HKSAR v. SINGH TERSEM

CACC216/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 216 OF 2009

(ON APPEAL FROM HCCC 10 OF 2009)

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REASONS FOR JUDGMENT

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McMahon J (giving the judgment of the Court) :

1.  The applicant was convicted, after a trial before Deputy High Court Judge Geiser and a jury, of offences of rape (Count 1) and theft (Count 2).  He was sentenced to 6 years’ imprisonment in respect of the rape offence and 6 months’ imprisonment for the theft.  The sentence for the theft offence was ordered to be served consecutively to that imposed for the rape offence, resulting in a totality of 6 years and 6 months’ imprisonment.  The applicant sought leave to appeal his convictions in respect of both offences as well as the sentence imposed in respect of the rape offence and the totality of the sentences.  The applications were heard on 25 March 2011.  On that day we allowed the application in respect of his convictions, treated the hearing as the appeal, allowed the appeal, quashed both convictions, thereby setting aside the applicant’s sentences and ordered a retrial of both counts on the indictment. We reserved giving our reasons and now do so.

2.  The prosecution case at trial was that the applicant and the complainant had once been boyfriend and girlfriend.  By 5 August 2008 their relationship had ended but they remained friends.  On that evening the applicant invited the complainant to come to his premises, and she did so.  There they drank beer.  In the early hours of 6 August the complainant became sleepy and the applicant carried her to the bedroom where he undressed her, kissed her and fondled her private parts.  The complainant resisted these advances but was initially unable to push the applicant away.

3.  Suddenly, the complainant felt a hard object being inserted into her vagina and experienced pain.  This time she was able to push the applicant away.  When she did so she noticed his penis was erect and was about one foot from her private parts.  She was frightened and told the applicant “not to do it to her” and he replied “if you don't want it, I won’t do it”.  He appeared to be angry.

4.  Although the complainant then got up and dressed herself, she eventually became tired and returned to lie on the bed next to the applicant.  Shortly after that the applicant arose from the bed and stood next to a table where the complainant had placed her handbag.  He then left the room.  The complainant was suspicious, checked her handbag and found that her wallet was missing.  The applicant subsequently returned to the bedroom and the complainant asked for her wallet and the applicant replaced it in her handbag.

5.  The complainant checked her wallet and realised $600 was missing. The applicant denied taking the money but suggested nevertheless that the complainant accompany him to a nearby market where he would obtain cash for her.  They went there and the applicant asked her to wait at a particular location until he returned.  The complainant waited, the applicant did not return and the complainant eventually left and went home.

6.  The applicant did not give evidence but in cross-examination his case, which was put in less than desirable detail, appears to have been that there may have been no sexual intercourse with the complainant and that if there were, it was intimated that it may have been, in the mind of the applicant at least, consensual.  So far as the allegation of theft was concerned, the defence was simply that there had been no taking of cash from the complainant’s wallet, and that she was mistaken as to this.

7.  The succinct grounds of appeal against conviction advanced by Mr Loughran on behalf of the applicant may, for the purposes of these reasons, be further condensed and re-enumerated as complaints that :

(1) the judge did not sufficiently sum up the defence case that :

(a) there was insufficient evidence that sexual intercourse had taken place, and

(b) that in any event intercourse was consensual;

(2) the judge erred in not leaving the alternative verdict of indecent assault for the consideration of the jury; and

(3) the judge erred in failing to direct the jury properly regarding evidence of “recent complaint”, and in failing to direct the jury to ignore evidence of the complainant’s distress.

Ground 1—The defence case

8.  The evidence of the complainant from which the prosecution asserted that an inference of intercourse could be drawn was that, as the judge had reminded the jury :

“… She felt the defendant touch her private parts with his hand and then she said she suddenly felt a great pain in her private parts. She said that she felt some kind of hard object inserted inside her vagina. Two to three seconds after she said she felt the pain, she said she warded the defendant’s private parts off with her right hand and, with her left hand, she pushed the defendant away. The very moment that she warded off the defendant’s private parts, she said she saw the defendant’s left hand holding his erect penis only about 1 foot away from her private parts.”

