HKSAR v. Shek Kwok Ngai

HCMA 261/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 261 OF 2016

(ON APPEAL FROM KTCC NO 4210 OF 2015)

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J U D G M E N T

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1.X, a domestic helper employed by the Appellant, was working in the kitchen. The Appellant stood a few steps behind her. Staring at X, the Appellant exposed and held his penis for about 6 seconds. X did not notice the Appellant’s act at the time. She only found out what the Appellant did some hours later when she viewed the video clip recorded by her mobile phone set as a surveillance camera. She was shocked and frightened. The Appellant was convicted of an offence of Attempted Indecent Assault.

2.The Appellant was tried before a Deputy Magistrate (“the Magistrate”) for a total of five charges: Charges 1, 2, 3 and 5 being offences of indecent assault while Charge 4 being an offence of common assault.

3.The Magistrate found the Appellant not guilty of Charges 1 to 4, but convicted him of “Attempted Indecent Assault” on Charge 5 for which he was sentenced to five weeks’ imprisonment. 

4.Having abandoned his appeal against the sentence, the Appellant now appeals against his conviction only.

5.The Appellant was represented by Mr Selwyn Yu SC leading Mr Michael Chai at the trial.  In this appeal hearing, Mr Yu SC is still representing the Appellant leading Mr Ryan Law.

6.Ms Anna Lai SC leading Mr Alan Chan represented the Department of Justice both at the trial and in this appeal hearing.

THE PROSECUTION CASE

7.I shall adopt the facts as summarized by the Respondent in its skeleton submissions:

“For Charge 5 the prosecution relied on the evidence of X as well as a video clip took [taken] by her (produced by consent as Exhibit P4 at trial). According to X, on 3 March 2014 (Monday), at about 7am she placed the mobile telephone on top of the microwave in the kitchen with the video recording function in operation. At about 11am, when X viewed the recording, she discovered that shortly after 7 am that morning, while she was working in the kitchen, the Appellant took out his penis behind her while starring at her. X did not see that had taken place at the time, and was unaware of what the Appellant had done until she saw the video. She was shocked and almost dropped her phone. X was very scared and cried. She sent the video clip to PW2 (her friend) for advice because she already wanted to leave the household. At that night, when she heard some noise outside her room, X was concerned that the Appellant might enter her room and he could rape her there. PW2 introduced X to a voluntary organisation known as Pathfinders, and subsequently provided with assistance by PW3.

The video clip showed that X set up the mobile phone on top of the microwave inside the kitchen; the Appellant came in to set up the portable stove cooker for her; the Appellant then stepped outside of the kitchen while X remained inside; the Appellant then exposed his penis [and] walked into the kitchen while holding his penis with his hand; the Appellant remained in such position while starring at X for about 6 seconds.”

THE DEFENCE CASE

8.The Appellant elected not to give evidence. He adduced evidence of good character by way of the statements of two character witnesses.  It was admitted at the trial that he had no criminal conviction.  The video clip recorded by X was not challenged.

THE MAGISTRATE’S FINDINGS

9.The Magistrate identified that the essential difference between the parties in relation to the issue of “hostility” was whether or not “hostility” is an element of assault, an ingredient which has to be proved for the offence of indecent assault.

10.Having considered the submissions of both parties, the Magistrate agreed with the Defence that the Prosecution has to prove “hostility” for the offence. As for the test of hostility, she considered cases in Collins v Wilcock [1984] 1 WLR 1172, R v B(MA) [2013] EWCA Crim 3, R v Brown  [1994]  AC 212 and R v Rolfe (1952) 36 Cr App R 4.  She adopted the test as set out in Collins v Wilcock i.e. “in circumstances gone beyond generally acceptable standards of conduct; and the answer to that question will depend upon the facts in the particular case”.

11.The Magistrate found X an honest witness.  However, the Magistrate found that the lack of specific details in her evidence in relation to Charges 1 to 4 cast doubt on the allegations of these four charges.  The Magistrate gave the benefit of doubt to the Appellant and acquitted him on Charges 1 to 4.

12.As for Charge 5, the Magistrate stated that X’s allegation is supported by the video clip. 

