HKSAR v. HO SIU HEI JASON

HCMA 639/2017

[2018] HKCFI 974

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 639 OF 2017

(ON APPEAL FROM KCCC 1657 OF 2017)

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J U D G M E N T

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Background

1.  The Appellant appeared before Ms Wong Sze-lai, Lily, Magistrate (“the Magistrate”) facing one charge of “obtaining access to computer with a view to dishonest gain for oneself or another”, contrary to section 161(1)(c) of the Crimes Ordinance, Cap 200.

2.  The charge, in its amended form, pleaded:

“Ho Siu-hei Jason, you are charged that on the 13^th day of January, 2017 inside a toilet on 10/F, Knutsford Commercial Building, 4-5 Knutsford Terrance, Tsim Sha Tsui, Kowloon, in Hong Kong, you obtained access to a computer with a view to dishonestly gain for yourself or another, namely by using a mobile phone to take photos of female using toilet.”

3.  The Appellant pleaded not guilty to the charge and was convicted after trial.  The Magistrate sentenced the Appellant to 10 weeks’ imprisonment.  On 20 November 2017, ie, the date the Appellant was sentenced, he filed his notices of appeal against conviction and sentence.

4.  Mr Richmond, who also represented the Appellant in the court below, informs me that the Appellant would abandon his appeal against sentence.  He now appeals only against his conviction.

5.  I dismiss the Appellant’s appeal against conviction on his abandonment.

The Prosecution Case

6.  The complainant Miss X (“PW1”) was a colleague of the Appellant at a computer programming company located on the 10/F of a commercial building at Knutsford Terrance in Tsim Sha Tsui.  There were two toilets on the 10/F, one male and one female toilet.  The two toilets were situated behind the fire exit doors next to the stairway.  In the lavatory cubicle of the male toilet, there was a window, which was adjacent to the window of the female toilet, the incident took place inside the female toilet on the 10/F.

7.  At about 4pm on 13 January 2017, PW1 went to the female toilet.  The window of the female toilet was open at the time.  She stayed in the toilet for about three to four minutes.  When PW1 was about to get up to hike up her pair of trousers, she looked up at the window on her left side and saw a black mobile phone of about 2-inch wide and 4-inch long with a red line on it being held horizontally by a hand stretched through the window from the outside.  PW1 screamed and the mobile phone was withdrawn to the left side.

8.  PW1 quickly hiked up her trousers and rushed out of the toilet, when she saw a black shadow rushing out from the door of the male toilet.  PW1 chased after the person without losing sight of him.  The person went along the staircase of the 10/F down to the 9/F, but then slipped and landed on the floor of the staircase on the 9/F.  At that juncture, the person turned his face to PW1, and she recognised that it was the Appellant.  PW1 asked the Appellant what he was doing, who replied by asking PW1 “what are you doing”.  The Appellant then got up and left.

9.  PW1 returned to the office and sought assistance from her colleagues (including PW2, PW3 and PW4).  She told her colleagues that she was secretly filmed by the Appellant.  PW2, PW3 and PW4 then accompanied PW1 to return to the female toilet to pick up her personal belongings left inside the toilet.  The Appellant walked up to PW1 and said “the photos have been deleted, shall we treat as if nothing had happened”.  All PW2, PW3 and PW4 heard the Appellant’s words (or words to that effect) at the time.  PW3 felt that the Appellant was urging a reply from PW1, who was frightened, he thus blocked the Appellant from PW1 and asked the Appellant to return to the office.

10.  PW1 discussed the matter with her boss and her mother.  After discussions, her mother accompanied her to make a report to the police.

The Defence Case

11.  The Appellant exercised his right and elected not to testified, nor did he call any witness.

12.  The defence case that the Appellant’s counsel put to the prosecution witnesses in cross-examination was that:

(1)   The black shadow seen by PW1 was not the Appellant.

(2)   PW1 did not chase the black shadow.

(3)   The Appellant went down to the 9/F stairwell and when he was there, he heard PW1 said “what are you doing?”, and he turned his face and asked PW1 “what are you doing?”.  It was only then PW1 recognised the Appellant.

(4)   The Appellant subsequently returned to the office and saw PW1 and other colleagues, but he did not say words to the effect that “the photos have been deleted, shall we treat it as if nothing had happened”.

(5)   The Appellant was the boss of PW1 to PW4, whose work had been criticised by the Appellant and who had thus made up or exaggerated the complaint against the Appellant.

