HKSAR v. Li, Ka Ho

HCMA 526/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 526 OF 2016

(ON APPEAL FROM TMCC NO 1073 OF 2016)

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J U D G M E N T

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Introduction

1.The appellant was convicted of indecent assault after trial and now appeals against his conviction only.  He was convicted of indecently assaulting a friend in his own home on the 16 August 2016.  He was accused of intentionally rubbing his erect penis against her during the course of a hug. 

2.The issue is whether or not the appellant did in fact intentionally rub his penis against the victim after his penis became erect during a hug and she had asked him to let her go.  It was not in dispute the hug was a consensual act between two adults and friends. 

3.The issues here relate to the credibility of the witnesses and the weight of the evidence; both being questions of facts to be determined by the magistrate.  This appeal is an appeal by way of rehearing on the papers.  The principles relating to a magistracy appeal have been reiterated in HKSAR v Ip Chin Kei[2012] 4 HKLRD 383 by McWalters J (as he then was).  An appellate court will not depart from a magistrate’s finding as to the credibility of a witness unless it is satisfied that the finding is “plainly wrong”.

The Prosecution Case

4.PW1 was the victim and PW2 was her elder sister.  The appellant has known them for years as well as their immediate family.  On the date of the offence the appellant had lunch with both witnesses.  The victim and the appellant then arranged to have dinner as well.  After dinner they both went back to the appellant’s home.  They chatted, sat on the same sofa together, he showed her magic tricks and they also discussed her unhappy relationship with her boyfriend.  When PW1 was about to go home the appellant asked her for a hug as he was leaving Hong Kong soon for work.  She hugged him by the front door for 4 to 5 seconds.  The appellant then asked her for a longer hug which she gave him.  None of this above was in dispute. 

5.During this second hug PW1 felt the hug was a tighter hug so asked the appellant to let her go.  He asked her if she would be his girlfriend and stay the night. She said no.  PW1 then felt the appellant’s penis was erect.  She asked him to let her go and she would not tell anyone about it.  The appellant did not let her go and said it would end soon.  PW1 felt then the appellant rub his penis against her thigh.  PW1 struggled against him to let her go.  The appellant then let her go and walked her to the bus stop. 

6.When PW1 got on the bus she called her sister, PW2 and told her what had happened.  PW2 went to meet PW1 off the bus.  She then called the appellant and accused him over the phone.  They then, her family and PW2’s boyfriend, took PW1 to the police station to make a report at about 3am.

7.Under caution after his arrest the appellant’s response was “I admit that my private parts got hard when I was hugging her.  I knew the girl did not like to be hugged by me so I let go of my hands after hugging her for a while.” He added “Before I hugged her, I had asked (the complainant) whether she allowed me to hug her and (she) allowed me to hug her at the time.”; Exhibit P2 and P2a.  The police did seize the appellant’s underpants and trousers that he was wearing when they were hugging but there was no forensic evidence such as semen in them.

The Defence Case

8.The appellant gave evidence in his defence.  It was the defence case that it was PW1 who invited him to meet at the Japanese restaurant for dinner after having lunch together.  PW1 denied it until she was shown her own witness statement and agreed she did say that and it was indeed the case.  She also agreed she discussed with the appellant her relationship with her boyfriend which was coming to an end and the fact the appellant’s relationship with his girlfriend was not stable.  The appellant felt dinner was like a date.

9.They then went back to his empty flat.  They ended up sitting on the same sofa next to each other.  They sat together on the same sofa so she could show the appellant her boyfriend’s messages to her on her mobile phone.  He did not know she was not happy when she said she had to leave as she had to work the next day.

10.He asked PW1 for a hug when she was leaving his home.  He was under the impression she did like him.  He clearly did not know she felt uncomfortable.  He felt she hugged him tighter during the second hug she gave him.  He did ask her to be his girlfriend and she did softly say no.  He did ask her why not and she softly replied no again.  He did ask again and she said no again.  He asked if she would hug him longer and she said no this time in a different tone so he let go.  He felt this hug lasted 20 to 30 seconds in total. 

