HKSAR v. Nagashima Katsuki

HCMA691/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 691 OF 2005

(ON APPEAL FROM KCCC 3976 OF 2005)

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BETWEEN

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Before : Hon McMahon J in Court

Dates of Hearing : 15 and 22 November 2005

Date of Judgment : 6 December 2005

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J U D G M E N T

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1.The appellant was convicted on his own plea of disorderly conduct, contrary to section 17B(2) of the Public Order Ordinance, Cap.245.  He was sentenced to 14 days’ imprisonment and appeals against that sentence on the ground that it is manifestly excessive.

2.The facts of the case were that the appellant was seen by staff of a music store in Tsim Sha Tsui placing his digital camera in a position under the skirt of a female customer.  He did this on two occasions.  On each occasion he had firstly put his camera in a black carry bag which he had then pushed towards the feet of the customer.  His actions were noticed on the store’s CCTV.  A security guard then intercepted the appellant and subsequently police were called.  In the appellant’s digital camera were found two photographs of the outside of the victim’s clothing. 

3.In sentencing, the magistrate relied on comments made by Nguyen J in HKSAR v. Yu King Man, HCMA808/2004, a case factually similar to the present case.  Nguyen J said :

“… 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 women dress 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 the like minds from even contemplating committing such offences.”

4.The sentence imposed in that case was also 14 days’ imprisonment.  The magistrate then went on to say :

“It had been argued before me that the present offence differed from the case of indecent assault in a public place in that the victim in the instant case were not physically violated.  I beg to disagree: that the victim was blissfully ignorant of the violation to her dignity did not render such crime more acceptable.  The absence of physical contact the physical assault did not necessarily mean that the victim suffered less.

The present case occurred in a popular music store in Tsim Sha Tsui.  It was a public place frequented by young women and men.  The defendant appeared to be well-equipped.  In this perverted exercise instead of using the camera function of a mobile phone, he brought a digital camera and a nylon bag to hid it.  He had made repeated attempts to take photographs up the skirt of the female victim. …”

5.For those reasons and in particular the comments in Nguyen J’s judgment, the magistrate decided that nothing other than a deterrent sentence was appropriate, nor did he see any factor in the case which would justify the suspension of the sentence of 14 days’ imprisonment.  

6.Mr Ching Y. Wong, SC, for the appellant, argues before me that the magistrate was wrong to regard the circumstances of this case as being “on all fours” with those of Yu King Man.  In that case, the offender had pointed his mobile phone camera up the skirt of a sleeping passenger on a public bus.  Mr Wong says that the facts in Yu King Man were tantamount to an indecent assault and justified the sentence of 14 days’ imprisonment imposed in that case, but that the facts of the present case were not so serious.  There is some force to Mr Wong’s argument.  In Yu King Man, the victim became aware of the activity of the offender and became alarmed.  In the present case, that did not happen.  Further in the present case the appellant was not successful in his endeavours.  The photographs he obtained were of the outside clothing of the victim only.  That leads on to a somewhat more important complaint by Mr Wong.  He points out that the magistrate sentenced the appellant on the basis that he had in fact obtained photographs of the inside of the victim’s clothing.  That is because the brief facts the appellant agreed were wrongly worded and suggested that was so.  In reality, the appellant’s photographs were innocuous and he was sentenced on a misapprehension of the facts through no fault of the magistrate.  It is that mispresentation of facts to the magistrate which is in my view fundamental to this appeal.  Because of that I think it appropriate to approach sentence afresh.

7.In Yu King Man, Nguyen J was at pains to emphasise that the guidance offered in that case was not to be considered a tariff.  That must be so.  Whilst many cases of this sort share similar facts the offenders often differ widely in their personal circumstances.  In a category of case such as this there is often little to separate cases appropriate for a “clang of the prison gate’s” sentence from those where an offender can be more leniently or differently dealt with.  A sentencing court must retain a reasonable degree of flexibility in its approach to these offences.

8.In the present case, the appellant is a person of clear record.  He is a family man who is employed in a responsible position.  He had pleaded guilty at the first opportunity and admitted his offence at the point of time when he was first challenged.  He has spared the victim from giving evidence.  The photographs he took were immediately recovered and caused the victim no real embarrassment.  There is no chance that they could go into the public domain or that the victim need fear others may gain access to them.  As I say, in any event, they are innocuous. 

9.In my judgment, in the particular circumstances of this case, other options than an immediate custodial sentence can be considered.  I regard enforced community service as another option suitable to the circumstances of this case.  I am satisfied the appellant fulfils the criteria in R. v. Brown [1981] 3 CrAppR (S) 294, subject to my having some concern as to whether the appellant can be demonstrated to present no more than a slight risk of re-offending (that is, the 5^th Brown criteria), but in the absence of anything to suggest otherwise, I am prepared to give the appellant the benefit of the doubt in this regard.

10.A report has been provided by a probation officer as to the appellant’s suitability for community service.  He has been found to be suitable.  A period of 140-180 hours of service has been recommended, but I think that a little high. 

11.In my view 120 hours is appropriate to the facts of the case. 

12.The appellant’s obligations under such an order and other matters pertaining to the order have been explained to him.  He consents to the making of such an order.

13.Accordingly the appeal is allowed to the extent the sentence of 14 days’ imprisonment is set aside and substituted with an order that the appellant serve 120 hours of community service within the next 12 months in accordance with the requirements of the Community Service Orders Ordinance, Cap.378.

Mr Frederick Chung, SGC of Department of Justice, for HKSAR

Mr Ching Y. Wong, SC and Mr Raymond Yu, instructed by Messrs M.L. Tam & Co., for the Appellant