HKSAR v. Ngan Chuen Li

HCMA 252/2019

[2021] HKCFI 150

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 252 OF 2019

(ON APPEAL FROM KCCC 3652 OF 2018)

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Before:  Deputy High Court Judge Tam in Court

Date of Hearing: 8 November 2019

Date of Judgment: 22 January 2021

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J U D G M E N T

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1.The appellant was convicted after trial before a magistrate of a charge of indecent assault and sentenced to 4 months’ imprisonment.

2.He appeals against conviction and sentence and was granted bail pending appeal by the magistrate.

3.At trial, the appellant was represented by Mr Fu Chong Sang of counsel.  Here, the appellant is represented by Mr Cheng Huan SC together with Messrs Fu and Dixon Tse of counsel.

4.The trial was conducted in Chinese.  At the initiative of the appellant and with the agreement of the respondent, the appeal is conducted in English.  The appeal bundle (including its extension) has been translated into English and certified.

Summary of the prosecution case (X being PW1)

5.The prosecution case was summarized in the Statement of Findings in this way:

“X’s evidence

11.  She is 22 years old and is a university student in Year 4. The student union had a Japanese Culture Society. She succeeded and became the financial secretary of the Society in May 2017.

12.  This Society has jointly organized kendo classes with Vajra Kendo Club since 2016. The person-in-charge of Vajra Kendo Club was D. D himself is a seventh-dan kendo master. The Society was required to pay $4,500 to D’s Vajra Kendo Club every year, by which members of the Society might take part in kendo classes twice per week free-of-charge. Currently, four members of the Society have taken part in the kendo classes, including X herself.  However, during the recent few months, X has only taken part once or twice. D is X’s kendo mentor.

13.  On the Saturday before the incident, ie 15 September, there was a kendo competition at the HKUST. X was a volunteer there and happened to come across D who was an adjudicator. D asked her to meet for having a meal, and afterwards through WhatsApp, ie P3(1)-(3), the two parties arranged to meet at a restaurant inside Hollywood Plaza for lunch.

14.  On the day of the incident, while having lunch, X gave D a gift which was a bottle of wine, ie D3 and D4.  The original working hours for X’s part-time job was from 11 am to 5 pm, but on that day, since she had arranged to lunch with D, she changed to start work from 5 pm. Around 1 pm, the lunch finished.  Since X had extra time, she accompanied D to go to his office.  X had previously gone up there once with other kendo students. This occasion was however the first time that she went there without others. It took about 10 minutes to walk from the restaurant to D’s office.

15.  X entered the unit through the main door on 3/F, ie the main door to shown in photo P3(7). Having entered through the main door, X first went to the washroom, and D went directly into the office, ie Room A23.  Subsequently X entered the office.  Inside, there were a table, a chair and a sofa bed, which were similar to what was shown in the photo of defence exhibit D6.

16.  D showed calligraphy skills on the table with a writing brush.  After that, D invited X to sit together on the side of the bed to rest. D sat on the right hand side of X with a distance of about 45 cm between them.  D said that he had learned pressure-point massage. He first used his own hand to massage his other forearm to give demonstration to X.

17.  Afterwards, D said that he could give massage to X.  X extended her right arm for D to massage her forearm.  Following this, D said that he could give X massage on her shoulders, X also let him do so.  And X turned slightly to her left with her back towards D to let D massage her shoulders.  During the massage on the shoulders, D’s hands swept to X’s waist and then D continued to massage the position of the shoulders.

18.  Afterwards, D suggested giving massage to X’s legs. X indicated consent. D removed X’s shoes for her, and X lay on the bed, facing down to the bed with her back towards the ceiling. D used his hands to massage X’s calves at the same time, and then the sole of the feet, and the calves again, and then moved upwards, and massaged the thighs with the hands. At the time, X was wearing a denim skirt.

