THE QUEEN v. LAU KING SANG AND OTHERS

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REASONS FOR JUDGMENT

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Macdougall, J. A.:

1. The applicant, who was the 3rd of four accused at trial, was convicted on one count of false imprisonment, two counts of rape and one count of detention of a woman against her will for unlawful sexual intercourse. He was sentenced by Wong J. to 12 months' imprisonment on the false imprisonment count, to 3 years' imprisonment on each of the rape counts and to 2 years' imprisonment on the detention count. The first three sentences were ordered to be served concurrently with each other but consecutively to the sentence on the detention count. We refused the applicant's application for leave to appeal against his convictions and said that we would hang down our reasons later. This we now do. An application for leave to appeal against sentence was abandoned.

2. The indictment consisted of five counts. The first count alleged that the 1st and 2nd accused and the applicant, who was the 3rd accused, falsely imprisoned a Miss Ling, a Miss Lee and a Miss Tang, and detained them against their will.

3. The second and third counts alleged that the same three accused raped Miss Ling. The evidence oh the second count was that it was the 1st accused who actually had intercourse with Miss Ling, and that on the third count was that it was the 2nd accused who had intercourse with her.

4. There was another count of rape, the fourth count, in which the same three accused and a fourth male, the 4th accused, were alleged to have raped her. It was Miss Ling's testimony that it was the 4th accused who had intercourse with her on this occasion. The jury acquitted all four accused on this count. We shall refer to this later.

5. The fifth count alleged that the 1st and 2nd accused and the applicant detained Miss Ling against her will with the intention that she should have unlawful sexual intercourse with men.

6. The case for the prosecution rested principally on the evidence of the three young girls, Miss Ling, Miss Lee and Miss Tang. Miss Ling, who was almost 15 years of age at the time of the commission off the offences, testified that she and the other two girls were at a video games centre in Yuen Long when the applicant and the 1st and 2nd accused approached them. The 2nd accused placed a hand on her shoulder and propelled her out of the games centre to a nearby park. There in the presence of the applicant, the 1st accused and the other 2 girls, the 2nd accused asked her if she and her two friends belonged to the Shing Wo triad society, telling her at the same time that he had a friend who had been beaten up oh the previous day and admitted to hospital.

7. When Miss Ling replied that she and her friends were not connected with the triad society and had nothing to do with the assault, the 2nd accused appeared to be displeased and told her that he wanted her and her two friends to go to a flat to discuss the matter. He said that his friend who had been assaulted would be there.

8. Miss Ling, who was unwilling to go to the flat, pleaded that she had a previous engagement. However, the 2nd accused, with his hand on her shoulder, steered her to a flat in a nearby building. The applicant and the 1st accused likewise escorted the other two girls to the flat. This consisted of a sitting room in which there was a bed, a kitchen, a toilet and a balcony. On arrival the 2nd accused said that his friend who had been hospitalised as the result of an assault would soon arrive.

9. Some time later Miss Ling saw her two friends and the applicant leave the sitting room for the balcony and the balcony door close behind them. The 2nd accused then held a knife against her neck. Being extremely frightened, she lost her balance and fell onto the bed. The 2nd accused grasped hold of her wrists and the 1st accused pressed down on one of her legs. Her mouth was gagged with some towelling and her eyes were covered with a piece of cloth. The 2nd accused then told the 1st accused to remove his, the 1st accused's, trousers. Miss Ling struggled to escape and managed to dislodge the cloth covering her eyes. Her clothing was removed and the 1st accused raped her. The 2nd accused assisted him by pressing down on her legs. The 2nd accused then removed his own clothing and raped her. While he was doing so the 1st accused rendered assistance by pinning her down. During this act of intercourse Miss Ling suffered a cut from the knife which the 2nd accused was then holding. After the 2nd accused had finished he allowed Miss Ling to go to the toilet to wash herself.

10. When she returned she found that two other young men and the applicant had entered the room. The 2nd accused had a short discussion with them after which he ordered Miss Ling to have intercourse with them. The first young man then removed her skirt and underpants and had intercourse with her. At this time she saw the applicant and the 1st and 2nd accused standing nearby. The second young man then had intercourse with her. Only one count of rape was preferred in relation to these two alleged rapes.

