HKSAR v. FINAN BORIS ANTHONY

HCMA 582/2018

[2019] HKCFI 1762

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 582 OF 2018

(ON APPEAL FROM WEST KOWLOON MAGISTRACY
CASE NO WKCC 3839 OF 2017)

________________________

________________________

________________________

J U D G M E N T

________________________

Introduction

1.  This case concerns the use of a medical condition called “Sexsomnia”, also known as sleep sex, as a defence for an alleged indecent assault offence.

2.  The appellant does not dispute having committed the actus reus of the crime (for he claimed he had no memory of it) but asserts his lack of the requisite mens rea (for he claimed he was suffering from Sexsomnia at the time of the offence).

3.  Put simply, Sexsomnia or sleep sex occurs when an individual engages in sexual acts, as opposed to sexual dreams, while asleep; the sexual acts may include fondling, groping, masturbating, initiating foreplay with someone else or even sexual intercourse etc.

4.  As it happens while sleeping, something akin to sleepwalking, the sufferer would be unconscious of what he is doing at the time and have no memory of it after waking up. It is a medical condition, if accepted, may in law amount to the defence of non-insane automatism.

5.  The appellant, 28, a finance planning manager of a local bank, who has never been in trouble with the law before, has known the victim, Madam X, for over 10 years since secondary school.

6.  Undisputed are the facts that their schoolmates threw a farewell party in a twin-bed hotel room for one of their number supplied with alcoholic drinks such as whisky, vodka and beer; they (5 men and 4 women altogether) played card games into the small hours of the night (10 July 2016). There came a time when everybody was tired enough to sleep; the sleeping arrangement was that one bed for women and the other for men (But initially the Appellant chose to sit through the night on a wooden chair).

7.  During the night, Madam X once got up to vomit and then went back to sleep. Around 10 O’clock in the morning, she felt a hand touching her arm, waist, left buttock and finally reaching down to her posterior rugae under her underpants. Madam X looked up only to see the appellant with his eyes open lying next to her; the appellant even hugged her and kissed her, which gave her a scare. She then covered her mouth and breasts with her hands.

8.  Later in the morning (around 10:20 a.m.) when everybody got up, Madam X did not join them for breakfast and left alone, but she did talk to the Appellant about giving a couple of 100 dollars as tips for fouling the room with her vomit and did hear the Appellant’s comment about her not wearing make-up; thereafter, the two had not been back in communicating for more than a week.

9.  All of a sudden in the morning of 18 July, however, the Appellant received a WhatsApp message from Madam X demanding an apology from him. The subsequent WhatsApp exchanges became the most crucial evidence of the case. Later in the evening at around 10 O’clock, Madam X decided to go to the police and lodged a complaint.

10.  The appellant was subsequently charged with one count of indecent assault[1]. The case was heard before magistrate, Matthew Leung, sitting in the West Kowloon Magistracy. Following a trial, the Appellant was convicted and sentenced to 5 months’ imprisonment. He now appeals against both conviction and sentence.

11.  Mr J Reading SC represents the appellant on appeal and in the court below. At trial, the appellant took the stand and also called his fiancée, Kayu, and a psychiatrist, Dr Hung, as well as a character witness. Apart from Madam X, the prosecution also called a psychiatrist, Dr Wing, by way of rebuttal evidence.

Issue

12.  The narrow issue on appeal, as in the court below, is one of “Mens Rea or the lack of it”.

Actus Reus

13.  The defence position is that the Appellant does not challenge what Madam X told of what he had done to her, the learned magistrate describes it in the following[2]:

“At around 10 am in the morning, X noticed that someone used his hand grasp her, touched her arm and waist, and finally reached her left buttock. That person then extended his hand inside X’s underpants and reached X’s posterior rugae. X opened her eyes and saw the defendant lying in her bed. She noticed that the defendant’s eyes were opened as well.The defendant hugged X and kissed her mouth. X felt scared and used her hands to cover her mouth and protected her breasts. X did not notice the Defendant sleeping by her side until her eyes were opened at that time.”

