HKSAR v. NG WAH CHOY

 [English Translation – 英譯本]

HCMA 303/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 303 OF 2014

(ON APPEAL FROM ESCC NO. 4169 OF 2013)

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JUDGMENT

1. The appellant was charged with 4 counts of “indecent assault”, contrary to section 122(1) of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong. Charges 1 and 3 alleged that the appellant, on 16 September 2013 and 23 September 2013 respectively, indecently assaulted girl X, whereas charges 2 and 4 alleged that he, similarly on 16 September 2013 and 23 September 2013, indecently assaulted girl Y. All the 4 offences were committed in Wise Studio when the appellant alone taught X or Y speech skills.

2. The appellant denied the charges and, after trial, was convicted of charges 1 and 3 and acquitted of charges 2 and 4 by Mr Cheung Chi Wai David, a magistrate sitting in the Eastern Magistrates’ Courts.

3. The Magistrate sentenced the appellant to 3 months’ imprisonment for charges 1 and 3 respectively with 2 months in respect of charge 3 to run consecutively to the sentence for charge 1, making it 5 months’ imprisonment in total.

4. The appellant appeals against conviction and sentence.

Facts

5. The Magistrate set out the case of both sides as follows:

“Prosecution’s case

8. The prosecution alleged that on 16 September 2013, Madam Chow’s two daughters, namely, X and Y, had their speech skills classes in Wise Studio. P3 showed that Y’s class schedule was 2:14 pm to 2:48 pm and X’s was 5:24 pm to 6 pm. [The appellant] taught them on a one-on-one basis respectively.

9. When X and Y had their speech skills classes in Wise Studio on 23 September 2013, [the appellant] taught them in the same way. P4 showed that Y’s class schedule was 3:13 pm to 3:42 pm and X’s was 4:23 pm to 4:58 pm.

10. The prosecution alleged that on 16 September 2013 and 23 September 2013, on those days, [the appellant], while having classes with X, did kiss and lick her face and hands many times and did hold her in an embrace. Having licked her, he removed the saliva left behind for her with his hand. X was upset by and felt dirty in respect of his licking behavior.

11. As far as Y is concerned, the prosecution alleged that on 16 September 2013 and 23 September 2013, on those days, the [appellant], while having classes with her, did kiss and lick her face and hands many times and did hold her in an embrace. Having licked her, he also removed the saliva left behind for her with his hand. Therefore, the prosecution submitted that on the above dates [the appellant] indecently assaulted X and Y.

Appellant’s case

12. At the material time, [the appellant] was about 72-year old, married, living with his wife and daughter. He also had a granddaughter aged 6. He said that both of his eyes had shortsightedness and astigmatism. He also suffered from glaucoma and had undergone a cataract surgery. He got a habit of looking at others and reading at a close distance. He also said that as he suffered from diabetes, his mouth and tongue were dry with hardly any saliva. [The appellant] said that he had started teaching speech skills on a full-time basis since he was in his 60’s, and his curriculum vitae is set out in details in D10.

13. He had been serving Wise Studio for seven years. His students included those who came from nursery classes, primary schools as well as secondary schools. He estimated that in his teaching life, he had taught more than 800 students, about 550 of whom came from nursery classes.

14. [The appellant] also said that when he was teaching students of nursery classes, he would require them to sit by the side as he was afraid that they would fall down from the chairs on which they were sitting. Sometimes he would teach children by means of playing with them, while sometimes by giving them some encouragements. He would also kiss them. As they were children, he would treat them freely.

15. [The appellant] has no criminal record. He also said that he knew that CCTV was installed in the classroom in question. Regarding X and Y, he said that he neither licked nor kissed them. He also said that he did not remove the saliva left behind for them with his hand. He said that he moved his body with his head close to them just for chatting with them. In some circumstances, he lowered his head only because he felt tired. He did touch their faces with the back of his hand. However, what he did with it was just for fun but not removing the saliva left behind on their faces.

