.

10.  On his return to the flat in the evening of 28 April 2013, he gained entry as the result of Ms X opening the door to the premises.  Whilst in the living room he removed his T-shirt and trousers because it was hot.  He put on a pair of shorts that he had been given by Ms X previously, not red boxer shorts.  When he approached her where she was in the kitchen she complimented him on those shorts.  They spoke in Chinese, which he spoke “a little bit”.  For his part, he hugged and kissed her, placing his hands on her breasts.  He told her that he liked her very much.  She laughed and asked him to sit on the sofa.  He did so.  Then, she shared with him the food that she had been preparing.  After he had washed up the plates and returned from the toilet, he went up to her where she was in the kitchen and hugged her.  She expressed concern about the possible return of Mr Kumar and, taking him by the hand, led him into her bedroom.  There, they kissed and fell onto the bed.  Having lifted up her T-shirt, he kissed and massaged her nipples.  He removed his shorts and underpants and she touched his penis.  Then she removed her shorts and he kissed her vagina and inserted his finger.  She masturbated him and he ejaculated.  He used no force and he believed that she consented to the conduct.

11.  The applicant admitted that the account of the events that he gave in the video recorded interview of his encounter with Ms X in the flat at the time of the alleged rape was a series of lies.  He lied because he was frightened, having been arrested by the police for rape.

The issues

12.  The issues raised in the respective cases were clear.  Ms X said that the applicant had overpowered her and had sexual intercourse with her without her consent.  The applicant denied that he had sexual intercourse with Ms X and said that such sexual activity that they had was with mutual consent.

The grounds of appeal against conviction

13.  By the re-re-amended Grounds of Appeal against Conviction Ms Panesar submitted that the judge erred first, in permitting the prosecution to adduce evidence of the applicant’s previous criminal conviction in the Magistracy for fighting in a public place, for which he was fined $750 on 12 November 2012, and the fact that he was bound over to keep the peace on the same date in respect of separate but similar conduct, namely fighting in a public place, occurring on a different occasion.  She contended that the requisite provisions of section 54 of the Criminal Procedure Ordinance, Cap. 221 were not satisfied.  Secondly, she contended that even if those provisions were satisfied, the judge erred in the exercise of discretion in permitting the prosecution to adduce evidence of the applicant’s criminal conviction.

14.  Thirdly, Ms Panesar submitted that, having permitted evidence to be adduced, the judge failed to give adequate directions to the jury as to the limits use to which they could put the evidence which did not include the applicant’s propensity to commit a violent crime.  She contended that the judge ought to have given the jury a “full propensity” direction and reminded the jury that the applicant had never been convicted of any sexual offence let alone the offence of rape.

15.  Fourthly, she submitted that the judge ought to have given separate directions to the jury in respect of their approach to the criminal convictions of the applicant on the one hand, and Ms X on the other.  The judge erred in giving the jury a direction which encompassed both of them.  In giving the direction in respect of the applicant, she submitted that the judge ought to have reminded them again at that stage not only that if they determined that the evidence of the applicant was or may be true they were to acquit but also that, even if they “did not positively believe the evidence of the applicant”, they could not find an issue against him “contrary to that evidence if that evidence gave rise to a reasonable doubt as to that issue”.

16.  Finally, she complained that the judge had erred in permitting Mr Neil Mitchell, counsel for the prosecution, to ask the applicant in cross-examination if he could “give or explain any reason” why, if their sexual activity had been consensual, Ms X had complained in the morning in a distressed state to both Mr Yu and to the police that she had been raped.[1]

17.  Ms Panesar submitted that the cross-examination of Ms X in respect of her criminal convictions of operating an unlicensed massage establishment and keeping a vice establishment was not intended to impugn her character, rather it went purely to her credibility.  It was contended that its purpose was to rebut the applicant’s testimony that one of the many reasons she offered for not making an immediate report to the police was that she was concerned that once a report was made her husband, ex-husband and daughters would come to know of the shameful fact that she had been raped and she would be embarrassed. 

