HKSAR v. IQBAL ASIF

CACC 93/2024 [2025] HKCA 516

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 93 OF 2024

(ON APPEAL FROM HCCC NO 197 OF 2022)

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REASONS FOR JUDGMENT

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

1.  On 12 June 2023, following a trial before Toh J (the Judge)  and a jury, the appellant was convicted of rape, contrary to section 118(1)  of the Crimes Ordinance (Cap 200). On 19 September 2023, he was sentenced to 5 years’ imprisonment.

2.  The appellant filed a notice to appeal against his conviction and sentence on 29 April 2024, but only after significant delay.  The appellant supplemented this with grounds of appeal against conviction on 13 August and 6 September 2024.  The late filing of the notice appeared to result from the trauma he had experienced from the mistreatment he had received from other prison inmates, which resulted in his transfer to Siu Lam Psychiatric Centre.  At the leave hearing, on 6 February 2025, the Single Judge[1] refused the appellant leave on the grounds he had submitted but granted him leave on a new ground that averred the Judge had erred in her directions to the jury by removing the element of no consent from their consideration regarding the offence of rape.

3.  At the conclusion of the hearing, we allowed the appellant’s appeal, quashed the conviction, and set aside the sentence of 5 years’ imprisonment.  We followed the course urged by the parties and substituted the rape conviction with that of indecent assault pursuant to section 83A(2)  of the Criminal Procedure Ordinance (Cap 221).  We sentenced the appellant to 2 years and 6 months’ imprisonment, which resulted in his immediate release.  We said we would hand down our reasons in due course, which we now do.

The brief facts

4.  At the time of the offence, the complainant (referred to as X)  was 14 years old, while the appellant was 22. 

5.  On 22 October 2021, X did not go to school but instead went to a roof garden in the vicinity of Cheung Sha Wan Estate.  CCTV footage on the footbridge leading to the roof garden showed the appellant and X exchanged glances at 4:00 pm, when walking in different directions.  They were next seen on CCTV footage at the roof garden, chatting with each other.  They moved from one part of the roof garden to another part and continued chatting. According to X, the appellant suggested that they leave and go to the staircase.  She stated that she followed him.  While they were at the staircase, sitting on the steps, X was communicating with her friends on WeChat, and the appellant was charging his telephone with X’s charger as his telephone was running out of battery.  They spent a bit of time at the staircase.  At one stage, X took a picture of the appellant with his head on her lap and sent it to her friends on WeChat.  It was while they were at the staircase that X alleged the appellant forced her to have sexual intercourse with him.  He ejaculated outside her vagina.  While X was with the appellant, she used WeChat and messaged her friends, but did not raise any alarm with them.

6.  At about 6:00 pm, they left the staircase together, and the CCTV cameras captured them walking along the footbridge to the MTR station.  The appellant had his arm around X’s shoulder.  No apparent tension was observed between them.

7.  Sometime after 6:00 pm, X went to see her friend, Z.  X told Z that she was downstairs from her home.  When Z came down to meet X, she saw that X was squatting, looking messy and tired.  X told Z that a man dragged her to the staircase and forced her to have sexual intercourse.  After discussing this with Z, X played basketball with her for about an hour to “de-stress”.[2]

8.  At about 6:30 pm, X also complained to Y.  X told Y that she had seen a male who had pulled her to the staircase, and the male had “done it to her”.  At about 8:00 pm, Y saw X in person and noticed that X seemed “a bit sad”, “very relaxed” and “very sorrowful”.[3] 

9.  X’s mother testified that X was unhappy and sad as a result of her separation from X’s father.  X had psychotic symptoms such as hallucinations, and she saw “shadows” that would tell her to die.[4]  X would sometimes harm herself.  X was treated by a psychiatrist and attended consultations every month. 

10.  On 22 October 2021, when X’s mother saw X in the evening, she noticed that X was very frightened but did not want to disclose what had happened.  Eventually, X told her that someone had assaulted her, and the case was reported to the police. 

11.  One of X’s friends, whom she texted about the incident, was in Taiwan.  Eventually, her friend responded, asking X if she had lost her virginity.  At 8:54 pm, she replied, “No, he dared not.”  In cross-examination, she was questioned about her answer and denied that she meant that the appellant did not have sexual intercourse with her.  She clarified that her response meant, “I thought he dared not.”[5]

12.  X accepted that she had made two previous false reports of rape, in May and June 2020 respectively.  She said on each occasion, she was taken to a hospital, and she gave a video recording about the matter. She did not tell the police that she made up the allegations, but acknowledged that they later found out.[6]

13.  Dr Yeung Pak Kwan, a forensic pathologist, examined X.  He testified that X’s hymen was intact, and the pathological examination could not confirm whether sexual intercourse had occurred.  He stated that there were no identifiable injuries on her body or private parts.  However, he explained that if semen was found in a high vaginal swab, the result would be highly suggestive of sexual intercourse and ejaculation taking place.

