R. v. Tso, 2019 BCPC 375

Citation: R. v. Tso 2019 BCPC 375 Date: 20190618 File No: 249831-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. HENRY JEN MAN TSO BAN ON PUBLICATION 486.4(2) AND 486.4(2.2) ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. GALATI Counsel for the Crown: A. Ip Counsel for the Defendant: M. Mines Place of Hearing: Vancouver , B.C. Date of Hearing: June 18, 2019 Date of Judgment: June 18, 2019

[ 1 ] THE COURT: Henry Tso is charged with sexual assault of J.S., which is how I am going to refer to the victim, on January 19th of 2017. Mr. Tso is presently 39 years old. He was 37 years old and either separated or divorced with partial custody of two young children at the time of the alleged offence. J.S. is presently 20 years old. She was 18 years old at the time of the alleged offence. She was not going to school at the time, but she was working in a retail store. [ 2 ] The parties met through an Internet app called Whisper .

J.S. testified that in late 2016 and into 2017 she was using Whisper to hook up with men to have sex. She acknowledged having met with two other men prior to meeting Mr. Tso on January 16th and she met with a third man on January 17th before meeting with Mr. Tso again on January 18th. She also acknowledged that she initiated the second meeting with Mr. Tso.

The event which gives rise to the charge is alleged to have occurred in the course of that second meeting in the early morning hours of January 19th. [ 3 ] It is common ground that the parties had consensual sexual relations on January 16th and again on January 18th and perhaps into the early morning hours of January 19th, but the Crown alleges that a final act of sexual intercourse without a condom was not consensual. Mr.

Tso maintains that the final act alleged did not occur. [ 4 ] In addition to J.S., the Crown called evidence from her godfather, I am going to refer to him as B.W., and from the medical doctor who examined J.S. on January 23rd, Dr. Tracy Pickett. Mr. Tso testified on his own behalf. [ 5 ] The onus is on the Crown to prove all the elements of the offence beyond a reasonable doubt, but in the circumstances of this case, Mr.

Tso does not raise defences of consent or mistaken belief in consent and, accordingly, the determinative issue in this case is simply whether the alleged final act of unprotected sexual intercourse did occur as alleged, as testified to by J.S. [ 6 ] As in any case where an accused testifies, the issue is not a question of which version of events is preferred, but rather on a consideration of all of the evidence whether the case has been proven beyond a reasonable doubt. [ 7 ] As is set out by the Supreme Court of Canada in R. v. W.(D.) , the concept of reasonable doubt applies to credibility.

If the accused is believed or his evidence raises a reasonable doubt, then an acquittal must result, but even if the evidence of the accused is rejected, the ultimate question is whether, on the evidence that is accepted, the guilt of the accused has been proven beyond a reasonable doubt. [ 8 ] Moving on to a

summary of J.S.'s evidence, J.S. testified that after meeting online and communicating by text over a period of time, on January 16th, Mr. Tso picked her up from her place of work in his vehicle and took her for a bubble tea and a meal. She said he tried to kiss her in the vehicle, but she told him she did not want that as it was too intimate. They discussed various matters and she told Mr. Tso that she had met with other men from the Whisper app. [ 9 ] J.S. said that after the meal, they went to Mr. Tso's apartment where she gave him oral sex and thereafter they engaged in sexual intercourse.

Her evidence was, in my view, unclear with respect to whether Mr. Tso ejaculated during the oral sex. [ 10 ] She said that after the oral sex, Mr. Tso was digitally penetrating her vagina and, as he got on top of her, she had to ask him twice to get a condom, but that he did get a condom and that he had it on during the sexual intercourse. [ 11 ] She said that thereafter, as they cuddled and talked, Mr. Tso spanked her playfully and asked for anal intercourse. J.S. said that she initially told Mr.

Tso she did not want to do that, but that because he had his penis near her anus, she told him to get a condom if that was what they were going to do. She said that Mr. Tso did not get a condom and, although he ejaculated, he did not penetrate her anus. [ 12 ] J.S. said she did not feel unsafe in these circumstances and that, although there was unwanted kissing, she consented to all of the sexual activity. She said that the evening ended with Mr. Tso driving her home to where she lived with her grandmother. [ 13 ] J.S. testified that she initiated the second meeting with Mr. Tso.

