HKSAR v. LAM SIU FUNG, ANDY

CACC 38/2022

[2025] HKCA 826

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 38 OF 2022

(ON APPEAL FROM HCCC NO 75 OF 2021)

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REASONS FOR JUDGMENT

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

A. Introduction

1.  This is the applicant’s application to “renew”[1] his application for leave to appeal which Zervos JA on 15 January 2024 dismissed[2].

2.  Two features of the application should first be noted:

(a)  The application’s Notice of Renewal of Application after Refusal by the Single Judge (the “Form XIII”) was lodged late[3]. It was 8 days out of the mandatory 14-day period; and

(b)  More fundamentally, whilst the Form XIII has been lodged, the application it initiated is strictly speaking not a renewal application. That is because the applicant is no longer relying on the sole perfected ground of appeal that was argued before Zervos JA (the “Refused Perfected Ground”)[4]. The applicant is seeking instead to put forward a number of new grounds (the “New Grounds”) that are outwith the Refused Perfected Ground.

3.  The hearing took place on 13 August 2025. Despite the above, this Court heard the applicant on the New Grounds. We reiterate the importance of keeping time limits. But in the present case, the applicant is acting in person. The delay, at least in so far as the filing of Form XIII is concerned, is not serious. The merits of the New Grounds (or lack of any) would inform this Court as to whether leave should be granted to the applicant to amend the Refused Perfected Ground, and whether to extend time for him to file his Form XIII.

4.  At the conclusion of the hearing, we refused the applicant’s application for extension of time to file the Form XIII, dismissed his application for leave to appeal, and dismissed his appeal. We said that we would give our full reasons within 3 months. We now do.

B.  The Indictment, and the conviction

5.  The Indictment is dated 22 March 2021. It contains a single count of attempted rape, contrary to sections 118(1) and 159G of the Crimes Ordinance, Cap 200. The particulars of offence are that the applicant “on 16^th day of May, 2020, near Hong Kong Parkview, Wong Nai Chung, in Hong Kong, attempted to rape female ‘X’ ”.

6.  The trial subsequently took place before Deputy Judge Maggie Wong SC (the “Judge”) and a jury. The applicant was represented by counsel (the “Applicant’s Trial Counsel”). On 26 January 2022, the applicant was convicted after trial and, on 2 March 2022, sentenced to 5 years and 8 months’ imprisonment.

C.  The application for leave to appeal

7.  On 23 March 2022, the applicant filed a Notice of Application for Leave to Appeal against both conviction and sentence (Form XI).

8.  On 9 March 2023, Mr Phil Chau, SC, with him Mr Andrew Lau, counsel assigned by the Director of Legal Aid to represent the applicant for his appeal against conviction, signed and filed Perfected Grounds of Appeal Against Conviction. Only the Refused Perfected Ground was advanced. It alleged incompetence on the part of the Applicant’s Trial Counsel.

9.  The applicant had been refused legal aid for his appeal against sentence. He however continued to pursue it in person.

10.  The leave application took place before Zervos JA on 15 November 2023. Mr Chau SC and Mr Lau appeared for the applicant in respect of the application for leave to appeal against conviction. The applicant appeared in person in respect of the application for leave to appeal against sentence. In the course of that hearing, after the leave application to appeal against conviction had been heard, the applicant informed the Court for the first time that he would not proceed with the leave application to appeal against sentence. That application was accordingly treated as abandoned, and the appeal against sentence dismissed.

11.  For reasons handed down on 15 January 2024, Zervos JA refused the application for leave to appeal against conviction.

D.  The Form XIII

12.  On 24 January 2024, the Legal Aid Certificate previously issued to the applicant was discharged.

13.  The applicant thereafter lodged the Form XIII whilst acting in person. It was signed by him. It was dated 2 February 2024. It was lodged via the Correctional Services Department. The covering memorandum was dated 6 February 2024, and received by the Appeal Registry on 7 February 2024. The Form XIII states that the applicant seeks to “renew” his application for leave to appeal against conviction. Attached thereto are 3 additional pages in Chinese entitled “Grounds of appeal against conviction”. The gist of the complaint concerns the Judge’s direction on “honest belief”. In the accompanying affirmation, he says the delay was caused by the need to wait for new grounds from his lawyers.

