HKSAR v. CHAN SZE CHUN

CACC 171 /2023, [2026] HKCA 1362

On Appeal From [2023] HKCFI 2344

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 171 OF 2023

(ON APPEAL FROM HCCC NO 50 OF 2023)

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J U D G M E N T

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The Court:

1.  On 18 July 2023, following a trial in the High Court before Deputy Judge Woodcock (as Woodcock J then was) (“the judge”) and a jury, the appellant was convicted of one count of rape of a 16-year-old girl (known throughout the trial as “X”), contrary to section 118(1) of the Crimes Ordinance, Cap 200.  On 17 August 2023, the appellant was sentenced to 8 years’ imprisonment. 

2.  On 22 September 2023, the appellant filed a formal Notice of Application for leave to appeal against conviction and sentence out of time.  Given that the filing of the Notice of Application for leave was late by only a few days, the Single Judge[1], on 22 September 2025, granted the appellant leave to appeal against his conviction out of time on the basis that it was reasonably arguable (i) that the judge had failed to give the jury a direction on the appellant’s genuine but mistaken belief as to consent (Ground 1); and (ii) that the exchanges between X and “Sad Toefl” should not have been admitted into evidence at trial (although the admission of this evidence had been argued before the Single Judge as a ground of counsel’s incompetence under Ground 2).  The Single Judge refused leave to appeal against conviction on all other grounds and refused leave to appeal against sentence.

3.  On 6 October 2025, the appellant filed a formal Notice of Renewal of Application after Refusal by the Single Judge.  By that Notice, the appellant renewed his application for leave to appeal against conviction on some of his original Amended Perfected Grounds of Appeal, filed on 14 March 2025, in particular: Ground 2(v) (alleging counsel’s incompetence in not adducing into evidence the medical report of Dr Chow Chi Wing, Stephanie (“Dr Chow”), dated 26 April 2022); Ground 2(vi) (averring counsel’s failure to put certain matters to X in cross-examination); and Ground 4 (complaining about the judge’s direction to the jury in relation to the matters averred in Ground 2(vi)).  He also renewed his application for leave to appeal against sentence, questioning, in particular, whether the judge was right on the evidence to have treated the failure to put on a condom at the initial stage of his encounter with X as an aggravating feature.

The prosecution case

4.  It was alleged that on 7 January 2022, the appellant raped X inside his home on the ground floor of an address in Tin Shui Wai, New Territories.  Three witnesses were called to give evidence at trial, namely: X, Dr Yu Hoi Shuen, Zoe (“PW2”) and Dr Cheng Sze Nga, Sara (“PW3”). 

5.  The appellant and X had met online via a ‘dating App’ known as “Heymandi” (“the App”) about 4 or 5 days before the date of the offence.  At the time, X was 16 years and 4 months of age, while the appellant was 41, although he had claimed on the App to be 27.  The appellant did not post his name on the App but said he was looking for somebody to come and play at home with his cat(s).  When the appellant and X subsequently made contact via Instagram and other social media platforms, he offered to give her HK$1,000 per week as pocket money.  When she asked why, he said that X could treat him as an older brother or boyfriend. 

6.  On 7 January 2022, the appellant met up with X outside the MTR station in Tin Shui Wai and brought her to his home.  The appellant then proceeded to remove each item of X’s clothing, promising that he would only take off her jeans and not her panties; he would not interfere with her; he would not take her virginity; and he would not penetrate her.  X repeatedly said “no” at each stage the appellant removed an item of clothing and tried to resist, but the appellant ignored her.  After the appellant had removed all of X’s clothes, he first rubbed his penis against X’s vagina and then performed oral sex on her for 5 to 10 minutes.  Afterwards, the appellant penetrated X’s vagina, although it was ultimately unclear with what, causing her considerable pain.  Despite the appellant’s assurances that he would not enter X, he nevertheless kept thrusting for some 20 minutes, throughout which X kept saying “no” and that she was in pain.  The appellant then stopped and made her perform oral sex on him by grabbing hold of her head.  At some stage (it is not clear precisely when), the appellant put on a condom and had penetrative sexual intercourse with X by having her straddle him, before thrusting into her in a standing position.  X explained that she did not know how to react and felt helpless at the time.  She explained she was a virgin and had no previous sexual experience. 

7.  In cross-examination, it was put to X that she had said to the appellant, “It slightly hurt. Don’t. Don’t thrust it. Don’t thrust it in so deep, and slower”, which she agreed she might have said, although she was not sure[2]. However, she insisted she had said “‘no’ most of the time during the incident”[3].