11. Following this Miss Ling again went to the toilet. On her return to the room she saw 7 or 8 young boys aged between 12 and 14 whom she had never seen before. She begged to be allowed to leave, but the 2nd accused told her that she should pay him $5400 as a separation fee.

12. When she replied that she did hot have so much money, the 2nd accused told her that he would take her to a place where she would receive customers.  She was later taken downstairs where she, the applicant, and the 1st and 2nd accused boarded a taxi which drove to a building in Kuk Ting Street. There she was taken into a room by a man while the applicant and the 1st and 2nd accused waited in a sitting room. The door of her room was locked. Later the 2nd accused entered the room and told her that she would have to work there for 2 or 3 days having sexual intercourse with men until she was able to pay him the $5400. During the next 12 hours she had intercourse with 5 men. The applicant then entered her room and took her downstairs and allowed her to go.

13. Miss Lee generally confirmed Miss Ling's testimony as to what had happened at the video centre. She said that the applicant and the 1st and 2nd accused had each placed a hand on a girl's shoulder and told them to go to a nearby park, that at the park they asked the girls whether they were members of the Shing Wo triad society and told them that one of their brothers had been assaulted by people from the Shing Wo. She confirmed that she and the other two girls has then been taken to a flat where they were told to sit on the edge of a bed and were asked whether they wanted to follow the three males. When the girls said that they did hot wish to do so, one of the three took out a knife from a drawer and handed it to one of the other two who patted the blade on Miss Tang's shoulder and asked her if she wanted to be his girlfriend. She refused. The applicant then told Miss Lee to go out onto the balcony.  Miss Lee, Miss Tang and the applicant left the room and went onto the balcony, closing the glass balcony door after them. Miss Lee looked through tires door and saw the 1st and 2nd accused taking off their clothes. She averted her gaze. However, she heard Miss Ling shout "Don't Don't''.

14. After about a half an hour the 1st and 2nd accused, one of whom was naked and the other wearing only underpants, came out onto the balcony and began to wash themselves under a tap. The applicant then told Miss Lee and Miss Tang to leave. On passing through the sitting room Miss Lee saw Miss Ling sitting on the bed looking depressed. The applicant escorted the two girls downstairs in the lift and walked with them for 10-15 minutes before parting company with them.

15. Miss Tang gave a similar account of the events of that day to that of Miss Lee. She said however that the applicant did not lay a hand oh any one of the three girls when they were conducted to the park. Two of the three males spoke to the girls in the park but she could hot recall which of the three they were. While she was on the  balcony she saw either the 1st or the 2nd accused push Miss Ling against a wardrobe. Later one of those two accused began undressing himself. Miss Ling was then pushed onto the bed. Miss Tang heard her call out "No No No" twice. On the first occasion she shouted loudly but on the second occasion her voice sounded muffled as though her mouth was covered with something. Approximately 45 minutes later the 1st and 2nd accused came out onto the balcony and washed themselves. One of them told the applicant that he could permit the two girls, Miss Lee and Miss Tang, to leave. The applicant then escorted them from the premises for some distance before parting company with them.

16. Neither the applicant nor his co-accused gave evidence or called witnesses. The jury convicted the applicant and the 1st and 2nd accused on all counts excepting the third rape count in which it was alleged that the fourth accused was the person who actually had   intercourse with Miss Ling. It is plain that the reason why the jury returned a verdict of not guilty on that count was that the evidence disclosed that at the time of the alleged commission of that offence the lighting was poor owing to the fact that as the lights in the sitting room had been switched off the only lighting came from a dimly lit shrine in the sitting room and indirectly from the balcony. Miss Ling admitted that the light was not bright enough to enable her clearly to see the face of the person who had intercourse with her on that occasion. Moreover, the judge wrongly directed the jury that if they found the principal offender not guilty they must acquit the other accused who were alleged to have aided and abetted the rape. The reason he gave for this direction was that if the principal offender did not commit the rape there was no offence which the other accused could have aided or abetted. This, however, overlooked the possibility that the jury might be sure that someone raped Miss Ling but, because of the weak evidence of identification, might not be sure that it was the 4th accused. Notwithstanding that they should therefore find the 4th accused not guilty, it was still open to them to find the other accused guilty as secondary parties to the rape. For those accused to be convicted it was not essential that jury should be certain of the identity of the principal offender. Of course, if the jury were left with a reasonable doubt that no one had had intercourse with Miss Ling without her consent on that occasion, they would have been obliged to find all accused not guilty. For the reasons we have already given, however, we are satisfied from the evidence that this was not the reason why they found the accused not guilty on this count. Clearly the judge's wrong direction in law was unduly favourable to the applicant and the 1st and 2nd accused.

