HKSAR v. HUNG WAI TAK

CACC 308/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 308 OF 1999

(ON APPEAL FROM HCCC 286 OF 1998)

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

Introduction

1. On 30 April 1999, the Applicant was convicted of rape following an eight-day trial before Nguyen J and a jury. He was sentenced on 20 May 1999 to five years' imprisonment. The Applicant now seeks leave to appeal against conviction. The sole issue at trial was concerned with whether consent had been given to the act of sexual intercourse.

Grounds of appeal

2. Mr Macrae SC, who did not appear in the court below, advanced on the Applicant's behalf what were essentially two grounds of appeal.

3. In the first of these grounds, it was submitted that this court could realistically conclude that a lurking doubt existed as to the validity of the conviction. The uncorroborated evidence of the victim (PW1) was described as inherently weak, improbable, unreliable and inconsistent. Mr Macrae focused much of his argument in this regard upon what he suggested were the unusual features of the rape itself; the behaviour of PW1 after the rape which he submitted was inconsistent with her allegation; the lapse of four and a half days before PW1 made any complaint to anyone despite the opportunities open to her on earlier occasions; PW1's false evidence in relation to her financial affairs; the strong testimony given by the Applicant and the support for parts of his account which was provided by the evidence of three defence witnesses.

4. The second ground of complaint, set out in grounds 2 and 3 of the Perfected Grounds of Appeal, was that the judge had erred in ruling that the evidence given by PW2 as to 'recent complaint' was admissible. Later in the trial, when summing up to the jury, Mr Macrae described the judge as having "abdicated his responsibility" to decide upon the admissibility of the evidence of PW2 by leaving the jury to decide whether or not PW2's evidence amounted to a recent complaint.

5. In order properly to examine these grounds, it is necessary to look in some detail at the evidence called in the trial.

Prosecution's case

6. The charge of rape related to events on 6 March 1998. PW1 was a domestic helper from the Philippines who had worked extremely harmoniously since 1991 for the Applicant and his wife. She was a virgin at the time of the incident.

7. On Friday, 6 March 1998, PW1 went to bed at about 11.00 p.m. She occupied a lower bunk in the Applicant's youngest son's bedroom. At that time, the Applicant's wife was overseas and the Applicant himself had not yet returned home.

8. The prosecution's case was that during the early hours of the morning, PW1 was awoken by the Applicant who asked her to follow him to his bedroom. She remembered the Applicant telling her that he needed to be woken up at 9.30 a.m. to play golf. When she attempted to leave, the Applicant embraced her and pushed her onto his bed. PW1 bumped her knee on one of the bed posts. At that point, the Applicant tried to take off PW1's nightdress. The Applicant fondled PW1's breast and made her engage in oral sex upon him. This shocked her and she felt weak at the suddenness of the attack. She did not shout out although she wanted to do so. Sexual intercourse took place after the Applicant had used force to remove PW1's undergarment. Whilst performing the act of penetration, PW1 said she did not want to become pregnant. In due course, the Applicant ejaculated onto her abdomen.

9. Later, having returned to her bedroom where the Applicant's second and third sons were still asleep, PW1 felt pain in her vagina. She then showered because she noticed blood on her undergarment and felt dirty.

10. The case for the prosecution depended entirely upon the credibility of PW1's allegation that she had not given consent to the act of sexual intercourse in the absence of any corroboration to lend support to her account.

Subsequent events

11. The Applicant's wife was due to return from Australia on the evening of Saturday, 7 March 1998. PW1 informed the Applicant during the morning of that day that she intended to tell his wife what had happened. He looked angry and said, according to her: "Do you want to die." PW1 was scared by this and, after the Applicant's wife returned, PW1 made no mention to her of the incident.

12. On 8 March 1998, PW1 went to church where she knew a number of people including her church leader (PW2). She still kept the incident to herself.

13. Next day, 9 March 1998, PW1 was told by the Applicant's wife that she would have to go to Australia again. PW1 felt that the same thing might happen to her and, according to her, this was the reason that on Tuesday 10 March 1998, she called PW2 to tell her what had happened. It was this event which ultimately led to a report being made to the police.

Defence case

14. The case for the defence was, in a large number of important ways, very different to the picture painted by PW1. Whilst accepting that intercourse took place, the Applicant's case was that this was with consent and that this should be set against a background of affection which PW1 had expressed towards the Applicant whom she was said to have secretly admired. The Applicant related a previous sexual encounter about a year before this incident which involved oral sex. Afterwards, he had given PW1 $1,000. He spoke of PW1 having massaged him on a number of occasions since that time.