19.  When D’s hands were massaging the thighs, his hands both moved upwards slowly, and the hands swept into the part underneath the skirt. On top of the knickers, his two palms moved in a circular motion at the same time on X’s buttocks to massage.  X immediately pulled down her skirt, and D’s hands retracted briefly, and moved back down to the thighs to continue the massage. After that, D’s hands again moved back to the buttocks, on top of the knickers and underneath the skirt, while one palm was massaging the buttock, the other hand lightly stroked the position of X’s vagina opening with his two fingers for around 4 or 5 times. X felt that they were the index and middle fingers.

20.  At this time, X raised her upper body, turned back with a left turn and said, “I do not need massage.”  D’s hands then stopped. However, at the time, D pressed towards X’s left breast with his right palm to try to press X down.  X pushed with both hands to hold back D and told D to stop.  At this juncture, D’s was in a kneeling posture with his left knee next to the lateral side of X’s left knee and his right knee next to the lateral side of X’s right kneecap as if he were riding on something.

21.  After D had calmed down, D got off the bed and said, “I am sorry, I’ve got sexually excited.”

22.  X also got off the bed but did not know how to react. She repeatedly requested to leave, but D told her to stay further for a while and did not let her leave, and said he would take her back to (her) company later. X had no alternative but stayed.  She WhatsApped secretly to her senior fellow brother in kendo, namely PW2 Brother Wu, the content of which was that D had touched her inside D’s office.

23.  After repeated requests, D let X leave but insisted on driving her away, but X said that it was not necessary. They left the office but D walked in front and X walked behind.   X insisted on taking MTR by herself. Upon reaching the stairs opening of Diamond Hill MTR Station, D left.

24.  X entered the station and could not stop crying.  X phoned PW2 who told her to wait for him inside the station. Subsequently, PW2 arrived and they together went to the coffee shop of a hotel in Hung Hom to have a word.  X told PW2 the incident.  At around 6 pm, PW2 accompanied X to the police station to make a report.

25.  Under cross examination, X agreed that the Society had only paid $4,500 of the club fee for 2016, but the fee of the two years namely 2017 and 2018, had not been paid to D.  X also agreed that members of the Society still took part in the kendo classes, but currently only four people, including X herself, took part.  During the last few months, X had only taken part in one or two classes.

26.  X denied that D had pursued her for the payment of the club fee of the last 2 years.  X said that it was only because she came across D in the competition at the HKUST that they arranged for lunch. During lunch, she brought along a souvenir, which was a small bottle of wine, ie D4, to give to D as a gift.  In her impression, she thought that D liked to drink, so she gifted D a small bottle of wine as a token of regard. X also agreed that the bag used to carry D4 had the English phrase “Gift for you with my heart” printed on it, which nevertheless just for holding the wine and had no special meaning.

27.  After lunch, D indicated that he would go back to the office to work on some documents, and since X has changed to start her part-time job at 5 pm, she had some free time and so accompanied D back to his office.

28.  X agreed that D7 was the pamphlets of the Japanese Culture Society of the university, which indicated that the membership fee was $370.  D10 was the only beach event held by the Society.  Most people in the photo, were members of the Society.  Since the Society had organized only that event, $270 out of the $370 membership fee collected was refunded to the members, and the remaining $100 had been spent on the said beach event. The Society had no membership fee left.

29.  In relation to D’s massage on her shoulders, calves and thighs, X consented.

30.  She agreed that in the witness statement, the words written down were stroking the buttocks instead of in circular motion on her buttocks. In the course of cross examination, X naturally said that D “stroked the butts” and again stroked the private parts.  It was based on her feeling that she came to the view that D stroked her private parts with his middle and index fingers.  She agreed that it might be wrong. She also agreed that in the witness statement, it was not mentioned how many times there were when “stroking my private parts” was mentioned.  Also in her witness statement, it was not written down that D had said, “You won’t tell others, will you?”