Grounds of Appeal

14.  Mr Reading put forward altogether five grounds to say that the conviction of the appellant was unsafe and unsatisfactory, but to my mind he was relying heavily on the first two grounds: they are to do with the way in which the learned magistrate dealt with the testimony of the appellant and his fiancée, Mr Reading said, the learned magistrate erred in his analysis of their evidence in finding them to be dishonest and unbelievable.

15.  The rest of the grounds are that the learned magistrate erred by reversing the burden of proof of the defence of automatism; failing to mention one important piece of evidence given by the expert for the Prosecution[3]; in all the circumstances there is a lurking doubt in the case.

16.  I shall first of all deal with the first two grounds.

The Main Features of The Defence’s Case

17.  The defence’s case may be summarized as follows:

(1)   The Appellant only remembered portions but not all of the night, ie, coming to lie next to Madam X on the bed[4], seeing her vomiting, and after getting up in the morning, talking to her about paying tips for her vomit as well as commenting her about not wearing make-up[5].

(2)   It was not an alcoholic blackout but something to do with his odd sexual behavior arising from sleep without conscious awareness[6] and that was why he had no memory of it.

(3)   His fiancée had told him before about his occasional touching her in a sexual way in his sleep and those acts were aggressive and rude, which were uncharacteristic of his normal behavior. She reported that he did not respond when spoken to during these episodes. Sometimes his eyes were open, sometimes not. When she brought it up in the morning, the Appellant did not seem to have any recollection of it.

(4)   When the WhatsApp message demanding an apology came right out of the blue from Madam X, the first thing immediately sprang to mind was the insurance form[7], but when she said she was not after the insurance, then the Appellant conjured up the episodes his bed partner had told him before – he thought to himself he might have done something inappropriate to Madam X (but not quite sure what it was) the same as he would with his bed-partner, Kayu.

(5)   Based on the results of the Appellant’s overnight video-polymnographic test, the interviews with the Appellant and his fiancée; Dr Hung, defence expert, was of the opinion that the Appellant, on a more likely than not basis, suffered from Sexsomnia at the time of the offence.

WhatsApp Messages (Madam X’s messages in italic and to the right)

18.

