HKSAR v. Lee Wai Ka

[ English Translation – 英譯本]

CACC 42/2018

[2019] HKCA 725

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 42 OF 2018

(ON APPEAL FROM HCCC 27/2017)

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JUDGMENT

Hon Yeung Ag CJHC (giving the Judgment of the Court):

Introduction

1.The appellant (Lee Wai Ka) was charged with raping the victim Ms X on 19 June 2016.  The appellant pleaded not guilty to the charge and was tried before Deputy High Court Judge ST Poon (as he then was) (the Judge) and a jury.

2.On 8 December 2017, the jury found the appellant guilty of the charge.  On 23 January 2018, the Judge sentenced the appellant to a term of five-and-a-half years’ imprisonment.

3.The appellant applied for leave to appeal against his conviction and/or sentence. On 31 July 2018, he abandoned the application for leave to appeal sentence, which was dismissed accordingly.

4.On 30 October 2018, a single judge of the Court of Appeal found that the appellant’s grounds of appeal were arguable and therefore granted him leave to appeal against conviction. This court now holds the substantive hearing of his appeal against conviction.  

The prosecution case

5.The prosecution alleged that the appellant raped the victim on 19 June 2016 at the Viva Villa in Kowloon Tong. According to the prosecution, the victim had taken part in an online game since 2015 and joined an organisation consisting of 100 to 200 members. On 11 June 2016, the victim went to Neway in Argyle Centre to participate in a gathering of that organisation and became acquainted with the appellant there.

6.That night, the victim drank herself into a stupor, and when she came round in the next morning, ie 12 June 2016, she found herself at home. She did not know how she had returned home, but subsequently learnt from her friend that she was taken home by one male and one female. The appellant also told her through WhatsApp that he was the man who had taken her home on the night of 11 June 2016.

7.The same day, ie 12 June 2016, the appellant arranged with the victim to play online games at her home, and he did not leave until six in the evening. That night, the appellant asked the victim to see a movie, but she refused. On 15 June 2016, the appellant drove to pick up the victim after work and then went to her home for dinner before departing.

8.On 19 June 2016, the appellant arranged with the victim to go to a gathering hosted by his friend at J1 Club at Carnarvon Road, Tsim Sha Tsui. They met downstairs and then went up to J1 Club together.

9.The victim said that at the gathering at J1 Club, she took part in drinking games, and lost consciousness as a result of drinking a large quantity of alcohol. She claimed that when she regained consciousness, she found herself naked in bed in a hotel room with the appellant half-naked sleeping next to her. The appellant denied having had sex with her, alleging that she had hit him repeatedly and peed on the floor inside the room, and so he “could not have done it even if he had wanted to”.  The victim said that she felt ashamed and thus chose to leave the hotel and accept the appellant’s explanation. Afterwards, the appellant through his friend assisted the victim to look for her missing handbag.

10.The victim admitted that she again went with the appellant to J1 Club on 25 June 2016 to attend a friend’s birthday party, and she could not recall how she returned home because she had been drunk. Subsequently, she learnt that the appellant had again taken her back to her home.

11.The victim denied having had sex with the appellant at her home on 12 June 2016 and 19 June 2016.

12.On 5 July 2016, the appellant found out that she was pregnant and suspected this had to do with the appellant because she had had no sex with anyone else for several months. She WhatsApped the appellant to ask him if he had “molested” her in the Viva Villa on 19 June 2016. The appellant at first denied it, but afterwards said that “it is normal for such thing to happen between boyfriend and girlfriend, and it is not that he denies it”.  It was only after the victim repeatedly questioned him and said she would make a report to the police that the appellant further softened his stance and said to the victim, “Sorry, I know it’s my fault”; “Thank you for giving me a chance, I will change”, “Will do my best to compensate for it” and “Will save money”.  However, when the victim asked him for compensation, he said, “How can I tell if I was the one,” and indicated that he would treat the victim well and even said “get married, give birth” and so on. The appellant also said that he knew it was his fault and asked the victim to forgive him. He even tried to get the victim’s bank account number so as to pay the $30,000 that she requested for an abortion and recuperation.

