A retired British doctor sentenced to 30 months’ jail for two cases of sexual assault on his Filipina domestic helper, has had his conviction and sentence quashed by the High Court.
Brian Drew Apthorp, 85, had appealed last July's judgment of Eastern
Court Magistrate Daniel Tang on the ground that his lawyer was not
allowed to cross-examine the alleged victim, after he had done so himself in
the first two days of his trial.
Court of First Instance Judge Esther Toh agreed with Apthorp in a decision handed down on April 29.
“Because of that refusal, justice had not been seen to be
done, and therefore, the conviction is clearly unsafe and unsatisfactory,” Judge
Toh said.
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“Therefore,” she added, “the appeal against conviction is
allowed, the conviction and sentences are quashed.”
While Apthorp was cleared of the two sexual assaults, he
faces another set of charges involving the same domestic helper, identified as
CB, and at least two other Filipinas who had also worked for him and were shown
on video during his trial, to have engaged in sexual acts with him.
CFI Judge Russell Coleman, in a separate decision on April
23, ordered the police to reinvestigate CB’s complaint to look into whether she and
the two others were also victims of sex trafficking and forced labor.
“… I think the facts
of the CB case do establish the ‘causal connection’ between the particular
failures in the case and the lack of a bespoke criminal offence,” said Judge
Coleman.
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He also said such legislation should not only cover FDHs as
urged by CB’s counsel, Abraham Chan, SC, but all other people who might be
victims of forced labor and exploitation under section 4 of the Bill of Rights.
In her decision, Judge Toh noted that the same domestic helper, whom she identified as X, started working for Arthorp
on Sept. 5, 2018 as a replacement for another Filipina named Janice.
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X complained that the retired doctor conducted an examination
of her private part in his bedroom without her consent.
When she told Janice about it, the latter explained that it
was a pap smear test which she herself underwent.
X also complained that after regular massages, she was forced
by Arthorp to masturbate him. She presented video clips she filmed herself,
showing her massaging Arthorp, who was naked. In one of the videos, he was shown
asking her to hold his penis.
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During his trial, Apthorp did not give evidence or present
witnesses. He cross-examined X for two days
before the court adjourned.
When the trial resumed, Apthorp brought a solicitor who applied
to have X recalled for further cross-examination.
But Magistrate Tang refused, saying that since X had been
cross-examined and re-examined, he was reluctant to recall her. Besides, the lawyer did not cite authority on
which to base his request.
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Magistrate Tang also cited his discretionary power, to which
Judge Toh agreed, to recall a witness and that his primary concern was the
interests of justice.
He also asked Apthorp several times early in the case if he needed a lawyer,
and that he had given him enough time and chance to cross-examine X and that
the court had given him assistance when necessary.
But to Judge Toh, in sexual assault cases such as this where there are no witnesses, it is essential to test the credibility of the accuser, which Arthorp had failed to do when he defended himself.
“It is clear that this is not the type of case where merely
putting the case for the defence to X would be anywhere near sufficient for the
Appellant to get a fair trial. It is
clear with the many issues involved that a forensic cross-examination was
required in the circumstances, particularly when it is alleged that X had
demanded monetary compensation from the Appellant as well,” she said.
“It is a difficult case for a defendant to manage on his own in the best of circumstances. But when one has a defendant with early stage of Alzheimer’s disease and with the complicated factual background in this case, it became more apparent that he required a lawyer in order to fully put his case across,” she added.
