HKSAR v. Wan Ho Yeung

[English Translation – 英譯本]

HCMA 673/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 673 OF 2014

(ON APPEAL FROM STCC 1064 OF 2014)

______________________

______________________

REASONS FOR JUDGMENT

1.The Appellant pleaded not guilty to a charge of Indecent Assault[1] and was tried before magistrate Mr. Cheang Kei-hong. He was convicted of the offence and sentenced to two weeks of imprisonment. The Appellant was aggrieved and sought to appeal against his conviction.

Charge

2.The particulars of the charge are that the Appellant indecently assaulted a female X on the 2^nd floor in the Library of the Chinese University of Hong Kong at 8:40 pm on 16 January 2014.

Undisputed Facts

3.X was a student of the Chinese University and was studying alone inside the Library at the material time. During that time, the Appellant walked near X and told her that he was a student of the Department of Psychology of the Chinese University. He then asked X if she was willing to take part in a test that investigated the responses of women towards weird behaviours and she gave her consent. But the Appellant was only a student of the School of Public Health of the University and not a student of the Department of Psychology. Neither the School of Public Health nor the Department of Psychology had assigned such a coursework or research topic to the Appellant.

Prosecution Evidence

4.X was the only prosecution witness and her evidence was summarised by the magistrate as follows[2]（the trivial details are omitted by this Court）：

「6. The gist of Miss X’s evidence is as follows：

(i) She is now 20 years old, a student of … the Chinese University；

(ii) ……

(iii) At that time, she was wearing ... a skirt, a pair of pantyhose ... on top of the pantyhose was a pair of “snow socks” ... with a pair of boots worn on the feet;

(iv) … the Defendant ... showed Miss X his student card (Exhibit P5), Miss X saw ... the name and photo of the Defendant, but when the Defendant held the student card, he intentionally or unintentionally covered the name of the Department …;

(v) The Defendant asked whether Miss X was willing to do an experiment for him … at first she refused, but the Defendant requested Miss X again to help him … he said the experiment was about women’s responses to weird behaviours …;

(vi) … The Defendant said it only took 5 minutes. Miss X asked … what she had to do, and the Defendant said “you just have to step on me”. Miss X was taken aback and said “What? Step on you?” The Defendant said again “Very quick” and also “Very easy”. He also asked Miss X to step on the Defendant;

(vii) Then the Defendant lied down under the desk with his head under … the desk, and his body … was under the chair where Miss X was seated. As Miss X was seated on the chair, she could not see the face of the Defendant clearly, but could see the part from his abdomen to his feet;

(viii) … The Defendant asked Miss X to put her both feet on his abdomen. Miss X did accordingly…she was still wearing the boots, the pantyhose and the “snow socks” at that time. This …act lasted for about 3 minutes. … During the interval, the Defendant told Miss X to ignore him and to do her homework… but at that moment Miss X was already very frightened. The Defendant kept grabbing the ankles of her feet and put her both feet …on his belly and moved them up and down, and moved them up …to his chest. …the Defendant put Miss X’s both feet on his chest for about two minutes;

(ix) Then the Defendant began to move Miss X’s both feet towards his mouth (Miss X … said the Defendant took off her shoes “out of the blue” … “out of the blue” … because the Defendant did not inform Miss X beforehand that he would take off her shoes …; Miss X’s shoes … had no shoe laces …but … there was a buckle for decoration only … At that time Miss X had somewhat resisted it; when the Defendant tried to remove the decorative buckle on the side of the shoes, Miss X asked the Defendant what he was doing, and the Defendant said “need to take off the shoes”. Miss X felt even more frightened at that time and asked him to let her take them off herself. Miss X explained … why she wanted to take off the shoes herself was that she did not wanted the Defendant to touch her; and the Defendant did not tell her what he would do after the shoes were taken off …;

(x) After Miss X had taken off the boots, the Defendant … tried to take off Miss X’s … pair of “snow socks”. Miss X was very shocked … and stopped the Defendant from touching her, then Miss X took off the pair of “snow socks”;

(xi) After Miss X had taken off the “snow socks”, the Defendant used ... his both hands to grab hold of Miss X’s both feet ... and moved them towards his mouth; ... Miss X felt that the mouth of the Defendant ... kept moving, and Miss X ... tried to use her both feet to resist the Defendant so that her both feet would not get completely close to the mouth of the Defendant; but the Defendant still managed to move the two feet of Miss X to his mouth; ... Miss X was really unwilling, but ... thinking that the Defendant might really have an assignment to do for the Department of Psychology ... she let him continue ... Miss X did not know how to get out of the situation. She felt uneasy（... the reason ... was that she found it very disgusting）, all the time she just wished the time could pass more quickly;

(xii) Under cross-examination ... Miss X said that when the Defendant invited her to take part ... and explained the experiment ..., he did not tell Miss X that he would put her two feet on top of his mouth. ... When the Defendant put her two feet on top of his mouth, her soles were in contact with the mouth of the Defendant. ... As the experiment went on, she became more and more reluctant to continue; when the Defendant demanded the take off of the socks (“snow socks”), she already did not want to do it anymore ... the reason ... was that the experiment was much worse than what she would image – asking her to take off the socks and put (her feet) on top of the Defendant’s mouth was something very disgusting. The Defence asked ... why she did not tell the Defendant that she did not want to continue. Miss X said it was because she was so shocked that she did not know how to react. Miss X said it was psychologically and physically disgusting, and that feeling came from the contact between the Defendant’s mouth and her feet. Miss X said that even if the Defendant was a medical student, it would not make her feel any better; Miss X continued her testimony and said that “but it was because he (the Defendant) at the start said it was a psychology test”;