She said that she felt differently about him than the other men she had met through Whisper because he appeared to be a nice guy who seemed to care about her rather than just wanting sex. [ 14 ] J.S. said that Mr. Tso again picked her up from work on January 18th and offered to take her for dinner, but she declined and it was decided instead that they would go to Mr. Tso's apartment to watch a movie. She said that on arrival at Mr. Tso's apartment, she had a Fuzzy Peach drink and Mr.

Tso had a beer as they sat down to watch the movie on what appears to have been a two-seat couch. [ 15 ] J.S. testified that, in the course of watching the movie, Mr. Tso was fondling her and, at some point, he suggested they go into the bedroom with which she agreed. [ 16 ] She said that she again performed oral sex on Mr. Tso to the point of ejaculation and that, after some time, she manually manipulated his penis until it was erect, after which, Mr. Tso put on a condom and they engaged in sexual intercourse. [ 17 ] J.S. described that, after the act of sexual intercourse, she and Mr.

Tso cuddled on the bed and again talked about various things. In her evidence in chief, she said that Mr. Tso asked her if anyone had tried to hurt her and said that he wanted to protect her. J.S. testified that she thought that was unusual. [ 18 ] She agreed in cross-examination having said to Mr. Tso that the other men she had met through Whisper were only interested in sex, but she denied the further allegations subsequently testified to by Mr. Tso with respect to J.S. having told Mr.

Tso that she had pressed charges against two men who had hurt her emotionally and physically. [ 19 ] She testified that, in due course, Mr. Tso put his fingers in her vagina and that he subsequently straddled her on his hands and knees as she was laying on her back. She said that his penis was erect at this point and that he was rubbing it against her vagina. J.S. said that she told Mr. Tso to get a condom, but that he said something to the effect that he was just teasing or that it was okay. J.S. described repeating to Mr.

Tso that he get a condom and that he stop, but she said he put his penis into her vagina against her will. She said she

tried to move her legs so as to get up, but that she was unable to do so as Mr. Tso had his feet on her feet with his shoulder on her mouth and his hands under the pillow, all of which had the effect of holding her down. J.S. said she was crying and telling Mr. Tso to stop, but that he did not do so and, as the act of sexual intercourse proceeded, J.S. said that she dug her own fingernail into her leg. [ 20 ] J.S. testified that when Mr. Tso did stop, he said something to the effect of, "I'm happy now," and then got off of her and tried to cuddle. J.S. said she did not feel Mr.

Tso ejaculate, but she assumed he had because of what he had said. She said she felt scared and frustrated that Mr. Tso had not stopped when she told him to do so. She said she was in shock so she continued to lay on the bed with her arms crossed for some time until she told Mr. Tso that she was, in her words, "done with this," and needed to go home. She said that Mr. Tso then sat on the end of the bed and, in addition to asking her what was wrong, he at that point in time said that he would always use a condom in the future and asked J.S. to stay. [ 21 ] J.S. said that she told Mr.

Tso that she would stay and then she got up and went into the bathroom. When she came out of the bathroom, J.S. started getting into her clothes and told Mr. Tso that she was leaving. She said in cross-examination that it may have been at this point in time that she told Mr. Tso he was just like the other guys, only interested in sex. J.S. said Mr. Tso offered to drive her home, but she left the apartment before he was able to get dressed.

She said she was feeling scared and was, again, her words, "freaking out" and feeling that she needed to get out of the building. [ 22 ] J.S. testified that, as she was trying to leave the building, she called her godfather, B.W., but the call was disconnected. She said she called him again once she managed to get out of the building and away from where she thought Mr. Tso might be able to find her.

B.W. subsequently testified that J.S. was frantic and crying during that phone call to an extent he had not experienced with her before and he also said that he had never before received a late-night call from J.S. [ 23 ] Going back to J.S.'s narrative, she said that as she made her way home Mr. Tso texted her to let him know she had made it home safely, but J.S. said that she did not reply. [ 24 ] She said there were other texts from Mr. Tso thereafter, but she changed Mr. Tso's contact name on her cellphone to the word, "Delete," as a reminder to herself to delete all of his texts.

