Chan Wai Hung v. HKSAR

FAMC000011/2000

FAMC No. 11 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 11 OF 2000 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 479 OF 1999)

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Appeal Committee: Chief Justice Li, Mr Justice Litton PJ and Mr Justice Bokhary PJ

Date of Hearing: 28 July 2000

Date of Determination: 28 July 2000

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1. This applicant was charged with indecent assault. The Magistrate convicted him, and the High Court affirmed that conviction. He now seeks leave to appeal to the Court of Final Appeal.

2. Shortly stated, the facts are these. The applicant performed on the complainant a series of acts which would undoubtedly have amounted to an indecent assault on her by him unless she had consented to them. And such consent as she had given was given in the erroneous belief, induced by his lies, that what he was doing to her was a first-aid demonstration. All of that emerged from her evidence. He did not give evidence.

3. It is contended on his behalf that two questions of law of great and general importance arise. The first is formulated thus:

"Does a Defendant commit the offence of indecent assault contrary to s.122(1) Crimes Ordinance, where the Defendant procures a Complainant, by false pretences or false representations, to consent to an assault that would otherwise be indecent, in which the false pretences or false representations relate not to the nature of the assault but only to the purpose of the assault?"

And the second is formulated thus:

"In deciding whether the absence of consent by a Complainant in a case of indecent assault has been proved, is it correct in law

(a) to decide whether the complainant would have consented to the assault had she known the true purpose of the assault, and

(b) to require the Defendant to demonstrate a probability that he believed that the Complainant was consenting, or would have consented, had the Complainant known the true purpose of the assault?"

4. It will be noticed that both questions speak of the "purpose" of the act. But is that to the point? The law is clear and must remain so. What vitiates consent to an act is deception either as to the identity of the person doing the act or as to the nature of the act. That is the principle. And the decided cases reveal no difficulty in their application. There was no deception as to identity in the present case. So the decided cases to be considered are those on the question of whether a deception went to the nature or quality of the act. In this area, the law is concerned with the nature of the act and not its purpose.

5. In R v. Williams [1923] 1 KB 340 the Court of Criminal Appeal in England held that it was rape where the victim had been deceived into thinking that what was being done to her was not the ordinary act of sexual intercourse but was some medical procedure aimed at giving her relief from a disability from which she suffered. Such deception went to the nature of the act.

6. In R v. Harms [1944] 2 DLR 61 the Saskatchewan Court of Appeal held that it was rape where the victim had sexual intercourse with a man who had deceived her into thinking that it constituted medical treatment which she needed. Such deception went to the nature of the act.

7. In Papadimitropoulos v. R (1957) 98 CLR 249 the High Court of Australia held that it was not rape where the victim had sexual intercourse with a man who deceived her into thinking that he was her husband when, unknown to her, the ceremony which they had gone through was not a valid marriage ceremony. Such deception did not go to the nature of the act.

8. In Bolduc and Bird v. R (1967) 63 DLR (2d) 82 the Supreme Court of Canada held that it was not indecent assault where the complainant had consented to a man's presence during an intimate examination of her by her doctor, the doctor having falsely represented to her that that man was a medical student. Such deception did not go to the nature of the act.

9. In R v. Linekar [1995] QB 251 the Court of Appeal (Criminal Division) in England held that it was not rape where a prostitute had sexual intercourse with a man who had promised to pay her but had never intended to do so. Such deception did not go to the nature of the act.

10. In R v. Lau Chun Hon [1995] 2 HKC 599 Wong J held that it was indecent assault where the victim consented to her breasts being fondled by a man who deceived her into thinking that he was conducting a medical examination of her. Such deception went to the nature of the act.

11. In R v. Richardson [1999] QB 444 the Court of Appeal (Criminal Division) in England held that it was not assault when a dentist who had been suspended from practice carried out dental treatment on patients who were unaware that she had been suspended. Such deception did not go to the nature of the act.

12. In R v. Tabassum 2000 Times Law Report 418 the Court of Appeal (Criminal Division) in England held that it was indecent assault where a woman consented to the touching of her breasts in the mistaken belief that the appellant was medically qualified. He had said that he had received medical training. In truth his medical knowledge, such as it was, had been gained only through his employment as a medical representative. The appellant's interest was to prepare a database software package to sell to doctors. There was no sexual motive. It does not help the present applicant that Mr Tabassum was held to be guilty of indecent assault. As it seems to us, however, even a decision in Mr Tabassum's favour would not necessarily have helped this applicant.

13. That survey of the cases leaves the case of R v. Mobilio [1991] 1 VR 339, a decision of the Court of Criminal Appeal in Victoria. The headnote reads:

" The applicant was convicted on three counts of rape. The counts related to acts performed by the applicant during the course of his employment as a radiographer. The case for the Crown was that on each occasion the applicant had introduced an ultrasound transducer or probe manipulated by him into the vagina of a young woman without her consent thereby committing an act of rape as defined in s.2A of the Crimes Act 1958. Each of the women had given her apparent consent expressly or by her conduct. It was contended for the Crown that the apparent consents were vitiated and not real consents because each woman consented to the introduction of the transducer only for medical diagnostic purposes but the applicant introduced it solely for the purpose of his own sexual gratification. On appeal against conviction:

Held, allowing the appeal: (1) As a matter of law it was not on the evidence open to the jury to convict the applicant on any of the counts on which he was convicted.

(2) The consent of each of the women to the proposed act which she knew to be of the nature and character of the act which was done, was not deprived of reality if she believed the applicant proposed to do the act solely for a medical diagnostic purpose and if he actually did it solely for his own sexual gratification. The appellant did no act which was essentially different from the act which the women knew he proposed to do, and to which they consented.

Papadimitropoulos v. R (1957) 98 CLR 249, followed.

R v. Harms [1944] 2 DLR 61, not followed.

R v. Morgan [1970] VR 337, considered.

(3) If the applicant had been charged with the offence of procuring an act of sexual penetration by false representation contrary to s.54 of the Crimes Act 1958, he might have been open to conviction."

As can be seen, the decision of the Saskatchewan Court of Appeal in R v. Harms was not followed in R v. Mobilio. We are not called upon to choose between those two cases. All that needs to be said about R v. Mobilio in relation to the present case is simply this. At p.352 the court said: "In this case each of the women consented to the applicant introducing the transducer into her vagina in the performance of the act of conducting a transvaginal ultrasound examination. That is precisely what [Mobilio] did". In the present case conducting a first-aid demonstration is precisely what the applicant did not do.

14. It is perfectly plain that the complainant in the present case was deceived as to the nature of the act, and there is simply no basis for suggesting that she might have consented if she had not been so deceived. Nor is there any basis for thinking that the applicant might have believed that she had consented. It is to be noted that the applicant did not give evidence. The Magistrate found that the applicant "had no belief that [the complainant] would consent to the touching of her chest, the inner side of her thigh, etc., had she been aware it was a sham". Reduced to its essentials, that is a finding that the applicant knew that there was no consent. And such finding is amply supported by the evidence.

15. The result reached by Nguyen J is plainly right. There are passages in his judgment which could lead to misunderstanding. But what we have said in this determination should serve to remove any such misunderstanding.

16. Leave to appeal to the Court of Final Appeal is refused.

Representation:

Mr Gerard McCoy SC and Mr Raymond Yu (instructed by Messrs So & Co.) for the applicant

Mr P.S. Chapman and Mr William Tam (of the Department of Justice) for the respondent