		Do you have something you should apologize to me
Sorry
I promise you I’ll give you this Saturday okay or not
Emoji
		I’m not talking about this
3 Emoji
Sorry
Don’t tell Kayu Ok
I’m so sorry please
Are we still fds
		What did you do to me that day, for the sake of friendship I don’t want to complicate the matter otherwise I would have made a report to the police long ago
Sorry
		I treat you as such a fd why did you do this Why did you betray all the trust Iput in you
		At first I wanted to pretend that nothing happened but I kept thinking the week I’m really very unhappy
I can’t explain sorry
		And it really cast a shadow over my whole life at one moment I really wanted to quit  group That kind of feeling is really dreadful  someone whom I trusted that much actually treated me like this  these few days even a touch by my boyfriend immediately reminded me of what happened
You don’t have to quit  I should be the one who quit
I probably won’t appear in front of you as I don’t even know how to face you
I am really sorry
I am not saying it in a hea[8] manner
You’re also very important to me  but even so I did that
There’s nothing much I can do
I only want the impact on you to be not so great
I am sorry
I will give you that document this week and I will not appear in front of you again
		Actually among the 9 people, I all along trusted you and Ho Ho as closest fd, but friend is friend, we should show mutual respect. At first, I pretended I was not aware of it because I was really very scared.
		I thought I would be fine after a period of time, pretending that nothing had happened, it turns out that it is really very difficult, as I would keep going over in my mind why that happened!
		Now I know that actually you were conscious at that time, and I’m even more disappointed in you I treated you as such a fd and we’d been schoolmates for so many years. There can’t be simple friendship between men and women?
		I never thought of telling Kayu  Although this incident affected the relationship between me and my boyfriend, I do not want the relationship you two have had for all these years to be affected because of this
There can be simple friendship   it’s my problem
Sorry
Because this morning Kayu saw the msg and asked me what the matter was
I was so afraid that she knew
As I can’t even get over it myself
No matter whether I was conscious or not clear
I was the one at fault anyway
What can I do to make you feel better
Can I call you
Sorry
Thank you all these years we were friends and you let me off even though I did that   Actually, frankly speaking I’m ashamed to see you I won’t contact you but I really want to thank you for being my good friend all these years and helping me this time.  I wish you happiness in your life  this week I’ll give you Kayu’s policy document as well (10:55)
		I’m really falling apart, want to vomit even when I think of it, why did you treat me like that when I treated you as such a good friend(23:42)
		I’m really disappointed in you(23:42)
Sorry  I’m so disappointed in myself too
		I feel very uncomfortable
Sorry (23:44)
		Be frank to me, other than touching my upper part and lower part that morning, what else had you done to me before I was awake
		And that night after I had blacked out did you do anything else to me?(23:46)
Nothing really nothing else (23:46)
Nothing
When I was sleeping I dreamed and thought that I was sleeping with my girlfriend  when I woke up it was you (23:46)
		How could you be so perverted that you extended down to my underpants? Do you know how disgusting you were (23:46)
I really don’t know about this
I don’t know I’d gone so far (23:47)
Sorry
		Don’t lie anymore  at 10 o’clock in the morning you were awake
		You are still lying (23:47)
Can I call you
		You don’t feel sorry at all (23:48)
		I don’t want to hear your voice
		You are loathsome
I wasn’t   I wasn’t conscious at that time (23:48)
Sorry
I really wasn’t
Sorry
I know even I wasn’t conscious I’m a bastard (23:49)
Sorry
		If you weren’t conscious then why did you know what happened once I asked you
		Don’t pretend you weren’t conscious (23:49)
		Actually you know what you’ve done
The moment I woke up I knew but I didn’t know whether I really did or  I was dreaming (23:50)
		People still remain a bit conscious even when being drunk  don’t keep lying anymore
So anyway I was wrong (23:51)
		You knew at the moment you woke up, and you still didn’t stop
But I’m truly sorry  I know you are very upset(23:51)
		You didn’t stop at all
		You even kissed me
		You are loathsome
Sorry at that time I couldn’t control myself  I’m sorry (23:52)
		Do you know I was so scared even when I was standing beside two men on board the bus today
Sorry
I’m a real bastard (23:53)
2 this time no matter how I explain it’s of no use (23:54)
But I only want I’ll never contact you or you people
I’ll disappear
I do not want to affect you anymore (23:55)
I know what’s done is done there’s no way to go back
		I want to say this incident has a very great impact on my life (23:55)
I’ll always remember I’m a real bastard (23:55)
		I can’t help thinking about it
I can’t even get over it myself  I feel so hard
I am really so afraid now
I am so afraid that you’ll confusedly (23:56)
But I take the responsibility  I’ll disappear (23:57)
		I’m really very disappointed in you  You are still lying at this moment (23:57)
I’m not
I don’t want to lie to you
I really can’t remember clearly what damn thing I’ve done (23:58)
Honestly  anyway I’m sorry (23:58)
		Obviously just now you’re still shirking the responsibility for what you’ve done
I am not
I am not shirking
Sorry
I admit I’ve done something terribly wrong I admit everything
But I’m not shirking the responsibility, I really can’t remember clearly (23:59)
I beg you sorry
I don’t know what to do (00:00)
I’m not alleviating what I’ve done wrong
Sorry (00:01)
I know you won’t forgive me (00:02)
But I hope you won’t be affected
I hope you will believe me the very very last time   I’ll reflect on it
I’ll disappear (00:03)
What can I do to remedy (00:05)
Sorry (00:06)
I’m so worried (00:07)
I mean it  I am really so afraid I’ll affect you  I can do anything (00:08)
I just want to have less impact on you
Can you give me a chance this time (00:09)
Sorry (00:10)
2 this time it was my biggest regret in my life  I regret having lost a very good friend  I regret having done something wrong that I can’t even get over it myself  I regret not having thought about the consequences  I’m so remorseful (00:13)
I really can’t get over it myself feel so hard  I don’t want to lie to you (00:14)
I really don’t
I am really sorry
If there’s anything I can do to help  I’ll do it no matter how hard it is (00:15)
To you I am really so sorry
Can you give me a chance (00:16)
I’ve never said something like that
Even to my girlfriend never
Can you (00:18)
Sorry sorry sorry
I beg you to give me a chance (00:21)
I beg you to teach me what I can do (00:23)
I truly feel very guilty (00:24)
I’m not only saying it (00:25)
Or a person like me should disappear from this world (00:27)
I did such wrong thing  I can’t even get over it myself  I don’t need to see the people around me (00:29)
I will find Kayu tomorrow  I’m so afraid of seeing her (00:30)
Can you give me a chance (00:31)
Sorry
2 I beg you to give me a response I feel so hard (00:33)
We’ve known each other for 10 years  I won’t ask someone to forgive me or what (00:35)
Sorry (00:36)
I beg you to give me a response (00:38)
Sorry (00:39)
2 please (00:41)
I feel so guilty
I beg you to give me a response  I really can’t tolerate it (00:44)
Feel so hard
Anyway I beg you to give me a response (00:48)
I beg you  I can’t tolerate it for so long  I’ve not been falling apart like this, I feel so hard (00:49)
I beg you sincerely
I can’t say it but I hope you’ll see it (00:50)
Pick up my call once okay or not (00:51)
I know a bastard like me should not live as a human (00:54)
I’m not a human at all
I hope you will forget me, this non-human I can’t tolerate it (00:59)
Honestly just answer me will you give me a chance (00:59)
2 I can’t explain  I can’t beg for your forgiveness  I can’t get over it myself  I’m really falling apart  I can’t let go of myself (01:04)
For the last time can you for the sake of friendship  I beg you once give me a chance (01:08)
I know I don’t deserve forgiveness but I only beg for a chance (01:09)
At this moment in time, I do not want to shirk the responsibility  I admit everything  I admit that I’m a real bastard but I beg you to give me a chance(01:11)

