HKSAR v. LEE SOU LEUNG

HCMA801/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.801 OF 2007

(ON APPEAL FROM TWCC 1239 OF 2007)

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J U D G M E N T

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1. This is an appeal by the appellant, a 63-year-old businessman, against his conviction by Mr Albert Wong on 7 August 2007 on a charge of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap.200, and the sentence of 12 days’ imprisonment imposed by the magistrate.

2. The charge alleged that on 5 September 2006 inside the Vanilla Pod Spa room of the Victorian Spa at the Hong Kong Disneyland Hotel the appellant had indecently assaulted the complainant, Miss Shum Wing Po.  Miss Shum was a 23-year-old trained masseuse employed at the spa.

3. The magistrate heard evidence that the appellant had had two pervious massages at the same spa.  A few days before the incident in question the appellant and his wife and two daughters had stayed at the hotel from Tuesday, 29 August until Thursday, 31 August.  On 29 August the appellant had received a massage at the spa but not from Miss Shum.  Early the following morning the appellant had taken his two daughters to the spa where their fingernails had been painted by Miss Shum.  During the course of the nail painting there had been conversation between the appellant and Miss Shum about massages for men.  Following the nail painting the appellant had gone to the reception desk and booked a 50-minute session of full body massage for himself at noon that day with Miss Shum.  That massage had taken place.  Although Miss Shum alleged that on more than 10 occasions during the massage the appellant had grabbed her hands when she had touched his hands, that does not form the subject matter of the charge before the court.

4. On the following Tuesday, 5 September 2006, the appellant made a telephone appointment with the spa from his office and booked two sessions of body massage, one scrub and one pedicure to be carried out by Miss Shum.  The treatment was to start at 12:30 p.m. that day.

5. When the appellant met Miss Shum he was wearing a bathing robe provided by the spa and his own underpants.  Miss Shum asked him if he would wear the underpants provided by the spa but the appellant had said that he would wear his own.  The session had started with scrubbing treatment.  After Miss Shum had poured massage oil on his back, the appellant had asked if he could remove his underpants to avoid them being stained.  She had told him that this was not permitted and had given him underpants provided by the spa, into which he had changed.  Initially the scrubbing treatment had been to his back and then to his front.  During the course of the scrubbing treatment the appellant had grabbed one or both of her hands about four to five times when she touched his hands.  This grabbing had sometimes been light, sometimes tight.  In response she would gently move his hand away from hers.  After the scrubbing treatment the appellant had taken a shower.  According to Miss Shum, although this was denied by the appellant, the appellant had not closed the door of the shower cubicle when showering.

6. The massage treatment had then commenced, initially on the appellant’s back and then on his front.  He had continued to grab Miss Shum’s hand or hands whenever she touched his.

7. He had originally booked a treatment for his nails but when he learnt that it would have to be carried out in an open area the appellant had indicated that he did not like the lack of privacy there and was too tired to move.  Instead he asked for a facial massage to be carried out in the same private room.

8. After Miss Shum had gained the approval of the manager she started the facial massage.

9. This was carried out with the appellant lying face up on the massage bed and Miss Shum sitting close behind the top of his head about 6 inches away.  It was during this treatment that the conduct that constituted the alleged indecent assault occurred.

10. The learned magistrate said this :

“115.   I found that the Appellant had behaved as PW2 [Miss Shum] testified.  During the massage the Appellant did grab her hand many times when their hands came into contact.  When she was performing facial treatment, the Appellant grabbed her hands and tucked them under his shoulders.  He then turned his head sideward and kissed her forearm.  After that, he moved his hand and brushed upward along her arm until he touched her body.  PW2 managed to retrieve her hands, she told the Appellant to relax and continued the face massage.

116.   Then the Appellant repeated this course of action once again.  When PW2 withdrew her hand, the Appellant asked if time could be extended and other massage treatment was available.  PW2 said she had to ask the management and took the opportunity to leave the room.”

11. Miss Shum had demonstrated that the appellant had ultimately touched the right side of her body at chest level.

12. The magistrate went on to discuss whether it was possible that the grabbing of Miss Shum’s hands by the appellant was the result of a reflex action which the defence expert witness said sometimes caused a curling of the fingers of a person whose hand was being massaged.

13. He commented :

“      Such grabbing, without more, cannot in any way be said to be indecent, in the circumstances of the case.  However, put in context, it showed that the conduct of the Appellant was progressive.  First, grabbing of hand, then kissing of the forearm, followed by brushing of the whole arm until the hand touched the side of her body at chest level.”

