HKSAR v. CHAN KA WAI

CACC 526/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 526 OF 2004

(ON APPEAL FROM HCCC NO. 69 OF 2004)

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REASONS FOR JUDGMENT

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Hon Stock JA (giving the Reasons of the Court):

Introduction

1. This applicant was charged upon an indictment containing two counts, each alleging rape on 16 August 2003 in premises which he occupied in an estate in Shatin.  To this indictment he pleaded not guilty and was tried by Nguyen J and a jury.  On 30 November 2004, he was convicted by a 5-2 majority in respect of each count and sentenced to a term of six years’ imprisonment.  He sought the leave of this Court to appeal against each conviction, and on 13 July 2005 we granted him leave to appeal, treated the hearing of the application as the appeal, allowed the appeal and set aside the convictions.  We said that we would provide reasons later and this we now do.

The evidence

2. The evidence at trial can be broadly stated.  The complainant was at the time she gave evidence aged 28 years and had known the applicant for some time.  On the afternoon of 15 August 2003, according to her testimony, the applicant telephoned her and an arrangement was made that they would meet that night after she finished work.  At about 10 p.m. she telephoned the applicant and agreed to meet him.  He said he was somewhat occupied and asked her to go to the car park near the estate where he lived, and that is what she did.  They went to a food kiosk nearby to eat noodles and after that, according to her own testimony, it was she who suggested going to his flat for drinks.  On the way there, as well as once she was at his premises, she made a number of telephone calls to other people, including an ex-boyfriend as well as a taxi driver known to her with whom she tried to make an arrangement for him to collect her; but he was not at that time able to do so.

3. Whilst at the applicant's premises, they played cards and there came a time when the applicant told her that he wished to court her. She told him that she regarded him as a friend only.  She said she was frightened and tried to avoid him.  He spoke to her then in a fierce manner and kissed her and she tried to push him away but she failed.  She said that he lifted her body and placed her on a bed and took off her T-shirt and removed her jeans and then had sexual intercourse with her.  This act formed the basis of the first count on the indictment.

4. She got up and put on her clothes and telephoned the taxi driver.  She sat on a bed and the applicant asked her not to leave and he handed her some clothes and told her to take a shower.  She did so.  After that, she sat on the sofa, clothed; but he came to sit beside her and pulled her to a bed and again had intercourse with her against her will.  This act formed the basis of the second count on the indictment.

5. Thereafter, he fell asleep and she left, but she dropped something and he awoke.  She told him that she could not sleep and wanted to go home.  As she left, he told her that her upper garment was inside out, so she returned to the flat where she rearranged the garment.

6. Once she had left, she telephoned a number of people including an ex-boyfriend, as well as a man whose relationship with her just ended; and also a girlfriend.  In respect of each of these calls she gave evidence, as did they, that she was crying: To each she made a complaint that she had been raped by the applicant.  The evidence of distress was supplemented by that of the police to whom she made a report, as well as of a doctor who examined her.

7. There was testimony too from a police officer who arrested the applicant the very day of the alleged rapes.  Upon his arrest, the applicant’s immediate reaction was to say that he had not raped the complainant and that she had had sexual intercourse with him ‘of her own free will’.

8. The applicant did not give evidence at his trial.  He had, however, made a lengthy statement to the police about the events in question at an interview which they conducted in the early evening of 16 August 2003.  The essence of his account to them was that he and the complainant had indeed twice had sexual intercourse at his place earlier that day but that it had been with her consent.  He described in minute detail what had transpired, how it came to be that her clothing was removed, and her co-operation in those acts as well as in the sexual acts that followed.  He related how after the first act of intercourse she took a shower and then donned garments which he had provided; and how it came to be that a second act of sexual intercourse took place.  She left his premises some time past 3 a.m. because she told him that she was not sleeping comfortably in the bed that was strange to her and that the room was too bright.  He could not see her home because he had to work that day.

The written handout

9. This application for leave to appeal centres upon one of several written handouts which the judge gave to the jury in the course of his summing up.  The judge provided written handouts as to certain aspects of the law and then one as to the matters of fact about which the prosecution and defence agreed.  The handout in respect of which complaint is made was in two parts.  One was a document entitled “For the Prosecution”; and the next a document entitled “Against the Prosecution”.  Counsel’s closing submissions had concluded on a Friday and the summing up commenced on the Monday following.  It was only on the Monday morning that the judge gave to counsel a copy of the several handouts that he proposed to provide to the jury.  We are told that counsel did not take any objection to the handouts and that, at the request of defence counsel, an addition was made to one of the two parts of the handout with which we are concerned.

10. Havingsummarised the evidence in some very considerable detail the judge said as follows:

“I told you yesterday, members of the jury, that it will be your task to decide what the facts are.  And what you make of the facts is, of course, a matter entirely to you.  I may or may not have any views on the facts but if I express any views to you about the facts, then you are entitled to disregard them if you do not agree with me.  If you agree with me, then of course you are entitled to take into account what I say.

