HKSAR v. Chow Ka Wai

CACC 187/2023

[2026] HKCA 819

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 187 OF 2023

(ON APPEAL FROM HCCC NO 35 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 6 September 2023, following a trial before Recorder Martin Hui SC (the judge)  and a jury, the appellant was convicted of one count of rape (Count 1)[1] and acquitted of one count of attempted rape (Count 2)[2].  He was sentenced to 7 years’ imprisonment.

The present appeal

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

3.On 28 February 2025, a Single Judge granted the appellant leave to appeal against his conviction on one of the three grounds of appeal.  The ground concerned the judge giving a full Lucas direction to the jury based on lies said to have been told by the appellant to his wife and in his cautioned interviews, when such a direction was unnecessary and prejudicial to the defence.[4]

The brief facts

4.The sexual offences alleged against the appellant involved two separate incidents, in one of which he attempted to rape and the other he raped his domestic helper (referred to as X)  at the family home. 

5.At around 3:30 am on 28 July 2021, while X was sleeping in her bed on the rooftop of the family residence, the appellant attempted to rape her.  He was unsuccessful because he could not get an erection.[5] (Count 2)

6.At around 9:00 pm on the next day, 29 July 2021, the appellant approached X when she was alone, so she turned on her mobile telephone to record any exchange between them.  In the recording, X said, “No, No, No … Sin Sang No Please …”. The appellant asked, “Why Not?” and she said, “No”.  He said, “You said yesterday you want …”, and she replied “No …Sir I’m not saying that”.  He repeated, “Yesterday, you … let me insert it in”, to which she responded, “I didn’t, I didn’t” (Exhibit P58).[6] 

7.On the evening of 9 August 2021, the appellant and his wife had been entertaining a guest at home.  At around 2:15 am on 10 August 2021, while X was lying in her bed, the appellant allegedly raped her.[7] After having sexual intercourse with X, the appellant asked X if she was having her period but she did not respond.  The appellant then left.  X wiped her vagina with a tissue and noticed that there was blood and fluid on it.  A few days later, she also noticed that her right hand had been injured during the rape.[8]  (Count 1)

8.At around 8:30 am on 10 August 2021, the morning of the alleged rape, X sent three voice messages via WhatsApp (Exhibit P39)  to her friend Ah Tan (PW5).  She told PW5 that her employer had sexually harassed her.  PW5 suggested that she should seek assistance from Christian Action. Later, at around 10:30 pm that day, she told PW5 that she had contacted Christian Action.[9]

9.Between 2:00 pm and 3:00 pm on 11 August 2021, X spoke to the appellant’s wife about the incidents with the appellant.[10]  She recorded her conversation with the appellant’s wife.[11] Afterwards, she went again to Christian Action for assistance.  At around 7:55 pm that evening, X reported the incidents at Tsuen Wan Police Station.

10.A forensic examination of X’s underpants revealed that a semen stain in the crotch area matched the appellant’s DNA. Menstrual blood was also found at the opening of X’s cervix.  The bruising on X’s right index finger indicated that it could have been caused approximately 2 to 3 days before the examination on 12 August 2021.

11.The appellant was arrested and interviewed under caution twice on 13 August 2021.  In the second part of the second interview, he responded to questions about the incidents with X by saying, “I don’t remember”.[12]

12.The appellant testified at trial.  He did not dispute that he had sexual intercourse with X on 10 August 2021.  He claimed that the sexual intercourse and the other acts of intimacy with X were at her instigation and with her consent, as a result of an agreement or a “deal” struck between them.[13]

13.The appellant’s family residence was in a three-storey village house.  He leased the top two floors and the rooftop.  The living room, kitchen and a bathroom were on the first floor, and the bedrooms were on the second floor.  There were two CCTV cameras located in the living room.  X had her sleeping quarters on the staircase leading to the rooftop.[14] 

