HKSAR v. Yip Ka Yu

Case No.CACC 185/2023[2024] HKCA 390

Court

Court of Appeal

Date09 May 2024

Judge—

Case Document

100%Judiciary

CACC 185/2023

[2024] HKCA 390

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 185 OF 2023

(ON APPEAL FROM HCCC NO 128 OF 2022)

_______________

	HKSAR	Respondent
	v
	Yip Ka Yu (葉嘉宇)	Applicant

_______________

Before:

Hon Zervos JA in Court

Dates of Hearing:	7 and 9 May 2024
Date of Judgment:	9 May 2024

________________

J U D G M E N T

________________

1.On 13 September 2023, the applicant was convicted of one count of rape, contrary to section 118(1) of the Crimes Ordinance (Cap 200), after trial before Deputy Judge Woodcock (“the Judge”) and a jury. On 5 October 2023, the Judge sentenced the applicant to 5 years and 3 months’ imprisonment.

2.On 13 October 2023 the applicant applied for leave to appeal against his conviction. He subsequently applied for bail pending appeal, but as the parties had filed their respective submissions in respect of the leave application, it was agreed that the leave application be heard at the same time.

The evidence at trial

3.The oral evidence at trial came from the complainant, “X”, and her friend, “A”, whom X contacted after the incident. There was no evidence from the applicant. He exercised his right of silence, and it was an admitted fact that when cautioned about the alleged rape, he said, “I have nothing to say”.[1]

4.X, who was 17 years old and a Form 5 student at the time of the offence, testified that she met the applicant, who was 26 years old, for the first time on 11 March 2021. They met on the seaside promenade at Siu Sai Wan, where the applicant was fishing, and X was with a group of friends who were chatting and singing. The applicant and X exchanged contact details and thereafter communicated almost daily. On 16 March 2021, the applicant invited X for dinner after his football game. X agreed and suggested a restaurant. They met at about 10.00 pm that night. The applicant was driving a car and he suggested they buy some food and go somewhere nice to eat inside the car. After buying some food, the applicant drove to Tai Tam and parked his car near the Tai Tam reservoir. They sat in the front seat and ate their meal.

5.After they finished eating, , they moved to the back seat of the car, on the applicant’s suggestion that it would be more comfortable.[2] They sat close together, and X raised no objection.[3] They chatted, and the applicant put his arm around X’s shoulder and started kissing her. X testified that she tried to push the applicant away. After he kissed her, X asked him, “Do you have a girlfriend?” or “You treat everybody like this?”, which upset the applicant. X felt sorry and patted his back to comfort him. X said that she comforted the applicant because she felt sorry for upsetting him, but it did not mean she liked it. The applicant kissed X again. She said she kept her mouth closed and tried to push him away. He started fondling her breasts. She said that the applicant removed his pants and underpants and then tried to pull down her pants, but she said, “No”. As he was pulling off her pants, she was pressing his hands, saying “No”. He removed her pants and underpants and lifted her legs so that she lay on the back seat. The applicant put his finger in X’s vagina, and when he tried to put his penis into her vagina, X said, “No”. The applicant told her that he would not put his penis inside her and would only put it outside. X felt and saw that the applicant had inserted his penis into her vagina. She said the applicant thrust his penis in and out for about 5 to 10 minutes.[4] She said it was painful, and she repeatedly said, “No”. She acknowledged that she did not physically resist or move to show resistance or try to stop the applicant. She explained she did not run away because she did not know where they had parked and saw very few cars in the vicinity.

