HKSAR v. Lam Siu Fung, Andy
Read the full judgment text of CACC 38/2022 on BabelCite. This Court of Appeal judgment was delivered on 13 August 2025.
1. This is the applicant’s application to “ renew ” [1] his application for leave to appeal which Zervos JA on 15 January 2024 dismissed [2] .
Cited by 3 cases · Cites 6 cases
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CACC 38/2022 [2025] HKCA 826 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 38 OF 2022 (ON APPEAL FROM HCCC NO 75 OF 2021) ________________
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______________________________________ REASONS FOR JUDGMENT ______________________________________ Hon K Yeung J (giving the Reasons for Judgment of the Court): A. Introduction 1.This is the applicant’s application to “renew”[1] his application for leave to appeal which Zervos JA on 15 January 2024 dismissed[2]. 2.Two features of the application should first be noted:
3.The hearing took place on 13 August 2025. Despite the above, this Court heard the applicant on the New Grounds. We reiterate the importance of keeping time limits. But in the present case, the applicant is acting in person. The delay, at least in so far as the filing of Form XIII is concerned, is not serious. The merits of the New Grounds (or lack of any) would inform this Court as to whether leave should be granted to the applicant to amend the Refused Perfected Ground, and whether to extend time for him to file his Form XIII. 4.At the conclusion of the hearing, we refused the applicant’s application for extension of time to file the Form XIII, dismissed his application for leave to appeal, and dismissed his appeal. We said that we would give our full reasons within 3 months. We now do. B. The Indictment, and the conviction 5.The Indictment is dated 22 March 2021. It contains a single count of attempted rape, contrary to sections 118(1) and 159G of the Crimes Ordinance, Cap 200. The particulars of offence are that the applicant “on 16th day of May, 2020, near Hong Kong Parkview, Wong Nai Chung, in Hong Kong, attempted to rape female ‘X’ ”. 6.The trial subsequently took place before Deputy Judge Maggie Wong SC (the “Judge”) and a jury. The applicant was represented by counsel (the “Applicant’s Trial Counsel”). On 26 January 2022, the applicant was convicted after trial and, on 2 March 2022, sentenced to 5 years and 8 months’ imprisonment. C. The application for leave to appeal 7.On 23 March 2022, the applicant filed a Notice of Application for Leave to Appeal against both conviction and sentence (Form XI). 8.On 9 March 2023, Mr Phil Chau, SC, with him Mr Andrew Lau, counsel assigned by the Director of Legal Aid to represent the applicant for his appeal against conviction, signed and filed Perfected Grounds of Appeal Against Conviction. Only the Refused Perfected Ground was advanced. It alleged incompetence on the part of the Applicant’s Trial Counsel. 9.The applicant had been refused legal aid for his appeal against sentence. He however continued to pursue it in person. 10.The leave application took place before Zervos JA on 15 November 2023. Mr Chau SC and Mr Lau appeared for the applicant in respect of the application for leave to appeal against conviction. The applicant appeared in person in respect of the application for leave to appeal against sentence. In the course of that hearing, after the leave application to appeal against conviction had been heard, the applicant informed the Court for the first time that he would not proceed with the leave application to appeal against sentence. That application was accordingly treated as abandoned, and the appeal against sentence dismissed. 11.For reasons handed down on 15 January 2024, Zervos JA refused the application for leave to appeal against conviction. D. The Form XIII 12.On 24 January 2024, the Legal Aid Certificate previously issued to the applicant was discharged. 13.The applicant thereafter lodged the Form XIII whilst acting in person. It was signed by him. It was dated 2 February 2024. It was lodged via the Correctional Services Department. The covering memorandum was dated 6 February 2024, and received by the Appeal Registry on 7 February 2024. The Form XIII states that the applicant seeks to “renew” his application for leave to appeal against conviction. Attached thereto are 3 additional pages in Chinese entitled “Grounds of appeal against conviction”. The gist of the complaint concerns the Judge’s direction on “honest belief”. In the accompanying affirmation, he says the delay was caused by the need to wait for new grounds from his lawyers. 