Hksar v Li Kim Ching

CACC 208/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 208 OF 2006

(ON APPEAL FROM HCCC 247 OF 2005)

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J U D G M E N T

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Stuart-Moore and Tang V-PP and Suffiad J (giving the judgment of the Court) :

1. The applicant was convicted after trial before Pang J and a jury of rape (count 1) and buggery (count 2) and was sentenced to imprisonment for 5 years on each count. 2 years of the sentence on the 2^nd count was ordered to be served consecutively, making a total of 7 years’ imprisonment.

2. The applicant now seeks leave to appeal against conviction. Important considerations concerning recklessness in the context of rape arose from the 3^rd ground of appeal.

The facts

3. The prosecution’s case depended entirely on the evidence of the complainant PW1 who, at the time of these offences, worked as a hostess at the Golden Age Nightclub in Jordan Road, Kowloon. PW1 testified that her work was to accompany customers at the nightclub and at times to sing with them. She said she was not required to perform sexual favours or to have sex with any customers as part of her work and she did not do so.

4. During the afternoon of 5 November 2004, PW1 was called upon to join other hostesses inside Room 811 of the nightclub to serve the applicant, a client known as ‘Ah Lung’. At about 5 pm, she escorted him to the toilet and waited for him outside. It was the practice of the nightclub for hostesses to do this in case a client left through a back door without paying. However, when the applicant came out of the toilet, she said that he grabbed her by the hand and pulled her into Room 830 of the nightclub which was empty at the time.

5. Inside Room 830, the applicant told PW1 that he was fond of her and that she should not be concerned about her grudge with ‘Barbie’ (another hostess at the nightclub). The applicant then tried to force PW1 to remove her underpants. When she refused his advances, he purported to make a telephone call to somebody telling him to “grab all the tools and call all the people”. The applicant then urinated into a dustbin in the room.

6. Thereafter, the applicant pinned PW1 down on a sofa in the room and removed her underpants. She said that she cried and shouted for help and she alleged that the applicant then forced her to have sexual intercourse with him. The applicant also buggered her and then forced her to have oral sex with him. Finally, she alleged that he forced her to have sexual intercourse with him again. Throughout this time, they were the only two persons in Room 830. All that was done by the applicant inside Room 830 was alleged to have been done in spite of PW1’s refusal of his advances which was demonstrated by her crying, shouting for help and her attempts to resist him.

7. After the applicant had finished, PW1 went to the toilet to wipe herself with tissue. At that stage, she noticed blood and what appeared to her to be semen on the tissue.

8. PW1 then returned to Room 811 where there were other hostesses. At that time PW1 was still crying.

9. A mama-san by the name of ‘Shan Ma’ came into Room 811 and took PW1 to Room 810 where she asked PW1 why she was crying. PW1 told Shan Ma what Ah Lung had done to her. Shan Ma then called another mama-san named ‘Coco Ma’ into the room and spoke to her. Coco Ma then left the room. PW1 also left Room 810 and went into the common room for female staff. There she saw other hostesses of the nightclub including Cheung Nga Ching (PW2).

10. When PW1 was alone with PW2 in the staff common room, she told PW2 what Ah Lung had done to her in Room 830. Some time later, Coco Ma came into the room and handed PW1 a $1,000 banknote. This was said by Coco Ma to have been thrown onto the floor by the client. Coco Ma said that she had taken the banknote as “medical fees”.

11. PW1’s evidence was that she had refused the $1,000 note but that after she had left the nightclub with PW2 and had gone to a drugstore to buy some ‘morning-after’ pills, she found a $1,000 banknote inside her wallet. She did not know how it had got there.

12. Later in the evening, having consulted Wong Chi Ming (PW3), a male friend of hers, PW1 sought medical treatment at the Caritas Medical Centre. She was accompanied by PW3. The doctor there found that her injuries consisted of a recent abrasion on the inner surface of the inner lip of the vulva and two recent shallow split wounds on the back part of the anus. PW1 admitted in her evidence that the story she had told the doctor at the Caritas Medical Centre about how her injuries had been caused by having sex with a boyfriend was untrue. PW1 explained that she had lied in this way because at that time she had not yet decided to make a report to the police and did not want her husband to know that she had been raped.

