HKSAR v. LIM WAI LUNG PATRICK CHRISTIAN AND OTHERS

CACC 86/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 86 OF 2012

(ON APPEAL FROM HCCC NO. 171, 172 AND 203 OF 2011)

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

Introduction

1.  The five applicants, Lim Wai Lung (D1), Yeung Man Chung (D2), Chung Chi Wo (D3), Hung Wing Fung (D4) and Yong Kwong Fai (D5) appeared before Tong J (the judge) sitting with a jury on a consolidated indictment consisting of 13 charges, all sexual offences against five girls (X, Y, A, B and C) who were under the age of 16.

2.  Offences concerning X and Y were committed on 21 January 2011 at Room B, 22^nd Floor, Oceanic View, No 218 Tung Chau Street in Shamshuipo (Oceanic View Premises) and offences concerning A, B, and C were committed on 22 January 2011 at Room G, 14^th Floor, Far East Bank Mongkok Building, Kowloon (Far East Bank Premises).

3.  Oceanic View Premises and Far East Bank Premises were respectively the residence of D4 and D2.  D2 claimed that D1 and D3 contributed to the rent of the Far East Bank Premises and could therefore have its access.  D1 only admitted to having keys to it.

4.  Charges 1 and 2 (administering drugs to facilitate an unlawful sexual act) respectively alleged that D1 to D4 had caused X and Y to take sleeping pills (zopiclone) with intent to stupefy or overpower them to enable anyone to have unlawful sexual intercourse with them.

5.  Charges 3 and 4 respectively alleged that D1 to D4 raped X and Y.

6.  Charge 5 alleged that D2 indecently assaulted Y.

7.  Charges 6, 7, and 8 (administering drugs to facilitate an unlawful sexual act) respectively alleged that D1, D3 and D5 had caused A, B and C to take sleeping pills (zopiclone) with intent to stupefy or overpower them to enable anyone to have unlawful sexual intercourse with them.

8.  Charge 9 alleged that D1, D2, D3 and D5 indecently assaulted A.

9.  Charges 10 and 12 respectively alleged that D1, D2, D3 and D5 raped B and C.

10.  Charges 11 and 13 (alternative charges to charges 10 and 12) respectively alleged D1, D2, D3 and D5 had unlawful sexual intercourse with B and C, both 14 years of age.

11.  D2 pleaded guilty to charges 5 and 9 and not guilty to other charges.  D3 pleaded guilty to charges 9 and 11 and not guilty to other charges.

12.  D1, D4 and D5 pleaded not guilty to all the charges.

13.  On 19 January 2012, the jury returned the following verdicts on charges to which the applicants pleaded not guilty:

D1: guilty of charges 1 to 4, 6 to 9 and 13, but not guilty to other charges;

D2: (who pleaded guilty to charges 5 and 9) guilty of charges 1 to 4, but not guilty to other charges;

D3: (who pleaded guilty to charges 9 and 11) guilty of charges 1 to 4, and 6 to 8, but not guilty to other charges;

D4: guilty of charges 1 to 4; and

D5: guilty of charges 6 to 9, but not guilty to other charges.

14.  The judge sentenced D1 to 13 years’ imprisonment, D2 to 11 years’ imprisonment, D3 to 12 years’ imprisonment, and D4 and D5 each to 10 years’ imprisonment and 7 years’ imprisonment respectively.

The Applications

15.  D1 sought leave to appeal against conviction and sentence on charges 1 to 4, 6 to 9 and 13.  By a Notice of Abandonment dated 20 November 2012, D1 abandoned his application for leave to appeal against sentence.

16.  D2 sought leave to appeal against conviction on charges 1 to 4, and against sentence on charges 1 to 5 and 9.  By a Notice of Abandonment dated 25 June 2012, D2 abandoned his application for leave to appeal against sentence.

17.  D3 sought leave to appeal against conviction on charges 1 to 4, and 6 to 8, and against sentence on charges 1 to 4, 6 to 9 and 11.

18.  D4 sought leave to appeal against conviction and sentence on charges 1 to 4.

19.  D5 sought leave to appeal against conviction and sentence on charges 6 to 9.

20.  At the commencement of the hearing, D3, D4 and D5 informed the court that they would not pursue their applications relating to sentence and those applications were dismissed.  The Court is only concerned with the applications for leave to appeal against conviction.

The Prosecution case and evidence

21.  The prosecution’s case was that there was a pre-mediated plan to sexually assault young girls after drugging them.  D1, being young and having a better attribute, and was therefore considered more attractive to young girls, would befriend them on the internet and arrange to meet them.  The girls would be asked to bring other girls along and other applicants would join the gathering.

22.  X and Y were taken to the Oceanic View Premises and A, B and C were taken to the Far East Bank Premises where they would drink vodka and have finger-guessing game.  When the girls were drunk, sleeping pills were given to them on the pretext that they were “anti-alcohol” pills.  When the sleeping pills started to take effect, the girls were sexually assaulted.  They were indecently assaulted, raped or made to have oral sex and sexual intercourses with the applicants or some of them.

23.  It was suggested that the applicants acted in a joint enterprise or had assisted others to commit the offences even though not all of them had sexual intercourse with the victims.

24.  The prosecution alleged that D1 to D4 were all parties to the plan to render X and Y semi-unconscious before they were raped at the Oceanic View Premises on 21 January 2011.  The prosecution alleged the applicants either raped X and/or Y or assisted others to rape them as part of a joint enterprise.

25.  The prosecution also alleged that D1, D3 and D5 were parties to the plan to administer sleeping pills to A, B and C at the Far East Bank Premises on 22 January 2011.  D2 joined them after the girls were drugged and the four of them sexually assaulted the girls by raping B and C or having unlawful sexual intercourse with them, and indecently assaulting A.

26.  It was agreed that X and Y were born in September 1996 and March 1996 and at the time of the offences were respectively 14 years and 4 months, and 14 years and 9 months’ old.

27.  A, born in November 1995, was at the time of the offences 15 years and 1 month old.  B and C are twin sisters and they were 14 years and 3 months’ old at the material time, having been born in October 1996.

28.  X said she met D1 through Facebook and arranged to meet him in Langham Place, Mongkok in the evening of 21 January 2011.  She asked Y and another girl (“Plaster”) to accompany her and D1 showed up with D2 and D3.

29.  On D1’s suggestion, the group went to the Oceanic View Premises where D4, the tenant, was present.  The group played finger-guessing game and the losing parties had to drink alcohol which was a mixture of vodka and cola.  “Plaster” left early leaving behind X and Y with D1 to D4 and they continued to “play”.

30.  When X said she felt dizzy from the drinks, some of the boys asked them if they wanted “anti-alcohol” pills and some “anti-alcohol” pills were brought to them.  X and Y each took three pills and X said she felt “ultra dizzy” afterwards and vomited.

31.  When she was in the master bedroom using the computer, she felt dizzy and fell over.  D4 then dragged her to the bed, before stripping her and having sexual intercourse with her.  X said she was unable to push D4 off because of his size.  X said D4 had penetrated her without wearing a condom and touched her breasts for about 5 minutes before ejaculating in her mouth.  D4 then told X to go out to the sitting room in her tights and underpants as he had to change the bed-sheet.  According to X, D1 then took off her under garments and had sexual intercourse with her, before telling the others, “Hey, take over”.

