HKSAR v. CHAN KWOK HO

CACC 25/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 25 OF 1999

(ON APPEAL FROM HCCC 107 OF 1998)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 12 January 1999, the Applicant (D1 at trial) was convicted of rape (count 1), following a trial before Mr Recorder Lawrence Lok SC and a jury. On this count, the jury acquitted D2 who had been charged on the basis of a joint enterprise with D1. The jury also acquitted D1 on a second count of attempted non-consensual buggery and D2 on a third count which alleged attempted rape. The victim specified in all the counts was the same person throughout. The learned Recorder imposed a sentence of eight years' imprisonment for the rape offence. D1 now seeks leave to appeal against conviction and sentence.

Prosecution's Case

2. The general circumstances in which the victim (PW1), a 19-year-old student, was alleged by the prosecution to have been raped were broadly based on PW1's account, and was wholly dependent, so far as the rape allegation itself was concerned, upon her version. In summary, her evidence was that on 17 December 1997, she went to a restaurant to meet a male friend (Tang) with whom she had previously had a sexual relationship. The purpose was to have some drinks together as it was Tang's birthday. After they had met, D1 and D2 joined them. PW1 knew D1 as a casual acquaintance. She had never met D2 before. The drinking session went on until the early hours of 8 December 1997 by which time PW1 had become "a bit tipsy", to use her own description of the state in which she found herself.

3. At about 1.00 or 2.00 a.m. the group of four left the restaurant at PW1's suggestion. She was under the impression that Tang would see her back to her home. However, it was D1 who gave a direction to the taxi driver to take them to the junction of Shantung Street and Portland Street. PW1 got out of the taxi and agreed to go up to D1's flat. She was assisted in going up the stairs to the flat by D2.

4. Five or six minutes later, D1 returned to the flat himself, having apparently helped Tang to find a prostitute in a brothel several floors below his own flat. PW1 had expected to see Tang at some stage because she had thought that he was going to see her home. D1 then kissed PW1 and asked her to be his girlfriend. She did not take kindly to this and it was then D1 began to assault and strip her. PW1 shouted out loudly and D1 asked D2 to increase the volume of the hi-fi. D2 did so. D1 then struck PW1 hard in the face and when she continued to struggle, D1 used a pair of handcuffs to fasten her hands together at her front. PW1 knelt down and begged to be allowed to go. D1 struck her on the waist and told her to perform oral sex. Meanwhile, D2, who had been in the cockloft during these events, came down at one stage and pointed a machete at PW1's chest and threatened her that if she did not stop making so much noise he would cut her up. (This allegation, coupled with his increasing the volume of the hi-fi to cover the sound being made by PW1, were the acts which formed the basis of the allegation against D2 that he was party to the joint enterprise of rape in count 1.)

5. Thereafter, PW1 submitted to D1's demands and performed oral sex on D1 for some minutes. Her legs were then pulled apart with great force and because she was still shouting her mouth was taped with some masking tape. PW1 was then raped. Penetration lasted some minutes but PW1 said that D1 did not seem to ejaculate. D1 then asked her if she had previously had anal sex. She replied that she had not. She was then turned over and D1 attempted, without success, to penetrate her anus.

6. D1 then told PW1 to "serve" D2. D2 gestured towards PW1 to keep quiet. He did not molest her. Instead, he asked D1 to unlock the handcuffs. D1 said to D2 at that stage, "Don't pretend to be a good guy", although he did then unlock the handcuffs using a screwdriver to do so. In general terms, that is how PW1 gave evidence at the trial.

Defence Case

7. The case for the defence painted a very different picture. D1 accepted that he had met PW1 before and he produced a copy of a note (the original having been given to the police) which he said PW1 had given to him showing her name and telephone numbers. D1 said that their first meeting had led to their making love at his flat. Following this, PW1 had noticed a pair of handcuffs at the flat and she inquired whether D1 was a police officer. He explained that the handcuffs had been given to him by a former girlfriend in order to increase the speed of her orgasm and he suggested that when he next had sexual intercourse with PW1 she should try the handcuffs on for herself. D1 said that this is what duly happened. On 7 December 1997, D1 said that he met PW1 by chance, because at that stage he had acquired a steady girlfriend. D1 was then prevailed upon by PW1 to allow her to spend the night at his flat because she did not want her father to scold or hit her for smoking. D1 told her that D2 would also be staying at the flat, but she raised no objection.

