R. v. KWONG KIN HUNG

IN THE COURT OF APPEAL

1994, No. 1
(Criminal)

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J U D G M E N T

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Macdougall, V.-P. and Liu, J.A.:

1. On 6 September 1993, after a trial before Leonard J and a jury, the applicant was convicted on two counts of rape and was sentenced to concurrent terms of 12 years' imprisonment on each count.

2. The evidence upon which the prosecution relied was that two sisters, who testified that the offences occurred on or about 9 September 1992 in Yuen Long. The applicant elected not to give or call any evidence.

3. On or about 9 September 1992, the elder sister, PW1, came to be in a flat where she found her younger sister, PW2. How she was brought to the flat, when the applicant arrived at the flat, the sequence of events before, at the time of and after the alleged rapes of the sisters were rather confusing.

4. There were undoubtedly contradictions in the testimony given by the sisters. These contradictions existed in each sister's evidence internally, between that evidence and statements which each gave to the police, and in the evidence which they gave when compared one with the other.

5. It is not necessary to do any more than recite the following contradictions upon which reliance is placed in support of the contention now made on behalf of the applicant that the convictions are unsafe and unsatisfactory in that the jury acted perversely in relying on the uncorroborated evidence of the sisters and that there must therefore be a lurking doubt as to the guilt of the applicant:

(1) How PW1 came to be in the premises in which she said that she was raped;

(2) The time at which PW1 arrived at the premises;

(3) The initial circumstances in the premises;

(4) Who took the elder sister to the premises;

(5) Contradictions in the various accounts of the alleged assaults on the elder sister;

(6) Inconsistencies between the sisters as regards an alleged incident concerning knives;

(7) Inconsistencies between the sisters on the demeanour of the applicant;

(8) Inconsistencies between the sisters regarding whether they had been given brandy or some similar substance to drink;

(9) Inconsistencies between the sisters as to whether or not they were told to undress;

(10) The evidence of PW1 that when she was lying with PW2 on the same bed she said that when the applicant molested PW2 she, PW1, was unable to see exactly what he was doing or whether PW2 was wearing any clothing;

(11) The evidence of PW1 that the applicant had touched her breasts, when she did not advert to that detail in her statement to the police made some 15 months earlier;

(12) The testimony of PW2 that she was lying on the bed while PW1 was being molested for fifteen minutes whereas PW1 testified that at the time when the applicant had his penis inside her PW2 was not present in the room.

(13) PW1's evidence that she had had consensual intercourse with the applicant on an occasion prior to the rape but was unable to recall when and where that consensual intercourse had occurred;

(14) Failure of the sisters to complain to the police who came to the premises shortly after the alleged rape;

(15) PW2's failure to complain of rape when a doctor who was examining her injuries asked her whether she had been assaulted;

(16) PW1's evidence in chief that she had gone to the Tuen Mun Hospital with PW1, Ming Chai and another unknown boy contrasted with her statement to the police made 15 months earlier in which she said that she had gone there with Hing Chai and Ah Ming.

(17) Failure to complain to the police at the hospital during their questioning of the applicant.

6. Mr Oderberg, who appeared for the applicant in this court but not in the court below, frankly conceded that the judge very fairly highlighted to the jury all of the inconsistencies and contradictions to which we have referred. Indeed, the judge referred to some of these as being "curious", "a startling omission", "substantial" and "fundamental". In particular, he made it plain that he thought that it was very curious that PW1 did not see what the applicant was doing when he was allegedly molesting PW2 on the same bed as that on which PW1 was lying.

7. The judge gave the following direction to the jury:

"In the case of each of the witnesses whom you have heard and seen, consider whether she is telling you the truth and giving you an accurate account. In the case of each witness you may accept or reject all or some of what she has told you. Having seen the witnesses giving evidence in this court you have, as counsel have told you, had an opportunity to observe their demeanour. That is a factor which can help you to decide how much weight to put on the evidence of a particular witness.

When you are attempting to assess the credibility of an individual witness, you are entitled and expected to make use of your experience of human nature and of life, especially of life in Hong Kong. You are also expected to use your common sense."

