HKSAR v. MA KEI WING

HCMA1260/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1260 OF 2003

(ON APPEAL FROM ESCC 3214 OF 2003)

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J U D G M E N T

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1. The appellant was convicted on 28 November 2003 of one charge of loitering in a public place, his presence thereby causing a person to be reasonably concerned for her safety or well-being.

2. The facts found by the magistrate were that at about 2:40 p.m. on 24 September 2003, a witness was waiting for the MTR train at Central station. She was going to Wanchai. She noticed near her another lady who was wearing a short skirt. The train arrived and both boarded. She took a seat quite close to where the lady she had noticed came to stand. The compartment was not crowded. She saw the appellant board the train and stand about nine inches behind the victim. During the journey, she saw the appellant stretch out his left arm with his cell phone held in his left hand. The lens of the cell phone was pointing upwards under the hem of the skirt of the victim. The blue light on the screen of the cell phone then lit. The appellant moved the cell phone near to his face to have a look and then returned it to the former position with the lens pointing upwards. The witness told the victim what had happened and the victim asked the appellant to show her the photographs. He refused and started to push the keys of his telephone. He was told by the witness that she had seen him taking photographs and he denied having done so. They suggested to him that they see the station-master and the three of them alighted at the next station which was Causeway Bay.

3. They walked to the station-master's office with the victim closely behind the appellant. As he walked pressing keys on his cell phone, the victim looking over his shoulder, managed to see what was on the screen of the telephone and recognised a photograph of her own skirt and what was beneath it. They arrived at the station-master's office and the police were called. At this point no photographs were found on the telephone and the appellant denied having committed any offence. The appellant was arrested for loitering. The telephone was seized. It had a photo-taking function but no photographs relating to the victim were found on it.

4. The case for the appellant was that the witness was mistaken when she saw the appellant take the photographs and the victim was mistaken when she said she saw her photograph on the screen of the telephone on the way to the station-master's office.

5. The appellant gave evidence. He said that on the day in question he took the MTR train at Central heading for North Point. His final destination was Ngau Tau Kok. He said that when he boarded at the train there was no vacant seat. He was holding the telephone in his right hand. He said that he was not familiar with the use of the phone, that he had a hearing problem and had to hold the phone up to look at his messages, if any, on it from time to time. He agreed that he had been approached by the witness. He refused to show her the phone as it was his own. He agreed that they got off at Causeway Bay but said he was pressing the keys to find a friend's number so that they could get a lawyer for him. He failed to find that number. He was not, he said, deleting photographs.

6. The first element of the offence that must be proved is that the appellant was loitering. The magistrate referred to the judgment in the R. v. Ng Chun Yip (1985) HKLR 427 where Penlington J found that loitering means idling, lingering or hanging about. The magistrate did not accept the evidence of the appellant. The magistrate says this :

"The defendant claims, amongst other aspects of his evidence, that he was traveling from Central to North Point, thenceforth to Ngau Tau Kok. I do not believe he had any particular destination in mind on board the MTR train. It is clear, from the way he claims to handle a simple alleged case of misunderstanding on the part of PW1 and the victim, that he had no limit of time to spend. I find that he was only hanging about in the MTR line looking for targets to take upskirt photos."

7. This is the only reference the magistrate makes to a finding that the appellant was loitering. It is clear that he drew the inference because the appellant had, as he found, no limit of time to spend, that he was not travelling from Central to North Point with a clear destination in mind. Having disbelieved the evidence of the appellant, he seems to base his finding that the appellant was loitering upon the evidence of the appellant. In the absence of that evidence, there is no evidence before the magistrate that the appellant was loitering.

8. Ms Chan, for the respondent, urges upon me to look at the whole of the incident and to accept that the magistrate was entitled to draw a reasonable inference that because he took the photographs in the course of the journey and did not appear to be pressed for time, that he was loitering in the sense referred to by Penlington J, that is idling, lingering or hanging about. It is clear that the inference that Ms Chan seeks me to draw from those facts is not the only inference that can reasonable be drawn from them. Where there are competing inferences which are reasonable then I am required to draw the one in favour of the appellant.

9. I cannot fault the magistrate in his other findings of fact. He clearly was sure that the photographs had been taken by the appellant. He was sure that the taking of such photographs would cause concern for the safety and well-being of the person who was being photographed. The difficulty is that loitering has not been made out by the evidence before the magistrate and that being so this appeal must be allowed and the sentence set aside.