14.  The applicant was subsequently directed to confirm whether he still sought to rely on the Refused Perfected Ground, and if not, state clearly his new grounds, make an application to rely on them out of time, and to state the reasons for the delay.

15.  On 4 June 2024, the applicant by letter stated that he was no longer relying on the Refused Perfected Ground. He confirmed this during the hearing on 13 August 2025.

16.  On 4 July 2024, the applicant lodged an affirmation (the “Applicant’s 4/7/2024 Affirmation”). He gives as the reason for the delay in filing the Form XIII divers procedural matters which he says he had to go through with the Correctional Services Department.

17.  In that affirmation, the applicant also sets out a number of reasons which he says support his appeal. The Refused Perfected Ground does not form part of them. In fact, even those reasons do not all constitute proper grounds of appeal. Some of them are only his responses to certain observations made by Zervos JA in His Lordship’s Judgment refusing leave. Mr Raymond Cheng, SADPP appearing for the prosecution, has endeavoured to distil and identify from those reasons grounds which he understands the applicant is putting forward. We call those grounds as identified (as we have done in paragraph 2(b) above) the New Grounds.

18.  We will come back to consider those New Grounds. We will give a summary of the trial first.

E.  The Trial

E.1.  The prosecution case

19.  The charge is one of attempted rape. The prosecution did not allege penetration on the applicant’s part. The prosecution case, relying on what the applicant said under caution, was that the applicant rubbed his penis against X’s genital, initially over clothes and ultimately directly, with the intention of having an erection for sex, but ejaculated prematurely in the process. The prosecution said that X did not have the ability or capacity to consent because of drunkenness, and that her state would have been obvious to the applicant.

20.  Below are some further details.

21.  15 May 2020 was a Friday. X was 16 years old at the time. She was an expatriate schoolgirl.

22.  In the early hours of 16 May 2020, X was very drunk after spending a Friday night out with her friends. Although she was taken by one of her friends to outside her home on the Western side of Hong Kong Island[5] (the “Home Building”), she refused to go home and attempted to hail a taxi. Having been refused hire by three taxi drivers (as she could not tell the destination), at around 12:22 pm, she successfully boarded the taxi driven by the applicant (“the Taxi”). That was witnessed by the security guard of the Home Building (the “Security Guard”). Upon hearing X say “Go, go go”, the applicant drove off.

23.  The prosecution alleged that X was taken to Tai Tam Reservoir Road near Hong Kong Parkview, where the applicant attempted to rape her inside the Taxi. The Taxi’s dashboard camera recorded some of their conversations during the journey, including “I am not going to fucking (unclear)” and “hands off”, which were uttered by X, followed by some murmuring or moaning sounds from them.

24.  After the attempted rape, the applicant drove X to Hotel Ease in Kwai Chung. CCTV footages at the reception of the hotel show that he registered for a room at around 2 am. He did that alone, after which he carried X over his shoulders to the room.

25.  X regained her consciousness at around 9:44 am and found the applicant beside her. X could not however remember anything after 10:30 pm on Friday, let alone the defence’s suggestions that it was she who enticed the applicant into engaging in the sexual contact.

26.  On the same day, X was taken to Queen Mary Hospital by her mother. A report was also made to the police. X refused to be medically examined. The reasons she gave upon cross-examination were that she had waited for hours to be examined. The person who ultimately showed up was a man. She did not feel comfortable with that. She said that she had been through enough that day and did not need more.

27.  The admitted forensic evidence comprised primarily the applicant’s DNA found in the black pair of shorts which she was wearing at the time of the offence, and a mixture of her and the applicant’s DNA found inside the applicant’s underpants. On the other hand, the two pubic hairs retrieved by X from inside her vagina revealed no conclusive DNA result.

28.  The police Notebook of Woman Detective Police Constable 13541 (“PW4”) was produced (the “Notebook”, and the “Notebook Entries”). According to the Notebook Entries, she on 16 May 2020 at 8:40 pm arrested the applicant for indecent assault. Under caution, he said[6] (the words in brackets are the original Chinese words of the underlined translation):

I was driving taxi on the night shift last night, and did really pick up a ‘foreign’ female outside the [the Home Building][7] sometime past one o’clock. I saw that she was very drunk, so (I) suggested screwing her (我見到佢飲到好醉，所以撩佢搞嘢)[8]. (I) did not see much of a reaction from her. Then, I drove her up Tai Tam Reservoir Road near Hong Kong Parkview, ‘parked’ the car, and banged her in the car (就同佢喺車入面扑嘢啦)[9]. After the screw, (搞完就) I drove her to Hotel Ease and checked into a room for her to sleep in.

According to the Notebook Entries, PW4 then proceeded to caution the applicant again, this time for the offence of rape. The applicant is recorded to have then said[10]:

Yes, I did screwed her. I did not see much of a reaction from her and thought that she agreed (to it), so (I) screwed her (係呀，我同佢搞過嘢，我見佢無乜反應以為佢同意，所以咪搞咗佢囉)

29.  On 17 May 2020, the applicant participated in two video-recorded interviews (“VRI/1” and “VRI/2”, and collectively “VRIs”). Therein, he admitted having intimate sexual contact with X. He denied penetration.

30.  It is relevant to note that the Notebook, and specifically the Relevant Notebook Entry #2, were referred to in the course of VRI/2[11] (again, the words in brackets are the original Chinese words of the underlined translation):

187. A: Hm. [Noise] Okay. According to er, the record of Woman Detective Police Constable 13541 in her police notebook made earlier on, you were cautioned. You said that at that time, near Tai Tam R--Reservoir Road, (you) had a screw in the car (你曾經就話當時喺大潭水 --水塘道附近呢, 就喺車入面扑嘢). Okay, apart from this, earlier on, you--in the last video-recorded interview, er, Detective Police Constable 17466 had asked you in the video-recorded interview, er, you said that the girl had said something like ‘I love you. Like me.’

188. B: Yes.

189. A: Er, you also agree, these things said by you (sic)?

190. B: Yes, yes.

191. A: Well, okay, one part at a time. In your view, what does ‘screw’ mean? (「扑嘢」意思係咩嘢呢，你覺得?) At that time, you said this upon caution in the police notebook.

192. B: No, it was they who asked if I went t-to have a screw. (唔係，係佢哋問我係咪去--去扑嘢。)

193. A: Hm.

194. B: Well, I told her that she and I, er, that is, cuddled, er, French-kissed, rubbed. [A: Hm.] In the end, it was she who took the initiative to take off (her) shorts. It was only then that I had further--movement. In fact, did not--er, I, physiologically, did not-not-not-not get hard, that is, no erection.

31.  During cross-examination, the Applicant’s Trial Counsel dealt with the Notebook Entries as follows:

Q. You arrested him for indecent assault?

A. Yes.

Q. Why?

A. Initially I learned of the incident which I believed to be an indecent assault incident in the Hotel Ease, and that’s why in the first place I cautioned him for indecent assault.

Q. Did you give him the details of the offence which led to his arrest? For example, the time, the location and the person involved?

A. Yes.

Q. Can you tell us?

A. Before I cautioned him at that time I told him that I had reason to believe that he had indecently assaulted X, and the time being on 16 May 2020 in the small hours. I had reason to believe that he had indecently assaulted X, so I cautioned him.

Q. The location?

A. Yes.

Q. Where?

A. A hotel -- in a hotel room in Hotel Ease, No. 12 Ka Hing Road, Kwai Chung.

Q. So your arrest was in relation to what happened at the hotel?

A. Yes.

Q. And five minutes later you arrested him again for rape?

A. Yes.

Q. Why?

A. According to what he told me under caution, I thought he had committed rape, and that’s why.

Q. Because in his reply to your caution he used the word in Chinese, “搞嘢” and then later he said, “扑嘢”.

A. Yes.

Q. You did not clarify with him what he meant by those words, did you?

A. No.

Q. Even in the video-recorded interview we just saw nobody ever sought to clarify what he meant by using those words?

A. That’s right.

Q. Would you say that after arrest and during the investigation by the police the defendant was very cooperative and forthcoming?

A. Yes.

32.  5 sets of Admitted Facts have also been produced (“Admitted Facts/1” to “Admitted Facts/5”). We will in the latter parts of this judgment refer to them as appropriate.

E.2.  The defence case

33.  During the trial, the applicant did not give evidence in his defence. Nor did he call any witness. He relied on what he had said in the two VRIs. The gist is as follows.

