HKSAR v. SO CHEUK WAI, ALLAN

HCMA 21/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 21 OF 2013

(ON APPEAL FROM KCCC NO. 1059 OF 2012)

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JUDGMENT

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Introduction

1.  The appellant was tried at Kowloon City Magistracy on five counts of indecent assault, contrary to section 122(1) of the Crimes Ordinance and two counts of committing an act outraging public decency, contrary to common law.  For the sake of brevity I shall refer to the latter offence in this judgment as simply outraging public decency.  The trial was presided over by Mr Ko Wai-hung. It commenced on 16 July 2012 and on 24 October 2012 the appellant was convicted of three counts of indecent assault (counts 1, 4 and 7) and two counts of outraging public decency (counts 5 and 6).  He was acquitted of counts 2 and 3 which were both indecent assault counts.

2.  On 23 November 2012 the appellant was sentenced to a total of sixteen weeks’ imprisonment.  This was composed of the following sentences:

1^st count (indecent assault): 8 weeks’ imprisonment

4^th count (indecent assault): 6 weeks’ imprisonment

5^th count (outraging public decency): 1 week’s imprisonment

6^th count (outraging public decency): 1 week’s imprisonment

7^th count (indecent assault): 6 weeks’ imprisonment

The sentences for Charges 4 and 7 were ordered to run concurrently with each other but consecutively to Charges 1, 5 and 6.

3.  On the same day that he was sentenced he was granted bail pending appeal.

The Trial: An Overview

4.  The appellant was a neurosurgeon at Queen Elizabeth Hospital.  All the victims were female nurses working there and all the allegations involved some form of sexual misconduct by the appellant towards the victims.  All the acts of sexual misconduct took place in the premises of the hospital and whilst the appellant and the victims were on duty.

5.  The prosecution case consisted of one witness, the victim, in respect of each count.  They were PW1 in respect of counts 1 - 3, PW2 in respect of counts 4 - 5 and PW3 in respect of counts 6 - 7.  PW4 is a doctor in charge of one of the teams in the Neurosurgical Department and PW1 complained to him of the incident that is the subject of Charge 1 at about 10.30 a.m. on the morning of the day when that offence allegedly occurred.  PW5 is another doctor in the Neurosurgical Department who was present at the meeting at about 11 a.m. that day with PW1 and PW4 and another doctor.

6.  Charges 1 - 3 involved PW1 and the incidents underlying them occurred, in chronological order, between 1 July - 31 July 2010 (the second charge), 1 July - 31 August 2010 (the third charge) and then 23 June 2011 (the first charge).

7.  After a conversation with PW2, PW1 decided to relate these two earlier incidents to her head of department who, at that time, was Dr Leung Cheong-lun. This was in about August 2010.  The appellant was spoken to and required to take two weeks’ leave.  But on this occasion the conversation with the appellant was couched in vague terms and did not convey precisely to him the nature of the complaint against him.

8.  The incidents involving PW2 were the subject of Charges 4 (indecent assault) and 5 (outraging public decency) and occurred between 1 January and 31 January 2010 and 1 June and 31 July 2010 respectively.

9.  The incidents involving PW3 were the subject of Charges 6 (outraging public decency) and 7 (indecent assault) and both occurred between 1 April and 30 April 2010.

10.  A chronology of the history of these matters is as follows:

1 - 31 January 2010	First incident involving PW2.  This incident is the subject of the fourth charge (indecent assault) of which the appellant was convicted.
1 - 30 April 2010	First incident involving PW3.  This incident is the subject of the sixth charge (outraging public decency) of which the appellant was convicted.
1 - 30 April 2010	Second incident involving PW3.  This incident is the subject of the seventh charge (indecent assault) of which the appellant was convicted.
1 June - 31 July 2010	Second incident involving PW2.  This incident is the subject of the fifth charge (outraging public decency) of which the appellant was convicted.
July 2010	First incident involving PW1.  This incident is the subject of the second charge (indecent assault) of which the appellant was acquitted.
1 July - 31 August 2010	Second incident involving PW1.  This incident is the subject of the third charge (indecent assault) of which the appellant was acquitted.
August 2010	(1) PW1 speaks to PW2 as a result of which PW1 decides to report the first two incidents. (2) PW1 - 3 speak to Dr Leung Cheong-lun and Dr Tan Tze-ching as a result of which the appellant is instructed to take two weeks’ leave.
23 June 2011	(1) Third incident involving PW1.  This incident is the subject of the first charge (indecent assault) of which the appellant was convicted. (2) PW1 reports the third incident to Dr Cheung after ward rounds at about 11 a.m. Dr Cheung then reports it to the department head, Dr Chui. In late morning PW1 meets with Drs Chui, Cheung and Tan.

11.  I shall turn to the evidence in respect of each incident shortly but before I do so it is important to understand that it was not the defence case that the victims were lying or falsely accusing the appellant; merely that they were mistaken as to what they believed happened and that all the indecent assaults were nothing more than accidental physical contact of the kind that commonly occurs when people’s duties require them to work in close proximity to each other in a confined physical environment.  As to the acts outraging public decency they were simply innocuous conduct of the appellant that had been misunderstood.

12.  The victims agreed that they had met together and discussed their respective experiences involving the appellant and it was suggested that this conversation may have influenced them to more readily believe that what had happened to them was deliberate rather than accidental in respect of the indecent assaults and was sinister rather than innocuous in respect of the acts outraging public decency.  The possibility of accidental touching is what caused the magistrate to have a reasonable doubt in respect of the indecent assault offences that are Charges 2 and 3 and which were testified to by PW1.  Even PW1 thought, at first, that the Charge 2 contact was an accidental one.

13.  The appellant did not give evidence but called two character witnesses. As a result of their evidence the magistrate characterized the appellant as a person of positive good character.

14.  Finally, in reaching his verdicts the magistrate eschewed any reliance on use of the similar fact principle despite being invited by the prosecutor to do so.

15.  Legal issues did not otherwise play a great role in the trial and there was agreement by the parties on the relevant case law and legal principles underlying both offences.  There may have been little scope for legal defences in respect of the indecent assault charges but the same cannot be said in respect of the outraging public decency charges.  This is a matter to which I shall return later in this judgment.

The Evidence of PW1

16.  The first prosecution witness to give evidence was the complainant in Charges 1 - 3.  However, as I have mentioned, these counts, in chronological order, occurred as 2, 3 and then 1.  All these charges are indecent assault charges and the magistrate acquitted the appellant of Charges 2 and 3.  Notwithstanding that the appellant was acquitted of counts 2 and 3 I shall refer to her evidence of those counts so that the entirety of her evidence can be appreciated and also to understand why the incident the subject of count 1 led to the police being called.

17.  PW1 was working in the surgical and neurosurgical wards of Queen Elizabeth Hospital at the time of the offences.  She is a married woman with children.  She graduated as a nurse in 1993.