(xiii) As ... “the experiment” had lasted for about 8 to 9 minutes, Miss X told the Defendant that 5 minutes had lapsed, the Defendant said “Oh! Yes, yes!” and he got up;

(xiv) Miss X ... had her both feet on top of the Defendant’s mouth for about two to three minutes;

(xv) … After Miss X had put on her shoes, the Defendant pulled a chair and sat next to Miss X. He asked Miss X what her feelings were a moment ago. Miss X said “I was very frightened”. The Defendant asked Miss X “Only felt frightened during the whole process?” Miss X said “Yes”. The Defendant asked Miss X, “Apart from feeling frightened, did you have any other sensation, such as feeling excited or aroused?” Miss X said no. The Defendant asked Miss X again, “When we put ourselves at different positions, did you feel any differently?” Miss X said, “No, only very frightened”;

(xvi) The Defendant then started to tell Miss X about the “breaking the window theory”... Then, the Defendant told Miss X not to tell other people about the experiment as he did not want to interfere with the results of experiments by other people. ... Though the Defendant said it was an experiment, he did not make a record of his conversation with Miss X. After the conversation, Miss X left;

(xvii) Miss X ... said the Defendant had not made any kind of record of the whole conversation with her after the Defendant got up;

(xviii)   Miss X ... said that had she known that what the Defendant told her to do was not an assignment of the Department of Psychology, she would not have cooperated with the Defendant to do the series of actions.”

Defence’s stance

5.The Appellant neither testified nor called any witness.

6.Based on the Defence’s cross-examination of X and closing submissions, the magistrate summarised the stance of the Defence as the following 5 points:

「8. ......

(i) Miss X is neither a credible nor reliable witness;

(ii) Miss X knew clearly the nature of the experiment conducted by the Defendant, namely putting Miss X’s both feet on top of the Defendant’s body;

(iii) And Miss X voluntarily/agreed to carry out the experiment for the Defendant;

(iv) Miss X was not deceived to carry out the experiment for the Defendant, so Miss X’s consent was legally valid; and

(v) The Defendant put Miss X’s both feet on top of his mouth and wriggled his mouth at the same time. This series of action did not constitute indecent assault.”

Verdict of the original trial

7.The magistrate analysed this case in great detail.

X’s testimony

8.The magistrate first examined X’s testimony and he had made the following observation on X:

「9. ……

(i) Miss X said under cross-examination that she did not verbally tell the Defendant that he could carry out the experiment. Miss X also said that she did not indicate that the Defendant could lie on the floor to conduct the experiment. She said as she had not refused him, the Defendant lied down. The Defence Counsel put to Miss X that she said in her witness statement on 20 January 2014, “He invited me to help him and I agreed after considering it.” The Defence Counsel then asked Miss X that as she had not verbally told the Defendant that he could carry out the experiment, and had not indicated to him that he could lie on the floor to conduct the experiment, why she said in her witness statement that she “agreed”. Miss X testified and replied that if she did not agree, the Defendant would not have lied down on the floor. This Court is of the view that Miss X meant to say this in her testimony: she acquiesced to the Defendant lying on the floor to carry out the experiment. And this is consistent with her testimony in court. I do not think that her witness statement was different from her testimony in court.

(ii) In examination-in-chief, Miss X said that the Defendant all along kept grabbing hold of her ankles and made her feet moved up and down the Defendant’s belly and chest. During cross-examination, the Defence Counsel asked her whether the Defendant released his hands after he had put Miss X’s feet on his abdomen. Miss X said no. The Defence Counsel then continued to ask whether the Defendant had released his hold for two to three minutes and then he grabbed her feet again and put them on his chest and then released his hands. Miss X said, “In my impression, he did not release his hands.” The Defence Counsel then asked whether Miss X was certain about it. Miss X said she was not certain. This Court notes that at first Miss X said that the Defendant all along kept grabbing her feet, but under repeated cross-examination, she said that she was not certain whether the Defendant had released his hold on her feet. In any event, this Court does not think that this so-called “inconsistency” could have any impact on the credibility or reliability of Miss X’s evidence;

(iii) Miss X said in court that she took off the shoes herself. And that was consistent with the sentence “I took them off myself” as recorded in her fourth witness statement taken on 26 April 2014. However, the Defence Counsel put to Miss X that she said in her first witness statement (taken on 20 January 2014) that the Defendant took off her shoes. Miss X confirmed in court that she herself took off the shoes. She explained in court that as she read over her first witness statement, she merely glanced through it and did not read the written statement carefully. She also said that when the first witness statement was taken from her, it was only a few days after the incident and she was still in a state of fear. I accept Miss X’s explanation. After all, Miss X had rectified her version in the fourth witness statement made in April 2014. I do not think that this will affect the credibility or reliability of her evidence;