32.  X was adamant that D1 touched her breasts and penetrated her lower parts and she felt great pain.  X said she tried to push D1 away but was unsuccessful.  X said she was able to recognise D1 because of the “woollen hat” that he was wearing and that she had also touched his hair which reached his eyes.

33.  X said D3 and D2 then took turn to have sexual intercourse with her.  X said she recognized D3 because she could touch and see his “bumpy” face.  X said D3 had penetrated her and made her perform oral sex on him.

34.  X said after D3 finished, D2 then had sexual intercourse with her and she saw his very long hair.  X said she was sure that three persons took turn to have sexual intercourse against her will as she could feel penetrations three times and three ejaculations.  She said none of them wore a condom.  X was able to identify D1 and D3 at identification parades.

35.  X said when she woke up at about 1 am, she heard Y crying out “No” repeatedly.  X later told Y that she had been molested by the boys one after another and Y said she wanted to leave, but could not find her mobile phone.  Y then had an argument with D2 and D3 over her phone and threatened to report the matter to the police if her phone was not returned to her.

36.  X and Y’s phones were then returned to them after a call was made to D1.  Y left first followed by X.  X then called hers and Y’s boyfriends and when she saw Y in Y’s boyfriend’s home, Y was crying incessantly.

37.  X said she was unsure if it was D1 or D4 who mentioned the “anti-alcohol” pills.  X denied that she was fond of D2.  She agreed at one stage that she was unsure if it was D2 who had sexual intercourse with her, but she said she could recognise his long hair.  X denied the suggestion that she consented to have sexual intercourse with D3 or D4.

38.  Y gave similar evidence as X and confirmed that having met up with D1 to D3, they went up to the Oceanic View Premises where D4 was present.  The group then played finger-guessing games and as she and X often lost they had to take the alcoholic drinks repeatedly.

39.  Y said it was D1 who gave her and X each three “anti-alcohol” pills and after taking them, she felt very hot and dizzy.  She said she then went to the toilet where she passed out.  When she came around, she found D1 trying to have sex with her.  She resisted, but D1 grabbed her and penetrated her and she felt very painful.

40.  Y also alleged that D2 touched her chest and other parts of her body.  She was then lifted up to the bed and D3 told her to sleep.  Y said D2 told her that D1 had molested her, but it was no use reporting to the police as D1 knew many [police] inspectors and could have framed her.  D2 even suggested that Y could get someone to beat D1 up, but she should not report to the police.

41.  According to Y, X complained to her that she had been raped by 4 boys.  When she found her phone missing, she threatened to report to the police if it was not returned to her.  Y then looked for her boyfriend and when she saw X in her boyfriend’s home, she got back her phone from X.

42.  Y was able to describe D4 as the owner of the Oceanic View Premises; D1 was the one with comparatively fair skin and long hair and was wearing a woollen hat; D2 was “Golden Hair” and D3 was the shortest one with pimples on his face.

43.  Y was adamant that it was D1 who asked her if she wanted to take “anti-alcohol” pills and then gave them the pills before raping her.  She said D1 identified himself and told her “to be good, just one movement” when she resisted him.  She said she had no strength and could not stop D1 holding his private parts to penetrate her.

44.  Y said D2 also asked to have sex or oral sex with her, but she refused and he did not insist and D3 then told her not to cry and that he would try to get back her phone for her.  Y agreed that D3 did not have sexual intercourse or oral sex with her when she was sober and that she was unaware if D2 had masturbated and ejaculated by her side.

45.  Y was able to identify D1 and D3 at identification parades when she alleged that D3 had also raped her.

46.  “Plaster” said before she left the Oceanic View Premises, she heard D1 and D4 asking Y if she had taken “anti-alcohol” pills before and telling her that the blues ones had a stronger effect than the yellow ones.

47.  In connection with the events on 22 January 2011 at the Far East Bank Premises, A, B and C gave evidence.

48.  A said she came to know D1 via the internet in early January 2011.  She arranged to meet D1 in Mongkok on 22 January 2011 and asked B and C to accompany her.

49.  Having met up with D1 who was accompanied by D3, D1 proposed that the party should go to his home, namely the Far East Bank Premises which they did.  The group played finger-guessing game and the losing party had to consume vodka mixing with cola or red wine mixing with Ribena.

50.  According to A, it was D1 who contacted D2 and D5 and asked D5 to buy “anti-alcohol” pills when she felt dizzy and tipsy.  Before D2 and D5 arrived, D1 proposed to turn off the light to sleep and they lay down on the bed.  D3 then touched her body and made sexual advance to her and she successfully resisted him.

51.  When D5 arrived with “anti-alcohol” pills, they were each given three pills.  A said she initially refused to take it, but it was D1 who asked C to give them to her and she eventually took three.

52.  According to A, D5 then took off her trousers and tried to have sexual intercourse with her.  She said she asked D5 if he had put on a condom and he said yes although she could not see if he did.  She said she was unsure if D5 had penetrated her, but he used his fingers to molest her and requested her to have oral sex which she complied with.  A also said D2 then used a vibrator to molest her before D1 and D3 asked her for oral sex one after the other.

53.  A was adamant that it was D1 who mentioned “anti-alcohol” pills and instructed D2 or D5 to get them and that it was D5 who gave them the pills for consumption.  A also said she saw B performing oral sex on the boys when she was on the bed.  A admitted that her impression of D5 was not as deep as that of the others.  She also accepted that she was able to describe the tattoos on D5’s body because of what B had told her.

54.  A was able to identify D1 and D3 in identification parades, but not D2 and she also made a mistaken identification of D5.  A agreed that it was D1 who told her to call D5, asking him to buy things and bring them up.

55.  B confirmed how they went up to the Far East Bank Premises and how she got drunk after playing the finger-guessing game.  She also confirmed that D1 said he was tired and they switched off the light and went to sleep.  She said she was sleeping next to D1 and he started to touch her body and tried to take off her trousers.  She was able to resist him and push him off.

56.  Then D5 arrived and gave them “anti-alcohol” pills and each of the girls took three.  B said C then went out of the room with D1 and she remained in the room.  B subsequently found D3 trying to molest her.  B said she asked him if he had put on a condom and she said D3 just made one or two moves when molesting her.  B alleged that D2 was the last one to molest her because he arrived late.

57.  B accepted that when she showed her unwillingness to D1 taking off her clothes and touching her, D1 did not make further moves.  B also accepted that she could not remember if D2 had assaulted her or had sexual intercourse with her or whether she had performed oral sex on him. 

58.  B claimed to have said “no” when D3 touched her, but when asked if she had consented to have sexual intercourse with him, she said “half and half” and that took place before she had consumed the pills.  When pressed if she was consenting to having sex, she said at the beginning she didn’t want it, somehow she then became “half-resisting, half-accommodating”.  She even said, “You may say I could have pushed off the other party.”  However B was adamant that it was D5 who gave them the pills.

59.  C also confirmed that after playing finger-guessing game for a while, they became tired and they took a rest.  D1 and D3 then called D5 and D2, asking them to buy alcohol and “anti-alcohol” pills for the girls.

