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R. v Mohammad Hussain

Judgment Cited authorities 8 Cited in Precedent Map Related
Vincent
Judgment Date21 August 1992
Year1992
Judgement NumberCACC197/1991
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC000197/1991 R. v. MOHAMMAD HUSSAIN

CACC000197/1991
Criminal Appeal
No. 197 of 1991

Criminal law - attempted rape - defence that accused was in a state of non-insane automatism due to hypoglycaemia - whether proper foundation laid for defence to be left to the jury.

IN THE COURT OF APPEAL

1991, No. 197

(Criminal)

BETWEEN

THE QUEEN

AND

MOHAMMAD HUSSAIN

-----------

Coram: Sir Derek Cons, V.-P., Fuad, V.-P. & Rhind, J.

Date of Hearing: 21 August 1992

Date of Judgment: 21 August 1992

Date of Reasons handed down: 28 August 1992

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J U D G M E N T

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Fuad, V.-P. (giving the judgment of the court):

1. The applicant, Mohammad Hussain, was convicted of attempted rape on 17th April 1991 in the High Court, before Deputy Judge Leonard (as he then was) and a jury and sentenced to four years' imprisonment. From that conviction and sentence he sought leave to appeal. We dismissed his application for leave to appeal against conviction at the conclusion of the hearing and we now give our reasons. By leave, he withdrew his application regarding sentence.

2. The complainant is a woman in her 70s. The case for the prosecution was that about 10 a.m. on 10th June 1990 she left her home on her way to inspect the premises into which she planned to move. In Texaco Road, Kwai Chung, she was suddenly confronted by the applicant who was a stranger to her. He had a can of beer in one hand and carried others in a plastic bag. He offered her a drink more than once which she refused. He then caught hold of her. He pulled, pushed and dragged her against her will for a distance of between 800 and 1,000 metres despite her resistance and protests all the way. He took her to a place under the flyover near the Chung Shing Industrial Building. He threw her to the ground over some railings which he then jumped to join her. He then pulled down her trousers and underwear, as well as his own, and lay on top of her.

3. The complainant told the jury that she was so frightened that she lost her strength. While she tried to push him away, he was trying to insert his penis into her, although it was not erect. This went on for a few minutes. She felt his penis come into contact with her body near her vagina. He also tried to kiss her. During this assault, he tried to give her money (she thought it was $10 or $20) and said "How much? How much?" more than once. She then related how she had been rescued by two young men, and how they overpowered him and prevented his escape until the police came and took over.

4. The complainant's evidence was not challenged in cross-examination by Mr. Spicer (who also represents the applicant before this court). In answer to him, she agreed that she could smell alcohol "a little bit" on his breath. She added: "He was not drunk." There was then the following exchange between her and counsel:

"Q. Nobody has ever done this to you before, have they?

A. Never. I am seventy-odd years old. Never.

Q. You must admit that he appeared to be behaving in a most unreasonable fashion, would you not?

A. Of course it is wrong for him to do that. I think it is for you, you people here, to say whether he is doing the right thing.

Q. No, I am not saying whether it was right or wrong, madam. Would you agree that it was - he appeared to you to be behaving unreasonably, without any reason for his actions?

A. Right."

5. Mr. Lau Kin Yip (PW2) and Mr. Sin Kin Shing (PW3), two friends, testified that they were travelling in a car driven by the latter when they saw the complainant being pushed along step by step. The woman fell to the ground from time to time. They stopped the car and, under the flyover, they saw a man (whom they identified as the applicant) lying on top of the woman, moving as if they were making love. They shouted at the man but he took no notice. Mr. Sin threw a piece of wood which missed the assailant who then got to his feet and pulled up his trousers. The applicant pointed to the woman and said "Friends". When she was asked if this was true, the woman told her rescuers that she did not know the man. Mr. Lau went off to report to the police. The applicant tried to run away but Mr. Sin stopped him. The applicant picked up a piece of rock and made as if to throw it at Mr. Sin. On seeing this. Mr. Sin seized a bamboo pole. The applicant dashed forward and managed to take the pole away from him.

6. Mr. Ng Fuk Chuen (Pw4) who was working nearby, was called to the scene. He saw Mr. Sin and the applicant wrestling with each other and went up to the applicant, grabbed hold of him and pinned him to the ground. The applicant was struggling all the time but after about 5-10 minutes, with the help of some co-workers, Mr. Ng managed to tie the applicant up. He was eventually handed over to the police.