Charge 1: 23 June 2011

18.  PW1 testified as to Charge 1 first which involved the most recent incident.  It occurred at about 9 am on 23 June 2011 at the nurse’s station at Ward G8.  She was standing there reading the Admission Book.  The appellant came up behind her and enquired about a patient.  PW1 said she was using her right hand to turn the pages of the Admission Book and her left hand she placed behind her back, palm outwards.  She said she then felt a soft object touch the centre of the palm of her left hand and she thought that it was the appellant’s penis.  She said it came into contact with her palm for about 2 seconds.  It is important to understand that there was no suggestion that the appellant removed his penis from his trousers; merely that he brought the groin area of his clothed person into contact with the palm of PW1’s hand as it was resting at her back.  She said this happened twice with a short interval of 3 - 5 seconds between each contact.  The first contact lasted 2 seconds and the second contact about 5 seconds.  In respect of the first contact PW1 felt the appellant’s penis was soft but on the second contact it was hard.

19.  PW1 said she felt frightened but on the first contact did not remove her hand from her back and simply continued examining the Admission Book.  She answered the appellant’s question and then left the ward.

20.  She was convinced that what she felt was the appellant’s penis because of the height and position where the contact took place and because she noticed the appellant was not holding anything in his hands that might account for the hard object she felt pressing against her. 

21.  PW1 did not immediately report this incident but at 10.30 a.m. that same day she went to the appellant’s supervisor, Dr Cheung Fung‑ching and informed him of it.  Her first words to Dr Cheung were:

“He did it again.” [1]

22.  At around 11 a.m. she recited the incident to Dr Cheung (PW4), Dr Tan Tze-ching (PW5) and another doctor.  In the afternoon a report was made to the police.

Charge 2: July 2010 (Acquitted)

23.  When asked to explain why she used the words “He did it again”, PW1 explained that there had been an earlier incident in July 2010.  On that occasion PW1 was in Ward G8 as part of a team of doctors who were conducting an inspection.  PW1 was standing at the end of the group and the appellant was behind her.  He was part of the team but PW1 did not think that he was participating in the inspection.  She felt his soft penis pressing against her buttocks as he moved past her.  PW1 did not say anything to the appellant at the time and did not report the incident to anyone.  It is clear from her evidence that the reason for this was because she viewed the contact as accidental.  She said:

“In fact, regarding the bodily touch this time … in fact, after his passing behind me, he actually went to the bed at the corner which was bed no. 23 to do something. Well, in fact, he was rather in a hurry, I could see that the pace was a hurried pace. Then I was thinking in my mind ‘Oh what the heck, passing in this in such a narrow gap without saying sorry’. In fact, I was very angry, but I thought that he was doing things in a hurry.” [2]

Charge 3: 2 weeks after Charge 2 (Acquitted)

24.  Then, two weeks later PW1 experienced a third incident involving the appellant.  On this occasion they were both in Ward G8 doing different things. PW1 was standing beside a bed and her right hand was hanging down by her side. The appellant came up and brushed against her hand and his soft penis came into contact with her hand for about 2 seconds.  The appellant then stood beside her and spoke to her briefly and then left her.

The First Report: to Dr Leung

25.  PW1 was upset by this and the earlier incident and was wondering how to respond to it.  Before she had made up her mind she was spoken to by PW2 who told her something of a similar incident.  She then decided to report her own incidents.  She did this by speaking to Dr Leung Cheong-lun.  The next thing she heard was that the department granted the appellant two weeks’ vacation leave.

Cross-examination

26.  In cross-examination PW1 said that it did not occur to her that any of the three contacts were accidental and that even on the first occasion the contact was deliberate, inappropriate behaviour by the appellant.  She explained that the reason she did not report it immediately was because she was frightened and angry.

27.  PW1 tried to portray her relationship with the appellant as just colleagues but she attended his wedding and he was a “friend” of hers on Facebook.  She tried to distance herself from the fact that a birthday greeting was sent from her Facebook account to the appellant on 6 June 2011, suggesting it that it may have been automatically generated by Facebook.  She agreed that she did not de-list the appellant as a Facebook friend till after she went to the police in 2011.  She was asked why she did not do this after the two occasions in 2010 that are the subject of the second and third charges but was unable to provide any reason for not having done so.

28.  She was asked by Mr Harris:

“Q. Do you agree with me that in a busy hospital ward, particularly in a government hospital where the beds are relatively close together, it is inevitable that from time to time staff bump into each other incidentally?

A. Agree.” [3]

29.  She was then asked whether the contacts of the first two incidents in 2010 might have been accidental but that was objected to and so Mr Harris rephrased his question to ask whether the reason she did not report it was because she thought it might be accidental and she replied that after the first two incidents she thought of making a report but was influenced against doing so by the fact that the appellant had been a colleague for a few years and he had a little boy; not because she thought it was an accidental act.

30.  PW1 was then asked about the conversation she had with PW2 about the appellant’s behaviour; a conversation that was not initiated by her but by PW2. That conversation, PW1 said, played a part in her, PW1’s, decision to report the incidents to Dr Leung.  At this stage she did not want to report the matter to the police and hoped the hospital could solve the problem internally.  She spoke to Dr Leung but said that no statement was taken from her.  She was subsequently told by Dr Leung that the appellant had been required to take leave but Dr Leung also told her that he had not told the appellant “the entire incident”.[4]

31.  In respect of the incident on 23 June 2011 (the first charge) PW1 disagreed with the suggestion that the appellant was snappy and short‑tempered with her.

32.  PW1 gave a second statement to the police on 5 July 2011 and PW2 and PW3 were also seen by the police the same day.  PW1 denied getting together with PW2 and PW3 between 23 June and 5 July to talk about the case but at some stage, and she can’t remember when, PW1 told PW2 that she had made a report to the police.

33.  When asked about the incident of 23 June 2011 PW1 denied she had misunderstood the appellant’s intentions.  She agreed that the whole of the conversation that she had with the appellant at the time of the incident was work related and nothing of a sexual nature was said.  She said she did not tell him to stop what he was doing because she was too frightened of him to say anything.  She did not move her hand away from her back because his body was leaning against her.  She said that on all three occasions the appellant was wearing suit trousers.

34.  When asked whether what she felt on any of the three occasions might have been an inanimate object such as mobile phone, keys or wallet which the appellant kept in his trousers pocket, she said no.

The Evidence of PW2

35.  The evidence of this complainant went to the proof of Charges 4 (indecent assault) and 5 (outraging public decency). The magistrate convicted the appellant of both these charges.  These offences occurred in January 2010 (Charge 4) and between 1 June and 31 July 2010 (Charge 5).

Charge 4: January 2010

36.  In respect of the first incident PW2 could not remember when in the day it happened but that it happened in Ward G8 when the appellant was taking a blood sample from a patient.  PW2 was attending to something else nearby in the same cubicle.  The appellant called to her for assistance in pressing the wound of the patient.

37.  When she came forward the appellant stepped back to allow her to get to the patient.  Then she says that the appellant, holding the blood sample, walked past behind her and in doing so the front part of his body pressed against her back.  She said she was holding herself straight and pressing her body against the bed in order to make space for the appellant to pass.  She described the incident as follows:

“When he was pressing my left buttock, I felt that it was something hard, and I felt that it was his penis. Therefore, in fact, I wanted to see if I could move forward a little bit. Then he continued to walk. When almost reaching the middle part of my buttock, I felt that Dr So moved forward and pressed me once. Then he continued to move to the right. After his entire body had left my body, I turned around to the right because I was still pressing the wound with my hand and, therefore, I did not turn my entire body around to look at him. Then I saw that Dr So went to deal with the blood sample.” [5]

38.  At the time that this happened one of the appellant’s hands was holding the blood sample and the other was in the air.  The complainant said that the touching of her buttocks by his penis lasted 5 ‑ 10 seconds.  PW2 said she felt the incident was obscene but she did not complain about it because she was frightened.  When asked of what she was frightened she said:

“It seems that it is shameful to tell others about an obscene incident.” [6]

39.  PW2 went on to explain that they were standing between two beds and she assessed the space between them as not less than 21 inches.

