HKSAR v. Dai Chiu Ming

[English translation – 英譯本]
HCMA 755/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 755 OF 2011

(ON APPEAL FROM KTCC NO. 4547 OF 2011)

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BETWEEN

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Coram: Hon Deputy High Court Judge A. Wong in Court

Date of Hearing: 31 January 2012

Date of Judgment: 21 February 2012

J U D G M E N T

1.The appellant was charged with one count of loitering causing concern, contrary to section 160(3) of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong.  The case was heard in Kowloon City Magistracy.  The appellant was represented and pleaded not guilty, but was convicted after trial.  He now appeals his conviction.

Prosecution case

2.The incident took place at Kowloon Bay Playground.  The magistrate made a concise statement of the prosecution case, which I now quote:

6. There was only one male changing room in the playground.  The temporary female changing room was no more than the male changing room being converted for use by ladies. Such conversion usually took place only on Wednesdays when women’s rugby matches were held in the playground.  The prosecution agreed that the alleged offence was committed on a Sunday.

7. Around 2:40 p.m. on the day in question, when the match was over PW1 and a teammate went to the temporary female changing room to take a shower.  Before they entered the changing room they saw a sign outside indicating that the changing room was a female changing room (exhibit P1(3)).  The last time PW1 went to the temporary female changing room was about half a year ago.  She would go there two or three times per year.

8. PW1 went to the shower area (exhibit P1(10)), located between two rows of lockers.  Having finished the shower, she returned to the changing/locker area (exhibit P1(8)). At that moment, four other teammates had arrived.  The six of them sat down on a bench and packed their belongings, chatting rather loudly at the same time. PW1 was wearing only her brassiere and a pair of jeans.

9. About five minutes later, the defendant came in.  He walked past where PW1 and her five teammates were, went to the shower area, entered the second shower cubicle on the left (the 2^nd cubicle) and closed the door.  At that time he was wearing a T-shirt, a pair of jeans, a pair of sneakers and a peaked cap on his head, and walking at a rather quick pace.

10. PW1 saw the defendant from the side and was not sure whether he was a man or woman.  She sought her teammates’ views.  After discussion, they thought that the person was a man and sensed something wrong.  PW1 put on her upper garments.  The presence of a man in the temporary female changing room scared PW1.  She also feared that the defendant might be carrying something and was concerned about whether there would be any danger.

11. The defendant remained in the 2^nd cubicle for two to three minutes, during which time no “activity” appeared to take place inside the 2^nd cubicle. PW1, PW2 and four other teammates decided to ask the defendant for an explanation.  PW2 knocked on the door of the 2^nd cubicle, saying that it was a female changing room and asking the defendant what he was doing there.  The defendant answered that he did not know it was a female changing room and said that he would come out after putting on his clothes.

12. After he came out of the cubicle, the defendant walked out of the changing room with PW1, PW2 and the other teammates.  The defendant pointed out that the temporary female changing room was normally a male changing room.  He explained that he merely wanted to take a shower there.

13. Around 3:30 p.m. that day, PW4 arrested the defendant at the playground.  Under caution the defendant said, “I wanted to go in to take a shower.  Last Sunday when I went there it was still a male toilet.”  (see paragraph 2 of exhibit P2).

Defence case

3.At trial, the appellant exercised his right and elected not to give evidence.  Nor did he call any witness.

4.As the magistrate pointed out, the defence case was that the appellant did not notice that the male changing room had been converted into a temporary female changing room that day, and that he mistakenly went in with the intention to take a shower.

The magistrate’s verdict

5.The magistrate made the following findings:

(1) The appellant in fact knew that the male changing room had been converted into a temporary female changing room.

(2) The appellant did loiter, causing PW1 to be reasonably concerned for her safety or well-being.

(3) The prosecution had proved each and every element of the offence beyond reasonable doubt, and the appellant was convicted accordingly.

Grounds of appeal

6.On appeal, the appellant was represented by another counsel Mr. Richard Wong, who has put forward three grounds of appeal:

(1) The magistrate erred in finding that the prosecution had proved beyond reasonable doubt that the appellant had committed the offence as charged, the reasons being:

(a) The magistrate overlooked some material circumstantial evidence in this case;

(b) The magistrate erred in rejecting the explanations given by the appellant to PW1, PW2 and the police constable;

(c) The magistrate erroneously failed to take into account that he was bound to acquit the appellant if the appellant’s explanation might be true.

