HKSAR v. CHOW KA WAI

CACC 187/2023

[2024] HKCA 382

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 187 OF 2023

(ON APPEAL FROM HCCC NO. 35 OF 2023)

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REASONS FOR DECISION

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Introduction

1.  Upon conviction by the jury of one count of rape, in respect of which the applicant was sentenced to 7 years’ imprisonment, he applied for bail pending appeal before me.  As none of the grounds advanced would render the appeal likely to succeed, I refused the application at the conclusion of the hearing. The following are my brief reasons for the decision. 

Grounds of appeal

2.  Mr MK Wong, SC, put forth 3 grounds of appeal on behalf of the applicant.  The main complaint in Ground 1 is that the rape conviction (Count 1)  is inconsistent with the applicant’s acquittal for attempted rape (Count 2).  Ground 2 avers that the judge failed to direct the jury properly on the evidence of “distress”, whereas Ground 3 is a general ground suggesting that the conviction was unsafe and/or unsatisfactory. 

3.  Briefly stated, the prosecution case was that the applicant attempted to rape and actually raped his domestic helper X on the two occasions concerned.  The applicant chose to give evidence. He asserted, on the other hand, that it was consensual behaviour between the two of them.  The applicant further suggested that it was X who seduced him and asked for money to have sex with him.  Having failed to blackmail the applicant, X then fabricated the case against him. 

Observations

4.  In relation to Ground 1, Mr Wong placed much emphasis on an audio recording (D6)  which the applicant produced at trial and which, he said, was taken during the second occasion when he had sexual intercourse with X.  It was suggested that, as the recording illustrated consensual sex, X must have lied when she said she was raped by the applicant.  In the circumstances, the conviction, it was said, was erroneous.  In relation to this complaint, I only need to say that when the jury convicted the applicant of rape, they must have rejected that D6 was a true and contemporaneous record of the incident.  While Mr Wong accepted this, he suggested that no reasonable jury would question the authenticity of D6 but in my view, the jury was entitled to so reject the evidence. 

5.  Next, Mr Wong submitted that the applicant’s utterances in the audio recording (the transcript is P58)  secretly made by X clearly demonstrated that X was a consenting party in relation to the earlier incident (the allegation of attempted rape).  My observations are these: firstly, one should not lose sight of the fact that X kept saying “no” to whatever was suggested by the applicant as recorded on the audio file; secondly, common sense suggests that those utterances could be self-serving statements.  I am not persuaded that the jury was bound to accept P58 as showing X’s consent to the sexual conduct. 

6.  Returning to the complaint of inconsistent verdicts, I do consider that there was cogent evidence before the jury for them to have come to the different verdicts.  As suggested by the respondent, the jury might have given weight to the applicant’s utterances in P58.  In other words, it could be that although the jury believed X, because of what the applicant said in P58, they might have given the applicant the benefit of the doubt, and entertained the possibility that the applicant might have mistakenly believed that X’s reaction at that time was consistent with her consent to vigorous sex.  In my view, such could be a possible explanation for the acquittal in relation to the count of attempted rape and such a cautious approach taken by the jury had nothing to do with their assessment of X’s credibility. 

7.  Further, in relation to the rape conviction, there was also the evidence of X’s almost immediate complaints and her leaving the household, which features were absent in relation to the attempted rape. 

8.  In short, the jury was entitled to have arrived at the two different verdicts after considering all the evidence before them. 

9.  Insofar as the second ground is concerned, I do not consider the judge to have erred in his directions on “distress”. 

Conclusion

10.  For the reasons given above, and despite that the Court is sympathetic about the plight of the applicant’s children, this is not a case in which bail pending appeal should be granted.