HKSAR v. SZE LOK HANG

DCCC 102/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 102 OF 2013

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REASONS FOR VERDICT

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Charge

1.  Defendant faces 6 charges.  Charge 1 alleges he indecently assaulted Madam A; Charge 2 alleges he assaulted one Madam Wong; Charge 3 and Charge 4 allege he indecently assaulted Madam B on two different days; Charge 5 alleges he indecently assaulted Madam C and Charge 6 alleges he stole one medical report and one barcode label relating to Madam A, one barcode label relating to one Madam So, one barcode label relating to one Madam Chan and one barcode label relating to one Madam Tam.

2.  The prosecution case is that at all material times, defendant was a male nurse in the Accident & Emergency Department of the Prince of Wales Hospital.  All the ladies mentioned in the charges were patients there.  On 10 February 2012, Madam C reported Charge 5 to police.  In the subsequent investigation, police found those documents referred to in Charge 6 in defendant’s locker in the hospital.  They checked with his phonebook and conducted enquires with the names found in it.  They took statements from some ladies and finally laid Charges 1 to 6 against him.

Severance

3.  Before the trial is to begin, Defence Counsel applies for Charges 1 and 2 to be severed from the other four charges.  His complaint is that police unduly extracted evidence from Madam A and Madam Wong. Counsel says these two ladies actually made no complaint against defendant and the evidence on the two charges is tenuous.  If these two charges are heard together with the other three assault charges, ie Charge 3-5, defendant may be embarrassed or prejudiced in his defence to the various charges.  The flimsy evidence of Charges 1 and 2 may be unduly enhanced by those of Charges 3-5.  A roll-up or cumulative prejudice may result against him.  At first, Counsel even says Charges 1 and 2 should be stayed but later he withdraws such stay application and argues for severance only.

4.  Prosecutor objects to severance.  He makes it clear that he does not rely on the Similar Fact Evidence Rule.  He says no prejudice of the sort complained by Defence Counsel would arise if the court is to consider each charge separately, especially when the case is heard by a single judge.

5.  After hearing both parties’ submission, I rule against Defence Counsel.  Charges 1-5 are properly joined in one indictment under Rule 7 of the Indictment Rules because they form or are part of a series of offences of the same or similar character.  Charge 6 obviously has sufficient nexus with Charge 5 and Charge 1 in the context mentioned in para 2.  Prosecutor is not relying on the Similar Fact Evidence Rule.  He asks for the evidence relating to each charge to be considered separately.  Thus, there is no risk that the complained roll-up or cumulative bias would result.  Defendant’s defence, whatever it is, would not be prejudiced or embarrassed if the jury are properly directed by the judge that they should give each charge separate consideration.  Needless to say, such worry is unnecessary if the case is to be dealt with by a single judge.  I thus order all the six charges to be heard still in one trial.

Charge 3 and Charge 4

6.  At some stage of the trial, Prosecutor drops Charges 3 and 4.

Prosecution case

7.  Prosecutor calls 33 witnesses to give evidence.  They are:-

(a) PW1 Madam A;

(b) PW33 WDPC 56792;

(c) PW11 Dr Law Ka Chai;

(d) PW36-39 plus PW41-46 (10 nurses on duty in the Accident & Emergency Department on 9 November 2011);

(e) PW47-51 (5 health care assistants on duty in the Accident & Emergency Department on 9 November 2011);

(f) PW2 Madam Wong Hiu Yu;

(g) PW34 Dr Ng Man Ho;

(h) PW4 Madam C;

(i) PW10 Madam Cheung (mother of Madam C);

(j) PW9 Mr. Leung Siu Lap;

(k) PW18 DPC 7416;

(l) PW12 Dr Law Kwok Keung;

(m) PW13 Dr Wai Ka Chung;

(n) PW14 Dr Lam Chi Wang;

(o) PW16 Mr Wong Kam Yip;

(p) PW40 Madam Luk Siu Man;

(q) PW35 Madam Hon Wai Ping;

(r) PW19 DPC 4890;

(s) PW6 Madam So Chi Ying; and

(t) PW5 Madam Chan Sau Ping.

There are exhibits p1-28 plus Exh A and Exh B.

Charge 1

8.  Prosecution allege defendant on 9 November 2011 indecently assaulted Madam A in room 19 of the Accident & Emergency Department of the Prince of Wales Hospital.

9.  Defence say defendant conducted a genuine examination on Madam A. The actual circumstance was not exactly what she testifies in court.  Defence deny it was an assault or indecent.

10.  For this charge, PW1 Madam A, PW33 WDPC 56792 and PW11 Dr Law Ka Chai give evidence.  Part of the evidence given by PW14 Dr Lam Chi Wang and part of the evidence given by PW16 Mr Wong Kam Yip are also relevant to this charge.  Prosecutor further calls PW36-39 plus PW41-46 (the ten female nurses on duty in the Accident & Emergency Department on 9 November 2011) and PW 47-51 (five of the six female health care assistants on duty in the Accident & Emergency Department on 9 November 2011).  These fifteen witnesses are called to rebut what Defence Counsel puts to Madam A that defendant had called a female nursing staff to witness the examination and that staff said she was busy and would watch from outside Room 19.

Madam A

11.  Madam A’s identity information is recorded in court (see Exh A). On 9 November 2011, she was aged 28.  That morning, she fainted a bit on the train due to stomach pain.  She was taken to the Accident & Emergency Department of the Prince of Wales Hospital.  She registered at 9:07 am.  Later, a doctor saw her.  A female nurse gave her injection. Madam A was then made to lie on a trolley bed for observation.  The bed was placed in a corridor of the Accident & Emergency Department.  Later, a female nurse gave her another injection.  Still later, a tall male nurse wearing a surgical mask gave her a third injection.  He asked her if she was feeling well.  She indicated that she was not.  The male nurse left but returned later.  He told Madam A that he would check on her to see if she could leave the hospital.  He asked her to get off the bed to go to a room with him.

12.  The two entered into room 19 (Madam A marks a red cross on P8 to show that room).  It is not disputed the room so marked is Room 19 despite the printing showed otherwise.  PW14 Dr Lam Chi Wang confirms that room so marked by Madam A in court is indeed Room 19.

13.  Madam A says there was no one else inside Room 19.  She was puzzled.  The male nurse closed the door of the room and asked her to lie on the bed.  At that time, she was wearing a long jumper and leggings. She also wore brassiere and underpants.  She is not sure if she had worn another undergarment beneath the jumper.

14.  When Madam A was lying on the bed, the male nurse opened the door to have a look outside.  She thought he might be looking for someone.  Then he closed the door again and drew the curtain closed around the bed.

15.  The male nurse asked Madam A to pull up her upper garment a bit.  She complied and he assisted her.  The jumper was pulled up to her chest level – below the breasts.  He then used a gloved hand to press her abdomen twice.  (Madam A in court indicates it was that part of her abdomen just below her breasts).  The male nurse then tried to pull her jumper further up.  His hand touched the wire of her bra.  Madam A had already put one forearm across her chest.  Now she held onto her clothes. The male nurse stopped his pulling act.  He then pressed her stomach three to four times.  (In court, Madam A shows that is the area a few inches below her breasts).  He asked her if she was in pain.  Then he dragged her leggings down a bit with both of his hands.  Madam A thought that was unnecessary because she just felt discomfort in her abdomen and stomach region.  She was not happy with his moving her leggings.  She exclaimed, “Ha? That’s not required!”  Even at that time, she still thought he was only conducting a basic examination to see if she could leave the hospital.

