IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 419 OF 2015
(ON APPEAL FROM HCCC NO. 327 OF 2015)
|Before: Hon Macrae JA in Court
|Date of Hearing: 18 May 2016
|Date of Judgment: 18 May 2016
|Date of Reasons for Judgment: 20 May 2016
REASONS FOR JUDGMENT
1. On 18 November 2015, the applicant was convicted of a single count of attempted rape, contrary to sections 118(1) and 159G of the Crimes Ordinance, Cap 200, following a trial in the High Court before Tong J and a jury. On the same day, the applicant was sentenced to 6 years’ imprisonment.
2. On 14 December 2015, the applicant filed a Notice of application for leave to appeal against both conviction and sentence.
The prosecution case
3. The events in question took place on 9 January 2015. The applicant was then aged 26 and the complainant (PW1) was a 63-year-old woman, who lived on social welfare assistance and collected unwanted carton boxes on a daily basis at the rear lane of a supermarket (“the Supermarket”) between Mok Cheong Street and Sung Wong Toi Road in Kowloon City.
4. In the evening of the day in question, the complainant was as usual collecting boxes at the above location, when she saw a black man (who turned out to be the applicant) burning some bubble bags in the rear lane. Suspecting that he was going to urinate there, the complainant asked him (in Cantonese) to do so elsewhere. The applicant said something in reply which she did not understand. She then picked up her bag and was about to leave. At that juncture, the applicant stood in front of her and grabbed her neck, as a result of which she fell face-up into some carton paper. She shouted for help and tried to resist but the applicant pressed her throat. He then forcibly assaulted her, following which he raised her leg onto his shoulder, removed all of her lower garments and attempted to rape her.
5. According to the complainant’s testimony, she felt the applicant’s penis touch her private parts as it swept past the opening of her vagina three times. She said the applicant was thrusting his penis at her vaginal opening trying to penetrate her. When he was unsuccessful, he slapped her private parts three or four times with his right hand.
6. The complainant was understandably very frightened and, on seeing PW2, an employee of the Supermarket whom she knew, standing at the rear door of the Supermarket, she shouted to him that the applicant had raped her and asked him to make a report to the police. PW2 described the complainant as sounding miserable at that time. The applicant rushed over to the door of the Supermarket but PW2 managed to close the door. The applicant then picked up a broom and advanced on the complainant intending to hit her. However, she shouted at him and he desisted. Thereafter three ambulance men arrived in the rear lane to help. PW2 had managed to make a report to the police. When they arrived, the applicant was duly arrested.
7. It was not disputed that the complainant had suffered injuries to her face and neck; and had tenderness and swelling over her perineum. It was the evidence of Dr Foo Ka-chung (PW7) that such injuries would be consistent with the complainant’s account of a sexual attack.
8. The prosecution case against the applicant thus relied heavily on what the complainant said had happened. Footage from a closed circuit television (CCTV) camera installed at the scene was also admitted at trial: despite its poor quality, it appeared to capture the applicant arguing with the complainant, and punching and kicking something, at the material time. It was an admitted fact that the seized CCTV footage was subsequently enhanced to improve its quality, the enhanced version being produced as Exh P6.
The defence case
9. In his video-recorded interview, which was admitted at trial, the applicant essentially said that he had been drinking beer in the lane when he discovered that his hand bag had gone missing. Seeing the complainant there and suspecting that she had taken away his bag, he had a row with her and assaulted her. The applicant denied any attempt to rape the complainant.
10. The applicant elected not to give evidence and called no witnesses. Other than what was asserted in his video-recorded interview, the applicant’s defence was advanced by way of cross-examination and submission.
11. During cross-examination, it was put to the complainant that she had moved or touched the applicant’s bag, that she was punched and kicked by the applicant; and that there was no attempted rape at all. She disagreed with each of these suggestions.
12. The defence also took issue with PW2’s different descriptions of the state of the complainant’s clothing as between his witness statement and his testimony.
13. As to the cause of the complainant’s injuries, PW7 agreed in cross-examination that these could also have been caused by punches and kicks.
14. The defence’s closing submissions also emphasised inter alia the following points:
(a) The CCTV footage was more reliable than the complainant’s testimony as regards the true account of events, in particular that the applicant punched and kicked the complainant (with which suggestion she had disagreed);
(b) The complainant’s evidence was not supported by other independent evidence; and
(c) The applicant was not motivated by sexual gratification to commit the offence in question.
15. In his summing-up, the judge identified the issues and gave detailed directions to the jury on the relevant law relating to those issues. In particular, the judge directed the jury on the offence of attempted rape, saying that the prosecution had to prove three things, namely (1) that the applicant intended to have sexual intercourse with the complainant; (2) that he knew that she did not consent to it, or was reckless as to whether she consented; and (3) that he did something that was more than mere preparation for committing the rape. The judge then summarised the evidence and the respective speeches of counsel.
16. Among his general directions on the law, the judge directed the jury on the contents of the applicant’s video-recorded interview as follows:
“Now, the defendant’s video interview with the police appeared to contain both incriminating parts and explanations. He admitted that he was there at the lane and had a row with PW1, but he said there was never any sexual attack on PW1 by himself. You must consider the whole of the statement in deciding where the truth lies. You may feel that the incriminating parts are likely to be true for why else would he have made them? You may also feel that there is less weight to be attached to his explanations for they were not made on oath, has [sic] not been repeated on oath, and have not been tested by cross-examination.
However, in this regard, members of the jury, you may think that the interview was a rather long one and the officer had raised many queries and asked the defendant a lot of questions. I do not know whether you may think that the defendant had in a way been cross-examined by the officer, although it was not done on oath. And yet, the defendant had maintained that he had not attempted to rape PW1. You should consider his answers fully and fairly, and decide where the truth lies.” (Emphasis added)
17. In connection with PW2’s allegedly inconsistent evidence, the judge gave the following directions:
“Members of the jury, the defence has pointed out, especially in the cross-examination of PW2, that he had previously made a statement which conflicted with his evidence in court. The two main points raised, I am sure you recall very clearly, being whether PW2 saw PW1 wearing trousers and whether he said he had the impression that the defendant was looking for his bag.
Members of the jury, you may take into account the fact that PW2 did make such a statement or statements when you consider whether he is believable as a witness. However, the witness statement itself is not evidence of the truth of its contents except for those parts of it which the witness has told you are true.
In examining these suggested inconsistencies, you will wish to decide, first, whether there is in fact and in true context an inconsistency. And if you decide that there is...