8.  Following these events at the appellant’s home, he drove X to the MTR station for her to go home.  Whilst on the train, X posted a photograph on her Instagram account with the statement, “In this world, some people just enjoy raping girls”[4]. She posted another photograph of the inside of the train carriage[5] and, within hours, contacted a school teacher, referred to at trial as “Z”, saying that she wanted to talk to someone.  She asked Z for the definition of ‘rape’ and he began a dialogue with her, during which she confided in him that she had been raped.  Accordingly, Z persuaded her to report the matter to the police. 

9.  Subsequently, X also had a further dialogue with an Instagram follower called Sad Toefl, who had seen her uploaded photographs.  She told Sad Toefl through private written messages and an audio message, all of which were recorded and adduced as evidence, what had happened to her, with accompanying sounds of her crying and sobbing. 

10.  During the evening of the same day, X wrote in her diary, “As long as you used a dating app and went to someone’s home, there would be an expectation of sex”[6]. She also wrote, “I did shout ‘no’ and try to push him away”[7].

11.  A police report was made on 9 January 2022 and X was medically examined on the same day.  She was interviewed by a female police officer in the presence of a clinical psychologist on 20 January 2022.  The interview was video recorded and stood as her evidence-in-chief at trial, with X giving evidence before the jury via live television link. 

12.  The appellant was arrested on 22 January 2022. Under caution, he said that he did not rape anybody.  In two subsequent video recorded interviews, he maintained he had had sexual intercourse with X, but that it was with her consent.  X had never said “no”, nor did she resist, appear unhappy, complain then or afterwards, or cry. 

13.  PW2 was a consultant psychiatrist at Queen Mary Hospital, who had been treating X since September 2020, while PW3, a clinical psychologist, had examined X on 24 January 2022.  The evidence of PW2 and PW3 as to what they had observed of X’s condition, and what X had told them, was relied on by the prosecution as evidence of X’s distressed state and condition.

The defence case

14.  The appellant, who had a clear record, elected to testify but did not call any witnesses.  He agreed he had arranged for X to go to his home on the day in question, and that they had had sexual intercourse.  The appellant said that he had told X via Telegram beforehand that when she arrived they would not only play with his cat(s) but they would also do things a couple would do and, if they really did such things, he would take all safety precautions.  X agreed to his suggestion, saying that she wanted someone to love her and be good to her. 

15.  When X met the appellant at the MTR station on the day of the incident before going to his home, the appellant said she had run up to him and held his arm or hand.  When they got home, they played with his cat(s) for a few minutes before having intimate physical contact with each other.  During sexual intercourse, X made moaning noises intermittently and he would ask X how she was feeling and whether she was comfortable.  Nothing X said or did indicated to him that she was not consenting to sexual intercourse.  He had penetrated her wearing a condom.  He accepted that at an initial stage, X said that it was a bit painful, and had asked him not to thrust so deeply, and to go slowly.  The appellant complied with all of her wishes.  The appellant said that there was not a moment when he felt X was not willing to have sexual intercourse with him[8]. Nor was he aware of a risk that she was not consenting[9].  He had no reason to believe that X did not consent because she did not resist, she did not say “no” or ask him to stop, she was co-operative throughout and she had sexual intercourse with him in several different positions both lying down and standing up.  Moreover, she did not appear to be at all unhappy afterwards.

16.  Following intercourse, the appellant helped X on with her bra and jeans.  She then played with his cat(s) again, wearing only her bra without her top.  The appellant took photographs of X playing with his cat(s) in that state, which photographs were adduced in evidence[10]. 

Discussion before summing-up

17.  Before counsel delivered their respective closing speeches at the conclusion of the evidence, defence counsel requested the judge to give what he termed an “honest and reasonable belief direction”[11] to the jury in her summing-up.  Prosecuting counsel objected to this course, submitting that there was “no room” for the appellant to have been mistaken that X was consenting[12].

The summing-up

18.  In her summing-up, the judge directed the jury on the law relating to recent complaint, in respect of X’s conversation with Z and her subsequent exchanges with Sad Toefl[13]. In respect of the entries in X’s diary, the judge told the jury[14]:

“… She did write in her diary after she got home, ‘As long as you used a dating app and went to someone’s home, there would be an expectation of sex.’ She did not write she expected to have sex, she wrote this just after the previous sentence she wrote, ‘I was naïve, I fooled myself.’

Members of the jury, you might recall, she said in court, she blamed herself still today.  And you may believe her diary entries or you may consider whether her diary entries reflect that self blame.  She also wrote, ‘Was I raped?  What is rape?  I was such an idiot.  How can I blame anybody?  I did shout no and tried to push him away.’”