The Magistrate’s Reasons

13.  The Magistrate considered all the evidence.  She found all the prosecution witnesses credible and reliable.  She gave full weight to the evidence of PW1 and found that the Appellant was the black shadow that PW1 saw come out from the male lavatory.

14.  The Magistrate accepted the evidence of PW5, the investigation officer, who went into the cubicle of the male lavatory and stretched out his arms to take a photograph of the window of the female lavatory.  From the evidence of PW1 and PW5, the Magistrate found that it was possible for a person to stretch out his arms from the window of the male lavatory to reach the window of the female toilet.

15.  The Magistrate accepted as true and reliable the evidence of PW1 as to the words spoken by the Appellant to the effect that he had already deleted the photographs.  The Magistrate found that those words amounted to an admission that the Appellant had filmed PW1 while she was using the lavatory.  Having considered all the evidence, the Magistrate found that it was the Appellant who used a mobile phone to take photographs of PW1 at the material time.

16.  The Magistrate then considered whether the mobile phone in question was a “computer”.  She considered the judgment of Fung J in Secretary for Justice v Wong Ka Yip Ken [2013] 4 HKLRD 604 and came to the conclusion that the mobile phone that PW1 saw was a “computer” and that the Appellant did obtain access to it.  She found also that when the Appellant used the mobile phone to take photographs of PW1 while she was using the lavatory, he did so with a view to dishonest gain.  Accordingly, she convicted the Appellant as charged.

Grounds of Appeal

17.  Mr Richmond argues six grounds of appeal:

(1)   That the Magistrate erred in concluding that there was evidence to support as the only reasonable inference that a computer had been accessed.

(2)   That the Magistrate erred in concluding as the only reasonable inference that the Appellant held the mobile phone and used it to photograph PW1.  Although PW1 identified the “black shadow” which emerged from the door of the male toilet as the Appellant, the male toilet comprised both an outer area and an inner lavatory cubicle.  There was no evidence to demonstrate as the only reasonable inference that by exiting the toilet, the Appellant had ever been inside the lavatory circle.

(3)   That the Magistrate erred in finding “the fact that the Defendant said the photos had been deleted was proof that the mobile phone he used had photo-taking function and he had successfully taken and deleted the photos of PW1”.

(4)   The Magistrate erred in concluding that “as the Defendant did say the word described by PW1, and as the words spoken related to the ‘filming incident’, it follows that the device used was definitely a mobile phone with camera lens”.  Whereas the words spoken might be construed as relating to a filming incident, there is simply no evidence to conclude that the “device” used was definitely a mobile phone with camera lens.

(5)   The Magistrate erred in finding that because the Appellant had said words to the effect that “the photos had been deleted, should we treat as if nothing had happened?”, that it follows that the photographs to which the Appellant referred related to the photographs he took when PW1 was in the toilet.  Even if the statement by the Appellant had been accurately recalled, the statement contained no evidence at all of assertion that the Appellant took photographs of PW1 when she was using the toilet.

(6)   The Magistrate erred in finding that what the Appellant said to PW1 amounts to voluntary admissions that he was the one who filmed her while she was using the toilet.  By any interpretation, the words “the photos had been deleted” do not amount to an admission that the Appellant was the one who filmed PW1 at all.

18.  Mr Richmond submits that the mobile phone was never seized by the police.  In her evidence at trial, PW1 agreed that the mobile phone she saw at the material time was not the one used by the Appellant.  There was no evidence that the Appellant was in possession of a mobile phone.  There was no evidence to support further inferences that it was the Appellant who accessed the mobile phone in order to take photographs or that he subsequently deleted the photographs.

19.  Mr Richmond submits that the evidence at trial revealed that the male lavatory consists of two compartments and could be used by more than one person.  Only the person who entered the inner compartment of the male lavatory could have access to the windows.  He submits that the prosecution failed to show that the Appellant was the only person inside the male lavatory or that he entered the inner compartment.  There was no evidence adduced at trial to support the drawing of the inference that the Appellant was the only person inside the male lavatory, the Magistrate erred to conclude that it was the Appellant who used a mobile phone inside the male lavatory.

The Respondent’s Submissions

20.  Mr Lau, for the Respondent, submits that the proper approach to circumstantial evidence is that it should be assessed holistically, not as the contentions of the Appellant, which invite this Court to consider the relevant pieces of evidence in isolation.  It is well settled that when it comes to drawing inferences of fact which contribute to the drawing of the ultimate inference of guilt, a judge should adopt a holistic view of the evidence and consider its totality as a whole.

