HKSAR v. EKSTROM PATRIK TOBIAS

HCCC 272/2023

[2024] HKCFI 3274

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 272 OF 2023

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RULING ON
THE DEFENCE APPLICATION FOR CERTIFICATION

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1.  On 22 August 2024, the Defendant was unanimously convicted by a jury of one count of rape, contrary to section 118(1)  of the Crimes Ordinance (Cap. 200)  (Count One), and one count of non-consensual buggery, contrary to section 118A of the Crimes Ordinance (Cap. 200)  (Count Two).

2.  By way of Notice of Motion, the Defendant applies to this Court for certification under section 82 of the Criminal Procedure Ordinance, Cap. 221 (“CPO”)  (“the Application”), and filed skeleton submissions dated 29 August 2024 in support of his application.  The single ground on which the Application is based is that it is reasonably arguable that there is a “lurking doubt” that the jury verdicts in convicting the Defendant of rape and non-consensual buggery were unsafe and unsatisfactory.

3.  The Prosecution opposes the Application and filed written submissions in reply dated 4 October 2024.  Both parties agree to the Application being dealt with on paper without an oral hearing.  This is my written decision. 

4.  Section 82 of the CPO provides as follows:

“Right of appeal

(1)  A person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction.

(2)  The appeal may be—

(a)  on any ground which involves a question of law alone; and

(b)  with the leave of the Court of Appeal, on any ground which involves a question of fact alone, or a question of mixed law and fact, or on any other ground which appears to the Court of Appeal to be a sufficient ground of appeal;

but if the judge of the court of trial grants a certificate that the case is fit for appeal on a ground which involves a question of fact, or a question of mixed law and fact, an appeal lies under this section without the leave of the Court of Appeal.”

5.  The Defendant’s submission that a “lurking doubt” exists focuses on six points (“the Six Points”), which were all covered by counsel for the Defendant in his closing speech to the jury, and also highlighted by this Court in the summing up.  The Six Points all relate to the credibility of X, and can be summarized as follows:

(a)  The stepfather (referred to as “Uncle” at trial)  and driver of the Defendant could not hear / did not react to the allegedly prolonged loud quarrel that X claimed to have occurred and supposedly lasted for over 10 minutes;

(b)  Despite claiming not to have consented to sexual intercourse, X did not physically resist by biting, scratching, pushing or hitting the Defendant, and did not even attempt to do so;

(c)  The lack of injuries on X’s body, private parts or anus is inconsistent with X’s claim of a forceful assault and vaginal/anal penetration without lubrication;

(d)  The way in which the Defendant supposedly stopped his assault on X, with his penis still erect and yet to have ejaculation, by X merely indicating that she was hungry and wanted dinner, “defies common sense”;

(e)  After X was allowed to freely leave the Defendant’s master bedroom, she voluntarily returned to bring water and the Defendant’s mobile phone to the Defendant, did not seek help from either the Defendant’s stepfather, the driver or the security guard of the housing estate, and did not call 999 on her phone. Rather, X said in evidence that she switched off her phone instead;

(f)  X had given an incredible version of her financial condition, claiming that the Defendant had voluntarily and on his own volition suggested settling X’s loan in India of over 450,000 Rupees (around HK$ 45,000)  in October 2022, and denying that it was X who asked for a loan of that amount from the Defendant.

6.  The Prosecution submitted that the Six Points could reasonably be explained when considered in light of all the other evidence in a holistic manner.  Those points were raised by the defence to the jury, the jury had reasonable bases to reject each of the Six Points, and that “the six points … do not support that there is any lurking doubt in the present case which may render the convictions unsafe or unsatisfactory”.

Consideration of the Application

7.  The Court of Appeal in the recent decision in HKSAR v Michalakopoulos Theodoros [2024] HKCA 996 re-affirmed the long-standing principles when considering whether a “lurking doubt” exists as to the safety of a conviction (at paragraph 54, citing HKSAR v Ma Ka Kin [2021] 4 HKLRD 83 at paragraphs 44-48):

“44. … The acceptance by an appellate court of a ‘lurking doubt’ as to the correctness of a verdict is necessarily a very rare occurrence indeed; for the simple reason that this Court does not readily substitute its view of the facts for those of a properly directed jury. On the very rare occasions that an appellate court has found a ‘lurking doubt’, there is usually something extraordinary about the facts or evidence in the case before it. …

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47. … However we wish to make clear that the term ‘lurking doubt’ is not an alternative test, but rather an aspect of the statutory test of ‘unsafe and unsatisfactory’. …

48. Appellate courts must approach the question of a ‘lurking doubt’ in a particular case with great caution. As was held by this Court in Tang Wai-tong, the term means ‘not an insubstantial doubt but a substantial remaining doubt’ about the propriety of the conviction. On the suitably rare occasion when this Court may invoke the notion of a ‘lurking doubt’, the Court must be left with a distinct feeling of unease as to the correctness of the conviction or find there is a real danger that an injustice may have been done.” (emphasis added)

8.  The Six Points obviously cannot be considered on their own without regard to the context in which they arise.  Each of the points vary in strength; for example, as to first point concerning whether the stepfather and/or the driver would have heard the supposedly prolonged and loud argument as described by X, there was actually no evidence as to whether they heard it or not, and if they did hear it, why neither of them intervened. There was however evidence that the stepfather was wheelchair bound, had difficulty hearing and had to be assisted in getting on and off his bed; the driver was located in the basement and possibly loyal to the Defendant.  The fact that neither of them intervened given the prolonged and loud argument as described by X was a factor that could be considered by the jury, but it was far from a strong or determinative point.  Similarly, that X did not positively fight back in the way the Defendant suggested has to be balanced against X’s explanations that she did try to resist, but she felt scared and overpowered by the Defendant.  As to how the incident ended and X’s actions afterwards, these again had to be balanced against the possibility that the Defendant could have simply given up after X’s continued resistance, and that X had in fact sent several voice messages to the Defendant’s wife a few hours after the incident at around 5:25am, followed by her leaving the premises at 7am and heading straight to the Wanchai police station to make a complaint of rape.

9.  Whether X had lied about the loan she was either seeking from the Defendant or offered to her by the Defendant went to whether X had motive to lie and falsely allege the Defendant of raping her (instead of X initiating sexual contact as per the Defendant’s evidence).  X gave explanations about this matter in her evidence and it was for the jury to assess whether X’s evidence ought to be believed.

10.  The fact that no injuries whatsoever was found on X’s body, private parts or her anus was probably one of the stronger points in favour of the Defendant in light of how X described the assault, but again this has to be balanced against the expert pathologist’s testimony in that regard.  This piece of evidence was just one factor (albeit a relatively stronger one in favour of the defence)  that the jury could consider together with all the evidence, but again this was far from determinative.

11.  The main issue in the case was the credibility of X and the jury was fully entitled to accept her evidence despite certain perceived flaws in her account of the events.  The jury had been directed that they can accept part, and reject other parts, of the evidence of a particular witness, and it is a matter for them as to which part they accept, which part they do not accept or was unsure about.  It is for the jury to decide how much weight to put on a perceived flaw in X’s account of the events (if they agree with some of the Six Points impressed upon them by the defence)  and to balance that against all the evidence. This is not one of those rare cases where it is arguable that the court would be left with a “distinct feeling of unease” that injustice had been done.  The whole jury was sure of the Defendant’s guilt on both counts, as demonstrated by their unanimous verdicts.

12.  For these reasons, I am not satisfied that it is reasonably arguable that a lurking doubt exists as to the safety of the Defendant’s convictions.  The Application is therefore dismissed.