HKSAR v. Finan Boris Anthony
Read the full judgment text of HCMA 582/2018 on BabelCite. This High Court CFI judgment was delivered on 25 July 2019.
1. This case concerns the use of a medical condition called “Sexsomnia”, also known as sleep sex, as a defence for an alleged indecent assault offence.
Cited by 1 case · Cites 1 case
|
HCMA 582/2018 [2019] HKCFI 1762 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 582 OF 2018 (ON APPEAL FROM WEST KOWLOON MAGISTRACY ________________________
________________________
________________________ J U D G M E N T ________________________ Introduction 1.This case concerns the use of a medical condition called “Sexsomnia”, also known as sleep sex, as a defence for an alleged indecent assault offence. 2.The appellant does not dispute having committed the actus reus of the crime (for he claimed he had no memory of it) but asserts his lack of the requisite mens rea (for he claimed he was suffering from Sexsomnia at the time of the offence). 3.Put simply, Sexsomnia or sleep sex occurs when an individual engages in sexual acts, as opposed to sexual dreams, while asleep; the sexual acts may include fondling, groping, masturbating, initiating foreplay with someone else or even sexual intercourse etc. 4.As it happens while sleeping, something akin to sleepwalking, the sufferer would be unconscious of what he is doing at the time and have no memory of it after waking up. It is a medical condition, if accepted, may in law amount to the defence of non-insane automatism. 5.The appellant, 28, a finance planning manager of a local bank, who has never been in trouble with the law before, has known the victim, Madam X, for over 10 years since secondary school. 6.Undisputed are the facts that their schoolmates threw a farewell party in a twin-bed hotel room for one of their number supplied with alcoholic drinks such as whisky, vodka and beer; they (5 men and 4 women altogether) played card games into the small hours of the night (10 July 2016). There came a time when everybody was tired enough to sleep; the sleeping arrangement was that one bed for women and the other for men (But initially the Appellant chose to sit through the night on a wooden chair). 7.During the night, Madam X once got up to vomit and then went back to sleep. Around 10 O’clock in the morning, she felt a hand touching her arm, waist, left buttock and finally reaching down to her posterior rugae under her underpants. Madam X looked up only to see the appellant with his eyes open lying next to her; the appellant even hugged her and kissed her, which gave her a scare. She then covered her mouth and breasts with her hands. 8.Later in the morning (around 10:20 a.m.) when everybody got up, Madam X did not join them for breakfast and left alone, but she did talk to the Appellant about giving a couple of 100 dollars as tips for fouling the room with her vomit and did hear the Appellant’s comment about her not wearing make-up; thereafter, the two had not been back in communicating for more than a week. 9.All of a sudden in the morning of 18 July, however, the Appellant received a WhatsApp message from Madam X demanding an apology from him. The subsequent WhatsApp exchanges became the most crucial evidence of the case. Later in the evening at around 10 O’clock, Madam X decided to go to the police and lodged a complaint. 10.The appellant was subsequently charged with one count of indecent assault[1]. The case was heard before magistrate, Matthew Leung, sitting in the West Kowloon Magistracy. Following a trial, the Appellant was convicted and sentenced to 5 months’ imprisonment. He now appeals against both conviction and sentence. 11.Mr J Reading SC represents the appellant on appeal and in the court below. At trial, the appellant took the stand and also called his fiancée, Kayu, and a psychiatrist, Dr Hung, as well as a character witness. Apart from Madam X, the prosecution also called a psychiatrist, Dr Wing, by way of rebuttal evidence. Issue 12.The narrow issue on appeal, as in the court below, is one of “Mens Rea or the lack of it”. Actus Reus 13.The defence position is that the Appellant does not challenge what Madam X told of what he had done to her, the learned magistrate describes it in the following[2]:
Grounds of Appeal 14.Mr Reading put forward altogether five grounds to say that the conviction of the appellant was unsafe and unsatisfactory, but to my mind he was relying heavily on the first two grounds: they are to do with the way in which the learned magistrate dealt with the testimony of the appellant and his fiancée, Mr Reading said, the learned magistrate erred in his analysis of their evidence in finding them to be dishonest and unbelievable. 15.The rest of the grounds are that the learned magistrate erred by reversing the burden of proof of the defence of automatism; failing to mention one important piece of evidence given by the expert for the Prosecution[3]; in all the circumstances there is a lurking doubt in the case. 16.I shall first of all deal with the first two grounds. The Main Features of The Defence’s Case 17.The defence’s case may be summarized as follows:
WhatsApp Messages (Madam X’s messages in italic and to the right)
The Magistrate’s Findings 19.Insofar as the evidence of the Appellant and his fiancée was concerned, the learned magistrate basically disbelieved them mainly on the grounds that his reaction as exhibited in the WhatsApp exchanges was not consistent with someone claiming to have suffered from Sexsomnia who should have amnesia for the episode. In the end, he found the Appellant to be fully aware of what he was doing at the time and not suffering any amnesia in respect of the touching incident. 20.The learned magistrate divides the WhatsApp messages into two groups (one up to the time 10:55, and thereafter till the end) for consideration.
