|
CACC 186/2024
[2025] HKCA 272
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 186 OF 2024
(ON APPEAL FROM HCCC NO 272 OF 2023)
_______________
| |
HKSAR |
Respondent |
| |
v |
|
| |
EKSTROM Patrik Tobias (許大熊) |
Applicant |
_______________
| Before: |
Hon Zervos JA in Court |
| Dates of Hearing: |
12 March 2025 |
| Date of Judgment: |
12 March 2025 |
________________
J U D G M E N T
________________
1. On 22 August 2024, the applicant was convicted of one count of rape (Count 1) and one count of non-consensual buggery (Count 2), contrary to sections 118(1) and 118A of the Crimes Ordinance (Cap 200) respectively, after trial before Recorder Derek Chan, SC, (the judge) and a jury.
2. On 11 November 2024, the Judge sentenced the applicant to a total of 7 years’ imprisonment.
3. The applicant applies for leave to appeal his convictions and bail pending appeal.
4. There was no dispute that the applicant and X had vaginal and anal sex in the early hours on 28 October 2022. The applicant was married with children and looked after an elderly uncle. X worked as the domestic helper for the applicant and his family. In addition to X, the applicant also employed a driver, who had living quarters at his home.
5. On the night before the incident, the applicant’s wife and children had left him and travelled abroad. X said that the applicant came home in the early hours on 28 October 2022. He demanded that they have sex and threatened her. He dragged her to his bedroom where he undressed her and forcibly had sexual intercourse with her followed by anal intercourse. He also demanded that X perform oral sex on him but she refused. He stopped when X said she was hungry and wanted dinner.
6. The applicant said that the sexual relations with X were consensual. He said that X came to his room on her own volition to comfort him after his wife and children had left. He admitted that he had sexual relations with X on two previous occasions in July 2022, which X had initiated. On one of the occasions, she provided lubricant so that he could perform anal sex on her. She asked him to assist her financially by advancing four months’ salary to pay off a loan, which he did. He also gave X HK$1,000 and HK$3,000 respectively after each occasion they had sexual relations. The applicant said that X later asked for a further loan.
7. The applicant said he felt guilty after he had sexual relations with X and asked her to leave the next day. She threatened to tell his wife. To avoid any confrontation, the applicant then drove to his office. He claimed that he panicked about X telling his wife of their affair and he sent series of messages to X, requesting her to come back. He also tried calling her several times. He transferred HK$15,000 to X’s bank account so that she would not speak to his wife.
8. X sent four voice messages to the applicant’s wife between 5:25 am and 5:34 am on 28 October 2022, in which she spoke in English about her dealings with the applicant and asking for her help. There was an issue as to whether these messages constituted recent complaints. After hearing submissions on the matter, the judge ruled that the four messages constituted recent complaints.
9. At about 8:00 am on 28 October 2022, X went to the Wanchai Police Station and reported being raped by the applicant. A medical examination of X revealed no external bodily injuries or identifiable injuries to her vagina or anus.
10. Ms Elizabeth Herbert, for the applicant, advances four grounds of appeal against his convictions. Mr Antony Leung and Ms Janice Kwan, for the respondent, oppose the leave application. I will deal with each ground in turn.
11. Ground 1 complains that the judge failed to give an uncharged act direction to the jury on the allegation raised by X during her testimony that the applicant had told her that he had sexual relations with the previous domestic helper, which she regarded that he had raped her.
12. In her examination-in-chief, X said that she was very scared when the applicant told her he wanted to have sex with her and her daughter, as well as telling her that he had also “raped” the previous helper, who was X’s friend.[1] There seemed to have been some discussion about X’s friend returning to work as a domestic helper and this had been explored in evidence. The subject of X’s evidence regarding the allegation that the applicant had sexual relations with the previous helper was revisited in cross-examination. She repeated that the applicant had told her that he had “done such thing” or “done something like that” with the previous helper before and she became really nervous.[2]
13. When the applicant was cross-examined, it was put to him that he tried to get away with it again with X as he did with the previous helper.[3]
14. In his summing-up, the judge summarised the evidence regarding the previous helper but gave no directions to the jury as to how to approach this evidence, particularly as an uncharged act.[4]
15. The respondent acknowledges that reference was made in the course of the trial that the applicant raped his previous helper and no direction was given by the judge in respect of this uncharged allegation. It is argued that this would not have caused any unfair prejudice to the applicant because the defence raised no objection to the admissibility of this evidence, and it appeared that it was a tactical decision by the defence to let this matter stand to attack X’s credibility.
16. I am satisfied that this ground is reasonably arguable.
17. Ground 2 contends that the judge erred in law in ruling the four voice messages were admissible as evidence of a recent complaint. This was an issue at trial and the judge gave a very detailed ruling on the matter. Two points are made in support of this ground. First, it is submitted that the messages were not capable of forming evidence of recent complaint because of their content. X did not make any allegation of rape or sexual relations with the applicant. Secondly, the messages were not sufficiently consistent with X’s evidence to be admissible as recent complaint evidence. Reference is made to HKSAR v Chak Kong Fai [5]; R v S [6].
18. I consider this ground to be reasonably arguable.
19. Ground 3 asserts that there is a lurking doubt with the applicant’s convictions. The points raised in support of this ground were comprehensively dealt with by the judge in his ruling on the defence application for a certificate under section 82 of the Criminal Procedure Ordinance (Cap 221). The judge provides a detailed analysis of the points and the relevant evidence in his ruling, which answers this ground.
20. There is no substance to this ground of appeal.
21. Ground 4 complains that the convictions were unsafe and unsatisfactory. This ground essentially relies on the previous grounds but I do not consider that in its own right it is reasonably arguable.
22. For the reasons I have given, I grant the applicant leave to appeal his convictions on Grounds 1 and 2, and refuse him leave on Grounds 3 and 4.
| |
(Kevin Zervos) |
| |
Justice of Appeal |
| Mr Antony Leung, SPP and Ms Janice Kwan, SPP of Department of Justice, for the respondent |
| Ms Eliszabeth Herbet, instructed by Lee Law Firm, for the applicant |
[1] Appeal Bundle (AB), 132I and 139B.
[2] AB, 196K, 253K-L, 254U, 255B, 265T, 266A and 267H-L.
[3] AB, 326Q-S and 337F-G.
[4] AB, 41K-42C, 52I-R.
[5] HKSAR v Chak Kong Fai [2022] 1 HKLRD 370, at [147].
[6] R v S [2004] 1 WLR 2940, at [30].
|