HKSAR v. TSANG SAI KIT

IN THE COURT OF APPEAL OF THE HKSAR

1996, No. 736

(Criminal)

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J U D G M E N T

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Liu JA:

1. Before Deputy Judge Wilson the appellant was indicted on a count of rape and a count of attempted rape. He was charged that on 26 April 1996 in his room at Hing Yiu House, Tai Hing Estate, Tuen Mun, he raped Miss Li (Li) and later in the same room he attempted to rape her. He was tried before the Deputy Judge with a jury and convicted on both counts. Sentences were passed upon him. He appealed against conviction.

2. At the conclusion of counsel's submissions, we allowed the appeal, quashed his convictions and ordered his immediate release. The parties were told that we would give our reasons at a later date, which we now do.

3. On 24 April 1996, after school, Li was brought by her girl-friend to join a group of youths, including the appellant, in McDonald's in Mongkok. Li and her friend left after 10 p.m. According to the appellant, the group played a finger-guessing game in pairs. The losing partner would have to kiss the other partner for a whole minute in the presence of the rest. The appellant was paired with Li. When Li lost in the game, she kissed the appellant on more than one occasion. This was not put to Li in cross-examination and was denied by prosecution counsel. Through one of the friends present, the appellant had expressed his wish to be with Li. In her evidence, Li told the jury that on that first occasion the appellant put his arm around her and wanted to hug her, but she pushed him away.

4. The next day, 25 April, by pre-arrangement Li was collected by her same girl-friend outside her home, again after school. They went from Yaumati to Sham Shui Po and there by mini-bus to Taipo to meet up with the same group, including the appellant. The girl-friend of Li had her own boy-friend there. There were in all four boys and four girls in the group. They congregated in the Gourmet Square outside a Taipo Department Store. The applicant had to leave for Mongkok. The rest of the group were reluctant to go with him but encouraged Li to keep the appellant's company. The appellant expected to be able to return to Taipo in an hour, at about 7 p.m. to prepare their meal. The appellant had worked as a cook. Li agreed to leave with the appellant for Mongkok. They took a bus. During the bus journey from Taipo to Mongkok, according to Li, the applicant was trying to hold her hand and kiss her but she avoided him. Li could not remember whether she leaned her head on his shoulder for part of the journey. On the other hand, the appellant recalled Li's reaction as being more responsive. The appellant told the jury that Li said to him at the far end on the upper deck of a Taipo/Mongkok bus that she was fond of him and that thereupon he took the initiative to kiss Li who did not resist but instead, put her arm around him.

5. In Mongkok, Li and the appellant met a friend of the appellant's and two girls. After having waited for the appellant's friend to finish his chores, they all dined at a Japanese Restaurant where Li consumed two cups of Sake. Thereafter, they took a room in a Karaoke Bar from about 9 p.m. to about mid-night. In the Karaoke Bar, Li drank two-three glasses of beer. Few particulars were supplied by Li, but the appellant told the court that over the telephone Li asked her girl-friend in Taipo to go home by herself and she would go home later. According to the appellant, Li kissed him a number of time in the Karaoke Bar and on leaving the Karaoke Bar, Li was making suggestions to go to his home. Li told the appellant that her family had little care or time for her and that in any case, her father was not returning home that evening. Li also asked the appellant whether there would be anyone at his home. The appellant assured Li that they would not be disturbed, and the two took a taxi to his home. Li's version on the taxi was different. She said that she gave instructions to the taxi-driver to go to the Yaumati Police Station, the locality of her home, but that the appellant countermanded her instructions and ordered the taxi to go to Tai Hing Estate in Tuen Mun. When they went up the lift to the appellant's home, the lift camera recorded Li as being in need of support.

