THE QUEEN v. HUI YAU TSEN

------------------

------------------

JUDGMENT

------------------

Hon. Yang, C.J.:

1. This is the judgment of the Court.

2. The applicant faced two charges of indecent assault on a woman. He was acquitted on the first charge and convicted of the second charge after trial.

3. The incident which forms the subject matter of the second charge arose during a medical examination by the applicant, who was and is a medical officer working for the Correctional Services Department attached to Stanley Prison, upon the victim, who was at the time 23 years of age and a correctional services trainee attached to the same institution.

4. The only important witness for the prosecution was the victim herself, with little or no corroboration, except, as the learned judge found, in the very limited form that her friends found her upset and agitated shortly after the alleged assault. They kept pressing her to reveal what was wrong. Eventually, some 15 minutes after the medical examination, she told them that the doctor had pressed and squeezed her breasts. She also told her friends not to report the incident as she felt embarrassed and shameful. The judge concluded: "Despite the paucity of corroboration I am still convinced by the compelling evidence before me that PW2 (i.e. the victim) was handled by the defendant in the manner she described and without her consent whilst her bra was removed."

5. The victim's evidence is as follows. On 15th May 1990, she went to the applicant's surgery with a complaint of dizziness, fever and sore throat. She and the doctor were alone in the room. Having examined her heart beat with stethoscope and written something into the patient's record card, he lifted up her T-shirt and bra and used his left fingers to feel her exposed right breast twice. He then made circular motions on her breast with his hand. Then he used his right hand to feel her left breast. Then he felt both of her breasts with both hands at the same time and "squeezed it twice" for about 30 seconds. After that he pulled down her clothing to write something else on the patient's record. Finally the applicant squeezed her belly twice and told her to lose weight. Then she left the surgery.

6. The judge found the following facts proved:

7. In accepting the evidence of the victim the judge noted that there was no deviation from her evidence despite a very full cross-examination, and "she came across as an honest' and reliable witness of the truth".

8. Two main grounds of appeal have been advanced:

9. On the issue as to whether expert evidence was required, the judge found that it was not, as it was a jury question. In the final paragraph of his Reasons for Verdict, he found that the acts committed by the applicant were not necessary but merely an indulgence. No expert evidence was thought to be needed to explain the normal manner in which a doctor would examine a patient presenting with the victim's symptoms. The judge went on to say, "It is common knowledge what the procedure would be and all of us lay people have been to doctors on many occasions with such symptoms."

10. The applicant's case was that none of the acts complained of had taken place. He did not give evidence, but in a cautioned statement he admitted that the victim had a high fever, a cough, sore throat and headache. He examined her throat and checked her heart beat and lung, and diagnosed her illness as fever and 'flu. It was not suggested that she might be suffering from some kind of illness which necessitated an examination of the breasts in the manner described by the victim, which was, in any event, denied.

11. We think it important, in approaching the facts of the present case, not to lose sight of the commonsense which a competent jury, properly directed, would use. The trial judge here sat as both judge and jury. It is right that the jury, with their knowledge of the world, should ask themselves how reasonable men and women would perceive and interpret the acts of the applicant as a medical doctor when treating a patient with the victim's complaints and symptoms.

12. In this connection, we are content to follow, with respect, the dicta of Lord Ackner in R. v. Court [1989] AC 28, at page 41H:

        "It was common ground before your Lordships, and indeed it is self evident, that the first stage in the proof of the offence is for the prosecution to establish an assault. The 'assault' usually relied upon is a battery, the species of assault conveniently described by Lore Lane C.J. in Faulker v. Talbot [1981] 1 WLR 1528, 1534 as 'any intentional touching of another person without the consent of that person and without lawful excuse.'"

 

        And at page 42H:

 

        "The assault which the prosecution seek to establish may be of a kind which is inherently indecent. The defendant removes against her will, a woman's clothing. Such a case, to my mind, raises no problem. Those very facts, devoid of any explanation, would give rise to the irresistible inference that the defendant intended to assault his victim in a manner which right-minded persons would clearly think was indecent. Whether he did so for his own personal sexual gratification or because, being a misogynist or for some other reason, he wished to embarrass or humiliate his victim, seems to me to be irrelevant. He has failed, ex-phyothesi, to show any lawful justification for his indecent conduct.'

13. In the circumstances of this case, we are of the view that the acts described by the victim amounted to an assault which was inherently indecent and not merely capable of being indecent. As no explanation of any kind was offered by the applicant for the acts complained of, the judge was entitled to convict as charged.

14. The application for leave to appeal against conviction is accordingly refused.