HKSAR v. Chong Chi Keung

[English Translation – 英譯本]

HCMA 619/2018

[2020] HKCFI 1966

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 619 OF 2018

(ON APPEAL FROM KTCC 650/2018)

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JUDGMENT

1.The appellant was charged with one count of committing an act outraging public decency[1], and he pleaded not guilty. On 28 November 2018, he was convicted after trial and sentenced to two months’ imprisonment by the deputy magistrate[2] (“the magistrate”). He appealed against the conviction and sentence.

Prosecution case

2.This is a case of “upskirting” as it is commonly called.  It happened on an escalator in a shopping arcade.

3.As to what happened in the incident, C was the key witness of the prosecution, and her evidence may be summarized as follows.[3]

4.At the material time, C was together with her husband and daughter.  She was wearing a black loosely fit mid-thigh dress and carrying her daughter’s schoolbag on her back.  They took escalators to go up to the upper floors with her daughter in front of her to ensure the girl’s safety.  On the way from G/F up to 2/F, she sensed that someone was stalking her so she moved to somewhere above her daughter.  She turned to look down and saw the appellant but did not find anything unusual.  Subsequently, when going from 2/F to 3/F, she got the feeling that the appellant was very closed to her, making her uneasy, and she thus looked back again.  On this occasion, she saw that the appellant had one foot on the stair in front (not the stair where she was) forming a right angle and put a smart phone[4] on that thigh.  The camera on the back of the phone was directed towards her, and the appellant was supporting the phone with his hand.  She immediately asked the appellant why he was taking images of her.  The appellant denied nervously and at the same time turned the phone over.  Through the window of the phone case, C saw the screen of the phone showing the surrounding environment.  When the appellant reached 3/F, C saw him delete something on the phone.  The appellant said that he deleted his personal information.  She seized the phone from the appellant, but people by the side said it was not necessary because information deleted could be restored.  She therefore did not look at the appellant’s mobile phone and just returned it to him.  She only saw the screen of his mobile phone showing a photo album.

5.Although the relevant video clip in the appellant’s phone had been deleted by him, it was restored by forensic steps and produced to the court as exhibit P8.

Defence case

6.The appellant did give evidence at trial, which may be summarized as follows.[5]

7.The appellant was a police officer by occupation and was on leave on the day in question.  He had first gone to Shamshuipo to buy a printer ink cartridge and afterwards drove home.  After parking his car, he went to the shopping arcade where he often visited, ie the one in question, to have something to eat and to look for ink cartridge.  In the course of it, he reached the escalator in question.  He took no notice of the mother and daughter in front, nor had any intention to follow them.

8.As to the relevant video clip in his mobile phone[6]，namely the part about going from G/F to 2/F and from 2/F to 3/F, he recalled and thought of the possibility that he might have pressed the video button and activated it  by mistake while he was trying to withdraw because he decided to give up taking images although he had intended to take images of the Christmas tree in the atrium on G/F and activated the camera of the mobile phone.

9.As to why his had put his foot one stair ahead forming a right angle and put his phone on the thigh, he said he found this posture comfortable.

10.He deleted the video clip while being challenged by C because he did not know why the clip had been recorded, and in order to pacify her and settle the matter, he did the deletion.

11.He did explain to C that he had no intention to take images of her and it was all a misunderstanding.

12.He had no intention to escape and did not delete any photograph, furthermore, he never revealed his police identity to C.

Admissibility of the video clip as evidence

13.A preliminary dispute at trial was whether the clip P8 found in the appellant’s mobile phone was admissible as evidence.

14.The defence cited Sham Wing Kan v Commissioner of Police[7] in support of their objection to the admissibility of the video clip in the mobile phone in the present case.  The case was a judicial review followed by an appeal, and the decision of the Court of Appeal will be discussed later.  The Court of First Instance decided it was only in exigent circumstances that the police were empowered to conduct warrantless search on the digital contents of an electronic device.  In the present case, the defence submitted it was not in exigent circumstances when the police wanted to search the contents of the memory card in the appellant’s mobile phone, and although the police had applied for two search warrants for the said search, both warrants were invalid, and therefore the police infringed the appellant’s right to privacy by searching the contents of the memory card in his mobile phone, and the relevant data should not be admitted as evidence.[8]

15.The magistrate decided this issue by way of a voir dire.[9]

16.The relevant evidence came from the following two witnesses, and their testimonies may be briefly summarized as below.

