HKSAR v. Chan Sze Chun

On 31 July 2026, the Court of Appeal (Macrae VP, Zervos and K Yeung JJA) handed down judgment in HKSAR v Chan Sze Chun (CACC 171/2023), dismissing the appellant's appeal against conviction but allowing his appeal against sentence, reducing the term from 8 years to 7½ years' imprisonment. Mr Antony Leung SPP appeared for the respondent; Mr David Boyton (instructed by Robertsons, assigned by the Director of Legal Aid) appeared for the appellant on conviction, with the appellant appearing in person on the renewed application.

The appellant, then aged 41, was convicted after trial by Deputy Judge Woodcock and a jury of raping a 16-year-old girl ("X") at his Tin Shui Wai home on 7 January 2022. The two had met via the "Heymandi" dating app, where the appellant misrepresented his age as 27 and offered X HK$1,000 weekly pocket money on the pretext of playing with his cats. X's evidence was that she repeatedly said "no" throughout the encounter and resisted; the appellant gave evidence that X consented, made moaning noises, never refused, and that he had no reason to suspect non-consent (§15). X gave evidence-in-chief via a recorded interview and live TV link; her school teacher Z and an Instagram follower "Sad Toefl" were recipients of her complaint.

Holding

The Court held that:

(1) The judge was not required to give a genuine but mistaken belief direction. Unlike Yip Ka Yiu [2025] 3 HKLRD 611, where the complainant was uncertain about penetration and the encounter had a plausible "ordinary friendship" background (§38-39), here X's repeated "no"s and resistance left no room on the evidence for the direction to be necessary (§40, §45). Ma Kin Yiu turned on its own facts (§44) and did not assist. The only live issue was consent, which the jury resolved against the appellant, properly directed under the Specimen Directions and reminded that he claimed he did not even see a risk (§42-43).

(2) The Sad Toefl complaint was properly admitted. While Kory White v The Queen [1999] 1 AC 210 generally requires the recipient to prove the complaint's terms, So Tsz Yeung [2017] 4 HKLRD 233 permits a different approach where an accurate electronic record exists (§48-50). The accuracy and authenticity of the screenshots and audio (Exhibits P10 and related) were conceded as Admitted Facts (§48), and the complaint added nothing to the case given the earlier complaint to Z (§52).

(3) On sentence, the Court accepted that the evidence on non-use of a condom at initial penetration was not clear (§56). X initially described a sequence where penetration occurred after the condom was put on (§55-56), and the judge could not safely have treated non-use of a condom as an aggravating feature. The remaining four aggravating factors (X's age, the 25-year age gap, planning and premeditation, and significant mental trauma) were undisturbed and warranted a meaningful uplift over the 5-year starting point. The sentence was reduced to 7½ years.

Why it matters

Practitioners defending serious sexual cases should note the limits of Yip Ka Yiu: a mistaken-belief direction remains fact-specific and will not be required simply because the complainant's conduct was not wholly consistent. On recent complaint via social media, So Tsz Yeung is confirmed as the governing approach where the content is independently and accurately recorded, removing the rationale for calling the recipient. Sentencing courts should treat non-use of a condom as an aggravating feature only where the evidence clearly establishes it.