(iv) The Defence Counsel asked Miss X that when the Defendant put her feet on top of his mouth, were Miss X’s feet stepping on the Defendant’s nose. Miss X said she was not sure and did not remember as she did not pay attention. Miss X also said that she did not eye-witness the Defendant’s mouth wriggling. Miss X said that if they were on the same level, her feet might have stepped on the Defendant’s nose. The Defence Counsel put to Miss X that the Defendant’s mouth was wriggling simply because he was breathing through his mouth. Miss X said that she would not block his nostrils. But Miss X agreed that the Defendant might have breathed through his mouth. In this regard, I think even if Miss X’s feet really had stepped on the Defendant’s nose, they would not block his nostrils to an extent that he could not breathe. In any event, the Defendant could have changed the position of Miss X’s feet with his both hands to prevent his nostrils from being blocked from breathing. Even if his nostrils were blocked and he had to breathe through his mouth, I am of the view that the Defendant did not need to wriggle his mouth to breathe. He only needed to open his mouth to breathe, and did not need an open-and-close movement to wriggle his mouth. I think that the Defence’s assertion that the Defendant breathed through his mouth and caused his mouth to move cannot stand at all;

(v) The Defence Counsel asked Miss X whether the Defendant had released his hands when he put Miss X’s feet on top of his mouth. Miss X said she was not entirely certain. I am of the view that a witness (in this case Miss X) cannot be expected to remember (or be 100% certain) of every single detail in an event that lasted several minutes. This is particularly so when the acts involved so many steps such as her feet being moved from the Defendant’s body to his chest, and then moved to his mouth. I think that Miss X’s evidence that she was not entirely certain whether the Defendant had released his hands at the time when he put her feet on top of his mouth does not affect the credibility or reliability of Miss X’s evidence;

(vi) I note that Miss X said in her testimony in court that she felt “disgusting” whereas she mentioned in her witness statements that she felt “frightened” and “uneasy”, and never mentioned “disgusting”. Miss X explained that she all the time found it disgusting. She said she found the whole incident disgusting. She explained that when she gave her first witness statement on 20 January 2014, she could not think of any other adjective apart from “frightened” because the incident had just happened a few days ago. As to why there was no mention of “disgusting” in subsequent witness statements, Miss X explained that might be there were so many adjectives such as “frightened”, “uneasy” and “uncomfortable” that she did not express herself clearly. It is undisputed that the Defendant put Miss X’s feet on top of his body and chest, he tried to take off Miss X’s shoes and “snow socks” and he put her feet on top of his mouth. In the circumstances, it goes without saying that one of her reasons for feeling “frightened” and “uneasy” was that she found it “disgusting”. I do not think that Miss X’s not mentioning the word “disgusting” in many of her witness statements could affect the credibility or reliability of her evidence;

(vii) I note that Miss X did not lodge an immediate/direct complaint to the librarians. Even her friend asked her later the same evening whether she wanted to complain to the librarians, Miss X still said she did not want to. Miss X explained in court that because at that time she still believed it was an experiment. I think that her evidence in this regard raises no doubt;

Having carefully considered and scrutinized Miss X’s evidence, I find that she is an honest and truthful witness. Her evidence was credible and reliable. I accept the evidence of Miss X.”

Whether X consented to the Appellant’s acts?

9.Following that, the magistrate discussed the issue regarding consent (the crux of the matter was whether X’s consent was valid):

「11. In Archbold Hong Kong 2014 para. 21-158, it is stated that：

“Consent

…

Where a woman’s consent was procured by fraud as to the nature (R v Case (1850) 4 Cox 220) or quality (R v Tabassum [2000] 2 Cr App R 328, CA) of the act, her consent constitutes no defence …

In Chan Wai Hung v HKSAR (2003) 3 HKCFAR 288, [2000] 2 HKLRD 662, CFA, the defence was that the victim had consented to the relevant series of acts in the erroneous belief that the defendant was conducting a first aid demonstration. Refusing leave to appeal, the court held that consent to an act was vitiated by deception, either as to the identity of the person doing the act, or as to the nature of the act. Here, the victim was plainly deceived as to the nature of the act and there was simply no basis for suggesting that she might have consented if she had not been so deceived; nor was there any basis for thinking that the defendant might have believed that she had consented.

…”

12.  In the case of Chan Wai Hung v HKSAR (2000) 3HKCFAR 288, the applicant was convicted of a charge of indecent assault and he applied to the Court of Final Appeal for leave to appeal on the ground that the complainant had consent to his acts. In that case, the complainant was in the erroneous belief that the Applicant was conducting a first-aid demonstration and therefore consented to a series of acts. Mr Justice Bokhary, Permanent Judge of the Court of Final Appeal (as he then was) said in the judgment that:

“4. …What vitiates consent to an act is deception either as to the identity of the person doing the act or as to the nature of the act. That is the principle. And the decided cases reveal no difficulty in their application. There was no deception as to identity in the present case. So the decided cases to be considered are those on the question of whether a deception went to the nature or quality of the act. In this area, the law is concerned with the nature of the act and not its purpose.

5. In R v. Williams [1923] 1 KB 340 the Court of Criminal Appeal in England held that it was rape where the victim had been deceived into thinking that what was being done to her was not the ordinary act of sexual intercourse but some medical procedure aimed at giving her relief from a disability from which she suffered. Such deception went to the nature of the act.

6. In R v. Harms [1944] 2 DLR 61 the Saskatchewan Court of Appeal that it was rape where the victim had sexual intercourse with a man who had deceived her into thinking it constituted medical treatment which she needed. Such deception went to the nature of the act.

7. In Papadimitropoulos v. R (1957) 98 CLR 249 the High Court of Australia held that it was not rape where the victim had sexual intercourse with a man who deceived her into thinking that he was her husband when, unknown to her, the ceremony which they had gone through was not a valid marriage ceremony. Such deception did not go to the nature of the act.

