TANG KWOK WAH, DIXON v. HKSAR

FACC No. 4 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 4 OF 2001 (CRIMINAL)

(ON APPEAL FROM CACC NO. 318 OF 2000)

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J U D G M E N T

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Chief Justice Li:

1. I agree with both the judgment of Mr Justice Bokhary PJ and the judgment of Sir Anthony Mason NPJ.

Mr Justice Bokhary PJ:

Introduction

2. This appellant is a professional and family man of previous good character. He faced six counts: one of rape and five of indecent assault. The complainant is a woman who at the material time worked as one of the domestic helpers at the appellant's home. All the offences were alleged to have been committed at the appellant's home during the period 3-11 November 1999.

3. The trial took place before Burrell J and a jury. On 14 July 2000 the jury delivered their verdicts. They acquitted the appellant on four of the indecent assault counts. But they convicted him on the rape count (by a majority of 6:1) and on one of the indecent assault counts (by a majority of 5:2). The trial judge sentenced the appellant to a total of seven years' imprisonment. This was by way of consecutive terms of six years for the rape and one year for the indecent assault.

4. On 27 March 2001 the Court of Appeal (Stuart-Moore Ag CJHC and Woo and Stock JJA) quashed the appellant's indecent assault conviction, but affirmed his rape conviction. The appellant was thus left with a rape conviction and a six-year sentence.

5. By leave of the Appeal Committee, the appellant now appeals to this Court against his rape conviction, doing so under the "substantial and grave injustice" limb of s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484. What an appellant must do in order to succeed on the "substantial and grave injustice" ground was laid down in So Yiu Fung v. HKSAR (1999) 2 HKCFAR 539 at p.545 F-G and repeated in numerous other decisions of this Court. He must show that there has been to his disadvantage a departure from accepted norms which departure is so serious as to constitute a substantial and grave injustice. The appellant contends that the trial judge so departed from accepted norms in two respects. First, it is contended that he did so in how he directed the jury on the drawing of inferences. Secondly, it is contended that he did so in how he directed the jury on accepting part of a witness's testimony.

Consent the only issue

6. There was no dispute that sexual intercourse had taken place between the appellant and the complainant. The issue was whether the sexual intercourse between them was (as she testified) against her will or (as he testified) with her consent. He suggested that her complaint of rape was fabricated with a view to blackmailing him. She denied this.

At trial and in the Court of Appeal

7. It was of course for the prosecution to prove the absence of the complainant's consent and to prove it beyond reasonable doubt. The only evidence by which the prosecution could seek to prove non-consent was the complainant's testimony. Unless the jury felt sure that her testimony was reliable, they had to acquit. There was no other evidence by which non-consent could be proved beyond reasonable doubt. The other evidence, standing alone, could not do that. But there is an issue as to whether such other evidence was nevertheless left to the jury as if it could, even standing alone, do that. I will come to this issue, which is a crucial one, in due course.

8. In the course of his summing-up the trial judge gave the jury this direction:

" You must decide this case only on the evidence which has been placed before you. There will be no more evidence. If you think that there is a gap in the evidence, or there is a lack of evidence, you must accept that and make your decisions in its absence. You are entitled to draw inferences from the evidence. That is, come to some common sense conclusion based on the evidence which you accept but you may not speculate about what evidence there might have been or in any way allow yourself to be drawn into speculation."

9. Both in the Court of Appeal and in this Court, Mr John Griffiths SC for the appellant argued that what the trial judge said in that passage about the drawing of inferences constituted a material misdirection.

10. In rejecting this submission, the Court of Appeal rightly did not suggest that what the trial judge said on the drawing of inferences would be adequate if a special direction on the drawing of inferences was called for. Instead the Court of Appeal took the view that no direction on inferences was called for in the present case. This is how the Court of Appeal put it:

" We accept that this direction contains no words to the effect that an inference can only be drawn if it is irresistible, or one that no reasonable man could fail to draw, from primary or direct facts which had been proved in evidence to the jury's satisfaction. However, this was a case where inferences effectively had no part to play. The summing up could safely have been made without any references to inferences. The prosecution's case was wholly dependent upon the victim's evidence, and it was her credibility which was the crucial issue to be decided."

Special direction normally unnecessary

11. It is normally unnecessary to give the jury any special direction on how they are to approach circumstantial evidence. Whether the prosecution's case depends wholly or in part on circumstantial evidence, it is normally sufficient that the jury be directed that they may not convict unless they are sure of guilt. The House of Lords so held in McGreevy v. Director of Public Prosecutions [1973] 1 WLR 276 (also reported in the Criminal Appeal Reports from which Sir Anthony Mason NPJ cites, quoting the headnote of McGreevy's case in that series).

