HKSAR v. KONG CHI WING

CACC 195/2017

[2018] HKCA 415

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 195 OF 2017

(ON APPEAL FROM HCCC NO 97 OF 2016)

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J U D G M E N T

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1.  The applicant faced an Indictment containing one count of attempted rape, contrary to sections 118(1) and 159G of the Crimes Ordinance, Cap 200 (Count 1); and one count of indecent assault as an alternative to Count 1, contrary to section 122(1) of the same Ordinance (Count 2). The applicant pleaded not guilty to the offences. On 20 June 2017, after a trial in the High Court before Deputy Judge Saw (the judge) and a jury, the applicant was unanimously convicted on Count 1. He was sentenced to 4 years’ imprisonment on the same day.

2.  The applicant filed his Notice of application for leave to appeal against conviction and sentence (Form XI) on 30 June 2017, but subsequently abandoned his appeal against sentence on 29 March 2018.  He pursues this application in respect of conviction only.

The trial

The prosecution case

3.  There was no dispute that the applicant was arrested by police officers on 17 May 2015 at a bar in Tsim Sha Tsui, Kowloon.

4.  It was the prosecution case that on 16 May 2015, the applicant had sexually assaulted his newly employed personal assistant, Ms X.  It was alleged that, after becoming severely intoxicated following a drinking session with the applicant, Ms X was brought to a hotel room, where she was sexually assaulted by the applicant.

5.  In the early hours of 16 May 2015, Ms X, the applicant and two other colleagues of the applicant (PW2 and PW3) had gone to a bar in Causeway Bay, Hong Kong.  The four of them played dice and darts together and sang karaoke.  Ms X denied the suggestion made in cross-examination that she might have indicated her interest in the applicant.  She maintained that the only reason she was at the bar was because the applicant was her boss.  The party stayed at the bar until shortly before 6 am.  During that time, Ms X became very drunk and slept for lengthy periods of time before being carried away by one of the applicant’s colleagues when the four left the bar; all of which was captured by CCTV.

6.  It was an admitted fact that the group of four then went to the Four Seasons Hotel in Central, Hong Kong by taxi.  Ms X testified that whilst she was in the taxi, she did not know where she was going nor did she know where she was when she arrived.  She was similarly carried into the Four Seasons Hotel.  Ms X was then placed in a wheelchair and remembered vomiting.  However, she could not remember being taken to a room on the 21^st floor, or being placed on the bed.

7.  Ms X testified that she woke up at about 8 am. She saw a man lying next to her on the bed and she became frightened.  She got out of bed and sat on the floor at the foot of the bed.  She said she could not locate her clothes and was very scared.  She felt dizzy and her limbs were tired. Having sent a text message to a friend and sought help, Ms X then lost consciousness again.  She woke up later that morning to find herself in bed with someone kissing her.  This person also grabbed hold of her breast.  When she turned away, she was pulled back.  A struggle ensued but the person continued to kiss her.  She subsequently realised that this person was the applicant, who was naked.  Ms X testified that the applicant then separated her legs and kissed her private parts.  At one point, the applicant removed Ms X’s underwear without her consent and when she began to cry loudly, the applicant placed his hand over her mouth to stop her crying.

8.  It was the prosecution’s case that the applicant intended to have sexual intercourse with Ms X.  She said that she thought the applicant was going to insert his penis into her private parts because he got close to her with his penis when he forcibly took off her underwear.  Ms X said the applicant would not allow her to resist and was on top of her body and between her legs.

9.  Eventually, Ms X was able to retrieve her clothes, which she found on the sofa, and go to the bathroom.  Thereafter, she left the hotel and only then did she become aware that she had been in the Four Seasons Hotel.  She boarded a taxi and called her ex‑boyfriend, PW8, who then called her back.  She told PW8 that her boss had wanted to rape her.  PW8 therefore advised Ms X to report the matter to the police.  Ms X eventually told the taxi driver to take her to the Tin Shui Wai Police Station, where she made a formal complaint to the police.  Later that day, Ms X was examined by a doctor and various samples and swabs were taken.

10.  Upon analysis of the samples and swabs, no blood or semen was detected.  However, DNA obtained of a saliva stain from a swab of Ms X’s breasts indicated that it could have originated from the applicant; further, DNA found on the right hand fingernail scrapings taken from the applicant could have originated from Ms X.