7. Mr. Sin smelled alcohol on the applicant's breath, but he did not think he was drunk "because he was able to zip up his trousers, to button his trousers." Moreover, he could stand "firmly". He helped Mr. Ng to subdue the applicant because Mr. Ng was having "great difficulties to overpower him". Mr. Ng also smelled alcohol on the applicant's breath.

8. The witness also said that once the applicant had been tied up, he closed his eyes and lay still. He had to be picked up and carried to the police vehicle.

9. There was evidence from one of the police officers (Pw12) who arrived at the scene some 10 minutes later and arrested the applicant, that his eyes were closed and that the police had to get help from the civilian witnesses to carry him to the police vehicle. This witness told the jury that on arrival at the police station he had to help the applicant to sit up on the bench in the detention room and this needed considerable strength since the applicant's body was relaxed. He did not appear to be using his muscles to resist. He said that when the applicant was sitting on the bench he banged his head 5 or 6 times against the wall behind him. His eyes were turned up. He was murmuring something. The police officer tried to prevent him injuring himself by putting his hand first, and then a telephone directory, between the applicant's head and the wall. He eventually managed to stop him. The police officer was willing to accept this description of the applicant put to him by his counsel: "His eyes appeared to be glazed as if there wasn't a conscious spirit acting, working behind them."

10. At about 12.45 p.m. the applicant was taken to hospital by ambulance. He had walked to the ambulance with the help of two ambulance men. When a Medical Officer sought to examine the applicant at about 1.00 p.m. on the same day, he did not respond when asked whether he would allow himself to be medically examined and so the doctor thought it right not to examine him. From what he saw, the doctor did not think that the applicant was under the influence of alcohol. His face was not flushed and he did not smell alcohol on him.

11. The doctor who examined the complainant gave evidence which was wholly consistent with the account she had given of the nature of the sexual assault upon her.

12. The applicant gave evidence before the jury. He was about 33 years of age in June 1990. He was born in Pakistan. He has never been to school and is illiterate. He arrived in Hong Kong about 19 years ago. His wife lived in Pakistan and two of his sons lived with him in Hong Kong, in a hostel. At the relevant time, he was working as a watchman for a security firm. He had not been in trouble before.

13. He testified that on 9th June 1990, the day before the incident, he got up at 6.00 a.m. and went to work at 7.00 a.m. He had a meal at noon. He stopped work that day at 7.00 p.m. and had a meal in the early evening. He went to bed at 11:00 p.m. and got up at 6.00 a.m. on the following morning. While he was on duty he went to Tsuen wan to buy some beer - 7 cans. He was not supposed to leave his work, or drink on duty. This was the first time he had done this. It was a hot day. He started to drink the beer at about 7.30 a.m., not having eaten anything that morning. He remembered drinking about 4 cans of beer. He began to feel dizzy but started to walk, still drinking his beer. He remembered nothing after this until he found himself in hospital and had to ask a police officer why he was there.

14. His examination-in-chief, concluded with these questions and answers:

"Q. Do you accept that on 10th June your body attacked this woman, that is to say you were seen attacking the first witness?

A. I don't remember.

Q. Does it worry you that you can't remember what happened?

A. How can I worry when I even don't remember.

Q. You are obviously in a lot of trouble today, aren't you?

A. Yes.

A. Yes, now I realise I'm in trouble but at that time I didn't know.

Q. Now you have got a chance to think about the consequences, haven't you?

A. Yes, I'm very sorry now.

Q. What are you going to do to stop this happening again?

A. I regret drinking and I have now decided never to drink again.

....."

15. In cross-examination he said that he usually drank only one can of beer a week. He had drunk one can on the evening before, at home. Drinking was against his religion. The transcript of the cross-examination ends as follows:

"Q. Did you on other occasions feel craving to drink?

A. Not particularly. I'm not a habitual drinker occasionally I have a can of beer.

Q. well, I suggest to you that on this day on 10th June you were intoxicated.

A. Yes, intoxicated.

Q. And whilst in a state of intoxication you approached this elderly lady and behaved towards her in a manner which she described in her evidence.

A. That I don't remember.

Q. Do...

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