12. McGreevy's case has been consistently applied in Hong Kong. This can be seen from, for example, the decisions of the Court of Appeal in R v. Lam Tsz-wah [1984] HKLR 54; R v. Yu Wai-chun, Criminal Appeal No. 179 of 1987, 30 October 1987; R v. Pang Shun-yee [1988] HKLR 146; R v. Chan Ho-kuen [1988] 2 HKLR 334; R v. Tsao Wing-tak [1989] 1 HKLR 285; and R v. Chua Michael [1993] 2 HKC 35. Provided that it is made clear to the jury that the circumstances must lead them to a sure conclusion of guilt before they can convict, it is normally unnecessary for the judge to say anything to them about inferences. This is also (as can be seen from the decision of the Supreme Court of Canada in R v. Cooper (1977) 32 CCC (2nd) 18) the approach in Canada and (as can be seen from the decisions of the High Court of Australia to which I will come) in Australia.

Exceptionally a special direction may be desirable or even necessary

13. There may be exceptional circumstances in which a special direction on the drawing of inferences may be desirable or even necessary. In McGreevy's case, Lord Morris of Borth-y-Gest, with whose speech the other members of the House of Lords agreed, said this at p.284 D-E:

"In a case in which inferences may have to be drawn by a jury from such facts as are found by them a judge will wish to give the jury guidance as to their approach and in giving that guidance he will certainly be assisted by having in mind what was said by Alderson B [when directing the jury in R v. Hodge (1838) 2 Lewin 227 at p.228] and by Dixon CJ [in the course of giving the leading judgment in the High Court of Australia in Plomp v. R (1963) 110 CLR 234 at p.243] and by others who have given expression to the same line of thought."

14. Barwick CJ (with whom the other members of the High Court of Australia agreed) spoke in the same vein in Grant v. R (1975) 11 ALR 503. In that case it was submitted that where a case depended on circumstantial evidence it was not enough that the jury be directed that they must be satisfied beyond reasonable doubt before they can convict. It was submitted that in such a case the jury should always, as a matter of law alternatively as a matter of practice, be directed also that the circumstantial evidence must be not merely consistent with the accused's guilt but inconsistent with his innocence. That submission was rejected. But at p.504 Barwick CJ made a point of saying that:

"Unquestionably, there are cases which depend upon circumstantial evidence in which it would be proper and, indeed, there are cases in which it is necessary, for the trial judge to assist the jury by way of some such direction as is now being sought."

15. It is undesirable to attempt to define exhaustively the circumstances in which a special direction on the drawing of inferences would be necessary. I would, however, point to Plomp's case (where the prosecution's case was wholly circumstantial and the circumstances were very unusual) as an example of the sort of case calling for a special direction.

16. Beyond that, all that I would say about the exceptional circumstances in which a special direction on inferences will be appropriate is as follows. No question of giving such a direction even arises where all that the jury is really being invited to do is to assess a witness's credibility and reliability in the light of other evidence. No such question arises unless the jury is being invited to find the prosecution's case or a part of it proved by or partly by the drawing of inferences from primary facts. If the jury is being asked to do that, then the trial judge should give careful consideration to whether the jury would, in all the circumstances, be assisted by a special direction . The trial judge should, at the same time, also carefully consider the risk that a special direction might confuse the jury having regard to the issues which they have to decide, the rest of the evidence in the case, and the other directions which the jury will be given. On this last point I would emphasise that the jury must not be left with the impression that the standard of proof varies depending on whether direct or circumstantial evidence is concerned.

17. Whether to give a special direction is, of course, initially a matter within the discretion of the trial judge, and an appellate court would naturally be slow to interfere with such an exercise of discretion.

Special direction to be given properly if called for

18. In the exceptional circumstances where a special direction on the drawing of inferences is called for and given, then such direction should of course be given properly so that the jury understands that proof of guilt must be beyond reasonable doubt. In this connection, one proper way of directing the jury would be to tell them that no inference is to be drawn against the accused unless it is the only reasonable inference.

19. What Alderson B is reported as having told the jury in Hodge's case (at p.228) was that the case was "made up of circumstances entirely" and that, before they could convict the prisoner, they must be satisfied "not only that those circumstances were consistent with his having committed the act, but that they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person".

20. In Plomp's case Dixon CJ referred (at p.243) to "the ordinary rule relating to circumstantial evidence ... that you cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances". On the same page Dixon CJ went on to refer to another decision of the High Court of Australia, Martin v. Osborne (1936) 55 CLR 367 in which he (then Dixon J) had said (at p.375) that: "In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation". At p.252 in Plomp's case Menzies J referred to the "customary direction where circumstantial evidence is relied upon to prove guilt, that to enable a jury to bring in a verdict of guilt it is necessary not only that it should be a rational inference but the only rational inference that the circumstances would enable them to draw".