40.  At the end of the examination-in-chief the following exchange took place between the prosecutor and PW2 in respect of the first incident:

“Q. … And was there any area space where Dr So, the defendant could have walked past you without touching you in that circumstances?

A. Well, basically, in the same area he should not have touched me.

Q. I know, it is what you feel about this. Now the question is whether there was any space, say for example behind Dr So at that location, which make out … which makes you … or which renders that it is not necessary for him to touch you in that way.

A. He could have asked me to press at the opposite side, it was not necessary to be in the same direction.” [7]

41.  This first incident was not reported to Dr Leung and Dr Tan when PW2 approached them and was only revealed by PW2 to the police in July 2011.  When asked why she did not report it she replied:

“Because after I had left the Queen Elizabeth Hospital I felt that Dr So did not harass other people. But one day, the nurse Miss Choi [8] called me, and she said, once again, she was … she encountered what Dr So had done to her.

Q. After hearing that, then?

A. Then I was very angry. So I decided to make a report to the police.” [9]

42.  When cross-examined about the first incident PW2 agreed that it was as the appellant was brushing past her buttocks that she felt him move forward and press himself against the middle part of her buttocks.  This pressing movement lasted only 1 second.  PW2 agreed that she made no mention of this pressing movement in her first police statement.[10]

43.  In concluding his cross-examination on the first incident Mr Harris asked PW2:

“Q. Did you think to yourself, I wonder whether that was deliberate or accidental?”

44.  To which PW2 answered:

“A. I comforted myself that it was an accident.” [11]

45.  Mr Harris asked PW2 if she confided in any of her friends about this incident and she said she did, but only after the second time.  She denied that the reason for not revealing it earlier was because she thought it was possible it might have been an accidental touching.  She was also cross-examined on why she characterized this incident as frightening and she said because she felt that the appellant did it deliberately.

Charge 5: June - July 2010

46.  The second incident that is the subject of Charge 5 occurred at about noon whilst PW2 and the appellant were sitting next to each other at separate computers at the nursing station in Ward G8.  The appellant commented to her that the waist of the green operating theatre trousers that he was then wearing was loose and asked if she had a safety pin.  PW2 went to obtain one and after doing so found the appellant waiting for her in the corridor.  She described what then happened as follows:

“Then I passed two safety pins to him. After receiving the safety pins with one hand, he used another hand to open the door of the restroom for the nurse. Then he said to me ‘Oh, I don’t know how to use this kind of pin, you teach me how to use it’. After, he had opened the door, I found that there was a healthcare assistant having a meal inside, and therefore I went inside as well.” [12]

47.  This room was in fact labelled “Cleaning and equipment room” but was also used by staff as a rest area.  She then said:

“He said that he did not know how to use it, and at that time I was actually wearing a jacket and, therefore, I made use of my jacket and I demonstrated to him using my own clothing. After a while he said to me, ‘Is it like this?’ Then I took a look at his face, he took a look at his lower part then I looked at the position of where his pair of pants was, then I saw he pulled open the waistband. Then I saw his pubic hair and his penis. Then I immediately stood up straight and I was very frightened and, once again, he said to me, ‘Is it like this?’ And this time I did not take a look. Then at that time, I had a word with that healthcare assistant. That healthcare assistant talked to me, ‘What took so long?’ Then I said to the healthcare assistant, ‘You help him, you help him?’ then I left the room. After getting out of the room, I sat back at the original position where I was sitting in front of the computer. Then after a while Dr So came over and stood in front of me and pulled up the upper garment and asked me, ‘Is it like this regarding the waistband?’ Then at that time there was a thing pinned at the waistband already, there was.” [13]

48.  PW2 then called PW1 and told her that something scary had happened to her.  Notwithstanding that she found this incident scary, she made no official report of it.  Subsequently, she had breakfast with PW3 and told PW3 to be wary of the doctors.  This comment evoked a reaction from PW3 which PW2 thought was an indication that PW3 had encountered a similar incident of inappropriate behaviour by a doctor.  This led to the two of them revealing to each other the different incidents that each had experienced.

49.  PW2’s conversation prompted her to approach PW1 again and discuss with her whether she, PW2, should report her incident with the appellant and resulted in her reporting the incident to Dr Leung and Dr Tan.

50.  In respect of the second incident it was suggested to PW2, but denied by her, that at the time of this incident the appellant was not wearing the green operating theatre trousers, which have a draw-string waist, but rather the blue ward trousers which have an elastic waist.  She agreed that the healthcare assistant who was in the room was having her lunch.  She said that when the appellant exposed himself to her she was too frightened to look at him and her hands were shivering.  She agreed that the healthcare assistant was not able to see what the appellant did.

51.  She was cross-examined on what she meant by the appellant pulling out his trousers which was the act which caused him to expose himself and specifically on her having said in her police statement that the appellant had pulled his trousers down to his knees.  She agreed that when she looked down she saw the appellant holding his trousers with both hands and she could not see whether he was wearing underpants.  She agreed that she did not mention “knees” to the police officer but now said that she did not see knee or knees and the appellant did not pull the trousers down to his knees.

52.  She was also cross-examined, like the other complainants, on why she used the word “frightened” to describe her feelings at that time and was asked whether someone had told her to say she was frightened.  Without refuting this suggestion she replied:

“I don’t understand why I need to explain for so long about my feeling.” [14]

53.  She said she did not ask the healthcare assistant if she had seen what had happened.  She was convinced that the exposure was deliberate and described it as an “insulting thing” to have been done to her.

54.  She was also asked why, when she reported the second incident, she did not mention the first incident.  It was suggested to her that one reason might have been because she thought the first incident had been accidental.  She said she could not remember whether she had reported the first incident but, if she had not, it would not have been for that reason.

55.  She said that before she made her statement to the police she spoke to PW1 and PW3 but that no-one told her what she should say to the police.

The Evidence of PW3

56.  This complainant gave evidence in respect of two incidents that occurred between 1 April and 30 April 2010 and which were the subject of Charges 6 (outraging public decency) and 7 (indecent assault).

57.  The first incident occurred at the nurse’s station in Ward G8.  PW3 was writing at the Kardex card and the appellant was sitting in a chair.  He was wearing the green uniform of the operating theatre.  The appellant called to the complainant and she came over to him.  She described what then happened, as follows:

“… when I reached him, then I already saw that the defendant made use of his left hand to pull his pair of trousers forward with his thigh, or thighs, exposed. When I reached there, I saw that he exposed the pubic hair of his sex organ. When I reached there, I saw his pubic hair and his thigh, or thighs. And upon seeing this kind of situation I was shocked, but the defendant still kept asking me about the information on the Kardex that he was holding as if nothing had happened. Well, regarding the contents that he asked me about it was, like, whether that patient could go home on that day. Then I was very frightened. Then I gave a word as a reply, ‘Yes’, then I turned around and ran away … walked away.” [15]

58.  In response to further questions she said that whilst the appellant’s left hand was pulling open his pants, his right hand was on the table.  She said the appellant was not wearing underwear.  She said that at that time there were no other colleagues present within the nursing station area.  Nor were there any colleagues in the immediate vicinity of the nurse’s station although the complainant thought there should be some colleagues somewhere in the ward.  There were, of course, patients in the ward.

