HKSAR v. LAU MING YUEN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 216 OF 1998

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J U D G M E N T

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1. The Appellant pleaded not guilty to a charge of indecent assault in the Magistracy and was convicted after trial of that offence. He now appeals against conviction.

2. The indecent assault allegedly occurred when a woman attended a Foot Reflexology Centre for a foot massage and body massage as she had done on six previous occasions. On this occasion, she was massaged by the Appellant after a foot massage had proceeded earlier in the usual way with another masseur. The woman lay on a massage bed, unfastened her bra strap, lowered her pyjama trousers and under-pants to just below the level of the hipbone and was covered by a towel, as was customary. A back massage was performed and then the Appellant began to massage the woman's thighs. At this point, the Appellant was said to have stripped off the woman's pyjama pants and under-pants and put them aside on the adjacent bed. It was not usual for the pyjama pants and under-pants to be wholly removed. The Appellant covered the woman with the towel and continued to rub the inner part of her thigh.

3. In the course of his doing so, the woman felt her private parts being touched by Appellant's finger but the Appellant asked questions which she took as seeking her comment on whether or not various massage pressure points were being activated, so she replied that she did not have such feeling. After that Appellant began to rub her buttocks and then the victim's buttocks were lifted and she described a "slippery, hot and wet feeling" as she felt her private parts being licked several times. She turned and her evidence was that she saw Appellant's head, which at that stage was positioned about 12 inches above her buttocks.

4. The Appellant continued to massage the woman's thigh although he apologised for what he had done and asked the woman not to cause any trouble. The woman was frightened and angry but felt unable to get up because Appellant had removed all her clothing. She asked Appellant to go into the next room, got up, dressed and went to telephone her husband despite Appellant's begging her not to. The Appellant made an attempt to drag her into the lift as she went out to meet her husband and begged her not to inform her husband. At this stage her husband arrived and she made a complaint to him about the indecent assault. The victim and her husband lived in the same building as the Centre, so the husband arrived very quickly.

5. The woman told her husband that her private parts had been licked by Appellant. Her husband asked the Appellant to go back into the premises where he made a report to the police. The husband said that Appellant told him that he had behaved with a fit of impulsiveness, asked him to give him a chance and also asked him not to report to the police. The husband had not mentioned this admission prior to attending court. It was put to him that he had made up this evidence. He said that he had not told the police as they had not asked him about this; he was focusing his attention on his wife and he forgot to mention it to the police. He did not hear the Appellant deny the offence in the presence of his wife as was put to him in cross-examination.

6. The victim was subjected to very lengthy cross-examination most of it directed to the possibility that the touching had been an accidental one, or that she could have been in mistaken as to what had happened. It was also suggested that it was she who had asked Appellant to deviate from the usual course of the massage but this was denied by the victim.

7. The Appellant gave evidence and agreed that he might have touched the victim's private parts accidentally, but he was not aware of it because he was using a towel to cover her. He denied he had removed the victim's pants and pyjama trousers. He said that after he had massaged her for a while in what was a chronically sore part of her body, the back bone and thigh, the victim still felt painful and replied she didn't have any feeling at the area. Accordingly he rubbed with greater force and it was possible that in that manner his hands could have come across the inner part of her thigh, although it was possible he himself would not even know it. He denied ever lifting the woman's hips, or licking her private parts.

8. Amended perfected grounds of appeal before the court claimed that the Magistrate had failed to consider or evaluate in a proper manner vital aspects of the evidence in the case and defence counsel's submissions on those matters.

9. A "vital issue" in the case which was raised, apparently as an afterthought by defence counsel, was the question of "the physical impossibility of the Appellant managing to lick the private parts of PW1 without any part of his face other than his tongue being in contact with her body". The matter was raised by defence counsel after the trial had concluded and after the Magistrate had adjourned to consider her verdict. It was referred to by defence counsel as being "a small point" and he said he wondered whether he had stressed sufficiently the physical impossibility of the victim being attacked by a tongue as she described, because of her position on the massage bench and the way that Appellant stood beside her and at right angles to her. He asked how Appellant's tongue could have been in contact with her private parts without any part of his face being in contact with the rest of her body, in particular the area of the pelvis.

10. It was submitted that the Magistrate had not properly considered that matter; it was submitted also that she mis-stated the evidence in various places in her findings. Counsel argued that the Magistrate relied too heavily on the victim's demeanour in the witness box instead of focusing her attention on the inherent improbabilities and the issue of physical impossibility.

11. A further ground concerned the Appellant's alleged admission to PW2 which was not referred to by the victim and not mentioned by the husband until the matter came to court. It was submitted that the Magistrate failed to evaluate this admission and failed to consider whether it was in fact a "confession" or simply a method by which the Appellant hoped to prevent the victim's husband from calling the police. It was suggested that there was potential conflict between the evidence of PW1 and PW2, which the Magistrate had not examined. Further, she was said not to have examined the possibility of collusion between PW1 and PW2 which arose because they were husband and wife.

12. Counsel submitted that Appellant's confession, if it was made and if it was genuine, was in fact corroboration and that the Magistrate had either wrongly found that Appellant had "confessed" to PW2 or that she had not applied the rules of evidence properly in excluding this item as corroboration.

13. I am satisfied from having read the transcript and from having considered the Magistrate's Statement of Findings that the Magistrate did properly consider the evidence in this case and that she was entitled to reach the conclusion she did, in particular, about the question of whether or not the Appellant licked the victim's private parts. The point about the "physical impossibility" appears to have been a desperate attempt by defence counsel to raised some reasonable doubt over the manner of this assault.

14. There was ample evidence from which the Magistrate could draw the inference that both from his proximity and from the feelings that the woman described as she experienced them, that Appellant had licked her private parts. The woman had undergone massage before, by this Appellant. She was adamant that there were various aspects of this massage that were completely different from massages she had undergone before, in particular the entire removal of her under-pants and pyjama pants; the touching of her private parts and the massaging of the inner thigh area. It was for the Magistrate to evaluate the evidence. She had the advantage of seeing and hearing the witnesses and having considered the transcript of the evidence and her Statement of Findings I am of the view that she was entitled to reach the conclusion she did about the mode of the assault.

15. The question of whether or not Appellant confessed to PW2 and whether or not PW1 heard it or whether there was collusion is a matter that is irrelevant in this context because the Magistrate made it clear that she treated P.W1's evidence as uncorroborated. The Appellant therefore did not suffer any disadvantage, because the Magistrate decided the case without taking the admission into account.

16. I have considered the argument about the undue emphasis placed on demeanour by the Magistrate. P.W.1's demeanour was described in the Statement of Findings as "one of a genuinely aggrieved victim". That, in the context, is a simple description of fact that describes her behaviour in the witness box. However, it was never stated by the Magistrate that she relied on that aggrieved demeanour in assessing the quality of the victim's evidence. For that reason, I reject the submission that the Magistrate placed undue emphasis on demeanour.

17. The Magistrate had the advantage of seeing and hearing the witnesses. The victim was subjected to lengthy cross-examination. The Magistrate also heard extremely detailed evidence from Appellant setting forth his account of events. The Magistrate was not required to set out every step of her thought processes, nor was she required to examine minutely all the inherent probabilities and contradictions that arose at trial. What she had to do was show that she had considered the salient points of the evidence; that she was aware of major contradictions and had reconciled or dealt with them and that she had borne in mind throughout that, regardless of any inconsistencies and implausibility, Appellant had nothing to prove.

18. I am satisfied that in this case the Magistrate did so and accordingly this appeal is dismissed.