6.X noticed that the applicant had not used a condom and disagreed that the applicant had only penetrated her with his finger. He said that after the applicant withdrew his penis, he asked her to sit up and perform oral sex on him. She refused several times, but the applicant kept asking her, and as she wanted the incident to finish, she performed oral sex on him. She testified that she gave him “a blow job” for a second time, even though he could see that she was very uncomfortable.[5] She did not see him use a condom.[6]

7.The applicant received a message from a friend asking him to go fishing, and X insisted that he should go.[7] They got dressed, and the applicant drove X home. She alighted from the car but returned to retrieve her mask.[8] It was about midnight when she returned home.[9] It was an admitted fact that she returned home at 12:34 am on 17 March 2021.[10]

8.When X arrived home, she went to the toilet and noticed bloodstains on her underpants. She said that she had no sexual experience before this incident.[11] She telephoned a friend (referred to as “A” at trial), but she did not take her call. She then texted a message to A saying that, “I felt like I seemed to be raped.” She explained that she did not consent to the sexual act and had refused the applicant many times, but he continued, so she thought it was rape.[12] She called another friend and told her that, “I felt like I seemed to be raped”. Her friend came to her home, and they chatted until about 4 am. They discussed that they should go to the Family Planning Clinic to have contraception measures as there was a risk of pregnancy. She went the next afternoon to the Family Planning Clinic, where the doctor told her that she needed to contact the police, but she refused on that day. She explained she had not made up her mind as she was thinking about the trauma and the proceedings that would follow by contacting the police.[13]

9.X had a psychiatric appointment the following week, but because of the incident, she made an earlier appointment. Her psychiatrist saw her in the afternoon of 19 March 2021 and arranged for her to be hospitalised for observation and a body check. On the next day, 20 March 2021, a report was made to the police by personnel at the hospital and X was examined by a doctor. The doctor found no recent external bodily injury to X but found a recent tear of her hymen, which “was a residual sign of previous penetrative injuries to the private parts, including sexual intercourse”.[14]

10.After the incident, X had wiped her vagina with a tissue which she kept together with the clothes she wore at the time. She handed over these items to the police.[15] After she had been to the Family Planning Clinic, she also made an audio recording on her own mobile telephone of the incident if she reported the matter to the police.[16] She confirmed in her evidence that in the audio recording, she said, “after the incident, I believe from his point of view he might not think this was rape”.[17]

11.A testified of X’s complaint to her immediately after the incident.[18] At 12:44 am, X wrote to her friend A, “I think I just got raped”. A did not respond, except to send her hugs, which made X respond, “Do you even know what I’m talking about?” She told A it was, “The guy I told you met at seaside”. When A asked her if she met him, she responded, “B don’t ask me dumb questions”. There were many messages from A that included, “Call me at any time, I will face it with you. Let’s call the police”. “I will accompany you.” “Don’t let anything happen to you.” There were no responses or replies from X by message. A said she knew the guy X was referring to was a boy she met on 11 March 2021 at the seaside in Siu Sai Wan. X had given her details or told her about meeting that boy and told A he was a footballer and was 1.9 metres tall. A said they had a conversation over the phone where X described what happened to her. The boy drove her to a place far away, which was very dark and remote. A’s evidence was that X told her they moved to the back seat of the car to have a rest where the boy touched her. X said no to the boy, but he carried on molesting her. Then, the boy requested oral sex and sexual intercourse, and X finally did it. X told A she sucked his penis, and then later, the boy penetrated her vagina with his penis but did not insert it deeply. X told her that after this, she told the boy a few times she did not feel well and wanted to go home, so he drove her home.

12.It should be pointed out that the Judge reminded the jury that A’s testimony was evidence of recent complaint. She gave the jury the standard direction that recent complaint evidence was not independent evidence of what had happened but they were entitled to consider if it helped them decide whether or not X had told the truth.[19]

13.As already noted, the applicant elected not to testify or call any witness on his behalf. [20] It was the defence case that the applicant had consensual sexual activity with X.[21] In the back seat of his car, he penetrated X’s vagina with his finger but did not have sexual intercourse with her.[22] X also willingly performed oral sex on two occasions.[23] There was no resistance from X, who did not express any disapproval of the applicant’s advances.[24]

The offence of rape

14.The offence provision of rape is section 118 of the Crimes Ordinance, which provides:

“(1) A man who rapes a woman shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life.

(2) A man who induces a married woman to have sexual intercourse with him by impersonating her husband commits rape.

(3) A man commits rape if—

(a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and

(b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it.

(4) It is hereby declared that if at a trial for a rape offence the jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed.”

15.It is appropriate to note section 118(4), as it is of particular relevance to the applicant’s complaint of his conviction.

