HKSAR v. Ho Yin Ting

CAC C 56/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 56 OF 2012

(ON APPEAL FROM HCCC NO. 206 OF 2011)

_______________________

BETWEEN

_______________________

__________________________________

REASONS FOR JUDGMENT

__________________________________

Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1.The applicant (Ho Yin Ting) together with Chan Chi-hin (Chan) appeared before D Pang J (the judge) on an indictment consisting of the 1^st and 3^rd charges of indecent assault and the 2^nd charge of rape.  The 1^st charge of indecent assault was directed at both the applicant and Chan whereas the 2^nd charge of rape and the 3^rd charge of indecent assault were directed separately at the applicant and Chan respectively.

2.The applicant and Chan pleaded not guilty to the charges and stood trial before the judge sitting with a jury.

3.On 16 January 2012, the applicant was convicted of the 1^st and the 2^nd charges. Chan was convicted of the 1^st charge, but acquitted of the 3^rd charge.

4.The applicant was sentenced to 18 months’ imprisonment on the 1^st charge and 5 years’ imprisonment on the 2^nd charge with 6 months on the 1^st charge to run consecutively to the 5 years on the 2^nd charge, making a total sentence of 5 years and 6 months’ imprisonment.

5.The applicant had sought leave to appeal against both conviction and sentence.  The applicant, on 28 June 2012, abandoned his application for leave to appeal against sentence.

6.Mr David Ma and Ms Vennie Chiu appeared for the applicant on his application for leave to appeal against conviction only.

7.On 15 February 2013, we dismissed the application and indicated that we would hand down our reasons in due course. This we now do.

The Facts and the Prosecution Evidence

8.The victim of the charges was a 24 year-old graduate working in a telecommunications company, and the offences all occurred at the applicant’s home at Fung Yuen Road in Tai Po (the premises), which was a three storey village house.

9.According to the victim, she first met the applicant in February 2011 in a karaoke event and they met again in March 2011 when she was having a hot pot meal with her friends.  One of her friends, Kelvin then invited her and others to a party to celebrate his birthday held at the premises on 12 March 2011.  The victim attended the party with her boyfriend, Edgar and there were other young people in the party, including the applicant, Chan, Steven, Tammy, Cowboy, Priscilla and the cousin of the applicant, Dan.  Edgar had to leave the party early, but there were also others joining the party later.

10.The party, consisting of barbeque and games involving the drinking of beer and whiskey, lasted until 3 am on 13 March 2011 when the victim went downstairs to get a knife for cutting a cake.  According to the victim, the applicant tried to touch her and she resisted.  She told Steven and Cowboy about it and they promised to block the applicant from coming close to her.  The party continued and more alcoholic drinks were consumed and by 7 am, the victim was very drunk, very dizzy with heavy headache and had the urge to vomit.

11.The victim said she tried to look for a place to lie down and she ended up in the applicant’s room and there were already two others lying outside the door.  The victim shared the bed with Chan who was sleeping on the left of the bed.  The victim said Steven twice tried to take her away from the bed, but she was too tired and just wanted to sleep.

12.The victim then noticed the applicant climbing onto the bed in the middle, but she just continued to sleep.  She then felt a hand touching her chest over her clothes and inside her bra.  She brushed it aside, but a hand slipped in between her jeans and underpants.  She pushed the hand away and uttered “No”, but she had no strength to say anything else.

13.She then heard the applicant saying “You touch it”, and then there were hands from two different persons touching her chest and her private parts inside her underpants.  She said both the applicant and Chan had touched her chest and that the applicant also touched her private parts.  She muttered “No” and pushed away the hands on her chest and the hand on her private parts withdrew.  She then heard the applicant saying “You go out” and she noticed that Chan left the room.  The victim said her top and bra were then pulled up and her jeans were unbuttoned and unzipped.

14.The victim said she was too drunk and had no strength, but she was aware of what was going on as she was still half conscious. 

15.After Chan had left the room, the applicant pulled her to the middle of the bed before pulling down her jeans and underpants.  He then inserted his finger into her vagina and took her hand to rub his penis.  The applicant then removed the victim’s jeans and underpants before having sexual intercourse with her.  The victim said she tried to push the applicant away twice, but failed.  The applicant withdrew after half a minute and he helped her to put her clothes on before leaving the room.