The Magistrate’s Findings

19.  Insofar as the evidence of the Appellant and his fiancée was concerned, the learned magistrate basically disbelieved them mainly on the grounds that his reaction as exhibited in the WhatsApp exchanges was not consistent with someone claiming to have suffered from Sexsomnia who should have amnesia for the episode. In the end, he found the Appellant to be fully aware of what he was doing at the time and not suffering any amnesia in respect of the touching incident.

20.  The learned magistrate divides the WhatsApp messages into two groups (one up to the time 10:55, and thereafter till the end) for consideration.

First Group of WhatsApp Messages

21.  In the first group, when Madam X told him she was not after the insurance form, the learned magistrate criticized the Appellant for being able to so quickly connect the two things together – one that she slept besides Madam X and the other that his fiancée complained about his sexual touching while asleep[9].

22.  He went on to find that unreasonable and unbelievable for a number of reasons, namely, Madam X made no mention as to what exactly her complaint was, but he would then apologize to her and ask her not to tell “Kayu”; he kept apologizing and saying that he would not appear before her, he wanted the impact on her to be less etc., the learned magistrate thought that the Appellant answered in this manner indicating he knew what had happened and what she was referring to.

23.  The Appellant even asked Madam X to let him off even though he did that, and despite the lack of particulars of the complaint, the Appellant admitted that he had done something wrong to Madam X and was ashamed to see her. The learned magistrate found it strange that the Appellant had never asked Madam X to clarify what he had done to her throughout the WhatsApp exchanges.

Second Group of WhatsApp Messages

24.  The Appellant admitted in his testimony that what he wrote to Madam X about “dreaming of sleeping with his girlfriend” at 23:46 was a lie, but he explained that what he intended to tell Madam X was that if he had done something wrong, he did it unconsciously[10].

25.  The learned magistrate obviously did not accept such an explanation for, he said, he could not find anything in the messages in support of that conclusion. He strongly criticized the Appellant’s admitted lie and said that this cast serious doubt as to the credibility of the Appellant.

26.  He found the Appellant to be dishonest in that he said in the messages he could not control himself when being accused by Madam X of having kissed her on the lips, but in his testimony, he said he did not have any recollection of that and he just wanted to convey to her the message that “ he was not conscious”. The learned magistrate commented: “if he really did not have such a recollection, he should have told her to that effect”.

Discussion

27.  Let’s recap what kind of person the learned magistrate found the Appellant to be:

(1)   he was not suffering from Sexsomnia;

(2)   he knew what he had done to Madam X in that morning;

(3)   he had memory of the details of that touching episode.

