HKSAR v. KOTECHA, KRISHNA RAJESH

HCMA 502/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 502 OF 2016

(ON APPEAL FROM FLCC NO 3088 OF 2016)

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J U D G M E N T

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Background

1.  The Appellant was convicted of one count of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap 200 and section 12A(1) of the Aviation Security Ordinance, Cap 494 (as the offence took place on a plane during flight), after a trial before Magistrate Mr Wong Kwok Fai, Raymond (“the trial Magistrate”). The Appellant was fined $10,000.  He now appeals against his conviction.

2.  The Appellant and the complainant (“PW1”) were on board an aircraft of Lufthansa German Airlines from Munich, Germany, to Hong Kong on 6 July 2016.  They were in economy class sitting on adjacent seats.  PW1 was an expatriate living in Hong Kong and was then 15 years old.  The Appellant aged 22 and was a fourth year medical student at the Western Sydney University.  He was at the time intending to transit in Hong Kong on his way home to Australia after a family holiday.  Both were travelling alone.

3.  The Prosecution’s case and the Defence’s case have been succinctly summarized by the trial Magistrate in his Statement of Findings as follows:

“Prosecution’s Case

9.  At the material time, PW1, a girl aged 15, took the flight LH730 alone from Munich to Hong Kong. When she reached her window seat, 53K, she noticed an Indian male (the defendant) was already on the aisle seat, 53H, next to hers. The defendant offered assistance to put her hand luggage in the overhead compartment. She said ‘No, thanks.’

10.  Two hours later, the meal was served. After that, the cabin light was off. PW1 fell asleep. She later found that her head laid on the right shoulder of the defendant. Defendant had put his arm around her from the back of her neck with his hand landing on her hands which were resting on her stomach. Though there were some body movements, this gesture maintained for about two to three hours. In one time, she felt defendant’s hand brushing her right breast once. She fell confused, uncomfortable and embarrassed but not violated. It was the first time she encountered such situation. She did not do anything.

11.  Later, the defendant left the seat to toilet. She then leaned to the right against the window with her left buttock exposing from the seat. Some time later, she felt a hand touching her left buttock. She then adjusted her body to the left with her left buttock touching the surface of her seat. The hand then moved to the outer side of her left thigh and remained there for about five to ten minutes. Until the cabin light was on, the hand withdrew from her body. She found the one sitting next to her was still the defendant. The defendant stood up and left the seat. On this occasion, she felt violated. She went to the rear to look for the cabin crew where she cried and made a complaint to the cabin crew.

12.  Under cross-examination, she admitted some photographs, namely, the D1, related to her and her friends as posted in her social websites. She agreed taking alcohol and visiting the pubs or bars in Lan Kwai Fong for some occasions but she did it only with her friends every time and not her alone.

Defence Case

13.  Defendant, aged 22, was a fourth-year medical student in a university in Sydney. At the material time, he took the same flight to Hong Kong where he would transfer to another flight to Sydney. When he took the 53K aisle seat, the window seat on his right was still vacant.

14.  He noticed PW1 coming on board quite late. He offered assistance to her to put the hand-luggage but she said, ‘No, thanks.’ Later, she requested the cabin crew for water but was not served with. He then passed his bottled water to her who accepted with thanks.

15.  After the meal service, the cabin light was off. PW1 fell asleep and laid her head on his right shoulder for some time. When his shoulder got numb, he put his hand on the headrest of PW1’s seat. As he had taken water constantly, he went to toilet about once an hour.

16.  Later, the cabin light was on. He went to the toilet as usual. When he returned to his seat, he found PW1 missing. Later, he was approached by flight attendant. As requested, he wrote a letter, that is, P1, to explain what had happened before.

17.   For the whole incident, he did not put his hand around the back of PW1’s neck. He also did not touch PW1’s hand, breast and buttock.”

4.  The Magistrate found PW1 a credible and reliable witness and accepted her evidence in full.  On the contrary, he found the Appellant’s version “unbelievable” and rejected his evidence.  The reasons given by the Magistrate in rejecting the Appellant’s evidence consist of 5 paragraphs which are set out in full as follows:

“30.  On one hand, the defendant emphasized that he worked as a part-time teacher in Australia. He possessed the international police check and working-with-children check. So he was very cautious in dealing with children.

31.  On the other, for this occasion, he allowed PW1’s head lying on his shoulder for quite considerable time. Though he had such a similar experience in the past, it only related to an old man. However, for the present situation, PW1 was a young girl and was of different sex. She was a complete stranger to him.