She said that she did delete texts received from Mr. Tso until she decided to keep them in case she subsequently decided to go to the police. Screenshots of a series of text messages between Mr. Tso and J.S. on January 20th and 21st were entered into evidence. These came from J.S.'s phone and they do show the word "Delete" as the name associated to Mr. Tso. [ 25 ] J.S. acknowledged in cross-examination that when in grade six she was diagnosed as suffering from depression and anxiety and, more recently, she has been diagnosed with posttraumatic stress disorder.

She said she has taken medications for one or more of these conditions from time to time and was taking medications at the time of the alleged offence. She acknowledged, as well, that she sometimes has anxiety or panic attacks where her thoughts are scattered and she becomes irrational. She said she had such an attack after leaving Mr. Tso's residence on the last occasion.

She also acknowledged having engaged in self-harm in the past and she said that the act of digging her fingernail into her leg was the type of thing she did when she felt anxious. [ 26 ] J.S. said that she was generally feeling down during the time she was using the Whisper app and she thought that it could fill a void in her life and help her feel better. She agreed that she was confused with respect to why she was using Whisper and that she felt gross after being with the two men she met before Mr. Tso.

She also agreed that as a member of a church who attended service every Sunday and was a church group youth leader she felt conflicted and uneasy about using Whisper . J.S. denied the suggestion that she fabricated her evidence with respect to the alleged sexual assault by reason of her conflicted feelings concerning Mr. Tso when she came to believe that he was just interested in sex like the other men she had met through Whisper and also because she wanted to stop meeting men in that manner. [ 27 ] Turning to Mr.

Tso's evidence, with respect to the events of January 16th, his evidence was generally similar as to what J.S. testified to. In essence, he said that at his apartment J.S. gave him oral sex and thereafter they had sexual intercourse with him wearing a condom. He said that as they lay on the bed afterwards, he stimulated himself and ejaculated a second time on J.S.'s buttocks or lower back. He did not mention whether he had asked for anal sex. He said that he drove J.S. home at approximately midnight. [ 28 ] Mr. Tso testified that J.S. contacted him the next day and he agreed to meet her again.

He said that in the evening of January 18th, he picked J.S. up from her work place, that she declined his offer of getting something to eat, and then they decided to go back to his place to watch a movie. [ 29 ] Mr. Tso said that, at his apartment, he and J.S. cuddled and touched as they were watching the movie and, at his suggestion, they eventually went to the bedroom where J.S. performed oral sex on him to the point of ejaculation.

He said that afterwards J.S. manually manipulated his penis until it became erect, at which point, he put on a condom and they engaged in sexual intercourse. [ 30 ] It was at roughly this point in the narrative of events that Mr. Tso's evidence diverged significantly from that of J.S. Mr. Tso testified that after the sexual intercourse he and J.S. cuddled and talked while laying in bed. He said that in the course of that conversation, J.S. told him, amongst other things, that the other men she had dated found her unattractive and only used her for sex. Mr.

Tso testified, as well, that J.S. also told him that two of the men she had met through Whisper hurt her emotionally and physically and that she had pressed charges against them. [ 31 ] Mr. Tso said that after lying in bed and talking, he and J.S. got dressed and went into the living room where they resumed watching the movie. He said that at approximately 11:45 p.m., J.S. called her grandmother to tell her she would be home at 1:00 a.m. instead of midnight.

He said that they thereafter cuddled and fondled each other as they watched the movie and that they eventually went back to the bedroom to engage in further sexual activity. [ 32 ] Mr. Tso testified he was digitally penetrating J.S.'s vagina as they lay in bed. He said this went on for approximately 15 minutes and that, as that was happening, J.S. was not manipulating his penis and that his penis was not erect. He said J.S. asked him to get a condom, to which, he replied to wait a little bit because he was not erect. Mr.

Tso said that he then asked J.S. if he could rub his penis against her vagina to try to get an erection and said that she agreed.

[ 33 ] Mr. Tso said that he then got on top of J.S. and did that for approximately one minute, at which point, J.S. again asked him to get a condom. Mr. Tso said that he responded he was not ready as he still did not have an erection. He said that, at that point, he tried to arouse himself by kissing J.S.'s neck and breasts, but that after doing so for approximately one minute, J.S. told him to stop, that she did not want to do this anymore. Mr. Tso said that he stopped immediately. Mr.

