HKSAR v. So Tsz Yeung

[English Translation – 英譯本]
CACC 201/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 201 OF 2013

(ON APPEAL FROM HCCC NO 50 OF 2013)

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JUDGMENT

Hon Yeung VP (giving the judgment of the Court):

Introduction

1.The applicant（蘇子揚）was charged that he raped a girl (X), who was under the age of 17, two times on 12 August 2012.  The scene of crime was X’s home at Tin Yiu Estate, Tin Shui Wai (her home).

2.The applicant pleaded not guilty and was tried before Li J (the trial judge) with a jury.  On 30 May 2013 he was unanimously found guilty of both counts of rape by the jury, and was sentenced on the following day to imprisonment of 7 years and 6 months by the trial judge.

3.Mr Liu of counsel and Mr Poon of counsel, for the applicant, applied for leave to appeal against his conviction and / or sentence.

Background facts and prosecution case

4.The applicant was familiar with X and her family members, including her mother and elder brother, and would visit her at her home two or three times a week to listen to her telling him what was on her mind.

5.X stated that between 1 and 2 pm on 12 August 2012 the applicant came to her home to visit her as usual.  At the material time she was alone at her home.  She lay on the bed and talked with the applicant about recommending her elder brother for a job.  In the course of their conversation, the applicant walked up to X, grabbed her wrists tightly with his right hand, removed her trousers and briefs with his left hand and then took off the trousers he was wearing.  At that moment X was lying flat on the bed.  She tried to drive him away from her by kicking him and pushing him but to no avail, because of the strength of the applicant.  The result was that the applicant succeeded in raping her and ejaculated on her belly.  After that, X cleaned her body, threw the paper towel into the rubbish bin, went to the toilet and put on a black one-piece dress.  In the process of her doing these, she smoked a cigarette/cigarettes.  Later, she checked her phone call record and came to know that her mother was urging her to see her, so she intended to go out to see her mother.  At that time the applicant indicated that he wanted to do it once more but X refused.  The applicant ignored her refusal.  He pressed her on the bed, grasped her wrists with his right hand and removed the trousers of the two of them with his left hand.  He raped her again and ejaculated in her body.  X said that in the course of his doing so she had told him to “fuck off” but failed to resist the applicant’s attack on her.  After it was over, X cleaned herself again and left her home with the applicant together.  When they were going down in the lift, she drank the lemon tea which the applicant brought along.  Then they met X’s mother and they together went to different places shopping until sometime between 6 and 7 pm.  Only then did the applicant leave X and her mother.  In this process, X did not complain to her mother or anyone about the applicant’s abominable behavior.  X explained that she did not report the matter to the police or complain but decided to “grin and bear it” because she was afraid that when her mother learned that she might kick her out to the street.  She said she did not tell her boyfriend / boyfriends about it either for fear that her boyfriend / boyfriends would not want her anymore because of this.  X told the applicant through WhatsApp that she worried that she would be pregnant, and the applicant said he would take care of the abortion expenses.  A few days later, X’s mother noticed that there was something strange in X’s mood and behavior, so she checked X’s WhatsApp messages.  On 16 August 2012, when being questioned closely by her mother, X said the applicant “did” her.  X also made similar complaints to her two boyfriends respectively surnamed Lau and surnamed Cheng, and to one other men, whose name was unknown.  X accused the applicant of having done “outrageous things” to her and “raped” her.  Her accusations were recorded in the WhatsApp messages which she sent to the three men by using her mobile telephone.  Despite X’s objection, her mother, after discussing the matter with the applicant, decided to report to the police.  At that time, the applicant asked X’s mother not to call the police.

6.X admitted that in 2012 she had on separate occasions had sexual intercourse with two different boyfriends.  She further admitted that in the evening of 15 August 2012 she had sexual intercourse with her boyfriend surnamed Lau.

7.Policemen seized a paper towel stained with the semen of an unknown male, but the DNA extracted had nothing to do with the applicant.  X admitted that the paper towel was connected with her boyfriend surnamed Lau.