Mr WU’s evidence

31.  PW2 was X’s senior fellow brother in the kendo class. At the time of the incident, he and X had some conversations through WhatsApp, the content of which was “Ngan-san touched me. I am very scared. He said to giving me massage.” (i.e. the relevant contents can be seen in the photos exhibited as P3(4) to (6).

32.  PW2 subsequently got to Diamond Hill MTR station and saw X. At the time, X’s looked nervous and tense, and was in tears. Since the surrounding environment was not quiet, he then took a taxi to go with X to the coffee shop of Harbor Plaza Hotel to have a word.

33.  X said that she had gone up to D’s office, she lay on a bed. When D gave her massage, during the time, she felt that D’s hands began to go to some abnormal parts, such as the inner side of the thighs or personal parts. The “parts” according to PW2’s understanding was most likely the private parts. PW2 also described that X said that the knickers were flipped open and the inside was touched. X said, “No.”  PW2 asked X where she was touched, and X said that it was where the reproductive organ was. X also mentioned that D had pressed on her with his body to try to continue.

34.  Under cross-examination, PW2 said X had not said “flipped open”, and he then changed it to “pulled open” the knickers to touch inside. When the defence asked him why “flipped open” was changed to “pulled open”, he tried to demonstrate and explain with hand gesture, but he also agreed that X at the time did not use any hand gesture to describe. In the end, PW2 said that it was “uncovered”.  When the defence asked him how X was pressed by the body, PW2 again changed and said that D had pressed down with his hand to try to continue.”

Summary of the defence case

6.The defence case was summarized in the Statement of Findings in this way:

“D’s evidence

35.  He studied in France when he was young and has got married. After that he came back to Hong Kong to take care of the family property.  He is seventh-dan in kendo. He has set up Vajra Kendo Club, knows Wing Chun and has learnt yoga, etc. His kendo club and various universities have jointly organized kendo classes. Each university has to pay $4,500 each year as the annual fee, and the number of students who may take part is unlimited.  Students may take part in the kendo classes held at the Leisure and Cultural Services Department premises two evenings in each week.

36.  The Open University has joined the kendo classes since 2016, and the university representative at the time was called Cheung Kwun (transliteration). The university paid $4,500 in October 2016, ie defence exhibit D1.  D knew that X was the representative who took over from Cheung Kwun.  From 2017 to 2018, the university has paid no club fee and, owed $9,000 in total.

37.  On 15 September 2018, ie the Saturday before the incident, D was a volunteer adjudicator at the HKUST kendo competition.  He happened to come across X in the venue. He asked X for payment of the club fee and said he would arrange for having tea with her later to discuss this matter. One to two days before the incident, they arranged through WhatsApp to meet at Potien Restaurant San Po Kong for lunch.

38.  On the day in question, at around 12 noon, he arrived at the restaurant first, later, X arrived.  X brought with her a bottle of sake, i.e. D3 and D4.  D said that he did not drink because he had eczema and gout, and that doctors advised him not to drink.  On seeing the English words “Gift for you with my heart” on the bag, he felt a bit alarmed.  X suggested the bottle of wine be opened on the spot to drink, D said that he did not drink.  D jokingly said, “Do you like me very much(?)”

39.  During lunch, D asked X when the club fee would be paid.  X said that she had no money and asked if the payment could be waived.  D then said that the membership fee could not be waived.  After the bill had been paid, X said that she still had some time and asked if she might accompany him to go to his office to sit for a while. After that, they walked to the office together.

40.  They entered through the main door on 3^rd floor of Block A of the building as shown in photo D5. That unit was partitioned into 24 small units.  D’s office was at Room A23. In photo D5, it can be seen that there were 24 letterboxes, and the bigger letterbox on the left hand side was for other units to put cheques in to pay the rent.

41.  D retrieved some cheques and documents, etc., from the big letterbox. X said, “So many cheques.” X went to the washroom on her own. D directly entered Room 23. Inside the unit, there was a sofa bed for the convenience of taking rest. He immediately recorded the cheques received and made entries into books.

