HKSAR v. CHAU CHEUK YIN

HCMA 641/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 641 OF 2003

(ON APPEAL FROM KCCC 7489 OF 2003)

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J U D G M E N T

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1. This Appellant was convicted after trial of one charge of 'Loitering Causing Concern', contrary to section 160(3) of the Crimes Ordinance, Cap. 200. He was fined $3,000 and ordered to pay costs of $2,500. Today he appeals against his conviction only.

2. The particulars of the offence were that on 16 April 2003 at an escalator of Choi Hung MTR Station, Kowloon, the Appellant loitered in that place, being a public place, and his presence there alone caused Lai Yuen-yee reasonably to be concerned for her safety or well-being.

3. The basis of the charge was that the Appellant was accused of taking or trying to take a photograph up the skirt of a young woman as she went up an escalator at Choi Hung MTR Station.

4. The Magistrate correctly set out the factual issue which was whether it was proved that the Appellant did the alleged acts; or whether the woman in question had, or might have, made up her version, or made a mistake in what she saw.

Prosecution Case

5. The victim left a train at Choi Hung MTR Station, it was 7.30 pm and fairly crowded on the platform. She let the crowd leave first, according to her usual practice and walked the length of the platform to the exit at the far end, the one which was convenient for her. She reached the escalator. It was quiet by then. When she was half-way up the escalator, she felt something hard touching the back of her knees through the split in her skirt. She looked over her shoulder and saw a man behind her. There was one step between them. He was leaning forward. She could see that half of his mobile phone was in the split of her skirt. The man did not immediately notice that she had seen what he was doing because he was looking down at the phone. She kicked back with her right leg, knocking his mobile phone out of his hand.

6. She turned and began to berate him for taking photographs up her skirt. It was her evidence that the Appellant immediately denied doing so. He picked up the phone and ran up the escalator. She saw, at that point, that there was no one behind him. She followed him. At the lobby, she raised a hue and cry and the man was stopped by a group. She continued to berate him. The Appellant still had the mobile phone in his hand and was pressing the buttons. A woman shouted to PW1 not to let him delete the files. PW1 snatched the phone and saw the word "deleted" appeared on the screen, together with a tick which indicated that a file had successfully been deleted.

Defence Case

7. The Appellant, a man of clear record, elected to give evidence. The basis of his case was that he dropped his phone behind the victim as he went up the escalator, he picked it up and walked on. According to his account, he never touched her, or her skirt, nor did he take any photographs. He was running late for an appointment with his girlfriend. He had telephoned his girlfriend a few minutes before and was moving briskly up the escalator. He took out his phone to make another call.

8. As he went upward, he passed a number of people before reaching the victim. He was two steps below PW1 when he dropped the phone which landed on the step below her. She did not kick it out of his hand. He picked up the phone and heard PW1 calling out that he had been taking photographs of her but denied it. He continued hurrying up to the station concourse where he was stopped. The victim repeated her complaint: he continued to deny it and said he would show her the picture files. He took the phone from his pocket and switched it on to show he had not deleted any pictures. He confirmed that if pictures had been deleted, the screen would show the word "deleted" and a tick.

9. The 2nd Prosecution Witness was on the escalator ahead of the victim at about the same time but did not see what happened on the escalator. He heard PW1 call out that someone was taking pictures up her skirt and saw the Appellant running up the escalator past him towards the concourse. He chased and intercepted him. When PW1 arrived, the Appellant took the phone from his pocket, said he had to make a call and began to press the buttons. When someone shouted that he was deleting the files, PW1 snatched the phone from him.

10. The Magistrate considered the evidence noted and reconciled discrepancies between the victim's statement and her evidence at trial. He ruled out the possibility of accidental contact by the telephone with the victim's skirt or leg, which could have been misinterpreted. He noted that it was the Appellant's case there had been no contact at all, but rejected that and found that the length of time over which PW1's leg had been touched excluded the possibility of this being an accidental touching. He sensibly recognised that reference by a witness to a particular number of seconds was not very helpful as in such circumstances, timings could be no more than guesses. He accepted that the touch had been for an appreciable length of time, far more than if it had been accidental.

