R v Zu Li [2019] TOSC 15; CR 116 of 2018 (18 January 2019)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

CR 116 of 2018

There is a prohibition upon disclosure in any written publication available to the public of the identity of the complainant or details that would identify her.

BETWEEN: REX

- Prosecution

AND: ZU LI

- Accused

BEFORE LORD CHIEF JUSTICE PAULSEN

Counsel: Ms. J Sikalu and Ms. A 'Aholelei for the Prosecution

Mr. S Taione for the Accused

Date of Hearing: 15, 16 and 18 January 2019

Date of Verdict: 18 January 2019 (delivered orally)

VERDICT

The charges

[1] Mr. Li has been charged with two counts of serious indecent assault contrary to section 124(1) and (2) of the Criminal Offences Act.

[2] The relevant sections of the Act read as follows:

(1) Any person who shall commit an indecent assault on any person shall be guilty of an offence under this section.

(2) An offence under this section may be the offence of serious indecent assault

or the offence of simple indecent assault.

(3) The offence of serious indecent assault –

(a) is punishable by a term of imprisonment for any period not exceeding 5 years;
(b) shall, subject to sections 35 and 36 of the Magistrate's Court Act, be heard and

determined by the Supreme Court.

The elements and cautions

[3] Mr. Li is a 25 year old Chinese man who has been living in Tonga since 2016 and works as a hairdresser at David's Hair Salon. The offences with which he is charged are said to have occurred on 6 March 2018 when the complainant, who was then 18 years old, went to the salon to have her hair washed and blow dried. I will refer to the complainant as AJ.

[4] In count 1 of the indictment, Mr. Li is accused of having indecently assaulted AJ when he touched her breast with his hand.

[5] In count 2 of the indictment, Mr. Li is accused of having indecently assaulted AJ when he fondled her breast with his hand.

[6] The essential elements that the Prosecution must prove beyond a reasonable doubt in order to establish the charges of indecent assault are:

(a) That Mr. Li assaulted AJ by intentionally touching and/or fondling her breast without her consent; and

(b) That the assault/s was indecent in that right minded persons would consider what was done offensive to contemporary standards of modesty and privacy.

[7] The Prosecution erroneously submitted, in reliance upon R v Court [1988] 2 All ER 221 (HL) and R v Lasike [2006] Tonga LR 191 that it is immaterial whether Mr. Li advanced a

defence that the assault was unintentional. This submission misunderstands the authorities. In Lasike Webster CJ said (at pg 196-197) that where an assault was indecent it was unnecessary to establish a 'specific indecent intent' but went on to note that a general intention to assault is an essential element of the offence.

[8] Mr. Li has pleaded not guilty to both counts of the indictment and says that the events described in the indictment did not happen but that if at any stage he touched AJ's breast he did not do so intentionally but accidentally in the course of doing her hair.

[9] I have reminded myself of a number of important matters. The first is that the burden of proof lies on the Prosecution at all times and it is to the standard of proof beyond a reasonable doubt in relation to the charges and every constituent element of the charges. There is no obligation on Mr. Li to prove anything, nor was there any obligation for him to call evidence or give evidence himself. The fact that Mr. Li did give evidence does not alter the burden or standard of proof upon the Prosecution. The onus and the standard are unchanging and rest on the Prosecution throughout.

[10] I remind myself also that I must judge the case only on the admissible evidence which I have heard in this Court. On the basis of the onus and standard I have already mentioned, the Prosecution stands or falls on the evidence which the Prosecution and Mr. Li chose to call before me (R v Fa'aoso (Unreported, Supreme Court, CR 520/95, 13 February 1996, Hampton CJ).

[11] Next, whilst there is no legal requirement that I give myself a corroboration warning in a case such as this (Teisina v R [1999] Tonga LR 145 (CA)), out of an abundance of caution I do note that care is to be taken when acting on the uncorroborated evidence of a complainant, accepting of course that I may do so if I am satisfied beyond reasonable doubt that the complainant is telling the truth.

Witnesses

[12] There were three witnesses who gave evidence for the Prosecution. They were AJ, a friend of AJ, who I refer to as MF, and AJ's mother, who I refer to as AV. Mr. Li also gave evidence.

[13] The evidence of MF and AV mainly concerned statements AJ made to them that she had been indecently assaulted by Mr. Li. MF said that AJ told her, and another woman called Florence, immediately upon leaving the salon that Mr. Li had slipped his hand down her dress and touched her breast. AV said that AJ told her about the assaults three days later during a conversation over personal matters.