21. In this connection, another decision of the High Court of Australia should be mentioned. This is R v. Shepherd (No. 5) (1990) 51 A Crim R 181 where Dawson J said this at p.183:

"The learned trial judge gave the customary direction that, where the jury relied upon circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances: see Hodge's Case (1838) 2 Lewin 227; 168 ER 1136; Peacock (1911) 13 CLR 619; Plomp (1963) 110 CLR 234. Whilst a direction of that kind is customarily given in cases turning upon circumstantial evidence, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt. In many, if not most, cases involving substantial circumstantial evidence, it will be a helpful direction. In other cases, particularly where the amount of circumstantial evidence involved is slight, a direction in those terms may be confusing rather than helpful. Sometimes such a direction may be necessary to enable the jury to go about their task properly. But there is no invariable rule of practice, let alone rule of law, that the direction should be given in every case involving circumstantial evidence. It will be for the trial judge in the first instance to determine whether it should be given."

22. The thinking behind the "only reasonable inference" direction was explained by Lord Diplock when giving the advice of the Privy Council in Kwan Ping Bong v. R [1979] HKLR 1. That was a case involving a jury trial on a count of drug trafficking. Lord Diplock said this at p.5:

"There is no principle in the criminal law of Hong Kong more fundamental than that the prosecution must prove the existence of all essential elements of the offence with which the accused is charged ( and the proof must be 'beyond all reasonable doubt', which calls for a degree of certainty considerably higher than proof on a mere balance of probabilities. The requirement of proof beyond all reasonable doubt does not prevent a jury from inferring, from the facts that have been the subject of direct evidence before them, the existence of some further fact, such as the knowledge or intent of the accused, which constitutes an essential element of the offence; but the inference must be compelling ( one (and the only one) that no reasonable man could fail to draw from the direct facts proved." (Emphasis supplied).

23. There is also what Lord Loreburn LC said on the point in a civil case tried by a judge without a jury. This was in the case of Sweeney v. Coote [1907] AC 221. The Irish Court of Appeal had reversed the trial judge and held that there was no evidence to support the plaintiff's allegation that there had been a tortious conspiracy to injure her in her business and employment. The House of Lords affirmed the Irish Court of Appeal's decision. Lord Loreburn LC said this at p.222:

"In such a proceeding it is necessary for the plaintiff to prove a design, common to the defendant and to others, to damage the plaintiff, without just cause or excuse. That, at all events, it is necessary to prove. Now, a conclusion of that kind is not to be arrived at by a light conjecture; it must be plainly established. It may, like other conclusions, be established as a matter of inference from proved facts, but the point is not whether you can draw that particular inference, but whether the facts are such that they cannot fairly admit of any other inference being drawn from them." (Emphasis supplied).

24. In the murder case of R v. Onufrejczyk [1955] 1 QB 388 at p.394 Lord Goddard CJ, delivering the judgment of the Court of Criminal Appeal, described circumstantial evidence as "evidence of facts which lead to one conclusion, provided that the jury are satisfied and are warned that it must lead to one conclusion only".

25. The above quoted statement in Kwan's case and the statements to similar effect in other cases are undoubtedly correct. But they go to the standard to which the prosecution must prove its case. They do not lay down how the jury must always be directed in order to make them understand how to apply that standard. Of course the jury should not be directed in such a way as to give them an inaccurate understanding of how to apply the standard of proof beyond reasonable doubt. One simple way to avoid that would be to tell them, if they are directed on inferences, that no inference is to be drawn against the accused unless it is the only reasonable inference.

Nine items of evidence

26. Mr Griffiths points to nine items of evidence from which, he submits, the jury might have drawn inferences adverse to the appellant.

27. First, there was the evidence of the injuries to the complainant. From this evidence, it is said on the appellant's behalf, the jury might have drawn the inference that the complainant had not consented to the intercourse.

28. Secondly, there was the evidence of pieces of a hairclip of the complainant's being found under the appellant's bed. From this evidence, it is said on the appellant's behalf, the jury might have drawn the inference that the hairclip had been broken during the violence of non-consensual intercourse.

29. Thirdly, there was the evidence that the complainant had used a piece of plastic or a plastic bag in gathering physical evidence. From this evidence, it is said on the appellant's behalf, the jury might have drawn the inference that she had done so because she had been raped.

30. Fourthly, there was the evidence of the complainant's distress when making a 999 telephone report to the police. From this evidence, it is said on the appellant's behalf, the jury might have drawn the inference that her evidence of having been raped was truthful.

31. Fifthly, there was the evidence of the complainant's distress when she complained of rape to a Woman Police Constable who was one of the officers who responded to that 999 telephone report. From this evidence too, it is said on the appellant's behalf, the jury might have drawn the inference that her evidence of having been raped was truthful.