9.  This evidence fell short of direct evidence proving penetration by the applicant’s penis.  The evidential uncertainty in this regard was not removed by the evidence of the government pathologist who had examined the complainant and who, although giving his opinion that a tear to the inner part of the complainant’s vagina was “highly consistent” with recent sexual intercourse, conceded in cross-examination that “the insertion of two or three fingers could cause a similar injury and (that) he could not exclude the possibility of a knuckle causing such injury”.

10.  These uncertainties in the evidence were mirrored, as will be seen, by the lack of specificity in the content of the complainant’s subsequent statements to her counsellor and others in respect of this matter which was adduced by the prosecution as evidence of “ recent complaint”.  In those statements she had said on occasion she had not been raped or that she was unsure as to whether she had been raped.  She, in her evidence, explained her comments as arising from an uncertainty in her mind as to what facts constituted the offence of rape.

11.  The judge in his summing-up had fairly and thoroughly left these matters before the jury.  Given that the applicant had not given evidence and had not, in cross-examination of the complainant, specifically put to her that no sexual intercourse had taken place or, alternatively, that it was consensual, the defence case was simply to leave these matters to the prosecution to disprove.  In those circumstances the defence case was adequately left to the jury by the judge’s thorough directions as to what the prosecution did in fact have to prove to establish its case and, further, by his reminding the jury of the issues they had to resolve and how the evidence of the complainant related to those issues.  In that latter regard he said at the conclusion of his summing-up :

“ With regard to the count of rape, first of all, members of the jury, I want you to bear in mind some matters which you may think are of significance. Firstly, with regard to the question of sexual intercourse, it was never suggested to the complainant in cross-examination that intercourse never took place. You are left with the evidence of the complainant that she felt pain and some kind of hard object inside her vagina. That was unchallenged.

You have to decide whether that hard object was the defendant’s penis which the complainant says, two to three seconds after she felt the pain, she saw in an erect state.  Further, when she felt the pain, she could still feel the hard object inside her.  After she warded him off, she no longer felt the pain. Then she saw the defendant’s penis about a foot away from her vagina, as I say, in an erect state.  Was it the defendant’s penis inside her vagina?  Or something else, the defendant’s finger or knuckle, perhaps?”

Accordingly there was no merit in the 1^st ground of appeal.

Ground 2—The alternative verdict

12.  Inherent in the judge’s remarks however is an acknowledgement that the prosecution evidence allowed for the possibility that the jury could conclude there may have been a doubt concerning penetration of the complainant’s vagina by the applicant’s penis, but that they were nevertheless sure that some other form of sexual assault had taken place.

13.  As we say the alternative verdict of indecent assault was not left with the jury.  But that course had been briefly discussed earlier.  The judge at the end of the prosecution case and prior to ruling on a “no case” submission had raised the possibility of leaving indecent assault as an alternative verdict for the jury, but no particular decision was made at that time and the judge had then indicated he would only need to hear argument as to whether indecent assault should be left in the event he found that the applicant had no case to answer on the rape count.

14.  As matters transpired the judge found the applicant did have a case to answer and there was apparently no further substantive discussion of the matter.

15.  But, with great respect to the judge, this was never a case of rape or nothing.  In Ho Hoi Shing v HKSAR [2008] 5 HKLRD 658 the Court of Final Appeal stated the principles as to when a judge should leave an alternative verdict to a jury.  The court took these principles from the earlier case of Alexander Von Starck v The Queen [2000] 1 WLR 127 and R v Coutts [2006] 2 WLR 2154.  The court in Ho Hoi Shing, in considering the duties of a trial judge in this regard, said at paragraphs 12 and 13 :

“12. It is not disputed that the judge in a criminal trial is under a duty to place before the jury all possible alternatives which are open to them on the evidence. He is not absolved from this duty even if a particular alternative is not raised by the parties or is inconsistent with the defence run by counsel for the accused. As Lord Clyde in Von Starck [2000] 1 WLR 1270 put it at p.1275:

‘It is his responsibility not only to see that the trial is conducted with all due regard to the principle of fairness, but to place before the jury all the possible conclusions which may be open to them on the evidence which has been presented in the trial whether or not they have all been canvassed by either of the parties in their submissions. It is the duty of the judge to secure that the overall interests of justice are served in the resolution of the matter and that the jury is enabled to reach a sound conclusion on the facts in light of a complete understanding of the law applicable to them.’