19.  As for certain matters in the appellant’s evidence, which were said not to have been put to X by defence counsel in cross-examination, and which were highlighted by prosecuting counsel in her closing speech, the judge directed the jury in the following terms[15]:

“You will recall that the prosecution listed five examples of his evidence that was not suggested or not put to X in order for her to be given an opportunity to either agree or disagree or reply or explain. For example, it was not suggested to X that he had told her that it would not be so painful when she got used to it. It was not suggested to X that she made groaning sounds intermittently or sometimes during sexual intercourse.

It was suggested that because they were recent inventions by the defendant in the witness box, defence counsel did not put them to X earlier on to comment on. The defendant’s evidence was that he denied the suggestion and he said he had told his lawyers earlier.

Yes, the prosecution is right. Those few examples were not put to X but the reality is defence counsel cannot put every detail to a witness or a complainant in cross-examination. So this does not affect the defendant’s credibility. Defence counsel did put the main thrust of the defendant’s case to X which was that she was a willing participant and gave consent to sexual intercourse, she was not raped.

However, it is for you as the judges of the facts to decide what facts you accept, what facts you do not accept and what witnesses you find credible and what witnesses you do not believe.”

Appeal against conviction

The grounds of appeal against conviction renewed by the appellant

20.  Apart from the two grounds of appeal on which leave has been granted by the Court, the appellant has renewed his application for leave to appeal against conviction on three other grounds, namely Grounds 2(v), 2(vi) and 4, as well as his appeal against sentence.  There was some confusion as to what grounds the appellant intended to renew because of the failure of original counsel to renumber the grounds of the Amended Perfected Grounds of Appeal, having deleted some and amended others.  Nevertheless, the appellant was permitted to make submissions on those grounds which had not been argued by his new counsel on the appeal, Mr Boyton, and he did so.  However, what he was not permitted to do was to make supplementary submissions on grounds already put forward and argued by Mr Boyton. 

21.  Where an appellant is represented by counsel to argue a specific ground (or grounds) of appeal, it is not open to the lay appellant to advance his own additional arguments on those grounds from the dock.  Not only would it be rather unwise, particularly where counsel may have crafted a difficult or delicate appeal, but it must be remembered that every appeal argued by counsel is preceded by full written argument, some of which is not advanced orally because counsel is content for it to be taken as read by the Court.  And that is also the understanding of the Court, unless the Court for some reason wishes a point to be addressed or developed.  It seemed to us that the appellant was anxious to amplify points which were either fully covered by counsel in either his written or his oral arguments, or which Mr Boyton may have deliberately not made for sound tactical reasons.  In any event, we were not prepared to let the appellant advance his own arguments on grounds already addressed by his counsel.  It should be pointed out that Mr Boyton had been granted an extension of the Practice Direction limitation of 15 pages in order to place a 20-page written argument before the Court and further tendered a 17-page written reply to the respondent’s written argument.  His submissions were very thorough and entirely proper.

22.  In the course of his own submissions, the appellant in fact strayed beyond the grounds he had indicated he wished to re-argue.  In particular, he argued his original Ground 2(ii), which concerned a complaint that trial counsel had failed to obtain the appellant’s agreement before signing the 2^nd and 3^rd sets of Admitted Facts. It was pointed out to him by the Court that all three sets of Admitted Facts had been signed by counsel and read out in open court to the jury, yet the appellant had made no demur on or off the record.  We have observed from our own interaction with the appellant that he is not the sort of individual who would stay silent if he did not agree with something being done at trial on his behalf, and he was more than capable of arguing with members of this Court, perfectly courteously, albeit persistently, when he disagreed with a proposition that had been put to him.  When it was pointed out that he had never sought to raise any complaint about the Admitted Facts in open court with the judge, he did not advance further oral argument on the matter.

23.  As for Ground 2(v), which concerned the alleged failure of trial counsel to call Dr Chow to give evidence for the defence, it was submitted that Dr Chow’s medical report constituted a previous inconsistent statement, capable of being used to discredit X, once properly proved.  However, it is to be noted that Dr Chow never actually examined X herself and her report was a compilation of reports from others who did.  Counsel at trial made an informed decision not to call this witness.  Having looked at her statement, there were matters which counsel might well have had concerns about revealing because they could have invited unwelcome cross-examination but, in any event, the witness could not speak as to any examination of X by herself.

