THE QUEEN v. IP CHUNG HANG

IN THE COURT OF APPEAL

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J U D G M E N T

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Hunter, J.A. :

1. This is an application for leave to appeal against conviction, out of conviction occurred on 2nd May 1988. It was followed by an application by the Crown for a review of sentence. That led to a representative of Legal Aid visiting the applicant in prison on 8th July. It was out of that event that steps were put in hand to make an application for leave to appeal to this Court against conviction out of time, the application being supported by an affirmation dated 22nd July.

2. The contents of that affirmation are extremely unsatisfactory. Mr Mullick, who was representing this applicant in the court below, tells us that immediately after conviction and sentence, he discussed a potential appeal with the applicant in the presence of a clerk from the then outside retained firm of solicitors, and tendered certain advice. He also says that he submitted a report to Legal Aid on 9th May and that there was also a report submitted by the retained solicitors. As a matter of recollection he thinks he advised the Applicant that he should fill in the necessary form asking for leave to appeal against conviction.

3. If matters had proceeded properly, the terms of Mr Mullick's advice and the suggested grounds of appeal, which we understand were incorporated in that advice, would have been transmitted by Legal Aid to the retained firm solicitors, and it would then have been the duty of that firm to have transmitted them to the applicant to enable him properly to complete the form in prison. None of that happened. There is no evidence before the Court either from Legal Aid or from the retained firm of solicitors to explain these events. So this is an application, on pure chronology, apparently provoked by an application to review the sentence.

4. In those unfortunate circumstances, it is very difficult for us to determine whether substantial grounds exist for extending the time for appealing or not. We therefore took the unusual course of deciding to look at the grounds of appeal being adumbrated to see if they seem to us to be impressive, and to check that by refusing leave to appeal we were not shutting out a substantial and plainly arguable ground of appeal.

5. We therefore briefly looked at the grounds relied upon. The first takes a verbal point upon the words following the caution in Exhibit P 13 which was this applicant's cautioned statement to the police, a very long Statement indeed, which is reported as having been taken over 2 hours. There is, we think, no substance whatever in that point because in the course of the voir dire the point was not even suggested by the applicant himself.

6. The second point was that criticism was directed at the trial judge's direction to the jury that there was a close parallel between the victim's evidence as to the sequence of events relied upon in relation to 3 counts of rape, all occurring on the same evening of a particular date, and the sequence of events on the self-same occasion described by this applicant in the Statement P 13. The judge had had already warned the jury specifically and unequivocally about the danger of convicting upon the uncorroborated evidence of that girl. He directed the jury again quite plainly that In law there was nothing in the evidence which could amount to corroboration. Equally he warned them quite specifically In these terms, if they accepted the criticism of her arising out of alleged contradictions :-

"If you accept those submissions, then you would not act at all on her uncorroborated evidence unless there was other independent evidence not constituting corroboration in the sense I have mentioned but evidence which does tend to show that she has told the truth".

When he came to deal with his direction on these 3 counts and the references to this statement, he pointed out the coincidences between these versions. He went on to confirm that this did not constitute corroboration. He said :-

"It is therefore a question of whether it lends sufficient support for you to be able to say that you can be so sure that she is telling the truth that you can safely act on her evidence notwithstanding the lack of corroboration".

This direction seems to us to be precise, clear and fair.

7. The main point of criticism of this aspect of the summing up has in fact taken a different form in the course of the argument. It is really confined now to the amended grounds of appeal, and to the suggestion that the judge should have gone on to direct them as to the effect of lies in a statement like this, and to the inferences which could or could not he drawn from such lies. We can see no such substance in that at all. What the jury had to do in this case, with regard to this applicant, was to decide whether or not it was safe to act upon the victim's uncorroborated evidence. That was their function. They were quite clearly directed to that function and it seems to us that any additional direction, such as was suggested should have been given, would have resulted in confusion not clarity.

8. The third point is that it is suggested that the victim was an unsatisfactory witness. All these points and the problem of acting upon her evidence were fairly and squarely placed before the jury.

9. In these circumstances, and having taken this somewhat exceptional course, we can see no good grounds for extending the time for leave to appeal against this conviction, and the application is refused.