14. The magistrate concluded that he was satisfied that the kisses and other physical contact by the appellant were not the result of an accident or any unintentional touch but were deliberate.

15. He said :

“      Applying the standard of a right thinking person, I found that such course of conduct was indecent, it amounted to an affront to the sexual modesty of a woman.  It was sufficiently offensive to contemporary standards of modesty and privacy as to be indecent.”

16. Mr Macrae has advanced a number of grounds of appeal on behalf of the appellant.

17. He initially drew the court’s attention to what he described as “a puzzling feature” in the magistrate’s Statement of Findings.

18. A colleague of Miss Shum, Miss Leung Oi Lin (PW3) gave evidence of Miss Shum’s distress after the alleged incident.  She said Miss Shum had come into the staff room and had said that the customer wanted “one more treatment”.  On looking at her Leung Oi Lin had noticed that Miss Shum’s eyes were red and then Miss Shum had “cried badly” and told her what had happened.  The magistrate commented that one inference that could be drawn from Miss Shum’s distress was that it was because of the alleged conduct of the appellant, but he then went on to say that he “did not think it was the only irresistible inference to be drawn and in the light of Leung Chi Keung v. HKSAR [2005] 1 HKLRD 425” he “disregarded this aspect of the evidence”.

19. Mr Macrae argued, although perhaps somewhat tentatively, that this might suggest that the magistrate had come to the conclusion that there might be some other reason for Miss Shum’s distress.  I am satisfied that what the magistrate was doing in this passage was not stating his final conclusion as to the significance of Miss Shum’s distress but simply stating that the evidence of distress alone did not irresistibly lead to an inference that the appellant had committed the acts complained of.

20. The principal grounds of appeal focused on the way the magistrate dealt with three aspects of Miss Shum’s evidence which Mr Macrae argued, precluded a conviction based on her unsupported account.

21. The first aspect was the evidence of the reaction or lack of reaction by Miss Shum to alleged conduct on the part of the appellant.  Despite the appellant having grabbed her hands on a number of occasions on 30 August, her reaction had simply been to tell him to relax and not be nervous.  Despite this conduct she had been prepared to accept the second appointment with him on 5 September.  He had again grabbed her hands from time to time during the scrub and massage on that day.  Despite that she had not complained of his conduct when she went out of the room to consult the management about the appellant’s request to change the remaining part of his treatment from manicure/pedicure to a facial treatment, nor had she complained to the appellant, although she did say that whenever he grabbed her hands she would “throw” them away.  Furthermore she did not immediately leave the room after the first kissing and touching by the appellant but simply told him to relax and put his hand or arm back onto the bed.  Only when the conduct was repeated did she leave the room and then run back to the staff room.  She said that her reaction when she was with the appellant had been to tell him again to relax and “put his hand or arm properly”.  She had not scolded him.

22. Having agreed that Miss Shum’s lack of reaction could be viewed as an indication that there was nothing wrongful in the appellant’s conduct, the magistrate went on :

“      ... However, I was also of the view that the reaction of PW2 (Miss Shum) had to be considered in the light that she was a relatively green, though sufficiently trained, massage therapist serving in a high class spa where the comfort and respect of clients are of primary concern.  The alleged acts fall short of what which must have called for a stronger reaction.  When the situation where she needed to consult the management arose, she took the opportunity to leave the room.  I did not consider what PW2 said she had done in reaction something not within the reasonable scope in the circumstances.”

23. It was submitted that the considerations advanced by the magistrate to explain Miss Shum’s lack of reaction were not founded in evidence.

24. I do not find this submission to be well founded.  Although Miss Shum was not asked and therefore did not explain why she had not confronted the appellant or complained about his conduct earlier, the magistrate was entitled to draw common sense inferences from all the circumstances.  It is common sense that in a respectable establishment like the one in question a masseuse would not wish to confront a client or complain to the management especially when the client’s conduct was still equivocal.  Even when the conduct clearly overstepped what was proper, it might well be understandable and even advisable if the conduct was not particularly serious for the masseuse to ignore it or deal with it diplomatically in the hope that the client might get the message and desist rather than provoke a confrontation.  This course was particularly understandable when the staff member was young and relatively inexperienced like Miss Shum.

25. When the appellant had grabbed her hands Miss Shum had told him to relax and had put his hands back on the bed and had pushed his hands away.

