HKSAR v. Chu Man Cheung

HCMA 556/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 556 OF 2009

(ON APPEAL FROM TWCC 3790/2008)

____________

BETWEEN

____________

Before: Deputy High Court Judge Geiser in Court

Date of Hearing: 20 November 2009

Date of Handing Down Judgment: 8 December 2009

__________________

J U D G M E N T

__________________

1.On 14 April 2009, the Appellant was convicted by a Magistrate sitting at Tsuen Wan Magistracy of two charges of behaving in a disorderly manner contrary to Section 17B(2) of the Public Order Ordinance, Chapter 245, Laws of Hong Kong. He was placed on probation for a period of 2 years in respect of both offences. He now appeals against these convictions.

2.Perfected grounds of appeal were filed by counsel on the Appellant’s behalf on 3 September 2009 and they are:

Ground 1

That the learned Magistrate erred in taking into account the evidence on Charge 2 (D’s behaviour at the sushi counter) in making adverse findings against D on Amended Charge 1.

Ground 2

Further to ground 1, and given the import of ground 1, the learned Magistrate must have (inadvertently and erroneously) taken into account the evidence on Amended Charge 1 (D’s conduct at the personal care section) in making adverse findings against D on Charge 2.

Ground 3

That there was a lurking doubt in view of the narrowness of the supermarket aisle, the Defendant’s history of depressive disorder since 2005 and his assignment as the officer-in-charge of Police Tactical Unit on the day of the offences which exacerbated his mental condition.

3.The prosecution case against the Appellant in relation to both charges came principally from PW1 and PW2. PW1 was the alleged victim of Charge 1 and her evidence which was accepted by the learned Magistrate was that at about 12:30 pm on 28 October 2008, she was in Taste Supermarket with PW2. Whilst she was choosing female deodorant, she noticed that the Appellant was standing very close behind her and on her right. She found it to be strange that he was looking at female deodorants. When the Appellant walked past her, she felt something brush her between her thigh and calf. She turned and saw the Appellant holding a basket in which she noticed there was something underneath a towel. Due to the fact that she was wearing a short skirt, she became very suspicious and reported the incident to the manager. This was the evidence in relation to Charge 1.

4.Shortly afterwards, PW1 and PW2 saw the Appellant again in the shopping centre and they followed him back to the same Taste Supermarket. There, at the sushi counter, both PW1 and PW2 saw the Appellant standing behind a woman wearing a blue denim skirt who was selecting sushi. They saw the Appellant moving one side of his basket downwards and slowly putting it under the hem of the woman’s skirt. This was the evidence in relation to Charge 2. PW1 confronted the Appellant and asked why he peeped under other’s skirts. A brief struggle ensued and with the assistance of the store manager, the Appellant was put under control. All of this evidence was accepted by the learned Magistrate.

5.From the still photographs captured from the CCTV footage and which were incorporated in the admitted facts, the learned Magistrate found that with regard to Charge 1, they showed the Appellant holding the basket which was deliberately positioned so he could see under PW1’s skirt as he moved past her. With regard to Charge 2, he found that they showed the Appellant scooping his basket behind woman at the sushi bar in deliberate moves.

6.The Appellant elected to give evidence in the court below, and having given himself the required Berrada directions, the Magistrate found the Appellant to be lying when he said he had little recollection of what had happened during the material time. He also rejected the possibility of him suffering from a mental state such to cause him to be unaware of what he was doing as suggested by the defence witness, a Dr Peter Yu.

7.With regard to grounds 1 and 2 of the perfected grounds of appeal, they both have no merit and fail. With regard to ground 1, the complaint in essence is that PW1 only suspected what the Appellant had done as she had not seen him do anything. The Magistrate therefore used evidence relating to Charge 2 to bolster the case against the Appellant in Charge 1. Whilst it is true that PW1 did not see what the Appellant had done, she necessarily could not have done as the Appellant was standing behind her, she felt her leg being brushed by the basket held by the Appellant. The learned Magistrate considered but rejected the possibility of this being an accidental brushing. In addition, the evidence of PW1 and PW2 with regard to Charge 2 as found and accepted by the learned Magistrate are strikingly similar to the evidence in relation to Charge 1, and so become admissible. For the Learned Magistrate not to have taken into account the facts as he found them in relation to Charge 2 when he came to consider Charge 1 would, in the particular circumstances of this case, have been an affront to common sense.

8.With regard to ground 2, this is easily disposed of. The learned Magistrate simply accepted the evidence of observation of PW1 and PW2 as he was entitled to.

9.As regards ground 3, the matters that it is said should have given reason for the learned Magistrate to have a lurking doubt had all been considered extremely fully by him in his reasons for verdict and correctly rejected. This ground also fails. The appeal against the convictions are dismissed.

10.I confirm the convictions on both charges.

Mr Graham D Goodman, Senior Public Prosecutor of the Department of Justice, for the Respondent

Mr Giles Surman, instructed by Messrs Liu, Chan & Lam assigned by the Legal Aid Department for the Appellant