HKSAR v. AZAD MOHAMMAD FARHAN

CACC 173/2015 AND CACC 253/2015

CACC 173/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 173 OF 2015

(On Appeal From HCCC NO. 44 of 2014)

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AND

CACC 253/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 253 OF 2015

(On Appeal From HCCC NO. 464 of 2014)

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________________________

CACC 173/2015

CACC 253/2015

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JUDGMENT

AND

REASONS FOR JUDGMENT

IN CACC 173/2015

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Hon Lunn VP (giving the Judgment and Reasons for Judgment of the court):

1. The applicant sought leave to appeal against his convictions, on 13 May 2015 after a trial by Deputy High Court Judge Beeson and a jury, of rape, non-consensual buggery and robbery of Ms Y on 15 September 2011, at which time he was an asylum seeker, and against the sentences of 18 years’, 15 years’ and 4 years’ imprisonment respectively, which sentences were ordered to be served concurrently, imposed on him in consequence of his convictions. At the conclusion of the hearing, we refused the application for leave to appeal against conviction. We said that we would give our reasons in due course. That, we do now. We reserved our judgment in respect of the application for leave to appeal against sentence, which judgment we deliver now.

Central issue in dispute

2. The central issue in dispute at trial was the identity of the person who raped, buggered and robbed Ms Y. 

The prosecution case

3. After having finished her work as a supervisor in a bar in a Chatham Road at around 2:11 a.m. on 15 September 2011, Ms Y, a 53-year-old British woman of Portuguese descent who was born in Hong Kong, withdrew cash from an ATM machine in Cameron Road and then travelled by taxi to Nathan Road.  From there she walked to an ‘OK’ convenience store at the junction of Portland Street and Pitt Street.  She identified herself in CCTV film as she left that store at about 2:22 a.m.  As she walked along Canton Road, Yau Ma Tei, towards Waterloo Road she was attacked from behind by a South Asian male, who punched her several times.  The extensive bruise to her lip and on her left lower jaw was caused by a punch.  She saw ‘red’ and had difficulty breathing.  He placed her neck and head in an arm lock.  Then, he seized her black shoulder bag, putting it on his shoulder, accusing her, falsely, of owing money to his friend Ardil.  Ms Y resisted, and he dragged her along the street.  On seeing two workmen unloading goods from a lorry nearby, she shouted for help in Cantonese, but in vain. 

4. One of them, Mr Bun Siu Kwong, testified that he had seen a couple quarrelling with one another and a man, who was holding a handbag involved in a struggle for possession, punching a female.  However, he did not intervene because he thought it to be a lover’s dispute.

5. As Ms Y was dragged by her assailant to the entrance of a building, Ms Y shouted for help in Cantonese, from a security guard who was beyond the closed metal grille of the entrance.  Again, she did so in vain.  As this happened, she saw a second South Asian male in the street.  Having had a conversation with her assailant, the second man followed them at a distance in the street whilst her assailant dragged her into the building at 852-854 Canton Road and upstairs to a position on the staircase between the ground and first floor.  There, he said that he had a knife, although she did not see a knife.  He told her that he would let her go if she gave him sex.  In response to a statement that she was an older woman and her question as to why he was doing this, her assailant then attacked her sexually.

6. First, he forced her to perform oral sex on him.  Then, having made her stand and face against the wall, he penetrated her vagina with his penis from behind.  Next, he buggered her, following which he forced her to have oral sex and vaginal sex.  He did not use a condom.  In the course of the sexual attacks, he pulled her top and brassiere up and he bit her breasts.  Finally, he masturbated until ejaculation, wiping off the semen from his hand onto her upper clothing. 

7. After the sexual attacks had finished her assailant summoned the other man, who had been with them earlier, and together they robbed her of her mobile telephone, cash and jewellery.  The other man returned $100 to her for a taxi and some supermarket coupons.  Also, at her request he returned the Sim card of her mobile telephone.  After that, the other man told her to forget what had happened if she did not want trouble.  Her assailant told her to wait there for a few minutes before she left.  Then, the two men departed.

8. Although Ms  Y bled heavily from her private parts, nevertheless she took a taxi home.  There, she took a shower and washed all her clothes, except her brassiere.  However, by the afternoon of 15 September 2011 Ms Y’s condition had become worse and she called an ambulance.  Mr Lai Yiu Hung, the ambulanceman who went to Ms Y’s assistance, said that she had complained to him of having been raped, assaulted and robbed.  He took her by ambulance to the Accident and Emergency Department of Queen Elizabeth Hospital.

9. The findings of an examination of Ms Y on her admission to Queen Elizabeth Hospital described in a medical report[1] indicated that inter alia she had bruises over the left jaw area with superficial lacerations, bite marks and bruises over both nipples, tenderness over her left lower rib cage and left chest wall, tenderness and bruises over the lower spine and coccyx region, and a 3 cm tear of her left vaginal wall.

10. A semen stain was recovered by police officers from the ground of the staircase at the place at which Ms Y was raped and buggered.  Also, a semen stain was recovered from her brassiere.  Expert opinion evidence was given in respect of the DNA profile established from the sperm fraction and non-sperm fraction of those samples and from a buccal swab taken from the applicant.

11. The applicant was not arrested for these offences until 2 June 2013.  Although an identification parade was held on 3 June 2013, in which the applicant was part of the parade and at which Ms Y and Mr Bun participated, neither of them identified the applicant.

12. In a video record of interview conducted of the applicant on 12 July 2013, having been told that the police were enquiring into a case of assault, rape and robbery which had occurred at about 2:35 a.m. on 15 September 2011 on the staircase between the ground floor and first floor of 852 to 854 Canton Road, the applicant explained that at that time he was “in Chungking”.[2]  He said that on 23 September 2011 he had explained to a police officer who had come to look for him, “I never come to this place.  I was drunk (sic) too much on that day, I have nothing to do this all, I don’t know anything.” [3]  Having been shown photographs of the staircase and its immediate vicinity, the applicant was told by a police officer that semen found at the scene had been analysed and that “it matched your DNA”.  In response, the applicant said “I don’t believe”.

Defence case

13. The applicant gave evidence in the defence case.  He said that, having come to Hong Kong in 2008, he was an asylum seeker.  He denied having assaulted, raped, buggered and robbed Ms Y.  At the time of those events, he was elsewhere.  From about 9:40 p.m. on 14 September 2011 he had been with his friend Shabaj drinking whisky in Block C of Chungking Mansions.  Then, at about 12:30 a.m., at the telephone invitation of his friend Raju, the two of them had gone to a guesthouse in Block D of Chungking Mansions.  Next, he and Shabaj left the premises at around 2:00 a.m. and went to the Alhambra Building.  Finally, at about 2:25 a.m. he left the Alhambra Building and returned to Chungking Mansions.  It was an admitted fact that at about 2:25 a.m. that morning a security guard had seen the applicant leaving the Alhambra Building.  At about 2:35 - 2:36 a.m. the applicant said that he was in the lift ascending to the 7^th/F of Block A, Chungking Mansions.  He lived there at Room 2 with “brothers”, namely his blood brother, cousin and two friends.  On his return to Room 2 he noticed that, although all four of them were present, they were asleep.

14. The applicant testified that in the evening of 14 September 2011 there came a time when he was together with friends drinking beer at a stall in the street nearby to 852-854 Canton Road.  Having become aroused from reading some pornographic material, he had taken advantage of going up the staircase of those premises in order to urinate and to masturbate.  He did so to ejaculation.

15. In cross-examination, the applicant accepted that in the video record of interview conducted of him by police officers on 12 July 2013 he had not mentioned having masturbated at the place Ms X was attacked and raped on 15 September 2011.  He did not do so because he was embarrassed at the presence of a female interpreter during that interview.

16. It was suggested in the defence case that the presence of the applicant’s semen on Ms Y’s brassiere might be explained by her having contact with the applicant’s previously ejaculated semen on the ground of the staircase in those premises.

Reasons for sentence

17. Ofthe circumstances of the commission of the offences, in her reasons for the sentence the judge said:

“ The victim was a lone woman going home from work. She was dragged off the street by force; her neck was arm-locked; she was punched in the face and the body and eventually dragged upstairs to the building where, on the staircase, you proceeded to rape and bugger her for some period, force her to give you oral sex and, eventually, robbed her of her belongings and left.

It was clear that she was treated very roughly in order to accomplish your desires.  That is shown by the forensic pathologist’s report of the injuries. It is quite clear that none of this activity was consensual and significant force must have been used to account for some of the injuries that the forensic pathologist noted.”

18. Of the duration of the ordeal to which Ms Y was subjected, the judge said:

“ Although the time cannot be established with certainty, it appears that at around 2.25 to 3.35, you were involved in these activities at 852 Canton Road. This was not a short ordeal for the victim.”

19. Having noted the applicant’s previous criminal convictions, the judge said:

“ This is a very serious case which has aggravating factors existing which call for a higher than usual sentence. First of all, violence in excess of what was needed for the rape was used. It was an attack on a lone woman under the cover of darkness. The victim was additionally humiliated and degraded by being forced to give you oral sex. No condom was used which exposed her to the risk of infection. Forcible penile penetration caused serious tears of the vaginal wall which caused lengthy bleeding that had to be stopped by surgery and the two lacerations were sutured under anaesthetic.”

20. Of the approach to be taken in stipulating the starting points for sentence, the judge said:

“ I have considered the authorities in the case, in respect of the offence of rape in particular, and note the usual starting point can be raised in instances where aggravating factors exist. In this case there are at least four or five aggravating factors.”

Starting points for sentence

21. The judge stipulated starting points for sentence for the appellant’s convictions of rape and non-consensual buggery of 18 and 15 years’ imprisonment respectively.  In respect of the events of the robbery, she noted that it was committed at the end of the violence visited on Ms Y, but that no weapon was used and no additional violence used in the robbery.  However, she did not stipulate a starting point for sentence for that offence.

Sentence

22. The judge sentenced the applicant to 18 years, 15 years and 4 years’ imprisonment on the counts of rape, non-consensual buggery and robbery respectively.  Having noted that the offences “were all part of one transaction” and having regard to the principle of totality, the judge ordered that the sentences be served concurrently.

Grounds of appeal against conviction

23. Ms Panesar advanced no fewer than ten grounds of appeal against convictions on the applicant’s behalf, albeit that by ground 10 it was contended only that there was a ‘lurking doubt’ that the applicant was the perpetrator of the offences.

Ground 1

24. By ground 1, it was submitted that the applicant did not have a fair trial because “most, or at least a large part of the Summing-up was not audible.”

Ground 2

25. By ground 2, it was contended that there was a material error in the trial that in her closing speech, counsel for the prosecution repeatedly asserted, I/we/the prosecution say that the applicant was Ms Y’s assailant.  That was a matter for the jury to determine.  Further, in the summing up the judge was in error to refer to Ms Y’s assailant in her recitation of Ms Y’s evidence as being the “defendant”. [4]  That was the issue in the case for the jury to decide.

Ground 3

26. By ground 3, it was submitted that counsel for the prosecution was in error, in the context of her suggestion to the jury that the Identikit drawing produced from Ms Y’s description of her assailant was a “good general likeness” of the defendant, to have asserted to the jury in her closing speech that it had been the evidence of Ms X that her assailant had “prominent lips”. [5]  That was not her evidence.  Further, the judge was in error to suggest that the Identikit drawing created from the description given by Ms Y was “allegedly of the defendant”. [6]  Similarly, the judge was in error, in the context of reminding the jury of the comparison made in the course of the trial between the Identikit drawing and the applicant, that in the passage of four years a person’s appearance can change.[7]

Ground 4

27. By ground 4, it was submitted that the judge had erred, in the context of reminding the jury of the evidence of Ms Y and Mr Bun of the inconsistencies in the descriptions they gave of the clothing worn by Ms Y’s assailant and the difference between that evidence and the evidence of the applicant of the clothing he had worn that day, in inviting the jury to consider whether or not different people have different perceptions of colour.