24.  The appellant was also keen to complain (Grounds 2(vi) and 4) about his counsel’s failure to put matters, which it was suggested he should have put to X, particularly when prosecuting counsel highlighted these apparent failures to the jury.  However, as we have seen, the judge completely defused any criticism of defence counsel in her summing-up by instructing the jury:

“Yes, the prosecution is right. Those few examples were not put to X but the reality is defence counsel cannot put every detail to a witness or a complaint in cross-examination. So this does not affect the defendant’s credibility.”

Given that they were not matters of any great significance in any event, the judge evidently believed that the best way to take the sting out of the prosecution point was to direct the jury that not only was counsel unable to put everything to a witness, but the fact that he did not do so, “does not affect the defendant’s credibility”.  One must remember that jurors are not lawyers skilled in the rules of evidence, the principles in Browne v Dunn[16] or the intricacies of advocacy and cross-examination, and we have no doubt that they would have approached this issue exactly as they were instructed to by the judge.  The sensible way in which she dealt with the matter followed the advice of the Court in HKSAR v Chan Hing Kai[17] that:

“In such circumstances, every effort should be made to employ permissible means of rectifying the problem and avoid it becoming an issue at trial with any comment or direction as a matter of last resort.”

25.  We did not find anything of substance in the appellant’s submissions on the renewed grounds of appeal against conviction without leave and will say no more about them.  Instead, we turn to examine the grounds of appeal on which leave was granted.

The appellant’s submission on grounds with leave

Ground 1

26.  Mr Boyton limited his submissions to the two grounds of appeal on which leave had been granted.  Referring to HKSAR v Ma Kin Yiu[18] and this Court’s recent decision in HKSAR v Yip Ka Yiu[19], he submitted that the evidence of both X and the appellant as to how they had met, her friendliness when she first greeted the appellant outside the MTR station, X’s conduct during and after sexual intercourse and the absence of any force exerted by the appellant all constituted a sufficient evidential basis for the judge to give a genuine but mistaken belief direction to the jury.  It was further submitted that, since the basis of the appellant’s mistaken belief was objectively reasonable, the judge’s failure to give such a direction was capable of rendering the conviction unsafe and unsatisfactory.  

Ground 2

27.  Mr Boyton submitted that the judge’s ruling admitting the conversations between X and Sad Toefl was, on its face, contrary to the general rule summarised in HKSAR v Chak Kong Fai[20], where the Court held that, for the recent complaint exception to the hearsay rule to apply, there must be a third party called by the prosecution, whose testimony confirmed the receipt of the complaint.  The rule was consistent with the common law position set out in Kory White v The Queen[21].  Further, since Sad Toefl had not even been identified, and one could not know whether such a person in fact existed, the cases of HKSAR v So Tsz Yeung[22] and HKSAR v Y.H.M.[23] were distinguishable and any relaxation of the common law doctrine of recent complaint should not be endorsed. 

The respondent’s submissions on grounds with leave

Ground 1

28.  Mr Leung, on behalf of the respondent, submitted that the Court was not bound to direct the jury on a genuine but mistaken belief as to consent in each and every case involving a sexual offence.  Such a direction was necessary only where there was sufficient evidence or a special feature in the case that gave rise to a real issue of genuine but mistaken belief.  Mr Leung argued that not only did the appellant have much more life experience than X, but her evidence could have left no room for the appellant to have genuinely but mistakenly believed that she was consenting, when she had clearly and repeatedly said “no” and pushed the appellant away at various stages during their encounter.  Considering the evidence as a whole, the judge was correct not to give the direction contended for. 

Ground 2

29.  Mr Leung argued that the recent complaints made by X to Sad Toefl, though not made orally, were made via Instagram and were similar to the messages sent via WhatsApp in So Tsz Yeung.  It was submitted that, since the use of social media and electronic messaging to communicate has now become commonplace throughout modern society, the Court should not adopt an overly rigid approach to exclude recent complaints made in electronic form (which would be even more accurate and reliable in their form and content than complaints reported orally), even when the recipient does not give evidence or is unidentifiable.  The form of complaint must, of course, be found to be accurate and reliable.

30.  Mr Leung further submitted that given there had already been a recent complaint by X to her school teacher Z, the evidential value of X’s later complaint to Sad Toefl was minimal in supporting X’s consistency and would not have taken the prosecution’s case any further.  Even if the Court took the view that X’s complaint to Sad Toefl should not have been admitted, it would not have rendered his conviction unsafe and unsatisfactory.

Appeal against sentence

The appellant’s background and mitigation

31.  The appellant was 42 years old when he was sentenced.  He had been married in 2003, but divorced in 2021.  It was accepted that X had suffered post-traumatic stress as a consequence of the incident as described in a Victim Impact Assessment Report prepared on her.  The appellant’s counsel at trial urged the judge to consider a sentence in the range of 5 to 5½ years’ imprisonment. 

