HKSAR v. AU PAK CHUNG

HCMA 586/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 586 OF 2009

(ON APPEAL FROM TWCC 766/2009)

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J U D G M E N T

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1.  The appellant was found guilty after trial before Mr Ernest Lin in the Magistracy, of one count of Loitering Causing Concern, contrary to section 160 (3) of the Crimes Ordinance, Cap. 200.  The particulars of the charge allege that he loitered in a playground, a public place, and by his presence there caused the victim reasonably to be concerned for her safety or well-being.  The appellant was convicted and sentenced to 6 months’ imprisonment.  He appealed against both conviction and sentence.  On the appeal against conviction he appeared in person and on the appeal against the sentence he was granted Legal Aid and was represented by Mr Chan Chung of counsel.

2.  The prosecution case was that the appellant stood in front of a group of schoolgirls who were sitting chatting at the podium of the estate.  He was about 15 feet away.  The appellant was observed bending down and looking up the girl’s skirt.  At the time the victim PW1 was wearing school uniform with a skirt hemline above the knee.  The victim told the appellant to stop looking at her.  The appellant bent down his body 30º to the side, in order to see under her skirt.  The victim said she was frightened because she did not know what would happen next.  The appellant eventually wandered off, but remained on the podium and was looking at other schoolgirls.  Later PW1 saw a police officer and told him what had happened.  The appellant was subsequently arrested.

3.  A second witness PW2 Mr Chow For Yau was at the podium with his grandson at about the same time.  He saw the appellant acting strangely.  He was half squatting and looking up at a girl aged 5 to 6 years who was on the slide and wearing a short skirt.  He thought that was suspicious behaviour and made a report to the police.  In evidence he said he did not know either the appellant or PW1, the victim; in cross examination he told the court that he once sat at a restaurant table with the appellant, although he did not know him.

4.  The Magistrate noted that this evidence was not wholly relevant to the loitering charge and ignored its prejudicial effect.  At its highest PW2’s evidence showed that the appellant was in the area at the relevant time.

5.  It was suggested to PW1 in cross examination that she had a grudge against the accused because he had complained about her putting graffiti on the walls of the podium at some earlier time; this the victim denied.

6.  The magistrate found a case to answer and the appellant elected not to testify.  The defence counsel invited the magistrate to view a CCTV recording that was taken at that area of the park at about the relevant time.  That showed the appellant appearing alone on the podium; he was seen wandering around a children’s play area and lingering there.  He was not taking a straight course across the playground.  Defence counsel suggested that this recording showed the appellant was just passing by, but the magistrate found it supported his acting in a manner as described by both the first and second witnesses.  The CCTV camera footage did not show the area where the girls had been sitting.

7.  The magistrate found that the appellant had behaved in the manner described by PW1 and that his presence and behaviour had caused her to be concerned for her safety or well-being.  He found the appellant guilty.

8.  The appellant addressed the court on his appeal against conviction and said that he had his freedom and human rights and therefore could go to any public place, including the podium.  He went there because it was smoke-free, the air was fresh and he also saw neighbours in that place and spoke to them.  He denied that his behaviour could cause concern to the victim.  He claimed that the judge rejected PW2’s evidence, but that claim appeared to arise from the appellant’s misunderstanding of what the judge said in his oral reasons for verdict.  In fact the magistrate accepted PW2’s evidence and found him a truthful witness, although he did not regard it as directly relevant to the charge.

9.  The appellant contended that PW1 would not have continued to sit there without any reaction if she was truly worried.  He claimed also that she lied about the length of time he had looked up her skirt.  He accused her of having a grudge against him and having deliberately framed him.

10.  The appellant wanted the court to view the CCTV tape which showed the playground and his appearance in it for a certain period of time, around the time of the alleged offence.  Although the footage was not lengthy it was quite clear that the appellant was not talking to neighbours, nor was he sitting down enjoying the fresh air and he was not taking a direct route through the podium area.  He was walking from place to place and at times stood and watched what was going on at the play area.  He came in and out of the CCTV range at intervals.

11.  Having considered the magistrate’s Statement of Findings; having seen the video tape and having considered the appellant’s submissions I am satisfied that the appeal against conviction should be dismissed.

SENTENCE

12.  The appellant was aged 44, was single, was partially dependent on CSSA and had 5 previous convictions; 3 for indecent assault and one for loitering.  The magistrate therefore sought reports from a probation officer, a psychologist and a psychiatrist before sentencing because he was concerned about the mental condition of the appellant, particularly as his own counsel had conceded that the appellant appeared to be “somewhat of a strange man”. [B31A and B33A]

13.  For an indecent assault in 1990 the appellant was fined $1,000; in 1991 he was sent to prison for one month for a similar offence.  In 2001 he was convicted of loitering and fined $1,500.  In 2008 he was fined for an offence of shoplifting and in the same year he was sentenced to 4 months’ imprisonment for indecent assault.

14.  The probation report indicated that the appellant was not repentant about his behaviour and had little insight into it.  The clinical psychologist warned that there was a high risk of the appellant reoffending with sexual offences. [B24 para. 16]  The psychiatrist concluded that the appellant did not suffer any formal psychiatric disorder.  None of those reporting suggested any form of rehabilitation programme or treatment.

15.  As a result of these reports, in particular that of the psychologist, the magistrate imposed a deterrent sentence to prevent future transgressions.  He considered the offence was akin to indecent assault, although he recognised that there had been no physical contact between the appellant and the victim. He believed that the victim and other young girls must be protected from the behaviour exhibited by the appellant and that they should be able to use public facilities without fear of interference.  He imposed an immediate sentence of six months’ imprisonment.

16.  Mr Chan for the appellant submitted that the magistrate had imposed an excessive sentence.  He pointed out that the offence had been committed in an open area; that there was a relatively great distance between the victim and the appellant; that the time during which the appellant was staring was not great and the fact that the victim had felt able to reprove the appellant for his behaviour, showed that her fear and concern was limited.

17.  Mr David Leung, who appeared for the Respondent, conceded that the six-month sentence was on the high side, but submitted that it was not manifestly excessive given the appellant’s previous record.  He suggested that if the court thought fit the appeal might be allowed to the extent that the appellant was released forthwith.

18.  In preparing for this appeal I retrieved the court files relating to the indecent assault committed in 2008 and the loitering committed in 2001.  Although the full file was not available for the loitering, it was clear that that offence was one of “loitering causing concern” also.  For the indecent assault in 2008 the appellant had deliberately touched the breast of a woman who was approaching him on a narrow footpath.  The magistrate who sentenced him on that occasion had requested that CSD arrange suitable therapy for him, although there was no information as to whether that was done, or whether that was possible.

19.  Having considered the sentence I am of the view that it was too long given the nature of the offence.  I appreciate the magistrate’s concern with deterrence, in particular because of the comments by the psychologist.  However this was not an offence equivalent to indecent assault, unpleasant as it doubtless was for PW1.  I note however that it was a repeat offence.  A sentence of around 2 months’ imprisonment would have been sufficient in this case given the nature of the offence, the previous record and the fact that a deterrent sentence was appropriate.

20.  Accordingly, I allow the appeal against sentence to the extent of allowing the appellant to be released forthwith.  The appellant should bear in mind that any further offences of this nature, or any sexual offences, would be dealt with severely by the court.  He should for his own sake attend a clinic with a view to seeking therapy for his particular psychosexual problems.