16.  The male nurse stopped his act.  Madam A tidied her clothes. He told her there was nothing severe and she could be discharged.  He gave her a document to collect medicine.  He also asked her to give him her phone number in case there would be any problem in two day’s time.  She complied and he told her his name was ‘Hugo’.

17.  Madam A subsequently collected her medicine and left the hospital. The record P6 shows she was discharged at 13:17 hr.

18.  The next day, ie, 10 November 2011, Madam A received telecom message from Hugo, who asked her if she was feeling well.  The two began to engage in some social chat through WhatsApp on the phone.

19.  Madam A thought she had lost her sick leave certificate issued by the hospital.  She asked Hugo for advice.  He said she could go to the hospital to get a replacement certificate.  Later, he told her he could check it out for her.  Still later, he said he would help her to get the replacement certificate.  Subsequently, the two met for dinner when Hugo gave Madam A the replacement certificate.  She paid for the dinner.  Since then, the two had not met again but they continued to chat through WhatsApp.

20.  In February 2012, Madam A was invited by police for an interview. She also attended an identification parade, where she identified defendant as the male nurse Hugo.

21.  Madam A says that on 9 November 2011 in the hospital, she saw her A&E Attendance Record being placed on her bed together with some barcode labels.  She was not given possession of them and she had never given any of those to defendant.

22.  Defence Counsel puts to Madam A that the male nurse who gave her the third injection was not defendant.  She disagrees.

23.  Defence Counsel also puts this to Madam A.  Defendant had a conversation with her in the corridor area in which he said she had to wait if she had to see the doctor again.  She asked him if there were other ways than just waiting.  He said only severe patients could gain priority.  He then said he could conduct an examination on her to see if she could gain priority.  It was in such circumstance that defendant led her to that Room 19 for an examination.  Madam A disagrees there was such conversation.  She also disagrees with Defence Counsel that defendant had not pulled up her clothes or pulled down her leggings.

24.  Defence Counsel further puts this to Madam A:  Inside Room 19, defendant said he would find a ‘female nurse’ to witness the examination.  (Counsel later clarifies that he should say ‘female nursing staff’ according to his instruction.).  Defendant spoke at the doorway of the room to a female nursing staff, asking the latter to come in to witness the examination.  However, that female staff said she was busy and told defendant that she would observe from the nursing station.  Madam A says she had no recollection of that so she cannot confirm it.

25.  Madam A does agree with Defence Counsel that when she was interviewed by police, she told police that in that examination and in the dinner meeting later, defendant did not indecently assault or invade her. She also agrees the messages defendant sent her carried no sexual hint or advance.

PW33 WDPC 56792

26.  This officer took one of the witness statements given by Madam A to police.  She confirms Madam A did not complain about defendant.

27.  The officer also says she had taken statements from five other ladies, whose particulars were found in defendant’s phonebook.  She confirms defendant’s communication with those ladies carried no sexual hint.

PW11 Dr Law Ka Chai

28.  Dr Law was on duty in the Accident & Emergency Department of the Prince of Wales Hospital on 9 November 2011.  Around 9 am, he saw Madam A.  She complained of abdominal pain.  Dr Law examined her abdomen in the presence of a female health care assistant. He says such female chaperone could reduce embarrassment of the female patient.  Dr Law diagnosed Madam A as suffering from stomache.  He arranged x-ray and urine tests for her.  She was given medicine and put on a saline drip.

29.  At 11 am, Dr Law saw Madam A again.  She said she still felt a little pain but her stomache had got better.  The tests on her showed normal results so the doctor allowed her to be discharged after the saline drip would finish.  He informed her she would be given two days of sick leave.  The doctor signed on Madam A’s medical card and put it in the nursing station for a nurse to handle.

30.  In court, Dr Law says no more examination would be enquired unless Madam A further complained of discomfort.  If her saline drip finished, the nurse just had to remove the device, seal the wound and give her a sick leave certificate.  Dr Law says if the patient required further treatment, the nurse would inform and consult him.  If Dr Law had been out for lunch, the nurse should record the patient’s condition on her record and wait for him to come back to follow up.  In case of emergency, other doctors would take up the patient’s case.

31.  Dr Law agrees with Defence Counsel that doctors and nurses worked under great pressure in the hospital.  Nurses should put patients under observation to see if their condition would change.  If a patient complained of stomache, the whole abdomen, ie, the rib cage from below the breasts and such part of the body above the groin had to be examined. Dr Law agrees that the examiner’s hand had to come into contact with the patient’s skin for examination.  The patient’s upper garments had to be pulled up.  If she wore leggings, the leggings also had to be pulled down by 3-4 inches for examination purpose.

PW16 Mr Wong Kam Yip

32.  He is the Operation Manger of the Accident & Emergency Department of the Prince of Wales Hospital.  He is responsible for supervising all the nursing staff in that section.  He says defendant started working in the Accident & Emergency Department since August 2010 after graduating from the university.

33.  Wong says there was a booklet consisting of the Code of Professional Conduct and the Code of Ethics for Nurses in Hong Kong (p23 is a copy of the version used since 2002).  When defendant was registered with the Nurses Council, he would be given a copy. Section 2 of the Code of Professional Conduct provided guidelines on how nurses should treat patients’ information.  Wong says defendant had taken a training course in August 2010 concerning protecting personal data privacy and security.  Data access principles were mentioned in the training (see p24 and p25).

34.  Wong says a male nurse might examine a female patient in some circumstances.  There was a set of guidelines called ‘General Guideline for Staff working in Mixed Gender Ward’ issued in July 2011 (see p17).  He does not know if a personal copy had been given to defendant but he had informed the Ward Manager when new guideline came into existence.  The Manager would brief the nurses.  Wong points out ss 3.3.4.1, which required a male staff to carry out any nursing examination on a female patient in a SINGLE room/area to arrange a female staff to be present as chaperone.  Single area included an area contained or surrounded by curtains.  Chaperones could be female nurses or female health care assistants.  Wong says the nurse doing the examination should make a note in the patient’s record.  However, he agrees that nurses were stretched to the limit of their capacity.  Some might bypass guidelines and take shortcut for convenience.

PW 36-39 and PW 41-46

35.  These ten ladies were all the ten female nurses on duty in the Accident & Emergency Department on 9 November 2011 at the time material to Charge 1. All testify that defendant had not asked them to supervise his examination of a female patient in Room 19.

PW47-51

36.  These were five of the six female health care assistants on duty in the Accident & Emergency Department on 9 November 2011 at the time material to Charge 1.  (The sixth one Madam Tuen Lai Wah no longer works in the hospital.  Prosecutor is unable to get her to come to give evidence).  Of these five witnesses, PW49 remembers that defendant on that day had not asked her to witness his examination of a female patient in Room 19.  The other four ladies do not have particular recollection of what happened that day but they can say that in their years of service in the hospital, they had never been asked by a male nurse to witness his examination of a female patient.

PW14 Dr Lam Chi Wang

37.  He has worked in the Accident & Emergency Department of the Prince of Wales Hospital since September 2011 as Associate Consultant.  He says even if the door and the curtain of Room 19 were open, it is difficult for one to see from outside the room of what happened at the bed inside.  If the curtain was drawn closed, one simply could not see what happened at the bed.