Reasons for sentence

32.  Having considered the decisions in Secretary for Justice v Lau Yun Leung[24] and HKSAR v Tsang Chiu Tak[25], and in light of the facts of the case, the judge adopted a starting point of 5 years’ imprisonment.  However, she further identified five aggravating features which she considered warranted an increase of the starting point by 3 years.  These are discussed at [54] infra.  The appellant was accordingly sentenced to 8 years’ imprisonment. 

33.  In renewing his application for leave to appeal against sentence, the appellant argued that the judge had wrongly taken into account one particular aggravating factor, namely that there had been penetration without a condom, given the state of the evidence at trial.  It was submitted that, on a fair reading of her evidence, X had not been sure whether or not there had been penetration of her by the appellant’s penis without a condom. 

The respondent’s submissions

34.  On this latter point, Mr Leung contended that, although it was put to X that after oral sex “he put on a condom and for the first time he penetrated you”, to which X answered “probably, yes”[26], it was later clarified in re-examination that the correct sequence should have been that she felt pain and something entering her vagina before the appellant put on a condom.  Given the whole of X’s evidence, there was a sufficient basis for the judge to make the relevant finding that the appellant had not worn a condom during sexual intercourse, at least in the initial stages. 

35.  Relying on HKSAR v Lam Kai Man[27], Mr Leung submitted that given the aggravating factors identified by the judge, the sentence of 8 years’ imprisonment in the present case could not be said to be manifestly excessive. 

Discussion

(Conviction)

36.  It is Mr Boyton’s submission that given the possibility and scope of mixed messaging from X’s actions and behaviour, the judge should have given the jury a specific direction that if the appellant may have been labouring under a genuine but mistaken belief that X was consenting, he should be acquitted.  Reliance was said to be placed in particular on the recent decision of this Court in Yip Ka Yu, where the judge’s failure to give such a direction, against the background and state of the evidence in that case, had resulted in the applicant’s conviction for rape being quashed.  It was argued that the facts in the present case provided a greater evidential basis for a genuine but mistaken belief direction than those revealed in the case of Yip Ka Yu.

37.  We do not agree that the two cases were similar or that what was considered a necessary direction in the case of Yip Ka Yu was a relevant or necessary one in the present case.  Indeed, we consider that a comparison between that case and this provides a useful illustration of when such a direction is necessary and when it is not.  As is made clear in all the authorities, much will depend on the facts, circumstances and context in which such a direction is sought.

38.  In Yip Ka Yu the complainant and the applicant had met by accident at Siu Sai Wan promenade on Hong Kong Island late one night, when he was fishing and she was singing karaoke with her friends.  What subsequently developed from this chance encounter was described by the Court in Yip Ka Yu as follows[28]:

“The applicant and X struck up a conversation and ultimately exchanged contact details; they thereafter contacted each other by Instagram, on an almost daily basis. We have read the text of their exchanges and while they are not necessarily intimate, they are certainly personal and suggestive of two young people who are obviously interested in developing a closer friendship with each other. There can be little doubt that X was flattered by the applicant’s attentions and there are questions from her to him about his football and fishing, while he asked her about the songs she liked to sing. Both were obviously keen to meet up again.”

39.  The background in Yip Ka Yu was therefore of a normal encounter between two young people, who seemed genuinely interested in befriending each other, and who made subsequent arrangements to pursue that friendship.  The applicant in Yip Ka Yu did not lure an unsuspecting female, whom he had only ever encountered in a chat room or on a social media platform, and who was 25 years his junior (although he claimed the difference was only 11 years), to his home on the pretext of playing with his cat(s), when he had every intention of having sexual intercourse with her.

40.  More fundamentally, X never conceded in evidence, unlike the complainant in Yip Ka Yu, that the appellant might reasonably have thought from her actions and her conduct that she was consenting to sexual intercourse; nor was there any room for that possibility. Nor was there any doubt about the act of intercourse, as there was in Yip Ka Yu, where the complainant told the police she was “not 100% sure” that the applicant had penetrated her with his penis[29]. It was the appellant’s case, unlike the applicant in Yip Ka Yu, that he had full sexual intercourse with X.  The appellant before us gave evidence that X had consented; X, by contrast, gave repeated evidence that she had not. There was a clear issue of consent (or, rather, lack of consent) for the jury to determine.

41.  Furthermore, there was no dating App or financial arrangement involved in the case of Yip Ka Yu, the meeting between the applicantand the complainant having occurred entirely by chance, with the relationship appearing to be a genuine one.  By contrast, the appellant offered, before he had even met X, to give her HK$1,000 per week so that she would treat him like an older brother or boyfriend.