18.  She submitted that the judge erred in exercising her discretion to permit the prosecution to adduce the evidence having regard to the nature of the conviction of the applicant and the crimes for which he was standing trial.  The conviction of the applicant for an offence of fighting in a public place and the fact that he was bound over in another matter “was not relevant to any issue in the case, including credibility since previous offences were not offences of dishonesty”.  On the other hand, impermissibly, the jury might consider them relevant to his propensity to commit acts of violence, including violent rape.  The judge failed to direct the jury adequately in respect of the issue of the propensity of the applicant to commit a violent crime.

A consideration of the submissions

19.  There is no dispute that, in the course of cross-examination of Ms X, Mr Oliver Davies, counsel for the applicant at trial, cross-examined Ms X about her criminal convictions. Ms X accepted that in 2007 she had been convicted of operating an unlicensed massage establishment and that in January 2013 she had pleaded guilty to the offence of keeping a vice establishment in 2009.[2]  She accepted that girls working at the establishment provided services of masturbation.  She agreed that she had been sentenced to imprisonment for “a couple of months”.

20.  Earlier in the cross-examination Mr Davies raised with Ms X the fact, which she accepted, that she had worked as a masseuse and had operated a massage parlour in Yuen Long in 2007/8 and in 2009 in Sham Shui Po.  However, when he suggested that she had been operating vice establishments, Mr Mitchell, counsel for the prosecution, intervened and at his request the jury was asked to leave the court.  In their absence, having acknowledged that the prosecution was not in a position to prevent Mr Davies from putting her previous convictions to Ms X, he raised with the judge the separate issue of questions being posed of her previous sexual activity, which line of questioning he submitted required the consent of the court, pursuant to section 154 of the Crimes Ordinance, Cap. 200. Mr Davies explained that he did not propose to suggest any improper sexual activity by the applicant herself, rather he sought to adduce evidence from her that she had run a vice establishment in which sexual services were offered to customers by employees.  He explained that he did so, in order to put into context the concerns which Ms X alleged about the consequences of making a report to the police of having been raped, namely that her daughters would come to know of that shameful event.  That, he suggested was much less shameful than operating a vice establishment.

21.  Although Mr Davies did not immediately resume his line of cross-examination, namely that Ms X had operated vice establishments which provided sexual services, soon afterwards he did so and, in the face of specific cross-examination, Ms X admitted the conduct that was the subject of those criminal convictions.  Then, the following interchange ensued between Mr Davies and Ms X:[3]

“ Q. Now you told us yesterday, the reason you didn’t immediately report the rape is because you thought it would embarrass your children and your ex-husband, right?

A. It was also a factor.

Q. Well, that’s what you told us yesterday.

A. Yes.

Q. Did you not think for your daughter, it will be a little bit embarrassing to find she had a mother who operated a vice establishment?

A. At that time, when I just came to Hong Kong, I was not familiar with the place nor the people. I thought that I could make more money with my own hands in order to have moneys saved up for my elderly stage, elderly life.

Q. That’s not the question I asked. Did you not think it would be very embarrassing for your daughter if she found out, if it became public knowledge, that you were operating a massage establishment, a vice establishment?

A. Also thought about it.

Q. Yes, still every day you went to work and you operated this establishment, knowing full well it would be very embarrassing for your daughter. You had no hesitation in doing it.

A. Not exactly so.

Q. You didn’t care, did you?

A. Not so.

Q. You didn’t give a second thought to how your daughter or the rest of your family felt embarrassed about your behaviour.

A. Disagree.

Q. Which do you think is more shameful? Operating a vice establishment or being a victim of rape? Answer the question, please. Are you going to answer the question or not?

A. I never thought of it.

Q. Let me suggest to you, it would be far more embarrassing for any child to find out their mother works providing -- arranging for other people to provide sexual services and for their mother to go to prison than it would be to find out that their mother had been raped.

A. Disagree.

Q. You never cared about your children. You abandoned them and went and spent all the money in Macau, gambling.

A. Disagree.”

22.  In re-examination, the issue of her daughter’s embarrassment at her working in a vice establishment was revisited:[4]

“ Now, it was also suggested to you that concerning your work in the massage establishment, that every day you went to work in this massage establishment, you knew that it would be embarrassing for your daughter.  And your response was “Not exactly so”.  Could you explain that, please?

A. Because in 2007 I was beaten up by my husband, by my ex husband.  I -- but as I have mentioned earlier, after the job of security officer, I went to work at Leung Pik-si and I was cheated out of $200,000.

Q. Yes, go on, please and explain.

A. He reprimanded me every day.  “You Mainland woman.”

Q. I was asking you about your daughter or what you said “Not exactly so” concerning your embarrassment factor with your daughter.

A. Since I was separated with my husband in 2007 and later divorced in 2008, I was not allowed to see my children.  I was being treated like a dead person.

Q. Do you know whether your daughter was aware that you had been convicted of an offence?

A. She will not know.  Because I have not been seeing them for many years already and they won’t even know whether I am still alive or I am dead.  So as long as they are happy, everything doesn’t matter to me.”

23.  At the outset of his cross-examination of the applicant, Mr Mitchell applied to the judge in the absence of the jury for leave to cross-examine the applicant on his previous convictions.  He did so on the basis of the earlier cross-examination of Ms X by Mr Davies in respect of her criminal convictions, in consequence of which he submitted the applicant had “lost his shield”.  He contended that the fact of the applicant’s previous convictions went only to his credibility.[5]

24.  For his part, ultimately Mr Davies opposed the application, contending that in cross-examining Ms X, the defence was not attacking her character.  Rather, it was to challenge her credibility, namely her explanation that a reason for the delay in reporting the matter to the police was her concern of her own embarrassment should her ex-husband, husband and daughters come to know that she had been raped.[6]  That explanation was to be judged by the risk she ran of embarrassment from her family coming to know that she operated a vice establishment.

25.  In the event, the judge ruled:[7]

“ Yes, well I do feel that since the prosecution witness was examined on her previous convictions, and it does go to her credibility and no doubt her character, the prosecution is able to put the same background as to the defendant’s previous convictions to him and I would allow the defendant to be cross-examined on that.”

26.  Mr Mitchell dealt with the criminal convictions of the applicant immediately upon resumption of cross-examination:[8]

“ Q. ………you heard your counsel ask Madam X about a previous conviction that she had, is that right?

A. Yes.

Q. You also have a previous conviction, is that right?

A. Yes, two times fighting.

Q. One is a conviction for fighting in a public place.

A. Yes.

Q. This was in November 2012.

A. Yes.

Q. And also you were subject to a separate court order also for fighting in a public place, to be bound over to keep the peace.

A. Yes.”

27.  Immediately thereafter, Mr Mitchell went on to inform the jury:

MR MITCHELL:

“ Members of the jury, her Ladyship will be giving you directions on this issue in due course, but I should make it clear, the fact that he has previous convictions for fighting in a public place should not be taken as evidence of his guilt in relation to these particular counts before him. I hope to make that clear to you at this stage; you will be reminded of it in due course.”

Summing up

28.  In her summing up, the judge reminded the jury of the evidence in respect of the criminal convictions of Ms X and the applicant and gave them directions as to how they were to approach that evidence:[9]

“ I turn now to the previous convictions. You have heard that both X and the defendant had previous convictions. X has two convictions for operating and managing a vice establishment, one of them of which she was sentenced to a few months of imprisonment. The defendant had one previous conviction, and was fined, and the other he was a bound over, and these two matters were in relation to a fighting in a public place - the conviction and bindover. So, they were both in 2012. I failed to mention X’s convictions were in 2007 and 2013. ……………….

In respect of the defendant’s previous convictions for fighting, they are not records of rape violence.

Defendant’s previous convictions has been given in evidence because he, through the defence counsel, Mr Davies, had attacked the character of X who was a prosecution witness and it is his right that in those circumstances you should also know the character of the defendant who was making that attack, so that is why you have heard of both their convictions.

So, what is the relevance of the defendant’s and X’s convictions in this case. The only reason why you have heard about these previous convictions, is the knowledge of the character of both the defendant and X. It will assist you to judge the truthfulness and credibility of their evidence when you come to consider this matter.

You must not assume that the defendant is guilty because he has a previous conviction, or that the defendant and X are not telling the truth because they have previous convictions. You must not assume that.

The defendant’s convictions are not relevant at all to the likelihood of him having committed this offence. They are not relevant. The fact that he has a previous conviction, the defendant, is not evidence and does not prove his guilt in these alleged offences. So, the only relevance is as to whether you can believe him as to his credibility, his truthfulness.