26. She did in fact give an explanation for her failure to scold him after he had brushed his hands against her chest.  She said that she was frightened and that she did not know what to do.

27. I find that the magistrate’s comment that “when the situation where she needed to consult the management arose she took the opportunity to leave the room” perfectly justifiable.  That is what she said she did.  The appellant had asked whether there was any other forms of massage he could receive.  She had said there were probably not and, in her words :“Then I took this chance to go out and ask the manager for him”.  From the context it is clear that what she meant was that she used the pretext of asking the manager as a chance to leave the room.

28. The second aspect of Miss Shum’s evidence and the learned magistrate’s handling of it relied upon by Mr Macrae was the inconsistency between Miss Shum’s evidence in the first trial and in this second trial as the number of times the appellant had kissed her.  Mr Macrae argued that there was an inconsistency as to the actus reus of the alleged offence rather than as to a peripheral matter and that the magistrate did not adequately deal with it.

29. Before turning to the manner in which the magistrate dealt with the matter it should be borne in mind what the alleged inconsistency was.  In this trial Miss Shum had given evidence that there had been two occasions that the appellant had kissed her on the forearm and touched her in the chest area.  On the first occasion she said he kissed her twice on the forearm and on the second occasion she said he again did the same.

30. It was not suggested in cross-examination, or by Mr Macrae before me, that at the first trial Miss Shum had not said that there were two occasions that the appellant had kissed her forearm.  It had simply been put to her in cross-examination that at the previous trial she had at one point during her narration referred to the appellant planting not two kisses but one kiss on her forearm.  She said that she could not remember giving that answer in the previous trial.  It was not disputed that she had given that evidence in the first trial.  In re-examination she said that what she had said in this trial was true.

31. It can be seen therefore that the inconsistency was not a fundamental inconsistency as to the nature of the alleged assault by the appellant but as to a detail, namely as to how many kisses he had planted on her forearm on one of the two occasions which he had kissed her there.  It is something that an honest witness could easily forget.

32. In any event I consider that the magistrate dealt with the inconsistency as to the number of kisses perfectly properly.  He pointed out that memory can be affected by many factors and that kissing had consistently been part of Miss Shum’s allegation.  He said that there was no suggestion that her present evidence was inconsistent with the witness statement which she had given.  He said that having considered the whole of the evidence he did not consider this matter by itself was so material that it would adversely affect the overall credibility of Miss Shum.

33. Mr Macrae has suggested that, by his reference to the fact that it had not been put to the witness that the evidence was inconsistent with her witness statement, the magistrate must have unjustifiably inferred that Miss Shum’s witness statement was consistent with her evidence in court as to the number of kisses planted by the appellant on her arm.  I do not accept that that is a necessary inference from what the magistrate said.  The fact that it was not suggested that there was an inconsistency with her witness statement was a relevant consideration in assessing her credibility and accuracy.

34. The third aspect of Miss Shum’s evidence relied upon by the appellant was said to be the inherent improbability of the appellant being able to kiss Miss Shum in the manner she described, bearing in mind the evidence of Ms Carla Bekker-Smith (DW2) who was called by the defence and accepted by the court as an expert in massage therapy.

35. Ms Carla Bekker-Smith gave evidence that in administering a shoulder massage on a patient lying on his back using what she described as “a good technique practice” when the masseur’s hands were under the patient’s shoulder blades the masseur’s elbows should always be supported on the bed to be able to apply that technique.  In consequence the whole of the masseur’s forearm would be flat on the bed.  She said that it would be “very difficult” indeed “virtually impossible” in such circumstance for the patient to kiss the masseur’s forearm or any part of the masseur’s arms even though his head was on a pillow if his arms were under his shoulder blades because the masseur’s arms would be lower than his ear.

36. The magistrate said that the evidence of Ms Bekker-Smith was highly relevant and he had taken it into account.  He said that he was convinced that “if the client lay flat on the massage bed and the therapist put her forearms flat and deep underneath his body, it was quite impossible for him to kiss her arm by turning his neck sideward.”  He added that the appellant had a back problem.

37. Nonetheless he went on to find that despite the evidence of Ms Bekker-Smith, kissing in the manner described by Miss Shum was not impossible.  I find that the basis for him reaching this conclusion was sound.  Ms Bekker-Smith’s evidence was predicated on the masseur adopting what Ms Bekker-Smith described as “good technique” in administering this massage and having her forearms lying flat on the bed.

