WONG CHI KING v. HKSAR

FACC No. 10 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 10 OF 2008 (CRIMINAL)

(ON APPEAL FROM CACC NO. 252 OF 2006)

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J U D G M E N T

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Mr Justice Bokhary PJ:

1.  I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Chan PJ:

2.  The appellant was convicted after trial before Deputy Judge Pang and a jury of three offences: one count of rape (by a majority of 5 to 2), one count of assault occasioning actual bodily harm (by a unanimous verdict) and one count of indecent assault (by a majority of 5 to 2). He was unanimously acquitted of another count of rape. His appeal to the Court of Appeal was dismissed. With leave of the Appeal Committee, he now appeals on the substantial and grave injustice ground. In this appeal, the issue to be decided by this Court is whether the trial judge had given the jury sufficient warning of the risk in accepting the evidence of the complainant.

The evidence

3.  For the purpose of this appeal, it is not necessary to go into the details of the evidence. Briefly, the prosecution case is this. The appellant and the complainant were ex-lovers who had at one stage cohabited together, but with an unstable relationship, breaking up and getting together again. At the time of the alleged offences, they had broken up. On the evening of 26 June 2005, under the pretext that he was taken ill, the appellant invited the complainant to his flat in Yuen Long. The complainant went there and cooked a meal which they shared together. After the meal, she wanted to leave but the appellant refused to let her go. According to her, he then assaulted and raped her (count 1). Later, he tried to force her to have oral sex with him and when she refused, he inserted his toe into her vagina two to three times (count 3). When she struggled to get away, the appellant assaulted her for four to five minutes causing numerous injuries to various parts of her body (count 2). Thereafter she felt tired and stayed in the flat for the night. In the small hours of the morning of 27 June 2005, the appellant had sexual intercourse with her again when, according to her, she was too tired to resist and “ignored the [appellant]”.  At around 6 a.m., she woke up and seeing that the appellant was still asleep, left the flat, taking away $800 from the appellant’s wallet. She later explained that she took the money because she had spent some money to buy food and also needed it for transport and to see a doctor for her injuries. Sometime after 7 a.m., her cousin’s wife called her on her mobile phone and told her that the appellant had reported to the police accusing her of theft and that the police were looking for her. The complainant then went to the police station and made a report of the rape and the assaults.  At a medical examination conducted at around 5 p.m. on that day, she was found to have 40 injuries, including bruises and abrasions on her head, her face, her limbs, her private parts and also strangulation marks on her neck.

4.  The appellant in his interview by the police after his arrest and in his testimony in court denied the allegations. He said that the sexual intercourse was with the complainant’s consent; that he never inserted his toe into her vagina; and that her injuries were caused during a struggle with her when she hit him and abused him and when he tried to calm her down and pull her away from the windowsill to prevent her from falling off.

Special features in this case

5.  It is immediately apparent from the above summary that like most sexual offence cases, it is the complainant’s word against the appellant’s (putting aside the medical evidence on the injuries). But unlike other sexual offence cases, there are two additional features in this case.

6.  First, the complainant was alleged to have stolen money from the appellant. In respect of this, she was granted an immunity from prosecution for theft conditional upon her giving full and true evidence in connection with the allegations of rape and assaults. An immunity is usually granted to an accomplice, that is, a person who had participated in some alleged offences in order to secure evidence in the prosecution of others who had played a greater or more culpable part in the alleged offences. The immunity granted to the complainant in this case is unusual in that it was granted in connection with an alleged offence (i.e. theft) which is unrelated to the offences which she alleged had been committed on her (i.e. sexual offences and assault). It was the suggestion of the defence at the trial that the complainant made false allegations against the appellant in order to counter the accusation of theft and to avoid prosecution for that offence.

7.  The second feature emerged during the cross examination of the complainant. It transpired (obviously without the prior knowledge of prosecuting counsel) that when she was invited to the police station to make a second statement, she asked the officer what would be “the effect she had to face if she withdrew her complaint”. To this, the officer, she said, told her that she might be liable for prosecution for the offence of making a false report. She also admitted that she had no alternative but to press on with the allegations that she had earlier laid against the appellant. When she was asked in re-examination why she made such enquiry, she answered that she wanted to understand the law. The matter was not further explored. Neither counsel for the prosecution nor counsel for the defence somehow considered it necessary to do so.