13.The Magistrate disagreed with Mr Yu SC that the sink area in which X was standing was not visible from the position of the Appellant.  She found that X could see the fridge if she turned her head.

14.The Magistrate also disagreed that it was a reasonable inference that the Appellant intended not to be seen by X.

15.The Magistrate found that the Appellant deliberately held his penis with his hand, walked close to X and stared at her for about 6 seconds.  His act targeted at X.  His act was capable of causing X to apprehend immediate violence.  The only irresistible inference must be that the Appellant intended to cause X to apprehend immediate violence. 

16.In the circumstances of Charge 5, the Magistrate found that the Appellant’s act was hostile according to the test set out in Collins, i.e. “gone beyond generally acceptable standards of conduct”.

17.In any event, the Magistrate said, even if applying the definition of hostility according to Mr Yu SC’s submission, i.e. “hostility is a threat, coercion, compulsion or any act that can be inferred to be hostile or intended to be hostile so as to cause the complainant to apprehend immediate unlawful violence”, she would still find the Appellant’s act hostile.

18.On the issue of “attempt”, the Magistrate found the acts of the Appellant more than merely preparatory to the commission of indecent assault with the intention of committing it.

19.She was satisfied that the prosecution had proved all the elements of attempted indecent assault beyond reasonable doubt.  She therefore found the Appellant guilty of an attempt in relation to Charge 5.

GROUNDS OF APPEAL

20.In his appeal against the conviction of Charge 5, the Appellant advances three grounds:

(1)    The Magistrate erred in misdirecting herself on the intention of the Appellant when she found as a fact that the Appellant had intended to assault X and/or intended to cause X to apprehend immediate violence, when there existed at least a reasonable inference that the Appellant had intended not to be seen by X nor cause X to apprehend immediate violence (the “Intention Ground”);

(2)    The Magistrate misdirected herself in law and/or on facts in her finding that the Appellant’s act was hostile and/or was acting with the requisite hostility (the “Hostility Ground”); and

(3)    The finding by the Magistrate that the Appellant had done more than merely preparatory to the commission of indecent assault with the intention of committing it was contrary to the weight of the evidence (the “Attempt Ground”).

DISCUSSION

Ground 1: Intention Ground

21.By Ground 1 in the Appellant’s submissions, Mr Yu SC complains that the Magistrate was wrong in finding the Appellant had intended to cause X to apprehend violence.

22.It is not disputed that the elements of the offence of indecent assault are set out in R v Court [1989] AC 28 (at 45H-46A) where the prosecution is required to prove the following:

(1)    the defendant intentionally assaulted the victim;

(2)    the assault, or the assault and the circumstances accompanying it, are capable of being considered by right‑minded persons as indecent; and

(3)    the defendant intended to commit such an assault as is referred to in (2) above.

23.It is also accepted that the assault in an offence of indecent assault can be committed by way of either: a “battery” (an act involves the unlawful application of force by the defendant upon the victim); or an “assault” (an act which does not involve any physical contact but may consist merely of conduct which causes the victim to apprehend immediate and unlawful personal violence).

24.In the present case, it is not in dispute that the conduct of the Appellant in Charge 5 is one involving non-physical contact assault.

25.Both parties agreed that the Appellant’s act as shown in the video clip is inherently indecent.

26.Mr Yu SC submits that the Magistrate overlooked some essential undisputed facts.  It is emphasized that during the 6 seconds the Appellant was holding his penis, he did not do anything to arouse the attention of X and he retreated voluntarily.  Although the Appellant was looking at X, his body and his penis was facing the fridge, not directly facing X.  The incident occurred between 7am to 7:30am in the morning when other family members, including the Appellant’s wife, were at home.  A simple scream would have alerted the whole family. 

27.All these evidence, it is submitted, support a reasonable inference that the Appellant had intended to conceal his behavior from the attention of X and that he did not intend to cause X to apprehend immediate violence.

28.Ms Lai SC replies that a magistracy appeal is conducted by way of a rehearing.  The appellate court should recognize the advantage the trial Magistrate had in receiving the evidence first hand, and should only depart from the Magistrate’s finding of fact or determination of a witness’ credibility if satisfied that it is plainly wrong: HKSAR v Ip Chin Kei & others [2012] 4 HKLRD 383.  In the present case, the Magistrate was entitled to reach her factual conclusion from the evidence adduced at trial.

29.I agree with the submission of the Respondent.  I do not see the basis to suggest that the Magistrate overlooked the essential facts of the case.

30.The kitchen is a very small one.  Judging from the pictures showing the kitchen, the Magistrate was entitled to find that X could see the Appellant’s private part if she turned round.

31.The Appellant apparently knew X was working inside the kitchen.  He stared at X all along when he was holding his penis.  He must be deliberately standing inside the kitchen near the back of X.  He of course knew X might turn her head or body at any time.

32.There is no direct evidence why the Appellant chose to stand so near to X doing what he did as depicted in the video clip.  It is not disputed that the Appellant was not masturbating.  He only held his penis. If he was gratifying himself only by exposing and holding his penis but did not intend the penis to be seen by X, he could have stood farther outside the kitchen and concealed his private part.  Even if he desired a position near X for whatever reasons, he could still stand with his back towards X so that his private part could not be seen by X if she suddenly turned round.  In this posture, he could still turn his head to see X, should he find it a gratification to him.

33.It is therefore unreasonable that the Appellant should stand at the position and angle as he did if he did not intend his penis to be seen.

34.There is no evidence or suggestion that X and the Appellant were of a kind of relationship that X would consent to the act or the Appellant believed that she would consent to it.  Standing at such a short distance from X, the Appellant should know that X seeing his private part would be shocked and frightened.  It is a certain consequence that X, seeing a man who is not a person intimate to her holding his penis towards her at such a close distance in a small room, would be concerned about her own safety.

35.Much emphasis is placed on the fact that the Appellant did nothing to attract the attention of X.  In my view, it is neither here nor there.  It might well be the way he desired his penis to be seen to alarm X.  The Magistrate needed not speculate the reason.  The same would apply to the fact that he retreated.  There might be reasons he had to or wanted to retreat but there is no evidence.  Again the Magistrate should not speculate.

36.In my judgment, the Magistrate has properly considered the evidence.  On the totality of the evidence, it is entirely proper to draw as the only irresistible inferences that the Appellant intended his penis to been seen by X, and he intended to cause her to apprehend immediate violence. 

37.This ground fails.

Ground 2: Hostility Ground

38.Mr Yu SC complains that the Magistrate wrongly adopted the test for hostility in Collins v Wilcock to the present case which is a “non-physical contact” indecent assault.

39.He submits that Collins v Wilcock is only a case involving assault by battery (physical contact).  It was not a case involving “non‑physical contact” assault.  There was also no attempt of the court in that case to lay down a test for hostility, let alone hostility in the case of “non-physical contact” indecent assault.

40.Such application of Collins’ test, it is contended, would run contrary to the force of a line of authorities deciding that exposure of genitals was not indecent assault: Fairclough v Whipp (1951) 35 Cr App R 138, Burrows (1951) 35 Cr App R 180, DPP v Rogers (1953) 37 Cr App R 137, R v Baney [1971] OJ No.1870, R v Dunn [2015] 2 CR App R 13.

41.In Fairclough v Whipp, the defendant exposed himself in the presence of a girl aged nine and invited her to touch his exposed person, which she did.  It was held that an invitation to another to touch the person making the invitation could not amount to an assault on the person receiving the invitation, and therefore there was no indecent assault by the defendant.

42.Mr Yu SC submits that for the present case involving “non‑physical contact” indecent assault, the Magistrate should have adopted the legal principle in HKSAR v Tang Kwok Wah Dixon [2001] 2 HKC 301 where the court said at p315D-E:

“… for the applicant’s conduct to have amounted to ‘assault’ it had to include an explicit or implied threat sufficient to have put the victim under compulsion to do as she was told.”

43.It is submitted that hostility must be proved in the offence of non-physical contact assault.  Exposure of genitals, even in close proximity as in the present case, is not sufficient to constitute hostility.  The Appellant’s act cannot be proved to be hostile.

44.The Respondent adopts this stance: (i) hostility is not an element for the offence of assault, both battery and non-physical contact assault; (ii) alternatively, the hostile act “requirement” is limited to cases of battery; (iii) assuming that hostility is an element to non-physical contact assault, the test of hostility should be the Collins’ test; and the conduct of the Appellant in the present case was clearly hostile.

