HKSAR v. CHAN SZE CHUN

CACC 171/2023, [2025] HKCA 870

On Appeal From [2023] HKCFI 2344

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 171 OF 2023

(ON APPEAL FROM HCCC NO 50 OF 2023)

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J U D G M E N T

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1.  On 18 July 2023, following a trial in the High Court before then Deputy Judge Woodcock (“the judge”) and a jury, the applicant was convicted of one count of rape, contrary to section 118(1) of the Crimes Ordinance, Cap 200. On 17 August 2023, the applicant was sentenced to 8 years’ imprisonment.

2.  On 22 September 2023, the applicant filed a formal Notice of Application for leave to appeal against conviction and sentence out of time. By the time the Notice was filed, the application was out of time by 7 days. In his affirmation explaining the delay, the applicant said that, as a prisoner, it had taken him time to discuss the matter of an appeal with his family. Given the short period involved, I shall accept the applicant’s explanation on this occasion and grant him the necessary extension of time.

3.  Having heard full argument on 11 September 2025, I reserved judgment on the question of leave. This is my decision.

The prosecution case

4.  It was alleged that on 7 January 2022, the applicant raped a 16-year-old girl (referred to as “X” at trial), inside his home on the ground floor of an address in Tin Shui Wai, New Territories. Three witnesses were called at trial, namely: X, Dr Yu Hoi Shuen Zoe (“PW2”) and Dr Cheng Sze Nga Sara (“PW3”).

5.  The applicant and X had met online via a ‘dating app’ known as “Heymandi” (“the app”) about 4 or 5 days before 7 January 2022. At the time, X was 16 years of age, while the applicant was 41, although he claimed in the app to be 27. The applicant did not post his name on the app but said he was looking for somebody to come and play at home with his cats. When the applicant and X subsequently made contact via Instagram and other platforms, he offered to give her $1,000 per week as pocket money. When she asked why, he said that X could treat him as an older brother or boyfriend.

6.  On 7 January 2022, the applicant met up with X and brought her to his home. The applicant then removed each item of X’s clothing, promising that he would only take off her jeans and not her panties; he would not interfere with her; he would not take her virginity; and he would not penetrate her. X had repeatedly said “no” at each stage and tried to resist but the applicant ignored her. After the applicant had removed all of X’s clothes, he first rubbed himself against X’s vagina and then performed oral sex on her for 5 or 10 minutes. Afterwards, the applicant penetrated X’s vagina with his penis, causing her considerable pain. Although the applicant said he would not enter X completely, the applicant kept thrusting into her for some 20 minutes, throughout which X kept saying “no” and that she was in pain. The applicant then withdrew his penis from X, whereupon he made her perform oral sex on him. Thereafter, the applicant put a condom on and had penetrative sex with X by having her straddle him, and then thrusting into her in a standing position. X explained that she did not know how to react and felt helpless at the time. She explained she was a virgin and had no previous sexual experience.

7.  In cross-examination, it was put to X that she had said to the applicant, “It slightly hurt. Don’t. Don’t thrust it. Don’t thrust it in so deep, and slower”, to which she agreed she may have said it but she was not sure[1]. However, she insisted she had said “‘No’ most of the time during the incident”[2].  

8.  Following the incident, the applicant drove X to the MTR station for her to go home. Whilst on the train, X posted a photograph on her Instagram account with a statement, “In this world, some people just enjoy raping girls”[3]. She posted another photograph of the inside of the train carriage[4] and within hours contacted a school teacher referred to at trial as “Z”, saying she wanted to talk to someone. She asked him the definition of ‘rape’ and he began a dialogue with her, during which she confided that she had been raped. Z accordingly persuaded her to report the matter to the police.

9.  X also had a further dialogue with an Instagram follower known as “Sad Toefl”, who had seen her uploaded photographs. She told Sad Toefl through private written messages and an audio message what had happened to her, with accompanying sounds of crying and sobbing.

10.  During the evening of the same day, X wrote in her diary, “As long as you used a dating app and went to someone’s home, there would be an expectation of sex”[5]. She further wrote, “I did shout and try to push him away”[6].