21.In the first group, when Madam X told him she was not after the insurance form, the learned magistrate criticized the Appellant for being able to so quickly connect the two things together – one that she slept besides Madam X and the other that his fiancée complained about his sexual touching while asleep[9]. 22.He went on to find that unreasonable and unbelievable for a number of reasons, namely, Madam X made no mention as to what exactly her complaint was, but he would then apologize to her and ask her not to tell “Kayu”; he kept apologizing and saying that he would not appear before her, he wanted the impact on her to be less etc., the learned magistrate thought that the Appellant answered in this manner indicating he knew what had happened and what she was referring to. 23.The Appellant even asked Madam X to let him off even though he did that, and despite the lack of particulars of the complaint, the Appellant admitted that he had done something wrong to Madam X and was ashamed to see her. The learned magistrate found it strange that the Appellant had never asked Madam X to clarify what he had done to her throughout the WhatsApp exchanges.
24.The Appellant admitted in his testimony that what he wrote to Madam X about “dreaming of sleeping with his girlfriend” at 23:46 was a lie, but he explained that what he intended to tell Madam X was that if he had done something wrong, he did it unconsciously[10]. 25.The learned magistrate obviously did not accept such an explanation for, he said, he could not find anything in the messages in support of that conclusion. He strongly criticized the Appellant’s admitted lie and said that this cast serious doubt as to the credibility of the Appellant. 26.He found the Appellant to be dishonest in that he said in the messages he could not control himself when being accused by Madam X of having kissed her on the lips, but in his testimony, he said he did not have any recollection of that and he just wanted to convey to her the message that “ he was not conscious”. The learned magistrate commented: “if he really did not have such a recollection, he should have told her to that effect”. Discussion 27.Let’s recap what kind of person the learned magistrate found the Appellant to be:
28.Assuming for a moment the Appellant is indeed the kind of person the learned magistrate found him to be, then the question to be asked is whether such person would behave like what the Appellant did as shown in those WhatsApp exchanges. 29.There are at least two aspects which in my view are not consistent; the first is about his “apology” after being told it was not about the insurance matter; secondly, no mention of alcohol ever by the Appellant himself throughout the WhatsApp exchanges.
30.As the records show the first thing the Appellant mentioned was the insurance form, but as he knew what he had done to her (the learned magistrate’s findings), when she demanded an apology, he must have known she was referring to that particular incident in that morning, but by talking about insurance, which demonstrated that he had no intention to admit his wrongdoing in the first place. 31.Given his initial attitude, one would only expect him to continue to maintain “his innocence” by playing possum unless the evidence against him was so overwhelming that he could not but admit it. 32.Up to that particular point in time, evidencewise, this was not a smoking gun case – no eyewitnesses, no video, no tape-recording or WhatsApp records of any confession or anything like that, and he was not caught in flagrante delicto. It is only a case of “he said, she said”. 33.But he didn’t, he apologized and begged her not to tell his fiancée despite the scanty evidence against him, why? In the subsequent exchanges, one can see the Appellant kept apologizing, blamed himself for what had happened, offered not to see her anymore and at one stage even asked her not to go to the police or words to that effect. 34.One might put it down to his guilty feelings, but aren’t such reactions equally consistent with the defence case that the Appellant believed that he might have done something inappropriately to Madam X, though he did not have memory of any details of it?
