HKSAR v. Yip Ka Yu

CACC 185/2023

[2025] HKCA 573

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)

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.On 13 September 2023, following a trial before Deputy Judge Woodcock (as she then was) (“the judge”) and a jury, the applicant was convicted, by a majority of 5:1 (one juror having been earlier discharged), on one count of rape, contrary to section 118(1) of the Crimes Ordinance, Cap 200. On 5 October 2023, he was sentenced to 5 years and 3 months’ imprisonment.

2.On 13 October 2023, the applicant filed a Notice of application for leave to appeal against his conviction. On 9 May 2024, his leave application was refused by the single judge with reasons being given.[1] On 22 May 2024, he filed a notice seeking to renew his leave application on a single ground, by which it is contended by Mr Charles Chan, with him Mr Brian Yu, that the applicant’s conviction was unsafe and/or unsatisfactory because of the failure by the judge to give a ‘genuine but mistaken belief’ direction in her summing-up to the jury.

3.On 21 March 2025, having heard argument from Mr Chan for the applicant and Mr Beney Wong for the respondent, we reserved judgment and said we would hand down our decision in due course. This is the unanimous judgment of the Court, although Zervos JA has indicated that he would like to elaborate further on certain issues.

The prosecution case in brief

4.The prosecution’s case was that, on the night of 16 March 2021, the applicant had made an appointment to meet up with the complainant, known as “X”, at Siu Sai Wan on Hong Kong Island after his game of football. The two duly met up and after buying some takeaway food, the applicant drove to an area near Tai Tam Reservoir, where he parked his car. After eating the food in the front seats of the vehicle, it was alleged that the applicant raped X in the back seat of his car. The prosecution relied on the evidence of X and her friend, “A”, whom X had contacted after the incident, as evidence of recent complaint.

X’s evidence

5.However, the full terms of X’s evidence and the case for the prosecution were not so clear cut and have troubled each member of the Court in respect of two important aspects of her account. To understand the Court’s disquiet, how the evidence emerged and how these issues were left for the jury, it is necessary to examine the evidence in some detail. Unless otherwise stated, the following description of events is taken from X’s evidence, both in chief and in cross-examination.

6.X, who was at the time of the events a 17-year-old Form 5 student and sexually inexperienced,[2] testified that she had first encountered the applicant, who was a 26-year-old professional footballer, on 11 March 2021. They had met by chance one night on the promenade at Siu Sai Wan on Hong Kong Island when the applicant was fishing by the sea, and X was with a group of friends who were chatting and singing nearby. The applicant and X struck up a conversation and ultimately exchanged contact details; they thereafter contacted each other by Instagram, on an almost daily basis. We have read the text of their exchanges and while they are not necessarily intimate, they are certainly personal and suggestive of two young people who are obviously interested in developing a closer friendship with each other. There can be little doubt that X was flattered by the applicant’s attentions and there are questions from her to him about his football and fishing, while he asked her about the songs she liked to sing. Both were obviously keen to meet up again.

7.On 16 March 2021, the applicant invited X to have a night snack following his football game. X agreed and suggested a restaurant in Siu Sai Wan. Pursuant to the arrangement, the two met up at about 10 pm that night. The applicant was driving a Toyota Prius motor car, but instead of going to a local restaurant, he suggested they buy some takeaway food and go somewhere quiet and eat inside the car. X agreed and they went together to buy some food. As they walked back to the car, the applicant placed his hand around X’s shoulders. X accepted that she did not refuse this gesture, or signify in any way that she was uncomfortable with this action.[3] The applicant then drove to Tai Tam and parked his car near the reservoir. Again, X accepted that she had raised no concern or objection about the change of plan; or the fact of going to Tai Tam instead of the Shau Kei Wan waterfront, which the applicant had earlier suggested;[4] or, indeed, about remaining in Tai Tam.[5] The two chatted during the journey to Tai Tam.[6]

8.Upon their arrival, the applicant parked his car on a public road with street lighting.[7] There were apparently other cars passing by at the time but it seems they were infrequent.[8] They ate their food in the front seats of the applicant’s car. When they had finished eating, the applicant suggested that they both move to the back seat of the car, since it was more comfortable there.[9] Having done so, they sat close together and, again, X raised no objection to, or concern about, the situation.[10] They chatted for some time, and then the applicant put his hand on X’s shoulder, after which, as X confirmed in cross-examination, “the two of you looked into (each) other’s eyes for a while in silence”.[11] The silence was then broken by the applicant kissing X on the lips.[12]

9.When the applicant then started to put his arms around her waist, X said that she tried to push him away and asked him, “Do you have a girlfriend, or you treat everybody like this?” This question (or these questions) evidently upset the applicant, who queried somewhat indignantly, “That’s how you see me?”[13] X explained in evidence that she realised she had hurt the applicant’s feelings and, accordingly, she patted his shoulder, touched his head and apologised to him in an effort to comfort him.[14] Thereupon, the applicant kissed X again more forcefully, although she said she tried to keep her mouth closed.[15]

10.At some point, the applicant began to get what X described as “handsy”, which included touching her breasts above and beneath her top; although in cross-examination, she said she could not recall if she had asked the above question(s) of the applicant before or after he became “handsy”.[16] In any event, in an audio-recording she had made on her mobile telephone on 18 March 2021, which was done for her own benefit in order to record the events in question, she said she “did not completely, very strongly refuse” when the applicant became “handsy”;[17] while later in the recording, she said “I believe that I did not express strong(ly) enough in this incident”.[18]

11.The sequence of what happened then is not entirely clear or consistent. But it appears from the cross-examination of X that the applicant removed his own trousers and underpants;[19] certainly that is how the judge must have understood the sequence of events because that is how she summed up this episode,[20] although X did initially say in examination-in-chief that he removed her pants first.[21] Thereupon, the applicant lifted up X’s legs and attempted to remove her trousers and pants, which she said she resisted and tried to obstruct with her hands,[22] while struggling with her legs.[23] She kept saying “No”, but the applicant did not stop and then inserted his finger(s) into her vagina.[24]

12.It is worth noting, at this stage, that X suffered a tear to her hymen, which caused bleeding. This was confirmed by the forensic pathologist, who conducted an examination upon her on 20 March 2021 at Queen Mary Hospital. He noted in his report a complete recent tear with contact bleeding at the 5 o’clock position of the hymen. Whilst X did say that her hymen had been “pierced” or “broken” during the incident, she accepted that she was not sure if the injury was caused by the applicant’s finger(s) or his penis.[25] She did, however, describe the insertion of his finger(s) into her vagina as “very painful”.[26] It is also worth observing, from the pathologist’s report, that there were no external or other injuries found anywhere on X’s body upon examination.

