HKSAR v. LAU CHUNG PIU

CACC 213/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 213 OF 2015

(ON APPEAL FROM HCCC NO. 490 OF 2013)

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the Court) :

1.  With the leave of Macrae JA granted on 30 March 2016, the appellant appeals against his conviction on 8 June 2015, after trial by Deputy Judge Beeson and a jury, of the rape of Madam X on 14 July 2013 in domestic premises in Ma On Shan, Shatin, contrary to section 118 of the Crimes Ordinance, Cap. 200.

The trial

2.  It was an admitted fact at trial that the appellant had sexual intercourse with Madam X on 14 July 2013 in the premises at Ma On Shan.  At issue, was whether or not Madam X consented to having sexual intercourse.

The prosecution case

3.  On the night of 13 July 2013, Madam X and Mr Wong Wing Chi, whom she regarded as her boyfriend and who was also a friend of the appellant, joined the appellant in a local restaurant in Ma On Shan at about 11:00 p.m.  However, they arrived too late to have a full meal.  So, they bought snacks, beer and wine, which they took to the appellant’s home in Ma On Shan to enjoy a social evening.  There, she and the appellant consumed alcohol.  For her part, Madam X said that she consumed four or five glasses of red wine.  The appellant drank wine and beer.  They spent their time chatting and playing video games.  Madam X said that eventually she became very drunk.  She was dizzy and unable to articulate clearly.  So, without telling anyone, she went to a guest bedroom where, having locked the door she lay on the bed and fell asleep fully clothed. For their part, the men also went to sleep.  Mr Wong slept in another bedroom, whilst the appellant slept in the living room. 

4.  Having received a telephone call in relation to his work as a air-conditioning technician at about 7:30 a.m., Mr Wong left the flat on his own and went to work.  When he left, the appellant was still sleeping in the living room.  At some time after 8 am, Madam X woke up to find the appellant lying beside her on the bed.  All her lower garments had been removed.  By contrast, the appellant was covered by a blanket.  He answered in the affirmative her question as to whether or not he had sexual intercourse with her.  He confirmed that he had not used a condom.  For her part, she had no memory of having had sexual intercourse.  Madam X accused him of raping her, in response to which allegation she said the appellant accepted that is what he had done.

5.  Having left the premises, Madam X made a complaint to a security guard in the premises that she had been raped.  Police officers were called and she repeated her complaint of rape and made a statement.

6.  Having been arrested and cautioned at 10:20 a.m. on 14 July 2013 at the premises for raping Madam X, the appellant said to the police officer who arrested him “Last night I did do it with B.... Both of us drank alcohol.”  In a video recorded interview under caution, conducted in the early evening of 14 July 2013, the appellant confirmed that he had had sexual intercourse with Madam X, asserting that at the time he thought that she consented to sexual intercourse.  He helped her go to bed, because she was drunk.  Having returned from obtaining a glass of water for her, she embraced him and he kissed her.  Although she was wearing clothing on her torso, he discovered that her lower body was unclothed.  After having had sexual intercourse with her, he fell asleep next to her on the bed.  However, when he awoke at about 9:00 a.m. in the morning she was very angry and accused him of having had sexual intercourse with her without her consent.

7.  Although traces of a drug, Nimetazepam, had been found in an analysis of a sample of her urine taken on 14 July 2013, Madam X denied that she had taken any drugs that night.

The defence case

8.  The appellant did not give or call evidence in the defence case.  However, whilst accepting that he had sexual intercourse with Madam X, the appellant relied on his assertions in his video recorded interview that it was with her consent and pointed to the factors he described as giving rise to his belief that was the case.

9.  The case for the appellant advanced in cross-examination was that Madam X had flirted with him at the restaurant and told him there her recent job was one of “modeling sex toys”.  However, she denied that was what was said.  Of the psychological impact on her of the event in question, Madam X said that she had nightmares every day for a month afterwards and claimed that she continued to endure great pressure thereafter.

10.  For his part, Mr Wong agreed that Madam X was quite open about sex and that she went to Lan Kwai Fong to seek out men.  Mr Wong denied that he had heard Madam X saying at the restaurant that her recent job was modeling sex toys.  She told him she was familiar with a lot of photographers and once went to Taiwan with one of them.  She did not say whether she had sex with that male photographer [1]. 

