R. v. WONG CHUEN and Another

IN THE COURT OF APPEAL

1995, No. 242
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The 1st applicant (A1) seeks leave to appeal against the sentence of one year's imprisonment for indecent assault. Originally he was also charged with rape. When he pleaded guilty at the trial to the indecent assault charge the prosecution did not proceed with the rape count.

2. The 2nd applicant (A2) seeks leave to appeal against his conviction for rape and to appeal against the sentence of eight years' imprisonment imposed upon him for the offence.

3. The circumstances of this case were rather extraordinary. Late in the evening of 8 March 1994 the victim who was referred to as Ah Ling and her friend who was called Ivy went to the podium of the Hong Kong Museum of Art at Tsimshatsui to sit and chat.

4. Prior to doing so Ivy had bought some pills she described as being cross pills and both she and Ah Ling had taken one of the pills each.

5. According to both girls' evidence they were under the impression that the pills would make them feel more relaxed.

6. When they were at the Museum of Art they were approached by two men who they had not previously known. The men had attempted to chat to them and eventually they did all engage in conversation.

7. Later they all moved to a different area and the two men met up with three of their friends who were there.

8. Perhaps not surprising there were inconsistencies as to what occurred later on.

9. The main prosecution witnesses were a Mr Lam, who was one of the men in the group, Ah Ling, Ivy, Mr Wong Kon Chong and the police officers who attended at the scene.

10. Mr Wong Kon Chong was an independent witness. He gave evidence that on the evening in question he had been at the Museum of Art. When he had gone to the toilet he had seen out of the window a female in a state of undress in what appeared to be a helpless condition. He saw a man lifting one of the girl's legs and putting it behind his waist. The man then got up and pulled his trousers up. Another man was squatting near the girl's head. The first man then went across to the two other men who he thought were acting as lookouts.

11. One of these men then went across to the girl and lifted up her legs. Mr Wong considered that this was a matter which should be brought to the attention of the police and so he made a telephone report.

12. Mr Lam had prior to the trial pleaded guilty to rape and was clearly an accomplice. He gave evidence that he was one of the men in the group. After the men had met the girls they had all chatted and engaged in a game of hide and seek.

13. According to him Ivy had produced a packet of cigarettes which he believed to be Mahuana and these were passed around. He said that Ah Ling had smoked the cigarette.

14. After a time he had gone to relieve himself. When he returned he saw the first defendant (D1) who is A1 and the third defendant (D3) fondling Ah Ling's breasts and the lower part of her body. A1 had then suggested that he should "go first". He understood from this that it was proposed that he should have sexual intercourse with her. He proceeded to do so. He was aware of the fact that by this time Ah Ling was in a semi-conscious condition and was in no fit state to consent to intercourse.

15. When he finished it was suggested that A2 should go next. He then had sexual intercourse with Ah Ling.

16. At this time Mr Lam was aware that one of his group Ah Hong had been with Ivy attempting to embrace and kiss her. They were in a different position and could not have seen what was happening to Ah Ling. He was however aware that shortly before the arrival of the police party Ivy had managed to get to Ah Ling and render her assistance. This was notwithstanding the fact that the men had attempted to prevent her from seeing Ah Ling.

17. Ah Ling had very little recollection as to what had transpired. She remembered meeting the men and talking to them. Her next recollection was when she recovered consciousness at the Queen Elizabeth Hospital. She was however adamant that she had never consented to having sex with any of the men.

18. Ivy's evidence was more helpful. She described how she and Ah Ling had got to the Hong Kong Museum of Art and how they had met the men. She insisted that it had been one of the men and not she who had introduced the cigarettes which may have contained Mahuana.

19. She agreed that she and Ah Hong had become separated and that Ah Hong had attempted to press his attentions upon her. She had been reluctant to tolerate this. She had become concerned about Ah Ling. When she had attempted to rejoin Ah Ling the men had tried to prevent her from doing so. She eventually succeeded. She saw that Ah Ling was in a helpless condition and she remembered A2 saying that he would be responsible for her.

20. The police officers gave evidence of attending the scene and arresting the men. The woman police officer who was in attendance gave evidence concerning the condition that Ah Ling was in when the police arrived.

21. It was an agreed fact that A2 was at the scene at the time in question and it was also agreed that A2 had sexual intercourse with Ah Ling on the night in question. The A2 did not give evidence in his defence.

22. In substance there is one ground of appeal against A2's conviction. That is that when the prosecution opened its case it did so on the basis that A2's cautioned statement which contained a detailed admission of the offence would be adduced as evidence. Burrell J had prior to the jury being empanelled ruled the statement to be admissible.

23. Later, during the trial he had reversed this ruling. Counsel for A2 had then made an application for the discharge of the jury and this had been refused.

24. It is the case that the jury never saw the contents of the statement.

25. A complaint is made that the judge's directions were inadequate to rectify this situation.

26. He directed at p.3 of his summing-up:

" Before I direct you about the law relating to the offence of rape, there are a number of general things I wish to say about your approach to the evidence in this case. The first is that you must decide the question of whether or not you are sure of guilt by reference only to the evidence you have heard. The evidence in this case falls basically into three categories.