8.The applicant was formally arrested by the police in the small hours of 17 August 2012.  Under caution he said, “I did do that, but we did it in a state of half willing and half resisting.  I know I was wrong” A policeman took down this reply in his police notebook. The applicant wrote down the formulaic statement and signed to confirm its content.  Later, the applicant, in the company of his solicitor, participated in a video recorded interview with the police, but he did not make any further confession.  On 17 and 20 August 2012, X was examined by a doctor, but no abnormalities or injuries were found on her body, including her private parts.  She was not pregnant.

9.Apart from the above evidence, X’s mother Madam Wong said in her evidence that on 12 August 2012 she began to observe that X was in an agitated mood, that she wore an “angry countenance”, “shut herself away” and “threw things”.  Her behavior showed that she was unhappy and she told her to “leave her alone”.  Madam Wong became worried, so she checked X’s WhatsApp messages.  When she learned what had happened, in the evening of that day she asked the applicant to have a meeting to discuss the matter.  Madam Wong said that at that time X was afraid when she saw the applicant.  When she decided to call the police, the applicant grabbed her clothes and begged her not to do so.  Madam Wong said she knew that X had different boyfriends, but she was not clear about the sexual relationship between X and her boyfriends.  X’s mother denied that X had told her that she had sexual intercourse with the applicant five times.  She also said she did not mention anything about buying morning‑after pills.

Grounds of defence

10.The applicant admitted that he had sexual intercourse with X, but he claimed that he proceeded with her consent, so he denied raping her.  The defence case was that X was uninhibited and active in sexual affairs.  In spite of her young age, she had many sexual partners and had sex with them frequently.  In their cross-examination of X, the defence established that between August 2011 and August 2012 she had, at different times, four boyfriends.  The defence alleged that X deliberately lied to falsely accuse the applicant.  The applicant further alleged that the policeman put down in the notebook things which he had never said in order to frame him.

11.When giving evidence in defence, the applicant gave a detailed account of his relationship with X.  He said he was so familiar with X and her family members that he and X addressed each other as brother and sister.  He said starting from the end of 2011 he regularly went to her home and later their relationship developed to such a stage that once or twice a week he and she would confide to each other secrets in their hearts.

12.According to the applicant, he had sexual intercourse with X for the first time in mid January 2012.  On that occasion he did not put on a condom and he ejaculated outside X’s body.  When it was over, the two of them smoked cigarettes and chatted.  The applicant went on and said that in mid March 2012, they, with mutual affection and agreement, made love with each other two times.  During the first time he ejaculated outside X’s body, but ejaculated inside her during the second time.  Since the applicant did not put on any condom, subsequently X bought and took morning‑after pills.

13.The applicant added that in late May 2012 the two of them made love with each other two more times, that again during the first time he ejaculated outside X and during the second time he ejaculated inside her, and that after the event X again took morning‑after pills.  The applicant emphasized that in between these two times they smoked and chatted.

14.The applicant insisted that he knew that X had sexual intercourse with her other boyfriends many times, and that for this reason he had bought morning‑after pills for X in late January, early March, late March, mid May and mid June 2012.  He even said that Madam Wong was aware of X’s conduct and that she had asked him to buy morning‑after pills for X.

15.The applicant claimed that on 12 August 2012 X asked him to buy lemon tea and to take it to her home.  Later, as suggested by him, the two of them took off their clothes and made love two times.  During the first time the applicant ejaculated outside X.  After they did that they smoked and X later changed her clothes and put on a black one-piece dress.  When Madam Wong called to hurry X up, the applicant suggested to her that she could stall Madam Wong off by saying that she fell pain in her belly.  The two of them made love once more. During this second time he ejaculated inside her, but he did not think of, nor did he talk with X about buying morning-after pills, because there was no time.

16.After that, they left her home together and went to meet X’s mother.  When the two of them were in the lift, each of them held a packet of lemon tea in his or her hand.  The applicant said that he and X and her mother went to various places together and he did not leave them until sometime between 6 and 7 o’clock.

17.The applicant agreed that he did indicate that he was willing to pay X’s abortion expenses and that he did say something like “It happened again!”.  He explained that in March or April X’s mother had said that X was pregnant, so he said “It happened again!”, but he said he had forgotten the details of the matter.

