HKSAR v. YU PING CHAK

CAC C 318/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 318 OF 2010

(ON APPEAL FROM DCCC NO. 1291 OF 2009)

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BETWEEN

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

Introduction

1.  On 13 August 2010, the applicant was convicted by Judge Tallentire in the District Court of two charges of indecent assault.  He was sentenced to a total of six months’ imprisonment.  He now seeks leave to appeal against conviction.

2.  The offences are said to have taken place in August 2009.  The applicant was then aged 21 years and the complainant, to whom we shall refer as C, was a few weeks short of his 16^th birthday.

3.  The applicant operated an aviation company and in the summer of 2009 was a programme instructor for a flight simulation programme for members of the Hong Kong St. John’s Ambulance Brigade.  C attended such a programme between 20 and 24 July 2009 under the instruction of the applicant; and it was he who asked the applicant whether there might be employment available for him at the applicant’s company for the summer.  He was offered a job as a part-time typist at the rate of $25 per hour.  He commenced work on 1 August 2009.

4.  It is apparent from the evidence which emerged at trial that the applicant has bisexual tendencies and also that a friendship developed between the applicant and C outside working hours.  The question at trial became how far matters went.

The Prosecution case

5.  The effect of C’s testimony was that the applicant frequently asked him to dine with him and initiated conversations about sexual matters, but that the only reason that C agreed to see the applicant after hours was because he felt he had little choice, since the applicant was his boss and, further, that he was motivated in part by greed in the hope that the applicant might buy him a notebook computer, or a wallet or an iPhone.  Such sexually oriented conversations as were initiated by the applicant and, certainly such sexual advances as were made, were, C said, not to C’s taste and that in truth C hated the applicant.

6.  The first of the alleged sexual assaults took place on 3 August 2009 when the applicant and C were naked in a sauna pool in Shenzhen.  On this occasion, according to C’s testimony, the applicant pulled C’s penis two or three times, but C reacted furiously and kicked him away.  This incident formed the subject of the first charge.

7.  Thereafter, C continued working for the applicant and on 10 August 2009, between about 8:30 and 9 pm, the applicant and C stayed behind in the office after other people had left and it was then that the applicant urged C to perform masturbation as the two sat side by side on separate chairs; C masturbated; the applicant played some pornographic films; the applicant then masturbated C and then performed oral sex upon him.  These activities formed the subject of the second charge.

8.  Later that evening the applicant purchased an expensive wallet (in the sum of about $4,050), handed it to C and then the two went for dinner.

9.  C continued working at the applicant’s office.  On 16 August, the applicant purchased an iPhone, apparently for himself but which he then gave to C.

10.  A number of matters seem ultimately to have been common ground at trial:

(1)   that C’s work record, particularly in relation to timekeeping, was unsatisfactory and became the subject of complaints by the applicant;

(2)   that the applicant expected C to repay him for the cost of the wallet and the iPhone by working extra hours;

(3)   that C’s failure to make repayment became the subject of complaints by the applicant who threatened to report the failure to C’s parents;

(4)   that a deadline for repayment was set at 21 August; and

(5)   that C went to the police on 20 August to make a report to the police of the alleged sexual assault on 10 August.

11.  On 18 August 2009, the applicant discovered a text message on C’s telephone.  It was to a friend complaining about the applicant as a boss (though not about any sexual assault or impropriety) and about his low salary.  C left the company and on 20 August went to the police alleging the indecent assault on 10 August.  The allegation about the alleged assault on 3 August emerged in the course of one of the interviews conducted by the police.   

12.  The video-records of interview of C in late August 2009 stood as examination-in-chief at trial.  Although it has not been included in the appeal bundle, as obviously it should have been in this case, we have read it.  There was extensive cross-examination of C.

The defence case

13.  The only other testimony of significance at trial was that of the applicant.  Curiously in the context of this particular case, his evidence too has not been included in the appeal bundle but we see the effect of it from the Reasons for Verdict.

