CACC 371/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 371 OF 2007

(ON APPEAL FROM HCCC NO. 138 of 2007)

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J U D G M E N T

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Stuart-Moore, Ag CJHC (giving the judgment of the Court):

1.  On 17 October 2007, Lam Tin-ching (the applicant) was convicted of rape after trial before Deputy High Court Judge D Pang and a jury.  He was sentenced on the same day to 5 years’ imprisonment.  The applicant had earlier pleaded guilty to the 2^nd count on the indictment which related to the possession of a small quantity of herbal cannabis.  On this count, the applicant was fined $2,000.

2.  The applicant now seeks leave to appeal against conviction on the 1^st count of rape.  The offence was alleged to have taken place on 6 November 2006 at the ground floor premises in Tsung Pak Long Village, Sheung Shui, where the applicant was then living.

3.  Mr John Reading SC, for the respondent, has set out a brief synopsis of the case for the prosecution which, to some extent, we propose to utilise.

Case for the prosecution

4.  In September 2006, the complainant was employed in Sheung Shui next to a hairstylist’s shop where the applicant worked.  The staff of both premises shared toilet facilities and would sometimes meet in that vicinity to smoke cigarettes and to chat.

5.  The complainant and the applicant shared an interest in dogs.  The applicant kept pugs and he had apparently agreed to give the complainant a puppy.  Two or three weeks prior to 6November 2006, the applicant invited the complainant to his home to see his dogs and, as she thought, to give her a puppy.  However, when she was at the applicant’s home he told her that he needed to have the puppies inoculated before he could give her one of them.  Nothing of note occurred during this visit of about fifteen minutes although at one stage the applicant touched the complainant on the waist.  The complainant said that she gave no thought to this at that time.

6.  By 6 November 2006, the complainant had left her earlier employment and was not working. She did not recall having provided the applicant with her telephone number but she had given it to one of his colleagues, Lam Hiu-fung (‘Ah Fung’), who later gave evidence for the defence.  In any event, the complainant received a telephone call from the applicant at about 7 pm on 6 November 2006.  He invited her to come to his address to collect the puppy which she was under the impression the applicant proposed giving to her.  She then informed her boyfriend about where she was going and she arrived at the applicant’s residence at about 10 pm.

7.  The applicant met the complainant outside his address and informed her that as another friend of his also wanted the puppy, he was unable to decide who should have it.  Just as the complainant was about to leave, the applicant took hold of her arm and asked her to watch a video or DVD with him.  As she thought this would give her the opportunity to play with the puppies, she agreed. 

8.  While the complainant was sitting on the sofa, the applicant offered her some cannabis to smoke.  She was aware that he smoked cannabis because he had told her so on another occasion but, as she only smoked tobacco, she declined his offer by brushing his hand away. However, he persisted and “forced” the cigarette between her lips and told her to “consume it”.  She took some puffs and inhaled the smoke a few times.

9.  The applicant then put his arm around her waist.  She said “no” but was unable to get up.  The complainant described how she felt weak and limp from the effect of the cannabis but she said that the effect on the applicant was that he had “much impulse to interfere” with her. 

10.  The complainant was wearing a sleeveless top and an open jacket at the time of her visit and she said that the applicant reached inside her top and squeezed her breast.  He told her that he liked her very much and that she had a good figure and a very seductive body.  The complainant said that she told him to behave himself because he had a girlfriend but he persisted and used his other hand to undo her bra.  He also tried to kiss the complainant on the lips but she turned her head away and he then kissed her on the breasts.  In this regard, although her bra was unhooked, her upper garments were not removed but swabs taken later from the complainant’s nipples revealed the presence of the applicant’s DNA.

11.  Whilst sitting on top of the complainant, the applicant undid her jeans and removed them from one leg.  The applicant then sat on her thighs and put his finger into her vagina.  He removed his own jeans and underpants and then the complainant’s underpants were removed from one leg.  He tried to penetrate her but she was allegedly struggling so much that he was not able to do so at that time.  Then, the complainant asked the applicant to put on a condom thinking that, if he did so, he would have to get off her.  However, he merely reached somewhere behind her on the sofa and put on a condom.  The complainant said that she continued to struggle, but to no avail.  The applicant then allegedly raped her.  The whole incident, according to the complainant, lasted about fifteen minutes.