34.  He said after X had got into his Taxi, she could not give the destination. She just said “go, go go”. He hence drove around aimlessly. When driving through Wanchai, he said to X “you give money”[12]. Instead of paying for the taxi fare, X climbed from the back seat to the passenger seat next to his. She said “like me”. She took the applicant’s hand to her private parts. She allowed him to touch her private parts for about half a minute, until she said “hands off”[13]. X then got out of the Taxi and urinated by the roadside. She returned to the Taxi, and said “go, go go” again. Believing that she wanted to offer sexual contact to offset the taxi fare and to have a one night stand, the applicant drove her to somewhere near Hong Kong Parkview. He stopped the Taxi there and went into the backseat. X said things like “I love you” and “like me”. They fondled, cuddled and kissed. He rubbed his penis against X’s genital. Initially, that was done over clothes. X signalled him to take off her shorts. He did so. He noticed that she was in her period. He also took off his trousers. He did not have an erection. He continued to rub his penis against X’s genital to try to have an erection to have sex. In the process, he ejaculated. There was no penetration. He said X went on to ask for penetration but he could not as his penis was not responsive[14]. He stated that X was not drunk and did not look drunk.

35.  The defence placed before the jury Admitted Facts/5. He revealed his full criminal record. The Applicant’s Trial Counsel said to the jury in the course of his closing speech that the applicant wanted to be “full and frank with you”[15].

36.  In his closing speech, the Applicant’s Trial Counsel submitted to the jury that X should not be believed to be as drunk as she claimed. He referred to X’s evidence, and in particular her answers given during cross-examination that she could not remember anything after 10:30 pm that evening. The Applicant’s Trial Counsel described to the jury those answers as being “a cover-all answer”[16] and that “it’s a bit convenient”[17] for X to say so[18].

37.  In his closing speech, the Applicant’s Trial Counsel raised with the jury the issues covering X’s consent, the applicant’s belief of X’s consent, and the possibility of the applicant holding a genuine but mistaken belief of X’s consent. The relevant parts of his speech are as follows[19]:

… if a man had sexual intercourse with a woman, knowing that at the time of sexual intercourse the woman did not consent to it, that’s rape. Or he was reckless. That means he couldn’t care whether the woman consented to sex or not. Nevertheless, he carried on. Then that’s rape.

  However, it is not rape if, even if the woman did not consent to sex but if the man genuinely believed that the woman was consenting, then it would not be rape. And I must emphasise that this belief has to be genuine. It can be mistaken. It can be wrong and it can be based on misunderstanding, but if it is a genuinely held belief, then this man would not be guilty of rape.

…

  And then of course, if you find that X did not consent, then you have to go on to consider: did the defendant genuinely believe that the girl was consenting? And I’ve said it may be a mistaken belief, wrong belief, but if it’s genuine, then it is a defence.

Later, with reference to what the dashboard camera had recorded, the Applicant’s Trial Counsel further submitted to the jury as follows[20]:

  … You may think it sent out a very clear signal to the defendant that maybe she was open to acts of intimacy or sexual intercourse. That led the defendant to believe that this girl, although young girl, is open to sex or it’s fair to have sexual intercourse with him, be it one-night stand or not.

  …

  In this case, there is simply no evidence that X did not consent. On the other hand, there is evidence that the defendant believed X consent, and that is the conduct of X, placing his arm on [her] private parts.

The Applicant’s Trial Counsel concluded his closing speech with the following remarks on genuine but mistaken belief, that[21]:

And I must emphasise, at the risk of repeating myself, that this belief can be based on a misunderstanding or a mistaken belief as long as it is genuinely held. Even if it is unreasonable, as long as reasonably held, then the defendant will not be guilty of this offence.

E.3.  The summing-up

38.  The Judge summarised the prosecution case, in our view accurately, as follows[22]:

The prosecution say that the defendant had the intention to have sexual intercourse with Ms X and he knew Ms X did not consent to it or was reckless as to whether Ms X consented to it. The prosecution case is that Ms X did not have the ability or capacity to consent because she was too drunk to agree to anything, let alone sexual activities with the defendant, and that her state would have been obvious to the defendant. The prosecution says that between the time X got into the taxi and the time she left the hotel she was under the control of the defendant. So that, in summary, is the prosecution case.