In trying to analyse the evidence and to try and assist you, I have prepared two documents to save you having to write this out which my clerk will let you have.  And if we look at the first one first, Matters for the Prosecution.  These are five matters that I have listed which you may wish to consider which, in my view, can be looked at as matters which assist the prosecution.  That is why I have called this ‘For the Prosecution’.” (Appeal bundle p 38B-J).

11. The handouts themselves ran as follows:

“	MATTERS you may wish to consider:
	FOR THE PROSECUTION
	1.	Sze’s conduct after leaving defendant’s flat – immediate complaint, almost immediate report to the Police, emotional state – crying, trembling.
	2.	If Sze consented to the sexual intercourse and was afraid that Wah Chai would know about it or if she was trying to win him back through sympathy, why is it that the first persons she rang after leaving the defendant’s flat were Kan Chun-kit and Ho Suk-han and not Cheung Hon-wah?
	3.	If she consented to the sexual intercourse and so the phone call to Ho was just part of the pretence, why was it necessary for her to have to lie to Ho that she felt great pain in her lower parts?
	4.	Why did Sze leave the defendant’s flat at about 4.20 am if she had earlier consented to the two acts of sexual intercourse?  She knew that if she left then, she would have had to take a stranger’s taxi whereas earlier on at 1.36 am when Chan Kam-por said he was still not free, she was not prepared to take another taxi.
	5.	If the phone calls to Kan Chun-kit and Ho Suk-han were all part of a pretence, why did she have to cry to try and deceive Kan, bearing in mind that she had separated from him since about early 2000 and they had been together for only about one year?”

And then, separately:

“	MATTERS you may wish to consider
	AGAINST THE PROSECUTION
	1.	How was Sze’s T-shirt taken off if she did not co-operate with the defendant?
	2.	Was Sze still wearing her sports shoes when her jeans were taken off or had she or the defendant already taken off the shoes?
	3.	Were the jeans removed without Sze lifting her bottom and/or lifting her heels to enable the jeans to pass through the feet?
	After the 1st act of sexual intercourse
	4.	Why did Sze not ask Chan Kam-por to come back to Sun Chui Estate to pick her up?
	5.	Did she intend to leave the defendant’s flat and if she did, why did she bother to take a shower and give the defendant further opportunities to molest her?
	6.	After the shower, why did she not wear her own clothes which would have enabled her to leave immediately if there was a chance but instead she wore T-shirt and shorts given to her by the defendant?
	7.	Why did she climb back onto the bed again a second time and give the defendant further opportunities to molest her, given that there were no threats, no weapons or violence used by the defendant?” (Appeal bundle pp 225-228).

12. The person Sze referred to is the complainant; Wah Chai the recent boyfriend; Ho the girlfriend; Kan an earlier boyfriend; and Chan Kam-por, the taxi driver.

The grounds of appeal

13. Mr Kelly, who appears on behalf of the applicant and did not appear in court below, makes a number of points:

(1)	that these documents suggested, by their production and the way they were framed, that there were two versions of events and that the jury could accept one or the other and, in the circumstances, that this undermined the earlier normal direction that had been given as to the burden and standard of proof;
(2)	that in producing these documents, the judge encroached upon the fact-finding function of the jury;
(3)	that the document entitled “For the Prosecution” conflated both recent complaint and evidence of distress, thereby nullifying the effect of previous directions as to the extent to which recent complaint and evidence of distress was quite differently to be utilised by the jury; and
(4)	that the judge failed to tell the jury that written directions were not to be taken by them as accruing a status more important than oral directions.

Analysis

14. It is common, and can be helpful, for a judge to frame directions as to law, or to delineate the matters that have to be proved before a jury may properly convict a defendant.  But what happened in this case was most unusual and in our judgment unsatisfactory.

15. Written handouts carry with them the judge's seal of approval and therefore the likelihood of particular weight.  Furthermore, they are documents that the jury takes with them to their room for the purpose of deliberation.  One trusts that a jury will recall the important points of an oral summing up, but one can rest assured that its members will study what is in writing before them.  This is unobjectionable in relation to points of law, because points of law are the province of the judge, and because the law can be stated very precisely and is generally uncontroversial.  So too, the study of written directions is unobjectionable where they take the form of precise questions, tied to the case-specific issues of law, that the jury should seek to answer in arriving at their verdict; such, for example, as are quite regularly used in murder cases where a host of alternative issues arise for determination.  Yet such written directions are not judgemental as to facts.  They are precise statements of the law, and of the questions that in a particular case must be answered one way or another.  However, when a judge crosses the line into discussions of fact, he treads upon the province of the jury.  That is acceptable in so far as he is required to present a balanced summary of the testimony, and it is also acceptable for him to proffer, within recognised parameters, comments upon that testimony.  But, for him to place before the jury, under whatever cautionary rubric he may, written lists of factual pointers which are stated to be a list of those matters which in his view in fact favour the prosecution, and those which in his view in fact favour the defence, he courts the distinct danger of lending undue weight to his evaluation of the facts.  These are lists that the jury will take with them to the jury room.  These are lists that the jury will study and may well view, by reason of their provenance and reduction to writing, as almost definitive of the points that should carry true or particular weight or that they should study.  This becomes especially so when the facts or points are chosen by the judge from amongst others that might be made.  It is one thing for a judge orally to put to a jury competing submissions and to comment upon them, but quite another to put them forward in writing as in fact having value – for that is the effect of a handout of this type; and it should not be thought that the formulation “matters which you may wish to consider” or “it is a matter for you” or a phrase along those lines, is a mantra that will inevitably overcome these dangers.

