HKSAR v. APTHORP BRIAN DREW

HCMA 359/2021

[2022] HKCFI 1102

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 359 OF 2021

(ON APPEAL FROM ESCC 2267 OF 2020)

__________________________

__________________________

________________

J U D G M E N T

________________

1.  The Appellant was convicted after trial of two charges of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap 200, and was sentenced to a total of 30 months’ imprisonment.

2.  He appealed against both his conviction and sentence.

Prosecution Case

3.  The prosecution case mainly relied on the evidence of PW1 (who will hereafter be referred to as “X”). X began working for the Appellant as a domestic helper on 5 September 2018. She was there to replace the Appellant’s helper Janice who would be leaving Hong Kong for good.

4.  When X started her work, Janice was still in Hong Kong and was in fact training X as to her duties in the Appellant’s household. The Appellant lived by himself in a house and is a retired physician in his 80s.

5.  On 11 September 2018, while Janice was outside the house, leaving only X and the Appellant at home, X said that the Appellant had, without her consent, conducted an examination of her private part in his bedroom. She gave a detailed account in Court as to what happened, and it suffices for me to say that it was a full body checkup. It was alleged that X was made to remove her upper garment and lower garment.

6.  X claimed that after the examination, she left the bedroom and messaged Janice about the incident. Upon Janice’s return that evening, Janice told her that it was just a Pap smear checkup and she had been given the same kind of examination when she was hired as a domestic helper.

7.  It was also given in evidence that as part of her duties, X had to massage the Appellant in his bedroom. Janice had taught X to massage the Appellant’s back, calves and the whole front of his body, and the Appellant would be completely naked during the massage.

8.  Janice left Hong Kong in November 2018. X’s evidence indicated that after Janice left, there were incidents during these massage sessions when the Appellant instructed her to pinch his nipples and during the time, the Appellant would masturbate.

9.  In relation to Charge 2, X also gave evidence that after the regular massage sessions, she was forced by the Appellant to masturbate him. This happened many times and only ended in April 2019 when the Appellant left Hong Kong. On all those occasions, she was unwilling to do so.

10.  X then gave evidence that in May 2019 while the Appellant was away from Hong Kong, she sought assistance from HELP Association and resigned on 27 July 2019. In August 2019, the Appellant terminated her contract for having failed to communicate with him for 10 days.

11.  Brief video images were captured by X on her mobile telephone which she sent to her friend, and deleted from her own mobile telephone. Four of these video clips were produced in Court.[1]

12.  As Ms Ng for the Respondent had pointed out, these video clips merely captured X massaging the Appellant who was naked, and in one of the clips, the Appellant was seen asking X to hold his penis. These clips do not show any masturbation or requests to do so.

Defence Case

13.  The Appellant acted in person, on the 1^st two days of the trial. He elected not to give evidence nor called witnesses. The case was subsequently adjourned for a period of time by the learned Magistrate. On the return day, the Appellant managed to secure the services of Mr Midgley, a solicitor, who then applied to the learned Magistrate to recall X to be cross-examined further.

Magistrate’s Findings

14.  In refusing this application, the learned Magistrate in his Statement of Findings at paragraphs 11 to 14, stated correctly that he had a discretionary power whether to recall a witness, and that his primary concern would be the interests of justice. He was of the view that since X had been cross-examined and re-examined, he thus was reluctant to recall X. He mentioned that Mr Midgley pointed out that the Appellant was suffering from early onset of Alzheimer’s disease, and therefore leading to his poor judgment to elect to act in person.

15.  The learned Magistrate, in his Statement of Findings at paragraph 12, considered that Mr Midgley did not submit any authorities to support his argument that in those circumstances, that he should be given the opportunity to recall X to be cross-examined.

16.  The learned Magistrate repeated that he had asked the Appellant on numerous occasions if he needed a lawyer, and that the Appellant had been given sufficient time and chance to cross-examine X, and that the Court had assisted him when necessary. The learned Magistrate considered that his engaging a lawyer “in the middle of trial did not mean he could have a second bite of the cherry”. Therefore, the learned Magistrate did not think it was in the interests of justice to recall X to be cross-examined.

