HKSAR v. Hung Hing Luen

CACC 3/2024

[2025] HKCA 832

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 3 OF 2024

(ON APPEAL FROM HCCC NO 83 OF 2023)

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REASONS FOR JUDGMENT

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Hon Zervos JA (giving the Reasons for Judgment of the Court):

1.On 19 October 2023, following a trial before Deputy High Court Judge Douglas Yau (as Yau J then was) (“the judge”) and a jury, the appellant was convicted of one count of rape contrary to section 118(1) of the Crimes Ordinance, Cap 200 (“Cap 200”) (“Count 1”) and one count of indecent assault contrary to section 122(1) of Cap 200 (“Count 2”). On 14 December 2023, the appellant was sentenced to concurrent terms of 11 years’ imprisonment on Count 1 and 12 months’ imprisonment on Count 2.

2.It was alleged that, on separate occasions during the summer of 2016, the appellant raped and indecently assaulted a 9-year-old girl (referred to as “X” at trial), who was living with the appellant and his wife under their foster care at the time of the offences.

3.On 5 January 2024, the appellant filed a notice of application for leave to appeal against his convictions. On 3 September 2024, the Single Judge[1] granted leave to appeal on all four grounds advanced by counsel for the appellant.

4.At the conclusion of the hearing, we allowed the appellant’s appeal against his convictions. Consequently, we quashed his convictions and set aside his sentence. The respondent informed the Court that it was not seeking a retrial.

The prosecution case

5.X’s mother (PW2, referred to as “Y” at trial) placed X under the foster care of the appellant and his wife (whom X referred to as “Uncle” and “Auntie”, respectively) in 2012, when X was five years old. X lived with her foster parents on weekdays and spent the weekends with PW2. She remained with her foster parents until 2015, when she was placed with another foster family for six months, but returned in early 2016 and stayed with them until late 2018. She returned again and lived with them between early 2019 and 2020.[2]

6.On a night in the summer of 2016, the appellant allegedly raped X in his bedroom. He undressed and fondled her, then laid her on the bed and had sexual intercourse with her. She experienced great pain and protested, feeling an intense tearing sensation and asking him to stop. The incident lasted approximately 5 to 10 minutes. Afterwards, she went to the toilet and wiped herself, noticing blood and some discharge. It was not until she was older that she realised the appellant had ejaculated inside her. The appellant told her not to tell anyone and to keep it a secret between them.[3]

7.Later that evening, when the appellant’s wife returned home, X did not mention the incident to her. The wife appeared to be in a bad mood, and X was scared because the appellant had told her not to tell anyone. She did not have the courage to tell anyone at school the next day. Nor did she tell PW2, as she was afraid and did not want to worry her mother, whose relationship with her boyfriend was strained at the time. It was during sex education classes at school in 2018 that X realised she had been raped by the appellant.[4]

8.One evening, approximately one week after the alleged rape, while X was in the kitchen, the appellant stood behind her. She felt his penis touching her buttocks for 1 to 2 seconds. She shook him away, and he left the kitchen.[5]

9.Approximately six years later, on 23 August 2022, X became intoxicated at a friend’s home and confided in her then girlfriend (PW3, referred to as “Z” at trial) that the appellant had raped her when she was nine years old, during a time when her auntie was not at home.[6] Several weeks later, on 3 September 2022, she became drunk after work and was in a distraught state. She attempted to jump off a building but was stopped by PW3 and a friend, who called the police. X subsequently told the police officer, (PW4, WPC 8881), who accompanied her to the hospital, that she had been raped by the appellant.[7]

10.On 14 September 2022, X was interviewed by a clinical psychologist. The interview was video-recorded and submitted at trial as her evidence-in-chief, in accordance with the provisions for vulnerable witnesses. She recounted the events of the summer of 2016, describing how she was raped and indecently assaulted by the appellant. She also explained how the matter came to light when she confided in her then girlfriend, PW3, on 23 August 2022. On another occasion, when she was intoxicated and acting erratically, she again told PW3 that she had been raped by her uncle. Unable to control her, PW3 and a friend called the police. She again disclosed the rape to the police.[8] She later testified in court via video link and was cross-examined.

