HKSAR v. TSE HOI PAN, DOMINIC

CACC 168/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 168 OF 2008

(ON APPEAL FROM HCCC NO. 50 of 2008)

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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):

1.  This is an application for leave to appeal against conviction and sentence.

2.  On 9 May 2008, the applicant was convicted of rape following his trial before Deputy High Court Judge Line.  He was sentenced on the same day to 6 years’ imprisonment. 

3.  As this was a retrial, the facts related to events some years ago but they were relatively simple and, in view of the nature of the grounds of appeal relating to conviction, a detailed analysis of the evidence is not required. 

Prosecution’s case

4.  On 6 October 2005, the complainant (PW1), then aged 24, went to a karaoke establishment in Mongkok at the invitation of her friend, Miss Chak, who was known by the name of ‘B Lui’.  They went into a karaoke room with two men who the complainant had only met in the street outside.  One of them was the applicant.  The complainant had some soft drinks at first but she later consumed beer while they played finger-guessing games and dice.  She asserted that, although she had drunk only about three or four cans of beer, she found herself feeling dizzy, weak and wanting to go to sleep.

5.  The complainant had a much older friend who she called ‘Papa’ (PW2).  As she was able to trust him, she telephoned him in the early hours of 7 October 2005 to ask him to collect her from the karaoke.  However, while she was talking, PW2 heard a male voice cutting in to say “hello” and the telephone call was brought to an abrupt end.  The applicant told the complainant that he would help her to go downstairs to look for her friend but, instead, he took her to a hotel which was in the vicinity.  As she left the karaoke premises, the complainant was recorded on closed circuit television (CCTV) tapes as being supported by the applicant because of the difficulty she was having in walking.

6.  PW2 tried, without success, to make telephone contact with the complainant.  He then rang B Lui who told him the address of the karaoke where the complainant had been.  However, by the time PW2 arrived there, he found that the complainant had left.

7.  It was not disputed that the applicant and the complainant had gone to a hotel.  The complainant, for her part, had no recollection about how she had come to be there.  She had been so muddle-headed that she thought that all she had done was to leave the karaoke with the applicant supporting her while she was walking. 

8.  The receptionist at the hotel, Ng Hei-mui (PW3), described the complainant as appearing to be drunk.  The applicant, on the other hand, appeared normal and was supporting the complainant as she walked.  All of the conversation about the availability of a room and payment for its use was between PW3 and the applicant.

9.  When the complainant regained her senses, she discovered herself lying in bed in a place she did not recognise.  She had no idea how long she had been there.  She alleged that when she saw the applicant, he covered her face with a pillow and a quilt and, when he grabbed her neck, she found herself unable to breathe or speak.  She thought she was about to die and started to move her hands crazily, scratching with her nails, but she was unable to push the applicant away.  She said that the applicant removed her shorts and pants and then raped her.

10.  After the alleged rape, the applicant left the bed and went to the toilet.  The complainant immediately seized the opportunity to use her mobile telephone and escape from the room.  She told PW2 on the telephone that she did not know where she was and that she was very frightened.  PW2, who could hear that the complainant was crying, told her to look for someone.  The complainant went to the reception desk where she noticed the business card of the hotel on the counter and she then rang PW2 to tell him where she was.  It was only when PW3 suggested to her that it would be better for her to wear her pants, that the complainant remembered that she was still naked from the waist down. 

11.  PW3 testified that the complainant told her that she had been suffocated with a pillow and she described the complainant as being “a bit scared, panicked but seems like nothing happened” and “just looked a bit frightened”.  A few minutes later, the applicant walked past the counter and left the hotel.  He returned shortly afterwards.  Whether or not this was in an attempt to retrieve a telephone with a pre-paid SIM card, number 96794488, belonging to his mother, is not known but this telephone was later recovered from the hotel room the applicant had rented.

12.  After the applicant had left the hotel a second time, PW3 helped the complainant back to the room so that she could collect her clothes.

13.  In due course, PW2 arrived at the hotel.  He was with the complainant’s boyfriend who the complainant had not expected to see.  She had quarrelled with her boyfriend earlier in the day which is why she had not called him but had called PW2 instead.  The complainant told PW2 that she had been raped and asked him to report the matter to the police.