32.  In my view, what he acted was quite contradictory to the cautious attitude towards children as claimed by him.

33.  In addition, if he simply allowed PW1’s head lying on his shoulder and did nothing, it was impossible for PW1 to fabricate a series of acts against him.

34.  Having considered defendant’s version, I find it unbelievable.  Accordingly, I rejected his evidence.”

5.  The Magistrate then moved on to consider the elements of the charge and concluded that the Appellant has committed the offence:

“35.  The prosecution must prove:

i) That the accused intentionally assaulted the victim;

ii) that the assault and the circumstances accompanying it are capable of being considered by right-mind person as indecent, and;

iii) that the accused intended to commit such an assault as referred to in (ii) above.

Consideration of Charge

36.  Having accepted and relied on the evidence of PW1, I found that the defendant did commit the acts on PW1 as she described.  However, for the one single brushing of the right breast, after taking into accounts the circumstances of the case, I was of the view that the possibility of accidental touch could not be ruled out. 

37.  As to the acts of touching the left buttock and the outer side of left thigh of PW1, I found it amounting to an intentional assault. 

38.  I also found that such an assault was capable of being considered by right-mind person as indecent.

39.  Finally, judging from the circumstances of the case, I found that not only the possibility of accidental touch could be ruled out but also an irresistible inference could be drawn by the court against the defendant that he did have the intention to commit the indecent assault on PW1. 

Conclusion

40.  Having considered all the evidence before the court, I found the prosecution had proved the case beyond all reasonable doubt. 

41.  I accordingly convicted the defendant as charged.”

Grounds of appeal

6.  On behalf of the Appellant, Ms Charlotte Draycott SC, advanced 8 grounds of appeal in the Perfected Grounds of Appeal:

“1.  There was no evidential basis to rule out the possibility of the Defendant’s touch being accidental and the Magistrate was wrong to do so.

2.  The inference that the Defendant had intended to commit an indecent assault was not the only one reasonably available on the evidence. Both parties had been intermittently asleep and an accidental touch was an obvious possibility in such a confined space.

3.  The Magistrate gave undue weight to the fact that he could see no reason why PW1 would fabricate a case against the Defendant when accident was an obvious explanation for the two different versions of events.

4.  The Magistrate was wrong to judge the case based on a finding that it was ‘impossible’ for PW1 to fabricate a series of acts against the Defendant when there was no evidential basis for doing so.

5.  The Magistrate was wrong to say that the Defendant had claimed a cautious attitude towards children. His evidence was of an unblemished history of contact with children both treating them as a trainee doctor over four years of medical training and tutoring them in his spare time.

6.  The Magistrate was wrong to dismiss this evidence and the Defendant’s positive good character merely because he had let PW1 sleep on his shoulder.

7.  There was an obvious risk that the Defendant would not be permitted to qualify or practise as a doctor following a conviction for a sexual assault on a minor. This was properly a matter that the Magistrate should have considered when assessing the Defendant’s credibility as he would be unlikely to jeopardise his chosen career for momentary sexual gratification.

8.  The Magistrate failed to take into account the implausibility of PW1’s evidence that the Defendant had put his arm around the back of her neck and ‘from all the way around my back onto my right hand’ which she said was on her stomach when she gave this position as an excuse for sleeping on the Defendant’s shoulder.”

7.  The 8 grounds of appeal can be conveniently categorized into 3 different groups.  Grounds 1, 2 and 3 relate to the defence of accidental touch, Grounds 4 and 8 relate to the credibility of PW1 and the Appellant and Grounds 5, 6 and 7 relate to the character evidence of the Appellant.

8.  Concerning Ground 4, the trial Magistrate was obviously right in saying that there was no reason for PW1to fabricate a series of acts against the Appellant as the Appellant was a stranger to her and there was no argument whatsoever between them during the whole incident.

9.  As for Ground 8, as submitted by Ms Vinci Lam[1], counsel for the Respondent, the point was not raised by the defence counsel[2] at trial despite seeing PW1’s demonstration of the posture in court and despite seeing the relative height or size of PW1 and the Appellant.  There is insufficient basis to suggest the evidence of PW1 in this regard is implausible.

10.  I shall discuss the remaining grounds altogether as it is my view that the issues of accidental touch and the Appellant’s character are inter-related.

