HKSAR v. FRANK LAURENT

CACC 243/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 243 OF 2015

(ON APPEAL FROM HCCC NO 391 OF 2014)

__________________

__________________

__________________

J U D G M E N T

__________________

Hon Lunn VP (giving the judgment of the Court)

1.  The applicant sought leave out of time to appeal his convictions on 27 May 2015, after a trial by Deputy High Court Judge McMahon and a jury, of one count of raping Ms Y on 24 October 2013 (Count 3), contrary to section 118(1) of the Crimes Ordinance, Cap 200 (the Ordinance), and one count of indecent assault of Ms X on 8 August 2013 (Count 2), contrary to section 122(1) of the Ordinance (Count 2). By the verdict of the jury the applicant was acquitted of a second count of rape, namely of raping Ms W on 1 May 2013 (Count 1).

2.  The Particulars of Offence of Counts 2 and 3 averred that offences occurred at a serviced apartment, namely Room C, 16^th Floor, Queen’s Cube, Nos 235‑239 Queen’s Road East, Wan Chai, whereas it was averred that the offence the subject of Count 1 occurred at the Regal Hotel.

3.  On 29 May 2015, the applicant was sentenced to 2 years’ imprisonment on Count 2 and 7 years’ imprisonment on Count 3. The judge, ordered that one year of the sentence imposed for Count 2 be served consecutively to that of Count 3, resulting in a total sentence of 8 years’ imprisonment.

The prosecution case

Count 2 — The indecent assault of Ms X on 8 August 2013

4.  Ms X, a 28‑year‑old girl, who worked as a customer service officer and who was also a part‑time student, came to know the applicant on the Internet through OK Cupid, a Dating App.  She received the first message from the applicant on 7 August 2013 and began to chat with him on Skype and Whatsapp. 

5.  On 8 August 2013, after their exchanges on Whatsapp earlier that day, the applicant arranged to meet Ms X for the first time at Wanchai MTR station.  After they had met, the applicant said he wanted to go back to his serviced apartment to tidy it up.  Although Ms X had thought that they would be going to a café or elsewhere for a drink, at the applicant’s invitation she agreed to follow him to the serviced apartment.  She did so lest she would appear very rude at their first meeting.

6.  On arriving at the serviced apartment, Ms X stood at the doorway to wait for the appellant.  However, he pulled her inside and closed the door.  First, he took her to the balcony, and then to his bedroom, where he pushed her to sit on the side of his bed.  Next, he started to kiss her on her cheek and mouth.  As this happened, Ms X told the applicant that she did not want it and pushed him away.  Nevertheless, the applicant pushed her down onto the bed and pulled her shirt up.  

7.  Although Ms X kept shouting “[l]et me go. I don’t want it” and was crying, the applicant continued to pull her brassiere down and kiss her breasts.  As he did so, he pushed her down, thereby restraining her movement.  Then, he unbuttoned her trousers, putting Ms X in great fear.  However, as he did so he ceased to hold her down.  So, she was able to stand up and rush to the door, picking up her belongings as she left the apartment.  Then, she made her way home.  However, at that stage she made no report to the police, only doing so on 6 October 2013, after she had been in contact with Migina and Shannon, two of the applicant’s former girlfriends.

Count 3 — The rape of Ms Y on 24 October 2013

8.  Ms Y, a 20‑year‑old university student, came to know of the applicant on 4 October 2013 as a result of his greeting message through “Badoo” to her mobile telephone.  Later, they switched to chat on Whatsapp.  On 23 October 2013, at the applicant's suggestion, they arranged to meet on 24 October 2013.  The two then met up as agreed at about 18:00 hours at an exit of Wanchai MTR station.  After that, at the applicant's request, Ms Y waited for him after he said that he had to “go up” first.  She understood that he was returning to his apartment.  Then, she received a message inviting her to “...come up to room 16C.”  Having received a second message from the applicant, which repeated the invitation “come on”, she went to the room, where she was met by the applicant at the door.  She entered the room and, at his invitation, sat on the bed.  There, he showed her some photographs of himself.  Then, he kissed her on her cheek and pushed her onto the bed.   

9.  Next, the applicant tried to pull down her lower clothing, including leggings and underpants, using great force.  Feeling very scared, Ms Y begged him to stop.  She told him that she was a virgin.  However, the applicant was successful in removing her lower garments, after which at his direction she removed her upper clothing.  She did that because she was in fear.  She was lying on the bed when she did that.  Then, the applicant penetrated her vagina with his penis, notwithstanding that she demanded that he did not do so and complained that it hurt.

10.  When the applicant permitted her to do so, Ms Y went to the bathroom, where she washed away blood from her private parts.  On her return to the bedroom, at the applicant's demand, she held his testicles whilst he masturbated to ejaculation.  Finally, he acceded to her request that she be allowed to dress and, having done so, she left the apartment.  However, the applicant accompanied her, until she reached a bus stop.  There, they parted company when she boarded a bus. Ms Y complained that she had been raped in text messages that she sent to Mr Minoru, a friend in Japan and to Ms Grace Ngan.  The latter confirmed that, after they had exchanged messages at about 21:30 hours, in which Ms Y complained “being raped” and “need to see a doctor”, she received a phone call from Ms Y. By arrangement they met at Queen Mary Hospital, where Ms Y made a report to a police officer and was then examined by a doctor, Dr Kwok Wing Man, at 23:42 hours, who noted a laceration over the right vulva, but no other obvious external injury.

11.  Earlier, Ms Y had received a number of messages from the applicant on Whatsapp between 19:25 and 20:41 hours.  She replied to the last of those messages and an exchange of messages took place between the two of them:

20:41	The applicant	What are you doing now?
21:55	Ms Y	How can u do that to me even when I am resisiing?
21:55	Ms Y	Resisting
21:56	Ms Y	You’re such a jerk...It hurts like hell and I asked you to stop
22:16	Ms Y	I am going for body check. You should never force anyone if they unwilling to do it.
23:20	The applicant	Comon
23:20	The applicant	I stopped when you asked me to stop
23:21	The applicant	You even helped me take off your clothes
23:23	Ms Y	I was too scared that u would hurt me
23:23	Ms Y	I asked you to stop when u try to put ur things in
23:27	The applicant	We were kissing

12.  Dr Tsang Chak Chi, a forensic pathologist, said that she examined Ms Y at about 03:40 hours on 25 October 2013.  She said that she observed on Ms Y a linear scab on her left arm and a scratch mark.  In her opinion, they were inflicted within 48 hours of her examination.  Also, she said that there were fresh tears to Ms Y’s hymen.  In her opinion, something had passed through the hymen.  That finding was consistent with sexual intercourse.  Furthermore, there was a tear to the inner labia minora.  All of those injuries had occurred within 48 hours and were consistent with sexual intercourse.

The applicant's out‑of‑court statements

13.  The applicant was arrested for the rape of Ms Y by police officers at 04:35 hours on 25 October 2013, whilst he was in his serviced apartment.  Later that day, between 16:03 and 18:37 hours a video record of interview was conducted of him under caution.  The applicant protested his innocence.  He said that Ms Y had come to his apartment willingly and that they engaged in consensual sexual activities, in which they had kissed each other, he had kissed her breast and inserted his finger into her vagina.  She removed her underpants herself.  He penetrated her vagina, but she had said “No.  No.  No.  I feel pain”.  Then, he had withdrawn his penis from her vagina.  He noticed that she had discharged a lot of blood.  After she had gone to the bathroom and returned to the bed, at his request, she had held his testicles whilst he masturbated to ejaculation. He had never used any violence on her.

The defence case

14.  The applicant elected to give evidence.  He was born in 1978 and was a university graduate, majoring in politics and economics.  He came to Hong Kong in around June 2013 and worked in the solar energy industry.  Prior to that, he had been an English teacher and a university lecturer in Shanghai. He had had no previous convictions in Hong Kong.