6. The appellant's cubicle was partitioned off by a folding door. A girl by the name of Ngai, a girl-friend of the appellant's brother, was in the premises. She slept on the lower bunk right next to the appellant's cubicle. When the appellant returned home, he greeted Ngai. After Li had removed her shoes and her jacket and lay on the appellant's bed inside that partitioned cubicle, the appellant left her for a moment to talk to Ngai who had been awakened by the noise made by the appellant and Li opening the door to the premises. Ngai asked the appellant who the girl was walking in hand-in-hand with him and the appellant told her she was his girl-friend. At the instigation of the appellant, according to him, Li telephoned her mother and told her she was not coming home that night. It was warm and Li took off her upper garment and her skirt. The appellant kissed her when she was in her brassiere and underpants. The appellant asked her "whether that would be OK", meaning whether she could have sexual intercourse with him. Li started to embrace him and kiss him. Li took off her brassiere and underpants and the appellant removed his clothes and they had sexual intercourse. During the intercourse, Li complained of pain and the appellant was, so he said, restrained. The appellant testified:

"At that time, I had the impression that, well, she was - she was reacting very shyly, but I felt that she was doing that voluntarily. She did not say that she was not willing to have the sexual intercourse with me."

7. After the intercourse, the appellant and Li talked about personal and family matters and they fell asleep for a time, with Li lying partially over the appellant. The appellant continued:

"About 3 a.m. when I tried to have the sexual intercourse with Tammy again ...... until shortly after 3 a.m. then I saw that Tammy appear to be still awake. Then I started to kiss her. Then again I tried to ask her whether she would find that OK", meaning whether Li could have sexual intercourse again ".... Then she said that since during the first occasion when we were making it, then she felt hurt so at this moment, she did not want to do it any more and that it is why I left it and I did not go ahead with it".

8. Li's version is somewhat different. She said that after the appellant took her to his cubicle, he took off her garments. When she questioned him about his intention, he did not reply but raped her after he had undressed himself. She told the jury that she cried and pleaded with him not to do it. She tried to stop him but he grabbed hold of her right hand with his left hand when she tried to push him off. She had no strength to resist. She felt very painful during the intercourse. After the intercourse, the appellant let her lie on top of him and "kept on touching (her) back". She had no strength at all and soon felt asleep. Later, the appellant tried to rape her for the second time by again lying "on top of (her)". She said : "like the first time, he wanted to insert his sexual organ into my lower part". She resisted. He grabbed her hand when she pushed him away. She kicked him away, got up and sat on the bed. She curled herself up in a blanket in the course of the appellant's attempt, but she did not see his penis.

9. Therefore, Li claimed to have been raped when she tried to push the appellant off and told him not to do it. As for the appellant, his version was: when Li was asked for her permission to have intercourse, Li did not give him a reply but simply embraced him by putting her arms around his waist, kissing him. The appellant's impression was that Li was reacting very shyly but that she was a voluntary and willing partner.

10. Li claimed that she refused. As for the appellant, he said that he took Li's reactions as meaning consent. All this should be viewed against the common background: at their first meeting on 24 April 1996, the appellant showered attention on Li; Li chose to return to the same group the following evening as far away as Taipo; in the group of four boys and four girls, Li agreed to leave the group for Mongkok with the appellant alone; the two sat at the far end of the upper deck of the Taipo/Mongkok bus in which the appellant made fond approaches to Li; Li gave her girl-friend to understand that she would return to Taipo by 7 p.m. but she stayed on, going from a Japanese Restaurant to a Karaoke Bar until mid-night; throughout she was at ease; Li and the appellant travelled by taxi to Tai Hing Estate in Tuen Mun and went to the home of the appellant; Li went into the partitioned cubicle of the appellant's; Li, still with her clothes on in the appellant's cubicle, heard a conversation between a girl and a boy whom she believed to be the appellant; Li stayed there until early morning; she took a shower and phoned her family and friend for about an hour; in the telephone conversation, with the assistance of her friend, she led her family into believing that she had stayed the night over with a girl-friend; Miss Ngai was sleeping the whole time in the same premises next to the appellant's partitioned cubicle; Li was at least aware of Ngai's presence in the morning.

