HKSAR v. Choy Siu Pang

HCMA 65/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 65 OF 2009

(ON APPEAL FROM KTCC 3099/2008)

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BETWEEN

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Before: Deputy High Court Judge Mackintosh in Court

Date of Hearing: 12 August 2009

Date of Judgment: 12 August 2009

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J U D G M E N T

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1.The appellant was convicted after trial by Ms L. K. Loh, of an offence of committing an act out raging public decency by using a mobile telephone with a video facility to take a video clip up the skirt of a female on an escalator at the Mongkok MTR station. He was ordered to perform 120 hours of community service. This appeal is against his conviction.

2.The prosecution case was based on the evidence of PW1, a police officer on observation duties at the station. Two other officers gave evidence that add little in the context of this appeal. There were some admitted facts to which I will refer in a moment. The appellant, who was a man of clear record, elected not to testify.

3.The magistrate found these facts. Firstly, that PW1 was on duty at the MTR station on the afternoon of 14 May 2008. He saw the appellant loitering in the concourse and then suddenly make his way at a brisk pace towards the escalator leading to exit B3. There were two females standing side-by-side on the escalator and the appellant positioned himself one step below them. The female on the right was wearing a yellow top and a short skirt. It is an admitted fact that she was a lady by the name of Siu Wai-kwan. The officer followed the appellant onto the escalator and positioned himself one step below him.

4.PW1 said that he saw the appellant hold a mobile phone in his right hand which he placed under the skirt of Ms Siu, about 2 inches below the hem. When they reached the upper landing, the two females moved forward and the appellant followed. He lifted the phone to head height. Shortly thereafter, PW1 intercepted the appellant and the two females and seized the phone.

5.It is an admitted fact that recorded on the phone was a video clip depicting the underneath of Ms Siu’s skirt, showing her legs and underclothing. This video clip lasted for 19 seconds in all, including some pictures of the faces of the females taken on the upper landing.

6.Of course, Ms Siu and the appellant were strangers and, as is admitted, she felt afraid and disgusted when she was shown the video clip. The appellant was arrested and cautioned by PWl. It was alleged (and the magistrate found as a fact) that he responded by saying: “Out of momentary impulse I took video underneath the girl’s skirt. I would like to say sorry to the girl”.

7.There was no objection to the admissibility of this confession. The case put, and denied, was that it was never said. In the prosecution’s hands, this remained a purely verbal confession; in cross-examination of PWl, and to extent with another officer who was involved later, PW2, it was alleged that the confession was reduced to writing in the officer’s pocket notebook and that the appellant, having initially refused to sign, was eventually induced to sign. Again this was denied and no evidence was advanced to contradict these denials. The magistrate found that the answer was given voluntarily.

8.The defence advanced by the appellant at trial was that the video of the underside of the female skirt was or might have been taken accidentally. This was a proposition which was considered and rejected by the magistrate who found that the appellant’s actions, as described by the officer, were inconsistent with accident and only consistent with a deliberate act. In particular, she pointed to the description of the appellant’s hand holding the mobile phone being held out in front of him at a downward angle, some distance from his body, 2 inches below the hem of the skirt for a significant period of time. She was also satisfied from the length of the video and its contents that it could not have been taken accidentally. She found that the officer’s description of events was supported by the video itself.

9.The amended perfected grounds of appeal raised two grounds. The first is that the magistrate erred in finding the appellant’s behaviour was deliberate and that the possibility of accident could not be excluded. Of course, if the acts of the appellant might have been accidental, he would not be guilty of any offence. The prosecution had to prove that he deliberately photographed under the female’s skirt. It was not in issue that if that were properly proved, then the ingredients of the offence with which he was charged would have been made out.

10.The second ground of appeal is that the magistrate interrupted the cross-examination of PWl in a manner which prevented and/or hindered cross-examination on the appellant’s behalf by Mr McGowan, who appeared here and below, and that the appellant did not receive a fair trial.

11.Dealing with the first ground, it is pointed out first that PWl, when it was put to him directly (transcript, page 26J), “Could have been an accident”, said, “No idea”. This, it is asserted, amounted to an acceptance of the possibility of the defendant’s acts over the journey up the escalator being accidental. I am in no doubt, especially reading the whole of PW1’s evidence, that it was no such thing. PWl’s evidence, taken as a whole and seen in the light of the video itself, described a deliberate act by the appellant, placing the arm forward at about the level of his hips, under the skirt of the person in front, who was standing slightly above him; and holding it in that position for around 15 seconds.

12.What was described can in no way be said to have been an accidental movement. If the hand holding the phone had been inadvertently movedforward to a position under the skirt, it would immediately have been retracted. The magistrate made a finding that from the length and content of the video, she could be satisfied that it could not have been taken accidentally. The images shown could only have been taken if the camera lens of the mobile phone was held under the skirt as she found. I have seen the video myself: in my judgment, the magistrate was entitled to come to this conclusion on the evidence.

13.It is further submitted that PW1 accepted that the appellant’s body was “in the way” of his view of the mobile phone and that he could not therefore have seen what he claimed to have seen.

14.The evidence was that the appellant was standing on the right side of the step immediately below Ms Siu. PW1 stood on the left of the step below the appellant, and was therefore looking at an angle towards Ms Siu’s skirt. He accepted that the appellant’s body was between him and the phone: that was obviously the case; but he did not accept that it blocked his view of the phone and when that proposition was put to him directly (transcript, page 23N)he disagreed: “At that time I could see the phone”.

15.It is further suggested that PW1 said that the phone had only been taken out of the appellant’s pocket on the way up the escalator, rather than being out throughout; but the officer did not agree with such suggestion (transcript page 24D); and in any event, what was recorded on the phone showed a 19 seconds clip, 15 seconds or so of which was on the escalator recording the underside of the skirt which must have involved most, if not all, of the trip on the escalator.

16.Of course, the magistrate had the advantage of seeing and hearing PW1 as a witness and was able to make her own assessment of him. She found him to be a truthful and honest witness. I am satisfied there is nothing in the material before me which raises any doubt about that finding and I accept what she says. Aside from that issue of credibility, this is a rehearing of the case before this court; indeed, the appellant invites me to rehear the point. I am satisfied that the officer had a proper view at all material times. He described how the appellant followed the females onto the escalator at a brisk pace and placed the mobile phone under the skirt. I am in no doubt that his description was accurate.

17.A further challenge to PW1 and the magistrate’s assessment of him was made on the ground that the magistrate said at paragraph 22 of her Statement of Findings that the appellant stopped at the upper landing before PW1 intercepted him, relying on PW1’s evidence in chief which was changed in cross-examination to the effect that the appellant was “still walking”. Thus, it is submitted, the magistrate had misapprehended PW1’s evidence as to this aspect in her assessment of him, and this was relevant as to whether or not the appellant had deliberately videoed the face of the females after arriving at the upper landing. The recording showed their faces taken from about head height, not low down.

18.I am bound to say that I find this point to be of only marginal significance given that the change in PW1’s evidence related to what happened after the arrival at the upper landing; and although the magistrate did not apparently notice the change in evidence, if she had, it would have made no difference to her findings as to the deliberate conduct of the appellant in videoing under the skirt on the escalator. This aspect of matters was related to events after the conduct the subject of the complaint, and did not have any impact on what he was earlier doing. Furthermore, the question of whether he stopped or not to film the faces of the females was not decisive as to whether that was itself deliberate and the magistrate did not in fact say that it was. The video shows that they were still moving at that time.

19.Evidence in a case such as this is not to be seen in compartments but as a whole. To the evidence of PW1’s observations which the magistrate accepted, and the video itself, must be added the defendant’s admission. It is suggested that by reason of her remarks at paragraph 23 of the Statement of Findings, the admission by the appellant which the magistrate said, he had made, did not form any part of her reasons for convicting him. She said at paragraph 23, “from the totality of the evidence from PW1 as to what he saw that day, (i.e., even without the appellant verbal admission under caution) I am satisfied that the appellant had deliberately taken the video clip of the victim underneath her skirt”. It is suggested that this shows that the magistrate was discounting the admission in her findings.

