HKSAR v. CHOI FEI NGAI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.661
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 24th September 1997, this Applicant was convicted of indecent assault contrary to s.122 (1) of the Crimes Ordinance Cap.200, following a contested trial in the District Court before Judge Davies. He was later sentenced to 15 months' imprisonment. He now seeks leave to appeal against his conviction.

2. The relevant particulars of this offence were that on or about 2nd May 1997, at the junction of Tai Tong Country Park Road and an unnamed road, this Applicant indecently assaulted a 14-year-old girl (the victim).

3. At the time of the offence the Applicant was 32 years old. Although he did not give evidence at his trial, he called a character witness who produced a letter signed by 37 other working colleagues of his who were other teachers in his profession. The victim was a student at the school where the Applicant was one of her teachers.

4. The prosecution's case at trial was that the Applicant had been caught in the very act of indecently assaulting the victim by the crew of a police vehicle that was patrolling the area. Although the victim gave a statement to the police which confirmed their observations, she went back on her allegation when she was called to testify in court. Having been treated as hostile, her evidence was neutralised by cross-examination. The judge found that "she was an unreliable witness and that no weight could properly be attached to any part of her evidence". It was in these circumstances that the judge, in convicting the Applicant, relied on the visual evidence of the police and the replies given by the Applicant at the time of his apprehension.

5. At page 10 in the Appeal Bundle line N, the judge summarized in his Reasons for Verdict the position in this way:

There then followed the first of the police officers (PW3) who said that at about 6:20 p.m. on 2nd May, he was the rear nearside passenger of the police van which was patrolling in Tai Tong Country Park, Tai Po. The van had climbed a hill in the park before turning left into an unnamed cul-de-sac, which itself was on a slight uphill gradient and a bend. As the police vehicle came to the apex of the bend, he saw a red car parked on the left side of the road with a man in the rear seat. As the police vehicle came abreast of the car, he saw that there was a female also in the rear seat. He saw that she had her head about level with the men's abdomen and he saw her head move up and then down. He had said that he also saw the man's hand under the white school dress of the female and that the hand was moving about.

The police then promptly stopped. He got out with the officer who had been sitting in the front passenger seat. This officer has also said in evidence that while they were getting out, the man in the car suddenly became aware of their presence and immediately pushed the female away. He then observed the man zip up his trousers and button his waistband while the female zipped up her dress. The other officer knocked on the window of the car and indicated to the occupants to get out. After they had done so, PW3 and the other officer (PW5) questioned the man, who is this defendant, near the front of his car while the female was taken away to the rear for questioning by a WPC (PW7).

PW3 has said that he first asked the defendant what his relationship was to the girl. The defendant's reaction was to drop his head and not reply. As a result, the question was put again to which the defendant replied the relationship was teacher and pupil. The defendant was then asked what he had been doing in the car and he replied that the girl had been performing oral sex on him and that he had fondled her.

PW3 said he then reported the result of his questioning to the sergeant who was leading the patrol. After the WPC had made her report to the sergeant, the sergeant instructed PW3 to arrest the defendant for having indecently assaulted a girl under the age of 16 years. In response to the caution, the defendant said, 'So Wing-man is my pupil. I always teach her to do her homework and as time went on, there was affection between us. That is why I did such wrongful things with her.'"

6. Later statements made by the Applicant were ruled inadmissible for the carefully expressed reasons which were given by the judge which demonstrate the great care and fairness with which this case has been approached.

7. The judge, at page 15 in the bundle, set out the basis of his finding of guilt in the light of the admissible evidence which had been given. He said:

"There remains the evidence of what the officers had observed at the scene. PW5 and PW7 have given evidence which I am satisfied is substantially consistent and reliable with regard to what they had each observed. PW5 has said that he had been the front seat passenger in the police van that evening. He had seen the defendant in the rear seat of the private car as they had driven up and that when the police car came abreast of it, he then saw the girl bending over the abdomen region of the defendant's body and moving her head up and down. He had also seen the defendant's hand under the back of the girl's dress. He has also said that when he was getting out of the van, he saw the defendant push the girl away and that the defendant had then zipped up his trousers and fastened his waistband while the girl zipped up her dress.

In this regard, the WPC has said that while the police van was abreast of the car, she had seen the girl bending over the defendant's thigh region before straightening up. She also saw the defendant zip up his trousers and the girl zip up her dress.

I am satisfied that these are witnesses of substantial truth, upon whose evidence I can rely for the truth of what occurred. I am satisfied that they saw what they have said they saw. On this part of their evidence alone, I am satisfied that there can be no other reasonable inference and that some form of sexual activity was taking place in the rear seat of the car between this defendant and the girl. To adult minds, it takes little imagination to conclude that that activity must have been oral sex.

So on this evidence alone, as I have said, I am satisfied beyond reasonable doubt that indecent assault has been proved. However, there is also the evidence of what the defendant said at the scene when first asked what had been happening in the car. This was just the sort of question that any reasonable person would have asked in these circumstances, that is, persons found alone in the back seat of a car. The reply to it was also just the sort of reply one might expect from someone who realised that the officers could have seen what had been happening inside the car and must, at the very least, have seen him and the girl zipping up their clothing.

I am satisfied that what the defendant said at this time was entirely voluntary and I found, on consideration of the special issue, no reason for the exercise of my residual discretion to exclude anything said at the time of arrest. I am satisfied that, believing that the police had seen the activity which had been taking place inside the car, the defendant admitted it."