39.  The Judge summarised to the jury the essence of the defence case, again accurately in our view, as follows:

The defendant says that she did have some intimate sexual acts with Ms X but it was with her consent and that he believed that Ms X consented. He says that after Ms X got into the taxi, she did not tell him the destination, so they drove aimlessly until a point where Ms X moved from the rear seat to the front seat and put the defendant’s hand to her lower part and let him touch her. The defendant says that Ms X did not have money to pay for taxi fare. He thought she was willing to let him touch her body in return for waiving the taxi fare. He said that she sensed that Ms X wanted to have a one night stand. He then took her to a spot near Hong Kong Parkview. The defendant accepted that sexual activity had taken place at a location near Parkview. He said they had cuddled and French kissed. He also said that Ms X took the initiative to take off her own shorts. The defendant admitted that he had rubbed his penis against the private parts of Ms X. The defence case is that the defendant genuinely believed that Ms X was consenting to it because of the intimate conduct between them. That is basically the defence case.[23]

…

In relation to the defendant’s intention, you may also consider what the defendant said in his video-recorded interviews … The defendant said he rubbed his penis at the private part of Ms X. That is counter 116 and 122 of the first video-recorded interview. Second, he said he saw Ms X was on her period. He said he had the underpants on, rubbing with the bare lower part of Ms X. That is counters 253 to 254. He said he rubbed once or twice but because he did not get an erection, he then tried taking off his underpants and rubbing again. That is counter 256. He said he intended to rub against Ms X’s genitals until getting an erection before having sex, but during the rubbing he already ejaculated prematurely. That is counter 260 in the second video-recorded interview. The defendant also said he may have ejaculated some fluid on the surface of Ms X’s genitals or possibly on the thigh. That is counters 293 to 298 at jury bundle 1, page AE237.

40.  Regarding the interplay between X’s consumption of alcohol and the issue of consent, the Judge instructed the jury that it was for the prosecution to prove that she did not consent, that[24]:

It is not in dispute that on the night in question Ms X had a great deal to drink. According to her, she can remember nothing from 10.30 pm on Friday night until around 9.44 am on the following Saturday morning. She cannot say what, if any, sexual activity took place. The defendant has given his account that Ms X took the initiative to take off her shorts and have intimate sexual activities with him, and he believed that she was consenting. The issue arises how you should approach the fact of Ms X’s consumption of alcohol on the night in question in relation to whether or not she consented to sexual intercourse with the defendant, remembering that it is for the prosecution to prove that she did not consent.

She then instructed the jury that[25]:

  If you find that she was so drunk that she was, in fact, unconscious or lost consciousness temporarily, then she would not have been able to make a free choice and could not have consented. Also, if you find that although she was not unconscious, she was so drunk that she was not capable of making any choice, then in this event you may also find that she could not have consented. The reason is that being in such a state she would not be able to make the decision to consent to sexual intercourse.

  If, on the other hand, you find that despite what she had had to drink, she was or might have been able to make a choice and chose or might have chosen, to have sexual intercourse, then she will have consented. Consent which is given when is inhibited by drink, even if it would not have been given if sober, is nevertheless consent.

  If having considered these things you find that Ms X consented or may have consented, you will find the defendant not guilty. If you find that Ms X was consenting or may have been consenting, then it cannot be attempted rape.

41.  The Judge further instructed the jury that if they were sure that X did not consent, they must go on to consider whether the applicant knew that X was not consenting, or was reckless as to whether she was consenting, and it was for the prosecution to prove that[26].

42.  On the issue of mistaken belief, the Judge gave the following directions[27]:

Now, it is not for the defendant to prove he genuinely believed that she was consenting. Rather, it is for the prosecution to prove so that you are sure that he did not believe that she was consenting to sexual intercourse. And what if the defendant held that belief but was mistaken? If it is or may be the case that he held a genuine but mistaken belief that she was consenting, then he must be found not guilty. But remember that in deciding whether or not he held or may have held that belief, you should have regard to the presence or the absence of reasonable grounds for such a belief and to all the surrounding circumstances. But that said, the key question is whether you are sure that he himself did not hold that belief. So the ultimate question remains whether reasonably or not he himself genuinely held or may have held that belief.

