HKSAR v. Ting Kam Chi

DCCC 769/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 769 OF 2016

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Criminal intimidation". He threatened his ex-girlfriend to damage her reputation by releasing her erotic photos to others.

Summary of Facts

2.X met the defendant in December 2015 on "Instagram".  They soon began their intimate relationship.  In February 2016, they broke up and did not contact each other since.  In March 2016, X started a relationship with another boyfriend.

3.On 18 June 2016, the defendant sent X some erotic photographs of her via "WhatsApp" and requested X to continue to be his sex partner.  X refused.  The photographs sent by the defendant included one depicting X in her bra and panties; one depicting X in her bra and panties wearing a jacket on top; one depicting X wearing a jacket without a bra inside; and one depicting X naked, photographing herself with her phone in front of a mirror.

4.On 19 June, the defendant asked X for her final answer on what she would offer him.

5.On 20 June, X replied by saying what if she opted to do nothing.  The defendant then asked X who should get it first, her family or new boyfriend?  X asked the defendant to clarify what he meant.

6.On 21 June, the defendant sent X a photograph of her grooming a pet captured from the Facebook page of her pet-grooming school.  He said X looked quite pretty on camera and asked if it would be better to place her photographs on the official Facebook page or send them directly via "WhatsApp" to the contact number of the official Facebook page.  The defendant also threatened X to become his sex partner; or otherwise, he would send her boyfriend photographs of X allowing the defendant to ejaculate inside her.

7.Feeling scared, X alerted the Police.

8.The defendant was arrested on 2 July 2016.  Under caution, he claimed that he wanted to threaten X and to find out the reason why she broke up with him.  In his cautioned interview, the defendant admitted, inter alia, that in May 2016, he found out that X had a new boyfriend before they broke up.  He was angry and, therefore, threatened X to become his sex partner.  The defendant claimed that those photos were sent to him by X when they were still a couple.  He threatened X because he wanted an apology from her.

Mitigation & Sentence

9.The defendant is 22 and has a clear record.  Defence solicitor Mr. YEUNG informed me that prior to the offence, the defendant worked as a salesperson in a fashion retail store earning $14,000 per month.  He lost his job after he was arrested.

10.In mitigation, Mr. YEUNG submitted that the defendant has been cooperative with the Police by making full and frank admissions.  Mr. YEUNG stressed that the subject photographs were not taken by the defendant but X.  She sent them to the defendant herself.  Furthermore, the defendant did not send the photographs to anyone else.  Mr. YEUNG explained that the defendant was angry because he found out X had another boyfriend when she was dating the defendant.  Letters from the defendant, his mother and his school principal were placed before me; their contents are duly noted.

11.I do not know why the defendant and X broke up or if he was in fact betrayed by X.  Even if he was, the law clearly prohibits him from doing what he did.  He obviously took the wrong route and resorted to unlawful means to express his anger.

12.The defendant's criminal acts are shameful.  X sent him her photographs probably out of love and trust. Those photographs were no doubt meant for the defendant's personal and private viewing.  It is disappointing to see the defendant breaching such high level of intimate trust in such disgraceful manner.  The fear, devastation and embarrassment experienced by X upon receiving the defendant's threat must have been beyond imagination.

13.In The Queen v WONG Chak-man HCMA 824/1984, the appellant was convicted after trial of a similar offence.  In that case, when the appellant's lover wished to terminate their relationship, the appellant tried to make her change her mind by threatening to publish nude photographs of her, which he had taken over a period of several years.  The trial magistrate sentenced the appellant to 6 months' imprisonment.  On appeal, Bewley J held that the sentence was a proper one but ordered to the sentence to be suspended for 3 years out of mercy since the appellant was suffering from a psychosis known as the Othello Syndrome. Although His Lordship decided to suspend the sentence, he made it very clear in his judgment "I do not wish to appear to give jilted lovers a licence to act in this fashion.  Women are entitled to protection from this sort of behaviour." 

14.By the same token, I consider that an immediate custodial sentence is required in the present case, especially at this day and age when digital images (motion or still) can easily be transmitted to others or published on the internet by just a few touches on the cell phone's screen.  The court must accord additional protection to innocent and trusting victims like X.  At the same time, I do not see any exceptional circumstances which justify dealing with the defendant in any other manners.

15.Mr. YEUNG has submitted 2 cases for my reference.  They are HKSAR v CHENG Pui Man Dicky HCMA 765/2009 and HKSAR v LAM Chi Hong Patrick HCMA 496/2011 (Chinese judgment).  I have reminded myself that WONG Chak-man was decided in the 80s when information technology was not nearly as convenient and popular as today[1]. 

16.The defendant has only himself to blame for getting into the current predicament.  Pre-sentencing reports were obtained.  Community Service Order is not recommended, but he is found suitable for Detention Centre.  In the present case, I consider a short sharp shock type of sentence to be appropriate and effective.  A Detention Centre Order will benefit the defendant most in terms of disciplinary training, reformation and punishment.  Accordingly, I make a Detention Centre Order, which will be the sentence for the defendant.