Please, do not allow these convictions to affect your judgment in this case.  It is for you to decide the extent which, if at all these convictions -- previous convictions help you about the truthfulness of the defendant and X.  That is all.”

29.  Earlier, the judge had reminded the jury of the submissions of the defence, in the context of the failure of Ms X to make an immediate complaint of rape and her evidence that she was concerned that this shameful matter would be made public, of the relevance of her criminal convictions:[10]

“ ………..the defence are saying that X did not complain immediately after the alleged rape or indecent assault, and her reason for not complaining or reporting about it, that she was shameful, is unbelievable given her convictions of operating and keeping a vice establishment, which the defence say is more shameful than being raped.

It is the defence case that she did not make a complaint, as one would expect, immediately after the rape as she had consented to the sexual relations or the acts between them, the defendant and her, and it was simply not true that she had been raped or indecently assaulted.

The fact of the trauma of rape can cause feelings of shame and guilt, which might inhibit a woman from making an immediate complaint about rape. However, we must weigh this with the facts of this case where, as you heard, X has two previous convictions connected with the operating and managing or keeping a vice establishment.

It is suggested by the defence that in view of these two convictions it is unbelievable that X has feelings of shame, as she should feel more shameful in running the vice establishment which involves offering masturbation services to men, then not reporting the matter earlier. So, simply, X is not a truthful witness.”

30.  Section 54(1)(f) of the Criminal Procedure Ordinance, Cap. 221 provides that:

“ a person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless-

(i) ……………: or

(ii)  ……the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution,”

31.  There is no doubt that the cross-examination of Ms X in respect of her previous criminal convictions necessarily involved imputations on her character.  It beggars belief that it was suggested otherwise.  In the context of the acceptance by Ms X, in the face of questioning to that effect, that she had been convicted in January 2013, on her own plea of guilty, to keeping a vice establishment in 2009, the following exchange ensued with counsel for the applicant:[11]

“ ……..When you pleaded guilty, you agreed to a set of facts and that set of facts said that you were keeping this establishment where girls were arranged for sexual services, right?

A. No.

Q. What did you agree to?

A. I admitted that I kept the establishment.

Q. And that sexual services were being provided there. Answer the question, please.

A. At that time only masturbation.

Q. Offering masturbation, and you knew about it?

Y.  Yes.”

32.  As noted earlier, in the course of cross-examination of Ms X in respect of her work as a masseuse, Mr Mitchell intervened when Mr  Davies first suggested to Ms X that she was “operating vice establishments…offering sexual services”.[12]   In the absence of the jury, Mr Mitchell acknowledged that he was not able to prevent Mr Davies posing questions in respect of Ms X’s criminal convictions.  In context, the import was obvious, albeit that no specific warning was made, as to the consequences if the applicant was to give evidence.  In the event, Mr Mitchell had anticipated correctly that Mr Davies intended adducing evidence not only of her convictions but also the penalties imposed upon her.  Clearly, Mr Davies was alive to the risk he was running that the applicant’s criminal record would be adduced before the jury.

33.  There is no dispute that the judge had a discretion as to whether or not to permit Mr Mitchell to adduce the criminal convictions of the applicant before the jury.  It is to be noted that at the outset, whilst expressing doubts as to why the prosecution sought to adduce the applicant’s criminal convictions, Mr Davies said “I’m not really objecting to it going in”.[13] Only later, did Mr Davies indicate that he took objection, asserting “it wasn’t in any way to attack her character”.  He went on to say “her credibility, not her character though, and this is the difference”.

34.  As was made clear by the judge in her ruling, the submission was to point to a difference with no substance. We agree.

35.  Whilst it may have been the case that other judges might not have exercised their discretion to permit the prosecution to adduce evidence of the applicant’s criminal convictions, we are satisfied that her determination to permit this course of events lay squarely within her discretion.  There is nothing in the submissions advanced by Ms Panesar to suggest that the judge erred in principle in the exercise of that discretion.