Tso said that he then sat on the bed and that J.S. asked him why it had taken him so long to get a condom, to which he replied that he was not ready and they could just cuddle instead. Mr. Tso said that J.S.'s mood changed at this point and she accused him of being like the other men, that he just wanted her for sex and that he was not attracted to her. [ 34 ] Mr. Tso described J.S. as being upset and angry and said that she was badgering him about these things. Mr.

Tso said that in an attempt to stop the badgering, he sarcastically agreed that he was not attracted to her, at which point, J.S. got up and went into the washroom. Mr. Tso testified J.S. was in the washroom for approximately five minutes and that she was still angry and, when she came out, he said she accused him of having insulted her by having rejected her and repeated that he did not find her attractive and he was like the other men. [ 35 ] Mr. Tso said J.S. then started getting dressed and he did, as well.

He said he offered her a ride home, but when he could not find his keys, J.S. became even more upset and left his residence. He said that, after he found his keys, he went looking for J.S. unsuccessfully so he sent her a text to let him know she had gotten home safely. Mr. Tso said he waited approximately two days before reaching out again to J.S. by text and he agreed that the text exchange he had with her after that was as reflected in the text messages which were filed as an exhibit. [ 36 ] The first series of text messages that were entered into evidence appears to have been sent by Mr.

Tso commencing at 10:44 p.m. on January 20th. It reads [as read in]: Hi, baby, you knew I was into you and was crave you, do you want to be with me? [ 37 ] J.S. responded approximately 90 minutes later as follows [as read in]: I did, but now IDK [which I understand to mean "I don't know"] if I can trust you. [ 38 ] Mr. Tso testified that he sent this text after waiting a couple of days and that what he meant by it was that he was trying to communicate to J.S. not only that he liked her, but also that he craved her sexually.

I do not accept his evidence as to this being the first text he sent after the one asking J.S. to let him know she had made it home safely. This text message appears to be a response to some previous dialogue rather than the initiation of a new communication or conversation. I accept the evidence of J.S. that there had been prior text messages which she deleted. [ 39 ] The rest of the text messages appear to be a further continuation of the dialogue between the parties. Both of them testified as to what they were respectively referring to.

I do not intend to set out all of the text messages or the evidence given by the parties in respect thereto, but I summarize the most significant parts of the text messages as follows: (

a) In response to J.S.'s complaint that what Mr. Tso did was "fucked up," he effectively said that what he had done was on the spur of the moment after he had been fondling her genitals for a long time. (

b) Next, when J.S. said Mr. Tso did not get it that, when someone says stop, you stop, his answers were, "Do you want to be together or not," and, "Will you give us another chance?" (

c) Finally, when J.S. said that Mr. Tso had hurt her, he referenced in his reply that they had been having a very good time and continued with, "What do you want me to say? Fine. We will always use a condom." [ 40 ] Mr. Tso's testimony that he stopped sexual contact with J.S. when she told him to in many respects strained the limits of credibility beyond the breaking point. It seems unlikely that there would have been two requests that he get a condom if Mr. Tso did not have an erection. If J.S. had not realized Mr.

Tso did not have an erection when she first told him to get a condom, she would certainly have been alerted to his condition by his response and would not likely have told him again if he remained in that condition. [ 41 ] Mr. Tso's explanation for getting on top of J.S., that he got her consent to rub his penis on her vagina, seems even more unlikely given, according to his evidence, that she had only just requested that he get a condom. Mr. Tso's explanation for why J.S. suddenly told him to stop was that she was angry about why it had taken him so long to get a condom. It is common ground that Mr.

Tso did not get a condom at all and, in those circumstances, one might reasonably expect that, after he stopped sexual contact, the question would be why he did not get a condom rather than a complaint about how long it took him to get a condom. [ 42 ] Mr. Tso said that it was at this point in time that J.S. started accusing him of just wanting her for sex like the other men, but that comment seems to bear no rational connection to J.S. being angry or upset by reason of the long time it was taking Mr. Tso to get a condom.

Being accused of just wanting sex immediately upon having stopped foreplay, as testified to by Mr. Tso, is not consistent with taking too long to get a condom. It was submitted on behalf of Mr. Tso that what he actually meant -- or that the thrust of his evidence was that J.S. was angry with him because he was unable to get an erection. Mr. Tso did not explicitly testify to this effect nor did he allude to this when he was being interviewed by the police.