8. When they left the restaurant as a group of four, D1 said that he told the driver to go to the junction at Shantung Street and Reclamation Street. In the course of the journey, he heard Tang say that he wanted to celebrate his birthday having asked if there were a lot of brothels in the area. When the taxi stopped, D1 went off with Tang to a brothel in case Tang ran short of money and was unable to afford the services of a prostitute. He also told Tang to come back to his flat upstairs when he finished at the brothel. (It should be said that the prosecution alleged that D1 put himself out to be helpful to Tang in order to give himself the opportunity to rape PW1.) D1 said that when he returned to his flat, he made love to PW1.

9. D1's account to the police (Exhibit P6) was adopted by him when he gave evidence. This was to the effect that it was PW1 who wanted to play sado-masochistic (S & M) games with him. He said PW1 initiated the oral sex which took place and that it was PW1 who put on the handcuffs. D1 said that he had to increase the volume of the hi-fi because PW1 was shouting loudly. He said that at one stage he was interrupted by D2 when D2 pointed a machete at him and told him to keep his voice down. When PW1 continued to shout during their love-making, D1 said that he would put adhesive tape over her mouth if she carried on in this way and she replied "Fine". He then did put adhesive tape over her mouth and said that, during the course of their making love, he removed the handcuffs. He denied attempting to have anal intercourse. All in all, D1's version was that PW1 was a consenting party to what took place between them.

Ground of Appeal

10. With that general background, Mr Hanif Mughal, on behalf of the Applicant, has put before the court one ground of appeal which he submitted renders the verdict unsafe and unsatisfactory. He alleged that in convicting D1 on count 1, the jury reached an inconsistent verdict which no reasonable jury properly directed could have reached, having acquitted D1 on the charge of attempted buggery and D2 on the joint rape offence. He submitted that the jury demonstrated in those acquittals that they had rejected PW1's evidence that the use of the machete by D2, coupled with his intimidating words, was to threaten PW1 and cause her to submit to the rape by D1 as she had alleged.

Submissions

11. Mr. Mughal relied in particular on one part of the transcript of evidence and one part of the summing up which, he argued, demonstrated the vital importance of PW1's evidence against D2. He submitted that the acquittal of D2 on count 1 shows PW1's credibility to have been effectively destroyed on the issue of consent. Taking each of these extracts in turn, PW1 testified that:

" After he (D1) had come up, suddenly he kissed me and said that he wanted me to be his girlfriend. I dodged him. He bit my left cheekbone. Then he started to take off my clothes. I struggled and refused to let him do that. But he was a male; my strength was of no match for his and I was a bit tipsy. He continued to take off my clothes until he had stripped me naked. I shouted for help loudly. I thought that that would alert the neighbours. But Chan Kwok-ho (D1) asked Chan Wai-sheung (D2) to turn on the volume of the hi-fi to cover my voice.

Q.	Did Chan Wai-sheung do that or not?
A.	No.
Q.	All right. Carry on. Did anybody turn up the volume of the hi-fi or not?
A.	Chan Wai-sheung.
Q.	Chan Wai-sheung turned up the volume of the hi-fi?
A.	Yes.
Q.	Now, why did you say 'no' just now?
A.	I said, 'yes'.
Q.	All right. Okay. Carry on.
A.	I can't remember what stage I have come up to.
Court:	Well, you said you were stripped naked. You shouted 'help' loudly. You thought by doing so you would alert the neighbours. The 1st accused then asked the 2nd accused to turn up the volume of the hi-fi to cover your shouting, and the 2nd accused then turned up the volume.
A.	Chan Kwok-ho then hit me with great force. I think he hit me on the right face, to tell me not to shout.
Q.	Hit you on the right face with what?
A.	Hand.
Q.	Yes, carry on.
A.	As I was still struggling, he took out a pair of handcuffs from somewhere. Then he handcuffed both of my hands at my front. I knelt there and begged him to let me go. He then hit me on my right waist with very great - a very great force.
Q.	Hit you with what?
A.	Hand. Then he told me to make love to him and to perform oral sex on him. I had no alternative but to act accordingly."

And then these words which are particularly emphasised by Mr Mughal:

" I did that because before that, Chan Wai-sheung had taken out a knife to threaten me. I was very scared. He placed the knife at the front of my chest and said that if I still made so much noise he would cut me open. That was why I yielded, because I was afraid that he would kill me. Chan Kwok-ho had already stripped to his underpants. I then performed oral sex on him.