DPC 9621

17.At 8:20 pm on the day in question, PC21162 passed the appellant’s mobile phone with the memory card therein (exhibit P4A) to him.  Two days afterwards, on 29 November, he passed the mobile phone and the memory card P4A to Sgt 2082 of the Information Technology Section of the Police Headquarters.  In the morning on the same day, he applied for a warrant (exhibit P7).  He did not apply for any warrant in respect of the memory card, thinking that since the warrant already covered the mobile phone, it should be sufficient to include the memory card which was inside as well.  Having obtained the warrant, he passed the warrant and the exhibits to Sgt 2082.  Sgt 2082 told him that the warrant did not include the memory card.  Thus he notified his superior, applied for another warrant, and faxed the warrant (exhibit P6) to the Police Headquarters when it was available.

WDPC 11195[10]

18.On 29 November 2017, pursuant to section 50(7) of the Police Force Ordinance[11], she applied to a magistrate for a warrant in respect of the memory card (exhibit P4A) seized by the police from the appellant’s mobile phone.  The warrant (exhibit P6) was approved and issued by the magistrate.  She passed the warrant to DPC 9621.

19.The magistrate was satisfied with the testimonies given by the aforesaid two prosecution witnesses.

20.The magistrate held that the warrant concerned could be obtained by application made under section 50(7) of the Police Force Ordinance.

21.The magistrate was of the view that by the time the police applied for the warrant, they had seized the appellant’s mobile phone and the memory card inside, but he did not agree it meant that the contents of the memory card had already been seized because the police had to take extra steps before they could look into the contents of the memory card.

22.The magistrate ruled that the two warrants P6 and P7 were both issued properly pursuant to section 50(7) of the Police Force Ordinance and were not rendered invalid due to the lack of clarity as alleged by the defence.

23.The magistrate has also considered how the matter should be dealt with on the assumption that the two warrants were invalid.

24.In the consideration, the magistrate adopted the test in the Court of Final Appeal case of HKSAR v Muhammad Riaz Khan[12] : if upon a careful examination of the circumstances concerned, the court finds that the admission of the evidence 

(1)     is conducive to a fair trial[13];

(2)     is reconcilable with the respect due to the right to privacy[14]; and

(3)     appears unlikely to encourage any future breaches of the right to privacy or other rights[15],

the evidence in question may be admitted.  At trial, both sides agreed that this test was applicable.

25.The magistrate pointed out that the video clip in question was crucial evidence in the present case conducive to identifying the nature of the acts allegedly committed by the appellant.  If it was admitted as evidence, both sides would have the chance to cross-examine witnesses and/or make submissions in respect of the content of the said video clip to convince the court as to whether the nature of the appellant’s acts amounted to the alleged criminal acts.  Therefore, the magistrate found that accepting the video clip in question was conducive to a fair trial.

26.The magistrate also found that the police had taken a proper step (ie applying for a warrant in advance in non-exigent circumstances), showing respect to the appellant’s right to privacy and there was no lack of good faith[16]. He pointed out that if the warrant became invalid only because of a lacuna in the law, admitting the video clip in question as evidence was reconcilable with the respect due to the right to privacy.

27.It was the magistrate’s finding that the police made the application for the warrant genuinely for the search on the contents of the memory card in the mobile phone.  In his opinion, allowing the clip stored in the memory card inside the appellant’s mobile phone to be admitted as evidence was unlikely to encourage any future breach of the right to privacy or other rights.

28.On the basis of the above reasons, the magistrate held that even if the warrants P6 and P7 were invalid, the court should still exercise discretion to admit the video clip in question as evidence.

The magistrate’s findings on facts

29.The magistrate was satisfied that C was an honest and reliable witness and accepted as the truth the main part of her testimony.[17]

30.The magistrate was also satisfied that C’s husband (“Chan”) and a bystander (“To”) were honest and reliable witnesses. Nevertheless, their testimonies were irrelevant to the key issue of whether the appellant intentionally took the video recordings.[18]

31.The magistrate was also satisfied that the clip P8 was accurate without any unlawful editing or interference. [19]

32.In relation to the this clip P8, the magistrate had the following observations:[20]

(1)     The appellant was seen moving onto the escalator at the beginning of P8 and then left at around 0:50; on the other hand, camera no. 14 of CCTV no. 4, ie P3(5), showed that the appellant moved onto the escalator leading from G/F to 2/F of the Domain at around 17:33:16, while camera no. 15 of CCTV no.8, ie P3(6), showed that the appellant moved onto the escalator leading from 2/F to 3/F at 17:33:16.  Due to the match in time, the magistrate found the part from the beginning to 0:50 in P8 showed what happened when the appellant was on the escalator leading from G/F to 2/F of the Domain;

