HKSAR v. Yang King Hung

DCCC 164/2021

[2022] HKDC 897

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 164 OF 2021

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REASONS FOR VERDICT

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1.In these proceedings a young girl, X (“herein after referred to as the victim”)  accused her sports coach, Yang King Hung (“the defendant”)  of indecent assault on four separate occasions during the period between 24 July 2019 and 30 August 2020. Each of these occasions formed the subject matter of one charge of “Indecent Assault on Another Person”, contrary to sections 122(1)  of the Crimes Ordinance.

Background

2.The background of this case have been admitted under section 65B of the Criminal Procedures Ordinance and had been confirmed by the defendant in open court.

3.The victim was born on 19 February 2005 and was below the age of 16 during the period in question.  She was then a secondary school student and had been recruited into the HKSAR delegation sports team representing both the school and Hong Kong in athletics competitions.

4.The defendant was a sports coach employed by her school.  He was born on 24 December 1987.  During the period in question he had been in his early 30s.  He was also the organizer of a running team to which the victim was a team member.  She joined the extracurricular training sessions for the running team outside school.  The defendant had also organised group/individual training sessions and competitions locally and overseas. 

5.The first two of the four occasions (the subject matter of Charges 1 and 2)  took place outside Hong Kong.  The jurisdiction of this court for these 2 offences is conferred by section 153P of the Crimes Ordinance. 

6.The victim first complained of the defendant’s behaviour to the school social worker.  At the latter’s request, she gave an account of all the four occasions complained of during the period in question in November 2020.  She was subsequently interviewed by a police officer on the 11 November 2020.

7.The video-recorded interview and the transcription and its translation have been submitted as part of the evidence in this court.  The video record was played in open court as part of the victim’s evidence-in-chief.  The evidence of indecent assault came mainly from the victim herself, both in her video-recorded interview and also from her cross-examination by the defence counsel. 

8.In considering all the evidence, this court bears in mind that the defendant has a clear record and that any person who would put this fact before this court is considered less likely to commit a crime, and if he choses to give evidence in open court, extra weight should be given to his testimony. 

9.This is not really a complicated trial in terms of law and fact, but it does involve copious details.  Here I would only set out only the thing that are most relevant to my findings and decision.  Those that are not referred to here does not mean that they have not been considered.  They are intentionally edited for reason of brevity.

Evidence of the case

Charge 1: 24 July 2019 in Tokyo

10.Between 23 July and 2 August 2019, the victim and a group of students were led by the defendant to go to Japan for a training trip.  The victim shared a room with another student, the defendant had his own room.

11.During the first day of training on the 24 July 2019, the victim sustained injuries on her thigh.  In the evening of that day, the defendant asked the victim to go to his room where he offered her a massage to relieve the discomfort of the injuries on her hip and back of thigh.

12.Inside the defendant’s room, after massaging the victim’s back for about 30 minutes, the defendant lifted the victim’s upper garment with her consent in order to apply massage oil.  Then the defendant told the victim to turn sideways and, for about five minutes, inserted his right hand under her brassiere and circled around her right breast with three fingers once.  His hand also touched her breast.  The victim did not move as she did not know how to respond.  At about midnight she went back to the room she shared with her teammate. 

Charge 2: 17 August 2019 in Guangzhou, China

13.The defendant at again led a training team to Guangzhou, between 16 and 18 August 2019, at about 6 pm on 17 August 2019, the defendant went to the victim’s hotel room which she shared with a teammate and offered to massage her to alleviate the discomfort brought by the injuries she sustained during the trip to Japan.  The victim accepted the offer. 

14.After defendant massaged the victim’s back and shoulders and her waist for about 30 to 45 minutes, the defendant lifted her upper garment, her sports brassiere and used three fingers to massage her breasts, touching her nipples in upwards and downwards motion for about 5 to 10 minutes.  Before leaving the room, the defendant kissed the victim’s mouth once. 

15.During cross-examination it was revealed that at the time the victim was not alone, her roommate was lying on the other bed and had occasionally joined in the conversations.  Subsequently, her roommate fell silent.  Afterwards the defendant used a pillow to block her roommate’s view.  She admitted that she felt tense during that latter part of the massage, but she did not tell her roommate because she was not that familiar with that roommate and; the defendant had always been considered a good and caring coach, she feared that she would not be believed even if she told others.  She also added that had it not happened to herself, she would not have believed it either.

Charge 3: 30 December 2019 in a Tuen Mun Hotel

16.During that Christmas holiday on 25 December to 30 December 2019, the victim and her teammates went for a group training led by the defendant.  During the training, the whole team stayed in a hotel in Tuen Mun.