13.X testified that when he then tried to put his penis into her, she said “No”, whereupon the applicant said repeatedly that he would not put his penis inside her and that he would “only put it outside”.[27] Indeed, the case put to X on the applicant’s behalf was that the applicant had rubbed his penis against her private parts while she was still wearing her pants. X initially could not recall this matter but she confirmed that she had indeed said this happened when interviewed by the police. Nevertheless, she could not recall at what stage this had occurred.[28] However, X then felt and saw that the applicant had inserted his penis into her vagina.[29] She thought that “the process lasted for about five to ten minutes[30] and said, “although I kept saying ‘No’, but during the middle of the course, I sort of a bit wanted to give up”.[31] Later in cross-examination, X said of this particular episode, “at that moment I felt that I could not resist and I merely gave up because I was in a remote area. Even though I could get out, I don’t know how I could go home”.[32]

14.In her evidence-in-chief, X described her position when the applicant was thrusting into her. She explained, “Because when I was lying down, I did not see … his penis clearly, but when I sat up I clearly saw that his penis was erected … And then he asked me to perform oral sex on him”.[33] X was closely cross-examined on the issue of whether the applicant’s penis had in fact entered her and what she had actually seen. It was at this point that X conceded that during her subsequent interview with the police, she had said to them, “If you are asking me if I am 100% sure that it was his penis inside me, I am not 100% sure”.[34] Her explanation for this answer was that when she gave the interview, her memory “was still very confused. So it was not possible for me to tell the details clearly at that moment. But now I’m very sure that he did insert his penis in”.[35] It may be noted that the police interview concerned took place on 29 March 2021, some 12 days after the incident.

15.It is in the context of this apparent uncertainty that we should mention three other pieces of evidence. The first was the admitted fact evidence of an Instagram conversation between X and her friend A, which took place in the early hours of 17 March 2021, shortly after X had arrived home.[36] What she initially wrote in English to A, having established that she was still awake, was “I think I just got rape (sic)”. Her friend A immediately responded with “Huh”,[37] and X followed with “I don’t know”. X’s explanation in examination-in-chief for any uncertainty in this message exchange with A was that when she said, “I feel like I seemed to be raped” (X’s oral evidence of what she had said in the Instagram message), she had meant, “because I did not consent to the sexual act and I had refused him many times but he continued to do it, so I think it’s rape”.[38] In cross-examination, X was nevertheless asked of these and other communications, “Would you agree with me, throughout all your message with Ms A, you never give a confirmed message to A that you were indeed raped. Do you agree with me?”[39] To that question, X responded, “Agree”.[40]

16.The second piece of evidence is that at some stage later that morning, X called another friend, “B”, and told her also that “I felt like I seemed to be raped”.[41]

17.The third piece of evidence was a faxed note, which X sent to Queen Mary Hospital for the attention of a lady psychiatrist, with whom she was due to have a follow-up appointment at the hospital the following week on an unrelated matter. Seeking to bring forward her appointment, she wrote to her psychiatrist, “I think I got raped”. Upon receipt of this faxed message, the appointment was duly advanced to 19 March 2021 and as a result of the psychiatrist’s advice, X was hospitalised at Queen Mary Hospital and a report was made to the police on 20 March.[42] Neither the statement to Ms B, nor the one to the lady psychiatrist, were pursued or explored in cross-examination.

18.X further testified that after the applicant had thrust in and out of her for a while, he withdrew his penis and asked X to perform oral sex on him.[43] X said she kept shaking her head and refused at least three or four times, but “as I want the incident to end quickly, so I performed oral sex on him, and when I gave him a blow job for a second time, as it was hard against my throat, so I retched once…”.[44] Since she kept refusing, the applicant gave up and, at this juncture, he received a call or a WhatsApp message (it was not clear which) to go fishing with a friend.[45] X took the opportunity to say to the applicant, “Why don’t we stop here?” and to insist that he should go fishing. In cross-examination, X accepted that what she had actually said to him, according to her police interview, was “Next time”; however, she explained in cross-examination that that did not mean, “I wanted to do it with him next time”.[46]

19.In any event, the applicant decided that he would go fishing and the incident came to an end.[47] Thereupon, the two got dressed and the applicant dropped her off at her home in his car.[48] However, at some stage, X realised that she had left her face mask in the applicant’s car and accordingly she contacted him by Instagram and duly returned to the car to retrieve it.[49] This was, objectively perhaps, a rather strange thing to do on the part of someone who believed she has just been raped and defence counsel evidently made much of the point in his closing address to the jury:[50]

“If X was indeed raped, her reaction should be rushing back home or not to see Mr Yip again, right? Very normal logic. However, she behaves very differently, very difficult to understand, and extremely calm. … It is difficult to believe why X, after getting off the car, will get into contact with Mr Yip again, a person who just raped her, according to the allegation.

Yip parked the car at 7-11 and then X walked up to the car, get her face mask back, and then, most interesting point is that X cannot recall whether they have dialogue or not. Would you still have a dialogue with a person who just raped you? Why the mask is so important? You have to ask the question. 小西灣 is near Ms X’s home. She can simply rush home, not far away, at 小西灣. Also, it is close to 7-11. Even she need a mask, it can be easily get – a mask can be easily get from 7-11.

Objectively, it is very difficult to believe someone who has just been raped will meet the bad guy again to get the face mask as she described. The conclusion must be there is no rape; that’s why she behaved calmly, go back to the car, talked to Mr Yip, and then get her mask back.”

The judge specifically cited this particular event as one of the “inherently difficult pieces of (X’s) evidence” relied upon by the defence.[51]

20.We should also mention that X’s description of what took place in the back seat of the car was somewhat different in sequence from what she had apparently told A during a telephone conversation later the same day. A’s account of what X had told her[52] was that after they moved to the back seat, the applicant began touching her. X said “No”, but he nevertheless carried on molesting her. The applicant then requested oral sex and sexual intercourse, after which she sucked his penis first, and he then later penetrated her vagina with his penis but “did not insert it so deep”.[53] According to A, X then told the applicant a few times that she did not feel well and wanted to go home, so he drove her home.

