HKSAR v. DULATRE, ROSIELYN ACOSTA

HCMA689/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 689 OF 2008

(ON APPEAL FROM FLCC 434 OF 2008)

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J U D G M E N T

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1.  This is an appeal against a conviction for an indecent assault by a Filipina amah on a 4-year-old child whom she looked after in the course of her employment with a Hong Kong family.

2.  The 4-year-old boy had complained to his mother that the amah had kissed him upon his penis.  The amah was interviewed and admitted doing that, but asserted that it was done in circumstances devoid of indecency.  Her case was that the kiss occurred as a display of natural affection in a way that her culture in the Philippines would not have found offensive or indecent.

3.  The appeal has been presented really on two bases by Mr McGowan.  The first is based upon a ruling by the magistrate that a gentleman called Professor Tan was not an expert qualified to give an opinion on the subject matter.  The magistrate decided that there was no body of knowledge sufficiently established upon which an expertise could be formed.  There was a voir dire.  The professor gave evidence.  What became apparent from that is that he had conducted himself no research into this matter, that there was no research into this matter, but that in the course of other research over the years into anthropological cultural matters in the Philippines he had come across it.  In other words, he had anecdotal evidence of displays of affection towards young children which included the conduct complained of here. 

4.  I agree with the view taken by the magistrate.  It raises an issue on appeal where Mr McGowan argues that, even though there may not be any discrete body of learning about the subject, the professor had acquired enough knowledge himself as to give opinion evidence.  However, when I asked what opinion was sought of the professor in the circumstances here, I received really no clear answer.  Mr McGowan, who did not appear below, acknowledges that what really was being sought was evidence of fact. 

5.  My view is that there was no opinion to be sought here.  There was evidence of fact that could have been adduced.  Looking at the transcript of what took place between Bench and Bar below, that distinction was appreciated.  The ruling that the magistrate made was limited to expertise.  The magistrate never ruled that evidence of fact could not be called.  So it would have been possible to adduce from Professor Tan his anecdotal evidence of what he had come across.  That was not done in the circumstances.  It is thus that the point taken on the appeal here is one that must fail. 

6.  The second basis on which the appeal was put was that the prosecution had not established the necessary intent.  We have all agreed here today in court that the mens rea for the offence can be described in this way: that it is the same mens rea as exists for an assault, with the addition that the prosecution must prove that the accused was aware that right-thinking people would regard the conduct as indecent. 

7.  Counsel for the respondent argues that applying the lips or the mouth to the genitals of a young child is an act of such a nature that it raises a very strong inference that an indecent assault had indeed taken place with the necessary mens rea.  That must be right.  It is conduct that most people in any society would regard as indecent. 

8.  The evidence to the contrary came from the appellant herself, and it seems to me that this appeal must turn on an assessment of whether her evidence was of a quality that it stopped the inference from running.  That is not to impose any legal burden upon her.  It is one that arises on the evidence. 

9.  So one then has to look at the evidence given by the appellant.  The magistrate found that it included assertions that he judged to be absurd.  The prominent one was an assertion that male strangers to a family could display affection towards a young female member of it by placing his lips  on her private parts, and that it is accepted culturally.  I share his view.  Obviously when it comes to credibility he had the advantage of seeing and hearing the witness.  If I thought he had come to an erroneous conclusion, of course I am free to find otherwise today at this re-hearing.  But when I look at the evidence and set it in context, my judgment is that the magistrate did come to the right conclusion.

10.  The respondent today points to various matters of fact which they say sit uneasily with the assertion of this being just an ordinary display of affection.  The first such matter is the tension between what the appellant said at trial, that this kiss was just one of a number of kisses which she was showering on the boy, when he had no clothes on, changing out of his uniform in the usual way when he came home from school. 

11.  The account given by the boy makes no mention of that.  Obviously I take great care, and I do not give too much weight to what a four year-old said in his video-recorded interview.  But it is a matter that  does not help the appellant.

12.  The next matter the respondent points to is the assertion made by the appellant that she would have acted in this way, in other words putting her lips to the four-year-old’s penis, in front of his parents.  I am bound to say I find that a difficult assertion to accommodate. 

13.  The third matter was to refer me to a line of cross-examination of the appellant taken below, which was that if this was a natural thing to have occurred why did it occur just the once.  If the boy is right about it, why did it occur in a way where he had said “No” to that first kiss to his private parts, and then she had offered to give him another kiss, to which he had said, “No.”  I do not place great weight on such matters of fact, but I look at them in this way, that there is nothing there that helps the appellant in her case. 

14.  The final thing that I have considered in judging the quality of her explanation of her conduct is this: that if this was something that was culturally acceptable because of the way such matters are viewed in the Philippines, then it is extraordinary that the courts in Hong Kong, as far as I am aware, have never heard a whisper of such conduct.  Over the last 25 years here, we all know the population of Filipina amahs has been very considerable.  The childcare that they have rendered here in Hong Kong has been massive, and the quality of that care, often in difficult circumstances as it related to young children in their charge, is something that we all know about.  If it were the case that displays of affection of this nature were culturally acceptable, I find it very surprising that it has given rise, as far as I am aware, to no friction in the past that has led its way into our courts. 

15.  It is thus, looking at the whole of the evidence, I judge the conviction to be a correct one, because the strength of the inference set up by the admitted conduct is truly strong, and the evidence that seeks to stop the inference running is subject to legitimate criticism which renders it weak.  On putting those matters onto the scales, I am sure the prosecution discharged the burden upon them of establishing the necessary criminal state of mind.

16.  For those reasons the appeal against conviction is dismissed.