15.  The applicant suggested that as a result of two of his previous girlfriends, Shannon and Migina, meeting each other and realising he was seeing each of them separately they became aggrieved and had embarked on a vendetta against him. Migina accused him falsely of raping her.  That led to his arrest by the police on 22 September 2013, but not to any subsequent prosecution.  He suggested that in their contact with Shannon and Migina, Ms W and Ms Y had been encouraged not only to report their encounters with the applicant to the police, but also to fabricate allegations of non‑consensual sexual activity against the applicant.

Count 2

16.  The applicant said that his physical contact with Ms X was no more than a kiss and a hug.  However, as soon as that happened, she suddenly pushed him away.  He promptly suggested to her that she reacted as she did because she missed her e‑boyfriend.  However, she denied that was the case, but nevertheless left the apartment.  He denied lifting up her shirt or pulling down her brassiere, let alone kissing her breasts.

17.  In cross‑examination of Ms X, the applicant’s case in respect of the role played by Migina and Shannon in encouraging her to make a false allegation against the applicant was put but denied.  Nevertheless, Ms X accepted that she would not have made the report to the police that she made on 6 October 2013 had she not come into contact with Migina and Shannon[1].  First, on 23 September 2013 she was contacted through OK Cupid by Shannon.  Then, on 24 September 2013 she was contacted by Migina.  All three of them met for dinner on 26 September 2013.  Subsequently, she was contacted by a social worker and she made a report to the police.

Count 3

18.  The applicant said that he first made contact with Ms Y on 4 October 2013, who used the name Yuriko, on Badoo.  Although there was contact subsequently it was only on 24 October 2013 that they arranged to meet at 6:30 p.m.  that day at Wanchai MTR station.  They walked back to his apartment building where he asked her to wait at the ground floor.  He did so as a means of ensuring that Ms Y really liked him.  Then, at his request by a message to come to room 16C she came up to and entered his apartment.

19.  Having shown her the view from his balcony and having looked at some photographs whilst they sat together on the bed, he then kissed her on the mouth and they hugged.  Between them, they removed her upper garments.  Ms Y removed her leggings and underpants herself.  Then, she opened her legs for sexual intercourse.  In the course of sexual intercourse, Ms Y suddenly said that she felt painful and asked him to stop.  He did so at once and withdrew his penis from her vagina.

20.  After Ms Y had taken a shower, she returned to the bedroom.  She was naked.  At his request, she held his testicles whilst he masturbated to ejaculation.  Then, they each washed their hands and Ms Y dressed.  He accompanied her to walk back towards the MTR station, where he kissed her and they parted company.  All their sexual intimacies had been consensual.

Grounds of appeal against conviction

21.  By ground 1, Ms Panesar submitted that there was a lurking doubt about the safety of the conviction of the applicant in respect of Count 2.  There was evidence that Ms X might been adversely influenced by Migina and Shannon and made a false complaint and “framed” the appellant.

22.  Similarly, by ground 2 it was contended there was a lurking doubt about the safety of the conviction of the applicant in respect of Count 3.  Ms Y had gone to the applicant’s apartment knowing that the two of them would be there alone.  Ms Y did not tell the applicant that she did not consent to sexual intercourse.  In those circumstances, the applicant had honest and genuine grounds to believe that the sexual intercourse which took place between them was consensual.

23.  By ground 3, it was submitted that the judge erred in directing the jury to consider whether the appellant’s message to Ms Y at 23:20 hours, in which he asserted  “I stopped when you asked me to stop”, was “so spontaneous and so immediate as does suggest to you that he may have been telling the truth”.  There was no evidence as to why there was a delay in the applicant making that response following Ms Y’s earlier message at 22:16 hours in which, inter alia, she had asserted “You should never force anyone if they are unwilling to do it.”

24.  By ground 4, it was submitted that the judge erred in giving the jury directions in respect of the issue of recklessness in respect of Counts 2 and 3, contrary to the submissions of the applicant's counsel.  That issue did not arise on the evidence.  It was the prosecution case that the applicant knew full well that Ms X and Ms Y did not consent to his sexual advances.  It was not the applicant's case that he mistakenly believed that they did consent to that conduct.  In support of those submissions, Ms Panesar relied on the judgments of this Court in HKSAR v Luo Xian Ping[2], HKSAR v Xia Hongjun[3] and The Queen v Ng Pong Lung[4].

25.  By ground 5(a), it was submitted that it was a material irregularity that the three counts had been tried together. The defence to Count 3 was separate and distinct from the defence advanced in respect of Counts 1 and 2.  The applicant’s counsel at trial had failed to advise the applicant of the need for an application to be made for severance of the counts and had erred in failing to make such an application.  In consequence, the applicant was deprived of the opportunity of making an informed decision on the issue of severance and deprived of a fair trial.

26.  By ground 5(b), it was submitted that, given that the respondent did not rely on similar fact evidence, the applicant had been subjected to impermissible, highly prejudicial cross‑examination by counsel for the prosecution in respect of Ms X.[5]  The questions were suggestive of an uncharged offence of attempted rape in respect of Count 2.

27.  By ground 5(c), it was submitted that the applicant was deprived of a fair trial by the admission into evidence in cross‑examination of Ms W and Ms X of highly prejudicial hearsay evidence of the conduct of the appellant, in particular as set out in exhibit D4, a Facebook message, namely that the applicant had tricked women to have sex, communicated venereal disease and had violently attacked his former girlfriend Migina.

The respondent’s submissions

Grounds 1 and 2

28.  Ms Anna Lai SC, for the respondent, submitted that there was no lurking doubt in respect of the applicant’s convictions on Counts 2 and 3. The issue of whether or not Ms W and Ms X had been influenced by the applicant’s former girlfriend, Shannon and Migina, to make false complaints of sexual advances towards them by the applicant was squarely before the jury.

Ground 3

29.  Ms Lai submitted that the judge’s direction that the jury should consider whether or not the appellant’s message to Ms Y at 23:20 hours was a spontaneous response to an allegation made in a message at 22:16 hours by Ms Y was entirely appropriate.  It was the prosecution case that the applicant’s message was self‑serving and contrived to cover up his guilt.

Ground 4

30.  Ms Lai submitted that the issue of recklessness in respect of Counts 1, 2 and 3 arose on the evidence.  So, the judge's direction was entirely appropriate.

Ground 5

31.  Ms Lai invited the Court to note that the issue of severance had been raised by Barnes J at the pre‑trial review on 24 March 2015.  She submitted that it was clear from the affirmations filed by Mr Marash, Mr Kwan and Mr Short and their oral testimony that the applicant had been properly advised that an application for severance of the counts was unlikely to succeed.  Further, in any event, it was the applicant's instructions to proceed to a single trial on all three counts on the indictment.  Ms Lai submitted that as a general rule an accused is bound by the way his trial was conducted by counsel.

32.  Ms Lai submitted that it had not been suggested to the applicant in cross‑examination that he had attempted to rape Ms X.  It was the prosecution case that he had indecently assaulted her.

33.  Finally, Ms Lai submitted that the cross‑examination of Ms W and Ms X, in particular in respect of the allegations of misconduct by the applicant set out in exhibit D4 was clearly a considered tactical decision taken on behalf of the applicant by counsel at trial.  As was to be expected, the judge had given repeated directions both during testimony and in his summing up as to the hearsay nature of the allegations made in exhibit D4.[6]

A consideration of the submissions

34.  At the direction of the Vice President, the Amended Perfected grounds of appeal filed with the Court on 29 June 2016 were re‑amended to crystallise in the grounds of appeal themselves the challenge made to the competence of counsel at trial, which were set out in the applicant’s written Skeleton Submissions.  The Re‑Amended Perfected grounds of appeal against conviction were filed with the Court on 12 September 2016.  The original ground asserted only that “...it was a material irregularity for the three counts to be tried together”.  However, the applicant’s Skeleton submission asserted “The defence counsel and/or solicitor representing A at trial had not advised A of the necessity of severance on Counts 1 and 2 on (sic) one hand and Count 3 on the other hand.  As such, A lost a chance to make an informed decision about severance and was deprived of a fair trial and the chance of acquittal.”