17.Upon completion of the training program at about noon on 30 December 2019, all other team members checked out and went home.  At the defendant’s invitation, the victim stayed behind and subsequently went to the defendant’s room for a massage; during which the victim was lying on her back.

18.At some point the defendant leaned on the victim’s upper body, laid on top of the victim and kissed her on the mouth, inserted his tongue into her mouth, licked her right ear and neck.  The victim did not consent to such advances and tried to avoid being kissed by moving her head sideways and clenched her teeth to block the defendant’s tongue from inserting into her mouth.

19.Under cross-examination the victim admitted that before going back to the defendant’s room they had a meal and then went to see a horror movie together.  She revealed that during the show the defendant held the victim’s hand and put his arm on her shoulder.  She felt uncomfortable but was too embarrassed to push him away.  She admitted that she did not disclose this detail (ie what happened during the movie)  in her video-recorded interview. She agreed that such a decision would create a bad impression on her credibility.  She denied that she had a close relationship with the defendant.

20.After that incident she had tried to avoid the defendant and behaved coldly to him.  It was also revealed that she didn’t even know what the term “French kiss” meant.  She didn’t make known her dismay to the defendant and rejected him outright because she was embarrassed.  She stated as a 14-year-old she was trying to make sense of what had happened to her.  After the incident she did feel unhappy, felt that she was dirty and had to go home to take a shower. 

Charge 3: 30 August 2020 at the defendant’s residence

21.On 30 August 2020, the victim had a one-to-one training session with the defendant.  After which they returned to the defendant’s Tsuen Wan residence where they had a takeaway meal and watched TV. 

22.Before the victim left, the defendant offered her a massage.  Initially the victim was lying face down, but at some point the defendant turned the victim’s body so that she laid on her back.  The defendant then laid himself on top of the victim and started kissing her on her body.  Over their clothing the victim could feel the defendant’s erection.  The defendant also spread the victim’s legs apart, removed his jacket and vest, inserted his hand under the victim’s brassiere, touched and squeezed her breasts.  The defendant then pushed up the victim’s brassiere, exposing her breasts and then licked her right nipples, kissed her neck and ear, whilst moving his body up and down on her person. 

23.After that, the defendant took a shower, the victim then left on a taxi.  The victim stated that she didn’t like what the defendant did to her, but did not protest as she still considered him a trusted figure. 

24.Under cross-examination it was revealed that the defendant moved his upper garment and after that tried to remove her brassiere (a sports bra)  but only managed to push it up.  She denied that she was a willing participant in the lovemaking, i.e. the kissing, the nudity and the embracing.  The victim didn’t complain but cried alone at home. 

25.The victim denied that she and the defendant were lovers.  She did not tell anyone about any of the occasions as she didn’t want it to affect her training with the defendant.

26.On 29 October 2020, the victim revealed the incidents to her to school’s social worker PW2.  At PW2’s request, she made a detailed written account of the four instances and gave it to PW2.  After that, a formal report was made to the police. 

27.Under cross-examination the victim stated that she didn’t first tell her parents because she wanted to spare them the emotional shock.  In her account she omitted some details because, although she remembered them, she decided not to write them down because she didn’t think that it was necessary as there was no indecent assault involved in those details.  She denied that it was a calculated move to preserve her credibility, but rather, it was because she felt ashamed to have gone to see a movie with the defendant.  She felt it would make her appear to deserve to be so treated by the defendant.  She agreed that even after the second occasion of indecent assault, she remained in the defendant’s team and joined in the regular training sessions.

28.She denied that she was mistaken, nor did she agree to the touching by the defendant.

Assessment of the victim’s evidence

29.The details revealed in cross-examination, in my view, only served to confirm her credibility.  For example, during the second occasion in Guangzhou in the same room was her roommate who had fallen asleep.  The defendant had placed a pillow near the latter’s face to block the view.  As to why she did not resist, the victim explained that she was embarrassed and she feared that the roommate would see it.  She also feared the refusal would make it difficult for the training to continue.  She also decided not to tell her roommate because she feared that she would not be believed as the defendant was generally considered a good and caring coach.  It was only afterwards that she thought about it and cried in the bathroom at home.  She did not want anyone to see her cry.

30.The victim gave a clear detailed account of the four occasions in which she alleged to have been indecently assaulted.  That was consistent with what she had written down at the request of PW2 on or about 2 November 2020 (P1).

31.Under the comprehensive cross-examination by the defence counsel she stood firm in her accounts of the four occasions.  In my view, she also gave a clear, convincing and frank explanation of her omission in mentioning some details in continuing training with the defendant and in not telling anyone about it until the day she make an appointment to see social worker of her school.

