HKSAR v. WONG KWONG YICK

IN THE COURT OF APPEAL

1996, No.594
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant WONG Kwong-yick faced one count of rape, it being alleged that on 10th March 1996, inside Room 518 Sau Mau Ping House, Sau Mau Ping Estate, Kowloon, he raped Nantasai Thanomjit. He pleaded not guilty to that count but was convicted on 25th September 1996 after trial before Deputy Judge Wilson and sentenced to imprisonment for 3 1/2 years. He now seeks leave to appeal against that conviction.

2. It was the evidence of Madam Nantasai, the victim, a married woman from Thailand, that she and her twin sister and her brother-in-law had on the evening of 9th March 1996 attended a karaoke party in the apartment of a Mr. Chuen Chin-fai. The applicant was also at that party. The victim said that the applicant made some mild advances to her during the course of the evening to which she did not respond. Eventually the party broke up and her sister and brother-in-law went to their home nearby leaving her with the applicant, Mr. Chuen and his two children. She said that she had a bath and then came out and rejoined the party for a short time before going to bed; that when she was half asleep she heard the applicant saying that he was leaving and that a while later he came into her room and gave her back her handbag which she had left in the living room; that she thanked him and carried on with her "sleeping"; that a short time later she felt his lips on hers and awoke and told him not to do that and to please go home; that she then went on sleeping; that when she woke again, the light, which had formerly been on, was off and that she felt the body of the applicant press against hers. She then said:

"It was so fast it happened. I was quite shocked that I couldn't say a word but try to find out what happened. I tried to control myself and to find out what happened and to struggle. He was quite strong. He used one of his hands pressed on me and the other hand pulled my pants down. I felt very hurt and tried to struggle free from him."

She said that she tried to push herself from the bed and that her body fell down from the bed but her legs were still on the bed; she then tried to push her body towards the door; that the applicant was then not wearing any clothing and that he succeeded in pulling down her trousers and panties to her knees and that, due to her struggle, they came off; that in the course of this happening he "successfully put his penis into my vagina". When asked to describe what had occurred after that she said:

"He tried to put me in control and myself tried to struggle and move my body away from him which I successfully to do that."

She said that after the applicant desisted she then telephoned her sister who came with her husband to the apartment. The victim admitted that she had never shouted for help but was adamant that from the moment she realized what was happening she had struggled to free herself from the grasp of the applicant.

3. It was suggested to her in cross-examination that she had brought her handbag into the living-room and had then given some sort of tacit invitation to the applicant that he should later bring it to her. This she completely denied. It was suggested that when the applicant came into the room with the handbag she started to tell him about difficulties with her husband and that this led to mutual kissing which led to intercourse; that after intercourse she and the applicant sat on a sofa in the living room talking about a watch which he had offered to give to her. She did not agree to these suggestions but said that she was sitting on the sofa waiting for her sister and that the applicant did approach her trying "to explain what he had done to me" and that at that time he did take out the watch and give it to her but that she returned it. It was suggested to her that she had seen the applicant undress. This she denied saying that she was asleep at that time. It was suggested to her that he then moved to about an arm's length from the bed side and that she moved forward to have oral sex with him. This she denied. It was suggested that she then lay back down on the bed and spread her legs and that the applicant then made love to her. This she denied. It was suggested that she cooperated in the lovemaking by moving her lower body in unison with that of the applicant. This she denied saying that she moved her body in an endeavour to get out from the bed and to reach the door.

4. It was put to her that the applicant withdrew when she said she was feeling pain. She admitted that she had felt pain but said that it was a lie to suggest that she had told this to the applicant and that he had withdrawn because of it.

5. The suggestions put to her were that consensual intercourse took place in which she had been an eager participant. These suggestions she denied throughout.

6. The evidence of the applicant was in accordance with the defence case as put by his counsel.

7. No complaint is made of the way in which the judge outlined the evidence to the jury. It is however suggested that the direction as to rape was inadequate. The judge said:

"The prosecution must prove that the defendant knew the girl did not consent, or at least that he was reckless whether or not she consented. Reckless means that you must be sure that he did not believe she was consenting and could not have cared less whether she was consenting or not. It's not necessary for the prosecution to prove that the girl struggled violently, she's not expected to put up a physical fight. It is sufficient for her to indicate that she did not consent, and if you are satisfied that the intercourse was under duress through fear, then that would be enough."

