HKSAR v. Ekstrom Patrik Tobias

CACC 186/2024

[2026] HKCA 514

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 186 OF 2024

(ON APPEAL FROM HCCC NO 272 OF 2023)

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BETWEEN

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J U D G M E N T

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

1.On 22 August 2024, the appellant was unanimously convicted after trial in the High Court before Recorder Derek Chan SC (the judge)  and a jury of one count of rape (Count 1)[1] and one count of non-consensual buggery (Count 2)[2], both committed against a woman referred to as X. He was sentenced to a total of 7 years’ imprisonment, the judge having adopted a starting point of 7 years on Count 1 and 4 years on Count 2, with those sentences ordered to be served concurrently.

The present appeal

2.The appellant applied for leave to appeal against his conviction.[3]

3.On 12 March 2025, the Single Judge granted the appellant leave to appeal against his conviction on two of the four grounds of appeal.  Ground 1 concerned the absence of any direction to the jury on uncharged acts, arising from an allegation that the appellant had stated that he had raped or had sexual relations with a previous domestic helper, Mohini.  Ground 2 concerned the judge’s ruling admitting four WhatsApp voice messages as evidence of recent complaint of rape.[4] 

The brief facts

4.There was no dispute that the appellant and X had vaginal and anal sex in the early hours of 28 October 2022.  The appellant was married with children and looked after an elderly uncle.  X worked as the domestic helper for the appellant and his family.  In addition to X, the appellant also employed a driver who had living quarters in his home.

5.On the night before the incident, the appellant’s wife and children had left him and travelled to Japan, leaving X, the appellant’s uncle, and the driver at the appellant’s house.  X said that the appellant came home in the early hours of 28 October 2022.  He demanded that she have sex with him and that he also wanted her daughter.  He threatened that he would kill or hit her and that he had raped or had sexual relations with the previous helper.[5] X said she repeatedly told the appellant that what he was asking was wrong and that she would not do it.  He grabbed and dragged her to his bedroom, where he undressed her and forcibly had sexual intercourse with her, followed by anal intercourse.  He also demanded that X perform oral sex on him, but she refused.  He stopped when X said she was hungry and wanted dinner.[6] 

6.The appellant said that the sexual relations with X were consensual.  He said that X came to his room of her own volition to comfort him after his wife and children had left.[7]  He claimed that he had engaged in sexual relations with X on two previous occasions in July 2022, which X had initiated.  On one of those occasions, she provided lubricant so that he could perform anal sex on her.  She asked him to assist her financially by advancing four months’ salary to pay off a loan, which he did.  He also gave X HK$1,000 and HK$3,000, respectively, after each occasion on which they had sexual relations.  The appellant said that X later asked for a further loan.[8]

7.The appellant said he felt guilty after he had sexual relations with X and asked her to leave the next day.  She threatened to tell his wife.  To avoid any confrontation, the appellant then drove to his office.  He claimed that he panicked about X telling his wife of their affair and sent a series of messages to X, requesting her to come back.  He also tried calling her several times.  He transferred HK$15,000 to X’s bank account so that she would not speak to his wife.[9]

8.Between 5:25 am and 5:34 am on 28 October 2022, X sent four WhatsApp voice messages in English to the appellant’s wife, in which she spoke of her dealings with the appellant and asked for her help.  She had not explicitly stated that she had been raped, and there was an issue as to whether these messages were a recent complaint.  After hearing submissions on the matter, the judge ruled that they constituted a recent complaint.

9.At about 8:00 am on 28 October 2022, X went to the Wan Chai Police Station and reported being raped by the appellant.  A medical examination of X revealed no external bodily injuries or identifiable injuries to her vagina or anus.

10.The central issues at trial were whether X consented to the sexual acts and, if not, whether the appellant knew that she did not consent.

The trial evidence

11.X’s evidence-in-chief included her account of a conversation in which the appellant told her that he wanted to have a sexual relationship with her and her daughter and that he had “raped” or “done such thing” to the previous helper, Mohini, who was X’s friend.  She said this made her very scared.[10]

12.The Mohini matter was raised more than once, including during X’s evidence when prosecuting counsel sought to limit the witness, but defence counsel indicated to the judge that X should be allowed to “continue” to give evidence on the subject[11], and in the cross-examination of X and of the appellant.  In one passage of the appellant’s cross-examination, it was suggested that he had told X that he had previously had sex with Mohini and that he thought he could “get away with it again” with X as the “second helper”.[12]

13.X sent the four WhatsApp voice messages to the appellant’s wife within hours of the alleged assaults.  In those messages, she spoke of the appellant, whom she referred to as “Patrik-san”, of his sexual demands, and of the stress she felt, but she did not use the word “rape” or expressly describe sexual intercourse.  In her evidence, X accepted that she had not told the appellant’s wife that “it was rape”, but she explained that she did not do so because she was afraid that the appellant’s wife would tell the appellant, and she was concerned about her safety.[13] 

14.The judge ruled that the four voice messages were admissible as evidence of recent complaint.[14]  The judge noted that the defence made it clear that the objection was only in respect of admitting that evidence during X’s evidence-in-chief, and of the prosecution referring to it in opening the case to the jury, and not in respect of the possibility that the four voice messages could be admitted as rebuttal evidence, depending on the line taken in cross-examination.  In particular, the judge noted three points taken by the defence, which were summarised as follows:

(1)  the appellant’s wife, the recipient of the messages, was not being called as a witness;

(2)  the messages did not amount to a complaint about unlawful sexual activity; and

(3)  if the voice messages were not admissible as evidence of recent complaint, they should not be allowed by way of background evidence.

15.The judge dealt with each issue in turn. 

16.As for the first issue, the judge noted that there was no dispute that the complaint was made to the appellant’s wife through WhatsApp.  He referred to HKSAR v So Tsz Yeung[15], in which the Court of Appeal held that WhatsApp messages constituting a recent complaint could be admissible as recent complaint evidence even if the recipient of those messages did not testify.

17.As for the second issue, the judge explained that the condition for admissibility of recent complaint evidence is that the complaint must be sufficiently consistent with the complainant’s evidence.  It is not necessary for the complaint to disclose the ingredients of the offence or the full extent of the unlawful sexual conduct: R v S.[16]  While he agreed with the defence that there was some ambiguity in the meaning of the four voice messages, since they were spoken in broken English, it was also clear that X had difficulty expressing herself properly.  He found that there were sufficient references, particularly in the first two voice messages, which were capable of being understood, within their factual context, as amounting to a complaint about non-consensual sexual conduct on the part of the appellant, which could support the credibility of X. 

