HKSAR v. OR CHUNG YEUNG

[English Translation – 英譯本]

CACC 180/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 180 OF 2003

(ON APPEAL FROM HCCC NO. 8 OF 2003)

Judgment

Hon Cheung JA (giving the judgment of the Court):

Application for leave to appeal

1. The Applicant was charged with one count of rape.  He was convicted and sentenced to 6 years’ imprisonment after trial before Deputy Judge Pang with jury.  The Applicant applied for leave to appeal against conviction and sentence.  Mr. Lok, SC for the Applicant only made submissions on the application for leave to appeal against conviction.  On 24 June 2004, after the hearing of this application, the law firm which represented the Applicant informed this Court in writing that the Applicant had abandoned his application for leave to appeal against sentence. It is therefore unnecessary for us to deal with the application for leave to appeal against sentence.

Facts

2. According to the facts, the victim was an Indonesian domestic helper. From 7 January 2002 onwards, she was employed by the Applicant and lived with his family members in the same flat.  There were two bedrooms in the flat, one being the bedroom of the Applicant and his wife and the other being that of the victim and the Applicant’s two children.  The victim shared the lower bunk of a double bunk bed with the Applicant’s one-year-old son while the Applicant’s five-year-old daughter slept on the upper bunk.

3. At about 7:00 a.m. on 24 August 2002, the Applicant entered the victim’s room and forcibly had sexual intercourse with her. The victim resisted, but in vain. Only when the Applicant heard some sound coming from the upper bunk of the double bunk bed did he stop the intercourse and left the room.  After the incident, the victim saw bloodstain at her private parts and on the bed sheet.  At about 1:00 pm that day, the victim phoned an elder sister of hers who was working in Hong Kong and told her that she had been raped by the Applicant.  The victim then called the police.  She said she had no sex experience whatsoever prior to the above incident.

4. The forensic pathologist said he only found signs of fresh lacerations on the victim’s hymen and that he did not find any old laceration thereon.  He also pointed out that most females would sustain hymenal lacerations after having sexual intercourse for the first time, but that if the victim in this case had had sexual intercourse with the same male for ten odd times, there should not be any new laceration on her hymen or any further bleeding arising from rupture of the hymen.

5. The Applicant elected to give evidence.  He said that he did have sexual intercourse with the victim that morning but claimed that the victim did so voluntarily.  He further said he and the victim had already had sex before this incident.  They had sex for the first time in late February 2002, and in the following six months, they had sex for more than ten times. The Applicant said he would give money to the victim after each intercourse, which he regarded as a transaction, but he did not give her money on this particular occasion.

Grounds of appeal

6. Mr. Lok, SC advances two grounds of appeal on behalf of the Applicant. The first ground is directed at the burden of proof and the second ground concerns the direction on lies given by Judge Pang.

Burden of proof

7. The Hong Kong Judicial Studies Board (“Studies Board”) has provided judges with specimen jury directions (“specimen directions”) for use in criminal trials in the Court of First Instance.  The specimen directions, which aim to assist judges in giving proper guidance to the jury, contain directions that judges usually give, for example, the burden and standard of proof, how to approach the evidence, rights of the defendants and elements of certain offences.  Paragraph 2.1 of the specimen directions states that, where the judge has referred to the grounds of defence in the directions to jury, the judge should remind the jury that the defendant has no duty to establish the truth of those grounds and that if the account given by the defendant is true, then the jury must acquit him, but “if that account may be true”, then the jury “must also acquit him”.

8. As Mr. Lok, SC has pointed out, Judge Pang had indeed not given the aforesaid directions in this case.  Therefore, we have to consider whether the failure to give the aforesaid directions according to the specimen directions was such as to render the conviction unsatisfactory or unsafe.

9. Regarding the burden of proof, Judge Pang directed the jury in the following terms:

I have to raise another extremely important issue here, which is how you should arrive at a verdict.  First, please bear in mind that under the current system, a defendant is innocent unless and until he is found guilty, and the burden of proving guilt of the defendant falls entirely on the prosecution.  Having brought a charge, the prosecution must bear the burden of establishing the charge.  It is as simple as that.  In other words, a defendant is not guilty just because he is sitting in the dock and being kept under guard.

What is more, the defendant bears no burden whatsoever to prove his innocence and, therefore, is under no obligation to give evidence or call any witness.  Even if he does both – and the defendant in this case has done both, has he not? – he has no duty to prove what they say is true.  So how should it be?  It is rather for the prosecution to prove that his evidence is untrue.  To prove that the defendant is guilty, the prosecution still has to convince you to accept the evidence adduced by it, and also explain what other evidence is favourable to the prosecution and why.  All in all, it still boils down to this: the burden of proving the defendant’s guilt rests with the prosecution.  This is the first point.

Now let me talk about the second point.  Given the burden of proof is on the prosecution, to what extent and up to what standard must it prove in order to establish the defendant’s guilt?  The answer is: it has to prove beyond reasonable doubt.  This means the prosecution has to prove to the point where you are sure that the defendant did commit the offence in question.  These two statements are complementary.  I have mentioned that before, have I not?  In other words, only when you have considered all the evidence and believe that there is no reasonable doubt, or to put it in another way, only if you are sure that the defendant committed the offence, can you return a verdict of guilty.