Submission of no case

38.  After Prosecutor has closed his case, Defence Counsel submits that defendant should not have a case to answer because the evidence is so tenuous.  In particular, Defence Counsel points out Madam A herself has no complaint.

39.  I find against that submission.  There is sufficient evidence for a prima facie case on the charge.  The evidence should be left to the jury for their proper consideration.

Defence case and submission

40.  Defendant elects not to give evidence in the trial or call any witnesses.  The agreed facts show he has a clear record.  According to PW16, defendant has never been complained of in his one odd years of work in the hospital.

41.  Defence Counsel puts to Madam A that there was some conversation leading to her agreeing defendant to conduct a genuine examination on her and the actual circumstance of the examination was not exactly what she testifies in court.  In particular, Defence Counsel puts to her that Defendant had never pulled up her upper garment or pulled down her leggings.  He had also asked a female nursing staff to witness the examination from the nearby nursing station.

42.  Defence Counsel submits that defendant might have breached some hospital rules but it was no criminal offence.  There was no assault, not to mention an indecent one.  Lastly, if the court finds defendant had committed an offence, it might just be an attempted one.

Finding

43.  On 9 November 2011, Dr Law treated Madam A sometime after 9 am.  She got better.  The test results on her revealed no abnormality. When Dr Law saw her again around 11 am, he decided that she could be discharged.  She just had to finish the saline drip.  Nothing else need to be done.  She required no more examination unless she complained further she was unwell.

44.  Defence Counsel puts to Madam A that defendant told her that she would have to wait long for seeing the doctor again but he could examine her to see if her case was severe enough to gain priority.  Madam A denies there was such conversation.  I accept she is a truthful and reliable witness.  There was no such conversation.

45.  I also accept Madam A’s evidence that defendant did ask her if she was feeling well.  She indicated she was not.  Later he came back to say he would check on her to see if she could leave the hospital.  Dr Law says Madam A required no more examination unless she complained further she was unwell.  Now she told defendant she was still not feeling well.  That means defendant was entitled to examine the patient’s pain area, ie, the abdomen which contained the stomach, before the latter was allowed to leave the hospital.

46.  The accepted evidence is that a male nurse could examine a female patient in certain situation.  A female nurse or female health care assistant should be present as chaperone if the examination was to take place in a single room/area.

47.  Madam A was alone with defendant in Room 19.  No chaperone was physically present.  She says defendant once opened the door as if he was looking for someone.  Defence Counsel puts to her that defendant had called a female nursing staff to come in to witness the examination but that lady replied she was busy and would only witness from the nursing station outside the room.  Madam A cannot remember she had heard such words.  I cannot rely on her lack of memory in this regard.

48.  Prosecutor endeavours to call all the ten female nurses and five of the six female health care assistants to rebut what Defence Counsel puts to Madam A as per para 47.  Since there is one health care assistant that remains to be called, I cannot act on the totality of the evidence given by the ten nurses and the five health care assistants.  It is not complete.

49.  Defence Counsel puts to Madam A that the door of Room 19 was open during the examination.  She clearly disagrees.  I accept her evidence.  The door was closed during the examination.

50.  I also accept Madam A’s evidence that the curtain around the bed was drawn closed too by defendant before the examination.  That is actually not disputed by Defence.

51.  Although the nursing station was quite close to Room 19, it is apparent from photos 1-4 of p3 that no one outside the room could see what happened at the bed when the curtain was closed, whether the door was open or not. In fact, the door was closed.  With the door closed and the curtain also drawn closed, it was impossible for anyone outside the room to witness any examination at the bed.  PW14 Dr Lam as a senior doctor who had worked in the Accident & Emergency Department since September 2011 confirms that.  Thus, it cannot be the truth that defendant had got a female nursing staff to consent to witness from outside the room his examination of Madam A.

52.  However, Madam A does say defendant once opened the door as if he were looking for someone.  I am not sure if he was really looking for someone to come in as chaperone, only that he could not get one and still went on with the examination, or he merely looked out to make sure nobody outside was alert of what he was doing.

53.  Defence Counsel puts to Madam A that defendant did not pull her clothes and leggings.  I accept Madam A’s evidence that defendant did assist her to pull up her upper garment.  He pressed her abdomen twice.  He tried to pull her garment further up but Madam A held onto her clothes.  He did not insist.  He pressed her stomach region 3-4 times.  Then he tried to drag down her leggings. Madam A expressed disapproval. Defendant stopped and did nothing further.

54.  Madam A had stomache.  Dr Law says if a patient were to be examined in such case, that part of her body below the breasts down to the groin would be the right area for examination.  The doctor also says the patient’s upper garment would have to be pulled up and her leggings had to be pulled down by 3-4 inches.  He does not say a male nurse cannot do that. Thus, one cannot say defendant’s act went beyond that of a prima facie proper examination.  The only suspicion is why defendant would do that in the absence of a female chaperone.

55.  Some of the hospital staff testifying in court agree that nursing staff were very busy and worked under great pressure.  PW16 Wong even agrees some staff might bypass guidelines for convenience.

56.  While it seems highly inappropriate and even suspicious that defendant would examine a female patient in a single room without a chaperone, I cannot be sure that he must be acting indecently.  He might be merely bypassing the guideline when he could not find a female colleague to act as chaperone.  Even if he intentionally elected to stay alone with Madam A in a single room without trying to find a chaperone at all, he might just want to create a chance for himself to get acquainted with Madam A.  The facts reveal he did ask for her phone number and contacted her subsequently after her discharge.  In either case, defendant must have breached the nurses’ code of conduct and the hospital’s rules.  However, no criminal intent can be inferred beyond reasonable doubts in the circumstance and defendant’s act of examination by itself did not exceed the ambit of a prima facie proper examination.

Verdict

57.  I find Prosecutor has not proved beyond reasonable doubts that defendant indecently assaulted Madam A in Room 19 of the Accident & Emergency Department of the Prince of Wales Hospital on 9 November 2011 or he so attempted.  He is acquitted of Charge 1.

Charge 2

58.  Prosecution allege defendant on a day between 20 November 2011 and 23 November 2011 indecently assaulted Madam Wong Hiu Yu at the Emergency Medicine Ward of the Prince of Wales Hospital.

59.  Defence agrees there was an examination but denies it was an assault or indecent.

60.  For this charge, PW2 Madam Wong Hiu Yue and PW34 Dr Ng Man Ho give evidence.  Part of the evidence given by PW16 Mr Wong Kam Yip is also relevant.

PW2 Madam Wong Hiu Yue

61.  Madam Wong was aged 19 when she went to the Accident & Emergency Department of the Prince of Wales Hospital on 20 November 2011.  She had pain in her back.  A doctor saw her and diagnosed her as having acute kidney infection.  She was admitted to the Emergency Medicine Ward on the second floor of the department.  She stayed in that ward until she was discharged on 23 November 2011.

62.  Madam Wong says one day a male nurse came to her bed and said he was going to conduct an examination on her.  She cannot remember which day it was.  The male nurse was wearing a surgical mask. He said his name was Hugo.  He did not say why he had to examine her.

63.  Wong says Hugo used his fingers to press several times her waist and that part of her back near the waist.  She cannot tell if he used one hand or both hands but he was not wearing any gloves.  She did not feel any pain at that time.  Madam Wong cannot remember which bed she was staying on at that time but there were patients on the neighbouring beds.  She cannot be sure whether those beds were on one side of her bed or on both sides.  She also cannot remember if the curtain around her bed was drawn closed when she was examined.

