R. v. LAU CHUN HON

M.A. 1499/94

HEADNOTE

Indecent assault - Employer indecently assaulted his domestic helper on two occasions under the pretence that he was a doctor and he was conducting medical examinations on her to find out if she had breast cancer - It was contended on appeal that the domestic helper consented in law to the examinations - Decision of High Court of Australia in Papadimitropoulos v. R. (1957) 98 C.L.R. 249 considered.

MAGISTRACY APPEAL NO. 1499 OF 1994

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

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J U D G M E N T

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1. The appellant was convicted before a magistrate of two charges of indecent assault contrary to s.122 of the Crimes Ordinance. He was sentenced to 2 months imprisonment on each charge, to be served consecutively. He appeals against both conviction and sentence.

2. The complainant, Marites Sotto, was recruited by the appellant from the Philippines to work as a domestic helper in his family consisting of himself, his wife and a daughter. She commenced duty on 1 April 1994. On that day, the family went out but the appellant returned home alone at 1:30 p.m. He asked to see the medical report of the complainant from the Philippines and having read it he told her that he would examine her body. He told her that he was a medical officer and the complainant believed that he was a doctor. He also said that his duty was to check people coming to Hong Kong and as she had to go to a doctor by appointment he would check her first to see whether she had any disease or sickness.

3. He told the complainant to take off the T-shirt she was wearing and under the pretext of examining her for breast cancer, he fondled her breasts and squeezed her nipples for several minutes. When the appellant was doing this to her, she felt very embarrassed and scared.

4. A few days later, she spoke to her friend Myrna Baro who gave her certain advice and lent her a walkman cassette recorder.

5. At about 9:30 in the morning of 6 May 1994, the complainant returned from the market. She was surprised to see the appellant at home who opened the door for her. The appellant told her that he wanted to speak to her and asked her to go into the guest room. He also asked her to close the windows and draw the curtain. He was holding two different medical certificates, one from the Philippines and one from Hong Kong and asked the complainant why the pulse rates in the two certificates were different. He told the complainant to take off her T-shirt so that he could check her breast again to prevent her having breast cancer. The complainant said that there was no need but he insisted. The appellant then tried to pull her T-shirt up to her shoulder. At this stage, the complainant asked to be excused for a minute to get herself a drink and went to the kitchen to get and set up the walkman. A tape recording of the conversation from the time the complainant returned to the room was produced in evidence. On her return to the room, the complainant removed her T-shirt after the appellant tried to take it off himself. She was scared. He pressed and fondled her breasts and squeezed her nipples for some ten minutes. At one stage he made her stand in front of the mirror with the upper part of her body naked. By then, she no longer believed that the appellant was a doctor because of the fact that he was only interested to check her breasts.

6. After the appellant had left, she cried and telephone the Philippines Consulate. She also spoke to her cousin Jona Asco and a Filipino pastor, Gerry Vallo on the telephone. She complained to Miss Asco at about 2 p.m. and Mr. Vallo at about 4 o'clock that afternoon. She told them that her employer had touched her breasts.

7. The appellant gave evidence and called his wife as his witness. Suffice to say that the magistrate did not believe them. The magistrate rejected the evidence of the appellant as quite absurd that the complainant had asked him of her own volition to demonstrate to her how to check her breasts. The magistrate found that the purported medical examinations were on each occasion a sham and that the appellant had no belief that the complainant consented to the touching of her breasts. He was fully aware that there was no evidence to corroborate the testimony of the complainant and he warned himself of the danger of convicting without it.

8. In R v Williams [1922] 17 Cr.App.R.56, the appellant was a choirmaster at a Presbyterian chapel and gave lessons in singing and voice production to two girls aged 16 and 19 years. Under pretence of testing their breathing powers with an instrument, he had sexual connection with the younger, and was permitted to assault the elder. His convictions for rape and indecent assault were confirmed on appeal. In delivering the judgment of the Court of Criminal Appeal, Lord Hewart, C.J. said:

"Here the appellant pretended that what he was doing was a necessary operation. The girl never consented to an act of sexual intercourse; she consented to the act not because she though it was an act of sexual intercourse, but because she believed it was a necessary operation.

In Russell on Crimes, 7th edition, 1909, Vol.1 at p.934, where reference is made to such cases as this, including Yong (above), it is said: "A consent or submission obtained by fraud is, it would seem, not a defence to a charge of rape or cognate offences."