20.However, the submission wholly ignores paragraph 19 of the Statement of Findings, headed “did the appellant make [the] admission under caution”, in which the magistrate set out the admission and expressed her finding that the appellant had said it, that it was said voluntarily, and that it was true. It is plain that the magistrate was not discounting the admission, but was merely saying that she could be sure of the defendant’s guilt even without the admission.

21.Given that PW1 was a credible witness, the evidence of what he saw the appellant do, the length and content of the video itself and the admission after caution, left no room for doubt about his guilt. He elected not to testify, as he was entitled to do without criticism; but the result of that election was that the evidence all went one way and constituted an overwhelming case against him.

22.I am satisfied that there is nothing in this ground of appeal. The magistrate’s finding was properly reached on the evidence before her. I therefore turn to the second ground of appeal which relates to procedural matters and the conduct of trial.

23.It is submitted that the appellant was denied a fair trial by reason of the interruptions by the magistrate which prevented and/or hindered cross-examination of PW1 on the appellant’s behalf.

24.The defendant’s right to a fair trial goes without saying; and circumstances can arise where a defendant is denied that right because the opportunity to challenge a prosecution witness is inhibited or hindered by interruption from the bench. Whether the defendant’s right has been adversely affected in this manner is a matter of degree: it is not that any interruptions will lead to such a conclusion and it is well established that it is not the number of interventions which matters but their quality and scope.

25.I have examined all of the 40 or more instances of intervention about which specific complaint is made, both in isolation and in the context of the whole of this detailed cross-examination.

26.I can say first of all that none of the interventions can be characterised as the court taking over the questioning of the witness and assuming the mantle of the advocate, to borrow Lord Denning’s celebrated remark. Indeed, no complaint is made regarding the three matters about which the magistrate did ask her own questions at the end of cross-examination.

27.Secondly, by way of some overall analysis with regard to the interruptions which occurred: they arose when the magistrate was asking for clarification of certain questions; asking for a repetition of a question or an answer because she did not hear it properly; and seeking the elucidation of a question or answer because it was ambiguous. On occasions she complained (with justification) about the repetitive nature of the cross-examination and attempted to focus the case on the issues which appeared to be significant; she interrupted what she regarded as a drift into irrelevant minutiae. Quite a few of the subject interventions are simply where the magistrate told the protagonists to “wait”. Towards the end of the evidence (Transcript page 59P) she said to a witness, “Please wait, I have to write down everything. What he [counsel] says, I have to write down. What you say, I have to write down”.

28.Of course, magistrates are not stenographers; they do not have to write down everything, only the main points. That is why we have the DARTS system; but magistrates do sometimes feel that they need to keep a very full note on the ground that they may well be picked up later on odd words or phrases which may have been wrongly understood. We have an example in this appeal, to which I have earlier referred, where in respect of a matter of marginal relevance to the issues in the trial, the magistrate is said to have failed to have noticed that the witness changed his evidence-in-chief during cross-examination (from “the male stopped in front of the females” before interception; to “in fact he was still walking”).

29.If counsel are willing to take such trifling points on appeal, they can hardly complain if magistrates feel the need to write down every word and to ask for time to do so.

30.In my judgment, the complaints about the magistrate asking counsel or the witness to wait, saying “pardon”, asking for repetition of questions not properly heard, seeking to clarify questions or answers - absolutely crucial since she was the judge of fact - are wholly without merit. There is no impression on reading the transcript that this very experienced counsel was put off his stride at all. He was not hindered in his cross-examination. The magistrate did not enter the arena. There is nothing in this ground of appeal.

31.This appeal against conviction is dismissed.

Mr Franco Kuan, Senior Public Prosecutor (Ag), for the Director of Public Prosecutions, for the Respondent

Mr James McGowan, instructed by Messrs George Chan & Co., for the Appellant