15. The Applicant's account of events leading up to the present incident was that it was PW1 who had approached him in the early hours of the morning while he was in his study. She was crying and speaking of her concern over a loan which she had taken out. When the Applicant agreed to help her, PW1 started to stroke his thigh. They embraced and they went into the bedroom where PW1 willingly performed oral sex on the Applicant. When intercourse took place, PW1 said she was feeling some pain and did not want to become pregnant. The Applicant then ejaculated onto her abdomen.

16. At some stage after this, the Applicant said that PW1 requested him to give her $30,000. He refused to do so. When she persisted, she coupled her demand with a threat to tell the Applicant's wife if he did not pay. The Applicant made an offer to pay $3,000 but, although he considered he was being blackmailed, he did not make a report to police.

First ground of appeal

17. Mr Macrae's first ground of appeal related to a number of what he submitted were unsatisfactory aspects to be found in PW1's evidence with which we shall deal in turn. His contention was that the cumulative effect of the many unsatisfactory points which can be made about PW1's evidence, all relating to her credibility, is that there remains a lurking doubt about the verdict.

18. An important part of the Applicant's case at trial was concerned with PW1's motive for fabricating a story against him. Mr Macrae contended that there was a genuine concern about PW1's truthfulness and reliability, not least concerning her finances about which she had given evasive and untruthful answers. Certainly, on a superficial reading of the transcript, there is some force to this argument. PW1 had begun by saying that she had no financial troubles but Mr Plowman SC, who represented the Applicant in the court below, was able to cross-examine her about a personal loan agreement with a finance company. This showed that she had borrowed $22,000 on 10 October 1997 and that, by 6 March 1998, the repayments were in arrears to the extent of $4,500. PW1's response to this apparent inconsistency in her evidence was that, although she was worried about the loan, it was actually a loan for her friend, Ms Portillo, whose name was shown on the loan form as a guarantor. This arrangement had been made because Ms Portillo was unable to apply for the loan herself.

19. On this aspect of the case, there was other evidence about the state of PW1's finances of which we have been made aware, including previous loans made to her by others, gratuities which had been paid by the Applicant over a period of time and advance payments by the Applicant in respect of PW1's long service entitlement. Although much of this evidence was illustrative of the Applicant's kind and generous spirit towards PW1, the important question for the jury to resolve was whether PW1 had demanded from the Applicant the sum of $30,000 to stop her making a false accusation against him. Even if the jury felt that PW1 may have made a demand for money, this could not have assisted the Applicant if the jury came to the view that he had taken advantage of PW1, in the manner she had described, in return for his acts of kindness towards her.

20. No criticism was made of the summing up, that the judge failed to remind the jury of any material part of this aspect of the trial, and it is abundantly plain that Mr Plowman exercised all his customary skills in presenting the Applicant's case to its best advantage. Indeed, no suggestion has ever been made to the contrary. These matters were pre-eminently for the jury to decide and, plainly, the Applicant's account was rejected.

21. We do not feel it necessary to deal at any length with what Mr Macrae characterised as the "unusual circumstances of the act of rape itself which may have occurred between the bed sheets rather than on top of the bed" or with what he termed "PW1's extraordinary behaviour during the alleged act of rape".

22. As to whether sexual intercourse took place between the sheets rather than on the sheet-covered quilt on top of the bed, the judge summed up (at page 33B in the appeal bundle) in the following way:

"The bed sheet, P6, was the sheet on top of the mattress. She said on top of P6 was another sheet, and the top sheet was produced in cross-examination as exhibit D4. Inside that sheet D4 was a quilt, she was asked how she and the defendant got under the quilt, and on top of P6, the bed sheet. And this was her answer, she said, 'Can't remember. As far as I remember, D4, usually is on top. I can't remember if I took D4 out or it was out of the bed.' So her explanation of how he got - that she was lying on top of the bed sheet, P6, and how, as Mr Plowman put it, she managed to get between the quilt and the bed sheet, is she cannot remember if D4 was in fact on top of the bed in the evening, because she said 'I can't remember if I took D4 out or it was out of the bed,' even though she said that usually D4 would be on top of the bed sheet.