8. In Bolduc and Bird v. R (1967) 63 DLR (2d) 82 the Supreme Court of Canada held that it was not indecent assault where the complainant had consented to a man’s presence during an intimate medical examination of her by her doctor, the doctor having falsely represented to her that that man was a medical student. Such deception did not go to the nature of the act.

9. In R v. Linekar [1995] QB 251 the Court of Appeal (Criminal Division) in England held that it was not rape where a prostitute had sexual intercourse with a man who had promised to pay her but had never intended to do so. Such deception did not go to the nature of the act.

10. In R v. Lau Chun Hon [1995] 2 HKC 599 Wong J held that it was indecent assault where the victim consented to her breasts being fondled by a man who deceived her into thinking that he was conducting a medical examination of her. Such deception went to the nature of the act.

11. In R v. Richardson [1999] QB 444 the Court of Appeal (Criminal Division) in England held that it was not assault when a dentist who had been suspended from practice carried out dental treatment on patients who were unaware that she had been suspended. Such deception did not go to the nature of the act.

12. In R v. Tabassum 2000 Times Law Report 418 the Court of Appeal (Criminal Division) in England held that it was indecent assault where a woman consented to the touching of her breasts in the mistaken belief that the appellant was medically qualified. He had said that he had received medical training. In truth his medical knowledge, such as it was, had been gained only through his employment as a medical representative. The appellant’s interest was to prepare a database software package to sell to doctors. There was no sexual motive. It does not help the present applicant that Mr Tabassum was held to be guilty of indecent assault. As it seems to us, however, even a decision in Mr Tabassum’s favour would not necessarily have helped this applicant.

13. That survey of the cases leaves the case of R v. Mobilio [1991] 1 VR 339, a decision of the Court of Criminal Appeal in Victoria. The headnote reads:

“The applicant was convicted on three counts of rape. The counts related to acts performed by the applicant during the course of his employment as a radiographer. The case for the Crown was that on each occasion the applicant had introduced an ultrasound transducer or probe manipulated by him into the vagina of a young woman without her consent thereby committing an act of rape as defined in s.2A of the Crimes Act 1958. Each of the women had given her apparent consent expressly or by her conduct. It was contended for the Crown that the apparent consents were vitiated and not real consents because each woman consented to the introduction of the transducer only for medical diagnostic purposes but the applicant introduced it solely for the purpose of his own sexual gratification. On appeal against conviction:

Held, allowing the appeal: (1) As a matter of law it was not on the evidence open to the jury to convict the applicant on any of the counts on which he was convicted.

(2) The consent of each of the women to the proposed act which she knew to be of the nature and character of the act which was done, was not deprived of reality if she believed the applicant proposed to do the act solely for a medical diagnostic purpose and if he actually did it solely for his own sexual gratification. The appellant did no act which was essentially different from the act which the women knew he proposed to do, and to which they consented.

Papadimitropoulos v. R (1957) 98 CLR 249, followed.

R v. Harms [1944] 2 DLR 61, not followed.

R v. Morgan [1970] VR 337, considered.

(3) If the applicant had been charged with the offence of procuring an act of sexual penetration by false representation contrary to s.54 of the Crimes Act 1958, he might have been open to conviction."

As can be seen, the decision of the Saskatchewan Court of Appeal in R v. Harms was not followed in R v. Mobilio. We are not called upon to choose between those two cases. All that needs to be said about R v. Mobilio in relation to the present case is simply this. At p.352 the court said: "In this case each of the women consented to the applicant introducing the transducer into her vagina in the performance of the act of conducting a transvaginal ultrasound examination. That is precisely what [Mobilio] did". In the present case conducting a first-aid demonstration is precisely what the applicant did not do.

14. It is perfectly plain that the complainant in the present case was deceived as to the nature of the act, and there is simply no basis for suggesting that she might have consented if she had not been so deceived. Nor is there any basis for thinking that the applicant might have believed that she had consented. It is to be noted that the applicant did not give evidence. The Magistrate found that the applicant ‘had no belief that [the complainant] would consent to the touching of her chest, the inner side of her thigh, etc., had she been aware it was a sham’. Reduced to its essentials, that is a finding that the applicant knew that there was no consent. And such finding is amply supported by the evidence.”

13. In the present case, the Defendant introduced himself to Miss X as a student of the Department of Psychology of the Chinese University and asked Miss X if she was willing to take part in an experiment that explored women’s reaction to weird behaviours. When the Defendant invited Miss X to take part in the experiment, he also showed his student card to her. I think that the Defendant falsely represented to Miss X that he was conducting a series of psychology experiments (the experiments assigned by the Department of Psychology of the Chinese University), and Miss X allowed the Defendant to lie down on the floor to carry out the experiment because she understood it just as the Defendant had mentioned. As a matter of fact, when Miss X’s examination-in-chief was almost over, she said that had she known that it was not an assignment of the Department of Psychology, she would not have co-operated with the Defendant to do the series of acts. Similarly, Miss X said at the close of cross-examination that “but it was because he (the Defendant) said at the start that it was a psychology test”. Obviously, Miss X allowed the Defendant to carry out the experiment merely because she thought it was an experiment of the Department of Psychology.

14. I cite what the Court of Final Appeal said in paragraph 4 of Chan Wai Hung v HKSAR and find that the Defendant’s deceptive acts “went to the nature or quality of the act”. In the present case, I find that the nature or quality of the act that the Defendant told Miss X he was about to do was an academic research/experiment of the Department of Psychology.