18.As for the third issue, the judge ruled that the four voice messages were admitted only for the purposes of showing consistency with X’s conduct, and not on the basis of any further elaboration.

19.Subsequent to the judge’s ruling, X, in her evidence in court, stated that she had not told the appellant’s wife in the messages that she had been raped because she was afraid the appellant would follow her.  She claimed she did tell the appellant’s wife that the appellant had touched her inappropriately and that she asked for help because she did not have any money.  It would appear that, in light of the development of X’s evidence on her messages to the appellant’s wife, no further action was taken by the defence.[17]

20.In his summing-up, the judge directed the jury on the limited relevance of recent complaint evidence, telling them that what was said in the messages was not evidence of what actually happened between X and the appellant, and that its potential relevance lay in the prosecution’s contention that the messages amounted to a complaint consistent with X’s account, thereby supporting her credibility.[18]

21.The defence emphasised a number of factors said to undermine X’s credibility, including the absence of injuries despite her account of forceful intercourse and falling, the circumstances in which she was allegedly dragged from the ground floor to the master bedroom without being heard by others, her failure to complain earlier despite opportunities to do so, and inconsistencies in her evidence about her financial affairs.  These features were summarised in six points in the judge’s summing-up when he set out the defence submissions.[19]

The grounds of appeal

22.The amended perfected grounds of appeal particularise the bases of the two grounds on which leave was granted.

23.Ground 1 alleges that the judge erred in failing to direct the jury, in the summing-up, on the proper use of the allegation that the appellant had said he had raped or had sexual intercourse with Mohini, which was an uncharged act and supported only by hearsay assertions in the evidence.  It is submitted that, once such potentially prejudicial material was before the jury, the judge should have warned them that they could not act on it unless they were sure it was true, and that they must not use it to reason that, because the appellant had engaged in other criminal or sexual misconduct, he was the kind of person likely to commit the charged offences.  It is further submitted that the judge should have directed the jury on the hearsay nature of this allegation and its relationship, if any, to similar fact evidence.

24.Ground 2 alleges that the judge erred in ruling the four WhatsApp voice messages admissible as evidence of recent complaint and in directing the jury accordingly.  The complaint is that the messages, being ambiguous and lacking any explicit allegation of rape or even of sexual intercourse, could not qualify as a complaint of the offences; that the judge misapplied the guidance in HKSAR v Chak Kong Fai[20] and R v S[21]; and that their prejudicial impact outweighed any probative value.  It is also submitted that, even if admissible, the messages should have been the subject of a more restrictive jury direction.

25.We turn to the submissions of the parties on each ground.

Ground 1: The allegation of a previous rape

26.Central to the complaint under this ground is the law relating to “uncharged acts”.  The Court of Appeal in HKSAR v Kwok Hing Tony [22] laid out the following relevant principles of evidence in respect of uncharged acts:

“(a)  The issue of whether evidence of ‘uncharged acts’ is admissible or not must be decided on the individual circumstances of each case, and the court is not bound to refuse to admit such evidence by reason of its nature alone (R v M(T) [2000] 1 WLR 421, 426-427. Citing R v Pettman (unrep., English Court of Appeal, 2 May 1985), R v M(T) was followed in HKSAR v Chan Pui Mun (unrep., CACC 514/2006, [2008] HKEC 2071).

(b)  Even though such evidence is not used in a particular case as identification evidence of the defendant, or as similar fact evidence to prove that the defendant had committed the offence charged, or is deployed by the defendant to challenge the credibility of the complainant, the court may still admit evidence of ‘uncharged acts’ in circumstances including the following:

· To prove the setting and context in which the offence occurred; or

· To explain the defendant’s confidence in repeating the offence; or

· To explain unusual acts on the part of the complainant (such as the lack of surprise or fear, or the lack of complaint, or acts of acquiescence); or

· To explain why the complainant is unable to recall the specific date and details of the offence charged.

In summary, the court may admit evidence of ‘Uncharged Acts’ if its refusal to do so would result in the jury having an incomplete or incomprehensible account of events.

(c)  Of course, the court should refuse to admit evidence of ‘uncharged acts’ if it considers that the prejudicial effect on the defendant outweighs its probative force.

(d)  However, if the court admits evidence of ‘uncharged acts’, the judge should be alert to two points when directing the jury on such evidence: (a)  the standard of proof; and (b)  the use to which such evidence may be put.

(e)  (i)  We consider that generally the standard of proof for evidence of ‘uncharged acts’ should be beyond reasonable doubt.

(ii)  The use to which such evidence may be put may include explaining the nature of the relationship between the defendant and the complainant as well as the matters set out in point (b), but the judge must specifically remind the jury that they may not infer from such evidence that the defendant had committed similar offences, or that he is the sort of person with a propensity to commit the offence.”[23]

27.We can see from the principles regarding uncharged acts that the admissibility of such acts depends on the individual circumstances of each case.  A court may admit such evidence if its refusal to do so would result in the jury having “an incomplete or incomprehensible account of events”.  However, consideration would also be given to whether the prejudicial effect of the uncharged acts would outweigh their probative value. It follows that the nature and proximity of the uncharged acts relative to the charged acts would be a highly relevant consideration.  Where the uncharged acts and the charged acts are the same or similar, there is a danger that a jury may be inveigled into impermissible reasoning as to the defendant’s propensity to commit the charged acts. 

28.The principles regarding uncharged acts seek to ensure that such evidence does not unfairly prejudice a defendant in relation to the particular offence on which he or she is being tried.  Authorities such as HKSAR v Abbas Waseem[24]; HKSAR v Ali Nazakat[25]; and Kwok Hing Tony[26], underline the dangers that can arise if a jury is left free to use such material for impermissible purposes.  Each case, however, turns on its own facts, including the nature of the evidence, the purpose for which it was introduced, how it was addressed at trial, and the overall fairness of the proceedings.  Whether a non-direction on uncharged acts amounts to a material irregularity needs to be judged in the context of the overall circumstances of the case and the likely effect, assessed realistically, of the act on the jury’s reasoning in reaching their verdict: Abbas Waseem [27]; HKSAR v Lam Hing Chit[28].

The appellant’s submissions

29.Ms Elizabeth Herbert, for the appellant, in her comprehensive submissions, emphasised the way in which the Mohini allegation evolved at trial.  In X’s testimony, she had said that the appellant had told her he had previously raped Mohini, together with her references to the appellant having “done such thing” or “the same thing” to Mohini.  These references were, it is said, capable of being understood by the jury as meaning that the appellant had raped Mohini, particularly when juxtaposed with the allegation that he wanted sex with X and her daughter.

