HKSAR v. WWK

[English Translation – 英譯本]
CACC 204/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 204 OF 2009

(ON APPEAL FROM HCCC 33 OF 2009)

__________________

__________________

___________________________

REASONS FOR JUDGMENT

___________________________

Hon Cheung JA (giving the reasons for the judgment of the Court):

1.  The Applicant was charged with the following two offences:

(1) “Rape”, contrary to section 118(1) of the Crimes Ordinance (Cap. 200 of the Laws of Hong Kong); and

(2) “Non-consensual Buggery” (“Buggery”), contrary to section 118A of the Crimes Ordinance.

2.  The Applicant was convicted after trial by Deputy Judge M Poon (as she then was) of the Court of First Instance of the High Court and a jury of the two offences. He was sentenced to seven years’ imprisonment for each offence; three years of the sentence on the charge of “Buggery” was ordered to run consecutively to the seven-year sentence on the charge of “Rape”, making a total of ten years’ imprisonment.

3.  The Applicant made an application for leave to appeal against conviction and sentence.

Prosecution Case

4.  The complainant is the Applicant’s natural daughter.  The Applicant is a Hong Kong resident who got married with his wife in the Mainland.  His wife gave birth to the complainant in 1987.  In 1991 the complainant and her mother came to Hong Kong for reunion with the Applicant.  At the age of about 8, the complainant was professionally diagnosed as having behavioural problem and below normal intelligence quotient. She had absconded from home and had gone missing on a number of occasions. Subsequently she was placed under the supervision of the Social Welfare Department and was required to reside in an institution of the Department.  Upon reaching the age of 21 in 2008, the complainant was required to move out of the institution and back to her home.   She then revealed to her mother that she had been sexually assaulted by the Applicant, and revealed to a social worker as to how the sexual assaults took place.

5.  The complainant claimed that in 2000 when she was at the age of about 13, she resided in an institution from Monday to Friday and returned home for the weekend.  Members of her family would take her back to the institution in the afternoon on Sunday. On a Sunday during the summer of that year, the complainant went to the Applicant’s workplace to wait for him to take her back to the institution.  The Applicant, however, led her into a storeroom at his workplace, placed her on a table, removed her underpants, separated her legs, inserted his penis into her vagina and rubbed against it for a few minutes.  The complainant felt a bit of pain.  She did not consent to doing this with the Applicant (the first charge).

6.  Shortly after this incident, the complainant moved back to her home temporarily because the institution underwent renovation.  One day, when only the complainant and the Applicant were at home, the Applicant led her into her elder sister’s bedroom and told her to lie prone on the bed and bend down.  After that, the Applicant removed the complainant’s trousers and underpants, inserted his penis into her anus and rubbed against it for a few minutes.  The complainant felt pain.  She did not consent to doing such sexual acts with the Applicant (the second charge).

7.  The complainant said she had all along remained silent and had not revealed the incidents to others because she was in fear and did not want the family to break up.  It was not until 2008 that she could not put up with it anymore and made the complaint.

The Applicant’s Defence

8.  The Applicant elected to give evidence.  He accepted that the two incidents mentioned by the complainant did take place.  Nevertheless, he said had never inserted his penis into the vagina or anus of the complainant.  In respect of the first incident, he only rubbed his penis near the complainant’s vagina for about one-odd minute.  In the second incident, he rubbed his penis against the complainant’s buttock for about two minutes.

Legal Aid

9.  Initially the Applicant was not legally represented.  In view of the numerous legal issues involved in the application, however, we granted legal aid to the Applicant.  The Applicant is now represented by counsel Mr. Suen Kam Hee in the present application.

Alternative Charges

10.  The ground of appeal advanced by Mr. Suen is that Deputy Judge Poon failed to direct the jury on the alternative charges, thereby rendering the jury’s verdicts unsafe and unsatisfactory.

Alternative Charges of Indecent Assault

11.  We will first deal will the issue on the alternative charges of “indecent assault”.

12.  Section 51(2) of the Criminal Procedure Ordinance (Cap. 221 of the Laws of Hong Kong) provides that:

“If on the trial of any … indictment for any offence other than treason it is proved that the accused is not guilty of that offence but the allegations in the … indictment amount to or include, whether expressly or by implication, an allegation of another offence …, he may be found guilty of that other offence …”

Principles of Alternative Charges

13.  In Ho Hoi Shing v HKSAR [2008] 11 HKCFAR 354 the Court of Final Appeal made the following determination on alternative charges:

(1) If there is evidence upon which a reasonable jury might return an alternative verdict, the judge is under a duty to place that alternative before the jury for their consideration.  He is not absolved from this duty even if that particular alternative is not raised by the parties or is inconsistent with the defence run by counsel for the accused.  The accused can neither be over-convicted nor under-convicted, nor acquitted when they have committed a lesser offence of the type charged (Alexander Von Starck v The Queen [2000] 1 WLR 1270, R v Coutts [2006] 1 WLR 2154 applied).

