HKSAR v. CHAN WAI HUNG

HCMA479/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 479 OF 1999

(ON APPEAL FROM NKCC8457/1998)

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J U D G M E N T

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1. The appellant was convicted by Mr Peter Hui sitting at North Kowloon Magistracy on 1 April 1999 of the offence of indecent assault. On 22 April 1999, the magistrate sentenced the appellant to a community service order for 60 hours. That sentence has been served by the appellant. The appellant's appeal is simply against the conviction.

The Evidence

2. The charge alleged that on 24 October 1998 inside the Centre of Environmental Technology Building ("the Centre"), the appellant indecently assaulted a female. The evidence by the complainant (PW1) was that she was aged 20 and that she was a helper of the School of Continuation of Professional Education of the City University ("SCOPE"). The place where the alleged offence took place was in fact a building inside the premises of the City University. Her evidence was that the University rented classrooms in that building to organisations to run courses of SCOPE. She knew that the appellant was a staff member of the Centre.

3. On 21 October 1998, the appellant approached her and asked her if she was interested to become a helper of the Centre, and if she was, she should leave her telephone number with him. Two days later, the appellant telephoned her and told her that there would be a function at the Centre on Sunday 25 October and that he was recruiting models to pose as injured persons. He asked PW1 if she was interested to be such a model. He said that if she was, she should attend an interview on 24 October when she would be paid $200, and if she was found suitable, she would receive training right after the interview for which she would receive another $400. PW1 said that she was interested. The appellant asked her to attend the following morning and to dress in a mature way, and to wear a dress for the interview.

4. On Saturday, 24 October, PW1 went to the Centre wearing a one-piece short dress. At the Centre, she found no one present apart from the appellant. The appellant led her to a room inside the Centre, and after talking to her for a while, he told her that she was successful in the interview. The door of the room had been closed by the appellant.

5. The training then followed. The first part was the appellant carried PW1 in his arms and counted up to 10. This action was repeated several times. PW1 was then asked to lie on the ground and the appellant then pressed on her stomach for several times with three of his fingers. This was ostensibly the first aid training. She had also been asked to close her eyes while lying on the ground. This action was repeated by the appellant for several times. The appellant told PW1 that he would next perform mouth-to-mouth first aid upon her and also a heart and lung recovery exercise. He said that he would not touch her mouth for the mouth-to-mouth first aid exercise but he would only place his hand in front of her mouth and blow in air from the side.

6. As regards the heart and lung recovery exercise, the appellant told PW1 that he would do the pressing first aid exercise in a cross style. PW1 said she had never heard of that style before whereupon the appellant assured her that he had been taught by a professional and the style did exist. PW1 gave evidence that at that time she did not know whether the style existed, but because she was not sure whether it existed or not, she believed him.

7. At his request, she closed her eyes; he then unbuttoned the top few buttons on the front of PW1's dress and asked her to unhook her bra because she had to expose her chest or breast bone. PW1 did as requested because at the time she was wearing a vest underneath her dress. She lay on the ground again and the appellant pulled down her brassiere for a little bit with his finger. He then pressed vertically on her chest for three times, during which time, he touched the middle upper part of her torso. He then pressed horizontally for three times, during which time, he touched her upper breast on the flesh.

8. PW1 gave evidence that as soon as he touched her on her breast, she opened her eyes but she dared not say anything. After the appellant did that for several times, she asked him if he had finished yet because she was in a hurry to go. The appellant asked her whom she had an appointment with, and asked her to telephone that person and tell that person she would come later. In fact, PW1 had no appointment with anyone and she just said that because she did not want to stay there. When the appellant asked her for the telephone number of the person, PW1 just told him that she had an appointment with her elder sister. The appellant then said to her :

"Finish that before you go. The function is going to be held tomorrow. You will not be able to do it if you do not do the training for several times."

The appellant then went through the different exercises with PW1, but he just narrated the process to see if she could remember the position that she had to be in for a particular exercise. PW1 had buttoned up her dress but the appellant had unbuttoned it again. All along she told him that she was in a hurry to go.

9. The next part of the so-called training was the appellant asking PW1 to pretend to suffer from cramps and to lie on the ground on her back. He would then do first aid upon her. He lifted up her leg and massaged her toes. He then massaged the sole of her foot, then his hand circled on the inner side of PW1's thigh for a while. Then he massaged the whole of her right leg on the front with both hands. After he did this on her right leg, he said he would do the same on her left, whereupon she said that she knew how to do it and that she had to go. He then went through the process again with her, but again verbally to see if she knew what to do.