14.  Ms Yeung Sze Mang, a DNA expert, testified that semen was found on X’s underpants and in the high vaginal swabs.  She also found saliva in the swab from the left breast of X.  She was of the opinion that there was “very strong support”[7] that the semen found on X’s underpants carried the DNA of the appellant and X.  She explained that the semen and male DNA found on the high vaginal swabs were an insufficient sample for DNA typing to conclude to whom it belonged.[8] 

15.  When the appellant was arrested, he said under caution, “It is the first time I met the girl.  I did not rape her.”[9]  In a subsequent video recorded interview, the appellant repeated that he did not have sexual intercourse with X. 

16.  The appellant chose not to testify or call any witnesses on his behalf.  He argued in his defence that he had not had sexual intercourse with X at the staircase. 

Removing the element of no consent

17.  In her summing-up, the Judge outlined the elements of rape and instructed the jury that the element of no consent had been established because X was 14 at the time of the offence and in law she was unable to give consent:[10]

“Now, members of the jury, what is rape? As Ms Crebbin has said to you, rape in law is unlawful sexual intercourse with a woman who did not consent to it, and if a defendant at the time he had sexual intercourse with the defendant knew that she did not consent or was reckless as to whether she consented or not, then he is guilty. Now, as you know, X at the time was 14 years old and so, in law, she cannot give consent. So, was the defendant reckless as to whether she was able to give her consent or not? According to the evidence, X said she told the defendant she was 14, but the defendant said he thought she was 21. So that is all a matter for you.

But, really, the issue in the case is really did sexual intercourse take place between the defendant and X.  Now, so what do you have to decide?  You have to decide first of all did sexual intercourse take place.  And, as I said, you have to be sure that X did not consent and in this case she could not consent because of her age.  And you have to also decide whether the defendant knew she could not consent or was reckless as to whether she could consent or not.” 

18.  The Judge returned to the issue of consent in her summing-up, instructing the jury:[11]

“Now, I have talked about the fact that the prosecution has to prove whether the defendant knew or was reckless as to whether X could give her consent. If you find that the defendant had a genuine but mistaken belief that she was able to consent, he is not guilty. So if at the end of the day you find that he genuinely though mistakenly held the belief that she was able to consent because he thought she was 21, then he cannot be found guilty. It is for the prosecution to prove that he did not have that belief.”

19.  This direction would have been confusing to the jury, because the Judge by her directions effectively removed the element of no consent from the their consideration as to whether the offence of rape had occurred. 

20.  In R v Harling [12], the English Court of Appeal addressed the confusion that arose between the offence of rape and the offence of having carnal knowledge of a girl between 13 and 16 years of age. The Court explained that:[13]

“… while a girl under the age of sixteen is perfectly capable of consenting, and, as everyone knows who tries these cases, frequently does consent to an act of sexual intercourse with a man, the law has provided that such consent affords no defence to a man on a charge of carnal knowledge of a girl under sixteen; but there is no such provision as to the crime of rape. In every case of rape it is necessary that the prosecution should prove that the girl or woman did not consent and that the crime was committed against her will.”

21.  The decision of Harling was applied in HKSAR v YHY [14], where the trial judge had directed the jury that the victim, who was under 16 years old, could not legally give valid consent when considering a charge of rape.  The jury returned a verdict of attempted rape in respect of this offence.  The Court of Appeal noted that there was no provision in law for the offence of rape, similar to section 122(2)  of the Crimes Ordinance (Cap 200), which provides for the offence of indecent assault that a person under the age of 16 cannot in law give any consent which would prevent an act from being an assault for the purposes of the section.  The Court held that the trial judge was wrong because in rape cases, the prosecution must prove that the victim did not consent to sexual intercourse, and that as a result, the jury might have mistakenly believed that it did not need to consider whether the victim consented to sexual intercourse.

22.  In the present case, the Judge erred in removing from the jury’s consideration the element of no consent for the offence of rape.

Substituting a conviction for another offence

23.  Ms Human Lam, for the respondent, in accepting that the Judge had erred in her directions to the jury on the element of no consent, applied to quash the conviction of rape and substitute it with unlawful sexual intercourse with a girl under 16. 