11.  A police report was made on 9 January 2022 and X was medically examined on the same day. She was interviewed by PW3, who was a clinical psychologist on 21 January 2022. The interview was video recorded and became her evidence-in-chief at trial, with X giving evidence via live television link.

12.  The applicant was arrested on 22 January 2022. Under caution, he said that he did not rape anybody. In two subsequent video recorded interviews, he maintained that he had had sexual intercourse with X, but with her consent. X did not say “no”, nor did she resist, appear unhappy, complain then or afterwards, or cry.

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

The defence case

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

15.  When X met the applicant at the MTR station on the day of the incident before going to his home, she had run up to him and held his arm or hand. When they got home, they played with his cats for a few minutes before having physical contact with each other. During sexual intercourse, X made moaning noises intermittently and he would ask X how she was feeling and whether she was comfortable. Nothing X did or said indicated to him that she was not consenting to sexual intercourse. He had penetrated her wearing a condom. At an initial stage, X said that it was a bit painful, and asked him not to thrust so deep and to go slowly. The applicant complied with all of her wishes. The applicant said that there was not a moment that he felt X was not willing to have sexual intercourse with him[7]. Nor was he aware that there was a risk she was not consenting[8]. He had no reason to believe she did not consent because she did not resist, she did not say “no” or ask him to stop, she was co-operative throughout and she had sexual intercourse with him in several different positions. Moreover, she did not appear to be unhappy afterwards.

16.  Following intercourse, the applicant helped X on with her bra and jeans. She then played with his cats, wearing only her bra without her top. The applicant took photographs[9] of X playing with his cat in such state, which were adduced in evidence.

Discussion before summing-up

17.  Before counsel delivered their respective closing speeches to the jury, defence counsel requested the judge to give what he termed an “honest and reasonable belief direction”[10] in her summing-up. Prosecuting counsel objected to this course, submitting that there was “no room” for the applicant to have been mistaken that X was consenting[11].

The summing-up

18.  In her summing-up, the judge directed the jury on the law in relation to recent complaint in respect of X’s conversation with Z and her exchange with Sad Toefl[12]. In respect of the entries in X’s diary, the judge told the jury[13]:

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

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

19.  As for certain matters in the applicant’s evidence, which were said not to have been put to X by defence counsel in cross-examination, and which were highlighted by prosecuting counsel in her closing speech, the judge directed the jury in the following terms[14]:

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

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

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

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

Appeal against conviction

The grounds of appeal against conviction

20.  Mr Kuan, on behalf of the applicant, has advanced four grounds of appeal[15]. Essentially, Ground 1 avers that the judge erred in refusing to give a direction on “honest but mistaken belief”, although it was a live issue. Ground 2 alleges that the applicant’s counsel at trial was flagrantly incompetent in five particular respects. Ground 4[16] complains that the judge failed to give a sufficiently strong direction in relation to defence counsel’s failure to put his case. And Ground 5 complains that the judge erred in failing to direct the jury about the limited evidential value of X’s diary.

Affirmations concerning the applicant’s complaint against counsel

21.  In his affirmation filed on 14 May 2025[17], the applicant has set out particulars of the five complaints against his counsel at trial, namely:

(i)  counsel failed sufficiently to explain the 1^st Admitted Facts[18] dated 5 July 2023 to him; 

(ii)  the 2^nd and the 3^rd Admitted Facts[19] were signed by his counsel without his prior consent; 

(iii)  counsel wrongly agreed to admit by way of Admitted Fact the alleged exchange between X and Sad Toefl; 

(iv)  counsel failed to take proper steps to adduce into evidence the contents of a medical report, dated 26 April 2022, prepared by Dr Chow Chi Wing Stephanie (“Dr Chow”) of the Department of Paediatrics and Adolescent Medicine, which were relevant as evidence of X’s inconsistency and, therefore, favourable to the applicant’s case;

(v)  counsel omitted to put crucial parts of the applicant’s case to X concerning, among other things, her moaning sounds during intercourse and the fact that X had texted the applicant after the incident. Further, defence counsel did not clarify before the judge and jury that he had written instructions on these matters, nor did he make any attempt to take responsibility for his omissions.

22.  The applicant filed a further affirmation on 30 December 2024[20], in reply to the evidence filed by his counsel and solicitors at trial.

