HKSAR v. HO WING CHEONG

1997, NO. MA 397

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL

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R E A S O N S

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1. The applicant was convicted after trial of indecently exposing his private part in a public place without lawful authority or excuse contrary to s.148(1) of the Crimes Ordinance, Cap.200.

2. The magistrate's statement of findings is brief and I will reproduce it in full. It is as follows.

"PW1 to 3 were the main witnesses for the Crown. They tried their best to tell me what happened. I had no doubt they saw the Defendant and his actions as they mentioned in evidence. The Defendant in the box merely tried to downplay his role.

I accepted the Defendant was suffering from eczema. His private part became itchy. He exposed his private part and used his hands to embark on an exercise to alleviate his discomfort. As indicated, I accepted PW1 to 3's evidence as to what the Defendant did. I accepted the Defendant did not get any sexual gratification from his actions. There was no intention to upset or harass anyone. These were, however, not relevant considerations. In the context of the offence of Indecent Assault, it was held inter alia by the Court of Appeal in Mok Pak-wo v R (1980) HKLR 247 that the attacker's motive, whether he derived or intended to derive any sexual pleasure from his conduct, was irrelevant. I considered the same principle applied in the present case to the Defendant.

It was clear the Defendant exposed his private part intentionally. The question to then ask was whether in the circumstances right-minded persons would say the exposure was indecent. I answered that in the affirmative. (In the case of Lau Wai-tung v R Crim. App. 763 of 1985 and again in the context of the offence of Indecent Assault, the Court said the question to ask was whether in all the circumstances of the particular case, an ordinary observer would regard the act as an affront to customary standards of modesty. I was trying to express the same idea in somewhat different terms). I do not detract from the reasons I stated at the conclusion of trial. I merely expand those reasons here. I repeat my view that there was never any defence to the charge."

3. Miss Draycott who appeared for the appellant both here and before the magistrate advanced these grounds of appeal:

1. The Learned Magistrate erred in saying that the fact that the Appellant did not get sexual gratification from his actions and did not intend to upset or harass anyone were not relevant consideration p34.

2. The Learned Magistrate erred in finding that once he was satisfied that the Appellant had exposed himself in a public place deliberately, the only remaining question was whether in the circumstances right minded persons would say the exposure was indecent.

3. The Learned Magistrate failed to consider whether the Appellant had intended to expose himself in circumstance of indecency.

4. She submits that in order to prove the charge against the appellant, it is necessary to establish that the appellant had intended to expose himself in circumstances of indecency. She relies on the decisions in R v. Court [1989] AC 28; R v. Pratt [1984] Crim LR 41; R v. Kilbourne [1972] 1 WLR 1365 and R v. Kinker [1983] 1 WLR 1118. All these cases involve charges of indecent assault. In the old case in Rex v. Crunden 2 Comp 89 M'Donald C.B. said:-

"I can entertain no doubt that the defendant, by exposing his naked person on the occasion alluded to, was guilty of a misdemeanour. The law will not tolerate such an exhibition. Whatever his intention might be, the necessary tendency of his conduct was to outrage decency, and to corrupt the public morals."

5. In paragraph 20-278 Archbold 1997 edition under the heading "Acts Outraging Public Decency" at common law, the learned author wrote:-

"In general, all open lewdness, grossly scandalous behaviour, and whatever openly outrages decency or is offensive and disgusting, or is injurious to public morals by tending to corrupt the mind and destroy the love of decency, morality and good order, is an offence indictable at common law. See 2 Russ. Cr., 12th ed., 1423.

The offence of committing an act outraging public decency consists of the deliberate commission of an act which is per se lewd, obscene or disgusting: if the act itself does not have the requisite quality of lewdness or obscenity, evidence of intention or motive could not make good that deficiency: R. v. Rowley, 94 Cr.App.R. 95, C.A. See further, post, ” 20-283.

Where the facts of a case may be covered by a particular statute, that does not make any the less appropriate the common law offence of committing an act of a lewd, obscene and disgusting nature and outraging public decency: R. v. May (John), 91 Cr.App.R. 157, C.A."

6. Miss Draycott submits that as the charge was brought under a statute, the common law has no application. I do not agree. The last paragraph above quoted from Archbold makes this position abundantly clear. Further as a matter of construction, any common law principle can only be taken away or abrogated by express provisions or necessary implications in the statute. No such express provisions or necessary implications are present in this case.

7. In my view, the magistrate is right in the conclusion that he reached. The appeal is dismissed.