Ground 5

28. By ground 5, it was submitted that, in the context of the discrepancies in the evidence of Ms Y that she had been raped by one man and the evidence of Mr Lai, the ambulanceman who had met Ms Y at her home at about 4 p.m. on 15 September 2011 and conveyed her to Queen Elizabeth Hospital, that she had complained to him that she had been raped by two men, the judge erred in suggesting to the jury of Ms Y that it might be that she, “was not very accurate because of pain and bleeding”and in respect of the ambulanceman that it might be that he is “forgetful or mistaken.” [8]

29. Further, it was submitted that in her closing speech counsel for the prosecution had erred in suggesting explanations for the contradiction in the testimony of the two witnesses, namely that Ms Y’s evidence was that there were two men involved in the offences committed against her and that was reflected in the fact that the Particulars of Offence of all three counts averred that they had been committed by the applicant, “together with a person unknown.”

Ground 6

30. By ground 6, it was contended that, in the context of the evidence that “one spot of non-sperm semen which could be of the applicant”, had been found on the brassiere of Ms Y, having regard to the applicant’s evidence that he had masturbated to ejaculation on the same staircase earlier that day, the judge had erred in emphasising the prosecution’s case that the appellant’s evidence was, “such a huge coincidence that it effectively cannot possibly be true.”

31. Also, it was contended that counsel for the prosecution had misrepresented Ms Y’s evidence of how her assailant had wiped his hands on her upper garment.  Counsel for the prosecution had suggested the description was of the assailant putting his hands “up her top” and then wiping them as he pulled his hands down from this level.  That was a suggestion that the evidence was that he had put his hand underneath her upper clothing.  Ms Y had never said that.

32. Next, it was contended that the judge had erred in suggesting of the presence of the seminal stain on the brassiere that Ms Y “did say that she had her bra and at the same time her stretchy top upwards, at the time he bit her breasts.” [9]  Complaint was made that Wong Ka Wing, WDPC 4488 testified that Ms Y complained to her that her assailant “took off the upper garment and the trousers…and raped the victim.” [10]  Furthermore, there was no evidence that there was semen on her assailant’s hands at the time that he pulled up her upper garment.

33. Finally, it was contended that the judge had failed to direct the jury that the stain on the brassiere could have resulted from contact between Ms Y’s hand and the seminal stain deposited during masturbation by the applicant earlier in the day followed by Ms Y touching her brassiere.

Ground 7

34. By ground 7, it was contended that the summing up was unfair and biased in favour of the prosecution against the applicant.  It bolstered the prosecution case in respect of the DNA evidence.  On the other hand, it raised unjustified doubts about the weight to be given to: the discrepancies in the description of the clothing worn by Ms Y’s assailant; the Identikit drawing; the discrepancies between Ms Y’ evidence and the evidence of the ambulanceman and WDPC 4488 of the details of Ms Y’s complaints of sexual assault; and as to the significance of the absence of an Indian racial database for DNA comparison.

Ground 8

35. By ground 8, it was submitted that the judge had erred in suggesting to the jury that, in considering the failure of Ms Y to identify anyone at an identification parade held on 3 June 2013 at which the applicant was a participant, they were to have regard to the fact that the identification parade was held “some lengthy period after the actual alleged rape.” [11]  By contrast, the judge failed to direct the jury that the applicant had been disadvantaged by the failure of the police to arrange for the applicant to be a participant at the identification parade which Ms Y attended in October 2011.

Ground 9

36. By ground 9 it was submitted that the judge erred in allowing counsel for the prosecution to cross-examine the applicant about his failure to call witnesses in support of his alibi [12] and to give his account, in the video record of interview, that on the evening of 14 September 2011 he had masturbated on the same staircase on which Ms Y was sexually assaulted hours later in the early morning of 15 September 2011.[13]  Further, it was an error to allow counsel for the prosecution to comment on the applicant’s failures in those respects.[14]  Those errors were material.

37. Ms Panesar submitted that the prohibition provided by section 54(1)(b) of the Criminal Procedure Ordinance, namely of comment being made by the prosecution on the failure of a defendant to give evidence, extended to comment being made on his failure to call witnesses.  She relied on the judgment of Deputy Judge Saied, as he was then, in a Magisterial appeal in R v Chan Yam Fai & Another.[15]

Grounds of appeal against sentence

38. In the grounds of appeal against sentence, Ms Panesar submitted that the total sentence of 18 years’ imprisonment was manifestly excessive.  She submitted that no gratuitous violence was used on Ms Y and that she was subject only to an arm lock and one punch.  No weapon was used or displayed.  There was no evidence that the applicant had a tendency towards rape or violence.  He had not been convicted previously of sexual offences.  At no stage was there any risk or danger to Ms Y’s life.  There was no evidence that the applicant represented a danger to the public.  Ms Panesar relied on the judgments of this Court in HKSAR v Cheung Lai Man [16], HKSAR v Chan Li Fat [17] and the Secretary for Justice v Rashid Mahmood.[18]  She submitted that the seriousness of the facts of the instant case could be distinguished from the first and second cases, where a similar overall sentence was imposed in circumstances that were more serious.

The submissions of the respondent

39. In his submissions, Mr Chan opposed the application for leave to appeal against conviction.

40. In his submissions in respect of sentence, Mr Chan acknowledged that the sentence of 18 years’ imprisonment was “on the high side for rape cases.”  Nevertheless, he contended that “given the particularly serious nature of the facts of this case” that was neither wrong in principle nor manifestly excessive.

41.   He submitted that the judge had not had regard to the aggravating factor that the offences were committed in concert with a second man.  Further, Mr Chan suggested that the applicant was a danger to the community.  He persisted in his violent conduct towards Ms Y, notwithstanding that he had encountered two men at different places, whose help had been sought by Ms Y.  Also, the applicant had persisted in his assault of Ms Y for over an hour. He submitted that in principle the sentence of imprisonment to be imposed for the offence of robbery ought to be consecutive to that imposed in respect of the sexual offences.  He acknowledged that, having regard to the principle of totality, it might be appropriate that only part of the sentence of imprisonment imposed for robbery be ordered to be consecutive to the other sentences of imprisonment.

42. Mr Chan invited the Court to note that there were three separate instances of vaginal intercourse, one of buggery and two instances of oral sex.

43. Having been referred by the Court to the issue of the fact that the offences were committed by the applicant at a time at which he was permitted to be in Hong Kong at liberty as an asylum seeker, and having been referred to the judgments of this Court in HKSAR v Sandagdorj & Another [19]and HKSAR v Norena Gutierrez,[20] Mr Chan submitted that the offences committed by the applicant were such that they, “tarnished the city’s reputation for order and security”.  Both were factors of aggravation in the commission of the offence, but they were not considered by the judge.

Application to adduce fresh evidence

44. In the course of her reply on the second day of the hearing, Ms Panesar made an application for leave to adduce fresh evidence in support of ground 1, namely that the Court receive evidence from her instructing solicitor’s interpreter, who had been present during the summing up in the trial.  In response to the enquiry of the Court, as to why the application had not been made earlier, Ms Panesar said simply that it was not a matter that she had considered.  It is to be noted that ground 1 had been advanced in the Amended Perfected Grounds of Appeal against Conviction and Sentence, written submissions and the Reply which had been filed with the Court on 21 December 2015, 29 April and 23 May 2016 respectively.  We rejected the application.

A consideration of the submissions in respect of conviction

The audibility of the judge’s summing up

45.    At the outset of the trial, the judge addressed the newly empanelled jury.  Amongst the matters she addressed was the issue of the audibility of the proceedings:[21]

“ If you have difficulty in hearing me, the counsel, witnesses or interpreters let us know and we will make adjustments.”

It is common ground that there was no such intervention by the jury at any stage during the trial.

46. During the summing up, which occupied over two hours without interruption, Ms Panesar interrupted the summing up once only to raise the issue of the audibility of the judge.  She did so after about one hour of the summing up.  The following interchange ensued:[22]

“ MRS PANESAR: My Lady, may I be so bold as to interrupt your summing-up at this stage. I’m having some difficulty hearing your Ladyship speak.

COURT: I’m sorry.

MRS PANESAR: I wonder whether I may ask your Ladyship just to speak a little bit louder.

COURT: I’m sorry.

MRS PANESAR: I do apologise. I do apologise to disturb the flow of your summing-up.

COURT: Can you hear me? And you could hear me up to now? I’ll try and do better.

MRS PANESAR:  I’m grateful, my Lady.”

47. It is common ground that the enquiry made by the judge at the end of the interchange was of the jury and that, by way of response, the forelady and one or two other jurors nodded affirmatively.

48. Ms Panesar made no other interjection during the summing up.  When asked at the end of the summing up if there were any matters she wished to raise, Ms Panesar indicated that there was nothing.

49. At Ms Panesar’s request we listened to the Court’s audio recording of the summing up before and after the point at which Ms Panesar had interjected.  We were conscious that in doing so we were listening to a recording that was made from a microphone that was within 2 feet of the judge.  It was not a recording made from a microphone located at the jury box.  Also, it was common ground that the judge had used a microphone and an amplifier during the summing up.  Issue was taken by Ms Panesar of the use made by the judge of that system.  It was suggested that, after her interjection, sometimes the judge had spoken deliberately and directly into the microphone, whereas at other times she had not done so.  The Court’s audio recording does not evidence any particular change in audibility before or after Ms Panesar’s interjection.  We were satisfied, from the parts of the Court’s audio recording that we were invited to listen to, that the judge was audible.  Her delivery was at a measured pace, punctuated by appropriate deliberate pauses or breaks.

50. Given the limitations of reliance on the Court’s audio recording, to which we have averted, the singular absence of any other interjection by Ms Panesar during or after the two-hour summing up is highly significant.  It beggars belief that counsel as experienced as Ms Panesar would not have intervened on other occasions had there been a pre-existing or continuing issue of audibility.  To do so was required of counsel in the discharge of her duty to her lay client.  Further, it is common ground that the jury did not raise the issue of audibility at all.  Indeed, as noted earlier when asked about that issue some of them indicated affirmatively that there was no issue of audibility.

51. In all the circumstances, we are satisfied that there is no merit in this ground of appeal.

Cross-examination and comments by the prosecution on the applicant’s failure to call evidence in support of his alibi

52. Section 54(1) of the Criminal Procedure Ordinance provides that:

“ (b) the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution;”

53. At the time of the judgment in R v Chan Yam Fai & Another that section provided that:

“ (b) the failure of any person charged with an offence, or of the wife or husband as the case may be of the person so charged, to give evidence shall not be made the subject of any comment by the prosecution;” [Italics added.]

54. It was in that context, that in his judgment Deputy Judge Saied said of cross-examination conducted of the appellants as to whether or not “they would call their respective spouses to testify on their behalf” was a matter in respect of which, “the trial judge should have intervened to stop this line of cross-examination.”

55. Neither the judgment in R v Chan Yam Fai & Another nor the provisions of section 54(1) of the Ordinance assist the applicant.  They are not relevant.  Rather, the issue is, in light of the fact that it is for the prosecution to disprove alibi, and not for the applicant to prove it, whether cross-examination followed by comments by counsel for the prosecution on the applicant’s failure to call evidence in support of his alibi was permissible and, if so, what directions to the jury were required of the judge.

Cross-examination of the applicant

56. In cross-examination of the applicant, the issue of the evidence to be called by the applicant in support of his alibi was canvassed:[23]

“ Q. You say that having left Alhambra Building you went straight back to Chungking Mansions and went to sleep.

A. I went home and then I slept.

Q. Were your other four roommates there at that time?

A. Yes.

Q. Are they going to come and explain what time you got home?

A. How can they explain? They were sleeping.

Q. So you went in the small or a room in Chungking Mansions with four other people and everybody just slept through without knowing you came back, is that what you’re saying?