12.  Afterwards, the applicant sat beside the complainant and asked her if she hated him.  She replied that she did because of what he had just done.  She then got up and went to the bathroom where she tidied herself up.  While there, she could hear the applicant saying something like:

“I am doomed, I am doomed.  I am in trouble.”

She left soon afterwards by taxi and, when she last saw the applicant, he was holding a plastic bag.

13.  After the complainant had begun her journey in the taxi, the applicant called her mobile telephone.  This call is recorded as having occurred at 10.51 pm and as lasting 4 minutes 36 seconds (the ‘4½ minute call’).  The complainant said that she had no knowledge of this call.  We shall return to the evidence on this aspect of the case in due course.  Two later calls from the applicant at 23:12:03 and 00:26:15 hours on 6 and 7 November 2006, respectively, went unanswered by the complainant.

14.  The complainant telephoned her friend, Mabel (PW2), from the taxi after the 4½ minute call from the applicant.  She briefly described to her what had occurred.  After that, she telephoned her boyfriend (PW3) and told him what had happened.  He encouraged her to report the matter to the police and she then did so.  These two witnesses were called to give evidence of ‘recent complaint’.

15.  The complainant also received three text messages from the applicant in the course of her journey.  These were set out in the admitted facts as follows:

“In fact, I really have a very guilty conscience! Sorry”

[Original in Chinese：其實我真係好內疚！對唔住…]

Then, fifteen minutes later:

“Have you got into any trouble or (you) just don’t want me to contact you again?”

[Original in Chinese：你係出咗事定係唔想我再搵你？]

Lastly, thirteen minutes later:

“Whatever you want.  Do give me an answer”

[Original in Chinese：你想點都比個答案我？]

16.  After reporting the incident to the police, the applicant was examined by Dr Tsang, a forensic pathologist, who also took samples for scientific examination.  Dr Tsang found several minor injuries on the complainant’s body of which it was possible that three could have occurred during the alleged rape.  These consisted of two small bruises and a minor abrasion on her limbs but Dr Tsang accepted that these injuries could equally have been “innocently occasioned in day to day living … [or] … as a result of good healthy, robust sexual encounters.”

17.  Traces of cannabis were found in the complainant’s urine sample but not in the blood sample she provided.  Dr Tsang explained that this could either have been because the intake of cannabis was low or because of the length of time which had elapsed after it had been consumed. 

18.  The applicant was interviewed at length by the police.  As his answers were relied on by the applicant at trial, it is more appropriate to deal with this evidence as part of the defence.

Defence case

19.  The defence case was that the complainant had consented to sexual intercourse on 6 November 2006 and had willingly smoked cannabis with the applicant beforehand.  Furthermore, it was suggested that on her previous visit to the applicant’s home, the smoking of cannabis had again been followed by consensual sexual intercourse.

20.  The applicant did not give evidence.  Instead, he relied on the various statements he had made to the police.  To the arresting officer, he said that he had made love to the complainant with her consent and, without prompting, he told the officer where he would be able to find the plastic bag containing the condom he had used.  In later interviews with the police, the applicant consistently maintained that the complainant had consented to sexual intercourse.

21.  There were two particular aspects of the prosecution’s case which were dealt with by the defence which we should mention at this stage.  First, in regard to the text message sent by the applicant to the complainant in which he made reference to having “a very guilty conscience”, the applicant told the police that he had called the complainant and chatted (during the 4½ minute call) with her but when she did not call him back or answer his later calls, he then wrote her a number of messages.  This particular message, he said “was rendered … for the matter of my girlfriend.  So I said sorry”.  Later, the applicant read out the message he had sent in these terms: “In fact, I really feel compunction, sorry”.  He continued: “Because she mentioned about my girlfriend before getting in the car, yet I did not give her a reply.  So, after that, she did not answer my call so I rendered that”.  He then agreed with the police officer’s enquiry that the matter concerning his conscience related to his own girlfriend (not to the complainant) and he had said that he was sorry because the complainant had been angry with him.

