THE QUEEN v. CHOW SIU-HEI AND ANOTHER

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JUDGMENT

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Power, V.-P. (giving the judgment of the Court):

1. The applicants in this matter faced one count of rape. It was particularized that they had, on or about 28th December 1994 at No.100 Cha Kwo Ling Main Street, Kwun Tong, together with another person, raped Wong Lai-ching. They pleaded not guilty and were convicted after trial in front of Seagroatt J. and a jury. The 1st applicant was sentenced to imprisonment for five years and the second was ordered to be detained in a training centre. The 1st applicant now seeks leave to appeal against both conviction and sentence and the 2nd applicant seeks leave to appeal against conviction.

2. The victim Wong Lai-ching, also known as Ah Ching, was a 13-year-old girl. The 1st applicant was also known as Gary or Ah Hei, and the second as Ah Fung.

3. It was the Crown case that the events which led to the offence commenced in Tsimshatsui on the waterfront on either 27th or 28th December 1994. A group of boys, amusing themselves on the waterfront, were joined by three girls. One was Wendy, who appears to have been the oldest of the three and the most sophisticated, another was May May and the third was Ah Ching, the victim. She was then, as I have said, 13 years of age. She had absconded from home. Indeed, that was the fourth time she had done so. When she was giving evidence she admitted that she had had intercourse prior to this evening.

4. The group stayed together until 6 or 7 the following morning and during that time they played finger guessing games, after which the loser on each occasion had to drink beer as a forfeit. Apparently the victim lost on a number of occasions and drank a fairly large quantity of beer which made her, according to the witnesses, unsteady and slurred in her voice and to an extent incoherent. She left the waterfront area by taxi cab with the two applicants. She did so believing, it seems, that the other girl Wendy would follow shortly thereafter. In fact Wendy did not follow and she was taken in the cab by the two boys to the premises in Cha Kwo Ling. They first went to one and then to other premises and, having entered the latter, again played finger guessing games and it seems the victim took more alcohol. She asked for some tablets to relieve her dizziness and these having been purchased she took them and fell asleep. It was her evidence that having slept for some time she sensed something. She felt she was being touched and that someone was doing something to her. She said that she became aware that she did not have her trousers on, that someone was molesting her and then sexually penetrating her. Her evidence was

"Someone held my two hands. My legs were held up by somebody. My two hands were placed up at my head level. I could not open my eyes, so I could not see. Later someone took off my upper garment."

She told of two occasions of penetration, "molesting" as she said, which followed one shortly upon the other. She said she drew up her legs to avoid that "but I could not. I did not have the strength. When I was fully awake I sat up and cried". It appears that shortly thereafter she was given her clothes, left the scene and went to the premises of Wendy. After some time she made a complaint to Wendy saying that she had been gang-raped and later again made a complaint to her boyfriend Ah Yiu along the same lines.

5. Both of the applicants, to whom I will refer hereafter as D1 and D2, made statements to the police and which were, to a lesser and greater extent, incriminating. They both contended at trial that their statements were involuntary and untrue. D1 said that the victim was willing and D2 said that he was with the party during the most of the evening but that back at the place where the offences were said to have occurred he fell asleep.

6. It was the evidence of D1 that he sat in a corner with Ah Bun and then he saw Ah Bun having intercourse with Ah Ching. He said that Ah Bun said to him afterwards "you try, it should be Okay" and he said:

"Well she was sleeping with her eyes closed. I touched her breast and kissed her. She kissed me back and opened her eyes. She told me 'wear a condom'. I made love to her. She lay there saying nothing - motionless. Afterwards, I asked Ah Bun to hand her back her clothes."

That was his version of what had occurred. He, when apprehended by the police, was told that he was being arrested for rape and, according to the police officer, said:

"I did take part on that day. I have done once only. Ah Bun also took part."