32.In the defence counsel’s final submission it had been suggested the victim was mistaken or she had invented, exaggerated and embellished certain details.  It was also submitted that she consented to some of the occasions in which there were intimate contact between the defendant and the victim.  That was not my impression of the victim’s evidence after observing her in the video-recorded interview and her responses to the cross-examination and also the content of her testimony. 

33.It has also been suggested that the so-called massages were done with the consent of the victim.  Since the victim was under 16 in all four of the occasions, even accepting (which I did not), she agreed to the massages as detailed by the victim, under section 122(2)  of the Crimes Ordinance her consent was not valid.

34.Having reviewed her evidence, I found what X described in each of the occasions was inherently indecent given the age, the relationship and the places where took place.  Such intimate acts between an adult and a young person under 16, one who has under his charge, must be indecent in accordance with the standard of a right minded person.  What happened in each of these occasions was offensive in accordance to the contemporary standard of morality.

35.The defendant was a mature man over 30.  He was a sports coach held in high esteem by both the victim and her teammates.  The victim was 14 years old at the time of the 1^st and 2^nd charge and 15 at the time of the remaining charges.  She had a high regard for the defendant who was in a position of trust.  Both the school and her parents had enough confidence in him for him to take a young girl out of Hong Kong, away from home and for a one-to-one training.  The victim herself also believed that the defendant could help her to achieve good results in the athletic competitions. 

36.The victim had a torn muscle on her thigh.  In this proceedings we have no medical evidence to suggest that has the massage offered anything to do with the injuries to her thigh.  I can only apply common sense.  I find that inserting one’s finger under the victim’s brassiere and touch her breast and touching her breast and nipple (Charge 2), lying on top of his pupil, inserting his tongue into the victim’s mouth, licking her right ear and neck (Charge 3), could not have any therapeutic effect on her injuries.  There were also acts inherently indecent given their relationship and the differences of their ages.

37.Charge 4 involved the defendant lying on top of the victim, pushing up her sports bra, licking her body, touching, squeezing her breast, licking her nipples, forcing her legs apart.  They amaint to the prelude to a plea for sexual intercourse.  If that took place between two consenting adults, it would not be a matter for this court to judge. 

38.In fact, the four incidences were escalating acts of sexual advances. Even if the receiving end were an adult, without consent it would have constituted indecent assault.  Any mature, right thinking person in our society will find the acts described by the victim inherently indecent and consent, if any, if it existed at all, could not be something she was capable of giving under the law in order to negate the assault.

Other evidence

39.The defendant was arrested and cautioned on the 12 November 2020 after some preliminary inquiries by the police.  He was finally taken to Tai Po Police Station where a video-recorded interview was conducted.  The defence objected to the production of the record of the defendant’s response when he was arrested and cautioned and the subsequent interview on the basis that he was improperly advised by the arresting officer, PW3, and the D Sergeant Wong PW4.  The defence contended the first response under caution was suggested to him by the police officers and he was induced to cooperate with the police in the subsequent interview as he was assured the matter would be resolved quickly.  In short, he was induced to give up his right to silence (See Grounds of Objection MFI 2).

40.To determine his admissibility the alternate procedure was adopted. PW3, the arresting officer, was called to give evidence.  During the course of his evidence, he revealed that after a brief conversation with the defendant in the police car, the defendant responded and that the same was recorded in his notebook at the time.  He was first taken to Sha Tin Police Station where he was asked by the duty officer if he had any request or complaint.  He was also allowed to make one phone call, which he did to a friend of his.  According to what the defendant’s answer during the cross-examination, that friend was a police officer. 

41.PW4 was also asked to explain to the defendant’s friend (the policeman)  what was going to happen.  PW4 told the defendant’s friend that the defendant would be eventually taken to Tai Po Police Station and, if he was minded to arrange for a lawyer, he should go there.  After that, a Notice to Persons in Police Custody or involved in police inquiries (Form 153)  was served on the defendant who signed to a acknowledge receipt (P6).  When he was taken to the Tai Po Police Station, again, the DO there asked him if he had any complaint or request. 

42.The interview was played in open court.  In the beginning part of the interview the defendant was again asked to confirm the accuracy of what he said under caution when he was first arrested.  During the interview at least there were two additional occasions he was cautioned.  PW3 and PW4 both denied that there was any impropriety in the form of inducement. 

43.In my view, the two police officers gave clear and consistent accounts of what had happened.  I did not find anything that might suggest any impropriety on the part of the police and the records showed that the defendant had been repeatedly cautioned of his right to silence.  He was also given an opportunity to call his friend for advice.