A. It’s not a small room. It’s a big room and there is a bed ups and downs and there is another bed which should be to sleep there.

Q. And where do you sleep? Where did you sleep on that time, at that time?

A. In my bed.

Q. At top of a bunk, at bottom of a bunk, where were you?

A. The lower one.

…

Q. So you have got somebody above you or you had somebody above you?

A. Yes.

Q. And they slept through you coming in and getting into bed, is that what you are suggesting?

A. Yes, they were asleep.

Q. All four of them?

A.  Yes.”

57. Although evidence was led in re-examination from the applicant, no questions related to his evidence in respect of alibi.

The closing speech for the prosecution

58. In her closing speech, Ms Crebbin, counsel for the prosecution adverted to the applicant’s evidence in respect of his alibi:[24]

“ But he says he shared his bedroom in Chungking Mansions with four other people.  Now, you’ve not heard from any of those people.  He says very conveniently to you, “Well, they were all asleep when I went home.”  So you’ve heard nobody to support his alibi.  He was with various people.  He went off to Yau Ma Tei with some friend that night after 12.30 in the morning.  Nobody has corroborated that.”

59. Nevertheless, Ms Crebbin went on to say immediately:

“ Now, members of the jury, I must remind you and warn you of this. The defendant doesn’t have to prove anything. As I’ve told you at the beginning, it’s for the prosecution to prove the case to you beyond reasonable doubt, but do you not think that among all these people he’s meant to have spent time with that day that one of them might have been able to assist at least on part of that account of his? It’s a matter for you to consider.”

The closing speech for the applicant

60. For her part, in her closing speech, having reminded the jury of the burden of proof and having stated that, although the applicant had elected to testify, “…he doesn’t have to prove his innocence”, Ms Panesar said:[25]

“ He wasn’t under any obligation; he doesn’t have to prove his innocence. It is the prosecution who have to prove that he is guilty. The defendant doesn’t have to prove anything. That is the law.

To suggest that he didn’t call any witnesses; that you didn’t hear from his room-mates; well if the prosecution wanted they could have called them to tell you that they never heard this defendant that night coming in at the particular hour that he says he returned and was present inside that room.  The prosecution had the option, why didn’t they call any of those four men?  Especially when they have known for at least two years now – that’s when he was interviewed – in that interview the defendant said, “At about 2.35 on 15 September 2011 I was at Chung King.”

61. In the first place, it is to be noted that Ms Pansear did not object to the impugned cross-examination of the applicant by Ms Crebbin for the prosecution.  Secondly, she did not object to the related comments made by Ms Crebbin in her closing speech.  Rather, she addressed the issue in her own closing speech.  Similarly, although asked on several occasions what if any directions she sought to be included in the summing up, in the event, she made no suggestion.

The judge’s directions

62. At an early stage in her direction to the jury, the judge had given them the standard direction as to the burden of proof:[26]

“ There is one very important thing that you must remember at all times when you are reaching your verdict. In this case, the prosecution has to prove, must prove, that the accused is guilty. He does not have to prove his innocence. In a criminal trial, the burden of proving the accused’s guilt is on the prosecution and the burden stays on the prosecution throughout the trial.”

63. The judge directed the jury generally that:[27]

“ The defendant has chosen to give evidence. He was not obliged to give evidence. He was not obliged to call any witnesses, he does not have to prove his innocence, and he does not have to prove anything at all.” [Italics added.]

64. The judge went on to say:[28]

“ I would remind you also that the defendant has a right to silence. If any person is suspected of a criminal offence or charged with one is entitled to say nothing when asked questions about it. If he exercises that right it cannot amount to an admission of any kind, and it cannot be taken to reflect a guilty conscience.

So he does not have to prove anything.  He is entitled to sit there and ask the prosecution to prove its case without doing anything at all.”

65. In respect of the issue of alibi, raised in the defence case, the judge said:[29]

“ Effectively the defence put before you is one of alibi. The defendant says he was not at the scene of the crime when it was committed, or when these crimes were committed. Because the prosecution has to prove the defendant’s guilt so that you are sure about it, the defendant does not have to prove that he was elsewhere at the time. On the contrary, it is the prosecution who has to disprove the alibi to make you satisfied so that you are sure that the defendant was not at Chungking Mansions at the time of the offences, that he was kept company at the Alhambra Building and had abducted the woman at that time and committed the offence.” [Italics added.]

66. Subsequently, the judge gave specific emphasis in respect of that direction:[30]

“He is not obliged to call witnesses to support his story or his alibi. You will remember he went back to the place at Chungking Mansions. He says his four roommates were all asleep so they possibly could not be called anyway because they were not with him at the time.” [Italics added.]

67. Although the judge had said that the four roommates were “not with him at the time”, in context it appears that the judge meant that, being asleep, they were not aware that he was present with them at 2:35 a.m. and the period thereafter during which the offences were committed.  We are satisfied that the jury would have understood that to have been the judge’s intended meaning.

68. Although the judge gave the standard direction that, in making their determinations, the jury was to have regard to the “whole of the evidence”, she did not go on to direct the jury that they, “must not speculate what evidence there might have been or allow yourself to be drawn into speculation.” [31]  It is to be noted that in the joint judgment of the majority [32] in Kissel v HKSAR the observation was made that:[33]

“The proposition that, generally speaking, a jury should not be invited to speculate about the reason for not calling a witness, subject to those cases in which an inference can be drawn, is now well accepted: see HKSAR v Lo Wai Ming;[34] Dyers v The Queen;[35] R v Gallagher;[36] R v Couzens;[37] R v Wilmot.[38] ”

69. In Dyers v The Queen the High Court of Australia was seized with an appeal in respect of conviction of an appellant of an indecent assault on a 13-year-old girl.  It was clear that it was alleged that the assault occurred on the morning of 29 July 1988 in the “energy combination room” at the end of a “processing session”.  In an unsworn statement, the appellant acknowledged that he had seen the complainant that morning, but that was in the company of her mother.  Otherwise, he was engaged in meetings with others.  The appellant’s appointment diary was adduced in evidence.  Whilst there was a reference to an appointment with the complainant’s mother together with others between 1:00 p.m. and 3:00 p.m., there was no reference to a meeting with the complainant.  That was a reference to a meeting with a Ms Tinkler in the “energy combination room” in the “processing session” between 9:30 a.m. and 11:30 a.m.  Neither Ms Tinkler nor others recorded as having appointments with the appellant in the morning were called to give evidence at the trial.

70. The majority held that the judge had misdirected the jury in directing them that, if any one of those persons was a person that the jury would have expected one of the parties to call to support what was asserted by that party, and there was no satisfactory explanation for failure to call the person, then “you are entitled to draw the inference that the evidence of that witness would not have assisted the party who you have assessed should have called that witness.”

71. In the joint judgment of Gaudron and Hayne JJ it was stated that:[39]

“ As was pointed out in RPS [40] it will seldom if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. Not only is the accused not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt.”

72. They went on to note:[41]

“ That is why the majority of the Court concluded in RPS and Azzopardi [42], that it is ordinarily inappropriate to tell the jury that some inference can be drawn from the fact that the accused has not given evidence….

The reasoning which underpinned the decisions in RPS and in Azzopardi cannot be confined to the accused giving evidence personally.  It applies with equal force to the accused calling other persons to give evidence.  It cannot be said that it would be expected that the accused would cause others to give evidence.  To form that expectation denies that it is for the prosecution to prove its case beyond reasonable doubt.”  [Italics added.]

73. Given the judge’s direction that the applicant was not obliged to call witnesses to support his account of events, including his alibi, and having regard to her specific reminder of the undisputed evidence that none of the four roommates was in a position to give supporting evidence of the applicant’s alibi, we are satisfied that in all the circumstances the judge correctly and adequately dealt with any suggestion by the prosecution that inferences adverse to the applicant were to be drawn from the absence of other evidence supporting the applicant’s testimony.

Cross-examination of the applicant and comment in the prosecution’s closing speech on the applicant’s failure to disclose his defence in his out-of-court statements

The applicant’s out of court statements

74. As noted earlier, in his video record of interview, in face of the allegation that he had raped and robbed the female victim at about 2:35 a.m. on 15 September 2011 on the staircase between the G/F and 1/F of 852-854 Canton Road, the applicant had said that he was “in Chungking”.  Further, he said that when challenged with the same accusation on 23 September 2011 he told the police officer, “I never come to this place.”  Also, he had said, “I was drunk (sic) too much on that day”.  Having been shown photographs of the entrance to the building and the staircase and having been told that semen that matched his DNA had been found on the staircase the applicant said simply “I don’t believe.”

The applicant’s evidence in chief

75. In his evidence in chief, the applicant testified that during the evening of 14 September 2011 he had left his friends outside in the street and gone into the building at 852-854 Canton Road, where he had masturbated to ejaculation on the staircase between the G/F and 1/F.  On his account of events, that was sometime between 8:15 p.m. when he had given up his attempts to buy a trolley and at about 9:30 p.m. when he left Canton Road.

Cross-examination of the applicant

76. In cross-examination, the applicant was reminded that in his earlier video recorded interview he had been shown photographs of the staircase and asked if he had ever been there before, he had replied, “No never, I don’t know.”  Of his failure to mention in the video record of interview that he had masturbated on the staircase on which the victim was assaulted,[43] the following interchange ensued in cross-examination of the applicant:

“ Q. Are you effectively telling us that prior to the video interview in June of 2013 -- sorry, let me get the exact date, 2013, that you already knew details, you’re saying now, about semen stains or bloodstains being found at the scene?

A. Yes.

Q. And that you had already recalled, according to you, in 2011 that you had masturbated in that particular place?

A. Yes.

Q. And yet when you spoke to the police and gave a video interview in 2013 you mentioned none of this, did you?

A. Yes.

Q. In fact, in that interview you denied ever having been to that building where these stains were found?

A.  It is a truth because I did not go there on 15th.”

The prosecution’s closing speech

77. In her closing speech, Ms Crebbin addressed the inconsistency between the account given in the applicant’s video record of interview and his testimony in the trial, namely the former being a denial of ever being on the staircase and the latter an explanation that he had masturbated on the staircase within hours of Ms Y being attacked there.  Ms Crebbin said:[44]

“ I suggest he denied ever being to that building at this stage of the interview because at that time he had no idea the police actually had found his DNA at the scene and therefore he thought by denying everything he’d get away with it. It’s a matter for you to consider.

But when he is told later in that interview that his DNA had been found, or matching DNA has been found for him at the scene, he simply says, “I don’t believe it.” He doesn’t, does he, members of the jury, say, “Oh, now I remember. That may have been the building that I masturbated in one day”, even as a general comment. He says nothing like that.

This was obviously, I suggest, a very important piece of, or potentially important damning piece of evidence against the defendant. If he’d really known about this case as he wants you to believe since 2011, I suppose to suggest that the police didn’t do their job properly in 2011, but if he’d really known about it since then surely he would have known very much that it was important what these photographs were representing, what was going on here, and that he to, if he had any decent explanation, it was important that he told the police it.

You would have thought he would have been insistent that the police would know that, yes, perhaps he’d made a mistake, perhaps he had been there sometime but not during this rape incident.”

78. Of the applicant’s explanation, Ms Crebbin said:

“ His explanation to you was that he was shy or embarrassed because there was female interpreter in the room. Well, members of the jury, he’s given you details in this courtroom with several women throughout this trial present - on the jury, in the gallery and on the Bench here as well as her Ladyship. Do you think he showed any sign of embarrassment then? That’s for you to decide but what I’m suggesting to you is that if he really had that explanation at that time he would have told it to the police and the reason he didn’t was because, I suggest, he made this up afterwards when he thought about it to try and explain his semen stains away.

He gave you - I mean, how can he remember four years’ later when and where he masturbated, who he was with, what time he was there, what the date was?  None of this information was given to the police in that statement, none of it.  So you might like to consider that, members of the jury.  I suggest his version is not credible.”

