Looking up woman's skirt 'not disorderly conduct', magistrate rules
Actions of 'peeping tom' accused were not likely to incite a breach of the peace, magistrate rules
A suspected peeping tom was acquitted of disorderly behaviour yesterday after a magistrate ruled that prosecutors were pressing the wrong charge.
At stake was the question of whether Mark Lester Mui Ka-yiu's alleged offence - lying under a bus seat to peek up a woman's skirt - was likely to lead to a breach of the peace and incite unlawful violence in others.
The case came a month after the top court reiterated that both elements had to be present to prove a charge of disorderly behaviour in a public place.
Magistrate Adriana Tse ruled in Eastern Court yesterday that the prosecution had failed to prove beyond reasonable doubt that Mui's actions met the criteria. Mui had pleaded not guilty and denied peeking up the woman's skirt, claiming he had been picking up a piece of paper.
Mui's counsel, Albert Fung, cited in his defence the Court of Final Appeal's decision last month to overturn the convictions of Chow Nok-hang and Wong Hin-wai for the same offence. They interrupted an MTR Corporation event to protest against higher rail fares.
The top court reaffirmed the requirement to show that the acts led to unlawful violence for the charge to be proved.
Prosecutor Daniel Lai was asked in court to respond to the top court's ruling. He said the prosecution had sought guidance from the Department of Justice on November 18, the day the judgment was handed down.
But delivering her not-guilty verdict, Tse said prosecutors had enough time to change the charge after the ruling.
"If the prosecution laid another charge, the possibility of conviction would have been higher," she said, adding that "loitering causing concern" would have been more suitable.
The department said it respected the verdict and would study the reasons for it before deciding what action to take. Prosecutors have the right to appeal, but not to bring a new charge.
But one leading academic said he believed that indecent activity could constitute a disorderly behaviour offence.
"It is possible that a person's indecent act would cause other people to bash him. This is a breach of peace," said Eric Cheung Tat-ming, principal law lecturer at the University of Hong Kong, citing a case in which a woman snatched a phone from a pervert. The man's disorder conviction was upheld by the Court of First Instance.