14.The appellant said that around midnight on 28 July 2021, when he was tending to the fish tank on the rooftop, he heard X call out his name from her bed.  She asked him if he wanted her and wrapped her arms and legs around him.  The appellant embraced X, and they kissed, touching each other’s private parts.  The appellant asked X what she wanted, and she replied “give me money”.  He offered her HK$500, but she said she wanted more, requesting HK$1,000.  At that moment, the appellant heard his wife approaching the rooftop, and they immediately stopped.[15]

15.On the evening of 29 July 2021, X approached the appellant again after he had tended the fish tank.  She pressed her back against him and touched his private parts over his pants.  He responded by embracing and touching her.  However, the appellant stopped touching X and walked away after she said, “No”.[16]

16.The appellant claimed that X’s recording of their conversation on 29 July 2021 was a reference to the incident on the previous day.  He said that X had offered sexual services to him and let him insert his finger into her vagina, and that this was what he was referring to when he said, “yesterday you want” and “you let me insert”.  He denied that he had said, “I cannot do it last time.  Now I can do it” to X.  He stated that he felt confused when X said “No” after he touched her, given that she was the one who had initiated the intimacy between them.[17]

17.At around 9:00 pm on 9 August 2021, the appellant said that he had been entertaining that evening and felt a bit tipsy.  A little later, when he was on the rooftop adjusting the fish tank, X approached him and said, “tonight 500 okay”.  He said, “Okay, I come to you later” and went back to the living room, where his wife and a friend were drinking.[18] Later, after midnight on 10 August 2021, he went up to the rooftop to have sex with X, but he took a spare mobile telephone, a Huawei telephone, and turned on the audio recording as a precautionary measure.  He found her behaviour on 29 July 2021 a bit strange, and this concerned him, so he placed the telephone under the mattress of her bed.[19]  He said the recording (Exhibit D6)  captured the appellant and X having sexual intercourse.  After he cleaned himself up and put on his pants, he turned off the recording on his telephone.  He went downstairs and saved the audio recording onto an SD card in the Huawei telephone.  He explained that he no longer had the Huawei telephone because it had been damaged, but he still had the SD card.

18.As part of his defence, the appellant claimed that, on the morning of 10 August 2021, X demanded HK$50,000 from him to keep quiet about their sexual relationship.  He accepted that he did not tell X about the audio recording when she made her demand for money, but this was because X had threatened him that she would tell his wife about their sexual relationship.[20] After he consulted a friend, he refused X’s demand.

The sole ground of appeal

19.The re-amended perfected ground of appeal particularises the sole ground on which leave was granted.

20.It is alleged that the judge erred in giving a full Lucas direction[21] in relation to two sets of alleged lies: (a)  the appellant’s statements to his wife when confronted with X’s allegations; and (b)  the appellant’s repeated answers of “I don’t remember” during his cautioned police interviews.  It is submitted that, in the circumstances of the case, the lies direction was a misdirection and ought not to have been given if the judge had properly exercised his discretion.

The appellant’s submissions

21.Ms Charlotte Draycott, SC, and Mr Martin Li, advance the following submissions on behalf of the appellant. 

22.First, the appellant contends that the statements to his wife did not constitute lies.  The statements to his wife were played to him in his first video recorded interview in the following exchange:

“171. C: Well, (I)  then told my wife about it.

172. A: Yes. Okay, well, I now (play)  an audio recording, er - which you send to your wife on Wednesday, i.e. the -- the day before yesterday, i.e. at 3:28 p.m. on 11 (August). Please listen to (it)  once.

173. [playing an audio recording] It was not strange that I often went to the rooftop because, er - most evenings, I would -- I did go to the rooftop to remove water from, add water (and)  add some medication to the fish (pond), huh, once a day -- a day, huh, well, it was in the evening when I first did(it). Therefore, I went upstairs to do (it)  every evening, huh. You were here (and)  saw that I went upstairs to do (it), huh.

