R. v. WONG TIN-YAN AND ANOTHER

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J U D G M E N T

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Hon. Yang, CJ:

1. This is the judgment of the the Court.

2. On the 20th September 1991 the two applicants (hereinafter referred to as Dl and D2 respectively) were convicted after trial by Leonard J. and a jury for rape and detention of a woman against her will for unlawful sexual intercourse. For the four counts of rape of which D1 was convicted, viz., Counts 1, 2, 4 and 5, he was sentenced to 10 years' imprisonment on each count; those sentences were ordered to run concurrently. For the conviction of detention of a woman, viz., Count 6, he was sentenced to 10 years' imprisonment, that sentence to commence three years after the commencement of sentences on the earlier four counts. The totality is thus 13 years' imprisonment. D2 was convicted of two counts of rape (Counts 1 and 3) and sentenced to 10 years' imprisonment on each count, the two sentences to run concurrently. On conviction of Count 6: the detention of a woman, he was sentenced to 10 years' imprisonment, that sentence to commence one year after the commencement of the sentences on Counts 1 and 3, thereby making a total of 11 years.

3. D1 and D2 now seek leave to appeal against conviction and sentence. They are represented by Mr. McLanachan in respect of their appeal against conviction but act in person in respect of their appeal against sentence.

4. The woman named in Count 1 was a 16 ¹/₂ year old girl called Chan Kin-yee (hereafter referred to as Chan). The woman named in the remaining five counts was an 18 year old girl called Leung Wai-ching (hereafter referred to as Leung).

5. We now turn to the grounds of appeal.

6. Three grounds of appeal against conviction have been advanced.

7. Firstly, it is argued that the leaned trial judge failed to suggest or invite the Crown not to make a closing speech after a short (viz., three and a half day) trial where D1 and D2 neither gave evidence nor called witnesses.

8. The second ground of appeal is that the judge erred in premitting a material irregularity to occur namely the extensive use made by the Crown of "unused material in the form of Leung's handwritten noted, which material was never produced as an exhibit, or shown to the jury. Or provided to the defence in sufficient time to deal with the material properly, even though when handed to the defence, it was understood that this naturally would be material of which the Crown did not intend to make use: vide R v Lilleyman [1896] 2QNB 167.

9. Thirdly, it is argued that the judge erred in law in allowing Leung's recent complaint to go to the jury when it consisted of handwritten notes which were never shown to the jury.

10. The ground of appeal against sentence is simply that the sentences were excessive in all the circumstances.

11. The alleged offences cover a period from the 19th to the 26th of August 1990, beginning with a visit by Chan and Leung late in the evening to Bun's Skating Rink in Shatin. There they met D1 and D2, and together they went and had some beer, after which they went to a billiard hall. Eventually a suggestion was made that the girls should go to the boys' place to sleep. Only half willingly, the girls arrived at an apartment, where there was hardly any furniture and the girls had to lie on the floor to rest.

12. Inside the flat, D1 assaulted Chan. D2 told Leung that it was useless for Chan to cry and Chan had better keep quiet or she (Chan) would be beaten up. Shortly after that, D1 told D2 take Leung to another room and he did so. Chan remained where she was. Leung, who was in the other room, could hear her crying out. Leung asked D2 to stop D1 from beating Chan, but D2 said it was nothing serious, and if Chan was obedient, nothing would happen.

13. Then D1 came into Leung's room as D2 was leaving. D1 assaulted her and raped her. This is the subject matter "' ofCount 2. Afterwards she went to see Chan and found her totally naked. She seemed to Leung to be a little stunned and crazy.

14. Afterwards they all went out to tea and D1 and D2 took particulars of their home addresses and telephone numbers, and also particulars of members of their families. Then D1 took Chan away leaving Leung alone with D2.

15. Later D1 returned and they all went to an apartment house where D2 raped her. This is the subject of Count 3. Still in the apartment, she was raped twice by D1: Counts 4 and 5.

16. She was then taken to a but in Sai Kung by D1 and there another man came in and tried to teach her some tricks about sex. Her detention continued and she was forced to entertain customers. After she had finished with her customers for the night, she would be taken somewhere and locked up alone for the night. She was kept incommunicado until she found an opportunity to escape when she was momentarily unguarded. She made good her escape and went to her friend Raymond's flat where she met her friends and told them something of what had happened to her. She was reluctant to talk about her experience but wrote down something of what had happened and showed it to her friends. It appeared that her friends had to really drag the story out of her. Finally, she and her father made a report of the matter to the police. This episode relates to Count 6.