28.  Assuming for a moment the Appellant is indeed the kind of person the learned magistrate found him to be, then the question to be asked is whether such person would behave like what the Appellant did as shown in those WhatsApp exchanges.

29.  There are at least two aspects which in my view are not consistent; the first is about his “apology” after being told it was not about the insurance matter; secondly, no mention of alcohol ever by the Appellant himself throughout the WhatsApp exchanges.

“Apology”

30.  As the records show the first thing the Appellant mentioned was the insurance form, but as he knew what he had done to her (the learned magistrate’s findings), when she demanded an apology, he must have known she was referring to that particular incident in that morning, but by talking about insurance, which demonstrated that he had no intention to admit his wrongdoing in the first place.

31.  Given his initial attitude, one would only expect him to continue to maintain “his innocence” by playing possum unless the evidence against him was so overwhelming that he could not but admit it.

32.  Up to that particular point in time, evidencewise, this was not a smoking gun case – no eyewitnesses, no video, no tape-recording or WhatsApp records of any confession or anything like that, and he was not caught in flagrante delicto. It is only a case of “he said, she said”.

33.  But he didn’t, he apologized and begged her not to tell his fiancée despite the scanty evidence against him, why? In the subsequent exchanges, one can see the Appellant kept apologizing, blamed himself for what had happened, offered not to see her anymore and at one stage even asked her not to go to the police or words to that effect.

34.  One might put it down to his guilty feelings, but aren’t such reactions equally consistent with the defence case that the Appellant believed that he might have done something inappropriately to Madam X, though he did not have memory of any details of it?

Alcohol

35.  It is true to say most of the people, if not all, at the party had had a bit too much to drink on that night including the Appellant. He had had a few glasses of wine at dinner with his family before coming to the party and had more at the party.

36.  If he were the kind of person the learned magistrate found him to be, that would mean he did not have in his mind the thought of the possibility of inappropriately touching anyone who happened to share a bed with him; if he were to find any reasons to back up his claim of unconsciousness, the only option available in the instant case would be one of alcohol blackout.

37.  One can see, however, a central theme running through all of his WhatsApp messages – on the one hand, he admitted his wrongdoing simpliciter, and on the other, he was trying extremely hard to convince Madam X that he had no conscious recollection of what had happened to her, but getting nowhere with her (Madam X obviously did not buy it for she noticed the Appellant’s eyes were open at the time).

38.  There must be a reason for being unconscious. In fact, there are many instances throughout the WhatsApp exchanges where he asserted that he was unconscious at the time without mentioning any reasons, and what was the point in repeating this a thousand times if he could not come up with a plausible or any reason for it?

39.  Even when Madam X at one stage talked about “people remain a bit conscious even when they are drunk” (23:50) and told him not to lie anymore, he still did not say anything about alcohol.

40.  The only readily available excuse was alcohol in the circumstances, but the fact was that he never blamed it on alcohol blackout or anything along those lines. Wasn’t it strange?

41.  Could it be something else that he had in mind at that time but could not quite figure that out? For example, his odd sexual behaviour during sleep which his fiancée had told him before.

The Defence Case

42.  The Appellant testified that once Madam X said it was not about insurance, he almost immediately conjured up the episodes of his odd sexual behaviour during sleep. This could not be an afterthought since it was recorded in the WhatsApp messages, though all that he could describe was “being unconscious”.

43.  This could only come from his bed partner, i.e., his fiancée. Kayu testified to having been sexually touched by the Appellant in an aggressive and rude manner on some occasions in the past while they were sharing the bed and, on those occasions, sometimes his eyes were open but focusing nowhere.

44.  Kayu could not have made this up-she must have told him before; were it otherwise, the Appellant would have nothing to conjure up with. The Appellant’s evidence is that he remembered sleeping next to Madam X, and the fact that he could connect these two things together almost immediately tells us that his fiancée was at least telling the truth. And it was all recorded in the WhatsApp messages, there was no time for concoction.

45.  Both experts agreed that Sexsomnia cases are very rare, and indeed they have not handled such cases personally in their professional life; Professor Wing, the expert for the prosecution, said that he had only seen two cases which were in fact handled by his colleagues. More importantly, he agreed with Mr Reading in cross examination that persons suffering from Sexsomnia usually had their eyes open.

