HKSAR v. CHAN SZE CHUN

CACC 171/2023, [2025] HKCA 117

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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D E C I S I O N

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1.  The applicant is 44 year-old man, 41 at the time of the offence. He was convicted of raping a 16 year-old girl whom he had come into contact with on a dating app seven days before the offence. The girl (X) had no previous sexual experience and was asked to go to the applicant’s home to play with his cats. The applicant claimed to be aged 27.

2.  There may be no violence during the offence. But there is sufficient evidence to show a lack of consent, eg the need for persuasion to remove X’s clothing item by item, with the promise that the last item would in fact be the last and no more. It was also X’s evidence that she repeatedly said no and complained that it hurt. Ground 1 which criticises the judge for failing to direct on honest but mistaken belief does not make out.

3.  Ground 2 alleges counsel incompetence, the major thrust of which is that counsel failed to put certain matters to X. I am not persuaded that such matters as X was allegedly moaning during intercourse were significant enough to deprive the applicant of a fair trial. The fact that X admitted she and the applicant were at one time in a standing position, or that she had performed oral sex on him, or that she ended up straddling the applicant already goes to show that it was either sex with willing cooperation or reluctant submission – the ultimate jury question.

4.  Ground 3 fails. So Tsz Yeung was decided on the basis that the compliant was recorded verbatim and to a third party, so there is room for uncertainty as to what the victim might have said. I cannot see how it is different from doing the same to an unknown follower on Instagram. This piece of evidence was correctly received as recent complaint.

5.  Ground 4 is related to Ground 2. It is alleged that the judge failed to give a sufficiently strong direction on counsel’s failure to put case. I do not agree. In saying “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”, the judge had, in one swoop, neutralized prosecuting counsel’s attack of recent fabrication.

6.  Ground 5 also fails. I agree with the respondent that, when read in its proper context, the judge was simply saying that, contrary to what the defence alleged, there was evidence to show that X was not expecting sex when she went to the applicant’s home.

7.  Given the aggravating factors identified by the judge, I do not think the sentence was manifestly excessive but even if it is cut down on appeal, I do not see time being a factor impacting of the applicant’s bail application.

8.  I dismiss the applicant’s application.