Good character of the Appellant

11.  The Appellant was in the fourth year of a five year medical course having the ambition to become a surgeon.  In his spare time he had tutored about 100 children aged between 13 and 18 over five years in an education company in Sydney.  He has no previous criminal convictions and he held two documents namely, the National Police Check and the Working with Children Check, which were required by the Australian Government in order that he could carry out work as a doctor or medical student or a tutor.

12.  As mentioned by the trial Magistrate in his Statement of Findings, there were four letters concerning the character of the defendant produced at trial and the letters were given an exhibit number “D2”.  It is not clear in what way those letters had been produced in court but in any event, the trial Magistrate said he has also considered the letters of good character about the defendant in his analysis of the evidence.

13.  The four letters were written by Dr Stephen Chow, Dr William Kovacevic, Mr Eric Yu and Miss Thanh Trang Nguyen respectively.  They all sought to prove, by way of their written letters, the positive good character of the Appellant by telling the court what they observed him to have behaved as a medical student, a teacher and a boyfriend. 

14.  Dr Stephen Chow is a medical practitioner in Sydney and has been in the profession for 34 years.  He personally knows the Appellant as the Appellant and his son study at the same University in Sydney.  He knows the Appellant both personally and professionally.  The Appellant lives close to his family and studies with his son regularly and shares meals with his family.  As part of the Appellant’s medical education the Appellant spent a 5 week period at Dr Chow’s practice. Dr Chow wrote :

“I know Krishna to be a conscientious, of good character, hardworking and an honest individual through my many experiences with him in both personal and professional life. He is conscientious and always treated any patients that he spoke to with respect and dignity. He has shown a keen interest in learning and mastering his craft as a doctor. I have always known Krishna to be polite and respectful in my dealings with him. Krishna was well-liked by patients and staff, and always demonstrated characteristics that one would expect from a health care professional and maintained the high standards that are expected of individuals privileged enough to work as doctors.”

15.  Dr William Kovacevic is a medical registrar in Sydney.  He wrote:

“We first met in 2015 when Krishna started the clinical placement component of his medical degree, where I was one of his direct supervising doctors. Throughout his time in hospital, he demonstrated professionalism and respect towards all members of staff and patients alike. He was punctual, well-mannered, hard-working, showed initiative and responsibility, awareness of patient sensitivities and ethics, and was generous with his time to all members of our team, as well as with patients. Krishna demonstrated the qualities and values that are the same high standards that are expected of myself and my fellow doctors and will serve him well in his dream of becoming a surgeon.

Additionally, I have gotten toknow Krishna on a personal level from our interactions outside the hospital environment. In particular, we have bonded over our common passion for football (soccer) and have watched games together in a public environment. I have never witnessed any socially inappropriate behaviour from him and as far as I am aware, he has not been involved in any illegal or criminal activity.

In neither of the above contexts have I observed any physical behaviour, or verbal comments from Krishna, that would be deemed to be sexist/sexually inappropriate or indecent that would make me believe or reasonably predict that he would be capable of such action.”

16.  Mr Eric Yu is the Managing Director of an Education Company named “Talent 100”.  He has known the Appellant for 6 years during the period when the Appellant had been teaching high school students Mathematics, Chemistry and Physics in his company.  Mr Yu wrote:

“I’ve known Krishna for 6 years, the time which he has been employed at Talent 100 as a teacher. Krishna is responsible for teaching our students Mathematics, Chemistry and Physics. Krishna was employed at Talent 100 on the basis of his excellent school and university marks, communication ability, friendliness and nurturing character.

In the time that I have known Krishna, he has been nothing other than an exemplary human being. I have always found Krishna to be a law-abiding citizen with honest morals and professionalism. He is not only hard-working and well-behaved, but his genuine care for our high school students is inspirational.

Krishna is especially well known for his caring attitude towards students – he is known amongst the tuition centre for buying his students lunch, and chatting with them after class to monitor their studies and stress levels. Krishna forms genuine connections with his students – due to his nature as a person, and his training in medicine, he is able to empathise and care for each student. He is genuinely concerned for the welfare of his students – hundreds of students, both past and present, hold glowing endorsements for Krishna.

In addition to his work at Talent 100, I am aware that Krishna leads a well rounded life – he plays cricket and football (in addition to coaching children in these sports), performs in an orchestra, volunteers at a nursing home, and conducts charity work with the Australian Red Cross.  I understand that Krishna is involved in an indecent assault case, and that he will have a criminal record if convicted.  I was shocked to hear this, and firmly believe that a person of Krishna’s integrity would never conduct any criminal offence whatsoever.”

