FACC No. 3 of 1998
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 3 OF 1998 (CRIMINAL)
(ON APPEAL FROM CACC No. 283 OF 1997)
||CHIM HON MAN
||HONG KONG SPECIAL ADMINISTRATIVE REGION
Court: Chief Justice Li, Mr Justice Litton PJ, Mr Justice Ching PJ, Mr Justice Bokhary PJ and Sir Anthony Mason NPJ
Date of Hearing: 11 November 1998
Date of Judgment: 29 January 1999
J U D G M E N T
Chief Justice Li :
1. I have read the judgment of Sir Anthony Mason NPJ and agree with it.
Mr Justice Litton PJ :
2. I also agree.
Mr Justice Ching PJ :
3. I agree with the judgment of Sir Anthony Mason, NPJ.
Mr Justice Bokhary PJ :
4. I concur in the judgment of Sir Anthony Mason NPJ.
Sir Anthony Mason NPJ :
5. The appellant was convicted by majority verdict of a jury (5 to 2) of two counts of rape after a trial before Mr Justice Chan in the High Court. An appeal against the two convictions was dismissed by the Court of Appeal. The appeal to this Court was brought from the order of the Court of Appeal dismissing the appeal to that Court. At the conclusion of the argument on the appeal this Court allowed the appeal, set aside the convictions and discharged the appellant from custody, stating that the reasons for the decision would be published later. What follows is a statement of my reasons for participating in the decision.
The indictment and the circumstances out of which it arose
6. The first count in the indictment alleged that the appellant "on a date unknown between the 14th day of July 1989 and the 31st day of July 1989" at his home raped his stepdaughter Wong Man-ling. The second count was in identical terms save that the date in the particulars of the offence charged was expressed as "on a date unknown between the 1st day of August 1989 and the 15th day of August 1989".
7. The complainant Wong Man-ling was born on 1 March 1980 and was 9 1/2 years old when the alleged offences were committed. She was then living with her mother and her stepfather, the appellant, who had married her mother in July 1988. They were living in a rented room at the rooftop of a building in Kwun Tong. It was a small room and there was only one bunk bed and some simple furniture. Wong Man-ling slept on the upper bunk. The mother and the appellant slept on the lower bunk which was a double bunk.
8. The prosecution's case, based on video-recorded interviews of the complainant which were admitted into evidence, was that when the mother was pregnant with the complainant's younger sister, while the complainant was at home on school summer vacation and the mother was at work, the appellant repeatedly raped the complainant on the double bunk during the period between 14th July 1989 and 15th August 1989. The complainant was unable to differentiate in any significant way between any of the particular acts of rape. It seems that in aggregate there were about 10 occasions in that time span when the appellant sexually molested her and that on the first few occasions rape did not take place because the appellant was unable to effect penetration. According to the complainant's account, sometimes these acts took place on consecutive days and sometimes only on every other day. The complainant's recollection of these events was far from being precise, a matter to which I shall return later.
9. She made no complaint about these occurrences until she spoke to a school friend in 1994, some 5 years later. She then told her elder sister and a social worker and finally her mother, after being persuaded by the school friend to do so. Even then, it was the mother not the complainant who first raised the question whether the appellant had molested her. The complainant told her mother that she did not want the matter mentioned to the appellant because she was scared and did not want to break up the family. The mother reported the matter to the police.
10. The complainant's failure to mention the matter to anyone before speaking to her friend in 1994 was said to be due to a combination of ignorance of the significance of the appellant's conduct, her unwillingness to share her problems with other members of her family, her apprehension and her desire not to break up the family. It seems also that she wanted to forget about the events.
11. The complainant's evidence was not corroborated by independent testimony. There was no medical evidence, no evidence of injury, apart from pain sustained by the complainant and no evidence of blood or other stains on the bedclothes or clothing. There was no admission by the appellant who denied the allegations and gave evidence contradicting the complainant's evidence. The appellant's case was that there was a "frame-up" on the part of the complainant who, influenced by her elder sister, reacted against discipline imposed by the appellant.
12. Notwithstanding the fact that the indictment contained two counts only of rape, the prosecution presented evidence of the various acts of sexual molestation without consent, including evidence that penetration took place except on the first few occasions when penetration was not effected. The evidence was led on the footing that the jury was asked to find that in each of the two periods one act of rape occurred, without being asked to identify the particular occasion when it occurred. The learned trial judge put the prosecution case to the jury in this way :
"The prosecution case is this : between 14 July and 15 August 1989 the defendant had raped the girl on a number of occasions, she said about ten times. But you may recall that the girl did not remember the exact dates or the number of these occasions. She also said that on the first few occasions, it seemed that the defendant did not enter her private parts. Hence, it is not clear how many times the defendant had raped the girl during this time.
So, the prosecution has laid two charges, instead of ten, in relation to two periods of time, the first from 14 July to 31 July and the second from 1 August to 15 August 1989. It is the prosecution's case that there was at least one rape during each period.
If you are satisfied that there was at least one rape during each period, you should convict the defendant of the two charges but these two charges are, of course, separate charges and you should consider them separately."
13. The complainant's evidence-in-chief consisted of four video-taped interviews recorded between January and August 1996 when she was 15 and later 16 years old. The video-tapes were received in evidence pursuant to s. 79C of the Criminal Procedure Ordinance, Cap. 221, ("the Ordinance") without objection by counsel for the appellant. Sections 79A, 79B and 79C form part of Part IIIA of the Ordinance, the heading of which is "Special Procedures for Vulnerable Witnesses".
14. No particulars were sought or given of the offences charged. The contents of the recorded interviews were made known, however, to the appellant's lawyers in advance of the trial.
15. The complainant was cross-examined at the trial from a room outside the court room via a live television link. The cross-examination by way of live television link took place in consequence of an order made by Gall J on 22 November 1996, pursuant to s. 79B of the Ordinance, permitting the complainant's evidence to be given in that way. When Gall J made this order the complainant was 16. By the time she gave evidence at the trial at the end of March 1997 she had just turned 17. That is a matter of some significance by reason of the terms of the definition of "child" which is contained in s. 79C.
16. The learned trial judge shortly summarized the evidence and stated the issues for the consideration of the jury. He told the jury that there was no independent corroboration of the complainant's evidence and warned them of the danger of convicting on such evidence in a case involving an allegation of the commission of a sexual offence. Despite that warning, his Lordship instructed the jury, as he was bound to do, that it was entitled to bring in a verdict of guilty if it was satisfied beyond reasonable doubt of the elements necessary to establish the offence charged in the indictment. As will appear, a question arises as to the sufficiency of the directions in the light of the way in which the complainant's answers were elicited in the interviews and in the light of the frailty of her recollection.
17. Counsel for the appellant at the trial did not take any exceptions to the directions given to the jury by the trial judge; nor did he seek any further directions.
The Court of Appeal
18. In refusing leave to appeal, the Court of Appeal rejected the three grounds of appeal which were advanced on behalf of the appellant. The first ground was that the complainant's evidence in cross-examination by way of live television link was inadmissible because it was not authorized by ss. 79A and 79B of the Ordinance, the complainant having just turned 17 when she was cross-examined. The second ground was that the trial judge should have directed the jury to acquit on the second count of rape as there was no evidence satisfying the criminal standard of proof that sexual intercourse took place in the period specified in the second count. The third ground arose from the nature of the prosecution case in leading evidence of more than one rape in relation to each of the two counts. The appellant contended that the prosecution should have been called upon to elect as to the particular offence which was to be the subject of each count and that subsequently the judge should have directed the jury that it could only convict if the members...