35.  In the result, it proved necessary to adjourn the hearing of 26 September 2016 in order to permit further affirmations to be filed with the Court by the applicant and those who had represented him at trial.

36.  At the hearing of 30 November 2016, the Court received various affirmations and the oral testimony of the applicant, Mr Marash, Mr Kwan and Mr Short.

Application for leave to appeal out‑of‑time

37.  The applicant gave notice of his application for leave to appeal against the sentence out of time by filing Form XI with the Court on 24 July 2016.  In an accompanying affirmation, the applicant explained the reason for the delay in making his application has been a misunderstanding that arose from his answer to enquiries of the Correctional Services Department that he was privately represented.  He had always made clear to them that he wished to appeal.  He learnt later that his representation extended only up and until the conclusion of trial, but that his retainer had ended at that point.  On learning of that fact, he had filed Form XI in which he had also sought the grant of legal aid.

38.  As was to be expected of her, in those circumstances Ms Lai had no objection to the application being made out of time.  In all circumstances, we are satisfied that it is appropriate for us to entertain the application for leave to appeal against conviction.

Ground 5

39.  As noted earlier, the applicant stood trial on an indictment containing three counts, two of rape and one of indecent assault.  In chronological sequence, the alleged offences occurred on 1 May 2013 (rape of Ms W), 8 August 2013 (indecent assault of Ms X) and 24 October 2013 (rape of Ms Y).

Preliminary Inquiry

40.  On 13, 14 and 18 August 2014 evidence was taken by deposition at a Preliminary Inquiry held at Eastern Magistrates’ Court from all three complainants, the alleged victims of the three counts.  Ms W testified that she had been in contact by Whatsapp with Shannon and Migina in September 2013, from whom she learnt that other girls had had similar experiences with the applicant.  As a result, she reported the matter to the police.  For her part, Ms X testified that she had also been in contact with those two women in September 2013.  She met the two of them on 26 September 2013.  Only after having met them did she make a report on 6 October 2013 against the applicant.

41.  In cross‑examination of Ms Y, the topic of whether or not she had communicated with Shannon and Migina on social networking sites was canvassed:[7]

“Q. Have you ever communicated with a girl by the name of Shannon was a profile name ‘Codesero’..?

COURT: before the 24 October?

Mr KWAN before the 24 October.

A. Not clear

Q. Have you ever communicated with a girl named Magena (Migina?) Possibly using the profile name Michelle Chen Hong Kong...?

A. I don't know, I’m not clear.

Q. Apart from the information that the defendant provided to you by Badoo and Whasapp, have you ever received any information about the defendant on the Internet?

A. No.”

42.  In his affidavit of 15 September 2016, Mr Marash explained the circumstances in which it had been determined to call for a Preliminary Inquiry:[8]

“...the applicant was adamant that, as he had not raped PW 3 (Ms Y), she and the other two alleged victims must have been in touch with Shannon and Migina and that their complaints of rape and indecent assault were instigated by Shannon and/or Migina, who were out to get him. He was of the view that all the girls had conspired against him with Shannon and Migina.”

43.  Mr Marash said that it was in those circumstances it was determined to call for a Preliminary Inquiry:[9]

“...in the hope that some evidence to assist the Appellant in his defence might be forthcoming from PW 3 and the other alleged victims.”

44.  However, he noted :

“At the Preliminary Inquiry, PW3 testified that she had not learned anything about the Appellant from the Internet prior to meeting the Appellant in person on the day that she alleged he raped her.”

45.  Of the significance of that evidence, in his affidavit dated 2 November 2016, Mr Marash said:[10]

“The answer from PW3 that she had not received anything on the Internet about the Applicant, if true, was totally detrimental to his conspiracy theory defence to Count 3.”

23 March 2015‑conference

46.  Whilst there was no dispute that there was a conference between the applicant, his counsel and solicitors on 23 March 2016, issue was taken between the applicant and his lawyers at trial as to the position taken by the applicant in respect of the conspiracy defence in relation to the allegation of rape by Ms Y, averred by Count 3.

47.  In his oral testimony before this Court, the applicant said that at the conference on 23 March 2015 he had been advised by either Mr Kwan or Mr Marash that if he ran “...the conspiracy defence relating to PW3” he would not have a chance of winning at trial.  In face of that advice, he told his lawyers that he would follow their advice and “drop the conspiracy theory regarding PW3.”  The applicant said that he communicated that decision to his lawyers, albeit that he said “I wasn't convinced but had decided to follow their advice.”  He did so because they were “experienced lawyers.”  Thereafter, he did not pursue that line of defence in respect of Count 3.

48.  The applicant said that his statement to his lawyers that he would follow their advice and abandon the conspiracy defence in respect of Count 3 was reflected in the notes of the meeting made by Mr Dennis Li, a trainee solicitor, and those of his solicitor, Mr Christopher Short.  Mr Dennis Li noted that the applicant had said “I will follow your advice.”

49.  For their part, Mr Marash, Mr Kwan and Mr Short all denied that the applicant had changed his instructions to them at the conference of 23 March 2015 or told them that he would accept their advice and not pursue the conspiracy defence in relation to Ms Y.  Mr Marash did not accept that Mr Dennis Li's note supported the applicant's account of those events.  Mr Marash said that the statement attributed to the applicant in those notes, that he would follow advice, was a reference only to the advice given in respect of the defence inability to prove that Ms Y had undergone a reconstruction of her hymen.  Of the applicant's conspiracy defence in relation to Ms Y, Mr Marash said:

“At all times until PW3 entered the witness‑box, the defendant wanted three girls to testify in the same trial. He believed that those three girls, the first two having admitted that they had contact with Shannon and Migina, the jury might think the third one had contact with Shannon and Migina.”

50.  Subsequently, Mr Marash testified:

“By the time, PW3 got into the witness-box, the defendant had agreed to abandon his conspiracy theory because we had told (him) that it would probably damage a good defence because she would deny any conspiracy, particularly if there was one, of which there was no evidence.”

51.  Of the circumstances in which the applicant came finally to accept that advancing a suggestion of a conspiracy to Ms Y to make a false allegation against the applicant would be futile, Mr Marash testified:

“We had a conference here at court, I believe, and we told him that there was little hope, if any at all, that a person in a conspiracy would admit it. And there was nothing to support it, and if she denied it, it would look — he would look silly. On the other hand, there was very severe credibility problems with PW3’s evidence and that his best hope of being successful in his defence was to take her up on credibility issues rather than conspiracy issues which would be denied. And eventually, he agreed.

Now, if you consider what I said earlier, the — the likelihood of convincing any jury that a virgin, who hardly had met him, would have sex with him while having a period or having her hymen reconstructed knowing that he had venereal disease, obviously that is a hard story to put to any jury and we did our best to convince him all along not to do that. He’s a difficult person, he was quite stubborn about it. But in the end, even he came to realise, I believe, that it was pretty hopeless to run that defence."

52.  For his part, Mr Short said that the applicant had not abandoned his conspiracy defence in relation to Ms Y at the conference on 23 March 2015.  His own note and that of Mr Dennis Li did not refer to such instructions.  In his testimony, Mr Short said of the applicant:

“...was he convinced of the conspiracy theory with PW3 and Migina and Shannon? Yes, he was. Did we go into trial like that? Yes, we did. Did he eventually have to concede at some point that it wasn’t going to work with PW3? Yes.”

