HKSAR v. CHUI CHEUK-LAM

HCCC 157/2019

[2019] HKCFI 2869

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL JURISDICTION

CRIMINAL CASE NO 157 OF 2019

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R E A S O N S   F O R   R U L I N G

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1.  The prosecution seeks to rely on the evidence of distress of the complainant in this case of rape.

2.  The Defence objected to admissibility of such evidence mainly on the basis that the prosecution fails to establish the causal connection between the distressed condition (if any) and the alleged rape.

3.  Having heard submission and considered the relevant circumstances of the case as revealed in the proof of evidence, I ruled the evidence admissible, as stated in paragraph 51 below. These are the reasons for my rulings.

4.  At the time of my rulings, I stressed that as the rulings were made on the basis of what shown in the proof of evidence, my rulings may need to be altered upon application by either party and proved necessary as evidence unfolds during the trial.

THE EVIDENCE

5.  Several witnesses said in their witness statements that he / she observed some behavior of X, the complainant, which may be regarded as condition of distress.

6.  At the hearing, Counsel for the prosecution, Mr Acton-Bond, confirmed that the prosecution will only seek to rely on the following areas of evidence as evidence regarding the distress of X.

7.  Firstly, A, the room-mate of X who saw X shortly after the alleged incident.  She said, after she had a shower and returned to the room, she saw X weeping when she was talking on the telephone.[1]

8.  Secondly, B, a male friend of X, whom X sent a text shortly after the alleged incident.  He said when he called X upon receiving the text, she was crying.[2] After this telephone call, he called a female friend of X and arranged to visit her.  When he called X again informing her of the visit, X cried.[3]  He then visited X together with C.  During the visit, when he asked X whether she had something to tell, X started to become emotional and cry.[4]  At around 5 am, after he and C returned to the room having discussed outside what to do, X was still weeping.[5]

9.  B had also described the behavior of X when they X then went to a hotel lobby.[6] Mr Acton-Bond said the prosecution will not adduce that piece of evidence.

10.  Thirdly, C, the female friend of X who went to visit her together with B.  She also said when B asked X whether she had anything to tell, X started to cry and behaved emotionally.[7]

11.  Mr Acton-Bond confirmed that the prosecution will not adduce that part of the evidence of Dr Lo of the A&E Department[8] and that of Dr Cheung the Pathologist[9], which might be viewed as evidence of distress.

SUBMISSIONS

Defence

12.  Counsel for the Defence, Mr Li, submitted that, the prosecution must:

(1)  identify with precision what piece of evidence it wishes to rely on as “distressed condition” of the complainant; and

(2)  whether or not the evidence so identified is referable only to the alleged rape and not any other cause.

13.  Mr Li pointed out that X has given a total of 10 statements.  She did not mention anything about distress until very recently in October this year, which is more than one year after the incident.

14.  In this witness statement, X said when B asked her whether she had anything to tell, she began to tell him what had happened.  At that time, she was frightened and she cried.  She also said she could not remember which part of the incident that she mentioned frightened her and thus brought tears to her eyes since a year had passed (at the time of taking of the witness statement).[10]

15.  Mr Li cited Leung Chi Keung v HKSAR[11] and submitted that the prosecution should not be allowed to rely on evidence of distress as it fails the requirement of causal connection between the distress condition (if any) and the rape.

16.  In Leung Chi Keung[12], the Court of Final Appeal held that “evidence of distress may have probative value as to the facts in issue and weight may be given to it.”[13]  Li CJ observed:

“… evidence of the distressed condition of the complainant in a sexual case must be approached with commonsense. … where a tribunal of fact is of the view that the complainant’s distressed condition may not be genuine or may be due to other causes, evidence of the complainant’s distressed condition would not be of any assistance.”[14]

17.  Mr Li submitted that, even if there was distress, only X herself can tell why she was in such a condition, it is dangerous to rely on other people’s observation as it involves speculation and second guessing.  In other words, none of the other witnesses can tell whether the condition was genuine distress, and more importantly, if it was real distress whether it must be a result of the alleged rape.

18.  Mr Li submitted that the criminal standard of proof applies in determining admissibility.  In the circumstances, the prosecution cannot discharge the burden and the evidence should be ruled not admissible and should not be left to the jury.

Prosecution

19.  Counsel for the prosecution, Mr Acton-Bond, pointed out the evidence he intended to adduce[15] and stressed that it should be a matter for the jury rather than an issue on admissibility.

20.  He submitted that in deciding admissibility the test should not be that of beyond reasonable doubt.  Such test is only applicable in cases concerning admissibility of confession where voluntariness is in issue.  He submitted that only if the evidence in question is not capable of being relevant and probative should it be excluded at this stage.

21.  He quoted the following passage in Leung Chi Keung[16]which Mr Li also relied upon:

“A tribunal of fact must be satisfied (i) that the distressed condition of the complainant was genuine and (ii) that there was a causal connection between the distressed condition and the alleged sexual offence. In other words, it must be satisfied that the distressed condition was not feigned and was referable only to the alleged sexual offence and not any other cause.”[17]

22.  He stressed that the words “tribunal of facts” were used many times and consistently in the judgment, and submitted that the two matters are the concern of the jury, the focus was on assessment of evidence and not admissibility.