11. The Magistrate concluded that the Appellant's account was untruthful and rejected it. He was sure the Appellant followed PW1 onto the escalator and that he was the last person on it. He positioned himself behind her and leaned down, and placed the lens of the camera-phone under her skirt intending to take a photograph.

12. The Magistrate was sure that when the Appellant was standing behind PW1 with his camera-phone directed up her skirt, he was loitering and his presence there, given what he was doing, was such as to cause the victim to be reasonably concerned for her safety, or well-being. He referred to R v. Ng Chun-yip, HCMA 280/1985 for the meaning of loitering. He noted that PW1 said she was very scared by what the Appellant was doing.

Grounds of Appeal

13. The grounds of appeal were:-

(1)	that on the findings of fact by the Magistrate, the Appellant could not in law have been found guilty of the offence for which he was convicted and the Magistrate erred in convicting the Appellant;
(2)	that the Magistrate erred in failing to allow a fair chance for the Appellant's counsel to develop his cross-examination and exerting pressure on the Appellant's counsel to finish his cross-examination early;
(3)	the Magistrate had fallen into error in dealing with the Appellant's evidence and come to the wrong conclusion. This relates to the fact that the Magistrate had disbelieved the Appellant because he found the Appellant inconsistent as to whether he had told the victim about the dropping of the phone. The Magistrate had found the Appellant said, at first, that he did not think he had to tell her, but on the concourse said that he had.

14. There was nothing of substance in either Ground 2 or Ground 3. There was nothing to show the Magistrate failed to allow a fair chance for Appellant's counsel to develop cross-examination, or that he exerted pressure on Appellant's counsel. I have noted the comments referred to in the transcript and find they show nothing more than that the Magistrate was properly managing his court's time. As for Ground 3, there was nothing to show the Magistrate had "wrongly relied on a hypothetical inconsistency which is non-existent" as the Appellant's counsel claimed.

15. On Ground 1, it was submitted that loitering was defined in the R v. Ng Chun-yip, HCMA 285/1985 to mean "idling, lingering or hanging about" which is the dictionary definition. There was reference to AG v. Shum-chuen [1986] 1 AC 887 which shows that the lingering needed to show loitering was "in circumstances which reasonably suggest that its purpose is other than innocent." There was undisputed evidence, according to counsel for the Appellant, that he was at the relevant time in a hurry to meet his girlfriend, which would be an "innocent purpose".

16. The Magistrate was sure the Appellant had followed the victim onto the escalator and that he was the last person on. He said that he might have waited in the vicinity for someone like the victim, or he might have been there by chance. On the basis of that comment, it was submitted that the Appellant could not have been there for any purpose

other than an innocent one as there was no suggestion that he was idling, lingering or hanging about.

17. Implicit in the finding of loitering is a time element. The Magistrate was satisfied that the touch was for an appreciable length of time and not an accidental touching, as might occur if the Appellant was rushing past PW1 on the escalator. There was a direct conflict as to what had happened and the Magistrate believed the victim. The loitering is consistent with the Appellant following the victim, positioning himself behind her, with his phone outstretched through the split of her skirt and in remaining there, for a sufficient length of time for PW1 to turn, notice what he was doing and take action by kicking the phone.

18. The Magistrate stated that the Appellant did not immediately notice that PW1 had seen what he was doing, because he was looking at the phone. This gave her sufficient time to kick back with her right leg and knock the phone out of his hand. The Magistrate was satisfied that the evidence showed the Appellant was loitering, to achieve his objective of taking photographs beneath the victim's skirt.

19. In a recent case (HCMA 624/2003 HKSAR v. Cheng Siu Ming) on similar but not identical facts, the Magistrate changed the charge from one of 'Loitering Causing Concern' to 'Disorderly Conduct in a Public Place whereby a breach of the peace was likely to be caused' contrary to section 178 of the Public Order Ordinance, Cap. 245. I have considered whether that would have been the appropriate way to deal with this particular case, but the facts differ and in this case the element of "lingering" was present and accordingly the loitering required to sustain the charge has been established.

20. The appeal against conviction is dismissed.