42.  The appellant before us gave evidence that X consented to sexual intercourse and at no stage did she say “no”, or appear unwilling, or ask him to stop.  Consent (or lack of consent) was therefore the only and obvious issue for the jury, which they unanimously resolved against him. The jury were fully directed in accordance with the Specimen Directions on the issue of consent, and further reminded that[30]:

“The defence say X did not say no at any time and did not physically resist him, so he did not see any risk nor was he reckless.” (Emphasis supplied)

43.  The appellant’s case, therefore, was that not only was he not reckless in the sense of appreciating the risk and pressing on regardless, but he did not even see a risk that X was not consenting.  The jury were directed, inter alia, that if they were not sure that the appellant realised she was not consenting, they must acquit[31].

44.  In Ma Kin Yiu, also relied upon by the appellant, the facts were entirely different and involved an applicant and complainant who were regular sexual partners.  Acknowledging from the facts and background of the case that “there was room for such a direction… because the applicant might, on the basis of his sexual experience with the victim in the past and on the day in question, have mistakenly thought that she consented to buggery”[32], the Court nevertheless went on to say[33]:

“We wish to stress that we consider it necessary to give a direction on ‘genuine belief’ in the present case solely on the basis of the facts of the case.” (Emphasis supplied).

45.  In our judgment, the present appeal was not a case on its facts justifying a direction as to a genuine but mistaken belief in consent.  Indeed, we consider that it would only have served to complicate what was a simple, stark issue for the jury.  We accordingly reject the first ground of appeal.

46.  In relation to the second ground of appeal, one of the important considerations in this area of the law is that the recipient of a recent complaint from a victim or complainant should give evidence as to the fact and content of the complaint.  As Lord Hoffmann (now Lord Hoffmann NPJ) explained in Kory White, when discussing the rule against proof of previous self-consistent statements[34]:

“There are two well-known common law exceptions to this rule. The first permits proof of complaints in sexual cases. If a complaint is made at the first reasonable opportunity after the offence, it may be proved in evidence to show the complainant’s consistency and to negative consent. But for this purpose it is necessary not only that the complainant should testify to the making of the complaint but also that its terms should be proved by the person to whom it was made.” (Emphasis supplied)

47.  Lord Hoffmann NPJ went on to address the issue which arose in that case concerning the fact that the recipients of the complaints did not give evidence[35].  He explained that “the complainant’s own evidence that she made a complaint cannot assist in either proving her consistency or negating consent” and he referred, with approval, to a judgment of the New Zealand Court of Appeal in R v Kincaid[36], where Casey J held that a complainant’s own assertion that she complained does not assist the jury in assessing her “truthfulness” and “without independent confirmation of what she said … takes the jury nowhere in deciding whether she is worthy of belief.” (Emphasis supplied)

48.  It is true that Sad Toefl was not called as a witness at trial to give evidence as to what X had told him.  However, the recent complaint made to him by X was captured on various screen-shots and a screen-recording (Exhibits P10, P10A, P10B, P10C and P10D), so there could be, and was, no concern about what X had actually said to him.  Sad Toefl never met X and the only communication between them was what was recorded electronically on X’s telephone as having been sent to him.  Had Sad Toefl given evidence, all he could have said was what the screen-shots and screen-recording reflected. Moreover, the screen-shots and screen-recording of X’s voice message on her telephone to Sad Toefl were the subject of Admitted Fact evidence to the effect that “[t]he “accuracy, authenticity and admissibility of Exhibits P10, P10A, P10B, P10C and P10D are not in dispute”[37].

49.  In So Tsz Yeung, the prosecution relied on WhatsApp messages from the complainant to two of her male friends, who were likewise not called to give evidence.  It was nevertheless accepted that the messages had in fact been sent.  The Court observed[38]:

“Even if X’s boyfriends Lau and Cheng and the man whose name was unknown had come forward to testify, at most what they would have said was a repetition of the WhatsApp messages which X sent to them. Their evidence would not add anything to bolster the consistency of X’s evidence or to negate any evidence about consent.”

50.  As Mr Leung has reminded us, the world is a very different place today, in which social media communications and electronic recordings are now both commonplace and easily made, far more so than they were 28 years ago when Kory White was decided.  That is not to say that Kory White no longer represents the law: however, when there is an independent and accurate record of what the complainant has said, as there plainly was in this case, the concern about proving the actual terms of the complaint, as expressed by the Privy Council, is removed.  