She said she washed P6 because of a little stain. She was asked 'How did you and the defendant get between the sheets?' and her answer was 'I did not pay attention to that, perhaps when I was struggling,' which is a bit different from the answer that she just gave, which is that she could not remember if she took D4 out, or whether it was out of the bed."

23. In fact, this summary, as Mr Bruce SC on behalf of the Respondent pointed out, was perhaps unduly favourable to the Applicant. PW1 had never agreed that she had intentionally gone between the sheets for sexual intercourse to take place. Having accepted from PW1's evidence that she had later cleaned a bloodstain from the bottom sheet, Mr Plowman put to her in cross-examination two questions which received answers (found in the appeal bundle at page 154) as follows:

"Q. Will you now answer my question, please, how did you and the defendant manage to get between the sheets?

A. I did not pay attention to that. Perhaps when I was struggling.

Q. You got between the sheets, I suggest, Maren, because you and the defendant got into bed and had sex as a willing couple.

A. I disagree."

This was an aspect of the case of little significance and we do not think that the fact that a bloodstain had got onto the lower sheet could have materially advanced the Applicant's case at trial.

24. Dealing with PW1's behaviour during the incident, Mr Macrae made the point that the Applicant, having formerly been a jockey, has a slight build, implicitly suggesting perhaps that it was less likely for such a man to have intercourse with PW1 against her will than it would have been for someone who was larger in stature than himself. We are not assisted by this. He also submitted that PW1's failure to shout out or to attempt to escape, followed by her being able to carry out her normal duties throughout the remainder of the day as "extraordinary". He described it as remarkable that, throughout the incident, PW1 had only managed to say three things:

"I don't want to .... I do not want to be pregnant .... stop it, because its very painful."

All of these matters had been fully canvassed before the jury and had later been summed up by the judge with fairness and accuracy. It is hard to make any assumption as to how people may react when faced by a situation of this kind. PW1 had, if she was speaking the truth, been raped by an employer who she had only known to be kind and generous towards her for seven years. She had testified that what was happening to her was unexpected and painful. It must also have been humiliating and deeply shocking. In our view, Mr Macrae's submission may have assumed that a more rational response was to be expected from PW1 than she had exhibited. In fairness to him, he candidly accepted that this might be so.

25. It was further submitted that the absence of any injuries to PW1, apart from a very small scabbed wound on the front of her left knee and tears to her hymen, which were found on examination by a forensic pathologist (PW5), had significance. Again, these were matters for the jury's consideration and they were fully and properly considered at trial.

26. Mr Macrae next turned to PW1's failure to make a complaint to anyone until about 1.00 p.m. on 10 March 1998 despite having had numerous opportunities to do so to a number of people she regarded as close friends.

27. The fact that PW1 was in a position to make a complaint to others before she did so to PW2 on 10 March 1998 has never been disputed. This fact in itself was a substantial plank in the case for the defence. We shall need to deal in greater detail with some aspects of what amounts to 'recent complaint' when turning to the second ground of this application. It suffices at this stage to say that on all the relevant evidence placed before the jury, they were entitled to conclude that PW1 had bottled up her anxieties until she could contain herself no longer. It is common knowledge, and well within a sensible jury's reasonable contemplation, that feelings of confusion mixed with shame and even possibly fear, may well influence a woman in the position in which PW1 found herself to keep such a traumatic event to herself for a time. When she found herself able to voice a complaint, her evidence (at page 120 of the appeal bundle) was that:-

"I was really very angry at my male employer .... I did not want to see his face again. Never again."

28. The delay in the complaint may have been unusual but it was explicable. Once again, the jury had been provided with full argument on the topic and the matter had been comprehensively dealt with in the summing up.

29. Lastly, under this ground, Mr Macrae drew attention to the defence case which he described as being a strong one. This included the evidence, on peripheral issues, of DW3, who was on close personal terms with PW1. Her testimony was capable of throwing doubt on aspects of PW1's credibility. DW4 gave powerful evidence about the Applicant's good character and temperament. It was apparent also from unchallenged evidence that the Applicant had had a great deal of work to do on the night of the alleged rape, culminating in the sending of a fax from his home to meet an editor's deadline at 4.21 a.m.