8. This was a very clear direction which properly focussed on the jury's experience of human nature and of life in Hong Kong. Cultural differences between different races of people produce very different reactions and modes of behaviour in conditions such as those which were alleged to have occurred in the present case. In our experience it is not at all unusual in Hong Kong for rape victims to be most reticent in reporting the crime and in giving details of it to the police and subsequently in court. It is a common occurrence that this reticence results in omissions and inconsistencies. The assessment of the sisters' credibility was therefore a task which a jury was eminently fitted to perform.

9. On the material before us we are not persuaded that their acceptance of the sisters' evidence was perverse. Indeed, since the defence case was that the sisters had concocted the case against the applicant, it would not have been unreasonable for the jury to conclude that, if that were so, they would have got their heads together and have produced an almost identical account of the central events in their fabricated story, and that therefore the inconsistencies in their respective testimonies regarding these matters were more indicative either of genuine forgetfulness of traumatic events that had occurred some fifteen months before the trial and which, if they were telling the truth, they would undoubtedly have wished to banish from their minds, or of confusion brought about by the trauma which they had undergone.

10. Mr Oderberg's second complaint was that "the judge erred in law in directing the jury that the applicant was putting the Crown to proof on all issues but that the question of consent was not in issue thereby removing from the jury the right to decide whether or not the alleged victims consented to intercourse if they found that intercourse with the applicant had occurred."

11. This complaint relates to the following passage in the summing-up:

"In the present case, it has never been suggested by the defence that on the night in question, the defendant had intercourse with either girl with her consent or that the defendant believed that she consented. This is a case where the defendant, as he was entitled to do, has put the prosecution to the proof of every element of the crime which is alleged against him in each count."

12. The first sentence was a perfectly accurate factual statement. It did not imply that the issue of consent had somehow been resolved or that it was not one for the jury to decide. We do not accept Mr Oderberg's submission that, the jury might unwittingly have been left with the impression that, once they found that intercourse had occurred, they need not or should not go on to consider the issue of consent. Immediately prior to the direction of which complaint is made the judge specifically directed the jury on the issue of consent. He said:

"On the issue of consent, the prosecution must satisfy you beyond reasonable doubt that at the time of the intercourse, the alleged victim did not consent to it. If you are not so satisfied, it will be your duty to acquit the accused, and unless you are sure that intercourse took place, you won't even have to consider that question.

If you are satisfied beyond reasonable doubt that the alleged victim did not consent, that is not the end of the matter. You need to go on to consider the state of mind of the accused person because the prosecution must satisfy you beyond reasonable doubt that at the time when he had intercourse, the accused knew that the girl did not consent or was reckless as to whether she consented or not." and

"If an accused person had genuinely believed that the woman did consent to sexual intercourse and I stress 'consent' and not 'submit', then even if he had been mistaken in that genuine belief, he would be entitled to be acquitted because he would not to have had the necessary mental element for the offence of rape to have taken place. If you felt you needed to consider that question, you would have to consider all relevant matters including the presence or absence of any reasonable grounds for such a belief. You would have to ask yourselves were there any grounds for a genuine belief that this lady was consenting."

13. There is no merit whatever in this ground of appeal.

14. The third ground of appeal was that "the judge erred in failing to direct the jury that the fact of a very late complaint of rape by the alleged victims is relevant to their assessment of the alleged victims credibility".

15. However, the judge gave this direction to the jury:

[There was] "no complaint to the police when they came to the flat following the injuries of the defendant and his friends, no complaint to the police at the hospital when the police were there, and now after the girls leave, no complaint to POON about the rape - nothing said at all, and no complaint by PW2 to her mother at the family home about the fact that she had been raped.

You have heard the explanations. PW1 said she didn't tell POON about the rape, but she did not give a specific reason, PW2 told you that PW1 had told her not to mention it to POON lest he became irritable. As far as the absence of report to her mother was concerned, PW2 said that it would upset her parents if she mentioned the rape, but of course it was mentioned once the report to the police was made.

Now the point in sexual cases about what we call a recent complaint is, that if a girl who has been raped, at the first opportunity complains about it to someone, then later on it is not easy to suggest that it is a recent invention on her part. It is an allegation that she made at the first opportunity, and that shows that she has been consistent. That is the only reason a jury would hear about a recent complaint.