The judge’s directions

79. Of the applicant’s rights in respect of the video record of interview, the judge said:[45]

“ …the defendant has a right to silence. If any person is suspected of a criminal offence or charged with one is entitled to say nothing when asked questions about it. If he exercises that right it cannot amount to an admission of any kind, and it cannot be taken to reflect a guilty conscience.”

80. Of the nature of the applicant’s out-of-court statements, the judge said:[46]

“ The video interview which you saw in court contains no admission of guilt. He denies throughout that interview that he is involved in this matter. He voluntarily agreed to the video interview.”

81. Also, the judge reminded the jury that the applicant was being asked about events that had occurred “two years previously” in 2011.  That reminder of the evidence resonated with the comment made by Ms Panesar in her closing speech.[47]

82. Of the applicant’s explanation in his evidence for his statements in the video record of interview, that he didn’t want to talk about anything and that he did not feel it “right to give any interview”, the judge reminded the jury twice that he testified that he felt bad about talking about such matters in the presence of a female interpreter.[48]  The judge reminded the jury that he gave the same explanation for not explaining in the video record of interview that he had gone to the staircase and masturbated.[49]

83. Again, the judge reminded the jury of the rights enjoyed by the applicant at the time that he was interviewed by the police:[50]

“ I point out to you that he is not obliged to answer the questions of the police. He is not obliged to tell the police anything at all.”

84. Then, the judge said:[51]

“ It was suggested that he did not tell the police in the interview because he wanted time to fabricate his story. That is a matter for you to consider when you consider the evidence as a whole and when you assess whether or not he has been accurate or truthful in what he is telling you.”

85. It is readily apparent that, far from exercising his right to silence, having acknowledged that he had been served with a Notice to Persons in Police Custody explaining his rights and having been cautioned in respect of the assault, rape and robbery of Ms Y, the applicant chose to answer questions posed of him.  In doing so, the applicant not only denied having committed the offences, but also denied ever having been at the staircase where the offences were committed.  Although he was shown photographs of the staircase where the offences were committed and although it was his testimony that in the evening of 14 September 2011 he had masturbated to ejaculation on the staircase, the applicant made no mention whatsoever of those events.

86. Of such circumstances, as Mr Chan pointed out in his written submissions, in his judgment in the Court of Final Appeal in Lee Fuk Hing v HKSAR [52], with which all the other judges agreed, Mortimer NPJ said:

“ We may add that, of course, if an accused person makes a statement to the police (under caution or otherwise) which is inconsistent with his defence which can be fairly criticized on other grounds it is open to the prosecution to cross examine and comment upon that statement and its relevance to the defence. The judge may also invite the jury to draw relevant and fair inferences even if they are adverse to the accused.”

87. In the course of her oral submissions, Ms  Panesar acknowledged that the applicant had not availed himself of his right of silence and, having given an account of events, Ms Crebbin was entitled to cross-examine the applicant on the inconsistencies between that account and his testimony in court.  We are satisfied that the concession was properly made.  Ms Crebbin was entitled to cross-examine the applicant in that way and to comment on those inconsistencies in her closing speech.  For her part, the judge was entitled to refer to that evidence in her summing up and to the related suggestions made by the prosecution together with the explanations given by the applicant.  With respect, the judge was correct to direct the jury to have regard to those matters when they considered the evidence as a whole and, “when you assess whether or not he has been accurate or truthful in what he is telling you.”  Clearly, they were matters that went to the issue of the credibility of the applicant.  There is no merit in this ground of appeal.

The semen stain on Ms Y’s brassiere

88. The judge suggested to the jury that two semen stains were relevant to their considerations: one found on a step on the staircase on which Ms Y had been raped, buggered and robbed and the other in the middle of her brassiere.  Of the stain found on the step, the judge said:[53]

“ the defendant has denied that he was present at the building at 852 at 2.30 in the morning, but says that he was there in the period at 9 o’clock because he was drinking then with friends, and that was the place where he had gone to masturbate, had ejaculated, leaving his semen on the floor and also on his trousers.”

89. She reminded the jury that it was Dr Ho’s evidence that the random match probability with that stain and the applicant was “1 in 10 quintillion.” [54] It was Dr Ip’s evidence that Ms Y’s DNA had been found in the stain.  Then, the judge said:[55]

“ that is fully explained by the unknown source and the victim being the only two involved, and it is this on which the prosecution relies.”

What was described as the “unknown source” was identified as being the applicant.

90. Of the stain on the brassiere, the judge said:[56]

“ The non-sperm fraction of the seminal stain on the bra showed there was at least one male DNA source. The victim’s DNA was fully matched with no suggestion that anyone else was involved.”

91. It was Dr Ho’s evidence that in respect of that stain the applicant’s DNA types matched 12 out of the 15 DNA systems, whilst there was a full match with the DNA of Ms Y.  Of Dr Ip’s evidence of that finding, the judge reminded the jury of the result of cross-examination:[57]

“ It was put to him the seminal stain on the bra had only 12 complete systems and he was asked whether there was anything to suggest there was more than one male involved. He said after checking it was highly unlikely that another person was involved.”

92.  The judge reminded the jury that it was Ms Y’s evidence that there came a time in the sexual assaults on her that her assailant:[58]

“ … then ejaculated in his own hand after masturbating himself. He wiped his penis clean on her blouse and wiped his hands on the front of the blouse.”

93. The objection taken by Ms Panesar to the judge reminding the jury that it was the prosecution case that the applicant’s evidence that he had happened to masturbate at the same place in which Ms Y was raped some hours later was “such a huge coincidence that it effectively cannot possibly be true” is wholly misplaced.  That was the prosecution case, as it was their case that:[59]

“ …what the DNA evidence means is that he was there at the time, that he committed the rape and buggery, that that took place on the staircase which has been set out at the building at 852, and that is why his semen would be on the steps and on the bra.”

94. The judge was not “thereby bolstering the Prosecution’s case”.  It was the judge’s duty to summarise the case of each of the parties and the judge was doing no more than that.

95. Similarly, there is no merit in Ms Panesar’s complaint that, in respect of the issue of the provenance of the semen stain on the brassiere, the judge had erred in reminding the jury:[60]

“ It was pointed out that in respect of the stain on the bra it must have been in very close proximity to the person wearing that bra to have got the stain on it at all, and you will recall that Miss Y did say that had her bra and at the same time her stretchy top pulled upwards, at the time he bit her breasts.”

96. Earlier, the judge had reminded the jury of that evidence:[61]

“ She said she was wearing a stretchy top and he pulled the bra and top up and touched her breasts. She says that he bit both her breasts. She said she cannot now recall the exact sequence of incidents.”

97. Clearly, in observing that “it was pointed out”, the judge was referring to the closing speech of Ms Crebbin, in which she had referred to both the incident of Ms Y’s assailant pulling up her top and brassiere and to wiping his penis and his hand on the top after he had ejaculated, before asserting that:[62]

“ There is ample evidence to show there was contact between the defendant, if you accept that he was the assailant, and the victim’s clothing and bra.”

98. In her evidence, Ms Y had said of that part of the assault:[63]

“ A. He had also put his hand underneath the shirt, kind of pulled it up because it’s a very stretchy top. It goes -- it’ll snap back into shape, and he had pulled my bra up also with his hand.

Q. Did he ever touch your breasts?

A. He touched them and he bit them.

Q. How many breasts did he bite?

A. I think both, I can’t remember, ma’am.

Q. Do you know at what stage approximately that occurred?

A.  During all this change around from anal to oral to vaginal he had done this.”

99. By contrast, Ms Y said her assailant ejaculated “…towards the end, just before he left”.  Of the sequence of events, she said:[64]

“ After the anal, the vaginal and the oral sex he just couldn’t come and he pulled out of me, ejaculated himself and then cleaned himself on my blouse and cleaned his hands.

Q. You’re demonstrating going down your front.

A.  Yes, he cleaned his hands.  He cleaned himself with this part of my blouse and then with his hands he just went like that.”

100. Finally, Ms Panesar complained that the judge failed to direct the jury to consider the possibility that the mixture of the DNA of the applicant and the victim found on the brassiere could have resulted from Ms Y’s hands coming into contact with the semen on the step of the staircase, deposited by the applicant when he had masturbated earlier, and after she had deposited her saliva on that stain.  Needless to say, no such direction was sought of the judge.  There is no merit in the complaint.

101. For her part, the judge directed the jury:[65]

“ In respect of mixing of the samples, the DNA samples, he says that can happen several ways. First of all it may be that the female DNA is there first, that a few hours later a semen stain is imposed on it. The second cause is that the male is in position first. Or otherwise it could be mixed at the beginning, in other words it could be sexual intercourse, and the cells from the rubbing together of both persons accounts for the mixed content.”

102. The judge reminded the jury that the third possibility was the one relied on by the prosecution, namely that the DNA was mixed because the applicant had raped and buggered Ms Y.[66]

103. Also, the judge reminded the jury of how Ms Y’s DNA might have been deposited:[67]

“ Female DNA could be taken from touching her, or from her blood, or vaginal secretions, or saliva. He says that touching was unlikely because there was a very remote possibility because of the quantity of the DNA obtained. He said in respect of the bra you would expect the DNA to be from the skin cells with the personal item.”

The inconsistencies in the complaints made by Ms Y

104. The judge reminded the jury that the ambulanceman, Mr Lai, said that Ms Y had complained to him, when he attended her at her home in the afternoon of 15 September 2011, that she had been robbed, assaulted and raped.  Of that she said that:[68]

“ The prosecution say that her complaint is consistent with the account that she gave to Mr Lai of what happened to her and, therefore, she is more likely to be truthful.”

105. On the other hand, the judge pointed out that there were inconsistencies between the testimony of Ms Y and that of the ambulanceman, Mr Lai, as to the former’s complaints :[69]

“ There are differences between Miss Y’s evidence and that of the ambulanceman. She referred to a knife being threatened -- of being threatened by a knife by the man who raped her but said she never saw a knife and nor was one used by either man. Also, according to the ambulanceman, the victim said she was raped by two South-Asians. This was not what she said in her evidence. She has never said afterwards to anybody else that she was raped by two South-Asians. She refers to two men being present but she does not refer to both of them raping her. It may be that the ambulanceman is forgetful or mistaken. It may be that the victim was not very accurate because of pain and bleeding.”

106. Of the criticism made of the judge in respect of the invitation to the jury to consider whether the ambulanceman had been “forgetful or mistaken” or that Ms Y had not been very accurate because of her injuries, it is to be noted that it was the testimony of the ambulanceman, Mr Lai that when he first saw Ms Y at 4:00 p.m. “she looked helpless” and that she explained that she had summoned the ambulance “because her private parts were bleeding”.[70]

107. WDPC 4488 first saw Ms Y at 18:10 p.m. at Queen Elizabeth Hospital.  As the judge noted, WDPC 4488 said of Ms Y that she was, “…in poor condition when she saw her, she was very scared and she was crying and in such pain that she could not speak properly.” [71]  Further, of the issue of whether or not Ms Y complained of sexual assault by both of her assailants, WDC 4488 said, “She just told me that wanted person 1 raped her.” [72]  The medical report of Dr Belinda Yau noted that Ms Y reported that she had been raped by the vagina and the anus and forced into oral sex.  She described the injuries sustained by Ms Y and noted that shortly after 10 p.m. that evening, “In view of the vaginal tear, examination and repair under anaesthesia was performed…”  The forensic pathologist, Dr Lui Siu Yee, who examined Ms Y between 20:00 and 20:45 hours on 15 September 2011, reported that she had multiple bruises to her lip and chin, neck, breasts and elsewhere on her body.  There were “abundant blood and clots inside the vaginal canal”.