This was, upon its face, an admission implicating him in the offence of rape but in his statement which he made thereafter he said simply that he had had intercourse with the victim. He made no explicit admission that the intercourse was without consent and the trial judge took the view, which it might be suggested was a overly favourable one, that it was proper not to direct the jury that it would have been open to them to have treated that statement as an admission of rape and to give them no direction that those words were capable of corroborating the evidence of the victim. What he said was

          "In the case of the 1st defendant you may think that, in any event, the interview record does not contain a confession of the offence."

7. As far as the statement of D2 was concerned, he made no admission of intercourse but made clear admissions of participation in what had occurred. He said:

          "After Ah Hei had fucked, Ah Bun fucked again. While in the middle of the fuck, Ah Ching woke up and began to struggle. Ah Hei told me to grasp her. I then grasped her. Later I was frightened so I released the grip and not grasp. Ah Hei then told Fei Chai to grasp Ah Ching. Ah Ching was grasped until the fuck finished."

This statement by this applicant clearly implicated him in the offence insofar as he had, according to this version, grasped and held the girl who was not willing to participate in intercourse.

8. D1 has been represented today by Mr. Jimmy Kwong, who placed six grounds of appeal before the court. The first of which was, however, abandoned. He argued Grounds 3,4 and 5 first before turning to Ground 2.

9. In Ground 3 it was alleged that the judge erred in failing to direct the jury that there was no evidence capable of being corroboration against the 1st applicant. In Ground 4 it was submitted that the trial judge misdirected the jury in omitting to direct that he was dealing with corroboration evidence as against D2 only when he was directing the jury that D2's statement was capable of corroborating the complainant's evidence. In the 5th Ground it was alleged that judge "misdirected the jury in omitting to specifically direct that the evidence which he was directing to be 'capable of being corroborating' was the cautioned statement of D2 which D2 challenged and did not adopt in the witness box and which could not, therefore, be regarded as evidence against D1".

10. It is true that the judge did not, in terms, direct the jury that there was no evidence capable of corroborating of the evidence of the victim against D1. It is submitted that the failure so to direct is fatal and further that the judge's direction as to the corroborative evidence which existed in relation to D2 was such that the jury might well have thought that that evidence was available to corroborate the evidence of the applicant against D1. The directions must be looked at with care.

The trial judge at the very outset said to the jury:

"You are looking at that charge against these two persons. But you look at the charge against them individually, although it is one charge you look at the case against each of the two defendants individually - you do not lump them together. You look at the case against the one, and the case against the other. You look at the evidence for and against both, but individually."

It would be hard to conceive of a clearer direction than this. The trial judge went on to say:

          "Both defendants refer in their record of interviews - or there are references in their record of interviews - to the other defendant. That reference in the interview record of one defendant, to what another defendant may or may not have done, is not evidence against that other defendant unless it is repeated in the witness-box and can be tested. Because you will clearly understand, if one interview is being conducted with one defendant, the other defendant is absent so has no opportunity of making any comment on anything said in relation to him. So it would clearly be unfair to regard what one defendant may or may not have said in an interview about another defendant, as evidence against him. It is only evidence if it is made in-or the comments are made in respect of the defendant himself, as to what he did, or he said, or he heard. But not in respect of any defendant who is absent from that particular interview. And you may think that is common-sense and fair, in any event."

He dealt then with the statement of D1 in the terms which I have already indicated saying:

          "In the case of the 1st defendant you may think that, in any event, the interview record does not contain a confession of the offence."

When he came to deal with corroboration, he gave what it is not contested are impeccable directions as to the need for corroboration. He pointed out that there was a need for independent evidence and said:

          "Independent evidence must mean evidence not from the complainant. Anything she says can not corroborate herself, it has to come from another source, a source other than her. And it must confirm in some important respect, not only that the crime has been committed, but also that the defendant has committed it. There doesn't have to be independent evidence of everything that she has told you. It is for me to point out evidence which is capable of independently confirming her evidence. But it is for you to decide whether you accept it, and for you to decide whether it does in fact provide independent confirmation of her evidence." (Emphasis supplied.)