174. A: Okay, well, I now play (one wrong character)  the one at 3 :22 p.m. on the same day.

175. [playing an audio recording] Think about the whole incident. (It)  does not make any sense. If she said that I had been drunk that evening, er - had gone upstairs to molest her, huh, let’s say that I was drunk (and)  unknowingly rushed upstairs to molest her. Then, wouldn’t she scream? Wouldn’t she say no? Don’t tell me that she cooperated with me. You were downstairs, a, a, a, a staircase -- a staircase away. (You)  went inside the room. You said that I went inside shortly after you went inside. Well, that means you had not fallen asleep during that time, huh, well, you would have heard (it), right?

176. A: Okay, well, the two audio recordings just now, er - in fact, what were the contents about? That was the conversation between you and your wife, right?

177. C: Yes.

178. A: You, er - this one. Let’s listen -- listen to (it)  again. This one is? It means -- What were (you)  explaining?

179. [playing an audio recording] Think about the whole incident. (It)  does not make any sense. If she said that I had been drunk that evening, er – had gone upstairs to molest her, huh, let’s say that I was drunk (and)  unknowingly rushed upstairs to molest her. Then, wouldn’t she scream? Wouldn’t she say no? Don’t tell me that she cooperated with me. You were downstairs, a, a, a, a staircase -- a staircase away. (You)  went inside the room. You said that I went inside shortly after you went inside. Well, that means you had not fallen asleep during that time, huh, well, you would have heard (it), right?

180. A: Can (you)  explain in more detail(?)  Were (you)  explaining something to (your)  wife or what were (you)  trying to tell with what (you said)?

181. C: You (played)  an audio recording just now, which was about, er - she complained to my wife. [A: Complained.] Well, my wife asked me (what had happened).

182. A: Therefore, (you)  explained?

183. C: Huh, I was not explaining. I was analysing the incident for her.

184. A: Analysing the incident, analysing the incident for her, look, from the content (we)  have heard, you -- you said that (you)  did not do (it). Is that what (you)  meant?

185. C: Something like that.”[22]

It is submitted that what the appellant said to his wife was an analysis of the inherent improbabilities of X’s allegation, rather than a denial of sexual intercourse.  He pointed out that if he had been drunk and had gone upstairs to molest X, she would have screamed, which his wife would have heard from downstairs. This was, in essence, prevarication or an attempt to persuade his wife of the unlikelihood of X’s account, but it was not a deliberate falsehood. Alternatively, even if it were to be regarded as a lie, it was not material to the central issue at trial, which was consent.  The fact that he did not admit to his wife that he had engaged in adulterous intercourse was readily understandable; a man in his position would naturally seek to protect his marriage.  Such a lie, born of a desire to preserve his family, could not rationally support an inference of guilt in relation to the charge of rape.  In any event, the lie did not go to any material issue in the case, because the only issue for the jury was whether X consented, not whether intercourse had occurred.

23.Secondly, with regard to the police interview, the appellant similarly argues that his answers of “I don’t remember” were not lies.   In his second video recorded interview, he gave the following answers to specific questions concerning his sexual relations with X[23]:

“25. A: Okay, another sentence was ‘stop please’. Did you hear her say these sentences on the day of the incident?

26. C: Do not remember.

27. A: Do not remember. Did you remove [X]’s underwear or her clothes at the time of the incident?

28. C: Do not remember.

29. A: Do not remember. Did you grab [X]’s mobile phone at the time of the incident?

30. C: Do not remember.

31. A: Do not remember. Did you insert (your)  finger( s)  into [X]’s vagina at the time of the incident?

32.  C: Do not remember.”

He explained in his evidence that he was acting on legal advice.  His lawyer had advised him that he had a right to remain silent and that, if he chose not to answer questions, he could simply say that he could not remember.  The appellant was therefore exercising his right to silence, rather than telling a deliberate untruth.  The prosecution’s characterisation of these answers as lies, and the judge’s consequent Lucas direction, in effect, penalised him for exercising a fundamental right.

24.Thirdly, the appellant submits that, even if the statements could be categorised as lies, the judge’s direction was unnecessary and positively damaging.  In her closing speech, prosecuting counsel did not invite the jury to use the alleged lies as evidence supporting the inference of guilt; rather, she relied on them only as a factor going to the appellant’s general credibility, suggesting that he was not a truthful witness.  In those circumstances, the appropriate direction was the conventional one on the burden and standard of proof in the context of assessing credibility, not a full Lucas direction.

