HKSAR v. YEUNG HIN-KWONG, STEVENS

[English Translation –英譯本]

HCMA 604/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 604 OF 2008

(ON APPEAL FROM ESCC NO. 1052 OF 2008)

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J U D G M E N T

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1. The appellant was charged with the following two offences:

Amended Charge (1):    Committing an act outraging public decency, contrary to the common law.

Particulars of offence:   Yeung Hin-kwong, Stevens, you are charged that on 19 February 2008 at the rear staircase on the Ground Floor of UA Windsor Cinema, 311 Gloucester Road, Causeway Bay, Hong Kong, you did commit an act of a lewd, obscene or disgusting nature which outraged public decency, by having sexual intercourse [Translator’s note: This translation of the Chinese term “性行為”, which was used in the English version of the charge, is inaccurate: see the Judge’s comment in paragraph 28 below.] with an unknown female.

Charge (2):   Indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong.

Particulars of offence:   Yeung Hin-kwong, Stevens, you are charged that on 19 February 2008 outside In Square, 311 Gloucester Road, Causeway Bay, Hong Kong, you did indecently assault another person, namely X.

2. The appellant denied the charges but was convicted on both charges by the Deputy Magistrate after trial. The appellant appeals against the convictions.

Prosecution case

3.    In brief, the prosecution case was that on the day of the offence, the female victim and a male colleague of hers, who were both working at the UA Cinema, In Square, went one after the other to the rear staircase on the Ground Floor of the cinema for inspection. The female victim saw that the appellant was having “sexual act” with a woman and told them to stop. When her male colleague arrived at the scene, the appellant was zipping up his trousers. The female victim tried to stop the appellant and the woman from leaving but was pushed away by the appellant. The female victim chased after the two of them and managed to get hold of the woman outside In Square. The appellant “touched” the female victim’s breast and “squeezed [it] 3 or 4 times” with force. The appellant also “squeezed” the female victim’s buttock once. The female victim let go and the woman successfully escaped.

4.    Police officers arrived at the scene for investigation. Before they declared arrest of the appellant, they saw a used condom fall out of the left leg of the appellant’s trousers. Subsequently the police arrested the appellant for the offence of “indecent exposure”. Under caution, the appellant said, “Ah Sir, the woman has put the condom on for me and we’re ready to do [it].”  In respect of the offence of indecent assault, the appellant said under caution, “Ah Sir, I didn’t indecently assault her.”

Defence case

5.    The defence case was “mistaken identity”. The appellant said that he happened to be crossing Gloucester Road and walking in the direction of Park Lane Hotel. He heard a woman yelling “indecent assault” and then he was stopped by a man. The female victim approached the appellant and accused him of indecently assaulting her. The appellant denied and the female victim said, “You created trouble in my cinema and I’ll surely give you a lot of trouble.” The appellant alleged that the police officers neither declared that he was under arrest nor cautioned him at the scene. He made no admission and merely told the police officers that he had nothing to do with the incident.

Grounds of appeal

6.    Mr. Wong, Counsel for the appellant, submits that the convictions are unsafe. He advances four grounds of appeal, the first two of which are directed at Charge (1) whereas the other two are directed at Charge (2).

Ground of appeal (1)

7.    Mr. Wong submits that the Magistrate erred in finding that the location of the offence (i.e. the rear staircase of the UA Cinema) was a “public place”. Mr. Wong agrees the offence does not require proof that the place at which the act outraging public decency took place was a “public place”. However, he submits that if the place was not a public place, then it became questionable whether those who saw what happened were “members of the public”.

8.    Mr. Wong cites R. v. Steven Walker [1996] 1 Cr. App. R. 111 in support of his argument. The defendant in that case masturbated in the sitting room of his house, right in front of his younger daughter and her friend, a girl aged 10. The English Court of Appeal held that, apart from the requirement that at least two persons must have been able to witness the act in question, there was a further requirement that the act was committed in a place where there was a real possibility that members of the public might witness the act. This is dictated by the rationale behind the offence, namely that reasonable people should be able to venture into public without their sense of decency being outraged. In that case the Court of Appeal stressed that the location of the act itself did not have to be a public place. The balcony of a private house was held to be sufficient, because the public were able to see the balcony. In Walker, the Court of Appeal held that the prosecution failed to prove that the sitting room was a place where there was a real possibility that members of the public might witness the act in question.

