HKSAR v. WONG SIU KIT

HCMA809/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.809 OF 2000

(ON APPEAL FROM TMCC 1200 OF 2000)

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J U D G M E N T

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1. The appellant was charged with four offences of loitering causing concern. The four charges were similar in that they all alleged that on four different occasions, the appellant, at a female public toilet in Tuen Mun had loitered in the said place causing a lady, or ladies, to be concerned for their safety or well-being.

2. The allegation is quite simply that on these four different occasions, the appellant had gone into the public toilet and had peeped into cubicles in the public toilet via the space between the cubicle door and the floor of the toilet. He was tried in Tuen Mun Magistracy by Ms Athena Kung, and was convicted of one charge. That charge was concerned with the events of 5 January 2000. On that day, he had gone into a public toilet in Tuen Mun where he was found by two ladies squatting on the floor of the toilet and peeping into one of the cubicles. The evidence does not show whether or not there was any person or persons inside the cubicles, but one can safely assume that there must have been a lady or ladies inside the cubicles at the material time. The appellant, on seeing the two ladies, got up from the floor and just walked out of the toilet as if nothing had happened. The two ladies raised a hue and cry. Fortunately, there was a party of police officers on patrol in the vicinity, and in answer to the hue and cry, they arrested the appellant.

3. The appellant was convicted on 3 July 2000. He was remanded in custody for 14 days for a probation officer's report and also a psychiatric and psychologist report. When he was interviewed by the probation officer, he maintained his innocence, which was the reason why the probation officer did not recommend probation.

4. When the court resumed on 17 July 2000, the magistrate again remanded the defendant for another 14 days in custody for a further probation officer's report. She stated on that occasion that if she did not see any recommendation from the probation officer, then she would certainly sentence him to prison.

5. When the appellant was interviewed by the second probation officer, he again maintained his innocence and, again, that was the reason why the probation officer did not recommend probation. The magistrate, at the resumed hearing on 31 July 2000, sentenced him to three months' imprisonment.

6. On 3 July 2000, after she first convicted him, she had said in passing that she believed that he had committed all four offences, but in three of those charges she was giving the appellant the benefit of the doubt.

7. Miss Ho, for the respondent, has informed me that despite an extensive research she was only able to find one precedent case in terms of sentence, i.e. the case of R v. Huang Liu Kao & Chiu Wah, HCMA248 of 1987, where Garcia J, in dealing with a case of loitering under section 160(1) of the Crimes Ordinance, ruled that the sentence in that case of four months' imprisonment was excessive. The respondent in that appeal had submitted to the court that the usual sentence imposed on first offenders for this type of offence was either a fine or imprisonment for one or two months. Under the present legislation, an offence under section 160(1) carries a maximum of a fine of $10,000 and imprisonment for six months. However, for an offence under section 160(3), which is the offence that the appellant was convicted of, the maximum penalty is imprisonment for two years. In my judgment, therefore, the sentence imposed by the magistrate of three months' imprisonment was entirely appropriate.

8. Every case will have to be looked at from the point of view of what the facts are in that particular case in order that the appropriate sentence can be properly assessed. What the appellant in this case did was serious, even though no weapons of any kind or any violence of any kind was used, and no persons were caused any injury; his act of peeping into cubicles must have caused a degree of alarm to the ladies who were present in the toilet at the time. I have also had regard to the fact that the appellant is a married man with three young children, and he is the sole support for the whole family. If he were to be further detained, it will cause unnecessary hardship to his family through no fault of theirs. He has been in custody for 28 days. He was granted bail immediately after the sentence was imposed, and since that day, I am informed he has been working as a driver in a construction site earning about $10,000 a month.

9. In the circumstances of this case, I am prepared to give him another chance by suspending the three months' imprisonment imposed by the magistrate. The period of suspension will be for three years which means that if during the next three years he commits another offence, then he will have to serve the three months imposed on him by the magistrate. This long period of suspension will, I hope, serve as a deterrent to the appellant from engaging in similar conduct in the future. The appeal is allowed to that extent.