21.X visited a Family Planning Association clinic together with B on the afternoon of 17 March 2025. She was concerned that the applicant had not been wearing a condom during the incident. She received some pills and was asked if she wished to call the police. X said she did not, and explained in evidence that she was concerned about the personal trauma involved in reporting the matter to the police.[54]

22.On 18 March 2025, X made the audio-recording of the occurrence on her mobile telephone for her own benefit in case she forgot what had happened during the incident. Although this recording (and its transcription) was not before the jury, several excerpts were put to X in cross-examination. Some of those excerpts we have referred to in our recitation of the evidence above. There was, however, one further curious passage in her audio-recording, which was put to and confirmed by her at the end of her cross-examination. X had recorded:

“After the incident, I believe from his point of view he might not think this was rape.”

Unfortunately, it was never explored in cross-examination why X had made this remark, or what she meant by it, nor was it followed up in re-examination. It remains a puzzling observation from a victim of rape, whose case was that throughout she did not consent to intercourse.

23.Finally, given the issues of consent and recklessness, which were issues in this case, we should mention that there was no question whatsoever of any alcohol or drug consumption by either the applicant or X before or during the events described.

Scientific evidence

24.There was evidence of a semen stain from the applicant on the underpants of X and on the fabric of the back of the vehicle. However, given X’s evidence that the applicant said he would only put his penis against her private parts while she was still wearing her underpants, that he did so at some stage and that she had told the police as much, this evidence did not perhaps take the prosecution case much further. The forensic evidence was not challenged, and the judge ultimately said of the DNA evidence:[55]

“I will say that none of the expert evidence and forensic results prove the offence of rape. The results of the forensic testing are not a surprise since the defence agree that both the defendant and X were in the back seat of the car, both at some stage had no trousers or underpants on. X agrees there was sexual physical contact in the form of the defendant rubbing his penis against her vagina, penetrating her vagina with his finger and oral sex. Therefore, this can explain DNA or semen evidence presented on clothing or fabric seats of the vehicle or on the pieces of cloth found on himself.”

The defence case

25.The applicant elected not to testify nor did he call any witnesses. It was an admitted fact that when cautioned about the alleged rape, he had responded, “I have nothing to say”.[56] It was the defence case that the applicant had consensual sexual activity with X,[57] in the course of which he penetrated X’s vagina with his finger but did not have sexual intercourse with her.[58] It was suggested that X had also willingly performed oral sex on him on two occasions.[59] There was no resistance from X, who did not express any disapproval of the applicant’s advances.[60]

Discussion

26.Having traversed the evidence in some detail, there are two matters emerging from the account of X, which will immediately strike the impartial observer. The first concerns the question of whether there was in fact actual penetration of X by the applicant’s penis; the second involves the issue of consent (or, rather, the lack of it). Both issues derive from X’s own apparent uncertainty about what was happening, and ultimately about what had happened, in the back seat of the applicant’s car. One could say that in many ways this case presented a classic issue of fact for the jury. However, an appellate court is always concerned to establish that there was sufficient evidence of the vital components of a charge to go before the jury: such components may be established by direct evidence of the matter in issue (whether from a witness or by way of admission) or, where it is absent or deficient, by inference or circumstance. What the jury make of the conflicting arguments, evidence or circumstances which bear on a particular component of the charge is a matter for them, provided they receive full and appropriate directions to assist them.

27.One of the problems in this particular case was that the applicant did not give evidence and this Court must be careful, therefore, not to make assumptions about what he might have said on an issue, or to elevate the submissions made on his behalf to the jury to the level of evidence. We make no comment on the applicant’s decision not to testify, but it did mean that the jury were deprived of his account and had to base their decision essentially on X’s evidence alone. However, to say that since he decided not to give evidence, there was no basis for finding that he may have believed she was consenting may not be a complete answer in this particular case because of the apparent uncertainty expressed by X herself on matters which go to the two vital issues posed above. We shall examine the legal ramifications of the applicant’s decision in due course.

28.In its preface to the 2020 revision of the Specimen Directions in Jury trials by the Judicial Institute of Hong Kong, this caution was sounded:

“It is, as always, vital to emphasise that the specimens provided are intended as guides to judges and not as rigid templates. Other than standard core directions, directions need to be tailored to the issues in the case and the basis upon which issues have been contested in the particular trial.” (Emphasis supplied)

The case before the jury was a very unusual one where, in the absence of the applicant’s version of events, either in evidence or under caution, the prosecution had to rely on the testimony of one essential prosecution witness, but that same witness’s account raised in itself a number of curious features, which not only tended to support aspects of the applicant’s defence put to X but also called into question exactly what had really gone on during the incident described.

29.To be fair to the judge, she raised all the matters which the applicant would have wanted her to raise, in particular the inconsistencies in X’s accounts, and she spent several pages at the outset of her summing-up in doing so.[61] She concluded this part of her summing-up by directing the jury:

“The defence suggest that you cannot be sure from her conflicting evidence that there was penetration by the defendant’s penis into her vagina, and that means you cannot be sure there was a rape.

(The prosecution) invites you not to reject her evidence, to accept her explanations for inconsistencies and consider her credible. She invites you to consider her age at the time and her likely state of mind at the time of the incident, or just after.”

30.The evidence was certainly inconsistent and somewhat odd as to when X actually saw the applicant’s penis and whether she believed he had inserted his penis rather than his finger(s) into her. Notwithstanding that X may not have actually seen his penis and, indeed, told the police 13 days after the event that she was not 100% certain it was his penis that had entered her, and while she was less than sure when telling A and B that she had been raped, a jury might well have thought that as a woman, albeit one without any sexual experience, she ought to have been able to distinguish between the applicant’s penis and his finger(s). That may be so, but we are hesitant to substitute the jury’s conclusion, borne no doubt of common sense and experience of life, for the actual evidence in the trial. Had this been the only controversy, we still might have said it remained a matter for the jury. However, it was not the only controversy and some of the same uncertainties which derive from X’s account on this first issue also bedevil the second issue of consent (or lack of it), with perhaps greater consequence for the applicant.

31.It was never properly explored with X why she believed that, from the applicant’s perspective, he may not have thought this was rape. Was it, for example, because X believed that since the applicant had exerted no violence or force on her, he might have thought his conduct could not be classified as rape; was it because X believed that the applicant might have thought he could do as he wished unless X positively objected to it, which she apparently considered she had not done vigorously enough; or was it because X believed he might have thought from her behaviour and all the prevailing circumstances that she was in fact consenting?