9. Mr. Marash for the appellant argued firstly that the evidence showed that the complainant consented in law to the examination of her breasts on both occasions and the magistrate was wrong in convicting him. He relied heavily on the decision of the High Court of Australia in Papadimitropoulos v R (1957) 98 C.L.R. 249. A full examination and analysis of the facts and ratio of the judgment plainly show that the decision does not support the contention that Mr. Marash advanced. Papadimitropoulos and Dina Karnezi attended the marriage registry at Fitzroy in Victoria. There they signed a card and a form which had been filled in by an officer on information supplied by the applicant. These two documents were respectively a notice of intention that the marriage would be celebrated and an information paper giving the particulars for registration and for the filling in of the marriage certificate. After Papadimitropoulos had left, he sent two letters to the woman. In the first he signed himself "your husband", and in the second he addressed her as his "beloved little wife Dena." He asked for her forgiveness. In his evidence, he said that he had intended to return to her until he heard bad accounts about her earlier conduct and character.

At p.261 of the judgment, it read:

"In the present case the decision of the majority of the Full Court extends this conception beyond the identity of the physical act and the immediate conditions affecting its nature to an antecedent inducing cause - the existence of a valid marriage. In the history of bigamy that has never been done. The most heartless bigamist has not been considered guilty of rape. Mock marriages are no new thing. Before the Hardwicke Marriage Act it was a fraud easily devised and readily carried out. But there is no reported instance of an indictment for rape based on the frauludent character of the ceremony. No indictment of rape was founded on such a fraud."

The Court went on to say:

"But as was said before, the key to such a case as the present lies in remembering that it is the penetration of the woman's body without her consent to such penetration that makes the felony."

10. The facts in Papadimitropoulos are quite distinct and different and the emphasis was on invalid marriage and penetration that makes the offence a felony. The elements of invalid marriage and penetration are not present in the instant case to bring it within the parameter of Papadimitropoulos.

11. Mr. Marash also relied on R v Williams to which I have already referred. That decision is not in his favour.

The second ground of appeal is:

"That the learned Magistrate erred in finding that there was sufficient evidence that the Appellant did not honestly believe that PW1 consented to the touching of her breasts on 1st April 1994 and 6th May 1994."

12. This ground has no merit and must fail as does the first because both are closely related. The magistrate accepted the evidence of the complainant and believed her to have told the truth. He found that the purported medical examinations on each occasion was nothing more than a sham. He was perfectly justified in these findings and drew the necessary inferences. To suggest that the complainant consented to the appellant to fondle her breasts and squeeze her nipples is absurd as the magistrate observed and ventures into the realm of fantasy. The appellant clearly abused his position as an employer and took advantage of a young woman who was a stranger in foreign soil and a completely new environment. The complainant submitted on each occasion believing that it was medical examination and a necessary operation, which it was not. She also submitted out of fear.

13. The third ground of appeal is that the magistrate erred in admitting the evidence of complaint by the complainant to Myrna Baro and Juanita Asco and the evidence of Miss Asco in respect thereof as to the 1st April 1994 incident because:

(1) the complaints were not "recent";

(2) there was no evidence that the complaint to Myrna Baro was not mere narrative and

(3) Myrna Baro was not called as a witness for the prosecution.

14. These matters can be disposed of shortly. In so far as the incident of 6 May was concerned, the complainant spoke to Miss Asco at 2 p.m. and to Mr. Vallo at approximately 4 p.m. The magistrate admitted the evidence of both Miss Asco and Mr. Vallo as evidence of recent complaint and it was entirely within his discretion to do so: SeeR v Osborne [1905] 1 KB 551; R v Cummings [1948] 1 All E R 551; De B v De B [1950] VLR 242 andR v Lee (1912) & Cr. App. R. 31.

15. The evidence relating to the conversation between Myrna Baro and the complainant came out primarily as a result of how the complainant obtained the walkman. The evidence is admissible, not as evidence of the truth but as evidence of the consistency of the conduct of the complainant. The details regarding her conversation with Miss Baro only emerged during cross-examination by leading counsel. Having reached the conclusion that the complainant was a truthful and reliable witness whose evidence he accepted, the magistrate was right to convict and I find nothing unsafe and unsatisfactory in the convictions. The fact that Miss Baro was not called to give evidence caused me no anxiety.

16. The appeal against convictions is dismissed.