In the latter part of her summing-up, the Judge, with reference to the handout she had made available to the jury, repeated those directions, that[28]:

  First, members of the jury, I will repeat what I have stated in paragraph 31 of the handout. Have you got it there, paragraph 31 of the handout. So I am going to read it. “And what if the defendant held that belief but was mistaken? If it is or may be the case that he held a genuine but mistaken belief that she was consenting, then he must be found not guilty. But remember that in deciding whether or not he held or may have held that belief, you should have regard to the presence or the absence of reasonable grounds for such a belief and to all the surrounding circumstances but, that said, the key question is whether you are sure that he himself did not hold that belief. So, the ultimate question remains whether, reasonably or not, he himself genuinely held or may have held that belief.

  So in other words, members of the jury, a genuine belief in consensual sex must involve some appreciation of the state of mind of the other party to it. I repeat, a genuine belief in consensual sex must involve some appreciation of the state of mind of the other party to it. So, you ask yourself, what could the man have appreciated about the woman’s state of mind that would have allowed him to believe, albeit mistakenly, that the woman was consenting? And whether the man himself genuinely held or may have genuinely held that belief.

F.  The New Grounds

43.  As we have recorded above, the applicant is no longer pursuing the Refused Perfected Ground.

44.  We have considered the contents of the Applicant’s 4/7/2024 Affirmation. We are of the view that the New Grounds correctly identify the grounds which the applicant is seeking to put forward. They are all homemade grounds.

45.  During the hearing, this Court summarised the New Grounds to the applicant, and listened to his submissions one by one.

46.  The following are the reasons why we were and are of the view that they have no merit.

F.1.  New Ground 1

47.  The applicant is in effect seeking to dispute the legality of his arrest and the accuracy of the Notebook Entries. He alleges that the police team did not enter his flat with proper authorization or permission, that he only talked to a middle-aged male police office about what had happened in Hotel Ease, that he was not under caution, that an officer holding a notebook indicated to him that the simple procedure of bringing him from his home to police station would be recorded, that he did not say the Relevant Notebook Entry #1[29], and that no police officer had repeated it to him, or had reviewed it with him, or had asked him to sign it in confirmation.

48.  For the following reasons, we are of the view that New Ground 1 is devoid of merit:

(a)  The applicant’s arrest was part of the admitted facts – Admitted Facts/1 §15;

(b)  The applicant during the present hearing said that he did in the course of the trial in court express disagreement with the admitted facts, but then after a short break, and upon his Trial Counsel explaining further matters to him, he agreed to them;

(c)  What he informed this Court is consistent with the transcript[30]. After the short break, the Judge personally asked the applicant whether he agreed with the Agreed Facts which had been read to him. He answered in the affirmative;

(d)  The applicant was during VRI/2 referred to the Notebook, and specifically the Relevant Notebook Entry #2. The answer he gave is different from what he is now putting forward as New Ground 1;

(e)  The voluntariness and admissibility of the Notebook were not challenged at trial;

(f)  We have set out above the Applicant’s Trial Counsel’s cross-examination of PW4. There was no suggestion that the applicant did not utter the Relevant Notebook Entry #1 (or indeed any Notebook Entries). Nor was the accuracy of the Notebook Entries challenged. PW4 was relevantly only asked whether she had clarified with the applicant the terms “搞嘢” and “扑嘢”. The matters were left at that;

(g)  The applicant chose not to testify. Whilst that is his right, the result remains that there is no evidence from him to counter that of PW4’s. What he is claiming in New Ground 1 is not supported by any evidence, but is only his bare assertion;

(h)  The Applicant’s Trial Counsel in fact referred to the Notebook in his closing speech, as follows:

You recall the defendant was first arrested on the basis of indecent assault, and the police said this offence was in relation to what happened in the hotel, not in the taxi. But under caution, the defendant voluntarily said that, ah, she(he?) picked up this foreign girl and she -- he screwed her, and it was on this basis that the police, believing that she(he?) had actual intercourse, sexual intercourse with X, so they further cautioned him again for rape.

  However, in the first video-recorded interview of the defendant, the police questioned him for attempted rape. That means the police took the view that there was no sexual intercourse; hence, he was questioned for attempted rape.

Those submissions are in accordance with the applicant’s line of defence that he was “full and frank” with the jury;

(i)  The Refused Perfected Ground alleging incompetence of counsel is no longer being relied upon;

(j)  Whether factually or legally, New Ground 1 was not made out.