The issues at trial

16.As summed up by the Judge to the jury, the issues which they had to determine were:[25]

(a)  Whether the prosecution had proved beyond reasonable doubt that there had been sexual intercourse between X and the applicant, namely penis penetration by the applicant into X’s vagina.

(b)  If the answer to (a) was negative a verdict of not guilty should be returned. If it was positive, the jury should consider whether the prosecution had proved beyond reasonable doubt that X did not consent to the sexual intercourse.

(c)  If the answer to (b) was negative, then a verdict of not guilty was to be returned. If it was positive, the jury should consider whether the prosecution had proved beyond reasonable doubt that, at the material time, the applicant (i) knew X was not consenting or (ii) was reckless as to whether X was consenting.

(d)  If the answer to either (c)(i) or (ii) was positive, the jury should find the applicant guilty. Otherwise, a not guilty verdict should be returned.

17.The Judge directed the jury as to the meaning of “recklessness”. She instructed them that if they were sure that the applicant realised that there was a risk that X was not consenting to sexual intercourse and he carried on anyway, then the applicant was reckless as to whether X was consenting.[26]

The ground of appeal

18.The applicant essentially advances a single ground of appeal in which he complains that the Judge should have given a genuine and mistaken belief direction. It is argued by Mr Charles Chan, with Mr Brian Yu, for the applicant, that on the evidence, the jury should have been invited to consider whether the applicant might have believed that X had consented to have sexual intercourse with him.[27]

19.It is conceded by the applicant, except for the absence of an honest belief direction, the summing-up of the Judge was otherwise fair and comprehensive.[28] It was also conceded that defence counsel did not request the Judge to give an honest belief direction, even though there was discussion about the directions that should be given to the jury.[29]

20.The Specimen Direction that Mr Chan submits should have been given to the jury is set out in Specimen Directions in Jury Trials, 2020 Revision, Chapter 111, Sexual Offences. It provides the following direction where honest but mistaken belief is a live issue:

“If it is or may be the case that the defendant genuinely believed that she was consenting, then he cannot be guilty of rape. It is not for the defendant to prove that he genuinely believed that she was consenting; rather, it is for the prosecution to prove, so that you are sure, that he did not believe that she was consenting to sexual intercourse. And what if he held that belief but was mistaken? Well, if it is or may be the case that he held a genuine but mistaken belief that she was consenting, then you must acquit him. In deciding whether or not he held or may have held that belief, you should have regard to the existence or absence of reasonable grounds for such belief and to all the surrounding circumstances but, that said, the key question is whether you are sure that he himself did not hold that belief. In other words, if you conclude that, objectively viewed, there were no reasonable grounds for such a belief, you may take that into account in deciding whether the defendant himself held or may have held that belief. But the ultimate question remains whether, reasonably or not, he himself genuinely held or may have held that belief.”

21.As pointed out in the commentary of Specimen Direction 111, in England and Wales, significant changes have been made to the law relating to sexual offences by the Sexual Offences Act 2003. These changes have not been followed in Hong Kong. One of the changes under the 2003 Act was to redefine the mens rea for rape, particularly in respect of honest belief.[30] By way of observation, it would seem prudent for the changes in England and Wales, as well as those in other jurisdictions, to the law relating to sexual offences, be examined and considered in the context of Hong Kong.

22.The honest belief direction in sexual offences has its origins in the House of Lords decision of R v Morgan[31]. However, such a direction is only necessary where there is evidence leaving room for that possibility: R v Adkins[32] and R v Haughian[33]. In HKSAR v Lee Sze Lung and Anor[34], the Court of Appeal examined the authorities on honest belief and noted that in Cheung Moon Tong and Another v The Queen[35], the Court of Appeal held that a Morgan direction was not necessary in every case but only when the effect of the evidence as a whole was that the applicant believed, or may have believed, that the complainant was consenting when she was not. It has been stressed by this Court that it would depend upon the particular circumstances of the case as to whether an honest belief direction should be given:HKSAR v Ma Kin Yiu[36]; R v Kwok Tak Ming, Danny[37]; HKSAR v Yiu Chi Wang[38].