53.  Of the applicant's instructions in respect of the allegations made by Ms Y, Mr Short said:

“...he, from the very beginning, had proffered as being — she wasn’t a virgin, that this blood issue was menstrual — whether it was menstrual blood or virgin blood; whether there was something inside her that she had released. This — this never stopped. It pervaded all of his — his meetings, the conspiracy theory, it never died. It never — never went away. It continued — it continued all the time.”

54.  Of Mr Dennis Li's note of the conference of 23 March 2015, Mr Short said:

“So when you say look at this note of Mr Li and then say — well it says, ‘I’ — what does it say, it says, ‘I will accept your advice,’ I think. There was no reaction there. There’s no — there’s no further discussion. It doesn’t make sense that if that’s what — if that’s the interpretation that you’re placing on it now, it doesn’t make sense to look at the rest of it because the rest of it doesn’t — doesn’t follow what would have happened had that been the case that he dropped this conspiracy on that day. Well, Mr Marash, wouldn’t have stood up the following day and said there’s no application for severance. It — it didn’t flow that all of a sudden Mr Frank says, ‘That’s it, I’ve given up. There’s going to be no more about the conspiracy. It’s the last you’ll hear of it from me’ It doesn’t — it doesn’t follow. You know, further down he’s still talking about the set up. Still further down he’s talking about other matters. There isn’t that conversation that would naturally flow from having had this conspiracy all this time. So that’s when I say when we move forward past that meeting, that conference, that — on the 23^rd — there’s still a conspiracy there, it hasn’t been taken, it hasn’t gone. It’s not — it doesn’t — doesn’t disappear on that day.” [Italics added.]

55.  Mr Dennis Li’s notes of the conference of 23 March stated, inter‑alia:[11]

“DM: still need to call Dr as witness re virgin?

LF: Yes.

DM: No evidence against her not being a virgin, you said maybe she's a virgin. What to ask if the doctor in box? JM’s bro is a doc too hard to tell anyways from M Blood/V blood. You want to suggest (1) she is virgin? or (2) woman during her period came to have sex with you?

LF: to set me up.

DM: you have nothing to contradict her. If you say setup, you are really saying a woman in her period came to have sex with you.

- Do you have any evidence against the doctor’s...? No.

- The girl's story is already loads of crap. If you start going on with setup, M/V blood it won't help you.

DM: no evidence at all regarding setup or to link up the girls.

LF: they can reconstruct Hyman, put ‘blood’ in vagina.

JK: where is your evidence.

LF: no evidence. I will follow your advice.

DM:...

- witnesses are mainly the three girls and your interviews will go in. Other evidence does not matter.

DM. Who contacted first.

LK: I contacted her first. She put attractive photos so as to set me up real person not so attractive.

DM: you contacted her first so how can she set you up!

JK: we can run with your Line of Defence but it will be hopeless if you run it with our defence, you may have a chance.”

24 March 2015 : Pre‑trial review

56.  There was no dispute that the issue of severance was raised by Barnes J at a pre‑trial review held on 24 March 2015.  In the course of that hearing, the following interchange ensued between the judge and counsel:[12]

“COURT: Right. And no — because there are three counts, right?

MR MARRAY: Yes.

COURT: And they involve different people though.

MR MARRAY: Yes, three separate persons.

COURT: And you’re quite happy for them all to be heard together? No question of separation?

MR MARASH: At this stage, no. I don’t think...

COURT: No, all right. I mean, I can sort of see there might be, as far as the defence is concerned, some links that you would like to them to be heard together rather than separately.

MR MARASH: There may be.

COURT: So I just wonder whether...

MR MARASH: We will consider it further, but if there is to be such an application I’ll let you know well in advance of the trial.”

57.  There was no dispute that after the pre‑trial review an impromptu conference was held at Court between the applicant and his lawyers.  Of the applicant’s reaction to the fact that the judge had raised the issue of severance, Mr Marash said:

“...the defendant, having heard the judge raise the issue of severance, when we first saw him he was quite shocked. Not, in my view, shocked because he could get separate trials, which we explained to him was theoretically possible, but shocked because he didn’t want it. He immediately said to us, ‘What’s this? I don’t want separate trials’ or words to that effect.”

58.  Of the possibility of making an application for severance, Mr Marash said that the applicant was advised that “such an application did not have a great chance of success due to the similar modus operandi in each offence and the fact that the three allegations against him were not particularly far apart in time.”[13] Of the basis on which he formed that opinion, Mr Marash said in his evidence:

“So my view at that stage was based on my experience that given the fact that there was a modus operandi that applied to all three offences, which was virtually identical on PW2 and PW3, only different in relation to PW1 because she was taken to lunch first, that this was a series of offences of the same or similar character. The only difference being that the second girl got away because she said she pushed him off. And the second and third offences were not far apart in time, about six weeks, from memory. I think the first offence was about five months before the last offence. So that based on all of those reasons, I and I think Mr Kwan, both took the view that the chance of succeeding on an application for severance was pretty much hopeless.”

59.  Mr Marash went on to explain that, in any event, no application was made because the applicant wished to have the three counts tried together:

“So the issue of severance was not discussed with him at any stage until that impromptu conference after the pre‑trial review....

At that — at that point, because of his attitude, ‘I don’t want it to be severed’ and which continued on, there was no point giving any dramatic consideration.”

60.  Subsequently, Mr Marash said:

“I would have been delighted to have separate trials, three separate trials. Alternatively, I would have been delighted to remove PW3 from the trial because it would have made our task much easier. I told the defendant from the beginning your problem in this case is particularly PW3 because of all the matters that I’ve put forward; lack of previous contact, a virgin, etc, etc. I had always told him PW3 was his big problem. I would have been delighted to have her severed if he had not insisted that they go to trial altogether because he couldn’t otherwise explain why PW3 had made a complaint against him.”

61.  In refuting the suggestion that the applicant had not been provided with sufficient advice to make an informed decision as to the issue of severance, Mr Marash said:

“He made an informed decision. He was told two things, not three. The first was, very little, very (un) likely he would ever succeed in an application for severance, particularly in relation to Counts 2 and 3, but I didn’t express it that way, because they were six weeks apart with a similar MO, same — series of same or similar offences. Very hard to see how any judge could properly rule there should be severance; that’s point 1. Point 2 was he didn’t want the severance. My understanding is he didn’t want it because he wanted the three girls in one trial and there was a cost issue. We followed his instructions. He was fully informed.”

62.  For his part, the applicant confirmed that in the impromptu conference on 24 March 2015 he had been advised that an application for severance, if successful, would result in the trial being divided.  He confirmed that Mr Marash had advised that an application for severance would likely be unsuccessful and that it was not “worth” making the application.  There was no discussion, if an application was made, about what count(s) could be severed.  The issue of severance was never discussed again.

63.  There was no dispute that the various drafts of the appellant’s proof of evidence and the final version of that document did not contain any references to the conspiracy defence in relation to Ms Y.  In his evidence, Mr Short explained:

“the proof of evidence wasn’t a defence theory, it was his instructions to us as a fact.”

64.  In his affirmation, dated 15 September 2016, Mr Kwan attached as an exhibit an “Advice on Appeal against Conviction and Sentence” dated 25 September 2015.  In the advice, Mr Kwan asserted “The Defendant elected not to sever Counts 1, 2 and 3 against him into separate trials and proceeded to have the three allegations heard together.”

65.  For his part, the applicant testified that the statement in Mr Kwan’s advice was not correct.  The applicant explained that for his part he focused on the grounds of appeal identified in the advice and since the matter was not relevant to those grounds of appeal he did not raise the issue.