(2)     Afterwards, 0:02 in P8 showed that the appellant, while moving onto the escalator leading from G/F to 2/F, turned over the mobile phone and looked forward, ie in C’s direction;

(3)     Between 0:03 and 0:10 in P8: the camera only captured C’s back and the lower part of her daughter’s backpack on her back;

(4)     Between 0:11 and 0:50 in P8: the camera was directed at the lower part of C’s dress and was very stable;

(5)     Between 0:50 and 1:09 in P8: it was the time when the appellant changed to another escalator, and the camera was all along directed upward to the ceiling;

(6)     1:09 in P8 showed what happened when the appellant was on the escalator leading from 2/F to 3/F of the Domain, and the camera was quickly directed at the lower part of C’s dress;

(7)     Between 1:16 and 1:19 in P8 showed: C just stared at the appellant without saying anything, and the appellant said, “No”;

(8)     1:20 in P8 showed: C said, “What’s your phone doing?”  The appellant answered, “Huh,” and immediately turned over the mobile phone.

33.The magistrate found the appellant’s claim that he was not aware of the video mode of the phone being in operation unreasonable because this was in several parts inconsistent with the video clip in his mobile phone[21].  The magistrate pointed out:

(1)     If the appellant was not aware of the phone being in video mode, then while C was staring at him, it would be unreasonable that he did not find it strange and responded in the way shown at 1:19 in P8, ie “No”;

(2)     It did not make sense that the appellant answered, “Huh?” in response to C’s question, “What’s your phone doing?” as shown at 1:20 in P8[22];

(3)     Between 0:50 and 1:09 in P8, ie the time of changing to another escalator and walking on the flat landing, it did not make sense that the camera was all along directed towards the ceiling.  If the appellant was not aware that the video of the phone was on, then when he was changing to another escalator with the phone in his hand, it would not be necessary for him to be mindful of the direction that the camera of the phone was directed to and keep the camera of the phone in the same direction;

(4)     It was not a natural posture that the appellant moved his foot one stair forward on the escalator so that his leg was in a right angle, put the phone on his thigh and supported it with his hand;

(5)     The camera remained stable between 0:11 and 0:50 in P8. Even if the appellant really supported the phone with his hand so as to keep it on his thigh, had he not realised that the video of the phone was in operation, it would not have been necessary to keep the camera of the phone stable;

(6)     According to the appellant, he put his left foot one stair forward with the leg in a right angle for comfort, and the phone was just put on the thigh naturally.  Had this been the case, the appellant should not have turned over his phone until he moved into the stairs area of the escalator, whereas 0:02 in P8 showed that the appellant had already turned over the phone long before he entered the stairs area (ie the area of metallic blister tactile); and

(7)     The appellant’s explanation of why he looked towards the right when moving onto the escalator leading from 2/F to 3/F of Domain did not make sense.  The appellant said that he wished to look at the Christmas tree decorations downstairs in the mall.  The prosecutor in cross-examination asked him how he could look at those decorations while there was the escalator running in the opposite direction on his right.  He said in reply that he looked down through the gap between two escalators.  However, there was no gap at all between the two escalators according to what was shown by P3(6), camera no.15 of CCTV no.8.

34.The magistrate also had regard to the appellant’s deletion of the clip P8 upon C’s accusation, and found such act to be unreasonable because it would not only aggravate others’ misunderstanding on him, but he would also lose the chance of explaining himself on the spot as a result.[23]

35.Eventually, the magistrate held that the appellant had deliberately took upskirt video of C.  He said that the video clip supported C’s allegations.[24]

36.The magistrate has also held that the appellant took upskirt video of C as alleged was an act of a lewd, obscene and disgusting nature which outraged public decency.[25]

37.In the light of the above, the magistrate convicted the appellant.

Grounds of appeal against conviction

38.The appellant was represented by Mr Lawrence Law in his appeal against conviction[26], who on his behalf advanced the following grounds:

(1)     The magistrate was wrong in law to find the video clip P8 in the appellant’s mobile phone as admissible in the present case.

(2)     The magistrate was plainly wrong in his analysis of the evidence and findings of facts.

(3)     In the light of the above reasons, the conviction was unsafe and unsatisfactory.

Discussion

Ground of appeal (1)

Appellant’s submissions

39.The main line of Mr Law’s submissions was that the warrant P6 was invalid.  He initially relied on the judgment of the Court of First Instance in Sham Wing Kan^[27] to support his arguments, and after the handing down of the judgment by the Court of Appeal[28] in that case revised his points as follows.

40.The preamble and the authorization (which Mr Law called the “operative part”) of the warrant P6 contradicted each other.  The preamble of the warrant expressly stated that the “building or place” involved was 22/F Arsenal House, Police Headquarters, but the authorization in the warrant stated that the place which might be entered and if necessary broken into or forcibly entered was the memory card concerned.  Mr Law submitted that the warrant was incoherent, incomprehensible and irrational as a whole, in particular, since there was an inconsistency as between the preamble and the authorization, it should be found invalid.

41.Mr Law also submitted that where the warrant was invalid, it was wrong for the magistrate to admit the clip in question as evidence by his discretion as far as the present case was concerned.

42.Mr Law agreed that the magistrate was proper to adopt the three considerations[29]  raised in Muhammad Riaz Khan[30]  to test whether the clip in question should be admitted by discretion.  He also agreed with the magistrate’s conclusion on the first consideration, namely the admission of the evidence would be conducive to a fair trial, but he did not agree with his conclusions on the second and third considerations.

43.Mr Law submitted that the magistrate was wrong in finding the police had no lack of bona fide and respected the appellant’s right to privacy, especially when WDPC 11195’s evidence was highly suspicious.  Firstly, she and her colleague knew that applying for a search warrant in order to search information inside a seized mobile phone was a new practice which was previously unnecessary.  Although she knew there were some internal circulars about this new practice, she was not sure if she had read them before.  She said that she had read some documents but was not sure if they were the internal circulars issued by the Crime Wing Headquarters, which were marked as defence exhibits D1 to D3[31].  Mr Law pointed out that exhibits D1 to D3 did not mention of section 50(7), therefore if WDPC 11195 had read D1 to D3, she would definitely have suspected whether it was appropriate to apply for the said warrant pursuant to section 50(7).  Her testimony simply revealed that she had not read exhibits D1 to D3.  The magistrate also said that she did not make the application for the warrant with reference to D1 to D3.[32]

44.Mr Law submitted that WDPC 11195 had not read the judgment of the Court of First Instance in Sham Wing Kan[33], nor had she discussed that judgment with her superior or colleague(s) or read the relevant provisions in the Police Ordinance.  The only thing she did was making reference to the warrant(s) obtained by her colleague(s) and blindly copied the contents therefrom.  In so doing, she was not only careless but also purposefully turned a blind eye to what was required to obtain a valid and lawful warrant.  Such deliberate disregard and deliberate neglect indicated the lack of bone fide on the part of the police.

45.Mr Law further suggested that such practice of lack of bona fide should not be encouraged or promoted. If such practice is accepted, the police would just continue the wrong approach and attitude and repeat the same mistake in future, which would seem likely to encourage the police to repeat infringements of the right of privacy in future.

46.On the basis of the above, it was Mr Law’s submission that the magistrate’s conclusion on the second and third considerations[34] were wrong, and that he should not have admitted the video clip P8 as evidence by exercising his discretion.

Respondent’s submissions

47.Ms Mickey Fung, Senior Public Prosecutor, representing the respondent, indicated that the application for and the issuance of the warrant P6 was made under section 50(7) of the Police Force Ordinance, which was in line with the judgment of the Court of Appeal in Sham Wing Kan[35].

48.She pointed out that the appellant’s contention that the wording used in the warrant for being self-contradictory and the contents of the preamble and the authorization not totally consistent, which rendered the warrant invalid, was an argument that in fact had already been advanced at trial[36].

49.The prosecution had already responded back at that stage[37]: The preamble treated the Police Headquarters as a place where there was a memory card, which might give value to the investigation; whereas the authorization empowered the police to search a memory card which was considered as a place.  There was nothing inconsistent.  Further, the preamble only identified the background of the authorization.  The warrant would not be rendered invalid even if there was inconsistency between the preamble and the authorization.

50.She also submitted that the magistrate’s findings were correct.  Although the wording in the preamble and the authorization were not the same, the overall content of the warrant was clear, namely the police were making an application to the court for searching the content of the memory card, which was unambiguous, and even more so, it was not, as alleged by the defence, incoherent unless guesswork was undertaken. [38]

51.The main line of the respondent’s submissions was that the warrant was clear and valid, and the magistrate was therefore not required to consider the exercise of discretion.