64.  Several hours later, the male nurse came back.  He told her she would require injections after discharge.  He said he could help her with the injections.  He gave a note to her containing his name and telephone number.  He asked her to contact him.  He also said he would be in touch with her.

65.  Later, a doctor did tell Madam Wong she would require injections after discharge.  The doctor said she could go to any health clinic for those injections.

66.  Madam Wong was discharged on 23 November 2011. According to the agreed facts, defendant called her on 24 November 2011 and 27 November 2011.  She cannot remember those calls but she confirms there were WhatsApp contacts between her and defendant, who was that male nurse Hugo.  In those greetings, he asked about her condition.  He said she would pay the same charges whether she got the injections from him or from the health clinic.  Madam Wong decided to let defendant do the injections on her.

67.  The first injection was done at a McDonald’s restaurant.  The other two injections were done at Madam Wong’s home.  She gave defendant $200 for the three injections.

68.  Madam Wong had no complaint against defendant but in February 2012, she was invited to provide witness statements to police. She told police that when defendant examined her in the hospital and gave her the three injections, he did not indecently assault or invade her.

PW 34 Dr Ng Man Ho

69.  Dr Ng says the Emergency Medicine Ward is a mixed gender ward.  There were a male side and a female side.  He was responsible for the male side on 23 November 2011.  That day, he saw Madam Wong who had been moved from the female side to the male side by then.  He cannot tell when she was transferred.

70.  Dr Ng says there were more female nurses than male ones in the hospital.  Examination of female patients on the female side of the ward was always done by female nurses while female patients on the male side might be examined by male nurses.  In some situation, a female chaperone had to be present.

71.  Dr Ng says all nurses had to make record after examining patients. Madam Wong’s record shows she was examined by nurses twice on 20 November 2011, six times on each of 21 and 22 and three times on 23 of November.  He cannot tell from the record which nurses had examined Madam Wong but there was no record of any nurse examining her back or waist.  Dr Ng says in that patient’s case her loin area, ie, that part of her back around the rib case and the spine was the correct area for examination.  It was near the waist.

72.  Dr Ng says another doctor had also examined Wong.  Nurses would not repeat any examination if a doctor had already done that.

73.  Dr Ng says Wong did require injections after discharge.  She was given the medication for those injections to be carried out at the out-patient service.  It would not be done by Accident & Emergency staff.

PW16 Mr. Wong Kam Yip

74.  His evidence in para 32-34 is repeated here.

No case to answer

75.  After Prosecutor has closed his case, Defence Counsel submits that defendant should not have a case to answer on Charge 2 because the evidence is so tenuous.  In particular, Madam Wong herself had no complaint.

76.  I agree.  There is no sufficient evidence for a prima facie case for this charge.  I say I shall give the reasons at the end of the trial and I now do.

Ruling of no case to answer

77.  I accept Madam Wong is a truthful and reliable witness but there are many details she cannot remember of the examination.

78.  Nurses can examine patients.  Madam Wong’s record shows she was examined by some nurses on many occasions during her 4 day stay in the hospital.  According to Dr Ng, a male nurse on the male side of the mixed gender ward might examine female patients though in some circumstance, a female chaperone would be required. 

79.  Madam Wong says defendant examined her waist and that part of her back near the waist.  According to Dr Ng, that was the correct area for examination.

80.  Defence do not dispute defendant did examine Madam Wong in the Medicine Ward, which was a mixed gender ward.  Thus, the guideline in ss 3.3.4.1 of p17 would apply.  However, Madam Wong cannot tell when such examination took place.  Thus Prosecutor cannot prove she was examined by defendant only after a doctor had carried out the same examination on her.  In other words, Prosecutor cannot prove the examination done by defendant on the patient was unnecessary.

81.  Madam Wong cannot tell whether the curtain around her bed was drawn closed or not during the examination.  She says there were patients on neigbouring beds but she cannot say whether any female nursing staff was around.  According to the guideline, a chaperone would be required if the examination was done in a single room/area.  However, Prosecutor has not proved Madam Wong was examined by defendant in a single room/area situation that must call for the presence of a chaperone.

82.  Any nurse after examination should record the result on the patient’s record.  In Madam Wong’s record, there was no entry stating a nurse had examined her waist and back.  Such omission was undesirable but it might be advertent or inadvertent.  It is not in dispute that nursing staff often worked under great pressure.  A jury properly directed cannot rule out the possibility that the omission might be inadvertent.  Even if the omission was advertent, PW16 Wong agrees that some staff might take shortcut in their work.  A deliberate failure to record any examination result would be a breach of the hospital rules but it is a different thing to say the examination was then unwanted and thus a criminal assault.  No jury reasonably directed could convict defendant of Charge 2.  I thus rule he has no case to answer on this charge.

Charge 5

83.  Prosecution allege defendant on 9 February 2012 indecently assaulted Madam C in Room 00C36 of the Accident & Emergency Department of the Prince of Wales Hospital.

84.  Defence say there was an examination by defendant on Madam C of her joints, waist and back done in the common area of the department but deny there was a vaginal examination in any single room.

85.  Defence Counsel argues that Madam C was highly confused at some point in the hospital and her evidence about the alleged assault is unreliable.

86.  For this charge, PW4 Madam C, PW10 Madam Cheung, PW9 Mr Leung Siu Lap, PW18 DPC 7416, PW12 Dr. Law Kwok Keung, PW13 Dr Wai Ka Chung, PW14 Dr Lam Chi Wang, PW16 Mr Wong Kam Yip, PW40 Madam Luk Siu Man and PW35 Madam Hon Wai Ping give evidence.

PW4 Madam C

87.  Madam C’s identity information is recorded in court (see Exh B).  On 9 February 2012, she was aged 29.  That morning, she felt pain in her arms and hip-bone so she went to the Accident & Emergency Department of the Prince of Wales Hospital with her mother.  She got registered at 6:25 am.  A doctor saw her later. Madam C told him her pain. She also told him she had been receiving treatment for depression and insomnia.  The doctor ordered blood test, brain scan and x-ray check on her.  He decided that she had to be hospitalized.  She was made to wait on a trolley bed near the nursing station for room allocation.  There were patients waiting around.  A male nurse later gave her medicine.  She waited on.  Her mother left her at some stage.

88.  Later, another male nurse came.  Madam C says he wore a blue uniform, a white coat and a mask.  He asked about her condition and gave her two tablets.  He then left but later returned.  He asked how she felt after taking the tablets.  She answered she felt tired and still painful all over the body.  The male nurse said the tablets would help her to relax.  He left again. Later, that male nurse came back to say he was going to take her to have an examination.  She followed him to Room 00C36 (see Photos 1-9 of p1).  There was no one else inside the room.  The male nurse closed the door and asked her to lie on the bed.  She lied down face up but she could still see the lower part of her body. 

89.  Madam C says the male nurse used his hands to press her shoulders.  He asked her if she felt pain.  She answered ‘yes’.  He then pressed her arms.  The pressing went down to her hip-bone.  He asked her to lower her trousers.  She complied and he at the same time pushed down her underpants.  Both the trousers and the underpants were lowered to her thighs.  The male nurse then went over to the position of her lower body. She could feel he inserted his finger/fingers into her vagina.  She could not feel whether it was one finger or more than one but she felt his finger/fingers press left and right inside her vagina several times.  He asked her repeatedly if she felt any pain. She replied ‘no’ every time.  Then the male nurse said it was alright.  He told her she was not suffering from inflammation.  He said he was going to wash his hands.  He went to the sink.  Madam C could hear the washing sound.  All along, the male nurse was not wearing any gloves.