8.  The significance of these features of which the jury was well aware during the trial is that the evidence of the complainant was suspect for two reasons. First, she had an interest to serve in making allegations against the appellant and testifying against him and it is possible, as it was suggested to her, that she might have made false allegations to avoid being charged for theft and was obliged under the terms of the immunity to give evidence in court. Second, as a result of the exchanges she had with the officer, it is also possible that she might be under pressure to stick to the allegations which she had previously made against the appellant. These are clearly matters which had an important bearing on the reliability of the evidence of the complainant.

The direction in question

9.  It is therefore common ground that this was a case which called for a warning to the jury on the risk of relying on the complainant’s evidence. The question we have to decide is whether the judge’s direction in this respect was sufficient or not. The appellant submits that it was not while the prosecution argues that it was.

10.  On this issue, the judge, in an otherwise comprehensive and more than fair summing up in favour of the appellant, said this in the course of reviewing the complainant’s evidence (at pp. 18 to 19):

“Anyway, she denied wanting initially to report only about [t]he assault, but admitted being angry upon learning that the [appellant] had reported her for taking his money. That happened when her cousin’s wife called a second time saying that some policemen were looking for her. Either way, she denied reporting him for rape, assault and false imprisonment to avenge his reporting her for theft. She did not do so earlier, she said, because she was scared, confused and did not know what to do. That said, she conceded, asking the police about, I quote, ‘The effect she had to face if she withdrew her complaint’, and was told that she might be liable for prosecution for the offence of making a false report. That happened when she was asked to give a second statement in November. More importantly, she conceded thus having no alternative but to press on with her own allegations. In re-examination, she said she asked those questions because she wanted to know the law.

Now, members of the jury, I urge you to consider these last concessions with care and also against the fact that she gave evidence in this trial under immunity. That fact that she gave evidence under immunity was made known to you at the end of [the complainant’s] examination-in-chief. The terms of that immunity are if she gave full and truthful evidence in this trial she would not be prosecuted for theft. Well, it is not uncommon for individuals to give evidence under immunity, members of the jury, and like other witnesses their evidence can be perfectly reliable. That said, these witnesses do have an interest in the proceedings, so it’s customary for the courts to remind you of the status in case your assessment of them may not be totally informed.”

Appellant’s submissions

11.  Mr Fenton for the appellant accepts that there is no standard direction on a witness testifying under immunity and that normally the judge’s direction on this point would be adequate. However, he argues that in the present case, this direction is deficient in two respects. First, the judge failed to explain to the jury why they had to exercise care in considering the evidence of the complainant. It is submitted that without giving any reason, such warning lacked significance, and for this submission, counsel cited a remark made by Lord Ackner in R v Spencer [1987] 1 AC 128 at 140E and a similar comment by Stuart-Smith LJ in R v Izard (1992) 157 JP 58.  Secondly, the judge should have directed the jury that the complainant might be a reluctant witness as shown by her enquiry as to the effect of withdrawing her complaint and that she might not be telling the truth if she was under pressure to “tow the line” taken in her previous statement to the police.

Before the Court of Appeal

12.  The same grounds were argued by counsel before the Court of Appeal (Stuart-Moore VP, Yeung JA and Saunders J). In rejecting such arguments, the Court of Appeal accepted the submissions of the prosecution that the credibility of the complainant was at the forefront of the jury’s mind and that the direction in question was adequate in the circumstances of this case. The Court of Appeal however also took the view that the complainant was not a reluctant witness but one “not wishing to undergo the embarrassment of having to repeat the circumstances in a trial”. This finding was apparently based on an answer which was described by the court as an “immediate response” given by the complainant when it was put to her that she had no alternative but to press on with her allegations against the appellant. With respect, this finding was flawed. It was not supported by evidence and was sheer speculation. Furthermore, it was not permissible to surmise from a reading of the transcript that the complainant’s answer was immediate or otherwise. 

