HKSAR v. WONG CHI HO

HCMA1193/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1193 OF 2004

(ON APPEAL FROM ESCC 2591 OF 2004)

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J U D G M E N T

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1. The appellant was tried and convicted of one charge of loitering causing concern, contrary to section 160(3) of the Crimes Ordinance, Cap.200.  He was fined $1,000 and was placed on probation for one year.  He now appeals against his conviction.

2. The incident giving rise to the charge took place on 4 March 2004 at a ladies toilet on the 26^th floor of the Police Headquarters located in No.1 Arsenal Street, Wan Chai.

3. At the trial, the prosecution called two witnesses.  The first prosecution witness was a lady working on the 26^th floor.  The 2^nd prosecution witness was a police Sergeant.  The appellant elected to give evidence and he called one defence witness.

4. The first prosecution witness’s evidence was that she worked on the 26^th floor of the Police Headquarters.  At about 9:45 on the day in question, she went to the pantry to wash her cup and then to use the toilet facilities located across from the pantry.

5. The floor plan showing the 26^th floor and the location of the toilet and pantry area was produced at the trial.  Also produced were photographs of the area and the vicinity and photographs of the ladies toilet.  As can be seen from the floor plan, the location of the ladies toilet was opposite to the pantry.

6. The 1^st prosecution witness told the court that having washed her cup, she then filled it with water and placed it on the side table in the pantry.  She then walked over and entered the ladies toilet which was some 3 ½ steps away.  When she entered the toilet, she noticed both cubicles were empty and she was the only person in the toilet.  She then went inside one of the cubicles and used its facilities.  While inside, she heard another person entering the adjacent cubicle.  Shortly afterwards she left the cubicle, washed and dried her hands in the communal parts of the toilet.  At the time, she noticed the adjacent cubicle was still occupied.  She then left the toilet and returned to the pantry to pick up her cup.  Having done this she turned around to return to her work area.  At this juncture she saw the door to the ladies toilet being opened and the appellant walking out from the toilet.

7. She was shocked by what she saw and was at loss as at to what to do.  She noticed the appellant looking surprised and he told her that he was looking for someone.  The appellant then left.  The witness subsequently made a complaint to the Complaint Against Police Office (“CAPO”).  The distance from the pantry to the ladies toilet, according to the witness, was about three and a half of her steps.  The witness told the court that the incident had a negative impact on her and she was frightened by the conduct of the appellant.

8. The 2^nd prosecution witness was a police sergeant and he was tendered for cross-examination by the defence.  He confirmed that the appellant, when being interviewed, had informed CAPO that he had been to the toilet to look for a female cleaner nicknamed Fat Lady.  It was also the evidence of the sergeant that he had interviewed the cleaning lady by that nickname and she confirmed that the appellant had told her on the morning of the incident that a male had been looking for her.

9. The appellant was a serving police officer.  His testimony was that on the morning of 4 March 2004, he arrived at the lift lobby and he met a man who asked to speak to the cleaning lady.  He took upon himself to check if she was performing cleaning duties in the ladies toilet at the time.  He went to the ladies toilet, knocked at the door and shouted to check if she was inside.  At the same time, he pushed open the door and looked inside.  Having ascertained that cleaning lady was not there he then turned around to leave and it was at this stage that he saw the 1^st prosecution witness standing in the pantry door holding a cup.  The appellant denied emphatically that he had ever stepped inside the ladies toilet so that there was no question of him emerging therefrom.  He told the court that as soon as he pushed open the toilet door, he realised that his conduct was inappropriate.  On seeing the 1^st prosecution witness he told her words to the effect that he was sorry and he was looking for the cleaning lady.  He then returned to his desk.  When he saw the cleaning lady later in the morning, he told her that a male was looking for her earlier.

10. The cleaning lady was called to give evidence as the second defence witness.  She confirmed seeing the appellant that morning and that the appellant had told her that a colleague of her had been looking for her. 

11. The magistrate accepted the account given by the 1^st prosecution witness and rejected the appellant’s version.  In so doing she made references to the floor plan and the respective locations of the female toilet and the pantry area.  She came to the conclusion that the appellant had been inside the toilet and was the person occupying the cubicle adjacent to the one which was occupied by the 1^st prosecution witness.  Because of the proximity of the two areas, it was not possible for the appellant to come and knock at the toilet door and shouted inside without the 1^st prosecution witness being aware of the activities.

12. The appellant was not legally represented at the appeal.  He put forward a total of nine grounds of appeal.  Ground 1 was that there was no identification parade arranged for the prosecution witness to confirm that the appellant was the person emerging from the ladies toilet.  The appellant was legally represented at the trial.  The identity of the appellant as the person whom the 1^st prosecution witness had seen in the pantry and the ladies toilet area was never in dispute.  The appellant also admitted in his evidence that he did in fact go to the female toilet area and he had spoken to the 1^st prosecution witness.  The only issue was whether the appellant was the person emerging from the ladies toilet.  As there was no dispute in the appellant’s identity, no identification parade was necessary.  I can see no merit in this complaint.

