HKSAR v. LUM TAK MING EMIL

HCMA 375/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 375 OF 2015

(ON APPEAL FROM ESCC 4381 OF 2014)

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J U D G M E N T

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1.  The appellant appeals against his conviction after trial on a charge of indecent assault contrary to section 122(1) of the Crimes Ordinance, Cap 200. He was sentenced to 8 months’ imprisonment.

Summary of facts

2.  The appellant was a swimming coach for City University of Hong Kong team (“the CU team”).  He also owned, and coached at, a private swimming club called Hoi Fung Swimming Club (“HFSC”).  X was studying an associate degree at City University from September 2012 and was a member of the CU team.  The appellant was her coach for the CU team.  In May 2013, X joined HFSC, and had regular training sessions there with the appellant.

3.  On an unknown date in August 2013, the appellant took X to Victoria Villa, (an hourly hotel) in North Point in order to give her a massage to help with the muscle fatigue she had as a result of her swimming training. 

4.  It was not disputed that during the course of the massage, the appellant without X’s consent used both of his hands to touch the area around X’s chest under her swim-suit while she was lying on a bed face up. 

5.  It was the appellant’s case that it was his honest belief that X had consented to him touching that area of her chest.  

Magistrate’s findings

6.  The only issue before the magistrate[1] was the appellant’s honest belief of the consent of X.  The magistrate found no basis for the appellant’s belief that X had consented to his action of his touching her in that area of her chest:-

“On the totality of the evidence before me, including divers admissions made by Defendant as testified by X, made by him in chief, under cross-examination and in re-examination, the only reasonable and irresistible inference I can arrive at is that massage was just a pretext given by Defendant to get X to an hourly hotel to have intimate contact with her and that he intentionally assaulted X at her breasts in the Incident to satisfy his prior romantic desire, knowing that X would not, and did not, consent to the same.”[2]

Grounds of Appeal

7.  The appellant puts forward two main grounds of appeal.  The first is that the magistrate failed to give due consideration to the appellant’s honest belief of consent on X’s part.  The second is the magistrate failed to give a proper assessment and analysis of the evidence.

8.  I turn to deal with the first ground of appeal.

The magistrate failed to give due consideration to the appellant’s honest belief of consent on X’s part

9.  Ms Liza Li, Counsel for the appellant contended that the magistrate failed to consider sufficiently from the appellant’s point of view, his past dealings with X before and on the material day that did lead him to honestly believe X consented to him to touch the area around her chest. 

10.  The facts show that on the material day the appellant told X in a whatsapp message that he was taking her to a ‘not-so good place’ for a massage.  After X’s swimming practice with him at Sheung Wan, they went to lunch together then went to the hotel. 

11.  X did not protest and/or leave the hotel before the incident.  At the room of the hotel X took off her short sleeved T-shirt and denim shorts and exposed the one piece swimsuit.  

12.  The appellant first massaged other parts of X’s body with her face down for about 45 minutes.  Later he told X to turn around.  X then lay face up.  The appellant sat on a chair behind her head.  He massaged her shoulders and collar bone then he touched the area of her chest.  After that X sat up, put on her clothes and left the hourly hotel together with the appellant for the pool. 

13.  After the incident X kept practising with the appellant at the CU Team and his club until mid-August 2014. 

14.  In late 2013, X had a boyfriend.  X’s boyfriend found out about the amorous messages the appellant sent to X.  In about February 2014, X’s boyfriend messaged the appellant to stop sending messages to X.  After some months, the appellant told X’s mother that he thought X had been distracted by her boyfriend and had not attended all her swimming training which caused her performance to deteriorate.  X’s mother and X then had an argument about her failure to train.  Not long after the argument with her mother, a report was made to the police and on 15 October 2014, the appellant was arrested for the present offence.

15.  Ms Li forwarded a number of reasons as to why the appellant had an honest belief that X consented.  They were the appellant’s sending of affectionate whatsapp messages to X but X never rejected him.  Her having social contact (other than training) with the appellant and the tacit agreement of X, in going to and staying in the hourly hotel for the appellant to massage her. 

16.  It was contended that the magistrate failed to sufficiently consider from the appellant’s view these incidents which led him to honestly believe X consented to him touching her.  Ms Li submits that the hourly hotel where the touching occurred is of utmost importance.  She relies strongly on X’s evidence when she said “hourly hotel gives people an impression of having immoral transactions, where people go there for sexual encounter.”  It is her submission given X’s knowledge of hourly hotels and her remaining there was a clear indication on the appellant’s view that she was consenting.  It therefore cannot be disputed from the appellant’s perspective X’s agreement to go to an hourly hotel with him was one of the basis for his honest belief.

