HKSAR v. KIM EUNG WHO

HCMA 104/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 104 OF 2015

(On appeal from KCCC No 287 of 2015)

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J U D G M E N T

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1.  On 27 January 2015, the appellant pleaded guilty to a single offence of committing an act outraging public decency for which he was sentenced to 2 weeks’ imprisonment. He appeals the sentence that was imposed on him.

2.  The appellant is a Korean who came to Hong Kong for work in 2013.  He is 42 years of age, married with two children, a son and daughter.  He lives together with his family in Hong Kong.  He is employed in a senior position in a bank.  He has some time ago been dealt with for minor offending but otherwise is a person of good character.

3.  In the afternoon of 14 November 2014 as he was taking the escalator to the concourse inside the Yau Ma Tei MTR station he took a short video clip with his mobile phone up a skirt of a woman standing in front of him.  The woman noticed what he had done and grabbed his phone.  She checked his phone and discovered that he had captured an image of her underwear.  He admitted what he had done and apologised to the woman.

4.  The appellant at his first court appearance admitted the offence.  The magistrate accepted his mitigation that he was remorseful and that he was a person with a good background.  He imposed a sentence of 3 weeks’ imprisonment which he reduced by one third for his guilty plea to 2 weeks’ imprisonment.

5.  Mr Joseph Lee, counsel for the appellant, submitted that the appellant is truly remorseful and regretted his conduct.  He pointed out that an immediate custodial sentence is a severe penalty which could have serious consequences to his future employment here in Hong Kong. This he stressed would have a major impact on the appellant’s family who depend upon his livelihood.  He noted that the appellant also supports an elderly mother in Korea.  He submitted that the appellant is a first-time offender of hitherto good character who admitted his wrongdoing at the very first opportunity and displayed genuine remorse for his conduct.  He also submitted that a non-immediate custodial sentence would be appropriate in the circumstances of this case. 

6.  The taking of upskirt images of a woman in public places is not only a serious violation of her privacy and dignity but is also degrading and humiliating.  The prevalence of the offence has become a very real concern for the community. 

7.  In Secretary for Justice v Yeung Wing Hong [2013] 3 HKLRD 800 the Court of Appeal sent out a clear message that offences involving the taking of upskirt images of a female in public places would not be tolerated and an offender can expect an immediate custodial sentence.  The Court explained that in order to deter such conduct, a starting point after trial of 2 months’ imprisonment would usually be adopted with a sentence of 2 to 4 weeks’ imprisonment upon a plea of guilty.  The Court went on to explain that a court may exercise its discretion if the defendant raises special mitigating factors, such as the defendant’s young age and/or clear record.

8.  I have borne in mind the circumstances of the offence and that of the appellant in deciding an appropriate sentence in this case.  The appellant displayed immediate remorse by apologising to the victim and admitting his wrongdoing at the first opportunity.  I accept Mr Lee’s submission that this was a one-off incident.  There were no other images on his mobile phone except for the clip relating to the victim in this case.  He is a person of hitherto good background and the consequences flowing from the imposition of an immediate custodial sentence given his circumstances are far greater than would otherwise be the case. 

9.  The issue is whether these matters amount to exceptional circumstances in this case to warrant a suspension of the sentence.  In the appropriate case, it can be a very effective form of punishment and a means of rehabilitation.  A suspended sentence is like the sword of Damocles, where the sentence of a term of imprisonment hangs over the head of the accused for a period of time and liable to be activated if during that time the accused reoffends.

10.  I have come to the view that the circumstances of the offence and the background of the appellant are such that they amount to exceptional circumstances to warrant a suspension of the sentence of two weeks’ imprisonment.  I agree with Mr Lee’s submissions when he urges a holistic approach in determining whether circumstances are exceptional on the question of whether the sentence should be suspended.  He points to the following: that the appellant apologised to the victim and immediately acknowledged his wrongdoing when he was confronted; that it was a one-off incident; that there were no other images on his mobile phone other than in relation to this victim; that he is a person of hitherto good character and this incident was out of character; that he is unlikely to reoffend; that he pleaded guilty at the very first opportunity and displayed genuine remorse; and that an immediate custodial sentence would have a serious impact on his employment and his family and far exceeds the punishment that would normally be the case.

11.  Accordingly, I allow the appeal and impose a sentence of 2 weeks’ imprisonment which I suspend for a period of 2 years.