(2) In considering whether the appellant’s behaviour did cause PW1 to be reasonably concerned for her safety and well-being, the magistrate erred in taking into account only PW1’s subjective judgment and failing to apply an objective standard.

(3) For the above reasons, the conviction is neither safe nor satisfactory.

Discussion

1^st ground of appeal

7.Mr. Wong contended that, in convicting the appellant, the magistrate failed to have sufficient regard to the following facts:

(i) The changing room where the incident happened was a male changing room, which was converted into a female changing room usually on Wednesdays only.  The alleged offence was committed on a Sunday, and by coincidence the male changing room was converted into a female changing room that day.

(ii) On the Sunday immediately preceding the incident, the appellant had been to the same changing room.  At that time it was still a male changing room.

(iii) At the time of the incident, there were urinals in the changing room.

(iv) At the time of the incident, the placard which gave notice of the conversion of the male changing room into a female changing room was erected on the ground but positioned at a bad angle.

(v) At the time of the incident, the appellant was wearing a peaked cap, which would have obstructed his view.

(vi) The appellant walked into the changing room at a rather quick pace.

(vii) There was no evidence that the appellant did any unlawful act during the two to three minutes when he was inside the shower cubicle.

(viii) When PW1, PW2 and four other ladies knocked on the door of the shower cubicle, told the appellant that it was a female changing room and asked him what he was doing there, he answered that he did not know the place was a female changing room and said that he would come out of the cubicle after putting on his clothes.

(ix) After the appellant came out of the cubicle, he pointed out that the changing room was usually a male changing room and he explained that he just wanted to take a shower there.

(x) When he was under arrest and caution, the appellant said, “I wanted to go in to take a shower.  Last Sunday when I went there it was still a male toilet.”

8.As far as I can see, there are two aspects to this ground of appeal:

(1) The magistrate erred in rejecting the appellant’s explanation that he entered the changing room by mistake;

(2) In any event, the magistrate erred in finding that the prosecution had successfully proved its case.

9.I will discuss point (1) first.  Point (2), which relates to the ultimate verdict,will be analysed and discussed together with other arguments later in this judgment.

10.Mr. Wong’s argument runs as follows. In the circumstances of the present case, “mistaken entry” was an exculpatory excuse put forward in response to the offence.  In relation to this excuse, the defence bore only the evidential burden.  As long as there was evidence in support of such an excuse, it was then for the prosecution to adduce sufficient evidence to prove beyond reasonable doubt that the appellant did not “enter [the changing room] by mistake”.  In respect of the above excuse, the key issue was whether the appellant genuinely believed that he was entering a male toilet, not whether he reasonably believed that he was entering a male toilet.

11.Ms. Ng, Acting Senior Public Prosecutor for the respondent, had some reservations about the proposition that the defence bore only the evidential burden, but she asserted that regardless of whether Mr. Wong’s proposition was correct, the magistrate had considered the case along this line when he made his findings.

12.At trial, evidence which went to the “mistaken entry” defence consisted of the following:

(1) When the ladies intended to ask the appellant for an explanation and PW2 knocked on the door of the shower cubicle, the appellant explained that he did not know it was a female changing room and said that he would come out of the cubicle after putting on his clothes.

(2) After the appellant came out of the cubicle and as he walked out of the changing room with the other people, he said that the place was usually a male changing room and that he went in solely with a view to taking a shower there.

(3) When he was outside the changing room, the appellant complained to a female security guard that the placard erected on the ground outside the changing room, which gave notice of the conversion of the changing room into one to be used by ladies, was positioned at a bad angle.

(4) When the appellant was arrested at the scene by a police constable, he said under caution, “I wanted to go in to take a shower.  Last Sunday when I went there it was still a male toilet.”

13.All this evidence was referred to by the magistrate in his Statement of Findings. Obviously, he was aware of the existence of this evidence and had taken it into consideration.

14.He expressly stated that such evidence indicated the defence case that the appellant, not noticing that the male changing room had been converted into one to be used by ladies, went into the room by mistake.

15.However, he did not accept this explanation and stated the reasons therefor in these terms:

“(a) As the defendant elected not to give evidence, the explanation that he gave at the scene has never been tested by cross-examination at trial.

