A judge has ordered a review into the Department of Justice’s decision not to prosecute a man who was allegedly caught on camera masturbating behind his domestic worker.
The employee, known only as D, approached police with apparent video evidence against her employer, known only as Shek. The video allegedly showed Shek touching himself whilst standing behind D in his apartment, causing her to fear assault, she claimed.
Lawyers representing D called on the High Court to review a decision by the office of the Director of Public Prosecutions not to prosecute Shek.
High Court judge Justice Zervos accepted the application for judicial review, stating: “The decision of the Director not to prosecute is reasonably arguable both as a matter of principle and in the circumstances of this case.”
Lawyers representing D told the High Court on Friday, July 3 ,that D started working for the Shek family at their home in Mong Kok in November 2013.
The court heard that Shek been caught touching himself while D had her back turned to him on several occasions. She first noticed it in February 2014, the court heard.
D’s representative, Gerry McCoy SC, said his client had seen him acting inappropriately twice on the same day – once reflected in the TV screen and once reflected in the door of a kitchen cupboard.
Lawyers said on March 3 last year that D decided to hide a camera in the kitchen where she covertly filmed Shek inappropriately touching himself a few feet away from her. She later sought refuge with the PathFinders NGO, left her job after Shek’s wife was shown the footage and handed her evidence to police a few days later.
In February 2015, the Director of Public Prosecutions (DPP) notified D that no charges would be laid against her former employer.
McCoy argued that the DPP had come to the decision not to prosecute Shek based on a misunderstanding of the “law of recklessness”. This is where a defendant needs to be aware of the risk involved when committing a certain action and then deciding to take that risk.
In D’s case, Shek would have needed to be aware of the risk of being seen by D touching himself as he stood behind her. McCoy argued that the DPP misunderstood the law of recklessness in D’s case and misapplied it as a result.
He claimed the DPP had chosen not to prosecute Shek because they said there was not enough evidence to prove he wanted D to see him masturbating behind her.
However, McCoy argued there would be enough evidence to prosecute someone for reckless indecent assault if the defendant behaved in a way that could cause a victim to fear the possibility of assault, even if that was not what the defendant intended.
McCoy told the court that D “doesn’t turn around because she is frightened, because she is scared of what he might do.”
Speaking on behalf of the Department of Justice, Peter Duncan SC argued that the High Court had no power to review the DPP’s decision not to prosecute, even if an error had been made.
He cited article 63 of the Basic Law, which states: “The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference.”
Duncan told the court: “Decisions by the DPP to prosecute or not to prosecute are not amenable to judicial review, unless the director has acted outside the scope of the constitutional powers bestowed by article 63.”