42.  In the course of it, X came in and on seeing D making entries into books, she said, “So many property units.”  X asked if they were family property. D said that there were 48 units in total in Block A and B together. Afterwards, D quickly put away the documents and cheques. D wrote calligraphy on the table.  X took out 2 glasses from the document cabinet, and poured the wine from D4 into the glasses.  X drank the wine but D did not.

43.  After D finished writing calligraphy, he sat on the sofa bed to rest. X followed and sat next to him.  X removed her shoes on her own, D asked her if she was tired, X said that when she practiced, her muscle was not sufficiently relaxed.  D said that pressing pressure-points on the hand/arm could relax muscles.  X was interested, and D demonstrated with his own arm first, and then he suggested giving a little massage to X. He first massaged X’s arm, and then massaged her head, shoulders and neck.

44.  After that, D asked if any massage on the legs was needed, X agreed and lay on the bed, facing downward to the floor with her back towards the ceiling.  D knelt down with his left and right knees next to the lateral side of X’s left and right legs respectively to give X massage on her left and right legs and the lateral parts of the thighs. D massaged X for around 8 to 10 minutes, and during that time he did not come into contact with X’s buttocks, private parts or breasts.  After it had finished, X said that she could give D massage.  X massaged D for around 8 to 10 minutes.

45.  After both sat up again, D asked X when the $9,000 club fee would be paid. X asked if it could be waived, but D said that it must be paid.  X said that she had no money to pay the membership fee, and also even said, “Let me work for you, and don’t count in my club fee.”  X also said that since D had so many property, he could hire her to work.  X also requested D to provide her a place to live.  D refused because his sister would not agree. X then said, “No?  Then I will leave.”

46.  D did not stop X leaving. He saw her to the Diamond Hill MTR station as his car was also parked near there.  So D left together with her.  D has never said, “You will not tell others, will you?”

47.  He never did any act of indecent assault to X.

48.  Under cross-examination, D agreed that in the WhatsApp conversation between him and X, about the lunch arrangement, there was no mention of pursuit of club fee.  D also agreed that there was no document or record showing that he had previously pursued the Japanese Culture Society, X or any other person for the club fee of those two years.  For the club fee issue, he has never contacted the president or vice-president of the Japanese Culture Society.  D also agreed that over the 6 months before the HKUST competition on the 15 September, he had never pursued X for the club fee.

49.  D also agreed that during lunch, since he had asked for payment of the membership fee and refused X’s invitation to drink, the atmosphere then was not that pleasant, but he still allowed X to follow him back to his office.

50.  D said that after X had come out from the toilets, since he did not want matters about his receipt of cheques, issuance of rental receipts to be known by others, at the time, he quickly put the cheques and documents away into the drawer.

51.  He agreed that when he received the wine and the bag bearing the English phrase, he felt that X had a bit of a crush on him.  X also admired his calligraphy.

52.  D also agreed that X did not ask him and just went over to the cabinet herself, took two glasses out and poured the wine into the two glasses. He agreed that the relationship between him and X was one of mentor-student, and they were ordinary friends and not well acquainted.  The day in question was the first time that he and X had a meal by themselves, and it was also the first time that X went up to his office without others.

53.  When they were both seated on the side of the bed, X on her own volition removed her shoes. He massaged X for 8 to 10 minutes. After his massage, he did not mention any part of his body needed massage, neither did he know if X knew how to massage.  It was only that X of her own volition offered to give D massage, so he did not reject.  X massaged his head, shoulders and neck for around 8 to 10 minutes.

54.  He also agreed that when going to the MTR Station with X, they did not walk side by side.  He was walking in front, and X was walking behind him. They two did not talk during the time.