16.The victim then heard a group of people outside cheered and someone said, “It’s your turn”.

17.The victim said she was still very drunk and fell asleep.  She was awakened by someone jumping into the bed and she saw Chan, who, despite her resistance, indecently assaulted her by touching her breasts and private parts.  However, she said during the 30 seconds when her breasts and private parts were fondled, she did not open her eyes at all because she was too tired.  After Chan left the room, the victim again heard people cheered and someone said, “So soon?”

18.The victim woke up at about 8.30 am and she became scared.  She called Steven and Jojo, but they had already left the premises.  She texted Chloe asking for help, but got no answer and she decided to leave the premises on her own.  She went to the toilet and saw the applicant who had just vomited.  She saw Chloe’s shoes and found her sleeping in the living room.  They then left the premises together and on the way, she told Chloe twice that the applicant had “interfered with me”, and that Chan had interfered with her private parts and had touched her.

19.The victim did not report the matter to the police immediately.  Instead she went home to shower and then sleep after dropping Chloe off.  She said she was scared and she had called her friend (Yuen) telling him what she had told Chloe, but Yuen only promised to accompany her to the police station after work.  The matter was reported to the police at about 11 pm the same night.

20.The victim admitted that she had consumed a lot of alcoholic drinks and that she had been drunk before, but never to the extent of losing her memory.

21.The victim said that the applicant had tried to take advantage of her physically before the sexual intercourse took place, once on the rooftop soon after her arrival and when she went down to get a knife, but she walked away as she found his action offensive.  The victim was adamant that she did not give the applicant any signal to indicate that she was interested in him.  She denied raising her buttocks and keeping her legs up in the air for her jeans to be pulled down and pulled off.

22.The victim also denied the suggestion that she had consented to acts of intimacy from the applicant and only reported the matter to the police because she later regretted it.  She emphasized that she went to the party with her boyfriend.

23.Chloe, in her evidence, said at some stage of the party, the applicant and Chan disappeared for a while and that at 6.45 am, they went downstairs.  Chloe said she then went down to the ground floor to sleep and was woken up by the victim at 9 am when she noticed her texted message sent at 8.30 am “Help me.  Where are you?”

24.Chloe confirmed that she left the premises together with the victim and the victim told her that she had been interfered with by the applicant and that Chan had also touched her.

25.Yuen confirmed that he received a call from the victim at about 10 am saying that she was very upset as she had been interfered with by the applicant and Chan.  He then advised her to make a report, but the victim said she was too scared and did not know what to do.  She also said she was too tired and would do it later.  He then proposed to take her to the police station after he finished work and that he did.

26.Cowboy said by 1 am, Edgar had left and others had arrived.  He said the applicant had tried to put his hand on the victim’s waist and she signalled him that she did not welcome such gesture and he dragged the victim away.  He also said the victim alleged that the applicant held her and tried to kiss her when she went down to get a knife.  When the applicant appeared and tried to embrace the victim from behind, she looked scared, pulling at Cowboy and he just separated them.

27.Steven also confirmed that the victim had complained to him that the applicant had embraced her and she had pushed him away and he therefore tried to separate them.

28.Steven said shortly after 7 am, the applicant told him that the victim and Chan were sleeping in his room and ten minutes later, he became worried about the victim.  He tried the applicant’s room door and found that it was locked.  As he was leaving, the applicant opened the door and Steven asked if the victim was inside, the applicant said “Yes”.  He went in and saw the victim and Chan sleeping on the bed and the applicant then went back and laid down in the middle.

29.Steven said he tried to drag the victim away but she said she was very tired and wanted to rest some more.  He let go and sat down on the sofa in the sitting room.  Steven said the victim, the applicant and Chan were sharing the same blanket and he saw movement of a hand to touch the victim, but he was unable to say whose hand it was.

30.Steven said later he returned to the applicant’s room and saw the three still in their original position and were motionless as if they were sleeping.  He tried to pull the victim up but she again said she was very tired and wanted to rest some more.

The Defence Case

31.The applicant admitted that he had acts of intimacy with the victim, including sexual intercourse on 13 March 2011 at the premises.  His case was that the victim had consented to them.

32.In his evidence, he rejected the evidence of the victim and Cowboy as to what happened when they were on the rooftop.  He said he placed his hands on the back of the victim’s back for an entire minute and the victim did not react to it and he only took his hand away from the victim when the group broke off after the cheering.  He suggested that the victim did not reject his advance when he was testing if he had a chance.  He said he was interested in the victim after Edgar had left.