59.  PW3 said the appellant did not say anything to her about this incident and she did not report it to anyone.  She said the reason she did not complain about it was because it was “really sudden”.[16]

60.  Within 4 - 5 days of this incident there was a second incident.  This second incident also occurred at the nursing station in Ward G8.  The telephone at the station was ringing and as the clerks were busy and she was free, PW3 answered the call.  The defendant was walking towards the nursing station and could see PW3 was bent over answering the phone.  He quickened his pace and entered the nurse’s station.  As he walked past her, PW3 felt the entire lower part of his body touch the lower part of her body.  She said that from the moment she answered the phone call to the time she ended the call, during which the appellant passed by her, only 5 seconds elapsed.  After finishing the phone call she hung up and left the nurse’s station.

61.  PW3 said that when the appellant walked past her he did not say anything to her and she did not speak to him.  Nor did she know what he was doing in the nurse’s station.

62.  The complainant said that at the time the appellant walked past she felt his erect penis touch her.  She said that after the incident she turned her head and noticed the appellant was wearing suit trousers and there was nothing in his pockets which could account for what she felt touched her buttocks. When asked how long the touching lasted she said 5 seconds.  She then revised her estimate of the length of the phone call to more than 5 seconds.

63.  PW3 did not report this incident and when asked in examination-in-chief why not, she said:

“Because at that time I thought it was way too much for the defendant. In fact, it was a case that I was frightened more than the case that I wanted to say something. I was too frightened.” [17]

64.  When asked why she was so frightened she said:

“Because it was already the second time.” [18]

65.  She said she told her boyfriend but no-one else.  She did report it 3 - 4 months later after having a conversation with PW2.  PW2 told her that she and PW1 had also had similar experiences with the appellant.  They then agreed to report the incidents and separately approached Dr Leung and Dr Tan.  However, PW3 did not report the second incident, only the first. When asked again why she did not report the second incident she said:

“Well, in fact, I first wanted to make the department in charge face this problem properly regarding the seriousness of the incident. I think the incident that the defendant exposed his pubic hair is more serious than the incident that the defendant touched me.” [19]

66.  She said that at this time none of them wished to report the matter to the police.  They wished to give the appellant a second chance.  However, subsequently the complainant ran into PW1 and learnt from her that the appellant “had done it again”.  PW3 then felt that something had to be done to prevent other nurses suffering similarly.

67.  Under cross-examination PW3 became quite definite that, in respect of the first incident, no-one else was present in the nurse’s station.  She was also asked why she regarded the exposure as more serious than the indecent assault and she said:

“Because, if he had touched me, and sometimes when we are walking on the street, we could be touched carelessly.” [20]

68.  But, she went on to say that she did not think his touching was careless or accidental and she always took the view it was deliberate.  When it was suggested to her that the indecent assault was far more serious than the exposure she replied that they were of the same level of seriousness.

69.  It was suggested to PW3 by Mr Harris that the appellant was, in fact, wearing the draw-string green operating theatre trousers but this was denied by her.  When it was suggested to her that the appellant may have simply been adjusting his trousers she answered:

“A. Impossible, because he called my name and asked me go over there, and when I reached there … when I reached there, he already pulled open. And after answering ‘Yes’ to him, I turned around and left. And during that period of time, there were actually two seconds. And even if he just wanted to adjust the pair of pants, he would not adjust it after calling my name.

Q. You see its your evidence, isn’t it, that he carried on talking to you as if nothing had happened?

A. Yes. He pulled open the pants with his left hand and continued to talk to me as if nothing had happened.

Q. Did it strike you at the time as being extraordinarily odd?

A. The reason why I stopped for two seconds is that he asked me a question, and at the point of time I was petrified.” [21]

70.  When pressed, PW3 agreed that this behaviour was extraordinarily odd. In response to later questioning PW3 claimed that she was frightened by the incident and this led to Mr Harris probing her as to why she was frightened and then whether anyone had told her to tell the court that she found these experiences frightening.  This led to him questioning her about conversations she had had since the incidents with PW1 and PW2.  She agreed that all three of them had been sitting together in a room outside of court but denied they discussed the case.  Then, Mr Harris asked:

“Q. Have you spoken to either Priscilla or to Miss Yim, either during the adjournments when either one of them have been giving evidence, or since they gave evidence?

A. Did not talk about the contact. We only talk about the procedure, like, where we will be sitting at, when the case will start and where the case would end. And you know this matter may arouse the press interest, and we also talk about how to avoid them.

Q. All right. When did you last speak to Priscilla?

A. Just now when I was having lunch, we had a phone conversation.

…

Q. When did you last speak on the telephone to Miss Yim, because she’s a friend of yours, isn’t she?

A. Apart from this incident, basically I would not have phone conversation with her, and I would not go out with her.

Q. When did you last speak to her on the phone?

A. At nine - something, around … between the time 9.30 and 9.35 this morning.” [22]

71.  She was then asked about the report she made to Drs Leung and Tan and her failure to report the second incident.  On this issue she was asked what she knew about PW1’s complaint and she said she only knew a little bit about the appellant turning around and “a part of his body touched her with the private part”.[23] She agreed she knew similar details about PW2’s complaint.

72.  In respect of the second incident PW3 agreed that other colleagues were present.[24] When asked about this incident she explained that “it was not a case that he touched me when passing, he was standing right behind me … he was immediately after me … behind me, sorry, and therefore the middle part of two buttocks was touched”.[25]  She then confirmed that this touching lasted 5 seconds.

The Remaining Prosecution Evidence

73.  Only two other witnesses were called by the prosecution.  They were Dr Cheung (PW4) and Dr Tan (PW5).  I have not been provided by the parties with a transcript of their evidence and so I rely for my understanding of it on the summary in the Magistrate’s Statement of Findings.  Dr Cheung testified to the report made to him by PW1 on 23 June 2011 which ultimately led to the police being called. However, in cross-examination he was asked about the first complaint that PWs 1, 2 and 3 made to him in August 2010.  He agreed that when he spoke to the appellant at that time in response to the complaints he did not inform the appellant of the specifics of the complaint and reminded him that he should be “careful towards female colleagues” when he worked with them so that there would be no misunderstanding.  He then instructed the appellant to take two weeks leave and told him to behave properly in future.

74.  PW5 simply recited what had transpired at the meeting with PW1 when she complained on 23 June 2011.

The Defence Case

75.  The appellant did not give evidence but called one witness, Dr Mak Dun-ping as his character witness.  This witness had known the appellant since medical school and testified [26] that in his experience the appellant had always behaved honourably and properly with female peers and colleagues, though he also said that the appellant lacked social finesse.  He said that any allegations of sexual misconduct were totally incompatible with what he knew of the defendant.