17.  Miss Thanh Trang Nguyen is a 4^th year physiotherapy student at the University of Newcastle in Australia.  She was the girlfriend of the Appellant between the period September 2012 and November 2015.  They were separated on positive terms.  Miss Nguyen had the following to say in her letter:

“I have known Krishna for almost 8 years; both as a friend, and as a boyfriend. We met during high school in 2007 and were in a relationship from September 2012, until November 2015. Our stable relationship ended because of increasingly extended time apart due to our commitments and extended clinical placements at our respective universities. Our relationship ended on positive terms, and I have-nothing but loving things to say about Krishna.

Krishna is an extremely loving and kind person. He has a gregarious nature, and is extremely gentleman like, and would not hesitate to make a sacrifice for me. He has worked extremely hard for all he has achieved, yet he always seemed to prioritise me. As a giving person, he is ready to give up his own time and personal comforts in order to see others achieve their potential – he finds the time to do charity work in addition to his sporting, musical and medical workload. My family can also attest to Krishna’s positive character – both of my parents approved of him as a partner, and were keen to include him in our family activities. They were very sad to hear that Krishna and I are no longer together.

I am aware that Krishna is involved in an alleged indecent assault case. Although we are no longer in a relationship, we are still very close friends, and I was in utter disbelief when Krishna told me about these allegations. During our relationship, and the entire duration of our friendship, Krishna has been extremely courteous, faithful and gentleman like. He was extremely loyal to me, and I have observed his behaviour with other women to be very modest and kind. He also has a great relationship with his students that he teaches. We would often encounter these students whilst on the street, and they would never hesitate to come and talk to Krishna and tell me what a lucky girl I am.

Having known him so well for almost a third of my entire life, I am very confident that Krishna would never commit a criminal offence, or any offence for that matter – it is simply far-fetched, and too out of character for him to do so.”

18.  Before I move on to discuss on the issue of the Appellant’s character, I shall take the opportunity to say a few words about the admission of this kind of evidence in a criminal trial.

19.  It is not the first occasion I encountered the situation where character evidence is produced or sought to be produced in the form of letters by merely marking those letters as exhibits by consent at trial.  I shall point out that this is not the proper way to adduce evidence of character witnesses.  If the character witnesses are not called to give evidence at trial, the proper way to adduce their evidence shall be under s 65B or 65C of the Criminal Procedure Ordinance[3] and the proper procedure thereof must be followed.  There is at present in our system no “short-cut” for admission of this kind of evidence. Whilst I note that letters of mitigation are often produced at the sentencing stage by merely handing over the letters for the court’s consideration, such practice shall not be extended to a trial proper where the rules of evidence are expected to be strictly adhered to.  

20.  Having said that, however, for the purpose of the present appeal I shall, in all fairness, take into account the contents of the four letters as it was the common intention of all parties at trial that they were to be considered as admissible evidence. In this regard, I shall treat the letters the same way as if they have been admitted under s 65B.

21.  Reading the contents of the letters and considering the submission of counsel for the Appellant at trial, it would be apparent that the main thrust of the Appellant’s argument then was the low propensity of the Appellant to commit the present offence.  In his closing submission to the trial Magistrate, counsel for the Appellant stressed that it is inherently improbable that a very proper young man like the Appellant would set upon a young woman he does not know sitting next to him in a crowded aircraft.  He also put much emphasis on the brilliant academic background of the Appellant and the fact that the Appellant has to undergo police checks before he can work with children and he has never had any complaint against him in the past five years when he worked with children and young women.

22.  Nonetheless, the trial Magistrate only dealt with the the Appellant’s good character briefly as follows:

“Defendant has a clear record. I remind myself of the case of Berrada regarding the credibility and the [lower] propensity to commit crime by a person of good character like the defendant. I have also considered the letters of good character about the defendant, namely, D2.”

23.  There is nowhere in the Statement of Findings touched upon the character of the Appellant apart from the above three sentences.  The trial Magistrate has made no reference to the contents of any the letters.

24.  In a majority of cases, the character of the defendant is usually not a significant issue and a simple direction along the line the trial Magistrate had given to himself would often be sufficient.  However, there are some cases where a trial court should give more consideration on the issue of character, in particular, where a defendant has adduced abundant evidence to prove his unblemished or exemplary character and the propensity of his committing the offence is put before the court as a central issue.  In such circumstances, sufficient reasons should be given by the court if the character evidence is in the end rejected or disregarded.

