香港特別行政區 訴 Y.S.

On 9 October 2026, the Court of Appeal decided HKSAR v Y.S. [2026] HKCA 1925, refusing Y.S.’s applications for leave to appeal against his convictions and sentence. The convictions for criminal intimidation, intending to pervert the course of justice and rape, and the total sentence of 9 years and 6 months, stood. Senior Prosecutor 盧萃瑩 appeared for the HKSAR; Y.S. was self-represented.

Y.S. and X were married at the material time and had a four-year-old son. At trial in HCCT 2022/205 ([2024] HKCFI 3538), X’s evidence accounted for almost all the prosecution case. She described threats to kill her and the child, later demands that she abandon the prosecution and threats concerning her sister, and a rape in a hotel room while the child was present. She reported the first two incidents promptly but disclosed the rape after a pregnancy test confirmed pregnancy; testing after the abortion established the biological link. Y.S. did not give evidence or call witnesses (§§2-15).

His conviction grounds alleged missing CCTV and telephone records, X’s hotel invitations, messages about condom use, and conduct-based inferences. The Court held that: (1) the suggested material was speculative, and X had been cross-examined on the journey to the hotel (§20); (2) HKSAR v Lee Sze Lung CACC 16/2010 required a direction on mistaken belief in consent only where the evidence objectively supported it, and none existed (§21); and (3) Y.S.’s suggested account was not sworn evidence and did not displace the jury’s assessment of X’s credibility after proper directions (§22).

The sentence appeal also failed. Marriage does not make relationship rape less serious than stranger rape. Applying R v Millberry [2003] 1 WLR 546, the Court treated eight years as the benchmark for a complainant with mild intellectual disability, as confirmed in HKSAR v Lau Chin Yu [2007] 1 HKC 104. The 8-year 6-month rape sentence added six months for pregnancy and the resulting abortion following non-use of a condom, and for the offence committed in the child’s presence (§§28,32). The sentences were six months for intimidation and 2 years 6 months for the second count; the latter reflected persistence, degrading language and exploitation of X’s vulnerability (§26). The judge correctly ordered partial concurrency between the distinct offences, producing the 9-year 6-month total (§§27,29,31). Both leave applications were refused (§35).

For defence counsel, test the complainant’s account against the admitted chronology and contemporaneous material at trial, then use objective evidence to justify any request for a consent direction. At sentence, address the benchmark and each proposed aggravation separately, and show how distinct events should be ordered partly cumulative under the totality principle.