23.The defence case was that the applicant did not have sexual intercourse with X, but that she willingly engaged in other sexual activity with him and did not express any disapproval to his sexual advances.

24.After the completion of the evidence and before the closing addresses, the Judge briefly discussed with counsel the issues of the case and the directions that should be given to the jury.[39] The Judge noted that this was a case of “rape or no rape”, and defence counsel agreed. He mentioned that the prosecution had highlighted the two elements of rape, namely “penetration” and “consent”, but he added that if there was consent, there was the additional element of the knowledge of the applicant. He was asked if there were any other directions that should be given, and he answered in the negative.

25.When defence counsel gave his closing address, he mentioned that the prosecution had to prove three elements of the offence of rape. He discussed the elements of “penetration” and “consent”, and added that if they were sure that X did not consent, there was one more matter that they had to consider:[40]

“That is, whether the Mr Yip knew Ms X was not consenting or Mr Yip is reckless as to whether Ms X was consenting. Here, this is a subjective test. That means, what Mr Yip thinks and believes. You have to assess the belief a Mr Yip and not what Ms X is thinking in her own mind. Again, you will hear a full direction from her Ladyship.”

26.The defence submitted that there was no penetration, but if the jury were sure there was, then there was the question of consent, and on this issue they had to consider whether the applicant knew X was not consenting or was reckless as to whether she was consenting. The defence had not put its case on the basis that the applicant had an honest but mistaken belief that X was consenting. The defence asked the jury to consider the third element as to knowledge, that is, whether the applicant knew that X was not consenting or was reckless as to whether she was consenting.

27.At this juncture, it is appropriate to refer to the Specimen Direction in respect of the third element, which reads as follows:

“Knowledge

If, however, you are sure that the defendant had sexual intercourse with [the complainant] and also that she did not consent, then you must go on to consider the third element, that is, whether the defendant knew that she was not consenting [or was reckless as to whether she was consenting].

It is for the prosecution to prove that the defendant knew that [the complainant] did not consent [or was reckless as to whether she was consenting].

As to whether he knew she was not consenting, you might ask how the prosecution can prove that he was aware that [the complainant] did not consent without an admission from him to that effect. The prosecution asked you to infer or to conclude from other facts which it has set out to prove, that the defendant must’ve known and that he did indeed know that she did not consent. I will shortly refer to this evidence and to the contentions which the defendant makes in relation to them.

If you find that at the time of the act of intercourse, the defendant actually knew that [the complainant] was not consenting, then the third element of the charge has been made out.

Recklessness

If you are not sure that the defendant knew that [the complainant] was not consenting, you must then asked whether the prosecution has proved that the defendant was reckless as to whether she consented to sexual intercourse.

The defendant was reckless as to whether [the complainant] consented to sexual intercourse if you are sure that he realised that there was a risk that she was not consenting and carried on anyway [when in the circumstances known to him it was unreasonable to do so].”

28.The Judge, guided by the Specimen Direction, instructed the jury on the issue of consent:[41]

“It is the prosecution’s case and X’s evidence that X said she said no to him on many occasions, and when he took her trousers and underpants off at the same time, she tried to press his hands down to stop him but failed. She said no when he penetrated her vagina with his penis, when he held her legs up with both of his hands.

It is the defence case that the defendant initiated physical contact and there was sexual activity but no penis penetration. All physical, sexual and intimate contact was with the consent from X. She helped him take off her pants and underpants in the small area of the back seat. The defendant only rubbed in his penis against her vagina, with her consent, but did not penetrate her vagina with it. She even moaned pleasurably when he was doing it.

He did ask for oral sex and she did perform it on him willingly. He did not physically force her or make her do it which X agreed is true. From the very beginning there was no resistance, nor did she say anything to tell the defendant that she did not want to be kissed or touched intimate. If the prosecution has failed to prove that X did not consent then you must find the defendant not guilty.”

29.The Judge then went on to instruct the jury on the issue of knowledge and recklessness:[42]

“The prosecution asked you to infer or to conclude from X’s evidence, and other facts which it has set out to prove, that the defendant must have known and that he indeed did know that she did not consent.

