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    G G BETWEEN H H HKSAR Respondent I I and J J LEE SOU LEUNG(李修良) Appellant K K ---------------------- L L Before : Deputy High Court Judge Longley in Court Date of Hearing : 18 January and 3 April 2008 M M Date of Judgment : 3 April 2008 N N ------------------------- O O J U D G M E N T ------------------------- P P 1. This is an appeal by the appellant, a 63-year-old businessman,

    against his conviction by Mr Albert Wong on 7 August 2007 on a charge Q Q of indecent assault, contrary to section 122(1) of the Crimes Ordinance, R R Cap.200, and the sentence of 12 days imprisonment imposed by the S S magistrate. T T U U V V

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     2. The charge alleged that on 5 September 2006 inside the B B Vanilla Pod Spa room of the Victorian Spa at the Hong Kong Disneyland A C C Hotel the appellant had indecently assaulted the complainant, A Miss Shum Wing Po. Miss Shum was a 23-year-old trained masseuse

    D D employed at the spa. E E 3. The magistrate heard evidence that the appellant had had two

    F F pervious massages at the same spa. A few days before the incident in G G question the appellant and his wife and two daughters had stayed at the hotel from Tuesday, 29 August until Thursday, 31 August. On 29 August H H the appellant had received a massage at the spa but not from Miss Shum. I I Early the following morning the appellant had taken his two daughters to the spa where their fingernails had been painted by Miss Shum. During J J the course of the nail painting there had been conversation between the K K appellant and Miss Shum about massages for men. Following the nail painting the appellant had gone to the reception desk and booked a L L 50-minute session of full body massage for himself at noon that day with M M Miss Shum. That massage had taken place. Although Miss Shum alleged that on more than 10 occasions during the massage the appellant N N had grabbed her hands when she had touched his hands, that does not form O O the subject matter of the charge before the court. P P 4. On the following Tuesday, 5 September 2006, the appellant Q Q made a telephone appointment with the spa from his office and booked two sessions of body massage, one scrub and one pedicure to be carried out by R R Miss Shum. The treatment was to start at 12:30 p.m. that day. S S T T U U V V

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     5. When the appellant met Miss Shum he was wearing a bathing B B robe provided by the spa and his own underpants. Miss Shum asked him A C C if he would wear the underpants provided by the spa but the appellant had A said that he would wear his own. The session had started with scrubbing

    D D treatment. After Miss Shum had poured massage oil on his back, the E E appellant had asked if he could remove his underpants to avoid them being stained. She had told him that this was not permitted and had given him

    F F underpants provided by the spa, into which he had changed. Initially the G G scrubbing treatment had been to his back and then to his front. During the course of the scrubbing treatment the appellant had grabbed one or H H both of her hands about four to five times when she touched his hands. I I This grabbing had sometimes been light, sometimes tight. In response she would gently move his hand away from hers. After the scrubbing J J treatment the appellant had taken a shower. According to Miss Shum, K K although this was denied by the appellant, the appellant had not closed the door of the shower cubicle when showering. L L M M 6. The massage treatment had then commenced, initially on the appellants back and then on his front. He had continued to grab N N Miss Shums hand or hands whenever she touched his. O O 7. He had originally booked a treatment for his nails but when he P P learnt that it would have to be carried out in an open area the appellant had Q Q indicated that he did not like the lack of privacy there and was too tired to move. Instead he asked for a facial massage to be carried out in the same R R private room. S S T T U U V V

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     8. After Miss Shum had gained the approval of the manager she B B started the facial massage. A C C A 9. This was carried out with the appellant lying face up on the

    D D massage bed and Miss Shum sitting close behind the top of his head about E E 6 inches away. It was during this treatment that the conduct that constituted the alleged indecent assault occurred.

    F F G G 10. The learned magistrate said this : H H 115. I found that the Appellant had behaved as PW2 [Miss Shum] testified. During the massage the Appellant did grab her hand many times when their hands came into contact. I I When she was performing facial treatment, the Appellant grabbed her hands and tucked them under his shoulders. He

    then turned his head sideward and kissed her forearm. After J J that, he moved his hand and brushed upward along her arm until he touched her body. PW2 managed to retrieve her hands, she K K told the Appellant to relax and continued the face massage. 116. Then the Appellant repeated this course of action once L L again. When PW2 withdrew her hand, the Appellant asked if time could be extended and other massage treatment was M M available. PW2 said she had to ask the management and took the opportunity to leave the room. N N 11. Miss Shum had demonstrated that the appellant had ultimately O O touched the right side of her body at chest level. P P 12. The magistrate went on to discuss whether it was possible that Q Q the grabbing of Miss Shums hands by the appellant was the result of a R R reflex action which the defence expert witness said sometimes caused a curling of the fingers of a person whose hand was being massaged. S S T T 13. He commented : U U V V

