tim's experiment

The last piece on indecent exposure produced a burst of visits and comments rarely seen in this tranquil corner of the internet. So I can add some further details to the story.

In the first place, my suspicion that the use of “binding over” instead of prosecution would be misinterpreted was swiftly born out. A lawyer friend emailed the helpful suggestion that perhaps the case was shaky (the touching was arguably inadvertent or accidental) or it was a case of one person’s word against another’s. This was an entirely understandably inference, as the prosecution should perhaps have expected.

However in this case it was not justified. The perpetrator did not suggest at the time that the offence was inadvertent. On the contrary he defended it vociferously as a predictable response to the victim’s dress and appearance. The word “slut” floated through the conversation at this point. Readers will be able to fill in the rest. Also there was a willing witness. I was informed of these small details by the victim, who also sent me a couple of emails, and this brings us to a further interesting snippet.

Before the court case, she was telephoned by Mr Kevin Zervos. What, you wonder, not THE Kevin Zervos, titan of the letters page, Scourge of the Money Launderers, and Director of Public Prosecutions? Yes, the very same. Both of us found this rather surprising. After all if your case is so trivial it is not worth prosecuting why would the DPP be handling it personally? It is like rolling up to the Park n’ Shop check-out and finding Mr Li Ka-shing working the till.

It seems that Mr Zervos wished to explain what was going on, which is that a little-known legal procedure was being used. I have complained about this before. What happens is that when you know you are going to be charged with an offence you go to an extremely expensive lawyer. Only an extremely famous and expensive firm of solicitors will do. You get them to write a letter which is the literary equivalent of that scene in Chinese imperial court soap operas in which an errant eunuch slaps his own face several times. Grovelling abjectly on your behalf the expensive lawyer asks the prosecutor to consider several matters which should properly be decided by the presiding magistrate, like did you mean it, was it really that serious, and are you a good boy the rest of the time, and to decide these in your favour. The letter then expresses your anguish, shame and contrition, and suggests that these should be regarded as a condign punishment in themselves, and it is therefore unnecessary in the public interest to proceed with the prosecution. And, surprisingly often, the Department of Justice falls for this one-sided barrage of flannel and decides to let you off. As it did in this case.

Another gift in my mail box came from a regular supporter who thought that the case I had discussed made an interesting contrast with one which occurred in the same week. This involved a gentleman who had been caught taking up-skirt pictures with his iPhone. The Department of Justice (as we have to call it) had prosecuted him for obtaining access to a computer for an illegal or dishonest purpose. The magistrate had very sensibly dismissed the charge on the grounds that a mobile phone was not a computer. In the latest instalment of this case the prosecution appealed to a High Court judge and persuaded him that a telephone is a computer so the charge should have led to a conviction. It seems that the judge did not have the assistance of any arguments for the defence, because there was no mention of some other flaws in the prosecution’s line of argument. Defence counsel, had there been one, might have pointed out that the relevant part of the Crimes Ordinance penalises dishonest access, not dishonest use, and there is nothing dishonest about accessing your own iPhone. He might have gone on to point out that up-skirt photography, while no doubt unsavoury, is not in itself either illegal or dishonest. But there we are. It’s easy to score when there’s no goalkeeper.

Well this is all very interesting, and taking it all together we can draw some conclusions about the way the law works in Hong Kong. According to a reccent article Mr Zervos, a notorious workaholic, likes to address gatherings of citizens and schoolchildren about the finer points of his work. ” ‘It is part of my job to educate the community to make the public more aware of how the criminal justice system works,’ Zervos said. ‘When they [the public] know it and are more informed about it, they will become more understanding and supportive of the system.’ ” Well I don’t know what this little episode is going to do for the system, which it seems works like this. If you are a local gent who is caught taking upskirt pictures the Department of Justice will spend considerable sums of money and bend the law into a pretzel to make sure you are convicted under a law never intended for the purpose, whose main attraction is that the maximum penalty is five years jail. If on the other hand you are a prosperous expat with a good lawyer who drunkenly subjects a lady to unsolicited simulated canine sex in broad daylight … then you will not be prosecuted at all. We are all equal before the law. But some of us are more equal than others.

Update: Zervos speaks – http://www.scmp.com/news/hong-kong/article/1256732/chief-prosecutor-kevin-zervos-urges-compassion-first-time-sex