Exhibit D4

66.  In the cross‑examination of Ms W and Ms X, exhibit D4, a Facebook broadcast message was adduced into evidence.  The applicant testified in this Court that he had been provided with a document by a friend in Belgium and in turn had provided it to his lawyers.  The document stated , inter‑alia:[14]

“Hi, I suppose you know Laurent Frank. I do not know how you guy(s) met. The worst case would be you have dated/you are dating him. Some of you might know him in other occasions, simply as an acquaintance. We met each other on the Internet and started dating for few months (to be exact from late June to mid‑Sept). Things had been normal at the beginning, until I found that I have been contracted with genital herpes. I still was not sure if it was from him. After some time, I found that he always has some new female stuffs appearing in the washroom which do not belong to me. He told me they are from his ex gf. In the meantime, I also found that hes (sic) still active on a dating site we met. I confronted him but he assured me he only checked messages but rarely replied. That went on until 22 Sept, I bumped into another girl who just left his apartment. We were both devastated. After talking to her, I found that there were not only two of us. There are more girls he has been seen. Many of the stuffs and appeared in his place could belong to other women. He was shocked to see both of us at the same time. He then started to act violent and injured the other girl rather severely. We called the police. He was arrested. Afterwards, both of us girls decided to find out other women and warn them about him. We kept sending messages on that site to girls, got many replies. Indeed, we found that the six other females who had been in touch with them. A few of them have even met him. 2 of them had slept with him. One girl luckily escaped when he attempted to rape her.”

67.  Of the circumstances in which he gave the document to his lawyers, and the subsequent use of the document at trial, the following exchange ensued in the appellant’s evidence‑in‑chief in this Court:

“Q. So did you then give a copy of it to Mr Marash, or Mr Short, or your defence team?

A. I think at the — yes, I think at the time I gave a copy to Mr Short.

Q.   And whose decision was it that it should be produced as evidence in your trial?

A.   Well, I assume it was decided by Mr Marash.

Q.   Did you say anything in that regard?

A.   No.

Q.   Were you explained by anyone the possible consequences of producing this document in the trial?

A.   Absolutely not.  No.

Q.   Did anyone explain to you that the contents of this document could have potentially disastrous consequences so far as your...

A.   Absolutely not.

Q.   ...defence on Charge 3 was concerned — Count 3 was concerned?

A.   No.  No, absolutely not.

Q.   Do you know when the decision was made to produce this as an exhibit?

A.   I — I do not know.  Honestly, I — it — it was decided, I guess, by Mr Marash.”

68.  For his part, Mr Kwan testified in this Court that the applicant had provided Mr Marash with the document in one of their early conferences with the applicant.  He confirmed Mr Marash's testimony that the applicant had been warned of the “dangers” to the applicant of adducing the document into evidence at the trial.  Of that issue, and the circumstances in which the document was adduced into evidence, Mr Kwan said in cross‑examination:

“Q. It was during the trial that Mr Marash decided to produce it as an exhibit.

A. Well, he didn’t decide to produce it. We — Mr Marash had instructions to produce it.  I — whilst listening to the evidence earlier on I remember Mr Marash telling the applicant that of course there are dangers in this document, but it says that — it basically says that girls were tricked, but that does not equate to rape.  I remember him, Mr Marash, telling the applicant that.”

69.  Of the circumstances in which the applicant gave him the document, Mr Marash testified in this Court:

“This was one of the first documents he ever showed us. When he came in for the first conference, he produced this document. It’s all a conspiracy, see.”

70.  Of the circumstances in which the document was adduced into evidence, Mr Marash testified:

“I advised him it was a dangerous document. He wanted me to produce it to witnesses to support his conspiracies — conspiracy theory. He was duly advised that it contained damaging material.

Q. And he — he still insisted on it being produced.

A.    Yes, instructed us...”

71.  Of the fact that the applicant was aware that the document was to be produced to witnesses, Mr Marash testified:

“Given that he was sent a list of questions that were going to be asked of the witnesses which would have contained this document — a reference to this document, he was fully aware that it was going to be produced. He made no objection to that course of conduct...”

72.  Of the time at which it was determined to adduce exhibit D4 into evidence, Mr Marash testified “...a final decision on that would be made when I was preparing my cross‑examination.” Clearly, that statement was a reference to the cross‑examination of Ms W, who was the first of the three complaints to give evidence.

73.  For his part, Mr Short confirmed in his testimony in this Court that Mr Marash had advised the applicant of the “danger” of the use of exhibit D4 at the trial.

74.  There is no dispute that Ms W and Ms X were cross‑examined in relation to exhibit D4 to establish a basis to support the suggestion that was why they were prepared to give false evidence against the applicant.  In respect of Ms X, the judge reminded the jury that it had been suggested that she was thereby “...motivated to give evidence against the defendant and give, perhaps, false evidence against the defendant.”[15]

75.  We have no hesitation in accepting the evidence of Mr Marash, Mr Kwan and Mr Short who said the applicant did not give them instructions at a conference on 23 March 2015 that he abandoned his instructions that the allegation of rape of Ms Y was the product of a conspiracy or set up.  Such a change in instructions would have been dramatic.  Mr Short gave very powerful, compelling evidence contradicting the applicant’s assertions, in particular he spoke of the applicant’s obsession with his overall conspiracy theory, describing it as “absolutely relentless” and “unremitting”.  We reject the applicant’s evidence in this regard.

76.  We do not accept that the notes of the conference of Mr Dennis Li support the applicant.  We accept the evidence of Mr Marash that the statement attributed to the applicant “I will follow your advice” was a reference only to the advice given to the applicant that there was a complete absence of any medical evidence in proof of the applicant’s theory that Ms Y had undergone a reconstruction of her hymen.  As is evident from the notes, shortly after that statement, the applicant said “she put attractive photos so as to set me up.” [Italics added.]  Far from abandoning his conspiracy defence in relation to Ms Y, clearly the applicant persisted in those instructions.  Perhaps, the applicant hoped, however unrealistically, that something would emerge in the evidence that connected Ms Y with the others in the conspiracy.

77.  We accept the evidence of Mr Marash that it was only in the immediate prospect of cross‑examination of Ms Y that, finally, the applicant accepted the long‑standing advice given to him by his lawyers that allegations of a conspiracy against Ms Y would be fruitless.  Clearly, she could be expected to deny such a suggestion and there was nothing to contradict that evidence.

78.  We accept the evidence of Mr Marash that the applicant wished to have the three counts tried in one trial.  Perhaps, he was motivated to maintain instructions by the hope that the available evidence of contact between Ms W and Ms X with Shannon and Migina, prior to their making any report to the police, would somehow assist in the establishment of a link with Ms Y of the same kind, notwithstanding the advice that he had been given that was an unrealistic expectation.  In those circumstances, an application for severance of Count 3 from the other counts would have been contrary to the applicant instructions.

79.  In any event, we are satisfied that Mr Marash’s sanguine evaluation thereof that it would have been very difficult to succeed in an application for severance of the counts was correct.

80.  In its judgment in HKSAR v Keung Chi Shing[16] this Court cited with approval the judgment of the House of Lords in R v Christou[17] in respect of the approach to be taken by a Court to the question of severance.  In HKSAR v Keung Chi Shing the judge had refused to sever multiple counts of linked rape and robbery offences relating to 5 prostitutes.  In the result, the judge withdrew many of the counts so that the jury were asked to deliver verdicts on three counts of rape only.  They acquitted the applicant of one count and convicted him of two counts of rape. In the judgment of the Court, Mortimer VP said:[18]

“The real point made, however, is that because there were a number of different victims giving evidence in separate rapes, severance ought to have been ordered. That is not a matter upon which this Court is able to say that the judge was in error. There was no reason to think that a fair and just trial could not take place for rapes of prostitutes which did not involve any usual or scandalous matters.”

