HKSAR v. ALI NAZAKAT

CACC 15/2019

[2021] HKCA 121

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 15 OF 2019

(ON APPEAL FROM HCCC NO 107 OF 2018)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

Introduction

1.  The appellant was accused of raping and sexually assaulting a young woman (referred to as “X” in the proceedings), who was unknown to him and in an extreme state of inebriation at the material time, and of stealing her personal property, including a credit card which he fraudulently used at various shops.  The alleged offences were contained in two indictments. In HCCC 107/2018, he faced one count of rape[1] and two counts of indecent assault[2] (the sexual offences).  In HCCC 108/2018, he faced one count of theft,[3] one count of conspiracy to obtain property by deception[4] and one count of fraud[5] (the dishonesty offences).

2.  The appellant pleaded guilty to the dishonesty offences, but not guilty to the sexual offences.  Following a trial for the sexual offences before Li J (the judge) and a jury, the appellant was convicted of the count of rape but acquitted of the two counts of indecent assault. 

3.  On 9 January 2019, the appellant was sentenced to 8 years and 6 months’ imprisonment in HCCC 107/2018, and to a total term of 2 years’ imprisonment in HCCC 108/2018, of which 1 year and 6 months was ordered to run consecutively to the sentence for the count of rape. Thus, the total sentence imposed on the appellant was 10 years’ imprisonment.

4.  The appellant subsequently applied for leave to appeal against his conviction for rape and leave to appeal against the sentence imposed on him for all the offences on which he was convicted.

5.  On 30 June 2020, a Single Judge granted the appellant leave to appeal against his conviction on the limited basis that it was reasonably arguable that certain passages in the appellant’s out-of-court statements should have been redacted because they were more prejudicial than probative, but refused him leave to appeal on the rest of his grounds against his conviction and sentence.[6]

The prosecution case

6.  The sexual offences were all alleged to have been perpetrated against X on 7 December 2016.  The prosecution case was that on 6 December 2016, at about 10 pm, X had met up with three friends at Lan Kwai Fong for drinks.[7] By 1:30 am on 7 December,  she became very drunk.  One of her friends then put her in a taxi to take her to her home, which was in Kwai Chung.  X could not recall what happened to her afterwards until about 6 or 7 am the next morning on 7 December. 

7.  X woke up in a disoriented and confused state and found herself lying on a sofa at Flat 27E of an industrial building in Kwai Chung.  Sitting opposite her on a sofa was the appellant.  X was not well and immediately wanted to vomit.  She asked the appellant where was the toilet and he took her to it.  She described herself as still being very drunk and having a severe headache.[8]  When X got back from the toilet, she questioned the appellant about where she was and how she ended up there, but he did not answer her.[9]  It was at that moment that the appellant indecently assaulted X by squeezing her left breast and then her right breast.  She tried to ward him off each time he touched her.[10] 

8.  X described how she wanted to leave, and looked around to see if she could see her handbag.  The appellant then took out X’s handbag from a cupboard and gave it to her.  She briefly checked her handbag, and saw her wallet was there but did not see her telephone.[11]  X wanted to leave but did not know which way to go and so the appellant showed her the way out.  The appellant gave a telephone number to X before she got into a taxi and left.[12]  X could not recall why and in what circumstances the appellant had given her the number.[13]  The number was subscribed to a prepaid Sim card.[14] When it came to paying for the taxi, she discovered there was no cash in her wallet and that her credit card was missing.  She was able to pay for the taxi fare by using her EPS card.[15]  

9.  When X got home, she fell asleep straight away without having a shower.  She woke up in the afternoon and found some abnormal secretion on her underpants.[16] She suspected she had been raped and therefore called one of the friends with whom she had been with the night before and informed him of her suspicion.  She then made a report to the police of being a victim of rape and theft.[17]   

10.  It was not in dispute at trial that the appellant had sexual intercourse with X in the early hours of 7 December.  Indeed, it was an admitted fact that he had sexual intercourse with X and that the appellant’s sperm was found inside and outside X’s vagina and inside her underpants.[18]  

11.  X testified that she had been drinking with friends in Lan Kwai Fong on 6 December and got very drunk.  She could not recall what had happened to her after she left Lan Kwai Fong.[19]  She said she had never met the appellant before and would not have consented to sexual intercourse with him.  She said that given her state of mind she could not have consented.[20]  Nor did she consent to the appellant touching her breasts. 

12.  The statement of one of X’s friends was admitted into evidence in which he set out the extent of X’s state of inebriation when she left Lan Kwai Fong as well as her complaint to him as to what had taken place and assisting her in making a report to the police.[21] 

The defence case

13.  The defence case was that the appellant and X had sexual intercourse but that it was consensual.  The issues for the jury to resolve, as identified by the judge, were whether or not sexual intercourse was consensual; whether X was so drunk she could not have given consent; whether the appellant knew X was so drunk she could not have consented; or whether the appellant was reckless as to whether X consented or not.[22]

14.  The appellant elected to give evidence at his trial but called no witnesses.  He testified that he was born in Pakistani and came to Hong Kong in November 2016.  At the material time, he lived in flat 27E with his sister, her husband and child.  He claimed he had met X on two occasions in bars at Lan Kwai Fong prior to 7 December 2016.  The first occasion was in November.  He said that X came over to his table, as he was with his two friends, and talked to his friends in Chinese.  The second occasion was four or five days later.  He said he was at a bar and saw X sitting on a chair.  He approached her and talked to her.  He said X then invited him for a dance but he declined.  The appellant was cross-examined about his familiarity of Lan Kwai Fong and when he was asked about the price of drinks he said he did not know as his friends would usually buy the drinks.[23]

