HKSAR v. Chow Ka Wai

CACC 187/2023

[2025] HKCA 202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 187 OF 2023

(ON APPEAL FROM HCCC NO 35 OF 2023)

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J U D G M E N T

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1.On 6 September 2023, following a trial before Recorder Martin Hui, SC, (the judge) and a jury, the applicant was convicted of one count of rape (Count 1) and acquitted of one count of attempted rape (Count 2). The judge sentenced the applicant to 7 years’ imprisonment.

2.The applicant now applies for leave to appeal against conviction. He had originally applied for leave to appeal against sentence but abandoned the application by notice filed on 14 March 2024.

3.The applicant in his perfected grounds of appeal filed on 11 March 2024 challenged his conviction on the basis of three grounds. The first ground complained that the rape conviction was inconsistent with the acquittal for attempted rape. The second ground averred that the judge failed to direct the jury properly on the evidence of distress. The third ground was a general complaint suggesting that the conviction was unsafe and unsatisfactory. On 23 April 2024, the applicant applied for bail pending appeal before Anthea Pang JA, who refused the application after consideration of the grounds of appeal.

4.The applicant is now represented by Ms Charlotte Draycott, SC, with Mr Martin Li, who filed on his behalf a new set of grounds of appeal against conviction in an Amended Perfected Grounds of Appeal filed on 11 September 2024.

The brief facts

5.The sexual offences alleged against the applicant involved him in attempting to rape and rape his domestic helper (referred to as X) at the family home.

6.At around 3:30 am on 28 July 2021, while X was sleeping in her bed on the rooftop of the family residence, the applicant attempted to rape her. He was unsuccessful because he could not get an erection.[1]

7.At around 9:00 pm on 29 July 2021, the applicant approached X when she was alone, so she turned on her mobile telephone to record any exchange between them. In the recording, X said, “No, No, No … Sin Sang No Please …”. The applicant asked, “Why Not? and she said, “No”. He said, “You said yesterday you want …”, and she relied “No …Sir I’m not saying that”. He repeated, “Yesterday, you … let me insert it in”, to which she responded, “I didn’t, I didn’t” (Exhibit P58).[2]

8.On the evening of 9 August 2021, the applicant and his wife had been entertaining a guest at home. At around 2:15 am on 10 August 2021, while X was lying in her bed, the applicant allegedly raped her.[3] After having sexual intercourse with X, the applicant asked X if she was having her period but she did not respond. The applicant then left. She wiped her vagina with a tissue and noticed there was blood and fluid on it. A few days later, she also noticed that her right hand had been injured during the rape.[4]

9.At around 8:30 am on 10 August 2021, the morning of the alleged rape, X sent three voice messages via WhatsApp (Exhibit P39) to her friend Ah Tan (PW5). She told him that her employer had sexually harassed her. He suggested that she should seek assistance from Christian Action. Later at around 10:30 pm that day, she told Ah Tan that she had contacted Christian Action.[5]

10.Between 2:00 and 3:00 pm on 11 August 2021, X spoke to the applicant’s wife about the incidents with the applicant.[6] She recorded her conversation with the applicant’s wife.[7] Afterward, she went again to Christian Action for assistance. At around 7:55 pm that evening, X reported the incidents to the police at Tsuen Wan Police Station.

11.A forensic examination of X’s underpants revealed that a semen stain in the crotch area matched the applicant’s DNA. Menstrual blood was also found at the opening of X’s cervix. The bruising on X’s right index finger established that it could have been caused approximately 2 to 3 days before the examination on 12 August 2021.

12.The applicant was arrested and interviewed under caution twice on 13 August 2021. In the second part of the second interview, he responded to questions about the incidents with X, by saying “I don’t remember”.[8]

13.The applicant testified at trial. He did not dispute that he had sexual intercourse with X on 10 August 2021. He claimed that the sexual intercourse and the other acts of intimacy with X were at her instigation and with her consent.[9]

14.The applicant’s family residence was in a three story village house. He leased the top two floors and the rooftop. The living room, kitchen and a bathroom were on the first floor, and the bedrooms were on the second floor. There were two CCTV cameras located in the living room. X had her sleeping quarters on the staircase of the rooftop.[10]

15.The applicant said that around midnight on 28 July 2021, when he was tending to the fish tank on the rooftop, he heard X call out his name from her bed. She asked him if he wanted her and wrapped her arms and legs around him. The applicant embraced X, and they kissed, touching each other’s private parts. The applicant asked X what she wanted, and she replied “give me money”. He offered her $500 but she said she wanted more, suggesting $1,000. At that moment, the applicant heard his wife approaching the rooftop, and they immediately stopped.[11]

16.On the evening of 29 July 2021, X approached the applicant again after he tended the fish tank. She pressed her back against him and touched his private parts over his pants. He responded by embracing and touching her. However, the applicant stopped touching X and walked away after she said, “No”.[12]

17.The applicant explained that X’s recording of their conversation on 29 July 2021 was a reference to the incident on the previous day. He said that X had offered sexual services to him and let him insert his finger into her vagina and that was what he was referring to when he said, “yesterday you want” and “you let me insert”. He denied that he said, “I cannot do it last time. Now I can do it” to X. He stated that he felt confused when X said no after he touched her, given that she was the one who had initiated the intimacy between them.[13]

18.At around 9:00 pm on 9 August 2021, the applicant said that he had been entertaining and felt a bit tipsy. A little later, when he was on the roof adjusting the fish tank, X approached him and said, “tonight 500 okay”. He said, “Okay, I come to you later” and went back to the living room, where his wife and friend were drinking. Later after midnight on 10 August 2021, he went up to the rooftop to have sex with X, but he took a spare mobile telephone, a Huawei telephone, and turned on the audio recording. He found her behaviour on 29 July 2021 a bit strange, and this concerned him, so he placed the telephone under the mattress of her bed. He said the recording (Exhibit D6) captured the applicant and X having sexual intercourse. After he cleaned himself up and put on his pants, he turned off the recording on his telephone. He went downstairs and saved the audio recording onto an SD card in the Huawei telephone. He explained that he no longer had the Huawei telephone because it had been damaged, but he had the SD card.

19.As part of his defence, the applicant claimed that on the morning of 10 August 2021 X demanded $50,000 from him to keep quiet about their sexual relationship. He accepted that he did not tell X of the audio recording when she made her demand for money, but this was because X had threatened him that she would tell his wife about their sexual relationship.[14] After he consulted a friend, he refused X’s demand.

The grounds of appeal

20.Ms Draycott advances three grounds of appeal against conviction.

Ground 1

21.Ground 1 avers that the judge was wrong to confine the jury’s consideration of Exhibit D6 to simply knowing what words were said, as the authenticity of the exhibit was central to the applicant’s defence of consent. In addressing this ground of appeal, it is appropriate to set out the agreed transcription of the audio recording, which was as follows:[15]

“1. 00:08 M: Wati.

2. 00:20 F: Ah …… shit.

3. 00:38 F: Oh … shit.

4. 00:52 F: Shit.

5. 01:08 M: Change.

6. 01:42 – F: Arr … shit …. arrr.

01:59

7. 02:12 F: Shit.

8. 02:42 F: Oh shit.

9. 03:48 F: Fuck.

10. 04:02 F: Oh shit.

11. 05:49 F: Shit.

12. 06:44 M: Oh.

13. 06:54 F: Shit.

14. 07:34 F: Oh … shit.

15. 08:27 F: Oh … shit … faster.

16. 08:47 F: Ah …… shit.

17. 09:17 M: Shoot where?

18. 09:18 F: There.

19. 09:21 M: Shoot where?

20. 09:23 F: Hmmmm.

21. 09:30 M: Shoot inside?

22. 09:33 – M: Yes again? Why?

09:46 (Incomprehensible) …… shoot inside.

23. 09:48 F: There yeah.

24. 10:22 M: Tissue … tissue … tissue … tissue …

25. 10:24 F: Tissue here.”

22.The applicant had testified that the audio recording involved him and X having sexual intercourse, which showed that the sexual intercourse had been consensual. As accepted by the parties, there is very little talking between the two participants on the audio recording, which principally consisted of the sound of movement and groaning. X testified that the woman heard in the recording was not her. The prosecution challenged the genuineness of the audio recording, arguing that it was not a recording of the incident but one with another woman.[16] Given the opposing positions of the parties in respect of the audio recording, there was an issue as to whether it was genuine and whether it indicated consensual sexual intercourse between the applicant and X. The way the respective cases for the prosecution and defence were conducted, the jury would have been in no doubt that there was an issue that they had to decide as to whether Exhibit D6 was an audio recording of the applicant and X having sexual intercourse.

23.Ms Draycott argues that the provenance of the tape and its potential to support the applicant’s case were facts to decide within the sole scope of the jury. She argues that the judge, by telling the jury that the only reason they heard the tape was “so that you know what was said in the recording”[17] prevented them from considering these important questions, and hence this was a misdirection. She asks rhetorically what was the point of the jury knowing what was said in the recording if they could not decide whether it was genuine.

The production of the audio recording

24.During X’s testimony, defence counsel raised with the judge that she would put to X an audio recording allegedly of the sexual intercourse between the applicant and X. This prompted the judge to mention that the provenance of the audio recording was a consideration in respect of its admissibility, that is its relevance and prima facie authenticity. Defence counsel explained that the audio recording was on an SD card which was originally on the applicant’s telephone, adding that how it came to be on the SD card was “a matter of whether it is believed”.[18] She indicated that the time space on the SD card correlated with the times on the CCTV footage and X’s name was mentioned at the beginning of the audio recording.[19] She said that at the end of the recording the applicant asked for tissues to clean, which would support the defence of consent.[20]

25.Defence counsel disclosed that the recording was not on the applicant’s telephone, which was seized. It was recorded on another telephone and moved to an SD card, and the other telephone was not available because it had been “broken”.[21]