25.Fourthly, the appellant contends that the Lucas direction given by the judge was poorly tailored to the facts of the case.  The judge invited the jury to consider whether there was any “innocent reason for the lie” and gave examples such as making his defence sound better, panic, confusion, or nervousness.  However, these examples did not align with the appellant’s actual explanations.  His explanation for the statements to his wife was a desire to save his marriage; his explanation for the “I don’t remember” answers was that he was acting on legal advice.  Neither of these was among the examples given by the judge.  The direction was therefore confusing and risked leading the jury to disregard the appellant’s explanations, which were not mentioned in the judge’s illustrative list.

26.Fifthly, the appellant relies on the principle, as stated in Yuen Kwai Choi v HKSAR [24] and R v Burge & Pegg [25], that a Lucas direction is reserved for limited circumstances.  It is required only where the prosecution relies on a lie as a separate item of evidence probative of guilt, or where there is a real danger that the jury might misuse a lie in that way.  In a straightforward case where there is a simple conflict of evidence, the appellant’s word against X’s, a Lucas direction adds unnecessary complexity and does more harm than good.  This was such a case, particularly as the only issue was consent.  The alleged lies were at best collateral matters going to credibility, and a Lucas direction was therefore neither required nor appropriate.

27.Sixthly, the appellant notes that the direction invited the jury to use the lies to support the prosecution case if they were sure that the lies were deliberate, material, and without an innocent explanation.  This was a significant departure from the proper approach.  The jury should not have been invited to bolster the prosecution case in this way. The risk was that the jury, having concluded that the appellant had lied to his wife or in interview, would then treat those lies as corroboration of X’s account, a classic example of the impermissible process of reasoning that a Lucas direction is designed to prevent, not facilitate.

28.Finally, the appellant submits that the judge’s direction was internally inconsistent.  Having correctly instructed the jury that a lie alone can never prove guilt, the judge nonetheless permitted them, if certain conditions were satisfied, to use the lies “as evidence which supports the prosecution case.”  This blurred the distinction between using a lie to undermine credibility and using it as positive evidence of guilt.  The direction thereby created a risk of confusion and prejudiced the appellant’s right to a fair trial.

The respondent’s submissions

29.The respondent, represented by Ms Lily Ho and Ms Ivy Chan, submits that the lies were clearly material.  The lies to the wife concerned whether any sexual intercourse had occurred, which was a foundational fact directly inconsistent with the appellant’s trial account.  The lies in the police interview, where the appellant claimed he could not remember details he later testified to in court with precision, were similarly relevant to his overall credibility and the truth of his account.

30.The respondent further contends that the prosecution’s closing speech made it clear that the lies were being deployed to support the prosecution case, not merely to attack the appellant’s credibility. In those circumstances, a Lucas direction was not only appropriate but necessary to guide the jury on the proper use of such evidence and to prevent the impermissible process of reasoning that a lie equals guilt.  The judge’s direction was full, balanced, and tailored to the facts, explicitly reminding the jury of the appellant’s explanations.

The legal principles

31.It is important to note that the law in relation to lies is not a set of strict rules but a set of guiding principles that deal with the dynamics of a trial and the variety of situations that may arise when lies told by an accused become an issue.  The legal principles governing directions on lies are well established.  In Yuen Kwai Choi, the Court of Final Appeal identified the “impermissible process of reasoning” whereby a jury, having concluded that an accused has lied, may be inclined to reason that he must therefore be guilty.[26]  The function of a lies direction is to warn the jury against that approach and to explain the limited circumstances in which lies may properly be used as supporting evidence of an inference of guilt.  As Chan PJ stated:[27]

“Where there is a risk that the jury may regard lies told by an accused as probative of his guilt, as in the case where the prosecution addressed the jury on the basis that the accused has lied in what he said and that the lie is supportive of the prosecution’s case ... or where there is a danger that the jury may in any way misuse the lie, it is necessary to give a direction on lies. … In considering whether a direction on lies should be given, particularly when the trial judge entertains a doubt as to what he should say to the jury in case he decides to give such a direction, he should first raise the matter with counsel and then give the direction unless it is clear that such a direction is not only unhelpful but may also mislead the jury.”