15.  The appellant said that on 7 December, shortly before 1:00 am, he was walking home from a game centre at Kwai Hing when he saw X leaning on the railing near the side of the road, making vomiting sounds.  When he walked past, X asked him for help saying she was drunk and could not go home.[24]  A conversation followed and X recognised him.  X then suggested to him to tell his family they were good friends and to let her stay with him at Flat 27E.[25]

16.  The appellant said he next entered the toilet on the ground floor of the industrial building where he lived.  He said that after having been in the toilet for about a minute, X entered into the toilet as well and thanked him for helping her.  They then hugged each other and started kissing.  X lowered her underwear and they had sexual intercourse whilst standing up.  The appellant said X did not resist and that she also performed oral sex on him.[26]  CCTV footage of the appellant and X entering the industrial building was shown to the jury and it was put to the appellant in cross-examination that X is seen unable to walk in the video recordings, at times falling and stumbling. It was also put to the appellant that X appeared lifeless and had to be carried out of the lift by him.[27]

17.  The appellant said that they then took a lift up to Flat 27E.  This was now about 2:30 am.  The appellant’s sister put X to bed on the sofa and put a quilt over her. 

18.  The appellant said  X gave him her credit card and told him to buy whatever he wanted as a gift.  This seems to have happened before they had entered the industrial building.  He said that X’s credit card fell out of her bag onto the road and he picked it up.  It was then that she told him to keep it and buy what he wanted.  He said that X gave him her mobile telephone as a gift when they were in the room and she was lying on the sofa.[28]  

19.  The appellant said the next morning it was his sister who took X to the toilet and that he took X downstairs.  He said he was talking with X about what had happened the night before and that X asked him for his number.  He denied touching X’s breasts at any time and explained that this was impossible because his family were all there in the flat.[29]

20.  It was contended by the defence that whilst X was drunk she was still capable of consenting to sexual intercourse.[30]

The dishonesty offences in HCCC 108/2018

21.  The appellant was convicted on his own plea of the dishonesty offences on 21 February 2018 prior to the trial of the sexual offences.  The prosecution adduced these convictions at trial by way of a certificate of conviction.[31]  

22.  The appellant had pleaded guilty to the following three offences.  The 1^st Count was theft, in which he admitted that on 7 December 2016 he stole from X a mobile telephone, $500 cash, one Octopus card and one credit card.  The 2^nd Count was conspiracy to obtain property by deception, in which he admitted that at about 10:00 am on 7 December 2016 he went to a jeweller in Tsuen Wan with an accomplice and this person successfully used X’s credit card to purchase gold jewellery at a total cost of $21,885.  The 3^rd Count was fraud, in which he admitted that on 7 December 2016 he tendered in payment X’s credit card to purchase various goods at different shops. 

The video records of interview of the appellant

23.  The police conducted a video record of interview (VRI) with the appellant on four occasions.  The appellant did not make any admissions to rape or sexual assault of X in the VRIs.

24.  The 1^st VRI was conducted on 9 December 2016 between 16:59 and 18:28 hours.  The appellant denied having sexual intercourse with X inside Flat 27E.  He mentioned nothing about their sexual intercourse which, in his later testimony, he said had taken place in the toilet in the loading bay of the industrial building.  He described X as being at that time in a “fully over drunk”[32] state and as “not aware of herself, she was not conscious”.[33]  The appellant was asked about how long he had been in Hong Kong, to which he said he had been in Hong Kong for about a month and a half.[34]  He was asked how he came to Hong Kong, and answered he came in a container with other people.[35]

25.  The 2^nd VRI was conducted on 9 December 2016 between 20:01 and 20:30 hours.  The appellant described how he had adjusted the quilt on X and in doing so had accidently touched her breast but only once.[36]

26.  The 3^rd VRI was conducted on 9 December 2016 between 20:40 and 22:24 hours.  The appellant denied stealing X’s octopus card,[37] $500 and mobile telephone.[38]  He said that X gave him the mobile telephone as a gift when they were in the flat.  He said that she also gave him her credit card as a gift but this happened outside the building when he picked the card up from the road after it fell out of her handbag.  She told him to keep it and buy whatever he wanted.[39]  He mentioned the name of his friend “Manson” whom he said had helped him use the credit card as he did not know how to use it.[40]  He was questioned about transactions at a jewellery shop in Tsuen Wan between 10:14 am and 10:45 am on 7 December 2016, when the credit card was used to buy a golden bracelet, golden necklace and golden bungle with a total value of $21,885.[41]  The appellant said that on that morning he was at an amusement game centre in Kwai Chung and later went with Manson to a shop in Tsuen Wan.  He said that he stayed at a bus stop while Manson went into the shop alone.[42]  He said that he and Manson then walked for 10 minutes to another gold shop[43] and that Manson exchanged the gold for money.[44]  He said at about between 3 and 4 pm on that day, he and Manson went to buy a mobile telephone and perfume.[45]

27.  The 4^th VRI was conducted on 10 December 2016 between 16:54 and 18:54 hours.  The appellant was shown photographs captured from the CCTV footage in the lift of the industrial building at around 2:31am on the morning of 7 December.  He identified himself and X in the photographs.[46] He described X as “lifeless” and making vomiting sounds[47] when he came across her on the side of the road.  He was cautioned and then asked again about the circumstances of his arrival into Hong Kong.  He reiterated that he had “sneaked into Hong Kong”[48] in a container with about 15 or 16 other people.[49]  He said he had entered China sometime in April 2015[50] and that he had been in Hong Kong about a month prior to the offence[51] and that he was living with cousins in Flat 27E.

28.  The defence contested the voluntariness of all the VRIs on the basis of oppression and inducement by the police and these allegations were the grounds of an unsuccessful voir dire.  As for the 3^rd and 4^th VRIs, the defence objected to their admissibility on the basis that they constituted evidence of uncharged acts in so far as they disclosed evidence concerning the appellant’s illegal entry into Hong Kong and the dishonesty offences.