38. Despite Ms Bekker-Smith having been present in court when Miss Shum gave evidence, Miss Shum was never asked whether her forearms were lying flat on the bed when the kissing occurred.  The magistrate was perfectly entitled to take note of the fact that this is not a case where Miss Shum had taken the initiative to place her arms in the appropriate position to administer the massage.  It had been the appellant who had tucked her hands under his body and she had not yet started the procedure.  Moreover he noted that the appellant’s head was on a pillow.  He concluded that Miss Shum’s arms were not necessarily flat on the bed in such circumstances.

39. It is significant that when Ms Bekker-Smith was asked whether it would be impossible for a patient to kiss the masseur’s forearms if the masseur’s forearms were not flat on the bed she replied that she had no experience of that. 

40. Furthermore the magistrate concluded that the description given by Miss Shum of how the appellant had kissed her did not exclude some movement of his body.

41. Her description, as it was translated at the trial, was that after the appellant had tucked her hands under his shoulder “he turned over his shoulder and kissed my right hand or arms twice.”  It was accepted at the hearing of the appeal that a more correct translation would have been “he turned his head and kissed my right hand or arm twice”.  Even with the amended translation, I am satisfied that the magistrate was correct.  Miss Shum’s description did not exclude some movement of the appellant’s body.

42. The magistrate dealt with the evidence of Miss Shum that when her hands were underneath his shoulder she felt great force from his shoulder.  He pointed out that movement of the appellant’s body could have created such a feeling.

43. I have considered whether Miss Shum’s evidence that she had had to use great force to withdraw either one or both of her hands was inconsistent with movement of the appellant’s body.  I am satisfied that it was not.  While a rolling of the appellant’s body to one side might have meant that it was unlikely that she would have had to use great force to withdraw both hands, the language used by Miss Shum left open the possibility that she might have only had to use force to withdraw one of her hands.  In any event if the movement by the appellant had been simply been a slight swivelling or twisting of his body while still lying flat on the bed in order to bring his mouth close to the appellant’s arm, he would still have been able to exert downward pressure resulting in her needing to use force to withdraw both her hands.

44. I am satisfied that the magistrate did not arrive at the conclusion that the appellant had kissed Miss Shum in the manner she described as a result of speculation.  He clearly found Miss Shum to be an otherwise credible witness who had no apparent motive for making a false allegation against the appellant.  He was dealing with a defence submission that what she had described was impossible.  He was bound to consider that submission.  He concluded that it was not.  He was entitled to come to that conclusion.

45. I am satisfied that the magistrate did properly evaluate the evidence of Miss Shum.

46. The remaining grounds of appeal relate to the magistrate’s assessment of the appellant’s evidence.  It is alleged that he gave “feeble, inconsequential and unfair” reasons for rejecting the defendant’s evidence.

47. I have carefully considered the matters put forward by the appellant and I do not find any substance in them.

48. Complaint is made about a reference made by the magistrate to the appellant having grabbed Miss Shum’s hand more than 10 times when Miss Shum had never suggested that the appellant had grabbed her hand that many times on 5 September.  It is important to put that reference in context.  The magistrate was discussing the issue of whether the grabbing described by Miss Shum could have simply been the reflex reaction described by Ms Carla Bekker-Smith and what the appellant had referred to as curling or tensing up.  The magistrate was apparently referring to a question put to the appellant at page 152 at Q of the transcript as to whether he had grabbed hold of Miss Shum’s palm over 10 times on 30 August when the appellant’s reply had been “not 10 times”.  The magistrate referred to this answer not because Miss Shum had alleged that the appellant had grabbed her hands more than 10 times on 5 September but to demonstrate that the appellant’s first reaction to the question was not to deny that there was a grabbing but to take exception to the number of times he had done it.  This was a legitimate point to take and did not amount to a misunderstanding by the magistrate of the evidence.

49. It was suggested that the magistrate was wrong to find the appellant evasive when asked about the medical form provided by the spa despite the evidence that his solicitors had unsuccessfully attempted to obtain a copy of this form from the spa.  Having looked at the appellant’s evidence about this aspect I find nothing to suggest that the magistrate was mistaken to form such impression.  I noticed in particular that having initially said that he was unsure whether he had signed such a form on 29 August, he later gave the fact that he had signed such a form on 29 August as the reason he said he had not gone through the form which Miss Shum had given him to sign.