11.As part of the prosecution case, both PW3 and PW4 gave evidence, describing what X had told them about the sexual abuse she had endured. PW3 testified that she became acquainted with X in late June 2022, when X was fifteen and she was eighteen. On 22 August 2022, PW3 attended a party where X was also present. Early on 23 August 2022, X took PW3 into the washroom to talk. X appeared upset and intoxicated. She then described in detail how her uncle raped her when she was nine years old. She expressed that she wanted to die and appeared deeply distressed. PW3 took X to her home, where she stayed the night. PW3 stated that she sympathised with X, and they became close, but the relationship eventually ended. During cross-examination, defence counsel suggested that X fabricated the allegations to gain PW3’s sympathy. X denied this, stating that she would not lie to anyone to earn sympathy.[9]

12.PW3 described another incident on 3 September 2022, when a friend of X called her and informed her that X was intoxicated, urging her to come to Leung King Plaza. PW3 went to a rooftop, where she found X in a distressed state, expressing a desire to die. X ran to the edge of the rooftop but was stopped by PW3 and the friend. They called the police.[10]

13.PW4 testified that, in the early hours of 4 September 2022, she went to Leung King Plaza to investigate a case of attempted suicide. She found X lying on the ground, crying. X disclosed that she had been raped and provided details, which PW4 recounted in her testimony.[11]

The defence case

14.The appellant, who had no prior criminal record, elected not to testify but called three defence witnesses: his wife (DW1), his daughter (DW2) and Ms Cheung (DW3), who occasionally cared for X. He relied on the testimonies of the defence witnesses regarding X’s past inappropriate behaviour and the inconsistencies between her evidence in court and her statements to PW3 and PW4. Defence counsel argued that X had fabricated the allegations of rape and indecent assault to gain sympathy from PW3 and as revenge against DW1 and the appellant’s family[12].

The summing-up

15.In his summing-up, the judge described “the fundamental issue” in the case as “whether the prosecution can prove that X is telling the truth”[13]. He summarised the prosecution and defence cases, as well as the evidence of each witness, particularly X’s evidence during evidence-in-chief and cross-examination. After discussion with counsel[14], he also instructed the jury on how to evaluate the evidence of X’s statements to PW3 and PW4 regarding the alleged rape by the appellant.[15]

16.It was evident that the prosecution relied on the testimony of PW3 and PW4 as recent complaint evidence to support X’s credibility, asserting that her account of what happened was “more likely to be truthful.” In contrast, the defence argued that X’s complaints were false, as shown by the differences between her testimony and the accounts she provided to PW3 and PW4.

The grounds of appeal

17.Mr Mark Leung, for the appellant, advanced four grounds of appeal. Ground 1 contended that the judge wrongly admitted X’s complaints of the alleged rape and indecent assault to PW3 on 22 August and 3 September 2022, and to PW4 on 4 September 2022, as evidence to demonstrate X’s consistency with her account, despite there being no legal basis for adducing such evidence. Ground 2 argued that the judge erred in directing the jury that the complaints were relevant in assessing X’s consistency and truthfulness, as there was no legal basis for such a direction. Ground 3 alleged that the judge failed to properly direct the jury on evidence of X’s distressed condition at the relevant time, both before and during her complaints. Ground 4 was a general ground, asserting that the appellant’s convictions on both counts were unsafe and unsatisfactory.

18.The grounds of appeal essentially argued that the evidence of PW3 and PW4 was improperly treated as recent complaint evidence. While prosecuting counsel disavowed that she was relying on the evidence of PW3 and PW4 as recent complaints, their evidence was ultimately presented to the jury in this manner. This was improper and constituted a material irregularity.

19.As a general rule, evidence from a complainant’s post-offence complaint is prohibited by the rule against prior self-serving statements. Similarly, evidence of that complaint by the persons to whom it was made is prohibited by the same rule, as well as by the rule against hearsay: HKSAR v Chak Kong Fai[16]. There are two exceptions to this rule. The first is the recent complaint exception, which applies when the complaint is made at the first reasonable opportunity. The second exception allows a statement to be admitted to rebut an allegation of recent fabrication, provided it was made contemporaneously with the event or at a sufficiently early time: R v Oyesiku (Charles)[17].

20.Ms Angel Yuen, for the respondent, conceded that X’s complaints to PW3 and PW4 did not qualify as recent complaints, as they were not made at the first reasonable opportunity, occurring approximately six years after the alleged incidents. Citing Chak Kong Fai, she argued that the terms of the complaints were nonetheless admissible to rebut the defence’s allegation of recent fabrication. For this purpose, the complaints to PW3 and PW4 could have been admissible to demonstrate the consistency of X’s evidence in court. Accordingly, the jury was entitled to consider such evidence when assessing X’s credibility. She noted that the appellant’s counsel did not object to prosecuting counsel’s opening address, during which it was stated that PW3 and PW4’s evidence would be relied on to demonstrate the consistency of X’s account. However, the issue of the admissibility of the complaint evidence was not canvassed at trial, nor was any ruling made by the judge.

