HKSAR v. WU JING

HCMA 509/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 509 OF 1999

(On Appeal from SKCC 817 of 1999)

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J U D G M E N T

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1. This is an appeal by the Appellant against his conviction on a charge of Indecency in Public contrary to Section 148(1) of Crimes Ordinance, Cap. 200. He was convicted of that offence on 16 April 1999.

2. The Appellant put before the court the standard general grounds of appeal but also filed with the court a document that he drew up on 30 April 1999, setting out doubts he said emerged from the hearing of the case. These grounds went into some detail about the basis for Appellant's claim that he had been wrongly convicted. The prosecution evidence was that Appellant, while a passenger on a bus, had exposed his penis.

3. There were lengthy comments about the evidence of the female complainant, mainly disputing the quality of her evidence and the vantage point from which she said she saw the alleged offence. There were details about Appellant's personality and character. Appellant said there should be no queries as to his credibility and further, that no semen was found on his private parts, or his underpants, at the time that he was investigated by the police.

4. The grounds went into detail on a matter that had been raised before the Magistrate, namely Appellant's physical condition on that day, pointing out that as he had been suffering from toothache it was unlikely that he would have been in any fit condition to have committed the type of offence complained of. The Appellant stated that he had a normal sex life with his girlfriend of three years standing. The document stated that Appellant did not by his behaviour draw any particular attention to himself and that it was natural he should have his hands placed on top of his thighs.

5. The Appellant referred, in the document, to the fact that the bus was crowded and that people were getting on and off the bus in a position near where he was sitting. The question was posed as to why a person would choose such a position at which to commit an offence of indecency.

6. The Appellant was not present at the hearing today. The court received by fax, on 22 November 1999, a letter saying that he was now in Mainland, China and as he is a Mainland resident he could not apply to come to Hong Kong in the near future. Accordingly, he asked the court to either hear the case in his absence, or to adjourn it. Given the unlikelihood of Appellant being able to come to court in the near future and in the absence of any indication of when, or if, that might be possible, I propose to deal with the appeal today rather than adjourn it, particularly as he has produced substantial details of his complaints about the conviction.

7. Having looked at those complaints, however, and having considered the Magistrate's findings and the transcript, I am of the view that there was ample evidence on which the Magistrate could convict this Appellant. The Magistrate took into account all matters that he should have, including the nature of the indecency, the view that the victim had of the indecency as well as examinations of the differences between the victim's testimony in court and what Appellant said in his evidence.

8. The Magistrate considered that the main issue was whether the complainant was mistaken in what she had seen. He found her to be a mature and sensible woman; it had not been suggested by Appellant that she was untruthful, simply that she was mistaken in what she had seen.

9. The Magistrate took into account the Appellant's clear record. He was satisfied that the victim saw what she said she had seen, which was the Appellant holding his penis with the top two or three inches protruding from his hands.

10. This was clearly indecency in the terms of the section. The Magistrate took all the relevant facts into account and properly convicted the Appellant. The appeal against conviction is dismissed.