[14] I understood the evidence of MF and AV was given in reliance upon s. 11 of the Evidence Act. No objection was taken to the evidence. I have reservations about the admissibility of the evidence of AV, which was given some days after the alleged assaults and after AJ had talked with a number of people to clarify her thinking about what had occurred, but notwithstanding I have had full regard to this evidence. I note that under s. 11 the evidence is admissible only by way of corroboration that AJ's conduct was consistent with her evidence at trial but is not additional or independent evidence of the crimes alleged.

Credibility

[15] I find that all of the witnesses gave their evidence honestly to the best of their recollection.

16] In the case of AJ, she is a very impressive, intelligent, eloquent and assertive young woman. She gave her evidence clearly and with authority. I have no doubt that she gave her evidence honestly in accordance with her recollection of events.

[17] Mr. Li was also an impressive witness. He does not speak Tongan or English and gave evidence with the assistance of a translator. Notwithstanding that disadvantage, he presented as a considered and truthful witness who was genuinely bemused by the allegations that have

been made against him and has no recollection of ever touching AJ inappropriately. He frankly acknowledged that it was possible that in the course of doing AJ's hair he may have touched her breast inadvertently, but says he did not put his hand down her dress or fondle her breast.

[18] The Prosecution submitted that Mr. Li was clearly not credible because he could remember vividly many details of what had occurred but said he had no recollection of the offending itself. This is a circular argument that assumes Mr. Li's guilt and I do not accept it.

[19] MF is plainly an intelligent young woman. She gave her evidence confidently. However, in certain respects her evidence differed from the evidence of AJ. For instance, she said that AJ had moved chairs in the salon. AJ said nothing about that and Mr. Li had no recall of it. She said that after leaving the salon Florence had told AJ that she had not been given massages when she had gone to the salon. AJ said that Florence had told her that she had had massages. MF said that upon returning to the office AJ spoke about what had happened to an Australian volunteer. AJ said that she spoke to the volunteer two days later. Given these matters I consider MF to be an honest witness with an imperfect recollection of the events.

[20] AV impressed as an honest witness and concerned parent. I accept her evidence as to what she was told by AJ.

AJ's evidence

[21] The only witness who gave direct evidence of the alleged assaults was AJ. Unless I accept her evidence the Prosecution cannot succeed.

[22] AJ said that during her lunch hour on 6 March 2018 she went to David's Hair Salon with two friends, MF and Florence. She had not been to the salon before and went on Florence's recommendation. She wanted her hair washed and blow dried.

[23] When they entered the salon there were three staff (two men, including Mr. Li, and a woman) as well as a child present. AJ could not remember whether there were customers in the salon at that time. She spoke to Mr. Li and negotiated a price for his services. Mr. Li does not speak Tongan or English and it appears that AJ and Mr. Li communicated throughout by using a few Tonga words known to him (such as 'fiha' and 'sai pe'), murmurs and gestures.

[24] Mr. Li washed AJ's hair. AJ was surprised when in the course of washing her hair Mr. Li massaged her head, neck, and the right side of her shoulder and shoulder blade. She said she was initially pleasantly surprised. Mr. Li asked if she liked it. It appears throughout he said 'sai pe' to her a number of times. Because her shoulder was tense she indicated that she did. She started to feel uncomfortable and when Mr. Li stopped the massage after doing only her right shoulder she got the feeling he 'was just doing it because he wanted to'. During the wash other customers came into the salon. MF and Florence had initially remained in the salon and then left for food but returned a short time later.

[25] Mr. Li completed the wash and led AJ to one of four chairs for use by customers. The chairs faced each other in pairs. In front of each was a dresser and a mirror. AJ said she was seated in the chair facing the door and nearest to the wall which was on her left side. Two of the other chairs were occupied by customers including the chair diagonally in front of AJ which she could see was occupied by an older woman. MF and Florence were on client seating against the right wall.

[26] Mr. Li then started to blow dry AJ's hair and straighten it. AJ said the chair she was sitting on could rotate but Mr. Li did not use the chair to move her and would touch her shoulders or upper arm to do so. She said he touched or caressed her face also when he brought the drier down. She did not say anything to Mr. Li about these thing despite them making her uncomfortable. She said that Mr. Li was also staring at her rather than at her hair throughout and so she just looked down and pretended to be sleeping.

[27] Mr. Li then asked AJ if she wanted her hair curled and she said that she did. As he was curling her hair Mr. Li was standing behind her. She said he held a curl with his hand on her left breast for 3-5 seconds. She did not complain. This touching of the breast is the first of the alleged assaults and count one of the indictment.