35.It is true to say most of the people, if not all, at the party had had a bit too much to drink on that night including the Appellant. He had had a few glasses of wine at dinner with his family before coming to the party and had more at the party. 36.If he were the kind of person the learned magistrate found him to be, that would mean he did not have in his mind the thought of the possibility of inappropriately touching anyone who happened to share a bed with him; if he were to find any reasons to back up his claim of unconsciousness, the only option available in the instant case would be one of alcohol blackout. 37.One can see, however, a central theme running through all of his WhatsApp messages – on the one hand, he admitted his wrongdoing simpliciter, and on the other, he was trying extremely hard to convince Madam X that he had no conscious recollection of what had happened to her, but getting nowhere with her (Madam X obviously did not buy it for she noticed the Appellant’s eyes were open at the time). 38.There must be a reason for being unconscious. In fact, there are many instances throughout the WhatsApp exchanges where he asserted that he was unconscious at the time without mentioning any reasons, and what was the point in repeating this a thousand times if he could not come up with a plausible or any reason for it? 39.Even when Madam X at one stage talked about “people remain a bit conscious even when they are drunk” (23:50) and told him not to lie anymore, he still did not say anything about alcohol. 40.The only readily available excuse was alcohol in the circumstances, but the fact was that he never blamed it on alcohol blackout or anything along those lines. Wasn’t it strange? 41.Could it be something else that he had in mind at that time but could not quite figure that out? For example, his odd sexual behaviour during sleep which his fiancée had told him before. The Defence Case 42.The Appellant testified that once Madam X said it was not about insurance, he almost immediately conjured up the episodes of his odd sexual behaviour during sleep. This could not be an afterthought since it was recorded in the WhatsApp messages, though all that he could describe was “being unconscious”. 43.This could only come from his bed partner, i.e., his fiancée. Kayu testified to having been sexually touched by the Appellant in an aggressive and rude manner on some occasions in the past while they were sharing the bed and, on those occasions, sometimes his eyes were open but focusing nowhere. 44.Kayu could not have made this up-she must have told him before; were it otherwise, the Appellant would have nothing to conjure up with. The Appellant’s evidence is that he remembered sleeping next to Madam X, and the fact that he could connect these two things together almost immediately tells us that his fiancée was at least telling the truth. And it was all recorded in the WhatsApp messages, there was no time for concoction. 45.Both experts agreed that Sexsomnia cases are very rare, and indeed they have not handled such cases personally in their professional life; Professor Wing, the expert for the prosecution, said that he had only seen two cases which were in fact handled by his colleagues. More importantly, he agreed with Mr Reading in cross examination that persons suffering from Sexsomnia usually had their eyes open. 46.As for lay persons like the Appellant or his fiancée, at the time when the WhatsApp messages were exchanged, they probably would not have recognized the Appellant’s occasional odd sexual touching as something of a medical condition, much less it would have prompted them to do something about it such as to seek medical attention. Although such behaviour is going to disturb the bed partner, in a loving relationship it may be understood as “just one of those things that happens”. 47.The learned magistrate set great store by the Appellant’s lies about “the dream of sleeping with his girlfriend”, and rejected his contention that he was trying to convey the “unconsciousness” message to Madam X. Given his limited insight into his problem, he could not have explained his problem any better than that to her. 48.All that he knew at the time was he had had this odd behaviour every now and then in the past, and this happened whilst he was sleeping. As one can see from the messages, the Appellant went to great pains to try to explain to Madam X what his problem was, as this was something happened in his sleep, it was only natural for him to think of “dreams”. It all seemed to me reasonable in the circumstances. 