13. The reason for imposing such a duty on the trial judge is obvious: it is in the public interest that an accused charged with an offence is properly dealt with according to the law. He should be convicted of, but only of, an offence which is proved to have been committed by him. As explained by Lord Bingham of Cornhill in Coutts, at p. 2159, para. 12:

‘The public interest is that, following a fairly conducted trial, defendants should be convicted of offences which they are proved to have committed and should not be convicted of offences which they are not proved to have committed.  The interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than his crime deserves, or acquitted altogether, enabling him to escape the measure of punishment which his crime deserves.  The objective must be that defendants are neither over-convicted nor under-convicted, nor acquitted when they have committed a lesser offence of the type charged…  It is the ultimate responsibility of the trial judge …’”

and went on to approve the test formulated in Alexander Von Starck that :

“If the evidence is wholly incredible, or so tenuous or uncertain that no reasonable jury could reasonably accept it, then of course the judge is entitled to put it aside. The threshold of credibility in this context is, as was recognized in Xavier v The State (unreported), 17 December 1998, Appeal No. 59 of 1997, a low one, and, as was also recognized in that case, it would only cause unnecessary confusion to leave to the jury a possibility which can be seen beyond reasonable doubt to be without substance. But if there is evidence on which a jury could reasonably come to a particular conclusion then there can be few circumstances, if any, in which the judge has no duty to put the possibility before the jury.” [Emphasis added]

16.  In the present case there can be little doubt that the evidence (or one view of it) left open the possibility that something less than rape had occurred.

17.  The prejudice to the applicant was, as said in Ho Hoi Shing, the constraint placed upon a jury, where a possible proper alternative verdict is not left open to them, to return a verdict which represents something less than their consideration of the whole of the options which should have been available to them.  The court in that case, in deciding that manslaughter by an unlawful act should have been left as an alternative verdict for the jury, said 

“22. … It is impossible to speculate how the jury arrived at their verdict, especially where they had not been directed on all the viable alternatives. The jury were entitled to have the entire picture and all the viable alternatives placed before them. Their approach to the evidence might have been different depending on the options they had been given. As Lord Rodger said at p.2190, in para. 89 [of R v Coutts]:

‘But [counsel’s submission] is to make an unreal assumption that, at all stages of their deliberations, the jury would keep the various issues in separate boxes, to be considered in a prescribed order. The reality is that, in the course of their deliberations, a jury might well look at the overall picture, even if they eventually had to separate out the issues of murder, manslaughter and accident. So, introducing the possibility of convicting of manslaughter could have changed the way the jury went about considering their verdict.’

23. It is also impossible to say that the jury’s choice would not have been affected by the offers of alternative verdicts open to them. See Callinan J in Gilbert v R, (2000) 201 CLR 414, 441:

‘It is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of the choices offered.’

24. This was approved by Lord Hutton in Coutts who said at p. 2181, in para. 61:

‘Therefore I consider that the House should … hold that, save in exceptional circumstances, an appellate court should quash a conviction, whether for murder or for a lesser offence, as constituting a serious miscarriage of justice where the judge has erred in failing to leave a lesser alternative verdict obviously raised by the evidence.’”

18.  There being no exceptional circumstances in this case, the applicant’s conviction for rape was quashed.

Ground 3—Recent complaint and distress

19.  It was argued before us also that the judge had erred in his directions regarding the evidence of “recent complaint” relied upon by the prosecution and in those concerning the complainant’s apparent distress when she made those complaints.