17. Chan's evidence was that whilst in the first apartment, after D2 had taken Leung to the other room, D1 raped her. D1 told her he was a killer from America and she had to keep quiet and take off her clothes. She shouted for help but was slapped in the face; he tore her clothes off, and forced her to have oral sex with him and then raped her. He said if she did not perform these acts, he would beat her. Eventually, whilst they were having tea D1 released her after having taken particulars of her family. This relates to Count 1. The Crown's case against D2 was that he was an aider and abettor in taking Leung away and leaving Chan with D1 at a crucial time.

18. Regarding the first ground of appeal, the question whether or not the Crown should give a closing speech was fully canveassed in the court below. Having heard counsel, the judge left it to prosecuting cunsel to decide for himself whether or not to exercise his undoubted right to speak.

19. R v Brvant and Oxley [1978] 2 WLR 589 was considered. In that case Watkins J. (as he then was) said this (at p. 596D):

"Prosecuting counsel in the case of a defendant who is himself represented by counsel and gives no evidence and calls none has the right to sum up the prosecution's evidence, or in modern parlance, to make a closing speech at the close of that evidence. It is, however, a right which in our opinion should only rarely be necessary to use save possibly in long and complex cases and whenever used should bear, as should the majority of speeches by prosecuting and defence counsel, the becoming hallmark of brevity."

20. The authority was followed in R v Francis [1988] Cr. L.R. 250 and Tong Yuk-tim v The Queen (1990) HKLR 140.

21. Mr. McLanachan submits that the trial judge should have discouraged or otherwise indicated to prosecuting counsel that a closing speech should not be made, though he readily concedes that the judge had no right to stop prosecuting counsel. He further contends that the closing speech was some 13 pages in length and therefore could not be considered brief. Counsel for the prosecution had gone beyond the proper confines, he suggests, and had offended against the principle of fairness upon which the ratio of Bryant and Oxley is based.

22. We agree that the closing speech was somewhat longer than was necessary but we are unable to say either that the length or the content of the speech was such that it might have caused an injustice to the defence. There was in all the circumstances of this case nothing unfair in what prosecuting counsel said in his speech.

23. By Ground 2, it is complained that the prosecution at the trial made use of a document which had been described by them as "unused material". Prior to the proceedings, the Crown had served the "unused material" on the defence: it took the form of a handwritten note made by Leung in the apartment of a man called Raymond. Since counsel for the Crown made no mention of the note in his opening speech, the defence had expected that no use would be made of it at the trial. However at the trial, the prosecution sought to show the note to Leung to refresh her memory as to what she told her girl friend Miss Kwan by way of recent complaint. It was at that point of the hearing that prosecuting counsel said that "the mode of making complaint is showing written words" to her friends.

24. The note was a document of which the defence had prior notice. There was in those circumstances no element of surprise or prejudice: indeed there was no application made on behalf of the defence for an adjournment. As it happened, in the end counsel for the Crown did not press for Leung to see the note, indicating:

"Having considered my position, I do not think that it would assist the witness to refresh her memory on the point that I have reached. So I don't think I need to seek to apply for permission to allow her to refresh her memory and I don't propose to produce the written notes, now that she has given us an oral account of what she complained. Although this complaint was in a written form, it was shown to, I think, Miss KWAN. We have now the contents of the recent complaint and I am content with that."

In our judgment there is nothing in this ground.

25. Before we leave this ground of appeal, and for the sake of completeness, however, we should touch upon the two recent authorities cited by Mr. MacLanachan.

26. The first is Phillinson [1990] 91 Cr. App. R. 226 which is authority for saying that the inclusion of certain letters and a photograph in the prosecution case, made known to the defence in advance of the trial, coupled with the prosecution's failure to disclose them and their use at the trial, amounted to a material irregularity. There the letter contained facts which amounted to hearsay.

27. The other case is Sansom [1991] 92 Cr. App. R. 115, where it was held that the failure to make certain documents part of the prosecution case and the failure to disclose them amounted to a material irregularity. There the defence did not have the opportunity to investigate the actual date of the documents.

28. The facts of the two cases are entirely different from the case before us. They do not therefore assist the applicants' appeal.

29. The third ground of appeal is misconceived. There was no application for Leung's note to be placed before the jury and the jury in fact never saw it. Although there could have been no objection to the prosecution's putting the note in evidence, and this would seem to have been the better course, the recent complaint was, in our judgment, sufficiently before the jury in the form of her oral evidence.

30. The applications for leave to appeal against conviction are therefore dismissed.

31. As to sentence, D1 simply asks for early release and D2 asks for a chance.

32. The applicants were convicted of multiple rapes and detention of a teenager for the purpose of forcing her into prostitution, for which heavy sentences are called for. We cannot say that in the present case the sentences are in any way excessive. Their applications for leave to appeal against sentence are also dismissed.