14.  When examined by Dr Chiao at 10 am on 7 October 2005, the complainant was found to have multiple petechiae of pinprink size on the forehead and around the eyes and there were bleeding spots on the inner sides of the mouth.  All of these injuries were consistent with the complainant having been grabbed on the neck.  On the neck itself, there were three bruises.  Elsewhere, there was a bruise on the left shoulder, a linear reddish bruise on the lower abdomen and a recent shallow split wound at the posterior fourchette of her private parts.  In the opinion of the forensic pathologist, the sort of injury to the complainant’s private parts was consistent with penetration by a penis into the vagina. 

15.  Blood from the complainant and the applicant was found on the pillowcases in the hotel room.

16.  Vulval and vaginal swabs were taken but, although sperm was found in the swabs, the quantity was too little for DNA profiling to be carried out to enable the donor’s identity to be established by forensic analysis. 

Defence case

17.  The applicant elected not to give evidence. 

18.  The defence case which was put forward in the course of cross-examination, unsupported by any evidence, was that it was at the complainant’s own suggestion that she and the applicant went to the hotel.  Furthermore, it was suggested that it was the complainant’s idea that they should have sexual intercourse provided that the applicant agreed to buy her an expensive handbag.  There was said to have been foreplay inside the hotel room, with the complainant performing oral sex on the applicant but, when the applicant failed to have an erection, the complainant made him furious by calling him useless.  This, it was suggested, led to a fight, causing some of the complainant’s injuries.  The injuries to her private parts were said to have been as a result of the consensual foreplay.  It was also suggested that sexual intercourse never in fact took place inside the hotel room and that the complainant had only made an allegation of rape at the hotel reception counter because she had been surprised to see her boyfriend in PW2’s company.  The complainant denied all of these suggestions. 

19.  On the defence case, the explanation for the presence of the sperm found on the swabs taken from the complainant was that this might have originated from her boyfriend.  The jury had heard expert evidence, in this regard, that sperm may continue to exist in the vagina for up to seven days after sexual intercourse.  The complainant, for her part, was not able to recall when she had last had sexual intercourse with her boyfriend.

Grounds of appeal

20.  Two grounds of appeal were advanced on the applicant’s behalf by Mr Macrae SC who also appeared for the defence in the retrial.  In addition, Mr Macrae had conducted the successful appeal which led to the retrial but he was not in the original trial.  The significance of this will emerge in due course.

21.  The appeal grounds related to two aspects of the summing up, namely, the judge’s directions concerning the DNA evidence and questions posed by the judge as to whether the complainant had any motive for making up a false allegation of rape.

(1)  DNA directions

22.  The 1^st ground reads as follows:

“1.  In his summing up to the jury, the learned judge said:

‘So, members of the jury, when you look at paragraph 15 of the Admitted Facts, you will find the statement there to be in accordance with the evidence of this witness (the Government chemist, Wong Lai-man (PW6)), but you could not say that sperm came from the defendant. She has never purported to say that at all and you must not think that anyone has done. What does not appear in the written Admitted Facts but came from the evidence of this witness was that DNA profiling could not exclude him as being the originator of the sperm that was found on the swabs.’

(Appeal Bundle, page 41G-K)

By giving such a direction, the learned judge was suggesting that the sperm on the swabs could have come from the applicant. This was at variance with the DNA evidence which was inconclusive on the matter. The learned judge should not have directed the jury in the way he did viz., the DNA profiling ‘could not exclude (the defendant) as being the originator of the sperm’, since, by so doing, he was effectively according probative value to such evidence in support of the complainant’s account.”

23.  Mr David Leung, for the respondent, rightly suggested that this ground should be examined in the light of all the evidence relating to the sperm found in the vulval and vaginal swabs taken from the complainant against the history of what had occurred in the original trial.

24.  The applicant was originally tried before Mr Recorder McCoy, SC.  The following facts were amongst those admitted, pursuant to section 65C of the Criminal Procedure Ordinance, Cap. 221:

“13.  No semen attributable to the Defendant was found on the items seized from the hotel room, or on [the complainant] and the Defendant.