DISCUSSION AND CONSIDERATION

23.  Generally, evidence that is relevant is admissible unless there is a specific rule of evidence that excludes it.  Evidence is relevant if it tends to increase or diminish the probability of the existence of a fact in issue.  In determining relevance, the court is to take a fair minded common sense approach.

24.  Evidence of the distress of the complainant may support the complainant’s evidence, including her assertion of lack of consent, as well as other evidence adduced by the prosecution to show that the alleged sexual offence had been committed by someone without implicating the defendant.  It is therefore generally a piece of relevant evidence in a case of this nature.

25.  It is firmly established, as reiterated in Leung Chi Keung[18] that, if evidence of distress is adduced, the jury has to decide whether they are sure that:

(1)  the distressed condition of the complainant was genuine; and

(2)  there was a causal connection between the distressed condition and the alleged sexual offence.

26.  If the jury is not sure as to either of the above, it should disregard the evidence.  If they are sure of both matters, then it is up to them to decide what weight to be attached to the evidence.

27.  In a case where the case is dealt with by a single judge, and equally by a magistrate,[19] the judge performs this duty.  If the trial is one heard by a judge sitting with a jury, it is a duty of the jury.

28.  The present case is a trial with jury.

29.  If evidence of distress is adduced, it is for the jury to decide, on the evidence adduced, whether it was firstly a condition of distress and then to decide the two questions confirmed in Leung Chi Keung[20].

30.  Mr Li contended that the evidence in question should not be left to the jury at all.  From the proof of evidence, there is no explanation from X to account for her emotion state and behavior.

31.  Mr Acton-Bond said it was the intention of the prosecution to ask the jury to draw the required inference from the evidence available.  He submitted that there is evidence in support of such inference.

32.  The concept of admissibility is primarily concerned with the nature of the evidence that is sought to be placed before a court and not the quality or probative value of the evidence.

33.  As said, the evidence of distress is generally relevant in a case of rape.

34.  The court has the general discretion to exclude an otherwise admissible evidence and the usual ground of exercising such discretion is that the prejudicial effect outweighs the probative value despite if circumstances required there may be other grounds to exercise such discretion.

35.  I accept the submission of Mr Li that if the evidence is too tenuous it might be a ground to exercise the discretion.  Such course may be justified to avoid the risk of perverse decision reached by the jury after a proper direction.

36.  Besides, if the court is of the view that the state of the complainant is not capable of being regarded as a condition of distress, such evidence should not be left to the jury as evidence of distress.

37.  In my judgment, what witnesses A ‑ C each said about his / her observation of X[21] is capable of being evidence of distress.

38.  It was the submission of Mr Li that only X herself can account for her emotion and behavior.  However, he was not able to provide any authority to support the proposition that if X does not give evidence to explain her emotion or behavior, evidence of distress should be held not admissible.

39.  It appears from cases that evidence of distress may come from a witness other than the complainant.

40.  Indeed, in Leung Chi Keung[22], the evidence came from the mother of the complainant, she said when the complainant was telling her what had happened, he “was sobbing and his voice was hoarse”[23].  The Court of Final Appeal was aware that the evidence did not come from the complainant.[24]  The Court did not hold that to assist the tribunal of facts to answer the two questions there has to be evidence from the complainant telling why he / she was in such a condition.

41.  Rather than setting such a criterion, the Court observed:

“Whether the tribunal of fact is so satisfied in the case concerned will depend on the circumstances. They will usually include the age and maturity of the complainant, the time interval between the alleged offence and the time when the complainant was observed to be in a distressed condition, the conduct and appearance of the complainant and the events affecting the complainant during this time interval, the circumstances existing when the complainant was observed to be in a distressed condition and whether the complainant expected to be observed at the time.”[25]

42.  In the case of HKSAR v Singh Tersem[26], the evidence of the distressed condition of the complainant came from two other witnesses.[27]  In HKSAR v CHOI CHAI HIM (蔡濟謙)[28], both the complainant and other witnesses testified on the distressed condition of the former.[29]

43.  If there is evidence from the complainant accounting for his / her condition of distress, it falls to be assessed by the jury.

44.  The complainant will testify in this case.  Whether evidence just mentioned will be presented before the jury will depend upon judgment of Counsel.

45.  If there is such evidence, the jury is to assess the credibility of the witness and answer the two questions in the light of their assessment.

46.  If there is no such evidence, the task for the jury is to decide whether the evidence supports the only reasonable inference that the two questions are to be answered in the affirmative.

47.  The Court of Final Appeal observed:

“… if the tribunal of fact is doubtful whether the complainant’s distressed condition is genuine, it should disregard the evidence of distress. Equally, it should disregard such evidence where it is doubtful whether the complainant’s distressed condition was caused by the alleged sexual offence as opposed to other causes.”[30]

48.  The jury will be properly directed according to the authority as to what they should do in relation to this area of evidence.

49.  In my judgment, the evidence of A, B, C, as described in paragraphs 7 - 10 above, are all capable of being regarded as evidence of distress on the part of X.  The evidence is relevant.

50.  I did not think such evidence bears prejudicial effect which outweighs the probative value.  Nor did I think there is any ground to exercise discretion to exclude the evidence.

CONCLUSION

51.  I therefore ruled admissible the evidence of A, B, C regarding the emotional condition of X and her behavior at the same time, with the caveat I mentioned in paragraph 4 above.