29.  The judge declined to exclude the 3^rd and 4^th VRIs as evidence before the jury.  In his ruling, the judge said:

“Although strictly speaking, the third and the fourth VRIs did not concern the charges in the present trial, they were however relevant being the conduct of the defendant after the alleged rape and indecent assault charges. They were not uncharged incidents in its typical sense as set out in the authorities. They were relevant to show the whole circumstances of the case. I see no ground to exclude the third and the fourth VRIs.”[52]

30.  The next day, prior to opening his case, prosecuting counsel applied to the judge to be allowed to disclose to the jury in his opening address the appellant’s guilty pleas to the dishonesty offences. This application was based on the need for the jury to understand the whole picture and so that the prosecution could show that the appellant had told lies in the VRIs.  Defence counsel maintained his objection to their disclosure on the ground that the prejudicial effect of this evidence outweighed its probative value, but accepted that the defence were bound by the judge’s earlier ruling.[53]  The judge referred to what he had said in his earlier ruling that it would be fair to all parties for the guilty pleas to be disclosed to the jury because the jury was “entitled to know the whole course of the matter”.[54]

The summing-up

31.  No issue has been taken by the appellant to the way the judge summed up to the jury on the law and the relevant facts in relation to the sexual offences.  The focus of this appeal is on the reference at trial to other criminal acts perpetrated by the appellant.  We will set out some of what the judge said about these matters in his summing-up to the jury.

32.  Of the dishonesty offences and how the jury should approach them, the judge directed them in the following terms:

“Now, you know that the defendant has pleaded guilty to three charges. That is in the certificate of conviction. The charge of theft, the charge of conspiracy to obtain property by deception and the charge of fraud in relation to the properties of Miss X, including the Visa card. You may refer to that later on, Exhibit P132. Now, the fact that he had pleaded guilty to these charges does not necessarily mean that he committed the offence of rape or indecent assault against Miss X. You must consider the rape and indecent assault charges according to the evidence. Do not equate the guilty plea with the guilt of rape and indecent assault.

Miss X might have consented to sexual intercourse, but she did not consent to the defendant stealing her Visa card or other properties. You understand? This is always a possibility. So, please, do not equate the guilty plea with the guilt of the other charges in this trial. These charges and his plea, that is the theft charge and the obtaining by deception charges and his plea are disclosed to you so that you know the whole course of events on 7 December. In considering whether the defendant committed rape or indecent assault, the defendant’s conduct after the alleged sexual offences are relevant and was part of the circumstantial evidence for you to draw inferences in relation to the credibility of the defendant. You understand? These charges and the guilty plea are disclosed to you. It is not for the purpose to show tendency of committing any criminal offence. You understand? They are relevant to the credibility of the defendant only. They are not and they should not be interpreted as tendency to commit any criminal offence.”[55]

33.  Of the appellant’s illegal immigrant status, the judge directed the jury:

“Now, members of the jury, that is about the evidence and there are some points which I do like you to know while analysing the evidence. This is important. First, the defendant is an illegal immigrant from Pakistan. He sneaks into Hong Kong without the permission of the Director of Immigration. He came in a container from China, he said. Now, members of the jury, I must remind you that despite this background, the defendant is entitled to equal protection under the law of Hong Kong. You must not draw any adverse inference against him because of this background. You should not have any prejudice against him because of this background. This is very, very important.”[56]

34.  The dishonesty offences and the appellant’s illegal entry into Hong Kong were canvassed in the 3^rd and 4^th VRIs.  The defence challenged the veracity and reliability of the contents of the VRIs and the judge directed the jury in relation to this issue as follows:

“Now, about the four video interviews. These four video interviews form a series of interviews which took place shortly after the defendant’s arrest. It is only fair that you consider all of them before deciding whether the defendant’s allegation against the police was true or may be true. That is why the four videos were adduced before you so that you can make a thorough assessment.”[57]

35.  The judge then went on to describe the appellant’s account that he was assaulted by a police officer at Flat 27E, and that his  nephew, Sikander, was arrested and detained, which put pressure on him to agree to be interviewed, along with various other factors he alleged had induced him into giving the first interview.[58] The judge also provides a summary of the contents of each of the interviews and explained that the 3^rd and 4^th VRIs concerned the dishonesty offences.  At the conclusion of his summary of the 4^th VRI, the judge reminded the jury:

“Now, he was also cautioned about the illegal immigrant offence. He explained all this in counter 658 to 712. Members of the jury, you are not concerned with this illegal immigrant charges. That will be dealt with later on in another proceedings, but I cite you all this summary. I hope you could consider the content of the interview carefully and assess whether at that time the defendant was under pressure or he was being induced to say something. And, of course, at the same time, you should consider all the evidence in relation to all these interviews before you decide whether those interviews were voluntary. You understand? If you find the defendant’s allegation is true or maybe true against the police then you ignore, you ignore the content. You understand?”[59]

The perfected grounds of appeal

36.  It would be useful to outline a brief procedural history of this appeal in order to understand exactly what is in issue before us. 

37.  On 21 November 2019, Mr John Marray, counsel for the appellant, filed Perfected Grounds of Appeal against conviction and sentence.  He advanced four grounds of appeal against the conviction for rape, which can be briefly stated as follows.  Ground 1 was a general complaint that the judge erred in ruling the facts surrounding the dishonesty offences were relevant and admissible.  Ground 2 was also a general complaint that the 3^rd and 4^th VRIs should have been excluded because they concerned the dishonesty offences, which were irrelevant to the sexual offences, and that even if they were relevant their probative value far outweighed their prejudicial effect.  Ground 3 complained that the fact of the appellant’s illegal entry into Hong Kong in the 1^st and 4^th VRIs should not have been admitted into evidence.  Ground 4 complained that the judge’s directions on drunkenness and consent were insufficient. 