18.The applicant also agreed that in the evening of 16 August 2012 he discussed the matter with X, her mother and other people, including X’s boyfriend Cheng. Subsequently, X’s mother decided to call the police.  He admitted that he did keep holding her and asked her not to call the police.

19.The applicant said that when he and other people were in the vicinity of the police station, X said loudly “Don’t report it to the police,” and that she even moved her lips to the applicant to indicate that she was saying “Sorry” to him.  The applicant’s position was that what X said and did showed that her accusations were not true.

20.nbsp;              The applicant maintained that although he signed on the policeman’s notebook, actually he had never said to the policeman anything like “half willing and half resisting” or “I know I was wrong”.  He said he was not aware that he had the right to engage a lawyer until the record in the notebook was completed.

Findings as to legal issues made by the trial judge

21.The trial judge found that the messages which X sent through WhatsApp to the man surnamed Lau, the man surnamed Cheng and the man whose name was unknown, which said that the applicant had done “outrageous things” to her and raped her were recent complaints and were admissible as evidence.  The trial judge held that even though X did not make the complaints until four days after the incident, in the circumstances of this case the complaints were made when the first reasonable opportunity arose, and that therefore the requirement of “recent” was fulfilled.

22.The trial judge considered that the applicant, apart from relying on the ground that X consented to have sexual intercourse with him as his defence, had also attacked the character of X and the policeman, which included the allegations that X was a promiscuous girl and had undergone abortion/ abortions before and the complaints that the policeman falsely testified that he had said things like “half willing and half resisting” and “I know I was wrong”, and recorded such things in his police notebook for the purpose of framing him.  For this reason, the trial judge granted the prosecution’s application for disclosing the applicant’s conviction record to the jury.

23.The trial judge also found that the unusual way in which X behaved within the few days after the incident amounted to evidence of distress, and that it was necessary for him to give the jury directions as to evidence of distress.

Directions given by the trial judge to the jury

24.The trial judge explained at great length to the jury the legal principles relevant to the charges and repeated to them in detail the evidence given by the two sides.  He also gave them guidance concerning recent complaint, the applicant’s criminal convictions, the statement made by the applicant to the policeman under caution and evidence of distress.  In respect of the evidence of distress, he said this to the jury:

“Alright, (X)’s mother gave evidence that within the few days before 16 August (X) was moody. She hurled angry words at others, threw things and shut herself away; that’s why her mother checked the contents of her WhatsApp. Please pay attention. If you accept her mother’s description, that is to say, (X) was in a distressed condition, when you consider whether you should accept that she was in such a distressed condition, you should consider several factors. Distressed condition is in the same position as recent complaint. Neither of them can prove rape directly, whether there was or wasn’t rape. However, when you consider whether (X) is credible, you can take her distressed condition into account. Well, should the distressed condition of (X) give you -- should you accept this condition? You should consider these factors. Concerning (X)’s distressed condition, first, was her distressed condition feigned; and whether the alleged rape was the only cause of such condition. Perhaps (X) felt that she should not have sexual intercourse with the defendant; perhaps she was afraid that she would be pregnant; perhaps she did not consent to the sexual intercourse; and perhaps there are other possibilities. You should consider all the evidence in order to decide whether her distressed condition was only referable to the alleged rape, which was the only cause. If you consider that it was a show made by (X), or that there were other causes of her distressed condition, then you should disregard her distressed condition. If you are satisfied that her condition was not feigned, and that the alleged rape was the cause of her condition, then you can take such condition into account. In considering whether (X) is credible, you can take this evidence into account, because this evidence shows that (X) was consistent in her accusations against the defendant. As to how much weight you should give to her distressed condition, this is for you to decide.”

25.In relation to what the applicant said to the policeman under caution, the trial judge told the jury:

“Alright, I go back to his oral reply. Even if you are sure that his reply is reliable, you still have to see whether there are any other reasons which will make you suspect that the content of this oral reply does not represent the fact, that is to say, it is not true, that is, it may be just nonsense uttered by the defendant or the product of some unidentified cause. Remember, you must be sure that this oral reply is true before you can rely on it as evidence.

