HKSAR v. CHOI CHAI HIM

[English translation – 英譯本]

CACC 42/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 42 OF 2009

(ON APPEAL FROM HCCC NO. 174 OF 2008)

________________________

________________________

________________________________

REASONS FOR JUDGMENT

_________________________________

Hon Cheung JA (delivering the reasons of judgment of the Court):

1.  The Applicant was charged with one count of rape, contrary to section 118(1) of Crimes Ordinance, Cap. 200. He was tried before Tong J sitting with a jury and was convicted of the charge by the jury by a majority of 5 to 2. The Applicant was sentenced to 7 years’ imprisonment. The Applicant applied for leave to appeal against the conviction. Having heard his application, this Court dismissed it. The Reasons for Judgment are as follows.

Facts of the case

2.  The Applicant was charged with raping the victim at his residence on 27 February 2008. This Court adopts the outline of the Defence’s and the Prosecution’s case as submitted by Mr. Suen Kam Hee, Counsel for the Applicant.

Prosecution case

3.  The victim was a 19-year-old woman when the incident happened. She was educated to Form 4 and worked as a clerk. Two or three years before the incident, she came to know the Applicant on the internet. The Applicant, then 33, was a police constable who lived in the Disciplinary Force Quarters. They had phone conversations. On the day of the incident, the victim asked the Applicant to help her fix her electronic game machine. The Applicant told the victim to come to his residence which she did as scheduled. After the Applicant had fixed the victim’s electronic game machine, he demonstrated to her how to use it. At that time the victim was sitting on the sofa in the living room, the Applicant said it was cold so he covered himself with a quilt and slept in the sofa. He was sleeping behind the victim who continued to play electronic games. A while later, the Applicant embraced the victim’s waist with his hands, but she pushed him away. The Applicant then caressed her thighs, but she pushed him away again. The victim wanted to get up but the Applicant pulled her down.  The Applicant then fondled her breasts and other parts of the body over her clothes. The victim told him not to do so but the Applicant ignored her and went on to push her on the sofa, pressing against her with his legs. She wanted to push him away and turn around, but as the Applicant was truly very heavy (the Applicant was 6 feet tall and 100 kilograms in weight whereas the victim was petite), she was not successful. The Applicant forcibly kissed her neck and face. He also removed her bra. Then the Applicant carried her into the room and put her onto the bed. The victim wanted to leave but was pinned down by the Applicant. She was all along crying but she did not say anything. The Applicant pinned the victim down with his legs, removed her clothes as well as his own and kissed her body. The victim said no, but the Applicant told her not to be afraid. The victim wanted to push him away and to get dressed but could not do so because the Applicant was lying on top of her. The victim was all along crying. The Applicant inserted his fingers into the private parts of the victim and then he inserted his penis into her private parts. When the victim put up resistance, his penis fell out. The Applicant again inserted his fingers into the private parts of the victim, and then he inserted his penis. The victim felt a bit of pain. Then the Applicant ejaculated outside her body. During the whole course, the victim was all along crying and she also told the Applicant not to do it. The Applicant asked the victim why she cried, but she did not answer him. Afterwards, the Applicant went to the toilet to clean his body. The victim put on her clothes and when the Applicant came out of the toilet, she went in to phone her friend (PW2). But the victim was only crying over the phone and could not say anything. She therefore sent a message to PW2 to say that she “had been raped”. PW2 returned her call to ask how she was doing and they arranged to meet at the MTR. When the victim was about to leave, the Applicant said to her,

“Sorry, you may hit me or scold me. Don’t call the police. I’m married with a son. I can’t afford to lose my job.”

4.  The Applicant also asked her if she would ‘treat’ him as a friend. The victim said she did not know, but since the Applicant was blocking the doorway, the victim perfunctorily said ‘yes’ and left. While she was taking the MTR, the victim called another friend (PW4) to tell him that she had been raped and asked him whether she should report the matter to the police. PW4 indicated that she should call the police and told her not to cry. When the victim reached the MTR station, she called PW2. PW2 suggested that she should first notify her boyfriend (PW3). After PW2 and the victim met, the victim called PW3 to tell him what happened. Then the victim and PW2 went to make a report at the police station.

