HKSAR v. Yu King Man

HCMA808/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.808 OF 2004

(ON APPEAL FROM ESCC1767 OF 2004)

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BETWEEN

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Before: Hon Nguyen J in Court

Date of Hearing: 6 October 2004

Date of Judgment: 6 October 2004

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J U D G M E N T

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1.The appellant pleaded guilty to the charge of disorderly conduct in a public place.  The particulars are that on 29 January this year, on board a bus, he behaved in a disorderly manner with intent to provoke a breach of the peace.  He had a clear record and was gainfully employed as a graphic designer and he is a married man.  After hearing mitigation, the learned magistrate Ms Livesey imposed a term of two weeks’ imprisonment.  He now appeals against the sentence. 

2.The facts of the case are that the victim was travelling on board a bus and she was seated on one of the seats in the bus.  She had a short nap.  When she awoke she found that the appellant who had previously been seated in another seat had changed seats so that he was directly opposite her across the aisle.  This was even though the bus by then was almost empty.  She found this to be unusual, but paid no further attention and took another nap.  Once she awoke again she saw that the appellant was sitting on the edge of his seat with his body leaning towards her and he was pointing the lens of his mobile phone up her skirt.  She asked him what he was doing, but only got an apology.  When the victim and the appellant got off the bus at the terminus the victim asked the appellant to let her check his mobile phone, which he did.  The victim did not find any photographs of her or her skirt in the appellant’s phone.  She nevertheless called the police and the appellant was arrested.  A subsequent search by the police of the appellant’s premises revealed no unusual photographs. 

3.Mr Kwan who appears for the appellant submits that the magistrate was not in a position to say that the offence was becoming prevalent because no figures were quoted to her or by her.  He also submits that the sentence was manifestly excessive and wrong in principle. 

4.The learned magistrate said that this was a very prevalent offence and was becoming even more prevalent.  She said the offence was akin to an offence of indecent assault on public transport where immediate terms of imprisonment are imposed.  She says :

“… There is not the immediate touching, but in some respects it is more serious as the perpetrator can have a permanent record of the private parts of the victim, which can then be distributed.  There is no evidence at all that the Appellant intended to distribute any pictures if he had been successful but he would have had a permanent record.  If such had been capable of being proved then the sentence imposed would have been substantially greater than the two weeks that I imposed.”

5.I agree with those comments by the magistrate.  This is an offence that is becoming more prevalent. 

6.Mr Pang appearing for the respondent informs me that from January to August this year, 41 such cases were reported to the police.  Of those cases, four suspects were not located and consequently 37 defendants were charged by the police.  They were charged with either loitering causing concern or disorderly conduct in a public place.  Unfortunately no figures of these cases were kept by the police in the preceding years of 2003 and 2002, probably because in those years mobile telephones equipped with cameras were either non-existent or not very popular.  For there to be 41 cases reported to the police within eight months is, to my mind, a fact which suggests that the offence is becoming prevalent.  

7.This offence of surreptitiously using one’s mobile telephone equipped with an inbuilt camera to take photographs of secret parts of a woman’s anatomy was born of modern technology.  In the old days it would have been inconceivable that one could have a telephone conversation while walking about in the streets.  It is now an accepted part of life and it has also advanced to such equipment having an inbuilt camera and with some models, even equipment to take short moving pictures.  Under the guise of talking on or using a mobile telephone some persons have been stealthily taking photographs of other people.  Even if it were a normal photograph of a person, arguably it could be an invasion of that person’s privacy as the person concerned may not wish to have his or her photograph taken by a stranger.  It becomes much worse when the photograph is of the private and secret parts of a person’s anatomy, such as the legs or thighs of a woman.  It then becomes a serious invasion of the other person’s privacy and also, as the Court of Appeal put it in the case of “Attorney General v. Wai Yan Shun” [1991] 2 HKLR 209 “an affront to the dignity of the female victim”.  It could also, in my view, cause unfathomable mental harm and distress to the victim if she becomes aware that such private photographs were taken.  It may cause paranoia in certain victims when they take escalators, walk up staircases or even when they are just taking a ride in a public bus or a train.  It may affect how a victimized woman dresses after such an experience; it may affect their future relations with friends and colleagues of the opposite sex.  It is in my view a repulsive and repugnant offence which calls for strong sentences to deter other people of like minds from even contemplating committing such offences.

8.The learned magistrate did not quote any figures nor were any figures quoted to her by the prosecution.  However, it is implicit from what she said that she had judicial knowledge of the fact that the offence was becoming more prevalent.  Indeed, if I may say so, even to the average layman, he is aware that these offences are becoming more prevalent and there is a disturbing upward trend.  A stop must be put to this trend and a clear message must be sent out that any person committing such an offence is facing the danger of immediate imprisonment.

9.I am not purporting to lay down any guidelines.  As Mr Kwan has pointed out, guidelines are for the Court of Appeal to issue.  However this judgment should be some sort of guidance for magistrates in the future when they are dealing with such cases. 

10.The appeal against sentence is dismissed.

Mr Norton Pang, GC of Department of Justice, for HKSAR

Mr T.L. Kwan, instructed by Messrs Chan & Associates, for the Appellant