32.There was certainly scope for ‘mixed messaging’ during the two hours X and the applicant were together. X had given no signal at all that she was unhappy or concerned about the applicant’s arm around her shoulders when collecting the takeaway food, or his decision to drive to Tai Tam, or his suggestion that they move to the back seat of the car after they had finished eating. When she asked the two questions which seemed to upset the applicant, she immediately consoled him both physically and, it seems, affectionately. When he touched her breasts (whether before or after the questions), she did not object or, at least in her own assessment, “not strongly enough”. She engaged in oral sex with the applicant twice (at which stage of the incident is not entirely clear), without being physically forced to do so; and when events were interrupted by a friend inviting the applicant to go fishing, she told him, “Next time”. This last remark, of course, is relevant for the complexion it might have lent to the earlier events.

33.It is true that the applicant did not give evidence and to that extent it may be wondered whether the necessity for a direction along the lines of a genuine but mistaken belief arose. However, the evidence we have just referred to did not come from the applicant, but from X herself. The judge did properly give the jury a direction on recklessness in the context of rape.[62] Nevertheless, recklessness does not obviate or nullify the need for a genuine and mistaken belief direction where it properly arises on the facts of a particular case. Such a direction serves to address the issue of whether a defendant was actually shown to be aware of a risk that the complainant was not consenting before doing as he did. We think in the present case that there was an issue as to whether the applicant realised or appreciated that risk.

34.We wish to make clear that it is not in every case where consent is in dispute that the need for a genuine but mistaken belief direction arises: in many, if not most cases, such a direction would be unwarranted and unnecessary. In the decision of the Court of Appeal of England and Wales in R v AC,[63] Clarke LJ (later Lord Clarke of Stone-cum-Ebony JSC and NPJ) surveyed several decisions in that jurisdiction on the interplay between recklessness and genuine but mistaken belief, which survey is worth setting out in full:

“8. We have been referred to a number of authorities. It seems to us to be sensible to consider first the relevant principles before discussing the facts and the application of the principles to the facts.

9. Mr Kane submits that not only should the judge have directed the jury that they must be sure that the complainant did not consent to sexual intercourse and that the applicant knew that she had not consented, or was reckless as to whether she consented or not, but also that he should have directed them that if the applicant might have honestly believed that the complainant was consenting, however mistakenly and however unreasonably, he was entitled to be acquitted. Mr Kane does not, however, submit that such a direction should be given in every case. He properly recognises that the authorities show that there are some circumstances in which such a direction need not be given.

10. This Court has considered those circumstances in a number of cases. They have most recently been considered in Adkins 21^st May 1999 which, as it happens, is reported in the latest part of the AER, namely, [2000] 2 All ER 185. In that case the Court rejected a submission that a direction along the above lines should be given in every case.

11. Roch LJ, giving the judgment of the Court, set out the relevant statutory provisions to which we have been referred by Mr Kane. Section 1(2) of the Sexual Offences Act 1956 provides:

‘A man commits rape if—

(a) he has sexual intercourse with a person (whether vaginal or anal) who at the time of the intercourse does not content to it; and

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

12. Section 1(2) of the Sexual Offences (Amendment) Act 1976 provides:

‘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 [or man] 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.’

13. In R v Satnam and Kewal (1984) 78 Cr App R 149, the first ground of appeal was that the judge should have directed the jury that a genuine, though mistaken, belief that the complainant was consenting was a defence to a charge of reckless rape. In that case it was conceded on behalf of the Crown that the judge should have given a direction so that it was not necessary for the court to decide in what circumstances such a direction is required and in what circumstances it is not.

14. However, in giving the judgment of the Court, Bristow J referred to this passage from the judgment of the Court given by Lord Lane, CJ, in Thomas (1983) 77 Cr App R 63 where he said at page 65:

‘In this particular case, the judge should have spelt out in terms that a mistaken belief that the woman was consenting, however unreasonable it may appear to have been, is an answer to the charge, and that it is for the prosecution to eliminate the possibility of such a mistake if they are to succeed. He should then have gone on to deal with the matters set out in section 1(2) of the 1976 Act. As it was the jury were left without any guidance on the matter.’

15. In Adkins the Court rejected the submission that such a direction is always necessary, in part in reliance upon Taylor (1985) 80 Cr App R 327 and Haughian and Pearson (1985) 80 Cr App R 334. In Taylor Lord Lane said at page 330:

‘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 give such a direction would be fair. There must be room for mistake in the case before such a direction is required.’

16. In Haughian and Pearson O’Connor LJ said at page 341:

‘In cases such as the present in which the conflict of evidence between the complainant and the accused was 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.’

17. At page 342 O’Connor LJ adopted the statements of principles from Taylor which we have already quoted.

18. The test adopted in those cases was that there must be room for a mistake before the direction is required. In Adkins itself this Court followed that approach. Roch LJ said at page 191B:

‘In our judgment, these cases demonstrate that Mr Trimmer is wrong in his primary submission that whenever the issue of consent arises there must be a direction as to honest belief. Such a direction need only be given when the evidence in the case is such that there is room for the possibility of a genuine mistaken belief that the victim was consenting. In our view this accords with the basic principle that the jury should not be subjected to unnecessary and irrelevant directions. Similarly, it is only when the issue of honesty arises on the evidence that the requirements of section 1(2) of the 1976 Act apply. We also reject the alternative submission. The question of honest belief does not necessarily arise where reckless rape is in issue. The defendant may have failed to address his mind to the question whether or not there was consent, or be indifferent as to whether there was consent or not, in circumstances where, had he addressed his mind to the question, he could not genuinely have believed that there was consent.

Accordingly the question we have to ask ourselves is whether, on the evidence in this case, it was open to the jury to reach a verdict that the defendant could honestly, but mistakenly, have believed that there was consent. We are satisfied this was not a possible inference on the facts.’

19. Mr Kane accepts that that is the correct approach.”

35.We respectfully agree with Clarke LJ’s analysis of the relevant cases and the principles to be derived therefrom. However, cases such as this vary considerably in their circumstances and present particular difficulties of application, especially where the parties are known to each other and no force (or threat of force) is apparently involved. Such principles, therefore, may not be exhaustive or their application necessarily clear cut.