9.    Mr. Wong argues that the Court of Appeal in Walker obviously did not consider that the defendant’s daughter and her young friend were “members of the public”.

10.   Applying the principle to the present case, Mr. Wong submits that the rear staircase in question was a private place and by no means a public place. Members of the public were unable to witness from the streets what happened at the rear staircase. Just like the two girls in Walker, the female victim and the other staff member of the cinema were not “members of the public”.

11.   Mr. Wong further submits that even if the rear staircase was a public place and the female victim and her male colleague were members of the public, the fact was that only the female victim witnessed what the appellant and the woman did. Her male colleague who later arrived did not see what happened at all and there was no real possibility of that man being able to see what the appellant and the woman did.

12.   Mr. Wong argues that the facts of the present case were distinguishable from those of R. v. Hamilton [2008] 2 WLR 107. The defendant in that case took video footage up the skirts of women in a supermarket by using a camera hidden in his rucksack. There was no evidence that anyone had actually witnessed and been outraged by the defendant’s acts. The English Court of Appeal held that the prosecution had to prove that the act which outraged public decency was done in a place to which the public had access or which the public could see, and that the act was capable of being seen by two or more persons who were actually present.

13.   Mr. Wong contends that, as the male staff member was not someone who was present and witnessed what the appellant and the woman did, the prosecution failed to prove that the appellant was guilty of Charge (1).

14. Mr. Wong cites Rose v. DPP [2006] 1 WLR 2626 in respect of the requirement of “actual presence”. The defendant in that case allegedly performed oral sex at the foyer of a bank. Members of the public could gain access to the foyer by using a swipe card, and the foyer was visible to passers-by. There was no evidence that anyone witnessed the act in question when it was performed, and the act was subsequently seen by a bank employee who watched the relevant CCTV recording. The appellate court held that, on the facts, the “public” element of the offence was not established. There was no evidence that at the time of the offence there were people in the street who could have seen what happened or who could have gone to the foyer to see what happened. The evidence showed that the act was seen by only one person.

Ground of appeal (2)

15. Referring to the English version of the particulars of offence of Charge (1) and the summary of facts prepared by the police, Mr. Wong submits that the prosecution equated “sexual act” (“性行為”) with “sexual intercourse”. Mr. Wong says that, on the evidence, the female victim did not witness any “sexual intercourse” between the appellant and the woman. What she saw might merely be “simulated intercourse”, and hence the prosecution failed to prove that the appellant committed the offence set out in the particulars of offence.

Ground of appeal (3)

16.   Mr. Wong points out that there were inherent improbabilities in the female victim’s evidence on how she was “indecently assaulted” by the appellant. In light of this, and in the absence of any corroboration, the Magistrate should (Mr. Wong submits) not have accepted her evidence — particularly when the appellant had denied under caution that he had “indecently assaulted” her.

Ground of appeal (4)

17.   Mr. Wong refers to the female victim’s express evidence that she thought that the appellant was at that time trying to save the woman. And when the female victim let go and enabled the woman to escape, the appellant “completely let go”. It could (Mr. Wong submits) therefore be seen that the appellant had no intention to indecently assault the female victim and had only committed common assault.

The Magistrate’s findings

18.   Having considering the authorities, including those referred to hereinabove, the Magistrate said:

80.   In its submissions, the defence referred to a number of decided cases, and it has correctly pointed out the elements of this common law offence. Put simply, in the present case the prosecution has to prove that: (1) the appellant and another woman did the act outraging public decency as described in the charge, namely sexual act; and (2) the place in question, namely the rear staircase of the cinema, was capable of being seen by more than one person, and there was a real possibility that members of the general public would see the place.