14.  No semen or any sperm or any DNA of the defendant was found on [the complainant’s] vulval and vaginal swabs.” [Emphasis added]

25.  Initially, at the retrial with which we are now concerned, these same two paragraphs, using exactly the same words but renumbered as paragraphs ‘14’ and ‘15’, respectively, were set out in the agreed facts given to the jury.  However, the wording of the second of these two paragraphs had to be changed in the course of the trial, ultimately with Mr Macrae’s consent, because it did not accord with the evidence given by Ms Wong Lai-man (PW6), the chemist employed at the Government Laboratory who carried out the DNA analysis.  This involved the removal of the word ‘of’ in that paragraph and replacing it with the words “attributable to” so that the new paragraph 15 read:

“15.  No semen or any sperm or any DNA attributable to the defendant was found on [the complainant’s] vulval and vaginal swabs.” [Emphasis added]

26.  Before we come to the evidence of PW6, which led to the amendment of the agreed facts, there had been two suggestions made by Mr Macrae to the complainant when she was being cross-examined which were directly relevant to this issue.  Both suggestions, on the material available to Mr Macrae, were entirely justified.  These were, first:

“… no semen attributable to the defendant was found anywhere in that hotel room, or on you, or on him, or on the specimen swabs that were taken from you …”

This was followed by the second suggestion:

“… I’m going to suggest that some sperm was found on those swabs but it was not the defendant's. So I must ask you, when had you last had sexual intercourse prior to the night in the karaoke?” [Emphasis added]

27.  Before PW6 was called to give evidence about the results of her DNA analysis, there was a discussion between counsel and the judge about PW6’s written report.  In the course of this, Mr Macrae stated:

“… I don't particularly want the jury to start thinking that there was sperm which could have been the defendant's when they are presented with an admitted fact, 15, that no semen or any sperm or any DNA of the defendant was found on them. I mean that's an admitted fact that carries over from the first trial. And I therefore think that the better course, if I may suggest, is simply for me just to stand up and say, in the light of what I now understand to be the DNA expert's report, that if I carry with the question --- the suggestion that it was --- there were somebody else's sperms on the samples, I can withdraw it.”

28.  The reason Mr Macrae had taken this stance, which was, as we would have expected of him, a wholly responsible attitude to have adopted, was that it had become clear that PW6’s report did not carry with it the implication that “no semen or any sperm or any DNA of the [applicant] was found on the [complainant’s] vulval or vaginal swabs” (as stated in the original agreed facts) but that there was insufficient sperm in the swabs taken from the complainant to determine the identity of the donor.  It was because of this appreciation of the evidence, which remarkably had gone unnoticed in the original trial in which Mr Macrae had not appeared, that the agreed fact (previously 14 and now numbered 15) was duly amended in the terms to which we have referred at paragraph 25 above.

29.  It is hardly surprising that after this amendment had been made, the jury were inquisitive about what had occurred.  This followed a question to PW6 by the judge, when he asked:

“And so have I got this right. Wherever they came from, you had a vulval swab and a vaginal swab. And on that you found - have I got the words right - very little amount of sperm, and it wasn't enough for you to be able to say or for you to be able to find DNA which you could analyse. Is that right?”

When PW6 answered: “Correct”, the foreman of the jury then asked the judge a question on this topic which was by no means easy to follow.  This led to the judge to remark:

“Well, I am going to say something and I shall invite counsel on either side to correct me if I have got it wrong, what my understa[nd]ing is. The prosecution cannot say to you, ‘Look, you found semen there and we can say it's the defendant's.’ They can't make the link. They can say, through this witness, if you accept that, that some semen was found, very little, but it wasn’t sufficient to create, to provide enough DNA either to identify the defendant or to exclude him. That's the state of the evidence at the moment. Now, I have spelt it out like that in the hope that counsel will correct me if I've got it wrong. Then we can all be corrected.

And nobody does seem to correct me, so I'll say it again because it's going to get difficult, this part of the case. It's this: that the prosecution cannot say that science proves a connection between the defendant and the vulval or vaginal swabs, some sperm was found on both the vulval and vaginal swabs, but it wasn’t enough for this scientist to analyze in order to say it was him or it wasn’t him. Do tell me if I am wrong. I invite correction.”