Madam Cheng’s testimony

55.  DW2, she is a graduate from Shue Yan University.  She has learned kendo with D since 2012 when she was in the university. She knew that the university paid D $4,500 every year as membership fee with no limit on the number of participants.  She graduated in 2016.  In 2018, she attended the kendo class for around 4 or 5 times.  She has also joined gatherings such as birthday parties or meals with D’s presence.  She knew that D had gout and eczema.  At those meals gatherings and birthday parties, in her recollection, D did not drink, and she has never seen students ask him to drink or gift him wine as a gift. The latest feast that she took part in with D’s presence was in around 2017.”

Perfected Grounds of Appeal against Conviction

7.The grounds of appeal against conviction are as follows:

(1)  On the basis of the evidence of PW1, the conviction is unsafe and/or unsatisfactory for the following reasons, inter alia:

(a)  The alleged assault described by PW1 was physically impossible and/or inherently improbable;

(b)  Material aspects of her oral evidence were omitted from and/or inconsistent with what PW1 deposed in her witness statement;

(c)  PW1’s evidence is contradicted by documentary evidence.  She insisted that she had never asked PW2 through Whatsapp “not to tell others”.  However, in the Whatsapp conversation exhibited as Exhibit P3(4), it transpired that PW1 had sent to PW2 a message “do not tell others (唔好同人講)”; and

(d)  PW1’s evidence is contradicted by DW2’s evidence.  PW1 insisted that she had previously seen that the appellant drank wine during meals.  However, DW2’s unshaken evidence was that the appellant had told others that he could not drink alcohol because of health issues.  The appellant also testified himself that he could not drink wine due to health issues;

(2)  The conviction is unsafe and/or unsatisfactory because the magistrate erred in law and in fact in failing to give sufficient weight to the evidence of PW2, whom the prosecution called as the person who received PW1’s recent complaint of the alleged assault, which shows that PW1’s testimony was neither credible nor reliable;

(3)  The conviction is unsafe and/or unsatisfactory because the magistrate erred in fact in rejecting the appellant’s evidence without considering a number of unusual circumstances accepted by PW1, eg:

(a)  PW1 acknowledged that her society owed the appellant HK$9,000 and her society did have income from membership fees of HK$250 per person per month;

(b)  PW1 gave the appellant a bottle of wine wrapped as a special gift in a bag [Exhibit D3] which “PW1 had particularly chosen (特登揀個咁嘅袋)” containing the words “gift for you from my heart”;

(c)  PW1 suggested on her Facebook profile [Exhibit D2] that she would like to be the wife of a person who is good at Kendo (劍道);

(d)  PW1 asked to go to the appellant’s office on her own initiative;

(e)  PW1 allowed [the appellant] to massage her in his office, in particular, allowing [the appellant] to knee[l] outside her legs.  When [the appellant] allegedly had contact with PW1’s buttock, PW1 did not make any verbal complaint; and

(4)  In all the circumstances of the case, the conviction is unsafe and/or unsatisfactory.

Perfected Grounds of Appeal against Sentence

8.The grounds of appeal against sentence are as follows:

(1)  The sentence imposed by the magistrate was manifestly excessive because the magistrate erred in law and in fact in ruling that the existing facts involved a breach of trust;

(2)  The sentence imposed by the magistrate was manifestly excessive because, given the appellant’s clear record and good character, the magistrate failed to consider non-custodial sentence as an alternative to a term of imprisonment; and

(3)  In all the circumstances of the case, the sentence imposed by the magistrate was manifestly excessive.