22.  The second important defence point with which we need to deal at this stage was closely connected to the applicant’s account to the police about the reason for sending his first text message to the complainant.  It was suggested by Mr Callaghan, the applicant’s trial counsel, that it was because the applicant had been worried that the complainant might inform his girlfriend about what had happened in his flat that he called her and he had told her this in the course of the 4½ minute telephone call.  Mr Callaghan also suggested that the applicant told the complainant that he “wouldn’t give up his girlfriend” and he suggested that the reason the complainant made a false complaint of rape was because the applicant “wouldn’t break up with his girlfriend and [the complainant] wanted him to do just that”.  These suggestions were denied by the complainant who maintained that she had no recollection of the call, insisting that perhaps she had pressed the wrong button on her telephone.  When she was again asked if she had answered this call, she replied that she was not sure if she had punched her telephone by accident because it was in her trouser pocket at the time but she was certain she had not listened to his call.

23.  The defence called the applicant’s work colleague, Ah Fung, to describe how the complainant and others would meet at the back of the hair salon during breaks for a smoke and a chat.  He claimed at one stage of his testimony that, apart from chatting to the complainant, he had gone out with the applicant and the complainant but later, in cross-examination, he retracted this.  He also claimed that he had smoked cannabis with the applicant and the complainant at the back of the shop after other staff members had gone home.  As this witness’s credibility was a factor in regard to the 4^th ground of appeal, we will say more about his evidence in that context.

24.  All in all, whilst the defence placed considerable reliance upon the applicant’s replies to the police in his two interviews, they were also able to point to the lack of any positive evidence to support the complainant’s allegation.  In addition, the complainant had received no significant injury, her clothes were undamaged and there were oddities in the complainant’s account which it was suggested cast a doubt about her credibility.  One such point was the fact that a telephone call lasting over 4½ minutes was recorded as having occurred (in the sense that the telephone line remained open for that length of time) and yet the complainant denied any knowledge of that call.

Grounds of appeal

25.  Nine substantive grounds of appeal were advanced by Mr Graham Harris, albeit some of these were closely connected. 

26.  Mr Reading made the general observation that some of the grounds appeared to cast a doubt on the tactics adopted by experienced counsel who defended the applicant at trial.  This observation was plainly right although we note, in this regard, Mr Reading’s further observation that no direct criticism was made in the appeal grounds themselves about the competence of trial counsel.  Having now heard Mr Harris’ oral submissions on the applicant’s behalf, it is apparent that no criticism whatever is made of trial defence counsel and his concession to that effect was clearly correct.

(1)  Count for possession of drugs left on jury’s indictment for rape

27.  In the 1^st ground, it was submitted that the 2^nd count of the indictment, relating to the possession of a very small quantity of herbal cannabis, was erroneously allowed to remain on the indictment provided to the jury as the effect of this could only have caused prejudice to the applicant’s case. 

28.  Mr Callaghan, who defended at trial, had chosen, very sensibly in our view, to reveal to the jury that the applicant had pleaded guilty to the 2^nd count.  It was a fundamental part of the defence case that the applicant smoked cannabis and this was coupled with the suggestion that the complainant had twice done so at his home.  There was absolutely no dispute that the applicant had been in possession of a very small quantity of cannabis at the time of the alleged rape and that he had pleaded guilty to the possession of what remained of his supply.

(2)  Whether doctor qualified to give expert evidence

29.  The 2^nd ground was a complaint that the judge had erred when permitting ‘expert’ evidence to be led by the prosecution “without proper enquiry as to the expertise and suitable qualifications of the expert”. 

