HKSAR v. LUI HAN KIT

HCMA1168/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1168 OF 2007

(ON APPEAL FROM ESCC 2722 OF 2007)

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J U D G M E N T

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1. The appellant was convicted after trial by Mr Joseph To, Magistrate of one charge of “Behaving in a disorderly manner in a public place, contrary to section 17B(2) of the Public Order Ordinance, Cap. 245 Laws of Hong Kong”.  He was placed on probation.  He now appeals his conviction and is represented by Mr Cheng Huan, SC together with Messrs William Lam and Bernard Chen of counsel.  Miss Anthea Pang, SADPP appears for the respondent.

2. The particulars of the charge alleged that the appellant had on 9 June 2007 at the Central MTR station taken a photograph underneath the skirt of a young woman who was standing in front of him on an escalator.  This was done it was said by the appellant placing his mobile telephone (with a camera function) under her skirt.  As it transpired no actual photograph was in evidence in the trial.  It was accepted in the trial that the act of attempting to take a photograph or actually taking a photograph in such circumstances amounted to behaving in a disorderly manner.  What was at issue was whether or not it had been established that this was what the appellant did on that day.

The evidence

3. Li Ming Chu (PW1) gave evidence of the events of that day.  She was the young lady, it was said the appellant had photographed or attempted to photograph from beneath her skirt. 

4. It was her evidence that on 9 June 2007, late in the evening, she was at the Central MTR station intending to meet a friend.  She was wearing amongst other things a short skirt.  She was initially unaware of what it was that the appellant was alleged to have done.  She only became aware of this when alerted by a Mr Leung Ka Kit who was PW2.  She told the court that a man (PW2) had tapped her on the shoulder and told her that the appellant had taken or attempted to take a photograph from beneath her skirt using his mobile telephone.  She said that PW2 then chased after the appellant, apprehended him and seized his mobile telephone.

5. It was PW2’s evidence that at about 11:30 p.m. on 9 June 2007, he was on the escalator at the Central MTR station.  He observed a male (the appellant) move quickly up the escalator from right to left and position himself behind a young woman (PW1) on the escalator in front of him.

6. He said that the appellant then took a mobile telephone out of his pocket and placed it under the skirt of PW1 between her legs.  He immediately assumed that he was taking or attempting to take a photograph beneath her skirt.  Seeing this, he alerted PW1 and grabbed hold of the appellant after a chase.  He had observed that the appellant placed the mobile telephone under PW1’s skirt for about 5 seconds.  This he demonstrated in court and the transcript records the magistrate’s observation of the demonstration as follows :

“The witness extended his left hand and he kept it … kept his left hand in front of him at a distance of about one to one and a half foot to the left hand side of his body.  His palm was facing upward to show the hand is holding something.”

7. PW2 reported the matter to the MTR staff who in turn contacted the police. 

8. PW2 was cross-examined extensively and he was unshaken.  He saw, he said, the appellant taking or attempting to take a photograph from beneath PW1’s skirt.

9. The 3^rd prosecution witness (PW3) was a police officer Lai Kwok Wai who had been called to where the appellant had been detained at the Central MTR station.  After initial enquiries, he took all involved to the police report room in the MTR station.  Having determined that it was alleged that the appellant had taken or attempted to take a photograph from beneath the skirt of the young lady, he asked the appellant whether he “took a picture under somebody’s skirt in the escalator”.  The appellant replied “I did” and was promptly arrested and cautioned after which the appellant said “I took a photo under her skirt.  But I did not mean to do it, give me a chance”.  The appellant, PW1 and PW2 were all then taken to the Waterfront Police Station where after having reported to the duty officer, the second conversation was reduced into writing in the officer’s notebook which was signed by the appellant.  Thus there were in the trial two oral admissions allegedly made by the appellant and one in writing.

10. The appellant objected to the admissibility of the two oral admissions as well as the notebook entry.  As to the former it was the appellant’s case that these were not said and as to the latter that the appellant had been induced into signing the notebook.  The appellant gave evidence as to these matters but not on the general issue.

11. It was the appellant’s evidence on the issue of admissibility that at no time in the police report room of the Central MTR police station did he utter the expression :

“I did it.”

and the expression :

“I took a photo of her under her skirt, but I did not mean to do it.  Give me a chance.”

12. It was his evidence that those alleged conversations were a fabrication.  What did happen he said was that PW3 had said to him that he had talked to his supervisor and it was a “minor case” and “as there was a shot of this female underskirt but was not clear he would not be charged”. 

13. His evidence was that following upon this PW3 said that he would prepare a statement for the appellant to sign and after that he could go.  This he said resulted in the post-recorded notebook entry.  He signed in that notebook because the police officer had said that it was a minor matter and he would not be charged. 

