HKSAR v. Tsang Wai Man

[English Translation – 英譯本]
CACC 212/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 212 OF 2016

(ON APPEAL FROM DCCC 251/2016)

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Before: Hon Poon and Pang JJA in Court

Date of Hearing: 7 December 2016

Date of Judgment: 15 December 2016

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JUDGMENT

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Hon Pang JA (giving the judgment of the court):

1.This is an appeal from the District Court. The applicant was convicted on his own plea one charge of “accessing a computer with dishonest intent” (charge 1) and two charges of “criminal intimidation” (charge 2 and charge 3), and was sentenced by the trial judge (Judge Sham) to a total term of 27 months’ imprisonment[1]. The applicant was aggrieved and he acted in person in his application for leave to appeal against sentence.

THE FACTS

2.In his Reasons for Sentence, the trial judge stated:

“4. …… the victim in the case was a 21-year-old female, Ms X, who had become lovers with the 33-year-old defendant since March 2015, and co-habited with him at his public housing unit, during which they had sex together multiple times. The defendant secretly filmed episodes of their sexual intercourse and stored them in his computer. [Charge (1)] The entire video recording consisted of 14 consecutive clips with a total duration of 70 minutes 28 seconds. The two of them broke up in September of the same year. After their break-up, the defendant had, time and again, requested to reconcile with X, but in vain. On 22 November 2015, the defendant sent to X a photo which was a screenshot captured from the said sexual intercourse clips. He threatened to send the photo to X’s colleagues and friends. [Charge (2)] X was frightened, thus she filed a report to the police.

5. The defendant was arrested by the police on the next day. Under caution, the defendant admitted sending X a photo of X and him having sexual intercourse. However, he explained that he was just going to frighten her, and he did not have any intention to really send the photo to anyone else. The police seized the computer in question, but discovered that those 14 clips had already been deleted. Through the help of a forensic expert, the police successfully recovered those clips. The defendant was prosecuted for the relevant offences, and he was granted bail by the court.

6. On 3 December 2015, the defendant asked X out to meet with him, during which he once again requested for reconciliation and threatened to upload the sexual intercourse clips onto the internet.  The ‘finger’ [USB drive] in which the clips were stored was kept in the mainland. [Charge (3)]  X was very frightened, and feared that if she did not reconcile with him, the defendant would make those clips public. She reluctantly complied with his request and resumed seeing him.”

APPLICANT’S BACKGROUND AND PLEA OF MITIGATION

3.The trial judge continued to say:

“7. The defendant is currently 33 years of age and single. He has 10 previous criminal convictions, all of them are of a different nature. On 14 August 2015, the defendant was convicted of one count of Criminal Damage, and was sentenced to 1 month’s imprisonment, suspended for 12 months. In other words, his guilty pleas in this case put him in breach of the said suspended sentence.

8. In mitigation, defence lawyer gave a brief introduction of the defendant on his background, occupation, etc., and pointed out that it was X who broke up with the defendant, because they were incompatible in their characters and living habits.  Defence lawyer stated that the defendant was deeply in love with X, and thus he unceasingly requested for reconciliation after their break-up, but in vain.  Defence lawyer said that the defendant had made two mistakes, the first was secretly filming their sexual acts, and the second was making use of the clips to threaten X to reconcile with him.  Defence lawyer stressed that although the defendant was in possession of the clips, he was just using them to threaten X, and he had no intention to turn those threats into action.  For example, he had already deleted the relevant clips before the police went to arrest him; it was just that the police recovered the evidence in question through the help of a forensic expert.”

SENTENCING BY THE TRIAL JUDGE

4.The following is the trial judge’s actual sentencing remarks:

“11. Although this case involved access to computer with dishonest intent, the main theme was criminal intimidation. The computer was only a device used in assisting the defendant to make threats. …… X was frightened by fear, and in the end resumed seeing the defendant, albeit reluctantly.

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13. …… defence pointed out that the defendant had no intention to publish the clips for others to view, though that was said, from X’s (victim) point of view, she would not be able to confirm whether or not the defendant had these clips with him.

14. Even though these clips had been deleted from the computer, the defendant could still store these clips by other means. In the light of our current state of technology, such data could be so conveniently stored. If the defendant relies on this as a threat, then his threat is very real, as the victim would be unable to confirm whether or not the defendant had stored these clips by other means. That could make the victim extremely frightened and cause her to live in constant fear.