38.  The grounds of appeal in relation to the sentences complained that the starting point for the rape conviction was manifestly excessive and that the enhancement of 1 year and 6 months was also manifestly excessive by improperly taking into account that the appellant was an illegal immigrant at the time of the offence and that X had suffered from serious physical and psychological trauma as a result of the rape offence.   

39.  On 30 June 2020, the appellant was granted leave by a Single Judge to appeal against conviction, but only in respect of Grounds 2 and 3 as qualified by him, and refused leave to appeal against his sentence. In his reasons for judgment, handed down on 7 August 2020, the Single Judge explained that the nature of the complaint on which leave was granted was that it was reasonably arguable that some of the material in the 3^rd and 4^th VRIs, dealing with the spending spree of the appellant and all that he did in order to illegally enter Hong Kong, should have been redacted as being more prejudicial than probative.  Although, the Single Judge did note that the judge had given directions to the jury that may have prevented or cured any potential prejudice posed by the relevant questions and answers.

40.  On 13 July 2020, Mr Marray filed Amended Perfected Grounds of Appeal against conviction, in which he deleted Grounds 1 and 4 from the original four grounds, leaving Grounds 2 and 3 (now Grounds 1 and 2) in their entirety without any amendment in accordance with the leave judgment.  He also added a new ground of appeal against conviction, in which it is complained that the judge failed to properly direct on lies (Ground 3).  He deleted the grounds in relation to the appeal against sentence.

41.  The three grounds of appeal that Mr Marray advanced can be briefly stated as follows:

Ground 1:   The judge erred in admitting into evidence the 3^rd and 4^th VRIs.

Ground 2:   The judge erred in allowing evidence of the appellant’s circumstances of entering into Hong Kong illegally to be produced before the jury.

Ground 3:   The judge failed to properly direct the jury on lies in accordance with the specimen direction. 

Appellant’s submissions on Ground 1

42.  Mr Marray takes issue with the admission into evidence of the appellant’s dishonesty offences in HCCC 108/2018.  He submits these charges were not relevant as to whether or not X consented to sexual intercourse.  Nor was it necessary to have the precise details of them presented to the jury by way of the appellant’s 3^rd and 4^th VRIs.  He argues that the contents of the 3^rd and 4^th VRIs had no probative value and were highly prejudicial, except for some questions and answers that concerned the sexual offences.  He relies on HKSAR v Zabed Ali in support of his argument.[60]

43.  Mr Marray further submits the prosecution case at trial would not have been incomplete or incomprehensible to the jury had the evidence of the dishonesty offences not been admitted.  He argues the lack of relevance of these dishonesty offences can be seen by the fact that when the appellant gave evidence at trial these issues were only briefly canvassed.  Having noted that the ultimate question for the jury was the appellant’s credibility, he contends the prosecution had more than sufficient materials in the 1^st and 2^nd VRIs regarding X’s drunkenness in order to prove the absence of consent and the prosecution did not need to rely on the 3^rd and 4^th VRIs for that purpose.  He further contends that even if the 3^rd and 4^th VRIs did contain some parts which may have been relevant to X’s drunkenness, their prejudicial effect far outweighed their probative force. 

Respondent’s submissions on Ground 1

44.  Mr Derek Wong, for the respondent, submits the appropriation of X’s property by the appellant was relevant because the appellant’s case was that X had initiated sexual intercourse with him and gifted her credit card to him for his help.[61]  This was significantly probative of the issue as to whether or not X consented.  He contends this was a legitimate matter for the jury to consider in resolving the issue of consent.  The conduct of the appellant after the sexual offences, namely fraudulently using X’s credit card when he claimed it was a gift from her, was relevant to show the whole circumstances of the case. 

45.  Mr Wong submits if there was any prejudice in admitting this evidence it was cured by the judge’s directions to the jury that they should not equate the appellant’s guilty pleas for the dishonesty offences with guilt for the sexual offences.  He notes that prosecuting counsel did not go into detail about the dishonesty offences, although he properly focused on the appellant’s plea of guilty of stealing X’s mobile telephone, which was contrary to his evidence that it was a gift.[62]

Discussion on Ground 1

46.  The basis on which leave was granted was whether some of the material in the 3^rd and 4^th VRIs, dealing with the spending spree of the appellant and all that he did in order to illegally enter Hong Kong, should have been redacted as being more prejudicial than probative.[63]

47.  Mr Marray does not address whether or not certain parts of the 3^rd and 4^th VRIs should have been redacted, rather he argues that the whole of the 3^rd and 4^th VRIs were inadmissible. 

48.  Mr Marray refers to the principles stated by the Court of Final Appeal in Zabed Ali without being very specific as to the relevance and application of those principles to the circumstances of the present case. 

49.  In Zabed Ali, Li CJ, giving the judgment of the Court, referred to Lord Herschell’s well-known statement in Makin v A-G for New South Wales, where he said:[64]

“It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.”

