HKSAR v. CHING LONG TIN

HCMA858/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.858 OF 2002

(ON APPEAL FROM ESCC 1650 OF 2002)

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J U D G M E N T

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1. This is an appeal against conviction only.

2. The appellant was convicted after trial of an offence of loitering so as to cause reasonable concern contrary to section 160(3) of the Crimes Ordinance, Cap.200.

3. The facts of the case as found by the magistrate were that the appellant, a 23-year-old male security guard, had entered a female toilet on the 8/F of a commercial building where he worked for no good reason and while there had entered one of the cubicles, stood on the toilet bowl and looked, or attempted to look, over the partition into the next cubicle occupied by the victim particularised in the charge so as to cause her concern for her safety or well-being.

4. Subsequently, a report was made to the building's security staff and the appellant was eventually intercepted by a security guard and a number of the victim's workmates as he left the toilet.

5. It was not in dispute that on the charged date, the appellant had in fact entered the female toilet in question. The appellant's case was that he had done so by mistake and after using the facilities had left and was then apprehended.

6. The grounds of appeal advanced by the appellant may, without doing them too much of a disservice, be summarised as follows :

(1) That the victim's (PW1) evidence by itself was too unreliable to establish that she had seen anyone, including the appellant, looking into her cubicle in the toilet, and that the magistrate was wrong to rely on her evidence in this regard.

(2) That the magistrate was wrong to have found that if any person had been present in the toilet at the same time as PW1, that person was the appellant.

(3) That there was insufficient evidence to conclude that the appellant had entered the toilet with an intent to cause reasonable concern, or if that he had formed an intention at some stage whilst in the toilet to look into other cubicles that such an activity could amount in law to the charged offence of loitering.

(4) That the magistrate failed to attach proper weight to the appellant's cautioned statement so far as its exculpatory parts were concerned.

7. I will deal with the grounds of appeal in turn.

8. As to the first ground of appeal, the issue before the magistrate was essentially that of the credibility of PW1. Her evidence, so far as this particular complaint of the appellant is concerned, was that she looked up and saw a person's forehead facing her above the partition separating her cubicle from the No.2 cubicle in the toilet. She then, partly through a small gap between the cubicle partition and the floor, saw the outline or shadow of a person quickly going down to a lower position inside that cubicle. She was subjected to considerable cross-examination before the magistrate. There were no apparent inconsistencies revealed in her evidence by this cross-examination and she remained effectively unshaken in her evidence.

9. As the magistrate said in her Statement of Findings :

"I found PW1 to be a truthful and honest witness. I am satisfied that when she was seated on the toilet in the Ladies Toilet, she heard a noise, looked up, and saw a forehead and hair at the top of the wall dividing the 1st and 2nd toilet cubicles. I am satisfied that she then saw a silhouette sliding down. I totally reject the suggestion that she could have been mistaken about what she saw. PW4 [a police officer] gave evidence, inter alia, as to the height of the wall dividing the 1st and 2nd toilet. It is of such a height that in order for a person to see over the top, he would have to climb on the toilet bowl, unless the person was of a totally exceptional height. I was thus satisfied beyond reasonable doubt that there was a person in the second cubicle who intentionally stood on the toilet bowl in order to look over into the 1st cubicle, which was then being occupied by PW1. ..."

The magistrate concluded PW1 was a reliable witness. She was entitled to do so. A magistrate, as the trier of fact, is in the best position to assess the credibility of a witness. The appellant's complaint that she saw a person's forehead and hair above the partition when she looked up after hearing a noise went no further than that. It was not a question of identification evidence requiring any specific self-warning by the magistrate. The magistrate's assessment of PW1 as a reliable witness was one open to her.

10. Further, the magistrate was entitled to conclude that if PW1 had seen a person's forehead above the partition, that that person, given the height of the partition as established by the evidence of PW4, had been looking over or was attempting to look over the partition into PW1's cubicle. The magistrate concluded this was so on the basis that, although PW1 saw only the forehead of that person before they lowered themselves down, that to have reached that height the person in the other cubicle must have stood on the toilet bowl. Intrinsic in the magistrate's reasoning was for PW1 to have seen the person's forehead, that person must have been facing in the direction required to look over the partition. In that regard and having reached that stage, she was entitled to infer that the person had been in that position in order to look over the partition. In all the circumstances of this case and given the other facts found by the magistrate, she was entitled to conclude that she was sure this was so. From the photographs of the toilet produced as exhibits it is difficult to imagine any other reason for a person to do so.