76.  The defence also submitted three character letters which were admitted under section 65B of the Criminal Procedure Ordinance, Cap 221.  The magistrate described them as follows:

“In gist, they (ie the authors of the letters) are surprised and shocked to learn of the allegations against the Defendant and they all commented that Defendant is a man with high integrity and devoted in his work.” [27]

The Magistrate’s Statement of Findings

77.  After summarising the charges and the evidence the magistrate proceeded to his assessment, analysis and evaluation of it.  He directed himself that the only evidence against the appellant came from each complainant and this made it “a classic one to one situation.  Credibility of the victims is the central issue of this case”.[28]

78.  He went on to give himself a good character direction and in so doing found the appellant to be of positive good character.  Notwithstanding that the appellant did not give evidence the magistrate, nevertheless, gave himself a credibility direction.

79.  He said that even though the prosecution invited him to apply the legal principles relating to similar fact evidence he found it unnecessary to do so.

80.  In explaining his approach to his determination of whether each charge had been proven beyond reasonable doubt he said:

“Regarding each of the charge, I have asked myself that whether the accounts given by the witnesses, in particular the incidents relating to the alleged exposure of Defendant’s male sexual organ, in the presence of a cleaning care assistant inside the resting room and the other nurses or staff at the vicinity of nurse ward in G8, are inherently improbable. Further I have asked myself whether in each of the incidents, there existed misunderstandings between the Defendant and the victims, that the victims might somehow ‘misinterpreted’ the Defendant’s actions, or given the pressure and expediency in the Hospital, that the alleged assaults and/or the exposure were accidental and not intentional and deliberate.” [29]

81.  He reminded himself of the fact that the complainants had discussed their experiences before lodging a complaint and that their discussion may have influenced the view they formed of the incidents.

82.  In respect of PW1 the magistrate recognized that her evidence was not perfect.  He referred to her evidence that she “had in fact told the senior management that the defendant had done the “acts” many times” [30] without explaining the relevance or admissibility of this piece of evidence or how it influenced him in the view he reached of PW1, which was that she was an honest and truthful witness.  However, he did later say when discussing her evidence:

“It might be that she was incorrect to say Defendant had done the “act” many times, however I did not find that to be an exaggeration that affect her credibility and reliability.

It would have been that she wanted management to take a serious view of the matter.  In fact, including her, 3 nurses accused the defendant of committing same indecent acts towards them.” [31]

83.  His assessment of her evidence was that it was straightforward and clear and she was unshaken in cross-examination.  He found her to be an honest and truthful witness.  Likewise, he found PW1 and PW2 to be honest and truthful and did so for much the same reasons, saying:

“They gave evidence in a straightforward and coherent manner. They were unshaken under cross-examination. I find their explanations and reactions reasonable.” [32]

84.  As to the suggestions put to the witnesses that what they may have felt pressing against them was not the appellant’s erect penis but some object contained within the pockets of the appellant’s clothing, he described as fanciful.

85.  In respect of the various conversations that PW1 - PW3 had with each other he said:

“Further, I accepted their evidence when they discussed about the matters, they did not discuss about the details of their encounters. I find that their evidence was not tainted by their conversations or that they had colluded together.” [33]

86.  Any discrepancies between what the complainants reported to the police and their evidence in court he said were immaterial and attributable to emotional distress.

87.  He also discussed the evidence of Dr Cheung and Dr Tan and then concluded his assessment of the prosecution evidence by saying:

“I find all prosecution witnesses to be reliable. I accepted the evidence of all prosecution witnesses.” [34]

88.  The magistrate went on to discuss the evidence of Dr Mak, called as part of the defence case and found him to be honest and truthful but he did note that Dr Mak’s favourable comment that the appellant respected the female sex “contrasted with the suggestions to the witnesses that Defendant used to speak dirty jokes, at least to the nurses, in the workplace”.[35]

89.  The magistrate then went on to discuss the law.  In respect of the offence of outraging public decency he directed himself as follows:

“For the offence of outrage public decency, the prosecution must prove that:

(i) the act was of such a lewd character as to outrage public decency;

(ii) the act was done in a place which the public had access or in a place where what was done was capable of public view, and must have been capable of being seen by two or more persons who were present, even if they had not actually seen it. See HKSAR v Yeung Hin Kwong Stevens [2008] 2 HKCLRT 411. [36]

90.  He then turned to the individual charges, dealing with the indecent assault charges first.  In respect of Charge 1 he noted that the nursing station was not crowded and there was no need for the appellant to stand immediately behind PW1.  He took into account the photographs and map of the nurse’s station and concluded:

“Given the circumstances, I am satisfied that the only irresistible influence (sic) that could be drawn is that the defendant intended to use penis press upon Choi’s palm. The act, in the ordinary right-minded person, must be indecent. It was definitely not an accident.” [37]

91.  For Charges 2 and 3 he found that given the status of the ward or the factual matrix that he could not rule out the possibility that the physical contact was an accident.

92.  He then turned to Charge 4, the indecent assault charge in respect of which PW2 was the complainant.  This was the pressing against PW2 by the appellant as he moved past her after having taken blood from a patient.  He said of this incident:

“Given the circumstances, in particular the force increased when Defendant’s penis was brushing through Yim’s buttocks, the only irresistible inference that could be drawn is that Defendant intended to use his penis to brush Yim’s buttocks. There could not be any misunderstanding. Defendant’s acts must be indecent.” [38]

93.  The last indecent assault charge, Charge 7, arose from the testimony of PW3.  In respect of this charge the magistrate said:

“I have looked at the photographs of the nurse station. It was not suggested that the nurse station was crowded. It was not suggested that the defendant needed to talk to Chui at that time, or that the Defendant needed to stand behind PW3 at such a close distance. The Defendant must have intended to use his penis to press against PW3’s buttocks. It is indecent, and it is deliberate.” [39]

94.  The magistrate then went on to deal with Charges 5 and 6, the outraging public decency charges.  In respect of the “public place” element of these charges which, it will be recalled, dealt with a staff rest room and a nurse’s station, he said:

“Public can gain entrance to the resting room and the nurse station through the corridor of Ward G8. No warnings were placed which denied public access to the resting room and the nurse station. Nor the resting room and the nurse station were sealed off.” [40]

95.  He then directed himself on the common law meaning of public place “as a place to which the public can go to that place at the invitation of the occupier or whether payment of money is required to gain access to that place: see R v Kane [1965] 1 All ER 705 at p.709A-B.” [41]

96.  By application of this test he concluded:

“The Hospital must be a public place. The resting room and the nurse station at Ward G8 were places inside the Hospital to which the public had access to. I am satisfied the restroom and the nurse station at Ward G8 is a public place. In fact the defence did not contend otherwise.” [42]

97.  He then turned to the facts of the charges, commencing with Charge 5 which involved PW2.  This was the incident in the staff rest room when the appellant sought PW2’s help to pin the waist of his trousers.  He accepted the evidence of PW2 finding that the appellant used both of his hands to pull his pants wide open, and by so doing he exposed his penis and pubic hair to her.  He said he was satisfied that his actions “were capable of being seen by the healthcare assistant who was present in the restroom.” [43]

98.  In respect of Charge 6 he found that inside the nurse’s station of Ward G8 the appellant “exposed his penis and pubic hair to Chui by pulling his pants wide open as Chui described.” [44]

99.  On the appellant’s intention and the possibility of the exposure being accidental he said:

“It was not the case that Defendant’s pant suddenly fell down because it was too loose. It was not that the case that Defendant was tidying up his own clothing and somehow exposed his male genitals in front of Chui. It was a deliberate act. It was an act with such a lewd character that outrage public decency.” [45]

100.  In respect of Charge 6 which occurred at the nurse’s station of Ward G8 the magistrate noted that the station itself was an open area and that “People in the corridor of Ward G8 were able to look inside the nurse station through the mirror above the nurse counter.” [46] He found “There were other staff members of the hospital working inside the ward and nurse station”.[47]  He concluded that the appellant’s act of pulling wide open his pants “was seen by PW3 and capable of being seen by at least the staff members inside the nurse station and the people at the corridor.” [48]

101.  He then expressed himself satisfied beyond reasonable doubt of the guilt of the appellant of Charges 1, 4, 5 6 and 7, but not of Charges 2 and 3, and convicted him accordingly.