Q.	Now, you said that his underpants was still on, so how could you have performed oral sex?
A.	I knelt there. I then used my hands, which were handcuffed, to pull down his underpants a bit so that his private parts could expose. Then I performed oral six on him for five to six minutes. I said that I was very tired, and I requested him to let me go. I was still crying bitterly. He pushed me down with very great force and parted my legs with great force and tried to rape me. I was very unwilling to do that, and I tried to dodge him. He was still using great force. I tried to push him away, but in vain because my hands were restrained. Then he took out a roll of brown adhesive tape and covered my mouth. Then he raped me."

12. In the summing up, the learned Recorder summarised the passage which I have just read from the transcript and, dealing with D2's role, said this to the jury:

"At this stage, according to PW1, D2 came down from the cockloft. He produced a machete and placed it in front of her chest and threatened to cut her up if she made more noises. Under those circumstances, she (PW1) said she yielded and she performed oral sex on D1 for some five to six minutes."

13. On the face of these passages, a superficial reading of the papers might well indicate that the guilty verdict recorded against D1 was a little surprising, bearing in mind the acquittal by the same jury of D2 in spite of PW1's evidence of his complicity in the crime. It has been necessary, therefore, to look in some detail at other aspects of the evidence to see whether the jury had sound reasons for distinguishing between the two alleged offenders in their verdicts.

14. The summing up was comprehensive, and no criticism has or indeed could be levelled at its content. Every aspect of the case was fully, fairly and accurately covered. The Recorder directed the jury in model terms at the outset that they could accept all or only part of PW1's evidence and that the defendants and the charges should be considered separately. We concur with the Recorder's apparent view that this was not a case where the verdicts on count 1 against D1 and D2 necessarily stood or fell together. The same applies to the verdicts on counts 1 and 2 in the case of D1. There are a number of reasons for saying this with which we must deal.

15. Firstly, taking the short point raised by Mr Mughal when he submitted that the jury returned an inconsistent verdict on count 2, it is necessary to turn to the medical evidence firstly. Dr Poon Wai-ming's evidence was supplemented by a medical report (Exhibit P20) which was placed by agreement before the jury. That report listed a number of physical injuries amounting to 16 areas of bruising and two areas of abrasions to PW1's limbs and private parts. Some of the injuries were consistent with forceful penetration. Of course, the doctor could not exclude the possibility that these were caused by S and M games with which they were also consistent. On the other hand, there were no signs of any recent injury to the anus, although Dr Poon did also testify that if there had been no penetration of the anus, there would be no visible injury.

16. More importantly, the evidence introduced as "recent complaint" fell short of amounting to a consistent complaint of the kind alleged in count 2. PW1 made a complaint of having been raped by D1 to three witnesses (PW2, PW3 and PW5). PW2 and PW5 were her friends. She made no mention to either of them that D1 had attempted to have anal sex with her. PW3, on the other hand, was a welfare worker at an establishment that takes care of women who have been abused. PW1 made a claim to her of having been made to have anal sex.

17. Bearing in mind that there was no corroboration of PW1's account, it seems to this court that it may well be that the jury were not satisfied that there was sufficiently consistent account that attempted buggery had taken place. In this context, it is also significant that PW1 made no mention to any of the "recent complaint" witnesses, that she had been the subject of a later attempted rape by D2. This will undoubtedly have been a considerable factor in the minds of the jury who acquitted D2 of the attempted rape alleged in count 3.

18. Following the legal directions the jury had been given, in our judgment the jury were entitled to conclude that they were not sure about count 2 to the required standard. In any event, the offences alleged in counts 1 and 2 were separate acts of a sexual nature, and it was open to the jury to find themselves satisfied that one of the offences had been made out while feeling unsure that the other had been established. Indeed, only this morning Mr Blanchflower, on behalf of the Respondent, drew our attention to a case not dissimilar to this: R. v. Van Der Molen, (1997) CLR 604. His submission was that the jury had, by its verdict, shown that it had carefully weighed the evidence in assessing what it was prepared to accept and what it was not prepared to accept just as the jury in Van Der Molen had done. This was not a case in which the judge could have given an all or nothing direction, and such a direction would have been a misdirection if the judge had given one. The jury, in our view, were entitled on the evidence before them to produce different verdicts against D1 on counts 1 and 2 because the evidence was not the same.

19. The mere fact that PW1's credibility had been called into question by the jury on one aspect of her evidence as it related to count 2, did not of itself necessarily render the conviction on count 1 unsafe. The jury were entitled to reject some aspects of her evidence and to accept others in the way that the judge had directed them. They may, in other words, have been sure of the allegation in count 1 but less than sure of the other allegation in count 2. Such a distinction was perfectly reasonable.