On the contrary, if, viewing the evidence as a whole, you consider there is reasonable doubt, or if you are not sure whether the defendant committed the offence, you must return a verdict of not guilty.  This is the meaning behind the saying ‘the benefit of doubt shall be given to the defendant’ that you often hear.

Judge Pang also said:

On the other hand, given the prosecution bears the burden of proof, you cannot simply jump to a verdict of guilty even if you do not believe the defendant or his witnesses at all.  It is because in the end, it still depends on whether the evidence adduced by the prosecution and such other evidence that you may accept as true is sufficient so that you are sure the defendant is guilty.

10. All the above directions were given in accordance with the specimen directions and fully explained the prosecution’s burden of proof and the defendant’s legal rights.

11. Judge Pang said that if the jury considered that the evidence, viewed as a whole, raised a reasonable doubt or if the jury could not be sure whether the Applicant had committed the offence in question, then they were bound to find the Applicant not guilty.  In our view, if a person with legal knowledge is not sure whether the Applicant committed the offence in question, this certainly includes the situation in which he considers the account given by the Applicant true or possibly true.  However, for a jury unarmed with legal knowledge, if they think that the Applicant’s defence may be true, does this necessarily mean they will then be unsure whether the Applicant committed the offence in question?

12. Had Judge Pang only given directions on the burden of proof without also giving directions on other aspects, we would have reservations over the above question.  First, if the evidence in the case had totally come from the prosecution, the directions given by Judge Pang would have been adequate, because the jury had been directed that, if they thought the prosecution evidence raised a reasonable doubt or if they were not sure whether the Applicant had committed the offence in question, then they had to return a verdict of not guilty.  If a defendant elects to give evidence and the jury consider that the account given by the defendant is true, then as a matter of logic they should have no difficulty in finding the defendant not guilty.  If, however, the jury think that the defence may be true but are not absolutely sure that it is true, what should they do?  Our experience tells us that, far from being an academic issue, this is a real problem which will very likely arise. If the judge has not given other directions to the jury or told them in explicit terms that the defendant should be acquitted in such a situation, we very much doubt whether the jury will necessarily say that in such a case they are not sure whether the defendant committed the offence in question and therefore the defendant has to be acquitted.  We do not rule out the possibility that a jury with no legal knowledge may be troubled where “the account given by the defendant may be true”.  At the very least, when they are confronted with this issue, they will very probably fail to appreciate its importance and, as a result, fail to acquit the defendant promptly.

13. A verdict of guilty indicates that the jury are satisfied that the case against the defendant is proved beyond reasonable doubt.  However, before returning a verdict of guilty, in all likelihood they have to consider whether the defendant’s evidence may be true.  The court cannot assume from a verdict of guilty that the jury have not found it necessary to consider whether the defendant’s evidence may be true.  To make such an assumption is to put the cart before the horse.  The relevant principle, which is but a crystallisation of past experiences, is to explain, positively and clearly and in simple language, to a jury with no legal knowledge how the rules on the burden of proof are applied in practice.  It is in our view possible for a set of directions that do not follow the relevant principle to be incomplete and to render a verdict unsafe and unsatisfactory. As Stuart-Moore VP in HKSAR v Sze Kwan-lung CACC 92/2002 pointed out, although many of the specimen directions given to a jury will need to be adapted to the circumstances of the case being tried, the directions on the burden and standard of proof are, in view of their obvious importance, intended to be extremely straightforward and easy to understand and do not usually require any adaptation or further amplification.

14. The Court of Appeal (Hon Ma CJHC, Stuart-Moore VP and Stock JA) also pointed out in HKSAR v Wong Wai-man (No.2) [2003] 4 HKC 517 that the above specimen directions were usually used and appropriate.  In that case, the jury asked the trial judge whether they could disregard the evidence given by the police or the appellant if they had doubts about that evidence.  In response, they were directed that, if they were not sure that the evidence from either the prosecution or the defence was true, they could disregard it.  The Court of Appeal held that this direction was erroneous because if the jury took the view that the account given by the defence was true or might be true, they should, instead of disregarding that evidence, take it into account in deciding whether the prosecution had discharged the burden of proof.

15. Although the issues involved in that case were different from those of the present case, the crucial point is that the relevant direction is usually used and is an appropriate one.  In R v Liberato (1985) 159 CLR 507, Brennan J of the High Court of Australia also said:

When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence.

The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.

16. The purpose of giving these directions to the jury at great length is to ensure that they practically and correctly apply these principles.  We believe that the relevant specimen directions will fully serve this purpose.  We do not agree that using those directions is merely adding embroidery to silk.

17. Nevertheless, it must be stressed that the court cannot deal with the question of “whether the account given by the defendant may be true” in isolation and overlook the facts of the case and the entire set of directions.  In the present case, the entire set of directions given by Judge Pang has to be looked at when considering whether the verdict was rendered unsafe by the absence of a relevant direction.

