HKSAR v. Yip Ka Yu

CACC 185 /2023

[2025] HKCA 718

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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REASONS FOR JUDGMENT (RETRIAL)
AND
JUDGMENT (COSTS)

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Hon Macrae VP (giving the Reasons for Judgment and Judgment of the Court):

1.On 19 June 2025, this Court gave judgment allowing the appellant’s appeal against his conviction for rape. On 23 June 2025, Mr Ira Lui, on behalf of the respondent in place of Mr Beney Wong, gave notice of his intention to apply for a retrial, which application is opposed by Mr Charles Chan, on behalf of the appellant.

2.The ordering of a retrial is a matter of discretion for the Court to be exercised in a principled way if the interests of justice so require. To that end, Mr Lui has placed before the Court those factors weighing in favour of ordering a retrial, but also those factors against. In respect of the latter, he acknowledges, firstly, that there is a lapse of 4 years and 3 months since the alleged offence and any retrial will not take place before January 2026 even if it were to be listed expeditiously; and, secondly, that the appellant has already served half of his effective sentence. On the other hand, he has reminded the Court that rape is by its very nature a serious offence, the trial was very short, the witnesses are all available and willing to give evidence (save that A, to whom X made the complaint, is somewhat reluctant to testify a second time) and the appellant would not be prejudiced forensically by having to go through a second trial.

3.So far as the Court’s judgment was concerned, Mr Lui submitted that the “sole reason for allowing the appeal” was the inadequacy of the judge’s summing-up on the issue of genuine but mistaken belief. Moreover, the jury must have found that intercourse took place, as indeed the Court accepted[1].

4.Mr Chan’s principle concern in response was that the prosecution should not be able by way of retrial to “patch up” or supplement its case, which should have been clarified at the original trial. He submitted that the evidence could not be described as strong, particularly in view of the Court’s concerns with the specific features recited and referred to in its judgment.

5.One of the primary considerations when ordering a retrial is the strength of the prosecution case. On this matter, Mr Lui conceded that while the evidence could not necessarily be described as strong, it was nevertheless sufficient to warrant a retrial. While that may be so in quantitive terms, the whole thrust of the Court’s judgment concerned the quality of the prosecution evidence and what it variously described as “a number of curious features”[2], inconsistent evidence[3], “an unusual case”[4] and an issue for the jury which was “not perhaps immediately obvious or necessarily clear cut”[5], culminating in the observation that “it was X’s very fair concessions as to her own uncertainties which have led us to allow this appeal”[6]. This was a case where not only was the appellant’s state of mind in issue, so was the actus reus, leaving the Court to wonder “exactly what had really gone on during the incident described”[7]. And ultimately, the jury convicted by a majority of 5:1 (one juror having been earlier discharged).

6.Accordingly, we consider that Mr Lui’s identification of the lack of the requisite direction by the trial judge as the “sole reason” for this Court allowing the appeal does not quite do justice to our overall concerns about the evidence.

7.In terms of the prosecution being able to “patch up” its evidence at a retrial, the Court was particularly concerned with a statement recorded by X on 18 March 2021, in which she confirmed in cross-examination she had said, “After the incident, I believe from his point of view he might not think this was rape.” This was a curious remark to make, for which there may be a number of interpretations, but, unfortunately, it was not followed up or explored in re-examination. We would normally be concerned whether the prosecution should be entitled to ask the witness to render an explanation for this statement at a retrial, when it could and should have done so at the original trial. On the other hand, it should be remembered that the actual defence run at trial was not one of genuine but mistaken belief. So, unsatisfactory as it was for the jury to be left to wonder what this rather baffling statement meant, we do not think it a sufficient reason in itself for not ordering a retrial.

8.It is true, as Mr Lui has shown, that a retrial in a rape case has been ordered some 4 years after the date of the offence: see HKSAR v Cheung Tze Hong[8]. However, that was a very serious case involving multiple offences, namely 4 rapes of two different women and associated offences of indecent assault, false imprisonment, assault occasioning actual bodily harm and robbery. There was clearly and undoubtedly a significant public interest in the ordering of a retrial in that case.

9.Balancing the factors for and against the ordering of a retrial, in the context of a full appreciation of the evidence and proceedings at trial, we have reached the conclusion that it is not in the public interest to order a retrial in this particular case. Accordingly, we decline the respondent’s application.

Costs

10.Following the hearing, the appellant made an application for costs. That matter has been discussed and resolved between the parties themselves and, accordingly, costs will be granted to the appellant only for the appeal (including the applications for leave to appeal and bail pending appeal, as well as the appeal before the full Court) and the application for retrial, to be taxed if not agreed. For the avoidance of doubt, there was no application for a certificate for two counsel.

Mr Ira Lui ADPP, of Department of Justice, for the Respondent

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