20. When we come next to consider D2's acquittal on count 1, the jury's decision is even more clearly to be seen as having been a perfectly rational one. There are a number of reasons for this conclusion.

21. Firstly, PW1 never made any complaint to PW3 of having been threatened with a knife.

22. Secondly, in her complaint to PW5, again the victim did not mention being threatened with a knife but, more specifically, she referred to the other boy (clearly this was D2 in the context) as having played the role of a rescuer. The Recorder summarised PW5's evidence of PW1's complaint as follows:

"The other boy, on seeing a rapist treating her roughly, told the rapist to let her go and said it was his turn. After the rapist had let her go, the other boy used his hand to cover PW1's mouth and said, 'Don't make noises. I will let you go.' But that was overheard by the other boy and she was dragged down again."

23. The Recorder, in dealing with the discrepancies between PW1's account when compared to PW5's version of PW1's complaint, went on to emphasise this evidence when he said:

"The role of the other boy was that of a rescuer. When he said it was his turn, he was trying to rescue PW1 from the rapist..... The other boy, on seeing the rapist treating her roughly, told the rapist to let her go and said it was his turn. After the rapist had let her go, the other boy used his hand to cover PW1's mouth and said, 'Don't make noises. I will let you go.'

So, it would appear the representation made by the other boy that it was his turn was merely an excuse to save her from the hands of the rapist. Now, when the boy who raped her overheard what had been said by the rescuer, he dragged the complainant down again."

24. Thirdly, both D1 and D2 testified that while D2 had pointed a knife, this was intended by D2 to keep them from making so much noise. The Recorder reminded the jury of D2's evidence in this regard:

"He (D2) denied he had ever threatened PW1 with a machete in a manner as alleged by PW1. He denied he had ever attempted to rape her at about 1 am on 8 December 1997. Now, on D2's version of the events, the act of pointing the machete at D1 and PW1 was done in order to ask them to keep the noises down. It is the case of D2 that that was not done to intimidate PW1 into submitting to the 1st defendant."

25. The jury would have had in mind also that PW1 had said it was D2 who asked D1 to unlock the handcuffs after the incident with the machete.

26. Bearing these factors in mind, there was every reason for the jury to be concerned about D2's true involvement when his evidence had been that his threat with the machete was not made with an intention to assist D1 to rape PW1. He said that he had pointed the machete towards PW1 and D1 to keep the noises down. It may of course be that PW1 thought she was being threatened, but the jury had to consider whether she was right about this bearing in mind D2's testimony.

27. We were greatly assisted by Mr Blanchflower's submissions in writing, upon which he hardly had to enlarge in court today, and we accept his submission that the jury may very well have found, and reasonably found, that there was insufficient evidence of D2's participation. In fact, bearing in mind the evidence given about the role played by D2, based on PW1's account to the jury on the one hand and to PW3 on the other, which was to the effect that D2 had acted as a rescuer at one stage, the acquittal of D2 could hardly, when fully analysed, be described as surprising.

28. The jury was clearly troubled by D2's alleged involvement in a joint enterprise because, before they returned their verdicts, they asked two questions more than three hours into their deliberation which reflected their concerns. The jury had to take into account not only what PW1 had said about D2's threat with the machete but all the other evidence as well which came from D1, D2 and the witnesses who heard PW1's complaint when considering PW1's reliability on that issue.

29. In those circumstances, we have had to ask ourselves whether there was sufficient evidence for the jury to have found that PW1, in the absence of threats from D2, did not give her consent to the act of sexual intercourse or that D1 was at the very least reckless as to whether or not she had consented. It is apparent from PW1's account, which the jury must have accepted in order to have convicted D1, that she had been subjected without her consent to a series of physical assaults before she was handcuffed. All of these events took place before the incident involving the machete. Thus, assuming as we must that the jury was unsure about D2's purpose in making threats with the machete, there was still an abundance of evidence before the jury which enabled them to conclude that D1's behaviour amounted to rape. Indeed, D1's behaviour towards PW1 was echoed (at page 95 in the appeal bundle) in an answer given by PW1 when she was describing how D1 told her to serve D2. She said:

"As I was afraid that D1 would hit me again, so I went up to the bed on the cockloft to serve D2."

It was at this stage that she went on to relate how D2 had tried to get D1 to unlock the handcuffs.

Conclusion

30. For the reasons we have given, we do not find that there is substance to the application so far as it concerns conviction and it must, therefore, be dismissed.

(The application relating to sentence was adjourned to allow the Applicant to instruct counsel privately.)