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     Such grabbing, without more, cannot in any way be said to B be indecent, in the circumstances of the case. However, put in B context, it showed that the conduct of the Appellant was progressive. First, grabbing of hand, then kissing of the A C C A forearm, followed by brushing of the whole arm until the hand touched the side of her body at chest level. D D 14. The magistrate concluded that he was satisfied that the kisses E E and other physical contact by the appellant were not the result of an F F accident or any unintentional touch but were deliberate.

     G G 15. He said : H H Applying the standard of a right thinking person, I found I that such course of conduct was indecent, it amounted to an I affront to the sexual modesty of a woman. It was sufficiently offensive to contemporary standards of modesty and privacy as J J to be indecent. K K 16. Mr Macrae has advanced a number of grounds of appeal on L L behalf of the appellant. M M 17. He initially drew the courts attention to what he described as N N a puzzling feature in the magistrates Statement of Findings. O O 18. A colleague of Miss Shum, Miss Leung Oi Lin (PW3) gave P P evidence of Miss Shums distress after the alleged incident. She said Miss Shum had come into the staff room and had said that the customer Q Q wanted one more treatment. On looking at her Leung Oi Lin had R R noticed that Miss Shum’s eyes were red and then Miss Shum had “cried

    badly” and told her what had happened. The magistrate commented that S S one inference that could be drawn from Miss Shums distress was that it T T was because of the alleged conduct of the appellant, but he then went on to U U V V

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     say that he did not think it was the only irresistible inference to be drawn B B and in the light of Leung Chi Keung v. HKSAR [2005] 1 HKLRD 425 he A C C disregarded this aspect of the evidence. A

    D D 19. Mr Macrae argued, although perhaps somewhat tentatively, E E that this might suggest that the magistrate had come to the conclusion that there might be some other reason for Miss Shum’s distress. I am satisfied

    F F that what the magistrate was doing in this passage was not stating his final G G conclusion as to the significance of Miss Shum’s distress but simply stating that the evidence of distress alone did not irresistibly lead to an H H inference that the appellant had committed the acts complained of. I I 20. The principal grounds of appeal focused on the way the J J magistrate dealt with three aspects of Miss Shum’s evidence which K K Mr Macrae argued, precluded a conviction based on her unsupported account. L L M M 21. The first aspect was the evidence of the reaction or lack of reaction by Miss Shum to alleged conduct on the part of the appellant. N N Despite the appellant having grabbed her hands on a number of occasions O O on 30 August, her reaction had simply been to tell him to relax and not be nervous. Despite this conduct she had been prepared to accept the second P P appointment with him on 5 September. He had again grabbed her hands Q Q from time to time during the scrub and massage on that day. Despite that she had not complained of his conduct when she went out of the room to R R consult the management about the appellants request to change the S S remaining part of his treatment from manicure/pedicure to a facial treatment, nor had she complained to the appellant, although she did say T T U U V V

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     that whenever he grabbed her hands she would throw them away. B B Furthermore she did not immediately leave the room after the first kissing A C C and touching by the appellant but simply told him to relax and put his hand A or arm back onto the bed. Only when the conduct was repeated did she

    D D leave the room and then run back to the staff room. She said that her E E reaction when she was with the appellant had been to tell him again to relax and put his hand or arm properly. She had not scolded him.

    F F G G 22. Having agreed that Miss Shums lack of reaction could be viewed as an indication that there was nothing wrongful in the appellant’s H H conduct, the magistrate went on : I I ... However, I was also of the view that the reaction of PW2 (Miss Shum) had to be considered in the light that she was a J J relatively green, though sufficiently trained, massage therapist serving in a high class spa where the comfort and respect of clients are of primary concern. The alleged acts fall short of K K what which must have called for a stronger reaction. When the situation where she needed to consult the management arose, she L L took the opportunity to leave the room. I did not consider what PW2 said she had done in reaction something not within the reasonable scope in the circumstances. M M N N 23. It was submitted that the considerations advanced by the magistrate to explain Miss Shums lack of reaction were not founded in O O evidence. P P