32.The Court in Jim Fai v HKSAR [28] reiterated that the purpose of a lies direction is to avert a miscarriage of justice where there is a danger that the jury might treat the lies as probative of guilt in themselves or  might use the lies in an impermissible process of reasoning.  Whether such a direction is required, and its scope, depends on the circumstances of the case, particularly the use or potential use to which a proven or alleged lie may be put.  As the Court stated:[29]

“Generally speaking, a lies direction is only necessary where the prosecution intends to use a lie alleged to have been told by an accused to establish or assist its case or to strengthen an inference of guilt or where there is a danger that the jury may engage in an impermissible process of reasoning to the disadvantage of the accused.  It is given in order to ensure the accused has a fair trial …”

33.It is also recognised that where a trial judge is in doubt whether to give a lies direction, he or she should raise the matter with counsel and will ordinarily give the direction unless it is clear that doing so would be positively unhelpful or misleading.  Counsel are under a professional obligation to raise any genuine procedural irregularity at trial and not hold it in reserve for the purposes of an appeal.[30]

The judge’s direction

34.At the conclusion of the evidence and before the delivery of closing speeches, the judge discussed with counsel the legal directions he proposed to give.  Prosecuting counsel indicated that she would be referring to lies as part of the prosecution case, making a lies direction necessary.  There was no demur from defence counsel.[31]  In her own closing speech, defence counsel directly engaged with the anticipated direction, describing the appellant’s statements to his wife as his being “very economical with the truth”[32], and submitting that there were innocent explanations for his lack of candour; namely, his desire to protect his marriage and his reliance on legal advice as to his right to silence.[33]

35.In her closing speech, prosecuting counsel deployed the alleged lies in the following terms:[34]

“He’s analysing his version of events to make you believe the version that he has put forward.  Now, members of the jury, so I would suggest to you that where he says, ‘I do not remember,’ in the record of interview, he is clearly lying, and he lied to his wife in the audio and he’s been lying to you, members of the jury, when he gives you his version of events.”

36.Prosecuting counsel further submitted that the appellant’s account of his dealings with X was “a total lie”, and that the jury should regard him as lacking all credibility.[35]

37.Against that background, the judge directed the jury on lies in the following terms:[36]

“And the defendant told us that his wife called him later that day in the evening telling him that X had alleged that he had indecently assaulted her. The wife later on contacted the defendant again and told him that X had already left home. The defendant then told us how he contacted the agency and how he asked the agency to help locate X and he told us in evidence about how he explained trying to analyse to his wife about what had happened. And he was shown screen capture of X phone showing a message sent by him to X starting with, ‘Why you telling this story?’ And he confirmed that it was him who sent the message and when being asked why he had not mentioned about the blackmail of $50,000, he said it was because he had to show this message to his wife and at the moment he could not let his wife know that he had an affair with the domestic helper.

Now, the defendant explained why he said those answers to the police in the video-recorded interview. He said the police came to his house at about 1 o’clock in the morning of the 12th and he was detained until 13 August. And he told us about how he was advised by that female lawyer who was then representing him asking him to explain or asking him to simply say he could not recall or he did not recall if he was asked about something in relation to the case. You have his explanation of why he answered in the way he replied to questions by the police.

And specifically, in the second video-recorded interview, he was asked and it was actually played to him the audio recording which he sent to his wife at counter 172 and later 173 and 5, he recalled that his wife was very concerned at the time and kept asking him about the incident X told her about. And he confirmed to us in his evidence that he did not at the time admit or deny having sexual intercourse with X. And the purpose of him making the recording to his wife in such a way was to analyse to his wife that Ms X or what Ms X said to the wife was unreasonable. And he was specifically asked in cross-examination that whether he had lied to his wife in the audio recording. He denied but he said when the audio was sent to his wife he did not know that Ms X reported the case to the police. So he did not say anything. What he did was just to analyse with his wife what she heard from X. When being asked again if he was lying to his wife, he said he hope his wife would not believe in what Ms X said because he said what X said was not true.