30.Ms Herbert also refers to the cross-examination of the appellant in which it was put to him by prosecuting counsel that he had told X he had sex in the past with Mohini and that he thought he could “get away with it again” with X, which, she submits, went beyond the evidence and effectively asserted as fact that he had previously committed a sexual offence against Mohini. Mohini was never called, and there was therefore no direct evidence that such sexual intercourse or rape had occurred.  Moreover, the appellant had not been charged with the offence of raping Mohini, and the allegation accordingly remained an uncharged act.

31.In those circumstances, Ms Herbert submits that the allegation was both highly prejudicial and lacking in proof, yet the judge did not direct the jury on how, if at all, they could use it.  She argues that there should have been a clear direction that: (i)  they could not rely on the Mohini allegation as proof that the appellant was the sort of person likely to commit the charged offences; and (ii)  they should not treat it as evidence of bad character or propensity unless they were sure that the underlying allegation was true.

32.Finally, Ms Herbert submits that no direction was given at all on this uncharged allegation and relies on the established authorities that recognise that uncharged acts and bad character evidence may present a danger of unfair prejudice if not carefully controlled by appropriate directions.  She argues that the non-direction was a material irregularity because there was no evidence of the uncharged act itself and the accusation only arose out of the hearsay evidence of X; the uncharged act was of a serious and similar nature to the offences charged; and the way the prosecution was conducted created a real risk that the jury would engage in impermissible propensity reasoning.

The respondent’s submissions

33.Mr Antony Leung, with Ms Janice Kwan, explains that X’s references to Mohini emerged as a matter of course during her narrative of the incident in her evidence-in-chief, when explaining why she was frightened by the appellant’s demands and statements about sex with her and her daughter. He emphasises that when X began to venture into detail about Mohini, prosecuting counsel initially sought to curtail what she perceived as “irrelevances”, and that it was in fact defence counsel who expressly urged that X be allowed to “continue” because she was, in his submission, saying something that the defence maintained was not true.  The judge acceded to the request, with counsel on both sides indicating they were content for X to proceed.

34.Mr Leung also refers to the fact that defence counsel had earlier raised the spectre of uncharged acts in relation to an entirely different topic – namely, X’s evidence about “arguments” or “fights” between the appellant and his wife – and had sought to “lay down a marker” that he did not want “uncharged acts being put in”.[29]  However, no such objection was ever taken to the Mohini evidence, which, Mr Leung submits, underscores that defence counsel made a conscious tactical choice to allow, and indeed to pursue, that topic in order to attack X’s credibility.  Citing the statements of principle in HKSAR v Lam Siu Fung Andy[30] and HKSAR v Chan Pui Man[31], Mr Leung submits that trial counsel enjoy a wide discretion over the conduct of the defence; their tactical decisions ordinarily bind the accused; and appellate intervention is rare unless there are exceptional circumstances or a real miscarriage of justice.  In the present case, not only was there no objection to the Mohini matter; as Mr Leung points out, it was positively deployed by the defence in cross-examination as a basis for contending that X was lying.[32]

35.On the question of prejudice, Mr Leung argues that the Mohini matter comprised a very small part of the overall trial, that it was not elaborated upon in any detail, and that there was no attempt by the prosecution in closing, or by the judge in summing-up, to invite the jury to treat the Mohini allegation as proof of the appellant’s bad character or propensity to commit sexual offences.  He notes that the judge, when summarising the evidence, merely referred briefly to the Mohini matter in recounting the evidence and gave no direction that could be said to encourage propensity reasoning.

36.Mr Leung submits that the ultimate question is whether the appellant received a fair trial, judged in the context of the case as a whole.  It is contended that, in light of the tactical choices made by defence counsel, the limited role of the Mohini evidence, the absence of any suggestion of counsel incompetence, and the judge’s otherwise full and balanced summing-up, there was no real risk that the jury misused the Mohini matter or that the convictions were unsafe.

Discussion

37.The essence of this ground is the assertion that the appellant had raped or had improper sexual relations with Mohini, the previous domestic helper, and that this unfairly prejudiced the appellant. 

38.The Mohini allegation was made by X in her evidence and was referred to by prosecuting counsel in her questions and closing address, which, Ms Herbert argues, suggested to the jury that the appellant had a propensity to commit this offence.  She further argues that this issue was exacerbated by the lack of any instruction by the judge in the terms of an uncharged-act direction to avoid any impermissible propensity reasoning by the jury on this matter.

39.In her examination-in-chief, X said that she was very scared when the appellant told her that he wanted to have sex with her and her daughter, and also told her that he had “raped” the previous helper, Mohini, who was her friend.[33] There had been some discussion about Mohini returning to work as a domestic helper, and this had been explored in evidence.  The subject of X’s evidence regarding the allegation that the appellant had sexual relations with Mohini was revisited in cross-examination.  She repeated that the appellant had told her that he had “done such thing” or “done something like that” with Mohini before, and she became really nervous.[34]  The references to the Mohini matter in X’s evidence-in-chief were as follows:

“Q. When he said, ‘I want your daughter,’ how did you react to that?

A. Of course, I was very much scared because, in one hand, he is trying to rape me, and on the other hand, he is also asking me my daughter. And also, he said that there was another helper and he said that he had also raped her.” [35] (Emphasis added)

“COURT: So, madam, before we had the interruption, you were talking about the previous helper.

A. Yes. Yes. After that, he had asked me, ‘Then why is she not coming back?’ And after that, I had told him that his -- ‘your wife does not want her to be back here. So that’s the reason she cannot come back.’

Q. All Right.

A. So that’s when he had mentioned that he had done such thing to Mohini, which I had mentioned earlier.”[36] (Emphasis added)

40.In cross-examination, X mentioned the Mohini matter in the following passages:

“A. … And he again asked me why did Mohini did not come back. I told him I had asked Fumi san. She told me that it’s best she doesn’t come back here. And then I told him that she’s not coming back and then he said he still wants her. And he said that he had done same to Mohini as well. I was got scared, and after that he raped me.”[37] (Emphasis added)

“Q. Now, that’s what I hear, can you confirm with me. I heard, ‘He asked me then, I do it before and Mohini and then I keep quiet and I okay, okay, okay.’ So for your benefit, I play it once again, 1 minute to 1 minute 13 seconds.

(Audio recording played)

MR SO: Thank you.

Q.  Do you confirm?

A.  Yes.

Q.  Right.  Now, let me just understand.  When you say, ‘I do it before’, are you trying to express Mr Ekstrom had sex with Mohini before?

A.  Mr Ekstrom had told me, that’s why I said that at that time, I again stated since he told me that he did that to Mohini and was also asking me my daughter, and after that I only said, okay, okay.