33.The applicant admitted that he had followed the victim down when she was trying to get a knife and when they were both in front of the refrigerator, he again tried to test his chances by putting his hands on her waist.  He said the victim asked him what he was doing and he just said, “Checking the fridge”.  He said he did not try to embrace the victim again.

34.The applicant said after the cutting of the cake, he retired to his room to sleep as he was tired and the victim’s earlier reaction had disappointed him.  However, he was later dragged out of the bed by the victim who said words to the effect, “You are the host, why are you here?  Are you drunk or tired?  Come back. Hurry.”  He said the victim’s action rekindled his hope and he returned to the rooftop to continue having fun with the others and eventually there were less people on the roof.  He said by that time, he and the victim were sitting side by side.

35.The applicant said he reached out and held the victim’s hand under the table so that no one could see it.  They continued to hold hands and he pulled one of her legs over his.  According to the applicant, at some stage, the victim left the roof and walked straight into his bedroom and laid herself on the right side of the bed with Chan on the left.

36.The applicant said the victim was still sober and he was uncertain how to interpret the situation.  He told Steven that the victim and Chan had taken over his bed and he had nowhere to sleep.  The applicant said he thought it was a signal from the victim that he should engage her in an intimate act, so he joined her and laid in the middle of the bed.

37.He said he put his hand on the victim’s stomach and her breathing became louder.  He used his hand to fondle her breasts and only stopped when Steven came.  He said Steven asked the victim to go, but later retreated to the sofa.

38.The applicant said Chan then reached his hand over and he brushed it away.  He then touched the victim’s private parts and her breathing became louder and she uttered the sound, “Mm” even though she was obviously awake.  Steven then came in trying to pull the victim away and she just said, “I’m very tired. I will sleep some more then I’ll get up and leave on my own”.

39.The applicant said he then loosened the victim’s jeans and put his hand inside her underpants before telling Chan to leave.  Chan then left the room and closed the door.

40.The applicant further said that he knelt beside the victim, pulling up her top and bra, and pulling off her jeans and underpants.  He said the victim raised her buttocks and legs to make it easier and he used her hand to rub his penis and she held onto it.  He then took a condom before taking off his trousers.  He put on the condom and had sex with the victim who just kept her eyes closed and uttered the sound “Mm”, and let him kiss her without pushing him away.

41.The applicant said the victim played a passive role, but had raised her body to make it easier.  The applicant said he withdrew after two minutes and used tissues to clean both himself and the victim before helping her with her clothes.

42.He then left the room and saw Chan lying on the sofa with two others and they jeered.  He walked into the toilet to clean himself and he had no idea if anyone had gone into the bedroom in his absence.  He later chatted with the others for five minutes before returning to the bedroom to sleep.  He climbed back to his bed and held the victim’s hand, but she did not respond as if she was asleep.

43.According to the applicant, Chan and two others walked into his bedroom later, saying goodbye before leaving.  Feeling unwell, the applicant said he went to vomit and on return, he saw the victim coming out, saying that she had to go to the church with Jojo.  The applicant then walked the victim down to the ground floor.  The victim woke up Chloe who was sleeping on a sofa and the two left the premises together.

44.The applicant accepted that Chan and the other two must have known that he had had sex with the victim and that was why they jeered.  The applicant said he was only attracted to the victim after Edgar’s departure because it was only then that he had the chance to chat up the victim and found that they had a lot of common interests.

45.He said he was thinking of becoming the victim’s boyfriend and he had intimate acts with the victim, such as holding hands, putting leg on leg, and stroking thighs.  He said it was natural that they would later fondle and have sex in his bedroom.

46.The applicant confirmed that he started fondling the victim when Chan was still in the bed because at that time he did not think they would progress to sexual intercourse although he had undone her jeans and touched her vagina before telling Chan to leave the room.

47.The applicant claimed not to be aware of Steven’s role to protect the victim and the victim’s complaints about him.  The applicant insisted that the victim was sober, awake when the two had sexual intercourse and that she was consenting to it, saying that her “Mm” sound indicated that she was enjoying it although she was passive.