Pausing here, it is important to remind you that any person suspected of a criminal offence or charged with a criminal offence is entitled not to say anything or to say nothing when asked questions about it. And you must not hold his refusal to answers against him. The exercise of the right to silence cannot amount to an admission of any kind, nor can it be taken to reflect a guilty conscience. However, it is a matter for you to decide whether the defendant’s answers given in the video interview, especially when he said, ‘I don’t remember,’ are actually exercising his right to remain silent or actually providing an answer to the questions being asked. You have to consider the whole of the evidence, including his explanation which I have just outlined about him acceding to his lawyer’s advice at the time.

And another issue that arises from the defendant’s answer in the second video interview is that the prosecution is relying on this evidence of lying. And I shall give you direction on this. The prosecution says what the defendant said in the second video interview amounts to lies, that he lied. As I have summarised, at that time the defendant provided a range of answers, including ‘do not remember’, which the prosecution says that was a lie because he does remember the answers, what in fact were the answers to those questions. The defence say that the defendant was purely exercising his right to silence at the time and his answers were merely because of the bad legal advice he was given.

You may think that what the defendant said are true or partly true or partly untrue or even a lie. The same applies to seemingly inconsistent statements he gave to his wife after Ms X complained to her and what he said in court. I must give you a direction as to how you approach this question of lie if you find that he, indeed, has told a lie. The first thing I must tell you is that a lie cannot on its own prove a defendant’s guilt. At most, it can be a factor in support of the prosecution case. It does not prove guilt. But before it can be used to support the prosecution case, there are a number of questions you must ask yourself.

First, are you sure that what the defendant say that he did not remember as to the question being asked was untrue. If you are not sure, then you must ignore the point altogether. If you are sure what the defendant said was untrue, then you must ask yourself the next question, was it a deliberate untruth, a deliberate lie, or whether it may have been said because of a mistake or out of confusion and in this context, advice by or bad advice by a lawyer.

If you are not sure that it was a deliberate untruth, then you must ignore this evidence. Now, if you are sure that what he said was a deliberate lie, you should then go on to ask yourself the next question, does the deliberate lie relate to some significant circumstance or event connected with the alleged offence. The prosecution says this is relevant because it is connected with the fact that the defendant had conducted the sexual offences in question. It is a matter for you to consider whether the deliberate lie, if you find it is a deliberate lie, told by the defendant actually relates to a material issue in the case. If you decide that the lie does not relate to any material issue in the case, then you must ignore this evidence of lie.

Now, if you are sure that it was a lie and relates to a significant issue in the case, then you must ask yourself why did the defendant lie. In answering this question you must bear in mind that a person may have an innocent reason for lying. In other words, the defendant may lie for many reasons and they may possibly be innocent reasons in the sense that they did not give any indication of guilt. For example, somebody may lie in order to make his defence sound better. The defence may be true but he may, so to speak, gild the lily to bolster the defence and in doing so tell lies. Or he may simply lie out of panic or confusion or it may also be out of nervousness.

So there may be possibly innocent reasons as to why a person may lie. It is entirely a matter for you to decide. So if you think that there is or there may be an innocent explanation for the lie, then you should take no notice of it. It is only if you are sure that he did not lie for any innocent reason of the kind that I have suggested, then his lie can be regarded by you as evidence which supports the prosecution case. But remember, the defendant is not to be convicted either wholly or mainly on the basis that he lied. The fact that he lied, if that is what you find, does not on its own prove that he is guilty. So just to recap on this issue of lie.