Discussion

17.  In many indecent assault cases, and indeed in many sexual offence cases, much depend on the creditability of the alleged victim. Indecent assault cases, factually range from the very simple ones to the very serious ones where many other considerations pertain. In this case, one can see that from the very outset, the Appellant was not an experienced advocate although he had a distinguished career as a physician.

18.  This is also complicated by the relationship he had with X, in that X had to apart from performing domestic duties, take care of him in the form of giving him massages which clearly was a condition of her employment.

19.  Added to this was the fact that the Appellant lived by himself. On those occasions when these incidents alleged by X took place, only two of them were present. Of course, there were the video clips, which I had referred to, which lends support in some way to the evidence of X.

20.  In fact, the Appellant’s case as disclosed, was he did not deny that the massages took place, nor did he deny that he did ask X to touch his penis as he had a medical condition and that he had wanted her to apply ointment to an area behind his penis.

21.  It is clear that this is not the type of case where merely putting the case for the defence to X would be anywhere near sufficient for the Appellant to get a fair trial. It is clear with the many issues involved that a forensic cross-examination was required in the circumstances, particularly when it is alleged that X had demanded monetary compensation from the Appellant as well.

22.  In reading the transcripts and reading the questions put to X, it is clear to me that the Appellant was not capable of conducting the cross-examination that was necessary to bring his case clearly to the Court.

23.  It is also unfortunate that on the second day of the trial as pointed out by Mr Choy SC, the learned Magistrate asked for more details about the defence case so as to better assist him and to better estimate the time for the case. The Appellant offered to give him his typed copy of his submissions, whereupon the learned Magistrate declared that since the document is so lengthy, that he did not think he should take more time to read it, and, instead, resorted to asking the Appellant whether his case was that, these events happened during her employment and that he was trying to discredit her.[2]

24.  I have the opportunity to read the notes which had been submitted as an appendix to the Appellant’s skeleton submissions.[3] Indeed this was the document that was handed up to the learned Magistrate at the time, and it certainly is a very lengthy document.

25.  I have the opportunity to read it and while it may be somewhat rambling and imprecise, however, it showed the various points that the Appellant was trying to make as part of his case which he had not been given the opportunity to in Court. A reading of the transcript showed that the learned Magistrate was conscious of the time, and that he was anxious that the Appellant put his case to X and that he was rephrasing the questions of the Appellant by putting the defence case to X.

26.  As I have said in this type of cases, forensic cross-examination is certainly required and particularly in this case, where not only were matters left unexplained by X, e.g. as pointed out by Mr Choy SC, the lack of complaint from the beginning, and subsequently the events leading up to a financial settlement to the police report.

27.  Having read the transcript of the cross-examination of the Appellant and his notes which he allegedly prepared for his trial, and the transcript at the beginning of the trial, as Mr Choy SC pointed out a glaring example was the fact that when the learned Magistrate asked the Appellant why he did not have a lawyer, his reply was that the trial was mainly dealing with his medical issues, and therefore he did not think it was necessary to have to employ a lawyer when he would have to explain to the lawyer about his medical condition:[4]

“Court: Any particular reason that you don’t have a lawyer?

(Appellant): Yes. I think the case turns on medical problems that I have and I thought I deal with these better than a lawyer can. I would have to instruct the lawyer in all sorts of medical conditions that I have and for which I require treatment, and I thought it would be simpler for me to put the case myself.”

As Mr Choy SC put it, it indicated that he did not have a full grasp of the situation or the charges.

28.  It is a difficult case for a defendant to manage on his own in the best of circumstances. But when one has a defendant with early stage of Alzheimer’s disease and with the complicated factual background in this case, it became more apparent that he required a lawyer in order to fully put his case across.

29.  I therefore, am left with the lurking doubt as to the safety of the Appellant’s conviction. I have no doubt at all that in this circumstances, the learned Magistrate should have acceded to the application of the Defence to recall X to be cross-examined in these circumstances. Because of that refusal, justice had not been seen to be done, and therefore, the conviction is clearly unsafe and unsatisfactory.

30.  Therefore, the appeal against conviction is allowed, the conviction and sentences are quashed.