20.  It is noteworthy that the terms of the statements made by the complainant in this regard were ambiguous and on occasion contradictory.  The judge summed up that evidence as follows :

“ PWs 2, 3 and 4 were the witnesses that I have just referred to and who came to court to give oral testimony of recent complaint. Just to remind you, briefly, as to what they said, PW2, Mr Tam Yat-sun, told you that he met with the complainant on 7 August, who told him that she had been sexually assaulted by a friend who took off her clothes and pressed himself against her body. He said that he asked her if she had had sexual intercourse with this friend and that she told him that she was not sure as, at the time and under the circumstances, she was confused.

PW3 was Madam Tan Kong-sau. She is the social worker from Rain Lily. She said that she talked to the complainant on the telephone on 7 August, over the hotline. She said the complainant was very distressed. … She said that the complainant told her that she had been interfered with by her ex-boyfriend. Miss Tan said that the complainant told her that she had not decided whether to call the police as she was unsure whether it was a rape.

… PW4, Miss Ng Wing-lam, also from Rain Lily, … said that the complainant told her that she had been sexually assaulted by her ex-boyfriend and that she was thinking about whether to report the matter to the police. … Eventually, the complainant decided to report the matter to the police and Miss Ng told you that she accompanied her to Tuen Mun Police Station.

In cross-examination of this witness, Miss Ng confirmed that the complainant told her that she had not been raped.”

21.  The judge gave the jury directions as to how to approach the evidence of recent complaint and distress.  He said :

“… The importance of those three witnesses is that they gave evidence of what lawyers call ‘recent complaint’. It is of course not evidence as to what actually happened between the defendant and the complainant in the early hours of 6 August last year because, of course, these witnesses were not present and did not see what happened. But it is evidence, however, which you are entitled to consider because it may help you decide whether or not the complainant has told you the truth when she gave evidence about being sexually assaulted by the defendant in the early hours of that morning.

It is for you to decide whether the evidence of this complaint helps you reach a decision, but it is important that you should understand that the complaint is not independent evidence of what happened between the complainant and the defendant and it therefore cannot, of itself, prove that the complaint is true.

However, members of the jury, each of these three witnesses, particularly PW3 and PW4, testified to the fact that when the complainant contacted him, the complainant was extremely distressed and had difficulty in telling them the course of this incident.  You are entitled to ask yourselves why do you think this was?  And why was it that the complainant actually went to the trouble of contacting Rain Lily in the first place?  These are entirely matters for you.” [Emphasis added]

22.  Mr Loughran complains that the difficulty with these directions in the circumstances of the case is that while the evidence of recent complaint may well have supported the complainant’s credibility, it could do so only so far as her evidence was that she had suffered some sort of sexual assault and the direction given by the judge should have stated precisely that.  By not doing so Mr Loughran argues that the jury may have been misled so as to regard the evidence of complaint as supporting the specific allegation of rape.

23.  We do not think this to be so.  The judge made it sufficiently clear to the jury that the evidence of complaint went no further than being evidence consistent with and therefore capable of supporting the credibility of the complainant’s testimony that she was “sexually assaulted’ (as emphasised above).  In the context of the judge having reminded the jury of what had been said at the time of the complaint and his direction to them that this evidence was simply an aid to their deciding what weight to place upon the complainant’s evidence, the jury must have been aware that this was evidence which went only to the consistency of the terms of the complaints when compared with the complainant’s testimony, and that the degree of that consistency was a matter they could take into account in deciding what reliance should be placed upon the evidence of the complainant.

24.  It remained then a matter for the jury to decide whether the complainant’s evidence, even if credible, established the elements of the offence of rape.