19.   The Magistrate made the following findings:

82.   … in my view, the rear staircase of the cinema was a public place. This is because PW1’s evidence shows that the rear staircase was situated at the lobby of the cinema and was a fire escape. At the time of the offence, although at the end of a movie show the staff members asked the customers not to use the rear staircase, at all other times the staircase was not attended by any staff member, nor was there any express instruction or notice warning customers not to use the staircase. According to PW1, staff members and cleaning workers would patrol and inspect the staircase from time to time. Therefore, the rear staircase was distinct from the private sections of the cinema, such as the office or projection room, to which customers had no access. Furthermore, at common law a “public place” is defined as a place to which the public can and do have access, no matter whether they go to that place at the invitation of the occupier or whether payment of money is required to gain access to that place (see R. v. Kane [1965] 1 All ER 705 at 709A-B). For these reasons, I hold that the rear staircase was a public place, and that PW1 and PW2 were members of one of the “sections” of the general public who had access to the rear staircase. The only difference between them and those who were required to buy movie tickets was that they belonged to different sections of the public. Even if I am wrong in my conclusion on the identity of PW1 and PW2, I consider that there was a real possibility that the rear staircase might be used by ordinary customers of the cinema, because no express instructions or restrictions were imposed on customers except after movie shows ended, and because that place was also a fire escape.

83.   As for the other element of the offence, in light of my foregoing analysis of the evidence, I attach no weight to the appellant’s statement under caution that there was no sexual act. I accept PW1’s evidence. From her observation of the appellant and the other woman and their body movements, and from the fact that P1 dropped out of the leg of the appellant’s trousers when he was stopped, the irresistible inference can be drawn that they were in the course of having sexual act. What they were doing was definitely an act which outraged public decency.

Discussion

20.   A magistracy appeal is an appeal by way of rehearing, that is to say, a rehearing on the evidence before the magistrate, supplemented by any fresh evidence which the appellate court may admit (see Chou Shih Bin v. HKSAR, FACC 11/2004). In my view, as far as the facts are concerned, the appellate court should appreciate that the magistrate enjoyed the advantage of having seen and heard the witnesses in court, whereas the appellate court can only rely on the transcript. Whether a witness is credible or reliable is a matter entirely for the magistrate to decide. However, if the findings of fact made by the magistrate are unreasonable or illogical or contain inherent improbabilities; or if in dealing with the evidence the magistrate erred in his reference to material facts, or omitted or failed to consider material facts, then the conviction will be rendered unsafe.

Elements of the offence

21.   In the case of Hamilton, the English Court of Appeal considered the relevant cases since the 17^th century. Thomas LJ pointed out (at page 118) that:

22.   In our judgment these cases established that, if the offence of outraging public decency were to be proved, it was necessary to prove two elements. (i) The act was of such a lewd character as to outrage public decency; this element constituted the nature of the act which had to be proved before the offence could be established; (ii) it took place in a public place and must have been capable of being seen by two or more persons who were actually present, even if they had not actually seen it.

22.   Thomas LJ explained (at page 123) the meaning of “public decency”, as follows:

31.   As to the second element — the public element — its precise ambit was the principal issue discussed in most of the cases. (i) We accept that the public element first requires that the act be done in a place to which the public has access or in a place, as set out in R v Walker (Steven) [1996] 1 Cr App R111 where what is done is capable of public view. The filming by the defendant was done in a supermarket — a place to which the public had access — and in a place where what was done was capable of being seen. On either basis this part of the public element was satisfied. (ii) The public element is not, however, satisfied unless the act is capable of being seen by two or more persons who are actually present, even if they do not actually see it (what iss conveniently described by Rook & Ward on Sexual Offences as the two-person rule) …

…

39.   In our view it is necessary to have regard to the purpose of the two-person rule; it goes solely to the necessity that there be a public element in the sense of more than one being present and capable of being affected by it. There is in our view no reason to confine the requirement more restrictively and require actual sight or sound of the nature of the act. The public element in the offence is satisfied if the act is done where persons are present and the nature of what is being done is capable of being seen; the principle is that the public are to be protected from lewd, obscene or disgusting acts which are of a nature that outrages public decency and which are capable of being seen in public. … Looking therefore at the purpose of the two-person rule, it can, in our view, be satisfied if there are two or more persons present who are capable of seeing the nature of the act, even if they did not actually see it …

23.   It is therefore clear that, in respect of this offence, the prosecution must prove that:

(1)   The act was of such a lewd character as to outrage public decency; and

(2)   The act was done in a place to which the public had access or in a place where what was done was capable of public view, and must have been capable of being seen by two or more persons who were present, even if they had not actually seen it.

