HKSAR v. IP WAI HO, MICKY

CACC 364/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 364 OF 1999

(ON APPEAL FROM HCCC 409 OF 1998)

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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. On 24 June 1999, the Applicant was convicted of rape following a trial in the Court of First Instance before Deputy Judge Gill and a jury. The Applicant, who received a sentence of 61/2 years, now seeks leave to appeal against conviction and sentence.

2. The facts of the case were very straightforward. The victim was a month short of her 15th birthday when, on 26 September 1998, the offence was allegedly committed. She had worked for a short while as a shampoo-girl at a hairdressing salon in Tai Kok Tsui where she met the Applicant. She gave him her pager number. After leaving her job, the victim went to the Applicant's home when he was alone.

3. The prosecution's version of what took place in the flat was at almost complete variance with the defence case. The victim's account, for which there was no corroboration, was that the Applicant embraced her and she pushed him away. This led to the Applicant pushing her down on the bed where a struggle took place. The Applicant indecently assaulted the victim and made her very frightened before he raped her. Before being allowed to go, the victim was made to take a shower and to kiss the Applicant.

4. Thereafter, the victim immediately complained about the Applicant to a male friend who she knew as "Ah Yin", saying that she had been raped by a man called "Tai Ho". Evidence of recent complaint was in due course given by Chan Chun-yin (Ah Yin) who advised the victim to go to the police. However, she was anxious that her parents should not find out and the matter was not immediately reported. Three days later, the victim was again with Ah Yin when she made a report of rape to the police.

5. The Applicant was arrested and he maintained his innocence from first to last.

6. In evidence, the Applicant described an operation for haemorrhoids which he had undergone on 22 September 1998. This was amply borne out by medical evidence which confirmed what he said about the operation. He had been discharged from hospital on 24 September 1998, but he was not feeling well enough to resume work. He was still feeling uncomfortable on 26 September 1998. It was while he was at home that the victim rang him and he invited her to come up to his flat because he sensed that she needed company. He described how the victim gave him a kiss to which he responded. He then removed his shirt, but the victim remained fully dressed. After 10 minutes, the victim said that she had to go, so he put his shirt back on and the victim left.

7. There were telephone calls back and forth between the Applicant and the victim after the meeting between them and during one of the calls, the Applicant came to speak to a man whose manner was somewhat hostile. The Applicant tried to find out why this was and later he came to learn that the victim had gone to the police station to make a report. His arrest was on the following day, 30 September 1998.

8. The summing up dealt with the issues raised in the trial with clarity and meticulous care. Mr Delaney, on behalf of the Applicant, whilst not completely resiling from what he had put in his written argument, to the effect that the judge's directions to the jury before they retired were largely unobjectionable, did, during the course of his arguments, seek to indicate that the summing up could have gone further on certain aspects.

9. However, after the jury had retired, the judge received a question from the jury, the answer to which is essentially the basis of this application. There was a brief discussion between counsel and the judge before the jury were invited to return to the courtroom, and the transcript at page 21 sets out what occurred when the jury returned. The judge said to the jury:

"I have your question before me which I will read out. 'What is meant by "without reasonable doubt"? For example, when I believe that the defendant had sexual intercourse with the victim for 90 per cent, for the remaining 10 per cent I have some doubt. So when I vote, will I vote "Yes" or "No"?'

First of all, I am glad you have taken the trouble to voice, to spell out, your concern about this issue, because it is the first and most fundamental matter of our criminal law - this issue of 'beyond reasonable doubt'. I will try and answer as best I can in this way. It is not a matter of mathematics. It is not a matter of percentages - 90 per cent, 95 per cent, 75 per cent. It is more abstract than that. What it amounts to is that there has to be a high degree of certainty for you to be satisfied beyond reasonable doubt.

The alternative phraseology to 'beyond reasonable doubt' is that you have to say, 'I am sure he or she did whatever it is they are accused of. I have to be sure.' If you are not sure - if you have a doubt - then you have not achieved that high degree of certainty. I think that is about all I will say, that is in addition to what I have already spelled out to you when I summed up. But what I will do before sending you off again is to spell out the same words as I did in the summing-up so that you have got that in isolation before you go - as follows:

The first and most fundamental matter of law is that the burden of proof in this case is on the prosecution. That means that it is for the prosecution to prove the defendant's guilt. The defendant certainly does not have to prove his innocence. Before you can convict the defendant, you must be sure of his guilt and that is the same as being satisfied beyond a reasonable doubt of his guilt. If, having considered all the evidence and applied my directions on the law, you are not sure about his guilt, then you must acquit him. If you have no such doubt and you are sure of his guilt, then it will be your duty to return a verdict of guilty.

I hope that serves to clarify things for you. I will now release you. Thank you."

10. With that background, we can turn to the two grounds of appeal in the amended perfected grounds of appeal that can be dealt with together. These are that:

"The judge erred in law by failing to direct the Jury properly or at all in relation to the burden and standard of proof, after receiving a written question after the Jury had retired."

(That is a reference to pages 21 and 22 that I have just read.)

"In particular, the phrasing of the question which specifically mentioned, 'sexual intercourse' (and not rape or guilty as charged) made it incumbent on the Trial Judge to repeat his earlier direction in relation to both sexual intercourse and lack of consent and knowledge or recklessness on the part of the Applicant. The Trial Judge wrongly confined himself simply to explaining the meaning of beyond reasonable doubt."

