HKSAR v. Lee Sou Leung Joseph

FAMC No. 27 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 27 OF 2008 (Criminal)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCMA No. 801 of 2007)

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Court: Mr Justice Chan Ag CJ, Mr Justice Bokhary PJ, and Mr Justice Ribeiro PJ

Date of Hearing: 18 September 2008

Date of Determination: 25 September 2008

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DETERMINATION

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Mr Justice Chan Ag CJ and Mr Justice Ribeiro PJ:

1.This is the Determination of the Appeal Committee by a majority, Mr Justice Bokhary PJ dissenting.

2.On 7 August 2007, the applicant was convicted of indecent assault before the magistrate, Mr Albert Wong.  The prosecution’s case was that on 5 September 2006 in a spa facility at the Disneyland Hotel, the applicant indecently assaulted a 23 year-old masseuse by twice kissing her forearm and touching her body in the course of a massage.  The applicant denied ever having kissed or touched her.  If he had touched her, he said it was purely accidental.  The issue was therefore simply factual.

3.The magistrate heard evidence from both the complainant and the applicant (as well as from an witness treated as an expert in massage therapy, to whom we shall return).  He also observed demonstrations of various actions performed by the complainant as well as a demonstration performed by the expert.  He found the complainant to be an honest witness and gave full weight to her evidence.  He stated:

“I found that the Appellant had behaved as PW2 [ie, the complainant] testified.  During the massage the Appellant did grab her hand many times when their hands came into contact.  When she was performing facial treatment, the Appellant grabbed her hands and tucked them under his shoulders.  He then turned his head sideward and kissed her forearm.  After that, he moved his hand and brushed upward along her arm until he touched her body.  PW2 managed to retrieve her hands, she told the Appellant to relax and continued the face massage.

Then the Appellant repeated this course of action once again.   When PW2 withdrew her hand, the Appellant asked if time could be extended and other massage treatment was available.  PW2 said she had to ask the management and took the opportunity to leave the room.”

He was sure that the applicant’s actions were all deliberate. 

4.In contrast, he found the applicant to have been “extremely evasive” in relation to aspects of his evidence and that he was “adjusting his evidence to suit his purpose” in cross-examination.  He found him not to have been an honest witness and rejected the exculpatory part of his evidence.  The prosecution were found to have satisfied him beyond reasonable doubt on every element of the offence.

5.The applicant’s appeal was dismissed by Deputy High Court Judge Longley,[1] but his sentence was reduced from one of 12 days’ imprisonment to a fine of $10,000. 

6.Leave to appeal is now sought based on an attempt to undermine the magistrate’s decision on the facts by reliance on the evidence of the expert witness.  It is said that her evidence plainly raised a reasonable doubt by suggesting that it was physically impossible, or at least inherently improbable, that the applicant could have turned his head and kissed the complainant’s forearm, given the relative positioning of his head and her arms in the course of the massage.

7.The relevant evidence is conveniently summarised by the Judge as follows:

“Ms Carla Bekker-Smith gave evidence that in administering a shoulder massage on a patient lying on his back using what she described as ‘a good technique practice’ when the masseur’s hands were under the patient’s shoulder blades the masseur’s elbows should always be supported on the bed to be able to apply that technique.  In consequence the whole of the masseur’s forearm would be flat on the bed.  She said that it would be ‘very difficult’ indeed ‘virtually impossible’ in such circumstance for the patient to kiss the masseur’s forearm or any part of the masseur’s arms even though his head was on a pillow if his arms were under his shoulder blades because the masseur’s arms would be lower than his ear.

The magistrate said that the evidence of Ms Bekker-Smith was highly relevant and he had taken it into account.  He said that he was convinced that ‘if the client lay flat on the massage bed and the therapist put her forearms flat and deep underneath his body, it was quite impossible for him to kiss her arm by turning his neck sideward.’”

Nevertheless, on the evidence, the magistrate rejected the suggestion that the complainant’s version of events was inherently improbable, finding on the contrary, that it was proved beyond reasonable doubt. 

8.The submission made on the present application is that the expert evidence was crucial and that it was vital to determine whether in fact the complainant’s forearms and elbows were flat on the massage bed making it impossible for her forearms to be kissed by the applicant merely turning his head.  The magistrate is criticised for failing to resolve that crucial question by requiring further evidence from the complainant and instead indulging in speculation that the complainant’s arms were in such a position that the applicant’s kissing them was not inherently improbable.  It is suggested that the applicant’s counsel might have proceeded on the assumption that the evidence had shown that the complainant’s forearms were in fact flat as described by the expert so that the magistrate’s rejection of the inherent improbability was unfair since the applicant was deprived of an opportunity of establishing definitively that the complainant’s posture had actually been such as to make her allegation of kissing untenable.

