THE QUEEN v. HUI CHUNG MING

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J U D G M E N T

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Penlington, J. A. :

1. At the hearing of this appeal, having considered the arguments for the applicant and the Crown on the one ground argued, we allowed the application, treated the hearing as the hearing of the appeal which was allowed and quashed the convictions. We said we would give reasons later. This we now do.

2. This was an application for leave to appeal against conviction on counts of rape and indecent assault before Barnett J. and a fury on the 31st August, 1988, the applicant being acquitted on a further charge of indecent assault on the same complainant on a day prior to that alleged in the other counts.

3. Mr. Plowman appeared for the applicant, with him Mr. Wong who also was counsel at trial. He submitted four grounds of appeal but at our invitation first argued that which related to the admission of evidence for the Crown of one Yu Ka-on as to a certain conversation he had with the complainant, this being tendered to rebut what was submitted by the Crown to be an allegation in cross-examination by defence counsel of "recent fabrication" in her evidence.

4. In light of the view we have taken of this ground it is not necessary to go into the details of the background evidence called. The complainant had said that the applicant, a fellow worker with a file company, had been harassing her over a period of time and despite her resistance and her telling him that she had a boyfriend of whom she was fond, he continued to press his attentions on her. It was put to her by Mr. Wong that in fact a "boy and girlfriend" relationship existed between them at the relevant times. Mr. Yu was called to support her evidence that she and the applicant did not have such a relationship by testifying to what the complaint had said to him before the events giving rise to the charges - that the applicant was making a nuisance of himself, was pestering her and she wanted him to stop. Objection was taken to that evidence but it was allowed to be given on the basis that Mr. Wong was alleging that the complainant's evidence on this point was a recent fabrication. Mr. Wong had submitted that was not so and he was doing no more that to simply challenge the complainant's evidence on this point.

5. Before us Mr. Plowmen argues that the evidence was clearly hearsay and could only be received to rebut an allegation that the complainant had only recently invented her denial of the relationship in order to rebut the applicant's version. That was not so. All that was suggested to her was that when she said she had not been the applicant's girlfriend at the time of the incidents that was untrue. Mr Plowman relies on Fox v. General Medica1 Council 1960, 1, W.L.R. 1017 where it was held at 1025, per Lord Radcliffe, that such evidence is not admissible if all that is done is to impeach the witnesses evidence. The position has been more recently again considered in R. v. Oyesiku (1972) 56, C.A.R. 240. Mr. Plowman further submits that in any event the statement to be admissible must have been made before the date of the charges, the earliest of which being on "a date unknown" in December 1987. Mr. Yu was however did not give any date or even an indication of when his conversation with the complainant took place and there is nothing in the evidence from which it could otherwise have been inferred.

6. Mr Cross for the Crown submitted that it was implicit that the evidence given by the complainant was recently thought up, and that she had earlier been intimate with the applicant but for some reason had now changed her attitude and denied that what had taken place had been with her consent. However he also placed stress on the fact that despite Mr. Yu's evidence the jury acquitted the applicant on one change and that the evidence complained of was not important part of the Crown's case. The trial judge had fully pointed out to the jury the very obvious weaknesses in the complainant's evidence and the reasons why they should look at it with considerable caution.

7. We are satisfied that the complainant's evidence had not been challenged on the basis that it was a recent invention and that Mr. Yu's evidence of the conversation with the complainant was inadmissible. The law as it stands on the question of evidence of prior consistent statements may be artificial but the principles are now well established. Here all that was done was to challenge the complainant's evidence as to her relationship with the complainant at the time the offences were alleged, not that her evidence as to that relationship was something she had only recently invented.

8. The finding that we have come to would probably not in itself had been such as to require that we allow the application and quash the convictions. We agree with Mr. Cross that the evidence was not of crucial value to the Crown. To uphold the convictions it would however be necessary for us to apply the proviso to Section 83 of the Criminal Procedure Ordinance on the basis that no injustice has been done and that even without Mr. Yu's evidence the jury must still have convicted the complicant. In the light of the other evidence before the jury, a great deal of which was of seemingly inexplicable and contradictory conduct on the part of the complainant and in view of the acquittal of the applicant on one closely related count where the jury apparently did not accept the complainant's evidence, we do not consider that the jury must inevitably have reached the verdicts they did without Mr. Yu's evidence. We do not therefore consider we should here apply the proviso.