THE QUEEN v. NGAI KUNG MING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1196 OF 1995

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J U D G M E N T

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1. This is an appeal against conviction for indecent assault. The Appellant in this case is a minister of the Baptist Church and Chief Executive in Hong Kong of the charitable organisation World Vision. It was alleged against him that on 6th February 1995 somewhere on Kowloon Peak he indecently assaulted Miss Tong Shu-hsien, by kissing her in an intimate way and touching her breast against her will. It was originally alleged that he had similarly assaulted her in his flat in Ngau Tau Kok Road, but he was acquitted of that charge after trial. Miss Tong is a Council teacher and was between July and December 1994 a senior public relations officer with World Vision Hong Kong. It was while working there that she came to know the Appellant, though they seldom met.

2. The facts were that on the morning of 6th February 1995 the Appellant telephoned Miss Tong to invite her to have dinner with him, because he said he had not done so before she left World Vision. There is a dispute in the evidence as to whether the Appellant told Miss Tong that the venue for the meal was to be his flat, or that she was to meet him and go to a restaurant. He certainly did not invite her to come directly to his flat, which she had visited once before for business reasons in the company of other colleagues, but arranged to meet her outside a restaurant in Lion Rock Road. Miss Tong said that she had no idea the Appellant intended to take her to his flat until she met him outside the restaurant. When they met, the Appellant had already purchased some Japanese food and wine, and he suggested then that they go to his flat, which they did. Miss Tong expected to find the Appellant's mother there, and she said the Appellant did not reject that notion when she asked him on the way to the flat. The flat was empty when they got there. The Appellant showed Miss Tong round his flat, including his bedroom, where she experienced his massage equipment. This required her to lie on the floor on her back and put her feet on a massage machine, and while in that position he took a photograph of her which shows her smiling, a matter relied upon by the Appellant as indicating her relaxed attitude about her situation.

3. They ate the food and drank the wine, talked about business matters and looked at photo albums which required them to sit close together on the settee. The Appellant then spoke about matters of a personal nature, which included Miss Tong's failed romance, which caused her to cry and the Appellant put his hand round her shoulders to comfort her. According to Miss Tong he then let his hand slip down to her waist and she moved away. They continued to eat, the Appellant asked her how she was, and then suddenly embraced and kissed her. The Appellant said that that followed a long lingering look, and that Miss Tong responded to what was in fact a French kiss. Miss Tong concedes that the Appellant kissed her, put his tongue into her mouth, and touched her breast, but claimed that the kiss and the touching were entirely unexpected and unwelcome, that, despite trying, she could not break free, and that as soon as he let her go, she announced she was leaving, and made it absolutely clear that she did not welcome his sexual overtures. According to her, the Appellant apologised profusely for what he had done, and begged her to allow him to drive her home, which she eventually allowed him to do, as she felt his apologies were sincere. The Appellant claimed that after the kiss the atmosphere between them was romantic, that there was no question of Miss Tong complaining about what had happened, but that they both felt they should not allow the situation to develop, and that is why he drove her home, or to her mother's flat, where she had planned to stay the night.

4. They drove there, but did not linger long before they set off for Kowloon Peak. According to Miss Tong, on the journey to her mother's flat the Appellant repeatedly assured her that he had had no intention of molesting her, and when they arrived at the flat he kept on asking her for more time to explain himself. She tried to leave the vehicle, but could not, it was fitted with a central locking device, and before she could collect herself to unlock her door to alight the Appellant drove off. She repeatedly told him to stop and let her out of the car, but he ignored her pleas and drove to Kowloon Peak. The Appellant denied that he had continued in the car to tell Miss Tong that he had not meant to kiss or touch her, and he testified that when they reached the mother's flat they sat talking in the car for about ten minutes, that they were both obviously enjoying each other's company, and that when he suggested they prolong the evening and go somewhere else, she did not demur. He then drove to Kowloon Peak.

5. Miss Tong told the court that when they got to the Peak the Appellant got out of the car, and she followed, asking where they were and demanding to be driven home. He, she said, took off his coat and put it over her shoulders, actually put it on, though she did not want him to do that, and then he grabbed her, kissed her, put his tongue into her mouth, and touched her breast and hips. This, she says was entirely unexpected and against her will, and she once again expressed her anger at what he had done and made it abundantly clear that she wanted no more of that sort of behaviour. She then returned to the car, to the front passenger seat and again demanded to be driven home. Her evidence then went on that the Appellant told her that he had intended making advances to her, that he really liked her, and that she resembled his former girl friend, who they had talked about earlier in his flat. She told him she did not go in for casual sexual encounters. Again she said he suddenly embraced her, kissed her, forced his tongue into her mouth and reached inside her garment to touch her breast. Yet again she made it clear to him that his advances were not welcome, and demanded to be driven home. There was some talk of his ministry, and about God's attitude to his behaviour, before he drove off. However, he parked the car half-way down the hill, made another effort to explain himself, told her to hit him if she was angry with him, but eventually on her insistence drove her home.