Well, if you accept the defendant’s reply and the record in the notebook, there is still one thing you must consider, that is, what exactly is the meaning of that statement?  Did ‘half willing and half resisting’ mean that the defendant denied raping her, or did ‘half willing and half resisting’ showed that he was not sure whether (X) consented?  You should consider this carefully. At the final part of his reply the defendant said that he knew he was wrong. You, yourselves, read the whole of his statement.  At the end he said ‘I know I was wrong’.  He knew he was wrong; what does that mean?  You must read the whole statement before you make your decisions.  The most important thing is that you should bear in mind the three stages: First, you must first decide whether the defendant did say that.  Second, does the defendant have any evidence which shows that he made this statement as a result of certain interference or influence, or because he had no lawyer?  If he has such evidence and if you think what happened might be like that, then you should not accept this statement.  Further, finally, if you consider that the defendant did say that and that it was not said as a result of any influence, you must still decide whether the content of this statement is true.  Well, if it is true, you can accept it as evidence.”

Grounds of appeal

26.Mr Liu put forward five grounds of appeal; four of which concern legal issues and one concerns the facts.  The four grounds of appeal which concern legal issues are as follows:

“(1) The trial judge should not have regarded the complaints which X made through WhatsApp to a man surnamed Lau, a man surnamed Cheng and a man whose name was unknown as recent complaints, because their identities had not been confirmed and they had never come to court to testify. Mr Liu emphasized that it was only after X’s mother discovered X and the applicant had sexual intercourse that X made the complaints.

(2) The trial judge erred in allowing the prosecution to disclose the applicant’s criminal record to the jury. Mr Liu stressed that since the issue of this case was whether X consented to sexual intercourse with the applicant, the applicant was entitled to assert that X voluntarily had sexual intercourse with him and use it as his defence without putting himself at risk that evidence about his character would be disclosed.

(3) The trial judge did not give proper or sufficient directions to the jury as to the evidence of distress.

(4) The trial judge did not give proper or sufficient directions to the jury as to the statement made by the applicant under caution.

27.As to the factual issue, Mr Liu contended that X’s evidence against the applicant was not credible, and that there were lurking doubts in the prosecution case.

28.Mr Liu pressed the point that after X was raped by the defendant the first time, she not only took a rest together with the defendant, but also smoked a cigarette/cigarettes with him together.   When Madam Wong telephoned her, she did not make any complaint and further, she went out with the applicant as usual.  When they met Madam Wong, they even went shopping together.  In the course of doing these things, she did not display any distressed condition.  Mr Liu also submitted that X had strongly objected to her mother’s calling the police.  Mr Liu argued that all such behaviour of X was inconsistent with her evidence against the applicant and that therefore his convictions on the two counts were unsafe and unsatisfactory.

Discussion

29.In a criminal case, a previous consistent statement made by a prosecution witness out of court unfavorable to the defendant is not admissible as evidence against the defendant.  However, in a rape case or a case involving indecency, a recent complaint made by the victim to someone after the commission of the offence is an exception, which is admissible as evidence to support the victim’s credibility and to rebut evidence from the defence that the victim consented to sexual intercourse or to intimate acts.

30.In rape cases and cases involving indecency, in order to be admitted as evidence, the recent complaint against the defendant must be made by the victim at the first reasonable opportunity after the offence.  In considering whether to admit the victim’s complaint as evidence, the judge is bound to look at all the circumstances of the case, including the victim’s background and her relationship with the defendant, before deciding whether the complaint was made by X at the first opportunity which reasonably presented itself (see HKSAR v Hung Wai Tak [2000] 4 HKC 641).

31.The court cannot overlook the fact that victims might need time before they can bring themselves to tell others what has been done to them and that some victims will find it impossible to complain to anyone other than a parent or members of their family (see R v Valentine [1996] 2 Cr App R 213); therefore, a complaint against the defendant can be admitted although it may not have been made at the first opportunity which arose after the offence.

32.The applicant was a friend of X and her family members.  He often went to the flat to visit X and was very familiar with them.  X clearly said that at first she had no intention to complain to anyone about what the applicant did to her and was prepared to “grin and bear it”, because she feared that if her mother learned of the matter, she might kick her out to the street, and she also worried that her boyfriend /boyfriends might shun her if he/they knew that.