14.The applicant was subsequently directed to confirm whether he still sought to rely on the Refused Perfected Ground, and if not, state clearly his new grounds, make an application to rely on them out of time, and to state the reasons for the delay. 15.On 4 June 2024, the applicant by letter stated that he was no longer relying on the Refused Perfected Ground. He confirmed this during the hearing on 13 August 2025. 16.On 4 July 2024, the applicant lodged an affirmation (the “Applicant’s 4/7/2024 Affirmation”). He gives as the reason for the delay in filing the Form XIII divers procedural matters which he says he had to go through with the Correctional Services Department. 17.In that affirmation, the applicant also sets out a number of reasons which he says support his appeal. The Refused Perfected Ground does not form part of them. In fact, even those reasons do not all constitute proper grounds of appeal. Some of them are only his responses to certain observations made by Zervos JA in His Lordship’s Judgment refusing leave. Mr Raymond Cheng, SADPP appearing for the prosecution, has endeavoured to distil and identify from those reasons grounds which he understands the applicant is putting forward. We call those grounds as identified (as we have done in paragraph 2(b) above) the New Grounds. 18.We will come back to consider those New Grounds. We will give a summary of the trial first. E. The Trial E.1. The prosecution case 19.The charge is one of attempted rape. The prosecution did not allege penetration on the applicant’s part. The prosecution case, relying on what the applicant said under caution, was that the applicant rubbed his penis against X’s genital, initially over clothes and ultimately directly, with the intention of having an erection for sex, but ejaculated prematurely in the process. The prosecution said that X did not have the ability or capacity to consent because of drunkenness, and that her state would have been obvious to the applicant. 20.Below are some further details. 21.15 May 2020 was a Friday. X was 16 years old at the time. She was an expatriate schoolgirl. 22.In the early hours of 16 May 2020, X was very drunk after spending a Friday night out with her friends. Although she was taken by one of her friends to outside her home on the Western side of Hong Kong Island[5] (the “Home Building”), she refused to go home and attempted to hail a taxi. Having been refused hire by three taxi drivers (as she could not tell the destination), at around 12:22 pm, she successfully boarded the taxi driven by the applicant (“the Taxi”). That was witnessed by the security guard of the Home Building (the “Security Guard”). Upon hearing X say “Go, go go”, the applicant drove off. 23.The prosecution alleged that X was taken to Tai Tam Reservoir Road near Hong Kong Parkview, where the applicant attempted to rape her inside the Taxi. The Taxi’s dashboard camera recorded some of their conversations during the journey, including “I am not going to fucking (unclear)” and “hands off”, which were uttered by X, followed by some murmuring or moaning sounds from them. 24.After the attempted rape, the applicant drove X to Hotel Ease in Kwai Chung. CCTV footages at the reception of the hotel show that he registered for a room at around 2 am. He did that alone, after which he carried X over his shoulders to the room. 25.X regained her consciousness at around 9:44 am and found the applicant beside her. X could not however remember anything after 10:30 pm on Friday, let alone the defence’s suggestions that it was she who enticed the applicant into engaging in the sexual contact. 26.On the same day, X was taken to Queen Mary Hospital by her mother. A report was also made to the police. X refused to be medically examined. The reasons she gave upon cross-examination were that she had waited for hours to be examined. The person who ultimately showed up was a man. She did not feel comfortable with that. She said that she had been through enough that day and did not need more. 27.The admitted forensic evidence comprised primarily the applicant’s DNA found in the black pair of shorts which she was wearing at the time of the offence, and a mixture of her and the applicant’s DNA found inside the applicant’s underpants. On the other hand, the two pubic hairs retrieved by X from inside her vagina revealed no conclusive DNA result. 28.The police Notebook of Woman Detective Police Constable 13541 (“PW4”) was produced (the “Notebook”, and the “Notebook Entries”). According to the Notebook Entries, she on 16 May 2020 at 8:40 pm arrested the applicant for indecent assault. Under caution, he said[6] (the words in brackets are the original Chinese words of the underlined translation):
