SECRETARY FOR JUSTICE v. YEUNG WING HONG

[English Translation - 英譯本]
CAAR 7/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 7 OF 2012

(ON APPEAL FROM KCCC NO. 3228 OF 2012)

________________

REASONS FOR JUDGMENT

Hon Yeung VP (delivering the reasons of judgment of the Court):

1. The Respondent, Yeung Wing Hong, pleaded guilty to two counts of committing an act outraging public decency before Magistrate Abu Bakar bin Wahab (the Magistrate) sitting at the Kowloon City Magistrates’ Courts. He was put on 15-month probation with the condition that he receives psychological and psychiatric treatments and counselling (the sentence).

2. The Applicant, the Secretary for Justice (the Secretary) considered that the sentence was excessively lenient; it is one that a judge, having applied his mind to all the relevant factors, could not reasonably consider it to be within the appropriate range of sentences (see the test set out in Lord Lane CJ’s judgment in AG’s Reference No 4 of 1989 [1990] 1 WLR 41 at 46A).  Therefore, pursuant to Section 81A of the Criminal Procedure Ordinance, Cap 221, Laws of Hong Kong, an application was made to this Court to review the sentence.

3. On 12 December 2012, Cheung CJHC gave leave to the Secretary to apply for review against the sentence.

4. On 24 April 2013, after hearing the application, this Court dismissed the Secretary’s application. The reasons of judgment of this Court are set out below.

Facts

5. At around 11:25am on 12 July 2012, the Respondent filmed the upskirt image of a female (the victim) with a mobile phone in a train compartment. He was intercepted and the matter then came to light. He was arrested by the police. Under caution, he said he took the upskirt image of the victim on a spur of uncontrollable desire.

6. Apart from a clip of the upskirt video taken of the victim, the mobile phone of the Respondent also contained 2 clips of the upskirt video taken of another female on the same day.

Background of the Respondent

7. The Respondent was 25 years old. After graduating at Form 5, he completed a 3-year programme at the Hong Kong Institute of Vocational Education.

8. Upon leaving school, the Respondent had worked as a waiter in two Japanese restaurants, one after another, at a monthly salary of $9,000.

9. The Respondent once had a close and cohabiting girlfriend but the relationship ended after 3 years. The Respondent indicated that other than smoking and the occasional drink, he had no vices.

10. The Respondent had 2 similar prior convictions. On 31 July 2007, he was put on a 60-hour Community Service Order for disorderly conduct in a public place. On 11 June 2009, again, on a count of committing an act outraging public decency, he was put on 24-month probation, with the condition that he receives psychological treatment. Since his condition was stable, the treatment ended in December 2010.

11. The Respondent committed the two counts of committing an act outraging public decency in this case after the aforesaid Probation Order had ended for about one year. It was said that the Respondent felt pressure and distress in April 2012 when he changed to another job, so much so that he was unable to control himself and therefore re-offended. After the incident, the Respondent, for the first time, told someone the problem he was facing, indicating that he was determined to turn over a new leaf.

Position of the Secretary

12. The Secretary considered that not only was the sentence of 15-month probation manifestly inadequate, it was also erroneous on principle. The Secretary maintained that the sentence was disproportionate to the gravity of the offences the Respondent had committed, especially in view of his two similar previous convictions.

13. The Secretary pointed that the courts’ approach regarding the sentencing of offences involving upskirt filming can be seen from a number of authorities. The courts were generally of the view that upskirt filming, notwithstanding that it was conduct involving no body contact, was a serious violation of privacy; it was no different from indecent assault in terms of indecency and the humiliation it brought to the victims.

14. The Secretary cited a number of cases to support his contention that the appropriate sentence should be a short term of imprisonment to serve as a deterrent. 

Position of the Respondent

15. Mr Kevin Chan, counsel for the Respondent, stressed that this Court will only exercise its power to review sentences in exceptional circumstances when the sentence originally passed was “unduly lenient”.

16. Mr Chan agreed that surreptitious upskirt filming was a serious offence. To deter the commission of such offences, the courts would impose immediate custodial sentences. But Mr Chan also pointed out that in some circumstances, the courts would impose non-custodial sentences, such as Community Service Order, as the penalty.

17. Mr Chan stressed that the reason why the Respondent committed the same type of offence again was because of his deep-rooted psychological problem which made him less able to resist sexual impulse.

18. Mr Chan pointed out that the 24-month Probation Order imposed on the Respondent in 2009 had positive effect on him, and the Probation Officer was of the view that, to help the Respondent enhance his self-image and establish positive daily routines, there was a real need for the Respondent to receive further psychological counselling. If he could not receive effective psychological counselling, he would continue to use inappropriate means to relieve stress and solve his problems, which might cause him to re-offend.

19. Mr Chan said that the Respondent was deeply remorseful and ready to receive counselling. Added to that was the support his family gave him.  It was therefore correct for the Probation Officer to take the view that the Respondent deserved to be given one more chance.

20. Mr Chan stressed that the Magistrate only came to the view that Probation was appropriate after detailed consideration, taking into account the sentencing principles in similar cases and balancing the need to punish the Respondent on the one hand and to help him rehabilitate on the other. Mr Chan maintained that a probation order was the most appropriate means to prevent the Respondent from re-offending.

21. Mr Chan submitted that the Magistrate had passed a sentence that not only had fully considered the need of the Respondent to rehabilitate but also the interest of the general public.

22. Mr Chan pointed out that should the Respondent breach the Probation Order or refuse to receive psychological counselling, the court could impose a heavier sentence on him upon re-sentencing. Mr Chan submitted that the way he was dealt with was effective for the rehabilitation of the Respondent.