Grounds of appeal against conviction

11.  In the Perfected Grounds of Appeal, Mr Boyton contended that the judge’s refusal to grant leave sought on behalf of the appellant to cross-examine Madam X on her sexual history made his conviction unsafe and unsatisfactory.  Mr Boyton made that application during the cross-examination of Madam X, and provided the judge with written submissions and authorities in support of his application.  He wished, inter-alia, to cross-examine Madam X on an article published in Next Magazine and a video interview, both of which were made after the alleged rape, evidencing Madam X’s promiscuous attitude towards sex.  He contended that contradicted her evidence that the rape had caused her great psychological pressure.

The respondent’s submissions

12.  In his written submissions, Mr Jonathan Man submitted that the judge had been correct to refuse the application to allow the defence to cross-examine Madam X on the Next Magazine article and the video interview.  He submitted that the fact that Madam X had been prepared to participate in the Next Magazine article and the video recording of the nightlife in Lan Kwai Fong was not incompatible or inconsistent with Madam X having suffered a psychological impact from the alleged rape, which had occurred months earlier.  Further, he suggested that the argument that it was to be inferred from that material that Madam X was promiscuous and therefore likely to have consented to sexual intercourse with the appellant on 14 July 2013 was the very impermissible line of logic at which section 154 was aimed.  In any event, the circumstances in which Madam X had sexual intercourse on 14 July 2013 were wholly different from that which it might be inferred, from the video interview, that Madam X consented to sexual intercourse with men she had selected at nightclubs.

13.  In his oral submissions, Mr Man pointed out that the female in the video interview made it clear that she would not have sex with men who were not educated and rich, displaying a disdainful attitude for cheap, tattooed men from Mongkok.  The appellant was an air-conditioning technician and colleague of Mr Wong.

A consideration of the submissions

14.  Section 154 of the Crimes Ordinance provides that:

“ (1) If at a trial before the Court of First Instance any person is for the time being charged with a rape offence ...then, except with the leave of the judge, no evidence and no question in cross-examination shall be adduced or asked at the trial, by or on behalf of any defendant at the trial, about any sexual experience of a complainant with a person other than that defendant.

(2)    The judge shall not give leave in pursuance of subsection (1) for any evidence or question except on an application made to him in the absence of the jury by or on behalf of a defendant; and on such an application the judge shall give leave if and only if he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked.”  [Italics added.]

15.  In R v Lee Wing On [2] this Court determined that :

“ ...the judge does not have any “discretion” in the matter - he has to make a judgment as to whether he is satisfied or not in the terms of the section.  But having reached his judgement on the particular facts, he has no discretion to exclude the evidence and the questions have to be allowed - R v Viola (1982) 75 Cr. App. R. 125.”

16.  The Court went on to cite two judgments of the Court of Appeal in England and Wales as illustrating the issues which arise:

“ The first one is to be found in R v. Lawrence [1977] Crim. L.R. 492 where May J. (as he then was) had this to say :

“ The important part of the statute which I think needs construction are the words ‘if and only if he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked.’  And in my judgment, before a judge is satisfied or may be said to be satisfied that to refuse to allow a particular question or a series of questions in cross-examination would be unfair to a defendant he must take the view that it is more likely than not that the particular question or line of cross-examination, if allowed, might reasonably lead the jury, properly directed in the summing-up, to take a different view of the complainant’s evidence from that which they might take if the question or series of questions was or were not allowed.”

The second judgment is that of Lord Lane, C.J. in R v. Cox, (1987) 84 Cr. App. R. 132. He said:

“ ..... if the questions are relevant to an issue in the trial in the light of the way the case is being run, for instance, relevant to the issue of consent, as opposed merely to credit, they are likely to be admitted, because to exclude a relevant question on an issue in the trial as the trial is being run will usually mean that the jury are being prevented from hearing something which, if they did hear it, might cause them to change their minds about the evidence given by the complainant.” ”

17.  In the written submissions provided to the judge in support of his application seeking leave, pursuant to section 154 of the Crimes Ordinance, to cross-examine Madam X on the Next Magazine article, Mr Boyton contended that the article:[3]

“ ...depicts the complainant dressing up to attract rich men for sex, is inconsistent with somebody having recently been raped. It also raises the issue of the complainant’s promiscuity.

The attitude depicted in the Magazine is also consistent with the defence case, which is one of consent.  Therefore, the cross-examination goes far beyond the credibility of the complainant: and such cross-examination is very relevant.”

18.  In his oral submissions before the judge, Mr Boyton submitted:[4]

“ ...after this incident the defendant gave an interview, and the details are there, you can see photographs of her, where she is, as my written submission says, “promiscuous and openly hunting for sex with other men”, and this was reported in a gossip magazine, the Next Magazine, last year, and that is inconsistent with what she just disclosed about her psychological effects upon her by this particular incident, and I seek leave to cross-examine her on that news article. I have a copy of the article before you. You can see it’s clearly this defendant in the photograph. And, of course, reference to “one-night stands” is exactly what this was.”