30.  For what it is worth, Mr Macrae then pointed out that the sperm sample was not enough to give a “DNA reading profile” and, although PW6 agreed with this suggestion, it is clear that the judge’s summary of the evidence relating to DNA in regard to the semen found on the swabs taken from the complainant remained an accurate one.  There was, in simple terms, an insufficient sample of sperm to analyse so that, in the result, it was not possible to say whether it was or was not the applicant’s. 

31.  This was how the evidence stood when the judge summed up and we must, therefore, reject the suggestion that there was any unfairness in the direction given by the judge to the effect that the applicant could not be excluded as the person from whom the sperm had originated when it had also been made abundantly clear that the prosecution was unable to establish that he was the originator.  The evidence was neutral and the jury could have been under no misunderstanding as to this.

32.  Mr Macrae also criticised under this ground of appeal a comment made by the judge when summing up to it having been “no fault” of the complainant’s that the sperm sample was insufficient for analysis.  This occurred in the context of a list of points relied upon by the prosecution which the judge summarized thus:

“Did the CCTV tapes show [the complainant] was almost legless and therefore prey to sexual exploitation? That the injuries are consistent with her account and shows she was used with violence by the defendant; that the injuries support her account of being held by the neck indicating purposeful violence, the purpose being to hold her down while she was being raped; that the mark on her right waist is consistent with the defendant pulling down her lower garments; that the recent split on her private parts went hand in glove with her story of penetration; that it would be a remarkable coincidence that she happened to make up an allegation of rape when she saw her boyfriend arrive, when she had an injury on her private parts; that the defendant had injuries to the back of his right hand and the back of his head which would be places available to her to scratch if she was in the position she described, of his hand being on her neck and he being on top of her; that the timing of the complaint to 'Papa' was consistent with her evidence of being raped, he being the person she trusted and that is why she complained to him; that sperm was found on swabs taken from her vagina and vulva, but it was no fault of hers that the swab captured was insufficient to allow for analysis; that her obvious distress which prompted her to appear in the public part of the hotel, naked below the waist, was attributable to her being raped; that the only evidence of what happened in that room came from her and there was no other direct evidence to contradict her account. That is the argument for one side.” [Emphasis added]

33.  Mr Macrae’s criticism was aimed at the italicised words in this citation because, he argued, it was one thing to say that there was no evidence that the sperm found on the swabs taken from the complainant was the applicant’s but quite another for the judge to “turn this around” by suggesting that the applicant could not be excluded as the donor by adding that it was “no fault of [the complainant’s] that the swab captured was insufficient for analysis”. 

34.  In our opinion, it is clear that the judge had not been seeking to suggest that PW6’s evidence on this point was probative of anything against the applicant.  The judge was merely saying, in strict accordance with the evidence as we have indicated already, that it was not possible to say, one way or the other, whether this was the applicant’s sperm as there was an insufficient sample to analyse.  Furthermore, when the judge referred to it being “no fault” of the complainant’s that the swabs contained insufficient sperm to “allow for analysis”, this was no more than a statement of the obvious.

35.  Lastly, on this ground, Mr Macrae argued that because the DNA evidence was not probative of anything against the applicant, it ought not to have been led at all.  However, this was, with respect, an unrealistic proposition when the jury was entitled to know what result, if any, had been obtained from the DNA analysis especially when there had been other evidence in the case concerning DNA.  This related to the analysis of the blood on the pillowcases and a silence on the subject of any analysis of the sperm samples would inevitably have given rise to questions to which the jury were entitled to answers.

36.  Indeed, if the evidence contained in the agreed facts had remained as it stood when the trial commenced and Mr Macrae’s question, to the effect that the sperm found on the swabs taken from the complainant “was not the defendant’s”, had been allowed to stand, the case would have been left to the jury on a basis which was not strictly accurate, just as it had been in the first trial.  It was only because the prosecution had drafted an admitted fact or, at the very least, allowed a fact to be agreed in the original trial which represented a misunderstanding of PW6’s evidence, that this whole issue had arisen.  Fortunately, the judge in the retrial noticed the error before it was too late and the matter was rectified. 