14. In addition to the evidence of PW3 as to the oral admissions, there was support from PW1 who overheard the appellant admit that he had tried to take a photograph from under her skirt.  This came about in the following way.   Mr Cheng Huan, SC when cross-examining PW1 suggested to her that the appellant at no time admitted that he had taken a photograph from underneath her skirt.  Her response to that suggestion was that in fact he had made such an admission in the report room at the MTR Central station.  It was her recollection that the appellant had been asked questions like “why he took photos of me, a photo of me under my skirt” and in response had admitted that he had.  She also recalled that one of the officers had said to the appellant that this was a serious matter.

15. The magistrate determined that the two oral statements (one before and one after caution) were voluntary and were admitted into evidence.  The post-recorded notebook entry was excluded because no certified translation had been provided. 

16. The magistrate rejected the appellant’s account as to the admissions.  He appreciated nevertheless that even if he did not accept the appellant’s account as truthful or possibly truthful the prosecution must satisfy him that the alleged admissions were made.  The magistrate accepted the evidence of the prosecution witnesses.  He was entitled to do so.  That evidence taken together with the evidence of PW2 as to what he observed amounted to a very strong prosecution case.

The perfected grounds of appeal

17. Ground 1 alleges that :

“The learned Magistrate’s reasons for ruling the verbal admissions uncautioned and cautioned to be admissible were not cogent and were not supported by evidence but with respect, based on conjecture.”

This ground of appeal has at its core the premise that there was a material conflict in the evidence of PW1 and PW3 the police office who arrested the appellant.  The substance of the alleged conflict being that PW1 recalled that PW3 had told the appellant that the offence was a serious one.  On the other hand it had been suggested in the cross-examination of PW3 and it had been the appellant’s evidence, that he had in effect induced the appellant into confessing by telling him that this was “just a minor matter”.  This suggestion was rejected by PW3 who said that he had told the appellant that it was “a case” which the magistrate interpreted to mean a criminal case.

18. It is said on the appellant’s behalf that this is a material conflict in the evidence of PW1 and PW3 such that it required reconciliation by the magistrate.   In his written and oral submissions, Mr Cheng Huan asserts that the evidence of PW1 and PW3, was to use his expression “burdened with inconsistencies” which were improperly reconciled by the magistrate.  Whilst it is correct to say that there were inconsistencies between PW1 and PW3 as to the precise words used and who was present, the real issue was whether these were material inconsistencies.  Both witnesses denied that anyone had said to the appellant that this was “a minor matter”.  In this they were consistent and it is this part of their evidence which was critical.  The magistrate stated in his reasons for verdict that such inconsistencies in the evidence of the PWs as there were mere not material.  I agree.  Whilst he did in passing refer to one or more possibilities as to how those inconsistencies might have arisen (which is not advisable).  Nevertheless he was clearly focused on the matters in issue which were material.  It may have been more prudent not to speculate on why one witness would recall one thing and another something slightly different.  Where the inconsistency is to a significant matter in issue it would normally be improper absent evidence.  Here however it was not a material issue.  As I have said these inconsistencies were not in the final analysis ones which required reconciliation.  Ground 1 fails.

19. Ground 2 alleges that :

“There was a material irregularity at the trial in that at the end of the voire dire the learned Magistrate made a ruling that only the ‘oral admission’ was admissible and thereby giving a clear indication that all that were admitted were the words ‘I did it.’  It was only during the appellant counsel’s final submission in exchanges between the learned Magistrate and counsel that it transpired that the learned Magistrate had in fact ruled on the admissibility of both the uncautioned and cautioned verbal admissions.”

20. In his ruling on the special issue the magistrate referred to the verbal admissions in the singular.  He was satisfied, he said, “that it had been made voluntarily”.  Whether there was confusion or not the fact remains that his ruling was that both of the oral admission were voluntary and admissible.  This became clear in the exchanges between the magistrate and the appellant’s counsel.  The magistrate made it perfectly clear that his ruling was not confined to the oral admission made before the caution, i.e. “I did it” but also to the oral admission made after caution, namely “I took the photograph of her under her skirt, but I didn’t mean to do it”. 

21. This apparently caused no concern to the appellant’s counsel at the time.  No application was made to the magistrate for time to consider the implications of this.  There was no suggestion then that the appellant was in any way prejudiced by this misunderstanding. 

22. Had there been any issue of any moment arising out of this it would certainly have been taken up then and there by the appellant’s very experienced counsel.  He did not and there is no merit in this ground of appeal. 

Ground 3

23. Alleges that the magistrate was fundamentally in error when he relied on PW1’s evidence as providing “good corroboration evidence” of the verbal admissions made by the appellant to PW3.  As I have earlier indicated the evidence was that PW1 had overheard the appellant admitting the offence when questioned.  In the course of his cross-examination of PW1, Mr Cheng Huan said to PW1 :

“Q.  Yes and throughout the time you with this defendant — I don’t believe — at no time did he admit that he took any photograph of you.  I mean of you, underneath the skirt.  Do you agree?

