HKSAR v. San Juan, Nelson Oro

HCMA 49/2018

[2020] HKCFI 2293

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 49 OF 2018

(ON APPEAL FROM KWUN TONG MAGISTRACY

CASE NO KTCC 1383 OF 2017)

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Before:  Deputy High Court Judge Tam in Court

Date of Hearing: 20 August 2019

Date of Judgment:  10 September 2020

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J U D G M E N T

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1.The appellant was convicted after trial before a magistrate of one charge of Committing an act outraging public decency, contrary to Common Law. He was sentenced to a term of 3 weeks’ imprisonment but he was granted bail pending appeal.

2.The appellant appeals against conviction only.

3.At trial, the appellant was represented by Duty Lawyer.  Now, he is represented by Bar Free Legal Service Scheme.

Perfected Grounds of Appeal

4.The appellant relies on four perfected grounds of appeal.  They are:

(1)  The conviction is unsafe and/or unsatisfactory as the learned magistrate erred in finding the appellant’s behaviour was deliberate and that the possibility of accident could not be excluded;

(2)  The finding of fact was against the weight of the evidence.  The learned magistrate erred in considering that PW2’s observation alone proved the elements of the offence against the appellant;

(3)  The learned magistrate misunderstood the evidence before him and drew conclusions when there was no evidence to support the same resulting in an error in the findings of facts; and

(4)  Upskirting does not amount to the offence of outraging public decency.

Particulars of offence

5.The particulars of offence were that the appellant, on the 21^st day of December 2016, on the escalator[s] (no[s] 12 and 24) going from ground floor to 6^th floor, the Megabox, 38 Wang Chiu Road, Ngau Tau Kok, Kowloon, in Hong Kong, did commit an act of a lewd, obscene or disgusting nature or outraging public decency by taking up-skirt video clip of female X with a gold coloured iPhone 6 Plus mobile phone.

6.The first thing to note about these particulars are that the evidence revealed that escalator no 12 goes from 1^st to 5^th floors, and escalator no 24 goes from 5^th to 6^th floors.  Ground floor was not involved at all in the incident.  The mis-statement in the particulars might have partly explained the confusion in the prosecutor’s cross-examination of the appellant which no doubt contributed to the magistrate’s misapprehension of the evidence herein alleged by the appellant and undisputed by the respondent.

Prosecution case as summarized by the magistrate

7.The part of the prosecution case relevant to this appeal was summarized in paras 5 to 9 (part) of the Statement of Findings, reproduced hereinbelow:

“5. Miss X was called as PW1, she said that she took a long escalator up to 5/F. in Mega Box at around 3:30 p.m. on the material day. Then she took another escalator up to 6/F. During the whole journey, she was listening to music with headphones on her ears. Upon reaching a restaurant ‘Starbucks’, she was told by a plain-cloth police officer that she had been taken upskirt video clips. She then followed the officer to Police station. PW1 was given a chance to watch the video clips, she recognized that her appearance was captured in the film. She also recognized her black coloured top and her short skirt as appeared in the footage. She said that she could see her back in the film, it was taken while she was on upward escalators. The camera was directed at her at an angle behind her in the stairs of the escalators. She was the focus of the film. The video footage was played in court, PW1 also identified her image reflected from the glass of the escalator.

6. During cross-examination, PW1 agreed that she could see no one was immediately around her while she was on escalators. However, she added that she was concentrating on listening music with headphones, she did not notice things around. She also agreed that her face was not captured in the video footage.

7. PC 15000 was called as PW2. He said that he was in the lobby of Mega Box at the material time. He saw the appellant was following a female, i.e PW1, with his mobile phone being held in his left hand. Upon after PW1 went to 1/F., she went to 5/F. from 1/F. by a long escalator. The appellant followed her to the escalator, standing just about 1 metre behind PW1. PW2 was on the left behind the appellant on the escalator. He saw the appellant was placing his mobile phone on the left lap. The appellant stepped forward with his mobile phone still placed on left lap. The camera of the phone was directed towards PW1 in front of him. It was directed at the area below the skirt of PW1. Upon reaching 5/F., PW1 took another escalator up to 6/F., the appellant followed her. The appellant was standing upright. Making a distance of 1.5 metres behind PW1 while they were on the escalator. PW2 kept them under observation. He saw the appellant was holding the mobile phone with his left hand with the camera directed to the position below the skirt of PW1. Subsequently, he stopped the appellant on 6/F. It was at around 3:20 p.m. He also stopped PW1. PW2 found video clips in appellant’s mobile phone. It captured the image of a female who wore black skirt. The body shape of the female was similar to PW1. Background of the first part was on the escalator from 1/F. to 5/F., the second part was on the escalator heading for 6/F……