13.On 5 July 2016 and the following day, the victim told her friends Miki Leung and Mr Cheng that the appellant had had sexual intercourse with her in a hotel. She also approached the Family Planning Association for help as advised by Miki Leung.

14.The victim said that the appellant, upon knowing that she would make a report to the police, arranged with her to meet in the park near her home in the small hours on 7 July 2016.  The victim said that the appellant in the meeting admitted that he had sexual intercourse with her without her being aware of it, said it was his fault, pleaded in tears that he was his mother’s only son and begged her not to make any report to the police. The victim claimed that she was softhearted and decided not to take any legal action against the appellant, and he said he would be responsible for the money she needed for abortion and recuperation. The victim even said that she had taken away the appellant’s identity card and home visit permit as security, and in order to convince her to cancel the report already made to the police, he even proposed to marry her but she refused.

15.The victim confirmed that on 10 July 2016, she texted the appellant, requiring him to deposit $30,000 into her account the following day and arranging with him to meet on 11 July 2016. The following day, the appellant drove the victim to the Family Planning Association to attend a follow-up appointment and afterwards to the A & E department of the United Christian Hospital. During that time, they quarrelled, and the appellant indicated to the victim that he had already engaged a lawyer to sue her for blackmail. Consequently, the victim decided to go with her mother to make a report to the police, but the appellant knelt down at the victim’s home to beg her not to make any police report.

16.From the moment the victim left her residence up to the time she arrived at the police station to make a report, she had recorded all the conversations between her, her mother and the appellant.  According to the audio record, the victim accused the appellant of having raped her and made her pregnant whilst the appellant repeatedly admitted his wrongdoing and also said that he was willing to take responsibility and asked her to forgive him.

17.The victim denied having had sexual intercourse with the appellant at home in the afternoon of 12 June 2016 or in the morning of 19 June 2016. She also denied having asked the appellant for money to repay her credit card debt.

18.Apart from the victim’s evidence, the prosecution also produced the relevant WhatsApp communication records between the victim and the appellant (P12) and the audio recordings (P11) as exhibits. The victim underwent an abortion on 22 July 2016, and the DNA evidence proved that the appellant was the natural father of the victim’s foetus.  

19.The victim’s mother and friends, namely Miki Leung and Mr Cheng, also gave evidence which was consistent with what the victim said.  One of the prosecution witnesses testified that she had seen the victim sleeping on the sofa at around three in the morning on 19 June 2016 in J1 Club with the appellant beside her, but later there was no sign of both.

20.The prosecution also produced to the court as evidence the record of the video interview conducted by the police with the appellant, the WhatsApp communication records of the parties concerned, and some images and footage captured on the CCTV recordings of what happened when the appellant and the victim checked in at and checked out of the Viva Villa on 19 June 2016.

The appellant’s case

21.The defence denied that the appellant raped the victim in the Viva Villa on 19 June 2016, but said that he had had sexual intercourse with her on 12 June 2016 and 19 June 2016 in the afternoon at her home.  The defence said that at all material times, the victim was sober and consented to have sex with the appellant.

22.The appellant did not give evidence at the trial but called a witness/witnesses. He relied on what he had said when the police interviewed him on video as his defence.

23.The appellant said in the police video interview that in the afternoon of 12 June 2016, he asked the victim to go to a movie but she said she was not feeling well. Later on, the appellant went to the victim’s home and played online games in her room. He said that they had consensual sexual intercourse. The appellant said that no condom had been used, and the victim, on knowing that he had ejaculated inside her, asked him, “What if (I) get pregnant(?)” The appellant said that he would take responsibility, and the victim said, “You’d better mean it.” The appellant said firmly that the victim was sober at the material time and consented to have sexual intercourse with him.

24.As to what happened on 19 June 2016, according to the appellant, he and the victim both got drunk in J1 Club, and she got more drunk. When they left J1 Club at around 3 am, the appellant indicated that he would accompany the victim home, but the victim said that her mother had scolded her each time she went home drunk, and so she wished to rest at a hotel first. Eventually, they went to a hotel in Kowloon Tong by taxi. According to the appellant, after getting into the room, the victim peed on the floor, stripped off to take a shower and went to bed immediately after that. The appellant said that he himself had also gone to bed after taking a shower in the toilet and slept until nine something the next morning. After they woke up, the victim said her handbag had gone missing, and the appellant helped her look for the handbag.

25.The appellant admitted that he and the victim had kissed on board the taxi on the way to the hotel, but said he did not have sexual intercourse with her in the hotel room. The appellant said that they went back together to the victim’s residence after leaving the hotel on 19 June 2016, and he had sexual intercourse with her again in her room. The appellant said he also had used no condom and ejaculated inside her. After that, he continued to help the victim look for her missing handbag.

26.The appellant said that when he had sexual intercourse with the victim on 12 and 19 June 2016, she was sober and consented to have sex. It was the appellant’s case that the victim became pregnant as a result of one of the aforesaid two sexual intercourses.

27.The appellant said that when they met in the park in the small hours on 7 July 2016, the victim scolded him intensely. When he expressed his willingness to take responsibility, she took away his identity card and home visit permit and demanded a few thousand dollars. However, he just had about $1,000 on him and so only gave her $1,000. According to the appellant, the victim said to him, “Don’t think of ending it like this. You can’t fix this mess without spending a few ten-thousand bucks. You are doomed, prison is waiting for you.” 

28.As to the circumstances before the victim made the report to the police on 11 July 2016, the appellant said that he had phoned and WhatsApped the victim many times and intended to give her $10,000 first because she had asked him to pay $30,000 into her account, and although she had arranged with him to see a doctor that day, she said that she had to get some more sleep. Eventually, the appellant went to the victim’s place to find her. When the victim’s mother opened the door, the victim pulled him away and scolded him, “Are you playing games?  Come up here, are you out of mind?  Are you trying to make trouble?  Go ahead, play it up.” The appellant told the victim that it was only because he had not seen her after waiting for a long time that he became worried and so went to her residence to look for her. Finally, the appellant left and waited for her downstairs.  When the victim came down about half an hour later, she complained of having severe pain and said she needed a painkilling injection.

29.Hence, they went to a clinic in a shopping centre nearby, but since there were many people inside, the victim said, “(I’m) not going to see the doctor; going to the Family Planning Association.”

30.When the two arrived at the Family Planning Association in Wanchai, the victim required the appellant to buy her some sweets. Eventually, when the appellant returned to the Family Planning Association with some sweets, water and bread that he bought, he did not see the victim. He waited there for a while and then saw her come out from a room. She told him that the doctor said she might have a threatened miscarriage and needed to go to a hospital. Consequently, the appellant accompanied the victim to the United Christian Hospital, but she refused to let him accompany her during the examination and also refused to be hospitalised as instructed by the doctor. When he asked for his identity card and home visit permit back, she demanded $30,000 first. He said that he could give her $10,000 first, but she said, “It’s clearly agreed at $30,000. What is meant by the $10,000 here? Are you playing games? What do you regard me as? Thinking of going away after giving $10,000? So let’s tell the police, let’s make a police report now.” The appellant said that he became somewhat angry and so said to the victim, “Miss, so now you are simply threatening me.”

31.The appellant said he raised his voice at that moment, and the victim demanded he drive her back home immediately for her to go with her mother to make a police report.

32.Consequently, the victim went back home, she and her mother changed and went together to the police station to make a report. The appellant said that the victim was very agitated at that time, and he tried to pacify her, saying that he would take responsibility and assured her that he would not run away. In the course of it, the victim also shouted at her mother loudly, accusing her mother of not standing by her. In the end, they went to the police station together.

33.The appellant strongly denied having raped the victim by taking advantage of her drunken state inside a room in the Viva Villa on 19 June 2016, and claimed that they had had sexual intercourse on 12 June 2016 and on 19 June 2016 in the afternoon at the victim’s home. He asserted that the victim was sober and consented to sexual intercourse.