My considerations

Regarding Ground 1 against conviction

On part(a)

9.Having read the relevant part of the evidence transcript, I note that this action of the appellant related to the last part of the series of acts constituting the indecent assault as found by the magistrate.  Although PW1 described it as a frontal assault on her left breast, she never described it as a direct vertical attack.  The evidence allows of an inclined movement of the appellant’s hand with a view to pressing down the no doubt non-compliant if not slightly resisting PW1.  In saying this, I am not so much troubled by the alleged impossibility or inherent improbability (both of which I do not accept) as by the possibility of an accidental touch on the breast (which the magistrate had not considered) in this last act of the series of acts of indecent assault as found by the magistrate.  This last act has to be seen in the context of the interaction between the two parties at the time. PW1 raised the upper part of her body and turned sideways to the left while the lower part of her body was locked in a prostrate position by the appellant. She said she did not need a massage whereupon the appellant stopped.  The pressing of the breast with the appellant’s right palm was for the purpose of pressing PW1 down, as noted by the magistrate in para 20 of the Statement of Findings.  Afterwards, PW1 pushed with both hands to hold back the appellant and told him to stop.  The appellant then calmed down.

10.From paras 110 and 111 of the Statement of Findings and para 13 of the Reasons for Sentence, it seems that magistrate included as part of the indecent assault the pressing of breast.  However, in my judgment, the magistrate should have first considered and rejected the possibility of an accident in relation to his last act before finding it as an act of indecent assault.  Having considered the matter afresh and in light of the lack of mention by PW1 to PW2 of a touch on her breast, I find, in the capacity of a rehearing judge, that a possibility exists that the pressing of the breast might not have been intentional and that the appellant was merely trying to press PW1 down.  In so finding, I have not made any separate finding (and nor has the magistrate) as to why the appellant wanted to press PW1 down.

11.I wish to emphasize that this finding of mine has no bearing whatever to the other acts found by the magistrate as being acts of indecent assault committed by the appellant.

On part (b)

12.The appellant repeated the submissions made before the magistrate about the alleged inconsistencies between PW1’s evidence and her witness statement.  I am satisfied that the magistrate has satisfactorily dealt with them.

On parts (c) and (d)

13.The appellant alleged that there was an inconsistency between PW1’s evidence and exhibit P3(4) the Whatsapp record. Yet at the appropriate time during PW1’s evidence, the exhibit, though known by the defence to exist, was not even produced yet (apparently because at one time defence objected to its production) and shown to PW1 for her comment (Appeal Bundle 281).  That was unfair to PW1.

14.In any event, I agree with the respondent’s submission that there was nothing unreasonable for PW1 to ask PW2 not to tell others due to the sensitive nature of the incident.

15.Whether the appellant had drunk wine on a previous occasion is a minor matter.  For those who occasionally take a sip, there is nothing inconsistent between drinking occasionally on the one hand, and telling others (whether true or not) that they could not drink on doctor’s order on the other hand.  This is a non-point altogether.

16.There is a further submission in relation to this ground (and Ground 3) that because of the way in which the magistrate has framed the Statement of Findings, and in particular how he has as per the Statement of Findings analyzed, and concluded in para 92 on, PW1’s evidence before he set out (on paper) to analyze the defence case, he must have made up his mind about PW1’s evidence before even considering the appellant’s evidence.

17.My only comment is that this submission ignores the fact the Statement of Findings (and the modern day instantaneous Reasons for Verdict) is more like a comprehensive ex post facto report of what the magistrate has done after he has done it, but does not necessarily give any indication as to the order in which he has done each constituent of it.

18.As an experienced magistrate, the trial magistrate here would know whenever there is a reasonable doubt in the prosecution case, whether cast by a defendant’s evidence or otherwise, the benefit of the doubt goes to the defendant and he/she ought to be acquitted.

19.Except to the extent indicated about the pressing of the breast, Ground 1 fails.

Regarding Ground 2 against conviction

20.It is important to remember on what basis PW2’s evidence was adduced - as recent complaint and nothing else.  This will not be the first or the last case in which there were or would be apparent discrepancies between an alleged victim’s testimony and the alleged early report of what happened to a third person especially when one goes into the details.