108. In her recitation of the evidence relevant to the issue of recent complaint, the judge set out first the submissions made on behalf of the prosecution and then the points made on behalf of the applicant.  The approach was balanced.  It was the fact, that only Mr Lai said that the applicant had complained of being raped by two men.  The judge was entitled to point that out, as she did.  Similarly, in inviting the jury to consider that anomaly, it was relevant to point out the circumstances in which the complaint had been made.  Ms Y’s vaginal bleeding had become worse and she had summoned an ambulance.  She was in obvious pain and had been for many hours.  Although Ms Y said in her evidence that at certain stages of the incident two men were present, she said only one man had assaulted, raped and buggered her.  There is no merit in this ground of appeal.

Discrepancies in the descriptions of the assailant’s clothing

109. The judge reminded the jury that Ms Y had described her assailant as wearing an orange top.[73]  In her evidence-in-chief, Ms Y said that he “wore an orange sleeveless vest with greyish jeans”.[74]  In cross-examination, she said “it’s a shade of orange.”  When it was suggested to her that in her statement to the police she had said that it was “verging on red…orange/red”, Ms Y said “a little bit, not a lot”.[75]  The judge said that Mr Bun, the witness of the struggle between Ms Y and her assailant in Canton Road, described the assailant as wearing a “shirt and jeans”, which he went on to describe as “a red shirt... with white sleeves which were white-hemmed.” [76]

110. Of the applicant’s evidence as to the clothing that he wore in the early morning of 15 September 2011, the judge said:[77]

“ he was wearing sport shoes and jeans and a yellow t-shirt which had sleeves above the elbow. He had no undershirt on. He had no short-sleeve vest in orange colour, and he did not have a red t-shirt with a sleeve.”

111. Of the differences in the descriptions in respect of clothing, the judge said:[78]

“ You will remember the difference about the colours between PW1 (Ms Y) and PW2 (Mr Bun). You have to decide whether that is a significant matter. It may be that red and orange are very similar for some people’s eyesight. It may be that they have forgotten what the colour was. You may think that the second witness had a better chance of seeing what was being worn, as perhaps Miss Y did, because she was the person who was being grabbed at the time.

However, that is a matter for your common-sense, you have to decide whether this is a significant matter and whether or not it is relevant at all.

 It is not being suggested that anyone was actually lying about the colours, but you may think that some people have a different view of colours than others.  But anyway he says he did not have a red t-shirt, he was in a yellow t-shirt.”

112. The suggestion that the judge was thereby “telling the jury that even if there were inconsistencies in the descriptions of the clothing of the attacker, it was irrelevant to their considerations” is wholly unfounded.  As the judge said in terms, it was for the jury to determine “whether this is a significant matter whether or not it is relevant at all”.

The delay in placing the applicant on an identification parade

113. Of the fact that the applicant was not placed on an identification parade until 3 June 2013, in respect of the alleged offences of 15 September 2011, Ms Panesar submitted that the judge’s observations in, in the context of Ms Y failing to identify the applicant, that there was a lengthy period between the alleged offence and the identification parade being held were unbalanced and unfair.  The judge had failed to invite the jury to consider whether the applicant had been disadvantaged by that delay and had lost the opportunity of being exonerated.  Ms Panesar made no suggestion to the judge either before or, during or after the summing up that she include a direction to that effect.

114. In the course of the hearing, the Court was informed that the applicant’s conviction for theft, for which he was sentenced on 3 February 2012 in the District Court, arose out of his conviction of that offence in the alternative to a charge of robbery, which was alleged to have occurred in the Alhambra Building in the early hours of 15 September 2011.  It appears that in consequence of police enquiries into that matter the applicant was remanded in custody in Lai Chi Kok Reception Centre on 23 September 2011.

115. In his evidence-in-chief, the applicant had testified of having met a police officer on 23 September 2011 and having been accused of having raped and robbed Ms Y.  He said that the police officer was “45049 Police officer” and described what had ensued:[79]

“ Q. So what did the officer want to do?

A. First of all I told him, “Sir, I am not involved in this.” And then the officer told me that, “It’s nothing. I just want to hold an ID parade.”

Q. Were you agreeable to be placed on an ID parade for this case?

A. Yes and I signed on these ID parade papers.

Q. Yes, what else did the officer say to you about this case?

A. He took my signs on DNA papers but this DNA was never taken.

……..

Q. So this officer came to see you talking about the ID parade and taking your DNA but none of those two things happened at that stage?

A. It never happened but he gave me a time schedule of that on 26 September 2011 need to go to Cheung Sha Wan Police Station.

Q. And were you taken to Cheung Sha Wan Police Station on 26 September?

A. Yes.

Q. Were you placed on an ID parade or not?

A.   No.”

116. Although DPC 45049 testified in the trial and was cross-examined by Ms Panesar, it was not suggested to him that the details of the conversation about which the applicant testified had taken place.[80]

117. In cross-examination, issue was taken with the applicant’s testimony of those events:[81]

“ …but the first time when the officers came to meet me in Lai Chi Kok on 23 September 2011, he talked to me about it.

Q. Well, I was going to get to that, but I will put it to you now just so we can get the sequence. I suggest that when you spoke to an officer in October 2011 it was nothing to do with this matter.

…

Q. Before lunch I was putting a couple of questions to you about this officer that you say you spoke to in October of 2011, do you remember that?

A. Yes.

Q. I put it to you that he never asked you to sign a DNA or buccal swab form. He never suggested to you he was going to take a buccal swab from you at that time.

A. I had that DNA paper, some buccal 14.35.28 and he asked for me to sign on it.

Q. I also put to you that you were never asked to stand on any identity parade on that particular day with that officer asking you.

A. He took my signatures for an ID parade and buccal 14.35.58 that he told me that I need to go to Cheung Sha Wan Police Station on 27 September - 26 September, sorry.

Q. Well, I suggest in fact that officer never discussed the facts of this case with you on that occasion.

A.  He did so.”

118. In the video record of interview, the applicant referred to the events of 23 September 2011:[82]

“ The same officer came to me on 23-9-2011, …same officer came to me to ask me about this case, to do investigation and when I (sic) said to him that I (sic) suspected that you did this crime. This officer said to me then I said at that time, I said, I do not know about this then officer told me that he will have an ID parade on 26 for your case and then I will also do ID parade for my case for you then why didn’t he come?”

119. For her part, Ms Y testified that, although she could not confirm that it was on the date suggested to her of 4 October 2011, nevertheless she had attended two identification parades in respect of the events of 15 September 2011, at which she had not identified anyone as her assailant.[83]

120. In reminding the jury of the applicant’s testimony in that respect, the judge said:[84]

“ He said he was told by Police Officer 45049 that he was involved in a rape investigation. He told him he wanted to have an identification parade for the case. He signed on the papers saying that he would agree to a sperm test. He said that nothing happened about those items, although he was willing to have them done. He agreed that he had been in no identification parade. The officer said he had not been in any identification parade in that year after 15 September. ”

121. Of the admitted fact that Ms Y had failed to identify the applicant at an identification parade held on 3 June 2013, the judge said:[85]

“ And you will remember that was some lengthy period after the actual alleged rape.”

122. In her closing speech, Ms Panesar addressed the issue at some length:[86]

“ It’s not denied that there was some contact between PW7, DPC45049 and this defendant. In fact it was PW7 who, himself, confirmed they knew – you will also remember PW7, I asked him “When did you first become involved in this case?” Having initially denied he was involved in this case, then he said his involvement started on 16 September 2011. So from 16 September 2011 he knew of this case – he knew about the horrendous facts of this case and he had contacted the defendant. There was nothing to stop him from putting him on an ID parade soon thereafter, asking PW1 [Ms Y] to go to the ID parade and to see if she could identify him. That did not happen.

And what is more they could have taken his buccal swab, by now they could have taken it – why wasn’t that done?  Why do they wait almost two years to challenge him with regard to this case, to charge him, interview him and of course prosecute him subsequently?  So it’s not just that Miss [Y] may have been at a disadvantage; this defendant who faces a serious charge is at even a greater disadvantage.”

123. As noted earlier, Ms Panesar made no request to the judge to advert to this evidence in her summing up.  Perhaps one reason for not doing so was that, if the judge was to deal with the issue more fully, it would require her to remind the jury that the conversation of which the applicant testified had not been suggested, in cross-examination, to DPC 45049.

Miscellaneous complaints in respect of the closing speech of counsel for the restitution and/or the judge’s summing up

Identikit drawing

124. Ms Y testified that after she was released from hospital she had gone to the Police Headquarters where she had described the face of the man who raped her, from which an Identikit drawing[87] had been generated.  The judge reminded the jury that Ms Y testified that she “did have a good look at the face of the culprit”. [88]  In her evidence, Ms Y testified that she had been face-to-face with her assailant during the time at which he demanded that she repay money said to be owed to a friend of his.[89]  The judge said that she described him as having “a long face” and that she agreed that the drawing was “quite a good likeness”.[90]  Also, the judge reminded the jury that Ms Y had not identified anyone on the identification parade she attended.[91]  It was an admitted fact that was held on 3 June 2013.

125. In her closing speech, Ms Crebbin suggested that the drawing made from the description given by Ms Y “could easily fit this defendant.” [92]  On the other hand, Ms Panesar said the applicant’s face was “entirely different” and that the drawing “definitely does not represent him”.[93]

126. It was in that context, that the judge directed the jury:[94]

“ …we had the defendant come out and stand there while you were able to compare his appearance with the Identikit photograph. It is a matter for you whether you consider that relates to the defendant in any way and it is a matter for you what weight you put on it if you do decide it relates to the defendant.”

127. Then, the judge went on to make the observation with which objection is taken: [95]

“ I just point out to you that it is four years since that sketch was done and a person’s appearance can change in four years; they not only age but their hair changes or falls out or goes grey, or people wear glasses or some other pattern changes.”

128. That observation was a matter of pure common sense and in no way objectionable.  In any event, the judge made it clear that the issue was a matter for them, as were all matters of fact.[96]

“ So it may or may not help you but it is the best that could be done at the time because there was nobody else to do any identification.”

129. On the other hand, Ms Panesar’s complaint that Ms Crebbin was in error to say that Ms Y described her assailant as having “prominent lips” [97] was correct, as Mr Chan for the respondent conceded.  In fact, in cross-examination Mr Bun agreed with Ms Panesar’s suggestion that he had described the man who held Ms Y in an arm lock as having “thick lips”.  In the context of the issues of significance for the jury’s consideration that mistake was utterly inconsequential.  Ms Panesardidnot seek any correction by Ms Crebbin or the judge, nor did she refer to it in her own closing speech.

130. Next, Ms Panesar complained that the judge was in error in referring to the assailant of Ms Y as the “defendant” in her description ofMs Y’s evidence.  At the outset, the judge had directed the jury that first they would have to consider whether the offences were committed and, if so, “whether the prosecution succeeded in proving that it was the defendant was the perpetrator of the three offences.” [98]

131. In an overview of Ms Y’s evidence the judge described in summary the events to which she testified and said of her participation in the making of an Identikit drawing that it was “allegedly of the defendant”.  The judge went on to note that Ms Y had not identified anyone at an identification parade.  It was in that context that, in reminding the jury of Ms Y’s description of the conduct of her assailant, the judge referred to him as the “defendant”.  Of course, all that Ms Y was able to do was to describe the conduct of her assailant.  In those circumstances, it would have been better if the judge had referred to him in that way.  Nevertheless, we are satisfied it was clear to everyone in the court that the issue in the case was, as the judge had said, that the crucial issue in the case was whether the prosecution had proved that the defendant was the perpetrator of the three offences.  Once again, Ms Panesar did not see fit to raise the matter with the judge.

132. Ms Panesar’s complaint of Ms Crebbin’s use in her closing speech of the phrases “I say” or “we say” or “the prosecution says” and of making suggestions to the jury as to how they ought to resolve factual issues arising for their consideration is extraordinary.  Whilst, as a matter of style, the use of the first person is less appropriate than the other two phrases, how else is the prosecution to make its suggestions to the jury?

