HKSAR v. KWAN CHI WING

CACC201/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 201 OF 2008

(ON APPEAL FROM HCCC 1 OF 2008)

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J U D G M E N T

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McMahon J (giving the judgment of the Court) :

1.  The applicant was convicted after trial before Deputy High Court Judge Toh of an offence of rape.  He was sentenced to 7 years’ imprisonment and now seeks leave to appeal both his conviction and sentence.

2.  The prosecution case at trial was that the complainant, then 17 years of age, had effectively been duped by a woman she knew as “Ah Sam” into taking employment at a nightclub as a “clerk”.  The day of the offence was her first day of work.  She was told by Ah Sam that clerks on occasion had to help out with singing and entertaining the customers.  The complainant did so and was eventually asked by Ah Sam to keep the applicant company in a private room.  The complainant agreed and went into the room where she chatted with the applicant.  During their conversation she, as a result of the applicant’s questions of her, informed him she was over 18 years of age and was not a virgin, although neither fact was true.  She told the applicant lies in this regard because Ah Sam had instructed her to give these answers if asked.

3.  Following that the applicant started to kiss her, and eventually removed his trousers and told her to remove her clothing.  She did as she was told.  He began to rub his private part against hers, the complainant told him not to do so, but he persisted.  The complainant was confused and frightened and did not resist and eventually against her expressed wishes the applicant penetrated her, although she only realised this a few minutes later when she left the room and went to the toilet.

4.  She told Ah Sam she did not want to go back to the room where the applicant remained, but Ah Sam told her to do so and, reluctantly, she did.

5.  Later she telephoned and complained to her friend, a Miss Cheung.  She told her that she had been raped.  Subsequently a report was made to the police.

6.  The applicant gave evidence at trial.  His case was that the complainant was introduced to him in the nightclub room where they chatted and drank.  She told him she was over 18 years old and had previously had intimate relationships with boyfriends.  He offered her money for sexual services and the complainant said she would think about it.  He left to get some money and when he returned to the room she agreed to certain intimate acts and then after more chatting, drinking games and other interruptions the complainant agreed to have sexual intercourse for $500.  Afterwards the complainant said she was in pain, he gave her the agreed $500 and the complainant left.  Ah Sam only later told him that the complainant had been a virgin.

7.  The grounds of appeal advanced by Ms Draycott, SC in respect of conviction may be renumbered and stated as follows :

(1)  the judge was wrong to give the jury a “lies direction” in terms of R v Lucas [1981] 2 All ER 1008;

(2)  the judge wrongly directed the jury that they should only give weight to that part of the contents of the applicant’s interview with the police which they considered truthful;

(3)  the judge failed to direct the jury that even if they rejected the applicant’s evidence the prosecution still had to prove the applicant’s guilt;

(4)  the judge did not tell the jury to acquit the applicant if they concluded his evidence might be true;

(5)  the judge wrongly directed the jury that they should evaluate the applicant’s evidence in the same way they approached other witnesses’ evidence; and

(6)  the judge misdirected the jury as to “recklessness” in the context of rape.

Ground 1 — The lies direction

8.  The judge directed the jury as follows :

“  The prosecution says the defendant lied to the police and lied to you, and that Miss Wu did not consent to the sexual intercourse.  So I repeat that before you consider whether lies support the prosecution, you have to consider two questions.  Decide if the defendant did lie.  If you are not sure that he did lie, then ignore it.  If you are sure, then you have to consider why he lied.  The mere fact that he tells a lie is not in itself evidence of guilt.  As I have said, it could be for many innocent reasons; and then, if you think that it is, or may be, for an innocent explanation, you ignore them.  It is only if you are sure that he did not lie for an innocent reason, that his lies can be regarded by you as evidence which supports the prosecution’s case.”

Ms Draycott argues that the judge was wrong to give that direction.  She says that the circumstances of the case did not warrant a lies direction, as no particular parts of the applicant’s evidence, or of his cautioned interview, were relied upon by the prosecution as lies told by the applicant which supported the case against him.