30.  Dr Tsang, to whom this ground referred, gave evidence about her examination of the complainant and of the applicant.  However, in a further statement served at a later stage on the defence, she also dealt with the effects of cannabis.  When prosecuting counsel at trial was in the course of establishing the doctor’s expertise, the judge enquired, so as to shorten this uncontentious aspect of the evidence, whether this was in dispute.  Mr Callaghan had no objection when, after the doctor had dealt with the physical examinations she had conducted and went on to deal with the topic of cannabis, again there was no objection.  In this regard, Dr Tsang testified about how people who have inhaled cannabis “may feel more relaxed and feel pleasant, and also … may be less inhibited and will have impairment”. 

31.  It is hardly surprising that Mr Callaghan chose not to challenge this evidence.  It was, if anything, evidence which gave assistance to the defence.  From the material which would have been in Mr Callaghan’s possession relating to Dr Tsang’s expertise, he was fully entitled to make the concession that she was properly qualified.  To have required the prosecution to prove this in full would have been a complete waste of time when this was not in dispute.

(3), (8) and (9)  Directions as to character

32.  In the 3^rd, 8^th and 9^th grounds of appeal, Mr Harris criticised the judge for the comments he made concerning the character of the applicant and his witness (Ah Fung) whereas, he asserted, the judge made no mention of the criminal record of PW3. 

33.  Plainly, having regard to the applicant’s plea of guilty to the 2^nd count on the indictment, about which the defence were anxious the jury should know, the judge had to make some reference to the applicant’s character.  In fact, the judge did this by giving a ‘good character’ direction qualified only, so as to make the direction a sensible one, by reference to the “uncontested fact that he was a drug-user”. 

34.  So far as Ah Fung was concerned, he had acquired a criminal record in 2001 for triad-related offences.  Ah Fung’s credibility was a matter in issue and unquestionably prosecuting counsel would have cross-examined him about his record if it had not been for Mr Callaghan wisely seizing the initiative by introducing this witness’s record before the prosecutor could do so.  The judge’s only reference to this was to the effect that Ah Fung had two convictions for “triad-membership-related offences when he was sixteen”.

35.  The other witness who had a record was PW3 who, by contrast, had merely spoken to the complainant shortly after the incident and whose credibility was never in doubt.  The defence had, of course, been made aware of his record but, very sensibly, Mr Callaghan had chosen to make no mention of it.  To have done so would have been entirely counter-productive and, in such circumstances, it would have been wholly impermissible for the judge to have done so even assuming that he had been made aware of PW3’s record.

(4)   Cross-examination of defence witness by reference to the applicant’s record of interview

36.  The 4^th ground criticised the judge for permitting prosecuting counsel “to cross-examine the key defence witness upon the terms and content of the applicant’s interview and [the judge] compounded the error by placing some emphasis upon the same in his summing up”. 

37.  The passage in question reads:

          “Finally, you will remember [Ah Fung] being referred to entry 66 of the defendant’s second interview where the defendant said he and [the complainant] had never gone out – perhaps a contradiction to his own evidence. It is for you. In the end, [Ah Fung] said, ‘Well, yes, we had never gone out to eat. We just brought meals back to the shop.’”

Mr Harris had no authority in law for the proposition he raised which, in any event, was plainly wrong.  Despite the fact that Mr Reading had supplied the authority on the point (see: R v Gillespie and Simpson [1967] 51 Cr App R 172), Mr Harris chose to ignore it.  The applicant’s account to the police on the topic of going out with the complainant (which was plainly admissible in evidence) had been at odds with Ah Fung’s account in the witness box.  On any view, there was a stark contradiction between the two accounts and the prosecution was fully entitled to explore it. 

(5)     Reckless rape non-direction

38.  The 5^th ground criticised the judge’s decision not to give the jury a ‘reckless rape’ direction.  The judge’s directions on rape were as follows:

          “The law that makes rape an offence is section 118(1) of the Crimes Ordinance. You have that under the Statement of Offence in Count 1. For a more specific allegation, you refer to the Particulars of Offence. Lam Tin-ching, on the 6th day of November, 2006, at Ground Floor, D21, Tsung Pak Long Village, Sheung Shui, New Territories, in Hong Kong, raped [the complainant].