32. Sixthly, there was the complainant's testimony that she was only joking when she had told a co-worker named Linda that she i.e. the complainant would want 500,000 pesos from the appellant if he wanted anything more than a massage from her. From this evidence, it is said on the appellant's behalf, the jury might have drawn the inference that there had been no plan to blackmail him.

33. Seventhly, there was the evidence consisting of the complainant's tearful demeanour while denying the suggestion made in cross-examination that a proposal by Linda that the appellant be photographed if he indecently assaulted the complainant was part of a plan to blackmail him. From this evidence, it is said on the appellant's behalf, the jury might have drawn the inference that there had been no such plan.

34. Eighthly, there was the evidence of the calendar entries made by the complainant. From this evidence, it is said on the appellant's behalf, the jury might have drawn the inference that the incidents of which she complained took place in the way she alleged.

35. Ninthly and finally, there was the evidence of payment of sums of $300 and $500 by the appellant to the complainant. From this evidence, it is said on the appellant's behalf, the jury might have drawn the inference that the appellant had made these payments because he had done things to the complainant against her will.

The nature of those nine items of evidence

36. Although he was not obliged to warn the jury that it was dangerous to convict in the absence of corroboration, the trial judge chose to do so. He directed the jury that the complainant's testimony was not independently confirmed by other evidence and that it was dangerous to convict on her testimony although they could do so if they were sure that she had told them the truth. This warning did not mean that the jury had to ignore the nine items of evidence.

37. They were fit for the jury's consideration. This was because in forming their view of the complainant's credibility and reliability, the jury had to consider her testimony in the context of the whole of the evidence in the case. And that involved taking account of the possibilities, probabilities and certainties emerging therefrom. I take the words "possibilities, probabilities and certainties" from the advice of the Privy Council delivered by Lord Steyn in Burut v. Public Prosecutor [1995] 2 AC 579. His Lordship said (at p.595 C) that:

"It is important to bear in mind that in deciding on guilt or otherwise a trial court will not usually compartmentalize the evidence. It will make its findings of credibility and reliability in respect of particular witnesses against the possibilities, probabilities and certainties emerging from the whole body of evidence before it."

That applies to the testimony of all witnesses, whether for the prosecution or the defence, although of course the jury can convict only if they are ultimately sure of the accused's guilt.

38. In addition to the nine items of evidence to which Mr Griffiths has pointed, there was the fact of the complainant's complaint to the police. The trial judge correctly directed the jury on this complaint. He told them that they could have regard to that complaint in deciding whether they believed the complainant. But, he told them, they could not treat the contents of the complaint as evidence of what actually happened.

39. Citing the decision of the Court of Criminal Appeal in R v. Baskerville [1916] 2 KB 658 and the decision of the House of Lords in Director of Public Prosecutions v. Hester [1973] AC 296, the High Court of Australia said in R v. Doney (1990) 171 CLR 207 at p.211 that: "It is not necessary that corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt". That is true also of evidence to be taken into account in assessing the credibility and reliability of a prosecution witness.

40. The jury was entitled to consider all of the other evidence when assessing the complainant's credibility and reliability. If they found that her testimony was consistent with such other evidence and satisfactorily accounted for the same, then that could legitimately dispose them towards feeling sure that her testimony was truthful and accurate.

Any danger of misuse

41. Having dealt with the use to which the jury could put the other evidence, I turn to consider whether there is any real danger that they put it to some other use.

42. As has been seen, although this was not really a case calling for a direction on the drawing of inferences, the trial judge did refer in his summing-up to the drawing of inferences. I think it likely that his intention in doing so was merely to explain to the jury his direction that they must not speculate. But what matters is the effect on the jury's mind of what was said, not the intention with which it was said. Moreover, prosecuting counsel had said to the jury in his opening speech that they could draw inferences provided that the inferences were reasonable and based on established facts. Then the trial judge told the jury that they could draw inferences. But, as the Court of Appeal said, his direction to them on inferences "contains no words to the effect that an inference can only be drawn if it is irresistible, or one that no reasonable man could fail to draw".

43. Is that material in the circumstances of the present case? As it happens, the only evidence on which the jury could be satisfied beyond reasonable doubt that the complainant did not consent was her own testimony. So the question is whether the other evidence was left to the jury in such a way as to create a real danger of their misusing it. In other words, was it left to them in such a way as to create a real danger that they would have thought that it could, on its own, give rise to an inference that the complainant had not consented?