If you are sure that the defendant penetrated X’s vagina with his penis and she did not consent to that act and he knew at the time that she did not consent, then that completes the offence of rape, and you must find him guilty.

However, if you are not sure that the defendant knew that X was not consenting, you must then ask yourself whether the prosecution has proved that the defendant was reckless as to whether she consented to sexual intercourse.

Recklessness. The defendant was reckless as to whether X consented to sexual intercourse if you are sure that he realised that there was a risk that she was not actually consenting to sexual intercourse, and he carried on anyway. The prosecution says, if you find X credible, then the defendant must have realised from what she said to him in the car, that there was a risk she was saying no to sexual intercourse but ignored her and carried on to penetrate her anyway.

The defence say X did not say no at any time and X agrees she did not physically resist him by struggling or moving her body to deny him access to her private parts, so he did not see any risk nor was reckless. The defence highlight her own statement in her audio record made on 18 March, where although she said she did say no repeatedly in that audio record, she also said she did not, ‘Completely refuse strongly’, at the beginning and said, ‘After the incident, I believe from his perspective, he may not consider this a kind of rape’.”

30.Mr Chan sets out the following matters emanating from X’s evidence that he submits would give rise to or be relevant to the defence of honest belief. He also sets out, very responsibly, the evidence of no consent, which he has underlined.

(1)  The applicant put his hand over or around her shoulder when they are buying food;[43]

(2)  X did not object to driving her to a remote place;[44]

(3)  X agreed to move to the rear seat with the applicant;[45]

(4)  X did not object when the applicant put his hand around X’s shoulder (or her waist[46]) when they had moved to the rear seat;[47]

(5)  X did not tell the applicant that she did not want to be kissed;[48]

(6)  Despite that X tried to push the applicant away when he first kissed her, she nevertheless apologized to the applicant;[49]

(7)  The applicant kissed her again but X “kept her mouth closely closed tight and tried to push (the applicant) away;[50]

(8)  X repeatedly tried to resist and said “No” to the acts of the applicant between the second round of kissing and penetration;[51]

(9)  X repeatedly said “No” during the penetration;[52]

(10)  However, X did not physically resist or move to show resistance or try to stop the applicant during the penetration;[53]

(11)  X refused to perform oral sex on the applicant a few times, yet she did it for the applicant;[54]

(12)  Against the above, X said she did not “completely refuse strongly” according to her own audio-recording;[55] and

(13)  X also said “After the incident, I believe from his perspective, he may not consider this a kind of rape”.[56]

31.Mr Beney Wong, for the respondent, opposes the application, submitting that the defence of honest belief (i) was not part of the defence case; (ii) was not mentioned by defence counsel in his closing speech; and (iii) there was no request for such a direction from defence counsel at any stage of the trial.[57]

32.Mr Wong referred to Mak Kin Yiu[58], where it was held that a court is not bound to give a direction on “genuine belief” in every rape case, and its necessity depends on the circumstances, in particular the evidence of the victim and the defendant. The court would give such a direction only where there was room for a defence of a mistaken belief. He also referred to R v Taylor[59], where the English Court of Appeal held:[60]

“It should be plainly understood at the outset that there is no general requirement that such a direction should be given in all cases of rape. The nature of the evidence, and of course particularly the evidence given by the complainant and the defendant, will determine whether or not such a direction is advisable and whether to given such a direction would be fair. There must be room for mistake in the case before such a direction is required.”

33.Mr Wong submits that given the acute conflict between X’s evidence and the applicant’s defence in this case, once the jury had accepted the evidence of X to the effect that X had repeatedly said “No” during sexual intercourse and the resistance she put up when the applicant was pulling down her pants and underpants, there was no room for a genuine mistaken belief by the applicant that X was consenting to sexual intercourse. He further referred to the following comments in R v Haughian[61]:

“In cases such as the present in which the conflict of evidence between the complainant and the accused is acute and in which, if the jury decide that the account given by the complainant is truthful, there is no room for a genuine but mistaken belief by the accused that she was consenting, any over elaborate direction to the jury on the question whether the Crown has proved that the accused knew that the complainant was not consenting could only tend to confuse them and would be unnecessary.”