11. In short, these are all questions of fact. There is nothing to suggest that the magistrate misdirected herself in arriving at her findings of fact. She was aware, and repeated in her Statements of Findings on a number of occasions, that in determining the facts of the case the burden was on the prosecution to prove its case beyond reasonable doubt. She was also aware that in drawing an inference against the appellant, it had to be the only reasonable inference available. Accordingly, there is nothing in this first ground of appeal.

12. The next ground of appeal is really the most important. Mr Jenkyn-Jones, counsel for the appellant before me, argues that the evidence before the magistrate was insufficient to allow her to infer that the appellant was the person who was the occupant of the cubicle next to PW1 and who accordingly had been seen by her in the process of looking over the partition.

13. The only evidence that the appellant was that person was indeed circumstantial. But it was overwhelming once PW1 and PW2 (the security guard to whom the matter had been reported) were accepted as reliable witnesses. That is because of the chronology of events they established in their evidence. That chronology was as follows : PW1 had gone into the female toilet and entered the first cubicle. Only the second cubicle was otherwise in use. She had seen the person's forehead above the partition between her cubicle and the second cubicle. She had become frightened and left the toilet. She went outside into the corridor and met a colleague around the corner 10 to 20 feet away. They briefly spoke about the matter at that place which was the lift lobby area and then returned to the toilet. The door of the second cubicle was still locked. PW1 and her colleague then left the toilet and reported the matter to a female security staff in the vicinity of the corridor outside the toilet. That was PW2 who then maintained a guard on the toilet. PW2 was shortly afterwards joined by a number of male staff members from PW1's office who went to the vicinity of the toilet in the corridor after PW1 had returned to her work place and told them what had happened. Subsequently, the appellant emerged from the toilet and was apprehended.

14. It is clear from this evidence that if accepted, as it was, by the magistrate there was an extremely narrow window of opportunity for the appellant to have entered the toilet after PW1 left, by mistake. That opportunity was effectively restricted to the point of time when PW1 and her colleague, Madam Leung, met in the lift lobby about 15 to 20 feet from the toilet entrance, before, after a very short period of time, returning to the toilet to find the second cubicle door still locked. It should also be noted in this regard that even from the point where PW1 and Madam Leung had met for a short while in the lift lobby, they would still have a view of anyone proceeding from another floor to the 8/F toilet for the simple reason they had a view of both the lifts and the staircase area leading on to the 8/F.

15. The appellant said in his cautioned statement that he had mistaken the toilets in the first place because he had come up in a lift and when leaving had mistakenly turned into the corridor leading to the female toilet. If that was so he would have walked right pass Madam Leung and PW1 and had gone into the toilet immediately ahead of them. There was no other real opportunity for the appellant to mistakenly enter the toilet because after PW1 and Madam Leung then left it, they immediately reported the matter to the female security staff in the vicinity of the corridor and she then guarded the toilet entrance. It is true that another female apparently managed to enter the toilet and use it at one stage. But there was no examination in the evidence as to where she had come from or when she had gone in. Her presence in that toilet could not in any sensible way be used as an analogy to the appellant himself being able to enter it undetected while PW1 and Madam Leung were outside it nearby the lift lobby.

16. The magistrate addressed these facts in her Statement of Findings where she said :

"... Upon first leaving the toilet, there was a very short period of time when she [PW1] lost sight of the toilet door before meeting a staff member [Madam Leung] and returning to the toilet. Upon return, she noted that the 2nd toilet was still occupied. She again left the toilet and immediately reported matter to a male colleague and a management staff [PW2]. They again returned to the toilet. PW1 left soon after, leaving people at the entrance guarding the door. PW2 gave evidence of guarding the toilet door. ..."

and later the magistrate said :

"... Having considered all the evidence the only inference that can be drawn is that the Appellant was the person occupying the 2nd cubicle when PW1 entered the 1st cubicle and made use of it."

The inference drawn by the magistrate was properly open to her to draw on the evidence before her.

17. I might add that for the appellant's case to have received any credit, it required the appellant to have mistakenly entered a female toilet marked with the usual figurine on the door and the letter "F". There is nothing in this ground of appeal.

18. The third complaint of the appellant was that there was insufficient evidence for the magistrate to conclude the appellant had entered the toilet with an intent to cause reasonable concern to any other persons there. In this regard, the magistrate said :

"I therefore was satisfied that the Appellant went into the ladies toilet intentionally with the intention of looking into other cubicles whilst they were in use. I was satisfied that his presence there, caused PW1 to be reasonably concerned for her safety or well-being. I therefore found the charge proved beyond all reasonable doubt and so that I was sure, and I convicted him accordingly."