21.Ms Yuen argued that the appellant wanted the complaint evidence before the jury to rely on the discrepancies with X’s evidence to discredit her. However, we observe that it was the prosecution that introduced the evidence of PW3 and PW4 as part of its case. The defence, in turn, cross-examined X regarding previous inconsistent statements she had made to them. It is not necessarily accurate to say that the defence “wanted” the complaint evidence before the jury; rather, once it was presented by the prosecution, the defence cross-examined X on those inconsistencies.

22.Ms Yuen noted that during the judge’s discussion with counsel regarding the directions on the complaint evidence, the appellant’s counsel was “entirely in agreement”[18] with the proposed directions later given to the jury. The appellant’s counsel raised no objection when the judge invited comments at the end of the summing-up. She argued that the judge had explicitly directed the jury that the complaints made six years after the rape were not evidence of what had actually happened and could not be used to prove that X’s account of rape was true. He emphasised that such evidence could only be used for the limited purpose of assessing X’s credibility. She submitted that the jury was properly instructed to avoid using the complaint evidence for an impermissible purpose. She further argued that the direction was favourable to the appellant, as the judge highlighted the defence’s use of the complaint evidence to support its claim that X had fabricated everything. The judge had also reminded the jury to consider the weight of the delay in making the complaint.

23.Regarding the judge’s remarks to the jury on the delay in X’s complaints, Ms Yuen submitted that they conformed with Specimen Direction 111-13[19]. Citing R v D[20], she argued that the appellant’s counsel repeatedly highlighted the delay in X’s complaints and invited the jury to conclude that the delay indicated the alleged incidents had not occurred. Since the appellant effectively invited the jury to make assumptions about the delay, the judge was entitled to instruct them to consider the weight of such evidence. Additionally, the judge had not asked the jury to determine whether X’s complaints were true, which would have been impermissible due to the hearsay nature of the complaints. He merely reminded the jury to avoid making unwarranted assumptions about the delay.

24.The judge gave the jury a direction equivalent to the standard direction for a recent complaint. Regarding the significant delay in making the complaints, the judge instructed the jury to consider and determine whether the complaints were true. Mr Leung argued that these directions were flawed because they were based on the premise that the evidence was admissible. He contended that the judge should have instructed the jury that previous consistent complaints did not bolster X’s credibility, while discrepancies in her account could undermine it. The erroneous direction caused the jury to consider inadmissible evidence of complaints when assessing X’s credibility. Since the prosecution case relied heavily on X’s credibility, the flawed direction unfairly enhanced her credibility and weakened the defence case. The arguments advanced by Ms Yuen failed fundamentally because she acknowledged that X’s complaints to PW3 and PW4 were not recent complaint evidence.

25.Ms Yuen contended that an allegation of recent fabrication was made during X’s cross-examination, and the complaint evidence could therefore have been admissible on that basis. However, as submitted by Mr Leung, the complaint evidence was not, and could not be, admissible to rebut an allegation of recent fabrication because neither the judge nor counsel raised or discussed the issue. Furthermore, the judge did not make any evaluative judgment regarding the admissibility of the evidence for rebutting recent fabrication. It is plain that the complaint evidence was not relied on by the prosecution to rebut recent fabrication.

Discussion

26.In opening the case for the prosecution on 10 October 2023, prosecuting counsel relied on X’s complaints to PW3 and PW4 to demonstrate the consistency between her statements to them and her evidence in court.[21]

“Now, members of the jury, the evidence of the complaint made by X to her girlfriend and to the police in 2022 which I’ve told you about when she was mostly unstable and threatening suicide, that’s not evidence itself of the facts complained of, in other words, just something that she has told but it’s admissible as evidence of the consistency of her conduct with the account given by her in court, for example, in her video interview which will be played to you. So it’s up to you to assess the value of that. Is she being consistent in what she complained of to them and what she is complaining of to you?

And, members of the jury, of course, the prosecution accept that there was no complaint made for approximately six years later. So you will have to decide, find as a fact, whether the reason she has given for not daring to tell anyone at an earlier stage is the truth. The prosecution case is that this was a very young girl, 9 years old at the time of these incidents. She was living in a foster home without anyone she felt she could talk to because she said she didn’t appear to have very good relationship with her foster mother, and she didn’t have any sexual education until a few years later to understand what was happening.

So the prosecution say that these factors help explain why there was this delay in making a complaint about what the defendant did to her, that in fact, she is telling the truth about what happened. But this is the main issue, of course, that you have to decide, members of the jury.” (Emphasis added)

27.In her opening address to the jury, prosecuting counsel submitted that the complaint evidence could be used to show consistency with X’s account in court. She acknowledged that the complaints were made six years after the alleged incidents, but invited the jury to consider the reasons for the delay and to conclude that X was “telling the truth” about what had happened. These remarks are ambiguous, as they suggest that prosecuting counsel was treating the evidence of PW3 and PW4 as recent complaint evidence.