Affirmation of the applicant’s legal representatives

23.  Defence counsel filed his affirmation in response[21] on 12 November 2024. The applicant’s legal representatives, namely, a solicitor, a law clerk and a paralegal filed their respective affirmations in response to the applicant’s complaint on 9 and 10 December 2024. In essence, issue is taken with the fact that any of the Admitted Facts were signed without the applicant’s knowledge and consent. On the contrary, it is their position, supported by contemporaneous documentation, that the applicant knew full well what he was admitting and matters had been gone into during the course of no less than 10 conferences at counsel’s Chambers. As for the exchange with Sad Toefl, this came about after the judge had ruled, following argument by counsel, that the evidence was admissible. As for the complaint about not adducing the evidence of Dr Chow, defence counsel took a view that it had advantages and disadvantages and the defence could not “cherry pick” from a statement that was hearsay anyway, since Dr Chow had never seen or personally examined X. In respect of the allegation that counsel failed to put certain matters, counsel avers that he had either put matters; or, if he did not, they were of no significance; or, if they were put, they might have attracted dangerous answers.

Applicant’s submission

Ground 1

24.  Mr Kuan submitted that the effect of the evidence from both the prosecution and the defence as a whole constituted a sufficient basis for the applicant’s belief, mistaken or otherwise, that X was consenting to sexual intercourse. Having viewed all the evidence as a whole and applying the reasoning in HKSAR v Ma Kin Yiu[22], which was further explained in HKSAR v Yip Ka Yu[23], the judge erred in refusing to give a direction on genuine but mistaken belief when it was clearly a live issue. It was further submitted that the present case resembled the facts in HKSAR v Cheung Hok Man[24], and that the judge’s failure to tell the jury that the applicant had a complete defence if he held a genuine belief that the complainant consented to sexual intercourse, even if that belief was mistaken or unreasonable, was fatal to the conviction.

Ground 2

25.  In respect of the 1^st complaint, Mr Kuan contended that it was clear from the affirmations in reply by the defence team at trial that neither trial counsel nor the solicitors had explained the 1^st Admitted Facts to the applicant.

26.  In respect of the 3^rd complaint, Mr Kuan noted that while trial counsel stated in his affirmation that he had objected to the admissibility of the Sad Toefl exchange[25], he conceded that he would not take issue with its admissibility as recent complaint evidence[26].

27.  As for the 4^th complaint, Mr Kuan submitted that Dr Chow’s medical report constituted a previous inconsistent statement, which could have been used to discredit X, once properly proved. It was pointed out that trial counsel had stated in his affirmation that it was his decision not to adduce Dr Chow’s medical report[27].

28.  As for the 5^th complaint, Mr Kuan emphasised that during cross-examination of the applicant, prosecuting counsel challenged the applicant in respect of the five issues referred to[28] and suggested that all of them were the applicant's recent invention[29]. The applicant answered that he had mentioned them to his lawyers[30]; and Mr Kuan noted that all five matters were, indeed, contained in the applicant’s proof of evidence of 21 June 2023[31]. However, defence counsel did not clarify that he had written instructions on these matters, nor did he attempt to assume responsibility for their omission in front of either the judge or the jury.

29.  Relying on Chong Ching Yuen v HKSAR[32], Mr Kuan argued that the errors by counsel, either alone or in combination, constituted exceptional circumstances that had resulted in the applicant not getting a fair trial, thus rendering the conviction unsafe and unsatisfactory.

Ground 4

30.  It was argued that the judge’s direction concerning defence counsel’s failure or omissions to put the applicant’s case to X was inadequate, thus rendering the conviction unsafe and unsatisfactory.

Ground 5

31.  Citing HKSAR v Chak Kong Fai[33], Mr Kuan submitted that X’s diary, the contents of which were self-serving, could not be relied upon by the prosecution or the jury to support X’s credibility. To the extent that the judge gave the impression that the diary entries could be so relied upon, it was a misdirection.

Respondent’s submissions

Ground 1

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

Ground 2

33.  The respondent did not make any specific submission on Ground 2 in his written submission filed on 6 February 2025; presumably because these matters were believed to be covered in his reply to the other grounds of appeal.