30. The difficulty with this aspect to the first ground of appeal, as with the others with which we have already dealt, is that the jury does not appear to have accepted the Applicant's version of events. Mr Macrae posed a rhetorical question to the court when he asked whether it was the itinerary of a rapist who decided, after a hard day's work, to rape the maid before settling down to write and fax an article which was to be published the next day. However, the same might also be said, if strict logic was to be applied to the situation in which the Applicant stated he found himself, that it was somewhat unlikely that he would want to be troubled by the affections of his maid when he had pressing work to do. This was not, on any view, a situation where normal standards of logic could be applied to the Applicant's actions. Again, we have to say that these were matters properly left to the consideration of the jury.

31. Mr Macrae dealt with other more general aspects about PW1's behaviour which had arisen from the evidence given by various witnesses in the trial. Importantly, he highlighted the fact that before 6 March 1998 PW1 had secretly confided in DW3 her intention to return permanently to the Philippines without telling her employers of her plan and that, when PW1 provided her witness statement, an officer who was present had noted that she was "talking and laughing without sadness". The jury, having been made aware of both these points, were in the best position to assess this evidence and we do not consider that in these proceedings they carry the issue to be decided by this court any further.

Conclusion on first ground

32. Whether taken individually or cumulatively, all of these matters raised by Mr Macrae were essentially for a jury to determine. As Mr Macrae has very properly observed, the summing up was scrupulously fair and, save for his criticisms in the remaining ground of appeal, correct in all respects.

33. In such circumstances, the basis on which this court might interfere is extremely narrow and the hurdle facing Mr Macrae, who has sought this court's intervention on this ground, is a very high one. It has long been recognised, for obvious and sound reasons, that an appellate court, which has not had the advantage of seeing and hearing the witnesses, should be slow to interfere with a verdict returned by a tribunal which has had that advantage.

34. The Applicant had been represented at trial by eminent leading counsel and the jury had been reminded of all material factual matters in what was accepted to have been a fair and comprehensive summing-up. In this case, there was evidence upon which the jury could properly convict although some of the evidence, on collateral issues, may have been flawed by factual imperfections and even lies on the part of PW1. What resulted from those imperfections and the weight to be attached to them was, however, for the jury to consider and decide. Their considerations took them nine hours from which it is apparent the jury had careful regard to all the issues in the case.

35. Rape cases, more often than not, involve one person's word against another's. The basic issue may be a simple one, but the determination of that issue will seldom be as easy as it is to state.

36. Although the court was invited to say that a "lurking doubt" existed as to the integrity of this conviction, we have felt it right to have regard to the provisions of section 83 of the Criminal Procedure Ordinance, Cap. 221, in order to determine whether, in the circumstances of the case, the conviction should be set aside on the ground that it is unsafe or unsatisfactory. This follows what was stated in Kwong Kin-hung v The Queen (1997) HKLRD 15 at 19F where Lord Steyn, in giving the judgment of the Privy council, said that ultimately the "words of the statute must govern the position". Having said this, and without wishing to enter into semantics, if the court had felt a "lurking doubt" existed in relation to this, or any other conviction for that matter, it would be virtually inconceivable that the conviction could be regarded as safe or satisfactory.

37. We have concluded that the conviction cannot be regarded as unsafe or unsatisfactory and, accordingly, this ground fails.

Second ground of appeal

38. The second ground of appeal raised by Mr Macrae was correctly identified by him as falling into two parts although both deal with the evidence relating to 'recent complaint'. These issues are closely enough linked, however, to make it convenient to deal with them together.

39. Mr Macrae's first point was that the evidence relating to PW1's complaint of rape to PW2 should never have been admitted as evidence of 'recent complaint'. Such evidence is, of course, following R v Lillyman (1896) 2 QB 167, admissible to show consistency in the conduct of the complainant when compared to her testimony in court and as tending to negate the suggestion that she consented to sexual intercourse with the person she has accused of rape.

40. At the start of the trial, the judge had ruled PW1's evidence of complaint to PW2 to be admissible. His ruling (at page 90D in the appeal bundle) was in these terms:

"My ruling is that the evidence of PW1 and PW2 on the complaint that PW1 made to PW2 on 10 March 1998 is admissible. According to PW1, she was threatened by the accused at about 9 or 10 a.m. on the morning of 7 March 1998.

The question arises why she did not complain to anyone throughout 6 March 1998. Her explanation of that is that she was confused and did not know what to do.

The fact that she did complain to PW2 on 10 March is explained by her on the basis that she had been told by the accused's wife on 9 March that she, the wife, would be leaving Hong Kong again for Australia and the victim, the complainant, said that she was afraid that if the mistress of the house was not present in Hong Kong or in the house, she was afraid that a similar event may take place. So the evidence is admissible."