15. Furthermore, the defendant filmed these clips without the consent of the victim, which in itself was deceptive, which also aroused suspicion as to his original intention for the secret filming. This was obviously a premeditated act; as indicated in this case, the defendant threatened X with such data. The defendant’s behaviour was awfully despicable; such threats could certainly strike extreme fear in a person. I find the circumstances very serious. The court shall not tolerate this type of behaviour, and a deterrent sentence is called for. Taking into account of the facts of this case, in relation to all charges, I adopt 2 years as the starting point.

16. As regards the offence of criminal intimidation committed by the defendant on the second occasion (i.e. the 3rdcharge), it was committed whilst the defendant was on court bail for committing the offence of criminal intimidation in respect of the first occasion. Generally speaking, committing an offence whilst on court bail is an aggravating factor.

17. The circumstances concerning the defendant in this case was not as simple as that. X, whom he had contacted, was a witness for prosecution. According to the information submitted to the court by the prosecution, at the time when the defendant was granted court bail, one of the conditions was that he was not allowed to contact directly or indirectly any prosecution witnesses. Although there was no evidence against him for perverting the course of justice, the fact that he initiated contact with X and requested to get back together with her would in no case not have any effect on X as a witness. The defendant’s behaviour has demonstrated a complete disregard for court order; he committed the same offence whilst on court bail. For this, I add 6 months to the sentence on the 3rdcharge.

18. In mitigation, in fact, apart from the defendant’s plea of guilty, there are no strong mitigating factors. He is entitled to a one third discount for his guilty pleas. For the 1st charge and the 2nd charge, the defendant is sentenced to 16 months’ imprisonment respectively, and for the 3rdcharge, 20 months.

19. As regards the breach of a suspended sentence, the defendant was sentenced by the court on 14 August 2015 to 1 month’s imprisonment, suspended for 12 months. As far as the 1st charge, access to computer with dishonest intent, is concerned, the period as specified in the charge was from 10 July 2015 to the end of September 2015; as part of that period preceded the suspended sentence imposed, the court is therefore unable to ascertain as to whether or not the defendant was in breach of the suspended sentence. However, as regards the subsequent 2 occasions of criminal intimidation, there can be no doubt that the defendant was in breach of the suspended sentence.

20. The defendant was in breach of the suspended sentence twice within such a short time span between the third and fourth month after the suspended sentence was imposed. I can see no reason for not activating the suspended sentence. The defendant is required to serve this one month’s imprisonment. …… I will order that this one month be added to the sentence imposed on the 3rdcharge in order to reflect the aforesaid position, thus the sentence imposed on the 3rdcharge becomes one of 21 months.

21. As regards the two offences of criminal intimidation, they are separate and distinct offences, and they took place on different days. Although the victim was the same person, she should not be made to go through such terrifying experience on two different occasions. The sentence should be made consecutive.  However, having taken into account the totality principle, I order that 6 months of the sentence on the 2nd charge be served consecutively to the sentence on the 3rdcharge, with the balance to run concurrently.  Furthermore, I order that the sentence on the 1st charge to run concurrently to that on the 3rdcharge, making the overall sentence one of 27 months’ imprisonment.”

GROUNDS OF APPEAL

5.In his Notice of Application for Leave to Appeal (Form XI), the applicant said, “A 24 months’ imprisonment shall not be adopted as the starting point for criminal intimidation and access to computer with dishonest intent.”  Furthermore, the applicant relied on a copy of a legal advice written by the Director of Clinical Legal Education of the University of Hong Kong in support of his application[2].

DISCUSSION AND ANALYSIS

Access to computer with dishonest intent

6.The trial judge assumed right at the start that the applicant’s act was “premeditated” (paragraph 15 of the Reasons for Sentence by the trial judge).  He said that the applicant’s “original intention for the secret filming aroused suspicion” (paragraph 15 of the Reasons for Sentence by the trial judge) and the computer was only “a device to assist the applicant to make threats” (paragraph 11 of the Reasons for Sentence by the trial judge), which means the applicant’s primary or even sole purpose for the secret filming was to retain the video and use it to threaten X in the future.  However, we are of the view that there was insufficient evidence in this case to allow the trial judge to make the above inference.  The admitted facts stated that X and the defendant became “lovers” six months prior to the time of offence, and they then started co-habiting at the defendant’s home.  We are of the view that it would not be possible for the trial judge to ascertain the defendant’s motive at the time of the secret filming on the basis of only the subsequent development.