36.  Further, we are satisfied that the judge gave the jury the appropriate directions in respect of how they were to approach the use of the evidence of the applicant’s previous convictions, namely that it was relevant to his credibility only and irrelevant to his propensity to commit the offences on which he stood trial.[14]  Insofar as the judge directed the jury in respect of the relevance of the previous convictions of Ms X, which she dealt with during her direction in respect of the previous conviction of the applicant, her direction was apposite.  As the judge said, it was relevant to the “truthfulness” and “truthfulness and credibility” of her evidence.[15]

Cross-examination of the applicant of his knowledge of a motive in Ms X to lie

37.  In cross-examination by Mr Mitchell, the applicant having confirmed that his sexual activity with Ms X had been consensual, “she was happy, I was happy” the following interchange occurred:[16]

“ Q. Can you give or explain any reason why in the morning she contacted Mr Yu?

A. I don’t know anything about that.

Q. She contacted Mr Yu, Mr Yu came, she was very distressed and she complained both to Mr Yu and subsequently to the police officer who also observed her to be distressed, that she had been raped by you.

A. I don’t know why she do that.

Q. So from the feeling of mutual pleasure, according to you, in the morning she changed and becomes very distressed and makes this complaint.

A. I don’t know, I have no idea about this.

Q. You’re suggesting that she’s come to this court and described.. those actions of yours and that she had been lying to this court, right?

A. I don’t know, whatever I could remember I told that.

Q. You suggest she’s been lying to this court.

A. I don’t know.

Q. You accept she was distressed in the morning. She’s described and the witnesses, Mr Yu, Mr Kumar and the police officer all described her as being in a distressed emotional state.

A. I don’t know.

Q. What, you don’t accept that she was distressed?

A. I don’t know about this, for whatever happen between both of us was with the consent of each other.”

The Law

38.  In his judgment in the Court of Final Appeal in Wong Kwok Wang Warren v HKSAR, Chan PJ, with whom all the other judges agreed addressed the issue of the permissibility of the prosecution exploring with a defendant in cross-examination his knowledge of a motive in a prosecution witness to lie in giving evidence adverse to the defendant:[17]

“ In my view, whether this line of cross-examination is permissible is to be resolved by considering two matters. First, whether the answer is relevant. Second, whether there is any legal principle or policy which requires its exclusion. (See Cross & Tapper on Evidence (10th ed.) p.80.)

(i) relevance

It is not disputed that any fact which throws light on a possible motive to lie on the part of a witness is a factor to be taken into account in the assessment of his evidence as it is usually relevant both to the credibility of the witness and an issue in the case, that is, the probability of his evidence being true.  As is generally accepted in the authorities discussed above, cross-examination of a witness is permissible and evidence is admissible to show that he has a motive to lie.  Normally, if there is indeed a motive to lie on the part of the witness, one of the persons who would have or is likely to have knowledge of facts tending to show such motive exists would be the one against whom the allegation is made.  Thus, it is fair and even pertinent, in some cases, to ask the person being accused whether he is aware of any relevant fact or reason for the witness to lie about him.  He may or may not know of any fact or reason from which a motive to lie can be established or inferred.  But his knowledge or lack of it is relevant to the credibility of the witness as well as the probability of what is said by the witness being true.  It is certainly a relevant matter which the jury when assessing the witness’s evidence may wish to take into account.  (See also Eichelbaum CJ in R v T p.266, line 20.)”

39.  Having addressed the possible dangers of permitting such a line of cross-examination, Chan PJ concluded that they were not sufficient reason to exclude such cross-examination:[18]

“ Like all the judges in these previous decisions, I am conscious of the possible dangers which may be generated by permitting cross-examination of the accused on the witness’s motive to lie and the need for the trial judge to give appropriate directions to the jury to alleviate these dangers when they emerge. As discussed in R v E, and acknowledged by the courts in all these cases, these dangers consist mainly of the risk of misuse by the jury of the accused’s answer and the possible adverse impact on the burden and standard of proof. ……..

In my view, if a line of cross-examination is relevant both to the credibility of the witness and the probability of an issue in the case, this ought to be allowed unless this is contrary to any legal principle or policy and there are good reasons to exclude it.  It is not contended that these problems cannot be solved and any unfairness to the accused cannot be removed by appropriate directions from the trial judge.”