44.After I ruled that there was a case to answer on the special issue, the defendant elected to give evidence.  He is a person of a clear record and his words normally carry more weight than those who choose not to put this fact before the court.  He stated that before he was cautioned it was suggested by PW3 and 4 that he should respond by saying that he didn’t handle the case very well.  He has told that it was useless to get a lawyer and, if he would cooperate the matter would be over soon.  The defendant was also told by the police officer that it was for the DOJ to decide whether to charge him, but the DOJ’s decision hinged on whether he would say something, he did not, he would be charged him anyway.  Before the video-recorded interview, PW3 also told him no matter what he wanted to say, do not simply answer by yes or no. 

45.Looking at the defendant’s evidence and comparing to what he said under caution, it doesn’t seem credible that police would suggest such a thing.  At the most, what he said under caution and during the video-recorded interview was a mixed statement.  He agreed that he did not handle the matter very well, it could be capable of many interpretations and not all of them direct to the guilty side. 

46.Likewise in what he said during the video-recorded interview, during which he admitted to have an “improper” relationship with the victim, he sought to minimise his role in it.  If the policeman were to ask him to make any admission of guilt, that request did not have any effect on the defendant. Having observed how he behaved during the interview, my impression was that he was trying to “clarify” the matter by saying that he did not commit any indecent assault.

47.The defendant was a university graduate, a mature man of 32, yet he chose to believe what the police told him, and that if he said something the matter would be over quickly.  In addition, for no less than nine times the defendant had been reminded of his rights: namely

(i)  at the time of the arrest;

(ii)  when he signed the police notebook he was given the opportunity to read it and signed to confirm its content;

(iii)  he was asked if he had any complaint in Sha Tin by the duty officer;

(iv)  he was offered the opportunity to make one phone call which he chose to be his friend who happened to be a policeman;

(v)  when he was served Form 153;

(vi)  in the beginning of the video-recorded interview when he was advised of his right to a lawyer;

(vii)  when he was read the record of caution at the time of arrest in Sha Tin.

On the eighth and the ninth occasion he was repeatedly cautioned again.

48.For all these occasions he had been reminded of his rights.  He even had a police friend to turn to for help.  Yet he chose to believe a police officer and cooperate.  It has the first time he complained he was under inducement. 

49.Having considered the evidence as a whole, I do not find the defendant a credible witness on the special issue.  I find the caution, the response under caution and the subsequent video-recorded interview were conducted fairly and the defendant had been advised of his rights.  I do not find that he was any inducement.  I therefore accepted the response he gave upon arrest and during interview were voluntary.  There was no reason I could see to exclude then.

50.The content of the defendant’s response under caution is equivocal.  He only stated that he didn’t handle this incident well.  Briefly put in the video-recorded interview (P7), the defendant had thought that he had a lovers’ relationship with the victim and he admitted it was against a teacher’s professional ethics.  A lovers’ relationship may or may not involve any intimate physical contact.  So it was not entirely an admission of guilt.  He denied having touch her breasts or her nipples.  He agreed to have been holding hands with the victim in a movie and French kissed with the victim subsequent to it. 

51.In relation to the fourth occasion he admitted French kissing the victim during which the victim’s top was pushed up, but he stated that the victim’s top was removed by the victim herself, while they were embracing each other. 

52.In all the four occasions the defendant swore that it was done with the consent of the victim.  He also emphasised that he was ignorant of the law; what he did amount to indecent assault. 

53.What the defendant said during the video-recorded interview was no more than a meandering attempt to extricate himself from responsibility under the law.  He did admit that he believed that his relationship with the victim was something akin to lovers. 

54.I found what he said under caution was a partial admission of what he believed to be the relationship of him and the victim.  And even if I were to believe his denial of touching the victim on the first and second occasion, the French kissing of a young girl on her bed and on the fourth occasion without upper garment were inherently indecent.

55.I found the victim a credible witness.  The defendant was delusional in the belief that he had a lovers’ relationship with the victim.  The learned counsel for the defence suggested that how the victim behaved after each of these occasions was not what a normal person would behave, namely that she would have resisted and complained immediately.  While in this age of the Me Too movement, we might expect a mature person to behave in a firmer manner, here we are dealing with is a young person who had to field untoward advances of someone she held in high regard.  I found her explanation of her behaviour credible and becoming a person of her age.

56.I agree that there might be some area in which the intimate relationship between a coach and his charge could lead to the impression that the younger partner consented to an intimate relationship.  This is where the law comes in.  The law is to protect younger persons because they might not know what they want or they may not be fully aware of the consequences of a certain signals they were perceived to be giving.  The law is to protect the young, and the law expects an adult behave like an adult and keep his boundaries.  I find that any appearance of consent in this case could not amount to any sort of defence from the defendant.

57.For the reasons stated, I find the defendant guilty of all four charges.