48.Dan gave evidence for the applicant.  He said he went to sleep at about 4 am and when he woke up at 7 am, he saw Kelvin sleeping in the third floor living room.  He then saw Chan coming out from the toilet and the three started chatting.  The applicant then came out of his room and the three jeered at him.

49.The applicant then joined them and when they were about to leave, he told the applicant to go back to sleep.  They then entered his bedroom to say goodbye when they saw the applicant and the victim were still lying in bed.

The Judge’s Summing Up

50.The case turned on the credibility of mainly the victim and the applicant, although the evidence of Chloe, Yuen and Steven supported the prosecution case.

51.The judge commenced his summing up by telling the jury the respective duties of the judge and the jury, how they should approach the evidence and counsel’s submissions, the burden and standard of proof, the evidence that they should take into consideration, the ingredients of the charges and the issues in dispute.

52.On the charge of indecent assault, the judge reminded the jury that before they could convict the applicant, they must be sure that:

1. The applicant had intentionally touched the victim;

2. The touching and the circumstances surrounding it were capable of being considered indecent by right-minded people;

3. The applicant had intended to touch the victim in a way that was indecent with an indecent intention; and

4. The victim did not consent to the touching.

53.On the charge of rape, the judge again told the jury that they could only convict the applicant if they were sure that:

1. The applicant had sexual intercourse with the victim;

2. At the time of the act of sexual intercourse, the victim did not consent to it; and

3. At the time of sexual intercourse either the applicant knew that the victim did not consent to it or was reckless as to whether she consented to sexual intercourse.

54.The judge directed the jury on what constituted recklessness in the context of a rape charge, emphasizing that if the applicant believed that the victim was consenting or might believe that she was consenting, they must find him not guilty of rape.  The judge further emphasized that the burden was on the prosecution to prove that the applicant did not believe that the victim was consenting to sexual intercourse.

55.The judge told the jury that even if the applicant genuinely, but mistakenly believed that the victim was consenting to sexual intercourse or the touching, they would still have to acquit him of rape and indecent assault.

56.The judge pointed out that it was not disputed that the applicant had touched the victim in a way that could amount to indecent assault and that there was sexual intercourse between the two and the key issue was whether the victim consented to those acts.

57.The judge directed the jury that they could only convict the applicant of indecent assault if the victim did not consent to the touching, unless the applicant was or might have been in the genuine but mistaken belief that she consented to it.  The judge directed them that if they were sure that the victim did not consent to sexual intercourse and they were sure that the applicant knew or was reckless as to whether she consented or not, they should convict the applicant of rape unless he was or might have been under a genuine but mistaken belief that she consented.

58.The judge also told the jury that if a woman was so drunk that she lost the capacity to give or withhold consent, the law regarded her as not having consented.  On the other hand, a consent given under the influence of alcohol is a genuine and true consent even though the woman might regret it later.

59.The judge then said: “Members of the jury, that is all I have to tell you about the law on rape and indecent assault and how it should be applied to the present case.  It is time for me to go to the evidence, but before I do it is important for me to draw to your attention certain matters.”

60.The judge then gave a 6-point further direction generally of law including the effect of the applicant having a good character, and how the jury could use the victim’s complaints to Chloe and Yuen and how to deal with discrepancies of evidence before directing them to ignore certain evidence.

61.The judge said:

On point 2:

“You have heard how immediately after waking up, (the victim) had texted and later told (Chloe) about being ‘interfered with’ and ‘touched’. Some time later she called and told (Yuen) more or less the same thing. Yet these calls are not evidence as to what actually happened between (the victim) and the defendants. Chloe and (Yuen) were not at the scene and did not see what happened between them.

Evidence of these complaints is, nevertheless, placed before you because it may help you to decide whether (the victim) has told you the truth in the sense that if these complaints to Chloe and Yuen are largely consistent with (the victim’s) own account of the incident, she is more likely to be truthful…”

On point 3:

“You have heard also from Chloe that while playing finger guessing games with (the applicant), (Chan) and Kelvin some time towards the end of the party, a conversation took place between Kelvin and (Chan) about who was going to be first, second and third. I direct you to disregard this conversation. More importantly, you are directed to disregard the association that Chole subsequently made between it and (the victim’s) plight, what happened to her. Why? Because there are other explanations for this conversation, like laying down some sequence for another game, so it is unfair for you to do otherwise. So again, put that conversation and its sinister association out of your mind, please.