18. Judge Pang did not only give legal directions on the burden of proof, but also applied the legal principles to the issue in dispute.

19. The evidence for the prosecution and that for the defence in this case was diametrically opposed.  The victim said that she did not consent to sexual intercourse, whereas the Applicant claimed that she did consent to it and that they had had sexual intercourse on many occasions in the few months prior to the incident but just that he did not give her money on this occasion.  Towards the end of his summing up, Judge Pang had this to say:

Finally, I would like to say that an accusation of rape can easily be made but cannot be easily refuted, especially when sexual intercourse has actually taken place.  In the present case, apart from the evidence of the victim herself, there is in fact no evidence to show that the defendant had sexual intercourse with her against her will.  Even if you believe that she had no sex experience prior to the occasion in question, this in itself is not sufficient to prove that she was unwilling to have sexual intercourse, is it?  Therefore, before you convict the defendant, you have to be very careful.  In any event, please bear in mind that you can convict the defendant if and only if you are sure that the victim did not consent to sexual intercourse at the material time and that the defendant knew that the victim did not consent or was reckless as to whether she consented.  Otherwise, you must acquit the defendant.  (Emphasis supplied)

20. The underlined sentences in the above direction clearly conveyed the message that, if the jury could not be sure that the victim did not consent to sexual intercourse at the material time, they must return a verdict of not guilty.  In directing the jury, Judge Pang did not simply set out dull and dry legal principles, but also explicitly illustrated the application of the principles relating to proof.  In these circumstances, we believe that, had the jury concluded that the Applicant’s evidence that the victim consented to sexual intercourse might be true, they would have clearly understood that such a conclusion meant that they could not be sure that the victim did not consent to sexual intercourse at the material time and, as a consequence, would have found the Applicant not guilty.  It follows that, even though Judge Pang had not given the relevant direction, the verdict of this case was still safe and satisfactory.

21. In our view, there is nothing in the first ground of appeal.

Direction on lies

22. The second ground of appeal is directed at the presence of a “lies” direction.  In his summing up, Judge Pang said:

       In fact, as what the defence counsel said in his final submission, accused persons may not be telling the truth, but this is not necessarily because they are guilty.  They may just want to bolster a true defence, or they may feel that it is not so easy to have the true story believed.  So, what will they do?  To borrow popular language, they will ‘exaggerate a bit’.  Or the true story may involve conduct which was disgraceful but fell short of bring criminal.  Or the accused persons were in panic at that moment and did not know what to do.  There are all sorts of reasons.  Hence, if you really think that something said by the defendant is unbelievable and that he was lying, but that he may have lied for one of the reasons I have just mentioned which have nothing to do with his guilt, then the only thing you should do is to disregard the part consisting of the lies and focus on all the other evidence which you accept as true, including that part of evidence from the defendant which you accept to be true.  Here I have to make this clear: I am not saying the defendant has lied.  What I mean is that, even if you firmly believe he has told a lie, you should not and cannot convict him simply because of that.

23. Mr. Lok, SC contends that it was not necessary to give any “lies” direction.  He points out that the prosecution case and the defence case were in direct conflict.  The victim alleged that she had been raped by the Applicant, but the Applicant said that she had consented to sexual intercourse with him.  In that case, if the jury accepted the victim’s evidence as true, they would necessarily be also finding that the Applicant had lied.  Therefore, the trial judge did not have to give any “lies” direction at all.

24. In the Court of Final Appeal case of Yuen Kwai-choi v HKSAR [2003] 2 HKC 337, Hon Chan PJ said that:

Where there is no need for such a ‘Lucas’ direction (a direction on lies), as in the normal case where there is a straight conflict of evidence, it will add complexity and do more harm than good.  In the great majority of cases where the prosecution contends that an accused is telling lies in the witness box, a direction on lies is inappropriate (R v Barnett [2002] 2 Cr App R 168, 173).  In cases where the rejection of any explanation given by an accused almost necessarily leaves the jury with no choice but to convict as a matter of logic, or where the jury are asked to decide on the truth of what an accused said on a central issue in the case, the usual direction on the burden and standard of proof would normally be sufficient.

25. The above principle was adopted by this Court (Hon Cheung, Yeung and Yuen JJA) in HKSAR v Tung Wing-so (transliteration) CACC 201/2003.

26. The Respondent in this case has conceded that it was not necessary to give any “lies” direction.  This notwithstanding, we take the view that the direction in question was given in light of the Applicant’s evidence that he had had sex with the victim for ten odd times before and of the evidence given by the forensic pathologist.  In giving the direction, Judge Pang intended to remind the jury that they should not convict the Applicant just because they believed he had lied and that they should consider other evidence of the case to decide whether the Applicant was guilty.

27. Even though there had been no necessity for a “lies” direction, it does not follow that the direction given by Judge Pang would have confused the jury or rendered the verdict unsafe and unsatisfactory.  The Applicant’s second ground of appeal is accordingly rejected.

Conclusion

28. The application for leave to appeal is dismissed.