13. Ground 2 criticised the way in which CAPO handled the complaint by the 1^st prosecution witness.  It is alleged by the appellant at this appeal that CAPO had not handled the complaint expeditiously and certain information was withheld.  This point was not taken at the trial.  It is also evident from the prosecution’s case that the 1^st prosecution witness was the main witness and the investigation by CAPO into the complaint was never part of the prosecution evidence.  Again, I found no substance in this ground of appeal.

14. Ground 3 of the appeal was directed at the conduct of the 1^st prosecution witness after the incident.  The argument advanced by the appellant was that since the witness claimed that she was scared and disturbed by the incident, there is no reason for her to be able to identify the appellant as the person who was seen emerging from the female toilet.  The issue of identification of the appellant had already been dealt with under Ground 1.  This ground also fails.

15. Grounds 4 and 5 are directed at the manner in which the police handled the case.  The appellant submitted that the police did not take sufficient steps to ascertain the existence and to locate the person whom the appellant met in the lift lobby on the morning of the incident.  The failure of the police to locate this man had therefore prejudiced the defendant’s case at the trial.  The magistrate must have noted that the evidence of the existence of this man came only from the appellant himself.  The magistrate rejected the evidence of the appellant.  In so doing, the magistrate must also have rejected the part of the evidence of the appellant that he had come across such a person in the lift lobby and that this person had asked about the whereabout of the cleaning lady. 

16. Ground 6 of the appeal is that in the statement given by the 1^st prosecution witness to the police, the answers given by the witness in her witness statement were brought about by leading questions put to her by the interviewer.  The witness statement of the 1^st prosecution witness was not produced in court and they were never part of the prosecution case.  The magistrate based her findings on the testimony of the witness given in court.  There is nothing in the oral reasons and in her Statement of Findings to suggest that the magistrate had relied on the contents of the witness’s statement.  This ground cannot succeed.

17. Ground 7 alleges that the magistrate acted upon the part of the evidence of the 1^st prosecution witness which was that she knew the appellant had knowledge about photography.  The magistrate accepted her evidence that the appellant emerging from the ladies toilet had caused her concern for her own safety and well-being.  The evidence of the appellant’s knowledge about photography was the basis upon which the witness became concern over her safety and well-being and led to her fear of being photographed in the act of using the toilet facilities.  This was evidence before the magistrate upon which he found that the witness was concerned over her safety and well-being.

18. Grounds 8 and 9 are directed at the prosecution’s failure to prove or to ascertain the identity of the person who was described by the prosecution witness as having occupied the adjacent cubicle in the female toilet.  This is how the magistrate resolved the issue of the identity of this person.  At page five she said :

“I found PW1 to be a very cautious and careful witness, and I also found her to be a truthful and honest witness.  I found her evidence to be clear, cogent and compelling.  …  I did not find any conflicts in her oral evidence and the contents of her witness statement as questioned on behalf of the Appellant.”

Later she said :

“PW1 has always maintained even in her witness statement that the Appellant was seen emerging from the toilet. …”

19. This is how she resolved the conflict between the 1^st prosecution witness’s version and the appellant’s account of the incident :

“… This is clearly, insufficient time for somebody to come along, knock a couple of times on the door, shout, get no reply and then open the door to have a quick look in.  If any of that had happened, then PW1 would undoubtedly have heard the knocks and the shouts or the shout, and I am satisfied beyond reasonable [doubt] that she did not. …”

20. The magistrate came to this conclusion with the assistance of the layout plans of the 26^th floor showing the proximity of the ladies toilet to the pantry.  In rejecting the appellant’s evidence, she said :

“I totally rejected the evidence of the defendant that he did anything like that.  I was satisfied that PW1 observed the Appellant walking out of the toilet.  On the basis of the timings and the distance, the only inference that can be drawn is that the Appellant was inside the toilet and was occupying the cubicle adjacent to PW1 whilst PW1 was in the toilet herself. …”

21. The magistrate reminded herself that there was no direct evidence as to who was inside the toilet and was occupying the adjacent cubicle.  She said :

“… I also note that there is no evidence as to what he was specifically wearing apart from what he says he wore.  There was insufficient evidence to find that the person walking back and forth passed the ladies toilet door was the Appellant.

In my judgment, and I found as the facts that, the Appellant, as a male, having no reason lawful or otherwise to enter the ladies toilet, went into the ladies’ toilet, occupied the cubicle next to one that was already occupied by PW1, stayed in the cubicle whilst the PW1 remained in the communal parts of the ladies toilet for another minute, washing and drying her hands, after having come out of the only other cubicle, and then leaving to go and picking up a glass of water, was more than sufficient time to constitute loitering. …”

22. The magistrate had analysed the evidence before her in detail. 

The points and alleged discrepancies raised by the appellant’s solicitor in his final address were carefully considered and resolved.  Once the magistrate rejected the appellant’s account and found the 1^st prosecution witness to be a truthful, clear and accurate witness, the evidence against the appellant was overwhelming.  The magistrate was entitled to come to the conclusion as she did and the conviction was neither unsafe nor unsatisfactory.

23. None of the grounds of appeal put forward before this court can be sustained and the appeal against conviction is dismissed.