HKSAR v. LAU CHUNG PIU

CACC213/2015

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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Introduction

1.  On 8 June 2015, the applicant was convicted of rape, contrary to section 118 of the Crimes Ordinance, Cap 200, following a trial in the High Court before Deputy Judge Beeson and a jury.  On the same day, the applicant was sentenced to 7 years’ imprisonment.  The applicant filed a Notice of application for leave to appeal against conviction on 24 June 2015.

2.  The applicant, represented by Mr David Boyton, with him Mr Raymond Chui, who also both appeared for the applicant at his trial, now applies for leave to appeal against his conviction on one ground, namely that the applicant was deprived of a fair trial by the judge’s refusal to grant leave to the applicant’s counsel to cross-examine the complainant on her previous sexual experience.

The prosecution case

3.  On the night of 13 July 2013, Madam X (“PW1”), the complainant, and a Mr Wong (“PW2”), whom PW1 regarded as her boyfriend and who was also a friend of the applicant, joined the applicant in a local restaurant near where he lived before returning to the applicant’s home in Ma On Shan with some take-away food and some beer and red wine.

4.  In the course of that night, they consumed the alcohol in the living room, as a result of which PW1 became very drunk and went into a guest room to sleep.  PW2 later also went to sleep in the main bedroom, while the applicant slept on a sofa in the living room.

5.  At about 07:45 hours the following morning, PW2 received a telephone call from his company and subsequently left for work by himself. When he left, the applicant was still asleep in the living room.  At some time after 8 am, PW1 woke up to find that her jeans and underpants (in which she had fallen sleep) had been removed and the applicant was lying next to her.  A conversation ensued in which the applicant admitted he had had sexual intercourse with her and that he had not worn a condom.  The prosecution alleged that this night was only the second time the applicant had met PW1, and that he had taken advantage of her when she was drunk and had sexual intercourse without her consent.

The Defence case

6.  The applicant elected not to give evidence and called no witnesses.  Whilst it was not disputed that sexual intercourse had taken place between the applicant and PW1, the defence case presented at trial was that it had been consensual. The applicant explained in his video-recorded cautioned interview that, at the time, PW1 could interact with him and had given him various indicators which gave him the impression that she was consenting to sexual intercourse.

7.  Under cross-examination, it was put to PW1, but disagreed by her, that she had flirted with the applicant at the restaurant and told him that her recent job had been “modelling sex toys”[1]. Regarding the impact of the incident on her, PW1 said that she had had nightmares every day for a month following the incident and that she continued to endure “great pressure” thereafter as a result[2].

8.  When PW2 was cross-examined, he agreed that PW1 was quite open about sex and went around looking for men in Lan Kwai Fong[3].  In respect of what was said at the restaurant, PW2 denied hearing PW1 say that her recent job had been modelling sex toys; PW1 only said that 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 photographer[4].

Application under section 154 of the Crimes Ordinance, Cap 200

9.  Central to the present appeal is the judge’s refusal of the oral application by the defence for leave to cross-examine PW1 on her previous sexual experience in respect of two specific areas.

10.  The first area related to the alleged conversationat the restaurant, where PW1 had apparently disclosed to the applicant certain previous sexual experiences which, Mr Boyton submitted, amounted to flirting and an invitation to become more intimate with the applicant.

11.  The basis for questioning the complainant in relation to this first area lay in the applicant’s video-recorded interview at the following counters:

“740.	Q:	Er, ah er about [PW1’s] sex life, er did she ever disclose anything about that to you?
741.	A:	Sex life?
742.	Q:	Yes.
743.	A:	Er, does chatting during meal count?[5]
744.	Q:	That means er, to your knowledge…
745.	A:	That means probably, I, I don’t know if hers were true or not, because her…[indistinct]…
746.	Q:	Well, does she er – to your knowledge, have any sexual experience?
747.	A:	Er, she does.”

12.  The second area concerned PW1’s allegedly open attitude towards sex, which she had disclosed in an interview some 9 months after the incident with the applicant.  An article following that interview was published in a local magazine on 6 March 2014.  The fact that the complainant had given this interview, as well as some of its content, were said to be consistent with a woman who was sexually predatory and inconsistent with someone who had suffered the type of psychological impact she claimed to have suffered following the incident with the applicant.

13.  In support of the intended cross-examination on the second area, Mr Boyton’s written submissions put the matter in this way[6]:

“The Accused applies for leave to cross-examine on an interview or expose the complainant gave to the Next Magazine, apparently after the alleged rape. The article depicts the complainant dressing up to attract rich men for sex, which is inconsistent with someone 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.”