36.Moreover, in all of the cases cited by Clarke LJ in the above passage from AC, the defendants/appellants had given evidence as to their state of mind before the jury. But what of a defendant who does not give evidence and says nothing under caution upon arrest or during interview? On this issue, a case of some assistance is the decision of the Scottish Court of Appeal in McKearney v HM Advocate.[64] There, as with the case before us, the appellant, who had been convicted of rape, did not give evidence at his trial. Nevertheless, Lord McCluskey, giving one of the two principal judgments of the Court, held:[65]

“It was also clear that, although the jury had clear evidence that the complainer did not consent to the intercourse and was frightened, even terrified, because of the appellant’s behaviour, there was ample evidence, including that of the complainer herself, that she said and did nothing to indicate to the appellant that she was not consenting to intercourse. Thus there was clearly room for the jury to form the view that, although the complainer did not consent to the intercourse, and that therefore the actus reus was established, none the less the possibility that the appellant acted in the belief that she was consenting was not excluded; the evidence led did not exclude that possibility. If he had acted in that belief then he would not have possessed the mens rea that is essential to the commission of the crime of rape. It was for the Crown to establish that he had the necessary mens rea. In these circumstances the jury should have been given clear directions about the need for the Crown to establish mens rea by sufficient evidence, that is to say by full legal proof.” (Emphasis supplied)

37.The Court further drew a distinction, which has not been adopted in the English authorities on rape, between cases where force, or the threat of force, is used and cases where it is not. Lord McCluskey concluded:[66]

“Following the decision in Lord Advocate’s Reference (No 1 of 2001), it is now clear, as accepted by the Crown, that in any rape case in which there is no evidence of the use or threat of force at the time of, or immediately preceding, the sexual penetration, and the evidence provides some proper basis upon which the jury might hold that the man believed that the woman was consenting to intercourse, specific directions on mens rea, including direction about actual, honest belief, will be required. These directions will have to include a direction that the onus is on the Crown, and a direction as to the need for full legal proof of mens rea.”

38.The Lord Justice Clerk of Scotland (Lord Gill), giving the other principal judgment of the Court, drew a similar distinction between cases where force (or the threat of force) is used by a defendant and cases where it is not, but the point he was endeavouring to make was simply that in those cases where force was not part of the prosecution case, “the question of the complainer’s consent, or lack of it, is more difficult to resolve”.[67] He went so far as to hold that in such cases, “the question of the accused’s knowledge or recklessness as to the complainer’s consent and the question of his honest belief are inextricable”.

39.We would make three points about the decision in McKearney v HM Advocate. Firstly, the lack of force by the defendant cannot itself be determinative of the question whether a genuine but mistaken belief direction should be given. One can envisage cases where a girl verbally signifies her refusal to engage in sexual intercourse, and yet there is no suggestion of force, or the threat of force, being exerted upon her. The courts have, as Zervos JA has noted in his judgment, moved on from assumptions that because there was no force there cannot have been a rape. Sometimes, girls or women are caught up in a situation which they do not know how to react to or deal with. Accordingly, just because no force is apparently used by the defendant cannot mean that a genuine but mistaken belief direction must automatically be given to the jury. Nevertheless, as the Lord Justice Clerk observed, the issue of consent, or the lack of it, is more difficult to resolve where force is not part of the prosecution allegation. Much will depend on the evidence as to whether such a direction is given in a particular case.

40.Secondly and correspondingly, the use of force, or the threat of force, would almost certainly vitiate any supposed genuine but mistaken belief on the applicant’s part: a defendant could not in the normal course contend that he thought the complainant was consenting when he had threatened or used force to overbear her will or secure that consent.

41.Thirdly, when Lord McCluskey used the expression “ample evidence”, he was not prescribing a general threshold of evidence before the issue becomes a live one, but merely describing the evidence there was in that case, even, as we have pointed out, without the benefit of the appellant’s testimony. As Lord Lane LCJ put it in R v Taylor:[68]

“The nature of the evidence … will determine whether or not such a direction is advisable and whether such a direction would be fair. There must be room for mistake before such a direction is required.”

42.We have already characterised the case before us as a very unusual one, and the issue is not perhaps immediately obvious or necessarily clear cut. Nevertheless, we consider that there was room for mistake in the present case and the jury ought to have received a tailored direction to the effect that if, looking at all the evidence and circumstances of the case as a whole, the applicant may not have realised there was a risk that X was not consenting, and may have genuinely believed, however unreasonably, that she was consenting, then he must be acquitted. The particular problem in this case was that while the applicant accepted there was sexual activity between himself and X, it fell short of actual penetration. However, it was open to the jury to find, as they must have done, that he did penetrate X with his penis. Yet that cannot mean that the Court must then jettison all its concerns about the evidence and circumstances pointing to the possibility of a genuine but mistaken belief on the applicant’s part simply because he did not give evidence.

43.This view finds support in certain obiter dicta of Pang JA in HKSAR v Chan Mei Wah Yummy,[69] where, in giving the judgment of the Court, he said:[70]

“It is in fact not uncommon to see a particular alternative which is inconsistent with the defence run by the defendant placed before the jury for its determination. For instance, in the case of an accused who is charged with rape, although he denies having sexual intercourse, if and when there is evidence to show that he genuinely but mistakenly believes the female victim consented to sexual intercourse, it is still a common practice for trial judges to place the defence of ‘being genuinely mistaken’ before the jury for its determination at the same time. This is a classic example of the application of the above principle. The underlying reason is that even if the jury disbelieve the defendant’s allegation of having no sexual intercourse, the accused is not deprived of a defence he should have to the accusation.”

The Court in Chan Mei Wah Yummy spoke of putting the defendant’s genuine but mistaken belief before the jury in appropriate cases as “a common practice” and as a “classic example” of the principle that a judge must put a defence before the jury if there is a proper evidential basis for it.

44.For these reasons, we think that, by not giving the jury a direction as to genuine but mistaken belief, the applicant lost a chance of acquittal from a jury who were only prepared to convict him by a majority. It is a not a case for the application of the proviso to section 83(1) of the Criminal Procedure Ordinance, Cap 221, because the lack of the direction effectively meant that the jury did not receive full and proper instructions on the vital issue of mens rea.

45.For the sake of completeness, we have also considered whether we should substitute a conviction for some other offence, but even a conviction for indecent assault must founder, for the same reasons concerning consent which have caused us to allow the applicant’s appeal against conviction for rape.