[28] Mr. Li then asked if AJ wanted him to spray her hair and she said that she did. She said he sprayed the back and around her and then came on to her right side and was standing in a position blocking the view of the older woman sitting diagonally from her. She said Mr. Li was holding the spray with his right hand and then in three movements slipped his left hand into the top of her dress and held the side of her left breast for 2-3 seconds. She said she was wearing a fitted black dress and his hand went inside her bra not just her dress. She did not complain. This touching of the breast is the second of the alleged assaults and count two of the indictment.

[29] When Mr. Li had finished spraying her hair AJ put the money for his services on the dresser, thanked him and ran out. She said that she would have been in the salon for about 50 minutes.

[30] As soon as she was outside she asked Florence if she usually got a massage during her hair treatment. Florence told her she would get massages but only to her head. AJ then said that she told MF and Florence about what had happened to her and in particular that Mr. Li had slipped his hand down her dress. Back at work she got compliments about her hair and she responded that she was not happy about the service she received because Mr. Li 'touched a little bit more than just my hair'.

[31] On the Thursday of that same week (8 March) AJ, MF and Florence went back to the salon to do Florence's hair. AJ and MF left to buy lunch as AJ said she did not want to see Mr. Li. On the way back to work the three stopped off at an agency to get advice about sexual harassment. She also told a volunteer at work that day about what had happened.

[32] On the Friday evening she told her mother what had happened. A complaint was then laid with the Police.

Mr. Li's evidence

[33] Mr. Li's evidence was that he recalls doing AJ's hair and that nothing unusual happened and he did not indecently assault her. He provided explanations for the matters that AJ said had made her uncomfortable. He had no recollection of touching AJ's breast at any time although he accepted it was possible he could have touched her breast accidentally. He denied that he ever put his hand down her dress and explained, and then demonstrated, why an assault could not have been made in the manner that AJ described. Mr. Li said that while working on AJ's hair he had repeatedly asked her 'sai pe' because he wanted to know if she liked the hairstyle and that she would nod or murmur that she was okay. He was cross-examined by Ms. Sikalu and it was put to him a number of times that he was lying but he did not accept that and nothing came out of his cross examination that gave me cause to doubt his evidence.

Discussion

[34] I have no doubt that AJ honestly believes that Mr. Li indecently assaulted her. However, the Court must be satisfied that the Prosecution has proven the elements of the offences beyond reasonable doubt. I am not so satisfied that it has done so for the reasons that follow.

[35] Mr. Taione made much in cross-examination that AJ did not complain that Mr. Li was making her uncomfortable or that he had indecently assaulted her. She said in response that she was scared and feared that no one would believe her if she complained. It is the case that victims of sexual assault do not complain for the reasons that AJ gave and so I do not put significant weight on this aspect of the evidence. However, it appears to me that had AJ considered that Mr. Li was acting inappropriately throughout and had indecently assaulted her by touching her breast when curling her hair it is very unlikely that she would then have

asked him to spray her hair rather than take the opportunity to leave the salon. This suggests to me that at the time AJ was not sure if Mr. Li had in fact touched her breast.

[36] Leaving aside the allegation that Mr. Li touched her breasts on two occasions, AJ gave a lot of evidence about aspects of Mr. Li's service that made her uncomfortable and she regarded as inappropriate. These included giving her a massage and not completing it, that Mr. Li touched her shoulder and arms to move her, that he also touched the side of her face when straightening her hair and appeared to be staring at her. She felt he was behaving inappropriately from early on and said that she had a feeling during the wash that he was touching her 'because he wanted to'.

[37] AJ regarded all of this as inappropriate but in my view she is mistaken and there are reasonable alternative explanations. As far as the massage is concerned, Florence said that she got massages when she went to the salon and Mr. Li said that he gives massages when not busy. In explanation for the fact that he did not finish the massage he said that more clients were coming in and they were getting busy. This is supported by the evidence of AJ that there were other customers getting treatments at the same time. As far as touching her to move her position, AJ acknowledged that this had happened in other salons and Mr. Li explained that as he cannot speak English he has to use his hand to put his clients into position. As far as touching AJ's face, Mr. Li said that this could only be when he was straightening the fine hair close to the side of her face. In relation to the allegation that Mr. Li was staring, he said that he must look at the customer in the mirror not only to see the results of his work but also the client's expression and whether the style suits them.

