HKSAR v. CHAN KWAI HUNG

HCMA1108/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1108 OF 2008

(ON APPEAL FROM KTCC 1946 OF 2008)

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BETWEEN

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REASONS   FOR   JUDGMENT

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1.  On 2 September 2009, I dismissed the appellant’s appeal against conviction. I said I would give full reasons later. I adjourned his appeal against sentence until today pending the preparation of a report as to his suitability for a community service order.

2.  The appellant was convicted of one charge of behaving in a disorderly manner in a public place, contrary to section 17B(2) of the Public Order Ordinance, Cap.245. He was sentenced to 14 days’ imprisonment.

3.  The charge before the court alleged that on 2 November 2007 inside the Kei Wah Cake Shop in Telford Plaza, being a public place, the appellant behaved in a disorderly manner by positioning a black recycle bag containing a mobile phone with a camera lens under the skirt of the female complainant whereby a breach of the peace was likely to be caused.

4.  The female complainant (“PW1”), a 29-year-old clerk was wearing a short skirt at the time of the alleged offence. She was unaware of the attentions of the appellant until another female shopper (“PW4”) snatched what is described as an “environment friendly bag” from the appellant and she saw the appellant take out a mobile phone from the bag. She therefore could not give evidence of the appellant’s activities prior to that moment.

5.  The principal evidence relied upon by the magistrate came from two sources :

(a)  the evidence of the fellow shopper (PW4); and

(b)  CCTV cameras installed in the cake shop.

PW4’s evidence

6.  PW4’s evidence was that she had seen the appellant standing next to the complainant who was looking at bread displayed on a rack on the wall. She noticed that the appellant appeared to be paying no attention to the bread. She then saw him place his bag under the skirt of the complainant. She noticed that a mobile phone was placed on top of a pile of newspapers in the bag and that the mobile phone had a camera lens. Having concluded what the appellant was doing, she grabbed the straps of the bag from the appellant in order to stop him. He immediately took the phone out of the bag. PW4 told the complainant what she had seen. The appellant then turned his back to PW4 so she could not see what he was doing with the phone. He then said that he had not been taking any photographs or video film.

The CCTV film

7.  PW4 had only noticed the appellant’s activities for a very brief period. The CCTV footage (Ex. P23) which was ruled admissible after a voir dire showed the appellant’s activities over several minutes.

8.  The appellant elected not to give evidence.

9.  In stating his conclusions the magistrate said :

“… Based on the evidence of PW4 and the footage of P23, I have absolutely no doubt in my mind that at the material times the Defendant was either taking pictures or filming video clips under the skirt of PW1.  As one can see in the footage, the Defendant was practically following PW1 for almost 10 minutes inside the shop.  In more than 10 occasions, the Defendant put his bag under the skirt of PW1.  For example, between the time of 13:30:30 and 13:30:55, it was clearly captured that the Defendant was walking back and forth behind PW1 and at the same time holding his bag and positioning it under the skirt of PW1 repeatedly.  Further, it can be seen from the footage that when the Defendant put the bag under PW1’s skirt, he kept looking down and staring at the position where he put the mobile phone.  If he was not taking pictures or filming video with the mobile phone in the bag, why did he keep looking inside the bag?

27.  The most decisive act to prove that the Defendant was taking pictures or filming video was that when PW4 grabbed the bag from the Defendant, the Defendant tried to pull it back and immediately took the phone out of the bag.  When he got the phone, it was shown in the footage that the Defendant was punching the buttons on the phone.  If the Defendant had not done the alleged act, why did he have to snatch the phone back?  If the Defendant had not done anything wrong, what was his purpose to press any button on the phone under those circumstances?”

10.  In response to a defence submission that it would have been impossible for the appellant to have been using the mobile phone to take pictures or to film video because no memory card was found inside the phone, the magistrate said he had found from his own examination of the phone, that although it contained no memory card, it could take up to 26 images or a video clip of up to 3 minutes and 50 seconds with its built-in memory. He concluded that the images taken by the appellant must have been deleted by the appellant at the time he could be seen pushing the buttons on the phone.

11.  The first three grounds of appeal set out in the Perfected Grounds of Appeal challenged the admissibility of the CCTV footage (Ex. P23). It was alleged that it was not admissible because the prosecution were under an obligation to comply with the requirements of section 22A of the Evidence Ordinance and had not done so. Those grounds of appeal were rightly abandoned by Mr Bruce. Section 22A had no application to the video footage from the CCTV cameras in this case.

