HKSAR v. YEUNG CHUN SING

HCMA 1029/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. hcma 1029 OF 2004

(ON APPEAL FROM ESCC 1031/2004)

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J U D G M E N T

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1.  On 4 October last year the Appellant was found guilty by Miss Julia Livesey at the Eastern Magistrates Court of a charge of disorderly conduct and sentenced to a term of 3 weeks imprisonment from which he was immediately given bail by her pending his appeal.  He now appeals against both his conviction and sentence.

2.  The Appellant is a single man aged 34.  He has no previous convictions and is employed as a Sales Manager by local bank.  The prosecution allegation is that whilst travelling on an escalator at a place known as Kingsway Garden, North Point he took a photograph of the inside of the complainant’s (PW1’s) thighs by intruding his mobile telephone, which had a camera function, underneath her skirt.  She was alerted to this, which of course was going on behind her, because she felt something touch her bare flesh on the inside of her right thigh 4 to 5 inches above the knee.

3.  On feeling that sensation she turned around and saw the Appellant, who was standing on the second step below the one that she was on, holding a mobile telephone.  The mobile telephone was held at about the level of his private parts away from his body with the photo lens open facing upwards.  She immediately challenged him by asking him what he has doing.  She told the learned Magistrate that she felt frightened. He made no response and she again asked him what he was up to by the time that the escalator had got to the top.  Having again made no response she tried to pin him against a nearby wall but he managed to free himself from her grip and ran-off down the up escalator chased by PW1’s father and her brother who had also been riding on the same escalator as she had been when this incident is alleged to have occurred.  Her father fell at the bottom of the escalator as he made to apprehend the Appellant, but PW1’s brother was able to catch and detain him a little distance away.  He was handed into the custody of the police who attended the scene.  It was agreed that having been arrested and cautioned for an offence of loitering the Appellant said;

“Sir, give me a chance, I was just having a try with the camera.  I did not mean to shoot under the skirt of other people.  Sir, give me a chance, let me say sorry to her family members.”

4.  The course of the trial can be briefly stated.  Two charges were laid against the Appellant being a charge of loitering, which the Magistrate quite rightly dismissed at the close of the prosecution case, and disorderly conduct of which she convicted him.

5.  The complainant who was wearing a skirt that covered her knees gave evidence that when she turned around the Appellant was holding his mobile telephone 4 inches away from her legs and it is abundantly clear that she considered, rightly or wrongly, that the Appellant had deliberately inserted his mobile telephone underneath her skirt and had or they least was trying to take a photograph of her thighs or anything else that might have been in view of the camera lens from that position.  This clearly incensed her with the consequences that I have already described, culminating in the Appellant being chased and caught by her brother.

6.  For the purpose of this appeal that is a sufficient description of the evidence before the Magistrate with the exception of evidence given by Lam Chun Fa (PW3) who was a lady police officer attached to the Commercial Crime Bureau.  The admissibility of her evidence had been challenged by the Appellant’s then counsel at the trial [not Mr Marash S.C. who appears for him on the appeal].  This witness had been given the Appellant’s mobile telephone which had been seized from him by the police and she “downloaded” the contents of the camera onto a police laptop computer and thereafter printed the photographs which the prosecution had sought to put into evidence before the Magistrate.  The point had been taken that this witness had not proved her expertise in such matters namely, the operation of the inner workings of the camera and, therefore, could not give this evidence.  The learned Magistrate held otherwise and admitted the evidence which comprised a series of photographs the last of which appears to have assumed considerable importance in her assessment of the case as a whole.  This photograph is the last in the series and is dated 9 December 2003 which was the date of the alleged offence.  The Magistrate took the evidence of the lady police officer who had developed on download the photograph, that this depicted a person’s thigh.  I will retrun to the significance of this evidence when I come to consider the Magistrate’s reasoning in convicting the Appellant.

7.  In arguing the appeal Mr Marash has taken a number of distinct and separate points which he submits taken either separately and/or in combination render the conviction unsafe.