[38] AJ appears to have now interpreted any touching of her body by Mr. Li as inappropriate but it must be the case that some touching will inevitably occur and be expected in such circumstances. All of Mr. Li's explanations, as I have described them above, are to my mind reasonable and plausible.

[39] In relation to the first allegation that Mr. Li touched AJ's breast by holding a curl on it for 3-5 seconds, this is something that Mr. Li said could happen by accident and I accept that is the case. AJ herself acknowledged this when in answer to a question from Mr. Taione whether other hairdressers sometimes accidently touched her breast AJ replied; 'Maybe once'.

[40] In relation to the more serious allegation, that Mr. Li put his hand inside her dress and fondled her breast, this is unlikely to have happened in the way that AJ describes. I understood Mr. Li to be saying in his evidence that if he was standing on the right side of AJ spraying her hair then he would hold the spray in his left hand and use his right hand to protect her face. Whilst I consider that is what he also demonstrated upon a close inspection of the transcript this is not clear. Regardless, if his left hand was free it would have been extremely awkward to fondle AJ's breast because the back of the hand faced her body. Mr. Taione submitted that it would be impossible for Mr. Li to fondle AJ's breast with the back of his hand. Certainly I find it difficult to see how this could occur, particularly so if she was wearing a tight fitting dress.

[41] At the time of the alleged assaults there were in the salon, other than AJ and Mr. Li, two staff members, a child, at least two other customers and AJ's two friends, MF and Florence. MF said that she was seated 5-6 metres from AJ and constantly stood to see what was happening with her hair. No one gave evidence that they saw Mr. Li do anything inappropriate as far as AJ was concerned. MF said that she was watching constantly and although AJ was quiet she reported nothing untoward in Mr. Li's behavior towards AJ. Florence was also present and AJ's evidence was that when she spoke to her about what had happened immediately after leaving the salon Florence looked like she didn't believe her. It can be inferred that Florence saw nothing inappropriate either. I also consider it extremely unlikely that Mr. Li would act in the manner that AJ described with a least seven other people in the salon in very close proximity and given the very high risk of detection.

[42] I did not find AJ's evidence convincing that immediately upon leaving the salon she told MF and Florence that Mr. Li had put his hand down her dress. Initially her evidence was that she first inquired of her friends whether they got massages during their hair treatments and that she only gave 'them hints in simple words like I think he was too touchy'. Later she did say that she told them that Mr. Li had put his hand down her dress. Despite this evidence I am satisfied that she was not sure this was the case. She said in relation to this 'Yes but I do remember mumbling a lot of it because especially Florence's face, because she looked like she didn't believe me, I didn't tell her'. In this evidence she acknowledged that she did not tell Florence that Mr. Li put his hand down her dress and if that was so it seems unlikely that she could have told MF either when the three women were all together discussing the matter. Florence was not called to give evidence and I do not find MF's recollection of events reliable for reasons I have given. It also seems most unlikely that if AJ told the two other women that Mr. Li had indecently assaulted her as she described that they would all return to the salon two days later for Florence to have her hair done.

[43] In the days following AJ spoke to a number of people and said she has also been having counselling to the present day about what happened in the salon. She has a firm view that she was indecently assaulted. But it appears this was not always the case. She said in her evidence 'I am more sure now that what I explained happened and whether no one believes me after today as long as there is an acknowledgment that things like this happen then that is one step forward'. In addition, as I noted above it is incongruous that if she believed she was indecently assaulted that she would ask Mr. Li to provide further services. Also, at stages of her evidence AJ said that whilst she was in the salon she was not sure that she had been assaulted. In relation to the more serious allegation she said 'Yeah so once again I would sit there and think whether this was real or I was just exaggerating'. When asked about the reasons she had decided to speak to her mother she said '.I wasn't sure whether I was exaggerating it in my head or if it actually happened'. In cross-examination Mr. Taione put it to AJ that she was not sure what had happened or if she was exaggerating and she acknowledged that she was she was not sure about Mr. Li's motives and that it could be the case that he had not felt what he had done.

[44] All of the above creates doubt in my mind whether Mr. Li touched AJ's breast and, if he did, whether he did so intentionally. In addition I have no reason to disbelieve Mr. Li's evidence and on the basis of his evidence alone, which I found credible, there is doubt in my mind on these matters.

Verdict

[45] The charges against Mr. Li have not been proved to the required standard and he is acquitted on the charges and is discharged.

O G Paulsen

NUKU'ALOFA: 18 January 2019 Lord Chief Justice