HKSAR v. IQBAL ASIF

CACC 93/2024 [2025] HKCA 126

On appeal from [2023] HKCFI 2586

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 93 OF 2024

(ON APPEAL FROM HCCC NO 197 OF 2022)

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J U D G M E N T

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1.  On 12 June 2023, following a trial before Toh J (the Judge) and a jury the applicant was convicted of rape, contrary to section 118(1) of the Crimes Ordinance (Cap 200). On 19 September 2023, he was sentenced to 5 years’ imprisonment.

2.  On 29 April 2024, the applicant filed a notice of application for leave to appeal against his conviction and sentence. In the notice, he said he forgot to appeal and now remembered that he did not commit the crime so he wanted to appeal his conviction now. He provided no explanation for the inordinate delay in filing the notice, nor the basis for appealing his conviction and sentence. The applicant had filed his notice whilst in custody at Siu Lam Psychiatric Centre. He explained that other inmates had treated badly and could not think about his case. It was not until he went to Siu Lam Psychiatric Centre that he turned his mind to his case and was assisted in appealing his conviction and sentence.

3.  In a letter filed on 13 August 2024, the applicant submitted eight grounds of appeal against conviction. He resubmitted these grounds on 6 September 2024.

4.  The applicant appears in person, having had legal aid refused on 19 July and 13 November 2024.

The brief facts

5.  The complainant, X, was a 14-year-old girl at the time of the offence. On 22 October 2021, she did not go to school but instead went to a roof garden in the vicinity of Cheung Sha Wan Estate. From CCTV footage on the footbridge leading to the roof garden, at 4:00 pm, the applicant and X exchanged glances when walking in different directions. They are next seen on CCTV footage at the roof garden chatting with each other. They moved from one part of the roof garden to another part and continued chatting. According to X, the applicant suggested that they leave and go to the staircase. She said she followed him. Whilst they were in the staircase, sitting on the steps, X was communicating with her friends on WeChat, and the applicant was charging his telephone with X’s charger as his telephone was running out of battery. They spent a bit of time in the staircase. At one stage, X took a picture of the applicant with his head on her lap and sent it to her friends on WeChat. It was while they were in the staircase that X alleged the applicant forced her to have sexual intercourse with him. He ejaculated outside her vagina. While X was with the applicant, she used WeChat and messaged her friends but did not ask any of her friends to call the police for her.

6.  At about 6:00 pm, they left the staircase together, and the CCTV cameras captured the two of them walking along the footbridge to the MTR station. The applicant had his arm around X’s shoulder. There did not appear to have been any sort of undue force on X.

7.  Sometime after 6.00 pm, X went to see her friend, Z. X told Z that she was downstairs from her home. When Z came down to meet X, she saw that X was squatting, looking messy and tired. X told Z that she met a man who dragged her to the stairs and had sexual intercourse with her. After X discussed this with Z, they went off and played basketball for about an hour to “de-stress” X.[1]

8.  At about 6:30 pm, X also complained to Y. X told Y that she saw a male who pulled her to the staircase, and the male had “done it to her”. At about 8 pm, Y saw X in person and noticed that X seemed a bit sad, very relaxed and very sorrowful.

9.  X’s mother testified that X was unhappy and sad as a result of her separation from X’s father. X had psychotic symptoms such as hallucinations, and she saw “shadows” that would tell her to die. X would sometimes harm herself. X was treated by a psychiatrist and attended consultations every month. On 22 October 2021, when X’s mother saw X in the evening, she noticed that X was very frightened but did not want to disclose what had happened. Eventually, X told her that someone assaulted her and the case was reported to the police.