19.  In opposing the application in respect of the newspaper article, Mr Arthur for the prosecution said:[5]

“ ...It appears to be the author of that who is trying to sell the magazine with some very cheap journalism. It’s a document which is a newspaper article, it’s not admissible in evidence in the case, and it is a - it appears to be - an article which was published in March 2014 after the events with which this court is concerned.

It was impossible, therefore, for the defendant to have read this and gleaned anything from it regarding the complainant’s attitudes toward sex.  It’s an inadmissible document...”

Subsequently, Mr Arthur added:[6]

“ If the defence is one of consent, I’m not sure how her promiscuity, so-called promiscuity, assists the defence.”

20.  In support of his application that he be permitted to adduce into evidence the DVD made from material, downloaded from the Next Magazine website, related to the article, Mr Boyton said:[7]

“ Miss X, gave a video-recorded interview outlining what was recorded in the news article. ...

I wish to play this to her, firstly, to contradict what she said about the psychological aspects.  I want to ask her, “Did you make this interview?  Did you give this article?  Is that your attitude towards sex and one‑night stands?”

Mr Boyton went on to add:[8]

“ My Lady, my final point is this, that if she was so psychologically traumatized by the events in July 2013, why is she participating in such an interview in 2014? They just don’t sit well together.”

21.  The judge was informed that the DVD which Mr Boyton wished to play to Madam X was “only about two minutes” and that he wished to ask her, “Is this your attitude towards sex?”. Then, Mr Arthur responded to an enquiry from the judge as to whether or not he had seen the DVD:[9]

“ I haven’t seen the tape, and I don’t think it’s in the form that -- there’s nothing here which suggests that it’s admissible as evidence.”

22.  Finally, Mr Boyton contended that the DVD was “a previous inconsistent statement.”

23.  The judge gave her Ruling immediately, in which she said:[10]

“ Well I cannot see any unfairness to the defendant if the material does not go in. I refuse the application. You may wish to reintroduce it a later stage.”

24.  As is readily apparent from the transcript, and as Mr Boyton confirmed at the hearing, no application was ever made that the judge view the DVD.  Although Mr Boyton had provided the judge with a transcript of the dialogue of the DVD, in which the narrator and the woman said to be Madam X contribute to the dialogue, he sought to explain that surprising omission by contending that he took the view that the point he sought to make was established by the Next Magazine article.

25.  This Court viewed the DVD at the hearing of the appeal.  Needless to say, it gives significant context to the dialogue in the transcript.  Madam X, if indeed it was her, is seen to be parading in a steep street, scantily clad and tottering on high heels, obviously and successfully seeking to attract the attention of men.  In other frames of the DVD she is seen to be drinking champagne or wine in the close company of a man.  Finally, she is seen to be boarding a taxi with a man.  The woman is described by the narrator by an English name, which name the appellant accepted in his video recorded interview was the English name of Madam X.[11]

26.  In the dialogue, the narrator described the female as being a “Clubbing Queen” who had frequented Lan Kwai Fong for seven years looking for “prey”.  For her part, the female described herself as being a “Carnivore”, adding “Perhaps I go clubbing just for it (sex).”  Of her prey, she said “They have to be 17 to 30 years old.  That’s the edible age.”

27.  Photographs of what appears to be the female depicted in the DVD are displayed in the Next Magazine article, in which she is described by the same English name used in the DVD.  Dialogue attributed to the female included:[12]

“ I admit I’m a ‘carnivore’. But I’m not unselective. I definitely won’t take in any MK guys, tattooed guys, those who shake their legs or cheap guys with no money.... Lan Kwai Fong has become cheap now. Many nightclubs have become MK style. The guys can’t speak English; all they know is LV. Once an MK guy tried to flirt with me. I asked him, ‘what are you talking about?’ He yelled, ‘What the X. Speaks English.’ ”

28.  It is unfortunate that the application to the judge was handled in the way in which it was made and in which the determination was given.  The judge was not asked to view the DVD.  No reason was given by Mr Arthur for his objection that there was nothing that suggested that the DVD was admissible in evidence.  Finally, the judge gave no reasons for her determination.  Nevertheless, this Court is as well placed to make a judgment in respect of whether or not the application for leave to cross-examine ought to have been allowed.

