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Banker's indecent assault conviction quashed as court accepts ‘sexsomnia’ defence
HONG KONG (SCMP): A Hong Kong court on Thursday quashed a banker’s indecent assault conviction after finding his defence of sexsomnia, also known as sleep sex, had not been adequately considered at trial.
Sexsomnia, as explained by deputy High Court judge Sham Siu-man, is a medical condition which occurs when a person engages in sexual acts while asleep.
“As it happens while sleeping, something akin to sleepwalking, the sufferer would be unconscious of what he is doing at the time and have no memory of it after waking up,” Sham said. “It is a medical condition, which if accepted may in law amount to [a] defence.”
At issue was whether Boris Anthony Finan, a 28-year-old financial planning manager, could use the condition as a defence for assaulting a long-time friend, identified in court only as Madam X, during a party in a hotel room on July 10, 2016.
But Sham sided with defence counsel John Reading SC in finding Leung had erred in his analysis of the defence case, resulting in an “unsafe and unsatisfactory” conviction.
The court heard Madam X testify that she was in bed at about 10am when she felt a hand touching her arm and waist and reaching under her underwear. She looked around to see Finan next to her, his eyes open while hugging and kissing her.
The episode frightened her but she did not confront Finan until eight days later, demanding an apology in a series of WhatsApp exchanges that became crucial evidence to the case.
“I’m really falling apart, want to vomit even when I think of it, why did you treat me like that when I treat you as such a good friend?” she asked.
Later she texted: “Don’t lie any more, at 10 o’clock in the morning you were awake.”
Finan immediately apologised and tried to convince Madam X that he had no conscious recollection of what had happened, to no avail.
“I wasn’t, I wasn’t conscious at the time. Sorry. I really wasn’t,” Finan replied. “The moment I woke up I knew but I didn’t know whether I really did or I was dreaming … Sorry at the time I couldn’t control myself.”
Madam X filed a complaint with police the same day.
Finan did not dispute having touched Madam X as alleged, claiming he had no memory of the acts. But he argued he did not have the requisite mens rea – an intention or knowledge of wrongdoing – for the acts to constitute an assault.
In the appellant’s defence, his fiancée testified to having been sexually touched by him in an uncharacteristically aggressive and rude manner on several occasions in the past few years, during which his eyes were sometimes open but not focused.
But neither Finan nor his fiancée recognised his odd behaviour as a condition requiring medical attention until his lawyers advised them to consult a psychiatrist, who subsequently concluded he was “more likely than not” suffering from sexsomnia at the time.
An expert for the prosecution said sexsomnia is very rare but agreed Finan might be one such case and that people experiencing the condition usually had their eyes open.
Sham noted that courts were not bound by the expert evidence.
But the judge found the defence account made sense and had a degree of plausibility.
“What struck me was [the fiancée] was willing to come forward to take the stand for the appellant when most women would have been very angry and probably walked away if their men went out to molest other women,” he wrote.
When asked about her reaction to the allegations, the fiancée admitted to the court she had been shocked but that she then comforted Finan because she said she knew he was not that kind of person.
“I am of the view that their evidence had been given less weight than it warranted and had been improperly rejected,” Sham concluded. – South China Morning Post
Read more at https://www.scmp.com/news/hong-kong...-conviction-quashed-after#Cgz3kj0iHwCfIV78.99
- ASEAN+
- Friday, 26 Jul 2019
5:40 PM MYT
by jasmine siu
HONG KONG (SCMP): A Hong Kong court on Thursday quashed a banker’s indecent assault conviction after finding his defence of sexsomnia, also known as sleep sex, had not been adequately considered at trial.
Sexsomnia, as explained by deputy High Court judge Sham Siu-man, is a medical condition which occurs when a person engages in sexual acts while asleep.
“As it happens while sleeping, something akin to sleepwalking, the sufferer would be unconscious of what he is doing at the time and have no memory of it after waking up,” Sham said. “It is a medical condition, which if accepted may in law amount to [a] defence.”
At issue was whether Boris Anthony Finan, a 28-year-old financial planning manager, could use the condition as a defence for assaulting a long-time friend, identified in court only as Madam X, during a party in a hotel room on July 10, 2016.
But Sham sided with defence counsel John Reading SC in finding Leung had erred in his analysis of the defence case, resulting in an “unsafe and unsatisfactory” conviction.
The court heard Madam X testify that she was in bed at about 10am when she felt a hand touching her arm and waist and reaching under her underwear. She looked around to see Finan next to her, his eyes open while hugging and kissing her.
The episode frightened her but she did not confront Finan until eight days later, demanding an apology in a series of WhatsApp exchanges that became crucial evidence to the case.
“I’m really falling apart, want to vomit even when I think of it, why did you treat me like that when I treat you as such a good friend?” she asked.
Later she texted: “Don’t lie any more, at 10 o’clock in the morning you were awake.”
Finan immediately apologised and tried to convince Madam X that he had no conscious recollection of what had happened, to no avail.
“I wasn’t, I wasn’t conscious at the time. Sorry. I really wasn’t,” Finan replied. “The moment I woke up I knew but I didn’t know whether I really did or I was dreaming … Sorry at the time I couldn’t control myself.”
Madam X filed a complaint with police the same day.
Finan did not dispute having touched Madam X as alleged, claiming he had no memory of the acts. But he argued he did not have the requisite mens rea – an intention or knowledge of wrongdoing – for the acts to constitute an assault.
In the appellant’s defence, his fiancée testified to having been sexually touched by him in an uncharacteristically aggressive and rude manner on several occasions in the past few years, during which his eyes were sometimes open but not focused.
But neither Finan nor his fiancée recognised his odd behaviour as a condition requiring medical attention until his lawyers advised them to consult a psychiatrist, who subsequently concluded he was “more likely than not” suffering from sexsomnia at the time.
An expert for the prosecution said sexsomnia is very rare but agreed Finan might be one such case and that people experiencing the condition usually had their eyes open.
Sham noted that courts were not bound by the expert evidence.
But the judge found the defence account made sense and had a degree of plausibility.
“What struck me was [the fiancée] was willing to come forward to take the stand for the appellant when most women would have been very angry and probably walked away if their men went out to molest other women,” he wrote.
When asked about her reaction to the allegations, the fiancée admitted to the court she had been shocked but that she then comforted Finan because she said she knew he was not that kind of person.
“I am of the view that their evidence had been given less weight than it warranted and had been improperly rejected,” Sham concluded. – South China Morning Post
Read more at https://www.scmp.com/news/hong-kong...-conviction-quashed-after#Cgz3kj0iHwCfIV78.99
.Pun intended. Our government will not allow this nonsense especially when we have AWARE and feminist Ministers like Jo Teo and DisGracefool.