34.I should point out that the difference in this case is that the applicant did not give evidence, and the case rested on whether the jury accepted or rejected X’s evidence.

35.It is also argued by Mr Wong that given the verdict by the jury in this case, either the jury was satisfied that the applicant knew X was not consenting, in which event there would be no issue of honest belief, or the jury found that the applicant was reckless as to X’s consent, namely he did not careless whether X was consenting. In the latter case, the applicant could not have believed that X was consenting and it follows that any suggestion of mistaken belief of consent would have been rejected. He refers to the decision of the English Court of Appeal in R v Satnam and Kewal[62], where it was stated:

“In summing-up a case of rape which involves the issue of consent, the judge should, in dealing with the state of mind of the defendant, first of all direct the jury that before they could convict of rape the Crown had to prove either that the defendant knew the woman did not want to have sexual intercourse, or was reckless as to whether she wanted to or not. If they were sure he knew she did not want to they should find him guilty of rape knowing there to be no consent. If they were not sure about that, then they would find him not guilty of such rape and should go on to consider reckless rape. If they thought he might genuinely have believed that she did want to, even though he was mistaken in his belief, they would find him not guilty. In considering whether his belief was genuine, they should take into account all the relevant circumstances (which could at that point be summarised) and ask themselves whether, in the light of those circumstances, he had reasonable grounds for such a belief. If, after considering those circumstances, they were sure he had no genuine belief that she wanted to, they would find him guilty. If they came to the conclusion that he could not care less whether she wanted to or not, but pressed on regardless, then he would have been reckless and could not have believed that she wanted to, and they would find him guilty of reckless rape.”

36.Mr Wong refers to Line J’s remarks in HKSAR v Lee Sze Lung, when he addressed the issue of recklessness:

“126. It demanded proof that the first applicant must at least know that there was a risk of the woman not consenting. They jury was told that, before they could convict, they had to be sure that the first applicant at least knew or realized that there was a risk that PWl was not consenting. A genuine mistake could allow for no such knowledge or realization. Thus if the juror did turn his mind to whether the first applicant may have mistakenly believed PWl was consenting when she was not, he would have been bound to acquit as the prosecution would have failed to prove knowledge of the risk of no consent. ...”

37.As I have already observed, there was no evidence from the applicant. It was his right not to give evidence and require the prosecution to prove its case. The evidence before the jury consisted of the oral testimony of X and A together with the admitted facts and exhibits. The evidence that Mr Chan has identified is relevant to the issue of honest belief, which refers to X’s evidence that she repeatedly said “No” to the applicant throughout her ordeal. A consideration of the evidence as a whole, coming from X and A, there was no scope for a genuine but mistaken belief on the part of the applicant that X was consenting to sexual intercourse. On X’s account of what had occurred, the applicant must have either known that she was not consenting or, if he did not have that knowledge, he must have been reckless as to whether she was consenting or not.

38.The jury, by its verdict, accepted X’s evidence that the applicant had sexual intercourse with her and that she did not consent to it. In addition, the jury must have been satisfied to the requisite standard that the prosecution had proved that the applicant either knew that X did not consent, or he was reckless as to whether she was consenting or not.

39.As pointed out by the authorities, an honest belief direction is only necessary when the effect of the evidence as a whole shows that the defendant believed or may have believed that the complainant was consenting. The evidence when considered as a whole, does not support such contention.

40.In the circumstances, it was never the defence case that the applicant may have mistakenly believed X to have been consenting. His case was that no sexual intercourse took place, except for other sexual activities that X was willing to engage in. X repeatedly said “No” and resisted, even though there were times she succumbed to the sexual advances by the applicant, but that was out of concern for her personal safety, having been taken to an isolated location by someone she hardly knew.

Conclusion

41.I have decided that the ground of appeal is not reasonably arguable. Accordingly, I refuse the applicant leave to appeal his conviction and bail pending appeal.

42.The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.