9.The applicant seeks leave to appeal on the substantial and grave injustice ground as follows:

“A grave and substantial injustice was done because:

(i)    A finding that an important aspect of the actus reus of an offence was not ‘inherently impossible’ to commit, cannot sustain a conviction to the requisite criminal standard of proof;

(ii)   If the Learned Magistrate wished to rely on a particular hypothesis that was neither supported by the evidence nor raised by any of the parties, he should have given parties the opportunity to address him on it and call evidence, if necessary; and

(iii)   To have arrived at such a conclusion, the Learned Magistrate had to indulge in unwarranted and unfair speculation.”

10.We are unable to accept that any reasonable basis exists for these complaints or that any basis for leave to appeal can be made out.   

11.The expert was obviously not present when the alleged offence occurred and was naturally only able to give evidence as to the likely relative positions of the masseuse and the client if good massage technique was being applied, that is, with the masseuse’s elbows and forearms flat on the massage bed and deep underneath the client’s body.  What matters is what actually took place in the massage room and not what trained masseurs adopt as good practice.  

12.The transcript of final submissions at the trial show that this was fully understood by Mr Alexander King SC, who was then appearing for the applicant.  The submissions he made regarding the expert witness’s evidence were confined to the following:

“I do not intend to take you through the evidence of [the expert] ... You have heard that this morning, and in my submission, the evidence that she gave was of assistance to the court and that it was also of assistance in relation to the defence submissions as to what may or may not have happened on that day.  And it’s of assistance in four areas – the techniques and responses to hand massage, the technique of shoulder massage, the ability to land kisses on the forearm when that shoulder massage was taking place, the ease with which the hands could be removed from the shoulders in this type of position when it’s skin against skin and the hands have oil on them.  And finally, the situation of ... what she called, the alpha state, which is when people are in a massage and ... most of the time their eyes are closed.”

13.Mr King was neither contending that it was crucial to establish whether the complainant’s elbows and forearms were flat on the bed nor that the expert’s evidence was crucial.  He was inviting the magistrate to determine whether it was impossible or inherently improbable that the kissing could have occurred on the basis of the applicant’s own evidence and of the demonstrations observed by the magistrate, irrespective of whether the complainant’s forearms were flat on the bed:

“I then come to deal with the kissing, and my first submission to you is that, as the defendant says, in the position that her arms were underneath his shoulders, up to two to three inches from the wrist, in that position, whether her arms were – forearm was on the table, using the elbow as a fulcrum, or whether they were lifted up slightly, that in those circumstances, it is simply not possible for someone in the way she described to turn the head to the right and for the mouth to come in contact with the forearm in order for a kiss to take place.

And that matters not whether the arm is close to the head or whether the arms are further away from the head, that is simply not possible.  Now, during the course of the demonstration, it was neither proper nor appropriate for me to ask my learned junior, Mr Leo, to endeavour to do that action.  And it’s not proper or appropriate because he is part of the defence team and it is not, in my submission, a proper demonstration for him to make. 

But what I certainly invite the court to do, at some time, is to lie down with a small pillow under the head and see how far one can turn their head to the one side, remembering the evidence that the hands of the therapist are lower than the head, either sunken into the pillow or on the massage table.  And it simply, in my submission, is not possible, as Mr Lee asserted, for there to be a kiss in those circumstances, when allegedly the arms are being pinned down by the shoulders.”

14.The magistrate saw the demonstrations and heard the evidence of the complainant and the applicant.  He was entitled to reject the applicant’s evidence and to find that the kissing had not been precluded by the postures of the participants and that it was proved beyond reasonable doubt that the kissing and the touching had taken place.  Since the defence was not assuming or seeking to contend that the complainant’s elbows and forearms were flat on the bed in line with good massage practice, there is no question of them having been deprived of an opportunity of establishing such posture as a fact.

15.The conviction was not, as ground (i) suggests, based simply on the view that the kissing and touching were “not inherently impossible” but on direct evidence that the kissing and touching had occurred.  As to ground (ii), it is quite inaccurate to suggest that the magistrate was relying “on a particular hypothesis that was neither supported by the evidence nor raised by any of the parties”.  The conviction rests, not on any hypothesis, but on direct evidence.  The hypothesis about the complainant’s elbows and forearms being flat on the bed, giving rise to an inherent impossibility, was in fact raised by the applicant, having formed no part of the defence submissions at the trial.  Ground (iii) merely asserts a conclusion which presupposes the validity of the first two grounds and does not require separate treatment. 

16.No reasonably arguable grounds exist for contending that a substantial and grave injustice has occurred in the present case and this application must be dismissed.

Mr Peter Duncan SC and Mr Donald Leo (instructed by Messrs Eric Lai, Jason Cheung & Co) for the applicant

Mr Cheung Wai Sun and Ms Olivia Tsang (of the Department of Justice ) for the respondent

[1]  HCMA 801/2007 (3 April 2008).