8. During cross-examination, Defence put to PW2 that the appellant was checking the message of the mobile phone at the material time. PW2 said that he did not notice of it……

9. PW2 was shown 2 photos taken near the scene, Defence put to PW2 that the appellant was also wearing headset when he was on escalators.  PW2 replied that he did not notice whether the appellant had headsets on the ears……”

Defence case as summarized by the magistrate

8.The defence case relevant to this appeal was summarized in paras 14-16 of the Statement of Findings, reproduced hereinbelow:

“14. The appellant gave evidence, he said that he was a left-handed person. In the afternoon of the material day, he was delivering gift for his employer. The employer was a doctor, the doctor was assisted by a nurse called Gloria. At 2:39 p.m., the appellant sent a message by whatsapp to Gloria telling her that he had finished the jobs. Later, Gloria sent back a symbol of Thumb’s up. There were other correspondences between them. Last message was at 3:13 p.m. By that time, the appellant was looking for a place to eat, he decided to go into Mega Box. Before he went in there, he took a selfie photo with his phone outside the building and sent to his girlfriend. He then took another selfie photo. When he was entering the building, he had held the door there for an old lady to go in, several other people went into the building while he was holding the door. Miss X was the last one to enter. The appellant then entered the building himself. He then took the escalator from G/F. to 1/F., 1 step behind Miss X. He was holding the mobile phone by his left hand. When he was asked by the Defence counsel whether he knew that the camera function or the video function was turned on, he said that he did not know because the case cover was closed. Then he moved on to upper floors by the next escalator, standing 3 to 5 steps behind Miss X on the escalator. As he was tired, he held his phone on top of his left thigh, his left leg was stepped one step forward. By that time, he received message from Gloria, it was at 3:16 p.m. The appellant then sent a message at 3:18 p.m. However, there was a message at 3:25 p.m. as appeared at the phone. He did not read it as his phone was already held by Police at that time. The appellant. said that after he had exited the whatsapp function, the phone would go back to camera function if it was turned on before. Besides, he was listening to music with the phone, he had increased the volume by pressing the side button of the phone. He had also dimmed the light of the screen in order to save battery. After the incident, he knew that if he pressed a button at the bottom of the screen, the camera function would turn to video function. Pressing the volume function would let the phone to start video recording if the camera function was turned to video function. However, he did not know such functions at the time of the incident.

15. During cross-examination by Prosecutor, the appellant was asked to confirm whether he had to upload the selfie photos before he could send them. The appellant said that there was an ‘Apps’ connected with the camera in his mobile phone. Photos could be sent out automatically upon photo taking through a Philippine system called ‘Wi-ber’. The selfie photos were shown in page 2 of exhibit D1. The appellant agreed that he continued to use whatsapp function of the phone at 3:16 p.m. as shown in page 3. He knew that the camera function of the phone was still turned on because he planned to take more photos in Mega Box upon taking 2 photos outside there. The appellant agreed that he was on the second escalator when he was increasing the volume of the phone.

16. In re-examination, the appellant confirmed that when he was responding to the 3:16 p.m. message at 3:18 p.m. as indicated at page 3 of Exhibit D1, he was about to enter Mega Box.  When the Defence Counsel asked the appellant to confirm whether he received the 3:16 p.m. message, the appellant replied that he was on the second escalator.  When the appellant was asked to tell at what stage did he receive message at Mega Box corresponding with the video, the appellant said that it was at the front part of the video, i.e. the video with index number from 0000 to 0008.  Then, he had not used the phone any more.”

Reasons given by the magistrate for rejecting the appellant’s evidence

9.After noting the appellant had a clear record, the magistrate rejected the appellant’s evidence.  The reasons were stated in para 24 of the Statement of Findings, reproduced as follows:

“24. The appellant elected to give evidence in court in general issue. The court noted that it was the escalator heading for 1/F. from G/F. described by the appellant as the first escalator. The escalator heading for upper floors as the second escalator as described by him. Court considered that when the appellant replied to the question of whether he knew the camera or the video function of the phone was turned on when he was on the first escalator, he said that he did not know because the case cover of the phone was closed. Court considered that the appellant claimed that he was holding his phone with the back of it facing upwards, it was irrelevant as to whether the case cover was closed or not. It was relevant only if the front side of the phone was facing upwards. Court considered that the appellant talked about irrelevant matters because he made up his version. The appellant also said that he wanted to save battery so he had pressed a ‘button’ on the screen of the phone to dim the light. However, he had also mentioned that he let the camera function remained on stand-by mode after he had taken selfie photos outside Mega Box. Court considered that he was looking for a place to eat, from the evidence revealed, he did not take any photo inside Mega Box. It was unreasonable for him not to turn the camera function off as well in order to save battery when he was dimming the screen light. Besides, appellant claimed that he pressed the side button of the phone to increase volume when he was on the second escalator. He had earlier claimed that it would trigger the video function of the phone to start recording. However, it was revealed from the video footage that PW1’s image was captured when she was on the first and the second escalator. Hence, the video recording function was not accidentally turned on by the appellant when he was increasing the volume of the phone on the second escalator. Video recording was started when the appellant and PW1 were on the first escalator. Court considered that the version of the appellant was not correct. Court considered that the appellant told lies in court. The court did not accept his version as evidence.”

Consideration of the submissions

10.I have carefully considered the respective submissions of the appellant and the respondent.

Regarding Grounds 1 & 3

11.Just to recap, Ground 1 complains that the conviction is unsafe and/or unsatisfactory as the learned magistrate erred in finding the appellant’s behaviour was deliberate[,] and that the possibility of accident could not be excluded.  Ground 3 complains that the learned magistrate misunderstood the evidence before him and drew conclusions when there was no evidence to support the same resulting in an error in the finding of facts.

12.I have viewed the video footage lasting 1 minute 51 seconds many times.  I cannot agree with the respondent’s submission that the bulk of it was focused on PW1.  Leaving aside the beginning and ending portions of the footage and the part when PW1 and/or the appellant were switching escalators on the 5^th floor landing which could be explained away as “transitions”, the “focus” of the major part of the captured escalator journey on escalator no 12 (1^st to 5^th floors) was actually the reflective side-glass of that escalator.  Of course, from time to time, a rather unclear reflection of PW1 could be seen on the reflective side-glass; but the fact that the lens of the phone was not aimed at PW1 provides a doubt as to whether the appellant’s action was deliberate; or whether what he did might have been accidental.  Secondly, according to PW2, “the camera was directed towards the female in front, directed to the area below the skirt of the female” (AB 57S-T).  This was largely incorrect and created a second doubt, a doubt which is related to the reliability of PW2 as a witness which doubt the magistrate, with respect, failed to pick up.

13.The evidence of the appellant regarding how he could have accidentally turned the camera mode into video mode is at least plausible and it was not, with respect, rendered unbelievable by the prosecution’s cross-examination.  The whole matter was not helped by the prosecution misunderstanding the defence evidence: the way in which the prosecution put their case (and by the magistrate following through from that misunderstanding) showed they were both confused about what the appellant was doing at which escalator.

14.The prosecution put their case in the following terms: “I suggest to you and put it to you that you deliberately follow Miss X from the Ground Floor through the escalator to the 1^st Floor and then from the 1^st Floor to the 5^th Floor to take upskirt photo of her” (AB 135D-E).

15.In fact, according to the evidence, the alleged taking of upskirt video (not photo as put) took place on two escalators nos 12 and 24.  No 12 runs from 1^st to 5^th Floors and no 24 runs from 5^th to 6^th Floors.  The video footage shows only these two escalators and not the short escalator running from Ground to 1^st Floors.  Ground floor was not involved in the alleged criminal act at all; it only appeared in the particulars of offence by (obvious) mistake and might have contributed to the reason why the prosecution put their case in this way.

16.The prosecution also kept labelling the two subject escalators incorrectly despite repeated reminders from the appellant in evidence of these mistakes.  The prosecutor kept calling escalator no 12 the first escalator, and escalator no 24 the second escalator; whereas in the mind and earlier evidence of the appellant, they were the second and third escalators.  This created confusion for the appellant (AB 132C-H; O-Q; 133B-134S) and eventually the magistrate (as revealed in para 24 of the Statement of Findings).  Regrettably, the whole saga had been turned into a mess with different parties talking about different things without realizing it.