9.  It is true that the primary issue at trial was simply that of the credibility of the complainant as opposed to that of the applicant.  To give a lies direction in those circumstances, says Ms Draycott, was to effectively give a lies direction where the prosecution were simply asserting the applicant’s defence was untrue and that the complainant’s evidence was to be believed.

10.  It is trite law that it is not appropriate to give a lies direction in every case where a prosecutor either expressly or by necessary implication asserts that a defendant’s evidence contained lies.  Although prosecuting counsel at trial in her closing speech had quite forcefully, and quite properly, pointed to a series of what were said to be improbabilities and unlikelihoods in the applicant’s evidence, there was no particular part of his evidence which had been seized upon and said to have been a demonstrable lie and a matter which, separately from or independently of the general core issue of the applicant’s credibility itself, supported the prosecution case. 

11.  Counsel for the prosecution was merely urging the jury to reject the applicant’s evidence as being untrue.  It may be that the natural concomitant of such an assertion is that the applicant was in fact lying.  But that is the general assertion made by the prosecution in virtually every case where a defendant gives evidence and, without more, does not require a lies direction.  As was said by Stock JA in HKSAR v Chan Boon Ning, (unreported) CACC571/2001 :

“48.  The need, or the absence of a need, for a lies direction has been the subject of many appeals, and there is now a tendency to raise the issue in virtually every appeal case in which it is discovered from post trial scrutinies of the summing up that a lies direction has or has not been given.  It seems still not to be appreciated that a lies direction is reserved for the limited circumstances in which a lie is used not merely to undermine the credibility of the defence, but as in itself constituting a separate item of evidence or conduct in support of the case against the defendant, or where there is a danger that the jury might use a lie, not merely as undermining the credibility of a defence, but as itself probative of guilt.”

12.  In R v Burge and Pegg (1996) 1 Cr.App.R.163 Kennedy LJ commented :

“As there seems to be at the moment a tendency in one appeal after another to assert that there has been no direction, or an inadequate direction, as to lies, it may be helpful if we conclude by summarising the circumstances in which, in our judgment, a Lucas direction is usually required.  There are four such circumstances but they may overlap.

1.  Where the defence relies on an alibi.

2.  Where the judge considers it desirable or necessary to suggest that the jury should look for support or corroboration of one piece of evidence from other evidence in the case, and amongst that other evidence draws attention to lies told, or allegedly told, by the defendant.

3.  Where the prosecution seek to show that something said, either in or out of the court, in relation to a separate and distinct issue was a lie, and to rely on that lie as evidence of guilt in relation to the charge which is sought to be proved.

4.  Where although the prosecution have not adopted the approach to which we have just referred, the judge reasonably envisages that there is a real danger that the jury may do so.”

13.  In the present case the prosecution’s cross-examination of the applicant was restricted to the circumstances surrounding the rape; there was no collateral event or matter in respect of which the applicant was alleged to have told lies.  The prosecution’s attack on the applicant’s evidence, as contained in her closing speech to the jury, was restricted to his credibility.  It is true the prosecutor strongly criticised the applicant’s evidence and although making no express assertion was, by necessary implication, accusing him of lying, and it was this no doubt which led the judge to give a lies direction.   But, as we have said, the attack on the applicant’s credibility was, while robust, no different in nature to that which occurs in the majority of trials where a defendant gives evidence.  Such an approach does not, without more, require that a lies direction be given. 

14.  We appreciate that a judge’s task in deciding whether to give a lies direction may on occasion be a difficult one.  In many criminal trials, the likelihood of a jury concluding that a defendant has lied and thereby assuming him guilty has to be assessed.  Such a decision is often finely balanced and there is not always a clear cut distinction between that which is a collateral issue and one which is indistinguishable from the core issue at trial. 

15.  Whether or not a lies direction should or should not be given is a question which is best decided only after the court has raised the matter with counsel : see HKSAR v Cheng Sui Wa (unreported), CACC223/2001 at para.58.  That does not appear to have been done in the present case.