45.Ms Lai SC has helpfully referred me to cases showing the common law development of the concept of hostility in assault. In support of her first position, Ms Lai SC relies on Faulkner v Talbot [1981] 1 WLR 1528. In that case, a 14 year-old boy resisted the defendant’s attempt to put her hand on his penis. The defendant then pulled the boy on top of her, took hold of his penis and placed it inside her vagina. Lord Lane CJ at §1534D, made clear that:

“… an assault… need not necessarily be hostile, rude or aggressive, as some of the cases seem to indicate…”

46.Ms Lai SC submits that the necessity of “hostility” in assault and battery was doubted in the House of Lords’ decision of In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 HL.  Lord Goff said at §73A-C:

“In the old days it used to be said that, for a touching of another’s person to amount to a battery, it had to be a touching ‘in anger’… and it has recently been said that the touching must be ‘hostile’ to have that effect (see Wilson v. Pringle [1987] Q.B. 237, 253). I respectfully doubt whether that is correct. A prank that gets out of hand; an over-friendly slap on the back; surgical treatment by a surgeon who mistakenly thinks that the patient has consented to it—all these things may transcend the bounds of lawfulness, without being characterised as hostile. Indeed the suggested qualification is difficult to reconcile with the principle that any touching of another’s body is, in the absence of lawful excuse, capable of amounting to a battery and a trespass.”

47.Ms Lai SC draws my attention to Hamilton v Lindsay [2005] NIQB 73 (a Northern Ireland case).  At paragraphs 17-19 of the judgment, Morgan J said:

“The debate on that issue centred on the extent to which hostility was an ingredient in the tort of assault. The issue has been addressed in three relevant cases. The first of these is Collins v Wilcock … The issue was then taken up by another Court of Appeal in Wilson v Pringle[1986] 2 All ER 440 when the court referred to Collins v Wilcock and appeared to introduce a test of hostility which was to be derived from the circumstances… The issue was in my view finally resolved by Lord Goff in F v West Berkshire Area Health Authority [1989] 2 All ER 545.”

48.In R v McCormack [1969] 2 QB 442, the Appellant inserted a finger into the vagina of the victim, a willing girl, and there was no evidence of any compulsion or hostility.  Lord Atkinson LJ of the English Court of Appeal held that, at §445F-G:

“… line of authorities such as Fairclough v Whipp… cases which have shown that here the accused adult invites a child, for example, to touch his private parts, but exercises no sort of compulsion and there is no hostile act, the charge of indecent assault is not appropriate. But in our view, that line of authorities has no application here, and, in the view of the members of this court, it is plain beyond argument that if a man inserts a finger into the vagina of a girl… it is an indecent assault however willing and co-operative she may in fact be.”

49.I was also referred to Smith and Hogan’s Criminal Law 14^th edition, it is said in pp.708-709:

“In modern times, Lord Lane CJ described battery in expansive terms: ‘an intentional touching of another person without the consent of that person and without lawful excuse. It need not necessarily be hostile, or rude, or aggressive, as some of the cases seem to indicate.’ … it is submitted… the concept of ‘hostility’ is unnecessary and ambiguous; it could cause undesirable complications in an offence which, because of the volume and summary nature of prosecutions, needs to be kept simple… It is respectfully submitted that hostility is not an element of the offence and that the issue of consent ought not to be confused with it…”

50.The Respondent cited HKSAR v 袁家信, HCMA 141/2007 (23 Nov 2007), at §17, where Nguyen J said that hostility is not an element of the offence, although no elaboration was made.

51.Ms Lai SC submits that the authorities she relies upon seem to suggest that hostility is not a requirement at all for the offence of indecent assault. Even if hostility is a requirement, it is limited only to cases where the victim is invited to touch the defendant.

52.Alternatively, the Respondent submits that even if hostility is an element of battery, it is not an element of non-physical contact assault.

53.Ms Lai SC submits that non-physical contact assault is completed when an assailant has by intent or recklessness performed an act causing the victim to apprehend imminent physical violence.  If the assailant has the intention as such, as a matter of logic, it is redundant to include the element of hostility, because the intention to cause another to apprehend imminent physical violence inevitably encompasses a hostile intention and hostile act.