51.  This Court is nevertheless bound by So Tsz Yeung, which cannot be said to have been wrongly decided.  Moreover, the decision plainly reflects modern conditions and accords with common sense.

52.  In any event, at the end of the day, the argument is somewhat otiose.  The fact is that there was an earlier complaint in time by X via Instagram to her school teacher Z (a fact itself mentioned in X’s later exchanges with Sad Toefl[39]). That complaint and its terms (Exhibit P9, P9A and P9B) were also the subject of Admitted Fact evidence as to their accuracy and authenticity[40].  So we know X made a recent complaint to her school teacher before the complaint to Sad Toefl. In our judgment, the complaint to Sad Toefl added nothing to the case and, even if ordinarily, Sad Toefl should have been called to give evidence, his absence was neither here nor there when the record of what X told him was not disputed.  This ground too must fail.

53.  For the above reasons the appeal against conviction is dismissed.  We turn now to the appellant’s appeal against sentence.

(Sentence)

54.  The judge conducted a very careful sentencing exercise and her assessment of the evidence is entitled to particular consideration, she having heard and seen the witnesses give evidence.  The aggravating factors in the case which the judge identified were:

(i)  The young age of X;

(ii)  The 25-year age discrepancy between X and the appellant;

(iii)  The element of planning and premeditation in luring X to the appellant’s home with the offer of money and under the pretence of playing with his cat(s);

(iv)  The significant mental trauma which the incident has caused X; and

(v)  The non-use of a condom by the appellant, at least at the initial stage of penetration.

We would not in the normal course have dissented from any of the aggravating factors the judge identified as cumulatively justifying a 3-year increase in the starting point of 5 years’ imprisonment.  However, we have become concerned in argument with the last of these factors. 

55.  Since this matter is disputed and forms the basis of the application for leave to appeal against sentence, and having read X’s evidence again carefully, it does seem that in cross-examination, X described a sequence in which penetration by the appellant’s penis may only have taken place after the appellant had put on a condom[41].  Certainly, that is how prosecution counsel must have understood the cross-examination because that is how she summarised the effect of it to X in re-examination; X initially confirmed that that is what she had indeed said[42].  It is true that there was then some further clarification in re-examination when X talked about feeling pain before the condom was put on; nevertheless, she still maintained, “I don’t remember that before he put on his condom whether he had thrust in or not”[43].

56.  Having read the transcript, we have some doubt whether the evidence can conclusively be read as saying that the appellant did enter X with his penis at the beginning of their encounter without a condom. All we can say is that he may have done: the evidence is not entirely clear. And, to be fair to the appellant, the fact is that he did, without prompting, put on a condom after some initial sexual activity with X.

57.  For this reason, and for this reason alone, we consider that the sentence may be said to be manifestly excessive and that the appeal against sentence should be allowed.  Accordingly, we are prepared to reduce the sentence but not to any great extent, since the other aggravating factors relied upon by the judge are equally, if not more, significant.  In the circumstances, the sentence will be reduced from 8 years’ imprisonment to 7 years and 6 months’ imprisonment.

Disposition

58.  The appellant’s appeal against conviction is dismissed, but his appeal against sentence is allowed to the extent that his sentence will be reduced for 8 years’ imprisonment to 7½ years’ imprisonment.

Post-script

59.  We wish to add some additional observations concerning the dangers posed by social media and networking applications, because this case, like a growing number coming before the courts, illustrates how easily a young, inexperienced person can be exposed to grave harm through such online platforms. 

60.  The complainant, who was barely 16 years of age at the time of this incident, met a much older stranger through a dating application. From behind the veil of anonymity and seeming normality of an online profile, he misrepresented his age, concealed his real identity and true intentions, and used the platform to entice her into his home, where the rape subsequently took place.  As in other cases which have come before the courts, the incident demonstrates how readily a young user can be contacted, groomed and lured into a private setting by an older stranger.  This pattern of using online anonymity and apparent familiarity to target vulnerable users is now widely recognised, not only in cases of sexual offending, but also in fraud, blackmail and other serious criminal offences.

61.  It is a matter of grave concern that, even after repeated public warnings, young people continue to be placed in such danger. Digital technology has transformed how people communicate and form relationships, but every new opportunity for connection brings a corresponding increase in opportunities for online abuse and exploitation.

