HKSAR v. Ho Ka Kei Ricky

HCMA 436/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 436 OF 2013

(ON APPEAL FROM KTCC 2290/2013)

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REASONS FOR JUDGMENT

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1.The appellant was convicted after trial of one charge of “Behaving in a disorderly manner in a public place”, contrary to s 17B(2) of the Public Order Ordinance, Cap 245. He was sentenced to 10 weeks’ imprisonment. His appeal against conviction is dismissed, but appeal against sentence is allowed to the extent that the 10 weeks sentence was ordered to be set aside, and replaced by a sentence of 2 months’ imprisonment. I now give my reasons.

Prosecution case

2.PW1, a 31‑year‑old clerk, was walking on the footbridge, and about to descend the flight of steps when she saw the appellant walking closely behind PW2 up the stairs.  She described how the appellant held his mobile phone and placed it under the skirt of PW2, who was listening to music through her earphones.  PW1 then alerted PW2, who stopped, saw the appellant, and demanded to check his mobile phone.  There were some discrepancies between their evidence as to the appellant’s action in relation to the mobile phone after PW1 alerted PW2.  A report was made to the police, and all 3 of them stayed until PW3 arrived.  Under caution, the appellant denied the offence.

Grounds of appeal

3.There were originally 3 grounds advanced by counsel for the appellant, but at the hearing I was told that he would abandon the last, leaving the following grounds of appeal against conviction:

(1)    The magistrate erred in applying the test of whether an “average man” rather than those who witnessed the evidence were likely to be provoked to breach the peace, in finding that a breach of peace was likely to be caused by the actions of the appellant; and

(2)    The magistrate failed to resolve the discrepancies between the evidence of PW1 and PW3.

Respondent’s reply

4.Counsel for the respondent submitted that the Court of Final Appeal had decided in the case of HKSAR v Chow Nok Hang (2013) 6 HKCFAR 837 that the second limb of the s 17B(2) offence “requires an assessment of the likely reaction to the defendant’s disorderly conduct by the persons who are affected by it . . . ”.  It was submitted that the magistrate rightly took into account that some of the people from a nearby densely populated housing estate, on hearing “a hue and a cry” could be summonsed and “some of them would probably take the law into their own hands to punish the defendant for such a despicable act . . . ”.  Counsel also relied on the case of HKSAR v Yip Tak Ming [2004] 3 HKLRD 286 to say that no actual violence occurred does not mean that there was no likely breach of the peace.

5.In reply to the second ground, counsel for the respondent submitted that having seen and heard the witnesses, the magistrate was entitled to find that the inconsistencies were immaterial and did not affect the credibility of the Prosecution witnesses.

My judgment

6.I shall now deal with Grounds 2 briefly.  The magistrate set out in detail in his Statement of Findings why he considered the discrepancies immaterial.

7.An appeal under s 113 of the Magistrates Ordinance is by way of rehearing on the evidence before the trial court, and where the facts are concerned, the appellate tribunal will recognise that it does not enjoy the advantage of having received the evidence at first‑hand which the magistrate enjoyed.  I do not find anything perverse about the magistrate’s reasoning.  He is entitled to conclude that the discrepancies were immaterial and not affect the credibility of the Prosecution witnesses.  This ground fails.

8.I now turn to Ground 1.  S 17B(2) offence was analyzed in full in HKSAR v Chow Nok Hang, supra.  It involves a two‑stage process, namely, a finding that an accused behaved in disorderly manner; and either with an intent to provoke a breach of the peace; or whereby a breach of the peace was likely to be caused.  The particulars of offence in the present case alleges that the taking up‑skirt photos of PW2 with a mobile phone with photo recording function was a disorderly behavior, and whereby a breach of the peace was likely to be caused.

9.We are concerned here about the second element.  In Chow’s case, Mr Justice Ribeiro PJ said:

“86.  The second element in the second form of the offence requires the disorderly behaviour to be such that “a breach of the peace is likely to be caused”.  Once again, such language is inapt for describing a situation involving the conduct of the defendant and no one else. This form of the offence requires an assessment of the likely reaction to the defendant’s disorderly conduct by the persons who are affected by it.

. . . 

91.  The section 17B(2) offence therefore has a somewhat paradoxical feature. Whereas a defendant who acts in a disorderly fashion may commit the offence if he misbehaves in a situation where less than law‑abiding people might react by breaching the peace, he escapes liability if he indulges in the same conduct in the presence of law‑abiding and disciplined persons who are regarded as unlikely so to react.