11.It was during this second hug he got an erection unintentionally. He explained that he felt she hugged him tighter, she had put both her arms up around his neck and he put his hands on her bare waist as her T-shirt rode up.  He could feel her heartbeat.  He was wondering what it all meant.  He could not control this physical reaction.  At first he did not pay attention to his erection. He did not after he got an erection indecently assault her by deliberately pressing it or rubbing it against her.  When he realised he had an erection he did not know if she could feel it but he then let her go.  He said nothing about it and neither did she.  She did not struggle before he let her go.  He then walked her to the bus stop to go home.

12.He did speak to PW2 over the phone later that night and did apologise but because PW2 said her sister, PW1, was not happy with him.  PW2 said she spoke to him for 40 to 50 minutes berating him.  PW1 agreed in evidence her sister PW2 thought the whole matter was serious so PW2 decided to report it to the police.  This was in her witness statement. 

Admitted Facts

13.The defendant had a clear record and his arrest as well as his statement made under caution was not challenged.  The CCTV footage of both the appellant and PW1 in the appellant’s lift as he walked her to the bus stop was admitted into evidence.  The footage shows them stood next to each other in the lift and chatting. 

The Magistrate’s Findings

14.The magistrate took into account the appellant’s clear record and warned himself accordingly.  He was aware the appellant was friendly with PW1’s whole family and considered the submission he would therefore be less likely to indecently assault her and throw away his career before rejecting it. The magistrate considered the appellant’s response under caution and described it as a mixed statement; meaning it was both exculpatory and inculpatory. 

15.He did not believe the appellant’s evidence that:

“… he did not pay attention to his erection. He said he was then feeling the strong heartbeat of the complainant and trying to analyse her emotions. I find it hard to believe… It would be quite unbelievable that the defendant would not be paying attention to it and did not know he had such a reaction” (para 29 of the statement of findings).

16.The magistrate analysed the appellant’s evidence and found his evidence hard to accept.  He found it unreasonable the appellant asked PW1 to hug him some more after she had said she did not want to go out with him.  He rejected the appellant’s evidence.

17.The magistrate then went on to find PW1’s evidence reasonable, credible and reliable.  He accepted her evidence including why she omitted to tell the police the appellant had tried to kiss her during the course of the assault.  He found the appellant rubbed his erection against PW1’s private parts whilst hugging her.  He said she said it lasted about half a minute.  It was a deliberate act and an indecent one.  PW1 did not consent to this rubbing and asked the appellant to let her go.  This meant the appellant was aware he did not have consent to rub his erection against her.  Even when she expressed her unwillingness he did not stop rubbing his erection against her.

18.The magistrate rejected the suggestion it was “just an innocent hug gone wrong”.  He found the appellant had lost control when he was alone with PW1 at home. The magistrate found the charge proved beyond reasonable doubt.

Grounds of Appeal

19.The 1^st ground of appeal is that the magistrate failed to properly evaluate and resolve material discrepancies in PW1’s evidence before accepting it.  The magistrate said PW1 said the rubbing lasted about half a minute but did not make a specific finding of how long the assault lasted. He then went on to find her evidence credible.  The appellant submits there were material discrepancies in her evidence about the timing of the events that were not addressed or resolved making it an unsafe conviction.  The magistrate did not say he had considered these discrepancies before making that finding. 

20.The 2^nd ground is that the magistrate erred when he rejected the appellant’s evidence without considering whether if PW1 did struggle during the consensual hug this meant the appellant’s erection would have rubbed against her but not intentionally by the appellant.  The prosecution had the duty to prove the rubbing was intentional and not possibly accidental or unintentional before convicting the appellant. 

21.The parties submitted written submissions for my considerations.  The timing discrepancies were played down by the respondent and a submission was made they were only estimates.  The conviction was safe because the appellant’s evidence was properly rejected and PW1’s evidence was accepted in its entirely.

Discussion

22.Whether a witness is credible or reliable is a matter entirely for the magistrate to decide.  In the event the findings of fact made by that magistrate are unreasonable or illogical or contain inherent improbabilities then the conviction will be unsafe.  The same applies if that magistrate when dealing with the evidence erred in his reference of material facts or omitted or failed to consider material facts then again the conviction would be unsafe.