50.  The first part of the statement concerned the exclusionary rule that barred evidence of an accused’s bad character or propensity to commit the offence in question.  The second part referred to the circumstances in which such evidence might be admissible, namely, if it was relevant to an issue in the case, for reasons other than to show a mere propensity to commit another offence.  It was recognised by Li CJ that the common law had extensively developed since this decision and that the modern approach was to first consider the relevance of the evidence, and then apply the exclusionary rule.[65]

51.  If the evidence is relevant, then the court must consider admissibility, taking into account the test in DPP v P.[66]  This includes first identifying matters in issue which the prosecution has to prove to establish guilt having regard to the charge or charges in question, as well as taking into account realistic and credible defences open to and any specific defence raised by the accused.  Secondly, focusing on the evidence under consideration.  Thirdly, asking what is the matter in issue to which the evidence is said to be relevant and what is the reason for saying that the evidence is probative of that matter in issue.  Fourthly, if the evidence is relevant to a matter in issue for reasons other than to show mere propensity on the part of the accused to commit the crime in question, then consider whether its probative force is sufficiently great to make it just to admit it, notwithstanding that it is prejudicial to the accused.[67] 

52.  Once it is decided that the evidence is admissible, it still will be necessary for the judge to give an adequate direction as to the matter in issue to which such evidence might be relevant, how it might be relevant, and the fact that the accused had a bad character or the propensity as shown by such evidence did not mean that he was guilty of the charge or charges he faces.[68]

53.  The appellant’s defence at trial was that sexual intercourse with X was consensual.  In his VRIs and evidence-in-chief, the appellant claimed that X gave him her mobile telephone and credit card as a gift because he helped her.  The act of stealing X’s mobile telephone and credit card and then subsequently using her credit card in a shopping spree went to the issue of his credibility and whether sexual intercourse was consensual. 

54.  As to how he came by X’s property, the appellant stated in examination-in-chief:

“At night, when she came, she gave me a card and a mobile phone that ‘Because you have helped me, this is yours as a gift.’ And in fact that card, when I met her downstairs, I picked up from there and I told her the card and she said ‘Just keep it and buy what you want.’”[69]

55.  In cross-examination, the appellant was questioned about how in the 3^rd VRI he gave an angry response when he was accused of stealing X’s property and that he wanted to confront her face-to-face, to which he answered:

“… when everything is happening with consent and person is giving things away with his or her own consent, under the influence of any substance, if that person gives out something and the next morning start putting an accusation, whatever happens between us was all consensual, that’s why I asked him or her that bring him or her in front of me so that I can talk to him or her that you have given all these things with your own wish and will to me.”

He confirmed that the expression “him or her” was a reference to X.[70] 

56.  Notwithstanding the appellant’s evidence that X had given to him her credit card and mobile telephone as a gift, defence counsel when cross-examining X did not put this to her and in fact made no mention of it at all.[71] Nor did he apply to have parts of the VRIs redacted that concerned the dishonesty offences and the appellant’s illegal entry into Hong Kong.

57.  It was also relevant that the appellant had only recently arrived in Hong Kong and had entered illegally.  He claimed that he socialised frequently at various bars in Kwai Chung and Lan Kwai Fong and that he had met X on two previous occasions at bars in Lan Kwai Fong.  He was cross-examined that because of his background and circumstances he was unable to afford to buy drinks and frequent places of this type.  He claimed that he never paid for any drinks at these bars because his friends paid.  He was also cross-examined about meeting X on the two previous occasions in Lan Kwai Fong. This went to the general issue of his credibility and to the specific issue of consent, given his claim that he had previously met X and that they knew each other.[72]

58.  It also appears that the accuracy and detail of the appellant’s answers to questions asked of him during the VRIs were relied upon by the prosecution to show that the police had not behaved oppressively or induced him to participate in the interviews.  At one stage during cross-examination, the appellant said that he did not know what he was saying in the interviews and that they took place without his consent.  This was said specifically in respect of the 3^rd VRI.[73]

59.  In our view, the dishonesty offences were clearly part and parcel of the sexual offences.  All of these offences formed part of the same course of criminal conduct, having occurred at around the same time and involved the same victim.  It would present the jury with an incomplete and misleading picture of what had transpired in relation to the sexual offences if evidence of the dishonesty offences were not placed before them.  It would be nonsensical to truncate the case against the appellant by excluding the dishonesty offences simply because they were treated separately and he pleaded guilty to them.  The evidence of the dishonesty offences were interrelated with the sexual offences.  They were of significant probative value in respect of the appellant’s case that X gave him her mobile telephone and credit card to use out of gratitude for the assistance he had rendered her.

60.  Mr Marray also refers to the principles concerning “uncharged acts” as stated in HKSAR v Kwok Hing Tony.[74]  He seems to be relying on this authority on the basis that the dishonesty offences and the illegal entry offence should not have been admitted into evidence because they were not relevant and the refusal to admit the evidence relating to these offences would not have resulted in “an incomplete or incomprehensible account” of relevant events.

61.  It needs to be appreciated that in Kwok Hing Tony the applicant faced various sexual offences but evidence was also led from the victims of numerous other sexual assaults which had not been charged. The Court of Appeal observed that evidence of “uncharged acts” might lead to unfairness to a defendant because if he could not distinguish acts with which he was charged from those with which he was not, he would not be able to present a defence to the charged acts.  This is one aspect of the evidence of “uncharged acts”, but the issue is considerably more complex and will depend on the precise nature of the evidence involved and the purpose for which it is being relied upon.

62.  The Court in Kwok Hing Tony laid out the following relevant principles of evidence on “uncharged acts”:

“(a)   The issue of whether evidence of ‘uncharged acts’ is admissible or not must be decided on the individual circumstances of each case, and the court is not bound to refuse to admit such evidence by reason of its nature alone (R v M(T) [2000] 1 WLR 421, 426-427. Citing R v Pettman (unrep., English Court of Appeal, 2 May 1985), R v M(T) was followed in HKSAR v Chan Pui Mun (unrep., CACC 514/2006, [2008] HKEC 2071).

(b)   Even though such evidence is not used in a particular case as identification evidence of the defendant, or as similar fact evidence to prove that the defendant had committed the offence charged, or is deployed by the defendant to challenge the credibility of the complainant, the court may still admit evidence of ‘uncharged acts’ in circumstances including the following:

· To prove the setting and context in which the offence occurred; or

· To explain the defendant’s confidence in repeating the offence; or

· To explain unusual acts on the part of the complainant (such as the lack of surprise or fear, or the lack of complaint, or acts of acquiescence); or

· To explain why the complainant is unable to recall the specific date and details of the offence charged.