5.  When the victim gave evidence, she added that the Applicant performed oral sex on her and required her to perform the same for him. She also admitted that when they chatted over the internet and the phone, they had built up friendship. On the day of the incident, she voluntarily went up to the Applicant’s residence. When she was asked that if she was unwilling to have sexual intercourse, she would have had ample opportunity to escape, shout, flee or resist. The victim explained that she did not do so because she was restricted by the Applicant whom she regarded as a friend, and that the Applicant should know that it was wrong for him to do so. The victim agreed that the Applicant neither used violence on her nor threatened her. She also agreed that in her witness statement to the police, she did not mention that the Applicant performed oral sex on her or that she started crying when she was on the sofa.

6.  PW2, PW3 and PW4 confirmed the testimony of the victim. PW6 was a woman sergeant who testified that when a statement was taken from the victim, she was calm and gave a clear account of what happened. The victim was properly dressed at that time with no superficial injury and did not appear to be uncomfortable or frightened. The victim did not tell her that she started crying when she was on the sofa. The victim also mentioned that the Applicant had put his arm around her shoulders and she did not resist.

Defence case

7.   The Applicant elected to give evidence. He first regarded the victim as an ordinary friend but after the victim talked to him about some private matters and relationship problems, the Applicant took her as a bosom friend. He thought that she had a tender feeling toward him, so he asked her to come to his home. After he helped the victim to fix her electronic game machine, they played it together. He even grabbed her hands to teach her how to play it. The victim did not say or do anything to object or resist. The Applicant said that was a signal to indicate that he could go one step further. So he put his hands on her waist and shoulders. The Applicant still did not object or resist, so he went on further and slept behind the victim and touched her body with his hands. At that time the victim did not cry. She was simply shy and murmured, “Oh, no”. But her facial expression showed that she was not rejecting him. Then the Applicant carried the victim to his room and had sexual intercourse with her. The victim never put up any resistance. The Applicant said that if the victim cried or raised objection, he definitely would not have done it. When the Applicant carried the victim, she even put her arms on his shoulders. When they had sexual intercourse, not only did the victim raise no objection, she even spread her legs to let him in and they had the sexual intercourse in different postures. The Applicant said that he did not pin the victim down with his legs, and that should he have done so, it would be very difficult to have the intercourse. The Applicant said that after he ejaculated, he went to clean up in the toilet. When he came out, the victim had already dressed herself and showed no special facial expression. When the victim came out from the toilet, she asked the Applicant if he had any money. The Applicant said he did not have any. Then the victim turned around quietly and left hurriedly. The Applicant did not apologize to her and did not ask her not to report to the police. Throughout the whole incident, the victim never said that she did not want to have sexual intercourse with him and she never cried. After the victim left, he called her three times but the victim did not answer his calls. The Applicant emphasized that he had sexual intercourse with the victim with her consent. The Applicant said that if he had subdued the victim by force, there would be injuries or swellings on the victim. He denied that he had sexual intercourse with the victim knowing that she was not voluntary. He also denied that he was reckless as to whether the victim consented to the sexual intercourse and had the intercourse with her forcibly.

First Ground of Appeal

8.  The first Ground of Appeal is that Tong J did not follow the Judiciary’s standard directions when he directed the jury on the elements of the offence. When giving his directions to the jury, Tong J said that for convenience sake, he would suggest that they should adopt the following six steps in their deliberation of the verdict. However Tong J emphasized that it was only a suggestion and the jury could decide for themselves the appropriate way to reach the verdict. The six steps are listed as follows:

“Firstly, if you believe the evidence of the defendant or you cannot rule out the possibility of what he said, you should return a not-guilty verdict. Although the defendant never said that he had verbally asked (the victim) if she agreed to the sexual intercourse, if the acts or response of (the victim) at that time were as what the defendant had said or described, it would be obvious that (the victim) had by her body language indicated that she consented to the sexual intercourse. Secondly if you don’t accept all the evidence given by the defendant, you have to rely on the part of his evidence that you accept to assess whether (the victim) consented to the sexual intercourse. Thirdly, if you don’t believe the evidence of the defendant at all, you cannot find the defendant guilty right the way. You still have to consider the prosecution evidence, mainly the evidence of the (victim), to decide whether the charge can be proved beyond reasonable doubt. Fourthly, if you don’t believe that (the victim) is a credible and reliable witness, you have to give the benefit of the doubt to the defendant even if you don’t believe the defendant either. The reason is that at the end of the day the prosecution fails to prove the charge beyond a reasonable doubt. Fifthly, if you accept that (the victim) is a credible witness and that her evidence is also reliable, you may consider on that pre-requisite whether (the victim) was really unwilling to have sexual intercourse, and that the defendant knew or was reckless as to whether (the victim) consented to the sexual intercourse. Sixthly, in any event, if you conclude that the defendant subjectively had the genuine belief that (the victim) consented to the sexual intercourse, or if you cannot rule out the possibility, you have to find the defendant not guilty.”