14.  Prosecuting counsel at trial opposed the application on the following basis:

(a)  The mere disclosure of one’s prior sexual experiences did not amount to flirtation;

(b)  The article in the magazine was inadmissible evidence and a piece of inflammatory journalism; and

(c)  The article would not have been read by the applicant at the time of the offence.

15.  In the course of oral submissions, the judge remarked that people openly discussed their sexual experiences on television “chat shows” all the time.  Ultimately, the judge considered that no unfairness would result should leave not be granted, hence she refused the application.  She added that defence counsel may wish to re-introduce the material at a later stage of the trial.

Grounds of appeal against conviction

16.  In his Perfected Grounds of Appeal against Conviction, Mr Boyton contends that the judge’s refusal to grant leave to cross-examine PW1 on her previous sexual history deprived the applicant of a fair trial and has rendered the conviction unsafe and unsatisfactory.  He submits that the applicant was prejudiced by the prosecution’s closing submissions[7], which went directly to the issue of consent, whereas the applicant was deprived of the opportunity adequately to deal with matters which went to PW1’s credibility, when, as the judge correctly told the jury, her credibility was paramount[8].

17.  Mr Boyton complains that, as a result of the judge’s refusal to permit cross-examination, he was only able to rely on his cross-examination of PW2 to establish that PW1:

(a)  was open about sex;

(b)  actively looked for men at Lan Kwai Fong; and

(c)  went to Taiwan with a photographer.

18.  In his written submissions,Mr Boyton further takes issue with the judge’s summing-up in that she failed to deal with the conversation at the restaurant as disclosed in the applicant’s video-recorded interview.

19.  Mr Boyton contends that the areas of cross-examination on which leave was sought were relevant and capable of changing the jury’s minds about PW1, whilst the judge’s failure to grant leave rendered him unable to:

(a)  put the defence case to PW1 directly;

(b)  use the material to establish PW1’s attitudes towards sex and contradict her alleged reaction to the incident with the applicant;

(c)  undo the damage done in prosecuting counsel’s closing submissions; and

(d)  properly test PW1’s testimony.

Respondent’s submissions

20.  Mr Jonathan Man, for the respondent, submits it was an unsupported assertion that the disclosure of PW1’s supposed prior sexual experiences at the restaurant amounted to flirting with the applicant when considered in proper context.  The alleged conversation had not taken place in romantic circumstances, or in circumstances where two strangers might be meeting for a short-term liaison; and further, even if the complainant had had sexual relations with the photographer, it was hardly relevant to the applicant’s circumstances or the issues in the case.

21.  He stressed that:

(a)  The alleged conversation in the restaurant was irrelevant and certainly not of sufficient importance that it might otherwise reasonably lead the jury to take a different view of the complainant’s evidence;

(b)  The intended cross-examination if allowed would subject PW1 to an unwarranted and unacceptable humiliation, which section 154 of the Crimes Ordinance, Cap 200 was intended to avoid;

(c)  The defence case was not one of mistaken belief in PW1’s consent;

(d)  The applicant’s belief arising from the alleged conversation could not be related to his state of mind when he committed the offence; particularly since sexual intercourse took place several hours later in a completely different setting;

(e)  The application was not pursued on the basis that the alleged conversation was relevant to the applicant’s belief in PW1’s consent; and

(f)  There was nothing “rare and exceptional”[9] in the present context which would justify the granting of leave.

22.  In respect of the intended cross-examination of PW1 on the magazine interview and article, Mr Man sought to differentiate the factual circumstances leading to the offence here, involving a rape by a friend of her boyfriend in a social gathering at the friend’s home, with a rape by someone she had just met in a nightclub in Lan Kwai Fong.  He argued that PW1’s willingness to be interviewed about her nightlife was not therefore incompatible with the psychological impact of the rape by the applicant.

23.  He further argues that Mr Boyton’s written submissions before the judge (see para 13 supra) exposed defence counsel’s reliance on the twin myths, long now discredited, that “unchaste women were more likely to consent to intercourse”, which was identified by McLachlin J in R v Seaboyer[10] but rejected as generalized, stereotyped and unfounded prejudices which ought to have no place in a legal system: see R v A (No 2) [2002] 1 AC 45, at 59G-H, per Lord Steyn.

Consideration

24.  If I was only concerned with the alleged flirtation by PW1 in the restaurant, I would have had no hesitation in rejecting the argument as one which was not reasonably arguable.  First, the provenance of the contended-for flirtation is very weak, arising out of a short passage in the applicant’s video-recorded interview, into which more meaning than is perhaps warranted on the face of the exchange has been injected. Secondly, even assuming an element of flirtation in the conversation, the context was several hours earlier in completely different circumstances.  I have difficulty in seeing either its relevance or its significance.