The Judge’s ruling and directions given to the jury

34.The Judge found that the contents of the audio recordings made by the victim of what happened on the way to the police station (P11) showed that the appellant did admit the victim’s allegation of rape against him. The victim, the appellant and the victim’s mother had the following conversation at that time:

Victim:	He has raped me. He’s got me pregnant, which he still denies. He’s the one who did it. He even mentioned engaging a lawyer just now, do you know that? I’ve already given him a chance twice. If he’s willing to take responsibility, then I --
Appellant:	I’m willing to take responsibility, I’m really willing to, X.
Victim’s mother:	Aw, let me tell you, this is a matter involving you two. Take your time, wait for a while, here -- here listen to him, do you understand?
Appellant:	That’s right.
Victim:	Are you my mother(?) He has raped me. Do you know?
Appellant:	Mother, I was wrong.  I know I was really wrong. ... ... I’m sorry, X.  I’m so sorry.
Victim:	Go in to serve it, at least ten years, let me tell you. ... ...
Appellant:	I know it’s my fault. I’m so sorry. ... ...
Victim:	It’s not that I’m heartless. I’m just forced by you to be heartless.
Appellant:	It’s my fault.
Victim:	Now you make me do this, do you know?
Appellant:	I’m so sorry, I beg you, please, I beg you, I beg you.
Victim:	Give one more [chance], how many more do you want? Say it. How many more?
Appellant:	I know there have been many -- I know you have given [me] many [chances]. ... ... I’m so sorry.

35.In relation to the appellant’s confessions as alleged by the prosecution, including the WhatsApp communications between them (P12) and the above audio recordings, the Judge gave the jury the following directions:

“Members of the jury, the prosecution alleges that the defendant had on various occasions and circumstances confessed to X, confessing that he indeed had sexual intercourse with X in the hotel on 19 June, and the prosecution says that these confessions are true. Such confessions alleged by the prosecution are the contents of certain WhatsApp messages sent to X by the defendant, what the defendant said to X in the downstairs park near where she lived in the small hours on 7 July, and the defendant’s reaction on 11 July in the audio recordings which we have heard. In relation to the WhatsApp messages sent by the defendant to X, it is the prosecution’s position that X was all along asking the defendant if he had sexual intercourse with her in the hotel on 19 June, and it understood that he sent a voice message to X saying, “And also, I have not said I deny.” So, from this, the prosecution concludes that this is a confession made by the defendant. Members of the jury, although X testified that in her view, the aforesaid meant the defendant admitted having had sexual intercourse with X that day in the hotel, this is just X’s evidence and is only her own opinion. When you consider the question of whether this can be regarded as the defendant’s confession, you do not need to take into account X’s opinion. You should consider all the circumstances and background in which the defendant sent out the message, carefully read and try to understand the context of the message concerned and then determine if the message sent out by the defendant meant he admitted having sexual intercourse with X in the hotel. As to the confession that X claimed the defendant made in the downstairs park near X’s residence, if you accept X’s evidence, being sure that the defendant had indeed admitted in front of X that he on that night in the hotel had sexual intercourse with her without her being aware of it, you may rely on what the defendant has admitted in front of X to determine the case. In relation to the defendant’s reaction on 11 July in the audio recordings, it is the prosecution’s case that after X had said that she was going to the police, the defendant kept on apologising to her and even knelt down to beg for her forgiveness; and while X told her mother that the defendant had raped her, the defendant said spontaneously, ‘Mother, I was wrong, I know I was really wrong.’ The prosecution suggests that what was said and done is sufficient to constitute the defendant’s confession. Members of the jury, likewise, you have to carefully consider the background and context in which the defendant uttered such words and behaved in such way, and then decide if what was said and done amounts to a confession[.]

Members of the jury, when you decide if you can safely rely on what the defendant has admitted as the basis of your verdict, you have to consider three points: First, did the defendant in fact make these confessions[?] If you are not sure whether he did, you may disregard them; however, if you are sure that he did make such confessions, then, secondly, you have to consider the second point: can the confessions which the prosecution alleged were made by the defendant be regarded as confessions? If you are not sure, then you do not need to pay any regard to these so-called confessions; however, if you are sure, you have to go further and consider the third point, which is: are you sure that the contents of the confessions were true? When you consider this point, ie whether the defendant’s confessions are true, you have to pay special regard to whether the defendant just went along or might have gone along with X so as to prevent her from complaining to the police, and hence he made the confessions and therefore they are not truthful? Irrespective of the reasons, if you are not sure whether these confessions are true, you must disregard them; if you are sure that these confessions made by the defendant are true, then you can rely on them as the basis of your verdict.