24.  Section 83A of the Criminal Procedure Ordinance (Cap 221)  empowers the Court of Appeal to substitute a conviction for an alternative offence.  It provides that:

“(1)  This section applies on an appeal against conviction, where the appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence [First Condition], and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of the other offence [Second Condition].

(2)  The Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence, and pass such sentence in substitution for the sentence passed at the trial as may be authorised by law for the other offence, not being a sentence of greater severity.”

25.  Two conditions must be satisfied before an appellate court can exercise the power to substitute under section 83A.  This section must be read with section 51(2)  of the Criminal Procedure Ordinance, which sets out the conditions for returning an alternative verdict of guilty against an accused at trial.  It reads:

“If on the trial of any information, charge or indictment for any offence it is proved that the accused is not guilty of that offence but the allegations in the information, charge or indictment amount to or include, whether expressly or by implication, an allegation of another offence falling within the jurisdiction of the court of trial, he may be found guilty of that other offence or of an offence of which he could be found guilty on an information, charge or indictment specifically charging that other offence.”

26.  The power of substitution of an offence has been the subject of consideration by the courts, addressing the terms and scope of this discretionary power.  The early decisions of the English Court of Appeal focused on the equivalent provision under section 51(2), section 6(3)  of the Criminal Law Act 1967[15].

27.  In R v Springfield [16], Sachs LJ, giving the judgment of the English Court of Appeal, set out the test for section 6(3)  of the 1967 Act as follows:[17]

“The question accordingly arises as follows. Where an indictment thus charges a major offence without setting out any particulars of the matters relied upon, what is the correct test for ascertaining whether it contains allegations which expressly or impliedly include an allegation of a lesser offence? The test is to see whether it is a necessary step towards establishing the major offence to prove the commission of the lesser offence: in other words, is the lesser offence an essential ingredient of the major one?”

28.  The English Court of Appeal reaffirmed the Springfield test in R v Hodgson [18], holding that it was not open to a jury to convict a defendant charged with rape a charge of unlawful sexual intercourse with a girl under the age of 16.

29.  The appropriateness of the Springfield test was examined in Metropolitan Police Commissioner v Wilson [19], where the House of Lords overruled Springfield and reformulated the test.  Lord Roskill suggested an approach that avoided any consideration of “necessary steps” or of “major” or “lesser” offences, and read into the subsection words that were not there as contained in the Springfield test.  He said the subsection envisaged four possibilities:[20]

“First, the allegation in the indictment expressly amounts to an allegation of another offence. Secondly, the allegation in the indictment impliedly amounts to an allegation of another offence. Thirdly, the allegation in the indictment expressly includes an allegation of another offence. Fourthly, the allegation in the indictment impliedly includes an allegation of another offence.”

30.  In R v Graham [21], the English Court of Appeal addressed section 3 of the Criminal Appeal Act 1968, which is in pari materia with section 83A.  Lord Bingham CJ, giving the judgment of the Court, interpreted the effect of the provision as follows:[22]  

“The prosecution contend in each of the present appeals that the Court should exercise the power in section 3 of the 1968 Act to substitute verdicts of guilty of other offences said to be expressly or impliedly included in the counts of which the appellants were convicted. Thus the prosecution rely on Lord Roskill’s third and fourth possibilities and do not suggest that the allegations in the indictments expressly or impliedly amounted to allegations of another offence. Before this Court could substitute a conviction of an alternative offence the prosecution would have to establish two requirements: (1)  that the jury could on the indictment have found the appellant guilty of some other offence (offence B)  and (2)  that the jury must have been satisfied of facts which proved the appellant guilty of offence B. As to (1)  it would be sufficient if looking at the indictment (not the evidence)  the allegation in the particular count in the indictment expressly or impliedly included an allegation of offence B. A count charging offence A impliedly contains an allegation of offence B if the allegation in the particular count would ordinarily involve an allegation of offence B and on the facts of the particular case did so. As to (2)  this Court has only the verdict of the jury to go on.”

31.  The Court of Final Appeal has extensively reviewed the legal principles regarding the substitution of convictions under section 83A.  The matter was first addressed in Hau Tung Ying v HKSAR [23], where Chan PJ, with whom the other judges agreed, noted that there were two conditions precedent in section 83A for the Court of Appeal to substitute a verdict.  The first condition requires that the substituted offence be one for which the jury could, on the indictment, have found the accused guilty, i.e. it must be for an offence which is open on the indictment.  He went on to explain:[24]

“This is often the case where the substituted offence is laid as an alternative charge on the indictment or where there are alternatives available under the law to the convicted offence. Normally, these would be lesser offences, such as manslaughter in a case of murder or theft in a case of robbery, but that is not necessarily the case and would require consideration of the nature of both the convicted and substituted charges in question and the alleged facts sought to be proved in support of either charge.”