10.  One of the friends X texted about the incident was in Taiwan. In cross-examination, it was noted that X’s friend asked her if she lost her virginity, and at 8:54 pm she replied, “No, he dared not.” She was questioned about her answer and denied that she meant that the applicant did not have sexual intercourse with her. She said she meant to say, “I thought he dared not.”[2]

11.  X accepted that she had made two previous false reports of rape, in May and June 2020 respectively. She said on each occasion, she was taken to a hospital and she gave a video recording about the matter. She did not tell the police that she made up the allegations but acknowledged that they later found out.[3]

12.  The prosecution also called a forensic pathologist who examined X. He said X’s hymen was intact, and the result of the pathological examination could not assist in ascertaining if sexual intercourse had taken place. However, he explained that if semen was found in a high vaginal swab, the result would be highly suggestive of the findings that sexual intercourse and ejaculation took place.

13.  Dr Yeung Pak Kwan, an expert on DNA, gave evidence. She testified that there was no blood found on X’s underpants, but semen was found on her underpants and in the high vaginal swabs. She also found saliva in the swab from the left breast of X. She was of the opinion that there was “very strong support”[4] that the semen found on X’s underpants carried the DNA of the applicant and of X; and that the semen and male DNA were found on the high vaginal swabs from X. She explained that there was insufficient sample for DNA typing to conclude to whom it belonged.[5]

14.  When he was arrested, the applicant said under caution, “It is the first time I met the girl. I did not rape her.”[6] In a subsequent video recorded interview, the applicant repeated that he did not have sexual intercourse with X.

15.  The applicant chose not to give evidence or call any witness on his behalf. His case at trial was that there was no sexual intercourse at the staircase.

The extension of time

16.  As required under section 83Q(2) of the Criminal Procedure Ordinance (Cap 221), the applicant was required to file a notice of application for leave to appeal against conviction and sentence within 28 days of his sentence.

17.  This Court has made it clear that in considering whether leave should be given to an appeal out of time, a court will take into account: (1) the length of the delay; (2) whether the applicant has a reasonable explanation for the delay; and (3) whether sufficient grounds of appeal are shown. In determining whether to grant leave, it is open to the Court to look at the grounds of appeal to check that by refusing leave to appeal, it is not shutting out a substantial and plainly arguable ground of appeal.

18.  As I have already noted, the applicant explained that he had been treated badly by other inmates in prison and had not considered an appeal of his case until he was transferred to Siu Lam Psychiatric Centre. At this stage, I am not prepared to totally reject his explanation, but I will examine the grounds of appeal to ensure that I am not shutting out a substantial and plainly arguable ground of appeal.

The grounds of appeal

19.  Ground 1 states:

“The trial judge failed to properly and safely direct the jury on my knowledge about X’s age whereas she never told me about her age or presented me with her identification for me to be able to see her age. The Judge should have clearly pointed out that it would have been difficult for me to ascertain her age based on her school uniform and therefore the judge biasedly assumed that I knew her age and directed the jury, this is misleading and unfair.”

20.  As pointed out by Ms Human Lam, for the respondent, there is no merit in this ground as the age of X was not relevant for the offence of rape (unlike unlawful sexual intercourse with a girl under 16 where consent is immaterial (section 124 of the Crimes Ordinance); or indecent assault where a person under 16 cannot give consent (section 122(2) of the Crimes Ordinance)).

21.  Ms Lam has very fairly raised another point with the Judge’s directions to the jury on the element of consent. I will deal with this point after an examination of the applicant’s grounds.

22.  Ground 2 states:

“The Judge did not direct the jury on the possibility that X was not being truthful in saying that she told the defendant that she was 14 years old due to her proven history of schizophrenia episodes filled with hallucinations and delusions as well as her previous false rape reports. Also the trial judge in her summing up to the jury did not point out the possibility that someone could have coached X on what to claim.”

23.  This ground is misconceived. The Judge comprehensively addressed the defence’s challenges to X’s evidence, in particular X’s psychiatric problem and X’s previous false rape reports in her summing-up[7]. Since it was not the defence’s case that “someone could have coached X on what to claim”, it was unnecessary for the Judge to address this matter in her summing-up to the jury.