15. Based on my findings in the above paragraphs and citing what Mr Justice Bokhary, Permanent Judge of the Court of Final Appeal (as he then was) said in paragraphs 13 and 14 of the judgment of Chan Wai Hung v HKSAR, I find that the Defendant was not doing an experiment of the Department of Psychology; and it was most obvious that Miss X was deceived as to the nature or quality of the acts. There was no basis to suggest that Miss X would have consented to the acts had she not been deceived. I find that Miss X’s consent was invalid because of the deceptive acts of the Defendant. I also find that there was no basis to support the assertion that “the Defendant might have believed that Miss X had given (effective) consent”. On the basis of (i) the evidence accepted by the Court, (ii) the finding by this Court that the Defendant falsely represented to Miss X that he was doing an experiment of the Department of Psychology (an experiment assigned by the Department of Psychology of the Chinese University), and (iii) the finding by this Court that the Defendant was deceptive in respect of the nature or quality of his acts (or the deceptive acts “went to the nature or quality of the act”), I conclude that the Defendant knew that there was no consent.

16. Regarding the Defence Counsel’s closing submissions, I have the following observations. I would adopt Counsel Mr. Ma’s numbering and paragraphing in the closing submissions:

(i) Paragraph 1.2: I find that though Miss X was feeling “frightened” and “uneasy”, she nonetheless allowed the Defendant to continue with his experiment because Miss X was deceived into believing that she was helping the Defendant to carry out an experiment of the Department of Psychology;

(ii) Paragraph 2.1: The Defendant’s representation to Miss X was more than women’s reaction to weird behaviours. As I have said, the Defendant falsely represented that he was a student of the Department of Psychology and asked Miss X if she was willing to take part in an experiment which explored women’s reaction to weird behaviours. When the Defendant invited Miss X to take part in the experiment, he showed Miss X his student card. I find that the Defendant falsely represented to Miss X that he was doing an experiment of the Department of Psychology, which was an experiment assigned by the Department of Psychology of the Chinese University, and that was the understanding and basis why Miss X allowed the Defendant to lie on the floor to do the experiment;

(iii) Paragraph 2.2: At the close of cross-examination, Miss X said that even if the Defendant was a medical doctor, she would not find it less “disgusting”. I am of the view that Miss X’s feeling towards the Defendant had nothing to do with the issue as to whether Miss X had given valid consent. This does not affect my finding that the Defendant falsely claimed/falsely represented to Miss X that he was doing an experiment of the Department of Psychology, and that Miss X allowed the Defendant to lie on the floor to carry out the experiment because she thought he was doing an experiment of the Department of Psychology;

(iv) Paragraph 2.3: According to the testimony of Miss X, I rule that during the course of the incident, Miss X believed that she was helping the Defendant to do an experiment of the Department of Psychology.  She said that when she made a report to the police on 20 January 2014, she was not sure whether the Defendant was genuinely conducting an experiment of the Department of Psychology in the evening on 16 January 2014. Her evidence in this regard does not affect this Court’s finding that at the material time Miss X believed that she was helping the Defendant to carry out an experiment of the Department of Psychology;

(v) Paragraph 4.2.1: The Defence Counsel referred to Miss X’s two paragraphs of witness statements, namely “But there was no other people around, so I did not dare to retract” and “I found his behaviours very weird, I felt so uneasy that I retracted my feet, and left shortly afterwards”. The cross-examination by the Defence Counsel was not about a contrast between the two witness statements. At that time, the Defence Counsel cross-examined Miss X that she never mentioned “disgusting” in her two witness statements, and asked Miss X when she started to feel it was “disgusting”. Further, when the Defence Counsel mentioned the part in her statement where she said “I found his behaviours very weird, I felt so uneasy that I retracted my feet, and left shortly afterwards”, he did not quote the part before and after this sentence. During the cross-examination, it was not clear what stage of the case Miss X was talking about in her statement. Putting the statement in its context, Miss X retracted her feet only when the experiment was about to finish; and naturally she would have to retract her feet before she could leave. Under the circumstances, I do not think that there is sufficient basis to support the Defence Counsel’s assertion that the two sentences were referring to the same time. Therefore, I do not think that there are discrepancies between the two statements.

(vi) Paragraph 4.3.2: The Defence Counsel asked Miss X that if she found it “disgusting”, why she had not retracted her feet. Miss X said that she was “too frightened and did not know what would happen if she retract”. The Defence Counsel then asked Miss X whether the reason for not retracting her feet was because she had agreed to help the Defendant to do the experiment. Miss X replied, “Possibly, just wanted time to pass more quickly”. Miss X explained why she had not retracted her feet and I accept her explanation.

Further I have also considered the Defence Counsel’s other criticisms of the credibility and reliability of Miss X’s evidence, but found that none of the criticisms is valid.

Whether the Appellant’sacts were indecent?

10.This is the last issue in the present case. This issue concerns the Appellant’s act of putting X’s feet on top of his mouth, which was the only act (and not any other act) that the Prosecution alleged as indecent. The following is the magistrate’s analysis in this regard:

“17. The Court has referred to paragraph 21-154 of Archbold Hong Kong 2014 where R v Court [1989] AC 28 and R v George [1956] Crim LR 52 are cited.