25.  However we think Mr Loughran is on stronger ground regarding that part of the judge’s direction concerning the evidence of distress.  In Leung Chi Keung v HKSAR [2004] 7 HKCFAR 526, Li CJ, at paragraph 21, pointed out the quite different uses of evidence of recent complaint and that of distress in cases involving sexual offences.  Evidence of recent complaint is admitted simply so as to demonstrate consistency between that which the complainant said shortly after the event and her evidence at trial.  Its use by a jury is therefore restricted to determining the question of a complainant’s credibility.  Evidence of distress however is capable of being independent probative evidence as to matters in issue.  In other words a jury may rely upon it as evidence which, in its own right, may be relevant to proof of a fact and not be restricted solely to the issue of the complainant’s credibility.

26.  In Leung Chi Keung, the court said at paragraph 39 :

“ Turning to the approach that should be adopted in Hong Kong, as has been discussed, evidence of recent complaint cannot be evidence of the facts complained of because it is only evidence of the consistency of the complainant’s conduct with his or her testimony. But, in accordance with the approach laid down in this judgment, evidence of distress may have probative value as to the facts in issue and weight may be given to it. Since the evidence of recent complaint and distress would have arisen out of the same event, it is necessary for close attention to be given to it. The judge should direct the jury in clear terms that the respective uses to which evidence of recent complaint and evidence of distress may be put are different. The former may only be used as evidence of consistency whilst the latter, in accordance with the approach adopted in this judgment, may have probative value as to the facts in issue and weight may be given to it.”

27.  It should be noted that in this regard that Hong Kong law may differ from the position in England as reflected in the judgment of R v Venn (John Allen) EWCA [2003] Crim. 236, where it was said evidence of a complainant’s distress when complaining of a sexual assault could be regarded as simply “part and parcel” of the complaint with little or no independent probative effect (but see also R v Romeo [2004] 1 Cr.App.R. 30).

28.  In Leung Chi Keung the court went on to say at paragraph 41 :

“ The judge should direct the jury on the proper approach to be taken in considering evidence of the complainant’s distressed condition. In summary, the essentials of the proper approach are as follows:

(a) The jury must be satisfied beyond reasonable doubt (i) that the complainant’s distressed condition was genuine and (ii) that there was a causal connection between the distressed condition and the sexual offence. In other words, they must be satisfied that (i) the distressed condition was not feigned and (ii) was only referable to the alleged sexual offence and not to any other cause. In deciding on those matters, they must take into account all relevant circumstances.

(b) Where the jury is so satisfied, they could give such weight to the evidence of distress as is appropriate. Weight is entirely a matter for them.

(c) Where the jury is not so satisfied, they should disregard the evidence of distress.

(d) Where fantasy has been properly raised as an issue, the jury must not use evidence of distress to rebut fantasy.  If they believe that fantasy is a possibility, they cannot be satisfied of the required causal connection.”

29.  These or similar directions are required where, as in the present case, a jury is left to consider evidence of the complainant’s distress as independently probative, and none were given.  In the circumstances of this case where sexual intercourse was in issue, the jury should have also been told that the evidence of distress could go no further than provide evidence of some form of sexual assault.  In our view the lack of directions as to how to approach this evidence provided a separate basis for the setting aside of the rape conviction.

30.  A further matter concerning the “distress” direction was the potential for confusion in a juror’s mind as to whether the evidence of the complainant’s distress may have applied to both offences charged, or whether, properly, it could apply only to the allegation of rape.  No express direction was given in this regard and we were of the view that for that reason, and given the evidential inter-connection between the two counts, the theft conviction should also be set aside.

Retrial

31.  The applicant had served only 21 months of his total sentence of 6 years and 6 months’ imprisonment at the date of the hearing of his application.

32.  In our view it was appropriate to order a retrial of both counts on a fresh indictment given the nature of the prosecution evidence, the basis upon which we allowed the appeal and the period of imprisonment served by the applicant in respect of his consecutive sentences.

33.  For those reasons, we allowed the application, treated the hearing as the appeal, allowed the appeal and quashed the applicant’s convictions on both counts.  We ordered he be retried on a fresh indictment and that the trial date be expedited.