          Members of the jury, a man commits rape if he has sexual intercourse with a woman who, at the time, does not consent to it, and if, at the time he has sexual intercourse with this woman, he either knows she does not consent to it, or is reckless as to whether she consents to it. Sexual intercourse is penetration by a man’s penis into a woman's vagina. The slightest degree of penetration is enough and it is not necessary to prove ejaculation. Applying the above, you may only convict the defendant if you are sure of each of the following:

(a)   the defendant had sexual intercourse with [the complainant];

(b)   at the time of the sexual intercourse, [the complainant] did not consent to it;

(c)    at the time of the sexual intercourse, either the defendant knew [the complainant] did not consent, or was reckless as to whether she consented to sexual intercourse.

          Rather straight-forward, is it not? In fact, if you think about it, the issues maybe even simpler. First, there is no dispute that sexual intercourse took place. Second, what [the complainant] has described was a period of sustained resistance, both verbal and physical, so there can be no mistake that she was not consenting. In fact, this is so plain that even the defendant accepts it, whose case is, nevertheless, diametrically opposite. Either way, it leaves no room for recklessness to enter into your consideration and the only thing you may want to trouble yourselves over is, was it or was it not a consensual act of intercourse.”

39.  These directions were entirely straightforward.  Mr Harris’ contention that the directions were “unclear and are likely to have led to confusion in the minds of the jury” was wholly unjustified and the suggestion that the judge should have gone further by explaining to the jury how reckless rape might arise was misconceived.  There was no room in the factual scenario presented by the evidence for recklessness on the part of the applicant and, even if there had been, this would merely have provided the prosecution with another avenue by which to convict the applicant.  Mr Harris seemed almost to have regarded recklessness, in this context, as if it provided the applicant with a defence to rape.

(7)   Approach to factual discrepancies

40.  The 7^th ground was set out in the following terms:

“In his summing up to the jury, the learned judge erred in failing to give any proper directions as to material discrepancies in the versions of events contended for by PW1 and PW2”.

Mr Harris indicated in the course of oral argument that he was not pressing this ground although he was also not abandoning it.  His simple point, which in his written submission was widened to include PW3, was that neither PW2 nor PW3 seemed to have taken the complainant’s allegation seriously and that there were indications that her calls to them were not genuine. 

41.  All that we need to say in regard to this complaint is that in view of the fair way in which the ‘recent complaint’ evidence was summarised by the judge, it is hardly surprising that Mr Harris was not pressing this ground of appeal.  In any event, if the conversations the complainant had with PW2 and PW3 contained elements, as Mr Harris suggested, which were “inherently unlikely” and contained a number of discrepancies, the jury had heard this evidence, it had been summarised again in the summing up and the approach to be taken to the discrepancies had been fully covered by the judge when he dealt in his opening remarks with all relevant topics of law.

The ‘shotgun’ approach to appeal grounds

42.  Before we turn to ground 6, we should indicate our dismay at Mr Harris’ conduct in advancing all the earlier grounds with which we have dealt.  According to him, he did so in order to bring about a gradual erosion of confidence about the safety of the conviction.  Yet again, therefore, we have found ourselves confronted by experienced counsel using a ‘shotgun’ approach in appellate proceedings by raising a wide variety of worthless points in the hope that something, either individually or in combination, might stick. 

43.  It should not have to be said to counsel of any experience that one of the dangers of advancing a host of such points is that they may serve to mask a properly arguable point.  A court is entitled to expect discipline in the approach to and in the presentation of grounds of appeal and that its time should not be wasted by obviously unmeritorious argument.  The Practice Direction in regard to criminal appeals is set out in the plainest terms and provides that, when counsel settles grounds of appeal, it is his duty to ensure that:

“(a)    (i)   grounds are only put forward where he has satisfied himself that they are arguable; it is not his duty to put forward grounds merely because the appellant wishes him to do so;

(ii)   grounds are not put forward unless they are ‘reasonable’, that is, they afford some real chance of success;

(iii)   grounds are not put forward unless they are supportable by oral argument and are particularised; and

(iv)   the grounds put forward are settled with care and accuracy.” [Emphasis added.]