52.On the other hand, the respondent has also made an alternative submission in case that it was necessary to consider the issue of exercising the discretion.  Ms Fung pointed out that the magistrate had considered, on the assumption that the warrant was invalid, whether the video clip seized was still admissible without a valid warrant.  He considered the test[39] in Muhammad Riaz Khan[40] and admitted the video clip[41].

53.Ms Fung indicated that the appellant complained against the police constable’s attitude as problematic and, further, against the police for lack of bona fide with what they did, and such contentions had already been canvassed before the magistrate at trial[42] and were just repeated here in the appeal.

54.At trial, the prosecution had already submitted the following[43]:

(1)     The memory card had been lawfully seized and retained by the police;

(2)     By applying for the warrant, the police showed they had no bad intention;

(3)     In fact, the police had made one previous application for a warrant[44]. However, the first warrant was found to be defective, and an application was therefore made again, and P6 was obtained, showing the good intention on the part of the police;

(4)     The warrant was granted by a magistrate;

(5)     Holding the warrant invalid because of inconsistency in the content would be a highly technical issue;

(6)     Admission of the video clip in the present case would not encourage repeated infringements of the right in future.

55.The respondent agreed and adopted the prosecution’s submissions at trial as stated above, and made further submissions in support of the magistrate’s decision that he could exercise the discretion.

Discussion on this issue

56.The Court of Appeal held inSham Wing Kan[45] that a magistrate had the power to issue a warrant under section 50(7) of the Magistrates Ordinance to authorize a search of a mobile phone or other electronic device and the contents stored therein.[46]

57.The Court of Appeal has also stated clearly that the contents of a mobile phone involved the right to privacy[47] which was essential and called for protection[48].  The Court of Appeal at the same time also noted that the safeguard measures of mobile phones may cause difficulties to investigators in collecting evidence.  A balance has to be struck between the individual’s right to privacy and the public interest in criminal investigation in respect of the collection of evidence and authorization measures.

58.The Court of Appeal stated in Philip Wong v ICAC (No 2)[49] : a warrant must clearly identify the place to be searched and the articles which are sought and also the offence in respect of which the warrant is issued. ^[50]

59.These requirements are particularly significant to the protection of the right to privacy, which was essential.

60.Warrant P6 has set out the matters laid down in Philip Wong. However, Mr Law criticised that the content of the warrant was self-contradictory, although he accepted there was no problem with the particulars specified in the authorization of the warrant, the place referred to in the preamble should be also the mobile phone / memory card / the digital content of the mobile phone instead of Arsenal House.

61.In Sham Wing Kan[51], the Court of Appeal had the following observations[52]:

(1)     The warrant may state the search of a mobile phone as a place; and

(2)     The electronic data and files contained in the mobile phone may be regarded as document referred to under the Ordinance.

62.The information set out in the warrant in question is roughly as follows:

(1)     Preamble

The police constable has reasonable suspicion that at a specified location in the Police Headquarters there was a memory card which was related to the investigation of the crime in question; and

(2)     Authorization

The magistrate permits the police constable to have entry to the said memory card for the search of the following matters:

(a)     videos; and

(b)     digital content within photo albums, trashes and apps.

63.The Court of Appeal had not yet handed down its judgment when the application for the warrant was made and granted, which was only about one month after the delivery of the judgment by the Court of First Instance[53]. In my opinion, the frontline police officers might not have fully understood the relevant requirements in the judgments.  They appeared to have done their best and cannot be critically condemned. There may be room for improvement in the presentation of the content of the warrant, but the subject and scope of the search permitted are clear and specific.  I accept the situation was not so bad that the warrant in question was rendered invalid or ineffective.

64.I do not think the criticisms against the police or the constable who applied for the warrant, in particular the lack of bona fide and failure in respecting privacy, have been established.  The fact that the police had applied for a warrant before proceeding to the search demonstrated their respect to law and the right concerned, in particular that upon finding the memory card in question might not be covered by the first warrant[54], a further application was immediately made and P6 was obtained.  It is hard to say that the officer concerned dealt with the matter in a way and attitude lacking bona fide, and it is also hard to say that the privacy of the person under investigation was not respected or that it was dealt with in a way not reconcilable to the respect due to such right.

65.All in all, in my view, the point that the warrant in question was invalid is not established.