Q.  So that’s the truth?  You said, ‘Okay, okay, okay’?

A.  Yes, it’s the truth that I said okay, but it did not mean that I was going to have sexual relations with him.  When he said that he did that to Mohini, that’s when I did, like, okay.  But I never saw them having such relationship because usually he was never home.  He would be so much busy with the work, he knew that, I don’t know if he made time for that.  Only God knows that.”[38]  (Emphasis added)

“Q. Take a look at what you told Fumi san. You said, after Mr Ekstrom told you he had sex with Mohini, your response, ‘Okay, okay, okay.’

A. Patrik san has told me that thing, that he had sex with Mohini, so on that regard I was speechless. I could not say anything. I could not do anything so I only said, ‘okay’, that was what I meant.

Q. Okay, what? Okay to have sex?

A. Because he said he had sex with Mohini, I was only responding to him, saying ‘Okay.’ I did not consent to have sex with him. It’s totally against our Nepali culture.”[39] (Emphasis added)

“Q. Let’s move on. We have heard the audio recording and you also told Ms Crebbin yesterday, in the audio recording there was a mentioning of a name called Mohini.

A. Yes.

…

Q. The whole point of mentioning Mohini that night is that you wanted Mohini to come back to Mr Ekstrom’s home, which Mr Ekstrom refused?

A. I disagree.

Q. I would want to play you audio recording 3 at 00:24 seconds till the end. I will let you hear it first.

(Audio recording played)

MR SO: Thank you.

Q. What I heard, ‘Then he asked me before I will do like this, but I don’t know, I understand he asked me, but he/she want.’

COURT: He and then she?

MR SO: She, yes. That’s what I heard.

MS CREBBIN: That he/she saw, is that what you’re putting?

MR SO: He/she wants.

MS CREBBIN: Not ‘He still wants’, ‘he/she wants’, is that what -- I’m just -- yes.

Q. I’ll let you hear again.

(Audio recording played)

Q. Do you agree?

A. Yes, I have told -- he had told me that he still wanted her.

Q. Madam X, I suggest to you, when you say ‘Before I will’ -- sorry, put again. Madam X, you said, ‘He asked me’, when you say ‘He asked me’, you are talking about he asked you for sex, correct?

A. No, I meant he told me that he had sex with Mohini.

Q. All right. Next sentence, you said, ‘Before I will do’, then I heard there is a pause, ‘like this’, correct?

A. So when I mean ‘Before I will do’, it means Patrik san had told me that before he had done something like that to Mohini.

Q. I tell you, the truth is, when you say, ‘Before I will do, like this’, you are saying, referring to the first two incidents which you had agreed to have sex with Mr Ekstrom.

A. No, I did not mean that because my English is inadequate, so that’s why I might have not been able to express it fluently, but I have never done that and I will never do that. That’s a sin.

Q. When you said, ‘like this’, you are mentioning like this time, like what happened on the night of 27 October 2022?

A. Yes, I meant that.”[40] (Emphasis added)

41.Prosecuting counsel raised the Mohini matter in cross-examination of the appellant, who denied the allegation:

“Q. And I suggest that you at some stage on that night had told X that you had had sex in the past with Mohini.

A. I have never said such thing.

Q. I suggest that made her very scared -- made X very scared when you told her that.

A. I have not said such thing.

Q. See, I suggest to you that you did say that to her, to X, that night, and you thought that you could get away with it again with the second helper. In other words, with X, by having sex with her, whatever she thought about it?

A. No.”[41]

“Q. And, in fact, I suggest that you’d got away with sex with the previous helper, and you thought you’d get away with it with this helper, X, without any complaint, even though she was not consenting.

A. I disagree.”[42] (Emphasis added)

42.Prosecuting counsel also referred to the Mohini matter in her closing address to the jury:

“He also told her that he had already raped the previous helper, Mohini, she said. X said she was very shocked when he said that.”[43] (Emphasis added)

And having mentioned that he’d already raped Mohini, he then apparently suggested to X that, well, he could bring Mohini back as well, she said.”[44]  (Emphasis added)

“ … when she heard from the defendant that he’d already … ‘raped Mohini’ … she was so shocked that she said, ‘Okay, okay.’”[45] (Emphasis added)

“See, I suggest the defendant is a man who clearly believed he could get away with having full sexual relationships. Apparently, according to X, he got away with it with Mohini before, and I suggest he thought he could do it again, and that money would be his salvation.”[46] (Emphasis added)

43.In his summing-up, the judge summarised the Mohini evidence in fairly neutral terms.  He did not mention the word “rape” but described what X stated the appellant said to her, namely that he had sexual relations with Mohini.  The judge did not give an uncharged-act direction to the jury regarding the Mohini evidence, but the question is whether it was required, given the subject-matter and the reason for adducing it into evidence.

44.There are six features relating to the Mohini matter that are of critical importance in assessing whether it caused any unfair prejudice to the appellant.

45.First, the context in which the Mohini evidence was admitted demonstrates that it was not introduced as propensity or bad character evidence, but as part of X’s evidence as to what the appellant said to X to force her to have vaginal and anal intercourse with him. 

46.Secondly, the Mohini matter was deliberately explored by the defence as part of their attack on X’s credibility.  When prosecuting counsel initially sought to contain what she perceived as “irrelevances”[47], it was defence counsel who insisted that X should “continue”[48], as she was giving an account about a matter that the defence maintained was untrue.  This was said by defence counsel in open court in the presence of the jury.

“Q. All right. I think, actually, that sentence …

MR SO:  Let her continue.

MS CREBBIN:   Yes. Sorry, I was just -- I think we are getting into irrelevances, my Lord, and I was just trying to break in and ask the next question.  

COURT:   Madam, can I just disconnect you for the moment while I hear from the parties?  Yes, Mr So.

MR SO:  I prefer let her continue.  In fact, she is exactly telling something that the defence says she is not telling the truth.  She should continue ...

MS CREBBIN:   My Lord, I am happy for that.

MR SO:  ... should be allowed to continue. 

MS CREBBIN:   I thought the defence were unhappy and we seemed to go into irrelevances, and so I was trying to help.  I am happy if ...

MR SO:  It’s going to relevance.

