The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 38 of 1996

 

Kwong Kin-hung Appellant

v.

The Queen Respondent

 

FROM

 

THE COURT OF APPEAL OF HONG KONG

 

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 11th November 1996

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Present at the hearing:-

Lord Browne-Wilkinson

Lord Nicholls of Birkenhead

Lord Steyn

Lord Hoffmann

Lord Cooke of Thorndon

  ·[Delivered by Lord Steyn]

 

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1. This is an appeal from the judgment of the Court of Appeal of Hong Kong, given on 3rd February 1995, which dismissed the appellant's application for leave to appeal against two convictions of rape.  On 6th December 1993, after a trial by a High Court judge and a jury, the appellant was convicted on two counts of rape.  The judge sentenced the appellant to concurrent terms of 12 years' imprisonment on each count.

 

2. At the trial the Crown's case was based on the uncorroborated evidence of two sisters, who were described as PW1 and PW2.  At the time of the trial PW1 was aged 18 years and PW2 was aged 17 years.  The gist of the evidence of the complainants was that on the night of 8th/9th September 1992 they were in a flat; that the appellant and others were present in the flat; that they were intimidated, humiliated and assaulted by other men who were present in the flat; that this took place in the presence of the appellant (a man aged 35 years); and that the appellant first raped PW2 and then PW1.

  There were many weaknesses in the Crown's case. Neither sister complained to the police until three months after the alleged rape.  PW1 met her boyfriend shortly after the alleged rape.  She complained to him that she had been assaulted but made no mention of rape.  She said that she had sexual intercourse with the appellant on a previous occasion but could not remember the time and place.  When she returned home PW2 made no complaint of rape to her parents. There was no corroboration of the allegations of rape.  Moreover, there were many discrepancies in the evidence.  The sisters contradicted each other.  There were also inconsistencies between the evidence of each sister and their statements to the police.  But each sister insisted throughout in evidence that they had been raped in turn.

 

3. One may be forgiven for observing that despite the weaknesses in the prosecution case the jurors might have wondered what the appellant's version was.  Their curiosity was not satisfied during the cross-examination of PW1.  The defence case was never put.  Counsel for the appellant did, however, put the appellant's case to PW2.  Counsel suggested to PW2 that the appellant was only in the flat for about 10 minutes and that nothing untoward happened during that short period.  PW2 denied this suggestion and insisted that the appellant had raped her.  In direct contradiction of the appellant's case as put in cross-examination, a third witness, a girl aged 16 years, who lived in the flat, testified that the appellant was present "from the night to the next day".

 

4. Counsel for the appellant made no submission that there was no case to answer.  The appellant did not testify.  The prosecution case, such as it was, was left unanswered.  It appears from the summing up that counsel for the appellant took the line that he was putting the prosecution to proof of every element of the crimes alleged against the appellant including the issue of consent.

 

5. Lord Thomas of Gresford Q.C., who did not appear at the trial, accepted that the judge's summing up cannot be criticised on behalf of the appellant.  Indeed it was plainly a summing up carefully designed to guide the jury towards an acquittal on both counts.  The judge dealt at length with the inconsistencies and discrepancies in the prosecution case.  Rhetorically, he in effect asked the jury about the evidence of each complainant whether in the light of the multiplicity of flaws in the evidence it would be right to rely on her evidence.  At 12.10 p.m. on the day of the summing up the jury retired to consider their verdicts.  At 3.50 p.m. they returned with their verdicts.  Not heeding the guidance of the trial judge they convicted the appellant on both counts.  On the count relating to PW1 the jury convicted by a majority of 5:1.  The verdict on the count relating to PW2 was unanimous.

 

6. The appellant applied for leave to appeal against both convictions to the Court of Appeal.  The jurisdiction of the Court of Appeal to allow an appeal against a verdict of a jury is set out in section 83 of the Criminal Procedure Ordinance (Cap. 221).  So far as it is material it reads as follows:-

"(1) Except as provided by this Ordinance, the Court of Appeal shall allow an appeal against conviction if it thinks:-

(a)that the conviction should be set aside on the ground that under all the circumstances of the case it is unsafe and unsatisfactory; ..."