He goes on:

Here I interpolate to say that Mr. Kwong complains that the word "corroboration" was used in a general sense without reference to the corroboration of the evidence admissible against a particular defendant. The judge went on:

"And I am going to direct your attention to Exhibit 11, in the first instance, which is the prosecution's exhibit, the record of an interview with the 2nd defendant."

11. Mr. Kwong's complaint, as I have indicated, is that the judge nowhere says that this corroborative evidence is available only against the 2nd applicant and is not against the 1st applicant. That is true but the whole of the summing-up must be looked at when considering this submission and the parts of the summing-up to which we have made reference are in our view vital when determining whether there is any weight in the submissions of Mr. Kwong.

12. The trial judge having referred to the admissions contained in D2's statement said:

          "Remember what I said, this is not evidence against Ah Hei, this is only evidence in relation to Ah Fung, the 2nd defendant. It is in the interview of Ah Fung and Ah Hei was not there. You remember what I said to you earlier."

Having referred to the admission by D2 that he had grasped the girl the judge said:

          "That, if you are sure that is a voluntary and true statement by Ah Fung, is corroborative of Ah Ching's evidence that she did not consent and corroborative of her in her evidence that her hands were being held. You remember she told of her hands being held and then her hands being placed above her head."

The judge went on :

Again it is Mr. Kwong's complaint that the word "corroboration" is used at large and the evidence is not linked specifically to admissibility against D2.

13. The judge then detailed the evidence against each of the defendants. He first set out the evidence against D1. There was no suggestion that there was any evidence capable of corroborating the evidence of the victim against him. He then detailed the evidence against D2 saying as his last comment upon the evidence:

          "If you are sure that he gave them voluntarily and they are truthful replies and statements, then you may think it is powerful evidence of his involvement in holding down a 13-year-old girl who was being raped by someone, and that the answers are capable of confirming her evidence in important and crucial respects. It is a matter entirely for you. But you bear these matters and warnings in mind." (Emphasis supplied.)

We reject the submission that the jury might have been left with the impression that the corroborative evidence could be used against both defendants. The jury were told in clear terms that that evidence was admissible only against D2. We do not consider there is any weight in Grounds 3,4 and 5.

14. We turn now to Ground 2. In that ground it is urged that the judge "failed to direct the jury sufficiently, if at all, on the 1st applicant's belief as regards PW1's consent to the sexual intercourse". The submission here is that there was an inadequate or wrong direction as to what is normally termed "recklessness". In essence the complaint is of an inadequate direction insofar as the judge did not fully direct the jury on the defence of genuine but mistaken belief. When examining this submission it is necessary to look at what the judge did say:

15. The direction, we are satisfied went directly to the real issue-consent. It was a clear, concise and properly tailored direction given the facts before the court. On the one hand there was evidence of what might be termed "eager consent". On the other hand there was evidence which, if you believed, would establish that the victim was comatose and that any person approaching her must have been well aware that she was in no way able to give consent. Nowhere was there any evidence which requited a direction as to mistaken belief. There was the evidence of the victim, which we have already detailed, to which the jury might well have concluded the statement of D1 gives considerable support. He said:

"At that time I saw that Ah Ching was lying on a mattress on the ground. Ah Bun took off all of her clothing including the briefs."

there is no indication of anything other than that the victim was comatose and was undressed without her knowledge. He went on:

"Following that, (1) saw Ah Bun take off his own trousers and underpants, and then pressed on top Ah Ching and inserted his penis into the sex organ of Ah Ching. (1) then saw Ah Bun moving upwards and downwards. Ah Bun stopped after having done that for three or four minutes."

Again there is nothing here to suggest that the victim was aware of what was being done.

16. He then said:

"Ah Bun then said to me, You try it (It) should be alright."

There is no indication of any permission or assent given by the victim. The invitation to D1 was issued by Ah Bun not by the girl.

17. He goes on:

"Then I took off my trousers and underpants and had sexual intercourse with Ah Ching, imitating Ah Bun. I inserted my penis into the sex organ of Ah Ching and moved upwards and downwards. I did that for one to two minutes and then withdrew."