23. Mr Chan maintained that in order to solve the Respondent’s psychological problem so that he would not re-offend, imposing a Probation Order was appropriate and not “unduly lenient”. Therefore, this Court should not disturb the sentence.

24. Mr Chan said the psychological counselling the Respondent was receiving worked well, and during the probation period, the Respondent did actively try to improve his living habits and expand his social circle, including attending fellowship regularly. All these indicated that the psychological treatment the Respondent was receiving worked positively; it gave him the chance to rehabilitate.

25. Mr Chan submitted that to let the Respondent continue receiving probation was more beneficial to both himself and the society as a whole than to replace it with a term of imprisonment.

Discussion

26. The act of filming females in violation of their privacy in public places is very prevalent. Technological advancements make filming equipment readily available. People with devious intent can easily commit those shameless acts to satisfy their improper private desires.

27. The courts have repeatedly emphasized the seriousness of filming females in violation of their privacy in public places and explained the reasons why heavy sentences have to be imposed on such type of offences. The courts also indicated that in dealing with this type of offences, more weight should be put on deterrence rather than the rehabilitation of individual offenders.

28. The Court of Appeal stated the following in paragraph 42 of the judgment in Secretary for Justice and  Chong Yao Long Kevin (CAAR 2/2012):

“In a number of similar cases, the courts have repeatedly pointed out that taking upskirt photos or videos of a female is a very serious crime. This is because such conduct caused the victim distress and was regarded by the public with disgust. The courts also strongly commented that the indecent photos taken by the defendant could be kept permanently, exchanged, circulated, sold as commodities, or even used to threaten the victim, and that therefore the victim could be subjected to harassment over a long period of time. Such conduct is an affront to the dignity of the female victim (see AG v Wai Yan Shun [1991] 2 HKLR 209, page 211A-B). In order to deter such disgusting conduct, the courts would usually adopt two months’ imprisonment as the starting point, and even a defendant who pleaded guilty could be sentenced to two to four weeks’ imprisonment.”

29. Although the courts have on numerous occasions emphasized that taking upskirt images of females is a serious crime, such offences still occur from time to time. Therefore, the courts are duty-bound to impose deterrent sentences on the people who commit this type of offences, and immediate short-term imprisonment is a sentence that is both appropriate and deterring.

30. Let us say again that, in general, the courts will impose short-term imprisonment on offences involving the taking of upskirt images of a female in public places, just as they do in offences involving indecent assault on a female on public transport, to deter people from committing the offences. If the defendant raises special mitigating factors, such as the defendant’s young age and/or clear record, then the court may exercise its discretion.

31. The Respondent not only twice took upskirt images of females with a mobile phone, he also had two similar previous conviction record. He had twice committed similar offences, once in 2007 and then in 2009 but he was dealt with leniently by the court on each occasion and received non-custodial sentences, including Community Service Order and Probation Order. He however still did not treasure the chances given and refused to mend his way.

32. The Respondent’s behaviour was a blatant affront to the dignity of women and the law. That he had psychological problems is not a reason for a lenient sentence to be imposed as the majority of the defendants committing this type of offences have psychological problems too or they would not have offended. Therefore, if defendants with psychological problems are not to be given custodial sentences, then in similar cases, the courts may not pass short term imprisonment on the defendants.

33. The Magistrate put much weight on the rehabilitation of the Respondent and overlooked the need for deterrence in sentencing this type of offences. We are of the view that the Magistrate had erred in principle in dealing with this case.

34. We agree with the submission of the Secretary. We also agree that considering the background of the case and the criminal record of the Respondent, in respect of the two counts of committing an act outraging public decency, to sentence the Respondent to be placed on 15-month probation was unduly lenient, it was a sentence that fell outside the range of sentences which a judge, applying his mind to all the relevant factors, could reasonably consider appropriate.

35. Although the sentence passed is outside the range of appropriate sentences, it does not mean that this Court must review and change it. This Court still has to exercise its discretion to consider all the relevant factors, including what happened post-sentence, to decide if the sentence should be changed (see paragraph 52 of the judgment in Secretary for Justice v Yan Shen,unreported, CAAR 10/2011).

36. The Respondent was sentenced to a 15-month Probation Order on 4 September 2012. The Magistrate reviewed the sentence on application of the Prosecution on 14 November 2012 and dismissed the application on 21 November 2012. The original sentence was upheld. It has been almost eight months since the sentence was passed. In the interim, the Respondent has been following the instructions of the Probation Officer and receiving psychological treatment sessions regularly.

37. The Probation Officer is of the view that, to help solving the problems the Respondent has so that he will not re-offend, it is indeed necessary for him to receive further psychological counselling. The progress of the Respondent’s probation also indicates that the relevant psychological treatment does work positively for his rehabilitation.

38. That the Respondent has to face a review on the sentence twice is by itself a punishment to him. We take into account the fact that the psychological treatment he is receiving does work positively for his rehabilitation and the termination of it may work against it.

39. This Court agrees that, at the present stage, to let the Respondent continue with the probation is better both for the Respondent and the society. We also consider that when the appropriate sentence would have been a few weeks only, to send the Respondent to prison at this stage is excessively harsh.

40. We are of the view that given the background of the case, in particular in view of the previous conviction record of the Respondent, the original sentence of placing him on probation is unduly lenient. It is a sentence that a judge, having applied his mind to all the relevant factors could not reasonably consider appropriate. Nevertheless, we still consider it right that we should refuse the Secretary’s application for review against the sentence.

41. Therefore, we dismiss the Secretary’s application and uphold the sentence.