 

7. By a majority decision the Court of Appeal refused leave to appeal.  The majority (Macdougall V.-P. and Liu J.A.) considered the cumulative effect of the inconsistencies and discrepancies in the prosecution case but concluded that they were "not persuaded that their (the jurors') acceptance of the sister's evidence was perverse". Penlington J.A. said that he had a "lurking doubt".  That was a reference to well known observations by Widgery L.J. in R. v. Cooper (Sean) [1969] 1 Q.B. 267, at page 271 C-G, to which their Lordships will have to turn in due course.  Penlington J.A. held that the convictions were unsafe and said that he would have allowed the application and the appeal.

 

8. Lord Thomas submitted that the majority in the Court of Appeal misconstrued their powers and duties under the statute by asking the question whether the convictions can be categorised as "perverse".  That, he submitted, is a different and more stringent test than that contemplated by the statute, viz. whether the convictions were unsafe and unsatisfactory.  On the supposition that this submission is correct, he invited their Lordships to perform the task that the majority of the Court of Appeal failed to perform.

 

9. This submission cannot, however, be considered in the abstract.  Rightly, Lord Thomas addressed their Lordships on the weaknesses of the prosecution case.  His arguments derived considerable comfort from the views of the trial judge and Penlington J.A. who both concentrated in a large measure on the discrepancies and inconsistencies in the sisters' accounts.  Their Lordships are persuaded by Mr. Saw, who appeared for the Crown, that those flaws in the prosecution evidence need to be considered in the light of a common thread in the evidence of the sisters.  Only in this way can a balanced assessment be made of the prosecution case.  Both sisters said PW2 arrived at the flat before PW1.  They agreed on the identity of the persons present in  the  flat and that the appellant was present throughout.  They

testified that there was a discussion about whether PW2 had a boyfriend and that following that discussion one of the other men hit PW1 in the face.  They both said that over a substantial period of time the other men, in the presence of the appellant, assaulted PW2 causing an injury to her eye.  They both described a bizarre "tea ceremony" where PW1 and PW2 were forced to kneel and offer sips of tea to the appellant.  The appellant refused to accept the tea.  PW1 and PW2 then said that they were separated: each was forced to sign an I.O.U. in an amount of $54,000.  The I.O.U.'s contained a reference to their family's address. They were told that they would be required to "work" to pay off the debt.  They understood that they were being forced into prostitution. Both PW1 and PW2 testified that the appellant had sexual intercourse with them without their consent on a mattress on the floor in the bedroom.  The appellant approached PW2 first and then PW1.  Sometime after the rapes had taken place, PW1 and PW2 saw the appellant in the flat injured and bleeding.  A number of police officers attended the flat.  During the time the police officers were at the flat PW1 and PW2 were kept in a bedroom by another man who was holding a vegetable chopper.  The day following the rape the same man took PW1 and PW2 to visit the appellant at hospital.  PW1 told the appellant that if they did not return home their parents would report their disappearance to the police.  Whilst at the hospital, PW1 contacted her boyfriend by telephone and arranged to meet him at a restaurant.  PW1 told her boyfriend in the presence of PW2 what had happened but did not disclose that they had been raped.

 

10. It seems realistic to accept that this account by the sisters would have been the context in which the jury would have examined the flaws in the prosecution case. They would also have been entitled to take into account that the prosecution evidence was not contradicted or explained by any evidence from the appellant.  Moreover, there is another significant factor which was not mentioned by the trial judge or considered by Penlington J.A.  As their Lordships have already observed, counsel for the appellant put the appellant's case to PW2 on the basis that the appellant was only present in the flat for some 10 minutes.  There was, however, evidence from a third witness, who said that the appellant was present throughout.  Counsel for the appellant did not cross-examine this witness.  In these circumstances the jurors might quite reasonably have viewed the appellant's explanation with considerable scepticism.