8.  It is convenient to take the question of the admissibility of the evidence of PW3 first.  Mr Marash’s analysis is not to say that admissibility turned on any expertise possessed by the witness or indeed the lack of it but that the Magistrate failed to ensure before she allowed the evidence to go in that there had been proper compliance with S.22A(3) of the Evidence Ordinance.  Section 22A is concerned with the admissibility of records stored in a computer which will be admissible as prima facie evidence of any fact stated in the record so produced provided certain conditions are complied with.  It is unnecessary for me to set out the terms of the section here.  Mr Marash has drawn particular attention to subsection (3)(c) and (d).  (c) requires that the document should be produced under the direction of a person “having practical knowledge of and experience in the use of computers as a means of storing, processing or retrieving information; and (d) requires that at the time the document was so produced the computer was operating properly”.  I need not read on from the sub-section.  Mr Marash’s complaint is really centred on this latter provision and that the person prosecuting the matter before the Magistrate did not ask the right questions designed to establish the proper functioning of the computer – the computer for these purposes comprising the single connected elements of the mobile telephone, the officer’s lap-top computer and the printer to which it was attached.  I suspect that if the particular question had been put to the witness she would have said something like “yes I think so”.  She was not, hence Mr Marash’s objection.  In developing this objection he has referred me to decision of the House of Lords which referred to effectively identical English legislation where the Court underlined the importance of compliance with the terms of these sections before such evidence can be adduced.  Before I deal with this part of the objection I don’t really think it can be validly argued that this lady did not come within (c).  She had been performing these tasks for many years, and although she did not profess to knowledge of the inner workings of the mobile telephone her practical knowledge could not be doubted.

9.  As to the absence of any evidence as to whether the computer was working properly Mr Cheung for the prosecution submits that it does not and did not matter before the Magistrate because the purpose of the downloading of the photographs was to provide “real evidence” as opposed to the production of a record or document as prima facie evidence of any fact stated in the document.  All of the prosecution was seeking to do was to get before the court any photographs stored in the camera element of the telephone.

10.  In my judgment, Mr Cheung is correct and I am therefore unable to uphold this part of Mr Marash’s submissions.

11.  That having been said and the evidence having been properly admitted the photograph which was relied on was to become a very real distraction from which, for reasons, which I will come to, prompted the learned Magistrate to fall into error.  The police officer said that this photograph showed a person’s thighs.  Firstly, this witness had no place in giving such evidence.  That was a matter entirely for the Court to decide.  This did not call for any particular expertise.  The Court was in as good a position to interpret the photograph as the officer was.  Mr Cheung rightly accepts that this witness should not have been allowed to give such evidence.  That evidence having been given the learned Magistrate must have had some regard to it otherwise she would have said so, and no doubt also using her own powers of observation concluded that this photograph showed a person’s thighs.  There was also evidence that the photograph was taken on the 9 December 2003, the date of the incident.

12.  As to her conclusion that the photograph depicted thighs I am in as good a position as the Magistrate to form a view as to that.  I have been shown the original colour digital photograph which comprised the exhibit before the Court and for my part I am quite unable to come to any, even a tentative view, that this shows the image of a person’s thighs.  This is an image of darkness with vague greyish indistinct outlines.  In my judgment, it was not open to the Magistrate to conclude that this photograph showed a person’s thighs.  That finding by her simply cannot be sustained.

13.  The matter goes further because it is now necessary to go on and consider how she used that finding in her conclusion that the charge had been made out.  The relevant part of the Statement of Findings [page 16] is in these terms:

“However, all the photographs had different dates indicating when they were taken and in any event there was evidence that a photograph of thighs was found on the mobile.  There is no evidence to identify to whom the thighs belonged.  There was no sufficient evidence to show that the thighs shown were PW1’s.  However the existence of that photograph did show that the phone had been put to such a use.  The only reasonable inference that can be drawn, looking at all the evidence, was that it was the Appellant who took that photograph.

A few lines further down she continued in this way:

“I was satisfied that she felt an item touch the back of her thigh above her knee and against her bare skin.  The only item it could be was the mobile phone, which was in the position ready to take a photograph.  I was satisfied that when she turned around she observed the Appellant holding his mobile phone at his groin level with the camera facing upwards, the correct position for the insertion of the phone underneath PW1’s skirt.”

14.  Mr Marash submits that the when considers these passages in the Statement of Findings the learned Magistrate used her erroneous conclusion that this was a photograph of a person’s thighs which, correctly in my view, she inferred must have been taken by the Appellant [the dark photograph that is] to inform the rest of her judgment that because he had taken a photograph of a person’s thighs, presumably from underneath the subject’s skirt, whoever that person was, that the Appellant must have been ready to do the same to the complainant, when she turned around to find him at the ready, the camera lens in position, inches from her legs and that it must therefore have been his mobile telephone that had touched her thighs which she had felt and which had caused her to turn around in the first place.