25.  In the present case, as I have mentioned above, trial counsel has put much emphasis in his final submission on the low propensity of the Appellant to commit the present crime. Besides, there was abundant evidence adduced to prove the good character of the Appellant and the evidence was not challenged at all by the Prosecution.  The character evidence adduced covered not only the general and professional conduct of the Appellant, but also his attitudes and behaviors towards young women as observed by people surrounding him during the previous years.  They are relevant to how likely the Appellant would commit the crime of indecent assault in an aircraft full of passengers and crews.  In my view, with respect, the trial Magistrate should have explained in more detail how he has dealt with the character evidence rather than to simply say that he has considered the same.

Whether the touches were accidental?

26.  The allegations against the Appellant initially included the touching of PW1’s breast.  This was apparently the most serious allegation against the Appellant at the beginning. However, it was not until PW1 testified at the witness box, in her examination-in-chief, that she told the court that the “brush” on her breast by the Appellant might have been accidental.  The remaining allegations against the Appellant were therefore, firstly, the touch on PW1’s buttock, which she described as: “his hand sort of rest, like holding my bottom” in her evidence; and secondly, the resting of the Appellant’s hand on the left side of her left thigh for 5 to 10 minutes.  During the whole process, PW1 had kept her eyes closed and did not see the Appellant.

27.  Ms Draycott submitted that there was nothing in the evidence which could justify the trial Magistrate’s finding that the touch could not be accidental, particularly when PW1 did not look at the Appellant when he touched her and he did not move his hand in a way that would suggest the touch was deliberate.  The movement of his hand to her thigh would be the natural consequence of her shifting her position if his hand touched her when he was asleep.  There was an obvious and competing inference that the touch could have been accidental such that it was wrong to draw an inference adverse to the Appellant.

28.  As submitted by Ms Draycott, the trial Magistrate did not provide details of his reasoning nor the evidential basis for his findings that the possibility of an accidental touch could be ruled out and that an irresistible inference could be drawn by the court against the Appellant that he did have the intention to commit the indecent assault on PW1.

29.  The trial Magistrate accepted the evidence of PW1 that the Appellant had touched PW1’s bottom and thigh as described by her.  I see no reason to doubt such findings.  However, the trial Magistrate cannot convict the Appellant unless he can be sure that the touches were not accidental and the Appellant possessed the necessary intention to indecently assault PW1.

30.  PW1 accepted in her evidence that she had laid her head on the Appellant’s right shoulder for some time.  In her evidence the Appellant had then put his arm around her from the back of her neck with his hand landing on her hands which were resting on the position of her stomach and this gesture had been maintained for about two to three hours.  It is also PW1’s evidence that the Appellant all along behaved gentlemanly and she did not feel being violated until she felt the Appellant’s hand resting on her bottom.

31.  The seats were each only 43cm wide.  The Appellant and PW1 had been in body contact for some hours and both of them dozed off intermittently during the journey.  It would only be natural that the Appellant would lower his alertness against touching PW1 accidentally in such circumstances.  Given the exemplary character of the Appellant as evidenced by the letters exhibited, adequate reasons should have been given to support the findings that the touches were deliberate and also that the Appellant intended to indecently assault PW1.

Conclusion

32.  In the premises, I am not satisfied that the trial Magistrate had given sufficient consideration to the character evidence of the Appellant and the possibility of the touches being accidental.  The conviction of the Appellant is therefore unsafe and cannot stand.

33.  As the present appeal is in the nature of a rehearing, I shall consider the relevant issues afresh. 

34.  The Appellant was travelling back to Sydney alone after a family trip to Europe for 2 weeks.  He had to go back first because his paediatrics rotation was due to resume on 10 July.  He was assigned a seat next to a young girl PW1.  The Appellant had been treating PW1 gentlemanly by offering to help PW1 with her luggage and giving her a bottle of water.  He also allowed PW1 to rest on his shoulder.  It is the prosecution case that he then took the chance to indecently assault PW1 by placing his hand on PW1’s buttock and thigh.

35.  As I mentioned above the seats were very narrow and both the Appellant and PW1 dozed off intermittently during the journey.

36.  According to the character witnesses the Appellant was all along a decent person who had been working with young women around and receiving no complaint whatsoever.  On the contrary, he was well known for his caring attitude towards students and he was described as being modest and kind with women. 

37.  I share Miss Nguyen’s view that it would be too out of character for the Appellant to have intended to take advantage of a young girl like this. 

38.  In the end, I cannot be sure that the Appellant deliberately touched PW1 and possessed the intention to assault PW1 indecently.

39.  The appeal is therefore allowed and the conviction and sentence be set aside.