17. Mr. McCoy, who appeared on behalf of the applicant in this court but not in the court below, advanced several grounds of appeal. With regard to the two rape counts on which the applicant was convicted he contended that "the judges direction on the law of aiding and abetting failed. clearly to indicate that both assistance or encouragement in fact and an intention to assist or encourage must be proved; and that if the evidence established mere presence Without any positive act, a prior agreement that the crime be committed must be proved."

18. What the judge said was this:

"             What is aiding and abetting in the commission of an offence? A person can be guilty of an offence without doing or performing any physical acts. For instance, a robber does not have to be the one who wields the knife or snatches the property. He is equally guilty if he acts as a look-out or waiting in a get-away vehicle outside or nearby the premises in order to assist those who actually commit the robbery to escape after the robbery if and when necessary.

 

            Equally, a man can be guilty of rape Without any physical contact with the woman. Even a woman can be convicted of raping another woman, and this happens if she intentionally encourages or assists a man in some way to rape the other woman. For example, if she induces the other woman to come to a flat or hotel room to be raped or helping the rapist to overcome her or acting as a look-out. But mere presence, mere innocent or accidental presence at the scene is not sufficient to constitute aiding and abetting or encouragement. In particular in the case of the 3rd defendant, you will consider if the presence was merely innocent or accidental - that is to say, the 3rd defendant did nothing to assist or encourage the offences to be committed.

 

            In his address Mr Ko mentioned to you that the 3rd defendant has no control of the 1st and 2nd defendants. But I do not understand what this means because participation in an offence as aider and abettor does not require any control over the principal offender. With respect to him, what Mr. KO told you on this aspect cannot be correct in law.

 

            Now members of the jury, in this case a defendant will be guilty of rape in one of three situations - one, if he actually committed the offence of rape - that is, of course, with the necessary ingredients of rape which I will tell you about in a minute; or if rape was carried out by another defendant in his presence and the defendant who raped was, when committing rape, acting within the scope of an agreement or understanding that the offence would be committed - and that is to say, rape was to be carried out whether by him or by another defendant. Or a third situation in this: Whether there was any prior agreement or understanding or not in existence - and this is a matter of evidence and you will have to look at all toe evidence and consider all the circumstances before you can draw such an inference -and this situation arises: whether there was any prior agreement or understanding in existence, the defendant was present during the rape and in some way intentionally assisted or aided or even encouraged the commission of the offence of rape.

 

            Now you will remember Mr Bell suggested to you in his final address that from the beginning there was already an agreement or understanding between the 1st, 2nd and 3rd, defendants to about the girls to the flat for the purpose not to be identified by the man who was beaten up the day before, but the real purpose was that they or one of them were to be raped. And whether you will draw such an inference is entirely a matter for you. "

19. On a consideration of that direction we do not think that the jury could have been left in any doubt that an accused who did not physically participate in the crime of rape would only be guilty if he was present and intentionally assisted or encouraged the commission of the offence or was a party to an agreement that it be committed.

20. Indeed, we are of the opinion that the judge's direction, in so far as it suggested that unless an accused "was present during the rape" - which we understand to mean actually present in the sitting room - "and in some way intentionally assisted or aided or even encouraged the commission of the offence of rape", any prior agreement by him that rape would be committed would hot be sufficient to ground a conviction, was unduly favourable to the applicant. If the jury concluded that the applicant had been a party to an agreement with the other accused to coerce the girls to the flat with a view to one or more of the girls being raped, they would have been entitled to convict him on the rape counts whether or not he was actually present or at the time of the rapes and, if he was present, whether or not he intentionally assisted or encouraged the rapes at the time they were actually committed. It is apparent from the last paragraph of the passage we have quoted from the judge's direction that the case for the Crown was that from the very beginning there had been an agreement between the applicant and the 1st and 2nd accused to abduct tae girls and take them to the flat with the intention that one or more of them would be raped.