25.  The Next Magazine interview and article, however, is of a different quality.  First, the fact that PW1 gave such an interview was readily susceptible of proof by the witness herself, even if she may not have agreed with the entirety of the contents of the article.  Plainly, this was not a “fishing exercise” by the defence.  Secondly, the thrust of the article, even allowing for a degree of sensationalism, might be thought to provide some support for the defence point, which was that the complainant enjoyed “one-night stands” with partners she had just met and had a somewhat predatory attitude to men and sex.  Thirdly, the fact that she gave such an interview at all did not perhaps, on one view, sit very comfortably with a woman who claimed to have been raped a few months earlier and had been traumatised psychologically as a result.  As such, the point went to PW1’s credibility about her reaction to the episode with the applicant.  Mr Boyton argues it went further because, if the jury found that PW1 was not psychologically affected as she claimed by what happened between her and the applicant, that might have impinged on the issue of whether intercourse was or may have been consensual.  Fourthly, the fact that PW1 gave such an interview obviously intended for public consumption, complete with somewhat lurid photographs of herself, might be thought to counter the argument that the complainant needed protecting from the “unwarranted and unacceptable humiliation” of being confronted with such material.

26.  I would not, therefore, be prepared to say at this stage that cross-examination as to the interview and article was irrelevant to an issue in the case.  There are respectable arguments on both sides and it will be a matter for the Court of Appeal upon full argument to decide whether this matter was relevant and significant enough to have warranted the judge exceptionally granting leave to cross-examine, on the basis that it would have been unfair to the applicant to refuse to allow the evidence to be adduced under section 154(2) of the Crimes Ordinance.

27.  Since I consider that there are respectable arguments on both sides, which I have endeavoured to summarise above, it is neither wise nor necessary for me at this stage to attempt to give a definitive answer to this question myself.  I am satisfied that the ground of appeal is reasonably arguable and I grant leave to appeal accordingly.

[1]  See transcript of PW1’s testimony: Appeal Bundle p 243D-L

[2]  See transcript of PW1’s testimony: Appeal Bundle p 236G-M

[3]  See transcript of PW2’s testimony: Appeal Bundle p 262B-C

[4]  See transcript of PW2’s testimony: Appeal Bundle p 263G-N

[5]  Counsel related this to the meeting at the restaurant.

[6]  Appeal Bundle p 295

[7]  The challenged remarks include:

“Something that you may wish to bear in mind in considering whether she [PW1] would have in fact consented is this, this was only the second time that she had ever met him [the applicant].  She hardly knew him at all, and she knows that his name was Billy.  But she hardly knew the man, why would she wanting to have sexual intercourse?” (Appeal Bundle p 280 I-K)

“A matter for you, members of the jury.  It would be impossible for her to have had sexual intercourse with someone she did not like, even if she was drunk.” (Appeal Bundle p 281G)

“Well you might think, members of the jury, looking at all the evidence that you have heard, that she [PW1] absolutely did nothing to encourage the defendant to have sexual intercourse with her… He hadn’t spoken to her.  He didn’t know her full name, as I said, he had met her twice.  Both times in the company of her boyfriend.” (Appeal Bundle p 281 P-Q and S-T)

“There were some allegations, you may recall, which were you might think somewhat outrageous, one of which was that she [PW1] had got together with her boyfriend, Wong Wing-chi [PW2], made up a story, that she was flirting with the defendant at dinner that night, that she had modelled sex toy and become friendly with photographer that she had consumed a red tablet and she’d gone to Korea and had sex with photographer.  Those allegations, members of the jury, are plainly outrageous and ought to bear no part in your consideration of the facts in this case.  I’ll say no more about it.” (Appeal Bundle p 282 F-I)

[8] The relevant parts in the judge’s summing-up were as follows:

“She [PW1] denied the suggestion that she had been earlier flirting with the defendant by talking about modelling sex toys, and it was alleged by the defendant that she gave the defendant signs of wanting consensual sex.  I point out that she is the most important witness in this case so her credibility is a very important matter.” (See Appeal Bundle p 23 K-N)

“So there were various accounts of the same events which you are required to consider and, in some instances, reconcile with one another.  There is no doubt about the meeting taking place at the restaurant.  Whether there was flirtatious conversation there, it was suggested by the defence but there is no evidence of that and Madam X disagreed with it in any event.  In fact, even if there had been talk of that nature, it would not wipe out the evidence relating to the rape or provide any excuse for a rape or a reason for a rape.” (See Appeal Bundle p 27 C-H)

[9] See R v De Angelis (1979) 20 SASR 288, per King CJ at 293

[10] (1991) 83 DLR (4^th) 193 at 278C