92.  The purpose of section 17B(2) is in other words, to prevent a person instigating public disorder involving others rather than simply punishing that person for his own misbehaviour.  It therefore excludes from its ambit many situations where the defendant’s disorderly behaviour or threatening, abusive or insulting words, and so forth, are not likely to produce such violence.  . . . 

100.  I respectfully agree with Barnes J’s approach and conclusion.  The only persons who were in the immediate vicinity of the appellants when they invaded the stage were the officiating guests and MTR staff on the podium, security guards and possibly the police.  There was no evidential basis for suggesting that any of them might have reacted unlawfully by committing a breach of the peace in response to the intrusion.  Neither was there any evidence that other members of the public present, whether the competing athletes or otherwise, might have been prone to reacting violently to the disorderly behaviour of the two appellants.  It follows that Barnes J was right to overturn their convictions under section 17B(2).” [underline added]

Mr Justice Tang PJ said:

“166. Mr McCoy submitted that on the basis of the 2^nd appellant’s own breach of the peace he could be convicted under s 17B(2). With respect, I cannot agree. In Marsh v Arscott (1982) 75 Cr App R 211, a decision of the English Divisional Court (Donaldson LJ and McCullough J), which was concerned with s 5 of the Public Order Act 1936, McCulloch J said (with the agreement of Lord Justice Donaldson) at p 216 “This section is describing breaches of the peace which are brought about, or are likely to be brought about, by other words or behaviour occurring earlier, although usually not very long before. The phrase ‘whereby a breach of the peace is likely to be occasioned’ indicates that Parliament was concerned with cause and effect, ie with conduct which is likely to bring about a breach of the peace and not with conduct which is itself a breach of the peace and no more. Were this the law every common assault occurring in a public place would also be an offence against this section. Many such assaults will in fact be likely to lead very quickly to a breach of the peace, and these will be within the section; but, without more it is not enough that conduct which is threatening, abusive or insulting is of itself a breach of the peace.”

Mr Justice Litton NPJ:

“230. But, in relation to a charge of public disorder causing (or likely so cause) a breach of the peace, the court looks beyond the misbehaviour of the accused to the reaction of others at the scene. As to this, the appellate judge said this (§67):

‘I have repeatedly read the magistrate’s Statement of Findings. I do not see he had made any analysis or finding as to the influence or effect which the appellants’ disorderly conduct might produce on other people at the scene who witnessed such conduct, except his description about members of the staff and the man dressed in black who, according to the magistrate, followed the appellants’ example.’

231.  I respectfully agree with her conclusion.  . . . ”

10.One of the cases relied on by the magistrate and the respondent was HKSAR v Yip Tak‑ming, supra, wherein Deputy Judge B Fung (as he then was) said:

“28. Mr Reading responded by saying that although it is accepted that the evidence does show that the appellant was co‑operative and he did not resort to violence, that the citizen acted calmly and did not react with outrage to the conduct of the appellant was fortunate, but those events were ex post facto the disorderly conduct of the appellant, and it was the potential breach of the peace at the time that the appellant placed his camera phone beneath the skirt of PW1, that was the crux of this case.

29. Mr Reading submitted that the make up of the characters present at scene is not the only relevant matter, but the circumstances such as the time, place and flow of the people are relevant.

30. Would the conduct of the appellant have been likely to provoke anyone else to commit a breach of the peace?

31. It is important to consider the nature of the alleged disorderly conduct. It is not the mere uttering of any four‑letter abusive words. It is placing a camera underneath a female’s skirt in a public place. With respect, I agree with Beeson J and the learned magistrate at trial that an average Hong Kong citizen is likely to be outraged by such conduct. I cannot think otherwise having applied the standards of any right minded person in Hong Kong.

32. The circumstances are relevant. The incident took place on the escalator in an MTR station during the rush hours of a Monday evening. It is notorious that MTR stations in Hong Kong are crowded with people from all‑walks. During such hours and the commuters are captive in close proximity along escalators until reaching the next level.

33. Cheng Siu Wing provided an illustration of how right minded members of the public might react to such behaviour. There is no indication that those members of the public are idiosyncratic that it could not have happened the same way in any other given situation. A fortiori, it is inherently natural and probable that citizens would take the law in their own hands in particular circumstances such as the present case.