28.On 17 October 2023, at the close of both the prosecution and defence cases, and before the judge’s summing-up, the judge and counsel discussed whether the evidence of PW3 and PW4 qualified as recent complaint evidence. It is notable that this discussion occurred at such a late stage of the proceedings, after the evidence had already been admitted.[22]

“MS CREBBIN: … and the question of the complaints and how they are viewed.

COURT: Question of complaint and how…

MS CREBBIN: The complaint to the girlfriend and to the police officer by her, that evidence isn’t evidence of the truth of what she said. It just shows consistency.

COURT: Now, you called Z, the – Ms Kwok, the girlfriend, then girlfriend. You – it’s not a recent complaint as such you are relying on or are you?

MS CREBBIN: Well, my Lord, no, it’s not – I mean in terms of years, it’s clearly not recent but it is admitted only on the basis that she is saying that it was only later in life that she came to realise this and she came out with a complaint. So perhaps my phraseology is a little bit off on that matter. But, obviously, what I’m trying to say is that, as I explained to the jury in opening, in effect, this evidence is admissible not to prove that she was telling the truth about what she told them but to show consistent things throughout of her account in effect. That is because, obviously, it’s unusual evidence from that point of view, I suppose.

COURT: Well, what Z said X told her, there are differences in that version to the version that X told us in court. There is also – there are also differences in the version X told the police officer 8881 and compared to X’s version in court. I’m sure Mr Shaw will point that out in his closing speech.

MR SHAW: Yes.

COURT: And so surely would show that the prosecution is not saying that there had been a recent complaint, but you’ve just used the evidence of 8881 and Z to try to show that X is – has been consistent in saying that she had been raped…

MS CREBBIN: Right. Now that it’s obviously for the jury to assess whether she is consistent, but that is why this sort of evidence is put forward.

COURT: I know. I know.

MS CREBBIN: The prosecution will say obviously, “Look, there are some minor discrepancies but the major facts we say are consistent throughout her video, her cross-examination and what she told these people. But there are discrepancies and it’s then for the jury to decide whether they are relevant and whether they detract from her reliability and credibility.”

COURT: Okay.

MS CREBBIN: And I accept that, my Lord, but that’s the prosecution position in any event.

COURT: Yes, I keep going back – you notice that – to the phrase “recent complaint” because if you are…

MS CREBBIN: Yes, perhaps I shouldn’t have put it in that term. I don’t – I think in opening, I was just talking about the complaint she made or the – what she told her girlfriend and the police at the time of that suicide, yes.

COURT: I’m not sure you did. I might have put words in your mouth but because there is a recent complaint, then, well…

MS CREBBIN: My Lord, I can, well…

COURT: Well, even if I give the recent-complaint direction, it would be applicable to what you are seeking to use that evidence because a recent-complaint direction would be ‘You’ve heard evidence that shortly’, except this is different. Recent complaint is shortly after the alleged incident, but this is not shortly.

MS CREBBIN: No, of course not, my Lord.

COURT: Okay? So it would be probably be slightly adapted but it becomes not a recent-complaint direction. It’s just a complaint direction.

MS CREBBIN: Yes.

COURT: It’s how are you going to approach Z and the officer’s evidence? ‘They do not – this is not evidence as to what actually happened between X and the defendant because officer was not present and Z was not present. They never saw what happened between them. It’s evidence that you are entitled to consider because it may help you decide whether or not X has told you the truth. The prosecution say that her complaint is consistent with an account and therefore she is more likely to be truthful. On the other hand, the defence pointed out that there are discrepancies between what X told Z and what X told the officer, including some details that’…

MS CREBBIN: Yes.

COURT: … ‘and then it is for you to decide whether the evidence of this, of – whether their evidence helps you to reach a decision, but it’s important that you should understand that their evidence is not independent evidence of what happened between X and the defendant, and it therefore cannot of itself prove that the complaint and what – prove that what X told them is true’.

MS CREBBIN: My Lord, I think that’s perfectly put.

MR SHAW: Yes.

MS CREBBIN: Thank you.

COURT: Okay. Thank you.

MR SHAW: Yes.

COURT: Sorry, Mr Shaw.

MR SHAW: Yes. I’m entirely in agreement with that, yes.

COURT: You agree. Thank you, thank you. So an adapted not-recent-complaint direction. Just so parties know, I – my summary of the evidence tends to be quite comprehensive.” (Emphasis added)

29.During this exchange, prosecuting counsel acknowledged that the evidence of PW3 and PW4 did not fall within the common law exception of recent complaint evidence, which the judge accepted. However, the judge and the parties erroneously decided that a “complaint direction” should still be given to the jury, which was effectively a “recent complaint direction”.