According to the Notebook Entries, PW4 then proceeded to caution the applicant again, this time for the offence of rape. The applicant is recorded to have then said[10]:
29.On 17 May 2020, the applicant participated in two video-recorded interviews (“VRI/1” and “VRI/2”, and collectively “VRIs”). Therein, he admitted having intimate sexual contact with X. He denied penetration. 30.It is relevant to note that the Notebook, and specifically the Relevant Notebook Entry #2, were referred to in the course of VRI/2[11] (again, the words in brackets are the original Chinese words of the underlined translation):
31.During cross-examination, the Applicant’s Trial Counsel dealt with the Notebook Entries as follows:
32.5 sets of Admitted Facts have also been produced (“Admitted Facts/1” to “Admitted Facts/5”). We will in the latter parts of this judgment refer to them as appropriate. E.2. The defence case 33.During the trial, the applicant did not give evidence in his defence. Nor did he call any witness. He relied on what he had said in the two VRIs. The gist is as follows. 34.He said after X had got into his Taxi, she could not give the destination. She just said “go, go go”. He hence drove around aimlessly. When driving through Wanchai, he said to X “you give money”[12]. Instead of paying for the taxi fare, X climbed from the back seat to the passenger seat next to his. She said “like me”. She took the applicant’s hand to her private parts. She allowed him to touch her private parts for about half a minute, until she said “hands off”[13]. X then got out of the Taxi and urinated by the roadside. She returned to the Taxi, and said “go, go go” again. Believing that she wanted to offer sexual contact to offset the taxi fare and to have a one night stand, the applicant drove her to somewhere near Hong Kong Parkview. He stopped the Taxi there and went into the backseat. X said things like “I love you” and “like me”. They fondled, cuddled and kissed. He rubbed his penis against X’s genital. Initially, that was done over clothes. X signalled him to take off her shorts. He did so. He noticed that she was in her period. He also took off his trousers. He did not have an erection. He continued to rub his penis against X’s genital to try to have an erection to have sex. In the process, he ejaculated. There was no penetration. He said X went on to ask for penetration but he could not as his penis was not responsive[14]. He stated that X was not drunk and did not look drunk. 35.The defence placed before the jury Admitted Facts/5. He revealed his full criminal record. The Applicant’s Trial Counsel said to the jury in the course of his closing speech that the applicant wanted to be “full and frank with you”[15]. 36.In his closing speech, the Applicant’s Trial Counsel submitted to the jury that X should not be believed to be as drunk as she claimed. He referred to X’s evidence, and in particular her answers given during cross-examination that she could not remember anything after 10:30 pm that evening. The Applicant’s Trial Counsel described to the jury those answers as being “a cover-all answer”[16] and that “it’s a bit convenient”[17] for X to say so[18]. 37.In his closing speech, the Applicant’s Trial Counsel raised with the jury the issues covering X’s consent, the applicant’s belief of X’s consent, and the possibility of the applicant holding a genuine but mistaken belief of X’s consent. The relevant parts of his speech are as follows[19]:
Later, with reference to what the dashboard camera had recorded, the Applicant’s Trial Counsel further submitted to the jury as follows[20]:
The Applicant’s Trial Counsel concluded his closing speech with the following remarks on genuine but mistaken belief, that[21]:
E.3. The summing-up 38.The Judge summarised the prosecution case, in our view accurately, as follows[22]:
39.The Judge summarised to the jury the essence of the defence case, again accurately in our view, as follows:
40.Regarding the interplay between X’s consumption of alcohol and the issue of consent, the Judge instructed the jury that it was for the prosecution to prove that she did not consent, that[24]:
She then instructed the jury that[25]:
41.The Judge further instructed the jury that if they were sure that X did not consent, they must go on to consider whether the applicant knew that X was not consenting, or was reckless as to whether she was consenting, and it was for the prosecution to prove that[26]. 42.On the issue of mistaken belief, the Judge gave the following directions[27]:
In the latter part of her summing-up, the Judge, with reference to the handout she had made available to the jury, repeated those directions, that[28]:
F. The New Grounds 43.As we have recorded above, the applicant is no longer pursuing the Refused Perfected Ground. 44.We have considered the contents of the Applicant’s 4/7/2024 Affirmation. We are of the view that the New Grounds correctly identify the grounds which the applicant is seeking to put forward. They are all homemade grounds. 45.During the hearing, this Court summarised the New Grounds to the applicant, and listened to his submissions one by one. 46.The following are the reasons why we were and are of the view that they have no merit. F.1. New Ground 1 47.The applicant is in effect seeking to dispute the legality of his arrest and the accuracy of the Notebook Entries. He alleges that the police team did not enter his flat with proper authorization or permission, that he only talked to a middle-aged male police office about what had happened in Hotel Ease, that he was not under caution, that an officer holding a notebook indicated to him that the simple procedure of bringing him from his home to police station would be recorded, that he did not say the Relevant Notebook Entry #1[29], and that no police officer had repeated it to him, or had reviewed it with him, or had asked him to sign it in confirmation. 48.For the following reasons, we are of the view that New Ground 1 is devoid of merit:
F.2. New Ground 2 49.The applicant claims that the Judge had ruled and declared in court that the ambit of the trial evidence should be restricted up to the time at the Hong Kong Parkview, and that the jury need only focus their deliberation upon the time while the applicant and X were at Wanchai and Hong Kong Parkview (the “Alleged Ruling”). He claims that the prosecution ignored that ruling and unfairly adduced the CCTV footages at Hotel Ease as evidence to show X’s state of unconsciousness. He argues on the other hand that those footages in fact show that X was not in an unconscious state, because if she were, it would have been necessary for him to carry her with his hands. He further claims that carrying X on his back (as the footages show) without her using her arms to attach herself to him was dangerous and unbalanced. 50.There is no record of the Judge having made the Alleged Ruling, and Mr Cheng has informed us that the prosecution is not aware of the existence of any such ruling. 51.This Court in the course of the hearing inspected the court file and records. There is a record suggesting that in the course of the trial, on 11 January 2022, prosecution counsel originally informed the Judge that the prosecution did not intend to play the CCTV footages at Hotel Ease. The Judge indicated that playing the same in court would in fact assist the jury. The prosecution agreed with that course. There was no objection from the Applicant’s Trial Counsel. 52.In fact and in any event, evidence as to what happened while the applicant and X were at Hotel Ease was adduced as part of Admitted Facts/1. The admitted facts and evidence included:
53.We do not accept the applicant’s assertion that the Judge had at any stage made the Alleged Ruling. 54.In relation to the interpretation of the CCTV footages, the screen captures, and in particular photographs 19 and 20, they were matters for the jury. The Judge had given them full and appropriate directions in order to assist them. We do not accept the applicant’s speculation and subjective opinion he expressed in New Ground 2. 55.In the course of the hearing, the applicant further submitted that since it was during Covid that he carried X to Hotel Ease, some sort of checking was required at the front desk, but the police did not attend the hotel to investigate that matter, and there was no photograph inside the room. 56.Those points did not bear on the applicant’s conviction. 57.New Ground 2 has no merit. F.3. New Ground 3 58.The applicant points to images captured by the Taxi dashboard camera which show that X opened the passenger door and alighted the Taxi. He says that those images show that X was not in an unconscious state. 59.It was not part of the prosecution case that X was completely unconscious as a result alcohol. The prosecution case was that X did not have the ability or capacity to consent because she was too drunk to agree to anything. That did not entail the prosecution showing that X was completely unconscious. 