The defence case

11.  The applicant did not testify at trial.  The defence case was a complete denial of the prosecution allegation.  The defence suggested that Ms X, in a drunken frenzy, had taken her clothes off and initiated sexual advances on the applicant in the hotel room.  It was also suggested that Ms X had fabricated events, when she was in fact unable to recall what happened because of her state of intoxication at the time. Accordingly, the case depended on the credibility of Ms X.

12.  In her closing submissions, defence counsel drew to the jury’s attention that, according to the CCTV images, Ms X had been actively and happily playing with PW2, leaning on the applicant’s and PW2’s shoulders and thighs, and even hugging PW2 so that her breast was pressed against his face, none of which actions could either she or PW2 remember.  This was said to be due to the “broken frames” syndrome where certain memories were effectively blanked out by drunkenness.  Notwithstanding this deficiency, defence counsel said that Ms X was apparently able to be very adamant about what had happened at the hotel.

13.  Defence counsel focussed on the suggested unreasonableness of Ms X’s evidence and the discrepancies in her account.  She put the defence on the basis that certain events did not happen but that it was Ms X who initiated the sexual advances.

Summing up

14.  Having briefly outlined the cases for both prosecution and defence and the usual directions as to how to approach evidence, the judge then directed the jury on the question of inconsistencies in statements[1]:

“In examining this and other suggested inconsistencies you (will) wish to decide first whether there is in fact in true context an inconsistency, and if you decide there is one you will wish to decide whether it is material and relevant or insignificant or irrelevant. If there is an inconsistency it might lead you to conclude that the witness is generally not to be relied upon. Alternatively, you might conclude that only a part of the witness’ evidence is inaccurate; or you might accept the reason that was advanced by the witness for that inconsistency and consider the witness to be otherwise a reliable witness.

In this case, the possible inconsistency that I have alerted you to in respect of the statement made by Ms X you may wish to consider, in all the circumstances, whether she was on the left-hand side or the right hand-side of the bed is perhaps not the more material issue.  The real material issue is whether, when she awoke and became aware of the presence of the accused she turned towards him or she turned away from him.”

15.  He then directed the jury on how to approach an indictment containing an alternative count[2]:

“This now brings me conveniently to the issue of the fact that these are alternative offences. Counts 1 and 2 on the indictment are alternatives and you will see right at the outset that they are said to be that. You will see it is written there. You cannot find the accused guilty of both. First, members of the jury, you will consider and I instruct you to do this, Count 1, which is the more serious of the two charges. It involves an allegation that he attempted to rape Ms X. If you find the accused guilty on that count you do not then consider Count 2 at all.

If you are not sure that the accused is guilty on Count 1 then you will find him not guilty of that count and go on to consider Count 2 in which he is alleged to have indecently assaulted Ms X. If, however, and this is very important, you have found him not guilty of Count 1 because you could not be satisfied so as to be sure that Ms X was telling the truth about that which took place in Room 2111 in the Four Seasons Hotel, then of course you would, in all probability also acquit him of the alternative charge of indecent assault.

Insofar as recent complaint, which is what I have referred to you earlier, it is equally relevant to a charge of indecent assault as it is to attempted rape, and similarly a defence of consent, which I will come to shortly, is equally relevant to a charge of indecent assault as it is to rape.”

16.  Before going through the evidence of the witnesses, the judge specifically reminded the jury of the defence’s closing submissions in respect of the weaknesses in Ms X’s evidence[3]:

“Ms Tung, for her part, has taken you through a very large number of what she suggests are major discrepancies in the evidence of Ms X which are such that could or should cause you to doubt her evidence in its entirety. You have heard both of those submissions and I do not intend to go over them again. I will now deal, as I have indicated earlier, with a summary only of the evidence and the parts of the evidence which I believe might assist you. That simply does not mean that you ignore or in any way disregard what counsel has told you because clearly and obviously you must take that on board in exactly the same way.”

17.  Having summarised the various witnesses’ testimony, in particular, Ms X’s account in cross-examination, the judge gave an example, by reference to PW8’s evidence, as to how they might approach discrepancies in the evidence[4]:

“He did, however, give evidence which was in conflict with the evidence of Ms X because his account of what she said over the telephone was that she was raped. He said that she had got drunk the night before and her boss and colleague had taken her to a hotel and her boss was interfering with her. And we know what he told her to do.

Now, again, this is a clear discrepancy between the evidence of Ms X and the evidence of Mr Leung.  Is it a discrepancy which causes you to have reservations about Ms X?  Is it evidence which causes you to doubt her evidence, or is it possibly that one or other of them are mistaken as to that telephone conversation.  Those are matters you will bear in mind, members of the jury.  In particular bear them in mind in the light of my earlier observations to you about how you deal with discrepancies.”