34.  I agree with the magistrate that there is a real likelihood of the appellant’s disorderly conduct in provoking anyone else to resort to an act of force or violence against the appellant. The fact that there was no actual violence for detention against the appellant by PW2 or anyone else at the material time was fortuitous and non sequitur.”

11.So can the cases of Chow Nok Hang and Yip Tak Ming be reconciled?  The short answer lies in the case of Secretary for Justice and Chiu Hin Chung, HCMA 163/2012. D Pang J, having examined the cases involving s 17B(2), concluded that there were broadly two categories, namely those decided upon common sense, and those dealing with other specific circumstances.

12.The first category usually involved the act of taking upskirt image of a female stranger facts wherein a breach of the peace was likely to be caused (HKSAR v Cheng Siu Wing [2003] 4 HKC 471; Yip tak Ming, supra, and HKSAR v Wong Wing Hong, HCMA 307/2006). The second category deals with specific circumstances such as demonstration cases and those concerning freedom of expression.  Pang J said that a defendant in the first category could be convicted even where there was no evidence of actual breach of the peace, because in Hong Kong “the general public would be outraged by such conduct and it was natural and probable that they would take the law into their own hands”.  The second category requiring evidence that the emotions of bystanders were aroused.

13.The present case clearly falls within the first category.

14.The magistrate said:

“I notice that there were only three people on the footbridge at the material time, but I also notice that next to the foot bridge is a densely populated housing estate, namely, Lower Wong Tai Sin Estate. The case took place at the time when the general public went home after work for dinner. If PW1 or PW2 screamed for help. Naturally the local residents nearby would eagerly respond to help the two females. Some of them would probably take the law into their own hands to punish the defendant for such despicable act. Therefore, I find that the defendant’s act was likely to cause a breach of the peace . . . ”

15.This is the common sense approach.  The magistrate was entitled to making findings as he did.

16.The appeal against conviction fails and I hereby affirm the conviction.

Appeal against sentence

17.The magistrate accepted that no permanent record of any upskirt photos were kept or distributed.  He adopted a starting point of 8 weeks’ imprisonment, taking into account the Court of Appeal judgment of Secretary of Justice v Yeung Wing‑hong, CAAR 7/2012, and enhanced 2 weeks for the aggravating factor of committing the offence in the vicinity of a police station.

18.Counsel for the appellant submitted that the present offence was an opportunistic crime with no evidence of premeditation. Since the authorities show sentences ranged from probation to 2 months’ imprisonment, 2 months’ imprisonment was on the high side.  It was also submitted that the magistrate erred in enhancing 2 months for the fact that the offence took place near a police station.

19.Counsel for the respondent agreed that no authorities suggest the commission of a crime near a police station to be an aggravating feature.  He submitted that the 10 weeks’ imprisonment was within the appropriate range.

My judgment

20.The case of Yeung Wing Hong, supra, dealt with a charge of committing an act outraging public decency.  The facts were similar to the present case, both cases involved the taking of upskirt photograph of a lone female.

21.According to Yeung VP:

“13. . . . The courts were generally of the view that upskirt filming, notwithstanding that it was conduct involving no body contact, was a serious violation of privacy; it was no different from indecent assault in terms of indecency and the humiliation it brought to the victims . . .

26. The act of filming females in violation of their privacy in public places is very prevalent. Technological advancements make filming equipment readily available. People with devious intent can easily commit those shameless acts to satisfy their improper private desires.

27.  The courts have repeatedly emphasized the seriousness of filming females in violation of their privacy in public places and explained the reason why heavy sentences have to be imposed on such type of offences.   The courts also indicated that in dealing with this type of offences, more weight should be out of deterrence rather than the rehabilitation of individual offenders.”

22.Most of the cases cited by counsel for the appellant with either shorter sentences or other non‑custodial sentences are decided before Yeung Wing Hong.  It is clear from the dicta of Yeung that the sentencing norm for offences of this type would be a deterrent sentence.  I consider a two months sentence after trial on the facts of the present case is appropriate.  I do not consider that there are any grounds for enhancement.  The appeal against sentence is allowed, the 10 weeks sentence set aside, and replaced by a sentence of 2 months’ imprisonment.

Mr Prakash L Daryanani, SPP of the Department of Justice, for the respondent

Mr Oliver H Davies leading Mr Albert K K Fung, counsel instructed by Wong & Co, for the appellant