44. In his summing-up the trial judge referred to the complainant's injuries, her emotional and tearful demeanour, the hairclip, the plastic bag, the $300, the $500 and the calendar. But apart from the injuries, none of those matters received more than a passing reference from the trial judge. He detailed the injuries. But he pointed out that the doctor who gave evidence about the injuries, having said that they were consistent with the complainant's allegation of rape, then conceded under cross-examination by defence counsel that they were also consistent with the defence case. It was the defence case that the injuries could have resulted from rough albeit consensual sex or have been self-inflicted.

45. It is true that the trial judge did not give the jury much guidance on what use they could make of the other evidence. But he certainly never spoke of drawing inferences when dealing with the other evidence. And his general directions to the jury on the burden and standard of proof were accurate.

46. I am satisfied that the way in which the trial judge himself dealt with the other evidence did not create any real danger of its misuse by the jury.

47. But it remains necessary to consider how prosecuting counsel (not among the counsel appearing before us) dealt with the other evidence in his closing speech. This is particularly so because the trial judge told the jury in his summing-up that it was open to them to agree with and adopt what either side's counsel had said in speech.

48. In his closing speech, prosecuting counsel referred to the other evidence, but dwelled only on the injuries and the hairclip. And as to the hairclip, his point was not that it had been broken. Instead he suggested, first, that the complainant would not have left the hairclip, which was a rather large one, on at the back of her head if the sexual intercourse was a matter in which she had a choice. Secondly, he suggested that the complainant would not have kept her hairclip on if she had been a seductress. He suggested that a seductress would have removed her hairclip to make herself more seductive by reason of flowing hair. What if anything the jury would have made of those suggestions it is impossible to say.

49. Be all of that as it may, I am satisfied that there is no real danger that the jury would regard prosecuting counsel's closing speech as an invitation to treat the other evidence as giving rise, standing alone, to an inference of non-consent. Indeed the contrary was made clear by this passage in prosecuting counsel's closing speech: "But don't assess the credibility of a witness solely on your observation of his or her performance in the witness-box. Take it into account with all the other evidence". That was the way in which prosecuting counsel led up to his treatment of the other evidence.

50. In my view, there is no real danger that the other evidence was misused by the jury. What the trial judge said about the drawing of inferences was not material in the circumstances. It did not give rise to substantial and grave, or indeed any, injustice.

Accepting part of a witness's testimony

51. I turn now to the other respect in which it is contended that there was a departure from accepted norms to the appellant's disadvantage. In dealing generally with the testimony of witnesses, the trial judge gave the jury this direction:

"It is open to you to rely on the whole of a witness's evidence or you may reject a witness's evidence entirely. It is also open to you to accept some parts of a witness's evidence but not others".

52. As to the reliability of the complainant's testimony, the defence drew the jury's attention to what it urged were serious discrepancies in her account. The discrepancies were both (i) between what she said out of court and what she said in the witness-box and (ii) between what she said at different times while in the witness-box.

53. Mr Griffiths submitted that where a witness's credibility is important to, or at least where it is crucial to, the prosecution's case, a trial judge ought not simply to direct the jury that they may accept some parts of a witness's testimony while rejecting other parts of it. He ought, Mr Griffiths submitted, to add a cautionary note to the effect that if they disbelieved a prosecution witness's testimony on anything material, then they should be particularly slow to accept that witness's evidence on anything else material. Mr Griffiths has pointed to instances, both here in Hong Kong and in England, in which trial judges have done just that. It may be of considerable assistance to the jury to receive such a cautionary note, and I do not discourage trial judges from giving the same.

54. That having been said, I feel unable to say that giving a cautionary note of this kind has become the norm either generally or even in a case like the present. I do not rule out the possibility that there will be cases in which the circumstances are such that whether such a note of caution had been sounded by the trial judge would make the difference between whether a conviction is to be quashed or affirmed. But I am satisfied that that is not the situation in the present case.

Conclusion

55. Mr Griffiths has skillfully and forcefully urged everything that can be said in support of this appeal. But upon a careful consideration of all his arguments, I have, for the reasons which I have given, come to the conclusion that this conviction cannot be disturbed. Accordingly I would dismiss this appeal.

Mr Justice Chan PJ:

56. I agree with both the judgment of Mr Justice Bokhary PJ and the judgment of Sir Anthony Mason NPJ.

Mr Justice Ribeiro PJ:

57. I agree with both the judgment of Mr Justice Bokhary PJ and the judgment of Sir Anthony Mason NPJ.

Sir Anthony Mason NPJ:

58. I agree with Mr Justice Bokhary PJ that this appeal should be dismissed.

The appellant's case on the trial judge's direction on inferences

59. The foundation of the appellant's case is the instruction given by the trial judge, shortly after the commencement of the summing-up when he said:

"You must decide this case only on the evidence which has been placed before you. There will be no more evidence. If you think that there is a gap in the evidence, or there is a lack of evidence, you must accept that and make your decisions in its absence.