16.  Although it must be accepted that a trial judge is normally in the best position to determine as a matter of practicality and law whether a lies direction should be given, we are of the view that in the circumstances of the present case the direction was unnecessary and inappropriate.  As was said in R v Harron (1996) Cr.L.R.581 :

“… In Landon [1995] Crim.L.R. 338, Hobhouse L.J. emphasised that a Lucas direction should be given where lies told by the defendant were relied upon by the Crown or might be relied on by the jury, as additional evidence of the guilt, and that the need for the direction depended upon the circumstances.  Where there was no distinction between the issue of guilt and the issue of lies, it was unnecessary to enter upon the Lucas question at all.  The Lucas situation only arose where, on some collateral matter, and due to some change in evidence or account by the defendant, there was scope for drawing an inference of guilt from the fact that the defendant had, on an earlier occasion, told lies, or, on some other matter, told lies at trial.”

17.  What then is the consequence where a lies direction has been unnecessarily given to a jury, as we accept to be the position in the present case?  Ms Draycott argues that the applicant was prejudiced by the direction.  She says that in the absence of the direction which the jury should have been given, which was to the effect that if they rejected the applicant’s evidence as of no credibility the prosecution nevertheless still had to prove its case, by way of the lies direction the jury was wrongly presented with an avenue whereby the same matters which had led them to reject the applicant’s evidence could then, in addition, be used as evidence against him.  In other words, rather than simply destroying his credibility, the applicant’s evidence as a result of the inappropriate lies direction could also be used to bolster the prosecution case.

18.  Ms Draycott’s argument has, at first glance, an attractive logic.  Nevertheless we think it to be wrong.  When given in a case such as the present we do not think a lies direction could have the effect complained of by Ms Draycott.  That is because the present case falls into the category referred to in Harron where there was, at trial, no real distinction between the issues pertaining to guilt and the issue of whether the applicant had lied, either in his evidence or in his interviews with the police.

19.  Proof of any lie having been told by the applicant was inextricably linked with the jury’s acceptance of the prosecution case.  Where the issue as to whether a defendant has told lies goes hand in glove with the issue as to whether the prosecution have proven their case, then the finding by the jury that a defendant has lied is simply an aspect of their conclusion that he has been proven guilty.

20.  In those circumstances a direction on lies is wholly superfluous and is of no assistance to a jury.  But contrary to Ms Draycott’s assertion it does not result in the defendant’s evidence also being used against him as supporting the prosecution case for the purpose of the jury’s deliberations.  That is because the conclusion that the defendant has lied is arrived at in conjunction with and as part of the jury’s conclusion that he is guilty.  There is no separate finding on a collateral issue as to the defendant having told lies which may then subsequently be taken into account as supporting the prosecution evidence.

21.  The lies direction in this case may have been inappropriate but it did not prejudice the applicant in the way complained of by Ms Draycott.  Given the simplicity of the issues in the trial we do not think it would have diverted the jury from a proper consideration of those issues.  In the result we find that there was a misdirection but that it was not material.

Ground 2 — The appellant’s interviews

22.  Ms Draycott argues in this regard that the judge wrongly directed the jury as to the approach to take to the applicant’s interviews with the police.

23.  The judge said this :

“… so far as the video-recorded interview is concerned, decide what weight you give to the defendant’s admissions in the video-recorded interview.  Consider if he is telling the truth and whether you accept everything he said in the video-recorded interview is true, or only part of it is true.  It is all a matter for you.”  [Emphasis added]

24.  Ms Draycott complained particularly of the italicised sentence and argues that as some parts of the applicant’s interview were exculpatory, the jury were effectively being directed that they could only take those parts into account in his favour if they were sure they were true.  With respect, that assertion is to take the judge’s direction out of context.  We agree with Mr Robert Lee, SC for the respondent, that the judge’s comments were intended to refer to only the admissions made by the applicant and would have been so understood by the jury.

25.  Ms Draycott argues further however that the judge did not specifically direct the jury on the exculpatory parts of the applicant’s interviews.  In our view there was no need to do so.  The applicant gave evidence in terms of those parts of his interview which were exculpatory, and the real question for the jury was whether his evidence was or may have been true.  Ms Draycott did not bring to our attention any part of the applicant’s interview which assisted his defence and which was not part of his evidence.  In those circumstances we can see no need for the judge to direct the jury as to the exculpatory parts of the interview.