54.The Respondent therefore submits, if the court considers that hostility is an element for both non-physical contact assault and battery, the test for hostility is the Collins’ test as the Magistrate adopted.  The situation in the present case is entirely different from the line of authorities arising from Fairclough and the case of Tang Kwok Wah Dixon.  The conduct of the Appellant, holding his penis exposed and standing closely behind X, was itself a threatening gesture.  He was a person of authority to X. There was only the two of them in the kitchen.  Had X seen the Appellant’s conduct, she would have apprehended the fear of being subject to sexual violence. 

55.It is further submitted that, even if applying the definition of hostility according to Mr Yu SC’s submission, i.e. “hostility is a threat, coercion, compulsion or any act that can be inferred to be hostile or intended to be hostile so as to cause the complainant to apprehend immediate unlawful violence”, the Magistrate must be correct in finding the Appellant’s act to be hostile.

56.Reading the authorities cited by the parties, I do not think that the cases suggest that there is a general proposition that an intentional application of force to an unwilling victim or an intentional threat to cause the unwilling victim to apprehend fear of violence cannot constitute unlawful assault at common law unless it is accompanied by hostility or hostile intent on the part of the assailant towards the victim.

57.In R v Ireland [1998] AC 147, Lord Steyn defined the offence of assault as:

“an act causing the victim to apprehend an imminent application of force on her: see Fagan v Metropolitan Police Comr [1969] 1 QB 439, 444D‑E”.

Their Lordships made no reference to hostility as an element of the offence.

58.Apart from the judgments referred to me by Ms Lai SC, I also notice that in the judgment of Lord Mustill in R v Brown [1994] AC 212, his Lordship stated:

“Hostility cannot, as it seems to me, be a crucial factor which in itself determines guilt or innocence, although its presence or absence may be relevant when the court has to decide as a matter of policy how to react to a new situation.”

59.In Boughey v The Queen (1986) 161 CLR 10, a case not cited by the parties, Mason, Wilson and Deane JJ of the High Court of Australia acknowledged in para 24 of the judgment that:

“It has never, however, been the common law that actual hostility or hostile intent towards the person against whom force is intentionally applied is a necessary general ingredient of an unlawful battery … hostility or hostile intent may convert what would otherwise be unobjectionable as an ordinary incident of social intercourse into battery at common law or an assault … the absence of such hostility or hostile intent … neither precludes the intentional application of force … from constituting battery at common law or assault…”

60.It seems to me that the law has developed to a state that while hostility is a factor to consider whether an act can constitute an assault, it is not an element of the offence as such.

61.The concept of hostility is relevant in considering whether an act can constitute an assault.  Some forms of ordinary behaviour that might constitute an assault are tolerated as an exception because of “good reasons” or because they are generally acceptable in the ordinary conduct of daily life.

62.I would respectfully agree with Ms Lai SC and the learned authors of Smith and Hogan’s Criminal Law (14^th ed) that hostility is not an essential ingredient in the criminal offences of assault and battery.

63.I would add that the presence or absence of hostility may be a relevant factor to consider whether an act can constitute an assault. Whether an act may constitute an assault will depend on the facts of the particular case.

64.The Respondent submits that the test for hostility is the Collins’ test: whether the defendant’s act has gone beyond generally acceptable standards of conduct.  The Appellant argues that it requires the proof of threat, compulsion or coercion.

65.The notion of hostility has been applied in many different contexts.  Lack of hostility may refer to circumstances or acts which are in conformity with “generally acceptable standards of conduct”.  The Collins’ test is therefore one standard to consider whether an act is hostile.

66.Lack of hostility sometimes refers to consent or implied consent of the person on whom the violence is applied.

67.Lord Jauncey said in Brown “if the appellant’s activities …were unlawful they were also hostile…”

68.In Wilson v Pringle [1986] 2 ALL ER 440 at 447j, Croom-Johnson LJ explained:

“… Hostility cannot be equated with ill-will or malevolence… But the element of hostility…must be a question of fact for the tribunal of fact…”

69.I think whether an act is hostile is also a question of fact.

