HKSAR v. Kwan Ming Ho
Read the full judgment text of DCCC 629/2016 on BabelCite. This District Court judgment was delivered on 8 May 2017.
1. This is a case where a woman sent her nude photographs twice over to a stranger (the Defendant), and they had sex 3 times. It all happened within a week.
Cited by 3 cases
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DCCC 629/2016 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 629 OF 2016 -------------------------
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----------------------------------------- REASONS FOR VERDICT ----------------------------------------- Introduction 1.This is a case where a woman sent her nude photographs twice over to a stranger (the Defendant), and they had sex 3 times. It all happened within a week. 2.In a nutshell, Prosecution says that the woman was unwilling, but that she was threatened during the incident, which was why she did it. Whereas the defendant says that the woman was willing from the start, that she was a prostitute, she engaged in the business of “supported friendship”. He never threatened her. He had already paid her $1,600. Common ground 3.There is a lot of unchallenged evidence in the trial and this court can easily distill therefrom some obvious facts. These facts are stated below. It is convenient to mention briefly the prosecution case and defence case along. 4.The woman was 18 years old at the time and was a student. The Defendant was a 43 years old man, living alone in a small room in Sham Shui Po District. They did not know each other beforehand. 5.On 23rd of March, 2016, the woman’s mobile phone was connected to the defendant’s, through an open on-line friends-making application called “momo”. The woman, via momo, asked the defendant for a $4,000 loan, saying that she needed to help pay her friend’s medical bill. She told the defendant that her friend was suffering from leukemia in China. She also asked the defendant for the latest version of an i-phone. 6.The conversation proceeded and as a result, the woman sent, via momo again, her nude photos to the defendant, which I prefer to call “First Photos”. First Photos are not recoverable now because both the woman and the defendant erased their momo application (along with First Photos, the text messages and audio recording) before the Police were involved. 7.On 24th, the woman went to the defendant’s residence (“Meeting One”) where the woman performed oral sex for the defendant. The woman left. [This is Charge 1[1]: Criminal Intimidation, where the woman testified that she had sex with him only because the defendant threatened publicizing First Photos. By contrast, the defendant says that the woman was willing as she was paid to do it and that he did not threaten the woman with anything or at all] 8.Conversations still went on but mostly if not exclusively by calls, which content unlike text messages cannot be recovered by the Police and cannot be shown to the court. However, the defendant did ask for more nude photos. 9.On 26th, the woman took a new set of nude photos and sent it over, via WhatApps, to the defendant. These “Second Photos” were retrieved and shown in court. [The woman testified that she sent them because the defendant threatened again publicizing First Photos. By contrast, the defendant says that the woman was willing as she was paid to do it and that he did not threaten her at all. After all, the Prosecution did not charge the defendant for this alleged threat] 10.After Second Photos were sent, the woman and the defendant tended to use more “WhatsApp” and “WeChat” in their communication. The Police managed to retrieve and produce some of this content for me to see. 11.Later on the same day (26th), the woman went to his residence again (Meeting Two) where they performed oral sex to each other and had intercourse. The woman left. [This is Charge 2: Procuring sexual intercourse by threat, where the woman testified that she did it only because the defendant threatened again publicizing her nude photos. By contrast, the defendant says that the woman was willing as she was paid to do it and that he was feeling unwell at the time, the woman forcefully sat her vagina on his penis against his will] 12.Communication continued on the 27th and 28th, some by calls and some by text, through WhatsApp and WeChat. Some of the written communication were retrieved by the Police and will be re-produced later in this document. [This is Charge 3: Criminal Intimidation, where the woman testified that the defendant threatened damaging her father’s business in China, chopping up her father and publicizing her nude photos. By contrast, the defendant says that he never knew the place of her father’s business, he could not and had never indicated to damage her father’s business, nor did he ever say chopping up anyone. However, he admitted that he mentioned in the text that he would publish her nude photos, but just to help advertise her prostitution business on the internet. He said that this was the help she asked for] 13.On 28th, the woman went to the defendant’s residence again (Meeting Three), where she performed oral sex to the defendant. She was also molested by the defendant. [This is charge 4: Indecent Assault, where the woman testified that she did it only because the defendant threatened again publicizing her nude photos. By contrast, the defendant says that the woman was genuinely willing as she was paid to do it and that he did not threaten the woman at all.] 14.Later on the same day (28th), the woman went to report to the Police. Her complaint was initially jotted down by a policewoman onto a casual sheet of paper. The paper was trashed and tossed away. Nobody can tell its content now. 15.On 29th, the defendant was arrested at home. 16.On 30th, inside the Police Station, the defendant underwent an interview for more than an hour where the defendant gave his account of the events. 17.The defendant never advanced the $4,000 loan to the woman, nor did he buy her any i-phone. However, the defendant did pay her some money, the amount of which is in dispute. Witnesses and exhibits 18.There were only 3 witnesses testifying, namely: the woman, the Defendant and eventually the policeman who arrested the Defendant back to Police Station. The Policeman evidence is uncontroversial and has been encapsulated in paragraph 14 above. 