90.  Madam C tidied up her clothing.  When the male nurse had finished washing his hands, he asked for her address and telephone number. He also asked if she used WhatsApp.  He explained that if she were admitted to hospital at night-time, he could inform her of the situation.  He gave her a piece of paper to write down her phone number and address. She complied.  Madam C says she wrote down her residential address rather than her email address.  The male nurse took the paper and led her out of the room.  She returned to the trolley bed where she had come from and waited there.  Within an hour after she had come out of Room 00C36, she received a thanks message on her phone from that male nurse.  She did not see him anymore in the hospital but the two communicated further through WhatsApp.

91.  Madam C says she had already sensed some problem when the male nurse examined her in Room 00C36.  There she was in fear and confused.  After coming out of the room and waiting still, she called a male friend Leung Siu Lap. However, Leung was busy then so she could not tell him much on the phone.

92.  Later, a doctor came to see her.  The doctor suggested that she should be admitted for psychiatric observation.  She felt angry and raised objection because she thought her problem was one of body pain.  Then the doctor called her mother to ask about her situation.  Subsequently, the doctor allowed her to be discharged.  She left the hospital after 6 pm.  She did not complain to the doctor of that examination in Room 00C36 because she did not know who to trust in the hospital.

93.  After Madam C had gone back home, her friend Leung called her.  She stuttered on the phone.  Leung proposed to come over to speak to her.  He later came to the downstairs of her home.  The two talked in Leung’s car.  She told Leung how the male nurse examined her in Room 00C36.  She also showed him the phone messages she had got from the male nurse so far (see Items 1-9 of p11).  Leung suggested that she should tell her family and report to police.  Madam C then called her mother (PW10) and told her the situation.  She then went with Leung to the police station to report the matter.  Police told her to make an appointment with the male nurse to effect an arrest.  Madam C thus went on communicating with the male nurse through WhatsApp (see p11; Item 10 onwards).  The male nurse later appeared at Tai Wai as appointed (p11 ended at Item 35; the time was 0025 hr. on 10 February 2012).  Police arrested him.  He was defendant.  Madam C knew his name was Hugo in Item 12 of p11.

PW 9 Mr. Leung Siu Lap

94.  He confirms Madam C once called him in the afternoon of 9 February 2012.  He was too busy to talk to her then.  He called her back in the evening and found her stuttering on the phone, so he drove to meet her for a talk.  In his car, she told him how the male nurse examined her in a room in the hospital.  She also showed the WhatsApp messages he had sent her.  Leung says Madam C appeared upset and hesitant when she talked.  She doubted why the male nurse should so examine her and so contact her.  Leung suggested that she should speak to her family and report the matter to police.  Later, he accompanied her to the police station.

PW 12 Dr. Law Kwok Keung

95.  He worked in the Accident & Emergency Department of the Prince of Wales Hospital.  On 9 February 2012, he saw Madam C at 7:30 am.  She had joint and muscle pain.  Over the last three days, she had been in low mood.  She had delusion, auditory hallucination and suicidal ideation.  She had difficulty to sleep and had taken a lot of sleeping pills. Dr Law says he cannot recall what her delusion was.  When he saw her, she was not exhibiting any sign of delusion or hallucination.  Her speech was coherent and logical.  She was, however, depressed.  Dr Law learnt from Madam C’s record that she had been suffering from depression and adjustment disorder.  He wanted her to be admitted to the Medicine Ward to see if her problem was an organic one.  If it was not organic, then the doctor would see to her psychiatric aspect.

96.  Dr Law went off duty by 8 am on 9 February 2012.  He had not instructed any nurse to examine her.  In her case, no vaginal examination would be required.

PW 13 Dr. Wai Ka Chung

97.  On 9 February 2012, he took up the next shift after Dr Law. He had not seen Madam C but knew she was anxious.  He thus prescribed 2mg of Lorazepam to her.  It was a low dose of sedative. 

98.  Dr Wai says he had not asked anyone to examine Madam C. In her case, no vaginal examination would be required.

PW 14 Dr. Lam Chi Wang

99.  He worked as an Associate Consultant in the Accident & Emergency Department of the Prince of Wales Hospital. On 9 February 2012, he began his duty at 3 pm.  He took up Madam C’s case.  Sometime between 3pm and 4 pm, he talked to her.  Dr Lam says Madam C appeared stable at that time.  She was orientated in time, space and person.  Her blood and pulse were normal.  He realized that Dr Law had noted down the patient’s psychiatric problem.  Dr Lam then suggested to Madam C that she ought to be admitted for psychiatric observation.  She objected.  She admitted she had suicidal ideation but she had not executed it.  To Dr Lam, Madam C was not confused at that time and her speech was coherent.  He then decided to speak to her mother on the phone for a better understanding of the patient’s situation.  After that, he was convinced that Madam C was not under delusion or hallucination. He decided to discharge her.  She still complained of pain so he gave her an analgesic injection.  Madam C left the hospital at 6:29 pm.

100.  Dr Lam says there was no need for Madam C to undergo any vaginal examination because there were no symptoms in that area.

101.  Dr Lam disagrees with Defence Counsel that Madam C became angry when she was told she should be admitted for psychiatric observation.  To him, she remained peaceful all the time.

102.  Dr Lam is asked for his comment on Exh. D1.  He says if a person wrote that erroneously about her own phone number and email address, she was probably in a clouded state of mind.  That means the person was not in a normal conscious state.  She might be confused.  Her memory might not be accurate.  Dr Lam says when he saw first Madam C that afternoon between 3 pm and 4 pm, she was in a settled state.  She was not confused or disturbed.  However, he cannot say whether she was a different person some hours ago.

PW16 Mr. Wong Kam Yip

103.  His evidence in para 32-34 is repeated here.

104.  Wong says male nurses are not permitted to examine the vagina of female patients.  Only doctors can do that.

105.  Wong agrees that if Defendant exited at Tai Wai Railway Station around 2:29 pm, the latter probably had left the hospital by 2 pm.

106.  Wong confirms that nurses are not allowed to wear any white coat over their dark blue uniform.  He had never seen nurses doing that. Also, he had never seen defendant with dyed hair.

107.  Wong also confirms that there had never been any complaint against defendant since he started working in the hospital in August 2010.

PW18 DPC 7416

108.  The officer accompanied Madam C to meet defendant on 10 February 2012. Defendant appeared.  The officer arrested him.  He cautioned him for indecently assaulting Madam C.  Defendant replied he did not know what the matter was.  He just conducted an examination on her.  The officer post-recorded that in his notebook (p20; translation  p20A).  Defendant signed for acknowledgment.  The voluntariness and accuracy of the statement are not challenged.  The officer also found a mobile phone and an Octopus Card (Exh D2) on defendant’s person. According to the agreed facts, the Octopus Card user exited at Tai Wai Railway Station at 14:29 hr on 9 February 2012. 

Defence case and submission

109.  Defendant elects not to give evidence in the trial or call any witnesses.  The agreed facts show he has a clear record.  According to PW16 Wong, defendant has never been complained of in his one odd years of work in the hospital.