33.X made a clean breast to her mother and told the man surnamed Lau, the man surnamed Cheng and the man whose name was unknown about the matter only after her mother noticed that there was something strange in her mood and behaviour, checked her WhatsApp messages and subjected her to close questioning.

34.In these circumstances, even though X’s complaints about the applicant’s conduct which she made to her boyfriend Lau, her boyfriend Cheng and the man whose name was unknown were not made immediately after the offence but were only made several days after the offence, her complaints still complied with the requirements concerning recent complaint and were admissible.

35.In the circumstances of this case, the ruling made by the trial judge that the complaints against the applicant which X made to her boyfriend Lau, her boyfriend Cheng and the man whose name was unknown were made at the first reasonable opportunity which presented itself had a solid basis and was sound. The trial judge had good reason to admit the complaints which X made to those three persons as recent complaints.

36.Another argument advanced by Mr Liu is that the evidence of recent complaint must be verified under oath by the recipient of the complaint, and that the complainant’s own evidence that she made the complaint, by itself without more, is not enough.  Mr Liu cited R v Kory White [1999] 1 AC 210 to support his argument.

37.Mr Liu highlighted the fact that at the trial the prosecution did not call X’s boyfriends Lau and Cheng or the man whose name was unknown to give evidence, and that therefore there was no evidence to verify the contents of X’s complaints to show that her complaints were consistent with her evidence.  Mr Liu’s position is that X’s complaints were no different from previous consistent statements which she made against the applicant, and could not be admitted as evidence of recent complaint.

38.Recent complaint is not to be used for proving whether a charge is established.  It is mainly used to show that the victim was consistent in her conduct or in what she said, so as to buttress the credibility of her evidence.

39.The court should scrutinize the contents of a victim’s complaints in order to decide whether her complaints are consistent with her evidence.  Generally, the recipients of the victim’s complaints must give evidence to describe in detail the complaints made to them by the victim, so that the court can determine whether the victim’s complaints are consistent with her evidence.

40.In Kory White, at page 215 G-H, Lord Hoffmann made the following comments:

“There are two well-known common law exceptions to this rule. The first permits proof of complaints in sexual cases. If a complaint is made at the first reasonable opportunity after the offence, it may be proved in evidence to show the complainant’s consistency and to negative consent. But for this purpose it is necessary not only that the complainant should testify to the making of the complaint but also that its terms should be proved by the person to whom it was made. If, as in this case, the recipients of the complaints do not give evidence, the complainant’s own evidence that she made a complaint cannot assist in either proving her consistency or negating consent.”

41.There were unusual circumstances in the present case.  The complaints which X made to her boyfriends Lau and Cheng and to the man whose name was unknown were not oral complaints, but were sent through WhatsApp.  Mr Liu accepted that X did send those messages to them; therefore, X’s complaints were recorded in text form and such text record could assist in proving the consistency of her evidence or rebutting the allegation that she consented to the sexual intercourse.

42.Even if X’s boyfriends Lau and Cheng and the man whose name was unknown had come to court to testify, at most what they would have said was a repetition of the WhatsApp messages which X sent to them.  Their evidence would not add anything to bolster the consistency of X’s evidence or to negate any evidence about consent.

43.That being so, not calling X’s boyfriends Lau and Cheng and the man whose name was unknown to give evidence had no influence on the relevant issues, nor did it constitute a reason for objecting to the admission of X’s complaints as evidence.  We reject this ground of appeal put forward by Mr Liu.

44.Mr Liu argued that X’s complaints to her two boyfriends and to the man whose name was unknown that she was raped by the applicant were not made on her own initiative nor were they made spontaneously.

45.Mr Liu’s argument is that X’s complaints to those persons were only the result of severe scolding and pressure from her mother, that they were not made at the first reasonable opportunity, and that therefore they should not have been admitted in evidence as recent complaints.

46.This argument is only relevant to how much weight should be given to the evidence, but has no relevance to whether the evidence was admissible.