Members of the jury, please bear in mind the directions that I have just given you in respect of confessions as evidence. Now we return to X’s evidence. Under cross-examination, X said that she was not working before June and July 2016 because she was not happy and had emotional problems. Previously she had a habit of taking cocaine. From March 2016 onwards, she began to receive treatment, and has successfully kicked the habit. Since June 2016, she has worked with CSL. She has agreed that she often goes out for fun and drinks, which ends up in “a blackout” almost each time, and is required to be taken home by friends.” (emphasis added)

Grounds of appeal

36.Ms Priscilla Lam of counsel for the appellant first pointed out that at the trial the defence had had no objection to the admission of P12 as evidence but had challenged the admissibility of P11. She contended that the contents of P11 did not constitute any confession whereas the prejudicial effect caused to the appellant far outweighed its probative value, and hence it should not have been admitted as evidence. Ms Lam asserted that the Judge had been wrong in not excluding P11 from the evidence, and this had rendered the conviction of the appellant unsafe and unsatisfactory.

37.Ms Lam stressed that what the appellant said in the conversations with the victim and her mother was ambiguous. What he said might be in response to his previous reference to engaging a lawyer about the victim blackmailing him with her pregnancy.

38.Ms Lam also pointed out that the Judge, in directing the jury to consider whether P11 and P12 constituted confessions, failed to sufficiently analyse the contents of P11 and P12 or identify to the jury what they should pay attention to but merely requested them to read P11 and P12 by themselves.

39.Ms Lam emphasised that the contents of P12 did partly support what the appellant had said, however, the Judge in his directions did not tell the jury that they had to take into account his explanations in the record of video interview as well, in considering whether he had confessed.

40.Ms Lam asserted that there was material showing that the “confessions” made by the appellant were a result of unfair and oppressive means, but the Judge failed to direct the jury properly, in particular, he did not point out that X was lying when she claimed that she would go to the police station to cancel the report whilst in fact no report had ever been made. Ms Lam also pointed to the Judge’s failure to remind the jury to take into account the appellant’s explanations given in the course of the video interview.

41.Ms Lam contended that there was evidence showing that the victim had used improper means to force the appellant to confess, and although she was not a person in authority, it was still necessary for the Judge to give the jury the Mushtaq direction, namely, directing the jury that if they concluded that the confession concerned was or might have been obtained as a result of oppression or anything said or done improperly, they should disregard such confessions.

42.Ms Lam has also cited HKSAR v Pang Hiu San (2014) 17 HKCFA 545 (sic), emphasising the importance of an accused’s entitlement to the right to silence and the right to have a fair trial.  It was Ms Lam’s position that the Judge’s failure to give the jury the Mushtaq direction infringed the appellant’s right to silence and rendered the trial unfair.

Discussion

43.It is indisputable that the appellant and the victim had sexual intercourse, causing her to become pregnant.  The victim said that during the relevant period, she was not aware of having sex with anybody. Therefore, the only possibility was that the appellant raped her after she became drunk and unconscious and was taken to the Viva Villa on 19 June 2016, which resulted in her pregnancy.

44.The appellant admitted that he had gone to the Viva Villa with the victim in the small hours of 19 June 2016, but denied having sexual intercourse with her in the hotel room.

45.It was the appellant’s case that he and the victim had sexual intercourse at her home on 12 June 2016 and 19 June 2016 in the afternoon while she was sober and she consented, which caused her to become pregnant.  He alleged that she lied to falsely accuse him so as to hide the fact that they had had sex twice at her home and she was unhappy with his blackmail allegation.

46.The prosecution evidence against the appellant mainly came from the victim and also relied on the victim’s complaints to Miki Leung and Mr Cheng shortly after the incident. Those complaints were consistent with the victim’s allegations against the appellant, showing her to be an honest and reliable witness.