18. The Court has found that when the Defendant told Miss X that he was doing an experiment of the Department of Psychology, he was making a false representation. By means of this false representation, the Defendant lied on the floor underneath a desk in the library when the surrounding was peaceful and quiet (as shown in Exhibit P2) and Miss X was led to take off her boots and “snow socks” (so Miss X was only wearing pantyhose). The Defendant moved Miss X’s both feet to the top of his mouth for two to three minutes (at that time his mouth was wriggling). (The Prosecution agreed that the indecent assault was restricted to the Defendant’s act of putting Miss X’s both feet on his mouth). Then the Defendant sat next to Miss X and asked how she felt. He also asked Miss X, “Apart from feeling frightened, did you have any other feelings such as feeling excited or aroused?” Further, the Defendant put Miss X’s feet on top of his mouth for two to three minutes. The Court draws the irresistible inference that during these two to three minutes, as the Defendant needed to breathe, he could sniff the feet of Miss X.

19. The two feet are bodily parts that other people do not readily have contact with, not to mention stranger man touching the feet of stranger woman. I find that the acts of the Defendant in the circumstances at the material time were “so offensive to contemporary standards of modesty and privacy as to be indecent”.

20. In view of the findings in the foregoing paragraphs, I find beyond reasonable doubt that:

(i) The Defendant intentionally assaulted Miss X;

(ii) The assault and the circumstances accompanying it were capable of being considered by “right-minded persons as indecent”;

(iii) The Defendant intended to commit such an assault as referred to in (ii) above.

In this regard, I note that after the Defendant got up from the floor, he stayed at the scene and sat next to Miss X. He spent 10 minutes to ask the feelings of Miss X and mentioned “the breaking window theory” (See Paragraph 5.2 of the closing submission by Defence Counsel). I do not think that the facts in this regard can show that the Defendant did not intentionally commit an act which would be considered as indecent by right-minded persons, or that the Defendant did not commit the indecent assault intentionally. At that time, the Defendant asked Miss X “Apart from feeling frightened, do you have any other feelings, such as feeling excited or aroused?” I am of the view that the Defendant gained certain degree of sexual satisfaction or excitement by asking Miss X whether she had felt any stimulus or had been aroused. Furthermore, it is undisputed that when the Defendant got up and had this conversation with Miss X, he did not make any kind of record. I regard the so-called “opinion survey” (namely the conversation between the Defendant and Miss X) was a pretence and a smoking screen to cover up the Defendant’s real intent to indecently assault Miss X.”

Grounds of Appeal

11.Mr. Ma, Counsel for the Appellant at trial, put forth four grounds of appeal.

Ground (1)

12.Ground (1) The magistrate “reached a verdict without hearing the case”.

Particulars

13.On the first day of trial, after plea was taken from the Appellant, the trial magistrate enquired the Appellant’s grounds of defence.  The Defence replied that firstly, X had consented; and secondly, the act was not indecent. Upon hearing the second ground, the magistrate asked the Defence in return, “Have anyone done this to you?”[3] The Appellant’s side is of the view that:

(1) What was said was an insult to woman Counsel.

(2) The magistrate appeared to be biased when he questioned the grounds of defence before hearing the evidence.

Discussion

14.I do not think that the magistrate’s question was biased against women. The same question can be put to a man Counsel. The underlying meaning of it will not change because the gender of the Counsel has changed. Unless it affects the trial, a judge’s poor attitude towards Counsel is not a ground to overturn a decision.

15.I agree that the magistrate’s question in reply showed that he had doubts or was even shocked to hear the defence. However, I also note that:

(1)  A pre-trial review was arranged for this case, but not before the trial magistrate[4].

(2)  Before enquiring the defence their grounds, the magistrate had dealt with the following matters:

(1)  Ascertain the number of prosecution witnesses[5];

(2)  Had the Admitted Facts read out[6];

(3)  Had the exhibits produced[7].

(3)  Apart from the utterance that was criticised, the magistrate did not express any opinion in advance regarding the grounds of defence.

16.In view of the above observations, the magistrate was merely dealing with matters in relation to trial management. For the sake of managing the trial, he had reasons to enquire about matters including the grounds of defence. Of course, when he heard the defence submit that the Appellant’s conduct was not indecent (quite a bold assertion), he should not have made any instant comment. But unlike Defence’s allegation, the confidence in the magistrate would not have lost merely because he had made just that one utterance. An informed bystander would not think that the Appellant did not have a fair trial.

Ground (2)

17.Ground (2) criticized that the magistrate was wrong in dealing with the issue of consent.

Particulars (i) – Error in law

18.The Appellant’s side was of the view that the false claims by the Appellant that he was a student of the Department of Psychology and that he was doing an assignment of the Department were merely “disingenuous blandishments” or “common or garden lies” referred to in the England case of R v Jheeta [2008] 1 WLR 2582. The reasons are as follows:

(1) The Appellant had told X of the purpose of the experiment (to explore women’s reactions to weird behaviours);

(2) The Appellant had explained clearly to X about the action that she had to do in the experiment (to step on the Appellant);

(3) Throughout the incident, what X actually had to do was only to step on the Appellant.

19.Again for the above reasons, the Appellant’s side considered that:

(1) The Appellant had not deceived X as to the nature or quality of the act involved;

(2) The consent he obtained from X was valid.

20.Regarding the case Chan Wai Hung[8]cited by the magistrate, the Appellant’s side considered that the two cases were obviously distinguishable. The reasons were that the victim in that case only agreed to undergo first-aid training, and as the victim understood it, “the first-aid training obviously did not include and could not possibly include the Appellant touching her breasts” (the words used by the Appellant’s side[9]).