60.  C said she was in the sitting room and the bedroom door was closed.  D1 then came over, saying that he wanted to do it with her and she said “no”.  D1 then started taking off her trousers and in her muddled state, she asked D1 to put on a condom before they had sexual intercourse.  C was adamant that D1 had sexual intercourse with her and did not just finger her.

61.  C said when D5 arrived with the pills, he entered the room and gave the pills to D1 who then distributed them to the girls.  She said D1 even gave the girls water to wash down the pills.  C agreed that D2 did not have much contact with her.  C disagreed with D5’s suggestion that D1 had asked D5 to molest C, but D5 said he shouldn’t as C was very young.

62.  According to the boyfriends of X and Y, X and Y complained to them that they had been sexually molested by several boys and they were not strong enough to resist.  The mothers of A, B and C related to court their conditions when they saw their respective daughters on the night in question.

63.  Toxicological examinations on 22 January 2011 revealed the presence of chlorotheophylline in blood samples of X and Y and cholrotheophylline, dimenhydrinate and zopiclone in their urine samples.  Zopiclone was also found in the urine of B and C.

64.  At a search of the Oceanic View Premises, the police found the presence of zopiclone and used condoms with the semen of D2 and D3.  There were also the presence of the finger prints of D1 and D4.  D2’s semen was found on the body and clothing of Y.

65.  At the Far East Bank Premises, the police found a piece of cut cloth with D3’s semen.  D2’s semen was found on a pillow case.  DNA of D3 and D5 was found in various items.  The finger prints of D1 and D2 were also found. 

66.  In connection with offences against X and Y, D2, when interviewed by the police, denied that he had interfered with X or Y.  He said he saw Y come out of the bathroom and vomited all over herself.  He said he told D4 that he had sexual intercourse with X in order to tell him off.

67.  D3 admitted that he knew X and Y were drunk and could not walk straight after each of them had taken three “anti-alcohol” pills which, according to D2, were sleeping pills.  D3 further admitted to have touched Y’s breasts and private parts for 15 to 20 minutes and that he took condom from the guest room to have sexual intercourse with X who appeared drunk and half-asleep.

68.  D4, when interviewed by the police, said he was aware that the girls became drunk and vomited.  He said he was aware that X was a bit tipsy after he had sexual intercourse with her.  He said he wanted to have sexual intercourse with Y as well, but was unable to do so as she refused and he had just touched her.

69.  When being accused of raping A, B and C, D1 told the police that the girls were all sober and consenting.  D2 said he knew D1, D3 and D5 were having drinks with the girls at the Far East Bank Premises and when he arrived, the girls all appeared a bit drunk.  He said he had asked the others why they had to do all that again and that he had called D1 earlier asking him to apologize to Y.

70.  D3 said he was aware that the girls complained of feeling very drunk and dizzy after taking the “anti-alcohol” pills.  He admitted to have attempted to have sexual intercourse with A when she shouted in pain and appeared to be drunk.

71.  D5 said he was aware that the girls appeared drunk when he arrived at the Far East Bank Premises and he reckoned others made them drunk to molest them.  He admitted he knew that the girls were provided with “anti-alcohol” pills and he heard shouts and protests by the girls in the room.  D5 also said D1 had told him he knew that the girls were underage.

The Defence case

72.  D1 to D4 accepted that they were present at the Oceanic View Premises on 21 January 2011.  D1, D2, D3 and D5 also admitted that there were present at the Far East Bank Premises on 22 January 2011.  D1 to D4 accepted that the girls had been subjected to sexual abuses in their presence but in their evidence, they tried to put the blame on each other and tried to minimize their own roles.  D5 elected not to give evidence and he did not call any witness.

D1’s Evidence

73.  D1 said it was D4 who suggested going to Oceanic View Premises and it was D4 who initiated the topic of “anti-alcohol” pills and then gave “anti-alcohol” pills to X and Y.  D1 claimed to have no idea of the nature of those pills.  D1 said he saw D4 and D2 taking X and Y respectively into the bedroom.  He alleged that D2 asked him to “molest” X and that X had also embraced him, but he did not do anything improper to her.

74.  D1 said he took off his woollen hat and coat and suggested that D2 had put on his woollen hat.  D1’s suggestion was that X and Y had mistaken D2 to be him when D2 had sexual intercourse with them.  He said he saw D2 hugged X on the sofa while wearing his woollen hat.  D1 said he left early and D2 and D3 called him later telling him that the girls left crying.  D1 said he did not have sexual intercourse with X or Y and did not indecently assault them.  He said he believed the pills taken by X and Y were “anti-alcohol” pills.

75.  According to D1, having met A, B, and C with D3 on 22 January 2011, they went up to the Far East Bank Premises on D3’s suggestion with the keys that D1 had.  D1 admitted he knew A was underage.  He said it was D3 who asked A to call D2 to ask him to come and play.  They had finger-guessing games and when they were slightly drunk, D5 and D2 also arrived.  D1 alleged that it was D5 who asked A, B and C to take the “anti-alcohol” pills which they did.

76.  D1 admitted he had suggested that they should turn off the lights and sleep, which D3 did.  According to D1, when B was sleeping next to him, he had embraced her and tried to take off her trousers, but he stopped when B resisted.  D1 alleged that after D5 gave “anti-alcohol” pills to A, B and C, D3 and D5 took A and B respectively into the bedroom and locked the door.  He admitted that when he was with C in the sitting room, he tried to have sex with C and put on a condom at her request.  When he inserted his finger into her private part and when C said it was painful, he stopped immediately and did nothing else.

77.  D1 said he saw A and B performing oral sex on D2 and D5 and someone suggested the one who performed well should do it for him.  He said it was probably B who had oral sex with him on someone else’s suggestion.

78.  D1 said he did not indecently assaulted A, did not have sex with A, B or C, and he did not see anyone having sex with C.

79.  D1 denied saying it was comfortable having sexual intercourse or oral sex with A, B or C and he did not say, “The one in the sitting room had been taken care of”.

80.  D1 denied giving the pills to the girls and his case was that the other applicants had concocted their evidence to frame him.

D2’s Evidence

81.  D2, in his evidence, said it was D1 who asked X and Y if they were drunk and then gave them the pills.  He also said he saw D4 and X going into the master bedroom and D1 took Y into the other room as if they were trying to have sex.

82.  D2 admitted that he was fond of Y and wanted to have sex with her, but gave up the idea when she refused although she promised to have it with him next time and asked D2 not to be angry.  He even suggested that his semen was found on Y’s clothing because he had masturbated by her side when he was in a sexual urge.

83.  D2 said Y cried and then complained to him that she had been molested by D1, but as he had also touched her, he took away her mobile phone to prevent her from making a report.  He admitted he had told Y not to report to the police and D1 had known many [police] inspectors.

84.  According to D2, he did telephone D1 and D3 the next day, and had asked D1 to apologize to Y, but D1 was reluctant.  He said D3 told him that the police had looked for D4.

85.  D2 said when he returned to the Far East Bank Premises the next day, he saw D1 on the sofa on top of C, half-kneeing towards her and with his pants taken off.  He also saw D3 on top of B and A having oral sex with D5 in the room.  He said he heard B say to D3 she had menstruation and D3 then said that he would use a condom, which he did.

86.  D2 admitted that A performed oral sex on him and he had put a vibrator on her private parts.  D2 said he asked B to perform oral sex on him because he heard either D3 or D5 saying that B was good at it.  He said he also saw A and B performing oral sex on D1 in the room.

87.  D2 denied that he had worn D1’s woollen hat at any time or that he had lied to frame others.

D3’s Evidence

88.  D3 denied he had asked anyone to bring “anti-alcohol” pills to the Oceanic View Premises.  He said he did not see X or Y taking the pills and he did not know the nature of those pills.  D3 said he did not give the pills to X and Y and he only heard them saying that they had taken “anti-alcohol” pills before.

89.  D3 said he saw D4 taking X into the master bedroom and D1 and D2 took Y into the other room, but he did not know what they actually did to the girls.  He then saw X sleeping on the sofa in the sitting room and he had sexual intercourse with her with her consent.  He said X asked him to put on a condom.

90.  D3 suggested that when he later saw Y in the bedroom, Y cried, saying that D1 had bullied her.

91.  D3 said at D1’s request, he met him on 22 January 2011 in Mongkok and he also saw D1, A, B and C.  They went to the Far East Bank Premises (which was sublet to him and D1 by D2) to play finger-guessing games which involved alcoholic drinks.  He said when they were tired, they slept together.  D3 said he did not see the girls taking the pills and he did not call anyone to bring “anti-alcohol” pills although he did hear D1 or D5 asking the girls if they were drunk and if they needed any “anti-alcohol” pills.

92.  D3 said together with D1, he was one of the co-tenants of the Far East Bank Premises and he suggested going there on 22 January 2011 with A, B and C.  D3 said it was D1 who made the suggestion to play finger-guessing games and talked about his sexual experiences.

93.  D3 said it was either D1 or D5 who asked A, B and C whether they were drunk and if they needed “anti-alcohol” pills.  He said it was D1 who asked him to bring water for the girls which he did.

94.  D3 described how he indecently assaulted A and how he had sexual intercourse with B at the Far East Bank Premises on 22 January 2011 with her consent. 

95.  Apart from indecently assaulting A and having sexual intercourse with B with her consent, D3 also admitted that he had asked A to perform oral sex on him and he also said D2 had asked B to have oral sex on him.

96.  D3 said it was D1 who telephoned D5 to ask him to buy food and drink and bring them to the Far East Bank Premises.

97.  D3 denied having concocted evidence with other applicants and he said he was confused and afraid when he gave statements to the police.  He said parts of the statements were made up as he tried not to incriminate himself.

98.  D3 denied the suggestion that D2 had worn D1’s woollen hat, but accepted the suggestion that he did not see D1 having sex with any of the girls on both evenings.

99.  D3 said he made up stories regarding what other defendants did during the interview by the police for self-protection as he thought the more people he dragged in, the lesser his criminal liability would be.  He said what he said about D2 and D1 was not true.  He said the “Ah Fai” he mentioned with regard to the “anti-alcohol” pills was not D5 as he knew many “Ah Fai”s.

100.  D3 was, however, adamant that D5 did enter the room where A, B and C were sleeping.  He also alleged that it was the police who put down sleeping pills in the record of interview and that his explanation regarding the “anti-alcohol” pills was incorrect as he only made them up based on what the police had told him.

D4’s Evidence

101.  D4 said he received a telephone call from D2 to go to the Oceanic View Premises on 21 January 2011 and when he arrived, he saw D1 and three girls, including X and Y.  D4 said he asked Y if she was an able drinker and Y replied that she would take “anti-alcohol” pills.  D4 then asked her which type and Y replied it was the large and yellow ones.  Then another accused said he had smaller blue ones which were of stronger effect.

102.  According to D4, D3 told him that X and Y had each taken three “anti-alcohol” pills when he asked him why X and Y vomited. D4 admitted that he had sexual intercourse with X after she and Y had taken the pills, but claimed that X consented to it.  He said he saw D2 coming out from the bedroom where Y was vomiting.  According to D2, Y woke him up because he and D3 took her mobile phone.  He said Y was very angry and she immediately left and X followed her after retrieving her own mobile phone.

103.  D4 was adamant that he had sexual intercourse with X with her consent, and she was sober though slightly intoxicated.  He said he did not see D2 having sexual intercourse with X or Y and he did not see X having sexual intercourse with D1, D2 or D3.  He said he did not see the girls taking the “anti-alcohol” pills nor did he see anyone giving them the pills.  He said it was only his speculation when he said in the interview that it was D3 who took out “anti-alcohol” pills as he had heard D3 mention “anti-alcohol” pills.  He said X and Y had lied against him.

D5’s case

104.  D5 did not testify and it was submitted on his behalf that what he told the police during the interview was true.  D5’s case was that he was not involved in any of the offences.

The Judge’s summing-up to the jury

105.  The judge gave a very long summing-up, both on facts and on law, to the jury.  In particular, the judge described in details the evidence of the girls and those of the applicants who had given evidence.  The judge reminded the jury that they must consider the charges separately and that “if a defendant is guilty of one offence, it does not mean that (he is) guilty of the other offences” and that “the reverse is also true”.

106.  The judge then referred to the similarities between the events at the Oceanic View Premises and the Far East Bank Premises and gave the following directions to the jury:

“In this case you have heard another concept called ‘similar facts’, or resembling facts, which in English is ‘similar facts’. It is a concept related to evidence. Basically, the prosecution says that the incidents on the nights of the 21^st and 22^nd are similar in that on both nights all the girls claimed that they had been indecently assaulted and raped upon taking drugs. In these circumstances, the prosecution thinks that the facts of the case show that the defendants in question should have been aware of the real nature of the anti-alcohol pills which, having been consumed by the girls, caused them to be in an impaired state of consciousness, etc. and that they all had the plan and the intention to assault the girls.”

“Based on the similar facts as pointed out by the prosecution, whether you can come to a definite conclusion that D1, D2 and D3 knew the actual nature of the anti-alcohol pills and that they jointly looked for suitable girls via D1...”

“If you accept this view of the prosecution, then you can refer to the incidents on the night of the 21^st and compare them with those of the 22^nd in order to decide whether the defendants were aware of the relevant incidents and what their intentions were. Of course, if you don’t believe or if you have reservation about the girls’ evidence, then of course you can’t adopt this concept of ‘similar facts’ to consider the evidence.”

“You must independently consider the prosecution evidence…the prosecution asks that you should find that the defendants involved in the two nights were accomplices. You need to consider whether this concept has been conclusively established. In this respect, you may consider whether any previous analysis of the concept of similar facts evidence is applicable. If it is, or if you find that the defendants were really accomplices, then this concept can be used to assess whether the defendants (each) played a different role in their commission of the offences. ...if you cannot arrive at the conclusion that the defendants participated in a joint enterprise in a planned manner, you must then analyse each offence separately to see which defendant(s) committed it, which one(s) gave assistance in its commission or which one(s) did not commit it, or which (ones) possibly did not commit it, before you reach a proper verdict of guilty or not guilty. …you must bear in mind that if there is any reasonable doubt in the prosecution case, the benefit of the doubt goes to the defence. (If a defendant is) guilty of one offence, it does not mean that (he is) guilty of the other offences, and the reverse is true. (If he is) not guilty of one offence, it does not mean that (he is) not guilty of the other offences. You must consider each (charge) separately.”

“If you accept the evidence of the girls, then different defendants separately gave each girl three pills. After the girls had taken the drugs, each presented different response. But not one (developed) serious (response) such as comma or death. You may remember that the expert’s evidence is that if there was an overdose, there would be such a possibility. Who decided this dosage of three pills? Was it a coincidence that it just happened to be three pills for each night, or was that a calculated dosage? If it was the latter case, namely that the dosage had been calculated, would it show that the meetings, playing, taking of drugs and assaults of the two nights were (arranged under) a joint enterprise, or were they purely coincidences? On the other hand, you may well consider that if amongst the defendants, someone gave the drugs to the girls to take, and this defendant knew that those were in fact sleeping pills, would he act alone and give the drugs to the girls for their consumption without letting the other defendants know? If he hid this from the other defendants, but if he did not stealthily give it to one girl but gave each girl three pills, then what did he intend to do? Or if the other defendants really had no knowledge at all, when they saw X and Y vomit so badly, would they tell them to go home or let them sleep, or would they even think they had taken the wrong drugs and send them to hospital? And why was it that on both nights, the girls took the drugs, then the defendants touched them up and even had sexual intercourse with them, with vomit all over the body, why was there such a situation? On the whole of the evidence, would it show that the joint enterprise alleged by the prosecution has been established? You must give very careful consideration to this point. You of course need to balance your consideration with what the defence says, namely that they were separate incidents with no plans involved.”

107.  On the issue of joint enterprises, the judge said to the jury:

“The prosecution case is that the defendants committed the relevant crimes together. Even though each of them played a different part, if they were acting together as part of a joint plan or agreement to commit the offence, each of them is guilty. To give an example on the offence of administration of drugs, suppose some defendant goes to buy sleeping pills, some defendant takes them to a flat, some defendant gives them to the girl(s), some defendant encourages the girl(s) to take them claiming that they are anti-alcohol pills, some defendant fetches some water to the girl(s) to help her wash down the pills. If each individual defendant knows that the pills are sleeping pills instead of anti-alcohol pills and their intention is consistent with that relevant to the offence(s), then even though their acts are different, they must have acted in joint enterprise.

As for the offence of rape, it’s the same concept e.g. if two persons join up to force a girl into sexual intercourse where one subdues her and the other performs sexual intercourse forcibly, then for the one who has no sexual intercourse with the girl, he has still committed the joint offence of rape because he has given assistance… if a defendant knew full well that his friend(s) intended to assault the girl(s) and provided a venue, or by administration of drugs (to) enable(d) him or his friends to have sexual intercourse with the girl(s) while they were not conscious, reckless as to whether they were consenting or not; and (if) eventually such acts did take place, then such acts of providing a venue and of administration of drugs will constitute the basis for the joint offence of rape even though the individual defendant himself did not have sexual intercourse with the girl. He is still a co-offender of the offence of rape...

Members of the jury, the words ‘plan’ or ‘agreement’ etc do not mean that there has to be any formality about it.  An agreement to commit an offence may arise on the spur of the moment.  Nothing need be discussed or said at all.  It can be made with a nod, or a knowing look, or it can be inferred from the behaviour of the parties.  The essence of joint responsibility for a criminal offence is that each defendant shared a common intention to commit the offence and played his part in it, however great or small, so as to achieve that aim.”

108.  The judge reminded the jury if they were not satisfied that there was a joint enterprise, they must then analyse each offence separately to see which “defendants committed it, which ones gave assistance in its commission or which ones did not commit it, or which ones possibly did not commit it”, before they reached a proper verdict of guilty or not guilty.

109.  The judge reminded the jury on identification evidence as follows:

“…although the defendants in this case do not deny their presence in the two separate units, in relation to the identification of the individual defendants by the girls about what they had done to them, you must be careful to consider whether the basis of their identification is sufficient and safe. It is because at the time of the incidents, it seems that it was quite dark inside the units and the rooms. Whether the girls could actually see clearly is something that you should carefully assess. In respect of the identification, the prosecution did not seek to rely on identification by voice; I believe that you all are very clear about this point.”

110.  On the question of D1, D2, D3 and D4 pointing accusing fingers against each other, the judge told the jury:

“…there’s a situation in this case that you should take note of. Amongst the defendants, in particular between D1 and the other defendants who gave evidence in the box, there existed (a situation) which is legally known as ‘cut throat defence’…i.e. while the defendant claims innocence when he gives evidence, he accuses the other defendant(s) of committing the crime or doing some act(s) in connection with the crime. At the same time, the other defendant(s) also say(s) the same thing. When dealing with this kind of evidence, you should be very careful. If the defendant’s overall evidence including his accusation against the other defendant(s) raises reasonable doubt in your mind about the charge that this defendant faces, you should find him not guilty. It’s not that you must find that the person accused did do it or is guilty before you can find the accuser not guilty. Of course, if you are certain that this type of evidence, the type of evidence accusing other people is true, you can use it against the relevant defendant.

I’ll give you an example again to enable you to understand better. Say, both A and B are jointly accused of theft. A gives evidence that he didn’t do it while B did it. B said, ‘I didn’t do it, A did it.’ Based on the principle that I’ve just mentioned, there’ll be the following scenarios: first, when you are not certain whether A did it, it doesn’t mean that you must say B is the culprit. Second, if you’ve reasonable doubts about whether B did it, regardless of whether B did it or not, you’ll have to find A not guilty. Third, whether B did it or not depends on the prosecution’s evidence, (whether it can make) you certain that B did it. If you are certain, then of course you can convict B of theft. Fourthly, if you think that what A accuses B is true, then you can rely on his evidence to convict B if A says so under oath in the witness box and you believe him. Fifthly, the reverse is true for B…

… looking at it as a whole, even though all the defendants in this case employ cut throat defence, it doesn’t mean that there must have been a defendant who has done something.  You may come up with an outcome that all are not certain as to who has done what….”

Grounds of Appeal

111.  Mr Andrew Bruce SC for D1, Mr Oliver Davies for D2, Mr HY Wong for D3, D4 and D5 all complain about the judge’s direction to the jury on “similar facts” evidence.

112.  Their suggestion is that the judge’s “separate consideration” direction to the jury was insufficient to prevent the prejudicial effect of “similar facts” evidence on the applicants’ case and could lead to “circular reasoning” on the part of the jury when it was easy for them to characterize the applicants as persons who were likely to have committed the offences in question.

113.  They suggest that the judge had failed to identify the matter in issue to which similar facts evidence might be relevant, how it might be relevant.  They further suggest that the judge had failed to warn the jury that bad character or propensity as shown by similar facts evidence did not mean that they were guilty of the offences charged.  Counsel refer to HKSAR v Zabed Ali [2003] 2 HKLRD 849.

114.  Mr Bruce also complains about the judge’s direction to the jury on the issue of joint enterprise.  He argues that the judge had failed to identify the specific acts of each of the applicants which were relevant to the issue of joint enterprise.

115.  Mr Bruce supports, albeit half-heartedly, the submission of Mr Davies that the judge’s direction in relation to joint enterprise was at variance with the prosecution case.  He suggests that there was no evidence of pre-planning when some of the girls said it was D1 who supplied the drugs whereas some other girls described D4 or D5 as the supplier.

116.  On the issue of identification, Mr Bruce argues that the judge should give a full “Turnbull” direction to the jury when the girls were, on the prosecution case, intoxicated and were susceptible to hallucination when they were drunk and drugged.

117.  Mr Bruce suggests that the evidence might not be sufficient to show that D1 was aware of the nature of the drugs supplied.  He suggests, in his written submissions, that there was no evidence to show that D1 was aware of the incapacitating effect of sleeping pills even if he did administer them to the victim.

118.  Mr Davies supports Mr Bruce and further points out that D2’s behaviour was markedly different from those of the other defendants.  He emphasizes that D2 did not force the girls to have sex and in so far as X alleged that D2 had sexual intercourse with her after she had taken the “pills”, her evidence was vague.  Mr Davies emphasizes that D2 was in fact acquitted of the offences relating to A, B and C.

119.  Mr Davies suggests that the judge should have pointed out to the jury the weakness of X’s identification of D2 and should have given the jury a “Turnbull” direction to warn the jury the danger of convicting D2 on identification evidence, particularly when X said she was not sure of her identification of D2 and that during the alleged sexual intercourse, X had her eyes closed and she only discovered that the person raping her had long hair.

120.  In his written submission but not vigorously pursued in his oral submission, Mr Davies complains that the judge’s summing up on joint enterprise was inconsistent with the prosecution case.  He emphasizes that the prosecution case was that there had been a pre-meditated plan to drug and rape the victims, yet the judge directed the jury that the defendants could have jointly committed the offences without a pre-mediated plan, but on the spur of the moment.  Mr Davies relies on R v Falconer-Atlee (1974) 58 Cr App R 348.

121.  Mr Wong suggests that the judge’s direction on “similar facts” did not sufficiently bring home to the jury that similar facts evidence had no application to the case against D4 and D5 and that he had muddled up his direction on joint enterprise.

122.  Mr Wong argues that the judge’s direction on “cut throat defence” did not follow that of the specimen direction on the issue and could be confusing to the jury.

123.  On charge 3 against D4 who had admitted to have sexual intercourse with X, Mr Wong argues that the judge should have left the alternative verdict of unlawful sexual intercourse with a girl under 16 when D4 said he genuinely believed that X was consenting.  He emphasizes, relying on Ho Hoi Shing v HKSAR [2008] 11 HKCFAR 354, that the judge was duty bound to place before the jury all possible alternatives which were open to them on the evidence.

Discussion

124.  It was not disputed that X and Y, having met up with D1 to D3 in the evening of 21 January 2011, were taken to the Oceanic View Premises and together with D4, they played finger-guessing games which involved the taking of alcoholic drinks. It was not disputed that when X and Y were under the influence of alcohol, they were given what were said to be “anti-alcohol” pills, but were in fact sleeping pills.

125.  X and Y, having taken the sleeping pills, were subjected to sexual advances including sexual intercourses.  There could be no doubt that X and Y were given the sleeping pills to take because someone wanted to render them powerless to resist the sexual advances and to that extent, there was the administration of drugs on X and Y to facilitate an unlawful sexual act.

126.  The very next evening, on 22 January 2011, D1 and D3, having met up with A, B and C, took them to the Far East Bank Premises where finger-guessing games involving the taking of alcoholic drinks were played and when the girls became tipsy, they were also given what were said to be “anti-alcohol” pills, but were in fact sleeping pills.  Again the girls were subjected to sexual advances, including sexual intercourses with some of the applicants after they had consumed the “anti-alcohol” pills.

127.  Anyone who had sexual intercourse with X or Y after knowing that they had been knocked out or rendered unconscious or semi-conscious by sleeping pills would at least be reckless as to whether they would consent to having sexual intercourse and to that extent they would be guilty of rape.

128.  Anyone who was present and knowingly took part in the administration of sleeping pills on X and Y would be guilty of administering drugs to facilitate an unlawful sexual act and anyone who himself had sexual intercourse with X and/or Y or had aided or abetted another or others as part of a joint enterprise to have sexual intercourse with them would also be guilty of rape.

129.  Woo JA in HKSAR v Lam Wai Leung (unreported CACC 207/2000) referred to R v Coney (1882) 8 QBD 534 and in particular to what Hawkins J said at pp 557-558:

“But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power to do so, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not.”

130.  It was a question of fact as to whether there was a joint enterprise to drug and rape the girls; whether D1 to D4 had knowingly taken part in the administration of the sleeping pills to X and/or Y; whether they themselves had sexual intercourse with X and/or Y or had aided or abetted another or others to have sexual intercourse with them.  It was also a question of fact whether D1, D3 and D5 had knowingly taken part in the administering drugs to A, B and C and whether any of the applicants had sexual intercourse with any of the girls.

131.  On the evidence, it was open to the jury to conclude that there was a concerted effort on the part of D1 to D4 to administer drugs on X and Y on 21 January 2011 and on the part of D1, D3 and D5 to administer drugs on A, B and C on 22 January 2011 to facilitate unlawful sexual acts on them.

132.  It was open to the jury to conclude that D1 to D4 had individually raped or had taken part in a concerted effort to rape X and Y.  The jury was entitled to reject the applicants’ explanations in their cautioned statements and in their evidence in so far as those explanations were exculpatory in nature.

133.  Indeed, on the verdicts returned by the jury, it is clear that the jury accepted that there was a joint enterprise to drug and rape X and Y.

134.  The jury was also entitled to accept C’s evidence that D1 did not just finger her, but had had sexual intercourse with her.  Counsel for the applicants did not seriously suggest otherwise.

135.  Both Mr Bruce and Mr Davies complain, obviously not too seriously, that the judge was wrong to have left to the jury a case inconsistent with the prosecution case.  Whilst it was the prosecution case that D1 and D2 were parties to a pre-meditated plan to drug and rape the victims, the prosecution did not confine its case that they were just parties to an agreement made in advance with the other applicants to commit the offences.

136.  It was the prosecution case that not only were D1 and D2 parties to a prior agreement to drug and rape the victims on 21 January 2011, they were present when the offences were committed as parties to a joint enterprise.

137.  It was the prosecution case that D1 and D2 were actively involved in the playing of the finger-guessing game with X and Y and were present when sleeping pills were given to them on the pretext that they were “anti-alcohol” pills.

138.  It was the prosecution case that not only were D1 and D2 present when X and Y were raped, they had also themselves raped X and that D2 had tried to have sexual intercourse with Y before indecently assaulting her.  It was D2 who told Y that D1 had molested her and tried to persuade her not to make a report to the police.

139.  On such evidence, it was unrealistic to argue that the prosecution case was confined exclusively to the suggestion that there was a pre-meditated plan to drug and rape X and Y.  In any event, D1 and D2 were aware throughout of the prosecution’s allegation against them and they had a proper opportunity to deal with it.

140.  As pointed out by Mr Edmond Lee, Senior Assistant Director of Public Prosecutions, for the respondent, in R v Mendez & anor [2011] QB 876 at 883D-E, the English Court of Appeal cited R v Greatrex [1999] 1 Cr App R 126 as authority for the proposition that the principles which apply to a “pre-planned” joint enterprise apply equally to a “spontaneous” joint enterprise.

141.  In his written submission, Mr Davies relies on Falconer-Atlee (supra).  It was a case of theft of a dog.  The prosecution alleged that the defendant had originally acquired the dog honestly although as the result of a mistake, but subsequently, having become aware of the mistake, dishonestly decided to appropriate the dog.  There was never any suggestion by the prosecution that there was a deliberate switch of the dog at the outset.  However, the judge left the case to the jury both on the basis as put forward by the prosecution and also on the alternative basis that the defendant had acquired the dog dishonestly at the outset of the transaction by switching it for another.  The conviction was quashed on appeal on the basis that the judge had wrongly left to the jury for their consideration the alternative basis of theft to that originally opened by the prosecution and, separately, had failed to call the jury’s attention to a statutory defence.

142.  The present case is completely different from Falconer-Atlee (supra) and other cases in which the judge effectively left to the jury issues that had never been canvassed by either side, or where matters were left on the basis that the possible liability of the defendant was of a different nature from that opened by the prosecution.

143.  A judge is not bound by the way in which the prosecution opens or presents its case.  A judge is entitled to leave to the jury a basis different from the primary one put forward by the prosecution as long as it is not unfair to do so.  The judge had not departed from the essential gravamen of the prosecution case against D1 and D2.  We wish to conclude this aspect by referring to the judgment in R v Japes [1994] Crim LR 605 at 606:

“The judge was not bound by the way in which the Crown opened the case. If, in the light of the evidence as it developed, it became apparent that the same offence was or might have been committed on a somewhat different factual basis, it could not be right to say that the judge was debarred from leaving that basis for the jury to consider, even though it might not be the primary basis put forward by the Crown, so long as it was plain that the defendant was not disadvantaged or prejudiced by the judge so doing.”

144.  The Court of Final Appeal in Hau Tung Ying and Another v HKSAR [2011] 2 HKLRD 782 supports such an approach.  Chan PJ said at p 796 of the judgment:

“I am satisfied that in appropriate cases, the judge does have the power to consider the case or direct the jury on the case on a basis different from that presented by the prosecution, provided that this is open on the indictment and the evidence and the parties are given an opportunity to address the judge before he takes that course. This may occur where there is for instance a mistake or omission on the part of the prosecution or for some reason, it has decided to conduct the prosecution in a way with which the judge does not agree. Such situation must be rare and exceptional. In the cases cited, the conviction in question was quashed mainly on the ground that the defence had not been given the chance to address the court on the new basis and had thereby suffered a disadvantage or prejudice.”

145.  Both D1 and D2 had a proper opportunity to deal with all the allegations, which formed the subject matter of the 1^st to 4^th charges of which they were eventually convicted.

146.  Neither Mr Bruce nor Mr Davies complains of not having the chance to address the jury on the basis that the offences against X and Y were committed on the spur of the moment.  D1 and D2 did not suffer any disadvantage or prejudice because of how the judge chose to direct the jury.  The complaint that the judge had put a case different from the prosecution case is completely unfounded and should not have been raised or argued as a ground of appeal at all.

147.  Mr Bruce and Mr Davies both complain about the identification evidence.  It has to be remembered that this was not a case of the identification of a total stranger in a momentary and difficult situation. Both D1 and D2 admitted that they were together with X and Y on 21 January 2011 and with A, B and C on 22 January 2011 for a prolonged period.

148.  Each of the applicants had special features to enable the witnesses to identify them.  D1 was known as “M Tsai” and he was identified by X, Y and “Plaster” and by A, B and C at identification parades held on 28 and 29 of January 2011 respectively.  D2, nicknamed “Golden Hair”, was the tenant of the Oceanic View Premises and he was identified by “Plaster” and C at identification parades.

149.  X was able to describe in details what according to her “M Tsai” did to her.  She remembered that D1 was wearing a “woollen hat” and that he had hair reaching his eyes.  X was adamant that apart from D4 who raped her first, the other three men, namely D1, D2 and D3 took turn to rape her.  X was able to distinguish D1 and D2 from D3, nicknamed “Pimples” because of the pimples he had on his face and D4, nicknamed “Fatso” because of his built.

150.  Whilst X and Y might be under the influence of alcohol and sleeping pills when they were raped, X was adamant that all four men present had raped her.  Y was also adamant that D1 had raped her and that D2 had indecently assaulted her, a charge to which D2 admitted.  The jury was entitled to take into consideration X’s evidence that she heard D1 saying “Hey, take over” to the others and that D1 had told Y that he was “M Tsai”.

151.  Out of abundant caution and fairness to the applicants, the judge did remind the jury in the following term:

“Members of the jury, although the defendants in this case do not deny their presence in the two separate units, in relation to the identification of the individual defendants by the girls about what they had done to them, you must be careful to consider whether the basis of their identification is sufficient and safe. It is because at the time of the incidents, it seems that it was quite dark inside the units and the rooms. Whether the girls could actually see clearly is something that you should carefully assess. In respect of the identification, the prosecution did not seek to rely on identification by voice; I believe that you all are very clear about this point.”

152.  It must be remembered that the prosecution case, as clearly accepted by the jury, was one of joint enterprise and what exactly each of the applicants had done is not important as long as the jury was satisfied that there was a concerted effort on the part of D1 and D2 to commit the offences in question and that the applicants were parties to the concerted effort.  

153.  There was no dispute that D1 and D2, together with D3 and D4, were present at the Oceanic View Premises where X and Y were drugged and raped and it was simply not important as to what role each of D1 to D4 played.

154.  On the fact of the present case, the suggestion that the judge should have given the jury a full “Turnbull” direction is unfounded.  The prosecution evidence was certainly sufficient to enable the jury to find that D1 to D4 were parties to a concerted effort to drug and rape X and Y, and to convict them on such a basis.

155.  We find Mr Bruce’s submission that there was no evidence to show that D1 would be aware of the effect of sleeping pills even if he administered them to the victims surprising.  It is clearly a matter of commonsense and a question of fact for the jury to decide as to what D1’s intention and knowledge were when he gave the victims sleeping pills and claimed that they were “anti-alcohol” pills.

156.  We cannot see any merits in Mr Wong’s argument that the judge should have left the alternative verdict of unlawful sexual intercourse with a girl under 16 at all or that the failure to do so would lead to any injustice to D4.

157.  The prosecution alleged that D4 raped X.  D4 admitted that he had sexual intercourse with X with her consent when she was sober.  Apart from the issue of joint enterprise, the other issue was the issue of consent and if the jury had a doubt that D4 was not a party to the joint enterprise and that X might have consented, they would have acquitted D4 of charge 3.

158.  On this issue, it should be mentioned, as emphasized by Mr Lee, that (i) D1 and D2 had denied any sexual intercourse and D3 and D4 admitted sexual intercourse with X, yet they were all convicted of raping her; (ii) D2, D3 and D5 were acquitted of charges 10 and 12 of rape as well as the alternative charges of unlawful sexual intercourse except D3 who pleaded guilty to charge 11; and (iii) D2 was acquitted of charges 10 and 11, but D1 was convicted of charge 13.

159.  We agree with Mr Lee that such verdicts show that the jury was alive to the issue of consent and would not have over-convicted any of the applicants because the alternative offence of unlawful sexual intercourse was not left to them.

160.  We are further of the view that the evidence which may be relied on to support an alternative verdict of sexual intercourse with X’s consent was so incredible and tenuous or uncertain that no reasonable jury could have accepted it.  On the evidence, the judge was right not to leave unlawful sexual intercourse with a girl under 16 as an alternative to charge 3 of rape.

161.  The judge, in directing the jury on the “cut-throat” defence, said secondly, “if you’ve reasonable doubts about whether B did it, regardless of whether B did it or not, you’ll have to find A not guilty”.  The reference to “whether B did it” is a clear “slip up” when it should be “whether A did it”.  However we are not persuaded that the “slip up” would in any way render the conviction against D3 unsafe or unsatisfactory.

162.  The judge’s summing up to the jury on the “cut-throat” defence as a whole had sent out a clear message, that when two defendants are making accusation against one another, the jury must not convict one of them because they acquit the other and that they can only convict any defendant if they are sure of his guilt.

163.  Counsel for the applicants all complain about the judge’s direction to the jury on similar facts evidence.  Mr Bruce says there was no consistency as between the girls as to how the pills were produced and that they had varying apparent reactions to the pills.  He says there was insufficient focus on how the events and circumstances said to be similar facts impacted on the various offences.

164.  Mr Davies suggests that D2’s participation in the events of the two nights was not similar and emphasizes that D2 was acquitted of the charges relating to the events on 22 January 2011.

165.  Mr Wong argues that the judge had not properly directed the jury as to how the similar facts evidence might be relevant in accordance with the decision of the Court of Final Appeal in Zabed Ali (supra).

166.  Mr Wong further suggests that the judge had failed to stress to the jury that the similar facts evidence was not applicable to D4 and D5 as they were not present on both occasions.  Mr Wong argues that there was a real danger that the jury might think that after all, the similar facts evidence also applied to the case of D4 and D5.

167.  The evidence on charges relating to X and Y was admissible on charges relating to A, B and C, and vice versa.  As Lord Herschell LC observed in Makin v A.G. for New South Wales [1894] AC 57 at 65:

“…the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.”

168.  The prosecution contended that what happened to X and Y was so similar to what happened to A, B and C that there must have been a pre-mediated plan to befriend them by D1, lure them respectively to the Oceanic View Premises and the Far East Bank Premises to play finger-guessing games that involved the drinking of alcohol and when the girls were drunk, sleeping pills were given to them on the pretext that they were “anti-alcohol” pills in order to incapacitate the girls so that they would be unable to resist the sexual abuses that the applicants had intended to inflict upon them for their perverted sexual gratification.

169.  It was the prosecution’s contention that the similarities in what had happened on both the 21^st and 22^nd of January 2011 would be inconsistent with any suggestion of coincidence or misunderstanding and that they could defeat any suggestion on the part of any of the applicants who were present on both nights that he was unaware of the true nature of the pills that were given to the girls or that he had no evil intention towards the girls.

170.  The respective applicants did not dispute that they were present at the Oceanic View Premises and the Far East Bank Premises. They did not dispute that the girls had been drugged and abused, although they claimed that it was the others who did it.  They all denied that they had taken part in dispensing the pills to the girls and claimed not to have knowledge of the true nature of the pills.  The similar facts evidence was clearly relevant to those issues.

171.  The judge reminded the jury the prosecution contention and the use that they could make of the similar facts evidence:

“Basically, the prosecution says that the incidents on the nights of the 21^st and the 22^nd are similar in that on both nights all the girls claimed that they had been indecently assaulted and raped upon taking the drugs. In these circumstances, the prosecution thinks that the facts of the case show that the defendants in question should have been aware of the real nature of the anti-alcohol pills which, having been consumed by the girls, caused them to be in an impaired state of consciousness, etc and that they all had the plan and intention to assault the girls.”

172.  The judge further reminded the jury that they must consider each charge against each applicant separately and that “[i]f a defendant is guilty of one offence, it does not mean that he is guilty of the other offences, and the reverse is true. If he is not guilty of one offence, it does not mean that he is not guilty of other offences.  You must consider each charge separately”.

173.  There is no risk, in our view, of any circular reasoning that any of the applicants was found guilty of charges relating to X and Y because he was found guilty of charges relating to A, B and C, or vice versa.

174.  D2 was not present on 22 January 2011 before A, B and C were drugged, but that did not mean he was unaware of what the others planned to do to the girls, having himself taken part in drugging X and Y before sexually abusing them just the evening before.  Whatever he did, when he arrived at the Far East Bank Premises of which he was the tenant, he must be aware that A, B and C were semi-conscious.  He was present and he himself took part in sexually abusing at least two of the girls.

175.  The fact that D2 did not force the girls to have sex with him did not mean that the similar facts evidence was not applicable to him.  The judge was entitled to direct the jury on the basis that similar facts evidence applied to D2.

176.  In any event, other than charge 9 to which a guilty plea was entered, D2 was not convicted of any other charges relating to A, B and C.  The complaint that Mr Davies put forward had no bearing on the safety of his conviction on charges 1 to 4.

177.  The jury must have been aware that D4 and D5 were only involved separately in the charges relating to X and Y and the charges relating to A, B and C.  D4 was only present on 21 January 2011 at the Oceanic View Premises and D5 was only present on 22 January 2011 at the Far East Bank Premises.

178.  The jury hardly needed any further reminding as the indictment had clearly stated that D4 and D5 were not involved in both evenings.

179.  The jury was told by prosecution counsel that similar facts evidence did not apply against D4 and D5.  The judge had also expressly reminded the jury that the similar facts evidence was not applicable to D4 and D5.  We fail to see any danger that the jury might think that similar facts evidence also applied to the case of D4 and D5.

180.  “There is an infinite variety of circumstances in which similar facts evidence can be admissible and there is no single manner in which a judge should direct the jury to achieve fairness…there is no magic formula when dealing with propensity directions and in every case the sufficiency of the warning depends on the facts of the case, the precise language used and, importantly, the context.” (See the judgment in HKSAR v Li Sui Heung [2013] 1 HKLRD 1 at p 14 para 67)

181.  Whilst it would have been better if the judge had reminded the jury that a bad character or propensity as shown by similar facts evidence did not mean that the applicants who were present in both the Oceanic View Premises and the Far East Bank Premises on 21^st and 22^nd respectively must be guilty of the offences charged, it is not, in our view, a matter that would cast any doubt on the safety of the convictions against the respective applicants.

182.  The judge did remind the jury that D1 to D4 had no criminal record and were of good character and therefore they were less likely than otherwise might be the case to commit the offence.

183.  We have carefully considered the evidence and counsel’s submissions in full.  We do not find any of the convictions against the applicants in anyway unsafe or unsatisfactory.  The evidence against the applicants was overwhelming and they were rightly convicted of the respective charges against them.

Conclusion

184.  We grant leave to D1, D2 and D3 leave to appeal against conviction, but dismiss their appeal.  We also dismiss the applications of D4 and D5 for leave to appeal against conviction.

(W Yeung) Vice-President

(Judianna Barnes) Judge of the Court of First Instance

(Jeremy Poon) Judge of the Court of First Instance