81.  In his speech in R v Christou, with which all the other judges agreed, Lord Taylor CJ said that the essential criterion in the resolution of an application for severance of counts on an indictment was fairness:[19]

“That requires fairness to the accused but also to the prosecution and those involved in it. Some, but by no means an exhaustive list, of the factors which may need to be considered are:‑ how discrete or inter‑related are the facts giving rise to the counts; the impact of ordering two or more trials on the defendant and his family, on the victims and their families, on press publicity; and importantly, whether directions the judge can give to the jury will suffice to secure a fair trial if the counts are tried together. In regard to that last factor, jury trials are conducted on the basis that the judge’s directions of law are to be applied faithfully. Experience shows, as for example in Reg. v Blackstock, 70 Cr App R 34 and in the instant case, that juries, where counts are jointly tried, do follow the judge’s directions and consider the counts separately.”

82.  No issue was taken on behalf of the applicant that the three counts on the indictment were properly joined.  The only issue was whether or not an application for severance ought to be made and, if so, whether failure to make such an application rendered the applicant's trial unfair.  We are satisfied that Mr Marash’s opinion that such an application would have had a low chance of success cannot be criticised.  Quite obviously, it was to be expected that in the face of such an application the judge would have been mindful of his power to give the standard directions to the jury to approach the counts separately.  In the event, he did so:[20]

“...let me give you another important direction. As you can see, there are three counts set out on the indictment. Each count alleges a separate offence, and for that reason, you must consider each count separately from the other counts. That means you must consider the case for and against the defendant on each count separately. The evidence concerning each count is different, and therefore simply because you convict or acquit the defendant on one count does not mean your verdict in respect of any other count would be the same.

And in that regard, let me emphasise this related matter. There are three witnesses in this case. Ms W, Ms X and Ms Y who alleged that the defendant raped them or indecently assaulted them. You must be very careful in considering their evidence, that you do not conclude, because you are sure that one is telling the truth, that either or both of the other two must be telling the truth. Equally, if you have a doubt about whether one of those witnesses is telling the truth, you do not assume either or both the other two may not be telling the truth.

As I have said, you consider the three counts on the indictment separately, and a part of that is that you assess the credibility of each of Ms W, X and Y separately.  You do not allow your finding concerning credibility in respect of one of those witnesses to influence your finding of credibility in respect of another.”

Exhibit D4

83.  We have no hesitation in accepting the evidence of Mr Marash, Mr Kwan and Mr Short that the applicant was advised of the obvious dangers of adducing exhibit D4 into evidence at the trial.  We reject the applicant's evidence to the contrary.  Similarly, we are satisfied that it was on the applicant’s instructions that the document was adduced in evidence in the cross‑examination of Ms W and Ms X.  As Mr Marash no doubt anticipated, such dangers as might be anticipated of adducing exhibit D4 into evidence were ameliorated by the directions given by the judge to the jury.

The judge’s directions

84.  In the course of the evidence of Ms X, soon after she had been confronted in cross‑examination with exhibit D4, the judge interposed and gave the jury the following direction:[21]

“COURT: Thank you. Members of the jury, the situation is this, and I’ve already told you, hearsay is not evidence that proves any fact, so in respect of Exhibit D4, for example, this part of Exhibit D4, the message that refers to somebody being severely injured, does not prove anybody was severely injured because it’s hearsay. It cannot prove that fact and any other fact that seems to be mentioned in Exhibit D4 cannot be proved by D4 either.

Hearsay evidence is extremely unreliable and for many hundreds of years has never been able to prove anything in the common law, which has been the law of Hong Kong since 1840, so please don’t use this as any suggestion that it proves any fact.

The only reason this message is in evidence is to simply show that the witness received it, got this information, that’s all, and what Mr Marash I anticipate will make of that is that as a result of that the witness did something.  That’s all the message can be used to prove, simply that the witness received it and acted upon it in some way that we are yet to hear about.  Please don’t in any way believe that it proves any of the facts mentioned in it.”

85.  No doubt, the judge’s reference to an earlier direction in respect of hearsay was in respect of the earlier cross‑examination of Ms W, to whom the same document had been produced.  Certainly, in the summing up the judge gave the jury a similar direction in respect of exhibit D4, stating that it and other public messages on the Internet:[22]

“ ...are no proof whatsoever of the truth of their content. Those messages prove nothing in this case about the defendant’s prior behaviour, or whether or not he had some sort of sexually transmitted illness. You cannot and must not take this area of evidence into account against the defendant. The only purpose of this area of evidence, referred to and produced in the course of the defence case, was to suggest W and X had a motive to incriminate the defendant and did so in their evidence as a result of their contact and meetings with Migina or Shannon.”

86.  In the context of the evidence of Ms W, he repeated that direction:[23]

“Members of the jury, I know you are sick of this direction, I have given it to you a number of times. So you know it is most important. What you have learnt of this message on D4, and anything like it that she said she may have gotten on her mobile telephone, or what was said to her by the WhatsApp group during their conversations, you cannot take into account against the defendant in any way. I told you during the trial that you ignore this evidence as anything adverse, that is, against the defendant or prejudicial to the defendant, and you must bear that in mind. The sole purpose of this area of evidence is that Mr Marash is suggesting it as a reason why W may have been motivated to give evidence against the defendant and give, perhaps, false evidence against the defendant.”

87.  In the course of his summary to the jury of the evidence of Ms X, the judge repeated the essence of that direction:[24]

“She was shown Exhibit D4. And you remember what I have said about how you do not take D4 into account in any adverse way against the defendant. She said the first message she got was not necessarily D4. She did not think it was D4, but the contents of the message she got was similar to what was in Exhibit D4.”

Conclusion

88.  For the reasons we have set out, we are satisfied that the trial proceeded as a trial of all three counts and exhibit D4 was adduced into evidence in the cross‑examination of Ms W and Ms X with the informed consent of the appellant.  The conduct of the defence in that way fell within the ambit of the counsel’s power to conduct the trial in the best interests of his client.  Clearly, Mr Marash was alive to the advantages and disadvantages of conducting the defence in this way. Irrespective of the fact of the applicant's consent, these decisions were tactical decisions in the defence case, for which the applicant is responsible.

Cross‑examination of Ms X: allegations of uncharged acts

89.  In her written submissions, Ms Panesar submitted that cross‑examination of the applicant in respect of his conduct towards Ms X accused him “of the uncharged attempt to rape X”.[25]  That was impermissible, given that the applicant was on trial for the indecent assault only of Ms X.

90.  As Ms Lai pointed out in her written submissions, counsel for the prosecution did not accuse the applicant of attempting to rape Ms X.  As noted earlier[26], in one of the questions, on which Ms Panesar relies, it was suggested to the applicant in cross‑examination in respect of Ms X that his “intention” in bringing her home was to have “sex” with her.[27]  In fact, the question posed was a double‑barrelled question, so that it is not clear to which question the negative answer was addressed, or whether it was addressed to both questions.  The second suggestion was that he could not care less whether or not she consented.  Certainly, it was not suggested in terms in the cross‑examination of the applicant that he had attempted to rape Ms X.  As Ms Lai pointed out, there was no objection by the applicant’s leading counsel at trial to these questions

91.  Mr Marray’s closing speech for the prosecution was consistent with that approach:[28]

“... on the evidence of X surely there can be no doubt that she did not agree to his molesting her and she made that very clear to him yet he continued to sexually assault her despite her protests. Now, any right minded person would consider the defendant's conduct in decent. He intends to molest her knowing full well she did not want any sexual relationship with him because, after all, they were practically strangers and X did nothing to encourage him and he pushed her down on the bed, forced up her clothes and kissed her breasts in the manner she described.”