13. After she left the Caritas Medical Centre, PW1 decided to make a report to the police. At that stage, she handed the $1,000 note she had found in her wallet to the police.

14. The evidence given by PW2 covered, amongst other things, PW1’s possession of the $1,000 note. PW2 said that at some time after 5 pm on 5 November 2004, she entered the female staff common room of the nightclub and found some of the staff gathering round PW1 who was crying. She asked PW1 what had happened but PW1 did not answer. After the others had left the common room and when she was alone with PW1, PW2 repeated her question. She said that PW1 told her that she had been raped in Room 830 by a customer who had also forced her to have oral sex and anal sex.

15. The two of them then went out of the room intending to leave the nightclub. However, they were told by others that the customer was making a scene outside and were advised not to leave just yet. There was some talk of making a report to the police but PW1 was hesitant about this and, for this reason, no report was made at that time. Instead, PW1 and PW2 went back into the common room to wait. PW2 described how, some time later, Shan Ma came into the room with a $1,000 note to give to PW1 and said that this was all the money the client would give. She asked PW1 to keep the money and to forget about the matter. At first PW1 refused to take the money, saying that it was not enough and that she wanted $5,000 or $6,000. However, finally PW1 took the $1,000 and put it in her dress pocket. By that time it was about 8 pm.

16. Later, PW2 accompanied PW1 when she left the nightclub. Before parting with PW1, PW2 advised her to report the matter to the police but PW1 said she had an appointment with someone and had to discuss this with her friend first.

17. Some time after they parted, in the early hours of the next morning, PW1 telephoned PW2 and asked PW2 to meet her at the Sau Mau Ping Police Station. PW2 did so.

18. About eight months later, on 7 July 2005, the applicant was located by police. He made no admission of any kind and stated that he was unable to recall where he had been on 5 November 2004. He denied knowing the Golden Age Nightclub or anything about a rape allegation concerning that nightclub.

19. On 14 July 2005, the applicant was formally arrested after he had been identified by PW1 at an identification parade as the customer she had referred to as ‘Ah Lung’.

20. On 15 July 2005, the applicant was further interviewed under caution but again he made no admission and denied that he had ever been to the Golden Age Nightclub.

21. It was an admitted fact at trial that the applicant had, without using a condom, had sexual intercourse with PW1 inside Room 830 at the nightclub and that the semen sample found inside PW1’s vagina matched the applicant’s DNA.

Defence case

22. The applicant did not give evidence and no witnesses were called on his behalf. However, a bar bill for just over $4,000, issued by the nightclub, was exhibited (Exhibit D-1). This was intended to demonstrate that the applicant had remained on those premises from 2.10 pm on 5 November 2004 until 1.10 am on 6 November 2004. However, the bill did not bear his name and could not be connected directly to him.

23. In cross-examination of PW1, regarding the allegation of rape, it was put to PW1 that she had consented to sexual intercourse with the applicant. As regards the charge of buggery, it was put to PW1 that no such act ever took place. These suggestions were both denied by PW1 as was the suggestion that she had made up these allegations to extort money from the applicant.

Grounds of appeal

24. Three grounds of appeal were put forward by Mr Raffell on the applicant’s behalf.

(1) and (2) Complaint of lurking doubt arising from analysis of PW1’s credibility

25. The 1^st ground was that the conviction was unsafe or unsatisfactory in that, on the evidence as a whole, there existed a lurking doubt about the safety of the conviction. The substantive basis for that general ground was elaborated upon more precisely in the 2^nd ground of appeal which Mr Raffell subdivided into six sub-paragraphs. It is therefore, convenient to deal with Grounds 1 and 2 together, focusing on the sub-paragraphs contained in the 2^nd ground which, in combination, it was submitted gave rise to a grave cause for concern over PW1’s credibility.

26. In sub-paragraphs (i) and (ii), which are closely linked, Mr Raffell emphasised the obvious flaws in PW1’s evidence and the inconsistencies between the accounts given by PW1 and PW2 in relation to the evidence about the $1,000 banknote. It was submitted that PW1’s...