Again there is no suggestion of any participation by the girl. When asked did the girl say anything when Ah Bun was having sexual intercourse he said

          "She didn't say anything. She was only lying there and did not move.

18. On the other hand there was the evidence of the D1 who, as we have already indicated, said:

"Well she was sleeping with her eyes closed. I touched her breast and kissed her. She kissed me back and opened her eyes. She told me 'wear a condom'. I made love to her. She lay there saying nothing - motionless."

There is a stark difference between these two sets of evidence. The evidence of the victim is that she was gang-rape when she was comatose. The evidence of D1 is that she was a willing, indeed eager, partner. The direction given by the judge was a tailored-made to the circumstances of this case. We refer to the case of Anthony Edward Haughian and Arthur Reginald Pearson [1985] 80 Crim. App.R. p.334 and to the judgment of O'Connor L.J. at p.341 where he said:

"In cases such as the present in which the conflict of evidence between the complainant and the accused is acute and in which, if the jury decides that the account given by the complainant is truthful, there is no room for a genuine but mistaken belief by the accused that she was consenting, any over elaborate direction to the jury on the question whether the Crown has proved that the accused knew that the complainant was not consenting would only tend to confuse them and would be unnecessary."

We emphasize those last words. We are satisfied that had an elaborate direction been given in the present case it could have done nothing but confuse the jury.

19. We must before leaving this ground deal with the words in the second paragraph of the passage set out above where the judge said:

          "If, as in this case, the defendants say, 'We or I' - because you have to look at them individually - 'believed she was consenting', it is for you to decide whether or not there were any reasonable grounds for that belief, in considering whether he did in fact believe she was consenting."

It has been suggested that this was an inadequate direction. Had there been any issue of genuine but mistaken belief, this direction might well not have been adequate. There was, however, no such issue. As we have indicated on one hand there was evidence of willing co-operation and consensual intercourse and that on the other hand of gang rape while the victim was comatose and unable to resist. In such circumstances the suggested inadequate direction as to reasonable but mistaken belief was at no materiality. We are satisfied that there is nothing in the second ground of appeal and the application of D1 to appeal against conviction must, therefore, be dismissed.

20. We turn then to application of D2. He simply stated in his written Grounds that he was aggrieved by his conviction. Today he has addressed us traversing the evidence saying that he took no part in whatever occurred, that the girl was not raped and that credit should not have been given to her evidence. He had said nothing which occasions us any doubt as to the propriety of his conviction and his application must also be dismissed.

21. We turn to the application for leave to appeal against the sentence of five years imposed on D1. Mr. Kwong has today urged all that could possibly be said on his behalf. He submits that there was no violence, threat or injury. This is not correct as there was a degree of violence insofar as the girl was at one stage during the commission the offences forcibly restrained. While it may be that this victim suffered no trauma as a result of what occurred, courts must nonetheless bear in mind the need to impose deterrent sentences which will protect girls from attacks of this sort.

22. The trial judge when sentencing said:

          "It is a violation of a girl or a woman to force intercourse upon her and by doing that, you add to her tragedy. It is true that no threats were made to her but you used her in a disgusting fashion with others around who preceded and helped. Your age and good character, hitherto, are important features that I have to take into account and I have also, in addition to the reports read, the decision in the Attorney General v. Fong Ming Yuen to which Mr. Fu drew my attention."

Having referred to The Attorney General v. Fong Ming-yuen in which the Court of Appeal on the Attorney's application, refused to interfere with a training centre order, the judge went on:

          "In your case, I have decided that a training centre is not appropriate and I consider that there is no method of dealing with you properly other than by way of imprisonment. The term is one of five years."

23. We have given anxious consideration to all that has been urged today on behalf of D1. While satisfied that the sentence of five years was at the top of the range for an offence in the circumstances here obtaining we are, nonetheless, satisfied that it was within that range and that there is nothing that could allow us to interfere therewith.

24. The application for leave to appeal against sentence must, therefore, also be refused.