37.  This ground fails.  However, before we leave this ground altogether, we should add that this provides a graphic illustration of the importance of a pre-trial conference between prosecuting counsel and an expert witness where there exists the slightest danger of a misunderstanding about the effect of the evidence to be given by that expert. Here, agreed facts were prepared which indicated that there had been a fundamental misunderstanding of the DNA evidence which could so easily have been avoided if a conference had taken place in advance.  It is only fair to emphasise again that Mr Macrae, for his part, was blameless in what occurred.

(2)  Questions raised as to the complainant’s motive for lying:

38.  The 2^nd ground was couched in these terms:

“2.  The learned judge erred in directing the jury on the following questions:

‘So, the question may arise for your consideration, why would she [the complainant] make a false allegation against the defendant?’ (Appeal Bundle, page 33E/F-G)

‘She had recent injuries. Was there a need for her to invent a rape when it did not take place? You need to think about, did adding a false allegation of rape help to explain her presence in the room....’ (Appeal Bundle, page 33M/N-Q)

‘… that inventing a false allegation of rape did nothing to explain her presence in the hotel to her boyfriend and, indeed, if their relationship was something in her mind, how was it going to improve that by saying she had been raped when she had not’. (Appeal Bundle, page 42T/U-43B)

‘… that it would be a remarkable coincidence that she happened to make up an allegation of rape when she saw her boyfriend arrive, when she had an injury to her private parts’. (Appeal Bundle page 43H-I/J)

By such directions, the learned judge was effectively inviting the jury to consider whether the complainant had a motive for lying, instead of emphasising that the real issue was whether she was telling the truth. Furthermore, he failed to instruct them that the absence of proof of motive to lie was not to be equated with no motive to lie. Palmer v R [1998] 193 CLR 1, per Brennan CJ, Gaudron and Gummow JJ at pages 8-9.”

39.  In our view, whether or not the jury were specifically directed by the judge on a possible motive for the complainant to have invented an allegation of rape, the questions which the judge posed were points which the jury were almost certainly bound to consider.  It might not be going too far to say that a jury which declined to have done so would have been failing in its duty as, aside from all other considerations, the defence had specifically invited consideration of ‘motive’ by suggesting that the allegation of rape only arose after the complainant saw her boyfriend at the hotel which, in turn, had caused her to make up a convincing story to persuade him that she was there as a result of coercion. 

40.  The jury were reminded of this important consideration on the defence case, when the judge directed them in these terms:

“Of course, there is no burden on the defence to suggest a credible motive for her [making up an allegation of rape] but, if they can, obviously, it can help them. An emphasis has been placed here on the fact that her boyfriend was present when the complaint of rape was first made and she had not expected him to be there because she had not called him, 'Papa' had called him. So it raises the question of whether a false allegation was made to explain her presence in the hotel with another man. So you will obviously want to examine that sort of argument - I cannot say I have expressed it exactly; it might strike you in another way - but you ought to look at that area of the case with care.

She had recent injuries. Was there a need for her to invent a rape when it did not take place? You need to think about, did adding a false allegation of rape help to explain her presence in the room? You may wish to consider if a false complaint was made on the spur of the moment, without rational thought, or done in panic and the like. In judging that claim, you will want to look at all you know about the events of that evening.”

41.  These directions accorded with what was said in HKSAR v Wong Kwok-wang [2008] 3 HKLRD 245 where the Court of Appeal, in a decision confirmed by the Court of Final Appeal on 14 May 2009 in HKSAR v Wong Kwok-wang, Warren, FACC 6/2008, was dealing with whether a defendant could be cross-examined as to his knowledge of facts which might suggest a motive for a prosecution witness to lie or to fabricate evidence on a charge against him and, in such circumstances, what directions should be given to a jury when the prosecution makes the point that the defence has been unable to point to any positive motive on the part of that witness to lie. 

