TSUI KIN CHEUNG v. R.

IN THE COURT OF APPEAL

1993, No.22
(Criminal)

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, V.P.:

1. The appellant was convicted after trial before Deputy Judge Daniell and a jury on two counts of rape. These were counts 16 and 21 in the indictment. Two co-accused were convicted on other counts in the same indictment. The appellant appealed against his convictions.

2. The evidence for the prosecution against the appellant consisted of the testimony of the alleged victim of the rapes, a schoolgirl named Leung Yee-wah, and two statements taken by a police officer under caution. The first of those statements was a confession to having raped another 14 year old girl, one So Yuet-ngor, on three separate occasions. However, the appellant was acquitted after a submission of no case to answer in respect of the counts in the indictment relating to these three alleged rapes.

3. After the statement relating to So Yuet-ngor had been recorded, the statement taking officer cautioned the appellant in respect of an alleged rape of Leung Yee-wah on 27 May 1991. This was the alleged offence which later became the subject of count 16 in the indictment. Almost immediately after that caution had been administered, the statement taking process was suspended following a request by the appellant to have a meal and then to see his solicitor.

4. After the solicitor had spoken to the appellant in private, the statement-taking officer, inexplicably, made no further reference to the rape alleged to have been committed on 27 May but directed his enquiry to an alleged rape of Miss Leung on 28 May 1991. This alleged offence subsequently formed the subject of count 21 in the indictment. Having recorded the caution, the officer noted in his own words "After Tsui Kin-cheung had signed he told me that Leung Yee-wah agreed to be fucked by him".

5. The officer then recorded the following words spoken by the appellant:

"Leung Yee-wah at that time was very angry with Tse Wing-cheung and Wong Wai-wah. She told me to drive them away for her. Later Leung Yee-wah embraced me. Afterwards I had sexual intercourse with her."

6. We pause here to observe that Tse Wing-cheung and Wong Wai-wah were two co-defendants who were alleged to have indecently assaulted and raped Miss Leung shortly before the occurrence of the events with which the appellant was alleged to have been involved.

7. The officer then asked the appellant this question:

"Had you even asked Leung Yee-wah before you had sexual intercourse with Leung Yee-wah"

8. To this the appellant gave the following answer:

"I had asked Leung Yee-wah whether or not she allowed me to fuck her. But Leung Yee-wah at that time did not say a word. Her eyes were looking at me. When I was fucking her she did not resist."

9. This statement having been put in evidence by the Crown, the appellant declined to give evidence.

10. The principal ground of appeal was that the deputy judge failed to direct the jury adequately or at all on the evidence relating to the issue of consent. Relevant to this issue was evidence that Miss Leung had written three letters to the appellant while he was in custody pending trial in which she expressed warmth and affection and a desire to visit him. In one letter she said that she knew that he had been "sent off there innocently". In her testimony at the trial, however, she said that she had been told to write two of the letters by a man surnamed Ng. The third letter was written by her of her own volition.

11. The deputy judge referred the jury both to these letters and to the behaviour of Miss Leung after one of the alleged rapes. He said:

"Now [counsel for the appellant] in referring to Miss Leung's evidence drew your attention to her behaviour. The evidence related to her having returned to the living room to watch the television and chat with the boys at the time very shortly after she claimed to have been indecently assaulted by Tse and raped by Tsui (the appellant) and I think other counsel have also dawn your attention to this evidence, and you will recall the evidence of Miss Leung relating to the letters which she sent to Tsui while he was in prison. Now, those letters were exhibited. It was her evidence that although she wrote the letters, she had been told to write them by somebody called Ng, but as Mr Wong had indicated to you, Miss Leung in her evidence did not allege that the first letter, that is D1, was sent at the urging of Ng. You may think that that letter genuinely reflected Miss Leung's feelings towards Tsui, but of course that is a matter for you.

In that letter, she writes that Tsui was sent to prison innocently. As I have said, these are small points but they are important to the extent that they may assist you in deciding the issue of consent."

12. However, the deputy judge made no specific reference to the cautioned statement which the appellant had made concerning his conduct with Miss Leung. The only reference he made to statements was as follows:

"Counsel has reminded you of the law relating to statements made by defendants to the police, in other words, cautioned statements, and I will repeat it and it is simply this: that what a defendant tells the police about other defendants or other persons can never be evidence against other defendants or other persons. It could only be evidence against himself." (emphasis supplied)

13. Mr Matthews, who appeared for the appellant in this court but not in the court below, submitted that the statement relating to Miss Leung raised the defence of consent and that the failure of the deputy judge to direct the jury that they should consider the contents of that statement as evidence in favour of the appellant effectively denied him a fair trial. He contended that since the appellant had elected not to give evidence and the statement had been placed before the jury as part of the Crown case, the jury should have been given a Sharp direction and told that in evaluating the admission on which the Crown relied they must take into consideration the appellant's accompanying explanation as evidence in deciding where the truth lay. He further submitted that it was all the more important to give such a direction in view of the letters that Miss Leung had written to the appellant while he was in custody awaiting trial.

14. Miss Hartstein for the Crown frankly conceded that the appellant's statement is undoubtedly a mixed statement in that it contains, on the one hand, an admission that intercourse had taken place and, on the other hand, an explanation which any reasonable jury would be entitled to conclude was an assertion by the appellant that Miss Leung had consented to have intercourse with him or, at the very least, that he believed at the relevant time that she was consenting to have intercourse with him. She contended, however, that the deputy judge had not misled the jury and that no injustice had been done.

15. We note that the statement referred only to the second alleged rape. But the first alleged rape was said to have occurred at 5.50pm on 27 May and the second in the early hours of 28 May. It must also be borne in mind that the appellant, although cautioned in respect of the first alleged rape, was not given an opportunity to make a statement in relation to that allegation. We therefore accept that the jury would have been entitled to infer from the appellant's explanation in his statement that Miss Leung had agreed to have intercourse with him and had embraced him, that it was entirely possible that both acts of intercourse had been consensual.

16. Plainly, the deputy judge did not fall into the error committed by the judge in Sharp (1988) 86 Cr.App.R. 274 of directing the jury that the explanatory or exculpatory part of the statement was not evidence of the facts related. As we have already observed, however, he did direct them, albeit in a different context in the passage to which we have already referred, that what a defendant tells the police about other defendants can never be evidence against those other defendants but "could only be evidence against himself". Is there any real possibility that, in the absence of a careful direction as to how they should consider the appellant's mixed statement, the jury might reasonably have been misled into thinking that the statement could only be treated as evidence against him?

17. Had the matter rested there we would have been disposed to answer that question in the negative. However, there was the evidence concerning the letters which Miss Leung wrote to the appellant while he was awaiting trial, one of which, as we have already pointed out, was admittedly written of her own volition. Although the deputy judge, very fairly, directed the attention of the jury to these letters, he did not specifically refer them to the appellant's defence as set out in his statement to the police, which, contrary to his clear confessions as to having raped Miss So on 3 and 6 June 1991, was effectively an assertion that Miss Leung had consented to having intercourse with him.

18. We are of the opinion that the circumstances of this case were such that an abstract reference by the deputy judge to the defence of the appellant's sufficient. What was required was a specific reference to the appellant's account of what had happened. In the light of Miss Leung's letters to the appellant the deputy judge's failure fully to present the appellant's defence leaves us with a lurking doubt as to the safety of these convictions.

19. We therefore allowed the appeal, quashed the convictions and set aside the sentences.