PW1 did not agree, her reply was :

A.   No.  I don’t.  

The following exchange then occurred :

Q.   He did you mean? 

A.    Because at that time when we were in the reporting room when the Ah Sir questioned him he admitted. 

Q.   In your presence?

A.    Correct.”

24. In support of this ground of appeal it is submitted that the magistrate failed to adequately, or at all, reconcile or analyze the material conflicts between the evidence of PW1 and PW3 relevant to this part of her evidence.  This inevitably poses the questions again whether there were indeed conflicts and if so were they material.  If there were inconsistencies which were not material to the matters in issue then it was not incumbent upon the magistrate to embark upon the course suggested.

25. Those parts of the evidence which it is said required reconciliation of material conflicts between the evidence of PW1 and PW3 centre around the events at the police report room inside the Central MTR station.  PW1 was cross-examined about how many police officers were then present.

“Q:  How many police officers were present?

A:    About three in the MTR case reporting room; because they arrived at different times and they came in and out.

Q:   Did you hear the questions asked by the police officer to the defendant?  In your presence that is.

A:    Questions like — he was asked questions like why he took photos of me, a photo of me under my skirt.

Q:   How many police officers asked that questions?

A:    About two police officers.  One police officer asked that question first, and then the other one asked the same question again.

Q:   Yes.  Did any police officers say that it was a minor matter?

A:    They said that this was a serious offence.

Q:   To you, or to the defendant?

A:    Said to the defendant.

Q:   In your presence?

A:    Correct. 

The evidence given by PW3 in cross-examination was as follows :

Q:   … sorry, apart form you, which other officer had opportunity to speak to the defendant at MTR station?

A:    Should be no more.

Q:   I see.  None to your knowledge.

A:    Correct.

Q:   Now, was there any other police officer apart from you involved at the MTR police station — Central Station?

A:    About the handling of this case, no.

Q:   Who else had opportunity to — who else but you, apart from — apart — who else but you?  Which other police officer with you at the MTR Central station?

A:    At the time when this incident took place, I was by myself.

…

A:    One was my senior, and he came to take a look when I was handling this case.

…

A:    Sergeant 13560.

…

Q:   Did the sergeant speak — say anything?

A:    Not in my presence.

26. Again the magistrate did not consider that these were material inconsistencies.  As before he embarked on a degree of speculation as to why their recollections might be different.  Had these been material inconsistencies, this would not have been proper.  They were not however material.

27. The evidence of PW3 and PW1 was that the appellant had made an admission at the Central MTR police report room.  In that they were entirely consistent.  Whether PW1 recalled that there was more than one officer present and speaking was not a matter of great moment particularly when it was the appellant’s own evidence that PW3 was the only officer with whom he had any dealings that day.

28. There were obvious differences as to who was or was not present.  These were however not material.  There was to my mind no conflict let alone a material conflict.  They were not entirely consistent but the inconsistencies were as to peripheral matters.  The crucial issue was that PW1 overheard the appellant make an admission to having attempted to or actually taking a photograph from underneath her skirt.  It was not suggested that she was untruthful — simply mistaken.  For his part, PW3 was alleged to have fabricated this part of his evidence. 

29. There is no merit in this ground of appeal.

Ground 4

30. Alleges that the magistrate was in error in not considering that the oral admissions were mixed statements and in so doing omitted to consider the exculpatory and inculpatory parts.

31. Was the statement a mixed statement?  I do not think it was.  The appellant admitted that “I took a photograph of her under her skirt but I didn’t mean to do so.” 

32. It is said on behalf of the appellant that the latter part of that statement is exculpatory rendering the statement a mixed statement.  It is said if it was a mixed statement the magistrate was required to direct his mind to the impact of it on his conclusion.

33. The appellant seeks to pray in aid the unreported judgment of HKSAR v. Yeung Chun Sing, HCMA1029/2004, a decision of Deputy High Court Judge Carlson.

34. That case is to my mind distinguishable from the present.  Whilst a clearly exculpatory utterance by an accused in an otherwise inculpatory statement will give rise to the need for a magistrate to address specifically its impact upon his verdict, the present case was not such a case.  The matter was not taken up in closing submission on behalf of the appellant.  There was beyond this assertion to the police officer not a shred of evidence to suggest that the appellant may have accidentally taken a photograph from beneath PW1’s skirt.

35. In Yeung Chun Sing it was the defence case that whatever had occurred was an accident.  There was a very live issue in that regard.  This was not the case here.  Had it been so then that aspect would have loomed large in the trial.  It did not. 

36. The magistrate’s acceptance of the description of events by PW2 ruled out any possibility that there may have been an accidental or unintentional attempt to take a photograph from beneath the skirt of PW1.  That description was one of the appellant moving quickly along the escalator to position himself behind PW1.  It was at this point he was seen to take out his mobile phone and place it under PW1’s skirt and between her legs.  There could have been no suggestion that this conduct was accidental and there is no support for ground 4 which must fail.

37. The magistrate’s directions to himself on the burden and standard of proof were in the circumstances sufficient.  Nothing more was required.

38. The appeal is dismissed.