42.  As Mr Leung submitted, the Australian case of Palmer v R [1998] 193 CLR 1, the New Zealand case of R v T [1998] 2 NZLR 257 and the English case of R v B [2003] 1 WLR 2809, were all considered by this court in Wong Kwok-wang (above) when agreeing with the minority approach taken by McHugh J in Palmer as well as the approach taken in R v T and R v B.  One passage from Palmer, cited at paragraph 21 in this court’s judgment, reads:

“In the ordinary course of events, people do not invent serious allegations against other persons. Even less frequently do they invent a serious allegation against a person and then perjure themselves in a court of law to support the allegation. Experience teaches of course that some people will concoct charges against other persons. But most people do not. Consequently, facts which show motivation for fabrication or the lack of it go to the probability of an issue. The fact that a person had or did not have a motive is relevant in many criminal prosecutions. That is because motive or its absence throws light on the probability of whether an event occurred or was committed by the accused. Similarly, motive or its absence is often relevant as to whether the evidence of a witness is true.”

43.  In Wong Kwok-wang’s case, this court held (at paragraph 24) that:

“... in so far as the prosecution seek to accrue weight to the prosecution case from a defendant's failure to provide a motive, it must be made clear to a jury by the judge that the burden remains throughout on the prosecution to prove the veracity of the testimony of the complainant or other prosecution witness, as the case may be, and not on the defendant to prove a motive to lie.”

44.  In the instant case, the judge had made the issue for the jury’s determination clear in his opening remarks in the summing up when he said:

“The only witness to testify as to what occurred there has been [the complainant]. She told you that she was raped there. You may thus think that the question which will determine the case is simply whether you are sure she has told you the truth. I put it that way, saying, ‘you may think,’ because it is a matter for you and not for me.”

45.  Throughout the summing up, the judge reminded the jury of the burden and standard of proof and it was made abundantly plain that the jury could only convict if they were sure that the complainant had spoken the truth about being raped.  In one example, dealing with the jury’s approach to the complainant’s evidence, the judge said:

“… if you have a reasonable doubt about her evidence, you do not believe her, do you think she might not be telling you the truth about the rape then, obviously, not guilty. …”

This was followed by a list of matters to which the defence had attached significance in that they were said to be features of the case that might make the jury less than sure that rape had been made out.

46.  Whilst we accept that it might have been better if the judge had specifically stated that the rejection of a motive to lie on the part of the complainant should under no circumstances lead the jury necessarily to conclude that the complainant had been telling the truth, we are satisfied that the jury could have been in no doubt, from the summing up as a whole, that they had to be sure she was telling the truth before they could convict the applicant of rape.  The suggested presence or absence of a motive for telling lies was just one of a number of matters to be taken into account by the jury concerning the complainant’s credibility.

47.  This ground fails.

Conclusion on conviction

48.  The application in regard to conviction is dismissed.

Sentence

49.  The applicant was sentenced to 5 years’ imprisonment by Mr Recorder McCoy SC following the first trial whereas, after his retrial before Deputy High Court Judge Line, the applicant received a sentence of 6 years’ imprisonment. 

50.  This disparity in sentence provides the basis for the grounds of appeal in relation to sentence which make the general complaint that the sentence was manifestly excessive or wrong in principle.  More particularly, Mr Macrae submitted that the evidence in the retrial had been no worse than the evidence given in the first trial; that despite the fact that the judge did not consider the original sentence to have been “manifestly inadequate”, he nevertheless increased it because he “did not think it was enough”; and that insufficient weight had been given to the applicant having been “placed in jeopardy twice”, to the long lapse between the offence and the eventual sentence and to the prosecution’s failure to seek a review of the initial sentence imposed on the ground of its manifest inadequacy. 

51.  The significance of the points in regard to the suggested inadequacy of the original sentence arose because there is some authority which suggests that unless the original sentence can be described as “manifestly inadequate”, it ought to be left unaltered.

52.  Mr Macrae submitted that a question arose as to “whether and to what extent” a judge may pass a heavier sentence after a retrial following a successful appeal resulting in the quashing of the conviction in the first trial.  He was right to point out that there is no helpful authority from the English Court of Appeal as the legislative provisions in England and Wales are entirely different to those in Hong Kong.

53.  Section 83E of the Criminal Procedure Ordinance, Cap. 221, makes provision for the power to order a retrial and section 83F makes supplementary provisions as to the retrial. Section 83F(4) provides as follows:

“(4)  Schedule 6 shall have effect with respect to the procedure in the case of a person ordered to be retried and the sentence which may be passed if the retrial results in his conviction.”