14.  The applicant is a person of previous good character qualified to fly commercial airplanes.  He said that he and C became good friends.  In late July, C made it clear that he hoped that the applicant would buy him a notebook computer as well as an iPhone.  On 3 August 2009 the two of them did indeed go to the spa in Shenzhen but there was no touching of private parts.

15.  The incident of 10 August was entirely denied although the applicant accepted that on that day he purchased a wallet for which C had often been pressing.  The applicant told C that he was prepared to increase C’s working hours in order to recover the wallet’s cost.

16.  On 15 August the applicant purchased an iPhone for himself but, finding it less different from the one he already possessed than he had thought, he gave it to C, again on C’s undertaking to repay its cost on a monthly basis.

17.  None of the money has been repaid and we are informed that the items in question are present in the custody of the police pending the outcome of this proceeding.

18.  The friendship between the applicant and C deteriorated after the applicant found a message on C’s iPhone, to a friend, which said: “The salary is so low, my boss is a fucking idiot.”

19.  The applicant pressed for repayment of monies owed within three days of 18 August and threatened to tell the applicant’s parents about the financial advances if the money was not repaid.

Cross-examination of C

20.  Not surprisingly in the circumstances, the cross-examination of C was directed at C’s credibility.  There could be no question in this case of mistaken recollection: either C was making things up or he was telling the truth about the suggested sexual assaults.

21.  One of the key weapons in the hands of counsel for the applicant was the extensive series of text messages between C and the applicant, from late July 2009 to late August 2009.  Many of the relevant exchanges were initiated by C.  On their face, they tended to belie C’s suggestion of hating the applicant, his denials that he flirted with him, and his denials that he did not at an early stage appreciate that the applicant had homosexual leanings; indeed, did not even know it when, in one of the text messages, the applicant described himself as “not normal”.

22.  The messages revealed as well that from an early stage, indeed before his employment with the company began, C was anxious to secure luxury goods through the applicant’s purchases of them for him; in particular, a notebook computer.

23.  Some of the messages are also instructive in terms of the inherent probabilities of C’s allegation of the assault on 3 August, in particular remorse expressed by C in texts on 5 August for the way in which C felt he had treated or communicated with the applicant that day; it may be said that this was an oddity if indeed C had been assaulted two days previously and had taken violent umbrage at the unwelcome advances.

24.  Counsel for the applicant made further play of C’s concession in evidence that not only was the applicant dissatisfied with C’s work attendance record but a deadline for re-payment of the money owed was set for 21 August; that, according to C, the applicant was going berserk about it and threatening to reveal the indebtedness to C’s father, a threat which so upset C that C was reduced to tears and begged the applicant not to make the revelation.  An SMS was revealed that showed C begging on 19 August for a chance to pay the sums due by instalment.

25.  Even on 21 August, after the report was made to the police, C sent a text to the applicant which said: “Sorry”.  That in itself may not be surprising but, the significance of it was that when questioned in cross-examination about the motive for the apology, C was unable to provide any explanation at all.

26.  Something was also made of the fact that C had intimated to the police that the company had had a seminar at the office premises on 10 August when it was demonstrated that no such event had taken place.

Analysis

27.  Mr Tam on behalf of the respondent today has urged upon the court that there were present a series of facts which support the prosecution case, namely, the development of a friendship between the 21 year old man and a 15 year old youth in the course of which the applicant revealed his sexual tendency, brought the boy to Shenzhen where they bathed together, all of this within 3 days after the boy started working for the company and that the applicant, in his record of interview, admitted that the subject of masturbation was part of the conversation between them.  All of this, it is true, goes in support of the prosecution case but does not of itself prove the particular allegations made.