16. There was no direction by the judge that the points were not intended to be an exclusive list of factors that may be taken into account in favour of the defendant or against him.  Such a direction would not have cured the matter, but we make the point because the absence of such a direction itself makes the document all the more a list that may take on the hue of one that is exhaustive.  That danger was aggravated by the fact that before reading out that part which was said to assist the defence, the judge said:

“Then the other side of the coin, members of the jury, are in my view matters which you may look at and say to yourself ‘These are matters which do not assist the prosecution.’”

Were there other matters, one may ask, which were not to be looked at?  Similarly, after reading out the whole handout, the judge said to the jury:

“So those are matters, members of the jury, which I suggest you may wish to consider to assist you.”

Nor did the judge at any stage give to the jury the caution that is regularly given with written handouts, that such documents do not, merely because they are in writing, assume a status greater than that of the oral directions.

17. The points made in the applicant’s favour in the handout entitled “Against the Prosecution” were by no means the only points in his favour worthy of consideration.  The judge failed to mention, for example, the defendant’s immediate reaction upon arrest; the fact that it was the complainant’s idea to go to the defendant’s flat; the fact that she lied to her recent boyfriend about whose idea it had been to go to those premises; that there was no evidence of any injury to her or damage to her clothing; nor any attempt by the applicant after the event to stop her leaving as and when she wished.  It is said by counsel for the respondent that these, or some of these, matters were mentioned by the judge elsewhere in his summing up.  The very fact that the judge mentioned some of these matters elsewhere in his summing up (in some instances, we note, with a countervailing comment by the judge) without including them in these written lists, itself suggests, or may have suggested to the jury, an evaluation by the judge that they were not worthy of inclusion.  That is the very problem with a written list of this kind.

18. An ancillary difficulty was revealed by the text of the first point said to be “For the Prosecution”.  That, it will be remembered, said that the complainant’s conduct after leaving the defendant’s flat favoured the prosecution because of her “immediate complaint, almost immediate report to the police, emotional state – crying, trembling.”  We are not here so much concerned by the fact that this fails to draw the distinction between the use to which a jury may put recent complaint and the use to which it may put evidence of distress.  What concerns us more is that the judge stipulated that distress was one of the factors which in his view in fact assisted the prosecution.  Yet distress can only be taken in support of the prosecution case upon satisfaction of certain conditions precedent; in particular, satisfaction that the distress was genuine and that there was demonstrated a causal connection between the distress and the suggested assault.  The implication, therefore, is that in the judge's view those conditions precedent had been satisfied.  That was exclusively a matter for the jury and it was, in our judgment, of doubtful avail in the circumstances for the judge to add, as he did after reading out the passage in question:

“But when you consider that, please bear in mind what I said to you about her distressed condition and you have to be satisfied about that first.” 

It is difficult to be confident that the jury understood precisely to what it was that the judge was referring, and in any event one would have expected, were written comments at all acceptable, for the conditions precedent to have been written out as well.

19. We were at one stage exercised by the fact that counsel for the applicant took no objection to the written handout which is the subject of this appeal, and that he proffered a further point to be made in his client’s favour.  Yet our function is to determine whether in all the circumstances the conviction can be said to be safe and satisfactory.  This jury took something in the order of ten hours to deliberate, and we note that after about six hours its members delivered a question to the court what to do in the event of a 4-3 split.  In our judgment, for the reasons we have given, the written handout in question – even though intended to be helpful – should never have been issued, was in any event incomplete, and carried with it all the dangers to which we had referred, and we were unable to say that this unsatisfactory step had no material impact upon the ultimate result.  In the peculiar circumstances which arose, the fact that counsel agreed to the course taken does not mollify our concerns.  Whilst that concludes the matter, we have to say that we are surprised that counsel did agree; although perhaps it would be fair to qualify that surprise by recalling that he was presented with this handout at short notice and together with a series of other handouts.

20. For these reasons, we allowed this appeal. 

21. An application was made for a retrial.  Resolution of that issue was not without difficulty given the seriousness of the allegation.  That said, we note that in this case, where the factual issues were straightforward, the jury had deliberated for an unusually long time and had evidenced some difficulty in coming to a majority verdict, and given the material omissions in the written document – which as we say is not a document that should have been produced – it may very well be that the applicant was thereby denied a real chance of a different verdict.  In all the circumstances of this case – and we emphasise that these decisions are matters of discretion taken on a case by case basis – we declined to order a retrial.