Paragraph 2(1) of Schedule 6 of the Criminal Procedure Ordinance provides that:

“Where a person ordered to be retried is again convicted on retrial, the court before which he is convicted may pass in respect of the offence any sentence authorized by law.” [Emphasis added]

54.  This situation is to be contrasted with the position in England where, pursuant to paragraph 2(1) of Schedule 2 to the Criminal Appeal Act 1968, if a person is convicted on a retrial, the court before which he is convicted may pass any sentence authorized by law, “not being a sentence of greater severity than that passed in the original conviction”.

55.  Mr Macrae, whilst acknowledging that he was unable to draw any support for his argument based upon the decisions in England because of the difference in the statutory framework to which we have referred, sought to draw support from decisions of the courts in Australia since R v Garrett [1978] 18 SASR 308 which was mentioned by the Privy Council in R v Chan Ho-kuen and Anor  [1990] 2 HKLR 345 at 352.  There, Lord Ackner, dealing with whether a judge had acted wrongly in principle after a retrial, by increasing the sentence imposed at the original trial, said:

“The English Criminal Appeal Act 1968, Schedule 2 paragraph 2(1), provides that where a person ordered to be retried is again convicted on re-trial, the court before which he is convicted may pass in respect of the offence any sentence authorised by law, not being a sentence of greater severity than that passed on the original conviction. No such provision exists in the Hong Kong legislation. Accordingly the judge on the re-trial is in no way fettered by the sentence imposed at the first trial. The trial judge at the second trial must do what he himself thinks proper in all the circumstances, one of those circumstances being that he has the advantage of knowing what another judge thought of the same or similar facts, that is to say the facts which emerged at the first trial. But in the end it is he, and he alone, who is responsible for deciding what is the proper sentence (see the South Australian decision of Garrett [1978] 18 SASR 308 - the joint judgment of Hogarth A.C.J. and White, A.J. at page 313).

O'Connor, J. considered that the sentences imposed at the first trial ‘were a bit below the appropriate level’ (15 years in respect of the first appellant and 15 years and 13 years concurrent in respect of the second appellant). The Court of Appeal, having listened carefully to the submissions, concluded that there was no reason for interfering with the judge's view. Their Lordships are of like opinion.”

56.  The history, as set out by Mr Macrae, of the development of this aspect of sentencing practice in Australia was more or less a repeat of his arguments in HKSAR v Chan Kau-tai [2008] 4 HKLRD 404 at 411-415 and, for this reason, we do not propose to deal with this again.

57.  There was, however, an important distinction to be drawn between the situation which had arisen in Chan Kau-tai and the present case.  In the former case, the totality of sentence had to be looked at afresh as the jury at the retrial had acquitted on two out of the nine counts on the indictment.  In the instant case, sentencing was on almost precisely the same basis as it had been in the earlier trial.

58.  We consider that the strongest point made by Mr Macrae arising from the most recent decisions in Australia, where the legislation is very similar to Hong Kong’s on this issue, was that it is an accepted principle in Australia that a sentence after retrial should not exceed the sentence originally imposed unless there is good reason for an increase.  This is an approach with which we entirely agree.  The sentiments expressed by the High Court of Australia in R H McL v R [2000] 203 CLR 452 at 475-476 (paragraph 72) encapsulate this approach.  There, it is stated that:

“If the appellant is convicted on any count at the re-trial, the sentencing judge will also have to take into account another important factor in the sentencing process. Ordinarily but not invariably, a successful appellant should not receive, a longer sentence after conviction on a re-trial than he or she received at the original trial. …

If the sentencing judge at the re-trial thinks that the original sentence was manifestly inadequate, it is open to that judge in the exercise of the sentencing discretion to give a sentence higher than that imposed on the first occasion. But an exercise of discretion by a sentencing judge that increases the original sentence given to the accused is necessarily rare. That is because such an increase may be perceived, by the public and the accused, as containing a retributive element imposed because the accused had successfully appealed against his or her earlier conviction or sentence. If the raising of a sentence after a successful appeal became common, it might discourage appeals. Such a result would be contrary to the public interest, for an organised society has a vital interest in the proper administration of its criminal justice system. Rights of appeal are an important means of preventing the perpetuation of error in criminal trials.”