7.That said, we are not understating the seriousness of the act of secret filming itself.  Such act is not only selfish, despicable and a heartless trample on another’s privacy, it also poses enormous potential threat to the person filmed.  What we mean is, whatever the film/photo taker’s original intention was, once the photographs or videos (hereinafter collectively referred to “images”) retained were disseminated, whether by accident or otherwise, the harm caused to the person filmed would be difficult to estimate.  In the internet world nowadays, meddlers could quickly identify the identity of the person filmed, making it difficult for him/her to handle. Thus, factors such as the relationship between the film taker and the person filmed, the film taker’s purpose for the secret filming, the quantity and the degree of indecency of the images, whether or not the face of the person filmed was clearly visible in the images, the means used by the film taker to store the images, whether or not the images had been duplicated or disseminated, and the behaviour and attitude of the film taker after the secret filming had been uncovered are all capable of enhancing the culpability of the film taker and the sentence he deserves.  To conclude, secret filming in itself is already a serious offence, and a severe penalty is warranted.

8.In this case, upon our enquiries, the applicant confirmed that, apart from the numerous quantity of clips (14 clips) and the long duration (70 minutes 28 seconds), the face of X was clearly visible and the images contain scenes of sexual intercourse, oral sex as well as digital penetration.  In addition, according to paragraph 3 of the Admitted Facts[3], in mid-September 2015 (i.e. approximately two weeks after they broke up), when X returned to the unit she co-habited with the defendant, she accidentally discovered those video clips.  The applicant, when confronted by X, promised to delete the said video clips.  However, up until the time when Charge 2 took place (on 22 November 2015), the applicant still at least retained a photo captured from the video clips.  Thus, it cannot be said that the facts were not serious.  However, given that the applicant and X were in a relatively intimate relationship in the past, that the applicant’s motives at the time of the secret filming was unknown, and that there were no other episodes that could have explicitly enhanced the seriousness of the offence, a starting point of 2 years is indeed excessive.  We are of the view that, in relation to Charge 1, an appropriate starting point should be one of 18 months.  As the applicant had pleaded guilty, he is entitled to a one third discount, his sentence is thus reduced to 12 months.

Criminal Intimidation

9.As X had viewed the videos secretly filmed by the applicant herself (see paragraph 8 above) and knew the contents therein, it would be correct for the trial judge to point out that X, having been threatened, would “live in constant fear”.  It would not be inappropriate for the trial judge to adopt a starting point of 2 years on Charge 2 and Charge 3. Whether or not the applicant had the intention to publish the batch of video clips, he should be liable to a heavier penalty for such despicable acts of intimidation.

10.What has raised our concern is that the trial judge added 6 months to the starting point on Charge 3 to bring it to one of two and a half years on the ground that the applicant had committed Charge 3, a similar offence, while he was on bail for Charge 2.  We are of the view that, by pointing out the applicant’s behaviour had, to a certain degree, resulted in perverting the course of justice (paragraph 17 of the Reasons for Sentence by the trial judge), the trial judge had overlooked the actual circumstances surrounding the commission of Charge 3: The applicant had spent approximately two hours to persuade X to reconcile with him before making such threats; he became agitated after he failed to persuade X, who was accompanied by two friends throughout (see paragraph 7 of the Admitted Facts[4]). Contrary to the understanding of the trial judge, the evidence in the case was that X was only further alarmed; there was no evidence to suggest that X wished to withdraw the police report.  Under the circumstances, it would be inappropriate for the trial judge to increase the starting point all of a sudden by a quarter (i.e. 6 months).  We are of the view that, as regards the starting point on Charge 3, an enhancement of 3 months would be sufficient.  As the applicant had pleaded guilty, he is entitled to a one third discount, thus the sentence on Charge 3 is reduced to one of 18 months.  As regards Charge 2, the ultimate sentence is upheld at 16 months.

Activating the suspended sentence

11.The trial judge was correct to order that the previously imposed suspended sentence of 1 month be activated immediately.

Overall culpability and total sentence

12.We are of the view that the total sentence (of 27 months) imposed by the trial judge was manifestly excessive.  Having considered all the circumstances in this case (especially the inter-relationship among the three charges), we are of the view that a total sentence of 22 months is already sufficient to reflect the overall culpability of the applicant.  To achieve this, the sentence (of 16 and 18 months) on Charge 2 and Charge 3 can be made concurrent (i.e. a total of 18 months); and 9 months of them be served consecutively to the sentence (of 12 months) on Charge 1 (i.e. a total of 21 months), and lastly, adding to it the suspended sentence imposed in the previous case which is activated (i.e. a total of 22 months).

JUDGMENT

13.We grant leave to the applicant to appeal against sentence and we allow his appeal.  We substitute the sentence with what we have determined in paragraph 12 above.

The Applicant, Tsang Wai Man, was not represented and appeared in person.

Chan Suk Wai, Winsome, Senior Public Prosecutor, for the HKSAR, the Respondent.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.