Grounds 3, 4 & 5 — The applicant’s evidence

26.  These grounds can be dealt with together.  The first complaint is that the judge erred by not directing the jury that, if they thought the applicant’s evidence might be true, they should acquit him.  In other words, that the direction referred to in Liberato & Others v R (1985) 159 CLR 507 per Brennan J at 515 and approved in Law Chung Ki v HKSAR (2005) 4 HKLR 499 at 505-506 by the Court of Final Appeal per Bokhary and Chan PJJ was not given.  In the latter case the court said :

“… In Liberato & Others v R (1985) 159 CLR 507 at p.515 Brennan J (later Brennan CJ) said in the High Court of Australia that ‘[t]he jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue’.  And in Sze Kwan Lung & Others v HKSAR (2004) 7 HKCFAR 475 at pp.486I-487A we referred to that statement and said that ‘[w]hether by one form must be conveyed to the jury.’ …”

27.  We see no merit in this argument at all.  Unlike the position in Law Chung Ki the judge on a number of occasions specifically brought to the attention of the jury that they were required to acquit the applicant if they thought his evidence might be true.  Her directions in that regard included the following :

“… inside that room sexual intercourse took place and Miss Wu said it was without her consent.  The defendant said it was with her consent.  That is the only issue in this case.  If you think that what the defendant alleged is true, or may be true, then you have to acquit. …”

and later :

“  In this case, as I have said, the prosecution has to prove there was no consent.  It is not for the defence to prove that there was consent.  If the account put forward by the defence is true, or may be true, then he must be acquitted. …”

and :

“… If you accept that it is, or may be, true that he held a genuine belief but a mistaken one that Miss Wu was consenting, then the defendant should be acquitted.”

and finally, at the end of her summing-up and immediately prior to her final directions on the return of the jury’s verdict the judge reminded the jury that :

“… If at the end of the day you find that the defence version is true, or may be true, then you have to acquit.”

28.  In our view the judge sufficiently brought to the jury’s attention that, in the event they thought the appellant’s evidence may have been true, even if they did not positively believe it, they were obliged to acquit him.  That was in accord with the principle expressed in Liberato and Law Chung Ki : see also Sze Kwan Lung & Others v HKSAR (2004) 7 HKCFAR 475.

29.  The next complaint made on behalf of the applicant is that the judge failed to direct the jury that even if they rejected the applicant’s evidence, the prosecution nevertheless had to prove its case against him.  It is true that the judge did not specifically direct the jury that in the event they rejected the applicant’s evidence the prosecution still had to prove its case against him, but in the circumstances of the present case, the directions given by the judge included those which follow, which we think to have been sufficient :

“  The prosecution has to prove to your satisfaction so that you are sure that the elements of the offence of rape have been made out.  The prosecution has to prove, first of all, that the defendant did have sexual intercourse with Miss Wu.  ‘Sexual intercourse’ means that the penis of the defendant had penetrated the vagina of Miss Wu.  You will have no difficulty in finding that proved, as it is an admitted fact.  You will recall, members of the jury, that this is one of the admitted facts in P57, which is the first admitted fact, that the penis of the accused, Kwan Chi-wing, penetrated Wu Suet-ling’s vagina, so that you will have no difficulty so finding.

Secondly, the prosecution has to prove to your satisfaction so that you are sure that at the time of the sexual intercourse Miss Wu did not consent.  Thirdly, the prosecution has to prove to your satisfaction so that you are sure that the defendant at the time of the sexual intercourse knew Miss Wu did not consent or was reckless as to whether she consented or not.”

and then more specifically :

“  The prosecution must prove that the defendant is guilty of the charge he faces beyond a reasonable doubt.  The words ‘beyond a reasonable doubt’ mean the prosecution has to make you feel sure of his guilt.  The defendant does not have to prove his innocence.  The burden in a criminal trial is always on the prosecution to prove his guilt. …”

and, in respect of the only live issue in the case, that is the issue of consent :

“  In this case, as I have said, the prosecution has to prove there was no consent.  It is not for the defence to prove that there was consent.  If the account put forward by the defence is true, or may be true, then he must be acquitted. …”

30.  The jury can have been under no misapprehension whatsoever that, even if they rejected the applicant’s evidence, the prosecution still had to prove its case against him.