As a matter of fact, I am directing you that there is no evidence of any collusion in this case.  By that I mean evidence that can make you feel sure that there was an agreement between (the applicant), (Chan) or anybody else to sexually assault (the victim).  What happened in (the 1^st charge) can be the spontaneous acts of (the applicant) and (Chan), if (Chan) was involved.  Likewise, the cheering upon (the applicant) exiting the room after sexual intercourse and the fact that someone said, ‘Your turn’, if you are sure that that was what was said, or what happened, can also be spontaneous, (Chan) having left the room earlier and leaving (the applicant) and (the victim) alone in it and what they might be up to.  So do not speculate.  It is not an issue in the trial.”

On point 5:

“I have said that you should examine the inconsistencies of what a witness said at different times. I have said that as a result you may find the evidence of such a witness wholly or partially unreliable. But what if the situation is reversed? For example, according to (Yuen), (the victim) had told him that she had been drinking at the party in the context of her complaint to him about the sexual assaults. Is that evidence then to show that she was telling the truth when she said she was drunk?

Similarly, PW4, the woman detective, has told you that in her witness statement, (the victim) did say that she had tried to push (the applicant) away.  Is that evidence to show that she had pushed (the applicant) during sexual intercourse, and the touching?  The answer is no.  While an inconsistency may create doubt, a previous consistent statement cannot increase reliability, otherwise the greater the number of times that a person tells a lie the more reliable he will be regarded as a witness.  It will not make sense, will it?”

Grounds of Appeal

62.Mr Ma’s first ground suggested that as the judge, having told the jury “that is all I have to tell you about the law on rape and indecent assault…. It is time for me to go to the evidence…”, then proceeded to give the jury 6 further points, which were by and large points of law, the judge had confused the jury because the judge had given the jury the impression that he had already finished with his directions on law and was about to dwell on facts.

63.Mr Ma complained that the judge’s direction on points 2, 3 and 5 were erroneous, rendering the conviction against the applicant unsafe and unsatisfactory.

64.On point 2 (recent complaint), Mr Ma suggested that the judge was wrong to tell the jury that “if ‘the complaints’ were largely consistent with (the victim’s) own account of the incident, she was more likely to be truthful.”

65.Mr Ma suggested that the judge had usurped the jury’s function by saying that “the complaints” were substantially consistent with (the victim’s) testimony.  Mr Ma argued that “recent complaints” were only evidence of consistency and could not be used to prove that the complainant was more likely to be truthful.  He referred this Court to HKSAR v Leung Chi Keung (2004) 7 HKCFAR 526.

66.On point 3, Mr Ma suggested that the judge’s direction was inadequate because the judge did not tell the jury that his direction related to a point of law and therefore must be followed.  He suggested that there was a danger of the jury treating prejudicial evidence as matters of fact and drawing a conclusion unfavourable to the applicant as they were not bound by the judge’s view on matters of fact.

67.On point 5, Mr Ma also suggested that the judge’s direction was inadequate when he did not tell the jury that the direction related to matters of law, thus there was a danger that the jury would form their own views, contrary to those expressed by the judge.  Mr Ma argued that the judge did not distinguish the different approach in point 2 (recent complaint) and in point 5 (previous consistent statements), thus confusing the jury.

Discussion

68.We were surprised at Mr Ma’s 1^st ground of appeal that the judge had confused the jury by dealing with the 6 further points before reminding them of the evidence.  The judge, in the paragraph identified by Mr Ma, was confining himself to the law on rape and indecent assault.  The judge made it clear that before dealing with the evidence, he would give further directions to the jury on 6 other matters, some of which are matters of law although they did not relate solely to rape and indecent assault, but were of general application in criminal matters.

69.We failed to see how this matter could lead to an unfair trial, rendering the conviction against the applicant unsafe or unsatisfactory.

70.The judge did not tell the jury that the complaints the victim made to Chloe and Yuen were substantially consistent with her testimony.  He only told them how to deal with those complaints if they found that her complaints were largely consistent with her testimony.  The judge had earlier reminded the jury that they were the sole judge of facts and nobody else could usurp that function.  The suggestion that the judge had usurped the jury’s function had not been made out.

71.If recent complaint is genuine and if there is a causal connection between recent complaint and the alleged sexual offence, the recent complaint carries probative value in proving the alleged sexual offence.  It is of course a matter for the jury as to how they would make use of the evidence of recent complaint in assessing the credibility of the victim as the judge had clearly told the jury.  Recent complaint is only relevant to the credibility of the complainant in a sexual offence.