F.2.  New Ground 2

49.  The applicant claims that the Judge had ruled and declared in court that the ambit of the trial evidence should be restricted up to the time at the Hong Kong Parkview, and that the jury need only focus their deliberation upon the time while the applicant and X were at Wanchai and Hong Kong Parkview (the “Alleged Ruling”). He claims that the prosecution ignored that ruling and unfairly adduced the CCTV footages at Hotel Ease as evidence to show X’s state of unconsciousness. He argues on the other hand that those footages in fact show that X was not in an unconscious state, because if she were, it would have been necessary for him to carry her with his hands. He further claims that carrying X on his back (as the footages show) without her using her arms to attach herself to him was dangerous and unbalanced.

50.  There is no record of the Judge having made the Alleged Ruling, and Mr Cheng has informed us that the prosecution is not aware of the existence of any such ruling.

51.  This Court in the course of the hearing inspected the court file and records. There is a record suggesting that in the course of the trial, on 11 January 2022, prosecution counsel originally informed the Judge that the prosecution did not intend to play the CCTV footages at Hotel Ease. The Judge indicated that playing the same in court would in fact assist the jury. The prosecution agreed with that course. There was no objection from the Applicant’s Trial Counsel.

52.  In fact and in any event, evidence as to what happened while the applicant and X were at Hotel Ease was adduced as part of Admitted Facts/1. The admitted facts and evidence included:

(a)  CCTV footages captured by the CCTV system of the hotel between 2 am and 10 am on 16 May 2020 (USB drive storing the same produced as P5 - Admitted Facts/1, §10);

(b)  33 screen captures from those footages (photographs 11-44, included in Photograph Album Book 2 produced as P84 - Admitted Facts/1, §10); and

(c)  The descriptions of 2 specific photographs amongst those 33, in §§11 and 12 of Admitted Facts/1, which were agreed as follows:

11. Photograph 19 was downloaded from Exhibit P5. It reveals the defendant carrying X over his shoulder entering the hotel at 02:09:13.

12. Photograph 20 was downloaded from Exhibit P5. It reveals the defendant carrying X over his shoulder in the lift of the hotel at 02:10:59 hours.

53.  We do not accept the applicant’s assertion that the Judge had at any stage made the Alleged Ruling.

54.  In relation to the interpretation of the CCTV footages, the screen captures, and in particular photographs 19 and 20, they were matters for the jury. The Judge had given them full and appropriate directions in order to assist them. We do not accept the applicant’s speculation and subjective opinion he expressed in New Ground 2.

55.  In the course of the hearing, the applicant further submitted that since it was during Covid that he carried X to Hotel Ease, some sort of checking was required at the front desk, but the police did not attend the hotel to investigate that matter, and there was no photograph inside the room.

56.  Those points did not bear on the applicant’s conviction.

57.  New Ground 2 has no merit.

F.3.  New Ground 3

58.  The applicant points to images captured by the Taxi dashboard camera which show that X opened the passenger door and alighted the Taxi. He says that those images show that X was not in an unconscious state.

59.  It was not part of the prosecution case that X was completely unconscious as a result alcohol. The prosecution case was that X did not have the ability or capacity to consent because she was too drunk to agree to anything. That did not entail the prosecution showing that X was completely unconscious.

60.  Mr Cheng submits that in any event, those images formed only a small part of the evidence. There was a whole body of cogent and compelling evidence which the jury was entitled to accept against the applicant’s case on the issue of X’s drunkenness and consciousness. The evidence includes X’s own evidence, the evidence of the Security Guard who witnessed X boarding the Taxi, the CCTV footages and screen captures in Hotel Ease, the Relevant Notebook Entry #1, and the VRIs.

61.  We accept those submissions made by Mr Cheng.

62.  There is nothing in New Ground 3.

F.4.  New Ground 4

63.  The New Ground 4 claims that the Judge erroneously gave the jury directions on, in the applicant’s own words at page 4 of the Applicant’s 4/7/2024 Affirmation, “honestly believed”. He claims that those directions could have had the effect of making the jury believe that the prosecution had successfully established all elements of the offence. He claims that those directions might also give the jury the message that if they could not find any reasonable basis for the applicant to hold that belief, they should reject his case that he actually held the belief that X was consenting. He relies on HKSAR v Wong Shing Chung (CACC 66/1999, 22 June 1999) and the cases referred to therein (R v Morgan [1976] AC 182 and R v Kwok Tak-ming Danny [1996] 4 HKC 395). He also relies on the recent decision of this Court[31] in HKSAR v Yip Ka Yu [2025] HKCA 573.

