1.
On 19 October 2023, following a trial before Deputy High Court Judge Douglas Yau (as Yau J then was) (the judge) and a jury, the applicant was convicted of one count of rape (Count 1) and one count of indecent assault (Count 2). On 14 December 2023, the applicant was sentenced to concurrent terms of 11 years’ imprisonment on Count 1 and 12 months’ imprisonment on Count 2.
2.
It was alleged that on separate occasions in the summer of 2016, the applicant raped and indecently assaulted a 9-year-old girl (referred to as “X” at trial), who was living with the applicant and his wife under their foster care at the time of the offences.
The grounds of appeal
3.
On 5 January 2024, the applicant filed a notice of application for leave to appeal against conviction. On 30 April 2024, Mr Mark Leung, counsel for the applicant, filed Perfected Grounds of Appeal against Conviction. The grounds of appeal read as follows:
(1) The judge erred in admitting X’s complaint to PW3 (Z) on 23 August 2022 and 3 September 2022 about the alleged rape and abuse, and X’s complaint to PW4 (WPC 8881) on 4 September 2022 about the alleged rape (the complaints) as evidence to show X’s consistency with her account, when there was no legal basis for such admission of this evidence.
(2) The judge erred in directing the jury to the effect that the complaints were relevant in deciding X’s consistency with her account and truthfulness, when there was no legal basis for making such direction.
(3) The judge erred in failing to give proper directions to the jury on the evidence of X’s distressed condition at the relevant time before and during X’s making of the complaints.
(4) The applicant’s convictions on the two counts were unsafe and unsatisfactory.
The brief facts
4.
X’s mother (referred to as “Y” at trial) placed her daughter under the foster care of the applicant and his wife ( whom X called Uncle and Auntie respectively) in 2012, when X was 5 years old. X would live with her foster parents on weekdays and spend the weekends with her mother. She lived with them until 2015, when she was placed with another foster family for six months, but returned in early 2016 and stayed with the foster parents until late 2018. She returned again and stayed with them between early 2019 and 2020.
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5.
It was one night in the summer of 2016 that the applicant allegedly raped X in his bedroom. He undressed and fondled her. He lay her on the bed and had sexual intercourse with her. She was in great pain and protested. She felt an intense tearing sensation and asked him to stop. The incident lasted for about 5 to 10 minutes. She went to the toilet and wiped herself. She noticed blood and some discharge. It was not until she was older that she realised that the applicant had ejaculated inside her. The applicant told her not to tell anyone and
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