Unfair/unbalanced summing up

133. We do not accept that the judge’s summing up was unfair and unbalanced to the applicant.  As noted earlier, the judge set out the competing explanations of the parties as to the DNA evidence.  Apart from the various discrepancies between the accounts of prosecution witnesses addressed earlier, the judge also drew their attention to other discrepancies in their accounts.  For example, of the assault on Ms Y, the judge drew their attention to the discrepancies between her account and that of Mr Bun:[99]

“ There is a discrepancy about the number of punches.  Miss Y describes being held around her neck in an arm-lock and dragged along the road, being hit more than once.  She said she was hit and beaten by the man and her face was punched and she was punched once or twice on her left side.  The injuries found by the Forensic Pathologist are consistent with that happening. She says she did not hit the man herself, and you will recall that Mr Bun said that she slapped him back.  She said she did not fight back.  She might have struggled with him, trying to get her bag back, although she agrees she did not use the word “struggle” in her statement.

 Mr Bun says he saw one punch to her stomach by the man and saw her slap the man once.  He said he did not see them after they went to the building at 845-835 where the watchman was.  He would have seen the couple for a fairly short time but given the sequence of events, you can probably be sure that it must have been Miss Y and the man who she says who had abducted her, given the time and the area and what had happened. So there are some discrepancies about Miss Y’s evidence and what Mr Bun said.”

134. Of Mr Bun’s description of the assailant of Ms Y, the judge reminded the jury:[100]

“ In evidence, he said that the man looked South Asian or Thai descent. He also said he did not pay much attention to the two people. In cross-examination, he confirmed that he was familiar with the South Asian appearance and that he could distinguish Thais. He gave a description in his statement but said there the man was of Thai/Filipino descent and did not mention that he was of South-Asian extraction. However, he said in his evidence that he had mentioned that to the police officer who took his statement, although it is not recorded.”

135. Of cross-examination of Mr Bun, the judge said:[101]

“ It was put to him that he did not tell the police that the man was South-Asian or Pakistani or Indian. He said he did say South-Asian. He appears to have decided that the Thai descent was indicated by the fact that the man punched the woman in a Thai boxing style. That is possibly not very reliable as a way of deciding that somebody is of Thai descent because Thai boxing is not confined to Thailand. So there are some differences between what he says about the incident at that early stage and what Miss Y said about what happened.”

Conclusion

136. For the reasons that we have given, we were satisfied that there was no merit in the application for leave to appeal against conviction, which we refused.

137. As is readily apparent from our analysis, almost all of the grounds of appeal against conviction were utterly bereft of any merit whatsoever.  They appear to have been advanced without any regard at all as to their cogency or any realistic assessment of whether or not they advanced the applicant’s case in any substantial way.  Collectively they constituted the collation of any and all imaginable complaints, regardless of merit. Many of them were petty or trivial complaints that ought not to have been advanced.  The fact that, in almost every case, the various issues about which complaint is now made were not raised by way of objection or otherwise canvassed with the judge at trial speaks volumes by itself as to their lack of merit.  Addressing and traversing the grounds seriatim, has required a judgment of otherwise wholly unnecessary length.

A consideration of the submissions in respect of sentence

138. Although the judge said in terms that she had “considered the authorities in that case, in respect of the offence of rape in particular and noted the usual starting point can be raised in instances where aggravating factors exist”, the judge did not identify those authorities.  None were adverted to in mitigation.

139. Although the judge noted that the applicant had been sentenced to 16 months’ imprisonment for an offence of theft, which she described as having taken place “very shortly before the present offences for which you have just been convicted”, the circumstances of the commission of the offence were not drawn to her attention.  The offence occurred shortly before 2:25 a.m. on 15 September 2011, at which time it was an admitted fact in the instant appeal that the applicant had been seen exiting the Alhambra Building.  The applicant and another man reached an arrangement with a sex worker for the provision of sexual services.  However, when they reached the room in which she worked she refused their demands.  The judge said in sentencing the applicant in the District Court:[102]

“ Inside flat 7, the defendant and his friend asked to have sex together with PW1 at the same time. PW 1, the defendant became angry and hit PW 1 on her jaw and then again on her cheek causing swelling and redness. PW 1 run out of her room to escape. While PW 1 ran, the defendant snatched the black bag that belong to PW 1 and which PW 1 was holding. PW1 ran into a friend’s room next door and lock themselves in. The defendant and his friend ran down the stairs, was confronted by the buildings caretaker of the ground floor but managed to run away, dropping PW 1’s bag while getting away.”

140. In HKSAR v Cheung Lai Man this Court quashed three concurrent sentences of life imprisonment imposed on the applicant following his pleas of guilty to three counts of rape of victims aged 20, 21 and 12 years respectively, committed in an overall period of 3 years and 6 months.  Of the circumstances of the rape, Yeung JA, as Yeung VP was then, said in the judgment of the Court:

“ They were attacked while they were on their way to school…The applicant, masked and sometimes wearing gloves, threatened the victims with knife to injure or to kill them. After the victims were subdued, they were tied up and sometimes gagged and blindfolded. They were taken to nearby bushes where they were raped. Two of the victims were forced to perform oral sex for the applicant. The applicant ejaculated inside the mouth and over the body of (one of the girls).”

The Court went on to note that the applicant had video recorded all three rapes, which video was recovered.

141. Having quashed the sentences of life imprisonment, this Court stipulated a starting point to each of the offences of 18 years’ imprisonment which, affording the applicant a one-third discount for his pleas of guilty, resulted in sentences of 12 years’ imprisonment on each of the counts.  However, this Court ordered 6 years’ imprisonment on each of the offences that were second and third in chronological order were to be served consecutively to the 12 years’ imprisonment imposed on the first of the counts.  Accordingly, the total sentence imposed on the applicant was 24 years’ imprisonment.

142. In HKSAR v Chan Li Fat the applicant pleaded guilty to two counts of aggravated burglary and two related counts of rape.  This Court quashed the sentences of life imprisonment, with a minimum of 12 years’ imprisonment, imposed by the judge in respect of the two counts of aggravated burglary, imposing in substitution sentences of 6 years and 8 months’ imprisonment on each count, of which 2 years and 4 months’ imprisonment on one count was ordered to run consecutively to that imposed on the other.  However, the court refused the application for leave to appeal against the sentences of life imprisonment, with a minimum of 18 years’ imprisonment, imposed in respect of the two related counts of rape.

143. The offences were committed three months apart.  On each occasion the applicant broke into domestic premises.   On the first occasion, when the female occupant returned he threatened her with a knife, tied her up and blindfolded her before raping her without using a condom.  Having stolen valuables from the premises he left her in that condition.  On the second occasion, the applicant broke into premises in which two women were sleeping.  First, he threatened the mother-in-law of the other woman with a knife after which he punched her, tied her up, blindfolded and gagged her, threatening to kill her.  Then, he threatened her daughter-in-law with a knife, punched her heavily, tied her up, blindfolded and covered her face.  Next, he raped her without using a condom.  The court noted that all three of the women had been traumatised by the offences.

144. Of the applicant’s criminal record Tang VP, as Tang PJ was then, said that he had been convicted of:[103]

“ …16 offences of robbery, 2 offences of aggravated burglary, 2 offences of burglary and 3 offences of rape, 3 offences of indecent assault, 1 offence of false imprisonment, and 1 offence of assault occasioning actual bodily harm. Most, if not all of those offences, were committed at knife point.”

145. In dismissing the application for leave to appeal against the imposition of sentences of life imprisonment in respect of each of the two counts of rape, Tang VP said:[104]

“ …as the authorities show, sometimes, on the basis of an applicant’s record, one may conclude that he may remain a serious danger to the public for a period which cannot be reliably estimated at the date of sentence. This is such a case. We do not agree a determinate sentence is appropriate.”

146. Of the imposition of minimum terms of 18 years’ imprisonment, Tang VP said:[105]

“ We appreciate it is not entirely satisfactory when fixing a minimum term, a one-third discount is automatically given because the offender would have the benefit of a discount whether or not he will earn it. The better approach which is reflected in the cases mentioned above is that in fixing a minimum term, the court should clearly have in mind the fact that a minimum term is the minimum term that has to be served and that the minimum term must not exceed what retribution and deterrence require. In deciding what retribution and deterrence require, one should take account of the fact that ordinarily, a prisoner may earn a discount of up to one-third for good behaviour.

So, on this basis, we turn to consider whether a minimum term of 18 years is justified.  We realise that 18 years is what normally a prisoner who has been given a fixed term of 27 years would serve. Even so, we believe on the facts of this case a minimum term of 18 years is fully justified.”

147. In the Secretary for Justice v Rashid Mahmood, this court allowed an application for the review of a sentence of 4½ years’ imprisonment imposed on the respondent following his conviction after the trial of attempted rape on indictment which alleged the full offence.  Having quashed that sentence of imprisonment, this court imposed a sentence of 6½ years’ imprisonment.  In doing so, this court stated that the sentence ought to have been 7 years’ imprisonment, but was reduced to reflect the fact that the application was a review of sentence.  In that case, the applicant had attacked a lone woman at about 4 a.m. in the morning as she made her way home in a pedestrian subway in Glenealy.  Fortunately, the victim was in the middle of a telephone conversation on a mobile telephone as she was attacked.  The other party to the conversation, a male friend who lived nearby, came to her aid, where he found the applicant on top of the victim attempting to penetrate her vagina with his penis.  He kicked the applicant off the victim.  Although his intervention prevented the completion of the full offence, nevertheless the applicant stood up and hit the victim across the face as she tried to call the police on her mobile telephone, which he seized and threw to the floor before escaping.

148. In the Secretary for Justice v Lau Yun Leung [106], this court allowed a review of a sentence of 30 months’ imprisonment imposed on the respondent following his plea of guilty to a count of attempted rape.  In its place, having said that the appropriate starting point to be taken for sentence was 8 years’ imprisonment, the court substituted a sentence of 5 years and 4 months’ imprisonment.  However, in doing so, in the judgment of the court, Stuart-Moore VP said that, if the full offence had been committed, the appropriate starting point for the sentence would have been 10 years’ imprisonment.  The respondent attacked the victim as she was walking home in Sai Kung at 2:30 a.m.  Having struck the victim four or five blows to the head with his knee, the respondent dragged her into some nearby thick grass where he pulled down her jeans and underpants.  Fortunately, for the victim, some passing police officers observed the respondent squatting near the victim with his trousers unzipped and he was arrested after he had attempted unsuccessfully to escape.  He smelt strongly of alcohol.

149. Having said of the fact that the attack on the victim was “a violent and cowardly sexual assault on an unknown woman under the cover of darkness at a time of night when very few people would be expected to be in the vicinity” was an aggravating factor, Stuart-Moore VP went on to say:[107]

“ The courts owe a duty to the public to show that such grave conduct will not be tolerated and to reflect the abhorrence of right-minded people towards this kind of offence. Not only do such offenders need to be punished but others must be deterred from committing similar offences.”

150. We are satisfied that the judge was correct in identifying the factors of aggravation in the commission of the offences that she stipulated in her reasons for sentence.  However, as Mr Chan pointed out, there were other factors of aggravation to which the judge made no reference.  First, it is clear, as was stipulated in the Particulars of Offence of the counts alleging rape and non-consensual buggery, the applicant committed the offences “together with a person unknown”.  Ms Y described seeing him at the bottom of the staircase in the street.  Clearly, the second man was waiting nearby in the street and was readily summoned by the applicant at the conclusion of the sexual offences to participate physically in the offence of robbery.  His presence nearby afforded the applicant a degree of comfort about not being disturbed in his sexual attacks.  Secondly, the fact that the applicant was an asylum seeker at the time of the commission of the offence was a factor in aggravation of the offence.  Finally, although Ms Y said that she did not see the applicant in possession of a knife, nevertheless he told her that he had a knife.