40.  Of the circumspection required in pursuing such a line of cross-examination, Chan PJ observed:[19]

“ (1) the questions must be confined to the eliciting of facts which are or would be known to the accused and must not be pursued to promote speculation as to possible motives. (See Eichelbaum CJ in R v T, p.266.)

(2) if the prosecution or defence is aware of any fact or material which may be relevant to this issue, this should be put to the witness during his testimony and if necessary, further explored with other witnesses or the accused. Where it is simply alleged that a prosecution witness has lied but no particular motive has been suggested to him as to why he has done so, it is, in most cases, unlikely that the accused would have knowledge of any fact tending to show there is a motive to lie. In such a case, it is seldom helpful for the prosecution to cross-examine the accused about it. Even if such a course is adopted, the matter should not usually go beyond a negative answer from the accused. But if the witness has not been challenged as having lied, it would not be appropriate to question the accused about knowledge of facts giving rise to an inference of a motive to lie.

(3) the trial judge should exercise his discretion in disallowing any question which is unfair to the accused.”

41.  Of the danger that a jury might misuse the accused’s answers and the possible adverse impact on the burden and standard of proof, Chan PJ said:[20]

“ Where such dangers arise, it is important that the jury are reminded clearly and firmly that the accused is not required to prove any motive to lie on the part of the witness, that it is for the prosecution to satisfy them that the witness is telling the truth and that the burden always remains with the prosecution to prove that the accused is guilty of the charge beyond reasonable doubt. In most cases, I do not think specific directions are required.”

The propriety of the cross-examination

42.  We are satisfied that the impugned questioning of the applicant by Mr Mitchell was permissible and admissible, it being relevant to the issues in the case.  The questioning did not stray beyond that which was permitted, namely exploring whether or not the applicant knew of any reason that Ms X might complain of rape having enjoyed consensual sexual activity.  The repeated refrain of the applicant’s answers were to the effect that he knew of no reason and culminated with an assertion that their sexual activity was consensual.

The dangers of misuse of the evidence by the jury

43.  Comment was made by both counsel in their closing speeches of the effect of the cross-examination of the applicant on this issue.  In his speech, Mr Mitchell said:[21]

“ Despite claiming that she was happy and enjoyed their sexual encounter, he could offer no explanation as to why, the following morning, Madam X was in a distressed state and had contacted Mr Yu and told him that she had been raped and, subsequently, made the same complaint to the police officer.

The evidence of her distress and her emotional condition comes not only from X herself but you will have heard the evidence of Mr Yu to that effect; you would have heard the evidence of Mr Kumar to that effect; and you would have heard the evidence of the woman police officer who attended the scene to that effect.”

44.  In his closing speech, Mr Davies said:[22]

“ A lot has been made of her emotional state. Why was she emotional? Men-women are sometimes emotional and sometimes you don’t understand it. Men are sometimes emotional and sometimes you don’t understand why. They could be numerous reasons; that could be numerous – and how she generally felt shame at what she’d done. I don’t know that she was developing a relationship with somebody else and she felt, oh, I shouldn’t have done that. We don’t know.”

Summing up

45.  In her summing up the judge referred to those closing submissions.  Of Mr Mitchell’s comments, she reminded the jury that he suggested:[23]

“ …no woman who participated in the consensual acts of sex would complain the next day.”

46.  Of Mr Davies’s submissions she noted that he had suggested:[24]

“As to why someone who has consensual sex would change their story the next day, he says quite frankly, he does not know the reason why.  He cannot give you an answer, he does not know.  But he asks you and invites you to consider there are many reasons.  One reason he gave was, “She may be feeling guilty”.  I think Mr Davies said that she could have a boyfriend or going into relationship and she felt guilty about having sex and decided to change her story.”

47.  The judge addressed the issues not only of the burden of proof but also the consequences of the jury rejecting the evidence of the applicant at the outset and at the conclusion of her summing up.  At an early stage, she said:[25]

“ This is a criminal case, and you must accept that the defendant is innocent unless he is proved guilty, and that burden of proving him guilty is on the prosecution always.

The fact that the defendant sits there behind those bars means nothing at all. He should not be disadvantaged because you see him sitting there. It is the prosecution that has brought the charge against him, and it is for the prosecution to prove it. The defendant does not have to prove his innocence.