26.Prosecuting counsel sought a ruling on the admissibility of the audio recording. There was discussion about how this should be done, and whether it was appropriate to hold a voir dire. It was agreed to put the audio recording to X to ask her who the people on the tape were. The judge questioned whether the audio recording may or may not raise the possible issue of voice identification in due course. He noted that the audio recording consisted of a voice or voices and whether there would be an issue of asking the jury to compare the voices. Quite correctly, he said there were relevant principles regarding voice identification, and requested counsel to give the matter some thought and whether he had to deal with it in the summing-up.[22]

27.Defence counsel mentioned the number of the audio file, the modified date was 10 August 2021 at 12:26 am (the time of transfer to the SD card) and the duration of the recording was 11:53 minutes. The judge inquired about the date the file was actually created.[23] She correlated the particulars of the audio file with the timestamp of the CCTV footage in Exhibit D5, when the applicant left and returned to the living room.[24] Based on the information record and the “coordination or the close proximity of the time”, it was submitted that the defence had proven prima facie authenticity of the audio recording.[25]

28.It was agreed to put the audio recording to X because if she acknowledged that the voice of the woman was her, then it could be admitted into evidence on this basis. Otherwise, if she denied it was her, it would be for the defence to seek to produce it into evidence, which is what happened. The applicant testified and produced the audio recording.

29.The judge first addressed Exhibit D6 when summarising X’s evidence in his summing-up. It was during cross-examination that the audio recording was put to X. He said:[26]

“Now, you recall that the defence produced the recording, and audio recording, alleging that to be the recording of sexual intercourse with Ms X on 10 August, which is Exhibit D6. Now, before she was played the audio, Ms X agreed that her bed is simply a mattress placed on top of some wooden box and cabinets and without a proper bedframe. And when she listened to the audio and asked about the male voice, she said and immediately recognised that male voice to be the defendant’s. And the male voice, we all recall, started by calling out Ms X’s name, Wati. She, however, denied that the woman’s voice in that audio, Exhibit D6, was hers and she did not know why her name, Wati, was called out at the beginning of that audio. So the effect of that part of her evidence is she denied that the woman’s voice was hers, but she immediately recognised the one calling out Wati was the defendant.

Now, members of jury, I will need to ask you to treat this piece of evidence with special care. Although you have heard the recording in question yourself, the only reason for that was so that you know what was said in the recording. But you are not experts in voice recognition or voice identification and you must not base any conclusion on your own untrained ears or not as an expert in comparison between audio recording and the voice of Ms X which you have heard in court. So be careful not to rely on your own untrained ears to try to make a comparison yourself.” (Emphasis added)

30.The applicant, in his evidence in court, produced Exhibit D6. It appears that when the applicant went upstairs to have sex with X he went without his telephone, which was placed on top of the iPad on the table in the living room. This was captured on photograph 3 of Exhibit D5. He said that he left his telephone there as he wanted to take another telephone with him, a Huawei telephone, which was installed with a separate SIM card and an external SD card. The judge summarised his evidence in respect of Exhibit D6 as follows:[27]

“He said he switched on and began to record the audio before he went up to meet X because he felt the behaviour of X previously on 29 July was a bit strange. So he was concerned about that behaviour. That is why he switched on the audio recording using the Huawei phone as a precautionary measure. He recalled that once he went upstairs he inserted the phone, the Huawei phone, in the gap between or beside X’s bed underneath the mattress and the wooden board. And he actually showed us with a post-it on the photo album where he put his phone. You would recall my summary of the evidence earlier on about the setup of the bed, the mattress of X being placed on some wooden board and a cabinet. And you would obviously consider that in relation to this evidence given by the defendant.

We heard the audio and you would well remember there was one played to X as well during her cross-examination by the defendant, Exhibit D6. And the defendant confirmed that the audio recorded everything. The first thing he said to X was when he arrived at her bed, calling out her name, ‘Wati’. He said they then proceeded to have sex in the course of which the lights were not on at the time. The defendant then described how he and X had the sexual intercourse with him removing his pants completely and X also removing her pants, but both with upper garments still on.

The crux of the defendant’s evidence in relation to the sexual intercourse was that X coordinated and cooperated with his movements when they were having sex. He said he kept doing it until he finally asked her where to shoot. And we heard from the audio, ‘Shoot where? Shoot where? Shoot inside,’ and you would recall the evidence given by the defendant explaining why he said those things to X, according to him. He recalled that X responded to his question by nodding her head and saying, ‘Mm,’ meaning, according to him, that he could shoot inside, ejaculate inside her body.

And when he asked for tissues from Ms X, that was the occasion when we hear towards the end of the recording, ‘Tissue, tissue.’ He recalled that he did get the tissue on that occasion and did wipe his private parts with the tissue before putting his pants on and turning off the recording. He said he did not actually look at the tissue at the time when cross-examined, and that was in relation to whether he noticed blood on the tissue. He then told us how he left the bedspace and took his phone and went back downstairs. He said he thought X was consenting to sexual intercourse and he said X did not display any behaviour that suggested otherwise.”