92.  There is no merit whatsoever in this sub‑ground of appeal.

Lurking doubt

93.  In her written submissions, Ms Lai submitted, in effect, that a ground of appeal based on “lurking doubt” as to the safety of a conviction is to be approached with circumspection.  She invited the Court to note that in HKSAR v Chau Shu Ho[29] this Court had cited with approval the earlier judgment of Roberts CJ to that effect:[30]

“It is as well to state the approach to be adopted upon an invitation to invoke the ‘lurking doubt’ principle. It is conveniently encapsulated in two judgments of Roberts CJ:

(1) In Tang Wai‑tong and Another v R [1979] HKLR 479 at pp 486‑487, he said that:

‘We think that the lurking doubt formula must be applied with great caution. An appellate court, reading papers and not seeing witnesses in the way that a jury does, must be cautious in imposing its subjective feelings for the conclusions reached by men and women who have had the advantage of seeing the witnesses and assessing their credibility.

In our view, ‘lurking doubt’ means not an insubstantial doubt but a substantial remaining doubt.’”

Count 2

94.  As Ms Panesar acknowledged in her written submissions, and as has been noted earlier in this judgment, the judge gave the jury repeated directions both during the evidence and in his summing up in respect of the hearsay nature of exhibit D4.  It was not proof of the facts described therein.  It was only relevant in suggesting a reason for Ms W and Ms X to give false evidence against the applicant. 

95.  Also, the judge directed the jury in respect of Ms W and Ms X:[31]

“Both, according to their evidence, made a report to the police only after some considerable time following the events in respect of which they had given evidence. Those reports to the police were made only after they had been in some form of contact with the two women, Migina and Shannon. For that reason, approach the evidence of W and X with some caution, and consider carefully whether their evidence before you may have been influenced by their communication and meetings with these two women, and whether, therefore, their evidence was tainted and unreliable.”

96.  Earlier, the judge directed the jury:[32]

“And if you conclude there is a possibility that W or X did exaggerate or falsify their evidence before you as a result of their involvement with Migina or Shannon, then you should disregard their evidence.”

97.  Clearly, the essential issue that arose was one of credibility. That was an issue pre‑eminently within the province of the jury.  Needless to say, the judge had given the jury the relevant standard direction: that they were the “sole judges of the facts”[33]; that in approaching the evidence of witnesses who had given oral evidence they were entitled to accept some and reject other parts of the evidence of a witness[34]; that they were to use their common sense and to bear in mind that demeanour may be an unreliable way of determining credibility; and that they were to have regard to matters relevant to the significance of inconsistencies in evidence.[35]

98.  As noted earlier, the judge had given the jury strong directions in respect of the need to approach the credibility of each of the complainants separately[36] and of the need to approach each of the counts separately.[37]

99.  That the jury were able to approach their task in compliance with the directions of the judge, notwithstanding that the alleged prejudice flowing from exhibit D4 impacted on the separate counts concerning Ms W (Count 1) and Ms X (Count 2), is evidenced by the fact that the jury were unanimous in acquitting the applicant of Count 1 and unanimous in convicting the applicant of Count 2.

Conclusion

100.  We are satisfied that there is no merit in this ground of appeal.

Count 3

101.  In respect of Count 3, it was submitted that there was a “lurking doubt” about the safety of the applicant’s conviction given that there were aspects of the applicant’s evidence in cross‑examination which was said to be in contradiction of her evidence that sexual intercourse took place in face of her articulated refusal for that to happen.

102.  The judge summarised the evidence of Ms Y at considerable length in his summing up.[38]  Then, he summarised the applicant’s evidence at some length.[39]  At the outset, the judge had reminded the jury, that the defence case was that all sexual activity with the complainants was consensual.[40]

103.  It is clear that in the course of summarising Ms Y’s evidence the judge drew attention to matters that the defence suggested contradicted her account of events, in particular that she had been raped. In the course of doing so, the judge said:[41]

“Now, in cross‑examination, she said she kissed the defendant before they said goodbye at Wan Chai, in the vicinity of Wan Chai Railway Station, the vicinity of where she kissed him before she left. She agreed she could have run away or screamed, but she was used to following his orders. In cross‑examination, she said this; that she agreed she had been warned by Prime Minoru that it was dangerous to go to a man’s room. You might think that is in conflict with the other part of her evidence, where she said she did not get the message from Prime Minoru because she was already in or on the way to the defendant’s room. She agreed in cross‑examination that she had suggested to the defendant that she would masturbate him, also you might think it is a little different from her evidence—in‑chief where she said it was the defendant’s suggestion.”

104.  However, the judge went on to put that evidence into context:[42]

“She said, “But I had told him I was a virgin, and he did not stop, so I suggested this.  And you might think from her answer, she was suggesting that as an alternative to having sexual intercourse or further sexual intercourse.  It is a matter for you to decide what the evidence means, members of the jury.”

105.  Then, the judge went on to say:[43]

“She took off her clothes, or the remainder of her clothes, her upper garments, because she had a feeling she did not have the ability or the time to do anything. She had no strength. She let the defendant unfasten her bra. She said once the clothing on her body was removed, she did not pay close attention to the defendant’s actions; she was just thinking ‘it was over’ — I do not know what she meant by that and please, members of the jury, bear in mind that the evidence is up to you to decide."

106.  Also, the judge reminded the jury:[44]

“It was put to her that she was lying on the bed naked while the defendant took her clothes off and got a condom and she agreed, yes, for a few minutes, that she just lay there, she said, because she was so scared. She agreed there was nothing physical restraining her.”

107.  Again, the judge went on to put that evidence into context:[45]

“She was thinking of what she could do to leave as soon as possible. She said this was the first occasion she was in one room with a man and she just wanted to leave. She felt so powerless, she could not move, and she regretted being powerless.When the defendant attempted to penetrate her, she had said ‘no’ because it hurt and she started to struggle when he started separating her legs, and she said ‘no’ or ‘stop’ at that time. She said when she felt the pain, she was already, therefore, struggling.”

108.  Furthermore, the judge reminded the jury:[46]

“She agreed she had come out of the bathroom naked but she was still bleeding and she had no sense of what to do and no idea of covering her body. She agreed to masturbate the defendant as she did not want to have sexual intercourse again. That is why she agreed to masturbate him.”

109.  Again, the judge went on to put that evidence into context:[47]

“She said she was crying, her body was trembling, she had no strength or courage to run away. She said she had been crying during the sexual intercourse and that she was in a devastated state. She said all along she had been crying and resisting and then he suddenly stopped having intercourse. She was angry at the defendant; she was angry at herself because of believing someone so easily.”

110.  Finally, the judge directed the jury that there was evidence that supported Ms Y’s account.  She had made recent complaints to her friends Mr Minoru and to Ms Grace Ngan.[48]  She complained to the former in a text message sent from the applicant’s apartment.  That evidence was available to “...bolster her credibility”.[49]  Furthermore, the judge reminded the jury of the evidence of the forensic pathologist of injuries to Ms Y, namely that she had a scab wound on her left arm and a scratch which had been inflicted on her within 48 hours and, in particular:[50]

“...she found a freshly torn hymen; it had been torn in three places and she said it takes substantial pressure to tear a hymen. So her opinion was that this was a recent penetrative injury by something which passed through the hymen and that injury was consistent with sexual intercourse.”

Conclusion

111.  We are satisfied that the judge had set out the evidence relevant to the issues arising in count 3 most comprehensively and fairly.  On any view, the prosecution case was compelling.  Highly relevant to the issue of consent was Ms Y’s evidence that she was a 20‑year‑old virgin who had met the applicant for the first time only minutes before sexual intercourse took place.  There is no merit in this ground appeal.

The appellant’s response to WhatsApp messages from Ms Y

112.  As was noted earlier[51], after Ms Y had left the applicant’s flat there ensued an exchange ofWhatsApp messages between them in which Ms Y alleged that she had resisted the applicant, to which allegation he responded.  The judge directed the jury:[52]

“Now, the last message from Ms Y was at 22.16, when she had mentioned being forced and being unwilling. 22.16. The defendant’s first response comes back nearly an hour, or more than an hour later at 23.20. Bear that in mind when I give you this direction.

