R. v. Chien, 2022 BCPC 342

Citation: 2022 BCPC 342 R. v. Chien Date: 20221021 File No: 64588-2C Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. KUO LIANG PAUL CHIEN BAN ON PUBLICATION PURSUANT TO

SECTION 486.4(1) CRIMINAL CODE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. VANDOR Counsel for the Crown: P. Fullerton Counsel for the Defendant: J. Chak Place of Hearing: Richmond , B.C.

Date of Hearing: October 21, 2022 Date of Judgment: October 21, 2022 [ 1 ] THE COURT: This judgment is subject to a publication ban under s. 486.4(1) of the Criminal Code . These are my oral reasons for judgment. I have not referred to case citations. Should a transcript of this judgment be ordered, I will add case citations and may edit for style. Overview [ 2 ] The accused, Kuo Liang Paul Chien, is charged with sexually assaulting K.N. during professional massage services that took place between January 1, 2013 to January 1, 2015, contrary to s. 271 of the Criminal Code . [ 3 ] Mr.

Chien is presumed to be innocent of this charge. Interwoven with that presumption is the standard of proof required to displace it. To secure a conviction in a criminal case, the Crown must establish each essential element of the charge against the accused beyond a reasonable doubt. [ 4 ] The issue to be determined in this case is identity. Has the Crown proved beyond a reasonable doubt that the accused is the masseuse who sexually assaulted K.N. during a massage? [ 5 ] The evidence on identification is circumstantial. The Crown relies on the testimony of K.N., J.M., and Cst. Chan. Mr.

Chien did not testify but called the evidence of his wife, P.J., in defence of the allegations. He seeks an acquittal on the basis that the Crown's case fails to establish identification beyond a reasonable doubt. Legal framework and Assessment of Evidence [ 6 ] The allegations before this Court are historical in the sense that they are a complaint made now in respect of events that occurred years ago. K.N. did not come forward at the time of the events. Rather, the police contacted her several years later.

The law is clear: there should be no presumptive adverse inference arising when a complainant in a sexual assault case does not come forward at the time of the events: R. v. A.R.D. , 2017 ABCA 237 , at para. 51 . [ 7 ] I find that K.N. is a credible witness. There is nothing in her evidence or the manner in which she said it that raises any reasonable possibility that she is lying. [ 8 ] I accept K.N.’s evidence that she received a massage, and during that massage, the masseuse touched her breasts and nipples, and inserted his finger into her vagina without her consent.

Her evidence clearly demonstrates that there was an intentional application of force to her by another without her consent in sexual circumstances such that her sexual integrity was violated. The sexual nature of the touching would be apparent to a reasonable person when viewed in light of all the circumstances of professional massage services. Based on this evidence, I conclude that K.N. was sexually assaulted by this masseuse during this massage. [ 9 ] K.N. remembered the masseuse as an Asian man named “Paul”. However, she was not able to identify the masseuse as Mr. Chien.

Her overall memory of events before and after have faded over time. Since K.N. was not able to identify the accused as the perpetrator, the Crown relies on other evidence to show that the accused is the perpetrator of this crime. [ 10 ] I have considered the other evidence of K.N., which I found to be credible, but not reliable given the passage of time and lack of independent corroborative evidence. [ 11 ] By her own admission, K.N. does not really remember the year when the sexual assault happened. She visited the spa regularly for massages in 2012 and 2013, and less regularly when she was pregnant.

She remembers that the sexual assault was sometime before the birth of her child in October 2014, and likely before her wedding in June 2014, because she was away travelling and would not have been having full-body massages into the third trimester of her pregnancy. [ 12 ] K.N. knew the name of the masseuse as “Paul” because she had massages with him before and she liked his massage services.

She could not remember how many massages she had with him before, but estimated that it was between five and 15, a combination of foot massages and full-body massages. [ 13 ] The issue I have is with the reliability of the circumstantial evidence on identification. [ 14 ] There is no dispute that Mr. Chien and his wife, P.J., worked as masseuses at this spa during the relevant time. Both P.J. and J.M. confirmed that in their evidence. J.M. is the owner of the spa and was the employer of Mr. Chien. The financial documents show that Mr.

Chien was receiving compensation for most of the relevant two-year period. [ 15 ] J.M. testified that Mr. Chien worked there at the time, and that Mr. Chien goes by the name of “Paul”. However, there is no evidence to link Mr. Chien to any of the massages that K.M. received at the spa, let alone that he performed the massage on the day that she was sexually assaulted. There is no record of when K.M. visited “Paul” for a massage.

There is no surveillance footage. [ 16 ] In this case, most of the relevant business records from the spa were destroyed in a flood which means that there are no records of when K.N. had massages, what kind of massages she had, and with whom. The only records in evidence are financial records that demonstrate that Mr. Chien worked at the spa for most of the relevant two-year time period. [ 17 ] However, there is no evidence to link Mr. Chien to any of the massages that K.N. received at the spa, let alone that he performed the massage on the day that she was sexually assaulted.