MS CREBBIN:   ... my learned friend has no problem, I have no problem.  Thank you.” [49]  (Emphasis added)

47.After this short discussion between the parties and the judge, X continued with her evidence, in which she described the conversation with the appellant and also a discussion with the appellant’s wife about the previous helper in the early morning of 28 October.[50]  

48.Thirdly, defence counsel’s overall conduct in relation to the Mohini matter, set against his readiness to object to uncharged acts in other contexts, such as “fights” between the appellant and his wife, makes it clear that he made a tactical decision not only to allow the Mohini matter before the jury but to deploy it in cross-examination and in submission.[51]

49.Fourthly, X, in cross-examination, accepted that she did not know whether any sexual intercourse had in fact taken place between the appellant and Mohini, and thus clarified the limits of her knowledge before the jury, stating:[52]

“But I never saw them having such relationship because usually he was never home. He would be so much busy with the work, he knew that, I don’t know if he made time for that.”

50.Fifthly, prosecuting counsel made two suggestions to the appellant in cross-examination:

(1)  “I suggest to you that you did say that to her, to X, that night, and you thought that you could get away with it again with the second helper.  In other words, with X, by having sex with her, whatever she thought about it?”[53]

(2)  “I suggest that you’d got away with sex with the previous helper, and you thought you’d get away with it with this helper, X, without any complaint, even though she was not consenting.”[54]

The appellant denied both suggestions before the jury.  Furthermore, defence counsel was alive to the prosecution’s suggestions during cross-examination, having earlier raised the question whether the jury should be asked to retire in another context, namely when dealing with the appellant’s money remitted to X[55], and having later intervened to stop prosecuting counsel from further questioning in relation to what the appellant said at the time of his arrest.[56]

51.Sixthly, the judge in his summing-up did not invite the jury to draw any inference from the Mohini matter about the appellant’s character or his likelihood of committing the offences.  Nor did the prosecution invite the jury, in closing, to treat the Mohini matter as demonstrating a sexual predilection or a pattern of offending.  However, prosecuting counsel, after referring to X’s evidence concerning the appellant’s comments about the Mohini matter, remarked that the appellant thought he could do it again and that money would be his salvation.

52.It is appropriate to put the Mohini matter in context by setting out the judge’s summary of X’s evidence regarding what the appellant said and did before allegedly raping X:[57]

“ On 27 October 2022 the defendant’s wife took the three children to Japan that morning at around 7 to 8 am. The defendant was not at home at the time. The defendant returned home later that evening, 27 October, at around 11.24 pm, which we have just looked at the CCTV still for. X said she had not finished her job duties yet. She was about to go outside to throw out the rubbish and she met the defendant at the door. X said she saw the defendant had red eyes. She thought the defendant was different in the way he was speaking. X thought maybe the defendant was drunk. According to X the defendant asked about his wife and children and whether they had left. X told him, ‘Yes’.

X then continued to go outside to throw away the rubbish, and then X returned to the house after two to three minutes. X said as she was walking to the kitchen from the corridor the defendant came to talk to X, and the defendant said he wanted to have a sexual relationship with X. X said the defendant was very emotional and his voice was loud. X said she told the defendant that she did not want it, she was a Christian, this was against the Bible, she would not do it. According to X the defendant then raised his voice. The defendant said X was only loyal to his wife and not loyal to him, and then the defendant told X to leave right away.

X said she replied that she would not leave now, she will leave tomorrow. The defendant insisted that X should leave right now. After that X said the defendant grabbed her and told her to take care of his uncle, and the defendant would take care of her. X said the defendant told her she did not need to work anymore, he would cancel the visa, and X told him not to cancel her visa because this was her first time working in Hong Kong, she wanted to complete her term. X said the defendant told her he also wanted her daughter, the defendant also said he would kill her, he would hit her. The defendant said this a couple of times. X said those were the words she could remember.

Now, Ms Crebbin asked X, ‘When the defendant said I want your daughter, how did you react’? X answered, ‘I was very scared. On the one hand he tried to rape me, on the other hand he said he also wanted my daughter.’ X understood the defendant to be saying that he wanted to have a sexual relationship with her daughter.

Now, Ms Crebbin then asked X, ‘When the defendant said he would kill her and hit her, at what stage he said that’? X then gave a fairly long answer. Early on, X said she told the defendant she would not have a sexual relationship with him, she would only do that with her husband. X said to the defendant, if he wanted to have that relationship he can go outside to find someone. At that stage X said the defendant was very emotional and he uttered those words. X then told the defendant not to do this to her and that the defendant should go and bring his family back home. X will work for his family, but she would not do this kind of act with him.

The defendant then said to X he would bring back his family, but after he brought back his wife, X should abide by his request and have a sexual relationship with him. According to X the defendant also mentioned about bringing back the previous helper. The defendant asked X whether she had the contact of the previous helper. X told him she had, and then the defendant told X if the previous helper wanted to come back she would have to apologise to his wife, and then she can come back. X said she had talked to the defendant’s wife about this before. X said she told the defendant that his wife did not want her to come back. X said that was when the defendant mentioned that he had done such things with Mohini, the previous helper.” (Emphasis added)

53.When addressing the voice messages, the judge noted that defence counsel had corrected the transcript regarding what X said about the Mohini matter.  Defence counsel wanted this evidence before the jury.[58]

“ Now, another six lines down from there, from that point, six lines down about the middle of the page there is a bit about, ‘I do it before, Mohini.’ And then, ‘I gave up and I okay, okay, okay.’ Now, Mr So suggested to X that instead of, ‘I gave up and I okay, okay, okay’, Mr So suggested that it was, ‘I keep quiet and I okay, okay, okay.’ And X agreed with that.”

54.The Mohini matter arose in the context of what X said the appellant told her, there being no independent evidence of the allegation, as Mohini did not testify and X acknowledged in evidence that she did not witness any such relationship between them.  X had testified that, following the appellant demanding that he wanted her and her daughter, threatening to kill and hit her, and saying that he had done it before with Mohini, she was scared and said “okay” to him.  Prosecuting counsel, in questioning the appellant and addressing the jury, suggested that the appellant told X that he had raped, or had had sexual intercourse with Mohini in order to force X to have sexual relations with him.  It was not the prosecution case that the appellant actually had raped or had sexual relations with Mohini, but rather that that was what he had said to X, which caused her to succumb to his sexual demands.  We have no doubt that is how the jury would have understood the matter, and not that it was being alleged that the appellant had actually raped Mohini.  While prosecuting counsel remarked that the appellant had “got away with it” with Mohini, this was in the context of what he told X and her understanding and response to what he said, which was, “Okay, okay.”. 

55.We are satisfied that the Mohini matter, viewed in the context of the trial as a whole, did not occupy such a central or prejudicial role as to require, as a matter of fairness, an uncharged-act direction of the kind contended for by the appellant.  The absence of such a direction did not, in our judgment, give rise to a real risk that the jury’s verdicts were arrived at by an impermissible route.

