R v Feige Yu

This is the hearing of an application for an extension of time of 129 days and for leave to appeal against conviction which has been referred to the full court by the single judge.

The single judge referred two grounds of appeal to the court. There was a third ground, which the court had understood was intended to be renewed orally but we were informed by Mr Cadman today that it is not to be renewed orally so there is nothing further to be said about it.

The two grounds of appeal which were referred are first, that the judge should not have prevented cross-examination of the complainant, who has the benefit of lifelong anonymity, pursuant to the provisions of the Sexual Offences (Amendment) Act 1992, and who we will refer to as A, on the context of a WeChat message from an unidentified account using the name 'Strawberry' demanding money to stop the proceedings. The second ground was that the judge erred in failing to remind the jury about the fact that a witness (who we will refer to simply as Y, again to avoid any risk of inadvertent identification of A) said that parts of her witness statement on dates of the complaints of offending by A were wrong.

It is necessary to set out some of the background. On 19 September 2023 the applicant was convicted of two counts of rape in the Crown Court at Bristol following a trial before His Honour Judge Burgess KC and a jury, and on 20 September 2023 the applicant was sentenced to 9 years' imprisonment on both counts concurrent.

The applicant and the victim are both Chinese nationals. There was a meeting of two groups of Chinese nationals on 24 November 2022 in a nightclub in Bristol. A WeChat group was set up. The victim, A, disclosed that it was her birthday on the group, and the applicant sent her money through the WeChat system which the complainant did not accept.

The applicant met a friend, Y, and asked her about A's star sign and what sort of person she was. The applicant went shopping with Y, and bought presents (perfume and some jewellery) for A. The applicant and A had arranged to meet for lunch - as far as A was concerned in Bristol, but the applicant had booked a private room in a restaurant in Bath. A had asked her friend Y to accompany them, but Y did not want to go because it was clear to Y that the applicant was interested in A and Y did not want to become, as she put it, a third wheel, or (as the judge put it in colloquial English terms) a gooseberry.

A and the applicant had lunch in Bath. A agreed that they had held hands, but she said she had brushed his hands away. A agreed that the applicant had kissed her, but she said that she had not wanted that. There was a dispute between A and the applicant about whether A had performed oral sex on the applicant. The applicant's case was that A had performed oral sex on him in the car park and that he was embarrassed because he thought that people walking by might see.

They returned to Bristol, and A went out in the evening to a karaoke bar for her birthday. A described the applicant to Y as a very strange person. A had felt unwell for a bit, and she returned to her house. In the early hours of the morning on 28 November 2022, the applicant turned up outside her house and WeChat messaged A, asking to meet. A spoke to another friend W, who told her that if she did not like him, to be strong and tell him. A said in evidence that because she was polite and she did not want to be rude to people, she went down and met him. He offered to take her to the beach to see the sun rise, but she did not want to go. She wanted to talk at the entrance to the building in which her flat was situated, but agreed to go to his home, believing others would be present.

They drove to his house. There was another person present, but he was asleep on the second floor. It was common ground that oral and vaginal sex took place, and that the applicant bit her neck to leave a mark, which is referred to in Chinese as a 'strawberry' or in English as a 'love bite'. A's case was that she had been pinned down. He had ripped her top when removing it, and he had had sexual intercourse without her consent and over her complaints, and then forced his penis into her mouth, before ejaculating on her face. She had then gone to the bathroom because she felt sick.

A said that the applicant had also hit her bottom forcefully, and there were photographs of the marks. The applicant had also said something about filming her, which had worried A. There was expert evidence about the marks on A's body, which was to the effect that it was consistent with A's evidence, but they could not exclude the possibility that it was consistent with the applicant's account.

The applicant's case was that all the sexual activity was consensual. He was unable to explain the marks on A's bottom apart from that it must have happened during the course of the encounter. Afterwards, the applicant made some congee porridge, but A said that she did not want it. The applicant drove A home with the porridge in a container.

Later, the applicant attempted to contact A, but she did not want to have anything to do with the applicant. The next day, the applicant threatened to disclose the film which he said he had made of A to friends of A. A disclosed the offence to her friend W. A became very concerned and then reported the matter to the police on 29 November 2022.

It was common ground that the applicant had threatened to release the video, and the defence case was that the jury might regard that as shameful behaviour, but that was not consistent with rape, and the defence relied on it to show that that was the reason why A made a false complaint of rape.

The applicant was arrested and interviewed and gave his account that it was all consensual. He was refused bail pending the trial.