Phone Call between K.N. and J.M. [ 18 ] After the touching of her vagina, K.N. researched on the internet whether that type of massage was normal because it did not feel right to her. On the same day as the massage, she called the owner of the spa, J.M., to ask whether that kind of touching was normal. She spoke with him over the phone. She told him that she had a full-body massage with “Paul” and that he inserted his finger into her vagina. She asked if that was normal practice. [ 19 ] Her evidence of what she told J.M. is not consistent with his evidence of what he heard.

J.M. remembers that K.N. asked him about massage procedure and then told him that the masseuse had touched her breast during a massage. She identified that masseuse as “Paul” and J.M. confirmed that was not normal procedure. [ 20 ] In reaching this conclusion, I have considered whether J.M. was recalling another conversation with K.N.

I have rejected that possibility because K.N. testified that she remembers that maybe “Paul” had touched her breast during a previous massage, but she did not complain about that incident to J.M. because she had a similar breast massage with a female masseuse in China and although she felt uncomfortable, she did not consider it out of the ordinary. The only time she complained about a massage to J.M. was after the masseuse named “Paul” inserted his finger into her vagina. [ 21 ] K.N. testified that she never had a massage from “Paul” again.

J.M. offered to send her to a female masseuse, and she remembers her next massage or next massages was with “Jessica”. Physical Descriptions are Similar [ 22 ] K.N.’s description of Paul's height and weight was similar to the physical descriptions of Mr. Chien by his wife, J.M., and Cst. Chan. [ 23 ] K.N. provided a general description of the suspect to Cst. Chan as an Asian male of Chinese descent. [ 24 ] Cst. Chan testified that Mr. Chien looks like an Asian male of Chinese descent. I find that Cst. Chan was a credible and reliable witness.

He was a careful, independent witness who readily acknowledged the limits of his memory. He asked to review his police notes when necessary. His oral evidence was corroborated by a transcript of his police interview with Mr. Chien. [ 25 ] K.N. gave further details in her evidence. She described “Paul” as a middle-aged man, maybe in his 40s, not very tall, maybe around five foot five inches, not slim or heavy, weight wise maybe around 150 pounds. He had black hair, not a lot of hair combed to the side. She described him as a typical Asian Chinese male that she would come across in Chinatown or Richmond.

Who else was known as Paul? [ 26 ] J.M. testified that Mr. Chien was known as “Paul” at the spa and although he employed about five male masseuses, there were not other masseuses who went by “Paul” during this time period. J.M. testified that he employed around 10 masseuses at the spa during that time period. Half of them were male and the other half were female. Only one masseuse was named “Paul”. He knows Paul as the accused, Kuo Liang Chien. [ 27 ] P.J. agreed that her husband was known as “Paul” to customers and no other employee was known as “Paul”.

Although I had some issues with the credibility and reliability of P.J.'s evidence, this admission went against her husband's interest. [ 28 ] The Crown argues that the combined effect of this evidence – and the improbability of coincidence – amounts to proof beyond a reasonable doubt. However, guilt is not the only reasonable inference to draw from the fact that Mr. Chien worked there as a masseuse during the relevant time period and that he goes by the name of “Paul”. [ 29 ] Reliability is the key concern in this case. The Crown's case on identification consists entirely on circumstantial evidence.

The probative value of that evidence – that Mr. Chien goes by “Paul” and was the only “Paul” working there at the time – is diminished by three main factors. [ 30 ] First, the passage of time. The Courts recognize that trials of long past events can raise particular challenges due to the passage of time. Memories tend to fade, and time tends to erode the quality and availability of evidence. [ 31 ] I find that J.M.’s evidence is unreliable. J.M. testified that he was definitely sure that Mr. Chien had performed a body massage on K.N.

However, his evidence is not consistent with an earlier statement he made to police. In his police statement, J.M. said that Mr. Chien did foot massages on K.N. but was not sure whether he did body massages on her. He said, "I guess so, but I have to check the schedule." [ 32 ] J.M. testified that he went to a storage room to check the

schedule and discovered the water leak and that the documents no longer existed. Furthermore, he cannot be certain how many body massages K.N. had because she had booked a package of massages. He had at one point the spending record that showed when K.N. went for a massage, but not who the masseuse was. All of those records were destroyed in the flood. [ 33 ] Although J.M. remembers confirming in a

schedule that Mr. Chien massaged K.N. on the day that she complained to him over the phone, he does not remember in what year that conversation took place. He acknowledges that those records were also destroyed in the flood. As such, he was unable to provide those business records to the police when they asked him to do so several years later. [ 34 ] Although J.M. testified that he would fire a masseuse if he found out that he had touched the breasts or genitals of a female client, that evidence is not consistent with the employment records which show that Mr.