10. The appellant then sat down and talked to PW1. He told her that he felt she was nervous and that when it came to the embarrassing parts of the exercise, she looked upset. He asked her not to appear like that the next day. He said that another person would be coming for an interview and he would decide after that which person he would wish to recruit. PW1 said that at that time she wanted to leave as soon as possible. The appellant told her that he would telephone her that afternoon to tell her the result of the training. She then went downstairs to look for her elder sister who was a member of the staff of SCOPE. When she saw her elder sister, she told her what happened during the interview.

11. Later, PW1 went back to the Environmental Building to look for the appellant but failed to find him. After lunch, she and two friends went to the said building to look for the appellant, but again failed to find him. At some time past 2 p.m., the appellant telephoned PW1 and told her that after he had interviewed the other candidate, he decided to use the other candidate but the appellant would still pay PW1 $700 for attending the interview and the training.

12. On the following day, 25 October 1998, PW1 again telephoned the appellant and asked him if the function had begun. He replied that because of the hoisting of typhoon signal no.3, the function was cancelled. A while later, because PW1 was still suspicious of what had happened on the previous day, she telephoned the appellant again and asked him the name of the function. The appellant replied that it was "Environmental Rescue First Aid Course". The appellant then said that he felt that PW1 had a lot of questions to ask and so he made an appointment to meet her at 3 p.m. on the same day. PW1 later rang up to cancel that appointment. The appointment was refixed for the following day, 26 October 1998.

13. On 26 October 1998, PW1 and a friend, Miss Yuen, went to the Environmental Building where, on the ground floor, they were accosted by the appellant. The appellant led PW1 to a room on the ground floor but insisted that her friend, Miss Yuen, should not come into the room. Inside the room, the appellant took out an envelope containing $700 and a receipt. PW1 was not willing to receive the cash and insisted on receiving a company cheque. After a while, the appellant said that actually the company cheque could not be issued. PW1 asked him why, and he said :

"Actually the company did not organise this function at all."

The appellant also said that the function was his own idea. PW1 asked the appellant whether the style of pressing on the heart during the training by using the cross style really existed, and the appellant insisted that such a practice did exist.

14. During that meeting, the appellant appeared to PW1 to be very scared and he did not know what to do. He kept drinking water and walking around, and he did not calm down. Eventually, PW1 signed on the receipt, took the cash and left.

15. That night, she telephoned the appellant and asked for the receipt back. The appellant asked her why she wanted the receipt, and she told him that there was no need for her to explain. The appellant then said :

"Now it means that you don't want this matter to end in this way. Is that right?"

He then asked her to go to the Environmental Building the next morning to look for him to get back the receipt.

16. On the next day, 27 October 1998, at about 9 a.m., PW1 and her sister went to the Environmental Building. Before they arrived, PW1 telephoned the appellant who told PW1 not to call him any more in the future and that he would not answer her calls, he then cut the line. At the building, PW1 and her sister told the watchman that they were looking for the appellant. The watchman informed the appellant who came down to the ground floor. When he came down, he said that he did not know the two persons and had no idea what they were talking about, and asked them to leave. PW1 and her sister insisted on going up to the appellant's office to look for his senior. He was very scared and he blocked their way to prevent them from taking the staircase or the lift. PW1 and her sister were therefore unable to go up to the second floor. A short while later, PW1 telephoned the police on her mobile phone.

17. The evidence-in-chief of PW1 as regards what the appellant had done to her during the training was not challenged at all by the appellant when his counsel cross-examined PW1. Certain matters were put to PW1 which were all denied by the witness. These matters were :

(1) That PW1 never told the police that after the training, the appellant had said that she looked upset when it came to the embarrassing parts of the training.

(2) That at no time did the appellant apologize to PW1.

(3) That once PW1 realized that she was not selected for the function, she was very disappointed.

(4) That she made numerous telephone calls to the appellant demanding payment of $1,600 from him.

(5) That the appellant told her that he could not decide whether $1,600 could be paid to her and he had to speak to his senior.

(6) That PW1 went to the appellant's office to demand the payment of $1,600.

(7) That on 26 October 1998, the appellant told her that at most he could pay her $700.

(8) That PW1 insisted on getting the balance of $1,000 from him.