62.  Owners and operators of social media, dating applications and other platforms facilitating contact between users cannot treat the occurrence of serious criminal conduct on their services as a matter solely for law enforcement and government agencies.  They play a central role in creating and sustaining the online environment in which such crimes can occur, and they are especially well placed to reduce the risks, especially for minors and other vulnerable users.  Such providers should ensure clear and prominent age-related safeguards; require and, where practicable, verify truthful basic information; provide conspicuous and effective warnings directed at young and vulnerable users about the risks of meeting or dealing with strangers, particularly in private locations; maintain simple and accessible mechanisms for reporting suspicious, abusive or criminal behaviour; and ensure that reports trigger effective and transparent responses including, where appropriate, prompt cooperation with law enforcement agencies.  It should not be possible for a user credibly accused of serious misconduct simply to disappear and re-emerge under a new account without consequence.

63.  Just as physical spaces and products are accompanied by warning signs and safety information alerting the public to known hazards, comparable safeguards should be expected in the online environment where young people now spend so much of their time.

64.  A similar concern was addressed in HKSAR v Lau Cheung-fai[44], where the court highlighted how social media and networking sites create new opportunities for serious offending against the young and noted the absence of specific regulatory obligations on platform operators.  The court observed that, beyond general offences such as section 161 of the Crimes Ordinance, Cap 200, (access to a computer with criminal or dishonest intent), there were no clear statutory or administrative duties on platform owners, criticised the limited safeguards then in place, including the ease with which banned users could simply re-emerge under new accounts, and stressed that operators of social media and networking platforms must not treat offending facilitated by the Internet as a matter solely for law enforcement.  Such operators share a responsibility for prevention of crime, effective user warnings, robust reporting mechanisms and cooperation with the authorities. 

65.  It is plain that the increasing incidence of serious offences, sexual and otherwise, facilitated by online contact is a complex and evolving problem that cannot be addressed by judges alone.  It requires sustained and coordinated attention not only from legislators, the courts and law enforcement authorities but from schools and social services and, critically, from the providers of the very platforms through which these harmful encounters and transactions are initiated, so as to reduce, as far as possible, the risk of further victimisation of young and vulnerable users online[45].

[1]  Macrae VP.

[2]  Appeal Bundle (“AB”), p 447G-H; p 44H-I.

[3]  AB, p 447I-J.

[4]  AB, p 509.

[5]  AB, p 510.

[6]  AB, p 437B-C.  Original Chinese version: “玩得交友App，上埋屋企就預咗會上床”.

[7]  AB, p 455L-M.  Original Chinese version: “不過我有嗌唔好，都有試過推開佢”.

[8]  AB, p 257F-G.

[9]  AB, p 254S-T.

[10]  AB, pp 604-605.

[11]  AB, p 465I-J.

[12]  AB, p 470G-I.

[13]  AB, pp 36F-38H.

[14]  AB, p 32C-J.

[15]  AB, pp 51N-52F.

[16]  Browne v Dunn (1893) 6 R 67.

[17]  HKSAR v Chan Hing Kai [2020] 1 HKLRD 1082, at [46].  See also HKSAR v Leung Wai Kit [2023] 2 HKLRD 799.

[18]  HKSAR v Ma Kin Yiu [2008] 3 HKLRD 656.

[19]  HKSAR v Yip Ka Yu [2025] 3 HKLRD 611.

[20]  HKSAR v Chak Kong Fai [2022] 1 HKLRD 370.

[21]  Kory White v The Queen [1999] 1 AC 210.

[22]  HKSAR v So Tsz Yeung [2017] 4 HKLRD 233.

[23]  HKSAR v Y.H.M. [2019] 2 HKLRD 814.

[24]  Secretary for Justice v Lau Yun Leung [1999] 3 HKLRD 289.

[25]  HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427.

[26]  AB, p 448F-H.

[27]  HKSAR v Lam Kai Man [2020] 4 HKLRD 107.

[28]  Yip Ka Yu, at [6].

[29]  Ibid., at [14].

[30]  AB, p 35N-P.

[31]  AB, p 35P-Q.

[32]  Ma Kin Yiu, at [18].

[33]  Ibid., at [20].

[34]  Kory White, at 215G-H.

[35]  Ibid., at 215H-216C.

[36]  R v Kincaid [1991] 2 NZLR 1, at 9.

[37]  AB, p 15, at [6].

[38]  So Tsz Yeung, at [42].

[39]  AB, p 497.

[40]  AB, p 9 at [28]-[32].

[41]  AB, p 424B-S.

[42]  AB, p 456H-J.

[43]  AB, p 459D-E.

[44]  HKSAR v Lau Cheung-fai, HCCC 367/2015, 16 March 2018, at [36]-[47].

[45]  See the Hong Kong Law Reform Commission’s Report on Cyber-Dependent Crimes and Jurisdictional Issues, January 2026, and the comparative developments in United Kingdom (the Online Safety Act 2023) and Australia (the Online Safety Act 2021).