Chien worked at the spa until December 2014 which was at least several months after the latest possible date given by K.N. of the sexual assault which was around the time when her child was born in October 2014.

[ 35 ] Furthermore, that evidence is also not consistent with J.M.’s other evidence that he only restricted Mr. Chien's ability to perform full-body massages on female clients. [ 36 ] J.M. testified that after his phone conversation with K.N., he confronted Mr. Chien directly and then held another meeting with five people including Mr. Chien and his wife in which Mr. Chien denied the allegations. [ 37 ] J.M. testified that starting the day after K.N. complained to him, Mr. Chien was not allowed to perform massages on female customers. He was able to control what massages Mr.

Chien got because all appointments went through his receptionist who had also attended that five-person meeting. [ 38 ] However, J.M.’s evidence is not consistent with what financial records are in evidence which are the T4A tax records. Those records show no decline in Mr. Chien's monthly income during the relevant time period.

This decline in income would have been expected given J.M.’s evidence that the spa performs more full-body massages than foot massages (i.e. his evidence was 80 percent body massages and 20 percent reflexology) and that the majority of the spa's clients are female (i.e. his evidence was 60 percent female and 40 percent male). Although J.M. could not remember the exact rates, J.M. confirmed in his evidence that he has always charged more for body massages than foot massages. [ 39 ] When those discrepancies were put to him, J.M. provided explanations that did not reconcile with his other evidence about why Mr.

Chien left his employment at the spa. His explanations ranged from Mr. Chien quit, he was fired, he started working for a competitor, he was bringing in his own clients, or he was taking away clients. [ 40 ] Second, the fact that K.N. spoke Cantonese to “Paul”, and Mr. Chien does not speak Cantonese. [ 41 ] K.N. is originally from Hong Kong and speaks Cantonese. While she may be fluent in both Cantonese and Mandarin, she agreed that she was conversing in Cantonese with “Paul” during the massage. [ 42 ] Her evidence does not reconcile with the fact that Mr. Chien does not speak Cantonese. Mr.

Chien speaks Mandarin and a Taiwanese dialect of Mandarin called Minnanese. My findings of fact are reasonably inferred from the following evidence: • First, Cst. Chan testified that when he first encountered Mr. Chien to arrest him for sexual assault, it was apparent to him that Mr. Chien did not speak English so he spoke to him in Mandarin. Cst. Chan is able to speak Mandarin. • Second, Cst. Chan testified that he conducted his police interview of Mr. Chien in Mandarin because Mr. Chien does not speak English. Cst.

Chan testified that at some point during that police interview, he spoke one sentence of Minnanese which he explained was a Taiwanese dialect of Mandarin and then conducted the rest of the police interview in Mandarin. • Third, Cst. Chan agrees that Cantonese is a dialect spoken in Hong Kong. • Fourth, J.M. testified that Mr. Chien is Chinese from Taiwan. • Fifth, P.J. testified that her husband speaks Taiwanese and Chinese. By Chinese, she means Min Nan Mandarin. She testified that her husband does not speak any other dialects or languages. She testified that her husband does not speak Cantonese.

Although I had issues with P.J.'s credibility, I had given weight to her evidence on this point because it corroborates the evidence of Cst. Chan in material respects. • Sixth, Mr. Chien needed the assistance of a Mandarin court interpreter in this proceeding, not a Cantonese court interpreter. • Seventh, I take judicial notice of the fact that Mandarin and Cantonese are two different languages. [ 43 ] Third, the Crown has failed to link Mr. Chien as the masseuse that performed any of the massages on K.N., let alone the massage that amounted to a sexual assault.

The evidence does not permit me to find as a fact that Mr. Chien ever performed a massage on K.N., let alone that he performed a massage on her at the time of the offence. [ 44 ] Both counsel have provided me with helpful cases. I have reviewed them. Although they are distinguishable on the facts, they raise important legal principles that I have applied in my decision. [ 45 ] The quality of the evidence in this case is incapable of displacing the presumption of innocence because the evidence fails to prove identification beyond a reasonable doubt.

For these reasons, I conclude that the Crown has not proven beyond a reasonable doubt that “Paul” is the accused, Mr. Chien. Conclusion [ 46 ] My conclusion that the evidence in this case raises a reasonable doubt is not the same as deciding in any positive way that this event never happened. At the end of this trial, a reasonable doubt exists because it is impossible to determine with any acceptable degree of certainty or comfort what is true and what is false as it relates to the identification of the masseuse who sexually assaulted K.N. [ 47 ] For these reasons, I find you, Mr.

Chien, not guilty on this charge and it will be noted as dismissed. [ 48 ] Given my decision, it is not necessary to decide the defence's Charter application seeking a judicial stay of proceedings. That application is now moot. (ORAL REASONS FOR JUDGMENT CONCLUDED)