So where there has been no recent complaint then, of course, the question arises whether there has been a recent invention, because you may think that most girls would tell someone about it, even if they did not tell the police; and you would think that most girls might tell their boyfriend or their mother about it, but that is entirely a matter for you to decide, bearing in mind the cultural and social background of these girls."

16. In our view the jury could have been in no doubt that the failure by the sisters to make an early complaint bore on the issue of their credibility. There is no substance in this ground.

17. For these reasons we would refuse the application for leave to appeal against conviction.

Penlington, J.A. :

18. It has been said in this court on many occasions that the verdict of a jury should not be interfered with lightly R. v. Tang Wai-tong (1979) HKLR 479 per Roberts C.J. at 486-487. There the court considered the authority of R. v. Cooper 53 1969 Crim. App. R. 82 and what Widgery L.J. said at 86. Having noted that the passing of section 2(1) of the Criminal Appeal Act in 1966 gave the Court of Appeal power to interfere with a jury verdict reached on the basis, as here, of an unimpeachable summing-up, he considered what the new test should be. He said this:

"However, now our powers are somewhat different, and we are indeed charged to allow an appeal against conviction if we think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. That means that in cases of this kind the Court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the Court experiences it."

Section 2(1) of the Criminal Appeal Act 1966 is identical with s.83(1)(a) of the Criminal Procedure Ordinance. While clearly, as Roberts C.J. said in Tang Wai-tong "the lurking doubt formula must be exercised with great caution", the section provides that the court "shall" allow an appeal if it considers the conviction is unsafe.

19. I am also very conscious that here the jury had the great advantage not only of hearing the witnesses but of doing so in their own language. However having considered the background of this case, the quite extraordinary inconsistencies in the evidence of the two main prosecution witnesses and bearing in mind the test propounded by Widgery L.J. in Cooper, I am driven to the conclusion that the verdicts are unsafe. The inconsistencies are graphically set out in the trial judge's summing-up and summarised in the judgment of Macdougall V.P. and Liu J.A. However I set out in more detail the ones which seem to me to be the most important.

1. PW1, Tam Pui-fan, in evidence she said she went to the flat with two boys, Cheung Wai-to and Fong Hui-lun but the applicant went off in another taxi and did not come with them. In her police statement she had said she went to the flat with the applicant, one Hung Chai and another person she called "chicken". The applicant rang the bell and Cheung Wai-to was already there as he answered the door. She had said in her statement that she went sometime after 5 p.m. She conceded in cross-examination it was in fact after midnight and the applicant did not go with her nor was he there when she arrived. That was completely contradicted by her sister, Tam Pui-yan (PW2) who said PW1 came with the applicant between 7:30 and 8 p.m.

2. PW1 said when she arrived at the flat she found her sister asleep on a bed with a girl Ah Mei. She could not wake her so went to sleep beside her. That in itself was extraordinary but it was also contrary to her statement. She went on to say that when awoke she went to the bath-room and then was taken to the living-room. The applicant was not there and again when challenged, as she had said in her statement that the applicant had taken her to the flat, she said "I can't remember my statement." PW2's evidence was that her sister arrived only ten minutes after she did so she could not possibly have been so deeply asleep she could not be wakened. PW2 in fact specifically said she sat on a sofa with "Ah Mei" until PW1 arrived with the applicant. PW1's explanation for the discrepancies in her statement and evidence in relation to this was "so many things happened, I can't tell one event from another."

3. PW1 said nothing about knives being produced by the applicant or his companions. PW2 however gave a graphic account of one Fung Hoi-lun getting knives from the kitchen, and throwing them down in front of both PW1 and PW2; as the judge said, it seems extraordinary that if that incident happened PW1 did not remember it.

4. PW1 said the applicant gave her and PW2 brandy after which he lay down beside them for about an hour. PW2 did not say so and indeed specifically said they were not given anything to drink.