31.  In this regard Ms Draycott however also sought to rely upon general directions given by the judge as to the proper approach to the evidence of witnesses.  The judge in the course of her directions had told the jury that :

“… In other words, in the case of each witness, you have to decide if each of them is credible and reliable.  A witness may not be lying but still be unreliable in the account given.  If that is so, then you cannot rely on his or her evidence.  In the case of each witness, you do not have to accept or reject all of his or her evidence.  You can accept all, or part, of a witness’s evidence and reject other parts.  …What part you do not find reliable, you may reject, but yet you can accept other parts of his or her evidence which you find reliable and credible.”

32.  Those were plainly general directions and were not meant to displace the specific directions given earlier, and repeated subsequently, that if the applicant’s evidence might have been true he was to be acquitted.  We are satisfied that these general directions would in no way have supplanted the specific directions as to the proper approach to be taken to the applicant’s evidence set out above and as to the burden and standard of proof.  As was said by Chan PJ in Jim Fai v HKSAR (unreported) FACC8/2005 at para.15 :

“… If (the defendant) chooses to give evidence or call any witnesses, he and his witnesses will be examined just like any other witness called by the prosecution and their evidence will be assessed by the jury in just the same way as with any other piece of evidence.  The jury will decide what they would accept and what they would not accept.  They are entitled to accept the whole of a witness’s evidence, or accept parts of it and reject other parts.  They perform this task in respect of every witness, whether a witness for the prosecution or for the defence.  In the present case, the trial judge had in his summing up correctly directed the jury in general terms along these lines.”  [Emphasis added]

33.  Finally, by these grounds Ms Draycott complains of the following direction given by the judge in reference to the applicant’s evidence :

“… If, as in this case, he has chosen to give evidence before you, you will judge his evidence with the same fair standard that you would any other evidence given by any other witnesses called to give evidence before you.”

34.  The phrase “the same fair standard”, we understand to have been intended to guard against a jury assuming that the applicant’s evidence was less reliable than other witnesses because he may have had a particular motive to lie so as to exonerate himself.  Taken in that sense the phrase is harmless.  Nevertheless, it is, stated baldly, a vague and contextually meaningless phrase unlikely to be of assistance to a jury.  It is also a phrase which was specifically criticised in Law Chung Ki as early as November 2005 as running counter to the principle expressed in Liberato to which we have referred.

35.  However in the context of the repeated directions given in the case to which we have referred to the effect that, if the applicant’s account may have been true, he was to be acquitted, it cannot have had the effect attributed to it by Ms Draycott of causing the jury to believe they could only act upon the applicant’s evidence if they believed it to be true.

Ground 6 — The “Reckless” direction

36.  The direction on recklessness given by the judge was in terms of that approved in R v Satnam and Kewal 78 Cr.App.R. 149, CA, where Bristow J, in delivering the judgment of the court, said : “… (if the jury) came to the conclusion that (the defendant) could not care less whether (the victim) wanted to or not, but pressed on regardless, then he would have been reckless and could not have believed that she wanted to, and they would find him guilty of reckless rape”.

37.  That direction was approved by this court in HKSAR v Li Kim Ching (unreported) CACC208/2006 where it was held that the test in Satnam and Kewal was subjective and accorded with the judgment in R v G & Anor [2004] 1 AC 1034 which was approved as the law in Hong Kong by the Court of Final Appeal in HKSAR v Sin Kam Wah & Anor [2005] 8 HKCFAR 192 and specifically applied to the offence of rape by Mason NPJ at para.44 in these terms :

“44.  … Henceforth juries should be directed in terms of the subjective interpretation of recklessness upheld in R v G & Another [2004] 1 AC 1034. So juries should be instructed that, in order to convict for an offence under s.118(3)(a) of the Crimes Ordinance, it has to be shown that the defendant’s state of mind was culpable in that he acted recklessly in respect of a circumstance if he was aware of a risk which did or would exist, or in respect of a result if he was aware of a risk that it would occur, and it was, in the circumstances known to him, unreasonable to take the risk.  Conversely, a defendant could not be regarded as culpable so as to be convicted of the offence if, due to his age or personal characteristics, he genuinely did not appreciate or foresee the risks involved in his actions.”