72.According to the victim, shortly after the sexual attack on her by the applicant and when she woke up at 8.30 am, she immediately texted Chloe asking for help and when she saw Chloe, she repeated twice that the applicant had interfered with her.  She also telephoned Yuen telling him the same thing.  Her recent complaints were clearly admissible as evidence and Mr Ma took no issue with that.

73.Li CJ in Leung Chi Keung (supra) said the following at p 537 (para 21) and at p 542 (para 39):

“…In short, such evidence is only relevant to the credibility of the complainant and would serve to buttress it. See White v The Queen [1999] 1 AC 210…

…

Turning to the approach that should be adopted in Hong Kong, as has been discussed, evidence of the recent complaint cannot be evidence of the facts complained of because it is only evidence of the consistency of the complainant’s conduct with his or her testimony…”

74.Mr Ma took objection to the judge telling the jury: “If these complaints to Chloe and Yuen are largely consistent with (the victim’s) own account of the incident, she is more likely to be truthful.”

75.A judge’s summing up to the jury is not a mathematical or scientific formula.  A judge is entitled to express the same point to the jury in a different way as long as it is fair, correct, reasonable and logical.

76.If recent complaint is consistent with the testimony of the complainant, her testimony is more likely to be true just as if recent complaint is inconsistent with her testimony, her testimony is less likely to be true.  It is just common sense.  After all, the only relevance of recent complaint relates to the credibility of the complainant in a sexual offence.

77.In our view, the judge’s direction to the jury on recent complaint was logical and reasonable and could not be the subject matter of any valid complaint.

78.Point 3 related to the issue of what was meant when Kelvin and Chan talked about who was going to be first, second and third during a finger guessing games in which the applicant took part and what inference could be drawn from it.  It also concerned the underlying reason for the applicant to be jeered on his exiting the room after the sexual intercourse when someone said, “Your turn”.  The evidence carried probative value.  If the suggestion was that the probative value of the evidence was outweighed by its prejudicial effect, the evidence should have been objected to and the judge could then deal with it.

79.The evidence was admitted and the jury was entitled to draw inferences from the evidence if they were satisfied that the evidence had been established.  Whether the words had been uttered and whether there was any jeer, and if so, what inferences were to be drawn, were all questions of fact and not law as Mr Ma had suggested.

80.The judge had very fairly, in our view, instructed the jury in effect to ignore such evidence and not to speculate.  The judge reminded the jury that there was no evidence of any collusion between the applicant, Chan and others to make improper sexual advances to the victim.  The judge’s direction in point 3 was as fair as it could be.

81.With respect, point 5 also related to questions of fact and not law.  The issues were whether the victim was right when she said that she was drunk at the party and whether she had tried to push the applicant away during sexual intercourse.  All were issues of fact.

82.The judge directed the jury that even if the victim did tell Yuen that she had been drinking at the party and that she did tell the woman detective that she had pushed the applicant, it would not enhance her credibility on those two aspects.  The judge made it clear that if the victim lied about those matters, what she said to others would still be a lie no matter how many times she might have repeated it.  The judge was directing the jury not to take the view that the complainant’s evidence was more credible because she had repeated it on different occasions.

83.We did not accept Mr Ma’s suggestion that the judge had erred in the way he suggested or in any other way.  We also rejected his suggestion that the way the judge dealt with the issues would in any way confuse the jury.

84.None of the matters put forward by Mr Ma had any merits.

85.It was essentially a question of whether the victim or the applicant was telling the truth.  The judge’s summing up to the jury was fair, accurate and comprehensive.

86.On the evidence, the jury was entitled to accept the victim’s evidence that the applicant had indecently assaulted her and had sexual intercourse with her without her consent, and that he knew that she did not consent or was reckless as to whether she consented.  The jury was entitled to convict the applicant on such evidence.

Conclusion

87.We did not find the conviction against the applicant in any way unsafe or unsatisfactory.  The application for leave to appeal against conviction was therefore dismissed.

Mr Tam Sze Lok, Isaac, SADPP (Ag.) of the Department of Justice, for the Respondent

Mr David Ma and Ms Vennie Chiu, instructed by B Manek & Co, for the Applicant