46.Before departing from the case, however, we would like to stress that this Court is not saying it would, or the jury should, have disbelieved X. On the contrary, she was initially reluctant to report the matter to the police and gave an account, which seems to us to have been free from vindictiveness, malevolence or bad faith. And certainly, the jury must have accepted the essentials of her evidence. Rather, it was X’s very fair concessions as to her own uncertainties which have led us to allow this appeal.

47.Accordingly, the application for leave to appeal against conviction is granted, the appeal is allowed and the sentence is duly set aside.

Hon Zervos JA:

48.The question arising from this case is whether the applicant may have held a genuine but mistaken belief that X was consenting to sexual intercourse. If there was room for the possibility that the applicant had such a belief, whether the evidence or foundation for it came from the prosecution or the defence, then the judge had to give appropriate directions to the jury on this issue.

The renewed leave application

49.I was the single judge who refused the applicant’s application for leave to appeal against his conviction, which was primarily based on the issue of genuine but mistaken belief. The applicant has renewed his application, and this requires me, as a member of the full court of the Court of Appeal, to consider the matter afresh with the benefit of sitting with two other judges and receiving augmented submissions from the parties.

50.This situation was addressed by the Court of Final Appeal in HKSAR v Md Emran Hossain.[71] Fok PJ, with whom the other judges agreed, explained that a renewed application is not an appeal against a single judge’s decision but rather a further hearing of the same application, which will eventually lead to a final determination of the application.[72] He addressed the circumstances where the single judge had refused the application and was then a member of the Court of Appeal, which was to rehear the leave application. As he further explained,[73]

“… if the single judge were minded to refuse the application, the applicant would have the benefit of the judge’s reasons for doing so before exercising his right to have the application for leave to appeal finally and fully determined by a three-judge court. That full Court of Appeal would be constituted by a majority of the judges other than the single judge and would have the power and practical ability to overrule the single judge who initially refused leave to appeal. The single judge may well change his mind on the rehearing and is not required to adhere to his original refusal.”

51.He pointed out that whilst the issue before the single judge was the same issue as that on the renewed application, it involved “a reconsideration of the initial, and necessarily provisional, refusal of leave by the single judge and may involve additional grounds and, if admissible, new evidence.”[74] He noted that the single judge is not bound by any views previously expressed and can change his mind as to the outcome, emphasising that the decision of the Court of Appeal on the rehearing is a fresh and final determination of the leave application.

52.Having previously assessed the evidence as not providing a foundation that the applicant may have mistakenly believed X was consenting, I am now of the view that such a foundation has been established and agree with the judgment of Macrae VP. I should explain that I gave a lengthy leave judgment when I came to my decision, but I will not go into the details of my previous analysis and reasoning. It suffices to say that the decision was based on an assessment of the evidence as a whole, directed to whether the applicant believed or may have believed that the complainant was consenting, bearing in mind that there was no evidence from the applicant, who had exercised his right to remain silent. I took into account the defence case at trial, which was that no sexual intercourse took place between the applicant and X; that X consented to the sexual intimacy which took place between them; that it was a case of consent or no consent; and that it had not been argued that the applicant had a genuine but mistaken belief that X was consenting. However, upon an extensive reappraisal of the facts and circumstances of the case in light of the relevant legal principles, certain matters came into sharper focus, providing the evidential foundation for a genuine belief direction.

The evidence at trial

53.The prosecution case was primarily based on the evidence of X and A, X’s friend, whom she contacted after the incident with the applicant, to establish evidence of recent complaint. It is in X’s account of the incident and her communications with A that the question arises as to whether the applicant may have held a genuine but mistaken belief that she was consenting.

54.The evidence at trial has been extensively summarised by Macrae VP in his judgment, and I shall set out a brief overview of the respective cases of the prosecution and the defence.

55.X was 17 years old and a Form 5 student at the time of the offence. The applicant was 26 years old and a professional football player. They first met late at night on 11 March 2021, and after texting each other, they arranged to have a late night meal on 16 March 2021. The applicant drove X to a remote location where they had their meal. Afterwards, they moved to the back seat of the car. The applicant started kissing and fondling X, who resisted and said “No” to him. He removed her clothing and put his finger and then his penis in her vagina.[75] She also twice performed oral sex on him against her will.[76] She did not strongly display her disapproval during the incident because she was scared and gave up refusing.[77]

56.A testified to X’s complaint to her immediately after the incident.[78] A matter raised at trial regarding X’s inconsistent evidence was her statement to A that she performed oral sex on the applicant before they had sexual intercourse.[79] In her evidence, X said she twice performed oral sex on the applicant after sexual intercourse.

57.The applicant elected not to testify or call any witnesses on his behalf.[80] When he was cautioned about the alleged rape, he had responded that he had nothing to say.[81] It was the defence case that the applicant had consensual sexual activity with X.[82] In the back seat of his car, he penetrated X’s vagina with his finger but did not have sexual intercourse with her.[83] X also willingly performed oral sex on two occasions.[84] There was no resistance from X, who did not express any disapproval of the applicant’s advances.[85]

The offence of rape

58.Section 118(3) of the Crimes Ordinance provides that 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.”

59.The act of sexual intercourse must consist of penetration of the woman’s vagina by the man’s penis. The mens rea regarding consent in rape is that the accused, “at that time, knows that she does not consent to the intercourse or is reckless as to whether she consents to it.” For this purpose, the accused is reckless if he foresees the risk of a lack of consent but does not care whether the complainant is consenting or not, and carries on regardless in having sexual intercourse with the complainant. In DPP v Morgan,[86] the House of Lords held that an accused who mistakenly believed that the complainant was consenting was not liable for rape and there was no requirement that it was reasonable for him to hold that belief. Following the House of Lords’ decision, section 118(4) was enacted in 1978, which reads:

“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.”

A genuine but mistaken belief

60.It is an answer to the charge of rape if the accused genuinely believed the complainant is consenting, even if the belief was mistaken or unreasonable. In R v Satnam and Kewal,[87] the English Court of Appeal held that in summing up a case of rape which involves the issue of consent:[88]

“…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.”

61.There is no general requirement that a direction on a genuine but mistaken belief in consent must be given in every sexual offence case, and its necessity depends on the circumstances, in particular the evidence of the complainant and the accused: DPP v Morgan; R v Taylor;[89] HKSAR v Ma Kin Yiu.[90] The direction is only required if, on the evidence as a whole, there is (room for) the possibility that the accused believed, or may have believed, that the complainant was consenting, even if such belief was unreasonable: Ma Kin Yiu.[91] In Taylor, the English Court of Appeal emphasised that the court would give such a direction only where there was room for a defence of a genuine but mistaken belief:[92]

“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.”