19.In terms of exhibits, various were produced in court for me to consider. Among them, two pieces are of particular importance: i) the voluminous text and retrieved messages between the parties over the week. Despite the best endeavor of the Police, these exhibited messages are not complete; and ii) the Police video interview of the Defendant (in both CD-ROM and in transcript formats). The Defence agreed to have both these exhibits produced in court for me to consider. Evaluation 20.Except Charge 3, the whole Prosecution case relies heavily if not exclusively on the woman’s testimony. She however did not impress me to be a creditable witness. 21.The woman down-played her greed at the start and she maintained it all through the trial. She said that she just came to know a patient in China on the internet, whom she called boyfriend at a time but whom she did not even know the full name of. She further said that she knew that he needed the HK$4,000 (but not RMB) for his medical bill for leukemia, a daring illness which obviously requires sophisticated treatment and substantial medical cost. She sincerely wanted to help him, because she thought it was meaningful but she dared not ask her parents for it. She instead tried some strangers (the defendant) in the cyber-space for what she called a loan, where no repayment date was ever mentioned. 22.The above absurdities are imminent and they make the whole last paragraph ironic. I do not believe that this patient ever existed. I do not believe that she was asking for a $4,000 loan. Instead, I believe in the defendant that she was asking for a $4,000 price for her photos and service. Along with this price, was the i-phone 6 that the woman mentioned she wanted. I also believe in the defendant that the woman had asked for a Cartier bangle too. I accept that the defendant would not have mentioned this particular jewelry, not this particular brand in the interview soon after he was taken to the Police station if the woman had not asked for it. In the same vein, I also believe in the defendant that he had paid the woman altogether $1,600, instead of just $60 as the woman says. 23.Her greed is important in the case because much of the case is about her motive. Why did she send over the photos to the defendant? Why did she have sex with him (oral or vaginal)? If this court is not sure of her real motives/reasons of so doing, Charges 2 and 4 must fail. I am not sure that when she had sex with him, she had in her mind the reward or the promised reward. I am not sure if she would have done it spontaneously. In gist, I am not sure if she was procured to have sex with him at Meeting Two (Charge 2) and I am not sure if she did not genuinely agree to the molestation etc at Meeting 3 (Charge 4). I accordingly acquit the defendant of these two charges. 24.Her absurdities also affect her veracity as a whole. I do not believe in her in general. Since Charge 1 (Criminal Intimidation allegedly on 24th day of March, 2016) relies exclusively on the strength of her oral testimony, Charge 1 must likewise fall. There is no exhibited text conversation for this date. 25.The only exception is Charge 3 (Criminal Intimidation allegedly continued from the 27th, onto the 28th day of March, 2016), where there were substantial “photos publication” messages shown to the court. The defendant explained that he just wanted to advertise for the woman, but the messages (which I have considered all but will quote just a few) are all too clear in flow and meaning such that his explanation cannot be accepted. He threatened her and he meant it. 26.Entries 1574 and 1605-07 prove that the defendant knew that the woman was concerned with him putting her nude photos online and that she did not like it.
27.Further entries on 27th and 28th prove that as the defendant doubted the woman’s chastity (if she was seeing another man), he threatened her with releasing her nude photos online on Skype.
28.The woman was never asked in court why she was concerned with the publication. Nevertheless, since some of the photos (of Second Photos) show her face, she must naturally care if some relatives or friends or future colleagues might happen to see the photos in the public domain. This should impact her reputation as a regular decent woman and this is shameful on her. Whether or not she deserves this reputation is another matter. However, it was this reputation that she cared about and she was thus alarmed by his threatened release. The defendant naturally knew it. He intended it. He was angry at the time and so, he threatened to release to injure this said reputation of her to get her attention, to alarm her that she would not see any men other than him. Judging from the many numbers of the threatening messages, spanning over many hours, it was not an outburst. These are all, I am sure, what were actually happening in their communication and in their minds. These are the exclusive factual inference that I feel compelled by the evidence to draw. 29.Knowing that intended publication would injure her reputation and thus alarm her, the defendant set out to say it and it thereby alarmed her, the following necessary elements of Charge 3 are thus proved by the Prosecution (beyond all reasonable doubts) and the defendant is convicted as such:-
30.The crossed particulars of the Charge (injury to person and property of the woman’s family members) are not proved because the exhibited messages did not contain them and though the woman said so in court, she is not believed. 31.This trial unveils a case of an inexperienced woman in immoral trade. She met a man who is mean (did not pay her enough) but who was so obsessive that she could not get rid of. She had to enlist the assistance of the Police to do it. Conclusion 32.Charge 1 :The defendant is acquitted Charge 2 : The defendant is acquitted Charge 3 : The defendant is convicted Charge 4 : The defendant is acquitted.
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