28.  What is material is that there were a number of stark factors which emerged from the evidence which, in the context of this case, called for particular scrutiny and care.  They included instances of dissembling by C; the fact of monies owed and payable on 21 August, one day, that is, after the applicant went to the police yet nearly three weeks after the first alleged sexual assault; the very friendly and anxious nature of SMS texts from C after 3 August; the absence of any references in any contemporaneous texts to unwelcome attention; the fact that the applicant was threatening to report C to his father (and indeed on one occasion threatened – as was accepted by C in his evidence – to go to the police): these might all be said to be the sort of indicia to truth or falsity which lie at the heart of a case such as the present.  The indicia are not necessarily conclusive of the matter in the applicant’s favour but if there was to be a finding of guilt despite them – for they are all of them apparently material rather than peripheral indicia – a reasoned explanation of the judge’s thinking was called for.  What reasoning and what explanation is necessary to Reasons for Verdict is always case and context specific but in this case if, despite these factors which we have particularised, the judge believed C’s allegations of sexual assault, it was necessary for the judge to demonstrate his consciousness of the factors going against the credibility of C, and their relevance to the applicant’s defence, and why, in his judgment, some of the materially unsatisfactory aspects of C’s story mattered not, in the event, to the central issue.

29.  He did not, in our respectful opinion, adequately do so.

30.  What the trial judge did was to set out at some length the testimony by C and of the applicant.  He then moved to his analysis and reasons for his decision.

31.  He said first that the suggestion that the report was made to the police as the applicant was pressing for repayment was illogical because the report did not relieve C of the debt nor prevent its existence coming to the attention of C’s parents.

32.  This comment is not entirely without its problems.  Whether, as a matter of law, C remained liable for repayment is less important, we think, than C’s perception of matters at the time.  The fact of the matter is that, the report having been made, it pre-empted, or made somewhat unrealistic, the prospect of any claim the applicant might make for repayment; and indeed it could be argued that in the mind of C, the goods could be represented as rewards for sexual favours.

33.  The judge then said that the applicant’s evidence raised many questions; particularly, why would the applicant discuss sexual orientation and masturbation, even on his own evidence, with a 15-year-old and why take a person of that age to a massage parlour and bathe with him naked together. These points are validly made and do indeed, as we have said, go in support of the prosecution case but they are not conclusive of the assaults alleged, particularly when viewed in the light of the applicant’s confidence that he was in a position to threaten C with dismissal and to threaten C with reporting him to his parents and to the police and in view also of C’s behaviour between 3^rd and 20^th August.

34.  The judge then said this:

“I am fully alive to the various inconsistencies and at times areas where clearly [C] was not telling the full truth, but I bear in mind also that the incidents of which [C] speak[s] happened approximately one year ago. “

35.  We do not, with respect, think that in the circumstances of this case that constitutes an adequate revelation of the judge’s decision-making process.  There is no allusion to any specific inconsistencies and, more particularly, no identification of the untruths of which the judge was satisfied and why, in the event, they mattered not.  It is perfectly clear to us from a reading of the transcript that there were instances in which C was not telling the truth – not because of some mistake in recollection due to the lapse of time, but because he chose not to tell the truth.  Why he chose not to tell the truth in those instances was a question that fell for determination, but the answer to that question is not made apparent by the judge’s reasons.

36.  As for the applicant’s own testimony, the judge concluded that it was evidence that was ambiguous but he does not tell us in what regard it was ambiguous and what effect that ambiguity had upon his decision.

37.  Furthermore, it fell for the judge to take a view of the strength of the prosecution case, viewed even assuming the applicant’s testimony was to be disregarded, and to assess how the key allegations against the applicant sat with the objective indicia.  As we have intimated, some of those objective indicia do not sit comfortably with those key allegations and we are of the opinion that there was an inadequate recognition and analysis of them.

Conclusion

38.  In these circumstances, we consider these convictions to be unsafe.  Accordingly, we grant the applicant leave to appeal against conviction, treat the hearing of the application as the appeal, allow the appeal and set aside the convictions and sentences.