The Grounds of Appeal

102.  There are ten grounds of appeal in the Notice of Perfected Grounds of Appeal.  In respect of all convictions the first ground of appeal complains that the magistrate erred in finding that the evidence of the complainants was not tainted by the prior discussions that they had with each other.

103.  Grounds 2 and 3 relate to the indecent assault charges (Charges 1, 4 and 7) and complain that the magistrate erred in finding that it was the appellant’s penis that they felt against them in each of their physical contacts and also erred in rejecting the possibility of accidental touching.

104.  In respect of Charge 1 in particular it is asserted in the fourth ground of appeal that the magistrate erred in accepting the evidence of PW1 and in the fifth ground of appeal in drawing the inference that the appellant had the requisite mens rea for the offence.

105.  In respect of Charge 4 it is asserted that the magistrate erred in rejecting the possibility of accidental touching (sixth ground of appeal) and failed to resolve satisfactorily the inconsistency in PW2’s description of the appellant’s penis pressing against the middle of her buttocks (seventh ground of appeal).

106.  In respect of Charges 5 and 6 (the outraging public decency charges) complaint is made that the magistrate erred in making a finding of intentional exposure in view of the inherent improbabilities of such conduct and other reasons.

107.  Finally, in relation to Charge 7 the appellant complains of the inherent improbability of the appellant committing the offence in the light of PW3’s reaction at the time of the offence and her failure to later complain of it to the hospital when she made a complaint of the incident that is the subject of Charge 6.

108.  These were the filed grounds of appeal.  However, at the hearing of the appeal I queried whether the elements of the offence of outraging public decency had been established on the evidence.  I was particularly concerned whether, in respect of Charge 5, the room in which the incident took place could be said to be a public place and, in respect of Charge 6, whether, on the evidence, it had been proven that the conduct was capable of being seen by two more persons who were present, even if they had not actually seen it.

109.  Counsel indicated that they wished to file supplemental written submissions on these issues and this was done.  As counsel have not sought a further opportunity to address me orally on their submissions and having read them and not felt the need for further oral submissions I have proceeded to the preparation of this judgment.

Discussion

110.  I intend to deal first with Charges 5 and 6 and with the issues of whether the public elements of the offence had been proven in both charges.  In my view they clearly have not.

111.  For the purpose of my consideration of these issues I shall assume, without deciding, that the other elements of the offence of outraging public decency have, on the evidence adduced in respect of each charge, been made out.

112.  The law in relation to this old common law offence was settled in England by the Court of Appeal decision of R v Hamilton [2008] 1 Cr App R 13 which has been followed in Hong Kong in HKSAR v Yeung Hin Kwong Stevens [2008] 2 HKCLRT 411.  This was the law on which the magistrate directed himself.  Neither party has sought to argue that these authorities do not represent the law of Hong Kong and that is how I intend to regard them.

113.  The public element of the offence requires that there be evidence of two matters.  The first relates to the nature of the place where the act takes place, that is, it must be a public place.  This requirement is satisfied either by the place being a place to which the public has access or the place being one which is capable of public view.  This latter aspect of public place gives the requirement considerable breadth for it extends it to places which by their nature are private places.  Examples are the balcony of a house which overlooks a public street, a private room which opens onto a public area and whose doorway is left open.

114.  The second requirement is that the act is capable of being seen by two or more persons who are actually present.  This is commonly referred to as the two person rule.  It does not require that people actually see the act; merely that the act be capable of being seen by those present and they must number two or more.

115.  In deciding whether this latter matter is proven the law is that it is only capacity to see that is relevant not whether the two or more persons actually saw.  There may be many reasons why a person does not see what is happening and such reasons may include having their back turned, speaking to another person, speaking on or otherwise using a phone or reading a book or other material.  None of these are relevant for all they show is that the reason a person did not see the act complained of is because he or she was distracted by something else.  The real question is if they had not been distracted and had looked to where the accused was, would they have been capable of seeing what he was doing?

116.  In respect of Charge 5 this means that the room where the act took place must either be a room to which the public have access or it must be a room which opens onto a public area and the door of it was open and there were two or more persons outside of it who were capable of observing what was taking place inside it.

117.  In respect of Charge 6 this means that the nurse’s station where the act took place must be a place to which the public have access or it must be a place which is sufficiently open that persons in the vicinity were capable of observing the act of the appellant within the nurse’s station and that there were, in fact, two or more such persons in a position to do so.

Charge 5

118.  In respect of this charge there was much argument as to whether the room in which the alleged act took place is a public place.  It is a room used as a linen and equipment room and that is, in fact, the label that appears on the door. However, it is also used as a room in which staff may consume food and drink. The photographs show that it contains a small table and some chairs and some bench space and some lockers.  There is a window but there was no evidence as to whether that enables persons outside to observe what is taking place inside the room.

119.  The evidence is that the door to this room was closed before the appellant and PW2 entered it but there is no evidence as to whether they closed the door after them.  One other person, a healthcare assistant, was in the room.  Given that the room was intended as a store room and that when used by staff was used as a private space it is reasonable to infer that it would normally be kept closed.  As a staff member was using it as a private space in which to consume her food it is reasonable to infer that the appellant and PW2 would have closed the door on entering.

120.  If it is not a public place then there would have to be evidence proving that the door was open, that outside the door the area was a public place and that persons outside this room in the public area could see into the room and see what the appellant was doing.  None of these evidential matters were canvassed with PW2.

121.  If it could be described as a public place then the second requirement, the two person rule, was satisfied by the presence of PW2 and the healthcare assistant.  I am satisfied from the photographs that the healthcare assistant was capable of seeing what the appellant was doing.

122.  So, for Charge 5 the issue is solely one of whether the first requirement of the public element was satisfied, ie that the room was a room to which the public had access or was a space which was capable of public view.  At trial, and for that matter on appeal, it was argued that it was a public place and both the magistrate at trial and the respondent on appeal sought by their argument and analysis to transform a room which, to me, is clearly not a room to which the general public have access, into one which they do.  Thus, the magistrate argued that as there was no notice prohibiting public access to the room and as it was not sealed off from the corridor and as the hospital was a public place and the room was a place to which the public had access the room must, therefore, be a public place.