(9) That on 27 October 1998, she returned with her sister to the appellant's office to demand the balance.

(10) That PW1 was very fierce on both occasions and she demanded the balance of $1,000 from him.

(11) That she was very disappointed when the appellant said "No".

(12) That the appellant at no time said to PW1 that the company did not organise the function.

18. A very interesting piece of evidence came up in cross-examination and that was that PW1 said when the appellant first asked her to attend an interview and the training, she did not know what would be involved. This was what she said in court :

"Except when he first asked me for the interview, I did not know the content of it. If I knew that I had to do that, I would not attend. The defendant told me that I was just required to pose as injured person whose bone was fractured."

What she was saying, therefore, was quite clear. If she had known beforehand what would be involved during the training, she would not have attended the interview and the training because all that she had been told by the appellant was that she would be required to pose as an injured person whose bone had been fractured. I consider that a very important piece of evidence because it throws a lot of light on the question of whether PW1 ever consented to what the appellant was doing to her during the training.

19. The last witness called by the prosecution was PW1's elder sister who confirmed that on 24 October 1998, PW1 made a complaint to her. Her evidence was that PW1 felt that it was strange and she, PW1, was scared. In cross-examination, she said that all that PW1 had said to her on 24 October 1998 was that she said that she had suspicion on the way of receiving first aid training from a man.

The Magistrate's Findings

20. Judgment was reserved by the magistrate for about three weeks before he gave his verdict and reasons for verdict. He found the evidence of what had happened was unchallenged by the defence. He found that PW1 had told the truth about the incident. He could find nothing in PW1's evidence which suggested a probability that PW1 consented or that the appellant believed that PW1 had consented or would consent. He found that the appellant had admitted to PW1 that the purported recruitment was a total sham. He found that there was pressure exerted by the appellant on PW1 when she became reluctant to continue with the training. He did not specifically find that PW1 had not consented to what was being done to her, but in my view, it is quite clear that the magistrate was so finding because he considered, as mentioned above, the probability of consent and found nothing in PW1's evidence to suggest that.

21. The magistrate found that recruitment for models to act as injured persons and the training which followed the interview was nothing more than a sham. He found that the appellant had no belief that PW1 would consent to her chest and inner side of her thigh being touched if she had been aware that the whole thing was a sham. He found that the appellant intentionally assaulted the complainant; that the assault and the accompanying circumstances were capable of being considered by a right-minded person to be indecent and that the appellant intended to commit such an assault. He said that he was satisfied on PW1's evidence that her consent, if any, or submission was obtained by fraud, therefore he rejected the defence of consent in this case.

22. In my judgment, based upon the evidence of PW1 which is mentioned above, the magistrate was perfectly entitled to come to those findings. He was entitled to find that PW1 was indecently assaulted and that she never consented to that assault. He found, as he was entitled to do, that if she had known that the whole thing was a sham, she would not have continued to submit to what was being done to her.

Grounds of Appeal

23. Mr McCoy, SC, counsel for the appellant, has attacked the conviction because in the Statement of Findings by the magistrate, there is a new paragraph which was not in his Oral Reasons for Verdict, and that was where the magistrate had said in his Statement of Findings :

"I am satisfied on PW1's evidence that even if there was consent or submission on her part, it was obtained by fraud. [R v LAU CHUN HON Mag App No. 1499 of 1994] Therefore, I rejected the defence of consent in this case."

24. Mr McCoy submitted that the decision in Lau Chun Hon was correctly decided as there was a finding of fact by the magistrate that the complainant was in fear of the appellant at the time that he indecently assaulted her. However, Mr McCoy submitted that the reasoning as to fraud was wrong as Wong J had purported to follow R v Williams [1923] 1 KB 340. In Lau Chun Hon, the appellant had got his Filipino amah to allow him to examine her bare breast; she was in fear and believed that his representation that he was in fact a doctor was true. In Williams, a choir master pretending to perform an operation on a girl to fix her voice had sex with her. The girl was misled by the fraud as to the nature of the act. The girl had submitted to what was done to her under the belief, willfully and fraudulently induced by the appellant, that she was being medically and surgically treated by the appellant and not with any intention that he should have sexual intercourse with her. It was held by the Court of Criminal Appeal in England that the appellant was properly convicted of rape. In Williams, a passage from Russell on Crimes was quoted and approved where the editors had said :

"A consent or submission obtained by fraud is, it would seem, not a defence to a charge of rape or cognate offences."