9.  Mr. Suen submitted that it was not easy for the jury to remember those six steps. Unless they wrote them down, otherwise they would find it hard to understand the content and arrive at the appropriate verdict. Mr. Suen said that it was difficult to fully understand the crux and key issues within a short time. Those steps engaged forward and backward reasoning at the same time which would inevitably cause confusion. The jury would be left at a loss as to what to do and could not focus on the core issues. The standard jury directions referred to by Mr. Suen can be seen in the judgment of HKSAR v Tang Siu Fung & Another (CACC 418/2008, date of reasons for judgment: 25 January 2010), at paragraph 31:

“Before you may convict the accused, you have to be sure of each of the following matters:

1. that the accused had sexual intercourse with Ms [X];

2. that at the time of that act of sexual intercourse, Ms [X] did not consent to it; and

3. that at the time of the sexual intercourse either the accused knew that Ms [X] did not consent, or was reckless as to whether she consented to sexual intercourse. The accused was reckless as to whether Ms [X] consented to sexual intercourse if you are sure that the accused did not know and did not care whether she was consenting or not and carried on regardless. In other words, his state of mind was that he could not have cared less.

If it is or may be the case that the accused believed that she was consenting, then he cannot be guilty of rape. It is not for the accused to prove that he believed that she was consenting; rather, it is for the prosecution to prove, so that you sure, that he did not believe that she was consenting to sexual intercourse. And what if he held that belief but was mistaken? If it is or may be the case that he held a genuine but mistaken belief that she was consenting, then you must acquit him. In deciding whether or not he believed or may have believed that she was consenting, you should have regard to the existence or absence of reasonable grounds for such a belief, and to all the surrounding circumstances. But the question must always be whether you are sure that he himself did not hold such a belief.”

10.  Mr. Suen submitted that the standard directions were simpler and easier to comprehend, and could help the jury to focus better on the issue as to whether the Applicant held the belief that the victim consented to the sexual intercourse. That was the fundamental issue in the present case. If Tong J had adopted the standard directions instead of the six steps put forward by him, the jury would be at a better position to arrive at the right verdict.

11.  Mr. Suen conceded that there was nothing wrong with the content of the six steps per se. We do not agree that the six steps set out by Tong J would complicate matters or confuse the jury. In fact the six steps mentioned by Tong J would often appear at different stages of a judge’s speech when he was giving directions to the jury. What Tong J did was merely to deal with the relevant directions together. The first three of the six steps concerned solely the Applicant:

Firstly, where the jury accepted the evidence of the Applicant in its entirety;

Secondly, where they only accepted part of the Applicant’s evidence;

Thirdly, where they did not accept the Applicant’s evidence at all.

Tong J gave directions to the jury as to what to do under those three scenarios. Such were the questions that members of the jury, being laymen without legal knowledge, would often encounter in their deliberation of the facts of the case.  

The fourth and fifth steps concerned the victim and the Applicant. The fourth step referred to the situation where the jury neither accepted the evidence of the victim nor that of the Applicant. In that case, it showed that the prosecution had failed to prove the offence up to the standard required, namely beyond a reasonable doubt.

The fifth step referred to the situation where the jury believed the evidence of the victim. Under such circumstances, Tong J reminded the jury how they should approach the crux of the matter, namely whether the victim consented to the sexual intercourse.

Tong J reinforced again in the sixth step that if the jury accepted the subjective belief of the Applicant, they had to find him not guilty.

12.  Therefore, we do not think that there was any irregularity in Tong J’s directions which guided the jury to approach the facts by six steps. As for the first part of the standard directions, Tong J had directed the jury on the basis of the standard directions in the following terms:

“The legal definition of rape is that: (1) A man had sexual intercourse with a woman but she did not consent to it at the time of the intercourse; (2) At that time the man knew that she did not consent or was reckless as to whether she consented to the intercourse.

          The law also requires that at a trial of an offence of rape, the jury when deciding whether a man believed a woman consented to the sexual intercourse had to take into account other relevant mattes, including whether the man had reasonable grounds to believe that the woman consented to the sexual intercourse.”