In summary, the court may admit evidence of ‘Uncharged Acts’ if its refusal to do so would result in the jury having an incomplete or incomprehensible account of events.

(c)   Of course the court should refuse to admit evidence of ‘uncharged acts’ if it considers that the prejudicial effect on the defendant outweighs its probative force.

(d)   However if the court admits evidence of ‘uncharged acts’, the judge should be alert to two points when directing the jury on such evidence: (a) the standard of proof; and (b) the use to which such evidence may be put.

(e)  (i) We consider that generally the standard of proof for evidence of ‘uncharged acts’ should be beyond reasonable doubt.

(ii) The use to which such evidence may be put may include explaining the nature of the relationship between the defendant and the complainant as well as the matters set out in point (b), but the judge must specifically remind the jury that they may not infer from such evidence that the defendant had committed similar offences, or that he is the sort of person with a propensity to commit the offence.”[75]

63.  We can see from these statements of principle that the admissibility of “uncharged acts” depends on the individual circumstances of each case.  A court may admit such evidence if its refusal to do so would result in the jury having “an incomplete or incomprehensible account of events”. However, consideration would also be given to whether the prejudicial effect of the “uncharged acts” would outweigh its probative value.  It follows, that the nature and proximity of the “uncharged acts” relative to the charged acts would be a highly relevant consideration.  Where the “uncharged acts” and the charged acts are the same or similar, there is a danger that a jury may be inveigled into impermissible reasoning as to the defendant’s propensity to commit the charged acts. 

64.  The term “uncharged acts” needs clear and precise definition in order to properly understand the type of evidence that it encapsulates and the approach that should be taken when considering the relevance and admissibility of such evidence.  There has been a series of decisions by the High Court of Australia addressing this issue, such as Harriman v R;[76] Pfennig v R;[77] and Hughes v R[78] as well as decisions from other common law jurisdictions.  As we did not hear argument on this issue, it remains to be addressed.

65.  In the present case, the appellant’s illegal entry into Hong Kong was relevant to events in respect of the sexual offences and by its nature was not the type of offence that would lead the jury into an impermissible line of reasoning as to his propensity to commit the sexual offences.  As to this issue, we note that the jury in fact acquitted the appellant of the two indecent assault counts.

66.  The appellant claimed that he met X on two previous occasions to this incident when he frequented Lan Kwai Fong.  The prosecution questioned how the appellant, an illegal immigrant, who had only been here for a little over a month, would openly and frequently attend the bar district of Lan Kwai Fong, and how he could afford to do so.  This in our view was a legitimate line of enquiry by the prosecution.  In any event, the judge told the jury on numerous occasions in his summing-up to them that they were not to use the fact that the appellant was an illegal immigrant adversely against him.[79]

67.  The evidence of the dishonesty offences and the illegal entry were not adduced into evidence to show a criminal disposition or a propensity to commit sexual offences by the appellant.  The evidence went to rebut the defence that the appellant had previous social relations with X and that X out of gratitude for his help gave him her mobile telephone and credit card to use.  It was significantly probative in showing the unlikelihood of X consenting to sexual intercourse with the appellant.

68.  We are also satisfied that the judge appropriately directed the jury as to the relevance and use that they could make of this evidence, with particular warning that such evidence on its own did not mean that the appellant was guilty of the sexual offences.

69.  We add by way of observation that even though the following point was not raised at trial, nor argued before us, it would appear that the defence made imputations on the character of the witnesses for the prosecution within the meaning of section 54(1)(f)(ii) of the Criminal Procedure Ordinance, Cap 221, and therefore the appellant was liable to losing his shield and to be subject to cross-examination in respect of an offence “he has committed or been convicted of or been charged with.”[80]

Appellant’s submissions on Ground 2

70.  Mr Marray submits that there was no probative value in the jury hearing about the details of the appellant’s illegal entry into Hong Kong and in doing so there was a real risk of prejudice to the appellant.  The complaint focuses on the appellant’s admission in his 4^th VRI where he was asked about his entry into Hong Kong and the answers he gave describing that he entered Hong Kong illegally. 

Respondent’s submissions on Ground 2

71.  Mr Wong submits there was no danger of the jury engaging in an impermissible line of reasoning on account of the appellant’s status as an illegal immigrant.  He argues the judge repeatedly gave directions to the jury that they must not draw an adverse inference against the appellant on account of this fact.  This was coupled with the prosecution also asking the jury not to draw an adverse inference against the appellant due to his illegal immigrant status.[81]

72.  Mr Wong also makes the point that the appellant’s illegal immigrant status had a bearing on the appellant’s credibility as to what happened on the night of the offence.  This is because the appellant’s case was that he had met X on several occasions in Lan Kwai Fong prior to the incident on 7 December and that he had only been in Hong Kong for about a month and a half prior to the offence.  Mr Wong submits it was a legitimate issue to question how a recent illegal immigrant would openly and frequently attend bars in Lan Kwai Fong as claimed by the appellant.[82]

Discussion on Ground 2

73.  We have substantially answered this ground of appeal but some additional comments need to be made. 

74.  The appellant’s status as an illegal immigrant was a matter he admitted to in his VRIs and was not in dispute.  As submitted by the respondent, this was relevant in so far as consent was concerned because it went to the veracity of the appellant’s evidence that having arrived in Hong Kong for only a month and a half, he frequently attended bars in Lan Kwai Fong and met X there on two previous occasions.[83]

75.  The judge made it abundantly clear to the jury that they were not to use the fact that the appellant was an illegal immigrant adversely against him.  He variously told the jury in his summing-up:

“ This is important. First, the defendant is an illegal immigrant from Pakistan. He sneaks into Hong Kong without the permission of the Director of Immigration. He came in a container from China, he said. Now, members of the jury, I must remind you that despite this background, the defendant is entitled to equal protection under the law of Hong Kong. You must not draw any adverse inference against him because of this background. You should not have any prejudice against him because of this background. This is very, very important.”[84]

  …

“ Now, he was also cautioned about the illegal immigrant offence. He explained all this in counter 658 to 712. Members of the jury, you are not concerned with this illegal immigrant charges. That will be dealt with later on in another proceedings, but I cite you all this summary. I hope you could consider the content of the interview carefully and assess whether at that time the defendant was under pressure or he was being induced to say something. And, of course, at the same time, you should consider all the evidence in relation to all these interviews before you decide whether those interviews were voluntary. You understand? If you find the defendant’s allegation is true or maybe true against the police then you ignore, you ignore the content. You understand?”[85]

  …

“I have told you about this illegal immigrant offence. You should not take that into account.”[86]

76.  We do not find that there was an unacceptable risk of prejudice to the appellant such that his trial would be unfair because the evidence of his illegal entry into Hong Kong was admitted.  It was a matter properly before the jury for them to consider given what was in issue.  We are satisfied that the jury would not have used this evidence in an impermissible manner and would not have been distracted from properly addressing the vital issues in the case.

Appellant’s submissions on Ground 3

77.  Mr Marray complains the judge did not follow the formula suggested in HKSAR v Mo Shiu Shing[87] on lies by omitting to direct the jury that the lie must be proved beyond reasonable doubt.[88]  The lies direction was given in the context of the appellant having explained in his VRIs and in his examination-in-chief that the mobile telephone and credit card were gifts from X.  Prosecuting counsel cross-examined the appellant on the basis that this was inconsistent with his guilty pleas to the dishonesty offences.

Respondent’s submissions on Ground 3

78.  Mr Wong submits the judge gave a tailored direction on lies, emphasising with the jury the most important part of the direction that “it is only if you are sure that he did not lie for an ‘innocent’ reason, then his lies can be regarded by you as evidence in support of the prosecution case”.[89]  

79.  Mr Wong contends that it was unnecessary for the judge to direct the jury to be sure the appellant told a lie about X having given him her mobile telephone and credit card as a gift as he admitted he stole them by his pleas of guilty. 

80.  Mr Wong also refers to the discussion between the judge and defence counsel in which defence counsel submitted there was no lie because X had given “a somewhat drunken statement” that the appellant could have the items and that they were “not a valid gift”.[90]  He submits there was no evidential basis for defence counsel to make such a submission and it was rightly rejected by the judge.  He points out that the appellant never said in his evidence the items were “not valid gifts”. 

Discussion on Ground 3

81.  As we have already explained, the appellant in his 3^rd and 4^th VRIs, as well as in his examination-in-chief, stated that X gave him her mobile telephone and credit card as a gift because he helped her and she told him to keep the credit card and buy what he wanted.[91] The appellant said in his evidence that when X gifted the items to him, she “looked like her mind was working” and she had“a smell of alcohol from her mouth.”[92]  He was asked by his counsel:

“Q.   It’s not in dispute in these proceedings and evidence has been allowed of it that you have pleaded guilty to three offences; two of which involved another person concerning or connected with the credit card. Why is that?

A.   It was so that initially I don’t have legal advice and later on I came to know it was my mistake that I used someone else property.”[93]

82.  When cross-examined by prosecuting counsel, the appellant’s attention was drawn to his admission of guilt that he stole X’s mobile telephone and credit card and that he dishonestly used the credit card at various shops.  It was put to the appellant that his evidence that these items were a gift from X did not tally with his guilty pleas, and he was asked if he agreed or disagreed.  He answered that “I disagree with this thing now.”[94]

83.  In the exchange that took place between the judge and defence counsel about the terms of the lies direction, the judge made the point that because of the appellant’s guilty pleas, his statement that X had gifted to him her mobile telephone and credit card was a lie.  The judge, having indicated that he would direct the jury to consider whether the appellant had any innocent reason to tell a lie, the following exchange took place:

“MR TRACY: Well, the question then might be whether they properly can conclude that those statements about her surrendering these items to him is a lie.

COURT: Yes, it’s a lie because he said Miss X gave all those items to him as a gift. But now he admitted that he stole those items.

MR TRACY: My recollection is that at one point in his evidence and perhaps not in chief, he did suggest that it was subsequently that he accepted that he was stealing, when in effect he misappropriated these items, taken them away. But not at the - - but that doesn’t alter the fact that she gave a somewhat drunken statement that he could have them.

COURT: Well, that is credibility again in(on?) the part of Miss X, whether she forgot she had given those items to him, right. But in any event, defendant pleaded guilty.

MR TRACY: Yes. One has to remember what the civil law here is. The law of - - as to how taking drink, alcohol, affects the validity of a gift is the same as it is in relation to the validity of contracts. And it’s quite – it’s quite possible that she had taken sufficient drink …

COURT: He admitted he stole those items by pleading guilty to the charge.

MR TRACY: Yes.

COURT: Right.

MR TRACY: Yes.

COURT: So there is no issue whether Miss X had drunken consent or whatever.

MR TRACY: No. The position would quite simply be that Miss X made words of gift when she was affected by drink and they were not a valid gift.

COURT: If that is the case, then why he plead guilty to stealing?

MR TRACY: Well, it’s not a valid gift.

COURT: And that is not - - that’s a misunderstanding of fact. That is not stealing, right? He thought he had Miss X’s consent to take it as a gift.

MR TRACY: It would turn on the knowledge of drunkenness and undoubtedly he had sufficient knowledge.

