High Court ruling on smartphone-related crime in Hong Kong proves struggle for prosecutors as magistrate refuses to delay taxi driver breastfeeding photo case
Magistrate questions why prosecutors are continuing to rely on the charge ‘obtaining access to computer with criminal or dishonest intent’
A magistrate on Monday refused to delay the trial of a Hong Kong taxi driver accused of photographing a breastfeeding passenger as prosecutors continued to tussle with a High Court ruling that forced the Department of Justice to rethink its prosecutions of smartphone-related crimes.
Acting principal magistrate Ada Yim Shun-yee asked why prosecutors, who were seeking an adjournment, were continuing to rely on the charge of obtaining access to computer with criminal or dishonest intent, and hinted at a more appropriate one.
In another court, meanwhile, a police officer awaiting sentence after he admitted taking upskirt pictures was released on bail as a magistrate granted prosecutors more time to study the High Court judgment that found the same charge was being wrongly applied.
The High Court last week refused to convict four primary-school teachers who leaked entrance exam questions, deciding they had not committed a crime under the charge.
The ruling forced the department to suspend the prosecution of smartphone-related crimes, the Post exclusively revealed.
On Monday, prosecutors continued to apply for long adjournments to study the judgment, with senior public prosecutor Jasmine Ching Wai-ming confirming the same arrangement would apply to all cases involving the offence. But Yim turned down Ching’s request at West Kowloon Court.
“Why the continued struggle with Section 161?” Yim asked, referring to the offence under the Crimes Ordinance. “Why not opt for a more appropriate offence?”
Yim was presiding over the case of taxi driver Atlex Chow Lik-sing, 50, who pleaded not guilty to the offence after prosecutors accused him of taking a photograph of a breastfeeding passenger and uploading her picture to Facebook in December 2016.
At the pretrial review on Monday, the magistrate hinted there was a more appropriate offence that could represent the allegations in the case.
Ching said the present case was “rather special” because the alleged conduct did not involve indecency, and countered there were other appeal cases that accepted mobile phones as computers.
“Which line will the court follow?” she asked.
But Yim clarified that the point was not about whether a mobile phone was considered a computer, but rather the difference between “obtaining” and “using” a computer.
Defence counsel Alice Lau also opposed the adjournment, suggesting prosecutors either amend the charge or withdraw the case as the slow progress had left her client under psychological and financial pressure.
The case is set for a two-day trial beginning on November 8, with Yim ordering prosecutors to inform the defence six weeks ahead of any amendment to the charge.
Meanwhile, police officer Chu Ho-lap’s sentencing was adjourned to December 13 after Deputy Magistrate Lau Suk-han readily granted the prosecutors’ request for more time to study the High Court judgment.
Chu, 27, had pleaded guilty to one count of committing an act outraging public decency, which carries a maximum penalty of seven years’ jail, and 19 others of access to a computer with dishonest intent, an offence punishable by five years’ imprisonment.
The court heard Chu admitted to taking upskirt images on 311 occasions, after investigators found 1,628 photos and 290 videos of different women on his smartphone.
He was released on HK$20,000 (US$2,564) bail.
The Department of Justice told the Post it had not kept count of ongoing or fresh cases brought under the ordinance, but it had applied to appeal against the High Court ruling.