12.  The first ground of appeal now relied upon by Mr Bruce is ground 4 namely that : “The learned magistrate erred in holding that the Appellant deleted relevant material on exhibit P1 or, alternatively erred in taking this into account.”

13.  The magistrate found that at the material time the appellant was taking pictures or filming video clips under the skirt of PW1. Mr Bruce concedes that the magistrate was entitled to take into account the appellant’s actions before and after he was intercepted in deciding whether he could draw that inference but he argues that the magistrate’s finding was flawed by the fact that there was no evidence from PW4 or on the video clips of the appellant pushing a button or carrying out any other action to activate the camera function on the mobile phone and the magistrate made no reference in his Statement of Findings as to how and whether he had resolved that issue in finding that the appellant was taking pictures or film under PW1’s skirt.

14.  There is nothing to suggest that the magistrate did not have this matter in mind when drawing the inference he did. He had expressly found that the phone was capable of taking a video clip of up to 3 minutes and 50 seconds with its built-in memory. There were periods of time when the appellant moved out of the range of the CCTV cameras when he had the opportunity of manually activating the camera.

15.  The CCTV film was played before me. On being asked by me Mr Bruce was unable to provide any explanation as to what the appellant might have been doing if he was not taking photographs or a video film or at least attempting to do so under the skirt of the complainant. I am satisfied that there is no other reasonable inference. The appellant must have either activated the camera phone or believed he had done so at some time when he was not captured on the CCTV film.

16.  The second ground of appeal is that : “the magistrate erred in holding that the offence charged was made out because there was no evidence that the response of passersby such as PW4 was likely to be anything other than what occurred which, contrary to the findings of the learned Magistrate, was not a breach of the peace but an exercise of the authority vested in a member of the community by section 101 of the Criminal Procedure Ordinance, Cap.221.”

17.  In this case the magistrate was satisfied that not only was a breach of the peace likely to be caused but that one actually had been caused.

18.  Mr Bruce argues that as the magistrate’s basis for finding an actual breach of the peace was the snatching of the bag which he submits did not reach the threshold of amounting to a breach of the peace, and as the magistrate did not identify the kind of breach of the peace he thought was likely, there is a possibility that he “set the bar too low” as to what he thought was likely to result from the appellant’s conduct and that this rendered the conviction unsafe.

19.  I am satisfied that Mr Bruce is correct when he says that the snatching of the bag was not in itself necessarily a breach of the peace. In R v Howell [1982] QB.416, at 427 which was followed by Cheung J in Chan Hau Man Christina v Commissioner of Police, HCAL139/2008, the court indicated that :

“…There is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property, or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance, …”

20.  The magistrate referred to four magistracy appeals involving attempts to take photographs under the skirts of females (HKSAR v Cheng Siu Wing [2003] 4 HKC 471, HKSAR v Tsui Chi Yung, HCMA1051/2006, HKSAR v Wong Wing Hong, HCMA307/2006 and HKSAR v Yip Tak Ming, HCMA727/2004) in which the appellate judges found that the appellant’s conduct in each case was likely to cause a breach of the peace.

21.  It does not of course follow that in every situation where a defendant attempts to take photographs underneath a woman’s skirt he would be guilty of an offence under section 17B(2) of the Public Order Ordinance. The court must look at the circumstances of the case, who was present and take into account how they reacted.

22.  The magistrate referred to the act of PW4 in resorting to force to snatch the phone as itself being a breach of the peace. In making the finding that a breach of the peace was likely to be caused he did not make reference to other ways in which a breach of the peace was likely as a result of the appellant’s conduct.

23.  Mr Bruce suggests that there was nothing to suggest that anyone would do any more than exercise the power of arrest granted to a citizen under section 101 of the Criminal Procedure Ordinance, Cap.221. Furthermore he argues that lawful force used to effect an arrest could not amount to a breach of the peace. Having seen the video film myself I am satisfied it is not necessary on the facts of this case to decide whether the latter proposition is correct, as only reasonable force can be lawfully used to effect an arrest.

24.  There were a number of people in the shop at the time of the appellant’s activities anyone of whom could have discovered the appellant’s activities. If they had done so I am satisfied that the effect of the appellant’s conduct would have caused sufficient outrage to make it likely that one or more of them would not confine themselves simply to the force reasonable to effect the arrest of the appellant.

25.  It was fortuitous that PW4’s reaction was relatively restrained but even she resorted to some force to snatch the appellant’s bag. That force might well not have been so restrained had she realized that after snatching the phone from the bag, the appellant was deleting images from the mobile phone.

26.  In the case of Cheng Siu Wing, Beeson J said :

“… It is easy to envisage other circumstances in which a general fracas might, or does, occur, because citizens are enraged by some form of disorderly conduct and decide to seize or punish the perpetrator, without bothering to call the police.”

These remarks are entirely apposite also to the circumstances of this case.

27.  Whether the magistrate did or did not apply too wide a test for breach of the peace, I am satisfied that on the evidence the only reasonable inference is that as a result of the appellant’s conduct “a breach of the peace was likely to occur”.

28.  I dismiss the appeal against conviction.

Sentence

29.  In so far as sentence is concerned the magistrate referred to the mitigating circumstances that had been put before him. He had been told that the appellant was 43 years old and married. He had obtained a Bachelor degree in public and social studies in 1999 and also a Diploma of social work. He joined the Correctional Services Department in 1989 and was promoted to the post of Principal Correctional Officer in 2002. He is a person of clear record. Reference letters from his superiors had been submitted to the court and they all had very positive comments on the appellant’s character and work performance. The magistrate commented that he had no doubt that the appellant had worked very hard to achieve what he had achieved and that he respected his contribution and hard work to society.

30.  The magistrate commented that it was not an offence committed on the spur of the moment and bore in mind the prevalence of this sort of behaviour which showed lack of respect to women and the need to pass a deterrent sentence.

31.  He said that :

“… the court had to consider the catastrophic consequences on the Defendant after the conviction. Very likely the Defendant will lose his job, which is a very respectable job and the Defendant will probably as a result of that lose his pension, which can be amount to millions.  I ask myself should the defendant be spared imprisonment simply because he has a good job and everything?  Sadly my answer is no.  They can be seen as strong mitigating factors but not enough to persuade me to impose non-custodial sentence.  Community Service Order could be an option but Defence did not bring it up.  In any event, the Defendant is convicted after trial and no remorse was shown throughout the proceedings, Community Services Order is not appropriate in these circumstances.”

32.  He said he considered that in all the circumstances imprisonment was the only option open to him. While he would have adopted a starting point of 4 weeks’ imprisonment if it had not been for the “catastrophic” consequences of the conviction on the appellant in the light of all the circumstances he sentenced the appellant to 14 days’ imprisonment.

33.  The magistrate was entirely right to consider the prevalence of the offence and the need to deter others. This sort of offence is a serious invasion of a woman’s privacy and gives rise to the likelihood of the breach of the peace. While respecting the magistrate’s view which was not wrong in principle, I am not, however, satisfied that a sentence of imprisonment was the only option in the circumstances of this case. It has to be borne in mind that in many cases the humiliation of exposure and conviction are likely to be the strongest deterrent to persons committing this sort of offence.

34.  I have been referred to a number of previous cases. It is clear that there is no tariff for this sort of offence and each case must be looked at it on its own facts.

35.  While the magistrate appears to have rejected the option of a community service order on the grounds that the appellant was convicted after trial and that he had demonstrated no remorse, I am not satisfied that those factors should necessarily preclude the making of a community service order in appropriate circumstances although I bear in mind the remark of Stuart-Moore Ag CJHC in Secretary for Justice v Buk Chui Ying (alias Buk Hui Kwan), CAAR4/2007 that :

“… it is unlikely that a community service order will ever be appropriate unless remorse has been shown.”

36.  In this case while the appellant pleaded not guilty, he did not give or call evidence. He simply put the prosecution to proof of the charge against him. He is a senior officer in the Correctional Services Department. He is married and his career and possibly his pension are at stake. The consequence of conviction will affect not only him but his family. In such circumstances it does not seem to me to be just that the option of a community service order be denied him because he has not demonstrated his remorse by pleading guilty, but has simply exercised his constitutional right to have the case against him proved. I have no reason to suppose that privately he does not feel extreme remorse for what he has done, particularly as his arrest appears to have led to a separation from his wife.

37.  Having considered the report as to the appellant’s suitability for a community service order, I am satisfied that would be an appropriate order in this case. I therefore allow the appeal against sentence and substitute a community service order of 160 hours for the sentence of imprisonment imposed by the magistrate.