59.  The important question in the present case, in our opinion, is not whether the judge could pass a heavier sentence on this retrial, as one aspect of the ground of appeal suggests, but whether the judge had properly exercised his discretion, on the facts of this case, to increase the applicant’s sentence. 

60.  Mr Macrae, when mitigating in the court below, had described a 5-year sentence after trial as the “general starting point” for such an offence in Hong Kong “absent aggravating, mitigating circumstances”.  Whether or not that is so, the judge rightly pointed out to Mr Macrae that in the present case there were aggravating circumstances, saying:

“… I’ll tell you what I think they are so you can address me about it. The main ones are that the conduct shows a degree of calculation; the second one, and the main one, is that violence was used. This was a girl who was almost suffocated; she thought she was going to die. There are lesser aggravations in the fact that he was a stranger to her and, as I find on the evidence, the sex was unprotected. Five years is passed on men who commit rape without any of those aggravations.”

61.  The judge went on to explain what he meant by the “element of calculation”.  The applicant had taken the complainant to the hotel “and once she [came] to life in the room, the violence was serious and immediate” and he said:

“I’ll be frank, I take a different view from the Recorder. I don’t think his sentence was long enough.” 

62.  Mr Macrae replied to this comment that the prosecution had never sought a review of sentence and the judge replied:

“I don’t say it was manifestly inadequate. I just don’t think it was enough.” 

63.  In these proceedings, Mr Macrae seized upon that expression of opinion on the part of the judge to suggest that if the judge had been prepared to listen to submissions as to the way the practice on this issue had developed in Australia, which he had indicated he was not, then the judge might not have increased the sentence.  Mr Macrae particularly relied, in this regard upon the way the matter had been expressed in R H McL v R (see paragraph 58 above) where it was said that increases of sentence after a retrial would be “necessarily rare” and that the judge could do so in the exercise of his discretion if he took the view that “the original sentence was manifestly inadequate”.

64.  Although the judge had rejected the need to consider the Australian authorities, the approach taken by the judge when sentencing the applicant indicated that he had taken a very much more serious view of this rape than the Recorder seems to have done.  Amongst other things, the judge remarked:

“It is clear, not only from her own evidence, but the CCTV footage, that when she left the karaoke with you in the early hours of 7 October 2005, she could barely walk and she needed your support. How she got like that does not matter. What does matter is that you exploited her condition. Under the guise of offering her help, she left with you. You took her to a nearby guesthouse. As she came round on the bed there, you immediately used her with violence. You put a pillow and a quilt over her head and you squeezed her throat. The bruises on her neck and the petechial haemorrhages on her face resulted. She could not breathe. She suffered the agony of suffocation not knowing what her fate would be in your hands. She thought she was going to die.”

65.  The judge later indicated that the Recorder’s view of the case was not binding on him and that 5 years for rape was a “rough guide” to sentence where there were no circumstances to aggravate the offence.  Nothing, the judge said, obliged him “to shut his eyes to the aggravating features” of this case.  In his opinion, a starting point of “no less than 6½ years” was applicable for this offence but as this represented an increase of sentence, the judge moderated this to a sentence of 6 years’ imprisonment.

66.  We are satisfied that the judge took the correct approach to sentence in this case although we consider that his starting point of “not less than 6½ years” was itself a somewhat lenient indication of penalty for an offence in which the complainant had been so violently treated.  As it also happens, the complainant has had to go through the ordeal of giving her evidence about this event twice which provides the clearest indication that the applicant has not had the slightest remorse for what he has done.  It is right to add, finally, that the delay between the offence and the applicant’s ultimate sentence was as the result of the applicant exercising his right to appeal.  The retrial was completed in less than five months from the date when judgment in the applicant’s appeal (HKSAR v Tse Hoi Pan Dominic [2008] 1 HKC 313) was handed down.

67.  In our opinion, the sentence which the Recorder had imposed at the applicant’s original trial was manifestly inadequate having regard to all the circumstances, whether or not the judge at the retrial was minded to describe it as such.

68.  Accordingly, leave is refused and the application in regard to sentence is dismissed.