66.Having said that, for completeness, I have also considered whether the magistrate was wrong to admit the evidence in question on the assumption that the warrant should be found invalid or void and it became necessary to consider the admission of such evidence by discretion.

67.Both parties had no dispute on the relevant considerations, which are as described in paragraph 24 above, and Mr Law also accepted that the first condition was met.

68.From the evidence in the case, I find it difficult to agree with Mr Law’s submission that the police / police constable had failed to respect the right to privacy.

69.The assumption that P6 was invalid was only a technical issue for consideration.  It is my judgment that in view of the overall circumstances in the present case, it appears to be unlikely that admitting the video would encourage any future infringements of the right concerned.

70.I find that the magistrate was not wrong to exercise his discretion to admit the evidence.

Ground of appeal (2)

71.This ground of appeal is related to the magistrate’s findings of facts.

72.Mr Law submitted in respect of some of the magistrate’s observations in paragraph 33 above:

(1)     In respect of the observations in paragraph 33(1)[55], Mr Law said that at that time although C did not say anything, she was angrily staring at the appellant and the phone in his hand, under such circumstances, the appellant said, “No,” which was a reasonable response after realising the other side’s suspicion on him for taking images of her with the mobile phone;

(2)     In respect of the observations in paragraph 33(2)[56], Mr Law submitted that the appellant’s response “Huh”[57] reflected he was puzzled, and that he immediately turned over the phone just to check if the video mode had been activated[58], which did make sense;

(3)     In respect of the observations in paragraph 33(3)[59], Mr Law submitted that even though the camera of the mobile phone was directed towards the ceiling while the appellant was changing to another escalator, it did not mean that he was mindful of the direction of the camera, and he might just be holding the phone casually without realising that its video was in operation;

(4)     In respect of the observations in paragraph 33(4) and (5)[60], Mr Law submitted that the way in which the appellant had put the phone on his thigh was not only acceptable, and there was also no evidence to show that he did so to stabilize the camera;

(5)     In respect of the observations in paragraph 33(6)[61], Mr Law submitted that the magistrate had overlooked the following possibility: the appellant was holding the phone in his left hand before getting onto the escalator, which therefore captured the metallic bristles on the floor, and the phone was put on the thigh only after he had moved onto the escalator;

(6)     In respect of the observations in paragraph 33(7)[62], Mr Law submitted that the magistrate had misunderstood the appellant’s testimony, in that the appellant was saying that there was a gap beside the escalator when he was looking down to the right, and he did not mean the gap between two escalators.[63]

73.As to the reasons for which the appellant deleted the clip[64], Mr Law criticised the magistrate for failing to give sufficient consideration to the appellant’s explanations:

(1)     He did so in order to pacify C who was then very agitated[65];

(2)     He was then too nervous and confused without thinking carefully[66];

(3)     He had not viewed the clip but then thought that he knew the clip was not what he wished to record and hence deleted it[67]; and

(4)     It was his purpose to resolve the misunderstandings as soon as possible[68].

74.Mr Law submitted that since the magistrate had not sufficiently considered the above matters, he was not satisfied with the appellant’s explanations, and he was also wrong even to infer that the appellant was aware that his mobile phone was making video recordings.  In any event, such conclusion was not the only reasonable inference supported by the evidence.

75.Mr Law also submitted on some observations based on which the magistrate found the appellant had deliberately made the video recording, and he asserted:

(1)     Even though the camera was stably directed at the lower part of C’s dress, it could not refute the appellant’s explanation that he did not know the video mode of the mobile phone had been activated or that he had by mistake activated the video function, and he had already explained his acts and movements;

(2)     It can be seen that at 0:03 in P8, when the escalator was elevating, the camera moved slightly, which might be caused by the appellant inadvertently, showing that the appellant was not necessarily directing the camera at the lower part of C’s dress deliberately;

(3)     The magistrate said that the camera was initially directed to the ceiling but quickly focused at the lower part of C’s dress, showing that the appellant had got ready to make recording and would start to do so whenever the chance came.  Mr Law submitted that such finding overlooked the possibility that the appellant was just holding the phone casually;

(4)     In any event, the magistrate was unreasonable in rejecting the appellant’s explanations.  There was no evidential basis for him to find the appellant had deliberately taken video recordings with the mobile phone, and it was not the only reasonable inference supported by the evidence.

76.In respect of the appellant’s spontaneous response on the spot, the magistrate listened to the appellant’s testimony and defence counsel of the trial also addressed the point in his submission[69], the magistrate must have considered it before making his judgment[70], which was not unreasonable. 