17.The magistrate, with respect, also erred when he said in para 24 of the Statement of Findings that the appellant took selfie photos outside Mega Box.  The evidence reveals that the appellant took one selfie photo (with himself being featured).  There is no evidence that the other photo (of a building) was a selfie or that it was taken with the frontal lens of the phone.  To this extent, with respect, the respondent also erred by assuming that this second photo was a selfie.  In any event, even if the second photo was taken with the frontal lens of the phone, the fact that there was no mention by the appellant in evidence that he had switched back to the back-side lens does not preclude it from having taken place.  If the subsequent video had been taken with the back-side lens (this is undisputed), then somewhere along the line in between he must have switched it.  The fact that he had so switched still did not preclude the possibility of the video-taking as being accidental.

18.There was a further problem with para 24 of the Statement of Findings which encompassed the reasons for the magistrate disbelieving the appellant.  The magistrate said this:

“… when the appellant replied to the question of whether he knew the camera or the video function of the phone was turned on when he was on the first escalator, he said that he did not know because the case cover of the phone was closed. Court considered that the appellant claimed that he was holding his phone with the back of it facing upwards, it was irrelevant as to whether the case cover was closed or not. It was relevant only if the front side of the phone was facing upwards. Court considered that the appellant talked about irrelevant matters because he made up his version.”

19.First of all, I believe the magistrate was referring to the evidence-in-chief of the appellant at AB 103R-S.  Secondly, the question itself was ambiguous because it asked about “camera or video” which was wholly unnecessary because there was no dispute that during the journey on the first escalator (the short escalator running from Ground to 1^st Floors) the video mode was not yet turned on.  Thirdly, the appellant said he did not notice and not that he did not know.  Fourthly, the appellant did not claim that the back of the phone was facing upwards on this short journey.  He said at AB 103P that he was holding the mobile phone on his left hand and his hands were down near/beside the thigh.  The evidence was that the back of the phone was facing upwards at a later stage when the appellant was on the subsequent escalator(s).

20.All in all, I am satisfied that the magistrate had regrettably mixed up the details of the evidence to such an extent that his reasons for disbelieving the appellant’s evidence cannot stand.

21.Grounds 1 and 3 are both made out.

Regarding Ground 2

22.Just to recap, Ground 2 complains that the finding of fact was against the weight of the evidence.  The learned magistrate erred in considering that PW2’s observation alone proved the elements of the offence against the appellant.

23.Observations have already been made about the reliability of PW2 as a witness in one aspect of his evidence.  There is another aspect and that is his unexplained failure to have noticed the undisputed fact that the appellant was wearing earphones and that the appellant had at one time during the journey up on the (probably second) escalator read and replied to whatsapp messages.  These latter action of the appellant appeared to have taken place immediately prior to the start of the video footage.  These matters throw doubt on the reliability on PW2’s evidence but were not expressly dealt with by the magistrate in his reasons for verdict.

24.Ground 2 is made out.

Regarding Ground 4

25.Just to recap, Ground 4 simply states that upskirting does not amount to the offence of outraging public decency.  The appellant submits that “the deliberate taking of upskirt footage cannot be classified as outraging public decency when the act itself has no real impact on the public but rather on the victim”.  In the main, the appellant relies, insofar as the position in Hong Kong is concerned, a comment made in the Law Reform Commission of Hong Kong Review of Sexual Offences Sub-Committee, Consultation Paper, Rape and Other Non-consensual Sexual Offences, September 2012, to the effect that it is not entirely satisfactory to charge upskirting under the offences of outraging public decency, disorderly conduct in public places or loitering.  The reasoning of the appellant appears to be that the privacy rights of the victim is being ignored because the emphasis of these offences is on public order.

26.With respect to counsel for the appellant, whilst what has been raised may be interesting from a jurisprudential point of view, the arguments put forward do not begin to support the proposition that “Outraging public decency” is an inappropriate charge in upskirting cases or that upskirting does not amount to the offence of outraging public decency.

27.Ground 4 accordingly fails.

Appeal by way of hearing

28.Having exercised my powers as a rehearing judge and remembering always that I do not have the advantage that the magistrate had of seeing and hearing the witnesses first hand, I am not satisfied that the prosecution had excluded the possibility of accident in what had happened beyond a reasonable doubt.

Conclusion

29.For the above reasons, the appeal against conviction is allowed.  The conviction is quashed and the sentence set aside.

30.I thank counsel on both sides for their respectable submissions.

Mr Ned LAI SADPP and Ms Claudia NG SPP, of the Department of Justice, for the respondent

Ms Pinky Nari, Ms Belinda K Y MA and Mr Holden N Slutsky, instructed by Bar Free Legal Service Scheme, for the appellant