47.Generally speaking, the prosecution cannot adduce evidence or say anything tending to show that the defendant is of bad character.  One exception is that in conducting the defence, the defendant casts imputations on the character of the prosecutor or the witnesses for the prosecution (see section 54(1) (f) (ii) of the Criminal Procedure Ordinance).

48.Mr Liu submitted in empathetic language that since the applicant was accused of raping X and the issue was whether X consented to have sexual intercourse with him, in cross‑examining X it was necessary for the defence to bring out the point that X had made love with the applicant many times before.  Mr Liu stressed that to put to X that she had made love with the applicant many times before was not an attack on her character, but was to prove that X voluntarily had sexual intercourse with the applicant.

49.Mr Liu’s position is that the putting to X that she had on a number of previous occasions made love with the applicant was so closely bound up with the applicant’s defence that it should not have been regarded as an attack on her character and should not have resulted in his bad character being disclosed to the jury.  Mr Liu cited Selvey v DPP [1968] 52 Cr App R 443 to support his position.

50.We agree that if the applicant had only said that X had made love with him on a number of occasions before in order to establish his defence that at the material time X voluntarily had sexual intercourse with him, then what he said should not have been regarded as an attack on X’s character.  However, the allegations which the applicant made against X far exceeded the above limit. In cross-examining X, the defence put to her that despite her tender age, she already had multiple sex partners and frequently had sex with them.  They also alleged that before the offence, she had made love with the applicant five times.  Besides alleging that she had sex with many men, the defence went further and added that after X had sex with different men, she would take morning‑after pills and that she would seek abortion when she found herself pregnant.

51.Although the defence did not say that in so many words, they did suggest to the jury that X was a promiscuous and sexually uninhibited girl who had many sex partners at the same time.  The defence intended to convince the jury that X would not mind having sex with the applicant, so as to reinforce his case that he had sexual intercourse with her with her consent.  We agree with the submission of Ms Lai, Senior Assistant Director of Public Prosecutions, who acts for the respondent, that the applicant’s allegations against X went beyond the permissible parameter referred to in Selvey. In fact, at the trial Mr Liu agreed that if he had accused X of being sexually promiscuous, it would certainly be an attack on X’s character.

52.We are of the view that the defence had obviously attacked the character of X, and that the trial judge was also entitled to find that the applicant’s allegation that the policeman lied against him by saying that he had made the confession amounted to a move to blacken the policeman’s character.

53.All in all, we consider that the trial judge was entitled to exercise his discretion under section 54(1)(f)(ii) of the Criminal Procedure Ordinance to find that the applicant’s conduct of his defence was such as to involve imputations on the character of a witness for the prosecution and allow the prosecution to disclose the applicant’s criminal record to the jury to undermine his credibility.  There is no basis for us to disturb the decision made by the trial judge in the exercise of his discretion.

54.Mr Liu’s ground of appeal that the trial judge erred in allowing the prosecution to disclose the applicant’s criminal record is not established.

55.As correctly pointed out by Ms Lai, after both the prosecution and the defence closed their cases when the trial judge discussed with counsel of the two sides what directions on law should be given to the jury, he expressly said that he would give the jury directions about evidence of distress in relation to what Madam Wong observed as regards how X behaved within the several days after the offence.  His reason was that Madam Wong said in her evidence many times that X behaved strangely after the offence and that the defence had asked Madam Wong questions about X’s behavior.  Under cross-examination, Madam Wong said that X’s temper had turned “very bad” and had “hurled angry words” at her and X’s elder brother, and that for this reason she checked X’s WhatsApp messages and this matter was thus brought to light.

56.In these circumstances, the jury would most likely take into consideration how X acted and behaved within the several days after the offence; therefore, the trial judge had every reason and was duty bound to give the jury directions on evidence of distress, in order that they would not use such evidence in a wrong way.  At the trial, Mr Liu did not make any objection to the approach taken by the trial judge.

57.Mr Liu repeatedly said in strong terms that X’s conduct after the offence was inconsistent with her claim that she had been raped by the applicant, and that the inconsistencies showed that her evidence was not credible.  In deciding whether X consented to the sexual intercourse, the jury certainly would take into account X’s conduct after the offence.  The jury had heard all the evidence and had listened to submissions from both sides.  They surely were well aware of the areas in her evidence which, according to the defence, defied rational explanation.