47.The prosecution also relied on P11 and P12. According to the prosecution, those WhatsApp communication records and audio recordings showed that the appellant admitted the victim’s allegations against him, namely that he raped her while she was drunk and unconscious in a room at the Viva Villa on 19 June 2016.

48.According to the contents of P11 and P12, faced with the victim’s clear allegation of rape against him, the appellant repeatedly said he knew that it was his fault, apologised and begged her for forgiveness.

49.The appellant said that he had accused the victim of threatening and blackmailing him and demanding money, which made the victim angry, and it was only for those disgraceful words that he apologised to her and requested her forgiveness. However, the contents of P11 and P12 were not consistent with the appellant’s version. Had he had sexual intercourse with the victim with her consent on 12 and 19 June 2016 in the afternoon, he would not have possibly responded to her accusations as he did in P11 and P12. In view of the contents of P11 and P12 as a whole, a reasonable jury could conclude that the appellant indeed admitted the rape accusation against him. Therefore, P11 and P12 could constitute the appellant’s confessions in response to the accusation against him.

50.In our view, the above-mentioned confessions made by the appellant have extremely high probative value. Ms Lam contended that the Judge should have refused to admit P11 as evidence because its contents were ambiguous and could not constitute a confession, and that the prejudice created against the appellant far outweighed its probative value. This contention is unrealistic, and this court does not agree.

51.Whether what the appellant said in P11 was ambiguous and whether those apologies were made merely in response to having angered the victim with the blackmail accusation against her, and whether the jury should rely on those audio recordings, and the weight to be accorded to those records are all factual issues to be decided by the jury.

52.In directing the jury, the Judge did make clear to them that they had to consider the contents of the audio recordings in question and the explanations given by the appellant in the video-recorded interview.

53.Whether the contents of P11 and P12 show the appellant actually admitted the victim’s rape accusation against him, or whether it supports the appellant’s position are also facts to be determined by the jury. The Judge did not need to direct the jury to pay particular attention to certain matters or conduct an excessive analysis on certain matters. Otherwise, the Judge would be at risk of being seen as usurping the jury.

54.The Judge reminded the jury that they were not bound to accept the opinion on facts given by the two counsel or the Judge, and that he would not repeat all the evidence but would only highlight the main points. The Judge did stress to the jury that they must consider all the evidence, including the parts which neither counsel nor the Judge had referred to.

55.In our view, in respect of the background in the present case, it was reasonable and proper for the Judge to direct the jury that they had to take into account all the evidence, including having to read and analyse the relevant WhatsApp communication records and audio recordings in detail.

56.According to the victim, which is confirmed by the relevant WhatsApp communication records, the victim asked the appellant if he had “molested” her in the hotel on 19 June 2016. The appellant denied it and even said that he “ could not have been done it even if he had wanted to”. Although the victim did not accept what the appellant said, she did not actively pursue the matter. When the victim found out she had become pregnant, she asked the appellant again by way of WhatsApp. Initially, the appellant still denied it, but since the victim firmly believed that he was the one who had got her pregnant, she kept on asking him about related matters and even indicated that she would report it to the police. The appellant insisted and even said, “How I can know if I was the one.”

57.The victim felt humiliated and further questioned the appellant, only by then did the appellant soften his stance. He first expressed regret to the victim and further indicated that he was willing to take responsibility and marry her. The appellant’s suggestion that the victim was sober and consented to having sexual intercourse with him at the time is essentially inconsistent with the content of the WhatsApp communication records.

58.The victim demanded from the appellant a payment of $30,000 for an abortion and recuperation. She even said that he had to explain to the police and reiterated that a report had already been made and she would make a report to the police again. Obviously, the appellant worried the matter would alert the police and hence made every effort to persuade her not to make any police report and to cancel any report made.

59.In fact, the victim had not made any police report. It was only when she was discontented with the appellant’s blackmail accusation against her that she decided to go to the police station with her mother. The victim said the appellant knelt down to beg her not make any report, which showed his extreme fear of her making any report to the police.