21. The practice of "stamping" a girl by humiliating and degrading her by subjecting her to gang rape so as to render her amenable to prostitution is regrettably an all too common practice in Hong Kong. From a consideration of all the evidence before them the jury would have been entirely justified in concluding that the applicant had been a party to an agreement to abduct and rape Miss Ling.

22. Initially, Mr. McCoy also submitted that the judge erred in law in directing the jury that the evidence that Miss Ling appeared depressed was capable of amounting to corroboration of her testimony on the rape counts.

23. However, the judge did not direct the jury, that that factor alone was capable of amounting to corroboration. In fact he referred them to several matters, namely the production of the knife, the calls "Don't Don't No No", the appearance some 30-45 minutes later of the 1st and 2nd accused oh the balcony - one of them naked and the other wearing only underpants - where they washed themselves, and Miss Ling's depressed appearance. He then said "If you accept all this evidence it is capable of corroborating the evidence of Ling Yin-kwan" (emphasis added).

24. Moreover this was not evidence of her distressed condition at the time of her making a complaint of a sexual offence. It was therefore not evidence in respect of which the judge was obliged to tell the jury that because it was part and parcel of complaint they should attach little, if any, weight to it.

25. The next ground of appeal advanced by Mr. McCoy was that in directing the jury on the ingredients of the offence of rape the judge gave an incomplete and misleading direction on "recklessness" which was not in accordance with the decision in DPP v. Morgan [1976]AC 182. The judge said:

"             I will how explain to you what 'rape' means. A man commits rape if he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent, and the man knows that she does not consent or he is reckless as to whether she consents to it or not. You see, members of the jury, there are three elements to proof in this offence. Firstly, it must be proved that the man had sexual intercourse with the woman. Secondly, at the time of intercourse the woman did not consent to have sexual intercourse with him. Thirdly, it must also be proved that at the time of intercourse tile man knew that the woman did not consent or was reckless as to whether she consented or not.  'Recklessness' here means that although the man did not know that the woman did hot consent but nevertheless he went ahead to have sexual intercourse with her, not caring whether she consented or not."

26. The applicant did not give evidence that he believd that Miss Ling was consenting to intercourse. He gave no evidence at all. In our view, contrary to Mr. McCoy's submission, the question of recklessness did not arise on the evidence before the jury. It is plain to us that in referring to recklessness the judge was merely giving the jury a complete definition of rape. In so doing, he referred to the alternative ingredients specified in s.118 (3) (b) of the Crimes Ordinance of knowledge by the accused that the woman does not consent to the intercourse and recklessness as to whether she consents or not, without considering whether he should tailor his direction to meet the evidence that had been presented to the jury. Although Mr. McCoy did not advance it as an alternative submission, we wish to add that we do not think that there was the slightest danger that the unnecessary reference to recklessness would have resulted in any confusion in the minds of the jurors.

27. Mr. McCoy also submitted that in answering a question asked by the jury the judge usurped their function as judges of the facts. The jury's question, which related to the count concerning the detention of Miss Ling for unlawful sexual intercourse, was this:

"             For the 5th count. The point against her will for unlawful sexual intercourse - If the girl did not agree for that $5400 separation fee, but nevertheless she wanted to settle this matter, so she agreed to receive customers. under the situation, can we say that 'this is against her will'?

 

The judge gave the following answer:

 

"             Again, I would answer the question 'Yes' (he had already answered another question); because the situation is like this, well, she was told, 'Either you pay $5400 or receive customers.' So she had no choice."

28. Mr. McCoy made no complaint as to the answer 'Yes'. He accepted that it was correct. He contended, however, that what the judge said after that was objectionable in that it was open to the interpretation by the jury that the judge was not giving them a direction on the law but was directing them that they should make a certain finding on the facts. We do not agree. The judge's answer was based on the hypothesis posited by the jury. We are satisfied that they would not have interpreted his answer as a direction to make any particular finding on the facts. Indeed, early in his summing up the judge made it abundantly clear to them that they were the sole judges of the facts and that if he, the judge, expressed any views on the evidence, it was their duty to reject them unless they accorded with their own.

29. During the course of argument Mr. McCoy abandoned ground 4, which related corroboration, and two other grounds, grounds 6 and 7, which he had added to his perfected grounds at the commencement of the hearing of this application.

30. There being no substance in any of the grounds of appeal argued before us we refused the application.