A Surrey masseur who was convicted of sexual assault against three women will get a new trial in one of the cases.

The Court of Appeal for British Columbia has set aside Rong Xian Li鈥檚 conviction in that particular case but upheld his convictions in the other two.

Li鈥檚 legal counsel argued at his appeal hearing in Vancouver that the judge who convicted him erred in relying on similar fact evidence, misapprehended evidence and improperly assessed the credibility of the complainants collectively, 鈥渢hereby allowing the evidence of each to bolster the others鈥� and 鈥渁pplying uneven scrutiny to the evidence of the complainants and the appellant.鈥�

There is a publication ban on information that could identify the complainants. Each testified they鈥檇 received a massage from Li at the Iris Day Spa in Surrey, where he was employed, in 2017, and that he touched, massaged, or squeezed their breasts without their consent.

During his seven-day trial 鈥� heard before a judge sitting without a jury, at B.C. Supreme Court in New Westminster 鈥� Li denied the three had received a massage from him at the spa, claimed he鈥檇 never met them before, and that he was being 鈥渇ramed.鈥�

鈥淚dentity was, accordingly, a key issue at trial,鈥� appeal court Justice Karen Horsman noted in .

Horsman noted the trial judge found the complainants to be 鈥渃redible and reliable in their evidence of the sexual touching, and in identifying the appellant as the perpetrator.

鈥淭he trial judge did not find the appellant to be credible. He found that the complainants鈥� testimony was supported by other evidence showing that the appellant was working at the spa on the days that the complainants attended. He concluded that the evidence in its totality did not give rise to reasonable doubt on any of the three counts.鈥�

Li testified he worked only eight days in total at the spa.

Horsman found no error in the trial judge鈥檚 decision to convict in two of the cases but concluded he erred in law in his analysis when he found the Crown had proved the elements of the offence of sexual assault beyond a reasonable doubt in the third. He erred in convicting Li on that count, Horsman found, by relying on inadmissible hearsay evidence to support that complaint鈥檚 in-dock identification of Li.

鈥淚n my view, the appropriate remedy in the circumstances is to set aside the appellant鈥檚 conviction on count 1 of the indictment and order a new trial on that count,鈥� she reasoned.

Appeal court Justices Lauri Ann Fenlon and Joyce DeWitt-Van Oosten concurred.

tom.zytaruk@surreynowleader.com
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