13.  Tong J clearly explained to the jury that the Applicant in the present case admitted that he had sexual intercourse with the victim, and that the jury should focus on whether the Applicant knew that the victim did not consent or was reckless as to whether the victim consented to the sexual intercourse. In this regard, Tong J gave further detailed directions:

“… As to whether (the victim) consented to the sexual intercourse and whether the defendant knew that (the victim) consented or that he knew that she did not consent to the sexual intercourse, you have to make a finding on the strength of the evidence. If at the end of the day you think that (the victim) consented to the sexual intercourse, or could have consented to it, then of course the offence of rape is not established. If at the end of the day you think that (the victim) did not consent to the sexual intercourse, but the defendant did not or might not know that she did not consent, then you cannot find him guilty.

When considering whether he was reckless, you have to be sure that the defendant at that time did not believe that (the victim) was willing, and that he did not care whether she was willing and proceeded to have sexual intercourse with her. But the important point is that even when the defendant did not have reasonable grounds to believe that (the victim) agreed to have sexual intercourse with him, if you think that he subjectively thought that (the victim) was willing to have sexual intercourse with him, or that there was the possibility that he had genuinely mistaken that she was willing, the offence of rape cannot be established. Perhaps I should repeat these two points.

When considering whether he was reckless, you have to be sure that the defendant at that time did not believe that (the victim) was willing, and that he did not care whether she was willing and proceeded to have sexual intercourse with her. But the important point is that even when the defendant did not have reasonable grounds to believe that (the victim) agreed to have sexual intercourse with him, if you think that he subjectively thought that (the victim) was willing to have sexual intercourse with him, or that there was the possibility that he had genuinely mistaken that she was willing, the offence of rape cannot be established.”

14.  As a matter of fact, the content of the two paragraphs of directions repeated by Tong J, namely ‘If the jury thinks that the Applicant genuinely held the subjective belief or that he might have the mistaken belief that the victim willingly had sexual intercourse with him, the charge of rape cannot be established’, was consistent with the content of the second part of the standard directions.

15.  Although Tong J did not follow the second part of the standard directions to say that:

“The defendant does not have to prove that he believed the victim consented to the sexual intercourse. It is for the prosecution to prove and satisfy you that the defendant did not believe that the victim consented to have sexual intercourse with him.”

But according to what Tong J previously said to the jury:

“It is a fundamental principle of our legal system that you have to presume the innocence of the defendant. In other words, it is for the prosecution to prove the guilt of the defendant and the defendant does not have to prove that he is innocent. As a matter of fact, the defendant does not have to prove anything. You have to be satisfied beyond all reasonable doubts that the defendant is guilty before you can convict him of the charge.”

In view of the Applicant’s subjective belief and the directions on the six steps as cited in the preceding paragraphs, we are of the view that Tong J did not have to mechanically repeat or repeat verbatim the content of the standard directions.

Second Ground of Appeal: Directions regarding a distressed victim

16.  Tong J gave directions to the jury regarding a ‘victim being distressed’ after the incident:

“… Members of the jury, you have also heard ‘the victim’ and her friends say that after the incident, she expressed her emotion by crying. Her behaviours could show that she was distressed. Such evidence might have evidential value in relation to the issue of the case. But when you consider such evidence or give weight to it, you have to decide two things beforehand: Firstly, whether the distressed condition of (the victim) was genuine, that is whether she really cried. Secondly, whether there was a causal relationship between her condition and the alleged sexual offence, that is whether the reason of her crying had anything to do with the alleged rape. If so, you may consider how to assess the value of the evidence of her distress and how much weight should be attached to it.”

17.  Mr. Suen cited the guidelines laid down by the Court of Final Appeal in Leung Chi Keung v HKSAR [2004] 7 HKCFAR 526 (paragraph 41) on the evidence of a distressed victim:

“(1) The jury must be satisfied beyond reasonable doubt (i) that the complainant’s distressed condition was genuine and (ii) that there was a causal connection between the distressed condition and the sexual offence. In other words, they must be satisfied that (i) the distressed condition was not feigned and (ii) was only referable to the alleged sexual offence and not to any other cause. In deciding on those matters, they must take into account all relevant circumstances.

(2) Where the jury is so satisfied, they could give such weight to the evidence of distress as is appropriate. Weight is entirely a matter for them.