56.We also bear in mind the well-established principle, reaffirmed in Lam Siu Fung Andy[59] and R v Birks[60], that appellate courts should be slow to upset verdicts on the basis of tactical decisions made by trial counsel, absent exceptional circumstances or a demonstrable miscarriage of justice.  The decision to explore and utilise the Mohini allegation as a means of challenging X’s credibility was plainly tactical; the defence wished to capitalise on what they regarded as an untruth by X, and they did so in full view of the judge and jury.  In these circumstances, to treat that tactical choice as a basis for setting aside the convictions would, in our view, be contrary to those principles.

57.Considering the trial as a whole, including the detailed and balanced directions the judge gave on the central issues of consent and credibility, we are not persuaded that the absence of a specific uncharged-act direction in relation to the Mohini matter rendered the convictions unsafe.

58.In our view, the issue regarding the Mohini matter was whether the appellant said it together with other threats so as to force X to have sexual relations with him.  Defence counsel insisted that the Mohini matter be raised before the jury and made no request for a direction on uncharged acts.  The parties and the judge did not treat the Mohini matter as propensity evidence and there is no reason to believe the jury would have engaged in impermissible reasoning by doing so.  The judge’s directions to the jury were clear that the main issues were whether X consented to vaginal and/or anal intercourse, and, if X did not consent, whether the appellant knew that X did not consent.[61]

59.There are two aspects of this complaint.

60.The first concerns X’s references in her evidence to the Mohini matter, which she said formed part of the appellant’s threats intended to force her to have sexual relations with him.  No objection was taken by the defence to these references, because the defence relied on them to challenge X’s credibility.  In our view, they did not give rise to any unfair prejudice to the appellant.

61.The second concerns prosecuting counsel’s remarks during the questioning of the appellant and in closing to the jury, in which she stated that the appellant told X he had raped or otherwise had sexual intercourse with Mohini, and that he thought he could get away with it in relation to X.  She further stated that the appellant thought he could get away with it again, but this was said in the context of what the appellant had told X as part of the threats.  It would have been preferable if prosecuting counsel had not made the additional comment that the appellant “believed he could get away with having full sexual relationships” and that, according to X, he got away with it with Mohini before and “he thought he could do it again”.  However, as already noted, the Mohini matter was properly before the jury as a threat allegedly made by the appellant to X, which caused her to succumb to his sexual demands and say, “Okay, okay”.  In our view, there was no unfair prejudice to the appellant because the obvious focus of the Mohini matter was whether the appellant had in fact made this threatening comment, and at no stage was it suggested that it was advanced as propensity evidence.  In those circumstances, we do not consider that it would have led the jury to engage in impermissible propensity reasoning.

62.This ground of appeal accordingly fails.

Ground 2: Whether the voice messages constitute a recent complaint

63.This ground concerns recent complaint evidence, and a useful summary of the relevant legal principles was provided by this Court in Chak Kong Fai, as follows: 

“147. To come within the common law recent complaint exception there must be:

(i)  conduct by a victim of a sexual offence to a third party which qualifies as a complaint;

(ii)  to qualify as a complaint there must be an element of spontaneity to the victim’s conduct; the more the making of the allegation is the result of the prompting conduct of others, the less likely it will qualify 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 in the sense that it is made at the first reasonable opportunity after the commission of the offence; and

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

64.It is appropriate to refer to the following further elaboration on these principles by this Court in HKSAR v Hung Hing Luen [62] regarding the temporal assessment of a recent complaint:

“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.[63] 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.[64]”

65.What constitutes a complaint in this area of law is case and fact-specific, and on this subject, guidance has been provided by the English Court of Appeal in R v S as follows:

“[28] … The question of admissibility, in our view, depends, applying the established principles, on whether such evidence is sufficiently consistent that it could, depending on the view taken by the jury of the evidence, support or enhance the credibility of the complainant. ...

[29] If the evidence is admissible …, then it is for the jury, properly directed, to consider the whole of the circumstances relating to the contemporaneous complaint in determining whether the evidence of the complaint, on their view of the witness giving that evidence, supports the complainant’s evidence and what weight they consider should be attached to it in their assessment of the credit of the complainant.

[30] The decision in each case as to whether it is sufficiently consistent for it to be admissible must depend on the facts. It is not in our judgment necessary that the complaint discloses the ingredients of the offence; it will, however, usually be necessary that the complaint discloses evidence of material and relevant unlawful sexual conduct on the part of the defendant which could support the credibility of the complainant. It will not, therefore, usually be necessary that the complaint describes the full extent of the unlawful sexual conduct alleged by the complainant in the witness box, provided it is capable of supporting the credibility of the complainant’s evidence given at the trial.

[31] Differences may be accounted for by a variety of matters, but it is for the jury to assess these. For example, in cases of alleged abuse … by a stepfather or other family member, it would be for the jury to consider whether the difference arises because, as is known to happen on some occasions, the complainant cannot bring herself to disclose the full extent of the conduct alleged against the defendant at the time of the contemporaneous complaint.

[32] For the reasons we have given at [19], there are obvious dangers in merely informing the jury of the fact of a complaint, supportive though that is of the credibility of the complainant; we have there expressed our doubts as to whether evidence of the fact of complaint can ever be admissible save in unusual circumstances, as not only will such limited evidence make it impossible to assess whether it supports the complainant’s evidence, but it may well result in unfairness of the defendant. It is, however, a matter of common experience that the terms of the evidence of a complainant given at trial and the evidence of the complaint may differ, but it would be contrary to good sense to exclude the latter if it is capable of supporting the credibility of the complainant. Provided that the evidence as to the terms of the complaint is sufficiently consistent that it can, depending on the view the jury takes, support the credibility of the complainant, it is, in our view, both fair to the defendant and in accordance with the long established principles to permit such evidence to be given and to leave it to the jury to assess its weight. We accept that such evidence may be prejudicial, but, as we have said, it can be highly probative of the veracity of the complainant in putting before the jury what complaint was being made immediately after the occurrence of the conduct complained of. It is for the jury, after an appropriate direction from the judge, to weigh up the evidence and to determine whether the circumstances in which the complaint was made and its terms support the veracity of the complainant. Reason and good sense and principle are against us excluding what may be very important evidence from the jury, just as reason, good sense and principle laid the foundation in 1896 of the modern law relating to the admissibility of the terms of the complaint.” (Emphasis added)

66.Evidence of a recent complaint is admissible where it is sufficiently consistent so that it could, depending on the view of the evidence taken by the jury, support or enhance the credibility of the complainant.  It is not necessary that the complaint set out the legal ingredients or the full extent of the alleged offence, but it must disclose material and relevant unlawful sexual conduct by the defendant which can support the complainant’s account.  Differences between the contemporaneous complaint and the complainant’s evidence go, in general, to weight rather than admissibility, and are matters for the jury.  Save in unusual circumstances, it is insufficient and potentially unfair to the defendant to adduce only the bare fact that a complaint was made; the terms of the complaint should ordinarily be placed before the jury.  Provided those terms are sufficiently consistent with the complainant’s evidence to be capable of lending it support, the complaint is admissible, subject to appropriate judicial directions as to its use and weight.