First, a lie on its own can never prove a defendant’s guilt. At most, it can be a factor in support of the prosecution case. Second, before it can support the prosecution case you must be sure that first, it was a deliberate lie on a material or significant issue, and second, there was no innocent motive or reasons for the lie of the kind that I have just described. So you must examine the whole of the defendant’s statement when he was arrested. He initially denied there was rape. As well as what he said in his two video-recorded interviews in the entire proper context and the evidence that he gave that he said he simply answered in the way he did because of the bad advice of the lawyer.

You must not look only at those parts of what he said or on which the prosecution rely, but also any explanation he has given you, and you must decide what you accept and what you think might be true and what you do not accept. But I stress once again that even if you reject the defendant’s explanation or if you think he lied on certain matter, that does not mean he is guilty. It is for you to decide.” (Emphasis added)

38.The judge’s lies direction was unimpeachable. He instructed the jury that at most a lie could be a factor in support of the prosecution case, but could not prove guilt.  They had to be sure that what the appellant said was a deliberate lie and related to a material issue in the case.  Even then, if there is or may be an innocent explanation for the lie, they must ignore this evidence.  It is to be noted that, in addition to the illustrative innocent reasons given (making the defence sound better; panic; confusion; nervousness), the judge separately and explicitly reminded the jury of the appellant’s own specific explanations.  The appellant’s desire to avoid disclosure of his affair to save his marriage, and his reliance on legal advice, were provided in the context of directing the jury to consider “the entire proper context and the evidence that he gave”.[37]

Discussion

Whether there was a basis for the Lucas direction

39.The first consideration is whether the conditions for a Lucas direction were satisfied.  The appellant’s primary submission is that the prosecution only relied on the alleged lies to challenge his credibility, and that no Lucas direction was therefore required.

40.We do not accept that characterisation of the prosecution’s case.  As the passage from the prosecution’s closing speech[38] makes clear, prosecuting counsel expressly invited the jury to conclude not only that the appellant was an untruthful witness in general terms, but that his lies to his wife and in interview demonstrated that his account was untrue.  She submitted that his story of his dealings with X was “a total lie”.  This went beyond a general credibility challenge because the lies were deployed to strengthen the inference of guilt by submitting that the appellant’s account of consent was false.  That is precisely the use which the Court of Final Appeal in Jim Fai [39] identified as the paradigm case for a lies direction, namely where the prosecution intends to use a lie “to establish or assist its case or to strengthen an inference of guilt.”

41.The prosecution did not merely challenge the appellant’s credibility in general terms; it pointed to specific instances of his conduct as evidence of a consciousness of guilt or a pattern of dishonesty.  In these circumstances, there was a real risk that the jury might misuse this evidence.[40]  Consequently, it was appropriate for the judge to give a clear direction to prevent that risk.

42.Furthermore, even if the prosecution’s use had been equivocal, there was a real and obvious danger that a jury, having been told that the appellant had lied to his wife about whether intercourse occurred, and had repeatedly said “I don’t remember” in interview about matters he later described in precise detail at trial, might conclude without further guidance that he must be guilty.  As the Court of Final Appeal identified in Yuen Kwai Choi, this tendency towards “impermissible reasoning” has a much greater impact where it is the accused who has testified.[41]  This was also a compelling reason for the judge to give a lies direction. 

43.We also observe that this was not a case in which the judge gave a Lucas direction on his own initiative, against the wishes or without the acquiescence of both parties.  Prosecuting counsel had indicated before closing speeches that she would rely on the lies as part of the prosecution case.  Defence counsel raised no objection.  On the contrary, she actively anticipated the direction in her own closing speech by addressing the innocent explanations for the appellant’s lack of candour.[42]  It would appear that defence counsel’s comments were addressing the anticipated lies direction from the judge as well.  This militates against a finding that the direction was unnecessary or that the judge erred in giving it.

Whether the direction was appropriate given the nature of the lies

44.The appellant argues that the lies were not material because the central issue was consent, not whether intercourse took place.  We do not accept this argument.