21.Lastly, the Appellant’s side complained that the Defence had submitted that it was somewhat valuable to make reference to the Jheeta case, but the magistrate did not heed to it.

Particulars (ii) – Factual errors

22.The Appellant was of the view that the magistrate had made a mistake in his findings of the facts in respect of the issue of consent. He considered the magistrate was wrong to accept X’s evidence for the following reasons:

(1) The duration of the experiment was not short and X could call it to halt if she changed her mind. However, she did not do that.

(2) The reason why X did not call the experiment to halt was unconvincing (she was frightened and only hoped that time would pass more quickly).

(3) X’s evidence was shaken in respect of whether the Appellant had at one stage let go of her feet, meaning that the Appellant could have released his grip but she did not move her feet away.

23.To sum up, the Appellant’s side was of the view that the various conducts of X indicated that she consented to continue with the experiment. X’s subsequent reporting to the police without first ascertaining whether the experiment was bogus or for real could show that the identity of the Appellant and/or whether the experiment was indeed an assignment of the Department of Psychology or otherwise was not crucial to X’s giving consent to the experiment at all.

Discussion

24.In the case of Jheeta, the Defendant (J) was the boyfriend of the Victim (D). Later, as their relationship faded, J on the one hand impersonated another person to make threats to D, he on the other hand impersonated a police officer to send text messages to D asking for protection fees and demanding her to patch up their relationship. Through the text messages, J even used the excuse that D should be subject to a fine for not obeying him to threaten D to increase the number of sexual intercourses with him.  As a result, D time and again obeyed the words of the “police” and had sexual intercourses with J. After J’s despicable deeds were revealed, he was prosecuted. He admitted he had raped her.  However overturning J’s conviction, the Court of Appeal said that J’s deceptive acts did not go to the nature of the sexual intercourse, and therefore D was deemed to have consented to the sexual intercourse. The “disingenuous blandishments” or “common or garden lies” mentioned above refer to lies such as those told by J.

25.As the case of Jheeta involves the interpretation of the Sexual Offences Act 2003[10], its actual content was much more complicated than the above summary. However, the core of the judgment in that case shows that the case law in the past have not been overturned by the substantially-amended legislation. In a nutshell，there is nothing special about the case of Jheeta as its judgment is no different from the principles laid down by the Appeal Committee of the Court of Final Appeal in the case of Chan Wai Hung:

“What vitiates consent to an act is deception either as to the identity of the person doing the act or as to the nature of the act. That is the principle.”[11]

26.The assertion of the Appellant’s side that the two false claims of the Appellant were merely “disingenuous blandishments” or “common or garden lies” cannot stand. The reasons are that the Appellant did not testify in court and there was no evidence that he was indeed doing an experiment (be it a self-designed experiment done out of interest). On the contrary, given that he had falsely claimed that he was a student of the Department of Psychology and lied that he was doing an experiment assigned by the Department, the magistrate had the right to find that he was lying to X regarding the nature of the incident. Though the Appellant had explained to X the acts that she had to do (which actually was not so), the finding could not be changed.

27.The Appellant’s side tried to distinguish the present case from that of Chan Wai Hungbut there was no basis to do so. The victim in that case was deceived to play the role of a casualty and to let the defendant to perform various kinds of the so-called first-aid practices on her, causing many parts of her body to be molested. For example, she agreed to be touched on her breasts as she thought the defendant was modelling the actions of cardiopulmonary resuscitation. Therefore the nature of that case was not different from the present one.

28.The Appellant falsely claimed that he was doing an experiment but was thinking of something else. That was the decision of the original verdict. I regard that as a correct verdict. X’s consent can only be regarded as an invalid one. Based on this verdict, even if X did not change her mind and happily helped him to finish all the so-called experiments, it would not assist the Appellant’s defence. X was deceived to do what all the acts.

29.Again in view of this reason, whether X’s testimony kept changing itself or not was not material at all. But for the sake of completeness, I would also agree with the magistrate’s finding in this regard.  I cannot see any reason why X would bear with it except that she believed it was an experiment assigned by the Department of Psychology.  It is not uncommon that a person feels frightened and suspicious and yet finds it uneasy to clarify or protest. X had reported to the police before she ascertained whether the experiment was for real or fake, she could not disprove anything. X’s intention might be that she hoped the police could find out what had actually happened.

Ground (3)

30.It was argued under Ground (3) that the magistrate was not thorough and/or was wrong in his analysis of the issue of indecency.

Details

31.The Appellant’s side argued that since the decision in R v Court [1988] Crim L R 537, the laws regarding indecency could be summarised as the following principles[12]:

“1. Where the manner or the external circumstances of an assault include no element of indecency, the assault is not an indecent assault, however indecent the purpose of the offender.

2. Where the manner or the external circumstances of an assault are unambiguously indecent, the assault is an indecent assault, whether the offender has an indecent purpose or not, provided only that he is aware of the external circumstances.

3. Where the manner or the external circumstances of an assault are ambiguous, the assault is an indecent assault only if the offender has an indecent purpose.

In case (1) no reasonable observer of the event would think he was witnessing an indecent assault.  In case (2) any reasonable observer of the event would be quite sure that he was witnessing an indecent assault.  In case (3) a reasonable observer would think, “This may be an indecent assault or it may not. Why is he doing it?”

32.Regarding the present case, the Appellant’s first criticised that:

(1) Right after the magistrate mentioned the names of the two cases of Court and George[13], he pointed out directly that the behaviours of the Appellant were “so offensive to contemporary standards of modesty and privacy as to be indecent”[14]. That means the magistrate did not conduct any analysis on the behaviours of the Appellant.