Ground 4

34.  Mr Leung first submitted that the judge’s direction on defence counsel’s failure to put certain matters to X was clear. Further, defence counsel had stated in his affirmation that the five matters of complaint were not put to her during cross-examination for reasonable, tactical reasons. Moreover, unlike the position in HKSAR v Lee Sze Lung and another[34], the five matters could not be regarded as a manifest indication of X’s consent to sexual intercourse. Since it would be unrealistic to suppose that X’s response to the five matters put to her would be anything other than adverse to the applicant, it could not be said he was thereby deprived of a fair trial.

Ground 5

35.  Mr Leung submitted that when reading the direction in respect of the diary in its proper context, the judge was only directing the jury that what X wrote in her private diary was not evidence that she was expecting to have sex before she went to the applicant’s home. It may be that she was blaming herself. The judge did not direct the jury to rely on the contents of the diary in order to bolster X’s credibility.

Appeal against sentence

Applicant’s background and mitigation

36.  The applicant was 42 years old when sentenced. He was married in 2003 but divorced in 2021. It was accepted that X had suffered post-traumatic stress as indicated in a Victim Impact Assessment Report prepared on her. The applicant’s counsel urged the judge to consider a term of imprisonment in the range of 5 to 5½ years.

Reasons for sentence

37.  After considering Secretary for Justice v Lau Yun Leung[35] and HKSAR v Tsang Chiu Tak[36], and in light of the facts and circumstances of the case, the judge adopted an initial starting point of 5 years’ imprisonment. However, she identified several aggravating factors, leading her to enhance the sentence by 3 years, namely:

(i)  X was very young (only 16 years old) at the time of the offence; the applicant was 25 years older[37];

(ii)  X was a virgin before the offence[38];

(iii)  accepting X’s evidence, there was penetration without a condom at the initial stage of the encounter[39];

(iv)  X had been diagnosed with post-traumatic stress disorder. The mental effects and consequences of the offence for X would be devastating and long-term[40]; and

(v)  the offence was pre-planned, with the applicant purporting to befriend X, who was a young, naïve and vulnerable girl, on a dating app before offering her money and luring her to his home to play with his cats[41].

Applicant’s ground of appeal against sentence and submission

38.  Mr Kuan advanced one ground of appeal against sentence, that the judge wrongly took into account that there had been penetration without a condom as an aggravating factor. This was not supported by the evidence, since it was X’s testimony that she was not sure whether or not there was penetration without a condom.

Respondent’s submissions

39.  Mr Leung pointed out that although X’s reply in cross-examination was that the applicant probably put on a condom for the first time of penetration, she clarified during re-examination that the correct sequence should be that she felt pain when something entered her vagina before the applicant put on a condom. Given X’s evidence, there was sufficient basis for the judge to make the finding she did.

40.  Furthermore, relying on HKSAR v Lam Kai Man[42], Mr Leung submitted that given the aggravating factors identified by the judge, the sentence of 8 years’ imprisonment could not be said to be manifestly excessive.

Consideration

(Conviction)

41.  I shall deal with Ground 2 first. I do not regard the complaints made against counsel as reasonably arguable. In the recent case of HKSAR v Cheah Hanson[43], the Court said of the criticism made on appeal of defence counsel’s tactical decisions at trial:

“Whether we agree with the strategy or not is not the point: the question is whether it was a valid tactical approach, which could reasonably have been employed by the applicant’s leading counsel and his defence team. As Gleeson CJ (later Gleeson NPJ) put it, in the High Court of Australia decision of TKWJ v R[44]:

‘On the face of it, that was an understandable decision. It was certainly not self-evidently unreasonable, or inexplicable. It was the kind of tactical decision routinely made by trial counsel, by which their clients are bound. And it was the kind of decision that a Court of Criminal Appeal would ordinarily have neither the duty nor the capacity to go behind. Decisions by trial counsel as to what evidence to call, or not to call, might later be regretted, but the wisdom of such decisions can rarely be the proper concerns of appeal courts. It is only in exceptional cases that the adversarial system of justice will either require or permit counsel to explain decisions of that kind. A full explanation will normally involve revelation of matters that are confidential. A partial explanation will often be misleading. The appellate court will rarely be in as good a position as counsel to assess the relevant considerations. And, most importantly, the adversarial system proceeds upon the assumption that parties are bound by the conduct of their legal representatives’.”