The four WhatsApp voice messages

67.We next turn to consider the following contents of the four WhatsApp voice messages that were said to constitute a recent complaint (bold type emphasis added):[65]

Voice message	Content
1	Hello Fumi San, I’m sorry.  Patrik San asked me yesterday.  “I have wanted you and my one daughter (sic).”  Then it was,“because Fumi refused to have sex with me, only once a week, and I feel very stressful.”  He also said a lot of things which you knew.  Then, he asked me -- then, I asked him, “I don’t like that.”  But he asked me, “Now, we will leave the house.”  Then, I asked him, “Not now nor tomorrow.”  He asked me, “No, now.”  Then, ... [indistinct] [“] you like my uncle, because you have taken good care of my uncle.  If you stay here and take care of my uncle with me, and... [indistinct] my daughter. [”] He then asked me [“]I have done this with Mohini before [”]And then...I gave up and [said] “Okay, okay, okay.” [corrected to “I keep quiet and I okay, okay, okay.”]  Then it was “Okay, I will talk to you again tomorrow.”  He then asked me about a lot of things, then I asked “[I] am not like you... [indistinct], so you want tomorrow (sic)  [”].  Then, okay, I... [indistinct] I asked “Please do not get my visa until 25th March.” Then, he asked me, “No, tomorrow I will get your… [indistinct] your contract.” Then I asked, “Okay, I will leave tomorrow.”  Another reason I leave today.  Please help me.  I have no -- I have no money.  Also, last time, your audio recording, this audio recording, this audio recording that Mr. William, you and I listened to together is very important.  Please send (it)  to me.  Then, after Mr. William (sic).  Also, something, I want the letter, and would you please give me that insignificant (sic)  letter and I don’t know if Patrik San needs the letter or not, I don’t know.  But please give me this letter... [indistinct] with helper and your family, but I am so sorry, Fumi San.  I can’t do this.  This is wrong.  But today I am the keeper because Patrik San ….[indistinct] talked to me.  He may come at around two o’clock (sic)  [corrected to twelve o’clock”][66].  Then, I, went to take the garbage out for disposal, when I came back he talked to me.  And I felt very.... [indistinct] I was very sad. .... [indistinct] It’s like this, Fumi San, I am so sorry.  And please, you take care your family and kids.  Okay.  Thank you.
2	Hi Fumi San, I cannot sleep the whole night.  Please help me.  Okay?  Thank you.
3	Then, he asked me, “Why hasn’t Mohini came?”  Then, I answered him,“Because I’ve asked Fumi San” and I told him, and, “If you want to …. [indistinct] Fumi San, Patrik San, Mohini feels sorry.”  Then he wanted to know[?] .... [indistinct] Fumi San ...[indistinct] it’s better for you not to come.  Then, he asked me,“I would do this in the past, but I don’t know.”  I understand.  He asked me.  But he still want (sic).
4	Then he asked me, “I am your employer.  I’ll pay you.  If you want $6,000, then you follow your Fumi, do not follow me and take care of everything for me. [”] Then I answered, “Yes, I take care of your family, your kids.  But not like this.  I don't like it.  I am sorry.”  But he felt angry. .... [indistinct] Fumi San, please help me.  This recording is very important.  I have asked (you)  before but you did not send it to me.  But today, please send it to me and ask Mr. William and Bala.

The appellant’s submissions

68.Ms Herbert submits that the four voice messages were incapable in law of amounting to recent complaints of rape or non-consensual buggery.  She points out that X explicitly accepted in her evidence that she did not tell the appellant’s wife in the messages that she had been raped by the appellant, saying that she refrained from doing so because she was afraid he would follow her.  She further emphasises that the messages contained no express assertion that sexual intercourse had taken place.

69.It is argued that, in these circumstances, the messages fall outside the concept of “complaint” as articulated in Chak Kong Fai and R v S, even allowing for the recognised principle that a complaint need not recite all the ingredients of the offence, and that the communication must at least convey to the recipient that a sexual wrong by the appellant is being alleged.  Ms Herbert submits that the messages were at best ambiguous and equally consistent with X expressing concern about the appellant’s sexual overtures and her employment situation, rather than reporting a completed rape.

70.Ms Herbert also submits that the judge wrongly took into account the consistency between the voice messages and X’s trial evidence when deciding admissibility, thereby conflating distinct factors in Chak Kong Fai that relate, respectively, to whether the conduct qualifies as a complaint and to the weight the jury might give to it.  In her written submissions, she contends that each of the five Chak Kong Fai factors should be considered separately and distinctly, and that consistency is not a legitimate criterion at the threshold stage.  She contends that the messages, once admitted and then described to the jury as potentially supporting X’s credibility if they accepted them as a complaint, carried a level of prejudicial weight that far outweighed any probative value.  She submits that the admission of the messages and the direction given were erroneous and that, in a case turning so heavily on credibility, this error rendered the convictions unsafe.

71.Finally, Ms Herbert relies on X’s evidence in court that the four messages were also forwarded to the wife’s friend, who was a compellable witness.  She submits that the wife’s friend could have been called, and should have been called, as a witness, given X’s testimony.

The respondent’s submissions

72.Mr Leung submits that the four voice messages meet the threshold of “complaint” as that concept is understood in Chak Kong Fai and R v S.  The messages were made within a few hours of the alleged assaults, during the night when, according to X, she was distraught and crying after what had happened.  They were addressed to the appellant’s wife, the very person X considered to be in a position to help her.

73.Mr Leung points out that X’s limited fluency in English inevitably affected the clarity and detail of her account in the messages.  Nonetheless, in the first message, X referred to “Patrik-san”, to his sexual demands, to his complaint that his wife “refused to have sex with me, only once a week”, and to her own objection to this behaviour.  He submits that, taken in context, these statements were clearly capable of conveying that X had been subjected to unlawful sexual conduct by the appellant.

74.It is further submitted that it has never been a requirement that a recent complaint must spell out the legal ingredients of the offence or use particular terminology such as “rape”; R v S makes clear that complaints in less precise or colloquial terms may suffice, especially in cases involving language barriers or vulnerable complainants.  Mr Leung submits that the judge was entitled to consider whether the overall tenor and circumstances of the messages supported their characterisation as complaints of sexual wrongdoing, even if X did not use the word “rape”.

