HKSAR v TSE HOI-PAN, DOMINIC

HCCC18/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 18 OF 2006

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COURT:  The accused faces a single count of rape, contrary to section 118(1), Crimes Ordinance, Cap. 200.  

1. At the conclusion of the evidence of the complainant and in the absence of both the jury and the complainant, Mr Eric Kwok, SC, with him, Miss Cancy Liu, on behalf of the 21 year old accused, has applied to cross-examine the complainant, who was 24 at the material time, on her previous sexual history, pursuant to section 154, Crimes Ordinance, Cap. 200.  That section was introduced to Hong Kong by legislation in 1978, and is identical to section 2 of the Sexual Offences (Amendment) Act, 1976, [UK].  

Section 154, Crimes Ordinance

2. Section 154 applies to a “rape offence” which is expansively defined in section 117(1), Crimes Ordinance, and also to the offence of indecent assault.  By Section 155, Crimes Ordinance, the general effect of section 154 applies in the Magistrates’ Court and District Court too.  Section 154(1) states that:  

“...except with the leave of the judge no evidence and no question in cross-examination shall be addressed or asked at the trial by or on behalf of any defendant at the trial about any sexual experience of the complainant with a person other than the defendant.”

3. By section 154(2):  

“...the judge shall give leave if and only if he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked.”

4. In R v Lee Wing On [1994] 1 HKC, 257(CA), one of the twelve cases cited in argument by Mr Kwok, the Court of Appeal held that a judge does not exercise a discretion under section 154(2) but rather makes an evaluative judgment as to whether the restrictive terms of that sub-section have been satisfied or not.  

The Philosophy of Section 154  

5. That judgment is to be made, as Cooke P said in R v McClintock [1986] 2 NZLR 99, at page 103, in relation to analogous legislation: “...with full sensitivity to the philosophy of the statute.”  

6. The philosophy of section 154 is self-evident.  At common law the prior sexual history of a complainant was admissible in relation to two issues.  It was then considered that a lack of chastity was relevant to the material issue of consent and also to the collateral issue of credibility.  In other words, the purported rationale of the common law approach was that women who had consensual sex outside of marriage were thought, essentially, to have a dual propensity to consent to sexual relations indiscriminately and to also be devoid of veracity.  

7. Under that approach the moral character of the complainant was explored by minutely examining her sexual history in cross-examination.  The entrenchment of the stereotype and myth that consensual sexual indulgence outside marriage was necessarily and logically probative as prospectant evidence of whether consent had or had not existed on the occasion of the alleged rape, has by now been completely discredited. Thus section 154 exists.  

8. The common law approach permitted valueless, diversionary and prejudicial cross-examination that was potentially humiliating and hurtful without a basis in relevance.  Women in Hong Kong society have an assured autonomy, that is their personal freedom in what they do or not do.  They have the undoubted right of independence of mind and of decision-making.   

Right to a Fair Trial  

9. While the right of the complainant not to be vexed by such cross-examination is clear, as a generality, it is equally established that the right of the accused to a fair trial, as guaranteed by Article 87 of the Basic Law is non-negotiable.  As Lord Steyn said in R v A (No. 2) [2002] 1 AC, 45, at 65E:  

“The only balancing permitted is in respect of what the concept of a fair trial entails.  Here account may be taken of the familiar triangulation of interests of the accused, the victim and society.  In this context proportionality has a role to play.”

The Task

10. If the complainant’s attitude to sexual relations could be material upon which a jury could reasonably rely to conclude that the complainant might indeed have consented to sexual intercourse on the material occasion, then it would be unfair to the accused to exclude it, R v Brown (Uriah) [1989] 89 Cr. App. R. 97.   

11. This is another way of identifying the approach commended in R v Lee Wing On [1994] 1 HKC 257 at 261, namely, that cross-examination should be permitted where the proposed line of questioning was, “...relevant and was of sufficient importance that it might reasonably lead the jury to take a different view of the complainant’s evidence.”  And that too is only another way of outlining the task as described by Lord Steyn in R v A at page 69, that after:  

 “...due regard always being paid to the importance of seeking to protect the complainant from indignity and from humiliating questions, the test of admissibility is whether the evidence and questioning in relation to it is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial.”

12. In my judgment the tests in Brown (Uriah), Lee Wing On and A (No. 2), are essentially indistinguishable in their approach.    

Complainant and Accused Previously Unknown to Each Other  

13. In this scenario, acts of sexual intercourse with a man or men may be so closely connected with the alleged rape, either in time or place, or by other sufficient similarity in features or circumstances, that evidence of those other acts may be probative of the fact that the complainant consented to the alleged intercourse with the accused, or of the fact that the accused believed that the witness was consenting: R v Viola [1982] 1 WLR 1138, at 1143D, Gregory v The Queen (1983) 151 CLR 566 at 571, and R v McClintock [1986] 2 NZLR 99, at page 104.  A sexual encounter relied on can also have occurred after the alleged rape, R v Redguard [1991] Crim. LR 213.   