42.  Counsel in the present case conducted a very large number of conferences and made what appear to be careful decisions as to the direction of the case and the tactics to be employed, which were “certainly not self-evidently unreasonable, or inexplicable”. The applicant is now represented by different counsel on appeal but it is important to remember that the trial has taken place and the verdict has already been reached (in this case unanimously). An appeal is not a re-trial and the Court is understandably wary of providing too ready an opportunity – other than in the clearest of cases - for appellate counsel who were not involved in the trial, and who were not privy to the tensions, dynamics and demands of an ongoing trial, to conduct a detailed, critical analysis, often with the benefit of considerable hindsight (and no doubt some regret on the part of their clients as well), of the tactics employed at trial; or to trawl through every decision made by counsel during what was an unfolding and developing drama, but is now completed and set down in transcript form. I see nothing from which it can reasonably be deduced or argued that counsel (or those instructing him) failed in their duty to such an extent that the fair trial of the accused was imperilled.

43.  As for the failure by counsel to explain the Admitted Facts to the applicant, an appellate court would find this allegation very difficult to sustain. I have checked the relevant logs of the judge’s clerk and all three sets of Admitted Facts were read out in open court in the presence of the applicant, as is the invariable practice in the High Court. And they were signed by the applicant’s counsel, who had conduct of the trial, on the applicant’s behalf. It may seem somewhat unbelievable that the applicant, whom I have observed following his papers and the arguments at the hearing before me very carefully from the dock, would have countenanced something being adduced in the case against him, with which he did not agree; even though I accept he cannot be expected to know the intricacies of the admissibility of evidence. Suffice it to say, at no stage did he raise any concern with the judge or anyone else on the record about the contents of the Admitted Facts.

44.  As Mr Kuan candidly conceded, the main concern behind this complaint was the admission of the exchange between X and Sad Toefl in the 2^nd Admitted Facts, which he submitted was intrinsically inadmissible, since Sad Toefl was not identified nor was he/she to be called as a witness. There is evidence, however, in the Sad Toefl exchange of X’s distress, which was potentially admissible as evidence of consistency of conduct. In any event, there is a questions as to the value of this evidence, given it was already an admitted fact, in the 1^st Admitted Facts, that X had complained to Z; a fact which was itself referred to in her exchange with Sad Toefl.

45.  In relation to the failure to put into evidence the statement of Dr Chow as an inconsistent statement, her statement was a compilation of what Dr Chow had gathered from other sources, she never having actually examined X herself. As such, the statement was hearsay. In any event, as defence counsel himself has said, its contents provided a mixed benefit for the applicant. I do not regard this as a significant matter in the context of the case as a whole.

46.  Turning to Ground 4, I do not find this ground reasonably arguable. While the judge did refer to five matters not put to X by defence counsel, she also reminded the jury that the applicant had instructed his lawyers about these matters[45]. Moreover, as I have observed, she went on to direct the jury in these terms:

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

It seems to me that the judge was neutralising the effect of any failure by defence counsel to put the applicant’s case and there is no reason to suppose that the jury would not have faithfully acted on her direction that it did not affect his credibility. One must remember that jurors are laymen, not lawyers; and while lawyers and judges might attach strategic or evidential significance to a case not properly or fully put to a witness, jurors would not know anything of the rules and intricacies of advocacy and would have acted as they were instructed to by the judge.

47.  Nor do I find Ground 5 reasonably arguable. One might readily expect that the diary entries were something which defence counsel would have wanted to bring out in evidence as, perhaps, demonstrating X’s own uncertainty as to whether she had been raped. A similar point was made by the defence in the case of Yip Ka Yu. Alternatively, it might be suggested that X’s diary entries revealed that she anticipated that sexual intercourse might take place when she visited the applicant’s home and/or that she regretted or blamed herself in some way for what had occurred. I do not see that the judge was directing the jury that X’s consistent statements in her diaries were evidence which supported her credibility, when the defence were arguing that they did not.