21.Archbold Hong Kong 2020 at 8-109 has this to say:

“8-109

In R v Lillyman [1896] 2 QB 167, CCR, it was held that upon the trial of an indictment for rape or other kindred offences against females, the fact that a complaint was made by the victim shortly after the alleged occurrence, and the particulars of such complaint may, so far as they relate to the charge against the defendant, be given in evidence by the prosecution, not as being evidence of the facts complained of but as evidence of the consistency of the conduct of the victim with the story told by her in the witness box, and as tending to negative her consent. The mere complaint is no evidence of the facts complained of, and its admissibility depends on proof of the facts by sworn or other legalised testimony: R v Brasier (1779) 1 East PC 443; and R v Wood (1877) 14 Cox 46; 1 Hawk, chapter 41, section 9; 4 Bl Com 211, 213. See also HKSAR v Cheung Hok Man [2010] 2 HKLRD 417.

Regardless of “whether non-consent is legally a necessary part of the issue or whether on the other hand it is what may be called a collateral issue of fact” in consequence of the story told by the complainant in the witness-box, evidence of fresh complaint is admissible. The complaint is not admissible merely as negativing consent, but as being consistent with the sworn evidence of the complainant: R v Osborne [1905] 1 KB 551(appearing to overrule R v Rowland , 2 JP 459, and R v Kingham , 66 JP 393, and to approve R v Kiddle (1898) 19 Cox 77).

…

As the purpose of the evidence is to show consistency, it follows that if the terms of the complaint are inconsistent with the terms of the testimony, the introduction of the complaint has no legitimate purpose: R v Wright (Albert Edward) (1990) 90 Cr App R 91, CA.” (my emphasis)

22.Far too often, the apparent inconsistencies between an alleged victim’s testimony and the early report of what happened to a third person have been used to discredit the victim’s credibility (or even reliability) to an overly extent.  While this has been permitted to carry on as a matter of practice, one must ultimately go back to the purpose for which the evidence was adduced; and one must also bear in mind that this early report (or complaint) is not in the form of a witness statement with all its appurtenant solemnity and declaration, the chance to read-back and a reminder that the victim may add, delete or vary the contents before putting her hand (therefore endorsement) on the document.

23.With this big difference between an early complaint and a witness statement, the apparent inconsistencies, if there are any, must not be amplified to such an extent that they could not justify.

24.Here, of course there were inconsistencies but they are of a minor nature.  But the important thing is that the identity (appellant) was consistent, the place (appellant’s office) was consistent and the mode (through massage) was consistent.

25.In my judgment, what inconsistencies that the appellant has been able to pick out belong to the category of immaterial inconsistencies which could be explained by misunderstanding, miscommunication and/or other factors.

26.Before leaving this ground which I found to be devoid of substance, I would just say that although it has often been said that the prosecution should not impeach the credit of its own witness (see also section 12 of Evidence Ordinance), I have never heard it seriously said that the prosecution could not submit that one of its witnesses was not a reliable witness (perhaps the better and safer submission would be that the court should not place too much weight on his/her evidence).  Often, where there are internal inconsistencies in a witness’s evidence, or where there are inconsistencies between his/her evidence and the admitted facts (or other prosecution witnesses’ evidence), that is about the only thing that prosecuting counsel could say about this first witness.

27.In any event, if the prosecution did err, the time to complain was during trial and not here.  The magistrate is taken to know the law and the proper procedure and would ignore this improper remark, if improper it was.  The magistrate would in the ordinary exercise of his judicial function have placed whatever weight on PW2’s evidence as he thought fit with or without this reminder from the prosecution.

Regarding Ground 3 against conviction

28.The magistrate carefully analyzed the appellant’s evidence in paras 93 to 103 of the Statement of Findings.  To say that the magistrate gave no or no cogent reason why he disbelieved the appellant on the topic of how the latter massaged PW1 is to turn a blind eye to the obvious – that the magistrate assessed the appellant’s overall credibility having regard to the whole of his evidence.  Sometimes a witness (whether from prosecution or defence) bent on lying could perhaps invent and follow through with a perfect story on the central issue (which necessarily would be narrow eg did he touch her or not) which would be difficult to attack even by the best cross-examination; however, even the best cooked up story would give way at the fringes or when seen in the context of surrounding circumstances which have been exposed to be unreasonable.