Firstly, what the witnesses have said in court, that is, their oral testimony.

The second category of evidence is the three statements of agreed fats that had been given to you and had been read to you. And also there was a statement by a pharmacist, a Mr PANG, which was read to you at the very outset of the trial. The contents of that statement and the documents of agreed facts are accepted as being true and correct, and the facts stated in them have the same weight as if the people capable of giving that evidence had, in fact, come to the court to do so.

And thirdly, there are the exhibits in the case. All exhibits are evidence. In this particular case, for example, you have some photographs and plans, and you will take the exhibits with you when you retire to consider your verdict. They are all evidence in the case.

Having told you what is evidence, I should also perhaps stress what is not evidence: what I say to you is not evidence; what counsel says to you is not evidence; counsel's questions or suggestions put to witnesses are not evidence; only the answers that the witnesses give are the evidence."

27. And then later on p4 he said:

" What counsel have said to you about the case, either at the beginning of the case or at the end of the case, is not evidence. Let us be clear about this. In addition to the agreed facts and the exhibits, the only matters you may consider, when deciding the facts of the case, are what has been said by, I use their abbreviated names, Ah Ling, Ivy, the passer-by - Mr. Wong, the two other boys - Lam and Ah Hong, the girl's mother, Dr. LAI, two police officers, and the 1st defendant, and the 3rd defendant.

There will not be any more evidence in this case. Do not speculate about matters upon which no evidence has been called. If there is no evidence on a particular matter, then you must accept that, and you must reach your verdict in the absence of such evidence. Do not try and fill in any gaps in the evidence by your own speculation or guess-work."

28. We are satisfied that it could hardly have been made clearer to the jury that they must confine themselves to the evidence and that they must disregard superfluous material.

29. What also needs to be borne in mind is that there was a danger that if too specific a reference was made to the statement made by Counsel for the Prosecution in his opening this may have been counterproductive.

30. This possibility was canvassed by the court. Mr Kenny who represented A2 below seemed to think that it would be preferable not to dwell on the subject unduly - see p331 of the transcript.

31. Mr Buchanan placed reliance upon the case of Li Chun-Choi [1990] 1 HKLR 665 to support his contention that the judge ought to have dealt with the matters specifically. We do not think that this case is of much assistance. What was considered in that case was a material irregularity - namely the introduction of inadmissible evidence by one of the prosecution witnesses. This was a very different situation to the instant case.

32. There was a strong case against A2. It was an agreed fact that he was one of the men in the group and was present at the Museum of Art that night and that he had sexual intercourse with Ah Ling.

33. From all of the other available evidence it seemed unlikely that there was any question of Ah Ling consenting to intercourse taking place.

34. The jury was fully entitled to reach the verdict they did and indeed it would have been surprising had they not convicted A2 on the evidence which was before them.

35. The conviction is in no way unsafe or satisfactory and the application is dismissed.

36. Counsel for A1 has lodged perfected grounds of appeal against the sentence containing altogether nine grounds.

37. It is contended that Burrell J placed undue reliance upon the facts surrounding the more serious rape counts and that the consequence of this was that he imposed an unduly heavy sentence upon A1.

38. It is very clear from his Reasons for Sentence that he did no such thing. It is however evident that there was inevitably some overlap between the facts of the indecent assault count and the rape count. But Burrell J undoubtedly passed sentence on the basis of A1's conviction for indecent assault only. Also he gave him credit for his guilty plea although this amounted to slightly less than 25% of the starting point for the offence.

39. Counsel for A1 at the trial referred the judge to a number of sentences imposed in indecent assault cases and submitted that a non-custodial sentence would have been appropriate.

40. It has to be said that very little advantage is to be gained from a comparison of different cases as the facts are nearly always disparate. This is particularly the case for an offence such as the present one.

41. What was manifestly clear in the present case was that the offence was a serious one.

42. Advantage was taken of a young girl who on the findings of the jury was not in a mental condition to consent to what happened to her.

43. When A1 fondled the breasts and the lower part of her body her clothing was displaced leaving her in a semi-naked condition in a public place. This was disgraceful conduct and the judge had no alternative but to take a serious view of the offence.

44. The judge used a starting point of 15 months. Miss Yew submits this was too high. We disagree. However in all of the circumstances of this case the judge gave an insufficient discount for A1's plea. We consider that the appropriate sentence in this case is nine months' imprisonment.

45. The application is allowed, treating it as the appeal, we substitute nine months' imprisonment for the term of one year's imprisonment.

46. So far as A2 is concerned. The facts of the case have been sufficiently rehearsed on the application for leave to appeal against conviction.

47. This was an outrageous case and there were few mitigating circumstances.

48. Mr Buchanan submitted on the authority of The Attorney-General v. Fong Ming Yuen [1989] 2 HKLR 177 that A2 should have been sentenced to a Training Centre. This was an entirely different case and is of no assistance. We have no doubt that a long custodial sentence of imprisonment had to be imposed.

49. In our view eight years' imprisonment was too high. In all of the circumstances of this case, six years' imprisonment was the correct sentence to impose. We allow the application and treating it as the substantive appeal substitute a sentence of six years' imprisonment for the sentence of eight years' imprisonment.