58.In considering the probative value of evidence of distress, the jury must examine: (1) whether the distressed condition of the victim was genuine, and (2) whether there was a causal connection between the distressed condition and the alleged sexual offence (see HKSAR v Leung Chi Keung [2004] 7 HKCFAR 526).  The Court of Final Appeal held that when the judge gave directions to the jury on evidence of distress, he should ask them to consider the following:

(a) The jury must be satisfied beyond reasonable doubt:

(1) that the complainant’s distressed condition was genuine, and

(2) that there was a casual connection between the distressed condition and the sexual offence.  In other words, they must be satisfied that: (i) the distressed condition was not feigned or made up; and (ii) was only referable to the alleged sexual offence and not to any other cause.  In deciding on those matters, the jury must take into account all relevant circumstances.

(b) Where the jury is so satisfied, they could give such weight to the evidence of distress as is appropriate.  Weight is entirely a matter for them.

(c) Where the jury is not so satisfied, they should disregard the evidence of distress.

(d) Where fantasy has been properly raised as an issue, the jury must not use evidence of distress to rebut a ground of defence based on fantasy.  If they believe that fantasy is a possibility, they cannot be satisfied of the required causal connection.

59.The directions given by the trial judge to the jury about evidence of distress met the requirements laid down in Leung Chi Keung.  We approve the directions.

60.The prosecution evidence was that the applicant said under caution, “I did do that, but we proceeded in a state of half willing and half resisting.  I know I was wrong.”  Since the applicant denied having said that, there was no other evidence which could help the jury to understand this statement.  They could only manage to understand the meaning of this statement on the basis of the arguments advanced by the applicant, the whole circumstances of the case and the applicant’s evidence.  Had the applicant been telling the truth in his evidence, ie from the beginning to the end, X consented to the sexual intercourse and acted in concert with him, then the situation which he described, namely “we proceeded in a state of half willing and half resisting” would not have existed.

61.The statement made by the applicant under caution was clearly a confession.  As to whether there was anything in his statement which was exculpatory, different people may have different views.  Based on the above analysis, it is not quite convincing to say that the phrase “half willing and half resisting” uttered by the applicant was exculpatory.

62.In giving the directions to the jury, the trial judge told them clearly that first they should decide whether the applicant did in fact make the statement and that if he did, then they should decide whether what he said was true.  The trial judge reminded them that if they accepted that the applicant did say “half willing and half resisting”, they should consider whether the conduct of X would cause him to genuinely believe that she consented to the sexual intercourse.  The trial judge also directed the jury that they should consider the meaning of the whole statement made by the applicant under caution before they could decide whether the charges against him were established.

63.We consider that in respect of what the applicant said under caution, the directions given by the trial judge to the jury were adequate and fair.

64.Mr Liu repeatedly made lengthy submissions about areas in X’s evidence which he said were highly incredible, and on that basis argued that there were lurking doubts in this case.

65.We must point out that whether X’s evidence was credible was entirely a question of fact and should be determined by the jury.  Whether X’s evidence was unreasonable, whether it was defective and how much weight should be given to it were all matters to be considered and decided by the jury.

66.At the trial, X gave evidence in great detail concerning her accusations against the applicant and had been subjected to thorough and minute cross-examination by the defence.  The jury must be taken to have knowledge of the defects and illogicalities in X’s evidence as pointed out by the defence.  If they had any doubt as to X’s accusations, they would have followed the trial judge’s direction and found the applicant not guilty.  Had they thought that the applicant’s story was true or might be true, they would also have found the charges not proven.

67.A defendant who asks an appellate court to overturn a finding of fact made by the jury on the ground that there is some lurking doubt must convince the court that there is a substantial remaining doubt, thereby making the court uneasy about the conviction of the defendant.

68.In Tang Wai Tong & Another v R [1979] HKLR 479 Roberts CJ commented at pages 486-487:

“We think that the lurking doubt formula must be applied with great caution. An appellate court, reading the papers are [sic] not seeing witnesses in the way that a jury does, must be cautious in imposing its subjective feelings for the conclusions reached by men and women who have had the advantage of seeing the witnesses and assessing their credibility.