24.  Ground 3 states:

“The trial judge biasedly misdirected the jury against me whereby her ‘broken vase’ example in drawing inference meant to the jury that since I was with X in a particular place then I must be guilty, but the judge did not ask them or give them another example to indicate that X might have had sexual intercourse with another person prior to our meeting.”

25.  The Judge gave the standard direction on inferential reasoning.[8] The issue at trial was fairly narrow. The applicant’s defence was that he did not have sexual intercourse with X. However, the expert evidence of unidentified semen in X’s high vaginal area and the applicant’s DNA in the semen found in X’s underpants, once accepted, was cogent evidence that the applicant had sexual intercourse with X.

26.  Ground 4 states:

“The trial judge failed in her summing-up to point out that X has a history of distress and she was thus diagnosed by a psychologist with a psychological disorder well before I ever seen her. Therefore, the judge failed to point out to the jury that the distress that Y observed may be due to the onset of the symptoms of X’s disorder. This clouded the jury’s judgment of that evidence and they could not make a fair judgment in the end.”

27.  The Judge gave the standard direction on the evidence of distress[9] and comprehensively addressed X’s conduct after the alleged rape as well as her psychiatric condition and past behaviour. There is no substance in this ground.

28.  Ground 5 states:

“The trial judge only invited or directed the jury to only consider the implicating parts of the defendant's Video Recorded Interview (VRI) and ignore everything else the defendant said during the VRI. This is prejudicial, wrong and unfair against the defendant.”

29.  The Judge gave clear directions on how to approach the applicant’s mixed statements in his video recorded interview, and fairly and appropriately referred to his statements under caution. This ground is without merit.

30.  Ground 6 states:

“The trial judge failed to properly direct the [jury] on the inconsistencies of X’s VRI and her testimony during cross-examination by the defence lawyer. Some of the contents of her testimony are totally exculpatory but the trial judge either ignored them or did not mention them to the jury for consideration during their deliberation.”

31.  The Judge, in her summing-up, extensively set out the defence’s challenges to X’s evidence, highlighting her psychiatric condition and previous false rape reports.[10] The applicant has failed to identify any inconsistencies in X’s evidence under this ground.

32.  Ground 7 states:

“The trial judge did not fully explain and direct the jury on the gravity and implication of the pathologist's evidence which could not confirm that sexual intercourse took place.”

33.  The Judge properly explained the forensic pathologist's evidence. She referred to the pathologist’s evidence regarding the lack of any identifiable body injury on X and her private parts, that it “does not confirm sexual intercourse or can be regarded as evidence against that”.[11] She also referred to the pathologist explanation that if semen was found in a high vaginal swab, the result would be highly suggestive of the findings that sexual intercourse and ejaculation took place. This assisted to explain or interpret the findings by the DNA expert that semen and male DNA were found on the high vaginal swabs from X.

34.  Ground 8 states:

“The trial judge failed to direct the jury fairly on the issue of DNA evidence which could not reliably establish that the DNA found belonged to the defendant. The judge did not fairly address the possibility that the DNA sample could either have been tampered with or improperly stored by the police such that it could have been damaged. And, the sample of DNA was confirmed to belong to another male.”

35.  The evidence was compelling that the applicant was the only male person X had associated with that day. They were captured on CCTV footage together, and they also exchanged telephone numbers and a photograph was taken of him on X’s telephone. There is no evidence to support the applicant’s claim that “the sample of DNA was confirmed to belong to another male”. The Judge gave a full and thorough summary of the DNA evidence, including references to the issues and challenges concerning this evidence.[12]

The new ground

36.  As very fairly and properly pointed out by Ms Lam, there is a reasonable argument that the Judge has erred in her summing up to the jury on the issue of consent for the offence of rape.