You are entitled to draw inferences from the evidence. That is, come to some common sense conclusion based on the evidence which you accept but you may not speculate about what evidence there might have been or in any way allow yourself to be drawn into speculation."

60. The appellant's case is that this was an erroneous direction in law because it led the jury to understand that the drawing of inferences adverse to the appellant was simply a matter of using commonsense. What the judge should have instructed the jury, according to Mr Griffiths SC for the appellant, was that no inference can be drawn against an accused unless it is the only reasonable inference. According to Mr Griffiths, the direction as to inferences was a matter of critical importance because there were no less than nine items of evidence from which inferences might be drawn adverse to the appellant, notably the complainant's injuries and the broken hair clip.

Directing a jury as to proof by inference

61. The appellant's major proposition, as stated in his written case, is that where there is evidence from which a jury can draw inferences adverse to the accused, it is a legal requirement that they be directed to the effect that no inference can be drawn against an accused unless it is the only reasonable inference. This requirement has been called "the rule in Hodge's Case" (1838) 2 Lewin 227, 168 ER 1136. The judgment of Lord Diplock in R v. Kwan Ping-bong [1979] HKLR 1 at 5 was cited as authority for the proposition. His Lordship there said:

"The requirement of proof beyond all reasonable doubt does not prevent a jury from inferring, from the facts that have been the subject of direct evidence before them, the existence of some further fact, such as the knowledge or intent of the accused, which constitutes an essential element of the offence; but the inference must be compelling - one (and the only one) that no reasonable man could fail to draw from the direct facts proved."

The correctness of this statement is incontrovertible. But it goes to the standard of proof in relation to the drawing of an inference of a fact constituting an essential element in the offence charged, not to what the law requires by way of instructions to the jury in a case in which the prosecution depends upon circumstantial evidence or the drawing of inferences.

62. In an earlier decision, McGreevy v. Director of Public Prosecutions (1973) 57 Cr App R 424, the House of Lords rejected the broad proposition for which the appellant contends. The headnote, which accurately states the effect of the decision, is in these terms:

"In a trial in which the case for the prosecution, or any essential ingredient thereof, depends as to the commission of the act wholly on circumstantial evidence, no duty rests upon the judge, in addition to giving the usual direction that the prosecution must prove the case beyond reasonable doubt, to give a further direction in express terms that this means that they must not convict on circumstantial evidence unless they are satisfied that the facts proved are (a) consistent with the guilt of the defendant and (b) exclude every possible explanation other than the guilt of the defendant."

63. Lord Morris of Borth-y-Gest, with whom the other members of the House of Lords agreed in McGreevy, considered that the existing law did not require the giving of such a direction. Further, his Lordship said (at 437):

"To introduce a rule as suggested ... would, in my view, not only be unnecessary but would be undesirable. In very many criminal cases it becomes necessary to draw conclusions from some accepted evidence. The mental element in a crime can rarely be proved by direct evidence. I see no advantage in seeking for the purposes of a summing-up to classify evidence into direct or circumstantial, with the result that, if the case for the prosecution depends (as to the commission of the act) entirely on circumstantial evidence (a term which would need to be defined), the Judge becomes under obligation to comply with a special requirement when summing up."

His Lordship considered that the form of any particular direction stems from the requirement that proof must be beyond reasonable doubt and that the form in which this general requirement is emphasised is best left to the discretion of the trial judge whose paramount responsibility is to tailor the directions to the particular circumstances of the case. His Lordship did, however, acknowledge that a trial judge might, in particular cases, consider it appropriate to assist the jury by giving a special direction in the form contended for (at 435).

64. In other jurisdictions, the same view has been taken. In Grant v. R (1975) 11 ALR 503, the High Court of Australia held unanimously that there is no rule of law or rule of practice that a jury must be told that the evidence must be not merely consistent with the guilt of the accused but inconsistent with his innocence, in every case in which the prosecution relies upon circumstantial evidence. The Court acknowledged, however, that it would be necessary in some such cases for such a special direction to be given so that the jury may properly understand their obligation to be satisfied beyond a reasonable doubt (at 504). The same approach has been adopted by the Supreme Court of Canada (Regina v. Cooper (1977) 34 CCC (2d) 18).

65. Although trial judges in Hong Kong from time to time have given a special direction to juries in cases in which the prosecution has relied upon circumstantial evidence or inferences to establish the accused's guilt or to prove an essential element in the offence charged, the courts in Hong Kong have always accepted the principle enunciated in McGreevy as an authoritative and correct statement of the law. See, for example, Lam Tsz-wah v. The Queen [1984] HKLR 54; The Queen v. Yu Wai-chun, Criminal Appeal No. 179 of 1987, 30 October 1987; The Queen v. Pang Shun-yee [1988] 2 HKLR 146; The Queen v. Chan Ho-kuen [1988] 2 HKLR 334; The Queen v. Tsao Wing-tak [1989] 1 HKLR 285; R v. Chua Michael [1993] 2 HKC 35.