29.  It is difficult to understand how Mr Arthur contended that the DVD was not admissible, given that he had not even viewed the DVD.  Clearly, it readily susceptible of proof.  It was open to Mr Boyton to have asked Madam X to confirm that she was the female depicted in the DVD and that she had spoken the words attributed to her in the dialogue.  On its face, subject to considerations of section 154 of the Crimes Ordinance, it was admissible in evidence.  Of course, given that Madam X testified that she worked as a photographic model, one obvious line of enquiry that arose, even in the face of a confirmation that she had spoken the words attributed to her, was whether or not she was playing out a role.

Inconsistency: the psychological impact of the rape on Madam X

30.  In cross-examination, Mr Boyton raised with Madam X the issue of the psychological impact of the rape on the Madam X:[13]

“ Q. On 9 April this year, you gave a statement to the police saying that you had great psychiatrical impact because of this case.

MR ARTHUR: Psychological.

Q. Psychological, sorry.

A. A great pressure.

Q. Was that from 14 July onwards? I’m sorry, you must have the year as well, 2013.

A. During that one month, I had nightmare every day.

Q. And then after that still great pressure because of this incident?

A. Yes.”

31.  Having elicited that evidence and no more, Mr Boyton made his application to the judge, pursuant to section 154, for leave to cross-examine Madam X.  With respect, the evidence elicited was skeletal at best.  Madam X testified that the nightmares lasted one month only.  No timeframe had been established for the continuation of the “great pressure”.  No detail was sought of the nature or the consequences ofthe “great pressure”.

32.  Some additional evidence was established in subsequent cross-examination, of Madam X. In explaining inconsistencies in her statement, made on 17 July 2013 following an identification parade, which she had signed she had said, “In fact, I did not want to read this statement.”  In re-examination she explained what she meant:[14]

“ A. I don’t want to see anything again concerning this case.

Q. Can you explain why that is?

A. Because this made me painful and these are painful experience.”

33.  As is readily apparent, that was the explanation for her conduct only three days after the alleged rape.  It is to be noted, that Mr Boyton never suggested specifically to Madam X that she had not been traumatised by the circumstances in which sexual intercourse with her had occurred on 14 July 2013.

34.  In cross-examination, in the context of it being suggested to him that Madam X had contacted him about the rape and told him to give a “certain version of events”, Mr Wong testified that, “She said that she was not happy and that she had alcohol in Lan Kwai Fong.” [15].  Mr Wong confirmed that, on 17 June 2014, a year after the alleged rape, Madam X had sent him a WhatsApp message in which she had said, “I am upset again when recalling it, why you left me at your friends place a year ago.”  In another WhatsApp message sent shortly afterwards she said, “Did you leave me on purpose...? ”  For his part, Mr Wong suggested of the circumstances of that contact, “Because she often went to Lan Kwai Fong for alcohol.  Maybe after she took some alcohol or she was not happy, or if she thought (about?) that the matter, she mentioned the past incident.” [16] 

35.  Clearly, there was a paucity of evidence from Madam X as to the psychological effect of the events of 14 July 2013, in particular the timeframe during which she continued to be affected by the resulting “great pressure”.  The Next Magazine article and the DVD appear to have been made and published in March 2014, fully eight months after the alleged rape.

36.  There is no dispute that the fact that the evidence that Mr Boyton sought to adduce concerned events which had occurred after the alleged rape does not itself render the evidence inadmissible.[17]

37.  We are satisfied that, in all circumstances, in particular having regard to the fact that the Next Magazine article and the video were made eight months after the alleged rape and the very limited evidence in respect of the ongoing psychological impact of the alleged rape on Madam X at that time, it was obviously not appropriate to allow cross-examination on the basis that the material was inconsistent with her testimony.

38.  Similarly, we are not satisfied that the appellant ought to have been granted leave to cross-examine on the basis that the material went to the issue of consent.  First, such a proposition relies on the impermissible and impugned line of reasoning that promiscuity in Madam X, to be inferred from that material, made it more likely that Madam X had consented to sexual intercourse with the appellant.  Secondly, in any event, as Mr Man has pointed out the circumstances of promiscuity to be inferred from the material is wholly different from the circumstances of the sexual intercourse with the appellant.  The former set a scene in which, dressed seductively, Madam X publicly flirted with men, selecting and preying on rich, younger men in nightclubs.  By contrast, at the time of the sexual intercourse with the appellant, Madam X was drunk, dressed casually and had retired to sleep.  Thirdly, the appellant did not fit at all the profile of the men that the female in the video interview said she targeted.

Conclusion

39.  In the result, we are satisfied that the judge was correct to refuse the application for leave to cross-examine Madam X on the Next Magazine article and the video recording.  Accordingly, we dimiss the appellant’s appeal against conviction.