Warnings to exercise caution

13.  The requirement that a trial judge must warn the jury that it is dangerous to convict on the uncorroborated evidence of a witness was abrogated by statute in respect of three types of witnesses: for an accomplice by s.60 of the Criminal Procedure Ordinance, Cap 221; in the case of a child by s.4A of the Evidence Ordinance, Cap 8; and for a complainant in sexual offences by s.4B of the Evidence Ordinance, Cap 8. However, post-abrogation authorities clearly establish that the judge still retains a discretion to warn the jury to exercise caution whenever he considers it appropriate to do so in relation to these and other types of witnesses. See Blackstone’s Criminal Practice 2009, paragraph F5.7.  In R v Makanjuola and R v E [1995] 2 Cr App R 469 (which were sexual offence cases), Lord Taylor LCJ confirmed the existence of such a discretion and said that this applied to “any other witness in whatever type of case”. He also gave guidance for handling such types of case in future. His guidance was held to be applicable generally to all cases where a witness may be suspect because he falls into a certain category. See R v Muncaster [1999] Crim L R 409. 

14.  Makanjuola was adopted by the Court of Appeal in R v Chu Ip Pui [1997] HKLRD 549, 552, per Mortimer JA and approved by this Court in HKSAR v Leung Chi Keung (2004) 7 HKCFAR 526, paragraph 33, per Li CJ.

Discretion of the trial judge

15.  Whether to give the jury a warning to exercise caution when considering the evidence of a witness is entirely a matter of discretion for the trial judge. Where there is an evidential basis to suggest that a witness’s evidence may not be reliable for whatever reason, the trial judge should consider giving such a warning to the jury. And if he decides to do so, the terms of his direction will depend on the circumstances of each case. As Lord Taylor put it in Makanjuola, at p. 473:

“It is a matter for the judge’s discretion what, if any, warning he considers appropriate in respect of such a witness, as indeed in respect of any other witness in whatever type of case. Whether he chooses to give a warning and in what terms will depend on the circumstances of the case, the issues raised and the content and quality of the witness’s evidence.”  

16.  A trial judge has charge of the trial. He has heard the evidence of the witness and is well aware of the issues involved, the relevance and importance of the evidence to those issues and other relevant circumstances. He is thus in a position to assess whether there is any need to give a caution warning and if so, in what terms. An appellate court will usually be slow to interfere with the exercise of his discretion unless the failure to give a caution warning or to use the appropriate terms when giving the warning, has, adopting the words of Lord Sumner in Ibrahim v R [1914] AC 599, 615, “deprived the accused of the substance of a fair trial.”

Where risk obvious to jury

17.  One of the relevant circumstances which a trial judge should take into account is whether the risk or danger in relying on the evidence of a particular witness is obvious to the jury. The rationale for giving a warning in appropriate cases is that the inherent unreliability of the witness may not be apparent to the jury. See Lord Hailsham LC in R v Spencer [1987] 1 AC 128, at 135C and Lord Ackner at 141 (in relation to the obligatory warning which was required to be given before the abrogation of such a requirement). Also Kelleher v R (1974) 131 C.L.R. 534 where Mason J said at p.560: “ … Its sole raison d’être (of the rule requiring a warning to be given) is to ensure that the jury is alive to the danger … ”. However, in some cases, as pointed out by Lord Ackner at p. 142, “the potential unreliability of the sole or principal witness for the prosecution is obvious for all to see.”  In such cases, the need to give a warning would be less and if one is to be given, somewhat less stronger terms would suffice for the purpose. As Brennan J said in Bromley and Karpany v R (1986) 161 C.L.R. 315, at 324:

“If the danger is equally obvious to the lay mind, a failure to warn of its existence is much less likely to result in a miscarriage of justice and thus much less likely to provide a ground for quashing a conviction than if the court has a special knowledge of the danger. If the danger is so obvious that the jury are fully alive to it without a warning, no warning need be given.  … When the danger is not obvious to the lay mind, the absence of the usual warning may leave a Court of Criminal Appeal unable to say that a reasonable jury properly directed on the evidence would have convicted.”

18.  Mr Fenton submits that it is necessary when giving a warning to explain the reason for it. As a general statement, this accords with common sense. The purpose of a summing up is to help the jury and to ensure that the accused has a fair trial. When the jury are asked to exercise caution in approaching the evidence of a witness, they would naturally want to know why they have to do so unless the reason is obvious to them. As Gibbs CJ in Bromley and Karpany said at p. 319:

“The warning should be clear and, in a case in which a lay juror might not understand why the evidence of the witness was potentially unreliable, it should be explained to the jury why that is so.”

19.  However, where the reason for exercising care is quite obvious “for all to see”, failure to explain to the jury why they should do so cannot be regarded as a material error.

Judge’s direction adequate

20.  In the present case, right from the very beginning, the jury were quite aware that the credibility of the complainant was crucial; that it was clearly possible that the complainant might make false accusations against the appellant; that in making enquiry at the police station, she might have considered withdrawing her complaint; and that she might be under some pressure to stick to her previous statement. So all these matters, even without the judge’s direction, were already known to the jury as being extremely important to the case, especially when it came to assessing the complainant’s credibility. There can be no doubt that the jury knew there was a real risk that the complainant might not be telling the truth.

21.  In the passage of his summing up which is being criticized, what the judge was doing was directing the jury on matters which were already very much alive in their minds and asking them to exercise care in approaching her evidence. His linkage of the complainant’s concessions to the immunity for theft was admittedly obscure. But having regard to what he had said immediately before that, the judge must, in my view, have meant to draw the jury’s attention to the possibility that the complainant might feel obliged to persist in making false allegations against the appellant to protect herself from being prosecuted for either theft or false reporting. Read in the proper context, the message the judge wished to get across to the jury was quite clear: the complainant’s evidence was suspect; they should take care when considering her evidence.

22.  As pointed out by Mr Zervos SC, leading Ms Louisa Lai, for the prosecution, that was not the only direction given by the judge on this issue. At page 46 of his summing up, when he was apparently dealing with the submissions for the defence, the judge said:

“Turning to the defence, they have raised a total of 21 points on [the complainant] alone. They include her confirmed willingness to stay overnight at the defendant’s flat on the 26^th, that had been in cross-examination. Her delayed report on the 27^th. Her motive to make false accusations against the defendant. Her highly suspicious act of asking about the consequence of withdrawing her complaints, and a large number of discrepancies in the statements.”

There the judge was trying to ensure that the jury had full appreciation of the inconsistencies in the complainant’s evidence. In drawing the jury’s attention to the weaknesses in her evidence, the judge even described her enquiry at the police station as a “highly suspicious act”. In my view, the whole passage cannot mean anything other than as a warning that the jury must be careful in accepting her evidence.

23.  It must also be noted that the judge added towards the very end of his summing up (on page 47) the traditional warning in sexual offence cases:

“I should add this, experience has shown that people who say that sexual offences have been committed against them sometimes tell lies, they do so for a variety of reasons, as such false allegations are easy to make and frequently difficult to challenge even by an entirely innocent person. It follows that it is dangerous to convict on the evidence of the complainant alone, which is what you will do if you convict the defendant in this case. Putting it bluntly, it is [the complainant’s] word against the defendant’s.”

24.  Mr Fenton suggests that the judge should have asked the jury to consider whether the complainant was a reluctant witness, why she had made the enquiry and whether she was in fact under pressure to testify against the appellant. In my view, this is inviting the jury to indulge in impermissible speculation. The evidence of her enquiry and the fact that she thought she had no alternative but to press on are, in the absence of other evidence, no more than facts which should be taken into account in deciding whether to accept the evidence of the complainant.

25.  In my view, having regard to what had been put before the jury during the course of the trial, they had a very clear idea that the complainant’s credibility was of critical importance, that her evidence might have been unreliable and that she had an interest to serve in falsely accusing the appellant of having committed the alleged sexual offences on her. The risk that she might not be telling the truth was more than obvious to the jury. They had been directed by the judge to be careful when assessing her evidence. The judge had exercised his discretion to give a warning of caution and in the terms and in the manner which he did, having regard to all the relevant matters. In the circumstances of this case, taking the summing up as a whole, in particular the passages referred to above, I am of the opinion that the judge’s direction was clearly adequate. There is nothing to suggest that he was not entitled to take the views which he took in the exercise of his discretion, or that the direction had in any way deprived the appellant of the substance of a fair trial. I see no reason to interfere.

Conclusion

26.  For the reasons which I have given above, the appellant has failed to show that he has suffered any injustice as a result of the judge’s directions. I would dismiss the appeal.

Mr Justice Ribeiro PJ:

27.  I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Litton NPJ:

28.  I agree with the judgment of Mr Justice Chan PJ.

Lord Hoffmann NPJ:

29.  I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Bokhary PJ:

30.  The Court unanimously dismisses the appeal.