R. v. WONG YIU FAT and Another

IN THE COURT OF APPEAL

No. 221 of 1995
(Criminal)

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J U D G M E N T

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Wong J. (giving the judgment of the Court):

1. Wong Yin-fat (D1) and Wong Pik-wa (D2) were convicted before Mr. Justice Leong and a jury of one count of rape and was each sentenced to imprisonment for 10 years. Both lodged notices for leave to appeal against conviction and sentence. D2 abandoned his application for leave to appeal against conviction by a notice dated 17 November 1995 and seeks leave to appeal against sentence only.

2. The complainant was an 18 year old girl and worked as a salesgirl at the time of the offence. She gave evidence that she went off duty as usual at 10 p.m. on 16 May 1994. As a result of phoning and speaking to some persons in response to some page calls, she went to the Golden City Cinema around midnight thinking one of the persons talked to her was Ah Wing whom she liked very much and had been out with her the night before. On arrival she met D1 and D2. She had met D1 before at her friend Ah Tung's place and knew he was Ah Tung's cousin. But she had not seen D2 before. The two defendants told her that they had been sent there to pick her up. She asked D1 who had sent them and D1 told her that she would know when she got there. Believing she would be meeting either Ah Tung or Ah Wing, she went with the defendants to Room 751, Block 7 of Lam Tin Estate.

3. Inside the room, the three of them sat together, played cards and finger guessing games and the loser would have to drink beer as penalty. She only had a sip of beer because D1 took all the penalty drinks for her. This went on for a couple of hours and during this time she kept on asking D1 if the person she was supposed to meet would come and D1 kept on telling her to wait. A telephone called was made and she was told that the person was coming.

4. Later D1 went into a bedroom and told her to go inside to chat with him. She did so. They sat closely together on the lower bunk of a double bunk bed. After a while, D1 put his arm around her waist and she did not resist. When D1 put his hand on her breasts, she immediately pushed his hand away and left the room. She watched video for a short while and was called back to the bedroom by D1. Inside the room D1 threatened to "move" her meaning to rape her unless she massaged him and she did as she was told. After this she left the room to ask D2 when the person she was supposed to meet was coming. On returning to the bedroom D1 asked her to sit closer to him on the bed and she refused. D1 accused her of being cheeky and went out of the room. He came back with a chopper and place it across her neck. D1 then kissed her lips and fondled her breasts. She was crying and tried to pushed D1 away. D1 pulled down her trousers and D2 helped him take them off. D1 then had sexual intercourse with her. D2 was fondling her breasts when D1 had intercourse with her.

5. D2 had sexual intercourse with her after D1. She tried to resist but was unsuccessful. Before they parted, D1 told her that he and D2 had been paid $60,000.00 by someone to do that to her and threatened her not to report to the police.

6. Within five minutes after she had returned home, D1 telephoned her to tell her not to report to the police. She immediately made a complaint to her father and a report was made to the police.

7. After their arrests, the defendants made statements to the police amounting to admission of rape. These statements are capable of corroborating the evidence of the complainant in so far as rape was concerned. The judge also warned the jury of the danger of convicting on the evidence of the complainant without corroboration. D1 was additionally charged with one count of committing buggery on the complainant. But he was acquitted. The jury must have reached their decision because of the lack of corroboration on this count.

8. Both defendants gave evidence before the jury. Their case was that they had sexual intercourse with the complainant with her consent. She later made a report to the police because she asked them to lend her money after sexual intercourse and they refused.

9. Before us, D1 said nothing. In his written statement placed before the Court which is relied on as his grounds of appeal, he simply said that he did not do it and was unhappy with the trial.

10. We are satisfied that the judge summed up the law and evidence to the jury adequately and correctly. There is nothing we can discern to cause us anxiety that the conviction is either unsafe or unsatisfactory. The application for leave to appeal against conviction by D1 is refused.

Sentence

11. Both D1 and D2 seek leave to appeal against their sentences. The facts have already been set out and will not be repeated.

12. In passing sentence, the trial judge had this to say :-

"The only mitigating factor I can take into consideration is that there was no physical injury to the victim but as to her mental trauma, it's difficult for anyone to assess.

For the aggravating factors, I will take into consideration that the chopper was used and she was raped by you two one after the other, one immediately after the other and these show that you two were completely disregarding the feelings and dignity of the victim."

13. In the case of D2, he committed the present offence only two months after his release from prison, having served a sentence of 2½ years for conspiracy to rob.

14. We agree with these remarks and take the view that this is a bad case of rape with many aggravating features. The sentence of 10 years is a severe one and was meant to be severe. In the circumstances of this case, we are satisfied that the sentences imposed on the applicants are neither wrong in principle nor manifestly excessive. The applications for leave to appeal against sentence by both applicants are refused.