5. When both PW1 and PW2 were lying together on a mattress and both were allegedly raped in succession by the applicant, PW2 being the first. PW1 said she could not see if her sister had any clothes on and did not see her sister being molested but did hear her say "don't". PW2 in turn, having, she said, been raped by the applicant, did not see PW1 also being molested though she did hear her also call out "don't, don't". PW1's evidence was that though unwilling to have intercourse with the applicant she said nothing to indicate that. It is almost beyond belief that two sisters are lying on a bed, each is raped by the same man yet neither can say what, if anything the other was wearing or can give any account of the offence allegedly committed on her sister.

6. PW1 said in evidence the applicant made her have oral sex with him. There was nothing about that in her statement. She said she forgot about it then but remembered 15 months later.

7. PW1 agreed she had had consensual sex with the applicant previous to the alleged rape. She could not remember where or when, but said she had only known him for half a month before the incident.

8. PW1 and PW2 went to the Tuen Mun Hospital shortly after the alleged rape and both said they visited the applicant who was there. That in itself is, as the judge said, "rather bizarre" but what was even more remarkable was that PW1 in her statement said she went with a person called Ming Chai and another boy whose name she did not know whereas in evidence she said she went with Hing Chai and Ah Ming. Neither was apparently Ming Chai and when asked about the inconsistency she said "she didn't quite recall". PW1 was questioned by the Police at the hospital about the events in the flat but said nothing about being raped. She said she saw the applicant being questioned by the Police but had then been detained in a toilet for an hour! There was nothing about that in her statement.

20. This was a case where no complaint was made by either alleged victim to parents, relatives or the police (who were at the flat and at the hospital) until two months after the alleged offence although there was every possible opportunity to do so. PW1 said she went to a restaurant afterwards with her sister and a boy called Poon who was PW1's boyfriend. No mention of the rape was made to Poon as PW1 said it would "make him irritable"!

21. Where a complaint of a serious offence is made two months after the alleged events I consider that the evidence must be examined with great care. One consequence of that delay was that there was, as the judge said, no helpful medical evidence. I take into account that young girls in Hong Kong who have been the victim of a sexual assault can behave in a totally illogical way and fail to make an early complaint because of fear or shame. Here Mr Saw submits that while there were clearly substantial discrepancies in the victim' evidence they both agreed on the one vital fact - they were both raped in succession on the same bed by the applicant. This court must be very reluctant to interfere with what was essentially a jury question; were they satisfied beyond reasonable doubt that the girls had told them the truth about the alleged rapes. It is of course quite correct that the evidence about other matters is only peripheral to that but if the main prosecution witnesses are as totally inconsistent about those other events as there were here I do not see how can a reasonable jury could still be satisfied beyond doubt as to the actual rapes. The judge gave the jury a full and impeccable direction on the inconsistencies with which there can be no complaint. They were correctly told that everything depended on the credibility of the complainants. Their evidence was uncorroborated but the jury could convict if satisfied they were telling the truth. I am unable to see how a reasonable jury could have been satisfied beyond reasonable doubt that, although on so many other important matters their evidence was contradictory with each other and with their statements, they were telling the truth about the alleged rapes. In view of the judge's comment on the inconsistencies and contradictions in the evidence of PW1 and PW2 it was perhaps surprising that apparently no submission was made that the case should not go to the jury - or that the judge did not come to that conclusion himself. It may well be however that he was concerned with the apparent direction in the judgment of Lord Lane in Galbraith [1981] 1 WLR 1039 where, having said that where the prosecution evidence, taken at its highest, is such that no jury properly directed could convict, the judge should stop the case, went on, at P1042, "where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witnesses reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury". See also Doney (1990) CLR 157.

22. While that dicta has been criticised following the subsequent cases which have become so well known as the "Birmingham Six" and the "Guildford Four" it does seem that the trial judge's discretion to direct an acquittal is very limited whereas the Court of Appeal is, as was said in Cooper, clearly charged by the legislation to interfere if the evidence is such that the verdict is considered by them to be unsafe.

23. I am reluctant to disagree with the opinion of Macdougall, V.P. and Liu, J.A. both judges with great experience in particular with the environment of Hong Kong but in answering the question set out by Widgery, L.J. in Cooper, I do have a lurking doubt here and I do regard these convictions as unsafe. I would allow the application and the appeal.