29.The circumstances listed by the appellant as unusual under this ground are not unusual at all.  In particular, the bag exhibit D3 was specially chosen by PW1 yes but there is no evidence to suggest that PW1 chose it because of the printed wordings.  In fact, if what the appellant said about his habit about wine was true, then the fact that PW1 chose wine (something unwanted by the appellant) as a gift shows she was not that familiar with the appellant.  PW1 delayed the start-time of her part-time job not because she wanted to stay with the appellant but because of the lunch appointment.  Also, by pulling her denim skirt down, PW1 already showed her disapproval of how the appellant was massaging without the need for any verbal complaint.

30.Ground 3 fails.

Regarding Ground 4 against conviction

31.For the above reasons and viewed generally, the conviction is neither unsafe nor unsatisfactory.

Regarding Ground 1 against sentence

32.In HKSAR v Poon Kar Yue, CACC 356/2017, Macrae VP said in para 26 of breach of trust relationships:

“26. … The defining quality of such relationships is that, by virtue of a person’s position or authority, he is entrusted with access to something or someone he would not otherwise have, which he then misuses or abuses for his own personal advantage or pleasure.”

33.While I accept, like the magistrate before me, by virtue of the appellant’s position as a Kendo master, he had access to PW1 to whom he otherwise would not have had access, I adjudge it is not clear that he had then misused his position or authority, for the following reasons:-

(a)  The indecent assault did not take place while the appellant was giving Kendo lesson;

(b)  It was PW1 who initiated the visit to the appellant’s office because she intended to keep the elderly company;

(c)  She agreed to the initial non-sexual massage which was unrelated to Kendo; and

(d)  She did not take the appellant’s classes often so the relationship of master-student between the appellant and PW1 could not be described as very strong.

34.So, in my judgment, this is not a clear case of breach of trust and the sentence should not have been aggravated as a result.

Regarding Ground 2 against sentence

35.In this case, the most intimate parts (private parts) of a lady’s body have been touched, albeit across the mere barrier of underpants.  In this connection, I totally ignore the pressing of the breast which I adjudged not part of the indecent assault.

36.Anything other than an immediate custodial sentence is an unrealistic suggestion.

37.Ground 2 is not made out.

Regarding Ground 3 against sentence

38.The magistrate adopted a starting point of 6 months’ imprisonment taking into account breach of trust and reduced the sentence to 4 months after considering mitigation.

39.Given my judgment on Ground 1, the sentence imposed was manifestly excessive.

40.I bear in mind the sentencing considerations expressly mentioned by the magistrate ie those recognized by the sentencing judge in HKSAR v Chan Ching Ho, Owen [2000] 3 HKLRD 476, CACC 549/1999, namely, the need to deter others, the need to mark the public abhorrence of such crimes and the need to redress the grievance suffered by the victim and her relatives and friends.

41.I have read the transcript of the mitigation submissions made before the magistrate.  Given the fact that the appellant immediately desisted after PW1 said she did not need massage, I will adopt a low starting point ie that of 3 months’ imprisonment.

42.Like the magistrate before me, I will take off 1/3 not for the appellant’s plea because he did not plead guilty, but for the same reasons that the magistrate gave namely, the appellant’s clear record, his very good background, his old age (almost 70), and his contribution to the sport of Kendo.

Conclusion

43.For the above reasons, the appeal against conviction is dismissed.  I confirm the conviction.

44.For the above reasons, the appeal against sentence is allowed.  The original sentence is set aside and is replaced by a sentence of 2 months’ imprisonment which will be executed forthwith.

Mr Glen Kong, PP of Department of Justice, for the Respondent

Mr Cheng Huan SC leading Mr Fu Chong Sang and Mr Tse Siu Chung Dixon, instructed by SSW & Associates, for the Appellant