COURT: I don’t think so, so let me deal with that.

MR TRACY: Yes.”[95]

84.  It is clear from this exchange that the point was made that the evidence contradicted defence counsel’s contention that X had gifted her personal items to the appellant.  The appellant admitted he stole the items from X and this stood in stark contrast with the appellant’s assertion they were a gift, or “not a valid gift”, as suggested by defence counsel.

85.  Following his discussion with the judge, defence counsel said the following on this issue in his closing address to the jury:

“If the prosecution seek to rely on alleged lies in the third and fourth interviews, we would say that the lies first of all have to be proved to your satisfaction and they have to be uttered out of consciousness of guilt. His Lordship will give you directions on the law and of course you must follow the directions on the law about the significance of lies and the requirements for them being used as evidence. But at this stage, I would confine myself to saying that it’s necessity for consciousness of guilt as being the motive for the lie that is concerned.

Well, of course there was guilt. He’s put his hands up to, at some time, misappropriating, stealing a card, which was in Miss X’s bag. But it might be those matters which led him to tell the lies. In fact, it much more likely would have been because he was being interviewed about those three other offences when the statements, which the prosecution appear to rely on as lies, were uttered. We don’t concede that they are lies, but if they were, we say they were motivated by fear of guilt in relation to those three other offences, not the rape offence.”[96]

86.  The judge directed the jury on this issue as follows:

“… Now, if you accept that the defendant was voluntarily answering questions in the video-recorded interview, you may find that the defendant lied in some answers if you take into consideration his pleas in the theft charges, in the obtaining charges. Why? Because he said in the video interview that Miss X gave those properties to him, thanking him, right? And Miss X asked him to buy whatever he wanted. The lies are this. He said he did not steal the credit card and other items. This is the third video interview. He also said Miss X gave him the mobile phone as a gift. Again, the third video interview. He also said Miss X allowed him to use the credit card, right? This is in the fourth video interview.

Now, a defendant may lie for many reasons and there may possibly be innocent reasons. For example, he lies to bolster a true defence to protect somebody else. If you think there is or may be an innocent explanation for his lies, then you should disregard those lies. It is only if you are sure that he did not lie for an innocent reason, then his lies can be regarded as evidence in support of the prosecution case. That is part of the circumstantial evidence for you to draw an inference as to his credibility. The defendant said he wanted the officer to release Sikandar. He was induced by the officer. He was offered bail after participating in the interview. This may be innocent reasons. You must carefully consider whether you accept this innocent reason before you decide whether to rely on the lies. You understand?”[97]

87.  Mr Marray’s complaint under this ground is of a narrow compass.  He argues that the judge had not included the part of the specimen direction that the jury had to be sure that the appellant had lied. This concerned the appellant’s assertion both in his VRIs and in his evidence that X gave him her mobile telephone and credit card as a gift because he helped her and she told him to keep the credit card and buy what he wanted. Having pleaded guilty to stealing her mobile telephone and credit card and to subsequently fraudulently using her credit card, the assertion that these items were a gift from X was clearly untrue.  That is how the judge considered the matter, and in our view he was correct do so.  In any event, the judge in his directions to the jury, when addressing the appellant’s evidence that X gifted him her credit card, said “… you may find that the defendant lied in some answers if you take into consideration his pleas in the theft charges, in the obtaining charges.”[98] He then went on to remind the jury that there may possibly be innocent reasons for the lies. 

88.  The judge very fairly and correctly addressed the matter before the jury and we find no substance to this complaint.  We should add that no objection was raised by defence counsel about the judge’s direction on lies in his summing-up to the jury.

89.  We have no difficulty in concluding that the appellant’s statements that X gifted the items to him were shown to be false by his admission of guilt that he stole them from X.  It would be contrary to common sense and logic to suggest otherwise.

Conclusion

90.  We did not find any substance in the grounds of appeal advanced by the appellant for the reasons we have given.  There was no tangible risk of prejudice to the appellant in respect of the matters he has complained that would have resulted in any unfairness to him.  Accordingly, his appeal against conviction is dismissed.

A salutary reminder

91.  Whilst the appellant was refused leave to appeal against his sentence, we take the opportunity to stress the importance of obtaining a victim impact statement and related reports when sentencing an offender for this type of crime.  The following extract of the psychologist’s report on X provides a salutary reminder of the tragic and traumatic impact this type of crime can have on a victim.  We would add however that this did not influence our decision in respect of the conviction appeal.

“3. The client had a particularly difficult time for several months after the incident when she had to take a number of medical examinations and precautions to avoid AIDS and various kinds of Sexually Transmitted Diseases. The travelling to different places for check-up and the heavy side-effects of medications caused physical and psychological disturbances, such as lower appetite, weight loss, puking, mood swings, fatigue and headache. Every time she took the medication was a triggering cue of the distressing incident. Due to the medical appointments, she had to take many sick leaves, but she was unable to provide the real reasons. Her mood was depressed with crying spells, social withdrawal and uncertainty of whether sexual assault had actually happened to her. She was easily triggered as she noticed that her general emotionality became more vulnerable.

4. Another hard time for the client was when she was called to attend the court trial this year. For months prior to the trial, she was under marked pressure preparing for the court trial and worrying that her loss of memory in the incident might be severely challenged in court. Thus, she requested the company of a social worker and familiarized herself with the legal procedures. On the court day, it was shocking and sorrowful for her to see herself being carried by the defendant to the site of offence on the CCTV as it was her first time to witness this. Meanwhile, she also felt frustrated to hear the defendant’s lies about her and the incident. Yet, she tried hard to contain her feelings and to handle the trial properly.

5. In general, the client found herself feeling less safe about Hong Kong and less easy to trust males … .”[99]