50. The magistrate’s reasoning in rejecting the appellant’s explanation as to why he had physically placed Miss Shum’s hands under his shoulders on two occasions when he could simply have given her verbal instructions was also criticised.  I do not consider that the magistrate’s reasoning was unjustified bearing in mind the appellant’s position in relation to Miss Shum at the time and the fact that he had no apparent difficulty in expressing himself verbally.  Miss Shum was sitting behind his head while he was lying face up on the massage bed.  It would be much easier and more logical simply to describe what he wanted her to do rather than go through what must have been a complicated manoeuvre of physically placing her hands from behind him underneath his shoulders.

51. Furthermore I find no reason to believe that the magistrate was wrong in rejecting the appellant’s evidence that his conduct, which Miss Shum had described as repeated “grabbing” of her hands, was simply an automatic reflex action when his hand or arm were being massaged.  It was quite reasonable for the magistrate to point out that Ms Carla Bekker-Smith had accepted that massaging certain trigger points in the muscles might cause curling of the fingers but at no time had she referred to this reaction as grabbing.

52. I do not consider that the magistrate’s finding that the appellant was evasive during cross-examination on the issue of grabbing can be criticised.  Miss Shum had described the appellant as having grabbed her hands on a number of occasions.  Grabbing in that context connotes a grasping of her hands by the appellant.  The appellant described what had occurred as “tensing up” and then “curling” of the fingers when Miss Shum was holding his hands but he failed to answer a direct question when asked whether, intentionally or not, he had physically grabbed her palm.  Having considered the transcript I find that the magistrate was justified in concluding that the appellant had tried to avoid admitting having grabbed Miss Shum’s hand.

53. While it is fair to comment, bearing in mind Ms Carla Bekker-Smith’s evidence that one aim of massage is to release trigger points in muscles which may result in a twitch response, that the appellant might not have objected to the massage of areas that simply produced a reaction as mild as a curling of the fingers, it has to be borne in mind that Miss Shum’s evidence was not as to something that mild.  She said that on 30 August he had grabbed her hands tightly over 10 times.  She did not specify exactly how many times he had grabbed her hands on 5 September but said it was sometimes tightly and sometimes lightly.  I consider that the magistrate was right to conclude, bearing in mind that he found that the appellant was not a person shy to express his wishes that if that had been his response whenever he was massaged in that area he would have made it clear to Miss Shum that that was an area to be avoided.

54. I find that the magistrate considered this case properly and with great care.  There is nothing to suggest that the appellant’s conviction is unsafe or unsatisfactory.

55. I dismiss the appeal against conviction.

Appeal against sentence

56. In his reasons of sentence, the learned magistrate said that he considered that the conduct of the appellant by itself was at the “very low end of culpability” in this sort of case.  He accepted that the offence was not premeditated and that the appellant had not set out to commit it.  He further said that “the conduct by itself was not serious” yet he was of the view that despite these factors and the age and previous positive good character of the appellant a custodial sentence, albeit very short, should be imposed.  Having adopted a starting point of 14 days’ imprisonment he discounted it by two days to reflect the mitigating circumstances and passed a sentence of 12 days’ imprisonment.

57. No criticism whatsoever can be levelled of the magistrate for failing to consider the factors appropriate to sentence in a case of indecent assault.  In particular, the need to protect therapists working in similar establishments, the need to mark public abhorrence and the need to redress the sense of grievance of the victim are all factors relevant to sentence in a case of indecent assault.  He was correct to take these factors into account.

58. Having given the matter careful consideration, I am not, however, persuaded that these factors necessitated an immediate term of imprisonment in the circumstances of this case bearing in mind the minor nature of the assault and the appellant’s age and previous positive good character.  This was not a case of indecent assault committed on public transport where the Court of Appeal has suggested guidelines for sentence because of the prevalence of the offence and the difficulty of detection, nor is it a case involving breach of trust.  It seems to me that an important distinction between this offence and other more serious indecent assaults is that the actions of the appellant were probably rather clumsy and foolish attempts by the appellant to elicit a response from Miss Shum rather than being actions in themselves designed to give him gratification.

59. The conviction of the appellant is in itself the most powerful deterrent to others minded to indulge in similar behaviour.

60. In my view, this matter could more appropriately have been dealt with by way of a fine.  I am therefore setting aside the sentence of imprisonment passed by the learned magistrate and I substitute a fine of $10,000.  The fine is to be paid on or before 30 April 2008 and in default a sentence of 14 days’ imprisonment.

61. By consent that money may be deducted from the bail money of the appellant now with the court.