64.  There is absolutely nothing in New Ground 4:

(a)  This Court has recently in Yip Ka Yu reviewed the law on genuine but mistaken belief. We do not see the need to revisit the discussions here. In that case, having reviewed the law, and on its unusual facts, this Court considered that there was room for mistake on the defendant’s part as to whether the complainant was consenting, and that by the judge not having given the jury a direction as to genuine but mistaken belief, the applicant lost a chance of acquittal[32];

(b)  In the present case, the Judge did give the jury directions on genuine but mistaken belief;

(c)  As digested above, it is part of New Ground 4 that those directions could have had the effect of making the jury believe that the prosecution had successfully established all elements of the offence;

(d)  It is hence not readily clear whether the applicant is in fact suggesting that the Judge ought not to have given the jury any direction on genuine but mistaken belief;

(e)  If the applicant is so suggesting, we reject it. Whilst it is indeed not in every case where consent is disputed that the need for a genuine but mistaken belief direction arises[33], on the facts of the present case, and in the light of the applicant’s answers given during the VRIs, there was in our view clear room for the issue to arise. As we have seen above, the Applicant’s Trial Counsel himself raised the issue more than once in his closing speech;

(f)  In our view, the Judge was clearly correct in giving the jury directions on genuine but mistaken belief;

(g)  It appears that the applicant is also complaining that the Judge erroneously directed the jury to consider whether any mistaken belief on the applicant’s part was honestly held and based on reasonable grounds, and if not, they should reject his defence along that line;

(h)  If that is his New Ground 4, the applicant advances it with no regard to what the Judge’s actual directions to the jury were;

(i)  We have set out the Judge’s relevant directions to the jury, which she gave at two different stages of her summing-up. She instructed the jury that in considering whether the applicant held any mistaken belief, they should have regard to the presence or absence of reasonable grounds for such a belief. That is one factor which assists the jury, as a matter of common sense, in deciding whether that belief was actually held. If reasonable grounds existed, the likelihood of the applicant in fact holding the mistaken belief became higher. The reverse is also true. The Judge did not instruct, and had never instructed, the jury to any effect that the absence of reasonable grounds would necessarily lead to the conclusion that the applicant in fact did not hold that mistaken belief. On the contrary, the Judge said twice that:

the key question is whether you are sure that he himself did not hold that belief. So the ultimate question remains, whether reasonably or not, he himself genuinely held or may have held that belief[34];

(j)  Those directions are perfectly consistent with Wong Shing Chung (and the cases referred to therein) and Yip Ka Yu. They are also in strict compliance with Specimen Directions 111B at pages 111-9 to 111-10 of the Specimen Directions in Jury Trials, Volume 2: 2020 Revision of Selected Topics;

(k)  The applicant’s reliance upon Wong Shing Chung is misplaced. In that case, in the context of genuine but mistaken belief, the trial judge, amongst others, directed the jury in the following terms:

If the accused mistakenly but honestly and reasonably believed the woman was willing to have sexual intercourse with him, then the accused is not guilty of this offence[35].

(l)  It was that passage which the Court of Appeal held was wrong in law. But that was not how the Judge directed the jury in the present case.

65.  For all the reasons set out above, we are of the view that New Ground 4 is advanced without regard to the actual directions which the Judge gave, is devoid of merit, and is not made out.

G.  Conclusion

66.  For all the reasons set out above, we were and are of the view that the New Grounds have no merit. We hence refused the applicant’s application for extension of time to amend the Refused Perfected Ground or to file his Form XIII, dismissed his application for leave to appeal, and dismissed his appeal.

H.  Loss of time

67.  Upon refusing the applicant’s application for leave to appeal, while reminding him of his right to renew his application for leave to the Court of Appeal, Zervos JA at the same time informed him of the consequences of him doing so. Those consequences include a direction for loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

68.  The applicant has despite that warning purported to renew his application. He put forward the New Grounds. He did so late. The New Grounds are devoid of merit.

69.  Towards the end of the hearing, this Court told the applicant that this Court had considered giving a direction for loss of time. However, in the end, given the fact that the applicant was acting in person, and given further the way he conducted the hearing, which did not involve him wasting this Court further time, we ultimately decided not to do so. This decision should not however be taken as any precedent on how this Court would in the future exercise its power on directing loss of time.