23.This appeal is a rehearing on the papers.  In the papers is the transcript of the final submissions and the evidence of PW1 and the appellant. The magistrate had the benefit of hearing and watching the witnesses give evidence live in his court.  I only have the transcript to read but upon reading it I find PW1 on several occasions would not answer defence counsel’s short and straightforward questions directly.  There was an evasiveness to some of her answers.  Even taking nerves into account, she seemed reluctant to answer some questions. 

24.In considering the 1^st ground of appeal, I agree there does on a reading of the transcript appear to be material discrepancies in PW1’s evidence on the issue of how long PW1 was indecently assaulted. 

25.In chief, PW1 said in relation to the second hug; from her telling the appellant to let her go to his actually letting her go there was a 2-minute gap. She then confirmed this meant she felt his erect penis sticking close to her inner thigh for 2 minutes.  Later, she was asked how long was the touching of the lower part of his body with her inner thigh and she said around half a minute.  However, in cross-examination she said it was a 10-second rub of his penis against her.  She also went on to say that the hug lasted about 2 minutes and after the first 4 to 5 seconds of that hug she felt his erection and started to struggle against him to get away.  That would mean the rubbing lasted nearly 2 minutes.

26.Allowances can be made for witnesses who make wide and differing time estimates but in this case timing is crucial.  This is a one‑on‑one case and the timing of the actual assault is crucial to decide if what PW1 said happened during and after the assault is credible or not.  It can go to intent too.  This issue of timing is very relevant to deciding whether the appellant intentionally rubbed his erection against her rather than accidentally and unintentionally.  He admits he got an erection during the hug and let go when he felt it but denies rubbing it against her. 

27.Clearly PW1 gave several estimates of timing and the magistrate does not appear to have dealt with this and then made a finding. He may have considered it but not mentioned it in his findings.  He only said PW1 said the rubbing lasted about half a minute and went on to make a finding he believed her evidence as to how the assault took place. In my reading of the papers, there is substance to the 1^st ground and it succeeds.

28.I note the magistrate described the appellant’s response under caution as a mixed statement.  In this rather unusual case what the appellant said is important and in my view, what he said was not both exculpatory and inculpatory. To admit to having an erection is not to admit indecent assault per se.  What he said amounted to a denial he intentionally indecently assaulted PW1.  His response was exculpatory.

29.PW1 did not say in her evidence he rubbed his erection against her private parts specifically but that is the finding made at para 43 of the Statement of Findings.  It is not fatal per se, because to rub intentionally against her thigh would have constituted an indecent assault but with a case such as this utmost care must be taken when making specific findings. 

30.This is a case where it is one against one and the facts are unusual.  They were friends and the hugging was consensual after an evening spending time together.  The appellant lost control and got an erection.  That may be embarrassing for PW1 and the appellant but is not in itself an intentional indecent assault. 

31.A reading of the transcript shows that the appellant may have said he did not pay attention to his erection.  The magistrate found it hard to believe the appellant “did not know when he had such a reaction”.  I doubt that is what the appellant meant.  Reading his responses in re‑examination it suggests it caught him by surprise.  Whilst he was trying to decide what the hugging meant to PW1 he got an erection.  It was an uncontrollable physiological response to their close contact which was by consent.  Once he realised he had an erection he then decided to let go. 

32.I have considered the 2^nd ground and if PW1 did struggle and they were still embracing then yes common sense dictates it would have caused the appellant’s penis to rub against her.  However, it was not PW1’s evidence that she only felt it after she struggled so I can understand why this was not a possibility considered by the magistrate in his deliberations.  Whilst it is correct the prosecution has a duty to prove the assault was intentional and indecent, the 2^nd ground fails. 

Conclusion

33.This is a rehearing and I must review the evidence to see if I am satisfied beyond reasonable doubt of the guilt of the appellant.  In the premises, I am not satisfied that the trial magistrate showed he considered the discrepancies in PW1’s evidence as to timing of the assault.  It is therefore not clear if this was taken into account when making a finding of PW1’s credibility.  The conviction of the appellant is therefore unsafe and cannot stand. 

34.I cannot be sure that the appellant intentionally assaulted PW1 indecently.  The appeal is therefore allowed and the conviction is set aside.

Mr. Derek Wong SPP, of the Department of Justice, for the respondent

Mr. Wong Hay Yiu and Mr. Robert C K Lam, instructed by

Ivan Tang & Co, for the appellant