LEUNG SUN KEUNG v. HKSAR

FAMC No. 31 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 31 OF 1998 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC No. 17 OF 1998)

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D E T E R M I N A T I O N

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Mr Justice Ching PJ:

1. The applicant faced a jury trial on two counts. The first, upon which he was convicted, was one of rape. The second, upon which he was acquitted upon a directed verdict after a submission of no case to answer, was one of administering drugs to obtain or facilitate an unlawful sexual act. He applied to the Court of Appeal for leave to appeal to that Court against the conviction on the first count but that application was dismissed. Subsequently, the Court of Appeal certified a point of law of great and general importance. That point is,

"Where an accused has been found not guilty of an offence (following a ruling of no case) on technical grounds is the evidence showing that he committed the acts alleged in that offence (and is therefore in fact guilty of that offence) admissible against him in respect of another offence?"

2. He now seeks leave for that question to be argued in the Court of Final Appeal.

3. The applicant gave no evidence at his trial. From the evidence put forward by the prosecution certain things are clear. The girl had been drugged to the extent that she was unable to give her consent to an act of sexual intercourse. Nonetheless, she was involved in such an act at the time and place alleged. It was the applicant who had had intercourse with her in circumstances in which the jury were well entitled to find that he knew she was not capable of giving consent. There was evidence that it was the applicant who had brought the drugs with him, that it was he who had put a large amount of it into a bottle of orange juice, shaken the bottle to dissolve the drug and then pressed her to drink it. This evidence was given by two witnesses who were rightly regarded as being accomplices.

4. The second count was laid under section 121(1) of the Crimes Ordinance, Cap. 200, which reads,

"A person who applies or administers to, or causes to be taken by, another person any drug, matter or thing with intent to stupefy or overpower that other person so as thereby to enable anyone to do an unlawful sexual act with that other person shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 14 years."

By subsection (2) of the same section it is provided that,

"A person shall not be convicted of an offence under this section on the evidence of one witness only, unless the witness is corroborated in some material particular by evidence implicating the accused."

The judge at first instance acceded to the submission of no case to answer on the basis that the only witnesses on this count were accomplices and could not corroborate each other. The count was therefore withdrawn from the jury's considerations.

5. Notwithstanding the acquittal on the second count in summing up to the jury on the rape count the judge directed them fully on the evidence as to the applicant's part in the drugging of the girl. The applicant says that he should not have done so (1) because it was an attempt by the prosecution to go behind the acquittal, (2) because the evidence had been adduced as the very essence of the second count and (3) because the evidence was overwhelming evidence of guilt on that count. He says, therefore, that the judge wrongly asked the jury to rely on evidence which showed that the applicant was guilty on that count despite the acquittal.

6. Notwithstanding that the Court of Appeal has certified the point of law, we must refuse leave because we regard the point as clear. As a result of the acquittal on the second count the applicant cannot be tried on it again and the acquittal is final and binding. That is not to say that the evidence in respect of that count can never be used against him on a different count. The Court of Appeal held that reliance upon the evidence in question was not inconsistent with the acquittal. We agree with them. A finding of guilt by a jury on that count would mean positive findings on each of the elements in section 121. An acquittal by the jury would mean only that at least one of these elements had not been proved to their satisfaction such as that the accused had none of the necessary intentions when he caused the drug to be taken. The count of rape is very different from the count under section 121 and there is no law prohibiting evidence relevant to or the crux of the latter being used in relation to the count of rape where it is relevant or material. The evidence on the second count was clearly relevant to the rape count.

7. This application is dismissed.

Representation: