HO CHE-CHUNG v. R.

IN THE COURT OF APPEAL

1993, No. 142
(Criminal)

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J U D G M E N T

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Nazareth, J.A. (giving the judgment of the Court):

1. The applicant, Ho Che-chung, was on 18th March 1993 convicted by Deputy Judge Gould, sitting with a jury, of two offences: rape for which he was sentenced to nine years imprisonment, and robbery for which he was sentenced to seven years, to commence five years from 18th March 1993, making a total of twelve years. Ho now seeks leave to appeal against conviction and sentence.

2. Both offences occurred at the same place and time, i.e. at the victim's flat at Whimper Garden, in Kowloon, on 24th April 1992. Ho did not deny that he had sexual intercourse with the victim, Miss Wong, but did deny that it was without her consent, and that he had taken any of the valuables alleged to have been stolen. The victim, 19 years of age at the time, was a karaoke lounge hostess and used to work at night. She shared the flat with another girl, Didi, who worked at the same karaoke lounge.

3. In the early hours of 24th April 1992, about 3 a.m., the two of them having finished work, along with most of their colleagues, stayed on to celebrate someone's birthday. The party went on to about 8 a.m. and then the two of them with about four others went to have breakfast at a nearby restaurant. The other four were two male managers, and two females, one known as Cherry and the other as Pinky. After breakfasting, the four went off in one car to a hotel to sleep. Pinky went off in a taxi and the victim went home in another taxi.

4. She prepared to follow her normal routine of going to sleep during the day. Around 10 o'clock there was a phone call from Didi, saying that she did not have the keys and would Miss Wong leave the front door open. About 10.30 there was a phone call from a caller, who Miss Wong thought was Cherry, saying that she was drunk and was having food in Tokwawan and asking whether it was OK for her to come to the flat later. Miss Wong agreed.

5. About 15 minutes later the caller called again, saying that she had lost her handbag and was at the Sun Wong Kee Restaurant in Chun Sin Mei Estate and upon her request Miss Wong agreed to go and pay the bill for her. Shortly after this, the caller called a third time saying it was all right, she had found a friend to pay the bill and she asked Miss Wong to go to Fuk To House in Tokwawan. Before Miss Wong left to do so, she got in touch with Pinky who was Cherry's long time friend, to tell her what was going on.

6. In fact it was not Cherry who had telephoned Miss Wong. When she got to Fuk To House in Tokwawan about 11 a.m. Miss Wong did not find Cherry, but on leaving the building was confronted by Ho. He asked if she was looking for her friend and said he had seen this friend drunk and wandering in the vicinity. He took Miss Wong first to a nearby area, but Cherry was not to be found there. He then suggested that the friend might have found her own way to Whampoa Garden and took Miss Wong there by taxi. However, Cherry was not to be found there either. Ho asked Miss Wong if she would let him use her phone. She declined to let a stranger into her flat and told him to go to a nearby restaurant.

7. She returned to her flat. Shortly after, about 12.30, the caller whom she thought was Cherry phoned yet again. The caller asked why Miss Wong had not allowed Ho up to her flat to use the phone. She said Ho was a policeman and Miss Wong should let him into the flat to await Cherry's return. Shortly after Ho appeared at the door of Miss Wong's flat and she let him in. He watched TV. He asked for water or tea. Later he went to the toilet. When he emerged he grabbed Miss Wong around the neck, held a paper cutter to her neck and raped her. After that, he took her necklace and some valuables.

8. Ho, who was a driver for a transportation company, gave a very different version. He said he came to know Miss Wong in a bar two or three days before the incident. He led her on to believe that he was the proprietor of a film company. He saw her once again before the incident although he did not go anywhere with her.

9. On the morning of 24th April 1992 she paged him at about 10 a.m. He telephoned her and she invited him to her home. She willingly had sex with him. There was no force, nor did he take any valuables. However, after they had sex, she requested a loan of $20,000 to $30,000 which he said he did not have, and moreover, that he was married with a child. She got very angry and said she would get her own back. He dressed and left the premises.

10. The first of the applicant's three perfected grounds of appeal is that in the light of first the sharp and distinct conflict of evidence between Miss Wong and Ho, and second, the various comments made by counsel for the Crown about lies in her closing address, which could have given the jury the impression they could properly convict on those lies, it was incumbent upon the judge to give a proper direction upon the use the jury could make of any such lie and in particular that such a lie could not go directly to prove the appellant's guilt.

11. The comments of which the applicant complains are to be found in three passages of the transcript of prosecuting counsel's address. First, at p.166 of the record:

"What the Crown is saying in this case is, I suggest, to you that the defendant clearly is lying about everything that he said occurred, but the reason that he is lying, the only reasonable explanation for him to lie in this particular matter, is to try and hide the fact that he was involved as the victim suggests. The Crown says that the defendant was lying when he said that he met the victim before 24th April. He was lying about the fact that she invited him up to her flat on that day and agreed to have sexual intercourse with him, lying about the fact that he had never stolen anything from the premises, and all those matters. What the Crown is saying is although there may be many reasons to lie, the only reason here was to hide his guilt."

Second at p. 180:

"Members of the jury, they may all be small points on their own, but when you add them altogether, I suggest they clearly show the defendant was lying about what happened that day. And I warn you that lies do not necessarily indicate guilt. But again I would suggest that this is the only reason for these lies in the situation."

and third at p. 181:

"Clearly had the police found the defendant at home, they would not have had to put him on the stop list. So I suggest the defendant was not telling you the truth again when he said he did not know he was wanted. Clearly had he been wanted, had he known he was wanted, then going to Macau to escape could have been a sensible move perhaps.

But again, members of the jury, even if he feels that he was escaping as opposed to just going gambling on that particular night, the same will apply in effect as with lies, the fact he could have been leaving the Colony for many reasons. You have to bear that in mind when you are considering that point."

12. It is not in dispute that in Hong Kong there is no authority that a Broadhurst direction(Broadhurst v. R. [1964] AC 441) is required to be given in any particular type of case, although there is such authority in England (Frank Sharp (1994) 98 Cr.App.R 144) in relation to corroboration and identity, neither of which arise here.

13. As to the absence of a Broadhurst direction, we think the better course in hindsight would have been for such a direction to have been given, assuming no "Lucas" direction (R. v. Lucas [1981]1 QB 720) was required. That said, we think that the frequency with which the absence of a Broadhurst or Lucas direction is raised on appeal, should cause prosecuting counsel, when placing emphasis on an accused person's lies, to make it quite clear for what purpose they are doing so: simply to discredit the accused person's evidence, or in support of other evidence of guilt.

14. In their submissions on the absence of a Broadhurst direction. counsel referred us to Frank Sharp and to R. v. Wong Kwai-fun [1993]2 HKCLR 171, which confirmed the foregoing position as to the requirement for such a direction. Counsel, however, appear to have overlooked the judgments in R. v. Li Wai-keung (Cr.App. No. 361 of 1991) and R. v. Chen Tai-hwa & Anor. (Cr.App. 321 of 1992), both unreported, given by other divisions of this Court on 11th March 1994 and 22nd September 1993, respectively. Both followed the dictum of the Court of Appeal in England in Goodway (1994)98 Cr.App.R. 11 at p. 17 that:

"A Lucas direction should be given, save where it is otiose as indicated in Dehar, whenever lies are, or may be, relied upon as supporting evidence of the defendant's guilt". Per Lord Taylor, L.C.J.)

The indication in Dehar [1969] NZLR 763 at p.765 was given in the following way:

"We do not say that in every case in which lies are put forward in aid of the Crown case to reinforce the other evidence it is always necessary for the trial Judge to give any specific form of direction. How far a direction is necessary will depend upon circumstances. There may be cases, as for instance, R. v. Dunster, an appeal (unreported) that came before this Court in April 1967, where the rejection of the explanation given by the accused almost necessarily leaves the jury with no choice but to convict as a matter of logic."

15. In Li Wai-keungit was stated at p.3 that this Court in Chu Tai-hwa having considered Goodway:

"... fully applied it without reservation or dissent. It is therefore part of Hong Kong law by which this Court is bound in spite of submissions to the contrary."

But the judgment recognised that:

"... the directions which trial judges must give raise points of considerable practical importance ... in Goodway ... Taylor L.C.J. did not mean by the words 'or may be' in the passage 'whenever lies are, or may be, relied upon' that the judge is to indulge in a guessing game as to what view the jury will take and on this basis decide what direction is necessary."

Reverting to the judgment in Li Wai-keung, it concluded at p.4:

"If the lies are relevant only to credibility the jury should be given the usual simple warning that an accused may lie for many reasons other than guilt. But if it is open to the jury to take lies into account in support of other evidence of guilt, then full 'Lucas' directions are necessary."

16. Turning then to the circumstances before us, plainly in the passages we have cited, prosecuting counsel was asking the jury to rely upon the lies told by the applicant for the purpose of inferring guilt. In the absence of any direction on the point, it was left open to the jury to take lies into account inferring guilt. It follows that a Lucas direction should have been given and that failure to do so was a misdirection. That, of course, does not necessarily mean that the appeal should be allowed; the court might nevertheless be satisfied that the conviction is not unsafe or unsatisfactory.

17. A Lucas direction would, it has to be noted, have required the lies to meet the following criteria:

1) they must be shown to have been deliberate;

2) they must relate to a material issue;

3) the motive for the lies must be a realisation of guilt and a fear of the truth; and

4) they must be shown to be lies by either an admission by the defendant or by the evidence of an independent witness.

18. The applicant made no admissions; the only evidence pointing to lies came from Miss Wong. It will already have been seen from even the very brief outline given of the facts, that there are unusual and curious features in Miss Wong's evidence, in particular how she came to be mistaken and taken in to such a degree by the phone calls, and by what she said the applicant told her. We find ourselves unable to conclude that had a Lucas direction been given, the jury would yet inevitably have reached the same conclusion, or to put it in another way, to conclude that the conviction was not unsafe and unsatisfactory. It follows that we are unable to apply the proviso and that the appeal must succeed. It is therefore not necessary to address Mr Grounds' other two submissions.

19. We accordingly grant leave to appeal, treat the hearing of the application as that of the appeal, allow the appeal and set aside the conviction and sentence.