(2) The threshold requirement for offering alternative verdicts for the consideration of the jury is that: the evidence which may be relied on to support an alternative verdict must not be so incredible or tenuous or uncertain that no reasonable jury could have accepted it.  The threshold is a low one and is consistent with the fundamental principle that “it is for the prosecution to prove guilt beyond reasonable doubt”.

14.  In HKSAR v Chau Peter CACC 398/2009, the Court of Appeal adopted the legal principles laid down in Ho Hoi Shing and stated that if, in respect of an alternative verdict, there was indeed evidence on which a jury could reasonably come to a particular conclusion then there could be few circumstances, if any, in which the judge had no duty to direct the jury as to that alternative verdict.

Directions on “Indecent Assault”

15.  It is accepted by the prosecution and the defence that the elements of “Rape” and “Buggery” include those of the offence of “indecent assault”.  Mr. Suen submitted that Deputy Judge Poon should have directed the jury on the alternative charges of “indecent assault”.  Although she did mention about the offence of “indecent assault” to the jury, she directed them not to consider the offence.

“ Alright, if, after having assessed all the evidence, you come to the conclusion that the Defendant’s account of events – namely, he only rubbed his penis against [the complainant’s] vaginal orifice and buttock respectively – is true or might be true, that would mean the prosecution has completely failed to prove beyond reasonable doubt the element of penetration, which is an important element of sexual intercourse or buggery. In other words, if you are not satisfied that there was penetration, even if you are of the view that his acts constituted indecent assaults or what is commonly known as ‘fei lai’ （非禮）in Cantonese , you must bear in mind that on the indictment there are only one count of rape and one count of buggery, and there isn’t any charge on indecent assault. Therefore, if you come to the conclusion that what the defendant has said is true or might be true, you have to acquit him because (the prosecution) has failed to prove the two charges faced by him.”

The Applicant’s Record of Interview and Testimony

16.  Mr. Wesley Wong and Miss Agnes Chan, counsel for the Respondent, submitted that whether Deputy Judge Poon was required to give directions on the alternative charges of “indecent assault” was a matter of discretion, and that she was entitled not to give such directions in the present case.  Answers given by the Applicant in the record of interview were quoted by the Respondent.  The Applicant claimed that in the first incident it was the complainant who seduced him and when he told the complainant that he would “play game of sexual acts” with her, she took the initiative to cooperate with his movement.  In the second incident, it was the complainant who took the initiative to have sex with him.  In giving evidence in court, the Applicant also claimed that when he told the complainant that he would “play game of sexual acts” (with her), she took the initiative to cooperate with his movement.

17.  The Respondent challenged that it was impossible for the complainant who was just 12 to 13 years old, with borderline intelligence and without any sexual experience at all, to take the initiative to do those acts as alleged by the Applicant.  In the opinion of the Respondent, the evidence of the Applicant was exactly the kind of evidence as referred to by Chan PJ in paragraph 15 in Ho Hoi Shing, as being so incredible or tenuous or uncertain that no reasonable jury could have accepted.

Our View

18.  We do not agree with the argument of the Respondent.  In whatever way the Applicant described the complainant’s conduct, he denied both in his record of interview and in his testimony that he had inserted his penis into the complainant’s vagina and anus.  However, the sexual acts admitted by the Applicant obviously constituted the elements of the offence of “indecent assault”.  According to section 122(2) of the Crimes Ordinance (Cap. 200 of the Laws of Hong Kong), a person under the age of 16 cannot in law give any consent to being indecently assaulted by others.  Hence no matter whether the complainant consented or not, the sexual acts admitted by the Applicant had already constituted the elements of the offence of “indecent assault”.  In these circumstances, Deputy Judge Poon was required to direct the jury on the alternative charges of “indecent assault” for their verdict.

19.  The objective of placing before the jury an alternative charge is that a defendant who has committed a lesser offence should not be convicted of a greater offence and exposed to a greater punishment than his crime deserves.  Similarly, a defendant who has committed a greater offence should not be convicted of a lesser offence and given a lighter sentence.  Further, it is not in the interest of justice if a guilty defendant is acquitted because the jury did not know they could have returned an alternative verdict.

20.  The only option given by Deputy Judge Poon to the jury was to convict or acquit the defendant.  The sexual assaults by the defendant on his natural daughter were extremely despicable acts.  Even if the jury had accepted the Applicant’s defence to be true – namely, his penis did not penetrate into the complainant’s vagina and anus – it was very likely that they would be reluctant to acquit him because they disapproved what he had done and thus would return a guilty verdict. That would be inconsistent with legal principles and in those circumstances, the Court of Appeal would be required to quash the convictions. (See Lord Ackner in R v. Maxwell [1990] 1 All ER 801 at page 807)

21.  In our view, there was a sufficient evidential basis in the present case for Deputy Judge Poon to give the jury directions on the alternative charges of “indecent assault”.  Since the jury were not given an opportunity to consider the alternative charges of “indecent assault”, the jury’s verdicts were rendered unsafe and unsatisfactory.