30.In her closing address on 18 October 2023, prosecuting counsel reiterated the importance of the complaint evidence as being “consistent” with X’s testimony.[23] She invited the jury to compare PW3’s account of what X told her about the incidents with X’s testimony in court:

“Now, members of the jury, that was the detail of what Kwok told you she had been told. Now, I suggest that is consistent with everything that X told you. It’s a matter for you. You have to compare the evidence. Of course, it’s not so detailed. X told you she didn’t go into all the minute details with Kwok. And, perhaps, you may think that’s not surprising. It’s a matter for you.” (Emphasis added)

31.Prosecuting counsel described in detail what X told PW3 about the incidents with the appellant.[24] She then described what X had told PW4 and emphasised the following to the jury:[25]

“Again, I suggest to you that what X told the woman officer was consistent overall with everything that X had told you in her evidence-in-chief and cross-examination, albeit, perhaps, not in so much detail. But, again, X told you she didn’t give all the details to the woman police officer either. You may think that is understandable and credible. As I say, you have to assess these matters.” (Emphasis added)

32.The consistency of the accounts X gave to PW3 and PW4 about the incidents with the appellant was emphasised to the jury as evidence that X was “telling the truth.” She stated:[26]

“So members of the jury, I suggest that overall that is a consistent account she told everybody. Members of the jury, is she being consistent because she made it all up and she’s learnt this off by heart, or is she being consistent because it’s something that is imprinted in her mind, so to speak, because it was so traumatic? I suggest if she’d learnt it off by heart, so to speak, was a lie, each account would absolutely be identical. These aren’t quite identical. There is slightly different phraseologies, slightly different details added each time. So I suggest it just all goes to help show that she’s telling you the truth; again, a matter for you. I suggest that what she told both Kwok and the police officer do not in any way detract from her own evidence; in other words, don’t contradict her own evidence.” (Emphasis added)

33.If X’s complaints to PW3 and PW4 were not recent complaint evidence, it raises the question of the basis on which they were adduced into evidence. It appears they were erroneously admitted as general complaint evidence. According to prosecuting counsel, the evidence was introduced to show that what the appellant said to PW3 and PW4 was consistent with her testimony in court, and that she was ‘telling the truth’ about what had happened. The misunderstanding regarding the nature of PW3’s and PW4’s evidence was reflected in the judge’s directions to the jury. He instructed the jury on this evidence as follows:[27]

“Now, in relation to the evidence of Z and officer 8881, I will direct you as follows. You have heard evidence that about six years after the rape, X recounted the rape to Z and then 8881 on two different occasions. This is not evidence as to what actually happened between X and the defendant. That is because Z and officer 8881 they were not present. They were not in the room. They were not watching. They were not present at the time of the alleged offence. They did not see what happened between X and the defendant.

The relevance of their evidence is that for the prosecution they say that what X told them is, in general, consistent with what X told you and the psychologist through the – in the VRI and that, therefore, she is more likely to be truthful. On the other hand – on the other hand, the defence, Mr Shaw, says that look at the evidence of Z and 8881 and what X said happened. You will notice there are discrepancies. The – for example, the sequence of movement, when clothes were taken off, what was said.

There are discrepancies. The defence say these discrepancies, they say, the defence, are important. They suggest that the discrepancies are there because X made everything up. That is why every time she told the story something is different, and they rely on those discrepancies to ask you to find that the prosecution failed to prove to you so that you are sure that X is telling the truth and is accurate in her evidence. This is what the defence wants to use the evidence of Z and 8881 for.

It is for you, the jury, of course, to decide whether the evidence of Z and 8881 would help you to reach a decision, but it is important that you should understand what X told Z , what X told 8881, is not independent evidence of what happened, actually happened, between X and the defendant. They were not there, therefore, that cannot of itself prove that what X said about the rape is true. It goes only to help you to judge whether X is telling the truth. Okay?” (Emphasis added)

34.Near the end of the summing-up, the judge made the following remarks regarding X’s significant delay in making the complaints:[28]

“Now, Mr Shaw had mentioned and said on behalf of the defendant that the fact that X did not report what had happened to her as soon as possible makes it less likely that the complaint she eventually made was true. Whether that is so in this particular case is a matter for you to consider and resolve. However, it would be wrong to assume that every person who had been the victim of a sexual assault will report it as soon as possible.

Experience suggests that victims of sexual offences can react to the trauma in different ways. Some in distress or anger may complain to the first person they see. Others who react with shame or fear or shock or confusion do not complain or go to the authorities for some time. There is, in other words, a classic, typical response. A late complaint does not necessarily signify a false complaint, any more than an immediate complaint necessarily demonstrates a true complaint.