62.The purpose of the direction is to ensure that the jury does not convict unless they are sure the accused did not genuinely believe in consent. It protects against an unfair conviction where a genuine misunderstanding may have existed. The primary consideration on the issue of a genuine belief would be the evidence of the complainant and the accused, particularly in respect of their relationship and the incident; other circumstances such as a history of consensual activity, ambiguous conduct, or communications before or during the incident that could give rise to genuine belief; and the nature of the contest between the parties, particularly if it was stark where there was no middle ground for mistake or scope for misunderstanding. It will depend upon the particular circumstances as to whether there is a case of genuine belief and whether there is sufficient evidence for the issue to be raised.

63.In cases where the conflict of evidence between the complainant and the accused was acute, once the jury found that the complainant had not consented to intercourse, there would usually be no room for genuine but mistaken belief, and a judge is under no obligation to give a direction addressing such a belief. This was explained by the English Court of Appeal in R v Haughian and Pearson[93] in the following remarks:

“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.”

64.Reference has been made to the judgment of the Scottish Court of Appeal in McKearney v HM Advocate,[94] but I do not agree with the Court’s remarks regarding the absence of the use or threat of force. Lord McCluskey, giving one of the two principal judgments of the Court, remarked on drawing a distinction between cases where force, or the threat of force, is used and cases where it is not. He said that “in any rape case in which there is no evidence of the use or threat of force at the time of, or immediately preceding, the sexual penetration, and the evidence provides some proper basis upon which the jury might hold that the man believed that the woman was consenting to intercourse, specific directions on mens rea, including direction about actual, honest belief, will be required.”[95] A similar sentiment was expressed by the Lord Justice Clerk of Scotland, giving the other principal judgment of the Court, who observed that in cases where force is not part of the prosecution case, the question of the complainant’s consent, or lack of it, is more difficult to resolve.[96]

65.The old authorities tended to concentrate on whether force had been used, but the law has moved on. The offence of rape is constituted by a lack of consent and is not dependent on force: DPP v O’R[97]. I found the decision of the seven member Supreme Court of Ireland in DPP v O’R of particular assistance. Charleton J, giving the judgment of the Court, provided a comprehensive review of the legal framework of the offence of rape and discussed the relevant statutory provision in Ireland, which is in similar terms to section 118 of the Crimes Ordinance.[98] In his review of the offence of rape, he discussed the defence of genuine but mistaken belief:[99]

“… it may be claimed by the accused at trial that the man genuinely believed that the victim was consenting, even where the basis for such a belief is totally unreasonable. The resolution to any such claim must depend, in the first instance, on the jury deciding what facts they accept beyond reasonable doubt. The absence of consent to sexual intercourse is an objective fact. The accused’s view as to the existence, or non-existence, of this fact is subjective. An honest, though unreasonable, mistake that the woman was consenting is a defence to rape. Any such alleged belief in consent must be genuinely held. Self-deceit is not a defence. Certainly, while the test of belief is subjective, even still, individual states of mind are based on how the underlying facts are resolved.

…

Belief in a set of facts is generally only validly grounded on circumstances which themselves have a foundation in reality and it is for the jury in a given case to determine whether a claim of honest though unreasonable belief in consent was held by the accused.”

66.Charleton J also discussed how a judge should address the jury on this defence, emphasising that it requires “genuine belief.”[100]

67.There must be room for mistake on the facts before a direction is given. To this end, the facts and the way the issue is raised are significant. As stated in R v Adkins,[101] a direction need only be given where the evidence in the case is such that there is room for the possibility of a genuine but mistaken belief that the complainant was consenting. The question to be asked is whether, on the evidence in the case, it was open to the jury to reach a verdict that the accused could genuinely, but mistakenly, have believed there was consent. It is appropriate to note that in HKSAR v Chau Yui Ming,[102] Ma CJ, with whom the other judges agreed, in examining the circumstances in which a judge is required to direct a jury on an alternative verdict that was not advanced by the defence, explained that it was where there is an obvious alternative verdict which is supported by the evidence.[103] Similarly, for the defence of genuine but mistaken belief to be a live issue, it must be obviously raised by the evidence.

The specimen directions on consent and genuine belief

68.The Specimen Directions in Jury Trials, 2020 Revision, Chapter 111 dealing with Sexual Offences provides a series of directions, addressing various circumstances, on the elements of rape.

69.As to consent, it is noted that it is for the prosecution to prove that the complainant did not consent. The following definition of consent is suggested:

“[… Consent involves a conscious and voluntary agreement on the part of [the complainant] to engage in sexual intercourse with [the defendant]. It can be given verbally or expressed by actions. Similarly, absence of consent does not have to be communicated in words; it may also be communicated in other ways such as the offering of resistance, although this is not necessary, for a person who does not offer actual physical resistance to sexual intercourse is not by reason only of that fact to be regarded as consenting to it. Consent which is obtained after persuasion is still consent provided that ultimately it is given freely and voluntarily.[104]]

70.Where the circumstances call for a direction as to the difference between “consent” and “submission” and its relevance, the following is suggested:

“[… [The complainant] has testified that although the defendant did not threaten her or use any force on her, she did not consent to sexual intercourse but submitted to it, because [specify]. The law does not require a complainant to have resisted physically, nor is it necessary to show that a woman’s submission was induced by force or fear. It is important to draw a distinction between consent and submission. Consent in some situations may be given enthusiastically, whereas in others it is given with reluctance but it is still consent. However, where a person gives into something against her free will, that is not consent but submission. It is for you to say, having considered all of the evidence, where the line is to be drawn in this case bearing in mind that it is for the prosecution to prove that [the complainant] did not consent to sexual intercourse.

In order to prove that [the complainant] did not consent, it is not necessary for the prosecution to prove that she was subjected to threats or violence or that she was overpowered or put up a struggle or that she told the defendant that she did not consent. In deciding if [the complainant] consented or whether, on the other hand, she merely submitted to something which she did not want, you should apply your combined good sense, your experience, and your knowledge of human behaviour and modern behaviour to all the relevant facts, including, obviously, their relationship and what you have heard about that. What you have to decide is whether the prosecution have made you sure that at the time that sexual intercourse took place, [the complainant] did not consent to it.][105]”

71.I have highlighted this direction of “consent and submission” because of its relevance to the present case. The dividing line between rape and sexual intercourse is consent. Submission by the complainant does not equate to consent because she has yielded to the accused’s sexual advances against her own free will. The law does not require a complainant to have resisted physically, nor that her submission was induced by force or fear.