75.On the appellant’s criticism that the judge wrongly took “consistency” into account at the admissibility stage, Mr Leung submits that Chak Kong Fai does not lay down a rigid requirement that each factor – including whether the conduct is consistent with the later account – must be compartmentalised and considered in isolation.  Rather, the Court in that case, emphasised the need to consider the whole circumstances in determining whether the conduct qualifies as a complaint; there is nothing wrong in principle with the judge noting that the content of the messages broadly accords with X’s later testimony when deciding whether the conduct was, in substance, a complaint.

76.Mr Leung emphasises the care with which the judge directed the jury on the use of the messages.  He told them that what was said in the messages was not evidence of what actually happened, as the appellant’s wife was not present at the time when the alleged assaults occurred, and that the messages could not by themselves prove that X’s complaint was true.  He explains that their potential relevance lies in supporting X’s credibility if, and only if, the jury accepted them as a complaint consistent with her account.  Prosecuting counsel also reminded the jury in closing that, if they did not accept the messages as recent complaints of sexual assault, they should ignore them and not use them in assessing X’s credibility.

77.Finally, Mr Leung submits that, even if the messages were inadmissible as recent complaint, the fact that X went to the police station at about 8:00 am the same morning and made a prompt and consistent complaint there would have remained before the jury. He argues that any arguable error in admitting the voice messages would therefore have had little, if any, impact on the overall fairness of the trial or the safety of the convictions.

Discussion

78.This ground raises two distinct questions.  First, whether the four voice messages were capable in law of amounting to a recent complaint of the offences charged.  Secondly, if so, whether the judge’s direction to the jury on their use was adequate to guard against any unfair prejudice. 

79.As to the first question, we accept that the messages did not contain an explicit allegation by X that she had been raped or that sexual intercourse had occurred.  X candidly acknowledged that she did not tell the appellant’s wife in those messages that it was “rape”, explaining that she refrained from doing so because she was afraid the appellant would follow her and was concerned about her safety if he found out that she had mentioned the matter to his wife.  That is an important feature of the evidence and was properly made known to the jury.

80.Despite the above, it does not follow that the messages were incapable of constituting complaints.  The law has long recognised, and R v S confirms, that a complaint need not recite the legal ingredients of the offence or adopt formal language; what matters is whether, viewed objectively and in context, the conduct is reasonably understood as an assertion that the complainant has been subjected to sexual wrongdoing by the accused.  In assessing that question, matters such as timing, the identity of the addressee, language capacity, and the surrounding circumstances are all relevant.

81.The messages were made within a few hours of the alleged assaults, in the early hours of the morning when, on X’s account, she had been crying and distressed after the incident.  They were directed to the appellant’s wife, whom X regarded as someone in a position both to understand the context and to offer assistance. 

82.The content of the messages, while not using the word “rape”, referred to the appellant’s sexual demands, his references to wanting X and her daughter and lacking sex with his wife, and X’s objection to his conduct.  Taken together, these features were, in our view, capable of being treated as complaints of sexual misconduct within the meaning of a recent complaint.  This has to be assessed in light of X’s relationship with the appellant as her employer; X made the complaint to the appellant’s wife; and X made the complaint in English, which was not her first language. 

83.We do not accept the argument that Chak Kong Fai requires the judge to compartmentalise and consider each of the identified factors “separately and distinctly”, in the sense suggested by the appellant.  That decision stressed the need for a holistic assessment of whether the conduct in question qualifies as a complaint; it did not forbid taking into account the degree to which the conduct is consistent with X’s later account when making that assessment.  The judge was therefore entitled to note the broad consistency between the tenor of the messages and X’s trial evidence in deciding that they could properly be characterised as complaints.

84.On the second question, we are satisfied that the judge’s directions to the jury on the use of the messages were measured and appropriate.  He made it plain that what was said in the messages was not evidence of what had actually happened between X and the appellant because the appellant’s wife was not present at the time when the alleged assaults took place, and he emphasised that the messages could not, of themselves, prove that the complaint was true.  He identified their potential relevance, if accepted as complaints, as lying solely in their capacity to support X’s credibility by showing the consistency of her conduct and account.

85.The judge further tailored the standard specimen direction on recent complaint to reflect the dispute at trial as to whether the messages amounted to a complaint at all.  Rather than telling the jury that X had in fact made a recent complaint in the messages, he left it to them to decide whether they accepted the messages as complaints of rape; prosecuting counsel in closing reinforced this by expressly reminding the jury that, if they did not so accept them, they must ignore the messages when assessing X’s credibility.[67] The judge directed the jury:[68]

“COURT: Now, members of the jury, as to the relevance of these four voice messages let me give you this legal direction. Now, what was said in these four voice messages is not evidence as to what actually happened between X and the defendant. That is because the defendant’s wife was not present, at the time of the alleged offence, and did not see what happened between X and the defendant. What then is its potential relevance? The relevance of the evidence is that the prosecution says that this is a complaint, and the complaint is consistent with X’s account to you and that, therefore, she is more likely to be truthful.

On the other hand, Mr So suggested to X in cross-examination that the whole point of the WhatsApp recordings were not complaining about sex.  It was about trying to save her contract and her visa.  It is for you to decide whether the evidence of the four voice messages helps you to reach a decision.  But it is important that you should understand that what was said in the four voice messages are not independent evidence of what happened between X and the defendant and, therefore, cannot of itself prove that the complaint is true.” 

86.We accept that the messages were, in some respects, less than fully explicit and that their ambiguous wording formed part of the defence case on credibility.  But that ambiguity went to weight, not admissibility.  Once admitted, the judge’s careful directions ensured that the jury understood both the limited purpose for which they could use the messages and the need to consider, as a matter of fact, whether they were satisfied that the messages were complaints of sexual assault.

87.For these reasons, we reject the challenge advanced under this ground.  The judge did not err in admitting the voice messages as evidence of recent complaint, and his directions as to whether the jury accepted the voice messages as a recent complaint and on their use were carefully formulated to guard against any unfair prejudice.  This ground of appeal is dismissed.

Conclusion

88.For the foregoing reasons, we conclude that neither Ground 1 nor Ground 2 discloses any error that renders the appellant’s convictions unsafe.  The appeal against conviction is therefore dismissed.  

Mr Antony Leung, SPP and Ms Janice Kwan, SPP of Department of Justice, for the respondent

Ms Elizabeth Herbert, instructed by Lee Law Firm, for the appellant