Defence Case at Trial  

14. In the present case, Mr Kwok has stated that the defence of the accused is that although intended by the accused, no penetration ever actually occurred, because of a temporary biomechanical failure on the part of the accused.  There had been, however, as a prelude to that non-performance significant consensual foreplay, including mutual oral sex between the complainant and the accused.  

15. Mr Kwok says in terms: “She fabricated the rape.”  He draws attention to the material he is able to deploy as a basis for cross-examination in order to establish the unfairness referred to in section 154 (2).  On any application under that sub-section, defence counsel must have reasonable grounds, a foundation based on material that need not itself be admissible: R v Howells [1996] 2 Cr. App. R. 490 at 498.  

16. In her deposition the complainant has stated that prior to the alleged rape she had two to three years of sexual experience.  The medical evidence appears to reveal that the complainant has a recent tear in the posterior fourchette of her vagina, consistent with penile entry trauma at the time of the alleged offence.  Mr Kwok, SC, says as there was no penetration by the accused the jury will ask themselves who (else) could have done that?  So he needs to establish that the complainant had had sexual intercourse with another person at some time prior to the time in the indictment.  

17. He also relies upon the fact that although the complainant twice said in her deposition that she believed that the accused had ejaculated within her, forensic medical examination taken on the same morning revealed the presence of no sperm.  The two extracts from the complainant’s deposition are that after the alleged rape:  

“I once went out of the toilet, without wiping my private parts and asked the accused, ‘Did you ejaculate earlier’, the accused answered, ‘Yes, a little bit’.”

18. And the second extract is:  

“He did not put on his clothes.  I then went to the toilet and had a pee and I found liquid oozing out, I felt that it was semen.  Having finished using the toilet I went out.” 

19. Mr Kwok wishes to cross-examine as to (on the accused’s case) the complainant’s mistake as to whether penetration had occurred and as to her suggested error in believing ejaculation had taken place.   

20. Miss Winsome Chan for the prosecution has in opposition to the application emphasised that the decision in Viola would generally prohibit any correlation between prior sexual experience and the complainant’s repeated statements that penetration had occurred by the accused.  Miss Chan made the same point in relation to the complainant’s belief that what had been emitted from her vagina was semen.  

Relevance

21. It is to be remembered that relevance cannot be decided in a vacuum, but is context-specific as it involves so often an issue of degree.  It cannot, particularly under section 154 of the Crimes Ordinance, be a matter of a hard and fast rule.  In the present case there is no dispute as to identity.  The complainant has given significant evidence that she had drunk three to four cans of beer at the karaoke in the company of the accused in advance of the alleged activities at the rent-by-an-hour hotel where the rape is said to have occurred.  

22. She has said that she felt distinctly different indeed on this occasion after drinking than “on ordinary occasions”.  She gave evidence that evening of having been completely disassociated from her environment, able to hear sounds, but unable to know where she was.  She said she was, “very muddle headed”; almost disembodied.   

23. After the alleged rape, she went to the reception area of the hotel completely naked from the waist down and asked the receptionist where she was.  Upon being told by the woman behind the counter, she called her friend and said, “I have been raped, I want to call the police.  I was unable to breathe, I was very scared.”  The friend arrived very shortly thereafter followed by police officers.  

Decision

24. Against this context and applying the approach set out earlier, I am quite unable to conclude that it would be unfair to the accused, if he could not generally cross-examine the complainant on her prior sexual history.  There is no basis for any open-ended, intrusive, roving commission into the complainant’s two to three years of asserted sexual experience.  That would only eviscerate the clear protective principles behind section 154.  

25. However, the defence case includes the absence of any penetration.  Penetration is itself a matter of degree.  In law, the least penetration of the vagina by a penis suffices to establish that sexual intercourse has occurred.  The complainant was, on her own evidence, “very confused”, and “very muddle-headed”.  While ejaculation is not an element of the offence of rape, the complainant has in her deposition appeared to conclude from post-penetration observation that some ejaculation had taken place inside her.  

26. I conclude, as a matter of judgment and not discretion, that the accused is entitled to cross-examine to establish whether penetration, an element of the offence, had occurred by reference to the complainant’s understanding of what penetration entails.  In the absence of penetration, the included alternative offence of attempted rape becomes a live possibility.  

27. The issue of ejaculation, although not an element of the offence, is on the complainant’s evidence, concomitant with penetration and is realistically inseparable from the complainant’s understanding and recognition of sexual intercourse. 

28. In the absence of evidence as to whether the complainant had had any other experience of sexual intercourse adjacent to the date of the alleged rape, the torn posterior fourchette of the complainant’s vagina could be unfairly unexplained, from the perspective of the accused.   

29. For all these reasons and circumstances I am permitting limited cross-examination.  Cross-examination will be permitted in relation to the following: (a) a limited question to elicit whether the complainant had ever had sexual intercourse before the alleged rape; (b) if applicable, (depending on the answer to (a)), the single issue, when she had last had sexual intercourse prior to the date of the alleged rape; (c) irrespective of the answers to (a) and (b), why she believed that the accused had (1) penetrated her, (2) ejaculated within her.  

30. In delivering this ruling I have sought to give effect to the principle of proportionality.   

(Proceedings from 10.29 am not required)  

Court adjourns - 10.35 am

15 August 2006