It is a matter for you to determine whether in the case of this particular complaint and, X, the lateness of the complaint such as it is as you and, if so, what weight to attach to it. You need to consider what X herself said about it, as well as what Mr Shaw has suggested to you in his speech.”

35.It is clear that the judge instructed the jury that they could consider X’s complaints to PW3 and PW4 to assess X’s credibility. At the beginning of his summing-up, the judge referred to the complaints as background evidence to explain how the matter was exposed[29], but subsequently treated them as recent complaint evidence. However, as acknowledged during the discussion between the judge and prosecuting counsel, and as conceded on appeal, this evidence was not admissible as recent complaint evidence because it lacked the “recent” element.

36.It is important to understand the legal principles governing recent complaint evidence and the basis on which it can be admitted. As explained in Chak Kong Fai, the common law exception of recent complaint in sexual cases to the prohibition against a witness testifying as to his previous consistent statements allows evidence of recent complaints to be admitted for the limited purpose of assessing the credibility of the complainant’s in-court testimony, but not as proof of the truth of the allegations contained in that testimony. A prosecutor cannot introduce such evidence during the examination-in-chief of the complainant unless intending to call the person to whom the complaint was made to adduce the fact and terms of the complaint: White v The Queen [30]. Additionally, a prosecutor may introduce evidence of post-offence complaints as rebuttal evidence against an allegation of recent fabrication, where the complainant has been cross-examined to suggest that her evidence was fabricated. The prosecutor must clearly inform the court of the purpose for which the evidence is being adduced. This should be done during the case management hearing before trial so the defendant’s position can be ascertained and any disputes regarding admissibility resolved. [31]

37.For evidence to fall within the common law recent complaint exception, the following conditions must be met:[32]

(i)  the victim of a sexual offence must have made a complaint to a third party;

(ii)  the complaint must include an element of spontaneity; the more the allegation results from the prompting conduct of others, the less likely it qualifies as a complaint;

(iii)  the complaint must be made to a third party who is called by the prosecutor and whose testimony confirms receiving the complaint;

(iv)  the complaint must be recent, meaning it was made at the first reasonable opportunity after the commission of the offence (this involves not only a temporal assessment but a broader contextual and subjective evaluation: Chak Kong Fai[33]); and

(v)  the complaint must be capable of enhancing the complainant’s credibility through its consistency with the complainant’s in-court testimony.

38.As noted, it was held by this Court in Chak Kong Fai that the modern law on the requirement for a complaint to be “recent” involves not only a temporal assessment but also a broader contextual and subjective evaluation. This includes having regard to the nature and circumstances of the assault, the role the assailant may play in the complainant’s working or private life, and any special characteristics of the complainant, whether medical, psychological or social.[34] While the temporal proximity of the complaint to the alleged offence remains a key consideration, other significant factors may apply. A delay in making a complaint might stem from factors such as the complainant’s age and level of maturity, the threat of harm or intimidation, a state of confusion or psychological trauma, feelings of personal blame or shame, the relationship between the complainant and the offender, the offender’s position or status, fear of not being believed or of affecting existing relationships, or even a lack of understanding of the criminality of the offending conduct. It is important not to equate too readily a young person’s reaction to inappropriate or improper behaviour by another with that of a mature adult. Determining whether a complaint was made at the first reasonable opportunity is an evaluative judgment, often involving questions of fact and degree. Therefore, all relevant facts and circumstances must be considered.[35]

39.McWalters JA, in Chak Kong Fai, noted the limited use of complaint evidence as relevant background evidence. He cited with approval the observations of Lord Hoffman, delivering the judgment of the Board in White v The Queen:

“177. In White v The Queen Lord Hoffmann addressed how the prosecutor should deal with complaint evidence that was not admissible under this exception but was relevant background evidence. He also discussed how it may be necessary for the judge to direct the jury on the limited use they could make of it. He said:

Their Lordships accept that when the complainant herself is giving evidence, it may be difficult for her to give a fair and coherent account of her behaviour after the incident without allowing her to mention that she spoke to other people who may not be available to give evidence (within the sexual complaints exception) of what she actually said. Their Lordships would not suggest that the mere mention that the witness spoke to someone after the incident was inadmissible. In most cases it will be very difficult to draw any rational distinction between consistent conduct, which is plainly admissible (e.g. that the witness wept) and the fact that she spoke to someone such as a parent. On the other hand, it is important to avoid infringement of the spirit of the rule against previous self-consistent statements by conveying indirectly to the jury that she had given a previous account of the incident in similar terms with a view to inviting the jury to infer, not merely that her subsequent conduct was not inconsistent with her complaint but that her credibility was actually supported by the fact that she had told the same story soon after the incident.