The second ground:

" Notwithstanding the Applicant's denial of sexual intercourse, the Learned Trial Judge should have directed the Jury in the terms that there may have been consensual sexual intercourse and further directed the Jury in the terms of Section 118(4) Crimes Ordinance Cap. 200."

11. Mr. Delaney submitted that, in the result, the conviction was unsafe and unsatisfactory.

12. Dealing with the question from the jury, Mr Delaney submitted that, because the example in the jury's question related to sexual intercourse, which was only one of the fundamental ingredients the prosecution had to establish in order to prove rape, the judge should have gone on to remind the jury of all the other ingredients. It is right to say that the judge, in the course of his summing up, had directed the jury as to all of the ingredients which needed to be proved for the prosecution to establish rape. We do not agree that the judge needed to remind the jury of the ingredients yet again. The question was clearly directed at the jury's approach to the burden and standard of proof, and the response the judge gave to them was accurate and to the point.

13. As to the second matter raised by Mr Delaney, he submitted that the direction in the terms set out in section 118(4) of the Crimes Ordinance should have been given to the jury. This provides:

"(4) It is hereby declared that if at a trial for a rape offence the jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed."

14. Mr. Delaney pointed to the absence of any evidence to support the struggle which the victim had alleged took place before she submitted to sexual intercourse. He argued that if intercourse had taken place, there was every likelihood that it was by consent. He submitted that the Applicant was in the same position as the Appellant in R v Bashir 77 Crim App R 59, where the court in that case held, when considering the omission by the trial judge to direct the jury on the issue of reckless consent, where consent was the only issue to be decided:

"There can be, and there is, no doubt firstly that a defence can be said to be raised whenever there is evidence, no matter from what source, of a kind which calls upon a judge to conclude that this defence should be left to the jury ...."

15. Mr. Saw SC, on behalf of the Respondent, rightly pointed out in this case that there was no such evidence before the jury, and that to introduce this aspect would have been to have invited the jury to consider a verdict upon a basis which was contrary to both that of the prosecution and the defence and, even worse perhaps, to do so without reference to any evidence that had been put before the jury. Plainly this was not an issue that had ever been raised in the trial. The Applicant never suggested that he believed the victim was consenting to sexual intercourse, and the presence or absence of reasonable grounds for such a belief were therefore obviously never raised by the Applicant in his evidence, and there is no foundation, looking at any other part of the evidence, to say that this issue was raised. The Applicant had denied that anything of this nature took place at all. The judge had rightly told the jury that they should only decide the case by reference to the evidence adduced before them. He had also said that the jury should not speculate or use guesswork in filling gaps in the evidence. The summing up as a whole had been properly tailored to the circumstances of the case.

16. Accordingly, the application relating to conviction is dismissed.

17. Turning next to sentence, the judge said when he passed sentence:

"My first task is to consider the appropriate starting point. There is no guideline. There are simply too many variations in the circumstances giving rise to the commission of the crime.

Those circumstances present in your case reveal that the victim was not tricked into coming into your home. She came of her own free will. It was not a planned visit, at least not by you. There was no premeditation; no entrapment. There was no other assailant involved. There was no force beyond that required to enable you to achieve gratification. Other than the rape itself, there were no further indignities or perversions performed. There was no apparent physical injury suffered. Your victim was made to bathe before she was allowed to go, but otherwise she was not held against her will after the event. These are all factors, the absence of which weigh against enhanced punishment.

But what is a materially aggravating feature and to which I am duty-bound to pay heed is that the victim at the time of the offence was still short of her 15th birthday, and thus still a child. Whatever her own chequered background, that is a matter for material enhancement.

All in all, I believe the appropriate starting point is seven years' imprisonment, and I adopt that as my starting point.

I know much of your background revealed through the course of the trial. You lived then, and still do, at home with your mother. You are in a long-term stable relationship with a young lady whom you regard as your wife. You have a previous conviction, that being for an offence committed some six years ago. Your personal circumstances are, or have, of recent years, been stable.

But rape is a crime of violence and those who commit it can expect little or no credit, even if their backgrounds are stable and their characters, at least for recent years, have been good. To the extent I believe possible and appropriate, I give you credit for your's to the extent of a reduction of six months. Otherwise, there is nothing before me to warrant a further reduction from the starting point that I originally adopted.

The defendant is sentenced to prison for six years six months."

18. Mr. Delaney argued that the sentence was manifestly excessive and that the judge erred in principle in taking a seven-year starting point without stating what starting point would have been taken without reference to aggravating features, and also in failing to give a sufficient discount having regard to the mitigating factors put before the judge.

19. There is no substance in our judgment in either of these submissions. The judge's starting point for a rape on a victim of this age was entirely proper having regard to all the circumstances. It is perfectly true that one of those circumstances was undoubtedly and, on any view, that the victim was sexually experienced and somewhat wayward, but the Applicant took full advantage of her. No doubt she had been somewhat na飗e in going up on her own to the Applicant's flat when she did not know him very well but, as Mr Saw has pointed out, in R v Billam (1986) 82 Crim App R at 347, the court in that case said:

"The fact that the victim may have exposed herself to danger by acting imprudently is not a mitigating factor."

20. The Applicant was fortunate to have received any discount on account of the mitigation which had been advanced. He did not have a good character and in any event, even if he had, it would have counted for very little. He had been convicted, having strongly contested the allegation, and he had shown no remorse whatever.

21. This application is dismissed.