32.  The second condition is that it must be clear to the appellate court that the jury must have been satisfied of facts that proved the accused to be guilty of the other offence.  The section would not apply if there was no such evidence, or improperly admitted evidence, or a misdirection on the law.[25]

33.  The matter was further addressed by the Court of Final Appeal in HKSAR v Chan Kam Ching [26], in which Ribeiro PJ, with whom the other judges agreed, noted that the power to order substitution is discretionary and that before the Court of Appeal considers exercising its discretion, the two conditions laid down in section 83A must be satisfied.  He explained that section 83A must be read together with section 51(2), which lays down the conditions for returning an alternative verdict of guilty against an accused at the trial.[27]

34.  In his examination of the first condition, Ribeiro PJ noted that section 51(2)  only allows an alternative conviction if “the allegations in the information, charge, or indictment amount to or include, whether expressly or by implication, an allegation of another offence”.[28]  He emphasised that the limits on the power of the substitution catered for the fundamental principle that an accused should receive a fair trial and not have to address an offence not open on the indictment.  As for the requirements of the first condition, he referred to the four possibilities envisaged by Lord Roskill in Wilson, i.e. that the allegation in the original charge expressly or impliedly includes or amounts to an allegation of the proposed alternative offence.  He pointed out that the allegation of another offence is express where that other offence is specifically charged as an alternative or is available under the law to the convicted offence.  He observed that an alternative offence is often a lesser offence and listed various examples, including “rape/indecent assault or some other sexual offence”.[29]

35.  In his concluding remarks on his analysis of the first condition, Ribeiro PJ said:

“109. It is evident that in considering whether the allegations in the charge meet the first condition, it is necessary to examine the nature and elements of the offence charged as well as the particulars alleged, to decide whether the allegations in the original charge expressly or impliedly amount to or include an allegation of the proposed alternative offence, taking account of its elements.”

36.  In his examination of the second condition, Ribeiro PJ stressed the importance of the requirement “on the finding of the jury”.  He explained that this meant an appellate court could only substitute an alternative conviction, if it appeared that the jury must have actually made findings sufficient to establish the accused guilty of that alternative offence.[30]

37.  A point emphasised by the Court of Final Appeal in its two decisions was that the discretion to substitute has to be considered in the context of the fundamental imperative of the criminal justice system that the accused receive a fair trial.  On this matter, Ribeiro PJ referred to Chan PJ’s comments in Hau Tung Ying, who stressed that the exercise of the discretion “depends on the justice of the case, including on the one hand, the public interest in having a guilty person properly convicted and on the other, whether it is fair to the accused to convict him on the other offence.”[31]  Ribeiro PJ added:

“122. It is unsurprising that the discretion is narrowly circumscribed. As has been pointed out, defendants should obviously not be put at a disadvantage either by finding during the trial that they have to meet an allegation that they have committed an offence other than the ones charged or finding themselves convicted of an alternative offence upon which the jury has not been specifically directed or where the other offence has not properly been the focus of the judge’s decision to convict.”

38.  An appellate court that has quashed a conviction might consider ordering a retrial instead of substituting a verdict, and as observed by Ribeiro PJ, the power to order a retrial is similarly circumscribed.  He pointed out that the limits on the power to order a retrial “as to the classes of offence on which an accused may be retried echo the rules constraining the power of substitution, balancing in this context fairness and the avoidance of double jeopardy against the need to bring guilty parties to justice.”[32] He noted that the discretion to substitute is broad and allows the appellate court to cater for the accused’s right to a fair trial without being confined to strictly legal considerations, but emphasising the observation of the Australian High Court in Spies v The Queen [33], that even where the two conditions have been satisfied the legal error may have put the appellant at some forensic, as opposed to legal, disadvantage, which, in such a case, it would be proper not to substitute a verdict.[34] 

Applying the substitution principles

39.  In order to make a substitution, the first and second conditions of section 83A(1)  must be satisfied before this Court can exercise its discretion under section 83A(2), which provides that the Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence and pass such sentence in substitution for the sentence passed at trial as may be authorised by law for the other offence, which cannot be a sentence of greater severity.

