TANG KWOK WAH, DIXON v. HKSAR

FAMC No. 14 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 14 OF 2001 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 318 OF 2000)

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DETERMINATION

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Mr Justice Bokhary PJ:

1. This applicant seeks leave to appeal to the Court of Final Appeal against a conviction of rape. The complainant had been his domestic helper. He did not deny having intercourse with her. But he said that it was with her consent, and he suggested that her complaint of rape was made with a view to blackmailing him. He seeks leave to appeal on both limbs of s. 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap.484, namely the "point of law of great and general importance" limb and the "substantial and grave injustice" limb.

2. At his trial before Burrell J and a jury, the applicant faced six counts. They were one of rape and five of indecent assault. On 14 July 2000 the jury acquitted the applicant on four of the indecent assault counts, but convicted him on the rape count (by a majority of 6:1) and on one of the indecent assault counts (by a majority of 5:2).

3. On 27 March 2001 the Court of Appeal (Stuart-Moore Ag CJHC and Woo and Stock JJA) quashed the indecent assault conviction, but affirmed the rape conviction.

4. The first point which Mr John Griffiths SC for the applicant puts forward as a point of law of great and general importance consists of this proposition. That where there is evidence from which a jury can draw inferences adverse to the accused, it is essential that they be directed to the effect that no inference can be drawn against an accused unless it is the only reasonable inference. Ironically perhaps, the applicant's immediate difficulty in seeking leave to appeal to the Court of Final Appeal on this point under the "point of law of great and general importance" limb is that the proposition of which it consists is well-established and does not need a decision of the Court of Final Appeal to establish it. As the Court of Final Appeal said in So Yiu Fung v. HKSAR (1999) 2 HKCFAR 539 at p.541 H-J, its "primary role in the administration of criminal justice is to resolve real controversy on points of law of great and general importance". There is no controversy of law on the first point. Therefore it cannot provide a basis for leave to appeal to the Court of Final Appeal on the "point of law of great and general importance" limb.

5. But that still leaves the "substantial and grave injustice" limb. Under this limb the test is, as the Court of Final Appeal said in So Yiu Fung's case at p.543 F-G, whether "there has been to the appellant's disadvantage a departure from accepted norms which departure is so serious as to constitute a substantial and grave injustice". At the leave stage the question is whether it is at least reasonably arguable that such a departure has occurred.

6. The trial judge told the jury in terms that they were entitled to draw inferences from the evidence. His direction to them on inferences was as follows:

" You must decide this case only on the evidence which has been placed before you. There will be no more evidence. If you think that there is a gap in the evidence, or there is a lack of evidence, you must accept that and make your decisions in its absence. You are entitled to draw inferences from the evidence. That is, come to some common sense conclusion based on the evidence which you accept but you may not speculate about what evidence there might have been or in any way allow yourself to be drawn into speculation."

7. As to that direction, the Court of Appeal said this:

" We accept that this direction contains no words to the effect that an inference can only be drawn if it is irresistible, or one that no reasonable man could fail to draw, from primary or direct facts which had been proved in evidence to the jury's satisfaction. However, this was a case where inferences effectively had no part to play. The summing up could safely have been made without any references to inferences. The prosecution's case was wholly dependent upon the victim's evidence, and it was her credibility which was the crucial issue to be decided."

8. It will be remembered that the jury were told by the trial judge that they were entitled to draw inferences from the evidence. If, contrary to the Court of Appeal's view, there was evidence from which the jury might have drawn inferences adverse to the accused, then they may have done that. If so, since they were not directed that they could only draw such an inference if it was the only reasonable one, they would have done so on a direction crucially less protective of the accused than the normal inference direction, which is a direction going to the vital matter of the standard of proof in a criminal trial.

9. So the pivotal question at the leave stage is whether it is at least reasonably arguable that there was evidence from which the jury might have drawn inferences adverse to the applicant. On this question Mr Griffiths for the applicant points to eight items of evidence.

10. First, there was the evidence of the injuries to the complainant. From this evidence, it is said on the applicant's behalf, the jury might have drawn the inference that the complainant had not consented to the intercourse.