In the present case their Lordships think that the prosecution probably went further than could be justified by the need to allow the complainant to give a fair account of her conduct after the incident. In the absence of a ruling by the judge that the questions could be asked because of an imputation of recent invention, she should not have been allowed to say that she had told five people ‘what had happened.’ The inference which the jury were bound to draw was that she had made statements in terms substantially the same as her evidence to the court. In the context of the hearsay rule, courts have discouraged its evasion by devices such as that described by Hawkins J in Reg v Lillyman [1896] 2 QB 167, 178–179:

‘the very object of confining the evidence of the complaint to the few stereotyped questions we have referred to is often defeated by a device, not to be encouraged, by which the name of the accused, though carefully concealed as an inadmissible particular of the complaint, is studiously revealed to the jury by some such question and answer as the following: “Q. In consequence of that complaint did you do anything? A. Yes, I went to the house of the prisoner’s mother, where he lives, and accused him.” This seems to us to be an objectionable mode of introducing evidence indirectly, which if tendered directly would be inadmissible.’

…

While therefore their Lordships do not go so far as to say that the evidence of the fact that statements were made was inadmissible, they consider that the admission of that evidence made it necessary for the judge to give the jury a careful direction about the limited value which could be attached to it.”[36] (Emphasis added)

40.The evidence of PW3 and PW4 was introduced without prior consideration of the purpose for which the prosecution intended to rely on it. As a result, this evidence was effectively treated as recent complaint evidence, despite the parties acknowledging that it did not fall within this category of evidence. The procedure for determining the admissibility of such evidence was outlined by McWalters JA in Chak Kong Fai.

“181. As the party adducing the evidence, the prosecutor must clearly inform the court of the purpose for which it is being adduced. This should be done at a case management hearing before trial so that the position of the defendant can be ascertained and any issue as to its admissibility for this purpose can be resolved. The prosecutor should decide well in advance of trial whether he will be adducing complaint evidence as recent complaint or whether he will be reserving this evidence as prospective rebuttal evidence should the complainant be cross-examined to the effect that she has fabricated the allegations.

182. If the defendant objects to its admissibility then he has a right to be heard and the decision of whether it is admissible for the purpose for which the prosecution seek to adduce it is a legal issue for the judge alone to decide.

183. If the judge decides it is admissible then the parties will know where they stand in terms of how they deal with the evidence in the course of the trial and in their closing speeches to the jury.

184. Furthermore, counsel and the judge should discuss the terms of the direction the judge proposes to give so that they know, in advance of their own speeches, what he intends to say in respect of this evidence.”

41.The above procedure was not followed, resulting in X’s complaints to PW3 and PW4 being introduced into evidence for an inappropriate purpose, namely as recent complaint evidence to support the truthfulness of X’s testimony regarding the alleged rape and indecent assault.

42.As the party adducing the complaint evidence, prosecuting counsel must clearly inform the court of the purpose for which it was being used. This was not done. It was unclear on what basis the prosecution were relying on the complaint evidence, although when the issue arose, prosecuting counsel acknowledged it was not recent complaint evidence.

43.In cases of this type, the complaint may be relevant for several reasons. First, the fact of the complaint explains how the accused came to be on trial. Secondly, the terms of the complaint may be admissible depending on the purpose for which it is sought to be adduced. The complaint, together with the terms of the complaint, may be admissible under the recent complaint exception. However, the fact of the complaint may still be admissible as background evidence, although a jury must be directed that they cannot infer that the complainant’s credibility is supported by the fact that she complained: Chak Kong Fai[37]. The complaint may also be admissible as evidence rebutting fabrication, where the terms of the complaint are adduced in re-examination of the complainant as rebuttal evidence: Chak Kong Fai[38].

44.In the present case, there was no proper approach in addressing the complaint evidence or consideration of the purpose for which it was sought to be adduced. There was clearly an issue in respect of the recent element of the complaint and as this precondition had not been satisfied, it could not be adduced by prosecuting counsel for the purpose of inviting the jury to assess favourably the credibility of X’s testimony. This was evident from the facts and circumstances of the complaints as briefly outlined as follows:

(a)  X was placed in the foster care of the appellant and his wife in 2012, at the age of five. She stayed with them on weekdays and spent weekends with her mother. This arrangement continued until 2015, when she was placed with another foster family for six months. She returned to the appellant and his wife’s care in early 2016 and remained with them until late 2018. She returned again to the foster care of the appellant and his wife in early 2019 and stayed with them until 2020. In the summer of 2016, the appellant allegedly raped X and, a week later, indecently assaulted her.