16.  [The appellant] denied licking.  He stressed that he would not lick others.  He also said that he did not have any indecent intention as he himself also had a granddaughter.  He also denied he had indecently assaulted X and Y.”

Magistrate’s findings

6. In his statement of findings, the Magistrate set out in details the evidence given by X, Y, their mother and the appellant.  He also gave a detailed account of the evidence of and the demonstrations made by X in her video-recorded interview (examination-in-chief) and what was captured by the CCTV installed in the classroom in question.  After consideration and analysis, the Magistrate found that the appellant, on the dates specified in the two charges, “did kiss and lick X’s hands and face many times and remove the saliva”, and these were hostile acts.  The appellant often held X tight and touched her upper arm with his right hand.  The Magistrate found that the only reasonable inference to be drawn was that the appellant kissed and licked X while holding her tight only because he had indecent intention.  The appellant was aware of this act but still assaulted X.  A right-minded person would consider his assault on her and the overall circumstances as indecent, and the appellant was found guilty of the two charges.

Grounds of appeal (conviction)

7. Mr Chase Pun, counsel for the appellant, advanced a total of five grounds of appeal arguing that the conviction was unsafe:

(1) The Magistrate failed to fully take into account of the significant discrepancy between the evidence given by X and the “recent complaint” made by her to her mother;

(2) The Magistrate erred in interpreting that the CCTV footage showed that the appellant had, for a number of times, inserted his hand into X’s right sleeve touching her arm, and erred in finding that the appellant “ did many times kiss and lick” X’s hands and face;

(3) The Magistrate erred in finding that the appellant’s act was hostile;

(4) The Magistrate erred in drawing the inference that the appellant must have indecent intention, and erred in finding that a right-minded person would consider the appellant’s holding of X in an embrace, kissing and licking of her hands and face and the overall circumstances as indecent and that the appellant was aware of that;

(5) The Magistrate erred in rejecting the appellant’s evidence.

8. The appellant stressed that X did not say that the appellant had licked her. Although in the video-recorded interview, initially X indeed used the word “licked” to describe how the appellant was in contact with her hands (entry 109), later she clarified that it was a “suck” (entry 113).

9. The appellant submitted that X had demonstrated that for both “suck” and “kiss”, one needed to open his mouth with his lips stretching forward and forming a small hole.  However, what she had demonstrated for a “lick” was different in the sense that the tongue was stretched out.  Her evidence only showed that the appellant had kissed or sucked her hands and face without licking.  However, under cross-examination, when the defence put it to her that the appellant had never licked her, she disagreed.  Therefore, there was a significant discrepancy between the recent complaint she made to her mother (she did not complain about the lick) and her evidence, so that her evidence was undermined.

10. Furthermore, the evidence given by X did not show any licks, and therefore the Magistrate erred in finding that the appellant did kiss and lick X’s hands and face many times.

11. The appellant also submitted that even if the appellant had kissed X, X was unhappy only because of the saliva left behind after the kiss.  This did not amount to assaulting her, not to mention being indecent.

12. The appellant submitted that the CCTV footage did not show that the appellant had touched X’s arm many times, and the evidence given by the appellant was not unbelievable. 

13. The appellant submitted that the Magistrate erred in rejecting the evidence given by the appellant, who did not fail to be wholly truthful as described by the Magistrate.

14. The appellant cited the case R v Court [1989] 1 AC 28 submitting that the appellant’s conduct of holding X in an embrace and grabbing hold of and kissing her arm and cheek, per se, was not indecent.  X had never indicated to the appellant that she did not consent to the above conduct.  The Magistrate’s finding that the conduct of the appellant was hostile to X was wrong.

15. The appellant also submitted that, after the relationship between the appellant and X, why he acted in such a way and his explanations were taken into account, the appellant’s acts were not obviously indecent.

