THE QUEEN v. HUI CHIU-KEUNG

IN THE COURT OF APPEAL

BETWEEN

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JUDGMENT

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Kempster J.A.:

1. This is an application for leave to appeal against conviction by Hui Chiu-keung who was convicted by a jury in the High Court on 11th December 1985 of two offences of rape.

2. In 1969 the English Court of Appeal (Criminal Division) held, by necessary inference, that when a number of men are alleged to have acted in concert and successively to have raped the same woman at the same place and on the same occasion there should be separate counts on the indictment, each charging one of the men as principal in the first degree and the others as aiders and abettors. R v Holley & Others ⁽¹⁾. This guidance was followed by the Crown and by Hopkinson J. in relation to the present applicant and others with the result that the jury were presented with an indictment the first 3 counts of which were in identical terms and directed that each of the 3 accused was to be considered a principal in the first degree in relation to one of these counts and as an aider and abettor in relation to the others. The jury was confused and brought in apparently inconsistent verdicts. We first read the record of the colloquy between the Judge and counsel which followed with disbelief. Ultimately further directions were given and consistent verdicts returned. By then both Judge and counsel appreciated that R v Holley & Others⁽¹⁾ had long been overruled by DPP v Merriman⁽²⁾ where, by expressly approving R v Fenwick⁽³⁾, the House of Lords held that a charge of rape in the relevant circumstances allowed the Crown to contend that each accused had acted pursuant to a common design or, alternatively, was individually guilty of rape. One count would have sufficed; the directions to the jury have been simple and the trial Judge as well able to assess the appropriate sentence for any accused found guilty as after a trial on 3 counts.

3. The legal and procedural considerations just canvassed are not relied upon by the unrepresented applicant. We are satisfied that he was in no way prejudiced by what transpired in that regard. What he does contend in his written grounds of appeal is that the verdicts were against the weight of the evidence and that certain evidence was improperly admitted. Taking the second point first the applicant asserts that his written confession, which can be regarded as corroboration of guilt if admissible, was not made voluntarily. He gave evidence on this issue on a voir dire. So did police witnesses. The Judge disbelieved the applicant and held that he had made a voluntary confession. Nothing has come to our attention which would permit us to interfere with that finding or to regard the confession otherwise than as an admissible document. In the premises there was ample evidence permitting the jury to find, as it did, that he was a party to a gang rape in one instance as principal and in another as an aider and abettor.

4. This morning the applicant raised a fresh and, in our view, critical point. It was common ground that shortly after the 30th play 1985, when rape is alleged, the victim went to live and cohabit and share drugs with the applicant at his home. He pleaded guilty to a count of unlawful sexual intercourse in consequence. This was a vital matter for the jury to consider and cried for emphasis since he had admitted to intercourse with the complainant on 30th May, claiming that it was with her consent. However, in the course of his summing up the Judge directed the jury as follows: -

"Don't concern yourself with their subsequent co-habitation and sexual intercourse between the 31st [May] and 4th June, although she was under sixteen. For he admitted that, and he has made no bones about that. So you'll not be, asked to give a verdict on that."

And later, dealing faith the evidence of the applicant and his description of a visit which he alleged had been made by him to the victim at Fanling:-

"Just as I have suggested that you should concentrate on what happened during the morning of the 30th May when considering the victim's evidence, then obviously the same would apply in relation to him."

While the Judge did go back on these directions to this extent:-

"In deciding whether the applicant did intend to commit rape you must of course have regard to all the evidence."

he went on to emphasise that what was relevant was the applicant's own consumption of drugs. He at no time directed the jury as to the relevance to the issue of consent by the victim of her immediately ensuing amity with him.

5. The directions just read fall to be considered in relation to a complainant who, according to the Judge's direction, had told less than the whole truth and had been under the influence of drugs at the material time. When considered in the context of the summing-up as a whole they leave us of the opinion that they were misdirections on a material point. Further, we are less than satisfied that the applicant's conviction was safe or satisfactory. No question of invoking the proviso arises. Accordingly we give the applicant leave to appeal, treat this as the hearing of such appeal, quash his convictions and set aside the sentences. This is a proper case for a retrial and we so order. We also make the usual direction for the preferment of a fresh indictment.

6. Before parting with this appeal we feel bound to deprecate the way in which the trial Judge disparaged a number of the witnesses called and, in particular, made the charms of the victim and of her mother the subject of somewhat ungallant and certainly gratuitous comment. We also feel it proper to record that the applicant was refused legal aid on the merits.

(1) [1969] 53 GAR 519

(2) 1973 AC 584

(3) (1953) 54 SR (NSW) 147