17.  X had regular massages because of muscle fatigue. However this was the first time the appellant had massaged X’s body.  X could have left her clothes on during the massage but she readily took them off.  This was another basis for his honest belief.

18.  Having allowed the appellant to massage X on her back, shoulder, thighs and calves for about 45 minutes he then massaged her shoulders and collarbone near her chest.  When she was face up X made no expression or action that she did not want him to massage further downwards towards her chest, she lay there with her eyes closed.  This was another basis for the appellant’s belief. 

19.  When the appellant first slipped his hands into her swimsuit and touched the area around her chest X did not resist or react.  After doing it for a second time, X again did not react or resist.  It was the appellant’s case that this additionally, gave the appellant the honest belief that X had consented. 

20.  Ms Li’s submits that when the appellant had placed his fingertips at the top of X’s swimsuit near her chest at her collarbone he was seeking an indication from X, at that time X did not react but only closed her eyes and made no objection.  From the above the appellant’s counsel argued that the appellant believed that X was consenting and thus the prosecution have failed to prove the appellant had no honest belief that X was consenting to his action. 

Discussion

21.  The appellant was X’s swim coach.  At the time he was 48 years old and X was 19 years old, a large age gap.  This was a student-coach relationship.  Yet significantly there was an obvious desire that the appellant had a romantic desire for X.  These were shown by the appellant’s affectionate messages to X.  Moreover, the appellant knew that X knew that the appellant had romantic feelings towards her yet X had not rebuffed him and still stayed in the hourly hotel and took off her clothes for the appellant to massage her body. 

22.  The appellant had sent her a message telling her prior to taking X to the hotel he was taking her to a “not-so good place” yet there was still no objection in going there.  

23.  The supposed trip to the hotel was for a massage but upon arriving at the hotel both the appellant and X knew it was an hourly hotel where people go for sexual encounters.  X remained there.  

24.  On X’s non withdrawal from the hotel the magistrate in my view placed too much weight on X’s evidence and not the appellant’s in weighing the appellant’s belief.  He said he accepted that X only thought of the appellant treating her injuries and did not think of anything else.  On the evidence it was inaccurate to accept that she did not think of anything else. 

25.  He reasoned that X was only 19 at the time and her life experiences were relatively limited.  She was much more inexperienced than the appellant who was aged around 48.  The appellant was a coach who X respected and she treated as a dad, and she needed his assistance to achieve her swimming results to pursue her bachelor degree at the University.  The magistrate went on to say that X not protesting or leaving the hotel before the incident provided no basis for the appellant to believe that she consented to his touching her.  I regret to say that the magistrate’s reasoning with respect was flawed, it mattered not why he believed X remained but of importance was why the appellant believed she stayed.  What the magistrate was to bear in mind was that he was a coach who trained her for swimming, none of his training of her involved his massaging her nor sending her affectionate messages. 

26.  Yet despite the apparent non-intimate relationship, there was a tell-tale sign that the appellant had the wish to change their relationship.  The affectionate whatsapp messages to X were in all the circumstances of this relationship, extraordinary.  They were indicative of a yearning for an intimate relationship.  Pausing there, from the appellant’s perception this was most uncommon in a student - coach relationship.  It was clear that he had a romantic desire for X and in his mind X would have been aware of this. On the appellant’s perspective going to the hotel with X with the above in mind was the first step towards instigating an intimate relationship. 

27.  There was much in the evidence which tended to undermine the magistrate’s rejection of the appellant’s testimony.  In the setting that the appellant encountered with X of which, notably, there was no dispute, the appellant’s account gained credence.  With respect to the magistrate there was a failure of the magistrate to recognise the indicia detailed above in support of the appellant’s account of his honest belief. 

28.  The appellant was of clear record.  Viewing the above evidence objectively, I am satisfied that weighing in the balance the magistrate failed to give due consideration from the appellant’s perspective to the appellant’s honest belief.  The cumulative effect of all the above leads me to uphold counsel for the appellant's submission that in this case the conviction is unsafe and unsatisfactory.

29.  In the circumstances I do not need to deal with the second and last ground of appeal. 

Conclusion

30.  The appeal is allowed and the conviction quashed.