Hon Barnes J granted costs to the Accused upon the Prosecution elected to offer no further evidence after a jury was declared hung.

The Accused, charged with rape, was alleged to have nonconsensual sexual intercourse with the Complainant (“X”) whilst she was unconscious. The Accused, during VRI, admitted to having sexual intercourse with X but explained that X had woken up when they arrived at the Accused’s home and had consented to sexual intercourse.

Due to the exceptional circumstances of the case, the Accused made a no-case-to-answer submission after the close of the prosecution’s case in the absence of the jury: [5]-[13]. Amongst other things, evidence of X was found to be inconsistent with objective evidence (e.g. X said she was completely unconscious in the morning, but X’s mobile phone revealed that she had used WhatsApp, made and had numerous successful phone calls with others, and had communicated with his male friend on Facetime for 32 minutes). X’s immediate reaction after the alleged rape was also inconsistent with being raped (e.g. she invited a male friend to “go and sleep with her”). X’s evidence was also inconsistent with her boyfriend. The Judge decided to leave the matter for the jury. After a 9-day trial, the jury reported that they could not reach a verdict after 8 hours. The Judge therefore discharged the jury.

The Court accepted the defence submission that the Accused’s act was not bringing suspicion to himself such that the prosecution was misled: [17]-[21]; [28]-[33]. The Judge agreed that X’s evidence could not reconcile with objective and/or indisputable evidence: [31]. The Court observed that the objective evidence was in fact within the prosecution’s case and in the Committal Bundle: [11] and [26]. The Accused could not be said to have brought suspicion upon himself whereby the prosecution would have thought the evidence against him was stronger. As such, costs were granted in favour of the Accused.

Simon So with Jack Hui represented the Accused in the 9-day jury trial and the costs application. The reasons for judgment for costs were published on https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=167335&currpage=T.