48.  I come to Ground 1. I believe it is reasonably arguable that a genuine but mistaken belief direction was necessary, although there are significant differences with the position of the applicant in Yip Ka Yu, with which the applicant will have to deal in due course. Yip Ka Yu (who was 26 years of age at the time) and the complainant (who was 17 years of age) had met by chance in a public setting and the Court considered that the evidence of their ensuing contacts suggested “they are two young people who are obviously interested in developing a closer friendship with each other”[46]. Their relationship appeared to the Court, therefore, to be genuine between two young people. They did not meet when an unnamed applicant (who claimed to be 27, although he was in fact 41) placed a post on a dating app for someone (who turned out to be 16 and, therefore, 25 years his junior) to play with his cats, when he evidently had other plans. Nevertheless, how these factual differences impact on the argument, if at all, will need to be fully addressed in due course.

49.  I observed during the course of argument that the judge did in fact address the issue of whether the applicant even realised there was a risk that X might not be consenting, rather than he realised there was a risk but nevertheless went on to take it, which would have been recklessness. The judge’s direction was[47]:

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

If you find these three matters or elements proved, you will find the defendant guilty. If you are not sure of any of these three matters, you will find the defendant no guilty.” (Emphasis supplied)

In Yip Ka Yu, the Court considered the difference in a state of mind between recklessness and a genuine but mistaken belief, holding that[48]:

“…recklessness does not obviate or nullify the need for a genuine and mistaken belief direction where it properly arises on the facts of a particular case. Such a direction serves to address the issue of whether a defendant was actually shown to be aware of a risk that the complainant was not consenting before doing as he did. We think in the present case that there was an issue as to whether the applicant realised or appreciated that risk”. (Emphasis supplied)

50.  It is arguable, even assuming the Court were to accept the foundation of Mr Kuan’s submission that the direction for which he contends was necessary in the present case, that the judge did direct the jury that they could acquit if the applicant did not even foresee the risk that X was not consenting. However, that is a matter for fuller argument before the Court of Appeal.

51.  For present purposes, I am persuaded that Ground 1 is reasonably arguable.

52.  I shall also give leave on the point of whether the Sad Toefl exchange was admissible; not in the context of the flagrant incompetence ground (Ground 2), since defence counsel in fact objected to the admissibility of this evidence[49] (as Mr Kuan contends he should have done) and the judge overruled his objection, but on the basis of its intrinsic admissibility in the circumstances. It seems to me there are reasonably arguable questions of fact and law as to:

(i)  whether the Sad Toefl exchange was admissible as evidence of recent complaint, or distress, without Sad Toefl giving evidence and without knowing who he/she was or whether he/she even existed;

(ii)  whether the exchange was admissible on any other basis, such as background or contextual evidence, or to explain why X had acted in a particular way;

(iii)  whether the case of HKSAR v So Tsz Yeung[50] affects the principle in White v The Queen[51], given that there was an unassailable recording of the accuracy of what X said and did during the exchange; and

(iv)  whether, even if the exchange was not admissible, its introduction took the prosecution case any further, in view of X’s earlier recent complaint to Z, which was already an admitted fact.

53.  Apart from the matters indicated above, I shall refuse leave to appeal on all other grounds of appeal against conviction.

(Sentence)

54.  In respect of sentence, this was an extremely serious rape, in which the judge found that the applicant, aged 41 at the time, had “lured” a sexually inexperienced young 16-year-old girl “to his home with cats and pocket money” and then raped her, inflicting “significant mental trauma” upon her[52]. She also found that it was a premeditated course of conduct on the applicant’s part, in which “within minutes of arriving, he initiated physical and sexual conduct before raping her”[53]. There has been no hint of remorse displayed by the applicant throughout and X was obliged to give evidence over the course of two days. Regardless of the condom controversy, I do not see any reasonably arguable ground of appeal that 8 years’ imprisonment was too high.

55.  Leave to appeal against sentence is refused.

56.  The applicant will no doubt be advised by counsel that he has the right to renew before the Court of Appeal any grounds of appeal against either conviction or sentence or both, on which leave to appeal has been refused. However, he should also be informed that the Court has the power 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 there was no justification for the renewal of a particular ground on which leave has been refused. Furthermore, with particular reference to Ground 2, reference should be made to Practice Note (Crime: Sentence: Loss of Time) issued by the Court on 9 October 2013[54], that:

“An unwarranted assertion of incompetence will normally attract an order for loss of time.”