15.  Mr Marash submits that this must amount to defective reasoning stemming from the erroneous conclusion that this was a photograph of a person’s thighs.  I would hesitate to disagree with the reasoning of such an experienced Magistrate but it seems to me that on this occasion Mr Marash must be right.  This is why I had observed earlier on that this photograph had only served as a distraction which ultimately has led the learned Magistrate to adopt a false course of reasoning.  Had she put aside the photograph on the basis that it showed nothing that could be relied on, then one could well have understood why she might have concluded that what the complainant had felt on her thighs was the Appellant’s mobile telephone after which she turned quickly to find him holding it, open camera lens up, inches from her legs.  But that was not the Magistrate’s reasoning.  She has plainly relied on the fact that the photograph showed a person’s thighs and relied on that erroneous finding of fact to come to further conclusions which were predicated on her original error about what the photograph depicted.

16.  Mr Marash has one other ground of appeal which relates to the alleged failure of the Magistrate to consider the defence which the Appellant had put forward when he had been arrested and cautioned.  It is accepted by both the prosecution and the defence that what the Appellant’s statement constituted a “mixed statement” containing both inculpatory and exculpatory elements.  I have already set it out in full and I do not propose to do so again here.  It is sufficient to repeat the exculpatory part which is in these terms; “… I did not mean to shoot under the skirt of other people…”.

17.  Mr Marash submits that when faced with a person of good character the Magistrate should have given herself both a propensity and credibility direction.  Whilst she gave herself a propensity direction in terms of R.v. Berrada he submits that she should have given proper weight to what he was saying in his brief statement to the police that this had been accidental and that this was a statement being made by someone of good character, hence the requirement or at least the desirability of giving a credibility direction that this was a statement coming from a such person and therefore more likely to be true.

18.  In order to test these criticisms it is important to see how the Magistrate dealt with the statement.  Counsel had reminded her of it in his final speech.  This is how she dealt with the matter in this regard;

“In determining the case I bore in mind that the burden was on the prosecution at all times to prove the charge against the Appellant beyond all reasonable doubt and so that I was sure.  I born in mind that there was no burden on the Appellant to prove anything.  In determining the facts of the case I carefully considered the evidence of all of the witnesses the content of their evidence and the manner in which it was given.  I carefully considered all the exhibits, in particular the photographs of the scene and what PW1 was wearing, and also the admitted and agreed facts.  I bore in mind that the Appellant was a man of clear record.  He elected to remain silent as was his right, I bore in mind that no adverse inference could be drawn.  The Appellant’s clear record was relevant under one limb of the case called Barrada namely the lack of propensity to commit a criminal offence.

I was satisfied that the Appellant was properly charged with disorderly conduct as was shown by PW1’s conduct when faced with a situation where she believed that a photograph had been taken underneath her skirt.”

19.  Mr Marash complains that this rather wholesale approach to the matter was insufficient in the circumstances of this case.  This demonstrates a failure, he says, to deal with the defence of, in effect, accident or unintentional behaviour on his part.  She should have made specific reference to this part of the statement and indicated how and why she was disposed to reject it.  This failure to deal with the defence amounted to a non-direction of herself by the Magistrate which should render her verdict unsafe.  This is compounded by virtue of the fact that the defence had been put forward by a man of good character which therefore carried greater conviction, hence the need for a credibility direction to herself.

20.  In reply Mr Cheung says two things really.  Firstly, that the Magistrate’s treatment of the matter from the passage that I have cited shows that she was well alive to the position and that she had considered all of the evidence.  She has said so and that is enough.  Secondly, an exculpatory part of a mixed statement must carry less weight than the inculpatory parts in the court’s assessment of the overall effect of such a statement.  The Magistrate was therefore entitled to give it very little weight if she so wished, and secondly, that a credibility, R.v.Vye typeof direction, can only serve to confuse and on this occasion was not required.

21.  In relation to these opposing submissions it is essential to stand back from the evidence and take in what had actually happened on this escalator particularly, where no prosecution witness can give a direct account of what had happened.  In such circumstances the Court would need to be particularly attentive to every aspect of the matter.  Here the Appellant had undoubtedly raised the issue of an accidental act which, in my judgement, the Magistrate should have made specific reference to and demonstrated how she was disposed to eliminate it from the case as she would have had to before she could convict.  In my judgment the Statement of Findings is deficient to that respect and it was not enough to deal with all the evidence by way of a wholesale reference which is what appears in the Statement of Findings.  The learned Magistrate of course condescended to an analysis of other parts of the evidence but failed to deal with this defence, no matter how brief that defence may have been.  It needed to be considered.  As to whether a separate credibility direction needed to be given; whilst it might have been better to have given herself one, on this occasion I do not consider that this would have been absolutely necessary in these circumstances.

22.  Nevertheless, this being my view of the matters where I consider the Magistrate fell into error I cannot see how the conviction can be upheld.  In the circumstances both errors were of substance going to the root of the matter with the result that the conviction is one that cannot be regarded as a safe one.  It must be set aside as must be the sentence of 3 weeks’ imprisonment.