72.Where genuine but mistaken belief is a live issue, the following direction is suggested:

“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.”

73.As pointed out in the commentary to 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.[106] By way of observation, it would seem prudent to examine and consider the changes in England and Wales, as well as those in other jurisdictions, to the law relating to sexual offences, in the context of Hong Kong.

Addressing genuine belief

74.The prosecution must prove beyond reasonable doubt, all the elements of the offence of rape, and disprove any defence raised by the accused or raised on the evidence. When the defence of genuine but mistaken belief is raised, the prosecution must disprove the defence; that is, the prosecution must prove, beyond reasonable doubt, that the accused did not genuinely hold a belief that the complainant gave consent to the sexual intercourse. There must be sufficient evidence that raises a factual issue about whether the accused believed that the complainant had given consent in some way.

75.An accused in a criminal trial is not obliged to give or call evidence, but may do so. An accused’s evidence that the complainant gave consent is evidence that the accused held a belief that the complainant gave consent. If he does not give evidence, a genuine belief might still be raised by evidence in the prosecution case. If it is raised, the jury must be directed to consider whether the defence is disproved.

The issues at trial

76.In the present case, defence counsel agreed with the judge that it was a case of “rape or no rape”. In other words, it was a case of “consent” or “no consent” and there was no middle ground.[107] Defence counsel did go on to say that while there were the elements of penetration and lack of consent for rape, there was the additional element of the applicant’s knowledge.[108] The judge addressed the elements of the offence of rape in her written and oral directions to the jury.

77.Defence counsel in his closing address to the jury, after referring to the elements of penetration and no consent, told them that there was one more matter that they had to consider, whether “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 of Mr Yip and not what Ms X is thinking in her own mind.”[109]

The summing-up

78.According to the case presented by the parties, the judge gave impeccable directions to the jury on the law, focusing on the issue of consent. She told the jury that consent “involves a conscious and voluntary agreement on the part of X to engage in sexual intercourse with the defendant. Consent can be given verbally or expressed by actions.”[110]

79.The judge, guided by the specimen direction, gave the following instructions to the jury when applying the question of consent to the facts of the case:[111]

“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.”

80.The judge then went on to instruct the jury on the issue of knowledge and recklessness:[112]

“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’.”

The foundation for a genuine but mistaken belief

81.Whilst the applicant submits there was a foundation on the evidence for an genuine belief direction, the respondent contends 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 but mistaken belief by the applicant that X was consenting to sexual intercourse.

82.In determining whether there is an evidential foundation that the applicant held a genuine but mistaken belief that X was consenting, it will essentially require an examination of the evidence of X and A, because the applicant exercised his right to remain silent. In previous cases of this type, the accused usually had testified or relied on his out-of-court statements or both, to argue that the complainant was consenting, or that he held a genuine but mistaken belief she was consenting. However, the foundation for such a belief may be established from other evidence, particularly the complainant’s evidence. It is also important to note the distinction between evidence going to the issue of consent and genuine belief. The evidence regarding these two issues may be distinct, but they could also overlap. Conduct after the sexual intercourse is less likely to be relevant to the defence of genuine belief, unless it has a bearing on the accused’s belief at the time of the sexual intercourse.

83.In examining the evidence, it is appropriate to note that X consistently maintained that she did not consent, and explained her behaviour at times as a reaction to trauma and fear, submitting to her circumstances.

84.The applicant points to the following evidence supporting his claim that X consented to sexual intimacy, or that provided grounds for his belief that X consented: (1) X exchanged friendly and frequent messages with the applicant in the days before the incident and willingly agreed to meet him for a meal at night and be picked up by car. (2) X did not object to the changed dinner arrangements or being taken to a remote location.[113] (3) X did not resist or refuse the applicant putting his hand around her shoulder when walking to or in the car, which she described as a “normal action for an ordinary friend”.[114] (4) After eating the meal, X agreed to the applicant’s suggestion to move to the back seat and did not express any objection or apprehension in doing so.[115] (5) X admitted in her audio-recording that the applicant “started being handsy” and kissed her, but she “did not completely refuse strongly”.[116] (6) After the applicant tried to kiss and touch her, X asked him if he had a girlfriend or treated everyone like that, and then felt sorry for hurting his feelings - she “comforted him patting his shoulder and touching his head”.[117] (7) X did not take any observable steps to leave or signal distress, although she explained her inaction as being frozen or scared. (8) X initially refused to perform oral sex but ultimately complied, explaining she wanted the incident to end quickly. She performed oral sex on two occasions. According to A, X told her that she performed oral sex on the applicant before sexual intercourse took place. (9) In her messages to A, X was ambiguous about whether she was raped, saying “I think I just got raped” and “I don’t know”. (10) In her audio-recording, X said she “did not completely, refuse strongly”, “I did not express strong enough, that is, my will of not wanting to be kissed”, and “I believe that from his perspective, he may not consider this a kind of rape”.[118] X said to A, “I feel like I seem to be raped”,[119] and to the psychiatrist, “I think I got raped”.[120] (11) After the applicant received a message from his friend to go fishing, and he wanted to leave, X said “Why don’t we stop here?”, whereas in her video recorded interview she said “Next time”, insisting that he go fishing. This occurred while she was performing oral sex on the applicant.[121] (12) In her audio-recording, she said that after the incident, she pretended to be normal.[122] After she was dropped off, she realised she had left her face mask in the car and returned to collect it.

85.I agree with Macrae VP’s judgment that this was an unusual case where the prosecution evidence provided a foundation that the applicant may have held a genuine but mistaken belief X was consenting to sexual intercourse, notwithstanding that there was no defence evidence and the defence case was that the applicant did not have sexual intercourse with X.

86.A matter which I considered to be significant was that X physically resisted the applicant’s advances and repeatedly said, “No”, and it would appear that the jury, by its verdict, accepted her evidence. However, there was also evidence of genuine belief that was not addressed, and hence the jury were not directed to consider this defence. The lack of this direction was a material irregularity that rendered the conviction unsafe and unsatisfactory.

Mr Beney Wong SADPP, of Department of Justice, for the Respondent

Mr Charles J Chan and Mr Brian Yu, instructed by Francis Kong & Co, for the Applicant