66. It follows that the appellant's major proposition must be rejected. There is no rule of law or rule of practice that requires the giving of a direction to the jury in terms of Lord Diplock's statement in Kwan Ping-bong in cases in which the prosecution is relying on circumstantial or inferential evidence to establish the accused's guilt or an essential element in the offence charged. No distinction in principle can be drawn in this respect between cases in which the prosecution is wholly circumstantial and cases in which the prosecution seeks by inference to establish an essential element in the offence.

67. The appellant's alternative proposition is that the instant case called for a special direction on the ground that the prosecution was based on inferences, most notably the injuries (which consisted mainly of bruising) and the broken hair clip, and that the jury were invited by counsel for the prosecution and the trial judge to draw inferences, particularly from these two matters, adverse to the appellant. As will appear, I do not consider that this was a case involving proof by inference or that the jury was invited to engage in fact finding by inference. I use the expression "proof by inference" and "fact finding by reference" in order to exclude other less exact uses of the word "inference" which are sometimes employed in connection with the assessment of the reliability of the testimony of a witness.

68. Before proceeding to that aspect of the case, I should say something about the circumstances in which a special direction, in the sense already explained, will be appropriate. The giving of such a direction is, of course, initially a matter within the discretion of the trial judge. A trial judge should give careful consideration to giving such a special direction in cases where the jury is asked to draw inferences from primary facts and the giving of the direction involves no risk of confusing the jury having regard to the nature of the issues and to the directions otherwise to be given to the jury.

69. The risk of confusion is obviously greater in those cases in which the prosecution is relying on both direct and inferential evidence to establish guilt. Where both direct and inferential evidence are directed to the proof of guilt or of a particular fact, the jury should not be asked to compartmentalise the evidence. As Lord Steyn noted in Burut v. Public Prosecutor [1995] 2 AC 579, Lord Steyn said (at 595):

"... in deciding on guilt or otherwise a trial court will not usually compartmentalise the evidence. It will make its findings of credibility and reliability in respect of particular witnesses against the possibilities, probabilities and certainties emerging from the whole body of evidence before it."

Where both direct and inferential evidence are directed to the proof of guilt or a particular issue, the combination of the two will in most cases have a probative force which they will lack if considered separately.

70. Another matter to be taken into account is that the giving of the special direction, unless care is taken, may tend to suggest that different standards of proof apply to direct and inferential evidence.

71. That having been said, the special direction serves to emphasise and to elucidate the general requirement for proof beyond reasonable doubt in its application to circumstantial and inferential evidence. I agree with Mr Saw SC that the Australian case of Plomp v. The Queen (1963) 110 CLR 234 (where the prosecution case was wholly circumstantial) was one in which it was appropriate, desirable and necessary to give a special direction. I note that it was there described as "the customary direction" (at 252) and that a similar direction was likewise described in James William Shepherd (No. 5) (1990) 51 A Crim R 181 at 183.

The nature of the prosecution case

72. Although in his opening address, counsel for the prosecution told the jury they were entitled to draw inferences provided they were reasonable and based on established facts, he did not suggest that the prosecution was seeking to establish any relevant facts by inference. In his closing address, counsel for the prosecution reviewed the evidence given by the complainant and invited the jury to accept her as a witness of truth, seeking to explain inconsistencies in her evidence. He made the point that she reported the rape within minutes of the appellant leaving the house, an act inconsistent with the defence case of intended blackmail.

73. The appellant submits that counsel for the prosecution, in his closing references to the complainant's injuries and the hair clip, invited the jury to draw an inference that the sexual intercourse was non-consensual. Counsel asked the jury to focus on the injuries and the hair clip. He said that the pathologist's evidence was that the injuries were consistent with her allegations and did not fit the pattern of self-inflicted injuries. Of the hair clip, he said it was relatively large and suggested that the complainant would not have engaged in sexual intercourse with the hair clip in the back of her head. He made no reference to the fact that the hair clip was broken. He did not ask the jury to find, independently of the complainant's evidence, that there was a struggle in which injuries were inflicted on the complainant and the hair clip was broken.

74. In looking at the closing address, it is necessary to bear in mind that there had been a discussion between the trial judge and counsel, in the absence of the jury, seemingly before the commencement of addresses, though this is not clear. In this discussion, the judge and counsel had agreed that there was no corroboration of the complainant's evidence.