37.  The circumstances of this case are unusual as revealed by the brief facts. The applicant faced the serious offence of rape of a 14-year old girl. There was the alternative offence of unlawful sexual intercourse with a girl under 16 years but it was never raised at trial.

38.  The judge in her summing up, instructed the jury that:[13]

“… rape in law is unlawful sexual intercourse with a woman who did not consent to it, and if a defendant at the time he had sexual intercourse with the defendant knew that she did not consent or was reckless as to whether she consented or not, then he is guilty. Now, as you know, X at the time was 14 years old and so, in law, she cannot give consent. So, was the defendant reckless as to whether she was able to give her consent or not? According to the evidence, X said she told the defendant she was 14, but the defendant said he thought she was 21. So that is all a matter for you.

But, really, the issue in the case is really did sexual intercourse take place between the defendant and X. Now, so what do you have to decide? You have to decide first of all did sexual intercourse take place. And, as I said you have to be sure that X did not consent and in this case she could not consent because of her age. And you have to also decide whether the defendant knew she could not consent or was reckless as to whether she could consent or not.”

39.  The Judge returned to the issue of consent in her summing up, instructing the jury:[14]

“Now, I have talked about the fact that the prosecution has to prove whether the defendant knew or was reckless as to whether X could give her consent. If you find that the defendant had a genuine but mistaken belief that she was able to consent, he is not guilty. So if at the end of the day you find that he genuinely though mistakenly held the belief that she was able to consent because he thought she was 21, then he cannot be found guilty it is for the prosecution to prove that he did not have that belief.”

40.  It is arguable that the Judge, by her directions, removed the issue of consent from their consideration as to whether the offence of rape had taken place. In R v Harling [15], the English Court of Appeal addressed the confusion that arose between the offence of rape and the offence of having carnal knowledge of a girl between 13 and 16 years of age. The Court explained that:[16]

“… while a girl under the age of sixteen is perfectly capable of consenting, and, as everyone knows who tries these cases, frequently does consent to an act of sexual intercourse with a man, the law has provided that such consent affords no defence to a man on a charge of carnal knowledge of a girl under sixteen; but there is no such provision as to the crime of rape. In every case of rape it is necessary that the prosecution should prove that the girl or woman did not consent and that the crime was committed against her will.”

41.  The decision of Harling was applied in HKSAR v YHY [17], where the trial judge had directed the jury that the victim who was under 16 years could not legally give a valid consent when considering a charge of rape. The jury returned a verdict of attempted rape in respect of this offence. The Court of Appeal noted that there was no provision in law for the offence of rape, similar to section 122(2), which provides for the offence of indecent assault that a person under the age of 16 cannot in law give any consent which would prevent an act from being an assault for the purposes of the section. The Court held that the trial judge was wrong because in rape cases, the prosecution must prove that the victim did not consent to sexual intercourse, and that as a result, the jury might have mistakenly believed that it did not need to consider whether the victim consented to sexual intercourse.

42.  I am persuaded that this ground is reasonably arguable, and consequently, I would be preventing the applicant from pursuing a substantial and plainly arguable ground of appeal if I refused him an extension of time to file a notice to apply for leave to appeal against his conviction. I therefore grant him an extension of time and leave to appeal against his conviction on this ground only. The other grounds are without merit and leave is refused to appeal on those grounds.

43.  It follows that I grant the applicant an appeal aid certificate to be legally represented in his appeal on this ground only and any related matter, under Rule 12(3) of the Legal Aid in Criminal Cases Rules, Cap 221D.

44.  I refuse leave to appeal against the conviction out of time on the refused grounds that I have found are not reasonably arguable. I note no grounds of appeal were advanced against sentence, and I refused leave to appeal against the sentence out of time. However, I should inform the applicant of the power of the Court of Appeal, in appropriate circumstances, to order the loss of any time which the applicant has spent in custody pending his appeal, if it were to come to the conclusion that the application for leave to appeal should not have been made and that there was no merit in the appeal.