HKSAR v. Lam, Terry

DCCC 187/2018

[2018] HKDC 963

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 187 OF 2018

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Reasons for Sentence

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1.The defendant has pleaded guilty to three charges. The first is criminal intimidation, and then there are two consequent charges of publishing child pornography.

2.The defendant has agreed the facts.  The offence involves a 13-year-old girl who is a Form 2 student.  She used social media, particularly Instagram, and the defendant had messaged her on Instagram and they became acquainted on that media.

3.Events moved on on 17 November 2017.  The defendant made certain suggestions to conduct some form of sexual conduct to her.  She refused to do this, but then they took photographs, or the arrangement was that they would take photographs of their private parts and exchange them, and they went ahead and did this, meaning that the defendant became in possession of these photographs of the victim.

4.The 1st charge arises out of what the defendant did with the photographs after he had received them.  He said over social media or this form of media that they meet up and perform sexual acts with each other, and that if she refused to do this, then he would send the photographs that she had sent him to her friends on Instagram.  The victim said no to this and then tried to block the defendant from her Instagram account, but the defendant was able to make this threat again through another account.

5.The victim’s sister came to know about this, and she was conversant of the illegality of what was going on, and she decided to continue this conversation with the intent, I presume, of luring the defendant.  The defendant had requested of the victim that they meet at a guesthouse in Mong Kok, and he told her that she should not wear her school uniform.  There were various discussions about how the sexual activity would take place and where it would take place.

6.Her sister impersonated her after reporting the matter to the police, and as a result of that the police were able to arrest the defendant.  The defendant however had also published by way of social media images of the victim.  They form the 2nd and 3rd charges, being the two instances of publication of the photographs.  One was to another 13-year-old friend of the victim, who was female, and the second one was to another 13‑year‑old male friend of the victim. 

7.The defendant was subject to a video-recorded interview, and he did admit the offences in that interview and admitted he had been involved on the two Instagram accounts through which communications were made, had suggested sexual activity with her, had requested her to perform various sex acts with him, had threatened that if she refused he would send photographs to her friends on Instagram, and had gone to meet her with the purpose of conducting sexual activity with her.  He believed, he said, that the victim and her friends were at school at the time.  He was aware of the fact that they were juvenile, and he said he had never actually met her in person. That is a summary of the facts admitted by the defendant.

8.He is now aged only 22.  Prior to all this he had a clear record in Hong Kong.  He had worked as a security guard, a tutor, and worked at Ocean Park, and he is single. 

9.As this involves a sexual offence involving a person, a victim only 13 years old, I obtained reports on the defendant to see whether there was any propensity to paedophilia and reoffending.  The psychological report shows the defendant was raised as an only child.  His academic performance has been described as average.  He aspires, as we know from mitigation, to work in the aviation industry.  He admitted the essence of the offences to the psychologist, so a proper review of his psychological state could be initiated.

10.He was found to be unaware of the potential harm that could be caused to the victim, and had not considered the consequences of his actions.  He expressed remorse, yet his insight into the contributing factors of his problems is inadequate.  Other than the age of the victim, there are no other signs that the defendant has paedophiliac tendencies.  However, taking all the factors that were assessed into consideration, the risk level for the defendant to commit similar offences in the future is described as moderate.

11.As far as the psychiatric condition of the defendant, he does not suffer from any illness.

12.The probation officer describes the defendant as a man who had been leading a law-abiding life up to this incident.  He is remorseful.  His family stand behind him, and they ask for the grant of a lenient sentence so the defendant can resume his life and further his chosen career.  They also point out that although the defendant is average in academic terms, he also has musical talent and talent also in the area of mathematics.

13.I now turn to these offences.  In respect of both the criminal intimidation and the publishing of child pornography there are no guideline sentences.  There are, of course, guidelines for possession of child pornography, but this is a different offence.  The 2nd charge is a different offence; it is publishing child pornography, which carries a higher maximum sentence of 8 years on indictment.

14.I shall turn to the 1st offence of criminal intimidation.  There are references to sentencing for this offence in relation to sexual offences in a number of previously decided cases, and I have been referred to them.  I think it is safe to say that the cases themselves very much depend on their own facts and are contained within a factual matrix that involve some very serious offences.