22.  We are of the view that no matter how serious an offence or how condemnable an act a defendant has committed, it is the duty of the court to ensure that legal principles are seen to be observed and the defendant is given a fair trial.  This is the only way to uphold the rule of law.

Whether Deputy Judge Poon should have directed the jury to return alternative verdicts on “attempted rape” and “attempted buggery”?

23.  We have set out above the provision of section 51(2) of the Criminal Procedure Ordinance.  Section 51(3) of the Ordinance further states:

“For the purpose of subsection (2) any allegation of an offence shall be taken as including an allegation of attempting to commit that offence.”

24.  Based on these two provisions, the two offences with which the Applicant was charged have already included the offences of attempting to commit those offences.  No directions were given by Deputy Judge Poon on the alternative attempted offences.  Mr. Suen submitted that Deputy Judge Poon was required to give the relevant directions.

The Respondent’s Position

25.  The Respondent submitted that Deputy Judge Poon was not required to give directions on the alternative charges of “attempted rape” and “attempted buggery” because there was no evidence whatsoever to support that the Applicant’s intent and conduct at the material times matched with the essential elements of  attempts to commit these two offences.

26.  The Respondent submitted that in the Applicant’s record of interview taken by the police, so far as the first incident was concerned (the Applicant admitted that the sexual assault took place in the storeroom), he only admitted that: (1) he had indecently assaulted the complainant (namely, “touched her lower parts”), (2) he only rubbed his penis against the lower parts of the complainant, and (3) apart from these acts he did not do any other act.  When the Applicant mentioned about the second incident in his record of interview, he only admitted that “I mean (I) just wanted to play some game with her, that’s it” and that he had rubbed his lower parts against the lower parts of the complainant.

27.  The Respondent said in respect of the first incident, the Applicant’s testimony given in court was that he had said to the complainant: “play game of sexual acts”. The Applicant explained that “to my mind, the sexual acts I was referring to meant to rub against the lower parts, the anus.  That’s sexual acts.”

Our View

28.  We do not agree with the Respondent.  The first incident described by the Applicant in his record of interview is consistent with the first incident described by the complainant.  However, the answers quoted by the Respondent from the Applicant’s record of interview allegedly relating to the second incident were, in fact, answers given by the Applicant in relation to the first incident.  In his record of interview, in addition to the first incident, the Applicant also mentioned about two other incidents which took place at his home, but those two other incidents were different from the particulars relating to the second count as described by the complainant.

29.  In any event, we are of the view that in deciding whether there was evidence for an alternative offence, the court had to consider the overall evidence rather than simply what the Applicant had said in his record of interview or what defence he had advanced in court.

30.  In our view, a reasonable jury would consider, so far as the Applicant’s intention was concerned, whether he simply rubbed his penis against the complainant without any intention to penetrate her.  In respect of the first charge, the Applicant claimed that the reason why he stopped rubbing against the peripheral part of the complainant’s vagina was that all of a sudden it came to his mind that she was his own daughter.  In respect of the second charge, the Applicant said he stopped rubbing against the complainant’s buttock because he had heard the noise made by his wife in the other room.  But if there had not been such circumstances, would the Applicant have simply rubbed his penis against the complainant or would he have penetrated her?  That would not be a far-fetched deduction and it was highly likely that it could have happened in the circumstances of the case.  That was evidence to support the offences of attempt.  In our view, there were elements of the offences of attempting, on the part of the Applicant, to commit “Rape” and “Buggery” in the present case.

31.  In such circumstances, in our judgment, Deputy Judge Poon was required to direct the jury on the alternative offences of attempt. Her failure to do so rendered the trial unfair.

Proviso

32.  The Respondent accepted that if it is decided by the Court that Deputy Judge Poon was required to give directions on the alternative charges, the Court should not uphold the original convictions by applying the proviso.

The Issue of Retrial

33.  Both the prosecution and the defence have stated in their written submissions that in the event that the original convictions are quashed, they would ask for an order of retrial.  We expressly indicated to the parties that: although the offences committed by the Applicant were of a very serious nature, if the complainant was asked to testify in court against the Applicant all over again, it would be extremely painful to her; we would be inclined to refuse an order for retrial and to convict the Applicant of two counts of “indecent assault” based on the facts of the case.  After consideration, the parties decided not to make further submissions to the Court regarding retrial or our decision to vary the convictions to ones of “indecent assault”.

Order

34.  We treat the hearing of the Applicant’s application for leave to appeal against conviction as the hearing of the appeal.  As mentioned above, in accordance with section 83A of the Criminal Procedure Ordinance, we quash the convictions for the two original charges with the convictions of “indecent assault”.

Sentence of Imprisonment

35.  The indecent assaults committed by the Applicant were of a very serious nature and his acts were outrageous.  The starting point for each offence should be five years’ imprisonment.  Since the Applicant admitted those indecent assaults, we fixed the sentence to be four years’ imprisonment for each offence.  Two years of the sentence on the second charge was ordered to run consecutively to the four-year sentence on the first charge, making a total of six years’ imprisonment.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.