8. It is with this background that the two remaining grounds of appeal have been considered, ground 3 having now been abandoned. Grounds 1 and 2 can conveniently be read together and they are as follows:

"(1) The judge was wrong in concluding that indecent assault was proved by proof of 'some form of sexual activity from which oral sex could be inferred.'

(2) The findings of the judge set out in his Reasons for Verdict did not support any conclusion that

(a) the Applicant had intentionally touched any intimate part of the girl to which by law she could not consent;

(b) the Applicant had used any hostility, compulsion, threat or gesture which would amount to an assault;

(c) he had intended to commit any indecent assault upon her."

9. In developing his arguments on behalf of the Applicant, Mr. Cheng Huan S.C., who did not appear in the court below, has advanced several propositions of law and these require consideration. He cited the case of Faulkner v Talbot, (1981) 3 All E.R. 468, where the English Court of Appeal upheld a conviction for indecent assault where a woman had touched the penis of a boy aged 14. At page 471 in the judgment of Lord Lane L.J., he said:

"An assault is any intentional touching of another person without the consent of that person and without lawful excuse. It need not necessarily be hostile or rude or aggressive, as some of the cases seem to indicate. If the touching is an indecent touching, as in this case it plainly was because the appellant took hold of the boy's penis, then the provisions of s.15 (2) of Sexual Offences Act 1956 come into play: 'A boy under the age of sixteen cannot in law give any consent which would prevent an act being an assault for the purposes of this section.' Consequently, the touching undoubtedly being indecent, the boy in this case, being aged 14, could not consent to it. It was intentional touching; it was touching without lawful excuse, and in view of s.15 (2) it was a touching to which the boy could not in law consent and therefore did not consent. Accordingly, as I see it, one has all the necessary ingredients of the offence of indecent assault."

10. So far as the position in Hong Kong is concerned, this is governed by section 122(2) of the Crimes Ordinance, which reads:

"A person under the age of 16 cannot in law give any consent which would prevent an act being an assault for the purposes of this section."

11. Faulkner v. Talbot was cited with approval in the House of Lords in R. v. Court, (1989) 1 A.C. 28 at 41H. Mr. Cheng Huan brings to our attention a passage in the speech of Lord Ackner which reads:

"It was common ground before your Lordships, and indeed it is self evident, that the first stage in the proof of the offence is for the prosecution to establish an assault. The 'assault' usually relied upon is a battery, the species of assault conveniently described by Lord Lane C.J. in Faulkner v. Talbot as 'any intentional touching of another person without the consent of that person and without lawful excuse..............

The judge in assisting the jury in his summing up as to the meaning of an indecent assault adopted, inter alia, a definition used by Professor Glanville Williams, Textbook of Criminal Law, 2nd ed. (1983), p.231: '"indecent" may be defined as "overtly sexual."' This is a convenient shorthand expression, since most, but not necessarily all, indecent assaults will be clearly of a sexual nature although they, as in this case, may have only sexual undertones. A simpler way of putting the matter to the jury is to ask them to decide whether 'right-minded persons would consider the conduct indecent or not.' It is for the jury to decide whether what occurred was so offensive to contemporary standards of modesty and privacy as to be indecent."

12. In the earlier speech of Lord Griffiths at page 34A, he said:

"By indecency is meant conduct that right-thinking people will consider an affront to the sexual modesty of a woman.

Although the offence of indecent assault may very greatly in its gravity from an unauthorised teenage sexual groping at one end of the scale to near rape at the other, it is in any circumstances a nasty, unpleasant offence for which a conviction is likely to carry a far greater social stigma than a conviction for common assault."

13. Returning to the present case, it is clear from the findings of the judge that there were two aspects of the conduct of this Applicant which were relevant to establishing indecent assault; firstly, the fondling of the victim by the Applicant, and, secondly, the oral sex. The judge did not state precisely which of these two aspects constituted the indecent assault and, in the absence of any explanation from the Applicant, this is hardly surprising. When the evidence which the judge accepted is taken as a whole, bearing in mind what the police had seen and what the Applicant plainly admitted, it was almost too obvious to require further amplification. If the Applicant had been young enough to qualify for what Lord Griffiths termed "teenage groping", his conduct more than adequately fitted that description. At the very least, when the Applicant admitted to fondling the girl just a few moments after his hand had been seen to be removed from under the back of the girl's dress, the only sensible inference which arises is that this was an intentional touching of an intimate part of the girl to which by law she could not consent.

14. Lastly, we should perhaps add in relation to grounds 1 and 2 that while an adult who invites a child to touch his private parts without exercising any compulsion over the child to do so does not commit an indecent assault where there is no hostile act, (see Fairclough v. Whipp, (1951) 1 All E.R. 834, Director of Public Prosecutions v. Rogers, (1953) 1 W.L.R. 1017, and R. v. McCormack, (1969) 2 Q.B. 442), this is not a case about a simple isolated touching by the victim of the Applicant's penis. The continuation of that act of oral sex on the part of the Applicant was a sufficient assault by him upon his young victim in itself to constitute an indecent assault. It would have been otherwise, on this aspect of the matter, if the victim had tried to indulge in oral sex with the Applicant and, having put his penis into her mouth, the Applicant had then drawn away from her touching of him.

15. There is no merit whatsoever in these grounds of appeal and the application is accordingly dismissed.