123.  The problem I have with this argument is it assumes the whole of the hospital is a public place and that any area within the hospital to which entry is not prohibited is, by virtue of that reason, also a public place.  Firstly, it seems to me, very little of a hospital is a public place.  Public hospitals may be public buildings but that does not make them public places.  Lobbies and corridors of a hospital are public areas but little else.  Even wards are not public places.  They are places which only members of the public with a legitimate reason may enter and then only at specified times or with the permission of staff and only for the purpose of visiting a particular patient. Members of the public do not have any general right to enter a ward and perambulate up and down it as in a supermarket.  Hospitals are workplaces for doctors and nurses and others and a place where even the patients enjoy rights of privacy from the general public.  In such premises the position is not that everything is accessible to the public unless otherwise indicated; rather it is the reverse – nothing is accessible to the public unless permission is explicitly or implicitly given.  By no stretch of the imagination or twist of mental gymnastics could it ever be said that a storage room or an employee rest room in a hospital was a room to which the general public had a right of access.

124.  For these reasons I am not persuaded by the respondent’s argument that I should find the whole of the hospital to be a public place.  That being so the cases on which the respondent relies, namely Cawley v Frost [1976] 1 WLR 1207 and HKSAR v Pearce [2005] 4 HKC 105, are to my mind, quite distinguishable from the facts before me.

Charge 6

125.  The only issue here is the purely evidential one of whether it had been proven that two or more persons were present who were capable of seeing the appellant’s act.  Having found that people in the corridor of Ward G8 could see inside the nurse’s station, the magistrate proceeded to make the following finding:

“There were other staff members of the hospital working inside the ward and nurse station.” [49]

126.  He then found that the appellant’s act was capable of being seen by at least one of the staff members inside the nurse’s station and the people at the corridor.  Were these findings consistent with the evidence?

127.  The only evidence on this issue came from PW3.  What follows is all her evidence on this issue.  Firstly in chief:

“Q. I see. Was there any other colleagues around you at that time?

A. No.

B I’m not talking about this table, I’m talking about the area of the nurse station.

A. There would be colleague, or colleagues there, but they would not be able to see what was happening inside.

Q. What do you mean by “inside”?

A. Nursing station.

…

Q. All right, think carefully before you answer me, was there any other person, apart from you and the defendant in this nurse station area?

A. No.

Q. Then how about other area nearby, the corridor, the patient wards, were there any other persons?

A. There should be four or five staff members in the ward. At that time none of them was at the nursing station.

Q. I see, but were they around?

A. When looking outside from the table at the station, when looking at the bed or beds, I did not see that there were colleagues.

Q. Where were they?

A. Because there were still the first cubicle and the third cubicle, and there were also rooms outside, and it was possible that they separated and worked individually.

Q. Then were they far away from the nurses station, or not ‑ not very far away, what would you say?

A. In the ward, how would you describe “far”?

Q. Then how far was the patient from the nurse station?

A. With only a corridor in-between.

Q. Then how wide was that corridor, roughly speaking?

A. I don’t know how to … (indistinct) here.

Q. To?

A. This bench to here.

COURT: About three to four feet?

Q. Three to four feet?

A. Hmmm, “hai”.

Q. And am I right to say that there were also patients in the patient’s ward?

A. Yes.” [50]

128.  Prosecuting counsel recognized the importance of her answers to his ability to prove the legal elements of the offence and so he returned to this issue towards the end of his examination-in-chief.  He wanted to probe the witness as to whether she needed to refresh her memory and after an interchange between he, Mr Harris and the magistrate he proceeded as follows:

“Q. Still, my question to you is, do you need any assistance to refresh your memory before you can say you are certain that whether there were any person in that area, apart from you and the defendant, or without any assistance of anything, you can tell us right away now, whether there was any person.

A. I remember at that time the defendant and I were there. But from -- at the desk, at the computer desk it’s shown in photo 11. Well, even if there were colleagues there, they would be facing the computer. I am not sure whether there were colleagues because I don’t really remember.

MR MAN: I see, I would not press for any further -- I have no further question to you, thank you.” [51]

129.  Mr Harris then commenced his cross-examination and pursued the same issue.  He referred PW3 to her police statement and she clarified that her reference to other colleagues were to persons outside the nurse’s station.  The following is the relevant part of her cross-examination:

“Q. We might have understood you to be saying earlier that you couldn’t remember whether or not there were other colleagues in the nurses’ station.

A. Yes.

Q. To the extent that there might have even been a suggestion that it was only Dr So and you alone in the station at the time?

A. Well, in fact, regarding the colleague mentioned here, with his or her back to me, I was talking about the colleague outside, and I can be very sure to tell you that. At that time in the station there was only me with the defendant in the station.

Q. I thought you said just a few minutes ago that you told us that you couldn’t now remember whether there was anyone else in the nursing station at the time.

A. Initially you asked me whether I was sure, but when I read this statement and I remember that, actually, I said even if there were people, they would be having their back to me.

Q. But you then went to say, “But I can’t remember if there was anyone there at the time”. Do you remember? We can play the digital recording back if you want to hear it?

A. Even if there were people at the station, they will be having their back to me. They will not able to see what had actually happened, whether they were there or not. They will not be able to see what had actually happened.

Q. Can you remember whether anybody else was in the station?

A. I now remember that there was no one else.

Q. In fairness to you, when you made your second statement on 19 December, you were asked specifically by the police officer whether anyone else was present at the scene when the incident occurred, and you answered, “No, there were just the two of us, Dr So and I at the time”. Would you like to look at that statement as well, that’s dated 19 December? And the relevant passages, question and answer no. 6, which I think you’ll find on page 2.

A. I can see that.

Q. So why are you saying today, even if there was anybody there, they wouldn’t have been able to see what happened.

A. Because, regarding the things which happened to me, there were two related to the defendant. Well, because regarding the second incident, there were some colleagues in the station.

Q. We’re not talking about the second incident, and we have never been talking about the second incident in this context, Miss Chui, we’re talking about the first incident, the exposure of the pubic hair.

A. Yes.

Q. Is the true position this - and please be frank with us - that you cannot now remember whether anybody else was there, but even if they were they wouldn’t have been able to see what happened, is that the true position?

A. I can tell you surely that when these thing happened, there were only me and the defendant. Whether there were any colleagues outside the ward, and even if there were colleagues, they would be having their backs to me and they were not able to see the happening of the incident.” [52]

130.  That is the whole of the evidence given by PW3 on this issue.  Clearly, the nurse’s station is not a public place but it may be a space, as the magistrate found, that was capable of public view.  Assuming, without deciding, that on the evidence that was a finding open to him, was there evidence sufficient to prove the two person rule?  The effect of PW3’s evidence is that there were no other persons within the nurse’s station.  There may have been colleagues outside the nurse’s station but even if there were, they would not have been able to see what the appellant did.

131.  This evidence goes nowhere near to positively proving the two person rule aspect of the public element of the offences.  PW3’s testimony is insufficient to prove even that two or more persons were present let alone that such persons were capable of seeing what the appellant was doing.  On this issue of whether the appellant’s actions were capable of being seen, account must be taken of where, within the nurse’s station, he was doing what was alleged, and how covertly he was doing it.

132.  On the first issue of whether there were, in fact, other colleagues around the evidence of PW3 is quite speculative and is quite insufficient to positively prove that there was at least one other person present.  On the capacity of persons outside the nurse’s station to see what the appellant was doing there was simply no evidence at all.