24. Was the appellant’s act at the material time of such a lewd character as to outrage public decency? The Magistrate’s account of what the female victim witnessed is as follows:

9. She said that when she first saw the man and the woman, she was about 1.2 m from them, and that the light from the fluorescent tubes on the walls provided sufficient illumination. In her description, at that time the man was sitting on the first step of the staircase on the bottommost floor, and his legs were spread out and resting on the second step. His hands were pressing against the floor. She also saw that the man’s pair of trousers was moved down to his knees and he was not wearing underpants, but his upper body was dressed. The woman was sitting on the man’s thighs and facing him, with her legs spread out. The woman’s pair of trousers was also moved down to her knees. She said that the man and the woman were both shaking. The man was making up and down movements, and the woman was groaning and seemed to be enjoying something. PW1 testified that she saw them having sexual act.

25.   Mr. Wong argues that the female victim did not see with her own eyes that the appellant was having “sexual intercourse” with the woman, and hence the prosecution failed to prove that the appellant committed an act which outraged public decency.

26.   First of all, “sexual act” (“性行為”) is in my view not equivalent to “sexual intercourse” (“性交”). Sexual intercourse is a sexual act, but a sexual act is not necessarily sexual intercourse. Sexual acts encompass activities connected with sex. “Unlawful sexual act” is defined in section 117 (headed “Interpretation”) of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong, as follows:

(1A) For the purposes of this Part a person does an unlawful sexual act if, and only if, that person –

(a)    has unlawful sexual intercourse;

(b)    commits buggery or an act of gross indecency with a person of the opposite sex with whom that person may not have lawful sexual intercourse; or

(c)    commits buggery or an act of gross indecency with a person of the same sex.

27.   The act involved in the present case is a “sexual act”, not an “unlawful sexual act”. If the word “unlawful” is removed, it is clear that the legal definition of “sexual act” includes “sexual intercourse”, “buggery” and “act of gross indecency”. What the appellant did with the woman is obviously an act of gross indecency!

28.   This notwithstanding, I notice in the present case that the English version for “性行為” in the particulars of offence is “sexual intercourse” and that the summary of facts prepared by the prosecution alleges that the appellant had “sexual intercourse” with a woman. In his closing submissions, Mr. Wong, Counsel for the appellant also submitted that “性行為” was equivalent to “sexual intercourse”. This being the case, in order to be fair to the appellant, in the present case I will take “性行為” to be the same as “sexual intercourse”. I hope that from now on the prosecution will use the accurate translation for “性行為”, namely “sexual act”.

29.   In my judgment, on the basis of the female victim’s description of what happened and from the fact that the police officers saw a used condom fall out of the leg of the appellant’s trousers, the irresistible and reasonable inference can be drawn that the appellant had sexual intercourse with the woman. I fail to see why he had to use a condom if they were merely simulating intercourse!

30.   The prosecution had clearly proved this element.

31.   Was the place where the appellant committed the act of such a lewd nature as to outrage public decency a place to which the public had access or a place where what was done was capable of public view? And was the act seen or capable of being seen by two or more persons who were present?

32.   The female victim described the rear staircase as being located at the lobby of the cinema. The staircase used to be a passageway by which customers left the cinema after a movie show ended. However, as customers had to “turn 8 circles” or so before they could reach the Ground Floor, the cinema did not recommend customers to use the staircase. By the time of the offence, therefore, the staircase was no longer used as a departure route at the end of movie shows. In its stead, at the end of a movie show, the staff members of the cinema would direct customers to leave through the main door. However, the rear staircase was not sealed off, and the female victim could not recall any sign or notice being present which expressly prohibited people from using the staircase. Staff members and cleaning workers would patrol and inspect the rear staircase from time to time, and that staircase was one of the fire escapes.