31.After summarising the applicant’s evidence regarding the audible remarks in Exhibit D6 and points raised in cross-examination, the judge returned to the applicant’s evidence concerning the circumstances for making the recording:[28]

“In relation to the audio recording itself, he said the idea of making such a record came to his mind when he went upstairs to find X. And he was asked why he did not bring the other phone which he left in the living room and he explained that he preferred to use the spare phone, the Huawei phone, he took because it had an external SD card for storage and he explained that his wife did not have access, did not have the password to the Huawei phone. When asked what his intention was in making the audio and how it could protect him, the defendant said it recorded the truth and the facts so there would be no dispute.

As to the contents of the recording, he explained that there was no particular reason for him to say Ms X’s name right at the beginning of the audio. It was just that because she was sleeping so he supposed to call to wake her. He later clarified that he was not certain whether she was fast asleep, but as she was lying down he ought to call her name out. When being asked why he did not say in the recording that they had agreed for $500 to have sex, he agreed that it could have been better for that to be done, although he explained that at the moment it did not occur to him that there was such a need to record it.

Now, after the intercourse, the sexual intercourse on the 10th, he said, the defendant said he left X room, took his Huawei phone back to his room. He said he went back downstairs to the living room to continue drinking alcohol. …

…

After paying X, he went back to his bedroom in order to save the recording of him and X having sex. Upon return to the living room, which we see at photo 13 of D5, he had already completed saving the audio into the SD card. He claimed that he did so because he originally wanted to save the file on the card and delete the file on the phone, although he could not do it because his wife came up to look for him.”

32.The judge reminded the jury of the defence submissions in its closing address of the accuracy and genuineness of Exhibit D6 and to bear them in mind:[29]

“Now, the defendant in his testimony then continued to tell us how and why he saved the audio in the way he did. And you would, of course, remember much that has been said by Ms Tsang on his behalf in her closing speech about the accuracy and the genuineness of the audio recording that he has kept. And you would obviously bear those in mind.”

33.It is important to bear in mind the issues with voice recognition evidence, in order to understand the question of the admissibility of such evidence and how it should be approached as a matter of fairness.

34.The Court of Final Appeal in HKSAR v Yeung Ka Ho [30] noted that evidence in the form of recordings raised issues of authenticity and accuracy that must be addressed with reference to the particular circumstances of the case. The Court stressed the need for care when dealing with voice identification evidence, and the provision of a modified Turnbull direction, emphasising the dangers of making a mistake. Amongst the cases cited and applied by the Court was the English Court of Appeal decision of R v Flynn [31]. Gage LJ, giving the judgment of the Court, highlighted the controversial nature of the admission of voice recognition evidence. He discussed two categories of voice recognition evidence. The first category was expert evidence and the second category was lay listener evidence. He explained that the latter category required that the witness possess some special knowledge of the suspect that enables him or her to recognise the person’s voice. The most common example of such evidence was the knowledge of a close relative or friend. However, he noted that there are other persons who may acquire sufficient special knowledge by their familiarity with the person’s voice.[32]

35.As acknowledged in the seminal case of R v Turnbull [33], one has to tread very carefully in the field of identification. There are a variety of forms of voice recognition evidence and whether such evidence is admissible will depend on the quality and quantity of the material to enable a useful comparison to be made. There are a myriad of factors that may affect the quality of the voice recognition evidence such as the audibility of the speech, the recording of the speech, the sound quality of the recording device, the circumstances of the speech, the duration of the speech, the clarity and distinctiveness of the speech, the degree of familiarity with the speaker, and so on.

36.This was plainly a matter that concerned the judge when the audio recording was produced at trial. It is generally accepted that identification from voice recognition is more difficult and unreliable than by visual identification. A court would usually be assisted by voice recognition evidence given by a phonetician as expert evidence or by a witness, familiar with a person’s voice, who listened to a tape and recognised the voice of the person speaking as factual evidence: Flynn [34]. It has been held that such evidence needs to be approached with great care and suitable directions to the jury to deal with such evidence, emphasising the danger of mistakes in such cases: Flynn[35].

37.As provided by the Specimen Direction 108: Identification: Voice Recognition, Specimen Directions in Jury Trials, 2020 Revision, “careful consideration should be given as to whether the jury should be permitted to listen to recordings, for what purpose and if so with what practical arrangements in place.”[36] It is suggested that counsel should be expected to address this issue and if it is decided that the jury be permitted to review recordings, they should be reminded of the list of potential weaknesses of such an approach which must be tailored to the circumstances of the case and reminding them of the dangers of relying on their own untrained ears.