Likewise, the defendant does not have to give evidence or call witnesses.  He is entitled to sit back and put the prosecution to strict proof of the case against him.  However, in his case you saw the defendant elected to give evidence, and he put forward a defence. But, still, it would not be for him to prove the defence so offered.  It would remain for the prosecution to disprove what he has said.”

48.  At the conclusion of her summing up, having summarised the points made on behalf of the prosecution and the defence, the judge addressed those two issues again:[26]

“ I remind you once more, in this criminal case, the burden is always on the prosecution. They discharge their burden only when they make you feel sure that the defendant is guilty. It is not for the defendant to prove his innocence.

So, even if you reject that is, you do not accept, you find he is not truthful, you must nevertheless be satisfied beyond all reasonable doubt, that is to be sure that the prosecution case has been proved before you can find the defendant guilty. As I said, this would depend largely and principally on the evidence of X.

And if the defendant’s defence is or may be correct, then he is entitled to be acquitted, that is to be found not guilty. ”

49.  As is apparent from the directions that the judge gave to the jury she did not expressly direct them that there was no obligation on the applicant to show that Ms X had a motive to lie about the applicant’s conduct.  With respect, it would have been better if she had done so expressly.[27] But, as noted earlier, the judge had told the jury at the beginning and the end of her summing up that it was for the prosecution to prove the applicant’s guilt so that they were sure of his guilt and that it was not for the applicant to prove his innocence.  Moreover, she went on to direct the jury that, even if they rejected the applicant’s evidence, it remained for the prosecution to satisfy them so that they were sure of the applicant’s guilt.

50.  In the course of argument, Ms Panesar submitted that the judge ought to have given the jury an additional direction, namely that there was no evidence that the applicant was aware of the distressed state of Ms X at the time that she made her complaint.  That is nothing to the point.  The cross-examination was based on the unchallenged evidence of the fact that at the time that Ms X made her complaints she was very distressed, not on the basis that he witnessed the distress.  In any event, the primary question of the applicant was directed to whether or not he knew of any reason why Ms X, having enjoyed entirely consensual sexual activity with the applicant the previous evening, should complain of rape.  Only then was the applicant reminded of the unchallenged evidence of the witnesses who received the complaint of Ms X that she was very distressed.  The questions asked of the applicant were entirely permissible and the directions of the judge appropriate.

Conclusion

51.  For the reasons we have set out, we are satisfied that there is no merit in the grounds of appeal against conviction, which is dismissed.

[1] Appeal Bundle, page 285 A-M.

[2] Appeal Bundle, pages 215 N - 217 L.

[3] Appeal Bundle, pages 217 N - 218 J.

[4] Appeal Bundle, pages 242 S - 243 H.

[5] Appeal Bundle, page 260 A.

[6] Appeal Bundle, pages 260 D.

[7] Appeal Bundle, page 260 F.

[8] Appeal Bundle, page 261 I-N.

[9] Appeal Bundle, pages 16 A - 17 M.

[10] Appeal Bundle, page 13 F-S.

[11] Appeal Bundle, page 217 P-I.

[12] Appeal Bundle, page 212 A-C.

[13] Appeal Bundle, page 260 C.

[14] Appeal Bundle, page 17 A-M.

[15] Appeal Bundle, page 17 C-L.

[16] Appeal Bundle, page 285 C-M. 

[17] Wong Kwok Wang Warren v HKSAR (2009) 12 HKCFAR, paragraphs 35-36.

[18] Wong Kwok Wang Warren v HKSAR, paragraphs 39-40.

[19] Wong Kwok Wang Warren v HKSAR, paragraph 42.

[20] Wong Kwok Wang Warren v HKSAR, paragraph 44.

[21] Appeal Bundle, page 291 H-L.

[22] Appeal Bundle, page 315 B-E.

[23] Appeal Bundle, page 45 J.

[24] Appeal Bundle, pages 46 R - 47 B.

[25] Appeal Bundle, pages 6 P - 7 D.

[26] Appeal Bundle, pages 47 O - 48 D.

[27] See Chan PJ in Wong Kwok Wang Warren v HKSAR at paragraph 46.