(2) The magistrate said in a footnote (Footnote 4) in the original copy of the Statement of Findings that the sentence quoted just now in relation to standards would be “so offensive to contemporary standards of modesty and privacy as to be indecent” if expressed in English.  However, “offensive” was not the same as “indecent” and therefore the magistrate erred in his analysis.

33.The Appellant’s side went further to criticise that if the magistrate considered that the Appellant’s behaviours really fell within the scope of the second category set out in the case of Court, which meant that they were unambiguously indecent, the magistrate was still wrong in the following aspects:

(1) X only felt that the Appellant’s mouth was wriggling. She did not suggest that the Appellant was kissing her feet. Under cross-examination, she even admitted that it was possible that the Appellant was breathing through his mouth.

(2) As X had admitted that it was possible that the Appellant was breathing through his mouth, it meant that even X could not be certain that the Appellant had an indecent intention.

(3) The reasons by which the magistrate denied the possibility that the Appellant was breathing through his mouth were not reasonable[15]. Contrary to the thinking of the magistrate, it was possible that a person’s mouth be wriggling when he was breathing through it.

(4) All in all, there was not sufficient evidence in the case to prove that the Appellant was not conducting an experiment on women and “weird behaviours”.

(5) The magistrate was wrong when he based on the following two points (the Appellant had asked X whether she felt aroused or not and he had not made any record when asking the questions) to infer that the Appellant went further to satisfy his own sexual urge[16]. The reasons were that meanwhile the Appellant had explained the “breaking the window theory” to X, there were no evidence in the case to show how much time the Appellant had used to question X if she felt aroused or not, and it was not a must to make record in a survey.

Discussion

34.It is obvious that the magistrate classified the behaviours of the Appellant as those of the second category of Court, namely unambiguously indecent. Having reached this conclusion, the magistrate, unlike what the Appellant alleged, did conduct an analysis of the case. He on the contrary first made the findings that:

(1) “The Defendant put both feet of Miss X on top of his mouth for two to three minutes. The Court draws the irresistible inference that during these two to three minutes, as the Defendant needed to breathe, he could sniff the feet of Miss X”[17]; and

(2) “The two feet are bodily parts that other people do not readily have contact with, not to mention stranger man touching the feet of stranger woman”[18];

And then he concluded that “it is beyond all reasonable doubts that the Defendant’s behaviours, in the given circumstances, were “so offensive to contemporary standards of modesty and privacy as to be indecent”.

35.As the magistrate put the last phrase (namely the standards) within quotation marks (“”) (same as the English version in the footnote below), I am not sure if it was cited from an authority. However, the magistrate’s conclusion was clear and I also think it was the correct conclusion. This conclusion will not be affected because the magistrate commented that the behaviours were “offensive”.

36.In view of the magistrate’s finding in paragraph 34(1), it was insignificant whether the Appellant was breathing through his mouth at the material time. But for the sake of completeness, I will say that I agree with the magistrate’s analysis of the issue. At the end, whether the mouth wriggles when one breathes through one’s mouth is nothing but common sense.

37.Lastly, I will reiterate that the Appellant chose not to testify in court. There was no evidence in the case that he was indeed conducting an experiment (See paragraph 26 above). The fact in the case was merely that he falsely claimed that he was doing an experiment assigned by the Department of Psychology. In the circumstances, the Appellant did not make any record and asked X whether she felt aroused or not. The magistrate could find that he had an indecent intent based on this evidence.

Ground (4)

38.Ground (4) alleged that there was serious procedural impropriety in the original trial.

Particulars

39.The particulars of the complain are as follows:

(1)  After evidence was adduced, the magistrate directed the defence to submit to the court written final submissions before a certain date, and the Prosecution to reply to the Defence’s law points by a later date.

(2)  Subsequently, the prosecution also made a thorough analysis of the evidence in their written submissions.

(3)   What the prosecution did was contrary to usual practice. In accordance with case law (R v Bryant, R v Oxley [1978] 2 All ER 689), even if the defendant was legally represented and had neither given evidence nor called any witness, the prosecution should normally refrain from making a closing submission or should keep it brief[19].

(4)  The defence in their actual verbal closing submissions suggested to the magistrate the abovementioned points (2) and (3), but the magistrate did not pay heed to them. On the contrary, there were numerous points in the magistrate’s verdict that bore similarity with the prosecution’s submissions, which showed that the magistrate had obviously been influenced by the prosecution.

Discussion

40.In respect of the common practice of making closing submissions, the purpose is merely to prevent the jury from being excessively influenced by the techniques of the prosecution counsel when they are making findings of facts（R v Mondon (1968) 52 Cr App R 695 at 698）. On the contrary, the magistrate was the ultimate tribunal of facts. The defence had submitted to the magistrate that the prosecution had acted against common practice. So the argument that the magistrate was excessively influenced cannot be substantiated, be it that his findings were the same as the prosecution’s assertions. As a matter of fact, if the magistrate’s views were not the same as the prosecution’s, he would not have convicted the Appellant.

Conclusion

41.As none of the Appellant’s grounds has been established, the appeal is hereby refused.

Mr. Pierre Lui, Acting Senior Prosecutor of the Department of Justice, acting for HKSAR

Ms Jay Ma, Counsel instructed by Messrs. Liu, Chan and Lam, acting for the Appellant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Patrick W.S. Cheung, Barrister-at-law