Grounds of appeal

18.  In his home-made grounds of appeal attached to his initial Form XI, the applicant has set out a list of points of argument relating solely to the reliability and credibility of Ms X’s evidence.

19.  The applicant suggested that there were inconsistencies between Ms X’s oral testimony and the relevant CCTV footage in relation to the following matters:

(a)  Ms X denied any bodily contact between her and the applicant at the bar, yet she put her head on his shoulder and slept on his lap;

(b)  Ms X denied any bodily contact between her and PW2 at the bar, yet she leaned her head towards PW2’s shoulder, and helped him to put on a white T‑shirt;

(c)  Ms X denied crying and screaming loudly at some time after 7 am.

20.  Other challenges to were made in relation to Ms X’s reliability and credibility:

(a)  Ms X was able to walk in a straight line to the toilet of the bar;

(b)  Ms X’s life was not threatened when she sent a Whatsapp to her friend;

(c)  Ms X only asked for help from one outside person instead of several more;

(d)  Ms X might have asked for help from somebody else without telling others;

(e)  Ms X did not call 999 at the hotel room;

(f)  Ms X did not use the telephone next to the bed in the hotel room;

(g)  There was no crying sound or complaint after the hotel staff pressed the doorbell and stood outside the door for 30 minutes;

(h)  Ms X did not ask for help from the hotel staff in the corridor;

(i)  Ms X was walking naturally and not at a hurried pace when leaving the hotel room;

(j)  Ms X did not ask for help from anyone in the hotel lobby;

(k)  Ms X called her ex‑boyfriend instead of her current boyfriend;

(l)  It was strange that the ex‑boyfriend did not know that the number of the incoming call belonged to Ms X;

(m)  Ms X was not on board the taxi when she called her ex‑boyfriend;

(n)  Ms X said in her witness statement that she had sexual intercourse with her current boyfriend on 13 May 2015, but told the forensic pathologist that she had not had sexual intercourse; and

(o)   Ms X did not testify in court that after the applicant was arrested, she had messaged himthat “I quit.  (I am going to) collect my previous salary.”

To these matters, the applicant added that no tests were performed on hairs taken from the bathroom so as to establish whether or not Ms X had been to the bathroom.

The respondent’s reply to the grounds of appeal

21.  Mr Franco Kuan, on behalf of the respondent, submitted that all of the applicant’s complaints can be characterised as attacks on the reliability and credibility of Ms X.  Yet these were canvassed at length in both counsel’s closing addresses.  The judge had also dealt with the issues in dispute fairly and comprehensively in what was a very full and balanced summing‑up.  These factual matters were matters for the jury.

22.  Other parts of the applicant’s grounds of appeal contained his own assertions as to what had happened.  However, he did not give evidence and cannot through the appeal process advance a version of events which he might have given at trial, when he could have been properly cross-examined.

23.  The respondent submitted that there was in fact ample evidence upon which the jury could properly convict.  The matter of credibility and reliability of Ms X was distinctly a matter for the jury and the weight to be attached to her evidence was also entirely a matter for them to decide.  In the circumstances, Mr Kuan argued that there was no substance to any of the applicant’s complaints and the present application for leave to appeal against conviction was wholly unmeritorious.

Consideration

24.  Since the applicant chose not to give evidence at the trial, it is not open to him now to advance a positive version of events, which he could have done had he chosen to conduct his defence differently.  Furthermore, all of the evidential comments he has made are the sort of points that would have been, and were, before the jury for their consideration.  Inevitably, some of the points are better than others. However, it is the jury, not the appeal court, who should evaluate them. Indeed, this was a classic jury case which relied essentially upon the credibility of the complainant, Ms X, although there was other evidence to be considered as well.  The jury would have been in the best position to determine whether they could rely on Ms X’s evidence to the required standard, having heard her testimony and borne in mind all the criticisms that were made of her account.

25.  I have also examined the legal directions given by the judge to the jury.  I can see no error of law in those directions and, interestingly, the applicant makes no complaint at all about the tone or content of the judge’s summing‑up.  That may be because the summing‑up as a whole was very full and entirely fair to the applicant.  Nor has the judge made any significant error in his recital of the evidence.  In the circumstances, I find no reasonably arguable grounds for appeal against conviction and leave to appeal is refused.

26.  The applicant is duly advised that he has the right to renew his application for leave to appeal against conviction to the Court of Appeal, but he is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody, if the Court of Appeal were to come to the conclusion that there was no justification for renewing his application.