The SUN HK : Filipino DH wins appeal against upskirt video conviction

By The SUN

The judge said the lower court failed to consider that what happened may have been an accident

A High Court judge has overturned a Filipino domestic worker’s conviction more than two years ago on a charge of taking an upskirt video of a woman on an escalator in the Megabox shopping mall in Kowloon Bay.

In a judgment issued on Sept 10, Judge Isaac Tam quashed the conviction of Nelson San Juan and set aside his sentence of three weeks in jail, saying he was not satisfied that the prosecution had considered the possibility of accident in what had happened.

San Juan was arrested on Dec 12, 2016 on a charge that he followed a local woman on the escalators of Megabox and took a video under her skirt.

He was found guilty on a charge of “committing an act outraging public decency” by Kwun Tong Magistrate Chu Chung-keung on Jan 4, 2018.

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In his appeal, San Juan said his conviction was unsafe and/or unsatisfactory as Chu erred in finding his behavior deliberate, and excluded the possibility of an accident.

He also claimed “that finding of fact was against the weight of the evidence” as Chu considered only the police officer’s statement that San Juan’s phone camera was focused under the skirt of the woman in front of him on the escalator.

Judge Tam agreed, saying the video clearly showed that the defendant’s camera was not aimed at the woman’s underskirt as, except for a few seconds, the footage showed the reflected image of a woman in a black skirt.

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“The fact that the lens of the phone was not aimed at [the victim] provides a doubt as to whether the appellant’s action was deliberate”, said the judge.

It also cast doubt on the officer’s reliability as a witness that the magistrate failed to pick up.

The judge also said that the appellant's claim that he had accidentally turned on the video in his camera was "at least plausible and it was not, with respect, rendered unbelievable by the prosecution’s cross-examination."

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He said the whole matter was not helped by the prosecution misunderstanding the defense evidence, and by the magistrate following through from that misunderstanding.

The judge noted that the prosecution had wrongly stated that San Juan followed and took a video of the woman on an escalator from the ground floor of the mall, and then on to another escalator from the first to the fifth floor.

“In fact, according to the evidence, the alleged taking of upskirt video (not photo as put) took place on two escalators, nos 12 and 24. No 12 runs from 1st to 5th Floors and no 24 runs from 5th to 6th Floors,” said the judge.

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But the judge rejected San Juan’s argument that the offence of taking upskirt footage cannot be classified as outraging public decency.

“Having exercised my powers as a rehearing judge and remembering always that I do not have the advantage that the magistrate had of seeing and hearing the witnesses first hand, I am not satisfied that the prosecution had excluded the possibility of accident in what had happened beyond a reasonable doubt,” Judge Tam said.

San Juan was represented in his appeal by three lawyers from Bar Free Legal Service Scheme.