My considerations

16. A magistracy appeal is conducted by way of rehearing on the evidence before the trial magistrate supplemented by any fresh evidence which the appellate court may admit: Chou Shih Bin v HKSAR[1].  I consider that as far as the facts are concerned, the appellate court should recognize that the trial magistrate enjoyed the advantage of having received the evidence at first-hand.  The appellate court is not entitled to determine, by relying on the transcript, whether a witness is credible and reliable: Raymond Chen v HKSAR[2]. Whether a witness is credible and reliable is purely a matter for the trial magistrate to decide.  However, the conviction will be unsafe if the finding of fact made by the trial magistrate is unreasonable, illogical or inherently improbable, or if the trial magistrate, in dealing with the evidence, wrongly described, omitted, failed to consider or analyze material matters.

17. Upon reading the video-recorded interview of X (examination-in-chief) and her evidence in court, I can see that her evidence only shows that the appellant has kissed her hands and face with saliva left behind upsetting her.  Although she, in examination-in-chief, only said that the appellant had kissed her hands and face once respectively, upon watching the CCTV footage in question, she said that it should be 3 or 4 times.  In fact, the footage shows that the appellant held X tight from time to time in an embrace with his head close to her.  There is nothing improper for the Magistrate to have been satisfied that the appellant had kissed X’s hands and face many times.

18. The issue is on the Magistrate’s finding that the appellant did kiss and “lick” X’s hands and face many times.  Although the defence had put it to X that the appellant had never licked her on the two days in question and she disagreed, her evidence indeed does not show that there was any lick.  Worse still, it is only after her younger sister had told the mother that the appellant had kissed her, sucked her and licked her (i.e. the younger sister) did X tell the mother that the appellant did kiss her as well.  However, she had never mentioned that he licked her.  When cross-examining the appellant, the prosecution had put it to him that he was licking X when his head was close to her hands or face.  The appellant firmly denied that.

19. In the present case, there is no evidence showing that the appellant had licked X’s hands or face.

20. Although X disagreed, when the defence put it to her in cross-examination, that the appellant did not lick her, in fact she did not point out explicitly that the appellant had licked her.  Her evidence was consistent with the recent complaint she made to her mother previously.

21. It appears that the Magistrate might have treated a kiss with saliva left behind as a lick.  It is true that had the appellant licked X many times, it would have been much more serious.

22. I have watched the CCTV footage in question and totally agree with the Magistrate’s observations.  When testifying, the appellant indeed admitted that he “merely kissed X” only when he could no longer dodge the question.  Initially he did not admit that he did kiss her.  The footage shows that the appellant’s body was in close contact with X, who twisted her body with an obvious intention to avoid him.  There is no need for her to express in words that she did not wish to be held.

23. The appellant had also inserted his right hand into the sleeve of X many times touching her right arm.  At the material time, it was in class and X did not do anything special which deserved commendation from the appellant, who, however, kissed her hands and face many times.  Even though there was no licking, in my judgment, in the overall circumstances at that time, he was assaulting X.  His acts had gone far beyond what a teacher should have done when teaching a student.  A reasonable man would also consider the appellant’s acts as indecent. All the elements of the offence set out in R v Court [1989] 1 AC 28 were present (i.e. (1) the appellant intentionally assaulted X; (2) the assault, or the assault and the circumstances accompanying it, were capable of being considered by a right-minded person as indecent; and (3) the appellant intended to commit such an assault).

24. The conviction is not unsafe, and therefore I dismiss the appeal against conviction.

Sentence

25. Before sentencing, the Magistrate had considered the appellant’s background report and psychologist’s report. He took into account the fact that the sentence must (1) be deterrent in order to prevent others from committing similar offences, (2) reflect the abhorrence of the public to the commission of such kind of offence, and (3) redress the grievances suffered by the victim, her family and friends. The Magistrate also pointed out that he had to take the protection of children into consideration.  Having considered a series of cases[3] for the purpose of reference, he has the followings to say,

“92. The above cases are for my reference only as each case has its own unique features, in particular, the facts of the above cases show that the breasts and private parts of the victims had been touched while the touch in the present case did not involve these sensitive areas. However, the girl in the present case is only a 6 years’ old child, who is not capable of protecting herself at all. Therefore, I will take the factor of age into special consideration.