38.It is instructive that the defence did not seek to have the jury make a comparison between X’s voice and the female voice on the audio recording. Nor was there any objection from the defence by the judge’s directions to the jury not to make such a comparison. The defence were not seeking to show that the audio recording was a record of the applicant and X having sexual intercourse by determining whether the female voice belonged to X. The defence case was carefully circumnavigated around that issue. Defence counsel in her closing address to the jury makes this abundantly clear when discussing the evidence of the audio recording.[37] Firstly, she correlated the duration of the audio recording of 12 minutes with the timestamp on the CCTV footage of the living room. At about 12:07 am, the applicant is seen leaving the living room and returning at about 12:20 am. Secondly, she noted that the applicant was wearing a T-shirt which was stained when he returned to the living room. It was the defence case that it was a stain of blood from X who was having her period at the time. Thirdly, X identified the applicant’s voice in the audio recording when her name was called out. It was the defence case that (1) the audio recording evidenced sexual intercourse between the applicant and X at little after midnight, and not at about 2:15 am as stated by X, which lasted closer to 12 minutes rather than the 10 to 20 seconds stated by X; and (2) the sexual intercourse between them was consensual with no sound of a struggle and “no big sound made by the female”.

39.The prosecution took issue with the authenticity of the audio recording. X denied that the female voice on the audio recording belonged to her. The applicant testified that the recording was made on his Huawei telephone, which he transferred to an SD card. However, his telephone got damaged and he no longer had that telephone. The prosecution questioned the time when the defence alleged consensual sexual intercourse took place between the applicant and X. As pointed out, this was while the applicant’s wife and friend were in the living room drinking, while X’s evidence was that the applicant raped her at about 2:15 am after the wife had gone to bed and the friend had been accommodated in the guest bedroom.[38]

40.Ms Draycott places considerable reliance on the judge’s remark to the jury that they heard the audio recording “so that you know what was said in the recording”. When read in the context of the passage and the summing-up as a whole, the judge was telling them not to make a voice comparison. The issue as to whether the audio recording was a recording of the applicant and X having sexual intercourse was clearly an issue the judge reminded the jury they had to consider. The jury were also reminded of defence counsel’s submissions in her closing speech regarding the accuracy and the genuineness of the audio recording, which the judge stressed to the jury that “you would obviously bear those in mind”.

41.Ms Draycott argues that the relevance of the recording depended on whether the jury found that it was, or could have been, a recording of the applicant and X having sex on 10 August 2021. If it did depict them having sex, then it was capable of supporting the defence of consent. She further argues that it is not clear from the judge’s direction how the jury were to treat the words said or what their relevance were supposed to be. She submits that it was a highly relevant question for the jury as to whether the woman in the recording was X and whether the recording showed consensual sexual intercourse. With respect, the judge’s directions did not prevent the jury from considering these questions. They were not being told that the recording of what was taking place and the words uttered should be ignored. The evidence before them included a transcript of the words uttered at relevant times during the audio recording. They had their attention directed to the applicant’s evidence in respect of Exhibit D6 by the judge in his summing-up.

42.Ms Draycott also argues that the judge was wrong to forbid the jury from identifying whether the woman’s voice belonged to X. She submits that there was no reason for the judge to do so, and it made it impossible for the jury to consider whether the applicant was telling the truth about the identity of the woman in the tape. She refers to Yeung Ka Ho and R v So Chi Wai [39], in support of this submission. This latter case dealt with a different set of circumstances and has been supplemented by the development of legal principles in this field of identification.

43.Ms Draycott also made reference to the Australian High Court case of Bulejcik v R [40] to suggest that there is a different set of restrictions placed on voice identification from voice recognition. However, she is essentially complaining that the judge should have allowed the jury to make a comparison of the woman’s voice on the audio recording with X’s voice when she testified before them in order for them to identify whether or not the woman’s voice was that of X. She referred to the dissenting judgment of Brennan CJ where he said evidence of identification by voice recognition will depend upon the circumstances of each case, adding:[41]

“The evaluation of evidence on which a reasonable jury could act is a matter for the jury. It exceeds a judge’s function to withhold evidence from a jury merely because, on that evidence, the judge would not reach and thinks a jury should not reach a conclusion adverse to the accused beyond reasonable doubt.”

44.Brennan CJ took the view that the jury could make a comparison of a tape recording of the accused’s unsworn statement with the voice on a police tape recording, while the majority, for various reasons, held that there had been a miscarriage of justice in the jury’s comparison of the two tape recordings.

45.Ms Draycott also referred to the majority joint judgment of Toohey and Gaudron JJ, which stated that there was a difference between voice identification and voice recognition. They examined different circumstances where voice identification or voice comparison may be made. They noted that:[42]

“Where two voices are being heard side-by-side, as occurred in the present case, the concern is not with familiarity or distinctiveness but with whether the quality and quantity of the material is sufficient to enable a useful comparison to be made.”

46.These remarks are more in line with recent authority that a voice comparison will very much depend upon the particular circumstances of the case and whether the subject voice on the audio recording was of the quality and quantity of material to enable a comparison to be made. In my view, the quality and quantity of material was clearly insufficient and the judge was perfectly justified in not allowing a comparison to be made by the jury.