110.  Defence Counsel puts to Madam C that defendant only examined her joints, waist and back when she was on her trolley bed in the common area.  She was never led to Room 00C36 for examination.  Defence Counsel puts to her she was angry, disturbed and highly confused at the hospital.  Her erroneous writing on Exh D1 evidences that.  Counsel says Madam C is an evasive and unreliable witness.

Finding

111.  In her examination-in-chief, Madam C is quite straight-forward.  She describes how the medical staff attended her and how the male nurse Hugo (ie defendant) approached her.  She relates clearly what happened in Room 00C36: how defendant touched her body (including her vagina), what they talked afterwards and that she wrote down her phone number and address for him.  She also states clearly how she contacted her friend Leung and complained to him about the alleged assault later in the evening, how they went to the police station and how defendant was arrested in the controlled meeting designed by police.

112.  Defence challenge Madam C’s mental state in the hospital. As such, it is legitimate for Defence Counsel to ask her questions relating to her psychiatric problem. It is explained to her the relevance and significance of such cross-examination.  Madam C indicates she understands.  Yet, as the cross-examination goes on, her evidence deteriorates rapidly.

113.  In her examination-in-chief, Madam C has not disclosed she had delusion, hallucination and suicidal ideation over the past three days before her going to the Prince of Wales Hospital on 9 February 2012. When being cross-examined on her past suicidal attempts or ideation, she becomes defensive and evasive.  She is asked how many times she had thought of suicide in the past.  She first replies ‘once’ and says that was several months ago.  Defence Counsel refers to her psychiatric medical record (p18), which shows a wrist cutting event five odd years ago before October 2011.  She then agrees that was another impressed incident.  When asked whether she did cut her wrist on that occasion, she replies vaguely that she did not do it ‘formally’.  When she is asked to explain what that means, she becomes evasive again and fails to give a clear and direct answer.  All in all, she is reluctant to tell how many times she had suicidal ideas or attempts.  She understands the questions but tries to be evasive in her answers.

114.  While it is understandable that Madam C might not want to talk about her psychiatric problem, it is puzzling to see she demonstrates the same evasiveness when Defence Counsel asked her whether she once left her trolley bed on 9 February 2012 and came back after some time with a pack of cigarettes in her hand.  It is a specific scene put to her in the clearest way.  One would expect she either denies or admits it.  Yet, her response in court is one of hesitation before saying she did not remember that scene.  Defence Counsel further points out that defendant then spoke to her and told her that she must not leave her bed or smoke in the hospital. Madam C surprisingly retorts counsel by saying ‘And so what?’ Then she maintains that she does not remember such scene. However, after a few questions she changes to say, “There’s this chance that I might have left the hospital and had a cigarette outside.”

115.  I am sure Madam C is not lacking memory here.  Again, she simply tries to be evasive for reasons only known to herself.

116.  Defence Counsel takes out a piece of paper (Exh D1).  It is a unique piece of paper – a white translucent square paper of about 5 inches on each side.  There were three lines written on it with a blue ball pen. The first line had a 7-digit number and the name Zoe, which was Madam C’s English name.  The second line contained an 8-digit number.  It was formed by the same seven digits appearing in the first line plus an additional numeral ‘5’. Madam C agrees this 8-digit number was her mobile number.  The third line was an email address but the last part was erroneously written as ‘gmil.mon’ instead of gmail.com. (In court, Madam C writes out her correct gmail address on p19).  Counsel let her look at the paper (Exh D1) carefully before he asks her questions about it.

117.  Exh D1 is unique in its size and content.  One would expect Madam C to say she had never seen it if it was not the paper she wrote out in the hospital.  She does not say so.  Or if it was that paper, she should be able to recognize it readily.  But the fact is when Defence Counsel asked Madam C whether she had seen the paper before, she asked back “Would I have seen this piece of paper before?”.  I notice how the witness gives this answer in court.  I am sure she does not fail to apprehend the question and thus needs repetition.  I find she just tries not to give an answer in the first instance.  Counsel presses on.  She then answers, “I think so.”  However, she goes on to say she is not sure if that was the paper she wrote for defendant though she agrees she gave no one else her contact information. She is further asked if the writing on the paper was her handwriting.  Again, she says ambiguously and surprisingly, “I think so”.  When probed further, she says, “It looks like my handwriting”.  She sounds unsure but soon changes to admit the paper was written by her.  While she says she was sure, she at the same time also says she cannot remember under what circumstance she wrote the paper out. Later on, she withdraws her earlier confirmation that it was her handwriting.  She reverts to say she is not sure. She says she has no memory of writing on such paper.  She states affirmatively that she had written her residential address on the paper she gave defendant, not her email address.  Yet she tells Defence Counsel the email error on the paper might be only a spelling mistake.  At the same time, she maintains she is not sure if Exh D1 was the paper she wrote out and gave to defendant. She says she cannot remember if she had first written a 7-digit number before writing down her complete phone number in eight digits.  Yet, she goes on to say, “But if it’s me, I must have omitted the numeral ‘5’ but in the second line already I had put in the numeral ‘5’ ”.

118.  Taking all the answers given by Madam C into consideration, I am quite sure Exh D1 is not a fake and it was the paper she wrote and gave to defendant in the hospital on 9 February 2012.

119.  Although the incident on 9 February 2012 occurred more than a year ago, Exh D1 is a unique piece of paper in its size and content.  It can easily remind the author of the circumstance under which it was written.  If that was not the paper in question, Madam C can say so without difficulty. She does not.  If that was the paper, she ought to recognize it readily.  She does not either.  Instead, she gives answers that are highly ambiguous and shifting. Either she is again evasive in court or she was really confused in the hospital so much so that she is now unable to recall clearly the circumstance surrounding it, even though the paper is placed right before her as a strong reminder.

120.  Madam C denies vehemently that she was confused in the hospital.  According to Dr Law, she had been in delusion and hallucination for the past three days before she went to the hospital although she did not exhibit such signs before the doctor.  She did not appear to be abnormal before the other doctor – PW14 Dr Lam, who first saw her between 3 pm and 4 pm. However, Dr. Lam says he cannot tell if Madam C was a different person just hours before he saw her then.  In fact, the doctor says a person who wrote Exh D1 in that erroneous manner would be in a clouded state of mind.  That is, the writer was not in a normal conscious state when she so wrote.  She might be confused.  Her memory might not be accurate.

121.  Exh D1 speaks for itself. Madam C cannot recall accurately about that paper because she was confused when she wrote it.  According to her, she wrote it just after defendant had finished the vaginal examination on her in Rm 00C36.  One then doubts whether she recalls the alleged examination correctly and accurately.

122.  I have to find Madam C mistakenly testifies that defendant had some dyed hair and wore a white coat outside his uniform.  PW16 Wong says he had never seen defendant having dyed hair or any nurse wearing a white coat over the uniform.  Actually the hospital would not allow nurses to wear a white coat.

123.  I also find Madam C was mistaken in telling police that the alleged assault occurred around 2:15 pm because by that time defendant had already left the hospital.  PW16 Wong says if defendant got to Tai Wai Railway Station by 14:29 hr (evidenced by Exh D2), it was likely defendant had left the hospital by 2 pm.

124.  All these show Madam C is not as accurate as she sounds.  In such circumstance, it is necessary to look for evidence to corroborate her saying that defendant conducted a vaginal examination on her in Room 00C36.

125.  Defendant admitted to police that he had conducted an examination on Madam C but the investigating officer did not clarify with him on the nature of the examination or where it took place in the hospital.

126.  Defendant had sent WhatsApp messages to Madam C.  The first one was for thanking her for her assistance; the second one referred to defendant’s telling Madam C that she did not seem to have inflammation. Again, these two messages do not shed enough light on what the nature of the examination was and where it took place in the hospital.  They do not lend sufficient weight to corroborate Madam C’s evidence of the alleged vaginal examination in Room 00C36.  

Verdict

126A I find Prosecution have not proved Charge 5 beyond reasonable doubts. Defendant is acquitted of this charge.

Charge 6

127.  Prosecution allege defendant between 12 June 2011 and 11 February 2012 stole four hospital barcode labels and one medical report. They were properties of the Hospital Authority.

128.  It is not in dispute police found in defendant’s locker in the hospital the following documents:-

(1) one copy of A&E Attendance Record and one barcode label relating to Madam A (p6 and p5 respectively);

(2) one barcode label relating to Madam So Chi Ying (p10); and

(3) one barcode label relating to Madam Chan Sau Ping plus one barcode label relating to Madam Tam Po Lam Pauline (these two labels were on one strip – p9).

129.  There is some dispute on how the aforesaid documents lied in defendant’s locker when police found them.  Defence suggest they might be left there casually without dishonest deeds.  In any event, they were still within the hospital so they should not be regarded as having been stolen from the hospital.

130.  For this charge, PW19 DPC 4890, PW16 Mr Wong Kam Yip, PW6 Madam So Chi Ying, PW5 Madam Chan Sau Ping give evidence. Part of PW1 Madam A’s evidence is also relevant to this charge.

PW19 DPC 4890

131.  He escorted defendant to his locker (Locker 23) in Room 00C32 of the hospital for a search (see photos 15-19 of p3).  Defendant opened his locker with a key.  Once open, the officer could see some clothing and other items placed inside the locker.  He cannot remember what those other items were.  After he had removed the clothing, he could see p5, p6, p9 and p10 (see p4: photos 1, 7, 3 and 2 respectively) and three other pieces of paper (see photos 4-6 of p4). The officer says all the items were put together and leaned against one side of the locker.  That is, they stood between the clothing and one side of the locker.  Defence Counsel puts to the officer that the items were scattered under the clothing, as if they had been tossed out of the clothes and lied around there.  The officer disagrees.

PW16 Wong Kam Yip

132.  His evidence in para 32-33 is repeated here.  Wong says defendant had been assigned that locker for his own use since he started working in the hospital in August 2010.

133.  Wong says when a patient registered at the Registration Office of the Accident & Emergency Department, the registration staff would input the patient’s particulars including name, ID number, address and telephone number, etc into the computer.  The staff then printed out eight barcode labels on a running strip.  If the next patient’s labels were to be printed, there would be a blank label separating the two sets of eight on the running till.

134.  For a normal strip of eight labels, the first one contained many personal details of the patient; the other seven contained less details. In court, the first and single one is called  Type A label; the other seven are called the Type B labels.  Type A labels contained the patient’s name, the next of kin for contact, date of birth, age, address, telephone numbers, ID number, admission date and time, Accident & Emergency Department reference number.  This Type A label would be stuck onto the patient’s A&E Attendance Record (see p6 which is a copy of Madam A’s A&E Attendance Record).  The A&E Attendance Record would follow the patient in the Accident & Emergency Department.  When the patient was discharged, the record would be scanned into the computer and the original would be kept at the Records Office.  If the patient was sent up to a ward, a copy of his/her A&E Attendance Record would be sent to the ward.  The original document would stay in the Accident & Emergency Department.

135.  The strip of labels now only had seven Type B labels remaining.  This strip would be attached or stapled to the A&E Attendance Record and follow the patient. These Type B labels were to be used in subsequent medical procedures, should the need arise.  Any unused Type B labels would be put in a tray for disposal together with the patient’s A&E Attendance Record.  As said, the record would be scanned into the computer and the original record would be kept at the Records Office.  Any unused Type B labels would be put by the handling nurse into a small unsecured confidentiality box.  There were two such boxes in the Accident & Emergency Department.  On the next day, the cleaning worker would empty the contents of these two boxes into a larger locked confidentiality box.  The key of the large box was kept by a senior staff.  Contractors would come at appointed times to take away the contents of the large box for destruction.

136.  Wong says any copy of A&E Attendance Record would be disposed of in the same way as the unused Type B labels.  Such practice was to protect patients’ privacy data.  This practice was not put down in black and white but all nurses would learn that in their job.  Wong says a nurse would handle 20-30 patients a day.

137.  Wong says all nurses had a common code number to access the computer to print out any Type A or Type B label or any A&E Attendance Record.

138.  P9 was two Type A labels on one strip.  These two Type A labels were separated by a blank label.  They related to two different patients.  Wong can think of no circumstance which required a staff to print out two Type A labels like that.

139.  P5 and p10 are two separate Type B labels relating to two different patients.  Wong agrees with Defence Counsel that a nurse might have to print out extra Type B labels for use in medical procedures after 8 pm, when the staff responsible for the printing job in the nursing station had gone off duty.

140.  Defence Counsel asks if nurses might keep Type B labels in their pockets for use in the course of their duty.  Wong says they could if they found it necessary to do so but the nurse should handle any unused Type B labels in the usual way.  If that nurse forgot to put the unused labels into the small confidentiality box that day, it would be excusable if he/she did it on the following day.

141.  Madam A says that on 9 November 2011, her A&E Attendance Record was put on her bed with a strip of barcode labels.  She had never taken any barcode label or a copy of A&E Attendance Record from the hospital or given them to defendant.

142.  P10 is a Type B label relating to Madam So Chi Ying.  She was a part-time nurse in the Accident & Emergency Department of the Prince of Wales Hospital.  On 6 February 2012, she fell ill.  She registered herself as a patient at 1427 hr.  The doctor she wanted to consult was not available at that time.  She continued to work till 10 pm.  After going off duty at that hour, she went to see the doctor who allowed her to be discharged immediately.

143.  Madam So says she kept her A&E Attendance Record after registration in the afternoon.  The strip of Type B labels was stapled to that record.  That night, she had x-ray test.  She is not sure if any Type B label was taken off the strip by the radiologist.  Other than that, no medical procedure was done.  After the doctor had discharged her, she put her A&E Attendance Record and the unused Type-B labels in the cabinet for medical cards of discharged patients.  The cabinet was not secured.

144.  Madam So says defendant was her colleague.  She came across him before she saw the doctor that night.  She told defendant she was going to see the doctor.  She had not given any barcode label to defendant.  She does not know why p10 was in defendant’s locker on 11 February 2012.

145.  P9 is a running strip containing two Type A labels relating to two different patients.  One related to PW5 Madam Chan Sau Ping.  On 25 July 2011, she went to the Accident & Emergency Department of the Prince of Wales Hospital for consultation.  She was registered at 0314 hr. She stayed in the hospital for about three hours.  She does not know why a Type A label relating to her (the upper label on p9) was in defendant’s locker.  She also does not know why her phone number (62887293) was written above that Type A label.  It was not her handwriting.  She had not given that number to anyone in the hospital other than the registration staff.

146.  The other Type A label on p9 related to a female patient Madam Tam Po Lam Pauline.  She is not available to give evidence in court.

Defence case and submission

147.  Defence say the documents found in defendant’s locker lied around there as if they had been casually tossed out the clothes in the locker.  Counsel suggests they might be left there without dishonest deeds. In any event, they were still within the hospital so they should not be regarded as having been stolen from the hospital.  Defendant elects not to give evidence in the trial or call any witnesses.  The agreed facts show he has a clear record.  According to PW16 Wong, defendant has never been complained of in his one odd years of work in the hospital.

Finding

148.  PW19 DPC 4890 describes how p5, p6, p9 and 10 stood between the clothing and one side of the locker together with three other pieces of paper.  Defence Counsel says they were scattered in the locker as if they had been tossed casually out of the clothes.  The officer disagrees. Defence Counsel comments the officer’s evidence as contrived.  I do not agree.  I find the officer honest and reliable.  He tells what he can remember without making up or exaggeration. His evidence is clear.  I accept his testimony as the truth.  From the manner they were placed, I am sure defendant kept p5, p6, p9 and p10 inside his locker advertently.

149.  PW16 Wong is also a truthful and reliable witness.  He relates clearly how Type A labels were stuck onto the original A&E Attendance Record; how copies of A&E Attendance Records and unused Type B labels would be disposed of.  He also states the circumstances how barcode labels and copies of A&E Attendance Records might be reproduced.  P5, p6, p9 and p10 must have been generated from the hospital’s computer.  It is clear from Wong’s evidence that whoever generated p5, p6, p9 and p10 from the hospital’s computer, those documents would remain as the hospital’s properties.  That is they belonged to the Hospital Authority at all times.  They should not be kept by the patient or any hospital staff for their own disposal or keeping.

150.  P6 is a copy of the A&E Attendance Record relating to Madam A.  It was not known when it was generated in the hospital and by who.  But one thing is for sure: defendant got hold of it at some point of time and kept it advertently in his locker till it was found by police on 11 February 2012.

151.  Defence Counsel suggests to Madam A that she should know defendant would have to access her medical record if he were to help her to process a replacement sick leave certificate.  Even if that were the case, defendant still would not be entitled to keep p6 in his locker as his own property.

152.  It is to be noted that p6 was a copy of Madam A’s A&E Attendance Record.  It bore the Type A label, which contained many personal details of the patient’s.

153.  P5 is a Type B label relating to Madam A.  We do not know whether it was one of the seven Type B labels printed out when she was registered at the Accident & Emergency Department on 9 November 2011 or it was a subsequent reproduction. It was not known when it was generated in the hospital and by who.  But one thing is for sure: defendant got hold of it at some point of time and kept it advertently in his locker till it was found by police on 11 February 2012.  Defendant would not be entitled in any circumstance to keep P5 in his locker as his own property.

154.  P10 is another Type B label relating to Madam So.  Again, we do not know if it was one of the seven Type B labels printed out when she was registered at the Accident & Emergency Department or it was a subsequent reproduction. It was not known when it was generated in the hospital and by who.  But one thing is for sure: defendant got hold of it at some point of time and kept it advertently in his locker till it was found by police on 11 February 2012.  Defendant would not be entitled to keep p10 in his locker as his own property.

155.  P9 is a running strip of two Type-A labels relating to two different patients.  One of the two patients was Madam Chan Sau Ping, who gives evidence in court.  She does not know why a Type A label relating to her was found in defendant’s locker.  The other patient was Madam Tam Po Lam Pauline.  She is not an available witness but that does not matter.  According to PW 16 Wong, in the normal course of events only one Type A label would be generated and it would be stuck onto the patient’s A&E Attendance Record.  Thus there would not be any unused Type A labels.  There is no evidence to justify a nursing staff to reproduce another Type A label from the hospital’s computer.  In fact, p9 was not one but two Type A labels on the same strip, only separated by a blank label. PW16 Wong can think of no circumstance why two Type A labels should be so generated.  I am thus sure p9 was not generated in the legitimate course of duties of any hospital staff.  It was not known when it was generated in the hospital and by who.  But one thing is for sure: defendant got hold of it at some point of time and kept it advertently in his locker till it was found by police on 11 February 2012.  Defendant would not be entitled to keep p9 in his locker as his own property.

156.  Wong says if a staff forgot to put back any unused Type-B labels into the small confidentiality box within the day, it would be acceptable if he/she did it on the next day.  However, I am sure it was not the case that defendant forgot to put p5 and p10 (the two Type B labels) back for proper disposal.  I find as I am sure he kept these two Type B labels together with the two Type A labels (p9) and that copy of A&E Attendance Record (p6) in his locker advertently.

157.  Defendant had worked in the Prince of Wales Hospital for over one year by 11 February 2012.  (To be exact, it was one year and six months).  I accept Wong’s evidence that all nurses knew how they should deal with a copy of a patient’s A&E Attendance Record and any barcode label.  I am sure defendant knew that.  I am also sure defendant knew those documents p5, p6, p9 and p10, which he kept advertently in his locker remained to be the Hospital Authority’s properties all the time, no matter how he came to possess them in the hospital. I am sure defendant knew well he was not entitled to keep them in his locker as his own property. Right-minded persons would regard such act of his as dishonest and I am sure defendant knew that too.  I am sure defendant was dishonest when he kept them in his locker.

158.  P9 was two Type A labels which contained many personal details of the patients, including their telephone numbers and addresses.  P6 was a copy of Madam A’s A&E Attendance Record with her Type A label on it, so it revealed the same detailed information of the patient’s. P5 and p10 were two Type B labels.  On the face, they did not show any means of contact but certainly a nursing staff like defendant could use the scanning device available in the hospital to read the patient’s detailed information from such Type B labels.  All the patients involved: Madam A, Madam So, Madam Chan and Madam Tam were ladies in their twenties.  I am sure defendant purposely collected documents from the hospital concerning these young female patients as a scheme over a period of time and then kept the documents in his locker as his own property.  As such, even though Charge 6 relates to different items which must have been appropriated by defendant at different times, the charge is not bad for duplicity.

159.  P5 and p6 could not exist earlier than the admission date of Madam A, ie 9 November 2011; P9 not earlier than the admission date of Madam Tam Po Lam Pauline, ie 12 June 2011 (the other patient on p9 Madam Chan Sau Ping was admitted on 25 July 2011), and P10 not earlier than the admission date of Madam So Chi Ying, ie 6 February 2012.  Thus, defendant must have taken these documents into his possession on purpose at different times from no earlier than 12 June 2011 to the date when police found them in his locker on 11 February 2012.

160.  Defence Counsel submits that the documents were found in defendant’s locker.  They were therefore still within the hospital so they cannot be viewed as having been stolen from the hospital.  I disagree.  The documents were the hospital’s properties.  By taking them into his own possession and keeping them advertently in his locker, defendant had treated the documents as his personal properties and dealt with them in a way as if he were the owner.  He had appropriated the properties with the intention of permanently depriving the hospital (run by the Hospital Authority) of such properties.  I also find as I am sure he was dishonest in so doing.

Verdict

161.  Prosecutor has proved beyond reasonable doubts defendant between 12 June 2011 and 11 February 2012 stole the four hospital barcode labels and that one medical record, which were properties of the Hospital Authority.  Defendant is convicted of Charge 6.