11. The crucial issue for the jury to decide was consent or the lack of it. There can be no doubt that in his evidence the appellant claimed to have understood Li as having consented to sexual intercourse. That was his impression. Trial counsel for the appellant who was then not represented by Mr. McGowan, did not request the judge to direct the jury on the issue of genuine belief as to consent. In the overall evidence, there was room for a mistaken but genuine belief to arise so as to provide the appellant with a complete answer to the charge of rape. The judge directed the jury on rape and consent but the jury were not told that they had to be sure, on the evidence, that the appellant held no genuine belief of Li consenting to the sexual act. The judge had, therefore, no opportunity to go on to further direct the jury on that issue that if the appellant was mistaken in his genuine belief, or even if his genuine belief was unreasonable, they must still acquit him. In short, the issue of genuine belief was not left with the jury. The judge directed the jury in this way:

"Rape is a male having sexual intercourse with a female, knowing that she does not consent or at least reckless whether or not she consents. 'Reckless' means you must be sure the male did not believe she was consenting and could not have cared less whether she was consenting or not and pressed on regardless."

12. The law is trite in rape. If lack of consent could be readily resolved, one way or the other, on the plain contrasting allegations of the complainant and the accused, there would be no room for an accused person to raise the issue of a mistaken but genuine belief. In R v. Anthony Edward Haughian and Arthur Reginald Pearson, [1985] 80 Cr. App. R. 334 at page 341, O'Connor LJ neatly described the situation as an "acute conflict of evidence" between the complainant and the accused. In R.v. Chow Siu-hei and another, Cr. App. No. 692 of 1995, my lord, Vice-President Power, sanctioned the non-inclusion of a genuine belief direction on the "stark difference between two sets of evidence" from the complainant and the accused. That is the causal approach. The same result may be obtained from the effect of the evidential conflict as in R. v. Ng Pong-lung Cr App No. 468 of 1993 (unreported), where in dealing with "recklessness", Macdougall, V.P. in effect approved a like omission for the absence of any evidential basis. When Macdougall, V.P. spoke of an evidential basis for directing the jury on recklessness, he was, in essence, dealing also with genuine belief as to consent. Because "if the jury are sure that (an accused) could not have cared whether (the complainant) wanted to have sexual intercourse or not, but pressed on regardless, then (the accused) would have been reckless and could not have believed that she wanted to". See Archbold, Criminal Pleading, Evidence & Practice, 1997, p. 1525, para 17-58. In the same vein, giving judgment of this court, albeit differently constituted, in R.v. Kwok Tak-ming, Danny Cr App No. 304, 1996 (unreported), Nazareth, V.P. observed that it was unnecessary to give an honest belief direction unless there was a live issue. But a trial judge has inevitably to examine all the circumstances in the context of the conflict of evidence between the complainant and the accused to see whether in the end there is a real need for providing a genuine belief direction.

13. Ground 1 of the Amended Perfected Grounds of Appeal against conviction complains of a failure on the part of the judge to direct the jury on genuine belief as to consent. Mr Bruce SC for HKSAR submits that there was simply an acute conflict of evidence on consent or the lack of it between Li and the appellant so that when the jury decided to accept the account given by Li as truthful, there was no room for the appellant to entertain any genuine but mistaken belief. Mr McGowan, counsel for the appellant, argues otherwise.

14. The evidence in this case presents little difficulty. The jury were apparently satisfied beyond reasonable doubt that there was no consent, but a finding of lack of consent would not necessarily exclude the appellant's impression that Li had consented "very shyly" to the intercourse. The common background is supportive of the honest belief defence raised by the appellant in his evidence, and that had not been considered by the jury on a proper direction. The failure to give this honest belief direction must have led the jury to entertain the issue of consent on a wholly inadequate basis. It would likely confuse the jury that they should convict once they were sure that Li had not given her consent. The jury were never placed on the position to consider the crucial issue that the appellant could not be convicted unless he had no genuine belief that Li was consenting to intercourse.

15. The attempted rape charge was closely linked to the rape charge and the ingredient of consent in that charge. If the appellant genuinely held a belief that Li had consented to sexual intercourse, it would be difficult to imagine that any jury would find him guilty of an attempted rape allegedly committed within a short space of time after the first consented sexual intercourse.

16. The omission to give the honest belief direction was an error of law. In all the circumstances, we find both verdicts unsafe and unsatisfactory. It is unnecessary for us to deal with the other grounds of appeal. The verdicts returned by the jury on the rape charge and the attempted rape charge should be quashed. We quashed them at the conclusion of the hearing of the appeal, declined to order a retrial and ordered the appellant to be released forthwith.