47.There is also the question of whether the judge’s remarks in some way improperly limit the jury’s consideration of Exhibit D6 and related evidence. I can not agree with this submission because the judge by his directions was not deterring the jury from deciding whether or not the audio recording was genuine, he was merely restricting them from conducting an exercise of voice comparison, which was not appropriate in the circumstances of the case. The relevant authorities strongly support the position taken by the judge in the circumstances of the case, and I can find no fault in the instruction he gave the jury not to make a voice comparison.

48.The judge did not forbid the jury from finding the woman’s voice was X as there was other evidence and submissions made on this point by the defence. He instructed them not to make a voice comparison between X’s voice and the woman’s voice in the audio recording, which was limited to a few words that had been purportedly recorded by a telephone that had been placed in the gap between or beside X’s bed underneath the mattress and the wooden board. It would have been inappropriate in the circumstances of this case for the judge to allow a lay listener to conduct this form of identification.

49.The quantity and quality of the material was plainly insufficient to enable a useful comparison to be made, which appears to have been accepted by the parties. The defence did not invite the jury to make such a comparison and did not demur when the judge instructed them not to make such a comparison.

50.I am not persuaded that this ground of appeal is reasonably arguable.

Ground 2

51.Ground 2 complains that the judge was wrong to admit evidence given by the woman police officer of the detailed contents of the witness statement that she had taken from X and having admitted it, was wrong to direct the jury that it could constitute a recent complaint.

52.Ms Draycott in her submissions accepts that the complaint to Ah Tan was properly admitted because it was a spontaneous complaint made at an early stage. She also accepts that other complaints soon after the alleged offence to Christian Action, the applicant’s wife, and Christian Action again may have been admissible if the recipient of the complaint had been called to give evidence. However, she takes issue with the complaint made by X when she attended the police station to report the crime. In terms of the timeframe, X alleged that the rape occurred in the early hours of 10 August 2021. As already noted, she contacted Ah Tan that same day, complaining that she had been sexually harassed, and he directed her to Christian Action. It was shortly before 8:00 pm on 11 August 2021 that X went to the Tsuen Wan Police Station to make a report of rape allegedly by her employer. She was accompanied by a member of the church who also served as an Indonesian interpreter when she made a complaint.[43]

53.The respondent argues that even though X had made some prior complaints before reporting the matter to the police, this did not preclude her statement to the woman police officer from being considered a recent complaint.

54.Evidence of recent complaint in sexual cases is a well established exception to the general common law rule that a witness cannot be asked in evidence whether he or she had previously made a statement consistent with his or her present testimony: R v Valentine [44]. Furthermore, although a complaint may not be as recent as it could have been, the mere fact that there were earlier opportunities for the victim to complain does not in itself amount to sufficient reason to render the complaint inadmissible. The judge is bound to look at all the circumstances of the case, including the victim’s background and her relationship with the offender, before deciding whether the complaint was made at the first opportunity which reasonably presented itself after the alleged offence.[45] There was an element of spontaneity to X’s conduct in reporting the matter to the police and reasonably recent after the commission of the offence, in light of her background, circumstances and relationship with the applicant.

55.It needs to be appreciated that recent complaint evidence is a special category of evidence in sexual offences. It operates as an exception to the common law restriction for the limited purpose of showing the consistency of the complaint with the victim’s evidence in assessing the victim’s credibility, and cannot be used as evidence of the truth of the facts stated in the complaint. I am not satisfied that this ground is reasonably arguable. The complaint to the woman police officer fell within the requirements and parameters of a recent complaint, which was dealt with as such at trial and properly addressed by the judge in his summing-up.

Ground 3

56.Ground 3 avers that the judge erred in giving a full Lucas direction in relation to lies the applicant had told his wife about X’s complaint and answers he made during his caution interview when such a direction was unnecessary and damaging to the defence case.[46]

57.Ms Draycott refers to the circumstances in which the judge gave a lies direction. It concerned the “lies” the applicant had told his wife on being confronted by X’s allegations and answers to questions in his caution interview by saying “I don’t remember”, when based on his testimony, he could and did remember.[47] She submits that in the circumstances of the case the lies direction was a misdirection and should not have been given if the judge had properly exercised his discretion.

58.Whilst accepting that the applicant prevaricated when he spoke to his wife, Ms Draycott argues that what he said did not amount to a lie. What he did was to point out the reason why X’s claim was unlikely to be true.[48] Furthermore, even if what he said to his wife amounted to a lie, no direction should have been given as a prerequisite for such a direction is that there can be no innocent reason for the lie, only then can a lie be probative of guilt. She argues that the direction should not have been given unless the lie was proven or admitted and concerns an issue in the case. She submits that it is readily understandable that a person accused by his wife of raping their domestic helper may say or intimate that he did not have intercourse with her at all and later say at trial that he did, but that it was consensual. However, the circumstances in the present case were different in that the applicant did not admit or deny intercourse but tried to persuade his wife that X’s claim was unlikely or not true. She contends that denial of sexual intercourse is not material to the only issue in the trial, which was consent. Hence, to direct the jury that they could use such “lies” as indicative of guilt was “wrong, unnecessary and potentially damage to the applicant’s case”.

59.On the same basis, the applicant’s replies in his interview, “I don’t remember”, whilst may be untrue, did not address the issue of consent. Ms Draycott submits that on examination of the interview questions and answers, there was a plausible explanation for why he answered as he did. It was, therefore, wrong to invite the jury to use his answers, “I can’t remember”, to strengthen the prosecution case.

60.The respondent submits that the lies related to the material issue of whether the applicant had sexual intercourse with X, even though the applicant subsequently did not deny it. The respondent refers to R v Chong Chak On [49], but in that case the Court of Appeal held that the lie had to relate to a material issue in the case and not be a gratuitous lie that had nothing to do with the subject matter of the prosecution. The respondent further submits that it was open to the jury to find that the applicant told lies about his version of events which differed from his testimony in court, and that there was a risk that the jury might misuse the lies as probative of his guilt. Therefore, a full Lucas direction was appropriate in the circumstances. The judge did emphasise with the jury the applicant’s explanations that he did not lie to his wife but was trying to avoid the issue with her, and his answers to the questions in the interview were based on advice by his lawyer as to his right of silence.

61.In addressing the issue of the alleged lies in these two circumstances, the judge instructed the jury as follows:[50]

“I must give you a direction as to how you approach this question of lie if you find that he, indeed, has told a lie. The first thing I must tell you is that a lie cannot on its own prove a defendant’s guilt. At most, it can be a factor in support of the prosecution case. It does not prove guilt. But before it can be used to support the prosecution case, there are a number of questions you must ask yourself.

First, are you sure the what the defendant say that he did not remember as to the question being asked was untrue. If you are not sure, then you must ignore the point altogether. If you are sure that the defendant said was untrue, then you must ask yourself the next question, was in a deliberate untruths, a deliberate lie, or whether it may have been said because of a mistake or out of confusion and in this context, advice by or bad advice by a lawyer.

If you are not sure that it was a deliberate untruths, then you must ignore this evidence. Now, if you are sure that what he said was a deliberate lie, you should then go on to ask yourself the next question, does the deliberate lie relate to some significant circumstances or being connected with the alleged offence. The prosecution says this is relevant because it is connected with the fact that defendant had conducted the sexual offences in question. It is a matter for you to consider whether the deliberate lie, if you find it is a deliberate lie, told by the defendant actually relates to a material issue in the case. If you decide that the lie does not relate to any material issue in the case, then you must ignore this evidence of lie.

Now, if you are sure that it was a lie and relates to a significant issue in the case, then you must ask yourself why did the defendant lie. In answering this question you must bear in mind that a person may have an innocent reason for lying. In other words, the defendant may lie for many reasons and they may possibly be innocent reason is in the sense that they did not give an indication of guilt. For example, somebody may lie in order to make his defence sound better. The defence may be true but he may, so to speak, guilt the Lilly to bolster the defence and in doing so tell lies. Or he may simply lie out of panic or confusion or it may also be out of nervousness.

So there may be possible innocent reasons as to why a person may lie. It is entirely a matter for you to decide. So if you think that there is or there may be an innocent explanation for the lie, then you should take no notice of it. It is only if you are sure that he did not live for any innocent reason of the kind that I have suggested, then his lie can be regarded by you as evidence which supports the prosecution case. But remember, the defendant is not to be convicted either wholly or mainly on the basis that he lied. The fact that he lied, if that is what you find, does not on its own prove that he is guilty. So just to recap on this issue of lie.

First, a lie on its own can never prove a defendant’s guilt. At most, it can be a factor in support of the prosecution case. Second, before it can support the prosecution case you must be sure that first, it was a deliberate lie on a material or significant issue, and second there was no innocent motive or reason for the lie of the kind that I have just described. So you must examine the whole of the defendant’s statement when he was arrested. He initially denied there was a rape. As well as what he said in his two video recorded interviews and the entire proper context and the evidence that he gave that he said he simply answered in the way he did because of the bad advice of the lawyer.

You must not look only at those parts of what he said or on which the prosecution rely, but also any explanation he has given you, and you must decide what you accept and what you think might be true and what you do not accept. But I stress once again that even if you reject a defendant’s explanation or if you think he lied on certain matter, that does not mean he is guilty. It is for you to decide.”

62.It is important to note that the law regarding lies is not a set of strict rules but a set of guiding principles that deal with the dynamics of a trial and the variety of situations that may arise when lies told by an accused become an issue. That is why the question of whether a lies direction is necessary is not always easy.