60.Mr Cheng submits that in any event, those images formed only a small part of the evidence. There was a whole body of cogent and compelling evidence which the jury was entitled to accept against the applicant’s case on the issue of X’s drunkenness and consciousness. The evidence includes X’s own evidence, the evidence of the Security Guard who witnessed X boarding the Taxi, the CCTV footages and screen captures in Hotel Ease, the Relevant Notebook Entry #1, and the VRIs. 61.We accept those submissions made by Mr Cheng. 62.There is nothing in New Ground 3. F.4. New Ground 4 63.The New Ground 4 claims that the Judge erroneously gave the jury directions on, in the applicant’s own words at page 4 of the Applicant’s 4/7/2024 Affirmation, “honestly believed”. He claims that those directions could have had the effect of making the jury believe that the prosecution had successfully established all elements of the offence. He claims that those directions might also give the jury the message that if they could not find any reasonable basis for the applicant to hold that belief, they should reject his case that he actually held the belief that X was consenting. He relies on HKSAR v Wong Shing Chung (CACC 66/1999, 22 June 1999) and the cases referred to therein (R v Morgan [1976] AC 182 and R v Kwok Tak-ming Danny [1996] 4 HKC 395). He also relies on the recent decision of this Court[31] in HKSAR v Yip Ka Yu [2025] HKCA 573. 64.There is absolutely nothing in New Ground 4:
65.For all the reasons set out above, we are of the view that New Ground 4 is advanced without regard to the actual directions which the Judge gave, is devoid of merit, and is not made out. G. Conclusion 66.For all the reasons set out above, we were and are of the view that the New Grounds have no merit. We hence refused the applicant’s application for extension of time to amend the Refused Perfected Ground or to file his Form XIII, dismissed his application for leave to appeal, and dismissed his appeal. H. Loss of time 67.Upon refusing the applicant’s application for leave to appeal, while reminding him of his right to renew his application for leave to the Court of Appeal, Zervos JA at the same time informed him of the consequences of him doing so. Those consequences include a direction for loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application. 68.The applicant has despite that warning purported to renew his application. He put forward the New Grounds. He did so late. The New Grounds are devoid of merit. 69.Towards the end of the hearing, this Court told the applicant that this Court had considered giving a direction for loss of time. However, in the end, given the fact that the applicant was acting in person, and given further the way he conducted the hearing, which did not involve him wasting this Court further time, we ultimately decided not to do so. This decision should not however be taken as any precedent on how this Court would in the future exercise its power on directing loss of time.
Mr Raymond Cheng, SADPP and Mr Lucas Lai, SPP (Ag.), of Department of Justice, for the respondent The applicant appeared in person [1] As will be explained below, due to the applicant’s reliance upon new grounds, this actually is not a renewal application. [3] Lodged on 6 February 2024 via the Correctional Services Department. [4] See HKSAR v Wo Chi Lok [2021] HKCA 1592, §21. [5] Location specified and proved, but not reproduced here. [6] Original Chinese version at AB, pp.376-377, and English translation at AB, pp.381-382. [7] Specified, but not reproduced here. [8] Refer to below as “Relevant Notebook Entry #1”. [9] Refer to below as “Relevant Notebook Entry #2”. [10] Original Chinese version at AB, p.378, and English translation at AB, p.382. [11] AB, pp 317-318, Counters 187-194. [12] 1st VRI, counter 52. [13] 2nd VRI, counters 117-120. [14] 2nd VRI, counter 312. [15] AB, p464S-T. [16] AB, p457E-F. [17] AB, p457H. [18] AB, pp457G-458B. [19] AB, p456F-P. [20] AB, p460E-G, and P-Q. [21] AB, p.465M-O. [22] AB, p.23O-T. [23] Appeal Bundle 23A-K. [24] AB, p34A-H. [25] AB, p34T – p.35J. [26] AB, pp35N and 36B. [27] AB, p36H-P. [28] AB, p78A-N. [29] The actual words the applicant used in the Applicant’s 4/7/2024 Affirmation are, as translated, “I noticed that X was very drunk, so (I) had sex with her” (我見到X飲到好醉，所以和她搞嘢). Those words are slightly different from the Relevant Notebook Entry #1, and are clearly referable to it. [30] AB, pp.431-433. [31] Differently constituted, but with 2 common members. [32] §§42-44. [33] §34, Yip Ka Yu. [34] With emphasis added. [35] The judgement is in Chinese. The cited passage in its original Chinese is as follows: “如果被告錯誤地但係誠實咁樣同埋有合理嘅理由，相信該女子係自願同佢性交，咁呢個罪名就不能成立。” | |||||||||||||||||||||||
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