(b) During the cross-examination of PW2, the defence put to her that the defendant had complained that the notice placard erected on the ground was positioned at “a bad angle”. I do not quite understand (on the defence case) why the defendant was not able to see the placard. Besides, exhibit P1(3) shows that in addition to the placard, a sign plate (featuring a white female figure against a red background) which showed that the changing room was for ladies exclusively, had been attached on the wall at the entrance to the changing room. In my view, this kind of sign clearly showed that the place in question was a female changing room. Was the defendant in a hurry to take a shower, or was his attention distracted by some worries and so he failed to notice this sign plate (or the placard)? In the absence of evidence which throws light on this point, I will not make any speculation.

(c) The defendant said he went into the temporary female changing room because he wanted to take a shower, but he did not bring along any soap or shower gel. Even if he was going to wash his body with water only, he did not have any towel for wiping himself dry. (The defence counsel suggested that he might use the T-shirt which he was wearing to wipe his body and then leave the changing room with his upper body naked. In the absence of supporting evidence, I reject this suggestion which I find very far-fetched.)

(d) The defendant remained in the 2^nd cubicle for two to three minutes but there seemed to be no “activity” inside. In my view, if the defendant went there to take a shower, there would have been enough time for him to take off his clothes and start taking the shower.

(e) PW1, PW2 and the four other ladies were talking in rather loud voices.  PW1 was wearing only her brassiere on her upper body.  The defendant had to walk past where the girls were sitting and talking, and that place was not large in area (see exhibits P1(7) and (8)).  I believe that the defendant could not possibly have failed to notice the presence of the girls.  If he had genuinely mistaken the room as a male changing room, he would certainly have stopped walking and made enquiries.”

16.Mr. Wong submitted that first, the magistrate should not have relied on the above-mentioned reasons; and second, the reasons for rejecting the appellant’s explanation were insufficient.

17.Mr. Wong complained that in the present case the reason given by the magistrate in point (a) was inappropriate.  The statement given by the appellant reflected his instant response at the scene, and he had made a number of statements, the contents of which were all consistent.

18.In my view, the statements made by the appellant were all mixed statements.  I see nothing improper for the magistrate to take into account point (a) as one of the factors in assessing the credibility of those statements[1].

19.As for point (b), Mr. Wong’s complaint was that not only was the reason given by the magistrate inadequate, but the magistrate had overlooked some evidence, for example, the appellant was walking quickly, he was wearing a peaked cap which affected his view, and the notice placard was positioned at a bad angle.

20.In giving his reasons, the magistrate pointed out that as the appellant did not give evidence, there was no evidence about his personal perception.  The magistrate was merely referring to a state of fact and I see no room for criticizing what the magistrate did.  He further said, in my view correctly, that he would not make any speculation.

21.The evidence regarding whether the notice placard was positioned at a bad angle was by no means clear and precise.  It is true that the reaction of the security guard to criticism levelled against her should be taken into account, but this did not constitute evidence  that the notice placard was indeed positioned at such an angle that the appellant was unable to notice it.

22.In any event, in paragraph (b) the magistrate gave an account of the information about the scene which he discerned from the photographs, including the fact that a sign plate which depicted a white female figure against a red background had been attached on the wall at the entrance to the changing room, and he took that fact into account.  I find nothing improper with this approach.

23.Nor do I agree with the criticisms Mr. Wong made in relation to paragraphs (c) to (e). All the matters mentioned therein were those which the magistrate should have considered.

24.It is clear that the magistrate had in mind the evidence that the appellant was wearing a peaked cap and walking at a quick pace[2]. Furthermore, the magistrate found that as a number of girls were talking loudly, the appellant could not possibly have failed to notice their presence even though he walked past them quickly. I consider this finding reasonable. The magistrate’s observations on the appellant’s reaction were also beyond reproach.

25.Mr. Wong stressed that if a person was accustomed to behave in a certain way, it would not be easy for him to change that behaviour.  He submitted that this might have been the case with the appellant on the day of the alleged offence.