151. In HKSAR v Sandagdorj & Another this court dismissed appeals against sentences of 20 months’ and 30 months’ imprisonment respectively imposed on the appellants following the 1^st appellant’s conviction on his plea of guilty andthe 2^nd appellant’s conviction after a trial for the offence of theft.  Of the aggravating factor that the 2^nd appellant was a torture claimant, Macrae J, as Macrae JA was then, said in the judgment of the Court:[108]

“ Where someone in the position of the 2^nd appellant deliberately sets out to commit a crime which is aimed at the very community which has afforded him the privilege of remaining at liberty while his claim is being considered, and when that crime also has the effect of tarnishing this City’s reputation for order and security, of which he seeks to avail himself, then that is a factor which is capable of aggravating his sentence for the crime.

We do not say that someone sharing the 2^nd appellant’s status would aggravate his position in every case or in every crime.”

152. In the circumstances of that case, namely theft of a handbag hanging on a stool on a bar in Lan Kwai Fong, a well-known and highly populated tourist destination Macrae J went on to say that was “a serious aggravating feature”.  In HKSAR v Norena Gutierrez, this Court held that, for the reasons articulated in HKSAR v Sandagdorj & Another, the commission of offences of not only unlawful trafficking in dangerous drugs but also possession of dangerous drugs by an asylum seeker were serious aggravating features in the commission of the offences, for which the judge was entitled to increase the sentences.[109]

153. In an extraordinary oral submission, Ms Panesar contended that the fact of the commission of the offences by the applicant had not been publicised internationally, so that in consequence it could not be said that the reputation of Hong Kong had been tarnished.  The very fact that a woman had been attacked and abducted, whilst walking on a major road in Hong Kong, in the presence of two different sets of passers-by and then dragged into a staircase where she was raped, buggered and robbed speaks eloquently for itself in respect of Hong Kong’s reputation for order and security, whether or not it was reported in international newspapers.

154. Of the three separate counts, the judge said, “I accept these offences were all part of one transaction.”  In the result, the judge ordered all the sentences of imprisonment to be served concurrently.  In the Secretary for Justice v Tseung Mang Ka [110] this Court allowed the application of the Secretary for Justice for a review of sentences imposed on the respondent following his pleas of guilty to offences of robbery and rape on each of two separate occasions.  The judge imposed sentences of 3 years’ and 3½ years’ imprisonment for the first robbery and rape respectively and 2 years and 5 months’ and 3 years’ imprisonment for the second robbery and rape respectively, ordering that 2 years’ imprisonment of the total sentence imposed in respect of the second offences be served consecutively to the total of 3½ years’ imprisonment imposed in respect of the first set of offences.  Accordingly, the total sentence imposed on the respondent was 5½ years’ imprisonment.  This Court quashed the sentences imposed by the judge and imposed sentences to a total of 9½ years’ imprisonment.

155. The offences, which occurred within 12 days of each other, were committed against prostitutes in the respective private premises in which they worked and to which the respondent had gained access for the performance of sexual services.  This Court accepted the argument advanced by counsel for the Secretary for Justice that the judge had erred in ordering that the sentence of imprisonment imposed in respect of each of the offence of robbery be served concurrently to the sentence imposed in respect of the related offence of rape.  In the judgment of this Court, Stuart-Moore CJHC (Ag) said:[111]

“ In R v Au Kai Wing [1998] HKC at 95H-I, Penlington JA said:

“The trial judge was quite correct in ordering that the sentences for the indecent assault and rape, while concurrent with each other, should be served consecutively to those for robbery.  This is an offence which by definition involves the use or threat of violence but if victims are also subject to sexual attack of any sort, the penalty for such attack must be in addition to that for the robbery and such offenders can expect substantial sentences.”

Penlington JA emphasised the same sentencing approach in Attorney General v Ip Chung-hang [1989] 1 HKLR 149 at page 154D-E:

“If a robbery is committed and the victim is then the subject of further violence such as wounding or rape the sentences for such violence should be in addition to the robbery.”

This approach was followed in R v Wong Kwok-keung CACC 75/1989 (unreported) where Macdougall JA at page 13 said:

“This Court has stated on previous occasions that where robbery victims are subjected to sexual assault of any sort the sentence for that attack will run consecutively to that for the robbery, and that the overall sentence will be substantial.”

    Similarly, in R v Lam Chun-po CACC 552/1990 at page 5 of the unreported judgment, and R v Sung Kwok-man & Anor. [1994] 1 HKCLR 164 at page 176, the Court of Appeal also held that the offence of rape called for a consecutive sentence to that imposed for robbery.”

156. In the result, Stuart-Moore CJHC (Ag) concluded:[112]

“ We propose to state the principle involved in the approach to sentence in this respect more starkly. Where a robbery victim is subjected to a sexual attack, there should inevitably follow a significant increase in sentence.”

157. Of the appropriate overall sentence of imprisonment, Stuart-Moore CJHC (Ag) said:

“ For two rapes of this kind, the Respondent should not in our opinion have received a sentence of less than ten years’ imprisonment following trial. Having regard to totality and taking the robberies also into account, we consider that the Respondent should have received a sentence of not less than fifteen years after trial.”

158. Stuart-Moore CJHC (Ag) said that the appropriate starting point for sentence in respect of the first robbery and rape was 6 years’ imprisonment respectively, from which the respondent was to be afforded a one-third discount for his pleas of guilty.  He went on to say that, if the application had not been one of review of sentence, the court would have ordered 2 years’ imprisonment in respect of the rape offence to be served consecutively to the sentence of 4 years’ imprisonment imposed for the robbery offence.  Having regard to the fact of the review, only 1½ years of the sentence of imprisonment imposed for the first offence of rape was ordered to be served consecutively to that imposed in respect of the first offence of robbery.  Having substituted sentences of imprisonment of 2 years and 8 months’ and 3 years and 4 months’ imprisonment for the second offences of robbery and rape respectively, the court ordered 1 year and 4 months’ imprisonment imposed in respect of the latter offence to be served consecutively to the sentence of imprisonment imposed in respect of the second robbery offence, so that the total sentence imposed for the second set of offences was 4 years’ imprisonment.  Then, the Court ordered that the sentence of 4 years’ imprisonment was to be served consecutively to the sentence of 5½ years’ imprisonment imposed in respect of the first set of offences, so that the total sentence of imprisonment imposed on the respondent was 9½ years’ imprisonment.

159. In sentencing the applicant to 18 years’ imprisonment for the offence of rape, but only 15 years’ imprisonment for the offence of non-consensual buggery, the judge gave no explanation for the lower sentence imposed in respect of buggery.  Ms Y had described three acts of vaginal sexual intercourse but only one act of buggery.  However, of the buggery she had said in cross-examination:[113]

“ Q. And so far as anal penetration was concerned how long did that last?

A. A few minutes.

Q. A few minutes and how many times do you think approximately he thrust in and out?

A. I did not...

Q. Was it many times or just a few times?

A.  Many.”

160. It is to be noted that in HKSAR v Hui Ka Sing [114] and R v Chan Chi Wa [115] this Court had refused applications for leave to appeal against sentence where the respective judge in the lower court had imposed sentences of 10 years’ imprisonment for each of two counts of rape and one count of non-consensual buggery.  In the former case, the trial judge, Tong J said that although he thought that the “non-consensual buggery is by comparison a more serious offence as this unnatural act would have an even worse effect on this young girl”, that victim was aged 16½ years of age.  Nevertheless he had adopted the same starting point for sentence for non-consensual buggery and rape.[116]

161. We are satisfied that the circumstances of aggravation in which the offences of rape and non-consensual were committed were very serious.  Violence in excess of what was needed to overcome the victim was inflicted on her.  We have had sight of the photographs of the injuries she sustained, which include severe bruising to her lip and lower left jaw.  Clearly, considerable blunt force was used to inflict that injury.  Also, although Ms Y did not say that she had ever seen a knife, nevertheless she was told by the applicant that he was possessed of a knife.  As the judge noted, Ms Y’s ordeal lasted for over an hour during which the applicant had inflicted on her a series of sexual assaults and indignities.  As she said in her testimony, she was so scared that she was shaking.  She said that in penetrating her there was, “a lot of roughness”.  The injury to her vaginal wall, which required urgent surgery under anaesthesia, speaks volumes to that description.

162. In the result, we are satisfied that, with respect to the judge, her approach to sentencing the applicant miscarried and we exercise that discretion afresh.  We are satisfied that the sentence of 18 years’ imprisonment imposed in respect of the count of rape was manifestly excessive.  In all the circumstances, there was no basis to distinguish between the sentence to be imposed in respect of rape and that imposed in respect of non-consensual buggery.  We are satisfied that the appropriate sentence for each of the offences was 15 years’ imprisonment, which sentences are to be served concurrently.

163. On the other hand, we are satisfied the judge erred in ordering that all the sentences of imprisonment for the three offences be served concurrently.  The offence of robbery was a different nature from the two sexual offences, the subject of the other counts on indictment.  For the reasons set out above, we are satisfied that it was appropriate to order part of the sentence of 4 years’ imprisonment imposed for that offence to be served consecutively to the sentences imposed for the other offences.  Having regard to the appropriate totality of sentence, we are satisfied that it is appropriate for two years of the sentence of imprisonment imposed for the robbery offence be served consecutively to the sentences of 15 years’ imprisonment imposed in respect of the rape and non-consensual buggery offences.

Conclusion  

164. Accordingly, we allow the application for leave to appeal against sentence, quash the sentence of 18 years’ imprisonment imposed for Count 1 and substitute a sentence of 15 years’ imprisonment.  We quash the order that all the sentences are to be served concurrently and order that two years of the sentence of 4 years’ imprisonment imposed for Count 3 be served consecutively to the sentences of 15 years’ imprisonment imposed for Counts 1 and 2.  Accordingly, the total sentence imposed on the applicant for these offences is 17 years’ imprisonment.

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JUDGMENT IN CACC 253/2015

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165. In CACC 253/2015, with the leave of the single judge, the appellant appeals against the judge’s order that two years of the sentence of 5 years and 4 months’ imprisonment imposed by Yau J on 21 July 2015 on the appellant on his conviction on his plea of guilty to that of rape, of Ms X on 1 June 2013, contrary to section 118(1) of the Crimes Ordinance be served concurrently to the sentences of imprisonment imposed in CACC 173/2015. The effect of that order was that 3 years and 4 months’ imprisonment was to be served consecutively to the sentences of imprisonment imposed in CACC 173/2015.

Reasons for sentence

166. In sentencing the appellant the judge noted that in pleading guilty to the single offence of rape, the appellant had accepted the factual basis of the offence as set out in the Summary of Facts.  Ms X was a visitor from the Mainland, where she was a university student, to Hong Kong.  She was staying, together with a girlfriend, at a guesthouse on the 13th Floor, Block A, Chungking Mansions, Tsim Sha Tsui.  At about 11:10 p.m., having had a shower in a communal bathroom, she returned to their room, after which her girlfriend went to take a shower.  Ms X was speaking on her telephone to her boyfriend in the Mainland.  Although the door was closed, it was left unlocked.  Of the unfolding events, the judge noted:[117]

“ The accused suddenly opened the door and entered the room and said, “Can we make friends”.  The victim asked him to leave.  The accused locked the door.  The victim was terrified.  She did not know the defendant and had never seen him before.  She told the accused, in English, that she was scared and again asked the accused to leave.  The accused said that he wanted to see the victim’s body.  The victim was frightened and asked the accused if he would leave if she allowed him a quick glance, hoping that that would be the end to the matter.

The accused however said, ‘If you cry out, I will...” and then did a throat-cutting gesture with his right hand, whilst patting his trouser pocket with his other hand.  The victim thought that the accused might have a knife with him and would kill her if she shouted or tried to resist. The accused pulled off her towel and kissed her two breasts once.  The victim started to cry but dared not resist or shout for help.