70.Coming back to the present case which concerns an allegation of non-physical contact assault.  I do not think that it is necessary for the prosecution to prove hostility as an element of the offence of indecent assault.  Whether the Appellant’s conduct constituted an assault is a question of fact in all the circumstances of the case.

71.It has to be borne in mind that it was an undisputed fact that the Appellant’s act as shown in the video clip is inherently indecent.  It cannot be disputed that X would not have consented to the act of the Appellant.  There was no evidence to suggest that she would consent or that the Appellant believed she would consent to it.  The exposure of the erecting penis of the Appellant no doubt was a threat for the female employee working in a small kitchen to worry about her safety.  The effect of the Appellant’s conduct on X can be confirmed by the reaction of X when she later viewed the video clip.  She worried that the Appellant would rape her. 

72.The Magistrate cannot be criticized for coming to the conclusion that the Appellant’s act was hostile by applying the Collins’ test. By whatever reasonable standards, the Appellant’s conduct was a hostile act constituting an assault in the circumstances of the case. 

73.I do not find that the line of authorities relied upon by Mr Yu SC can assist the defence. This series of cases beginning with Fairclough were all concerned with consenting children (though the consent could not be valid in law) and were decided on their very special facts in the scenario of “Invitation to touch without threat or coercion”.  These accused persons did nothing to the children but merely persuaded them to do certain acts.  The concept of hostility in this line of cases can only be applied to the “Invitation to touch” scenario. The facts of the present case are far removed from those cases.

74.In Tang Kwok Wah Dixon, the case emphasized by Mr Yu SC, the victim was voluntarily giving a massage to the defendant after he had removed his clothing. At one stage the defendant told the victim to touch and kiss his penis.  The conviction of the indecent assault charge was quashed on the basis that the trial judge erred in his direction to the jury that the “mere request or instruction to touch” was sufficient to constitute the assault element in the indecent assault charge.  The Court of Appeal did not lay down a test for hostility. Again the facts of that case are very different from the present case.

75.In the present case, the Appellant was not making a verbal invitation. He was holding his exposed and erected penis closely behind X without her prior knowledge and consent.  There was only the Appellant and X in the small kitchen.  The Appellant’s act in the circumstances, far removed from the facts of the authorities cited by Mr Yu SC, was a very threatening gesture. 

76.The Appellant’s act was a serious threat to X.  Even under the test proposed by Mr Yu SC, the Appellant’s act is hostile and would amount to an assault.

77.This ground must also fail.

Ground 3: Attempt Ground

78.The offence of “attempt” is provided under s159G(1) of the Crimes Ordinance, Cap 200:

“A person who, intending to commit an offence to which this section applies, does an act that is more than merely preparatory to the commission of the offence is guilty of attempting to commit the offence.”

79.Whether an act is more than merely preparatory depends on whether the defendant had actually tried to commit the act in question or whether he had only got ready, or put himself in a position, or equipped himself to do so: R v Geddes [1996] Crim L R 894.  There is no rule of thumb test.  It is a matter of degree and case-specific.

80.Emphasis is made that the Appellant kept himself at a distance from X without trying to make any noise to arouse her attention, there is no evidence to prove that he did anything more than mere preparation to commit indecent assault towards X.

81.The Appellant was holding his penis standing near to X.  For the offence of assault to complete, it is unnecessary for him to go any nearer to X.  X could turn around or her head at any time and the offence would be completed when she saw the Appellant.  He did all he needed to do and was only waiting for the consequence to happen.  On the facts of the case, I am sure that the Magistrate was correct in finding that the act of the Appellant was more than merely preparatory.

82.Despite the able argument of Mr Yu SC, I am afraid that all the grounds of appeal have to fail.

83.I am satisfied that the prosecution has proved its case beyond reasonable doubt.

THE CONCLUSION

84.The conviction is neither unsafe nor unsatisfactory.  The appeal must be dismissed.

85.Lastly, I thank both Senior Counsel and their teams for their assistance to the court.

Ms Anna Lai SC, DDPP leading Mr Alan Chan, PP of the Department of Justice, for the Respondent

Mr Selwyn Yu SC leading Mr Ryan Law, instructed by Simon C W Yung & Co, for the Appellant