(3) Where the jury is not so satisfied, they should disregard the evidence of distress.

(4) Where fantasy has been properly raised as an issue, the jury must not use evidence of distress to rebut fantasy.  If they believe that fantasy is a possibility, they cannot be satisfied of the required causal connection.”

18.  Mr. Suen submitted that when Tong J directed the jury on distress, what he said was inconsistent with the aforesaid directions by the Court of Final Appeal and was obviously inadequate. Tong J did not remind the jury that they had to be satisfied beyond a reasonable doubt before they could accept the evidence of the victim’s distress. If they did not accept such evidence, they should disregard it.

19.  This Court is of the view that a definitely better approach will be to adopt the guidelines of the Court of Final Appeal in full. But even if Tong J did not adopt the exact wordings, the contents of his directions were still consistent with the intent of the guidelines of the Court of Final Appeal. The first thing he told the jury was that when they considered what weight to be given to the evidence in question, they should first find that the two points mentioned by him were established, namely the distress was genuine and it had a causal relationship with the sexual offence in question. Apparently Tong J required the jury to first confirm the genuineness of the distress and its causal relationship with the rape offence before they could proceed to assess the value and weight of such evidence. That was also consistent with the guidelines of the Court of Final Appeal that if the jury was satisfied that the evidence was true and relevant, they could give appropriate weight to the evidence of distress, and the weight to be given was a matter for the jury.

20.  Regarding the issue of ‘fantasy’ referred to in paragraph 4 of the guidelines by the Court of Final Appeal, we are of the view that the present case differs from Leung Chi Keung because no issue of the victim having fantasy arose in the present case. In that case a nine-year old school boy claimed that he was sexually molested by his Physical Education teacher. When making his final submission, the defence counsel said that the alleged offence could have been the fantasy of the victim. That issue did not arise in the present case. We do not agree that when Tong J dealt with the evidence of distress, he had to give directions on the question of fantasy as required in the case of Leung Chi Keung. Although Tong J mentioned in his directions to the jury that, in sexual offences, there were cases that despite the allegations of molestation, the truth was that the allegations were fabricated. But we do not think that Tong J was required to give directions on ‘fantasy’ simply because he had mentioned the above point. The direction given by Tong J on fabricated allegations was of general application in sexual offences, but as mentioned earlier, the core issue in the present case was whether the victim consented to the sexual intercourse. Therefore the possibility of the alleged sexual act being merely the victim’s fantasy did not exist in the present case.

21.  In any event, if the jury in the present case accepted the evidence of the victim, they could rely on the evidence of her distress and attach appropriate weight to it.

Third Ground of Appeal

22.  Mr. Suen submitted that Tong J did not give detailed directions to the jury in respect of the evidence that was favourable to the Applicant or the doubts in the case. Mr. Suen said:

1) When the Applicant was with the victim, he did not threaten or use violence on her, but she did not cry aloud, dodge, or put up strong resistance to stop the molestation by the defendant. Nor did she escape when she had ample opportunity to do so. That was a very important doubt. Her explanation was that she took him as a friend and did not do any of the above, and that he should have known that what he did was wrong and that he should not have knowingly violated the law. Her explanation was a contrived one. She was an adult with working experience and experience of sexual intercourse. When the Applicant touched her body, it was impossible that she did not realize that he was getting ready to have sexual contact with her. Given that she did not put up any strong resistance against the bodily contact by the Applicant, would the Applicant be led to think that she had no objection against having sexual intercourse with him? As a matter of fact, when questioned by the Judge, she agreed that she did not tell the Applicant directly that she did not consent to the sexual intercourse. Tong J neither made detailed analysis nor gave direction on a crucial doubt such as this.

2) And during the sexual intercourse, for example when the Applicant performed the act of oral sex on her or when he changed his positions three times and penetrated her body without her consent, it would be really difficult to carry out or complete the sexual intercourse if she did not consent, co-operate or if she put up strong resistance. Again, Tong J neither made detailed analysis nor gave direction on a crucial doubt such as this.

3) The victim did not sustain any abrasion/injury on her body and there was no damage to her clothes, which showed that the Applicant did not forcibly have sexual intercourse with her without her consent or against her will. Tong J neither made detailed analysis nor gave direction on this point.