44.  As, regrettably, is too often the case in criminal appeals, the presentation of the applicant’s case in these proceedings has ignored the basis upon which grounds of appeal are supposed to be mounted.

45.  Grounds 1 to 5 and 7 to 9 had no substance whatever and should not have been advanced.

(6)   “Dismissive” treatment of a plank in the defence case

46.  Ground 6 contained a complaint about the way in which the judge dealt with the 4½ minute telephone call made by the applicant to the complainant’s mobile telephone before she telephoned her friend, Mabel (PW2), and her boyfriend (PW3).  The judge’s reference to this call was described by Mr Harris as “dismissive” because all that the judge had said about it in the summing up was:

          “Regarding the 4½-minute call at 10.51 – remember that, members of the jury, the one that got through after she had left – she said she had really no idea what it was about. It could be that she had accidentally punched the wrong key.”

Mr Harris’ written argument stated that “in the circumstances of the case, it is submitted with respect that this call was of crucial significance, coming as it did before the calls to PW2 and PW3”. 

47.  It is unfortunate that Mr Harris had failed to recognize (as he candidly admitted) that this was not all that the judge said on this topic because, having dealt with the complainant’s evidence in some considerable detail as well as the various challenges concerning her evidence, the judge continued:

          “Overall, [the complainant] denied the defence version of events. She denied making this all up because the defendant would not part with his girlfriend. She insisted she knew nothing about the 4½-minute call but agreed that if they did not talk, it is hard to explain why the defendant would leave the line open. She denied it was the call that ended all calls, unpicked because she was angry with what the defendant said in the earlier one.” [Emphasis added] 

48.  The jury had the full transcripts of the applicant’s two interviews with the police which the judge invited the jury to “re-read” when they retired.  With reference to the 4½ minute telephone call and the later text messages sent by the applicant to the complainant, the judge accurately summarised the way the defence had been presented when he reminded the jury, in a passage which again was not referred to by Mr Harris:

          “Turning to the defence, they say a lot of things simply do not add up in this case. The major ones are, (a), it is impossible how the defendant could have forced [the complainant] to inhale cannabis; (b), the injuries on [the complainant] were too few and too minor and not on the parts of her body that took all the pressure; (c), there was no apparent injury on the defendant who volunteered for an examination shortly after his arrest; (d) there was no damage to any of [the complainant’s] clothing; (e), the 4½-minute phone call and that the defendant would have hung up if there was no conversation; (f), despite Mabel’s and her boyfriend’s callous attitude, [the complainant] was not at all upset which must mean she was just making things up. Finally, they say the text messages and the numerous phone calls are explicable because the defendant was very concerned that [the complainant] might speak to his girlfriend.” [Emphasis added]

49.  Even when dealing with a summary of the main points made for the prosecution, the judge had referred to the applicant’s telephone call to the complainant, before she telephoned Mabel and her boyfriend saying, in a passage immediately before the one we have just cited:

“… They [the prosecution] say [the complainant’s] account is detailed, reasonable and capable of belief even where it touches on such apparent oddities as the 4½-minute phone call. They say the evidence of [Ah Fung] is unworthy of belief. They say there was just not enough motive for [the complainant] to lie about the allegation.” [Emphasis added] 

50.  There is little more that the judge could have added.  It might perhaps be said that the judge could have emphasised that the complainant’s calls to her two close friends when making her complaint of rape were made after the applicant had made the 4½ minute telephone call but this was an obvious fact which was so well known to the jury that they could not have failed to grasp it.  The complainant’s answers, to the effect that she had not spoken to the applicant in the course of that length of time, had been extensively canvassed in cross-examination.  The judge had said quite enough to remind the jury about this issue which plainly related to credibility and, in his general directions on the law, the judge, as Mr Harris accepted, had provided the jury with the proper approach they should take to all questions affecting a witness’s accuracy and reliability.

51.  This ground fails.

Conclusion

52.  We are satisfied that the conviction was neither unsafe nor unsatisfactory.  Accordingly, the application is dismissed.