11. Secondly, there was the evidence of pieces of a hairclip of the complainant's being found under the applicant's bed. From this evidence, it is said on the applicant's behalf, the jury might have drawn the inference that the hairclip had been broken during the violence of non-consensual intercourse.

12. Thirdly, there was the evidence that the complainant had used a plastic bag in gathering physical evidence. From this evidence of such use of a plastic bag, it is said on the applicant's behalf, the jury might have drawn the inference that she had done so because she had been raped.

13. Fourthly, there was the evidence of the complainant's distress when making a 999 telephone report to the police. From this evidence, it is said on the applicant's behalf, the jury might have drawn the inference that her evidence of having been raped was truthful.

14. Fifthly, there was the evidence of the complainant's distress when she complained of rape to a Woman Police Constable who was one of the officers who responded to that 999 telephone report. From this evidence too, it is said on the applicant's behalf, the jury might have drawn the inference that her evidence of having been raped was truthful.

15. Sixthly, there was the complainant's testimony that she was only joking when she had told a co-worker named Linda that she i.e. the complainant would want 500,000 pesos from the applicant if he wanted anything more than a massage from her. From this evidence, it is said on the applicant's behalf, the jury might have drawn the inference that there had been no plan to blackmail him.

16. Seventhly, there was the evidence consisting of the complainant's tearful demeanour while denying the suggestion made in cross-examination that a proposal by Linda that the applicant be photographed if he indecently assaulted the complainant was part of a plan to blackmail him. From this evidence, it is said on the applicant's behalf, the jury might have drawn the inference that there had been no such plan.

17. Eighthly and finally, there was the evidence of the calendar entries made by the complainant. From this evidence, it is said on the applicant's behalf, the jury might have drawn the inference that the incidents of which she complained took place in the way she alleged.

18. In our view, it is reasonably arguable that there was evidence from which the jury might have drawn inferences adverse to the applicant. We grant leave to appeal under the "grave and substantial injustice" limb on this basis.

19. Even though we grant leave to appeal on this basis, we must consider whether there is any other basis, or are any other bases, on which we should grant leave to appeal.

20. The second point which Mr Griffiths for the applicant puts forward as a point of law of great and general importance amounts to this proposition. That where a witness's credibility is important to, or at least where it is crucial to, the prosecution's case, a trial judge ought not simply to direct the jury that they may accept some parts of a witness's evidence while rejecting other parts of it, but ought to add a cautionary note to the effect that if they disbelieve a prosecution witness's evidence on anything material, then they should be particularly slow to accept that witness's evidence on anything else material.

21. It is at least reasonably arguable that the failure of the judge to sound such a cautionary note amounted, in circumstances such as the present, to a departure from accepted norms. The judge did not add any such note of caution when he said this to the jury: "It is also open to you to accept some parts of a witness's evidence but not others." We grant leave to appeal on this point under the "substantial and grave injustice" limb.

22. The third point which Mr Griffiths for the applicant puts forward as a point of law of great and general importance involves inconsistent verdicts. There is no controversy as the relevant law. The Court of Appeal simply took the view that, on the evidence, it was open to the jury consistently to convict on the counts on which they convicted while acquitting on the other counts. Nor can it be said that the way in which the Court of Appeal approached the evidence in this regard involved any departure from accepted norms.

23. Fourthly and finally, Mr Griffiths for the applicant contends as follows. It is reasonably arguable that the summing-up was so strongly tilted towards stressing the strengths of the prosecution's case and overlooking or downplaying the strengths of the defence case as to depart from accepted norms to the applicant's disadvantage. Therefore the Court of Appeal's refusal to quash the rape conviction was itself a departure from accepted norms to the applicant's disadvantage and constituted substantial and grave injustice to him.

24. We do not consider this reasonably arguable on the evidence and how the judge summed it up.

25. In the result, we grant leave to appeal to the Court of Final Appeal under the "substantial and grave injustice" limb and only on that limb. We grant such leave under that limb on the "only reasonable inference" argument and the "cautionary note" argument but not on any of the other matters urged on the applicant's behalf.

[The applicant asked for the costs of the leave application, but the Appeal Committee declined to deal with those costs at this stage. The applicant applied for bail pending his appeal to the Court of Final Appeal, but the Appeal Committee refused bail, ordering that the appeal be listed for hearing on 10 and 11 December 2001.]