6. The Appellant's version of these events is somewhat different. He said that when they got to the Peak and got out of the car he put his jacket over Miss Tong's shoulders, that they were both feeling cold so they hugged, but there was no kissing, and no reluctance on Miss Tong's part. They returned to the car, where, he said she remarked that he was being nicer to her than her former boyfriend, and they kissed, mouths open and tongues touching in mutual response, and he admitted he touched her breast but not her skin. After the kiss she suggested that they should let things between them develop more gradually, that what they were doing was disgusting, and would incur God's disfavour. He said that the mood between them changed, and when he stopped the car half way down the hill she became angry and shouted at him to take her home, which he did.

7. Miss Tong testified to being very disturbed that night about the turn of events. She told the court that she felt insulted and humiliated, and next day sought out her friend and superior Ester Wong, told her about the whole incident and asked her advice about reporting the matter to the police. Miss Wong testified to that meeting and to hearing about the incident from Miss Tong, and advising her that if she reported the matter to the police she would be expected to tell her story in public, which was not a pleasant prospect. The Appellant called three character witnesses.

8. It is important for a proper understanding of this case to keep in mind that the Appellant was very much, in Miss Tong's eyes, her superior, as well as being a minister of the Christian religion of which she was also a member, and therefore a person from whom she would expect standards of behaviour higher than the normal. It is also of real significance that Miss Tong at the time of the incident was known, including by the Appellant, to be suffering serious emotional trauma as a result of the break-up, at his instance, of a long term relationship she had had with a man ten years her senior. What form that relationship took, and what degree of intimacy was involved, was not in evidence. However the evidence was that Miss Tong was frequently seen to be crying over the matter, that she had withdrawn socially as a result, and that she had left her job at World Vision at least partly because of the break-up. That, in my view, would make it less likely that Miss Tong would welcome the attentions of another man at that time, and there was no evidence that she had any romantic feelings about the Appellant, or that she had sought his favours. Before the incident she had regarded him as a "very sympathetic and sensitive man" and said she "found him a nice person who cared about others". On more than one occasion the Appellant had asked her to be his personal assistant, but she had declined.

9. It seems to me that the inference to be drawn from the evidence that the Appellant lured Miss Tong to his empty flat, where he at least hoped that some form of sexual encounter would take place, is irresistible. Being a Baptist minister of course does not involve any vow of chastity, and he is free to court and escort young ladies of his choice, though, as he himself acknowledged in his evidence, higher standards of behaviour are expected of him. It is therefore surprising that he should begin his 'courtship' of the emotionally disturbed Miss Tong by tricking her into being alone with him in his flat for the purpose of, or in the hope of, satisfying, at least to some extent, his sexual desires.

10. However, as Mr Martin Lee QC who appears for the Appellant in the Appeal, though he did not appear in the court below, submits, the issues in this case were clearly and properly defined by the learned Magistrate when she said:

" I had to determine the nature and extent of the assaults, if either or both of the assaults were carried out without consent of PW1, and whether PW1's conduct by actions and/or words was sufficient to make it clear to the Appellant that his advances were not welcome, indeed were positively not wanted, and that the Appellant was aware of that fact."

11. Mr Lee submits in effect that the reason for her being in the Appellant's flat and the manner in which the Appellant got her there are irrelevant considerations, and that the only issue is consent. With respect, I take the view that the how and the why of Miss Tong's presence in the Appellant's flat are the context within which the subsequent events must be judged. Certainly the only issue is consent, but the Appellant's obvious intentions, confirmed by his luring Miss Tong to his empty flat, inviting her into his bedroom, insisting that she experience his massage equipment, turning the conversation to personal matters, bringing out his photo albums to show Miss Tong, which gave him the excuse to sit close to her on the settee, putting his arm round her to console her when she became upset at the mention by him of her failed romance, something he must have anticipated might happen if he did bring up that subject, all of that is relevant to the state of mind of the Appellant, and the likelihood or otherwise of his being sensitive to Miss Tong's wishes in the event of an indication from her that his advances were unwelcome. Similarly Miss Tong's surprise at finding herself alone with the Appellant in his flat, and therefore her unpreparedness for what took place, as well as the obvious distress she was experiencing because of the break-up of her romance are obviously relevant factors to be taken into account when deciding on the issue of her consent, or the likelihood of her consent, to the overtly sexual advances of the Appellant.