21.  Mr Lau submits that, in the present case, although there is no direct evidence as to the Appellant’s action inside the male lavatory, the cumulative weight of the evidence supports the only reasonable inference that the Appellant had used a mobile phone to take photographs of PW1 while she was using the toilet.  Mr Lau identifies the circumstantial evidence as follows:

(1)   When PW1 was about to get up to hike up her pair of trousers, she saw a mobile phone (with its camera lens facing her) being held by a hand stretched through the window of the female lavatory.

(2)   As PW1 screamed, the mobile phone was immediately withdrawn to the left side, that was, to the side of the male lavatory.

(3)   Only about two seconds later when PW1 rushed out of the female lavatory, she saw a “black shadow” rushing out from the male toilet.

(4)   PW1 did not lose sight of the “black shadow”, she then recognized the black shadow was the Appellant.

(5)   Afterwards, when PW1 was accompanied by her colleagues to the female lavatory, she was approached by the Appellant who told her that the photographs had been deleted and asked her to treat as if nothing had happened.  The words of the Appellant, when viewed in context, obviously referred to the photographs taken of PW1 while she was using the lavatory.  As rightly pointed out by the Magistrate, there was not any photograph which concerned both PW1 and the Appellant at the time.

(6)   Subsequent investigation by PW5 confirmed it was possible for a person to stretch his arm from the window of the male lavatory to reach the window of the female lavatory.

22.  Mr Lau submits that the cumulative effect of the aforesaid circumstantial evidence pointed to the conclusion that the Appellant had used a mobile phone to take photographs of PW1 while she was using the lavatory.  The circumstances left no room for any other sensible conclusion.  The Appellant elected not to testify, there is no evidence from the defence which may tend to weaken the said inference.

23.  Mr Lau submits that the totality of the evidence also supports an irresistible inference that the device used by the Appellant, ie, a mobile phone with camera lens as observed by PW1, was capable of photo-taking, storing and processing image files including the deletion of such files.  The Appellant told PW1 that he had deleted the photographs.  Mr Lau submits that the mobile phone therefore satisfied the meaning of “computer” for the purpose of the offence of “obtaining access to computer with a view to dishonest gain for himself”.

24.  Mr Lau submits that the Magistrate rightly held that in filming PW1 with a mobile phone while she was using the lavatory, the Appellant had acted “with a view to dishonest gain for himself”.  For the purpose of proving the offence under section 161(1)(c), it is not necessary to prove that the Appellant had actually obtained any “gain”, or had successfully taken any photograph of PW1. In any event, the Appellant’s statement to PW1 that he had deleted the photographs, when viewed in context, supports an irresistible inference that the Appellant had indeed taken photographs of PW1, though he had deleted the photographs.

25.  Mr Lau submits that the Magistrate had analysed meticulously each of the factual and legal issue that had been raised by the defence in the submissions of no case and the closing address before she came to the conclusion that the Appellant had committed the offence.  The Magistrate was entitled to find that, in all the circumstances of the case, the only reasonable inference was that the Appellant had obtained dishonest access to a computer with a view to dishonest gain for himself.  Mr Lau submits that the Magistrate did not commit any error in her reasoning, nor can her findings be said to be “plainly wrong” such as to warrant the appellate court’s intervention: HKSAR v Ip Chin Kei [2012] 4 HKLRD 383, at paragraph 65 (per McWalters J, as he then was).

26.  Mr Lau submits that none of the grounds of appeal raised is made out.

A Consideration of the Submissions

27.  Mr Richmond complains that as the mobile phone was never recovered by the police and given the evidence of PW1 that the mobile phone that she saw at the material time was not the one used by the Appellant, there was no evidence as to whether the Appellant was in possession of a mobile phone; not to mention evidence to support further inferences, such as, it was the Appellant who accessed a computer (a mobile phone ) in order to take photographs; or that he subsequently deleted the photographs.

28.  I agree with Mr Lau that the proper approach to circumstantial evidence is to assess it holistically, and not as the Appellant contends, that each piece of circumstantial evidence should be considered in isolation.