    24. I do not find this submission to be well founded. Although Q Q Miss Shum was not asked and therefore did not explain why she had not R R confronted the appellant or complained about his conduct earlier, the S S magistrate was entitled to draw common sense inferences from all the circumstances. It is common sense that in a respectable establishment T T like the one in question a masseuse would not wish to confront a client or U U V V

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     complain to the management especially when the clients conduct was still B B equivocal. Even when the conduct clearly overstepped what was proper, A C C it might well be understandable and even advisable if the conduct was not A particularly serious for the masseuse to ignore it or deal with it

    D D diplomatically in the hope that the client might get the message and desist E E rather than provoke a confrontation. This course was particularly understandable when the staff member was young and relatively

    F F inexperienced like Miss Shum. G G 25. When the appellant had grabbed her hands Miss Shum had H H told him to relax and had put his hands back on the bed and had pushed his I I hands away. J J 26. She did in fact give an explanation for her failure to scold him K K after he had brushed his hands against her chest. She said that she was frightened and that she did not know what to do. L L M M 27. I find that the magistrates comment that when the situation where she needed to consult the management arose she took the N N opportunity to leave the room perfectly justifiable. That is what she said O O she did. The appellant had asked whether there was any other forms of massage he could receive. She had said there were probably not and, in P P her words : Then I took this chance to go out and ask the manager for Q Q him. From the context it is clear that what she meant was that she used the pretext of asking the manager as a chance to leave the room. R R S S 28. The second aspect of Miss Shums evidence and the learned magistrates handling of it relied upon by Mr Macrae was the T T U U V V

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     inconsistency between Miss Shums evidence in the first trial and in this B B second trial as the number of times the appellant had kissed her. A C C Mr Macrae argued that there was an inconsistency as to the actus reus of A the alleged offence rather than as to a peripheral matter and that the

    D D magistrate did not adequately deal with it. E E 29. Before turning to the manner in which the magistrate dealt

    F F with the matter it should be borne in mind what the alleged inconsistency G G was. In this trial Miss Shum had given evidence that there had been two occasions that the appellant had kissed her on the forearm and touched her H H in the chest area. On the first occasion she said he kissed her twice on the I I forearm and on the second occasion she said he again did the same. J J 30. It was not suggested in cross-examination, or by Mr Macrae K K before me, that at the first trial Miss Shum had not said that there were two occasions that the appellant had kissed her forearm. It had simply been L L put to her in cross-examination that at the previous trial she had at one M M point during her narration referred to the appellant planting not two kisses but one kiss on her forearm. She said that she could not remember giving N N that answer in the previous trial. It was not disputed that she had given O O that evidence in the first trial. In re-examination she said that what she had said in this trial was true. P P Q Q 31. It can be seen therefore that the inconsistency was not a fundamental inconsistency as to the nature of the alleged assault by the R R appellant but as to a detail, namely as to how many kisses he had planted S S on her forearm on one of the two occasions which he had kissed her there. It is something that an honest witness could easily forget. T T U U V V

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     32. In any event I consider that the magistrate dealt with the B B inconsistency as to the number of kisses perfectly properly. He pointed A C C out that memory can be affected by many factors and that kissing had A consistently been part of Miss Shums allegation. He said that there was

    D D no suggestion that her present evidence was inconsistent with the witness E E statement which she had given. He said that having considered the whole of the evidence he did not consider this matter by itself was so material

    F F that it would adversely affect the overall credibility of Miss Shum. G G 33. Mr Macrae has suggested that, by his reference to the fact that H H it had not been put to the witness that the evidence was inconsistent with I I her witness statement, the magistrate must have unjustifiably inferred that Miss Shums witness statement was consistent with her evidence in court J J as to the number of kisses planted by the appellant on her arm. I do not K K accept that that is a necessary inference from what the magistrate said. The fact that it was not suggested that there was an inconsistency with her L L witness statement was a relevant consideration in assessing her credibility M M and accuracy. N N 34. The third aspect of Miss Shum’s evidence relied upon by the O O appellant was said to be the inherent improbability of the appellant being able to kiss Miss Shum in the manner she described, bearing in mind the P P evidence of Ms Carla Bekker-Smith (DW2) who was called by the defence Q Q and accepted by the court as an expert in massage therapy. R R 35. Ms Carla Bekker-Smith gave evidence that in administering a S S shoulder massage on a patient lying on his back using what she described as a good technique practice when the masseurs hands were under the T T U U V V

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