12. It is a trite observation, but nevertheless one that bears frequent repetition, that an appellate court should not interfere with the findings of fact by the court of first instance, unless these findings are clearly not supported by the recorded evidence, or unless such flaws are found to exist in the deductive process employed by the court below in reaching its conclusions of fact, that no conviction based on them could be regarded as safe or satisfactory. Furthermore, in a case such as this, involving matters of an intimately personal, and emotionally charged nature, it is particularly important to see and hear the witnesses give their evidence, an advantage over me which I have to concede to the learned Magistrate. Mr Dick, who appears for the Crown on the Appeal, though he did not appear in the court below, quite properly reminds me that there is no complaint here about the learned Magistrate's directions on the law, and that the whole of the Appellant's attack is launched at her factual conclusions. This is what the learned Magistrate had to say about the principal witnesses, Miss Tong and the Appellant, after seeing and hearing them give evidence:

" I found PW1 to be a truthful, honest, credible and reliable witness. Her version was given fluently and clearly. Such explanations as she was required to give for her conduct and her decision were credible and reasonable, and certainly in the flat her descriptions of the Appellant's apologies was more in line with normal social behaviour.

I did not find the Appellant to be a truthful , honest and reliable witness. I was satisfied that in parts he was being very economical with the truth, and in parts he was not telling the truth at all as to what occurred on that night.

Having considered all these matters very carefully, I accepted the evidence of PW1 as being the truth of what occurred on that evening. I rejected the evidence of the Appellant when it was in conflict with that of PW1."

13. There, with respect to one of Mr Lee's grounds of appeal to the contrary, the learned Magistrate is clearly identifying the parts of the Appellant's testimony she did not believe.

14. The thrust of Mr Lee's attack is that while Miss Tong now claims that she made it clear to the Appellant that his attentions were unwelcome, the facts, or her actions on the night in question, repudiate such a claim. He submits that much of what she did, and what she admits occurred, simply cannot be reconciled with her cry of indecent assault, because the intimate acts complained of could not have taken place without a high degree of compliance on her part.

15. He asserts, for example, that it would be impossible for the Appellant to have forced his tongue into Miss Tong's mouth without her co-operation, a bald assertion on his part, and not one supported by evidence. He submits it is self-obvious, and that on no view of the evidence could it be possible. I do not agree. I suggest that, in the circumstances of this case, and accepting Miss Tong's evidence, the Appellant could have kissed her in this intimate way without her consent, and on more than the one occasion in his flat. It must be borne in mind that the Appellant is a Baptist minister and prominent philanthropist, with not a whisper of scandal about him, and that Miss Tong, who addressed him as pastor or priest and who obviously held him in some awe, was, on her evidence, completely, and understandably, nonplussed by his behaviour that night. Certainly, she says, on the first occasion in his flat she was not expecting the kiss, and subsequent occasions followed the Appellant's profuse apologies, and requests for forgiveness and opportunities to explain himself, which Miss Tong found to be sincere. She had made it plain enough in his flat that she did not welcome his advances, and it had appeared to her that he genuinely regretted his behaviour, and was, therefore, this man of religion, unlikely to repeat it. As well as which these, to her, astonishing events unfolded quickly over the early part of one evening, and it seems to me, therefore, that the element of surprise would continue to exist, and that that together with his superior strength would enable the Appellant to have his way.

16. Mr Lee also asserts that there was no allegation of force having been used by the Appellant during any of the episodes of intimacy. That cannot be right. Miss Tong claims throughout that being held in the Appellant's embrace, being kissed by him, and having him touch her breasts was all against her will, and that she tried to resist him. The Appellant is much bigger and heavier and obviously much stronger than Miss Tong, as I can see from the photographs, and it would not require the exertion of much of his strength to overpower her. What can be said is that no violence, such as blows, or threat of such violence, was used to frighten Miss Tong into submission. Force, however, of some degree would have to be used, if Miss Tong is to be believed, because she certainly claimed that she tried to resist him.

17. Mr Lee cites the fact that Miss Tong could have got away from the Appellant on a number of occasions, but did not, as evidence of her consent, or at least lack of complaint about what the Appellant was doing. This is how the learned Magistrate dealt with this aspect of the case:

" I carefully considered the evidence of PW1 and all the criticisms made of her conduct. PW1 indicated a wish to go home after the first kiss. This is agreed by the Appellant although he states that the circumstances leading up to the request were different. This is not really the request of a person who is happy with the situation, particularly when she had withdrawn from the Appellant when his hand had slipped down from her shoulder to her waist before any kissing had occurred. PW1 is criticised for not leaving the Appellant's home immediately, and not getting a taxi . She explained why. It was in my opinion a totally reasonable explanation. The Appellant was, inter alia, a highly respected pastor. If he apologises profusely, and asks for forgiveness as described by PW1, it is not then unreasonable to accept the lift. She is criticised for not unlocking the car door herself when parked outside her mother's home. If one is upset and/or angry, and an initial attempt to open a car door is unsuccessful, one's first reaction is to expect the driver who locked the car doors to unlock them rather than doing it oneself. She then in her evidence had insufficient time to unlock the car door before the Appellant drove off. Similarly on Kowloon Peak she is criticised for not shouting for help and instead returning to the car. Kowloon Peak is clearly a dark out of the way place, you could not expect her to walk down home alone, and one could not criticise her for not accepting a lift down from perfect strangers. In any event the Appellant is still a pastor, and she was not in any serious physical danger. The only real criticism which can be made of her is that perhaps she should not have got into the front seat of the car but rather she should have sat in the back seat."

18. With respect to the learned Magistrate, her getting into the back seat would have afforded the Appellant much greater access to her than he had when she was in the front seat. She was safer in the front seat, though, as events transpired, not entirely safe. However, apart from that whimsy on my part, I cannot fault the learned Magistrate's reasons for believing Miss Tong on these matters.

19. The Appellant was acquitted of the charge of indecent assault in his flat "on the basis that perhaps the Appellant could be entitled to see if his approaches would be accepted in his flat." Mr Lee submits that the learned Magistrate should have given the Appellant the benefit of the doubt on the other charge on the same basis, namely that he was entitled to see if Miss Tong had changed her mind and had come to welcome his advances. He could, with respect, do that by asking her, but not by embracing her again. That is to propose a charter for persistent molesters.

20. Mr Lee submits that as the character evidence all points to the Appellant being a truthful and honest person, and as Miss Tong was found to be emotionally unstable the learned Magistrate was wrong to reject the Appellant's evidence in so far as it was in conflict with that of Miss Tong. As I have earlier observed Miss Tong's emotional state makes it much less likely that she would have welcomed the Appellant's advances, and the learned Magistrate deals with the character evidence. She says this:

" In relation to the Appellant's evidence I bore in mind his clear record, his remarkable curriculum vitae which he submitted, the fact that he is a fully ordained Baptist Minister, and the Chief Executive of World Vision Hong Kong, which is part of a world wide charitable organisation, and the evidence of his character witnesses. Two of the character witnesses had come from abroad solely to give evidence on his own behalf, one was his current personal assistant, and the statement was from a very well respected present member of the Executive Council, Rosanna Wong. The Appellant clearly has the great respect and devotion of many people, a number of whom are very influential, highly motivated, and highly respected people in their own right. They essentially covered his public rather than his private and personal life. However, none had ever witnessed nor been aware of any inappropriate conduct towards females by the Appellant. Prior to this incident it is clear that PW1 also had a great deal of respect for and devotion to the Appellant. I accepted the character evidence in total, and in particular in relation to the Appellant's honesty and truthfulness and the likelihood of his committing an offence of this nature. It is quite clear that such conduct as is complained of here by PW1 would have been considered as totally out of character by them all. I did note however that the Appellant himself agreed that certain of his conduct that evening, as admitted by him, was not appropriate conduct for a person in his position. It was even more inappropriate when one notes that he was dealing with an emotionally distressed young woman."

21. There can be no doubt, therefore, that the learned Magistrate took the character evidence into account when assessing the evidence, and I am entirely satisfied that she has done so in a proper and fair manner. I repeat an earlier observation, that she has the very important advantage over me in a case of this nature that she was able to observe the witnesses give their evidence, and so she is in a much better position than I am to gauge their credibility and reliability as witnesses.

22. It seems to me that, on the evidence, it was a view of this case that was open to the learned Magistrate, that the Appellant was strongly attracted in a sexual way towards Miss Tong, and that he had arranged the evening so that he could in private satisfy his desire for her, and the fact that he did not advance beyond the kissing and the fondling stage is a testament to Miss Tong's resistance, and her clear message to him that she did not welcome his advances. But he kept trying. This is what the learned Magistrate says:

"I was satisfied beyond all reasonable doubt and so that I was sure that during and after that first kiss at the Appellant's home, PW1 made it quite clear to the Appellant both by actions and words that his advances were rejected. I was satisfied beyond all reasonable doubt and so that I was sure that the Appellant was fully aware of the fact that his advances had been rejected and that any further advances by him would be without her consent. Unfortunately he let his strong attraction for PW1 determine his behaviour."

23. I am grateful to Mr Lee for the customary thoroughness with which he has presented his case on appeal, and I have given all his submissions long and careful consideration. However, I have found it right to conclude that I should not interfere with a decision to which, based on the evidence and her assessment of the witnesses, the learned Magistrate was perfectly entitled to come. The appeal is dismissed.