38.  In Li Kim Ching the statement of Lord Steyn in R v G to the following effect was adopted :

“58  That brings me to the question whether the subjective interpretation of recklessness might allow wrongdoers who ought to be convicted of serious crime to escape conviction. Experience before R v Caldwell did not warrant such a conclusion. In any event, as Lord Edmund-Davies explained, if a defendant closes his mind to a risk he must realise that there is a risk and, on the evidence, that will usually be decisive : p 358D. …”

39.  The comments of Lord Edmund-Davies in his dissenting judgment in R v Caldwell [1982] AC 341 at 358 were that :

“… if a defendant says of a particular risk, ‘It never crossed my mind,’ a jury could not on those words alone properly convict him of recklessness simply because they considered that the risk ought to have crossed his mind, though his words might well lead to a finding of negligence.  But a defendant’s admission that he ‘closed his mind’ to a particular risk could prove fatal, for, ‘A person cannot, in any intelligible meaning of the words, close his mind to a risk unless he first realises that there is a risk; and if he realises that there is a risk, that is the end of the matter’ : see Glanville Williams, Textbook of Criminal Law (1978), p. 79.”

In the result this court in Li Kim Ching concluded that the Satnam and Kewal direction was not inconsistent with R v G or with Mason NPJ’s comments in Sin Kam Wah.  We regard ourselves as bound by Li Kim Ching and the clear ratio expressed in that case and this final ground must also fail.

40.  For these reasons, the application concerning conviction is dismissed.

41.  We turn now to sentence.

42.  The judge in giving her reasons for the imposition of a sentence of 7 years’ imprisonment said this :

“Taking into account all the circumstances of this case, I consider that a starting point of 7 years for this offence is appropriate, and with an aggravating factor of the lack of use of a condom, I would increase it to 8 years.  However, I also take into account that this is his first criminal conviction and the first time that he will be placed behind bars, so taking into account that, I will not increase the sentence from 7 years.”

43.  Ms Draycott says that sentence was manifestly excessive and points to a number of circumstances surrounding the offence which she says place it at “the lower end of the range”.  She relies on, in this regard, the accepted lack of violence in the commission of the offence, the fact that the offence occurred in a karaoke bar where the applicant was entitled to assume some intimacy would be permitted to take place with the complainant, and that the applicant desisted when she complained of pain.

44.  We accept that the offence was one at the lower end of the scale.  There is no doubt, even on the complainant’s evidence, that the applicant could reasonably have expected her to consent to some degree of intimacy, but it is equally plain that the applicant must have realised she had not consented to intercourse.  In R v Millberry [2003] 1 WLR 546 the Court of Appeal was of the view that :

“… although rape is always a very serious crime, the extent of the offender’s culpability inevitably differs from case to case, as it does in all other offences.  Where, for example, the victim has consented to sexual familiarity with the defendant on the occasion in question, but has said ‘no’ to sexual intercourse at the last moment, the offender’s culpability for rape is somewhat less than it would have been if he had intended to rape the victim from the outset.”

Whilst it may be true that the applicant had intended to have sexual intercourse from the outset, the evidence was consistent with an intention to rape having formed only after the applicant and the complainant had commenced to be intimate.  It was also accepted by the complainant that the applicant had withdrawn immediately after she had complained of pain.

45.  We also take into account that which was pointed out in HKSAR v Chan Sau Man [2001] 3 HKLRD 593 to the effect that :

“…Forced, unprotected sex in this day and age, where the victim had throughout insisted on protected sex, was a factor which made the case a serious one. …”

46.  Accepting that the offence, for the reasons mentioned, was at the lower end of the range, though aggravated by the lack of protection, we think a sufficient sentence was 5 years 6 months’ imprisonment.

47.  Accordingly, in our view, the sentence of 7 years was manifestly excessive and the application concerning sentence is allowed, the hearing is treated as the appeal and the appeal is allowed to the extent that the sentence of 7 years’ imprisonment is set aside and a sentence of 5 years 6 months’ imprisonment is imposed in its stead.