93. Moreover, the footage in question shows that the period for which X was indecently assaulted was quite long. Although the areas touched were neither her breasts nor her private parts, it involved the use of force to hold the girl tight in arms touching her, and the overall period for which X was being kissed was also relatively long, and she was also licked. These acts were not a single act.

94. Furthermore, the present case is a case which involved breach of trust. [The appellant] was entrusted with teaching the girl, including looking after her as well. However, he acted in this way during this time. Therefore, it was a serious breach of trust. Having considered all the circumstances, in respect of the two charges faced by [the appellant], I, after trial, imposed 4 months’ imprisonment for charge 1 and another 4 months’ imprisonment for the other charge, which was charge 3.

95. Having considered the age of [the appellant] and the contributions made by him to the society in the past, I gave 1 month discount to each charge, so 3 months’ imprisonment would be imposed for charges 1 and 3 respectively.  I have also taken into account the fact that the incidents took place in two different periods of time, and in particular, the offence in charge 3 was committed after the first incident had taken place.  Having taken the totality principle into account, I ordered that 2 months of the term of imprisonment imposed in respect of charge 3 to be served consecutively to the sentence imposed for charge 1. In other words, the sentence was 5 months’ imprisonment.”

Grounds of appeal (sentence)

26. The appellant submitted that the Magistrate, having failed to fully take into account of the appellant’s background and the overall circumstances of the present case, had erred in imposing an immediate custodial sentence on him, and viewing the circumstances of the present case as a whole, the total term of 5 months’ imprisonment was manifestly excessive.

27. The appellant stressed that the psychological report showed that the appellant does not have paedophilic tendencies or other psychological problems and the chances of him repeating the offence were low.  The appellant, aged 73 from a good background, had a stable job before his retirement.  He has been active in promoting Chinese culture with support from his family, friends and students.

28. The appellant submitted that the body part of X which the appellant had touched was not a sensitive area and the facts of the case were not particularly serious.

29. The appellant was of the view that an immediate custodial sentence of 5 months was manifestly excessive and urged me to deal with him leniently.

My considerations

30. When sentencing, the Magistrate pointed out that it involved the appellant’s “use of force to hold the girl tight in arms touching her, and the overall period for which X was being kissed was also relatively long, and she was also licked. These acts were not a single act.”

31. As I have said when considering the appeal against conviction, the evidence of X did not show any licks but more than one kiss or suck, but to the extent that saliva was left behind on her face and body.

32. The appellant, being the teacher of X, took advantage from the occasions on which he was with X alone to kiss and suck her.  The facts cannot be said to be not serious.  However, the above facts certainly are not as serious as “kissed, sucked and licked”.  Since the Magistrate said in sentencing that the appellant did lick but the evidence does not show the same, I have to reconsider the appropriate sentence after the act of “lick” is no longer there.

33. I agree that relatively speaking, the degree of the appellant’s indecent assault on X was not very serious as he kissed her arm and face and not other sensitive areas (like private parts).  However, the appellant was in breach of trust, which was put in him by the parents and family of X, by indecently assaulting her more than once when he was alone with her in class.  Immediate custodial sentence is inevitable.

34. Having taken into account the appellant’s age, background and all the circumstances of the present case, I am of the view that it is appropriate to take 6 weeks as the starting point for each count.  The appellant denied the charges and X was required to testify in court.  In my judgment, there is no justification to reduce the starting point.

35. The offences in the two charges took place on different dates, and the sentences imposed should run consecutively.  However, having considered the issue of totality, I am of the view that 8 weeks’ imprisonment can sufficiently reflect his criminality.

36. Based on the aforesaid reasons, I order that the appeal against sentence be allowed, and the original terms of imprisonment be set aside and varied as follows:

     Charge 1: 6 weeks’ imprisonment

     Charge 3: 6 weeks’ imprisonment, 2 weeks of which be served consecutively to the sentence imposed in respect of charge 1, making it 8 weeks’ imprisonment in total.