HKSAR v. Chow Ka Wai

CACC 187/2023

[2026] HKCA 1992

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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J U D G M E N T

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

1.On 28 April 2026, this Court gave judgment[1] dismissing the applicant’s appeal against his conviction for one count of rape[2] (the Judgment).  

2.By Notice of Motion filed on 2 July 2026, the applicant applied for an order, pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), without, however, identifying any point of law of great and general importance for certification under this section.

3.This application is to be decided on the papers, on the basis of the written submissions from both parties.  In short, the application is misconceived and not properly founded.  The applicant has not complied with the time limit for filing the application, nor has he identified a point of law of great and general importance involved in the Judgment dismissing his appeal against his conviction for rape.  He instead repeats some of his initial grounds of appeal, which had not been pursued, and advances a new ground of appeal, which had not been previously argued.

The brief background

4.The applicant faced one count of rape and one count of attempted rape of his domestic helper (X).  He was convicted of rape and acquitted of the attempted rape after trial before a jury.  The prosecution case was that the rape had occurred at the applicant’s residence after he and his wife had been entertaining another guest.  X then complained to various parties, including the applicant’s wife, before reporting the matter to the police.  When the applicant was confronted by his wife about the allegations, he lied to her, and also to the police in his video-recorded interview, when he stated “I don’t remember” in some of his responses.  The applicant testified at trial and did not dispute that he had sexual intercourse with X, but claimed that she had instigated it for money.  The trial judge gave a Lucas direction on the proper use of lies. 

5.The applicant appealed against his conviction initially on various grounds, but only one was argued before the Court of Appeal, with the others either being refused leave or not pursued.  The one ground argued was that the Lucas direction was unnecessary and prejudicial.  He contended that the Lucas direction was not appropriate, as the statements to his wife and the police were not lies as he had only been persuading his wife about the improbability of X’s account, and had said “I don’t remember” in his video-recorded interview in accordance with legal advice.  It was further alleged that the prosecution had only relied on the lies to discredit the applicant generally, instead of inviting the jury to infer guilt, and that the contents of the direction had not been tailored to the facts of the case.

6.In dismissing the applicant’s appeal, this Court found that there was a proper basis for the trial judge to give the Lucas direction, which had been properly tailored to the facts of the case.

The application

7.This application is made out of time.  The applicant affirmed that the delay in filing his application was due to difficulties encountered because he was acting in person.  He said he was unsure about the documents that had to be prepared and relied on his family members to file the documents, which were originally rejected because they were incomplete.  We do not find this explanation to be reasonable in the circumstances, as he has not focused on identifying a point of law of great and general importance involved in the Judgment. 

8.The applicant is essentially advancing four grounds of appeal in support of his application.  The first three grounds were previously argued, for which leave was refused.  Furthermore, the applicant did not renew these grounds of appeal.  The fourth ground is a new ground seeking further investigation or development in respect of Exhibit P7 (the applicant’s washed T-shirt) and Exhibit D6 (an audio recording allegedly of the applicant and X having sexual intercourse, which had been made on the applicant’s mobile telephone and moved to an SD card; this mobile telephone was no longer available because it had been “broken”[3]).

9.Ground 1 complains that the jury’s verdicts were inconsistent.  He argues that the verdicts were “factually inconsistent” and that no reasonable jury would have returned such verdicts.  This was Ground 1 in the Perfected Grounds of Appeal, which was not pursued.  It was rejected in the reasons for decision in the application for bail pending appeal dated 25 April 2024, at [6]-[8].[4] The judge briefly explained how the evidence would have supported the different verdicts. 

10.Ground 2 argues that the judge did not give appropriate and fair directions on the audio recordings (Exhibit D6).  This was Ground 1 in the Amended Perfected Grounds of Appeal, which was not pursued.  It was rejected in the reasons for judgment in the application for leave to appeal dated 28 February 2025, at [21]-[50].  The judge examined in detail the submissions relating to Exhibit D6 and fairly summarised the issues relating to the audio recording for the jury to consider.

11.Ground 3 alleges that the judge erred by accepting the woman police officer’s testimony as a “recent complaint”.  This was Ground 2 in the Amended Perfected Grounds of Appeal, which was not pursued.  It was rejected in the reasons for judgment in the application for leave to appeal dated 28 February 2025, at [51]-[55].  The judge found that the complaint to the woman police officer fell within the requirements and parameters of a recent complaint, which had been dealt with as such at trial and had been properly addressed by the judge in his summing-up.

12.Ground 4 submits that certain matters concerning two crucial pieces of evidence, Exhibit P7 (the washed T-shirt) and Exhibit D6 (the audio recording), justify a retrial.  This is a new complaint against his conviction, which does not relate to any point of law or legal principle involved in the decision.  In respect of Exhibit P7, the applicant requests further forensic testing of his T-shirt to verify whether it had been bloodstained as it appeared on the CCTV image that his T-shirt was stained.  As pointed out by the respondent, the applicant is merely seeking further forensic examination of the T-shirt in order to urge for a retrial.  In respect of Exhibit D6, the applicant claims that the telephone used to make the audio recording has been repaired and that this would undermine X’s evidence.  As pointed out by the respondent, the applicant testified that the telephone used to make the recording had been damaged on 8 August 2020 when he went for a swim, and that he no longer had the telephone.[5] Moreover, the requirements have not been met to produce new evidence under section 83V of the Criminal Procedure Ordinance (Cap 221).

13.None of these grounds identify any point of law of great and general importance, nor do they focus on a legal point involved in the Court of Appeal’s decision, which addressed only one ground of appeal in respect of which leave had been granted, namely that the giving of a full Lucas direction to the jury, based on lies said to have been told by the applicant to his wife and in his video-recorded interviews, was unnecessary and prejudicial to the defence. 

Conclusion

14.It follows from the foregoing reasons that we refuse to certify, pursuant to section 32(2), any question, as no points of law of great and general importance have been identified by the applicant.

Ms Sabra Lo, SPP, of the Department of Justice, for the respondent

The applicant appeared in person

[1]  HKSAR v Chow Ka Wai [2026] 2 HKLRD 1234.

[2]  Contrary to section 118(1) of the Crimes Ordinance (Cap 200).

[3]  HKSAR v Chow Ka Wai, unrep., CACC 187/2023; [2025] HKCA 202, 28 February 2025 (Zervos JA), at [25].

[4]  HKSAR v Chow Ka-wai, unrep., CACC 187/2023; [2024] HKCA 382, 25 April 2024 (Anthea Pang JA).

[5]  Appeal Bundle, 311H-312D.