29.  In HKSAR v Lau Hon Keung (CACC 426/2011, unreported) the Court of Appeal said in paragraphs 38 - 39 of the judgment:

“38. When drawing inferences of fact which contribute to the drawing of the ultimate inference of guilt, a judge should adopt a holistic view of the evidence and consider its totality as a whole. In such a situation the judge is not necessarily required to determine whether each individual piece of primary fact on which the inference is based has been proven beyond reasonable doubt. Rather, the totality of the evidence should be considered in determining whether an inference of guilt can be drawn.

39. The correct approach is set out in HKSAR v Au Hau Ching CACC 146/2008, where Wright J in giving the judgment of the Court of Appeal said at pages 8A-9E:

‘16. We are satisfied that the course suggested by Mr. Macrae would have been proper for the judge to have followed. We do not suggest that there is no need for a judge to consider individual aspects of the evidence and how it may impact on the overall result but it is far from uncommon to find, when standing back and looking at the evidence in the round, that the sum is greater than the whole of its parts: this is particularly true where the prosecution presents circumstantial evidence from which the judge is required to draw an inference or inferences. The judge’s approach was, in our opinion, the only appropriate course.

17. Judges are urged too often on behalf of an accused person to consider the different facets of evidence in isolation one from the other: this is an unrealistic approach for it is the duty of the judge to determine whether the prosecution has discharged the onus on it, to the required standard, on the totality of the evidence before him.

18. We adopt what was said by McHugh J in the decision of the High Court of Australia in Shepherd v R [1990] 170 C.L.R. 573 at 592:

“If an inference of guilt is open on the evidence, the question for the jury is whether the inference has been proved beyond reasonable doubt – not whether any particular act has been proved beyond reasonable doubt.”

And, at 593:

“The cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance.

In a particular case, in inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to found the inference is established beyond reasonable doubt. This is likely to be the case where the incriminating facts relied on to establish the inference are few in number. But the more facts that are relied to found the inference of guilt, the less likely it is that each or any fact will have to be proved beyond reasonable doubt to establish guilt beyond reasonable doubt. Consequently, given when guilt beyond reasonable doubt cannot be inferred unless certain facts are proved, it may still be open to infer guilt beyond reasonable doubt even though each fact is not proved to that standard.” (Emphasis added)

30.  Relevant to the issue whether a computer had been assessed are the following facts found to be proved by the Magistrate:

(1)   PW1 saw a mobile phone being held through the lavatory window.

(2)   The mobile phone that PW1 saw was 2-inch wide and 4-inch long with its camera lens facing PW1.

(3)   When PW1 screamed, the mobile phone was withdrawn.

(4)   Only about two seconds later, PW1 rushed off the female toilet, she saw a black shadow rush out from the male toilet.  The black shadow went along the staircase of the 10/F as PW1 was chasing after him.  The Appellant’s company was located in the 10/F.

(5)   That person slipped and landed on the floor of the staircase to the 9/F, he turned his face to PW1 and was then recognised by PW1 as the Appellant.  She asked him what he was doing.  He replied by asking PW1 what she was doing.  The Appellant then got up and left.  Nothing was said about the filming of PW1 with the use of a mobile phone during that encounter.

(6)   PW1 then returned to the office and complained to her colleagues (including PW2, PW3 and PW4).

(7)   When PW1 returned to the female toilet with PW2, PW3 and PW4, the Appellant walked up to PW1 and said “the photos had been deleted, shall we treat as if nothing had happened”.

31.  On the issue whether the mobile phone that PW1 saw in the female toilet was a computer device, the Magistrate had considered the evidence and the submissions that there is no evidence at all as to the type, model or capability of the device seen by PW1 as the device was not found.

32.  The Magistrate found as true the evidence of PW1 that the device she saw was a mobile phone.  She also found as true the Appellant did say the words as said by PW1, and the words spoken related to the “filming incident”.  The Magistrate found that the device was definitely a mobile phone with camera lens.  What the Appellant said amounts to an admission that photographs had been taken and deleted.  The admission was proof that the mobile phone had photo-taking and deletion function.

33.  I agree with the Respondent’s submissions that the totality of the evidence supports an irresistible inference that the mobile phone with camera lens used by the Appellant was capable of photo-taking, storing and processing image files including the deletion of such files.  The mobile phone is a “computer” for the purpose of section 161 of the Crimes Ordinance.

34.  Mr Richmond, at trial, agreed in his written submissions, that it is generally accepted that a mobile phone is a computer.