77.While the appellant was changing to another escalator, the camera of the phone in his hand was facing up to the ceiling, which is, generally speaking, not a natural way of holding a mobile phone.  The magistrate’s observation was not surprising and hard to said to be wrong.

78.While the mobile phone was placed on the thigh in the way described, the camera was relatively stable.  I accept the magistrate’s relevant observations and the conclusion drawn therefrom, and there is no significant problem as I can see.

79.As to the observation referred to in paragraph 33(7) above, I agree that the magistrate’s presentation reflected his misunderstanding of the evidence in this regard.  I have carefully assessed how much it affected the soundness of his judgment in this respect.  Apparently, the weight given to each observation would not be the same.  Irrespective of the perspective from which the weight accorded to other observations is assessed, those other observations are much more important than this one. Therefore, I do not think that the circumstances are sufficient to affect the soundness of the magistrate’s judgment in this regard.  

80.It is hard to say that the magistrate’s view on the appellant’s deletion of the clip[71] is wrong.  He was not satisfied with the appellant’s explanations, which was not unsound.  His reasons are also convincing.

81.Whether a witness is honest and trustworthy is within the assessment of the trial magistrate.  The appellate court relies only on the written record while the trial magistrate enjoys the advantage of having seen and heard the witnesses giving evidence.  Therefore, unless the trial magistrate is unreasonable or illogical in his decision, or there is an inherent improbability in the evidence, or the trial magistrate, in dealing with the evidence, misquoted, omitted, failed to consider or analyse material matters, the appellate court would be slow to interfere with such findings.[72]

82.I am of the view that the magistrate was reasonable in being not satisfied with the appellant’s exculpatory testimony.  The appellant has failed to put forward sufficient justification to persuade me to interfere with it.

83.The magistrate eventually held that the appellant had deliberately taken upskirt video of C.  I have gone through the overall evidence in detail and watched the video clip in question.  I agree that it is the only reasonable inference supported by the overall evidence.

84.In the case of HKSAR v Ip Chin Kei[73], McWalters J[74]  summarized some legal principles in dealing with magistrates’ appeals, which included the following:

(1)     The appellate court will only depart from the magistrate’s finding of fact and assessment of a witness’s credibility where the trial magistrate’s finding of fact is plainly wrong;

(2)     The test in deciding whether the trial magistrate has erred so that an appeal should be allowed is whether it is just for the conviction to be quashed;

(3)     Notwithstanding the absence of any error by the trial magistrate, the appellate court must still perform the statutory requirement of conducting a rehearing.  The appellate court is therefore required to closely examine whether on the evidence adduced, the charge is proved beyond reasonable doubt, failing which the appeal should be allowed.

85.I have given thorough consideration according to the principles above and come to the conclusion that the magistrate’s judgment is safe, satisfactory and well justified with evidence. The arguments advanced by Mr Law were raised at trial basically.  The magistrate must have noted them and had in fact given an account on how he analysed and dealt with the circumstances revealed by the evidence concerned.  In my view, save some irrelevant points, there was no mistake in how the magistrate analysed and dealt with the matter.  The appellant has failed to put forward sufficient justifications for me to find that I should interfere with or overturn the conviction.

Ground of appeal (3)

86.This is a catch-all ground. Based on the reasons I have given, the first and second grounds of appeal are not established.  As I have said, the conviction made by the magistrate is satisfactory and well justified with evidence.  It is not unsafe, and there is no reason for intervention or for it to be overturned.

87.Therefore, the appeal against conviction is dismissed and the conviction is affirmed.

Appeal against sentence

88.The magistrate indicated that he had considered the following matters:

(1)     the nature and circumstances of the case;

(2)     the appellant’s personal background; and

(3)     relevant precedents, including Secretary for Justice v Chong Yao Long Kevin[75].

89.The magistrate also pointed out:

“I consider the act of upskirting very serious. This is because such conduct causes the victim distress and is regarded by the public as disgusting. In my view, the defendant in this case deleted the video clip only because his conduct had been discovered by C. Otherwise, it could have been kept by him permanently, exchanged, published, sold as commodities, or even used to threaten the victim, thereby the victim could be subjected to harassment over a long period of time. The defendant’s conduct is an affront to the dignity of the female victim. In addition, the defendant, being a law enforcement officer, knowingly breached the law. I do not think that community service order is an appropriate option, and Chong Yao Long Kevin should be followed. I can neither see any reason or special ground sufficient to convince me to suspend the term of imprisonment.”[76]

90.The appellant, acting in person in the appeal against sentence, advanced the following grounds in support:

(1)     Good background

After his graduation from secondary school in 1989, he joined the government and worked as a civil servant.  He joined the police force in 1992, and since then has been a police officer for over thirty years. He is now a sergeant.  He has been commended by his superiors many times during his service in the police force.  He has all along abided by the law and never committed any criminal offence, nor has he done or said anything which insulted or caused distress to any female.

