HKSAR v. Lo Hoi Chi

[English Translation – 英譯本]

HCMA 524/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. HCMA 524 OF 2007

(ON APPEAL FROM KCCC 1228 OF 2007)

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BETWEEN

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Before: Deputy High Court Judge Pang in Court

Date of Hearing: 16 November 2007

Date of Judgment: 7 December 2007

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JUDGMENT

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1.The appellant pleaded guilty to one count of “doing an act outraging public decency”, contrary to common law, and was sentenced to 14 days’ imprisonment.  He now appeals against sentence.

FACTS

2.The facts as agreed by the appellant were written in English.  A translated summary of those facts, which was prepared by the magistrate, is set out below:

The facts show that, at sometime after 5 p.m. on 9 February 2007, the defendant, using the video recording function of his mobile phone, took an upskirt video of a female who was watching street performances outside Ocean Centre in Tsimshatsui.  The female victim was unaware of the defendant’s act, but a righteous citizen intervened.  Knowing that his act had been exposed, the defendant immediately left the scene and kept operating the keys on his mobile phone along the way.   The police eventually arrested the defendant inside Ocean Centre but the defendant had already deleted the images from his mobile phone.  The female who was videotaped by the defendant was also nowhere to be found.

WRITTEN VERDICT OF THE MAGISTRATE

3.The magistrate’s reasons for verdict are set out below:

The mobile phone is a very common communication tool in the Hong Kong society, with virtually every person possessing a mobile phone.  And with technological development, most of the mobile phones available nowadays are equipped with video recording function.  This type of cases is also becoming increasingly prevalent.  Whilst technological advancement does make life more convenient and enjoyable, the misuse of such technology by irresponsible users will bring harm to a lot of people.  In my view, the defendant’s conduct is a good example of the irresponsible misuse of technology.

It is true that this sort of conduct causes no tangible damage to the victims, but if it is left unchecked, female citizens will have worries whenever they go out and will become very cautious about the way they dress, their demeanour and behaviour in public places.  This is unfair to the females and will affect social harmony.  Furthermore, in my view, the defendant’s conduct hurts the dignity of the females in virtually the same way as indecent assault does.  Hence, the sentence should focus on the deterrent effect and convey the message to the public that this sort of conduct is tolerated neither by the society nor by the court.

The offence of indecent assault in a public place normally attracts a sentence of 14 days’ imprisonment.  Having also taken into account the sentence imposed by Nguyen J in Yu King Man MA 808/04, I come to the view that a reasonable sentence upon a guilty plea should be imprisonment for 14 days.

I have also considered the mitigating factors put forward by counsel for the defendant.  The defendant is aged 34 and has a decent job and a clear record.  However, in view of the major considerations in the sentencing of these cases and the special circumstances of this case, the defendant’s clear record will have no bearing on the sentence I am going to pass. 

I have also considered the possibility of passing a suspended sentence.  Although a suspended sentence is not to be regarded as a lesser sentence at law, in reality a suspended sentence will diminish the power of punishment in my view and less clearly convey the intended message to the public.  I therefore decided not to suspend the sentence.

Grounds of appeal

4.The appellant has put forward four grounds of appeal before me.

5.Ground 1 states that the magistrate failed to adequately consider the appellant’s background and other mitigating factors.

6.Put it simply, the personal background and other mitigating factors being referred to include: his long service in a company, commendations from his employer and colleagues, his contributing most of his income towards family expenses, his readiness to participate in charitable and voluntary work, his commission of this offence is out of character, and the likelihood of his reoffending is low, etc.

7.Ground 2 states that, in view of the aforesaid circumstances, the magistrate should have obtained various reports in respect of the appellant before sentencing, including suitability reports such as a probation report and a community service report.  The magistrate erred in not doing so.

8.Ground 3 further states that the magistrate failed to adequately consider the relatively minor nature of the case, for example, the victim was totally unaware of the incident and did not have to give evidence, and the secretly obtained video recording had been deleted, etc.

9.Finally, the appellant submits that, for the above reasons, the sentencing in this case is wrong in principle and manifestly excessive.  This is his Ground 4.

ANALYSIS

10.I disagree with most of the grounds put forward by the appellant.

11.In my view, the defendant’s conduct, although on the face of it the damage was minor, the actual influence was baneful.

12.As far as the victim is concerned, although she was not subject to any unwanted physical contact, the defendant’s conduct amounted to a serious violation of privacy, and the obscenity and sense of humiliation such conduct entailed are definitely no less than that of an “indecent assault”.  This is the first point.

13.If there are precedent cases in which the gravity of the offence was determined by reference to whether the secret filming was successful (e.g. whether upskirt images were captured), whether the victim had knowledge of the offence, the number of photos, the length of the video footage and whether the images had been deleted etc, then these factors are in my view too arbitrary, because the outcome shall vary according to the defendant’s level of skill in committing the crime and the coincidental combination of various matters.  This is the second point.

14.On the contrary, secret filming only requires simple tools which can be done by almost everyone young or old who is carrying a mobile phone without necessarily alarming the victims.  If the secret filming is successful, the footage can be kept permanently, exchanged and circulated, or even traded as commodities, thereby seriously affecting social morality.  This is the third point and also the most disastrous of this type of offence.

15.As to the other adverse effects mentioned by the magistrate, they need no further elaboration.

16.To sum up, I am of the view that, in respect of this offence, an immediate custodial sentence of 14 days can be imposed on a first offender.  This is neither wrong in principle nor manifestly excessive.

17.Nevertheless, I note that the appellant in this case has a good background and since 1988 has regularly participated in programmes organized by certain voluntary institutions and therefore has contributed to our society to a certain extent.  I therefore exercise my discretion to impose a community service order on him after obtaining relevant reports instead of sending him to suffer in jail.

18.I must stress that my decision above should not be taken as a precedent for sentencing a first offender.  The fact that the defendant is a first offender does not by itself preclude the imposition of an immediate custodial sentence.

JUDGMENT

19.The appellant’s appeal is allowed.  The sentence of 14 days’ imprisonment is set aside and replaced by an order requiring the appellant to perform community service for 120 hours.

Ms Rosaline Leung, Senior Government Counsel, for the HKSAR

Mr. Tony Li, instructed by Anthony Ho & Co, for the defendant

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.