If this was the actual case that she was angry because he was unable to get an erection, it makes even less sense that J.S. would complain about the time it took him to get a condom. [ 43 ] In all the circumstances, I find that Mr. Tso testified about the fact that he did not get a condom because he knew that he was being accused of having sexual intercourse without one. Further, I find that he testified about his failure to obtain an erection as an explanation for not getting a condom. Of course, at trial, Mr.

Tso was aware of the allegations against him, but he was not necessarily aware of them shortly after the events in question. The text messages are of significance in this regard. On a plain reading, the text messages are not consistent with Mr. Tso's evidence and his attempts to explain them in his testimony were, in my view, nonsensical. [ 44 ] Mr. Tso said that he believed J.S. was referring to the fact he was unable to get an erection when she texted him that what he did

was "fucked up," and that his reply that, "It was on the spur of the moment" was in reference to her badgering him which came at some point later in time according to his evidence. If that is what Mr. Tso believed J.S. was referring to, his response makes no sense whatsoever. His answers to the, "When someone says stop, you stop," message are not at all responsive and appear to be meant to deter J.S. from that line of inquiry by assuring her that he was interested in a relationship with her. [ 45 ] Mr.

Tso said that when he texted, "Fine, we will always use a condom," that it was just a general statement meant to appease J.S. It clearly is not a general statement. It is a specific reference to not having worn a condom. In my view, it is not a reference to it taking a long time to get a condom or, as was submitted, to the fact that he was unable to get an erection. I do not accept any of Mr. Tso's evidence with respect to the text messages. [ 46 ] J.S. was a very good witness. She was very careful to make sure she understood the questions she was asked before she answered.

Her answers were responsive to what she was asked about. She appropriately admitted when she could not recall or was not sure of something and she made concessions including about her mental health and her conflicted feelings. She appeared to have no deep-rooted animosity toward Mr. Tso other than what could reasonably be expected given what she testified to. [ 47 ] Her evidence was unshaken in cross-examination. She was asked extensively about alleged inconsistencies between her evidence at trial and what Dr. Pickett wrote that J.S. had said in her notes and report. Some of the things that J.S. may have told Dr.

Pickett such as Mr. Tso putting his fingers into her mouth and anus, J.S. said she could not recall, but she admitted the possibility. With respect to the note that Mr. Tso forced his penis into her mouth, J.S. was clear in her evidence that this did not happen, that she did not tell Dr. Pickett that. Dr. Pickett herself was not sure of whether J.S. had used the word "forced." With respect to the note that Mr. Tso put a pillow over what was noted as her head face, Dr. Pickett clarified that J.S. had said Mr. Tso had a pillow over her head. J.S. testified that she could not recall having told Dr.

Pickett about this, but she acknowledged that it had occurred, albeit in a playful way that she had not objected to. I do not find that J.S. testified inconsistently in any significant way from what she may have said to Dr. Pickett. [ 48 ] The various small marks and bruises noted on J.S.'s body by Dr. Pickett are for the most part not significant as to whether there was a final act of unprotected sexual intercourse.

The exception is the mark on the outside of J.S.'s left thigh which is consistent with her evidence of digging her fingernail into her leg during the unwanted act of intercourse. [ 49 ] I found J.S. to be both creditable and reliable. I accept her version of the events and find that she twice told Mr. Tso to get a condom as he was preparing to have sexual intercourse with her, but that he did not do so and, shortly thereafter, proceeded to insert his penis into her vagina as she repeatedly told him to stop and was trying to get out from underneath.

The text messages are consistent with the version of events she testified to. I have no doubt that she and Mr. Tso were discussing in the text messages his failure to wear a condom during sexual intercourse after she had told him to stop. [ 50 ] I do not believe Mr. Tso's evidence with respect to there not having been a final act of unprotected sexual intercourse after he was told to stop.

I reject that evidence entirely and find that it does not raise a reasonable doubt about his guilt. [ 51 ] On a consideration of all of the other evidence, particularly that of J.S., I find that all of the elements of the offence have been proven beyond a reasonable doubt and, accordingly, I find Mr. Tso guilty as charged. (REASONS FOR JUDGMENT CONCLUDED)