35.  In Secretary for Justice v Wong Ka-yip [2013] 4 HKLRD 604, Fung J held that on a proper interpretation, the dictionary meaning of “computer” applied to section 161 of the Crimes Ordinance and included the smartphone of the Appellant in that case.  This interpretation was in line with the definition of “computer” as a device for electronic data storage, processing and retrieval adopted internationally, and was consistent with the statutory provisions and judgments in other jurisdiction.  Fung J held that this interpretation would not result in any absurdity or manifest injustice.

36.  Given the aforesaid circumstantial evidence, in particular given that (i) the device seen by PW1 was a mobile phone with camera lens; and (ii) further given the admission made by the Appellant that the photographs taken were deleted, the Magistrate was right to find that a computer, ie, a mobile phone, had been accessed.  With respect to Mr Richmond, there is nothing in the submissions that the fact that PW1 saw a mobile phone being held through the lavatory window did not prove that the mobile phone had been activated.  The Magistrate found as true the evidence of PW1 that the Appellant told her that the photographs had been deleted.  The only device that could be used to take photographs of PW1 while she was using the toilet was the mobile phone with camera lens that she saw.  Photographs could not be deleted unless photographs had been taken in the first place, and photographs could not be taken unless the device that was used to take phtotgraphs had been activated.

37.  Given the evidence of PW1 about how she chased the black shadow rushed out from the male lavatory in the preceding paragraphs, the Magistrate was perfectly entitled to find that the Appellant was the person who rushed out from the male lavatory only about two seconds after the mobile phone was withdrawn.

38.  The evidence of PW5 provided proof that it was possible for a person to stretch out his arms from the window of the male toilet to reach the window of the female toilet.

39.  I agree with the Magistrate’s findings that what the Appellant said to PW1 amounted to a voluntary admission that he was the one who filmed PW1 while she was using the toilet.  I agree with the Respondent’s submissions that the statement of the Appellant should be viewed in context, not in isolation.  The Appellant approached PW1 soon after the filming incident in the female lavatory and he took the initiative to approach PW1 and told her the photographs had been deleted.  I agree with the Magistrate’s analysis that: “There would not have been other photographs which concern both the defendant and PW1 at that time” (paragraph 43 of the Statement of Findings, page 28 of the Bundle of Appeal).  The Magistrate was right to find that the Appellant was referring to the photographs taken of PW1 with the mobile phone seen by PW1 while she was using the toilet.

40.  I agree with the Respondent’s submissions that the cumulative effect of the circumstantial evidence irresistibly pointed to the conclusion that the Appellant had used a mobile phone to take photographs of PW1 while she was using the toilet. 

41.  When PW1 returned to the female toilet with PW2, PW3 and PW4, the Appellant walked up to PW1 and said “the photos had been deleted, shall we treat as if nothing had happened”.  In my judgment, the words used by the Appellant show that: (i) he was aware of the filming incident inside the female toilet; (ii) he knew that photographs of PW1 had been taken while she was using the toilet; (iii) he knew that the photographs had been deleted; (iv) he wanted PW1 to treat as if nothing had happened.  I notice that there is no evidence that the Appellant was present when PW1 complained to PW2, PW3 and PW4 that she had been filmed by the Appellant when she was using the female toilet, yet he walked up to PW1 and said the words which clearly referred to the filming incident inside the female toilet.

42.  The words said by the Appellant, when considered together with the facts found by the Magistrate that he rushed out from the male toilet just about two seconds after the filming incident, chased by PW1 to the 9/F (the office of the Appellant was located on the 10/F, he had no reason to rush down to the 9/F ), the cumulative effect of the aforesaid evidence clearly supports the only and irresistible inference the Appellant had used a mobile phone to take photographs of PW1 when she was using the female toilet and the Appellant had deleted the photographs and he wanted PW1 to let go the matter.

43.  The Magistrate rightly found that in filming PW1 with a mobile phone while she was using the toilet, the Appellant had acted “with a view to dishonest gain for himself”.

44.  In my judgment, the Magistrate was entitled to find that, in all the circumstances of the case, the only irresistible inference was that the Appellant had obtained access to a computer (a mobile phone) with a view to dishonest gain for himself.

45.  The Magistrate did not commit any error in her reasoning, nor can her findings be said to be “plainly wrong” such as to warrant the Appellant court’s intervention.

46.  All grounds of appeal against conviction fail.

47.  I hold a rehearing.  I am satisfied that all the elements of the offence are proved against the Appellant.

48.  For the reasons given, I dismiss the Appellant’s appeal against conviction.