33.   A cinema is obviously a public place. Section 3 of the Interpretation and General Clauses Ordinance, Cap. 1 of the Laws of Hong Kong, defines “public place” as follows:

‘public place’ (公眾地方、公眾場所) means –

(a)    any public street or pier, or any public garden; and

(b)    any theatre, place of public entertainment of any kind, or other place of general resort, admission to which is obtained by payment or to which the public have or are permitted to have access;

The rear staircase in question was a place in the cinema to which the public had access except when customers were leaving the cinema following the end of a movie show.

34.   The female victim and her male colleague were “members of the public” although they were staff members of the cinema. At the material time they were present in a public place, which was distinguishable from the private sitting room in Walker, and hence they cannot be mentioned in the same breath with the two girls who were in the private sitting room. In R. v. Cyril Mayling (1963) Cr. App. R. 102, the defendant and another man were in a public lavatory, each masturbating right in front of the other. What they did was seen by two police officers on duty. It was not in dispute that the police officers were “members of the public”.

35.   The question is whether the appellant’s act at the material time was seen or capable of being seen by two or more persons who were present.

36.   The evidence showed that when the male staff member arrived, he merely saw that the appellant was zipping up his trousers. He did not witness what the appellant did before that.  It follows that, although the male staff member arrived later, he was not someone who was present and saw or was capable of seeing the appellant’s act when the appellant was doing it. The evidence did not show that the male staff member was capable of seeing the act in question and, rather, showed that he in fact did not see the act. Therefore, the prosecution could only prove that the female victim alone was present and saw the act. The “public decency” element was not established.

37.   For the above reasons, the conviction on Charge (1) is unsafe and the appeal is allowed.

38.   Turning to the offence of indecent assault, I have read the transcript, including the closing submissions made by Mr. Wong at trial and the testimony of the witnesses. In his closing submissions, Mr. Wong set out in detail the aspects of the female victim’s evidence which the defence attacked. The Magistrate gave judgment only after considering those submissions (paragraphs 61 to 65 of the Statement of Findings). I do not agree with the appellant’s contention that there were inherent improbabilities in the female victim’s evidence. It is true that her evidence was not supported by any independent evidence, but the law has abrogated the requirement of corroboration in respect of sexual offences. The Magistrate was not bound to direct himself on corroboration, and Mr. Wong in his closing submissions did not request the Magistrate to consider it. In the present case, it was not improper for the Magistrate to convict the appellant on the sole basis of the female victim’s evidence.

39.   On the evidence, the appellant suddenly attacked the female victim’s breast. She was scared; on the one hand she did not know what to do, on the other hand she tried her best to get hold of the woman to stop her from running away. Finally, because the appellant indecently assaulted her, she let go and the woman escaped. I see no reason for interfering with the Magistrate’s findings of fact.

40.   Did the prosecution prove that the appellant had the intention to indecently assault the female victim?

41.   The Magistrate made the following findings:

86.   Having accepted PW1’s evidence, I make the following findings of fact. The appellant did squeeze PW1’s left breast with force for 3 to 4 times. He also squeezed her buttock once. This proved his intention to assault, and right-minded persons would generally consider that the assault on these intimate parts of PW1’s body, namely her breast and buttock, was indecent. Next, I have to consider whether the appellant only intended to save the woman and hence did not have any indecent intention. In my view, if the appellant indeed only intended to save the woman, he merely had to push away PW1 or pull her hands away from the woman. He definitely would not, nor would he need to, assault PW1’s breast 3 to 4 times and then go on to squeeze her buttock. It follows that the only irresistible inference is that the appellant definitely harboured an indecent intention.

42.   The female victim did say she thought that the appellant wanted to save the woman. Did the appellant assault the female victim solely because he wanted to save the woman? Only he himself would know the answer. My view is that “assault with intent to save another person” and “assault with indecent intent” can co-exist and are not necessarily alternatives.

43.   The analysis made by the Magistrate was logical and reasonable. I fully endorse his findings.

44.   In my judgment, there is nothing which shows that the conviction on Charge (2) is unsafe. The appeal is dismissed.

Conclusions

45.   Charge (1): The appeal is allowed and the conviction is quashed.

46.   Charge (2): The appeal is dismissed and the conviction is affirmed.