26.Even assuming this was the case and taking into account the fact that the facilities in the toilet were for men’s use, I still consider that the magistrate’s decision to reject the appellant’s explanation was amply justified, being a reasonable conclusion reached after assessing the evidence.  Mr. Wong has not put forward sufficient reasons to convince me that I should interfere with the above finding.  Although the crucial issue was whether the appellant genuinely, not reasonably, believed that it was a male toilet that he was entering, whether his belief was reasonable was one of the factors that could be considered when deciding whether the appellant held a genuine belief.  I do not think that there was any error in the magistrate’s reasoning.

27.Mr. Wong emphasized that if the appellant’s explanation might be true, the magistrate was bound to acquit him.

28.I have no reason to doubt whether this magistrate of senior standing might have overlooked this fundamental legal principle.  Besides saying that he “[did] not accept this explanation”, he also unequivocally stated that “in my judgment, the defendant in fact knew that the male changing room had been converted into a temporary female changing room”[3], which indicated that he entirely rejected the appellant’s explanation that he “entered the changing room by mistake”.  That was also tantamount to finding that the prosecution had proved beyond reasonable doubt that the appellant did not “enter the changing room by mistake” and that his explanation could not be true.

29.I also consider this finding reasonable and supported by ample evidence.

30.Following that, the magistrate concluded that the appellant’s conduct constituted loitering.  In doing so, he considered the following cases:

HKSAR v LI JACOIS HCMA 927/2007

R v MOK CHI HO [1979] HKLR 118

HKSAR v WAN YIM YU HCMA 1163/2003

HKSAR v CHAU CHEUK YIU HCMA 641/2003

31.The definitions of loitering given by different judges in these cases were accepted by Barnes J in a more recent case HKSAR v Chan Man Chun HCMA 1253/2012. The learned judges all held that idling, lingering or hanging about could constitute loitering[4]. In my view, this holding accords with the legislative intent.

32.Mr. Wong pressed the point that according to the magistrate’s findings of fact, the appellant stayed inside the shower cubicle for only two to three minutes, with little sign of carrying out any activity, and that there was no evidence showing what the appellant had done.  Under these circumstances, the appellant’s behaviour did not constitute loitering. 

33.The magistrate had obviously directed his mind to this issue.  He said, “I understand that the act of loitering must last a certain length of time, not something which appears and vanishes as flashily as someone brushing past another.”

34.Having considered all the circumstances of the case, I agree with the magistrate’s finding that the appellant’s behaviour constituted loitering.

35.The act of loitering is only one of the elements of the offence involved in the present case.  In order to establish the offence as charged, the prosecution was required to prove another element, namely that the act in question caused another person to be reasonably concerned for his/her safety or well-being.  With this in mind, I now turn to the second ground of appeal.

2^nd ground of appeal

36.The magistrate found that the appellant’s behaviour caused PW1 to be reasonably concerned for her safety and well-being.  Mr. Wong complained that, in making the assessment, the magistrate erroneously accepted PW1’s subjective judgment and failed to apply an objective standard.

37.In support of this argument, Mr. Wong referred to the Statement of Findings in which the magistrate said “[the presence of the appellant] scaredPW1. She feared that the defendant might be carrying something and was concerned about whether there would be any danger.”[5].

38.He also stressed that what the girls chose to do after their discussion was question the appellant instead of making a complaint or calling for help.  This showed that, judging by an objective standard, the prosecution failed to prove the element of “reasonable concern”.

39.Ms. Ng submitted that the magistrate did not consider only PW1’s subjective judgment.  It could be seen from paragraph 23 of the Statement of Findings that the magistrate had considered all the circumstances before he concluded that PW1 was reasonably concerned for her safety or well-being.

40.I agree with Ms. Ng’s observation.  I also take the view that the evidence as a whole supported the finding that PW1’s concern was reasonable.  The fact that as many as five ladies decided to question the appellant hardly showed that PW1’s concern was unreasonable.

3^rd ground of appeal

41.This ground is a catch-all ground.  I have already found that neither the first nor the second ground of appeal is established.  In my judgment, the guilty verdict given by the magistrate was eminently justified and rational.  The conviction is neither unsafe nor unsatisfactory.

Conclusion

42.I hold that the appeal is lacking in merits.  I therefore dismiss the appeal and uphold the conviction.

Ms. Hermina Ng, Acting Senior Public Prosecutor of the Department of Justice, for the HKSAR.

Mr. Richard Wong, instructed by the Legal Aid Department, for the appellant.

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