HKSAR v. Ekstrom Patrik Tobias

CACC 186/2024

[2026] HKCA 1000

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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J U D G M E N T

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

1.On 24 March 2026, this Court gave judgment dismissing the applicant’s appeal against his convictions on one count of rape[1] and one count of non-consensual buggery[2] (the Judgment).

2.By Notice of Motion dated 31 March 2026, the applicant applied for an order, pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), certifying the following points of law as being of great and general importance:

(1)  Whether, in circumstances where an uncharged act is before the jury, an uncharged act direction must be given to the jury regardless of the purpose for which such an act is put before the jury? (the First Question)

(2)  Whether all five of the ingredients in HKSAR v Chak Kong Fai [2021] HKCA 499 must be present for evidence to come within the common law recent complaint exception to hearsay? (the Second Question)

(3)  Whether the first ingredient of the common law recent complaint exception in HKSAR v Chak Kong Fai [2021] HKCA 499 is only satisfied if the content of the complaint discloses evidence of material and relevant unlawful (i.e. criminal) sexual conduct as per R v S [2004] 1 WLR 2940, or whether it suffices that the content of the complaint is that the complainant has been subjected to “sexual wrongdoing”? (the Third Question)

3.This application is decided on the papers, on the basis of the written submissions from both parties.

The brief facts

4.In the early hours of 28 October 2022, after his wife had left him for Japan with the children, the applicant had vaginal and anal sex with his domestic helper, X. X said he came home, demanded sex with her and said he wanted her daughter, threatened to kill or hit her, claimed he had “raped” or “done such thing” to the previous helper Mohini, dragged her to his bedroom, undressed her, and forcibly had vaginal then anal intercourse, also demanding but not obtaining oral sex. The applicant said all sexual activity was consensual, that X came to comfort him, that they previously had consensual sexual relations in July 2022 for which he gave her money and financial assistance, and that he later sent her messages, called her, and transferred HK$15,000 only because he panicked when she threatened to tell his wife. Shortly after the incident, X sent four WhatsApp voice messages in English to the applicant’s wife describing his sexual demands and her distress without using the word “rape”; the judge admitted these as recent complaint evidence for consistency only. Later that morning, X reported to the police that she had been raped, and a medical examination found no external bodily injuries or identifiable injuries to her vagina or anus.

5.The central issues at trial were whether X consented to the sexual acts, whether the applicant knew that she had not and whether X’s voice messages to the applicant’s wife amounted to admissible recent complaint evidence supporting her credibility.

6.The Mohini evidence was not objected to by the defence; instead, defence counsel explored and relied on this matter in challenging X’s credibility.

The First Question

7.Having set out the relevant principles regarding uncharged acts in paragraphs 26 to 28 of the Judgment, we emphasised their purpose and application in the following paragraph:

“28. The principles regarding uncharged acts seek to ensure that such evidence does not unfairly prejudice the defendant in relation to the particular offence on which he or she is being tried. Authorities such as HKSAR v Abbas Waseem[3]; HKSAR v Ali Nazakat[4]; HKSAR v Kwok Hing Tony[5], underline the dangers that can arise if the 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[6]; HKSAR v Lam Hing Chit [7].”

8.In the present case, X testified that when the applicant was threatening and demanding to have sex with her, he said, amongst other things, that he had raped or had sexual relations with Mohini, the previous domestic helper. As we pointed out in the Judgment, it was not the prosecution case that the applicant had actually raped or had sexual relations with Mohini, but rather that it was one of the things he said to X which caused her to succumb to his sexual demands. There was no objection by the defence to this evidence, which was then explored and relied on in challenging X’s credibility.

9.It would appear from the First Question that the applicant is not disputing the principles identified by this Court, but is instead questioning whether an uncharged act direction should be given to a jury regardless of the circumstances and the context in which it has arisen. The question reveals its lack of merit because context is almost always important in the application of legal principles. However, this was not a question of law that was advanced by the applicant under Ground 1.[8]  It was alleged that the judge failed to direct the jury in relation to the Mohini evidence, which caused prejudice to the applicant. We addressed these allegations in paragraphs 26 to 62 of the Judgment.

10.With respect, the First Question is not a point of law of great and general importance that is involved in the decision.

The Second Question

11.The question whether the five matters mentioned in HKSAR v Chak Kong Fai must be present for evidence to fall within the common law recent complaint exception to hearsay did not arise in the applicant’s appeal. The issue under Ground 2 was narrowly focused on whether the four WhatsApp voice messages from X to the applicant’s wife amounted to a recent complaint.[9] This required an assessment of what X said in her voice messages and the surrounding circumstances, such as her relationship with the applicant as an employee and her fear of reprisal by him.

12.Central to the applicant’s complaint in Ground 2 was that X did not use the word “rape”, and the voice messages were examined to determine whether they constituted complaints of “sexual misconduct within the meaning of a recent complaint”, as stated in paragraph 82 of the Judgment. It is clear that the Court was examining the contents of these messages to determine whether X was complaining about the applicant having had non-consensual vaginal and anal intercourse with her.

13.The Second Question does not raise a point of law of great and general importance that is involved in the decision.

The Third Question

14.The Third Question is whether a recent complaint can consist of a complaint of “sexual wrongdoing”. As pointed out by the respondent, the term “sexual wrongdoing” or “sexual misconduct” was variously used in the Judgment, interchangeably with “unlawful sexual conduct” referred to in R v S, in assessing whether X had complained about being sexually assaulted by the applicant in the voice messages. See paragraph 66 of the Judgment. The relevant legal principles were explained and applied in determining whether the voice messages constituted a recent complaint. See paragraphs 63 to 66 of the Judgment.

15.In addressing Ground 2, the Court explained in paragraph 78 of the Judgment that it raised two distinct questions, namely whether the voice messages were capable in law of amounting to a recent complaint of the offences charged, and whether the judge’s direction to the jury on their use was adequate to guard against any unfair prejudice. We addressed these matters in paragraphs 78 to 87 of the Judgment.

16.The Third Question does not raise a point of law of great and general importance that is involved in the decision.

Conclusion

17.It follows for the foregoing reasons that we refuse to certify, pursuant to section 32(2), the three questions as points of law of great and general importance.

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

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