The trial judge's directions to the jury

75. After directing the jury on inferences in the terms already mentioned, the trial judge correctly directed them on the burden and standard of proof, and on dealing with inconsistencies in the evidence of the complainant and inconsistencies between her evidence and her out-of-court statements. He then instructed the jury on the effect of statements made by the complainant shortly after the alleged rape to a friend Karen and to the police and statements made by the complainant to the police in interviews. His Lordship went on to state the elements of the offences charged and what the prosecution had to prove. He then described the complainant as obviously "the key witness" and went through her evidence in some detail. In doing so, he traversed the evidence relating to the nine items of evidence which, according to the appellant's case, might, in the minds of the jury, have generated an inference adverse to the appellant. He dealt with the inconsistencies in her evidence and in statements to the police.

76. The trial judge then directed the jury about the danger of convicting on the complainant's uncorroborated evidence. He said:

"Experience has shown that people who say that sexual offences have been committed against them sometimes, and for a variety of different reasons, tell lies. Such false allegations are easy to make and frequently very difficult to challenge even by an entirely innocent person. So it is dangerous to convict on the evidence of Miss Valparaiso alone, unless it has been independently confirmed by other evidence.

Independent evidence is evidence which has not come from Miss Valparaiso and which confirms in some important respect that the crimes of rape or indecent assault have been committed by the defendant. It would be my task at this point to point out to you what evidence there is from other sources which independently confirms Miss Valparaiso's evidence. In this case, however, there has been none. Evidence such as her complaint to the police that she had been raped, whilst it is relevant and admissible evidence to the limited extent about which I directed you earlier, is not evidence which independently confirms the allegation of rape simply because it is not from an independent source; it is from her.

Now, having given you that important warning, despite the absence in this case of any evidence which could independently confirm the allegations made by Gina that the defendant raped her or indecently assaulted her five times, provided you bear in mind the danger of convicting without it, you may rely on her evidence alone if you are sure that she has told you the truth."

77. The trial judge referred to the pathologist's evidence and told the jury that the pathologist, after saying that the appellant's injuries were consistent with the complainant's allegations, conceded in cross-examination that they were also consistent with the defence case. The trial judge then went through the appellant's evidence.

78. Considered in the light of the nature of the prosecution case, the way in which it was presented and the summing-up by the trial judge, the critical question for the jury was whether they believed the complainant. At no time was it suggested to the jury by counsel or the trial judge that there was evidence, taken independently of the complainant's evidence, from which they could draw an independent inference that sexual intercourse was non-consensual.

79. The jury was instructed in clear terms that there was no corroboration, no "evidence which could independently confirm" her allegations. There is no reason to suppose that the jury failed to understand what this meant. And they were told in unequivocal terms that it was therefore dangerous to convict relying on the complainant's evidence, though they could take that course if they accepted the complainant as a witness of truth.

80. The consequence of the direction on no corroboration was not that the jury should disregard the nine items of evidence. The essence of corroborative evidence is that it "confirms", "supports" or "strengthens" other evidence in the sense that it "renders [that] other evidence more probable" (Reg v. Kilbourne [1973] AC 729 at 758, per Lord Simon of Glaisdale; Doney v. The Queen (1990) 171 CLR 207 at 211) by confirming or supporting it (see also Reg v. Hester [1973] AC 296 at 315, per Lord Morris of Borth-y-Gest).

81. The absence of corroboration meant that the jury was bound to approach the complainant's evidence on the basis that it lacked any independent confirmation or support. However, in assessing the complainant's credibility and reliability, the jury had to view her evidence in the light of the whole of the evidence, taking account of the possibilities, probabilities and certainties arising from it, to use the words of Lord Steyn. In making this assessment, the jury was entitled to look to the nine items of evidence, including the injuries and the hair clip and decide whether the complainant's evidence was consistent with them and satisfactorily accounted for them. There is no basis whatsoever for concluding that these matters should have been excluded from the jury's consideration.

82. Particular mention should be made of the complainant's complaint to the police. The trial judge correctly directed the jury that they could have regard to the making of the complaint in deciding whether they believed the complainant, although they could not treat the contents of the complaint as evidence of what actually happened.

83. Accordingly, there was no misdirection by the trial judge because the case did not involve proof of a relevant fact in issue by inference. For that reason the direction given on inferences at the commencement of the summing-up was not entirely appropriate. No doubt his Lordship was seeking to counsel the jury against speculation and conjecture. There was no need to link that instruction to inference. But the instruction as given could not have misled the jury. Likewise, his Lordship, having given the direction on no corroboration might have told the jury what use they could make of the evidence apart from the complainant's evidence. The omission to do so involved no error of law or possibility of miscarriage.

The appellant's case on the trial judge's failure to caution the jury about the complainant's evidence

84. This argument should be rejected for the reasons given by Mr Justice Bokhary PJ.

Conclusion

85. I would dismiss the appeal.

Chief Justice Li:

86. The Court unanimously dismisses this appeal.