8. It is contended in Ground 1 that the

"... directions to the jury on consent, which was the only real issue in the trial, were inadequate inasmuchas he gave no direction at all on the effect of a mistaken belief by the applicant that PW1 was consenting, in circumstances which plainly called for such a direction and when the learned judge himself, when sentencing the applicant, said that 'it could be a case of the defendant having misinterpreted the signals, and that that was probably the basis of the jury's verdict.'."

In R. v. Haughian and Pearson (1985) 80 Cr.App.R. 334 at 341, O'Connor L.J. said:

"In cases such as the present in which the conflict of evidence between the complainant and the accused is acute and in which, if the jury decide that the account given by the complainant is truthful, there is no room for a genuine but mistaken belief by the accused that she was consenting, any over elaborate direction to the jury on the question whether the Crown has proved that the accused knew that the complainant was not consenting could only tend to confuse them and would be unnecessary."

Mr. Macrae, for the applicant, submits that the judge made it clear in his remarks when sentencing that he was of the view that there was a real possibility that the applicant had acted under a mistaken belief that the victim was consenting. He refers particularly to the following passages:

"The jury's verdict was open on the question as to whether the defendant knew she did not consent or whether he was reckless about that. In this case I think it was the latter, that it was a case of recklessness."

The judge went on:

"... having heard and seen all the evidence including that of the girl and the other parties I think it could be a case of the defendant having misinterpreted the signals, and that that was probably the basis of the jury's verdict."

He said finally:

"The girl and the defendant had spent the whole evening together in the company of other people and were clearly acquainted, and that the jury's verdict is explicable on the grounds that it was recklessness on the part of the defendant in assuming that she gave her consent."

He submits that the judge was clearly of the view that the evidence was open to the interpretation that the applicant had assumed that the victim was consenting and that the judge had failed to realize that, if that might have been the case, he should have directed the jury that, while a reckless assumption was no defence, it was a defence if the applicant held a genuine but mistaken belief as to consent. Mr. Macrae argues that we must, when considering the adequacy of the direction, give full weight to the view of the judge. We do not agree. We are, we must say, left in some doubt as to what the judge meant by the remarks he made when sentencing. We are, however, quite satisfied that the evidence did not require that any defence of genuine but mistaken belief be left to the jury. On the one hand there was the evidence of the victim that she had been awoken while sleeping by a naked man who had, despite her struggles, forced her to have intercourse and on the other hand there was the evidence of the applicant that she was a willing and, indeed, eager participant in sexual foreplay and eventually in intercourse. There was a conflict between the two sets of evidence which left no room for a defence of genuine and mistaken belief. This matter falls squarely within the class of cases described by O'Connor L.J. in R. v. Haughian and Pearson.

9. The only other ground pursued by Mr. Macrae was a suggestion that the jury was wrongly directed by the judge when he answered a question posed by them on a matter of fact. They asked whether the intercourse had taken place on the bed or partly on the bed and the judge had answered this query saying:

"According to the evidence, it would appear to be A (the former alternative) but this is essentially a question of fact for the jury."

It was suggested that there was a danger that, because of the way in which this reply was worded, the jury might have been led towards a wrong conclusion of fact. We see no such danger. It is true that the judge indicated what he considered was the state of the evidence but he made it perfectly plain that it was a matter for the determination of the jury itself.

10. There is no merit in the application and it is therefore dismissed.

11. The Secretary for Justice sought a review of the sentence of 3 1/2 years. Mr. Saw who appeared for the applicant, submitted that since R. v. Billam & Others (1986) 8 Cr.App.R. (S) 48, Hong Kong courts had adopted a starting point of at least five years for an offence of rape without aggravating or mitigating circumstances. He submitted that there were no such circumstances in the present case and that the judge had been wrong in his failure to accept that the jury must have acted upon the evidence of a victim which established a deliberate forceful rape. He submitted that the respondent, by his plea of not guilty and his evidence, clearly had not exhibited any remorse which might have entitled him to a reduced sentence and that there was nothing that would have warranted any deviation from the accepted sentence of five years' imprisonment. Mr. Macrae submitted that the sentence of 3 1/2 years was neither manifestly inadequate or wrong in principle. He submitted that the sentence was within the proper range and that it was in the discretion of the trial judge to give weight to his view of the circumstances of the offence which were that the respondent might well have felt that his attentions would be welcomed by the victim. We are satisfied that the judge did fail properly to assess sentence and that 3 1/2 years was manifestly inadequate. There is no question in our minds that this was an offence which warranted a sentence of five years. None of the factors which would entitle the respondent to a reduction of that sentence by reason of the fact that it is imposed after an Application for Review are applicable.

12. The Secretary for Justice's application succeeds and the sentence is varied from one of 3 1/2 years to one of five years.