15.In the case of HKSAR v Chan Hoi Tat Cr App 447/2010, the defendant was charged with procuring child pornography, which is a similar offence to publishing it, together with two counts of criminal intimidation and two counts of indecent assault, and this involved a 12-year-old girl who came to know the defendant, who was then aged 24.  Again, there was an agreement to meet as a result of photographs that had been sent over the media, and sexual activity occurred.  There was an overall sentence of 5 years’ imprisonment in this case, but the sentence in respect of the criminal intimidation charges was 1 year’s imprisonment, and also in respect of the procuring of the child pornography there was 1 year’s imprisonment.

16.The other case I was referred to was Chan Ting Yip Cr App 201/2009, where two charges of unlawful sexual intercourse with a girl under the age of 13 were bracketed with a charge of criminal intimidation.  It would appear from the record of that case I have, although it is a translation, that the starting point on that criminal intimidation charge must have been 3 years’ imprisonment, because the final sentence after discount was 24 months’ imprisonment, of which 12 months were to run consecutively to the other charges.  In this case, the victim and the defendant had had contact again over some form of media, and the victim was only 10 years old, and in fact they had had sexual intercourse.  Some two years later there was further communication between them.  The communication was through the internet, and indecent photographs were procured by the defendant of the victim, and again there were threats then to disseminate those images.  Within the context of that case, involving a very young girl over quite a period of time, the final sentence of 24 months was approved by the Court of Appeal, although only 12 months of it actually ran consecutively to the other charges involving unlawful sexual intercourse.

17.The final case I was referred to was HKSAR v Patrick Lam Magistracy Appeal 496/2011.  This is where there had been a sole plea to a count of criminal intimidation leading to a sentence of 10 months’ imprisonment which was set aside for a sentence of 8 months’ imprisonment.  It followed a similar modus operandi to most of these cases, but these two, the victim and the defendant, were of age.  The victim herself was 24 years old in this case.  Again, there were nude photographs in existence, and the intimidation was that the victim was asked to have sex for free or the photographs would be sent to her boyfriend.  In the light of those facts and also some other considerations, a sentence of 8 months’ imprisonment was decided upon on appeal.

18.Taken together, the cases do show a pattern of sentencing, and I found the second case I was referred to, that of Chan Ting Yip, the most apposite to these facts, both of them involving the sexual exploitation of young girls, but also lying within more serious sexual conduct.

19.In this case the aggravating elements appear to be the fact that the victim is young - she was only 13 at the time - and the intimidation is being used to procure sexual activity with that girl, and in fact in this case the defendant then goes on to publish the photographs of the girl to her friends.  So this case is serious, although not, in my view, on quite the same level as what had occurred in Chan Ting Yip, where the court was satisfied that a starting point of 36 months’ imprisonment was appropriate for this offence.

20.In determining the starting point, I bear in mind what this criminal intimidation is all about and what this defendant was trying to force this girl into doing, and that is where the seriousness of this offence lies.

21.In determining the starting point, I do bear in mind the defendant’s young age - 22 years - and his previous clear record and his generally favourable reports.  However, it is a case that requires the imposition of a sentence of imprisonment and one that would have immediate effect.  There must be some deterrent nature in the sentencing for these kind of offences, given the prevalence of this kind of media and the way in which it can be abused, especially by adults as against children.

22.My overall consideration is that on the 1st charge, the starting point for sentence should be one of 27 months’ imprisonment.  After deduction for plea of guilty, that would lead to a sentence of 18 months’ imprisonment.

23.The 2nd and 3rd charges are of a piece; they are the same offence.  The defendant published these photos by sending them to other people.

24.In the case of Chan Hoi Tat where the charge was procuring the making of child pornography, the sentence after a plea of not guilty was one of 12 months’ imprisonment.  That involved the girl making the photographs and sending them to the defendant.  This is more serious, because he has then gone on to get her to make the photographs, send them to him, and then he has published them to her friends, who were also children themselves.

25.I find the guidelines for the offence of possession to be of little use to me in this case. 

26.I will take a starting point of 24 months’ imprisonment on each of those and reduce that to 16 months’ imprisonment for the defendant’s plea of guilty.

27.These sentences could be served entirely consecutively.  The defence asks that they be served concurrently to the 1st charge. 

28.This is a case where this is an added element of criminality to the criminal intimidation, so I consider in this case there must be some element of consecutive sentencing.  However, I bear in mind that at the end of the day, the victim was saved by her sister, and the defendant himself is still a young man.

29.What I shall order is that the 2nd and 3rd charges, the sentences be served concurrently to each other, but 3 months of those sentences be served consecutively to the 1st charge, leading to a total of 21 months’ imprisonment.  That will be the overall sentence.