25. Mr McCoy has submitted that Williams was correctly decided on its facts as the girl did not even know what sexual intercourse was. However, he submitted that the reasoning in Williams as to fraud was wrong.

26. In R v Williams, the court approved of and followed R v Case (1850) 4 CCC 220. In Case, a medical practitioner had sexual connection with a girl of 14 years of age upon the pretence that he was treating her medically and the girl made no resistance owing to a bona fide belief that she was being medically treated. It was held that he was properly convicted of an assault and might have been convicted of rape.

27. Counsel, Mr McCoy for the appellant and Mr Tam for the respondent, quoted to me a number of cases, five of which including Case, Williams and Lau Chun Hon, supported the proposition that the complainant's consent is vitiated by fraud. In R v Dee (1884) 14 LR Ir 468, a woman had sexual intercourse with a man who misled her into believing that he was her husband. She knew that she was having sexual intercourse with the man and she was not misled as to the nature of the act. The court held that the man was guilty of rape. The remaining case in favour of this proposition was R v Harms [1944] 2 DLR 61 where a rogue doctor, pretending to be medically treating a woman, had sexual intercourse with her. The woman was well aware that she was having sexual intercourse but was misled by the fraud as to the nature of the act. The court held that the doctor was guilty of rape.

28. Counsel quoted six cases for the opposite proposition, namely that the complainant's consent is not vitiated by fraud. The first of those cases was R v Clarence (1888) 22 QBD 23, where a wife had sexual intercourse with her husband, not knowing that he had a disease. She knew that it was sexual intercourse she was having and so she was not misled as to the nature of the act. It was held that there was no assault upon her. In that case, if the wife had been aware of the appellant's condition, she would not have submitted to the intercourse.

29. The court, comprising 13 judges, with four dissenting, by a majority, held that the conduct of the prisoner did not constitute an offence under either section of the statute. Wills J, at page 27, said that the proposition that consent obtained by fraud was no consent at all was not true, either in fact or in law. Stephen J, at page 43, said :

"... It seems to me that the proposition that fraud vitiates consent in criminal matters is not true if taken to apply in the fullest sense of the word, and without qualification. It is too short to be true, as a mathematical formula is true. If we apply it in that sense to the present case, it is difficult to say that the prisoner was not guilty of rape, for the definition of rape is having connection with a woman without her consent; and if fraud vitiates consent, every case in which a man infects a woman or commits bigamy, the second wife being ignorant of the first marriage, is also a case of rape. Many seductions would be rapes, and so might acts of prostitution procured by fraud, as for instance by promises not intended to be fulfilled. These illustrations appear to show clearly that the maxim that fraud vitiates consent is too general to be applied to these matters as if it were absolutely true. ..."

Then at page 44, referring to R v Dee (supra) Stephen J said :

"... The judgments in the case of Reg. v. Dee examine all of them minutely, and I think they justify the observation that the only sorts of fraud which so far destroy the effect of a woman's consent as to convert a connection consented to in fact into a rape are frauds as to the nature of the act itself, or as to the identity of the person who does the act. ... "

30. The next case was Papadimitropoulos v The Queen (1957) 98 CLR 249 which was in fact considered by Wong J in R v Lau Chun Hon, but distinguished. In Papadimitropoulos, a woman had sexual intercourse with a man who misled her into believing that they had been validly married. She knew that it was sexual intercourse and she was not misled as to the nature of the act. The High Court of Australia held that the man was not guilty of rape.

31. In Bolduc and Bird v The Queen (1967) 63 DLR (2d) 82, a woman patient had a vaginal examination by a doctor who misled her into believing that the other person present was a medical student when in fact he was not. The patient knew that it was a vaginal examination and believed that the person present was a doctor. She was not misled as to the nature of the act. The Supreme Court of Canada held that the appellants' act did not constitute indecent assault.