133.  For these reasons the convictions in respect of Charges 5 and 6 must be quashed and the sentences set aside.

The Indecent Assault Charges

134.  The first ground of appeal raises a complaint in respect of all the indecent assault charges and it relates to the way that the magistrate dealt with the evidence of the complainants that they had discussions with each other about their experiences with the appellant prior to making any official report about them.  This was the key issue in the trial and the importance of it was highlighted by the way Mr Harris conducted his cross-examination of the complainants.  In order to properly understand the significance of this issue and to gauge the adequacy of the magistrate’s reasons in resolving it, I have felt it necessary to set out the evidence in some detail.

135.  All the incidents other than the incident the subject of Charge 1 were endured by the complainants without any of them reporting them.  The first report was made by the complainants only after PW1 had spoken to them about her latest incident.  This latest incident was the subject of the third charge and it was one of the charges of which the appellant was acquitted.  Ironically, the ‘straw which broke the camel’s back’ for the complainants was a physical contact in respect of which the magistrate could not exclude an innocent or accidental touching.

136.  Thus, the position was that after each incident none of the complainants felt strongly enough to report them, and one of the complainants comforted herself that the contact may have been accidental.[53] All of the contacts were quite brief, all potentially explicable as accidental or innocent contacts, and frequently taking place in the presence of other colleagues or patients.  If accepted, the conduct was extraordinary on a number of levels – firstly because of its brazenness, secondly because of its nature and third because it was being alleged against a person whom the magistrate found to be of positive good character.  These were contextual elements relating to the offender and the offence which had to be borne in mind when evaluating the complainants’ evidence, resolving any inconsistencies in them and addressing the possible impact that their discussions with each other might have had on the reliability of their evidence.

137.  In addressing the possible impact that the various conversations might have had on the complainants’ credibility it is important to understand the point which Mr Harris was making.  He went to great pains to emphasize throughout the trial that he was not accusing any of the complainants of dishonesty or untruthfulness. His case all along was that his client’s actions had been misunderstood and that through their discussions together the complainants had become convinced in their own minds that incidents in respect of which they might originally have harboured a doubt were, in fact, incidents about which they now had no doubt were deliberate assaults.

138.  Essentially, Mr Harris was contrasting their perception of the physical contacts before their discussions with their perception of them after their discussions. He was suggesting that by comparing each others’ experiences they lost their ability to objectively perceive what had happened to them in each incident.  Furthermore, their determination to do something about the appellant and their action of becoming their own small support group would have had the further effect of strengthening their conviction that these contacts were, in fact, assaults.  Consequently, Mr Harris’ submission to the magistrate was not concerned with the truthfulness of the complainants’ recollections but with the reliability of them.

139.  Whether this, in fact, happened is not for me to say but it is clear from the evidence in the case that there existed a real possibility that it had and, in considering whether it had, the magistrate had to do so in the context that I have earlier set out, taking into account any unusual conduct, or inconsistencies that might have been revealed by the complainants’ evidence.

140.  One such important matter of which account would have to be taken is the fact that the complainants spoke to each other even on the first day of trial. It is not enough for the magistrate to simply say that he accepted their word that they did not speak about their evidence for the significance of their continuing contact was not because it suggested collusion but rather because it showed that the extent to which they were a support group for each other.  This apparent desire to remain united and resolute was something which had to be considered when evaluating their evidence.  It could possibly influence the complainants by perhaps reinforcing their views that the incidents were deliberate assaults or removing any doubts they might have previously had about them.  Furthermore, this type of influence is particularly dangerous for it is an unconscious influence whose effect could be to make the complainants appear more confident as witnesses.

141.  Unfortunately, the manner in which the magistrate treated this issue was brief, simplistic and superficial.  It was not just a very important issue but it was one that was redolent with subtle aspects to it.  Resolving it in a way favourable to the complainants required that it be discussed in far greater detail than simply making a finding that “their evidence was not tainted by their conversations or that they had colluded together”.  Indeed, just by referring to collusion suggests that the magistrate may not have fully understood what was being submitted by Mr Harris.  For he was not suggesting overt collusion by the complainants but rather that by sharing their experiences and consciously wanting to support one another, each lost her ability to look at her own incidents objectively.

142.  As is apparent from my comments I am of the view that the magistrate’s discussion of this important issue is inadequate in a number of respects and his finding on this very important issue cannot stand.  I am satisfied that the first ground of appeal has been made out.

143.  In the particular circumstances of this case my conclusion in respect of the first ground of appeal makes it unnecessary for me to consider the remaining grounds.  However, I do wish to discuss Charges 4 and 7.  These were the indecent assaults that were alleged to have occurred as the appellant moved past PW2 after having taken blood from a patient and the assault that PW3 alleged took place at the nursing station.

144.  The circumstances of Charge 4 were so extraordinary that the magistrate should have approached it with considerable skepticism and subjected it to very close scrutiny. Despite being strongly offended by the incident PW2 did not report it; most tellingly she agreed in cross‑examination that at the time she comforted herself that it was an accident; and, very worryingly, in her first police statement she made no mention of the crucial pressing movement of the appellant which was the crux of the assault and in effect eliminated the possibility of an accident.  As this is a rehearing I have to be satisfied beyond reasonable doubt of the guilt of the appellant.  On this charge I cannot be so satisfied and accordingly quash the conviction.

145.  The circumstances of Charge 7 also had disturbing features to it.  It was extraordinary in its commission in that it took place at a nurse’s station where other colleagues were present.  It was not immediately reported when it happened.  Furthermore, even when PW3 decided to complain to the hospital about the appellant’s conduct she mentioned only Charge 6 (an incident of outraging public decency) and not the indecent assault that is Charge 7.  She only reported it to the police when PW1 told her that the appellant “had done it again” and she then formed the view that something had to be done.  Finally, when PW3 was cross-examined by Mr Harris she gave an answer, quoted at paragraph 67 of this judgment, that appears to recognise that physical contact can be accidental but went on to deny that this was such a contact.

146.  Given the difficulties with PW3’s evidence and the contextual matters to which I have already referred I cannot be satisfied beyond reasonable doubt on this evidence of the guilt of the appellant on Charge 7 and this being a rehearing I quash his conviction of this charge.

Conclusion

147.  The convictions for outraging public decency, Charges 5 and 6, arise from a misapplication of the law.  On the facts proven by the prosecution the offences were not, as a matter of law, made out.  I quash these convictions and set aside the sentences in respect of them.

148.  I quash the convictions for Charges 4 and 7 and set aside the sentences imposed in respect of them as, on the evidence adduced at trial, I am not satisfied beyond reasonable doubt of the guilt of the appellant of those charges.

149.  That only leaves the indecent assault that is the subject of Charge 1.  I have found that ground 1 of the Perfected Grounds of Appeal has been established.  The magistrate has not properly evaluated and analysed the evidence or adequately explained how he resolved issues relating to the complainants.  His failure here affected his assessment of the complainants’ credibility and here I am referring to their reliability and not their honesty or truthfulness.  Even though this is a rehearing I cannot, for the reasons I have given, rely on the assessments of the magistrate of the complainants’ credibility and I am not in a position, simply by reliance on the transcript, to form my own view of their credibility.  That being so I quash the conviction of the appellant on Charge 1 and set aside the sentence imposed in respect of it.