19. The magistrate had arrived at this conclusion following her findings that the appellant had been the person in cubicle 2 of the toilet whose forehead PW1 had seen above the partition. It is difficult to see how, once the magistrate had properly found the appellant to have been that person she could have concluded otherwise. The appellant even from PW1's evidence, as well as his own cautioned statement, had been in the toilet for some time, and on all the evidence, it was open to the magistrate to find that the appellant had been "tarrying, standing about or lingering" in the terms of Attorney General v. Sham Chuen [1986] HKLR 365 and was aware that his activities could reasonably cause concern to others.

20. It was equally open to the magistrate to find, on the basis of her findings as to how the appellant had behaved in the toilet, that he had entered the female toilet with the intention of looking into other cubicles. It may be that the learned magistrate had accepted, in her Statement of Findings, that it was generally possible for people to innocently and by mistake enter the wrong toilet. In that regard, she said in her Statement of Findings :

"... It is not impossible for a person to enter the wrong toilet by mistake, even one who knows a building well, although that is less likely. However having entered the toilet, and being concerned about being in the wrong toilet, there is no reason at all to look over the dividing wall of one cubicle into the adjacent cubicle to see who is in there and using it.

I therefore was satisfied that the Appellant went into the ladies toilet intentionally with the intention of looking into other cubicles. ..."

21. That general statement by the magistrate that people can enter the wrong toilet by mistake does not amount to an inconsistent finding as alleged by Mr Jenkyn-Jones. That it is a general statement is apparent from its context. That it was made simply to distinguish the circumstances of the present case is even more obvious.

22. The magistrate found that the appellant had entered the female toilet not by mistake but to act as a "peeping Tom". There was ample evidence before her allowing this conclusion. Once she had concluded that the appellant had been the person seen appearing over the partition by PW1, then that conclusion, in my judgment, was plainly open to the magistrate. It is difficult to see how such an act could in any way be consistent with a person who had innocently entered the toilet. Mr Jenkyn-Jones before me suggests it may have been because the appellant wished to see if he was in fact in the wrong toilet. With respect, if that was the appellant's concern, he could simply have gone out and looked at the sign on the door. The magistrate's findings in this regard cannot be criticized.

23. The final complaint of the appellant is that the magistrate failed to attach proper weight to the exculpatory parts of the appellant's cautioned statement (Exh.P4). That was all there was of the defence case before the magistrate. The appellant had not given evidence.

24. In this regard, the magistrate bore in mind that Exh.P4 was made one week after these events and that it was, apart from the admission as to the appellant having gone into and being found coming out of the toilet, wholly exculpatory. In this regard, the magistrate said :

"... The Appellant did give a Record of Interview, Exh.P4 but it was of note that it was only given one week after the incident.

...

... Little reliance can be placed upon Exh.P4 bearing in mind the circumstances in which it was given and the fact that it was not tested in court. ..."

She was entitled not to attach significant weight to the exculpatory parts of Exh.P4 : HKSAR v. Poon Hoi Wing, CACC313/2000, at page 8.

25. Finally, it should be said that the fundamental complaints of the appellant in this appeal centred around assertions that there was insufficient evidence for the magistrate to arrive at the conclusions of fact that she did. Where, as in the present case, an appellant has not given evidence in support of his own case, particularly where he is the only potential witness who could realistically do so, it makes any later assertion on appeal that the magistrate's drawings of inferences against him were wrong and not supported by the evidence much more difficult to sustain than otherwise. That is because the only substantial evidence before the court is that of the prosecution witnesses. That is not to say the burden of proof is changed. It remains as always. No explanation is ever required of a defendant at trial. On some exceptional occasions it may be that the prosecution evidence is given greater effect by the failure of a defendant to give evidence : HKSAR v. Li Defan & Anor [2002] 1 HKLRD 527. But even in the more usual case such as the present, if a defendant elects not to give evidence, then the prosecution evidence may well remain before the magistrate uncontradicted and unexplained. In such circumstances, there is less to undermine the reliability of the prosecution evidence before the court and no qualification of it, and therefore a greater risk faced by the defendant that the magistrate may accept the prosecution evidence and found inferences upon it.

26. That was the position in the present case as it has been in many others. There is no merit in the appellant's complaints about the magistrate's findings of fact and the appeal against conviction is dismissed.