63.The key principles are summarised in Yuen Kwai Choi v HKSAR [51], with the most important being that a lie in itself can never prove guilt and a court should guard against the danger of a jury thinking that because an accused has lied, he must be guilty. Where a lie usually affects credibility only, it will not require a special direction except where it may strengthen the case against an accused. Where, however, a lie told by an accused is relied upon by the prosecution to support its case, then a lies direction will most likely be required. There is a third category that falls within these two circumstances and that is the exceptional circumstances where there is a risk that the jury may think the accused must be guilty because he lied. As explained by Chan PJ in Yuen Kwai Choi:

“38. Where there is a risk that the jury may regard lies told by an accused as probative of his guilt, as in the case where the prosecution addressed the jury on the basis that the accused has lied in what he said and that the lie is supportive of the prosecution’s case … or where there is a danger that the jury may in any way miss use the lie, it is necessary to give a direction on lies. … In considering whether a direction on lies should be given, particularly when the trial judge entertains a doubt as to what he should say to the jury in case he decides to give such a direction, he should first raise the matter with counsel and then give the direction unless it is clear that such a direction is not only unhelpful but may also mislead the jury. …”

64.Ms Draycott argues that a lies direction was unnecessary and goes as far as to suggest that it damaged the defence case. She submits that even accepting that the applicant told lies to his wife or in his interview, they only went to credibility and did not support a material issue in the case, which was simply one of consent, since there was no issue that sexual intercourse had taken place. She supports her argument by referring to prosecuting counsel’s concluding remarks in her closing address, where she said that the applicant had been lying in court and the judge would give a lies direction.[52] She extrapolates that the prosecution were only relying on the alleged lies in respect of the applicant’s credibility only. This was not the only comment prosecuting counsel made regarding lies in her closing address. She had referred the jury to the applicant’s answers in his interview, where he said “I don’t remember” and to his explanation to his wife concerning X’s allegations against him. She discussed the evidence and the applicant’s explanations and submitted to the jury that these were lies.[53] She further submitted to the jury that the applicant’s story of his dealings with X was “a total lie”.[54]

65.Defence counsel in turn addressed the issue of the two sets of lies in her closing address to the jury. When addressing the issue of lies told to the applicant’s wife, defence counsel described what he had told her involved him being “very economical with the truth”.[55] She next turned to address the issue of lies in his interview. She referred to the applicant’s evidence that he had been told by his lawyer that he had a right to remain silent and that if he chose not to answer he could “just say he forgot”.[56]

66.At the conclusion of the evidence and before the delivery of closing speeches from counsel, the judge discussed the legal directions to be given to the jury. Prosecuting counsel indicated that she would be referring to lies as part of the prosecution case and, therefore a lies direction should be given. There was no demur from defence counsel in giving a lies direction to the jury.

67.The judge’s directions on the alleged lies followed the standard direction and were appropriately tailored to address the circumstances of the case.[57] He conveyed the clear and important message to the jury that they must guard against thinking that because the applicant has lied in the circumstances he must be guilty. However, as already noted, Ms Draycott’s complaint is that the judge’s lies direction highlighted matters that, in her submission, were not lies, nor material to the fundamental issue at trial of whether the sexual relations between the applicant and X were consensual.

68.The respondent points out that the defence accepted that the applicant had not told the truth in relation to these matters when they were raised. Defence counsel, in her closing address to the jury, acknowledged that the applicant’s statements to his wife and the police during the interview that he did not have sex with X had not been “very economical with the truth”[58]. Although, she explained he had an innocent reason for not being truthful, which was to save his marriage and wrong legal advice.[59] It would appear that defence counsel’s comments were addressing the anticipated lies direction from the judge in his summing-up.

69.The circumstances of the applicant being confronted by his wife and not telling her that he had a sexual relationship with X, emerged during his examination in chief. He explained it was at a time when he did not want to tell his wife that he had an affair with X.[60] It also emerged in the applicant’s examination-in-chief that he gave the answers “I don’t remember” to questions in the interview because of advice he received from his lawyer. This had been the subject of extensive examination by defence counsel.[61] The applicant was also examined about his statements to his wife. He said his wife kept asking him about X’s comments to her, and he analysed it with her by not actually denying or admitting he had sexual intercourse, suggesting that what X said to her was unreasonable.[62] It is to be noted that the applicant waived legal professional privilege in order to be cross-examined on the subject of his answers in the interview.[63] The applicant was cross-examined on the alleged lies to his wife and during the interview.[64]

70.The question that is engaged in this ground of appeal is whether the applicant’s statements to his wife and his answers under caution constituted lies, and if they did, whether a Lucas direction was appropriate. Whilst I consider this ground to be reasonably arguable, there is the matter of the defence position at trial which seemed to acknowledge that the applicant’s statements were lies and did not resist a lies direction being given to the jury. This will obviously be an issue for further consideration by the Court of Appeal.

Conclusion

71.It follows from what I have said that I do not find Grounds 1 and 2 to be reasonably arguable and leave to appeal the applicant’s conviction on those grounds is refused. However, I find Ground 3 to be reasonably arguable for the reasons that I have given and leave to appeal on that ground is granted.

72.The applicant is nevertheless reminded of his right to renew his application for leave to appeal against conviction to the Court of Appeal on the refused grounds 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 on those grounds.

Ms Lily Ho, SADPP (Ag) and Ms Ivy Chan, PP, of Department of Justice, for the respondent

Ms Charlotte Draycott, SC, and Mr Martin Li, instructed by Ivan Tang & Co, for the applicant