60.Although the appellant did not say that his confessions were made under oppression, in view of the contents of P11, he might be in fear that the victim would make or had made a police report, and so he admitted her accusations in the hope of persuading her not to make any report or to cancel any report made.

61.The Judge asked the jury to consider three points: (1) whether the appellant had uttered any words which could be regarded as constituting a confession; (2) whether those words could be regarded as a confession; and (3) whether the contents of those confessions were true.

62.The Judge did stress to the jury that even if they thought the relevant WhatsApp communication records and audio recordings amounted to the appellant’s confessions to X’s accusations, they were still required to consider the appellant’s confessions as to “whether it was possible that the accused might have just tried to go along with X so as to prevent her from making any police report, and hence they were not true!” The Judge also went further and made it clear to the jury that if they were not sure that the appellant’s confessions were true, they must disregard those confessions. The Judge directed the jury to consider if the appellant’s confessions were true, and in case they were not sure, they must ignore and disregard those confessions.

63.Of course, the truthfulness of an accused’s confession is one of the issues that a jury must consider. In considering if the confession made by an accused is true, they have to take into account the accused’s allegation that the confession was made as a result of oppression.  If the jury finds that the accused’s confession was made as a result of oppression, it should be excluded from evidence because the content of a confession obtained by oppression may not be true and is therefore not reliable. Not only because such confession is not reliable but also because no one should be compelled to incriminate oneself by confessing and any confession obtained as a result of oppression has to be rejected. (See R v Mushtaq [2005]1 WLR 1513 at p1530 E-G).  Therefore, if the confession made by an accused is, or may have been, obtained as a result of oppression, the trial judge should direct the jury to exclude such confession from the evidence. The trial judge should not direct the jury that they have to decide whether the contents of the confession concerned are true before deciding whether such confession should be disregarded. This is the principle laid down in the above case of Mushtaq.

64.The Hong Kong Court of Final Appeal has held in the caseof HKSAR v Pang Hiu San (2014) 17 HKCFAR 545 that the principle laid down in Mushtaq is applicable to Hong Kong, and has made clear that a trial judge is required to give the jury the Mushtaq direction under the following circumstances:

“Where there is a possibility that the jury may conclude (a) that a statement was made by the defendant; (b) the statement was true; but (c) the statement was or may have been induced by oppression.”

65.Although the victim was not a law enforcement officer, since she suspected that the appellant had taken advantage of her drunkenness and raped her, she questioned the appellant many times in order to find out the truth. In the course of questioning, not only had she lied to the appellant that she had made a report to the police, she had also threatened him by saying that she would complain to the police again if he insisted on denying it.

66.It was under such circumstances that the appellant admitted having “raped” the victim. It was also obvious that the Judge also thought the appellant’s confessions might have been made to go along with the victim so as to prevent her from making any police report.  The Judge also found that what the victim had done might amount to oppression.

67.However, the Judge in directing the jury still emphasised that they had to consider if the appellant’s confessions were true. The jury was directed that if they were not sure of the truthfulness of the appellant’s confessions, they must disregard those confessions.

68.The directions given by the Judge to the jury did not meet the requirements of the Mushtaq direction. The Judge should have directly made it clear to the jury that if they thought the appellant’s confessions were or might have been obtained by oppression or in consequence of anything improperly done and/or said, they must disregard such confessions.

69.In view of the above circumstances, the conviction of the appellant is not safe or satisfactory.

70.Mr Eddie Sean, SADPP, for the respondent asked this court to apply the “proviso” to uphold the guilty verdict against the appellant.  However, in our view, if the appellant’s confessions in P11 and P12 were excluded, the victim would become the only source of evidence against the appellant, and it should be open to the jury to determine whether they would accept her evidence and convict the appellant. Although the appellant’s defence is extremely incredible, this is not a ground sufficient to enable this court to apply the “proviso”.

71.This court grants the appellant leave to appeal against conviction and allows his appeal. The conviction is quashed, and at the same time it is ordered that should the respondent apply for a retrial, the application should be made within 14 days after this judgment is handed down. It is also ordered that the appellant should continue to be remanded in custody pending further direction from the court.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.