46.  As for lay persons like the Appellant or his fiancée, at the time when the WhatsApp messages were exchanged, they probably would not have recognized the Appellant’s occasional odd sexual touching as something of a medical condition, much less it would have prompted them to do something about it such as to seek medical attention. Although such behaviour is going to disturb the bed partner, in a loving relationship it may be understood as “just one of those things that happens”.

47.  The learned magistrate set great store by the Appellant’s lies about “the dream of sleeping with his girlfriend”, and rejected his contention that he was trying to convey the “unconsciousness” message to Madam X. Given his limited insight into his problem, he could not have explained his problem any better than that to her.

48.  All that he knew at the time was he had had this odd behaviour every now and then in the past, and this happened whilst he was sleeping. As one can see from the messages, the Appellant went to great pains to try to explain to Madam X what his problem was, as this was something happened in his sleep, it was only natural for him to think of “dreams”. It all seemed to me reasonable in the circumstances.

49.  It was argued that if he had had such a problem, he should not have accepted the invitation of Madam X to sleep next to her in the first place. It would have a point if the condition was something so common as to be easily recognizable, and the Appellant would be expected to know about it but clearly this was not the case. However, he remembered it when being demanded for an apology, then he realised something bad he might have done and thus was alert to the possibility of it.

50.  In rejecting the evidence of the Appellant’s fiancée, the learned magistrate queried why she did not ask the Appellant to seek medical advice much earlier, as the problem occurred a few years ago, instead they waited until they consulted Dr Hung, the defence expert, on the advice of their lawyers for this case.

51.  According to the Appellant’s fiancée, it did not happen very often, it is not reasonable to expect them to recognize it as a problem at that time; even if they do, they may be at a loss as to what professionals they should approach for help, and finally, the question of embarrassment may also play a part in the delay.

52.  It is true to say the Appellant had not asked Madam X about what exactly he had done, but what good would it do to the Appellant in a situation like this? As one can feel from the exchanges that Madam X was extremely upset at that time.

53.  Clearly Madam X would have thought he was conscious of what he was doing because she noticed his eyes were open, she would not buy any story to the contrary. By asking her for details of the assault, it would only agitate her further because any such question would imply the Appellant’s lack of knowledge.

54.  The other reason forming the basis for the learned magistrate to find the Appellant’s fiancée to be neither an honest nor a credible witness was that she believed what the Appellant told her it was about the insurance when she saw the WhatsApp message about the demand of an apology.

55.  The learned magistrate was of the view that insurance agent would seldom ask a client to apologize for the late return of the insurance papers, so she should have found the Appellant’s excuse unreasonable.

56.  She said she only saw that part of the message that morning, and she was told it was about the insurance. I do not find it unreasonable if she did not follow it up any further, as the evidence showed, it was the Appellant who handled the matter for her all along.

57.  What struck me was she was willing to come forward to take the stand for the Appellant when most women would have been very angry and probably walked away if their men went out to molest other women. When she was cross-examined by the prosecutor about her reaction on learning about the allegation, she said, “she was shock, and then comforted the Appellant because she knew he was not the kind of person who would take the initiative to do these acts.”

58.  The defence expert, Dr Hung, testified that in his opinion the Appellant was more likely than not suffering from Sexsomnia at the time of the offence. Of course, the court is not bound by Dr Hung’s opinion; the learned magistrate in the present case was perfectly entitled to come to a conclusion different from Dr Hung’s, but to my mind his reasoning process in rejecting the testimony of the Appellant and his fiancée was flawed.

59.  On the evidence before the court, the kind of person as described by the Appellant was more consistent with the reactions as shown in the WhatsApp exchanges than the one the learned magistrate found him to be. The story of the Appellant and his fiancée made sense and they had a degree of plausibility.

60.  I am of the view that their evidence had been given less weight than it warranted and had been improperly rejected. The conviction is therefore unsafe and unsatisfactory. This ground alone is sufficient to dispose of the appeal.

Disposal

61.  The appeal is upheld, the conviction and the sentence are set aside.