In our view ‘lurking doubt’ means not an insubstantial doubt but a substantial remaining doubt.”

69.After thoroughly considering all the evidence in this case and having carefully examined and analyzed Mr Liu’s arguments, we hold that the jury was entitled to accept X’s evidence and rely on her evidence to find the applicant guilty of the two rape charges.  We do not find the decisions to convict the applicant unsafe in any way.  Accordingly, we refuse the application for leave to appeal against conviction.

Sentence

70.Rape is of course a very serious offence, which attracts a term of imprisonment of not less than 5 years, and if it is accompanied by aggravating factors, the sentence will be enhanced.

71.In sentencing the applicant, the trial judge placed emphasis on the following factors: X had been subjected to violence; the applicant made use of the trust which X and her family reposed in him to commit the offence; the applicant raped X two times within a short period of time without using a condom, and during the second time he even ejaculated inside her body.

72.Any case of rape will involve a certain degree of violence.  The facts of the present case did not show that the violence which the applicant did to X was over and above the violence used in usual cases.  Except this point, the aggravating factors identified by the trial judge did exist in this case.

73.Mr Liu criticized the trial judge for not calling for a victim’s impact report about X before sentencing.  The trial judge did not impose a more severe sentence on the applicant on the ground that the incident left any especially serious physical or mental effect on X, therefore his not calling for a victim’s impact report did not result in any prejudice against the applicant.

74.The applicant knew X and her family members well.  Because of this, he was allowed to go to X’s home to visit her freely, and he took advantage of this opportunity to rape X at her home.  To a certain extent there was breach of trust, but it was not a case in which the applicant made use of his capacity as a senior family member or the guardian of the victim, or the capacity of someone who was entrusted with a certain responsibility, for example, a clergyman, an emergency services provider, a taxi driver or a police officer, to sexually attack X.  As far as this case is concerned, when compared with cases of a similar nature, the applicant’s breach of trust did not constitute a particular aggravating factor.

75.Ms Lai submitted that the applicant raped X two times, that his conduct corresponded to one of the features described in R v Millbery and others [2003] 1 WLR 546, namely repeated rape in the course of one attack, which justified a term of imprisonment of not less than 8 years.  We have some reservations about her view.

76.The applicant did not abduct X and hold her captive for a long period of time, nor did he, either alone or with others, raped X multiple times.  He did not commit any of the acts of rape identified in Millbery as examplesor carry out anal intercourse by force.  The applicant raped X twice within a short time in circumstances where she did not put up any vigorous resistance. We do not agree that in the circumstances of this case the applicant’s conduct amounted to repeated rape in the course of one attack as described in Millbery and called for the imposition on him of a term of imprisonment no less than 8 years’.

77.In our judgment, this case is not a particularly serious one among similar cases.

78.We do not overlook the fact that at the time of the offence, the applicant was under 20 years old.  Although he had previous convictions, they were minor offences and he had a stable job.

79.The applicant had known X for over a year and all along they were in good terms and met frequently.  It is highly likely that he succumbed to the impulse at that juncture and committed this serious crime.

80.We hold that judging from all the aggravating factors featured in this case, the overall sentence of 7½ years which the applicant received was manifestly excessive, and that a more appropriate overall sentence should be 6½ years.

81.For the above reasons, we grant the application for leave to appeal against sentence and, treating this hearing as the appeal proper, allow the appeal.

82.We uphold the 6 years’ imprisonment for the first count, but reduce the 7 years’ imprisonment for the second count to the same 6 years, and order that 6 months out of the terms for the two counts shall be served consecutively.

83.The overall sentence to be served by the applicant is reduced from 7½ years to 6½ years.

Ms Anna Lai, Senior Assistant Director of Public Prosecutions, of the Department of Justice, for the Respondent.

Mr Liu Yuen Ming and Mr Poon Siu Bunn, assigned by the Bar Free Legal Services Scheme of the Hong Kong Bar Association, for the Applicant.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Patrick W.S. Cheung, Barrister-at-law.