HKSAR v. LEUNG PING KEUNG

HCMA659/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 659 OF 2008

(ON APPEAL FROM TMCC 2210 OF 2008)

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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 by Mr Smout at Tsuen Wan Magistrates’ Court on 27 June this year of one charge of indecency in public, contrary to section 148(1) of the Crimes Ordinance, Cap. 200.  

2. The charge alleged that the appellant indecently exposed his penis outside Bicycle Lane at the Riverside of Tin Shui Estate, Tin Shui Wai, being a public place, without lawful authority or excuse. 

3. The prosecution case was dependent on the evidence of the alleged victim, Madam Wong Ho Shan (“PW1”) who was jogging outside Bicycle Lane at about 9 p.m. on the day in question.  She said that the appellant was jogging behind her at a similar pace and that he was holding a red light which had at one point shone on the ground in front of her.  She looked at him and saw that he was looking at her.  Despite the time at night, he was wearing sunglasses which he proceeded to take off and nodded at her making a sound like “Zip-Zip”.  She was a bit frightened so she ran faster.  He ran faster as well.  The appellant took a staircase leading to a pavement on her right hand side but was still following her.  She looked around and saw that he had pulled down his trousers to his thighs and was masturbating about 4 to 5 metres from her while looking at her.  She said that she saw him masturbating for 8 to 10 seconds.  She ran up to two men in front of her, who happened to be plain-clothed police officers to stop the appellant.

4. The appellant’s evidence was that he was not following PW1.  He had passed Bicycle Lane where he had drunk two cans of beer.  He was shining a torch in order to find the coins that he had dropped.  Suddenly he had the urge to urinate, so he had gone to a place which was dark.  He explained that he was not wearing underwear and was wearing his girlfriend’s jeans as he has wet his own jeans and underwear.  He had therefore had to pull down the jeans slightly in order to urinate.  When he urinated he had covered his penis with his hand.  He denied masturbating or exposing his penis to PW1. 

5. The learned magistrate saw both witnesses.  He believed the evidence of PW1.  He accepted that because of many street lights, PW1 had been able to see what she claimed.  He did not believe the account of the appellant.  He accepted that the appellant had masturbated for 8 to 10 seconds while looking at PW1.  

6. The appellant has lodged a standard notice of appeal against conviction but no specific grounds were referred to in that notice. 

7. Today he has argued that the time it is alleged that he was masturbating was insufficient to obtain sexual gratification but sufficient time to urinate.  Moreover he says that the victim’s observation occurred after 9 p.m. in an area which was quite dark and that she had observed him from behind.  

8. This is an appeal.  This court therefore has not had the benefit of seeing the witnesses which the magistrate did.  As a result, this court will not interfere with the magistrate’s findings as to credibility unless there is anything to suggest that he might have erred.  There is nothing to suggest that the magistrate might have erred in his conclusion.  Identity was not in issue. 

9. As I have said the magistrate was satisfied that there were many street lamps and that PW1 could see the appellant masturbating.  He was also satisfied that the appellant was looking at PW1 as he did so.  There is nothing in the appellant’s argument that 8 to 10 seconds would be insufficient for him to obtain sexual gratification.  

10. This case depended on his assessment of the credibility of PW1.  He found her to be a credible witness. 

11. I dismiss the appeal.