 

11. It is against this background that the Court of Appeal had to consider the catalogue of inconsistencies and discrepancies in the prosecution case which the trial judge placed before the jury.  No point would be served by setting out the details of the flaws in the evidence. Their  Lordships observe that many of the inconsistencies

relate to relatively unimportant matters, such as estimates of time and the order of trivial events.  On the other hand, there were undoubtedly major discrepancies, e.g. PW1 said knives were produced and PW2 made no mention of knives.  Not surprisingly, such matters were canvassed in cross-examination, explained in speeches and dwelt upon at length in the summing up.  These matters would have been etched in the minds of the jurors.

 

12. Against this contextual background their Lordships can now turn to Lord Thomas' principal submission.  Initially Lord Thomas submitted that the majority erred in not applying the test enunciated in Cooper [1969] 1 Q.B. 267.  In that case Widgery L.J. observed (at page 271 C-G):-

"[This is] a case in which every issue was before the jury and in which the jury was properly instructed, and, accordingly, a case in which this court will be very reluctant indeed to intervene.  It has been said over and over again throughout the years that this court must recognise the advantage which a jury has in seeing and hearing the witnesses, and if all the material was before the jury and the summing-up was impeccable, this court should not lightly interfere.  Indeed, until the passing of the Criminal Appeal Act, 1966 [which somewhat widened the court's powers to quash a conviction] ... it was almost unheard of for this court to interfere in such a case.

 

13. However, now our powers are somewhat different, and we are indeed charged to allow an appeal against conviction if we think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory.  That means that in cases of this kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done.  This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it."

 

14. This guidance has, of course, been repeatedly recited and applied in the Courts of Appeal in England and Hong Kong.  Pressed to explain, however, whether it poses a test different from the question whether the conviction is "unsafe or unsatisfactory" within the meaning of the statute, Lord Thomas rightly conceded that the "lurking doubt" test is simply a different and vivid way of expressing exactly the same idea. Thus in Stafford v. Director of Public  Prosecutions  [1974] A.C.  878,  at page  912,  Lord

15. Kilbrandon summarised the test to be applied by each member of the appellate court as follows:-

"Have I a reasonable doubt, or perhaps even a lurking doubt, that this conviction may be unsafe or unsatisfactory?"

Ultimately, their Lordships conclude, the words of the statute must govern the position. Refining his argument Lord Thomas said that the majority ought to have posed the question whether the conviction was unsafe or unsatisfactory.  Instead, he argued, they considered a different and higher test, namely whether the verdicts of the jury can be said to be perverse.  Their Lordships disagree.  The statutory test was invoked by the grounds of appeal and a skeleton argument filed on behalf of the appellant.  The majority expressly examined the contention that:-

"... the convictions are unsafe and unsatisfactory in that the jury acted perversely in relying on the uncorroborated evidence of the sisters and that there must therefore be a lurking doubt as to the guilt of the applicant."

 

16. The test whether each member of an appellate court considers the verdicts "unsafe or unsatisfactory" is part of the very alphabet of the criminal law. The majority would not have lost sight of it.  Indeed, it is clear that in considering whether the verdicts were perverse the majority were simply applying the statutory test in the context of the particular case before them.  The statement that the verdicts were not perverse was shorthand for saying that there was evidence upon which a properly directed jury (as this jury was) could conscientiously have convicted.  Given the evidence, and the verdicts of the jury, they regarded the convictions as safe.  They therefore posed no different or higher test than that envisaged by the statute.  The real difference between the majority and Penlington J.A. was that the majority, as a matter of judgment, accorded a higher degree of deference to the verdict of the jury - than Penlington J.A. did.  That difference of degree in reasoning raises no issue of principle or law. And the reasoning of the majority cannot be faulted.

 

17. It follows that their Lordships reject Lord Thomas' principal submission.  Prima facie that is the end of the matter and their Lordships need not reconsider the minutiae of the case.  But Lord Thomas submitted that it can be demonstrated that there are substantial grounds for thinking that there might have been a miscarriage of justice.  It is unnecessary to consider the legal basis of this submission.  Given the state of the evidence, the terms of the summing up and the verdicts of the jury, there is no reason to doubt that the convictions were safe and satisfactory.

 

18. Their Lordships will humbly advise Her Majesty that the appeal should be dismissed.

 

© CROWN COPYRIGHT as at the date of judgment.