(2)     Voluntary community services

Since 2008, the defendant has committed to voluntary services at his leisure for an average of 200 hours every year and has been given the Gold Award for volunteer service by the Social Welfare Department.

(3)     Potential dismissal and loss of pension

The defendant has immediately been suspended from duty since the day of the offence and suspended from receiving remunerations upon conviction, and hence he is subject to huge financial pressure.  After the conclusion of the case, he has to undergo a disciplinary hearing and face dismissal and loss of pension and retirement benefits.

(4)     Mental distress

During this period of almost three years, the defendant has been under tremendous pressure.  The incident has caused him grave distress and as a result, he has to attend the hospital regularly for psychiatric treatment, and every day he needs to rely on psychiatric medication to control his mental condition and insomnia problem.

(5)     Wife in poor mental health

His wife has suffered from depression for many years and greatly needs the defendant’s companion.  If he is sent to jail, her health condition would be affected, which would cause extreme hardship to his family.

(6)     Precedents of lenient sentence

Information from the internet reveals that in quite a number of similar cases in which the defendants were convicted after trial, the sentence was generally a short term of imprisonment, in particular that the court might treat first offenders with discretion and community service order was also not impossible.

(7)     Remorse

Having gone through the present case, he is deeply remorseful.  He has to face unemployment and loss of a substantial amount of pension and retirement benefits, and the distress caused by pressure and stress has already punished him heavily.  He has learnt a painful lesson from the case and would avoid the happening of anything similar again.

91.What the appellant has put forward in the appeal has all been noted and considered by the magistrate.  The magistrate stated that what he had considered was what he should take into account.  

92.The Court of Appeal has in Chong Yao Long Kevin[77] given the following observations in respect of the sentence in cases of taking upskirt image:

“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.”[78]

93.It is hard to say that the magistrate was wrong to impose an immediate custodial sentence on the appellant. The case is considerably serious, and in addition, the appellant fails to show sufficient genuine remorse[79].  The magistrate is correct in not making a community service order.  There is neither any special circumstances in the case which justifies the magistrate’s consideration of suspending the execution of a proper order of imprisonment.

94.In respect of the term of sentence, in this type of offence, the circumstances of the present case are general in seriousness but cannot be disregarded.  Being a police officer, the defendant committed the crime knowingly.[80]

95.Undoubtedly, the possible consequence upon the appellant’s conviction in the present case is serious, in that he may lose the benefits accumulated over his long term service in the police force.

96.The court has to give regard to such circumstances in sentencing[81]. However, whether the sentence should be mitigated would totally depend on the overall circumstances in each individual case, and what weight should be given is a matter for the magistrate's discretion[82], and this factor cannot be accorded with too much weight in general.[83]

97.It was not out of momentary impulsiveness or misjudgment that the appellant committed this offence, and he deserves to be punished.

98.In all the circumstances, the offence which the appellant has committed is not extremely serious, and it is not related to his duties, theft of what has been entrusted or breach of trust, nevertheless, the term imposed by the magistrate is in line with the sentence in general in this type of cases.  The sentence does not appear to have been enhanced for the reason of the police identity of the appellant.  The magistrate must have noted that the appellant would possibly lose the job and pension upon conviction, which have been raised by defence counsel in the mitigation submission for the appellant[84].  There is no sign that the magistrate has failed to pay regard to the circumstances, and it has been considered in the sentence.

99.The sentence imposed by the magistrate conforms with the precedents and goes in line with the seriousness of the circumstances of the case.  The sentence is neither wrong in principle nor manifestly excessive.

100.The appeal against sentence lacks merit, and is therefore dismissed, and the sentence of two months’ imprisonment is upheld.

Miss Mickey Fung, Senior Public Prosecutor of Department of Justice, for the respondent

Mr Lawrence Law instructed by Lau, Chan &Ko for the appellant (in appeal against conviction)

The appellant unpresented, acted in person (in appeal against sentence)

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.