HKSAR v. MUKHERJEE SUPRATIM

HCMA 374/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 374 OF 2012

(ON APPEAL FROM TWCC 655 OF 2012)

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REASONS FOR JUDGMENT

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1.  The Appellant was convicted after trial of one charge of indecent assault by Deputy Magistrate Li Chi‑ho and was sentenced to 6 months’ imprisonment.  The Appellant now appeals against both conviction and sentence.

FACTS

2.  The Appellant was a yoga instructor at a fitness centre in Tsuen Wan.  By the date of the offence, the Appellant had been working there as a yoga instructor for about 4½ years and during that period he taught both private and group classes.  There had been no complaints regarding the Appellant’s behaviour during that time.

3.  On 11 November 2011, the Appellant taught a yoga class from 11:10 am to 11:55 am.  The class was attended by the complainant and Ms Yew (DW2).  It is alleged by the complainant that she was indecently assaulted when she was doing the following five poses :

(i) Triangle Pose,

(ii) Twisting Pose,

(iii) Child Pose,

(iv) Crossed‑Hands Cobra Pose,

(v) Hamstring Stretch.

4.  Ms Chow, Counsel for the Appellant, had very helpfully compiled photographs of the above poses which were extracted from Exhibit D2 as part of her submissions.  The complainant alleged that the Appellant had :

(a) touched the sides of her breasts twice in the Triangle Pose,

(b) pressed against the inner side of her left breast once with the back of his fingers in the Twisting Pose,

(c) cupped her breasts and pulled her body upward twice in the Child Pose,

(d) cupped and squeezed her breasts forcefully twice in the Crossed‑Hands Cobra Pose,

(e) pressed forcefully on her breast during the Hamstring Stretch.

5.  It is not in issue that the layout of the room was as depicted in Exhibit D1 and Exhibit D2.  As one can see the layout of the room is that of an open plan room with wall‑to‑wall mirror at the back of the room.  It was also not in issue that at the time of the alleged offences, there were 3 rows of students with 7 to 8 students per row.  PW1 was in the front row occupying the 4^th position from the door.  There were students on either side of her and they were about 2 feet away from her.  PW1, Ms Wong, alleged that in the Triangle Pose, whilst the Appellant was adjusting her pose, the Appellant had placed his hands on the sides of her breasts and in the Twisting Pose, again whilst helping her to adjust her posture the back of the Appellant’s fingers had pressed against the inner side of her left breast. Ms Wong further alleged that in the Child Pose, the Appellant slipped his hands through her armpits and covered her breasts and pulled her body upward twice and again in the Crossed‑Hands Cobra Pose, the Appellant used his hands to cover her breasts from behind and forcefully squeezed her breasts twice and finally in the last posture, the Appellant had pressed her breasts for several seconds with his palm.  However despite the foregoing, Ms Wong decided to remain in the class till the end.  She then went for a shower and then lodged a complaint to a female staff.

6.  According to PW2, Ms Cheung, a staff member of the fitness facility, Ms Wong had complained to her that during the yoga class the Appellant had used his hands to push her breasts from behind. Ms Cheung confirmed that there had never been any complaint made against the Appellant as far as she knew.

DEFENCE EVIDENCE

7.  The Appellant gave evidence and that he had been a yoga instructor for 19 years and had been working as a yoga instructor at Physical for 4½ years teaching both private and group yoga lessons and he denied having indecent assaulted PW1 at any time.  The second defence witness, Ms Yew testified that she had been a student of the Appellant for some 4 years. Ms Yew was also present in the yoga class on the day in question at the material time and she recognized PW1 as being new to the class.  She did see the Appellant correcting the postures of PW1 in a normal manner and did not see the Appellant touching the breasts of PW1.

Magistrate’S Findings

8.  The Learned Magistrate, after noting that the Appellant had a clear record and giving himself the good character direction, went on to deal with the submissions that Defence Counsel made as to why PW1 should not be believed.

9.  One of the matters raised by Counsel for the Defence was that PW1 had said that the Appellant had cupped or covered her breasts and that according to the evidence of PW2, PW1 merely told her that her breast was pushed from behind.  The Learned Magistrate at paragraph 23 of the Statement of Findings said that the difference in description did not matter as “it conveyed the same message that it was the breasts of PW1 (sic) were molested”.  I fail to see the logic behind this reasoning because there is a big difference between the cupping of the breasts by the hands and pushing of the breasts from behind.  This is also material in a case of this kind where the credibility of the complainant is of paramount importance.

10.  Further along in his Statement of Findings, the Learned Magistrate at paragraph 26 said “I bear in mind the fact that, PW2’s evidence does not enhance the credibility of PW1, it goes to consistency only”.  Neither I nor Counsel for the Appellant or Respondent could understand what this particular sentence meant.  If the Learned Magistrate had meant to say that PW2’s evidence challenged the consistency of PW1’s complaint, then surely that must affect the credibility of PW1.

11.  When the Learned Magistrate came to analyse the evidence of the second defence witness, Ms Yew, at paragraph 30 of his Statement of Findings, he commented that Ms Yew was “just another student in class” and that according to Ms Yew’s evidence nothing out of the ordinary had happened and therefore the Learned Magistrate said he found that hard to believe that Ms Yew could remember in “such details (sic)” how the Appellant had corrected PW1 in class and therefore he dismissed her as a witness of truth.  Without any illustration of what he meant by “such details”, it is hard for this court to understand exactly what the Learned Magistrate meant when he decided that DW2 was not a witness of truth. Ms Yew had been a student of the Appellant for 4 years and thus, it was only natural for her to notice and pay particular attention to a newcomer in class.

12.  The Learned Magistrate’s reasoning as to why he found the case proved against the Appellant leaves me concerned that the conviction of the Appellant was safe, particularly when in this case, as Ms Chow pointed out, it is a one‑on‑one case and PW1 is a 27 year old lady who has a responsible job and thus is no naïve school girl.  There is the fact that she stayed on in class till the end despite the allegations of indecent behaviour on the part of the Appellant and took a shower before she made her complaint.  This background together with the less than satisfactory reasoning of the Learned Magistrate in relation to his assessment of the evidence in particular with regard to the credibility of PW1, that it renders the conviction unsafe.  It was for the above reasons that I allowed the appeal against conviction.  This Court is grateful to Ms Chow for her helpful written submissions.