40.  We turn to consider the first condition by examining the elements of rape and the possible alternative offences of unlawful sexual intercourse with a girl under the age of 16 and indecent assault.

41.  A man who rapes a woman is guilty of an offence under section 118.  It is provided that a man commits rape if (a)  he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and (b)  at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it. 

42.  The statutory alternatives under Schedule 1 of the Crimes Ordinance for the offence of rape are procurement of another by threats (section 119); procurement of another by false pretences (section 120); and administering drugs to obtain or facilitate unlawful sexual act (section 121).  It is noted that neither unlawful sexual intercourse with a girl under 16 nor indecent assault is listed as a statutory alternative.  Section 149(1)  provides that if the accused is acquitted of the specified offence in Schedule 1, he or she can be convicted of the alternative offence if it is proven.  However, section 149(2)  stipulates that nothing in the section shall exclude the application to any offence of any other law authorising a court to find a person guilty of an offence other than that with which he is charged. 

43.  A person who indecently assaults another person is guilty of an offence under section 122.  Subsection 122(2)  provides that: “A person under the age of 16 cannot in law give any consent which would prevent an act being an assault for the purposes of this section.”  An equivalent provision is not contained in the offence of rape under section 118.  As such, if the charge is rape, the prosecution must prove the lack of consent even though the victim is under 16. 

44.  A man who has unlawful sexual intercourse with a girl under the age of 16 is guilty of an offence under section 124.  The gravamen of this offence is that a man has had sexual intercourse with a girl who is under the age of 16 years.

45.  In the present case, the indictment charged the appellant with rape.  No alternative counts were contained in the indictment. As already noted, there is no statutory alternative verdict of unlawful sexual intercourse or indecent assault for rape.  This was the state of the law under the relevant statutory provision that applied when R v Mochan [35]was decided.  In that case, Cusack J, when addressing the first condition stated:[36]

“… any valid alternative verdict which is not the subject of a separate count must be founded on the allegations in the indictment. This must refer to a correctly drawn indictment. It would not be right to include in indictments allegations irrelevant to the offence in the hope of securing a conviction for another offence. The allegations in the indictment here are proper to rape and do not include an allegation of unlawful sexual intercourse.”

46.  Cusack J noted that for the offence of rape the age of the girl, who was 14, was correctly omitted.  However, he explained that the situation with regard to indecent assault was different because an allegation of rape implied an allegation of an assault which was indecent, and therefore it was open to the jury to convict of indecent assault.[37] 

47.  In Hodgson, Roskill LJ (as Lord Roskill then was), giving the judgment of the Court of Appeal, affirmed Cusack J’s reasoning that the age of the girl was irrelevant to the charge of rape, and therefore the “red pencil” test could not be applied to the count charging rape to justify conviction of unlawful sexual intercourse.  He agreed that the charge of rape involved two of the same constituent elements that are also involved in the charge of indecent assault, namely an assault and indecency.[38]  He said:[39]

“Every charge of rape, therefore, as it were contains within itself the essential ingredients of indecent assault. It follows that, in a case where a man is acquitted of rape, nonetheless it is open to the jury to convict him, in a case where the victim is under 16 years of age, of indecent assault, because the consent which provides a defence to the charge of rape cannot as a matter of law provide a defence to the charge of indecent assault.”

48.  This Court has previously substituted rape convictions with indecent assault convictions: HKSAR v YHY; HKSAR v WWK [40]; HKSAR v Tsang Tak Wah Andy (No 2) [41].

49.  The elements of the offence of rape with which the appellant was charged included the elements of the offence of indecent assault, namely the appellant assaulted X and the assault was indecent.  The first condition is satisfied. 

50.  The jury, by its verdict, must have been satisfied of facts which proved the offence of indecent assault and that the appellant did not honestly and reasonably believe that X was 16 or over: HKSAR v Choi Wai Lun [42]. The second condition is also satisfied.  We note, however, that the jury would have based their verdict without determining whether or not there was no consent by X due to the Judge’s directions.  This did not affect the substitution because under section 122(2), a person under the age of 16 cannot, in law, give any consent which would prevent an act from being an indecent assault. 

51.  We considered that this was an appropriate case to substitute the verdict of the jury of rape with indecent assault.  Bearing in mind the circumstances of this case and the acceptance by the parties to treat it as an indecent assault, we considered that an appropriate sentence would be 2 years and 6 months’ imprisonment, which resulted in the immediate release of the appellant.

52.  We acknowledge with gratitude Ms Lam’s assistance in this appeal, who raised the issue in the leave proceedings and provided detailed submissions on the relevant legal principles.