You can see from those messages that the defendant responds to Ms Y’s allegations that she was resisting by saying he stopped when she asked him to, and that she helped him take off her clothes. Now, you can take this into account in the following way. Bearing in mind this was the defendant’s response when the allegation was made that he had, by implication, had sex with Ms Y while she was resisting, ask yourself whether his response was so spontaneous and so immediate as to suggest to you that he may have been telling the truth, when he effectively said he stopped when he was asked to stop, and that Ms Y had consensually helped him to remove her clothes.

If you think that may be so,that is this response of the defendant was spontaneous, then you must find the defendant not guilty of count 3. The principle here is, that when an allegation is first put to a person, their spontaneous response can sometimes be an indication as to whether what they say in that regard is true. And if you think it may be true that the defendant, from his response or replies, did in fact stop when he was asked to stop, and that she had helped him take off her clothes in presumably some consensual way, then take that into account in favour of the defendant.

But bear in mind the whole of the contents of this conversation, and bear in mind, members of the jury, particular the lapse of time between 21.16 — sorry, members of the jury, I cannot read the small print for the times... Bear in mind the time between 22.16, the last message from the witness to the defendant and the first response from the defendant to that message at 23.20. As I say, that seems to be about an hour or so later that he did respond. Do you regard that as spontaneous, or having such immediacy that you can draw from it the possibility that the defendant was telling the truth?

Or do you think, as Mr Marray has told you in respect of, generally, the defendant’s evidence that he, in these messages, was often trying to establish some sort of excuse or explanation for what had happened.”

113.  As Ms Lai pointed out in her written submissions, the judge canvassed with counsel prior to his summing up the directions to be given in respect of this evidence.  Mr Marray said it was the prosecution case that the applicant’s contacts with the three complaints after they had left his flat was “as if he’s trying to hide what he's done.”[53]  It is to be noted that in cross‑examination of the applicant, Mr Marray had suggested to him that he had sent these messages to Ms Y “to.. protect yourself (,) to give the impression that you had not raped her.”[54]  For his part, Mr Marash submitted that the applicant’s WhatsApp messages were admissible as the applicant’s reaction at the first opportunity to the allegations made by Ms Y.[55]

114.  After having received submissions, the judge indicated that he proposed giving this direction:[56]

“You can take into account that when the defendant was effectively accused by Y of having intercourse with her while she was resisting, he immediately said that he stopped when she asked him to and that she'd helped take off her clothes. In other words he denied using force and denied having intercourse without her consent. Ask yourselves whether his reaction was so spontaneous in this regard as to lead to the conclusion that his denials may have been true. If you conclude his demands may have been true then the prosecution have failed to prove their case against him on count 3.” [Italics you are added.]

For his part, Mr Marash said ‘That sounds reasonable, my Lord.’”

115.  As Ms Lai pointed out again, in his closing speech  Mr Marash raised with the jury the spontaneity of the applicant's response to the allegations made in the WhatsApp messages of Ms Y:[57]

“Remember when he made that statement he didn't know that she would report to the police...he was a spontaneous response from him, when he was first tackled by her on the allegation that he used force to have sex with her, and he denied it.”

116.  Clearly, given that the prosecution had put to the applicant that his response was a contrived cover up of what he had done, the issue of the time lapse before the applicant responded to the allegations was relevant.  The judge's direction to the jury recited the issues most fairly.  It is to be noted that no objection was taken to the direction by Mr Marash.

Conclusion

117.  We are satisfied that there is no merit whatsoever in this ground of appeal.

Recklessness

118.  The Judge directed the jury in respect of the issue of recklessness in relation to all three counts on the indictment.  The jury were provided with written directions in that regard.  The direction was that the prosecution was required to prove “that the defendant knew Ms W/Ms X/Ms Y was not consenting or was reckless as to whether or not she was consenting” to the sexual misconduct alleged. The judge gave the direction, notwithstanding Mr Marash’s objection to the direction being given to the jury.[58]

119.  The judge directed the jury:[59]

“So let me tell you what reckless means in our law. It simply means that the defendant knew there was a risk that Ms W, X or Y was not consenting, but ignored that risk and went ahead and had sexual intercourse with her so far as counts 1 and 3 are concerned, or indecently assaulted her so far as count 2 is concerned.”

120.  In respect of Count 1, the judge directed the jury:[60]

“...if you think it possible that the defendant may have had a genuine though mistaken belief that she was consenting, then the prosecution have not proven the third matter that is set out on sheet 1, and you must acquit the defendant on the 1^st count.”

121.  The context in which the judge came to give the direction was set out immediately before the direction was given:[61]

“As I understand the defence case, Mr Marash points to some aspects of the evidence which suggested the defendant may have genuinely believed that W was consenting. He had referred in his speech I think to W saying in her evidence, that the defendant had asked her to stay the night before they left his room, and that would perhaps suggest, says Mr Marash, I would think, that the defendant thought Ms W had no complaint about how she had been dealt with in the room by him.

Mr Marash relies, also, as I understand the defence case, on Ms W going to the defendant’s hotel room even after their communications about condoms had taken place.  And again, he points to the tone of the defendant’s WhatsApp messages to W in P121, 64, where, for example, he told Ms W that he misses her kiss.”

122.  In respect of the issue of recklessness in relation to Count 2, the judge said:[62]

"Mr Marash says, however, that even on her own evidence, Ms X was sending signals to the defendant that she was prepared to indulge in some form of intimacy.  Again, he relies on the fact that Ms X came up to the defendant’s room late at night, and that she removed her shoes, and that the defendant had met Ms X through OK Cupid, which is a dating website.  Consider whether the defendant may have gotten mixed signals from Ms X and may have thought she was willing to be intimate and at least indulge in some form of heavy petting.  Consider that, but remember also what I have told you of recklessness.  If you are sure the defendant realised there was a risk that Ms X was not consenting to the removal of her clothes and the kissing of her breasts, but went ahead and took that risk, then the prosecution have proven this last matter.”

123.  In respect of the issue of recklessness in relation to Count 3, the judge said:[63]

“Mr Marash says there were aspects of her evidence which suggested to the defendant she was consenting. I dealt with most of those in the previous matter, that is, coming up to his apartment, the taking off some of her clothing by herself, her lying on the bed naked without being held there by the defendant. Bear in mind, members of the jury, that even if you think it possible from the defendant’s perspective, that Ms Y was giving off mixed signals, if you are sure he was aware of a risk she was not consenting to sexual intercourse, but went ahead and had sexual intercourse with her anyway, then that is reckless, and the prosecution have proven this third matter.”

124.  Then, the judge went on to give a direction in respect of the issue of genuine but mistaken belief in the defendant of consent:[64]

“But remember also this direction I have already given you in respect of the 1^st count. On this occasion, it deals with Y. Even if you are sure Y did not consent to sexual intercourse, if you think it possible the defendant may have thought she was consenting, that is, if you think it possible the defendant may have had a genuine though mistaken belief that she was consenting, then the prosecution has failed to prove this third matter, and you must acquit the defendant of the 3^rd count. Because if the defendant may have had a genuine belief that Ms Y was consenting to sexual intercourse, then the prosecution have not proven that he knew she was not consenting, and nor have they proven he was aware of any risk she was not consenting.”

125.  We are satisfied that the issue of recklessness arose on the evidence and in those circumstances, whether or not the defence wished the direction to be given, the judge had duty to give that direction to the jury.[65]  There is no merit in this ground of appeal.

Conclusion

126.  For the reasons that we have set out, we are satisfied that there are no merits in the application for leave to appeal against conviction, which we refuse.