45.The appellant’s trial case was that X had instigated consensual intercourse in return for money.  His account to his wife, by contrast, sought to persuade her of the improbability of X’s account, without acknowledging that intercourse had occurred.  A lie that goes to whether the central act occurred is plainly material.  It is directly inconsistent with the account the jury had to evaluate.  The inconsistency between denying intercourse to his wife and asserting consensual intercourse at trial went to his credibility on the only contested issue.

46.Similarly, the appellant’s repeated “I don’t remember” answers in the cautioned interview, in response to questions about acts he later described in considerable detail in the witness box, were not, on their face, the fundamental exercise of the right of silence.  The prosecution was entitled to invite the jury to treat them as deliberate untruths.  The fact that the appellant offered an explanation (legal advice)  did not preclude the prosecution from relying on those answers as lies.  It simply meant the jury had to evaluate that explanation before deciding whether to use the answers against him, precisely the exercise the Lucas direction required them to perform.

Whether the direction was properly tailored

47.The appellant’s criticism of the direction is that the illustrative “innocent reasons” given by the judge, such as making the defence sound better, panic, confusion, and nervousness, did not correspond to his actual stated explanations such as saving his marriage and legal advice. The submission is that this created a risk that the jury would treat the judge’s illustrative list as exhaustive, and in consequence disregard the appellant’s actual explanations.

48.We do not accept this submission.  The function of the illustrative list in the standard direction is to illustrate the genus of innocent reason, to communicate the general principle that there are innocent explanations for lies, and not to circumscribe the jury’s consideration of any specific innocent reason actually advanced at trial.  More importantly, the judge did not leave the jury in any doubt about the appellant’s specific explanations.  He directed the jury explicitly to consider “the entire proper context and the evidence that he gave that he said he simply answered in the way he did because of the bad advice of the lawyer”[43], and reminded them that in terms that they must look not only at the parts on which the prosecution relied “but also any explanation he has given you.”  The two specific explanations, that is, preserving his marriage and acting on legal advice, had been extensively canvassed in the appellant’s own testimony[44] and in defence counsel’s closing speech, and the jury cannot sensibly be taken to have been unaware of them.

49.The direction followed the standard direction set out in the Specimen Directions in Jury Trials, 2020 Revision, Chapter 112[45], appropriately adapted to the facts.  Throughout, the judge repeatedly conveyed the key protective message that a lie on its own could never prove guilt, and that the jury must be sure there was no innocent explanation before treating a lie as supporting the prosecution case.

The position adopted at trial

50.We listened in open court to the audio recording of the judge’s discussion with counsel regarding his directions to the jury, and as already noted, defence counsel at trial raised no objection to the giving of a Lucas direction when the judge canvassed it before closing speeches.  In fact, she positively addressed with the anticipated direction in her closing speech[46], advancing innocent explanations for the appellant’s lack of candour. It would be inconsistent with her professional obligations and with the overall fairness of the proceedings to allow the appellant to complain on appeal of an error that could readily have been addressed at trial.

The effect of the direction

51.We are satisfied that the Lucas direction could not have made any difference to the outcome, except to ensure that the appellant’s alleged lies were properly considered by the jury.  The jury had before them the evidence of X, whose account was consistent throughout; forensic evidence placing the appellant’s semen on X’s underpants together with menstrual blood; X’s complaint to her friend Ah Tan made on the morning of the incident itself; and the appellant’s own audio recording (Exhibit D6), which X denied was her voice and which the defence was unable to authenticate by reference to the original device.  Against that evidential background, the jury’s verdict was properly founded on the evidence independently of any issue regarding the lies direction.  There was no miscarriage of justice.

Conclusion

52.Having considered the only ground of appeal on which leave was granted, we find no error in the judge’s summing-up.  The conditions for a Lucas direction were clearly satisfied.  The direction was correctly given, was appropriately adapted to the facts of the case, and was a fair and balanced instruction to the jury.

53.For the foregoing reasons, the appeal against conviction is dismissed.

Ms Lily Ho, SADPP, and Ms Ivy Chan, PP, of the Department of Justice, for the respondent

Ms Charlotte Draycott, SC, and Mr Martin Li, instructed by Ivan Tang & Co, for the appellant