The accused signalled her to remove her knickers, again making a throat-cutting gesture.  He pulled her knickers to one side and licked the victim’s vagina.  He took out his penis, wiped it on the victim’s towel and grabbed the victim’s head, sticking his erect penis into the victim’s mouth, in and out for seven to eight seconds.  The victim felt sick and humiliated.

The accused held her hand to make her touch his penis.  The accused then pulled the victim onto one side of the bed and pressed his penis into the victim’s vagina, thrusting up and down for about 20 seconds.  He did not use a condom.  The victim did not know if the accused had ejaculated.  The victim was very terrified and was suffering great pain so she tried to get rid of the accused by saying that her friend would return to the room soon.  The accused put his shorts back on and left.

Later, the victim and her friend made a report to the police.”

167. Having been arrested on 2 June 2013, in a video record of interview conducted of him the appellant admitted having gone into Ms X’s room and having had sexual intercourse with her.  However, he contended that she had initiated that sexual activity.  An examination of Ms X by a forensic pathologist on 2 June 2013 revealed that the labia minora of her vagina had been damaged and split, causing bleeding.  On 3 June 2013, Ms X identified the appellant on an identification parade.  The appellant was identified by DNA analysis, for all practical purposes, as the donor of semen found on vaginal and vulval swabs taken from Ms X.

168. In sentencing the appellant, the judge accepted that there was no evidence of pre-planning and that the appellant did not know the victim.  However, noting that having entered the room he did not leave when requested to do so, the judge went on to find factors of aggravation in the commission of the offence.  First, that the appellant had “…. threatened the victim with a gesture of throat cutting and even hinted that he had a weapon in his trouser pocket”.  Also, he noted that the appellant had caused injury to Ms X’s private parts and that, whilst there was no evidence that he had ejaculated, he had not used a condom whilst penetrating her.  The judge went on to have regard to the ‘victim impact statement’, notwithstanding that Ms Panesar had invited him not to give it weight because it was not supported by an assessment by a psychologist or psychiatrist.  The judge said:[118]

“ It is, however, commonsense that in a case of rape, the victim will invariably suffer some degree of emotional and psychological trauma.”

169. Of the appellant’s criminal record, the judge said:[119]

“ The accused has 5 previous convictions, including one count of rape and one count of non-consensual buggery. He was last convicted of these two offences and an offence of robbery on 13 May 2013 and was sentenced to a total of 18 years’ imprisonment.”

Starting point for sentence

170. The judge stipulated a starting point for sentence of 8 years’ imprisonment, which he discounted by one-third for his plea of guilty.  As a result, he imposed a sentence of 5 years and 4 months’ imprisonment.

Grounds of appeal against sentence

171. Ms Panesar took no issue with the sentence of 5 years and 4 months’ imprisonment imposed on the appellant for the offence.  However, she submitted that the judge erred in ordering that only two years of the sentence of 5 years and 4 months’ imprisonment be served concurrently with the applicant’s existing sentence.  She contended that the resulting total sentence, of 21 years and 4 months’ imprisonment imposed on the appellant in respect of CACC 173/2015 and CACC 253/2015 was manifestly excessive.

A consideration of the submissions

172. It is apparent from the judge’ neutral reference to the appellant’s criminal conviction for theft on 3 February 2012 that he was not made aware of its true significance.  Although the appellant was acquitted of robbery and convicted of theft only, nevertheless the judge found that the appellant had assaulted the female prostitute, having become angered by her refusal to provide sexual services that he demanded.  Within minutes of that assault, he attacked and abducted Ms Y in Canton Road and dragged her to a staircase where he raped, buggered and robbed her.  So, the rape of Ms X, some 21 months later was to be viewed in that overall context.  He was intolerant of women and, in pursuit of his sexual desires, readily prone to do them violence.

173. In all the circumstances, we are satisfied that the judge was correct to order that only part of the sentence of 5 years and 4 months’ imprisonment that he imposed on the appellant be served concurrently to the existing sentence of imprisonment to which the appellant was subject.  However, having regard to the principle of totality of sentence, in our judgment the overall result in sentence was manifestly excessive.  Having regard to the fact that we have allowed the application for leave to appeal in CACC 173/2015, to the extent that the overall sentence was reduced to 17 years’ imprisonment, the appropriate overall sentence is to be achieved by ordering that two years of the sentence of imprisonment imposed in CACC 253/2015 is to be served consecutively to the sentence of imprisonment imposed in CACC 173/2015.

Conclusion

174. For the reasons that we have given, we allow the appellant’s appeal against sentence.  We quash the judge’s order that two years of the sentence of 5 years and 4 months’ imprisonment imposed in CACC 253/2015 be served concurrently to the sentence imposed in respect of CACC 173/2015.  In its place, we order that two years of that sentence to be served consecutively to the sentence of 17 years’ imprisonment to which the appellant is now subject in respect of CACC 173/2015.  Accordingly, the total sentence to which the applicant is now subject is 19 years’ imprisonment.

[1] Exhibit P45.

[2] Appeal Bundle; page 78, counter # 172.

[3] Appeal Bundle; pages 78-9, counter #s 176-185.

[4] Summing up: pages 21 K-R; 22 E-J, Q-R; 32 D-G; and 40 Q.

[5] Appeal Bundle, page 250 C-G.

[6] Summing up, page 21 K-M.

[7] Summing up, page 25 N - 26 F.

[8] Summing up, page 30 E-K.

[9] Summing up, page 56 A-C. [See Ms Y’s evidence to that effect-Page 123 L-O.]

[10] Appeal Bundle, page 179 G-H.

[11] Summing up, page 20 L.

[12] Appeal Bundle, page 231 A-C.

[13] Appeal Bundle, pages 225-232.

[14] Appeal Bundle, pages 263 I-K; 264 Q-R.

[15] R v Chan Yam Fai & Another [1985] 1 HKC 108.

[16] HKSAR v Cheung Lai Man [2004] 2 HKLRD 473.

[17] HKSAR v Chan Li Fat [2010] 5 HKC 341.

[18] Secretary for Justice v Rashid Mahmood [2012] 1203.

[19] HKSAR v Sandagdorj & Another [2014] 1 HKC 206.

[20] HKSAR v Norena Gutierrez (CACC 319/2014; unreported, 30 April 2015).

[21] Appeal Bundle, page 392 B-C.

[22] Summing up, page 35 J-P.

[23] Appeal Bundle, page 231 A-M.

[24] Appeal Bundle, page 263 I-K.

[25] Appeal Bundle, page 278 G-M.

[26] Summing up, page 15 I-L.

[27] Summing up, page 46 D-F.

[28] Summing up, page 46 M-Q.

[29] Summing up, pages 46 T - 47 E.

[30] Summing up, page 55 B-F

[31] Specimen Direction 1 of the ‘Specimen Directions in Jury Trials’ - Judicial Institute.

[32] Li CJ, Chan, Ribeiro PJJ and Sir Anthony Mason NPJ.

[33] Kissel v HKSAR (2010) 13 HKCFAR 27, paragraph 82.

[34] HKSAR v Lo Wai [2007] 3 HKLRD 191.

[35] Dyers v The Queen; (2002) 210 CLR 285 at 293-294.

[36] R v Gallagher [1974] 1 WLR 1204.

[37] R v Couzens [1992] Crim L R 822.

[38] R v Wilmot (1989) 89 Cr App R 341.

[39] Dyers v The Queen; page 292, paragraph 9.

[40] RPS v The Queen (2000) 199 CLR 620.

[41] Dyers v The Queen; page 292, paragraphs 9 and 10.

[42] Azzopardi v The Queen (2001)205 CLR 50.

[43] Appeal Bundle, page 225 T-U.

[44] Appeal Bundle, pages 264 O - 265 C.

[45] Summing up, page 46 M-P.

[46] Summing up, page 47 K-M.

[47] Appeal Bundle, page 282 G-I.

[48] Summing up, pages 409 L-N and 52 L-N.

[49] Summing up, pages 54 S - 55 A.

[50] Summing up, page 55 F.

[51] Summing up, page 55 H-J.

[52] Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600, at paragraph 57.

[53] Summing up, page 40 P-T.

[54] Summing up, page 40 D.

[55] Appeal Bundle, page 43 S-T.

[56] Summing up, page 39 B-D.

[57] Summing up, page 45 L-O.

[58] Summing up, page 24 I-K.

[59] Summing up, page 55 R-U.

[60] Summing up, page 56 A-C.

[61] Summing up, page 24 K-M.

[62] Appeal Bundle, page 247 D-F.

[63] Appeal Bundle, page 123 L-P.

[64] Appeal Bundle, page 123 A-C.

[65] Summing up, page 44 C - G.

[66] Summing up, pages 43 T - 44 B.

[67] Summing up, page 44 L-O.

[68] Summing up, pages 29 T - 30 A.

[69] Appeal Bundle, page 30 E-K.

[70] Appeal Bundle, page 163 H-S; Summing up, page 29 L-O.

[71] Appeal Bundle, page 30 L-N.

[72] Appeal Bundle, page 180 L-M.

[73] Summing up, page 25 P.

[74] Appeal Bundle, page 137 R-S.

[75] Appeal Bundle, page 138 N-O.

[76] Summing up, page 28 J-T.

[77] Summing up, page 51 E - G.

[78] Summing up, page 51 H-O.

[79] Appeal Bundle, pages 203 F - 204 D.

[80] Appeal Bundle, pages 183-4.

[81] Appeal Bundle, pages 218 S - 219 Q.

[82] Appeal Bundle, page 97, counter # 464.

[83] Appeal Bundle, pages 139 G - 140 C.

[84] Summing up, page 52 D-I.

[85] Appeal Bundle, page 20 L.

[86] Appeal Bundle, page 282 T - 283 G.

[87] Appeal Bundle; page 383, Exhibit P 43.

[88] Summing up, page 26 E.

[89] Appeal Bundle, page 116 L-M.

[90] Summing up, page 25 P-S.

[91] Summing up, page 21 M.

[92] Summing up, page 250 M.

[93] Summing up, page 286 O-S.

[94] Summing up, pages 25 S - 26 A.

[95] Summing up, page 26 B-D.

[96] Summing up, page 26 D-E.

[97] Appeal Bundle, page 250 C.

[98] Summing up, page 13 L-M.

[99] Summing up, pages 27 O - 28 E.

[100] Summing up, page 27 C-H.

[101] Summing up, pages 28 R - 29 B.

[102]  HKSAR v Azad Mohammad Fahran (DCCC 1147/2011, unreported, 3 February 2012) at paragraph 3.

 [103] HKSAR v Chan Li Fat, paragraph 16.

[104]  HKSAR v Chan Li Fat, paragraph 22.

[105]  HKSAR v Chan Li Fat, paragraphs 28-9.

[106]  Secretary for Justice v Lau Yun Leung [1994] 4 HKC 1.

[107]  Secretary for Justice v Lau Yun Leung, page 10 H-I.

[108]  HKSAR v Sandagdorj & Another, paragraphs 21-2.

[109]  HKSAR v Norena Gutierrez, paragraphs 27-9.

[110]  Secretary for Justice v Tseung Mang Ka [2000] 4 HKC 611.

[111]  Secretary for Justice v Tseung Mang Ka, pages 616 H - 617 D.

[112]  Secretary for Justice v Tseung Mang Ka, page 617 E.

[113] Appeal Bundle, page 142 I-L

[114]  HKSAR v Hui Ka Sing [2000] 2 HKLRD 718.

[115] R v Chan Chi Wa [1997] 2 HKC 549.

[116]  HKSAR v Hui Ka Sing, page 722 D-E.

[117] Appeal Bundle, page 27 A-P.

[118] Appeal Bundle, page 30 R-S.

[119] Appeal Bundle, page 28 G-H.