32. That case was followed by R v Mobilio (1990) 50 A Crim. R 170, where the appellant had introduced an ultrasound transducer into the vagina of young women knowing that he did so without their consent, thereby committing an act of rape under the Victorian Crimes Act. The prosecution contended that the women's apparent consents were, to the knowledge of the appellant, not real consents because each woman consented to the introduction of the transducer only for medical diagnostic purposes but the appellant introduced it solely for his sexual gratification. The Court of Appeal in Victoria allowed the appeal and it was held that if a woman consented to an act knowing it to be an act of sexual intercourse, no mistake as to the man's purpose deprived her consent of reality. A woman's consent is deprived of reality only if she was so mistaken that she did not know that the act was an act of sexual intercourse but believed that she was consenting to an act of an essentially different nature and character. To be guilty of rape, a man must know that she was consenting to an essentially different act. The court followed Papadimitropoulos v The Queen. The prosecution sought special leave to appeal against that decision to the High Court of Australia; however, the application for leave was refused by the High Court.

33. The case of Papadimitropoulos v The Queen was followed in the case of R v Linekar [1995] QB 250 where the Court of Appeal in England allowed the appellant's appeal and held that although consent to sexual intercourse was vitiated by a fraud as to the nature of the act itself, or as to the identity of the person carrying it out, where a woman was induced to have sexual intercourse by a false promise as to payment, her consent was not destroyed by the fact that there was never any intention to pay her, and therefore the conviction for rape must be quashed.

34. In that case, the appellant had approached the complainant who was working as a prostitute. She agreed to have sexual intercourse with him for a sum. After sexual intercourse had taken place, the appellant made off without paying. The appellant was convicted of rape on the basis that he never intended to pay and the complainant's consent was vitiated by fraud. The court also approved the judgment in R v Clarence (supra).

35. The last case relied upon by counsel for the appellant was R v Richardson [1999] QB 444 where the Court of Appeal in England held that the appeal must be allowed where the appellant had been convicted of assault occasioning actual bodily harm, in circumstances where she, as a registered dental practitioner, had been suspended from practice but continued to carry out dental treatment on a number of patients who were unaware that she had been suspended. The Court of Appeal held that fraud vitiated consent to an act which would otherwise be an assault only where it had induced a mistaken belief as to the identity of the person doing the act or as to the nature of quality of the act; that a mistake as to identity did not extend to a belief as to a person's professional qualifications and attributes; that a concept of informed consent had no place in the criminal law; and that, accordingly, since the patients had been fully aware of the defendant's true identity, her conduct, although clearly reprehensible, did not found a basis of criminal liability in the field of offences against the person.

The law on whether fraud vitiates consent

36. I respectfully agree with the judgments in R v Linekar and R v Richardson. It is quite clear to my mind that fraud would vitiate consent to an act which would otherwise be an assault only where the fraud had induced a mistaken belief as to the identity of the person doing the act or as to the nature or quality of the act.

The instant appeal

37. In the instant appeal, there was no question of PW1 being mistaken as to either thing. She was fully aware of what was being done to her by the appellant. However, the state of the law does not avail this appellant because as I stated above, the magistrate found that in fact, the complainant, PW1, did not consent to what was being done to her. I held in the earlier part of this judgment that the magistrate, based on the evidence adduced in the trial before him, was entitled to make such a finding. The magistrate's reference to the case of Lau Chun Hon was only in the context as it were of an alternative argument, namely, that assuming there was consent or submission, the magistrate held that it was obtained by fraud and therefore vitiated. That is an error in the law as I have found above, but it does not alter the result of this appeal which is that the appeal has to be dismissed.

Other grounds of appeal

38. The other grounds of appeal relied upon by the appellant, in my judgment, do not assist him. The other grounds are that the magistrate erred in law in ruling that the appellant had to demonstrate "a probability as to consent or belief" on his part. In my judgment, that has been taken out of context and what was said was only in the context of whether there was anything in PW1's evidence which could have given rise to that possibility. In the event, the magistrate found that there was nothing in PW1's evidence which could have given rise to that possibility. The Oral Reasons and Statement of Findings by the magistrate made it quite clear that he was very conscious of the burden of proof being on the prosecution and the appellant was entitled not to give evidence or call any witnesses.

39. The last ground of appeal was that the magistrate erred in law in failing to find that the appellant could not be guilty of indecent assault if he believed that the complainant was consenting, although he had no reasonable grounds for that belief. The magistrate, in his Oral Reasons, had said :

"The defendant had no belief that PW1 would consent to the touching of her chest, the inner side of her thigh, etc., had she been aware it was a sham."

Further on in his Oral Reasons, he said that he rejected the defence of consent in this case.

40. It is quite erroneous for the appellant to contend that the magistrate ever found that the appellant believed that the complainant was consenting.

41. I am grateful to both Counsel for their assistance, especially on the law.