Man freed after appeal over conviction for sex with retarded woman

A man who had sex with a mildly retarded woman had his conviction quashed after a court ruled there was insufficient justification to place a persuasive burden on defendants to prove they did not know the person with whom they had intercourse was mentally handicapped.

Gurung Krishna, 26, was convicted by jury after trial of unlawful sexual intercourse with a mentally incapacitated person and jailed for two years and three months last year at the Court of First Instance. He had pleaded not guilty. Yesterday, his conviction was quashed on appeal. Krishna had been accused of having sex with the woman, along with other men at her boyfriend's home in October 2008, when she was 21. She had the adaptive functioning of an 81/2-year-old. Adaptive functioning includes social interaction and motor, personal living and community living skills.

Krishna did not deny he had sex with her or that she was mentally incapacitated. His lawyer had argued during trial that it was more probable than not that his client did not realise or have reason to believe the woman was mentally incapacitated.

She went out without a guardian, for example, her retardation symptoms were mild, and she had a boyfriend and job, suggesting she was independent, the lawyer had said.

Furthermore, Krishna, a Nepali, spoke English as a second language and no Cantonese, the latter which the woman spoke, and they both had been drinking when they had sex.

The Court of Appeal, which handed down the ruling yesterday, said the relevant laws imposed the persuasive burden of proof on the defendant, which infringes the presumption of innocence. It ruled that there was insufficient justification for doing so.