4) Under cross-examination, the victim said that the first person she called after the incident was not her boyfriend because she was worried that he might mind what had happened and would break up with her. However when she was giving statements at the police station, she sent a few highly explicit text-messages in which she did not seem to be sad, angry or upset at all. Her mood at that time was contradictory to her claim that she was all along crying during the rape. It was an important doubt and the relevant messages are as follows:

(1) ‘Yes, saliva all over the body, he even told me to suck the sausage, I didn’t.’

(2) ‘Mm, the second time (I) got carried onto the bed’,

(3) ‘Mm, after he raped me and asked me questions, (he) let me go’,

(4) ‘(I) know, it hurt so much when (I) was raped by him. When he was limp, he still wanted to insert it in. Luckily (I) didn’t get kissed by him’,

(5) ‘He also said I was very smooth’.

5) The Applicant, being a police officer, was well aware of the seriousness and consequence of an offence of rape. Would he commit this serious offence and bring disgrace and ruin upon himself for momentary pleasure? If he had the slightest doubt that the victim’s response might be negative, he would not have acted on impulse and committed this serious offence.

23.  The evidence put forward by Mr. Suen, including the evidence that was favourable to the Applicant or the evidence that was doubtful, was evidence that involved the victim. As a matter of fact, Tong J did remind the jury that when the defence was cross-examining the victim, it had challenged the content of her evidence in the witness box, and that there was discrepancy between such evidence and the statements she had earlier given to the police.  He also reminded the jury that the defence argued that the victim had committed criminal offences involving dishonesty on two previous occasions, and that she was not a naïve young girl who had not seen much of the world. Tong J reminded the jury in particular of the seven lies that the defence alleged the victim had made. He even reminded the jury of the defence’s submission as follows:

“… The defence also says that the underlying reasons of the (victim’s) lies were that she wanted to hide the fact that she indeed consented to the sexual intercourse. Apart from her lies outlined above, the (victim’s) behaviours also showed that she in fact consented to the sexual intercourse. For example, she had opportunity to escape but she didn’t, she could have cried out aloud but she didn’t, she could have attacked the defendant but she didn’t. The defence submitted that even if the (victim) is rather short and petite, she could still ‘rip and scratch’ the defendant. Common sense tells us that if the (victim) refused to co-operate, it would not be so easy for the defendant to go in and it would be even more difficult for him to change his positions three times. The defence submits that the (victim) in fact consented to the sexual intercourse. She simply changed her mind afterwards. She felt sorry for what she had done to her boyfriend and was regretful. And as the defendant refused to pay her, she went to report the matter to the police under her friends’ instigation. The defence submits that as far as this incident is concerned, the defendant’s version is the truth.”

‘You have to bear in mind that the defence emphasizes that you should see the facts of the present case from another perspective, namely what had not happened or occurred in the present case. The defence asks you to thoroughly consider the lack of superficial injuries on the (victim) as well as on the defendant. Her clothes were not torn. She did not cry out aloud during the course and did not try to escape either. She did not have strong and lasting feelings of disturbance. Didn’t that show that she had in fact consented to the sexual intercourse? You should consider this carefully. Members of the jury, of course when I give such comments, I don’t mean to interfere your decision or verdict. The verdict is a matter entirely for you. I’m only suggesting one more perspective from which you may analyse the facts of the case.’

24.  We are of the view that Tong J had given fair directions to the jury regarding the defence’s case, especially the parts that were favourable to the Applicant. We only need to give comments on two points of Mr. Suen’s submission. Firstly, the suggestion that the Applicant changed his position during the intercourse. The victim agreed that that did happen and that she had a chance to get up and leave. However the victim said that when she tried to get up and leave, she was pulled by the Applicant who stopped her from leaving. Therefore we do not think that any doubt arises from this part of the evidence. Moreover, in relation to the text-messages sent by the victim, the jury could read the content of the messages in the agreed photographs tendered by the prosecution and the defence. The victim also said that she drew an emotion sign to show her dislike in one of the messages. Such evidence was before the jury for their consideration.

Conclusion 

25.  I am of the view that the jury directions delivered by Tong J were fair and just. Having heard all the evidence of the case, the members of the jury reached their verdict on the facts. We do not think that the verdict is in any way unreliable or unsafe. The application is therefore dismissed.

Mr. Suen Kam Hee, instructed by Messrs. Samuel Ho & Co., for the Applicant.

Mr. William Tam, Senior Assistant Director of Public Prosecutions,and Ms Jasmine Ching, Senior Public Prosecutor, of the Department of Justice, for the Respondent.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.