(b)  There were no other allegations of sexual assault against the appellant during the relevant periods. X made no complaint at or around the time of the incidents, including to her mother, with whom she stayed on weekends. After the incidents, she remained in the foster care of the appellant and his wife for approximately two years, then returned and stayed with them for another two years until 2020.

(c)  X testified that she did not realise she had been raped by the appellant until she received sex education at school in 2018. However, she did not complain or report the matter at the time, even though she was still in the care of the appellant and his wife until late 2018.

(d)  In late June 2022, when X was fifteen, she became acquainted with PW3, who was eighteen. On 22 August 2022, they both attended a party. X was upset and affected by alcohol. They chatted until the early hours of the morning, during which X confided to PW3 that she had been raped at the age of nine. PW3 invited X to her home that night and entered into a relationship together, which ended shortly thereafter. On 3 September 2022, PW3 was contacted and told that X was drunk and in a distressed state. PW3 found her on a rooftop, where X was threatening suicide. The police were called, and PW4 responded to investigate an attempted suicide. The defence suggested that X fabricated her complaint of rape to gain sympathy from PW3.

45.X’s complaints about the alleged incidents with the appellant were made six years later, during emotional circumstances while she was in a brief relationship with PW3. These complaints to PW3 and PW4 should not have been admitted as recent complaint evidence, and the jury should not have been directed to consider this evidence in assessing X’s credibility. This error of law constituted a material irregularity.

46.For the sake of completeness, we address the issue of distress evidence. It is not uncommon that evidence of distress is part and parcel of recent complaint evidence. While recent complaint evidence is relevant only to the complainant’s credibility, distress evidence may have probative value as to the facts in issue. However, the tribunal of fact must be satisfied: (i) that the complainant’s distressed condition was genuine; and (ii) that there was a causal connection between the distressed condition and the alleged sexual offence. As explained by the Court of Final Appeal in HKSAR v Leung Chi-keung[39], this determination depends on various factors, including the complainant’s age and maturity, the time interval between the alleged offence and the observation of the complainant’s distressed condition, the complainant’s conduct and appearance and the events affecting the complainant during this time interval, the circumstances under which the complainant’s distressed condition was observed, and whether the complainant expected to be observed at the time.

47.The Court in Leung Chi-keung held that, where the complainant’s distressed condition formed part of a recent complaint, the judge should clearly direct the jury that the uses of the evidence regarding recent complaint and distress are distinct. The essentials of the proper approach on how to deal with the complainant’s distressed condition are as follows[40]:

(a)  The jury must be satisfied beyond reasonable doubt: (i) that the complainant’s distressed condition was genuine; and (ii) that there was a causal connection between the distressed condition and the sexual offence. In other words, they must be satisfied that: (i) the distressed condition was not feigned; and (ii) was only referable to the alleged sexual offence and not to any other cause. In deciding on those matters, they must take into account all relevant circumstances.

(b)  Where the jury was so satisfied, they could give such weight to the evidence of distress as was appropriate. Weight was entirely a matter for them.

(c)  Where the jury was not so satisfied, they should disregard the evidence of distress.

(d)  Where fantasy had been properly raised as an issue, the jury must not use evidence of distress to rebut fantasy. If they believe that fantasy was a possibility, they could not be satisfied of the required causal connection.

48.Mr Leung submitted that the judge should have given the standard specimen direction[41] regarding the evidence of distress. However, the respondent pointed out that the prosecution did not rely upon X’s distress to prove any fact in issue. In this case, X was in a generally distressed state when she complained to PW3 and PW4 approximately six years after the incidents with the appellant. X’s mental health and the circumstances of her complaints formed part of the background of the case. There was no need for a jury direction on the evidence of distress, as it was not relied upon by the prosecution to prove its case. The prosecution referred only to X’s distress while giving evidence[42], and the judge properly reminded the jury not to assume that X’s testimony was true just because she appeared distressed and emotional[43].

Conclusion

49.It follows from our analysis that the evidence of PW3 and PW4 was not admissible as recent complaint evidence. Consequently, the jury were incorrectly directed that they could consider this evidence when assessing X’s credibility and determining whether she was telling the truth about what had happened. We concluded that this constituted a material irregularity that could not be cured by applying the proviso. Accordingly, we allowed the appeal, quashed the conviction and set aside the sentence.

50.Ms Yuen informed the Court that the respondent would not apply for a retrial or oppose costs of the appeal to the appellant. We ordered the appellant’s costs of the appeal, to be taxed if not agreed.

Ms Angel Yuen, SPP, of the Department of Justice, for the respondent

Mr Mark Leung, instructed by K B Chau & Co, for the appellant