49.It was argued that if he had had such a problem, he should not have accepted the invitation of Madam X to sleep next to her in the first place. It would have a point if the condition was something so common as to be easily recognizable, and the Appellant would be expected to know about it but clearly this was not the case. However, he remembered it when being demanded for an apology, then he realised something bad he might have done and thus was alert to the possibility of it. 50.In rejecting the evidence of the Appellant’s fiancée, the learned magistrate queried why she did not ask the Appellant to seek medical advice much earlier, as the problem occurred a few years ago, instead they waited until they consulted Dr Hung, the defence expert, on the advice of their lawyers for this case. 51.According to the Appellant’s fiancée, it did not happen very often, it is not reasonable to expect them to recognize it as a problem at that time; even if they do, they may be at a loss as to what professionals they should approach for help, and finally, the question of embarrassment may also play a part in the delay. 52.It is true to say the Appellant had not asked Madam X about what exactly he had done, but what good would it do to the Appellant in a situation like this? As one can feel from the exchanges that Madam X was extremely upset at that time. 53.Clearly Madam X would have thought he was conscious of what he was doing because she noticed his eyes were open, she would not buy any story to the contrary. By asking her for details of the assault, it would only agitate her further because any such question would imply the Appellant’s lack of knowledge. 54.The other reason forming the basis for the learned magistrate to find the Appellant’s fiancée to be neither an honest nor a credible witness was that she believed what the Appellant told her it was about the insurance when she saw the WhatsApp message about the demand of an apology. 55.The learned magistrate was of the view that insurance agent would seldom ask a client to apologize for the late return of the insurance papers, so she should have found the Appellant’s excuse unreasonable. 56.She said she only saw that part of the message that morning, and she was told it was about the insurance. I do not find it unreasonable if she did not follow it up any further, as the evidence showed, it was the Appellant who handled the matter for her all along. 57.What struck me was she was willing to come forward to take the stand for the Appellant when most women would have been very angry and probably walked away if their men went out to molest other women. When she was cross-examined by the prosecutor about her reaction on learning about the allegation, she said, “she was shock, and then comforted the Appellant because she knew he was not the kind of person who would take the initiative to do these acts.” 58.The defence expert, Dr Hung, testified that in his opinion the Appellant was more likely than not suffering from Sexsomnia at the time of the offence. Of course, the court is not bound by Dr Hung’s opinion; the learned magistrate in the present case was perfectly entitled to come to a conclusion different from Dr Hung’s, but to my mind his reasoning process in rejecting the testimony of the Appellant and his fiancée was flawed. 59.On the evidence before the court, the kind of person as described by the Appellant was more consistent with the reactions as shown in the WhatsApp exchanges than the one the learned magistrate found him to be. The story of the Appellant and his fiancée made sense and they had a degree of plausibility. 60.I am of the view that their evidence had been given less weight than it warranted and had been improperly rejected. The conviction is therefore unsafe and unsatisfactory. This ground alone is sufficient to dispose of the appeal. Disposal 61.The appeal is upheld, the conviction and the sentence are set aside.
Ms Christal Chan, ADPP(Ag.) of the Department of Justice, for the respondent. Mr John Reading S.C, instructed by LCP, for the appellant. [1] Contrary to the Crimes Ordinance s122 (1) Cap 200. [2] Paragraph 8 of the Statement of Findings. [3] Mr. Reading submitted that Dr Wing, the prosecution expert, accepted under cross-examination that it was possible the Appellant was suffering from Sexsomnia at the relevant time. [4] The Appellant testified that on seeing him sitting on a wooden chair to rest, Madam X waved him to come to sleep next to her; Madam X in her testimony could not recall this episode. [5] Madam X could recall vomiting herself, the conversation of paying tips and the comment about not wearing make-up [6] The Appellant later learned that it’s a medical condition called Sexsomnia. [7] The Appellant had intended to take out an insurance police for his fiancée with Madam X who was an insurance broker, but the matter had been dragging on for months because the Appellant failed to return the completed form. [8] This colloquial term means “ insincere” [9] Paragraph 35 of the Statement of Findings. [10] Paragraph 36 of the Statement of Findings. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under HCMA 582/2018