So far as the trial was concerned, that was originally listed in April 2023 but that hearing was adjourned. There were messages being exchanged with the applicant's WeChat account which was being managed on his behalf by a friend. On 14 April 2023 a friend request was accepted, and the messaging went:

After his arrest the applicant had had his phone seized, and there were two 4-minute videos which he had deleted, but the police were unable to recover their contents.

At the trial, A and Y gave evidence. W had provided a statement in which she confirmed the report made by A to her of the offending and at the time of the trial W had returned to China. Objection was taken to the reading of W's statement. The judge ruled that that was admissible. That gave rise to a ground of appeal which was not pursued.

Requests had been made on behalf of the applicant after the trial had been adjourned in April, for investigations to be made in relation to the WeChat conversation from Strawberry. The officer was asked whether or not he would take statements about whether they were genuine. There were also lots of other questions that were raised in relation to that, but in the course of the ruling on this particular matter the judge said that he would not permit a fishing expedition in the cross-examination of A and that there was no evidence to link the WeChat message to A. The ground of appeal before us is that the trial judge was wrong to prevent the cross-examination of A on the contents of the WeChat message.

Counsel on behalf of the applicant sought permission to cross-examine in relation to this message to put to the complainant that she was effectively trying to get money to withdraw the complaint.

In our judgment the judge was plainly right to refuse the cross-examination on the contents of the WeChat message as it then stood. There was nothing to suggest that A had anything to do with it. Indeed, A had complained to the police that she was being pressurised when she was in China (she had returned to China after the incident and before the trial) by friends of the applicant to drop the proceedings. In any event, so far as the ground of appeal as formulated is concerned, we would reject it because the judge was right to say there was nothing to connect the message to A.

However, that leaves outstanding this issue: that it is apparent that notwithstanding the requests which had properly been made by the defence for the prosecution to ask the question of A whether she was the operator of the Strawberry WeChat account and whether she was involved directly or indirectly in sending the message, nothing was done. That means there is the risk, which is that, if asked, the complainant might have accepted that it was her Strawberry WeChat message, in which case there could have been proper cross-examination on the contents of it, and that would have been a matter for the jury to assess. One could see that in circumstances if it was accepted that this was A’s message, then the failure of the judge to permit cross-examination, if that had been the evidential position before him, would have made the conviction unsafe. That was, however, not the position because the applicant had not established a basis for it. Indeed, Mr Cadman frankly accepted this morning that he had not formulated his application so that he could ask these questions to establish whether A was the operator of the Strawberry WeChat account or was involved directly or indirectly with the sending of the message. Therefore in those circumstances he can only fall back on the next matter to which we will turn.

The other current ground of appeal can be dealt with very shortly, which was that the judge erred in failing to remind the jury about the fact that Y said parts of her witness statement on dates of the complaint made by A were wrong.

The single judge, when referring to that, expressed considerable scepticism but said it was right that the matter should be properly investigated with the transcript of the evidence of Y.

Y, when she had given her statement to the police, either because of her error or because of an error in translation, had suggested that A had made a complaint on 28 or 29 November to her about the offending, but when she came to give evidence Y said, "There's a mistake in the statement". Permission had been given to Mr Rouch KC for the prosecution, who appears before us today to lead A on the statement. He was unable to adduce the evidence of any earlier complaint because the witness said (at page 11): "There's a mistake on the dates, the officials earlier, I noticed the statement has a mistake in that date." The jury were then sent out, and there was then further detail. The closest that the witness came giving evidence about a complaint in November was:

In these circumstances, there was simply no basis for the judge to refer to the material which was set out in the witness statement, which of course the jury did not see. Further, a complete answer to this point is that it is a matter for the judge as to what he comments on. We can well understand why the judge would have gone nowhere near this particular issue. So that ground of appeal is also dismissed.

That does leave the unhappy situation that even as of today's date, a question which should have been asked of the complainant A was not asked, notwithstanding an express request for it to be asked. Properly analysed, the Defence will be bound by A's answer to the questions “was she the operator of a Strawberry WeChat account” and “was she involved directly or indirectly in the sending of the message?” because it is cross-examination as to credit. In those circumstances we have, together with the assistance of Mr Cadman and Mr Rouch, and we are very grateful for their assistance, directed that Mr Cadman draft a ground of appeal complaining of the failure to carry out that investigation in response to the request following the disclosure of the Strawberry WeChat messaging (if I  can call it that). Mr Cadman is going to draft that ground of appeal by 1 pm, it now being 12.42. We will then give Mr Rouch 21 days to respond to that by way of Respondent's Notice.

If the answer is that the complainant A had nothing to do with those matters, then it is likely that there will be no viable ground of appeal. If, on the other hand, A confirms that this was either sent on her behalf or she operated it and sent it, then it may be difficult for the Respondent to resist the appeal. Those are all matters for another day.