HKSAR v. LIU SIK KEUNG

HCMA 572/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 572 OF 2003

(ON APPEAL FROM KTCC 1764/2003)

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J U D G M E N T

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1. The Appellant was convicted of one charge of 'Indecent Assault' (Charge 1) and one charge of 'Common Assault' (Charge 2). He now appeals against the convictions.

The Case Below

2. The Appellant was the victim's superior at work. After an office Christmas party in Kowloon Bay, he offered to drive her home in Sai Kung where they both lived. On the way, the Appellant suggested that they go for a drink and, not wishing to offend, the victim acquiesced. For half an hour in the bar, however, they drank mainly water because she took an opportunity to get the waiter to remove their beer. Whilst returning to the car, the Appellant touched the victim's hand, said it was cold, but was twice flung off by the victim who did not welcome such contact. Before reaching the victim's home, the Appellant U-turned unexpectedly into a carpark and kissed the former on the cheek and mouth. It was, as one may put it, a "French kiss", with the Appellant leaning over and holding the victim's head in position (Charge 1). It lasted about ten seconds after which the victim protested, got off the car and asked to drive on alone. Saying it was a company car, the Appellant refused. When finally reaching her village, the victim alighted but was soon caught up by the Appellant who kissed her again on the cheek and sent her running home (Charge 2). At work next morning, the Appellant rang and asked to speak to her colleague. That, in a gist, was the case against the Appellant. Everything took place after midnight. Apart from the victim, her boyfriend also gave evidence on recent complaint.

3. Save and except the following issues, the Appellant did not dispute the prosecution's version of events. According to him, it was the victim who suggested that drink during which she complained about her work and pay. He had not, at any time, touched the victim's hand. He later drove into the carpark only because he heard her retching and thought it best for her to be sick outside the car. He had not kissed her then and he had not kissed her later, be it on her cheek or mouth. What he did was call up the Appellant's appraisal report, find it poorly, and phone and tell the victim that she had not been unfairly treated, all in the next morning. As support, he called as defence witness the victim's supervisor whose evidence was nevertheless confined to her unsatisfactory performance.

4. In the end, the Magistrate accepted the victim's account and rejected the Appellant's. Citing examples from their evidence, he explained why he believed the former and not the latter. He noted the Appellant's inability to say why the victim should make false accusations against him and was persuaded that it was the Appellant who was attracted to the victim. Applying the law, he found the kiss on the mouth indecent and convicted the Appellant of both charges.

The Present Appeal

5. There is only one ground of appeal. Put simply, it is complained that the Magistrate had wrongly adopted an objective test in deciding whether the Appellant had a genuine belief that the victim did consent.

Whether an Issue at Trial

6. Before going to the core submissions, I should mention that Mr Leung, for the Respondent, had in an attempt to nip the appeal at the bud, contended that genuine but mistaken belief of consent was never an issue at trial. It follows that it was unnecessary for the Magistrate to direct himself on the subject. Any suggestion that his direction on the law concerned was wrong is, therefore, misplaced and misconceived and, even if true, of no prejudice to the Appellant. Rape authorities were cited where the Court of Appeal had held that too much judicial initiative in raising the same issue would only confuse the jury.

7. Putting everything in context, Mr Leung's contention was at once advanced as a sword and a shield. Mr Lok SC, for the Appellant, had, in his written submissions, argued that the evidence as a whole was such that the defence of genuine but mistaken belief was potent. He had argued that, on whatever account, the detour to the bar was a "late night rendezvous" with all its usual connotations. Whether the victim acquiesced or initiated that drink - depending on which version one believes - it is still possible for the Appellant to have misread the situation. Homicide authorities were cited that though not specifically raised, potential defences ought always be left to the jury.

8. In the end, the parties agreed that it is all a question of evidence. I agree. I also agree with Mr Leung that that there was no or no sufficient evidence at trial to make the Appellant's belief a live issue. The theory of late night rendezvous does not stand up to the fact that it was after an office Christmas party; that living in the same area, the Appellant had driven the victim home before; and that prior to the assaults, the victim had twice resisted the Appellant's attempt at intimacy by flinging off his hand. In my judgment, once the facts were found in favour of the victim, there was no need for the Magistrate to go on to consider the other issue.

The Point on Appeal

9. Notwithstanding my conclusion above, the matter does not end there. What obviously happened was that, as a fall back, the defence had raised the question of the Appellant's belief. It does not appear to be a point forcefully made as it was not even in the closing speech that is now on transcript. In any event, that there was such a reference is clear from the following two passages in the Magistrate's statement of findings -

"The Defence says that even if Deft had kissed PW1, before the first kiss (i.e. in the car) PW1 had not told him he was not allowed to do so, and therefore Deft was not to know PW1 had not consented. But there was nothing suggesting consent, and Deft was not entitled to assume there was consent. In any event, PW1's testimony, which I accept to be true, said she had shortly before the incident in the car twice flung away his hand when he tried to touch her. In my view this was express non-consent to any physical contact, and Deft must have known there was no consent to any act of greater intensity and intimacy. At the very least Deft was reckless, although as jury my finding is that Deft well knew of non-consent but he was determined to continue with his desires, which explained why he made a sudden attack so that PW1 had no opportunity to avoid him. The case of R v. Sutton [1977] 1 WLR 1086 at 1088D referred to the question of unwillingness. Here PW1 had expressed unwillingness not once but twice in relation to the touching of her hand. To say that a more intense act, i.e. kissing of her lips, might have been allowed, is illogical, and I do not accept this thesis.

The Defence also says that as soon as PW1 had said to Deft "not to do it" he had not tried further. It was not suggested that Deft had apologised to PW1 as soon as PW1 showed disapproval. In any event, the Deft had not continued to refrain himself, because he tried to kiss PW1 again a few minutes later when she was about to cross the road downstairs from her home, and again he actually succeeded by making the act quick and giving PW1 no chance to avoid same."

10. According to Mr Lok, it is exactly these passages that are offending. Pointing to such words as "not entitled to assume", "must have known" and "illogical", the Magistrate is said to have adopted a singularly objective test in the assessment of the Appellant's reading of the situation, hence in contravention of the test that had been laid down in DPP v Morgan [1976] AC 182, which is whether he held a genuine belief that the victim consented.

11. That said, Mr Lok did make it clear that a wholly subjective test was not what he advocated. Drawing reference from section 118(4) of the Crimes Ordinance on rape, he conceded that the tribunal of fact is entitled to examine the presence or absence of reasonable grounds in determining the belief of a defendant - the "balanced approach" as anyone familiar with the way of determining dishonesty in theft would appreciate.

12. With this concession, the present appeal is really one on how the above passages should be properly understood. Was the Magistrate substituting the Appellant's mind for that of the reasonable man? Or was he saying that the Appellant could not have believed that there was consent in all the circumstances of the case? Having thought over the matter at length, I am convinced that it was the latter. The Magistrate is an experienced criminal practitioner. Robust though they may be, his comments were but a response to a half-hearted submission made in the course of an alternative but inconsistent defence. That is all I will read into it.

13. The appeal is dismissed. The convictions are upheld.

Remarks: