HKSAR v. SOONG ROONG SHENG

HCMA457/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.457 OF 2000

(ON APPEAL FROM ESCC 2432 OF 1999)

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REASONS FOR JUDGMENT

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1. The appellant was charged with five counts of indecent assault that allegedly had taken place during the period of 23 July to 1 August 1998. The victim involved the same girl. The appellant pleaded not guilty to the charges and was convicted after trial. He was sentenced to a total term of 12 months. The appellant originally sought to appeal against both the convictions and sentence. However, at the hearing, counsel for the appellant informed this court that the appeal on sentence would be abandoned. The application was granted.

2. The general background of the case was as follows: The appellant is a medical doctor in private practice in Hong Kong at the clinic as stated in the charges. The offences had taken place inside the clinic. The victim was a 17-year old girl who was employed by the appellant as a nurse. At the material time, there was another female nurse working at the clinic and she was called as a defence witness. In relation to the first four charges, the prosecution case was that the appellant had indecently assaulted the girl under the pretext of conducting medical examinations on her. As to the fifth charge, the prosecution alleged that the appellant had indecently assaulted the girl in the changing room of the clinic.

3. The learned Magistrate had, in his judgment, clearly summarized the prosecution and defence case and I considered it unnecessary to recite the details here. I shall proceed directly to the grounds of appeal raised.

4. There were four grounds of appeal. In respect of the first four charges, it was argued that the learned Magistrate had failed to consider the equally reasonable and possible inference that the appellant was simply incompetent; in respect of the third charge, it was said that the Magistrate had misdirected himself on the issue of reasonable belief on the part of the appellant regarding the victim's consent; in respect of all charges, the complaint was that the Magistrate had failed to consider some of the material facts and lastly, it was submitted that there was a lurking doubt in this case. Counsel for the appellant had very helpfully prepared a written skeleton argument, which had set out the details pertaining to the individual grounds.

5. In relation to the first ground, the appellant contended that the learned Magistrate had, based on his factual findings, come to the conclusion that the medical examinations in respect of the first four charges were only a pretext. However, such findings were capable of supporting the inference that the appellant was only incompetent. These facts were, inter alia, that the appellant had not used any gloves and/or speculum during the vaginal examinations, the use of a swab without a speculum to obtain a specimen was meaningless, the use of Multistix was not a proper test for vaginitis and the appellant's remark about the girl's clitoris.

6. Further, it was said that the Magistrate could not rule out the possibility of incompetence unless he could eliminate certain other matters, which included the issue of consent. The appellant had put the arguments in this way :

"...

(ii) The issue must be whether the Appellant had gone beyond PW1's consent and, more importantly, whether there was evidence to establish that he was aware of that. This is because if the Appellant was not aware that he had gone beyond what was consented to by PW1, then whatever he did must have been done with the belief that he had PW1's consent (direct or implied) so to do. There was no evidence to establish this. On the contrary, the evidence of PW1 was that she had not complained after the first examination about what the Appellant had done and was still willing to be further examined by the Appellant on 3 subsequent occasions [p.42G-I Statement]. This must be very cogent evidence to indicate that she had at no time (at least up to the moment after the 4th examination) considered what the Appellant had done or was doing was improper or indecent.

(iii) If there was no evidence that the Appellant had known what he did was not proper, then there must be doubt as to whether he was simply incompetent rather than indecent."

7. The respondent's reply to the point about incompetence was simply that it was not a defence raised at the trial that the appellant had been an incompetent doctor. I have gone through the transcript of the trial, particularly the final submissions given by defence counsel. It appeared that what the defence had raised was mainly in relation to the issue of corroboration, recent complaint and the inherently unreliable and unclear evidence of the girl. Counsel for the defendant had stated the following :

"...Let's not get over-technical. For example, there have been many criticisms made about not using the speculum and the defence of course tries to dignify that with producing price list, with cost effectiveness as various considerations. I suppose we have to dignify that sort of allegation but at the end of the day we must (not) lose sight of the real evidence that had been given by the victim, by the defendant and defence witnesses."

It was submitted, inter alia, that the mere fact that the ungloved hand was used in taking the swab could not be indicative of indecency, it might just be a drop in the standard.

8. As the learned Magistrate had observed in his judgment that the defence case was that the only time that the appellant had physically touched the girl was during the course of medically justified examination, there was no indecent act or intent in these circumstances (Page 80, Transcript). Regarding the fifth charge, the Magistrate noted that the defence was a complete denial on the part of the appellant.

9. At the trial, the prosecution had called an expert to testify. He was Professor Lao. His evidence was summarized by the Magistrate as follows:

" Prosecution called Professor Lao, Associate Professor of Obstetrics and Gynaecology at Hong Kong University. His evidence in brief was that on a complaint of frequent urination it could be indicative of a urinary tract infection. The proper investigative procedure is a mid-stream urine sample taken for microscopic and bacteriological culture. Complaint of frequent urination alone was not indicative of vaginitis.

He said again a Multistix test alone could not raise suspicion of vaginitis. He said a glove should always be worn for any vaginal or intimate examination of the female anatomy and a speculum should be used to obtain such samples. His conclusion was the use of a swab without speculum is totally meaningless. The result could not be conclusive of anything as there would be a risk of contamination of the sample from the floor or within the lower genital tract."

10. The learned Magistrate had seen and heard all the witnesses. He finally decided to reject the evidence of the appellant and his witnesses. He accepted the evidence of the prosecution witnesses, particularly the expert opinion of Professor Lao. On the basis of such findings, it would seem to be an inevitable conclusion that the medical examinations conducted by the appellant were indeed just a pretext and not genuine medical examinations.

11. The appellant was qualified as a medical practitioner in Beijing, he had received further training in London, the United Kingdoms, and then he came to Hong Kong to start his private practice in 1983 when he joined Anderson & Partners. Against such a background, and without the issue of incompetence raised specifically as a defence, I was not convinced that the learned Magistrate had to consider this matter. In the circumstances, I did not consider that the learned Magistrate had made an unjustified inference of guilt against the appellant.

12. The other matter raised in this connection was the question of consent. In the context of medical examinations, when a patient consents to being examined or treated, of course, there could not be any indecent assault, but if the medical treatment or examinations were found to be a pretext only and not genuine ones, then the consent could not be a true consent. The consent given under these circumstances would be, as the respondent had put it, vitiated. In my view, the learned magistrate had correctly stated the position in his judgment :

" In relation to four of the charges [the alleged 4 charges], the alleged assault took place during the course of a medical examination to which the first prosecution witness had, on the face of it, consented. Ordinarily consent is a defence to a charge of assault including indecency. However, if the consent is procured by fraud, for example, under the pretence of medical examination or operation, then such consent constitutes no defence.

It is necessary for the prosecution to prove beyond a reasonable doubt that consent was procured by fraud and that any medical examination conducted was a pretext for an intention of assault in circumstances of indecency intentionally committed by the defendant. ..."

And in the present case, the Magistrate had obviously found that the prosecution had discharged its onus and burden of proof in relation to the charges.

13. The appellant had argued that the issue must be whether the appellant had gone beyond the girl's consent. It was said that if the appellant was not aware that he had gone beyond what was consented to by the girl, then whatever he did must have been done with the belief that he had the girl's consent. In my judgment, the question here was not whether the appellant's individual act had gone beyond the girl's consent, but that her consent, implied or express, was given on the basis that the appellant was conducting genuine medical examinations on her. If the submission contained an implicit suggestion that the girl might actually be consenting to the appellant's act, even though she knew that he was not genuinely conducting medical examinations on her, then it should be pointed out that such a matter was not put to the girl nor was it raised as part of the defence.

14. I was not satisfied that this ground of appeal could be established.

15. The second ground of complaint related to the learned Magistrate's reference to the word "reasonable" in considering the evidence of the appellant. What the learned Magistrate had said was this :

His actual evidence was that, "she said when she takes a shower her nipple will stretch out. Actually, she wanted to make them stretch out. I'd said, 'There's no need.' Then I touched the areola region. I said it was normal but she was afraid. I said, 'It's no problem'." PW1 had not at any time asked the defendant to examine her nipples. On his own evidence he had just assumed the right to do so. He could not have reasonably believed that he had the consent to do so, he just did it. (Page 92, Transcript)

16. The authority of DPP v. Morgan [1976] AC 182, HL, was cited. The relevant principle stated in the case is that when a defendant had had sexual intercourse with a woman without her consent, genuinely believing nevertheless that she did consent, he was not to be convicted of rape, even though the jury were satisfied that he had no reasonable grounds for so believing.

17. Based on this authority, it was submitted on behalf of the appellant that honest but mistaken belief by the appellant was all that was required, "reasonableness" or "reasonable belief" was not required. Hence the learned magistrate had applied the wrong test.

18. This issue of honest but mistaken belief seems to have its connection in the statutory provisions on the law of rape. Section 118(1) of the Crimes Ordinance, Cap.200, gives the definition of the offence of rape and then in subsection 4, the following is provided :

"(4) It is hereby declared that if at a trial for a rape offence, the jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed."

In this regard, it appeared that the Morgan principle was an attempt by the common law to supplement the statutory provisions regarding the mental state of the defendant by introducing a defence of honest but mistaken belief.

19. Even if such a principle is applicable to the offence of indecent assault, the present context required different considerations. Here, there was an issue of whether the medical examinations were genuine ones or not. And in any case, it was not the appellant's testimony that he held the honest belief, albeit mistakenly, that the girl was consenting to his touching and fondling even though they were not genuine medical examinations. Considering the context of the case, I was not persuaded that it was a material misdirection.

20. The appellant had argued in the third ground that the learned Magistrate had failed to consider sufficiently certain evidence. These were stated in the written skeleton and I would not repeat them here.

21. I had taken time to carefully consider the documents and transcript of this case. I could see that the learned magistrate had taken a cautious approach in considering the evidence and he had given a very thorough judgment after the trial. He had carefully assessed the testimonies. He had evaluated the strengths and weaknesses of the witnesses and stated the grounds for his finding as to who was credible and reliable and who was not. I found that his analysis was made in a fair and balanced manner. Perhaps he had not dealt with all the finer details of the evidence, but I believe that he was not obliged to do so. Therefore, I was not satisfied that the Magistrate had failed to consider the evidence sufficiently as a whole before he made his decision.

22. Finally, the appellant had invited this Court to consider that there was a lurking doubt in the present case. It was said that the law provided that if there was a lurking doubt, then the convictions could be quashed. It was submitted that a lurking doubt does not require this Court to point to anything in particular but is an 'easy feeling' that injustice may have been done. The authority of Ng Sheung-kwan v R (1974) HKLR 482 (Full Court) was cited to support the proposition.

23. Applying such an approach, however, I was unable to say, in the end, that there was any lurking doubt in this case. I did not have the feeling that justice might not have been done here.

24. In the premises, despite Counsel's very persuasive and able submissions, I had come to the conclusion that the appeal on the convictions had to be dismissed.