Indecent Assault
Conviction Quashed

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Indecent assault is an offence contrary to section 122 of the Crimes Ordinance (Cap. 200). The maximum punishment is 10 years’ imprisonment.  An indecent assault is an assault coupled with circumstances of indecency.  The prosecution must prove: (1) that the accused intentionally assaulted the victim; (2) that the assault, or the assault and the circumstances accompanying it, are capable of being considered by right-minded persons as indecent; and (3) that the accused intended to commit such an assault as is referred to in (2) above.

Recent Decision (香港特別行政區 陳展程 [2023] HKCFI 1749)

The Appellant was charged with one count of “indecent assault”, contrary to section 122(1) of the Crimes Ordinance (Cap. 200). The Appellant pleaded not guilty to the charge and was convicted and sentenced to 13 months’ imprisonment by a Deputy Magistrate. The Appellant appealed against his conviction and sentence.

Background of the case

The Appellant sent a message to a female (X) through Instagram and asked X to be his private photographic model.  X indicated that she would not go to the hotel for the photo shoot.  Subsequently, the Appellant and X agreed that the Appellant agreed to pay $500 per hour for a photo shoot to X at a studio for the photoshoot.

The Appellant was charged with one count of “indecent assault”, contrary to section 122(1) of the Crimes Ordinance (Cap. 200). The Appellant pleaded not guilty.  The Appellant pleaded not guilty to the charge and was convicted and sentenced to 13 months’ imprisonment by a Magistrate.

Appellant’s Case

The Appellant exercised his right not to testify.  On the basis of the Appellant’s cross-examination of witness X, the appellant relied on his statement under caution that he had not had any physical contact with X. The appellant’s defence was that he had not had any physical contact with X.  The Appellant relied on his statement under caution that he did not have any physical contact with X as a defense.  The Appellant also argued that even if there had been contact, X had consented to it.  The Appellant’s fiancée was also called as a character witness.  According to the testimony of the Appellant’s fiancée, the Appellant was a person of good academic standing and decent social behavior.  She was not aware that the Appellant had asked a model for a photo shoot prior to the incident.

Grounds of Appeal

  1. The Appellant alleged that the Magistrate had wrongly dealt with the Appellant’s interview record and wrongly failed to consider the Appellant’s credibility as being higher;
  2. The Appellant alleged that the Magistrate had wrongly dealt with the “evidence of grief” of the prosecution’s first witness;
  3. The magistrate’s mishandling of the issue of “consent”; and
  4. The magistrate was wrongly satisfied that PW1 was honest and reliable.

Grounds of Appeal (I)

The Appellant emphasized that Appellant’s videotaped interview was a mixed statement.  The Appellant’s incriminating statements are as follow:

  1. At the time of his arrest, the Appellant responded, “I was just going to take a picture, I wasn’t insulting anyone”. This was tantamount to not disputing his identity as the person involved.

  2. The Appellant later admitted that he liked to take portraits of himself in his spare time, with different clothing themes.

  3. The Appellant admitted that he had sought models on Instagram to take photographs in studios or hotels. (It was X who alleged that she was invited by the Appellant on Instagram to take photographs at these places.)

  4. The Appellant admitted that he used different aliases on Facebook and when making an appointment for studios. 

  5. The Appellant did provide the name of the Instagram account which he used to make photo appointments with the models, including the name of the new account and the old account.

  6. The Appellant admitted the name of the PAYME program and the connected mobile phone number.

  7. The Appellant made an appointment with X for a photo shoot, and gave a more detailed account of the conversation between X and him.

  8.  The Appellant admitted that he paid HK$520 to the studio for the rental of the crime site on February 1, 2021 by PAYME.

  9. The Appellant admitted the procedure of entering the studio with X, including the taking of body temperature.

  10. The Appellant’s admission that X changed her clothes and was photographed. 

  11. The Appellant admitted that he had brought a set of clothes for X to change.

  12. The Appellant admitted that he and X took pictures in three sets of clothes.

The Appellant points to the circumstances of the Appellant’s arrest and interview, all of which the Appellant was not required to, but did voluntarily confess to, in full support of the prosecution’s allegations.  Therefore, the present case is not one of the matters discussed in Brook Edward Joshua.  Therefore, the statement given by the Appellant was indeed a mixed statement.

The Appellant argued that the Magistrate had given full weight to the confession and disregarded the exculpatory part simply because the Appellant did not give evidence, without analyzing the interview record for any implausibility.  Although the Magistrate reminded himself of the principle of R v Sharp, the case law (including R v Sharp) did not support such a draconian approach.

In addition, the Appellant pointed out that although the Magistrate said that “the credibility of the evidence is higher if it is given”, he then mentioned that “the Defendant did not appear in court to give evidence”. Although the appellant did not give evidence, he had a record of the interview, but the Magistrate did not consider that when the appellant had a record of the interview, the Appellant would be more likely to tell the truth, but instead emphasized that the Appellant had not appeared in court to give evidence.

Further, the Appellant argued that the Magistrate had clearly focused on propensity to commit the crime without considering credibility. The Appellant was a qualified accountant who had been recommended by his employer to work in a Big Four firm. The fact that the Appellant had no criminal conviction record should have given him a favorable credibility consideration, not to mention the Appellant’s positive and good character. The High Court therefore held that the Magistrate should have given honesty guidance in considering the contents of the interview record.

The Appellant contended that this case is a “one-on-one” allegation, i.e., which is essentially unsupported by any evidence other than X’s testimony (and a recent complaint is not corroboration).  The credibility of the Appellant’s interview record is therefore arguably crucial.

The Appellant contended that he did not see the Magistrate clearly and positively directing himself, either in the oral judgment or in the statement of findings, that the Appellant’s interview notes were more credible.  On the contrary, the overall impression was that credibility was to be considered only if the Appellant gave a statement, which he did not do in court.  It is not clear whether the record of the interview is a “confession”, and this is disturbing.  Moreover, the Appellant’s interview notes are like the testimony of a witness, and the magistrate must provide sufficient grounds to analyze why the exculpatory portion of the interview notes is not admissible.  The Appellant did not see that the Magistrate had any substantive analysis of the contents of the Appellant’s extremely detailed interview notes.

Decision of the High Court

  1. The Appellant’s contention that the Magistrate did not appear to have taken into account the fact that the Appellant’s good character contributed to the credibility of what he said on the interview record is accepted.  It appeared that the Magistrate’s emphasis was only on the fact that the Appellant did not appear to give evidence but the Appellant did give an explanation under caution and the Magistrate in considering the credibility of the Appellant’s statements had to consider the Appellant favorably on account of his good character.

  2. The Appellant gave many circumstances in the video interview which were consistent with X’s story and the Appellant did not merely make a bare denial. It was not the Magistrate’s duty to make a statement that the Appellant’s story was not credible.

  3. The Magistrate’s duty is not to choose between the prosecution’s version and the defense’s version, but if the defense’s version is true or likely to be true, the prosecution has failed to prove its case.

  4. This case involves a “one-on-one” situation where the credibility of the Appellant’s version of events at the videotaped interview is crucial and important. Admittedly, the Appellant’s statements were not made on oath and he was not cross-examined, but it appeared that the Magistrate had improperly failed to give the Appellant’s statements a higher degree of credibility, and that this omission was a material irregularity which rendered the conviction unsafe and unsafe.

The High Court allowed the appeal against conviction and quashed the conviction and sentence.

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Alfred Leung, Partner 

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 YTL LLP is a law firm headquartered in Hong Kong, China.  This article is general in nature is not intended to constitute legal advice.