41. On any view, the complaint to PW1 was not as "recent" as it might have been but the mere fact that there were earlier opportunities for her to have complained cannot amount to sufficient reason in itself to render the evidence inadmissible.

42. This aspect of the law, as Mr Bruce reminded the court, was dealt with in R v Valentine (1996) 2 Cr. App. R. 213. In that case, the victim had been raped after she had been threatened with a knife shortly after 12.30 a.m. She arrived home at 2.30 a.m. where other members of her family were asleep. In the morning, the victim told her brother she had been attacked with a knife but that she did not want to tell her parents about it. She made no mention at that time of a sexual assault upon her. The victim went to work in the afternoon where she told no one of her ordeal. She waited until the evening before telling a friend. The court, having traced the development of the law in relation to evidence of recent complaint, concluded that:

"The authorities establish that a complaint can be recent and admissible, although it may not have been made at the first opportunity which presented itself. What is the first reasonable opportunity will depend on the circumstances including the character of the complainant and the relationship between the complainant and the person to whom she complained and the persons to whom she might have complained but did not do so. It is enough if it is the first reasonable opportunity. Further, a complaint will not be inadmissible merely because there has been an earlier complaint, provided that the complaint can fairly be said to have been made as speedily as could reasonably be expected.......... The complaint has to be made within a reasonable time of the alleged offence and on the first occasion that reasonably offers itself for the complainant concerned to make the complaint that was made in the terms in which it was made.

We now have greater understanding that those who are the victims of sexual offences, be they male or female, often need time before they can bring themselves to tell what has been done to them; that some victims will find it impossible to complain to anyone other than a parent or member of their family whereas others may feel it quite impossible to tell their parents or members of their family."

43. We respectfully agree that what was said by Roch LJ when he gave the judgment in Valentine reflects the modern and proper approach to evidence of recent complaint.

44. In deciding whether to admit the evidence in the present case, the judge was bound to look at all the circumstances of the case, including PW1's background and her relationship to the Applicant before making his conclusion as to whether this complaint was made on the first opportunity which reasonably presented itself after the alleged rape. PW1 depended for financial support and her accommodation on the Applicant's family. Her natural confusion about what to do only changed into positive action when the Applicant's wife announced her intention to go once more to Australia.

45. The judge had these matters in mind when he ruled the evidence to be admissible. He could and, perhaps, should have added in his short ruling which we have cited, that PW1, in addition to the natural concerns with which a woman in her situation would be faced, had on her account received a particularly unpleasant threat which had made her frightened.

46. In all the circumstances, in our opinion this evidence was properly admitted. Although the point was made that this ruling was given, at the outset of the trial, on the basis of what was contained in the witness statements, it is not without significance that leading counsel for the defence did not invite the judge to reconsider his ruling after the evidence of PW1 had been given.

47. Mr Macrae, however, submitted that whatever the judge may have taken into account when he made his ruling, he later "abdicated" responsibility for the admissibility of the 'recent complaint' evidence when, in summing up, he erroneously directed the jury:

"Well, it will be a matter for you, members of the jury, whether that was a recent complaint or not .......... You will have to consider points that (counsel) made in respect of that and ask yourself was this a recent complaint."

48. The judge's phraseology may have been a little clumsy but it is perfectly apparent that the judge was seeking to give the jury a sense of direction in their evaluation of this evidence. Obviously the jury were not deciding on the admissibility of the evidence itself because this had to be decided by the judge in accordance with what was stated in R v Cummings (1948) 1 All ER 551. The judge had made his ruling that the evidence was admissible. However, just as the judge had been invited by leading counsel for the defence to exclude the evidence on this topic, so also the jury were invited by the defence to attach little weight to the complaint made by PW1 to PW2 as evidence of PW1's consistent conduct. If the jury regarded the complaint as unreasonably late, they were entitled to give little credence or weight to this evidence and it was this aspect of the case which the judge was seeking to address. There was no abdication of responsibility on the part of the judge although we agree with Mr Macrae that the point which the judge was seeking to make could have been articulated more clearly.

Conclusion

49. Mr Macrae's submission in relation to the lapse of four and a half days before a complaint was made by PW1 was of sufficient importance for us to consider that it would be proper to grant leave.

50. Treating the hearing as the appeal, we dismiss the appeal.